CLC 2004 Judgments

2004 C L C 675

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

Before Syed Mazhar Ali Shah, Senior Member

ALLAH NOOR and others---Petitioners

Versus

RAHAM BADSHAH and others---Respondents

Case No.85 of 2002, decided on 10th April, 2003.

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

----Ss. 39, 44 & 164---Mutation, cancellation of---Shajra Nasab of Mauza concerned showed that names of petitioners did not exist either as co-­sharers or owners of Shamilat-e-Deh-- Wajib-ul-Arz of relevant years of said Mauza revealed that Shamilat could only and exclusively be utilized by the owners and co-sharers and it explicitly mentioned that owners in possession had nothing to do with Shamilat-e-Deh--- Petitioners had purchased certain land with shares in Shamilat, but neither Khata of Shamilat nor numbers of shares were recorded in mutations in question by concerned Revenue Officers---Ownership of land which petitioners had purchased, could not bestow any right on them to transfer land in Shamilat---Any transaction which failed to specify the shares of Shamilat so transferred, would make the sale-deed ab initio invalid---By purchase of land, petitioners had only attained the status of owners in possession of purchased land and they could not claim their share in Shamilat as per Wajib-ul-Arz of the village---When schedule of Shamilat was not announced no shareholder was authorized to sell his share as his shares were not properly defined.

2004 C L C 684

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

Before Syed Mazhar Ali Shah, Senior Member

Mst. SAIDRO JAN alias TORA and others---Petitioners

Versus

JEHANZEB KHAN and another---Respondents

Case No. 86 of 2002, decided on 10th April, 2003.

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

----Ss. 54 & 55---Joint property---Sale by co-sharer of his share out of joint property---Rights of buyer and seller---Joint owner/co-owner could sell his share out of the joint property to anybody and he was legally not required to seek permission from other joint owner/co-sharer of the joint property---Purchaser would always step into the shoes of the seller and would assume his legal status---If a sitting tenant purchased some portion of joint property from co-sharer, he would become, co-sharer into that joint property and his tenancy would extinguish there and then and in that case no suit for ejectment was competent against him.

(b) North-West Frontier Province Tenancy Act (XXV of 1950)---

---S. 70---West Pakistan Land Revenue Act (XVII of 1967), S.164--­Question of title, determination of---Forum for---Revisional jurisdiction, exercise of---Whenever question of title would crop up between parties litigating before Revenue Court, Revenue Court had better direct parties to move Civil Court---Both Courts below vide their respective orders had rightly appreciated the facts of the case and had correctly found That since question of title had now cropped up and a pre-emption suit too was subjudice in the Civil Court on the same land, legal course for the aggrieved party was to knock at the door of Civil Court.

2004 C L C 753

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

Before Syed Mazhar Ali Shah, Senior Member

AMIR ZADA---Petitioner

Versus

SAHIBZADA and others---Respondents

Case No.87 of 2002 decided on 17th April, 2003.

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

----S. 164---Order passed by Presiding Officer, Revenue Appellate Court was a very sketchy order which did not come within definition of a "speaking order"---Incontrovertible documentary evidence was available which was eloquent of the fact, that there simply did not exist any question of title which Trial Court alluded in its order---Findings of Commission enjoyed confidence and concurrence of both parties, but Trial Court did not implement report of said Ahle-Commission---Trial Court had neither discussed Ahle-Commission's Report on merits nor had given any reason for disbelieving the same---Some of the facts which Presiding Officer of Revenue Appellate Court should have taken note of, had not been so taken---Order passed by Presiding Officer, Revenue Appellate Court, was set aside by the Board of Revenue in revision with direction to Trial Court to implement Ahle-Commission's Report in question.

2004 C L C 8

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

ARSHAD NAEEM‑‑‑Petitioner

Versus

MANSAB ALI and 2 others‑‑‑Respondents

R.O.R. No.823 of 2002, decided on 29th April, 2003.

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

‑‑‑‑Ss. 36 & 164‑‑‑Appointment of Lambardar‑‑‑Applications were invited for appointment of substitute Lambardar after the death of the Lambardar‑-‑Fifteen candidates applied for the post, but out of them 8 candidates withdrew their applications and only 7 candidates remained in field out of whom four were not summoned‑‑‑Out of remaining 3 only the respondent was appointed without taking into consideration merits of other two candidates‑‑‑Non‑summoning of candidates who had not withdrawn their candidature and ignoring claim of other candidates without hearing them and without taking into consideration their merits, had militated against requirement of law and justice‑‑‑Order of Authority appointing, the respondent arbitrarily, , was unlawful and unsustainable, irrespective of the fact whether petitioner had any locus standi in the matter or not‑‑‑Order was set aside and case was remanded for fresh appointment after inviting applications through proper publicity and after hearing candidates properly looking into merits of their claims.

Muhammad Saleem Chaudhary and Mian Muhammad Hanif for Petitioner.

Muhammad Hassan and Ch. Ikram‑ul‑Haq for Respondent No.1.

2004 C L C 28

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

SAWAN alias ABDUL AZIZ‑‑‑Appellant

Versus

TAGGIA‑‑‑Respondent

R.O.A. No. 146 of 1997, decided on 21st December, 2002.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑

‑‑‑‑Ss. 10, 11 & 13‑‑‑Consolidation of holdings‑‑‑Consolidation Scheme of Mauza concerned was confirmed with the consent of the parties and 8 Kanals and 7 Marlas land was allocated to both appellant and respondent jointly with fifty fifty shares which was done for the reason that both of them had jointly installed an expensive Turbine in the said land‑‑­Respondent after about four years of the confirmation, challenged the same in appeal but Collector Consolidation dismissed the appeal being time‑barred and also on the ground that Mauza concerned had already stood transferred to Revenue side and that the Scheme had been approved with the consent of parties‑‑‑Revision filed by respondent against judgment of Collector Consolidation, was accepted by Additional Commissioner Consolidation who withdrew 4 Kanals and 10. Marlas of land from one Khasra number from joint Scheme and allocated said land to the respondent‑‑‑Said order of Additional Commissioner had been assailed by appellant in appeal before Board of Revenue‑‑‑Evidence on record had, proved that Turbine existing on the land was installed and owned jointly by both appellant and respondent and respondent could not prove that he had paid the share of amount to appellant which he had spent for installation of Turbine‑‑‑Respondent had challenged the Scheme after about 4 years because land in dispute had turned into land of commercial type because of its being located on Highway and respondent attempted to grab it because of its higher value‑‑‑Additional Commissioner unlawfully allocated the said land to respondent to the extreme disadvantage of appellant‑‑‑Scheme having been confirmed with consent of the parties, contention of respondent that appellant had got, scheme sanctioned by keeping respondent in dark, was repelled‑‑‑While hollow and bogus claim of the respondent stood falsified by his own contradictory stand and his request being time‑barred, Additional Commissioner was not justified to accept unlawful demand of the respondent‑‑‑Order of Additional Commissioner which was passed in total disregard of law and dictates of justice, being unsustainable, was set aside, in circumstances.

Syed Kaleem Ullah Bukhari for Petitioner.

Haq Nawaz Khan Lund for Respondent.

Date of hearing: 20th December, 2002.

2004 C L C 40

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

MUHAMMAD YASIN and others‑‑‑Petitioners

Versus

MUHAMMAD AYUB alias BABU‑‑‑Respondents

R.O.R. No. 1911 of 1996 and R.O.A. No. 30 of 1997, decided on 26th March, 2003.

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

‑‑‑‑Ss. 10 & 32‑‑‑Lease of land under Cooperative Farming Scheme‑‑­Proprietary rights, grant of‑‑‑Original lessee of land under Cooperative Farming Scheme who had not cultivated land himself, had permanently left his residence from the Chak where land was situated and land remained under cultivation of other person who claimed that original lessee had transferred his rights in respect of the land in his favour through an agreement‑‑‑After death of original lessee, his sons who neither remained members of Cooperative Farming Society of the Chak concerned nor were resident thereof nor even remained in self‑cultivation of land in dispute, by committing fraud and misrepresenting facts, got conveyance deed of proprietary rights, a their favour in respect of land in dispute‑‑‑Self‑cultivation of land being basic condition for grant of proprietary rights under Cooperative Farming Scheme, order of District Collector granting conveyance deed to sons of the original lessee was unlawful and void‑‑‑Conveyance deed issued in favour of sons of original lessee being based on misrepresentation, illegality and fraud was cancelled under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 and case was referred to District Officer (Revenue) for determination of issue as to who among two other persons who had sought grant of proprietary rights, was entitled for grant of proprietary rights of the land.

Rana Muhammad Tanveer Ahmad Khan for Petitioners (in R. O. R. No. 1911 of 1996).

Kanwar Nisar for Respondent (in R. O. R. No. 1911 of 1996).

Mian Mushtaq Ahmed for Appellant (in R.O.A. No.30 of 1977).

2004 C L C 71

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial‑IV)

BASHIR SHAH‑‑‑Petitioner

Versus

MAZHAR ALI SHAH and 6 others‑‑‑Respondents

R.O.Rs. Nos. 1711 and 1712 of 1996, decided on 12th February, 2001.

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

‑‑‑‑Ss. 42, 44 & 164‑‑‑Inheritance‑‑‑Mutation, cancellation of‑‑‑Deceased had four sons and one daughter‑‑‑Two sons having died issueless, mutations with regard to inheritance of their land were sanctioned in favour of their one brother only‑‑‑Fourth brother had challenged the said mutations on the ground that he also being a brother of two deceased, who died issueless, had been deprived of his due share from their inheritance‑‑‑Collector accepted cLalm of petitioner/fourth brother being real brother of deceased brothers and found him entitled to get his share from the inheritance of deceased‑‑‑Additional Commissioner, however, denied cLalm of petitioner and upheld original mutations made in respect of land of deceased two brothers in favour of only third brother/ predecessor‑in‑interest of respondents simply on the ground that cLalm of petitioner was doubtful as his name in pedegree‑table was "Muhammad Bashir Shah" while in identity card his name was shown as "Bashir Shah"‑‑‑Validity‑‑‑Under no norm of justice, mere fact of name "Muhammad Bashir Shah" in documents instead of name "Bashir Shah" could be made the basis for conclusive verdict that petitioner was not son of the deceased and brother of other sons of deceased‑‑‑Basic name being `Bashir Shah' addition of the word 'Muhammad' with the same in the documents, could simply be a mistake on part of Halqa Patwari which was nothing usual with Patwaris who rarely work with a sense of responsibility of the required degree‑‑‑Respondents could not produce any proof about identity of said. "Muhammad Bashir Shah" as a person different from petitioner "Bashir Shah" ‑‑‑Identity of petitioner "Bashir Shah" as son of deceased father and as fourth brother of two deceased brothers who died issueless, alongwith third brother, was not shrouded in any mystery but spoke loudly for itself‑‑‑Mutations in respect of land left by two deceased brothers sanctioned ignoring petitioner, was dishonest and unlawful ‑‑‑Accepting revision filed by petitioner, order passed by Additional Commissioner, was set aside and disputed mutations stood cancelled ‑‑‑Halqa Revenue Officer was directed to sanction fresh mutation about inheritance of deceased two brothers giving due share to all legal heirs including petitioner under Islamic Law of Inheritance.

Shamas‑ur‑Rehman for Petitioner.

Mian Ata‑ur‑Rehman for Respondents (in both Cases).

Date of hearing: 7th November, 2000.

2004 C L C 87

[Board of Revenue Punjab]

Before Senior Member, Member (Judicial-III) and Member (Colonies)

THE STATE---Appellant

Versus

KHADIM HUSSAIN --- Respondent

R.O.R. No. 1296 of 1997, decided on 2nd October, 2003.

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

----Ss. 10 & 30---Temporary Lease of Government land---Proprietary rights, grant of---Member (Colonies) vide his order made offer to lessee of land for exercise of one of the options with regard to land which had fallen in prohibited Zone: to continue as a temporary lease` to get alternate land outside the prohibited Zone; to purchase it on current rate---Lessee exercised last option and opted to purchase land on current pt ice---Process was started, assessment was made accordingly and lessee deposited the money in full as per assessment made by Assessment Committee---After order of Authority had attained finality; request was made on part of District Administration for review of order of Authority as land in question had fallen in the prohibited Zone---Unanimous fining of Board of Revenue that order of Authority passed on option of lessee had attained finality and the sale was to be construed as sale through private treaty and, in circumstances, would not require any relaxation of policy---Lessee having already deposited full amount, he could not be disturbed and conveyance deed in favour of lessee could accordingly be executed within specified period.

Raja Ghulam Hassan Khan for Respondent.

2004 C L C 197

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial-IV)

Syed IQBAL MUHAMMAD SHAH---Petitioner

Versus

Syed SAGHIR HUSSAIN SHAH and another---Respondents

R.O.R. No.64 of 2002, decided on 26th August, 2002.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, Rr.17 & 21--­Appointment of Lambardar---Earlier when estate of Chak concerned was mostly owned by Government, Collector had made an appointment of a temporary Lambardar there---When proprietary rights for more than 50 % of the land in the said Chak were granted to lessees/grantees, permanent Lambardar was appointed there---Validity---On grant of proprietary rights to lessees/grantees, estate had lost its status of the one chiefly, owned by Government and logically proceedings for appointment of - Lambardar on a permanent basis had become due after grant of proprietary rights to lessees/grantees---Revision of previous arrangement, after the said change, was necessitated for practical reasons as well---Prior to the grant of the proprietary rights, no land revenue was leviable and grantees were not required to pay other cesses---Person appointed against,the post of Lambadar on temporary basis had no responsibility or accountability, but on the grant of proprietary rights to the grantees, responsibility in that regard had arisen in the Chak which was to be treated as first appointment- of a Lambardar in the Chak--­Temporary appointment previously made, in circumstances, would no more remain in force and would cease to exist ---Lambardar on permanent basis was rightly appointed, in circumstances--- Contention that a Lambardar which was appointed on temporary basis was a Lambardar for all purposes and that there was no difference between a temporary Lambardar and permanent Lambardar, was without any legal force and had no validity.

PLD 1993 Rev. 44 and PLD 1995 Lah. 512 ref.

G.H. Khan for Petitioner.

Rana Muhammad Sharif and Malik Ghulam Shabbir for Respondent No. 1.

Date of hearing: 6th August, 2002.

2004 C L C 209

[Board of Revenue Punjab]

Before Tariq Yusuf, Member Judicial-III

MUHAMMAD FEROZE MALIK and 4 others---Petitioners

versus

NADIR ALI and 19 others--Respondents

Review Petitions Nos.211, 222, 223, 224, 225, 226, 227 and 228 of 2001, decided on 27th June, 2003.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 9 & 18---West Pakistan Land Revenue Act (XVII of 1967), S.163---Consolidation of holdings---Review---Confirmation of Consolidation Scheme of village---Assistant Commissioner/ Collector, after such confirmation, issued warrant of possession in favour of respondents in respect of land allocated to them during consolidation--­Appeal of petitioner against order of Collector was accepted by Additional Commissioner and respondents' revision against order of Additional Commissioner having been accepted by Member, Board of Revenue, petitioner filed review petition against order of Member, Board of Revenue---Petitioner had contended that he being in continuous possession of disputed land as owner, delivery of possession thereof to respondents under S.18 of West Pakistan Consolidation of Holdings Ordinance, 1960 was unwarranted---Argument of respondents was that they were entitled to possession of land allocated to them in consolidation and petitioner's claim to purchase the said land was baseless---Order passed by Member, Board of Revenue in revision was not maintainable; firstly, because mutations in respect of land in dispute were entered subsequent to the purchase by petitioner of said land; secondly, petitioner continued in possession of said land even after consolidation was confirmed; thirdly, sale was, completed in all aspects 'of law and right of petitioner was created thereby; fourthly, rights which were created, were not affected and persons who were allotted the land, had to be put in possession of the same; fifthly, petitioner was to step into the shoes of respondents on the basis of sale and thereby petitioner was entitled to possession; sixthly, there was no litigation regarding title of said land between the parties as petitioner was not right holder of said village and seventhly, claim lodged by respondents was time-­barred.

Muhammad Anwar Tiwana for Petitioners.

Muhammad Hussain Khan Baloch for Respondents.

2004 C L C 215

[Board of Revenue Punjab]

Before Muhammad Ayub Malik, Member (Judicial-IV)

Haji MUHAMMAD SALEEM KHALID---Petitioner

versus

THE STATE---Respondent

Review Petition No.250 of 2002, decided on 30th December, 2002.

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

----Ss. 10 & 30---Lease of land under Temporary Cultivation Scheme--­Proprietary rights, grant of--Request of lessee for grant of proprietary rights in respect of land leased out to him under Temporary Cultivation Scheme, was finally turned down on the ground that land in question being Charagah land, proprietary rights for such land was not permissible under the policy of Board of Revenue---Grant of proprietary rights to the lessees, was governed by the policy framed by the Board of Revenue on the subject---No Policy of Board of Revenue existed under which proprietary rights of Charagah lands could be granted to the lessees and grant of proprietary rights for Charagah lands had been specifically prohibited as such lands were required for public purpose--­Request of lessee for grant of proprietary rights had rightly been turned down, in circumstances.

Ghulam Siddique Awan for Petitioner.

Date of hearing; 10th December, 2002

2004 C L C 681

[Board of Revenue Punjab]

Before Muhammad Zia-ur-Rehman, Member

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD ALI and another---Respondents

R.O.R. No.30 of 1991, decided on 8th April, 2003.

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

----Ss. 36 & 180---Creation of an additional 'Patti' of Lambardar in the Chak---Majority of Pattidars in the area being not in favour of creation of additional 'Patti', creation of additional 'Patti' on religious bases would be a bad precedent, when area and Revenue of 'Patti' in question did not qualify for its bifurcation into two Pattis' under the law on the subject--Request for creation of additional 'Patti' was rejected with direction to District Officer (Revenue) to proceed further for appointment of a permanent Lamberdar ofPath' in question strictly in accordance with law---In case any Pattidar did not like to pay Government dues to said permanent Lambardar, his holding could be included in the Dalbash of Lambardar of the adjoining Pattis.

Mirza Naseer Ahmad for Petitioner.

Muhammad Ali Respondent in person.

Sarfraz Naveed for Respondent No. 1.

2004 C L C 1644

[Board of Revenue, Punjab]

Before Syed Shaukat Ali Shah, Member

NOOR MUHAMMAD and others-- -Petitioners

Versus

AHMAD BAKHSH and others---Respondents

R.O.R. No.307 of 1997, deed on 17th July, 2003.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

-------Ss. 10 & 13---West Pakistan Land Revenue Act (XVII of 1967), S.164---Consolidation of holdings---Collector Consolidation misread record and only laid stress on minor technicalities whereas Assistant Collector Consolidation had thoroughly examined the record and based impugned order on Revenue Record produced by the staff- --Respondents were in possession of disputed land---Vital rights of parties could not be taken away on mere technicalities---Both Courts below had not passed specific orders on the issue of delay--Delay was condoned in view of the fact that limitation would run from the date of knowledge---In absence of any ground for interference, revision petition was dismissed by the Board of Revenue.

Wazir Ahmad Khan Chandia for Petitioners.

Liaqat Mumtaz Malaria for Respondents.

2004 C L C 1652

[Board of Revenue, Punjab]

Before Muhammad Saeed Sheikh, Member (Judicial-V)

Mian AHMAD BAKHSH and 6 others---Petitioners

Versus

Mst. FAZAL BIBI and 17 others---Respondents

R.O.R. No. 1816 of 1998, decided on 10th March, 2004.

Punjab Laws Act (IV of 1872)---

----Ss. 3 & 5---West Pakistan Land Revenue Act (XVII of 1967), S.164---Inheritance---Petitioners claimed that they were entitled to inherit land in dispute on basis of their relationship with deceased widow of original owner of land and that respondents had no relationship with her---Assistant Collector relying upon Mutation by which a person was declared to be sole successor of landed property of deceased original owner, conducted proceedings of mutation and attested same in favour of said person after hearing parties and declared that person as .sole successor of said land under prevalent Custom---Validity---Said order was passed in accordance with law and no exception could betaken in that behalf---As allegations of fraud had been levelled in respect of said transaction, Civil Court was the only forum where question of fraud could be gone into and adjudicated---Besides complicated question of law wand facts being involved in the case same could only be sifted and sorted out by Civil Court and Revenue Officer was authorized only to decide the issue in a summary way---Concurrent findings of Courts below could not be interfered with as main issue involved was sub-judice in Civil Court---Courts below having committed no wrong revision petition was dismissed by the Board of Revenue being devoid of force.

2002 SCMR 1507 ref.

Ch. Amjad Ali Mehmood for Petitioners.

Mehboob Ahmad for Respondents Nos. 1, 2, 3, and 5 to, 10.

M. Kareem Joyia for Respondents.

2004 C L C 1778

[Board of Revenue, Punjab]

Before Shaukat Iqbal, Member (Judicial-II)

MUHAMMAD DIN and others---Petitioners

Versus

Mst. RASHIDA BEGUM and others---Respondents

R.O.R. No. 1294 of 2001, decided on 2nd June, 2004.

Transfer of Property Act (IV of 1882)---

----S. 118---West Pakistan Land Revenue Act (XVII of 1967), Ss.42, 44 & 164---Mutation of exchange---Cancellation of who was bona fide purchaser of land in dispute for consideration, had challenged order whereby mutations of exchange of disputed property were declared fraudulent and consequently were cancelled---Order canceling mutation was passed on the basis of surmises and conjectures and by misreading of evidence on record and the order was not a speaking order---Rights having accrued to the Petitioner who was bona fide purchaser on basis of private treaty, he could not be deprived of the same-- -Mutations of exchange were cancelled after ten years of attestation of the said mutations---Petitioner who was bona fide purchaser of land in dispute; could not be made to suffer on account of flimsy assertions about validity or otherwise of order of cancellation of mutations, was genuine or otherwise, was not really important, but important facts were the time lag of ten years between attestation of mutations of exchange and passing of order of cancellation of said mutations---Overall effect of said delay and inaction by respondents was that various persons had purchased land in question for valuable consideration who could not be made to suffer on account of flimsy assertions about validity or otherwise of order of cancellation of mutations---Revision petition was accepted by the Board of Revenue, impugned order was set aside and it was declared that mutations of exchange and subsequent alienations would remain intact.

Petitioner No. 1 in person.

Barrister Ch. Abdus Salim for Petitioner No. 1.

Ahmed Nawaz Qaiserani for Petitioner No.9.

Shamim Haider Zaidi for Respondents.

Date of hearing; 8th May, 2004.

2004 C L C 1307

[Election Tribunal Balochistan]

Before Justice Akhtar Zaman Malghani, Election Tribunal

AKHTAR MUHAMMAD ‑‑‑Petitioner

Versus

AKHTAR HUSSAIN LANGO and others‑‑‑Respondents

Election Petition No.66 of 2002, decided on 23rd January, 2004.

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

‑‑‑‑S. 52‑‑‑Representation of the People (Conduct of Elections) Rules, 1977, Rr.26 & 28‑‑Election petition‑‑‑Unsuccessful candidate in his election petition had challenged election of returned candidate alleging that Presiding Officer had not supplied the result of election to his Polling Agents on prescribed pro forma, but had issued same on plain papers and chits etc. in violation of R.26 of Representation of People (Conduct of Elections) Rules, 1977‑‑‑Further allegation was that the results of three Polling Stations were not counted in consolidated result‑‑‑Validity‑‑‑Ground that result of three Polling Stations were not included in consolidated result, having not been pleaded in the election petition, petitioner could not be allowed to take any such ground which was beyond his pleadings‑‑‑Allegation that results had not been provided on prescribed pro forma, petitioner had produced no witness in proof of said allegation‑‑‑Statement of witness was based on hearsay evidence because according to him he was informed by a female Polling Agent and other Agents that results were not provided to them on prescribed pro forma‑‑‑Evidence of the witness in that regard was not admissible‑‑­Petitioner, in circumstances had failed to discharge onus which lay heavily upon him.

PLD 1989 SC 396 ref.

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

‑‑‑‑Ss.38(5), 39 & 52‑‑‑Election petition‑‑‑Recounting of Ballot papers‑‑­Petitioner being unreturned candidate had challenged election of returned candidate in his election petition alleging that Returning Officer had illegally rejected his application for recounting of Ballot‑papers‑‑‑ Petitioner had failed to place on record application whereby he had requested Returning Officer for recounting in order to show the grounds on which he claimed recounting‑‑‑Petitioner had claimed for recounting of Ballot papers and postponement of results on the ground that he had secured more votes than the Returned Candidate according to the results furnished and provided by his Polling Agents without mentioning the irregularity or ‑ illegality allegedly committed during counting by Presiding, Officer‑‑‑Returning Officer, in circumstances was right in rejecting application of petitioner which was without any proof‑‑‑Election Tribunal could order recounting provided the election petition contained an adequate statement of all the material facts on which allegations of irregularity or illegality in the counting were based or on the basis of evidence it was prima facie established that a mistake was committed in counting, but no such thing was on record‑‑‑Petitioner having failed to prove allegations challenging the validity of election, election petition, was dismissed.

1999 SCMR 284 ref.

2004 C L C 521

[Election Commission of Pakistan]

Before Justice Akhtar Zaman Malghani, Member

GHULAM SARWAR KHAN and another‑‑‑Petitioners

Versus

MUHAMMAD NASEEM and others‑‑‑Respondents

Election Petitions Nos.3 and 4 of 2003, decided on 8th October, 2003.

(a) Words and phrases‑‑‑

‑‑‑‑"Service"‑‑‑Connotation.

79 CJS 1139 rel.

(b) Words and phrases‑‑‑

‑‑‑‑"Salary"‑‑‑Meaning.

Corpus Juris Secundem, Vo1.77, p.553 ref.

(c) Words and phrases‑‑‑

‑‑‑‑"Stipend" and "salary"‑‑‑Meaning‑‑‑Stipend is synonymous with salary.

Corpus Juris Secundem, Vol. 82, p.1069 and Black's Law Dictionary ref.

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

‑‑‑‑Preamble & S.99(2)(e)‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art.8D(2)(e)‑‑‑Word "service" used in S.99(2)(e) of Representation of the People Act, 1976 and Art.8D(2)(e) of Conduct of General Elections Order, 2002‑‑‑Meaning and scope‑‑­Persons in service of a statutory or other body owned and controlled by Government‑‑‑Excluding such persons from being elected as member of National or Provincial Assembly‑‑‑Purpose highlighted.

In order to find out the real import and meaning of the expression "service", one has to look into the scheme of the Act, 1976 and Order, 2002 and the purpose sought to be achieved by excluding the persons in service of any statutory body or any other body owned and controlled by, the Government from being elected as a member of National or Provincial Assembly. If such persons are allowed to participate in the election process, then Assemblies would lose their independence, objectivity, capacity to execute the duties and functions entrusted to them by the Constitution. In other words, the idea is to keep the democratic process free from and independent of the Executive control and influence as otherwise the Executive through introducing in the elected institutions its officers over whom it can wield influence and control, will be able to check the freedom and independence of election institutions. At the same time, inclusion of these officers in the Assembly is likely to result in lessening the control and superintendence of the Executive depriving it of its authority, which it must hold over its officers and servants in the public interest and for smooth running of its function.

Word "service" means being employed to serve another, the state of being a servant, the work of a slave, man or employee.

Word "service" used in section 99(2)(e) and Article 81)(2)(e) in the light of import and scheme of the Act and Order as stated above would mean employment with the "body". Any person, who is employed by the body or company in its organization on certain terms and conditions, would be deemed to be serving the company or body. The Act or Order does not differentiate between a temporary or permanent employee of said organization, and any person, who is employee at the relevant time would be in service of the company.

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

‑‑‑‑Ss. 14 & 99(2)(e)‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art.8D(2)(e) ‑‑‑ Disqualification of candidate‑‑‑Returned candidate (respondent) was alleged to be in service of Sui Southern Gas Company (owned/controlled by Government) while filing nomination papers and contesting election‑‑‑Last date of filing nomination papers was 20‑8‑2002‑‑‑Election was held on 10‑10­-2002‑‑‑Resignation tendered by respondent was received by company on 26‑11‑2002, over which company through letter dated 30‑12‑2002 demanded re‑payment of certain amount paid to him and against notice period of three months‑‑‑Company on 25‑3‑2003 accepted resignation w.e.f. 7‑12‑1998‑‑‑Contention of respondent was that he was never employed in company, rather his assignment was as management trainee, which was terminated on 7‑12‑1998 and despite order of Service Tribunal and Supreme Court, he was never reinstated or absorbed; that only "stipend" was paid to him which could not be termed as "salary"; and that after acceptance of his resignation, he had repaid amount of stipend received from company-‑‑Validity‑‑‑Respondent had been offered fixed amount in shape of stipend in lieu of such services required by company to meet its expansion programme‑‑‑Stipend was synonymous with salary‑‑‑Tribunal through order, dated 13‑10‑2002 had reinstated respondent in service, which fact was proved from "statement of accounts" showing remittance of salary in his account by company and its withdrawal by him through cheques‑‑‑Respondent's request to company to accept his resignation with immediate effect would show that on date of tendering resignation, he was serving in company‑‑‑Supreme Court had delivered judgment on 28‑3‑2001 directing company to absorb respondent as regular employee‑‑‑Mere non­-enforcement of judgment of Supreme Court would make no difference as resultantly respondent had become entitled to receive benefits of regular employee‑‑‑Letter of company, dated 25‑3‑2003 showed that acceptance of resignation was not with retrospective effect, rather his services had been terminated w.e.f., 7‑12‑1998‑‑‑Company's letter, dated 30‑12‑2002 demanding repayment of certain amount from respondent showed that till such date his resignation had not been accepted by company‑‑‑Respondent was held to be disqualified to contest election being in service of company on day of filing nomination papers‑­Nothing on record to infer disqualification of respondent as notorious one to attract doctrine of `thrown away votes" ‑‑‑Election Tribunal accepted election petition and declared election as whole to be void.

1986 MLD 2001; PLD 1992 (Jour.) 118; 1993 MLD 1911; 1997 MLD 612; PLD 1997 Pesh. 137; PLD 1996 SC 717; PLD 1975 Lah. 2176; PLD 1980 Lah. 311; 1996 SCMR 1455; PLJ 2000 SC 321 and PLD 2003 SC 74 ref.

1984 SCMR 1578 fol.

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

‑‑‑‑S. 14‑‑‑Disqualification of returned candidate and giving seat to candidate having secured next highest number of votes‑‑‑Doctrine of "thrown away votes"‑‑‑Applicability‑‑‑Principles.

The candidate, who had secured second highest number of votes could be declared successful in place of returned candidate, provided that the disqualification was so notorious that same could be presumed to have been known to the voters, who had cast their votes in his favour. In such event, the doctrine of "thrown away votes" would be attracted and it would be presumed that voters had deliberately thrown away their votes. But the factum of notoriety must be found on some positive and definite fact existing and established at the time of casting votes.

PLD 2003 SC 268; PLD 1986 SC 698 and 1975 SCMR 409 rel.

Muhammad Qahir Shah, Basharatullah and Mujeeb Ahmad Hashmi for Appellant (in Election Petition No.3 of 2003).

Syed Iftikhar Gilani and Shakil Ahmed for Respondent No. 1 (in Election Petition No.3 of 2003).

Wali Jan Kakar and Basharatullah for Appellant (in Election Petition No.4 of 2003).

Syed Iftikhar Gilani, H. Shakil Ahmed and Muhammad Qahir Shah for Respondent No.2 (in Election Petition No.4 of 2003).

Date of hearing: 22nd August, 2003.

2004 C L C 914

[Election Tribunal, Punjab]

Before Justice Syed Jamshed Ali, Election Tribunal

Engineer JAMEEL AHMAD MALIK‑‑‑Petitioner

Versus

GHULAM SARWAR KHAN and 6 others‑‑‑Respondents

Election Petitions No. 111, 63, 161, 34, 128, 98, 151, 102, 129 and 89 of 2002, decided 8th January, 2004.

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

‑‑‑Ss. 54, 55, 62, 63 & 64‑‑‑Civil Procedure Code (V of 1908), S.139 & O.VI, R.15‑‑‑Election petition‑‑‑Verification of‑‑‑Respondents sought dismissal of election petitions on grounds of violation of provisions of Ss.54 & 55 of Representation of the People Act, 1976 and non­compliance of procedure prescribed by the Election Commission through notification under S.62 of the said Act‑‑‑Effect‑‑‑Issues considered were: Whether provisions of Ss.54 & 55 of the Act with regard to verification of petition were mandatory; whether defective verification could be rectified and whether procedure prescribed by said notification was mandatory‑‑‑Law elucidated by the Election Tribunal.

Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896; Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Sheikh Mushtaq Ali, Advocate v. Khalid Anwar 1999 MLD 1533; Muhammad Azkd Gul v. Said Muneer Said and 11 others 1997 CLC 1132; Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83; Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724; Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others 1990 CLC 595; Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar PLD 1986 Journal 160; Mrs. Rehana Hussain Mullick v. Sahibzadi Mahmooda Begum and another 1986 MLD 2707; Lt.‑Col. (Retd.) J. Abel v. Returning Officer and 34 others 1987 MLD 1372; Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460; Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175; Dr. Abdul Hayee v. Mir Yar Muhammad Rind and others 1993 CLC 1090; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2000 YLR 3148; H. Amanullah Khan v. Sahibzada Tariqullah 1997 MLD 612; Haji Aziz‑ur‑Rehman Chan v. Mian Abbas Sharif and another 1994 MLD 2293; Abdul Nasir and another v. Election Tribunal, T.T. Singh and others 2004 SCMR 602; Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382; Rai Asghar Ali Khan v. Returning Officer and others PLJ 1999 Lah. 632; S.M. Ayub v. Syed Yusuf Shah and others PLD 1967 SC 486; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Abdul Latif v. Additional District Judge/Election Tribunal/M.C. Arifwala 2000 YLR 946; Haji Amanullah Khan v. Sahibzada Tariqullah and 2 others 1995 CLC 158; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mir Mazar v. Azim PLD 1993 SC 332; Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lah. 149; Meraj Din v. Safdar Khan and 4 others 2003 CLC 1841; Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2116; M. Karunanidhi v. H.V. Honda AIR 1983 SC. 558; Staya Narain v. Dhuja Ram and others AIR 1974 SC 1185; Mir Tariq Mahmood Khan 1992 CLC 1766 and Diwan Kumar Malhi's case 1999 CLC 441 ref.

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

‑‑‑‑S. 55(3)‑‑‑Senate (Election) Act (LI of 1975), S.36(3)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑‑Election petition‑‑­Verification of pleadings‑‑‑Requisites of valid verification under O.VI, R.15, C.P.C. considered‑‑‑Analogy of S.36(3) of Senate (Election) Act, 1975‑‑‑Provisions of S.36(3) of Senate (Election) Act, 1975 regarding oath and affirmation were mandatory and entailed penal consequence‑‑­Provisions of S.36(3) of Senate (Election) Act, 1975 were para materia with S.55(3) of the Representation of the People Act, 1976‑‑‑Non­verification at the foot of the election, petition‑‑‑Effect‑‑‑Principles.

Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896; Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 and Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724 ref.

(c) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss. 3, 4 & 5‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑­Scope of S.5 of Oaths Act, 1873‑‑‑Persons bound to make an oath under S.5 of the Oaths Act, 1873‑‑‑Petitioner in an election petition was a person bound under S.5 of the Act who could be lawfully examined or be required to give evidence before the Election Tribunal‑‑‑Application of Oaths Act, 1873 to oaths or affirmations prescribed under O.VI, R.15, C.P.C.‑‑‑Not only a witness had to make an oath on an affirmation but even a person who could lawfully be examined or give evidence was bound to make oath or affirmation‑‑‑Oath contemplated by O. VI, R.15, C.P.C. was governed by S.5 of Oaths Act, 1873.

(d) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Preamble‑‑‑Object of oath‑‑‑Person could not administer oath to himself‑‑‑Object of an oath was that there would be a super human retaliation in case of falsehood and the purpose of giving oath was to confront a party to Almighty Allah‑‑‑Somebody had to attest or affirm that the oath was made by the maker.

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

‑‑‑‑S. 55(3)‑‑‑Civil Procedure Code (V of 1908), S.139 & O. VI, R.15‑‑­Election petition‑‑‑Verification of oath‑‑‑Requirement of‑‑‑Section 139, C.P.C. provides for the attestation of oath on the affidavit, accordingly, despite the absence of specific requirement under O.VI, R.15, C.P.C. verification of oath on an election petition was required to be attested by a duly authorized person.

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

‑‑‑‑Ss. 55(3) & 63‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑­Election petition‑‑‑Verification of pleadings‑‑‑Requirement of verification at the foot of election petition, compliance of‑‑‑Separate affidavit was filed with election petition instead of verification at the foot of the petition‑‑‑Effect of‑‑‑Verification of an election petition with ail affidavit separately filed with the petition could not be thrown out, on the Punjab Local Government Election Rules, 2000, Rr.72(3) & 77‑‑­Election petition‑‑‑Verification of pleadings‑‑‑Contention of the petitioners was that non‑verification of the election petition as required by O.VI, R.15, C.P.C. was not fatal‑‑‑Punjab Local Councils Election Petitions Rules, 1979, Rr.5(3) & 9‑‑‑Punjab Local Government Election Rules, 2000, Rr.72(3) & 77‑‑‑Punjab Local Councils Election Petitions Rules, 1979 and Punjab Local Government Election Rules, 2000 contained provisions similar to S.55(3) of Representation of the People Act, 1976, however, unlike the latter act the provisions of verification of an election petition were directory and not mandatory in the said rules.

Abdul Latif v. Additional District Judge/Election Tribunal/M.C. Arifwala 2000 YLR 946; Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2000 YLR 3148 and Abdul Nasir and another v. Election Tribunal, T.T. Singh and others 2004 SCMR 602 ref.

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

‑‑‑‑S. 55(3)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑‑Election petition‑‑‑Verification of pleadings‑‑‑Interpretation of expression "schedule or annex" in S.55(3) of the Act‑‑‑Additional allegations of substantial character or which furnish better particulars‑‑‑If annexes to an election petition did not spell out any additional allegation of substantial character or furnished better particulars, an election petition could be dismissed.

Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175; S.M. Ayub v. Syed Yusuf Shah and others PLD 1967 SC 486; Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2116; M. Karunanidhi v. H.V. Honda AIR 1983 SC 558 and Staya Narain v. Dhuja Ram and others AIR 1974 SC 1185 ref.

(k) Interpretation of statutes‑‑‑

‑‑‑‑ Election law‑‑‑Interpretation of‑‑‑Mandatory provision of election law should be rigidly applied which may necessarily even excludes consideration of interest of the entire constituency.

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

‑‑‑‑Ss. 55, 62, 63 & 64‑‑‑Civil Procedure Code (V of 1908), S.139 & O.VI, R.15‑‑‑Election petition‑‑‑Verification of pleadings‑‑‑Respondents sought dismissal of election petitions on ground of non‑compliance of the procedure by petitioners that was prescribed by the Election Commission through a notification under S.62 of the said Act‑‑‑Procedure prescribed by the said notification whether mandatory or directory, determination of‑‑‑Difference of opinion between the Election Tribunals‑‑Object of the procedure prescribed by the said notification was to ensure expeditious disposal of an election petition to the benefit of the petitioner before the Election Tribunal‑‑‑Said procedure was part of S.62(1) of the Act for which no penalty was provided for non‑compliance‑‑‑Under S.64 of the Act, Election Tribunal had all the powers of a Civil Court trying a suit under the Code of Civil Procedure but the said notification being a subordinate legislation would not control the powers of Election Tribunal as Civil Court as given under S.64 of the Act.

Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others 1990 CLC 595; Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar PLD 1986 Journal 160; Mrs. Rehana Hussain Mullick v. Sahibzadi Mahmooda Begum and another 1986 MLD 2707; Lt.‑Col. (Retd.) J. Abel v. Returning Officer and 34 other, 1987 MLD 1372; Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460; Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289; Dr. Abdul Hayee v. Mir Yar Muhammad Rind and others 1993 CLC 1090, Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382; Rai Asghar Ali Khan v. Returning Officer and others PLJ 1999 Lah. 632; Mir Tariq Mahmood Khan 1992 CLC 1766 and Diwan Kumar Malhi's case 1999 CLC 441 ref.

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

‑‑‑‑Ss. 54, 55, 62, 63 & 64‑‑‑Civil Procedure Code (V of 1908), S. 139 & O. VI, R.15‑‑‑Election petition‑‑‑Verification of‑‑‑Whether defective verification could be rectified‑‑‑Pleas of the petitioner that he be allowed to amend his pleadings with regard to verification and the rules of substantial justice be preferred as against technicalities, were not entertained by the Election Tribunal on the ground that these pleas were not available against the mandatory provisions of law‑‑‑Another plea of the petitioner that the maintainability of the election petition should be decided at the conclusion of the trial of the petition was also not entertained‑‑‑To treat an issue as preliminary was discretionary and the question as to maintainability of the petition could be decided at any stage.

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

‑‑‑‑Ss. 54, 55, 62, 63 & 64‑‑‑Election petition‑‑‑Maintainability‑‑‑No express requirement existed either in the Representation of the People Act, 1976 or in the procedure prescribed by the notification under S.62 of the Act that the issues must be framed‑‑‑Issues were framed only to facilitate the trial of an election petition‑‑‑Inference that followed from an admitted fact was a question of law and, therefore, the question as to maintainability of petitions could be decided at any stage.

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

‑‑‑‑Ss. 54, 55, 62, 63 & 64‑‑‑Civil Procedure Code (V of 1908), S.139 &‑O.VI, R.15‑‑‑Election petition‑‑‑Verification of‑‑‑Respondents sought dismissal of election petitions on ground of violation of provisions of Ss.54 & 55 of Representation of the People Act, 1976 and non­compliance of procedure prescribed by the Election Commission through notification under S.62 of the said Act‑‑‑Non‑compliance of provisions of Ss.54 & 55 of the Act‑‑‑Effect‑‑‑Issues considered were whether provisions of Ss.54 & 55 of the Act with regard to verification of petition were mandatory; whether defective verification could‑ be rectified and whether procedure prescribed by said notification was mandatory‑‑‑Held: Election p6tition was required to be verified on oath exactly in the same manner as laid down in rule 15 of Order VI, C.P.C and it was required to be attested by a person competent to administer oath‑‑‑Separate affidavit filed with an election petition which exactly fulfilled the requirements of rule 15 of Order VI. C.P.C. would be due compliance of the provision of S.55(3) of the Representation of the People Act, 1976‑‑‑Unless a schedule or annex to the Election petition furnished an additional information on facts so as to form part of an election petition, the documents submitted in support of an election petition did not come within the expression "schedule or annex" and therefore, there was no requirement that these documents should be verified in the manner laid down in rule 15 of Order VI, C.P.C.‑‑‑Procedure prescribed by notification under S.62 of Representation of the People Act, 1976 by the Election Commission so far as it related to submission of list of witnesses and their affidavits was directory.

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

‑‑‑Ss. 54(a) & 63-‑‑Election petition‑‑‑Requirement of‑‑‑Where one of the contesting candidates was not impleaded as a respondent in the petition, it was held, that provision of S.54(a) of the Act was violated in the circumstances of the case which would entail dismissal of the petition under S.63 of the Act.

Petitioner in person.

Malik Noor Muhammad Awan and Syed Mohsan Abbas for Respondent No. 1.

Dates of hearing: 30th October, 3rd and 5th November, 2003.

2004 C L C 1249

[Election Tribunal Punjab]

Before Justice Muhammad Farrukh Mahmud, Election Tribunal

Malik NAUSHER KHAN LANGERIAL‑‑‑Petitioner

Versus

KHALID MAHMOOD CHOHAN and others‑‑‑Respondents

Election Petition No. 17 of 2002, decided on 29th December, 2003.

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

‑‑‑‑Ss. 39 & 62‑‑‑Recounting of votes‑‑‑Election petition‑‑‑Petitioner who lost the election by a narrow margin of 51 votes, had sought re‑counting of votes‑‑‑Validity‑‑‑Mere narrow margin of votes could not be made basis for recount of votes‑‑‑Petitioner though had claimed that he was unofficially declared winner by Returning Officer, but in support of his said claim he failed to produce any convincing evidence‑‑‑No reason was advanced by petitioner as to why Returning Officer wanted to favour the respondent/returned candidate‑‑‑Presumption of correctness was attached to record prepared by Returning Officer and it was the duty of petitioner to prove through solid evidence that same was fabricated, but petitioner had failed to do so‑‑‑In absence of strong evidence it could not be said that returned candidate with the connivance of Returning Officer had tilted result in his favour‑‑‑Petitioner had accepted order of Returning Officer whereby his application seeking recount of votes was accepted to the extent of rejected votes only and he participated in said recounting of rejected votes which was stopped on the request of petitioner himself‑‑­Evidence produced by petitioner was vague and general in nature which did not inspire any confidence as against documentary evidence available against him‑‑Recount of votes could not be ordered, in circumstances.

Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others 1998 SCMR 1597; Sh. Iftikhar‑ud‑Din and another v. District Judge, Bahawalpur Exercising powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523; Muhammad Iftikhar and another v. District and Sessions Judge, Faisalabad and 7 others 2003 CLC 254; Haji Abdul Rehman Khan v. Returning Officer and 6 others 1997 CLC 1123; Muhammad Tariq Zakhmi and another v. Election Tribunal/District and Sessions Judge, Hafizabad and 13 others 2002 MLD 284; Abdul Majid .v. Election Tribunal 1993 MLD 2523; Chaudhry Muhammad Din v. Abdul Qayyum and 16 others 1987 SCMR 324; Mian Ejaz Shaft v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer. Karachi West‑1 and 12 others 1996 SCMR 605; Kanwar Ejaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Sardar Gul Khitab v. Javaid Iqbal Abbasi and 4 others 1988 CLC 945; Islam‑ud‑Din v. Munir‑ud‑Din and others 1994 MLD 368 and Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 ref.

Bilal Ahmad Qazi for Petitioner.

Sardar Muhammad Hussain Khan for Respondent No. 1.

Nemo for Remaining Respondents.

2004 C L C 77

[Election Tribunal Sindh]

Before Justice Muhammad Sadiq Leghari, Election Tribunal

ABDUL RAHIM KHOSO‑‑‑Petitioner

Versus

Mir HAZAR KHAN BIJRANI ‑‑‑Respondent

Election Petitions Nos. 185 of 2002, Civil Miscellaneous Applications. Nos. 1215, 1216 and 1217 of 2003, decided on 20th June, 2003.

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

‑‑‑‑Ss. 52, 53(3), 62, 63 & 64‑‑‑Election petition‑‑‑Amendment in election petition‑‑‑Petitioner/unsuccessful candidate in his election petition had questioned the election in the constituency concerned and prayed for declaring the election of returned candidate void as a whole‑-­Maintainability of election petition was challenged by returned candidate and sought its dismissal on the grounds that it was filed after expiry of 45 days, the period prescribed by law to file same and that said petition was not verified as required by S.55(3) of Representation of the People Act, 1976‑‑‑Petitioner filed application for permission to amend election petition to the extent of adding the verifications of petition‑‑‑Petitioner, instead of verifying election petition according to law had filed affidavit which according to him contained verification of pleadings‑‑‑Mandatory requirement of S.55(1)(b) of Representation of the People Act, 1976 was that every election petition and Schedule or Annexure thereof should be signed and verified in the manner Laid down in Civil 'Procedure Code, 1908 for verification of pleadings‑‑‑Filing of affidavit by itself could not be treated as verification of pleadings as required by O.VI, R.15, C..P.C.‑‑‑Scope with Election Tribunal for permitting amendment under S.62(3) of Representation of the People Act, 1976, was limited which could not be widened as to permit the amendment making the petition competent for trial which was absolutely incompetent otherwise‑‑­Proposed amendment was for making the petition competent and avoiding the legal consequences on account of its being incomplete and incompetent‑‑‑Mandatory requirement of S.63(a) of Representation of the People Act, 1976 was that election petition should be dismissed if requirement of S.55(3) of said Act had not been complied with‑‑‑Said mandatory requirement of law having not been complied with by petitioner, his election petition was dismissed accordingly.

K. Venkateswara Rao and another v. Bekkam Narasimha Reddi and others AIR 1969 SC 872 and Khawaja Muhammad Awan v. Alim Adil and 19 others 1998 CLC 272 ref.

Abdul Hafiz Lakho for Petitioner.

Ali Bin Adam Jafri for Respondent No.1.

Date of hearing: 20th June. 2003.

2004 C L C 687

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

MUSTAFEEZUDDIN---Petitioner

Versus

ARSHAD MAHFOOZ and 18 others---Respondents

Election Petition No.94 of 2002, decided on 7th February, 2004.

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

----Ss. 39, 46 & 52---Election petition---Recount, prayer for---Petitioner alleged that Presiding Officer had disallowed his polling agents from participating in election process and in the count---Validity---Petitioner had examined neither any of his polling agents to establish such allegation nor Presiding Officer against whom such allegation was levelled--­Petitioner had not disclosed in election petition or in evidence names of his poling agents, who were refused to enter polling stations or participate in the count or names of Presiding Officers allegedly to have committed such illegality---Registered votes in disputed polling station were less than 600, out of which petitioner had secured 82 votes, while returned candidates had secured 265 votes---Difference of votes secured by returned candidate was more than 1300, thus, no material change would have been resulted, if recount was ordered---Petitioner had failed to show any discrepancy in number of votes of Forms XVI to XVIII, which could warrant recount---Returning Officer had deposed not to have received any complaint during election from petitioner or his agent either orally or in writing nor independent application for recount prior to consolidation of results, except copy of representation made to Chief Election Commissioner for recount---Allegations in such representation were of general nature and no specific instance had been given nor same had been substantiated by placing any material before Election Tribunal---Petitioner had failed to discharge burden to prove such allegations and establish essential grounds for recount---No case for recount was mad out---Election Tribunal dismissed the petition.

Muhammad Shabbir Abu Talib v. Dr. Abdul Aziz Bantwa 2003 YLR 3039 and Muhammad Ahmed Siddiqui v. Zamir Ahmed Tunio 2003 CLC 1224 ref.

Abdul Hafeez Khan v. Muhammad Tahir Khan Loni 1999 SCMR 284 distinguished.

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

----S. 46---Recount by Election Tribunal or Returning Officer---Scope and proof---Recount could not be ordered as a matter of right in absence of sufficient material for such action---Party seeking recount must clearly establish that his polling agents were not allowed to sit in polling station and were denied participation in the count.

Muhammad Anwar Tariq for Petitioner.

Qazi Khalid Ali for Respondent No.21.

Date of hearing: 7th February, 2004.

2004 C L C 1060

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim. Election Tribunal

ILLAHI BUX SOOMRO---Petitioner

Versus

AIJAZ HUSSAIN JAKHRANI and 7 others---Respondents

Election Petition No.92 of 2002, decided on 15th November, 2003.

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

----S. 14---Returning officer---Powers---Summary proceedings---Effect--­Powers of- Returning Officer and Appellate Tribunal under S.14(5) of Representation of the People Act, 1976, to scrutinize the nomination papers of a candidate are confined to conducting such summary inquiry as they may think fit---Tribunals under S.14 of Representation of the People Act, 1976, can only decide issue in summary way and holding a candidate as not good or dishonest Muslim, in absence of evidence, on the basis of affidavits, is unjustified---Tribunal in exercise of powers under S.14 of Representation of the People Act, 1976, cannot reach such finding without recording of evidence.

Ghulam Mustafa Jatoi v. The Additional District and Sessions Judge 1994 SCMR 1299 rel.

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

----Ss. 14, 64 & 68---Election petition---Principle of res judicata--­Applicability---Raising same pleas before Election Tribunal which were already decided by Returning Officer---Non-declaration of material particulars in nomination papers---Objections of the petitioner at the time of filing of nomination papers were rejected by the Returning Officer and the respondent was allowed to contest the election---After the election, the respondent was declared as returned candidate and the election was again assailed by the petitioner on the ground that the returned candidate had not filed declaration of material particulars in nomination papers--­Plea raised by the returned candidate was that the principle of res judicata was applicable as the plea had already been decided by Returning Officer---Validity---Mere fact that the Returning Officer and the Appellate Tribunal under S.14 of Representation ,of the People Act, 1976, had given a finding while exercising powers under S.14 of Representation of the People Act, 1976, could not be construed to attract the principles of constructive resjudicata---Language of S.68 of Representation of the People Act, 1976, did not suggest that if any finding had been given by any of the authority under S.14 of Representation of the People Act, 1976, same would bind the Election Tribunal from deciding such an issue in exercise of powers provided under S.64 of Representation of the People Act, 1976---No estoppel against statute---If, however, the statute provides-that nomination of a returned candidate can be challenged before Election Tribunal under S.68(a) of Representation of the People Act, 1976, on the ground of invalidity, then the principles of resjudicata would not apply---Parties, in the present case, had led evidence whereas in the earlier proceedings under S.14 of Representation of the People Act, 1976, the findings were based on affidavits---Unless it was shown that both the forums had concurrent jurisdiction, the doctrine of resjudicata was not applicable.

(c) Interpretation of statutes---

----While interpreting the provisions of law, the intent of Legislature has to be kept in mind.

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

----S. 14---Objections---Scope---Provisions of S.14 of Representation of the People Act, 1976, are legislated to allow an opportunity to the candidates and/or electors or any other person to raise objections before the Returning Officer at the time of scrutiny of the nomination paper--­Such objections are to be disposed of by Returning Officer or by the Appellate Forum under S.14(5) of Representation of the People Act, 1976, in a summary way without recording evidence.

(e) Resjudicata, principle of---

----Doctrine of resjudicata---Ingredients enlisted:

The ingredients, which are necessary for the application of doctrine of resjudicata, are hereunder:--

(i) The matter directly and substantially in issue in the subsequent suit must be directly and substantially in issue in former suit either actually or constructively.

(ii) The former suit must be between the same parties, or parties under whom they or any of them claim.

(iii) The parties must have litigated under the same title in the former suit as they are doing in the latter.

(iv) The Court which has decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue subsequently raised.

(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.

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

----Ss. 14 & 57---Election Tribunal---Powers---Pre and post-election disputes---No provision existed in the elections, law restricting Election Tribunal constituted under the provisions of S.57 of Representation of the People Act; 1976, from giving any finding in respect of any matter decided by any of the authorities in exercise of powers under S.14 of Representation of the People Act, 1976---Election Tribunal is empowered to decide pre and post-election disputes of elections.

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

----Ss. 14(5) & 68(a)---Election dispute---Constructive res judicata--­Applicability---Jurisdiction of Returning Officer and Election Tribunal--­Scope---Once the statute provides a party to file an election petition on the ground of invalidity of nomination paper under S.68(a) of Representation of the People Act, 1976, Election Tribunal has to adjudicate such issue irrespective of any finding given by Returning Officer or Appellate Tribunal in exercise of the powers under S.14(5) of Representation of the People Act, 1976---Election Tribunal is not estopped from deciding any such issue after allowing the parties to lead evidence---Doctrine of `constructive resjudicata' would not apply in such cases.

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

----S. 12(2)(c)---Wilfully filing of incorrect or false statement---Onus to prove---In order to establish that the respondent candidate had wilfully filed incorrect or false statement by not declaring his liability or liabilities of his spouse in nomination papers, the burden lies on the petitioner to prove the same.

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

----Ss. 12(2)(c), 14, 64 & 68---Misdeclaration of liabilities---Allegation against the returned candidate was that at the time of filing of nomination papers he had not declared the liabilities of his spouse---Decree against the wife was in respect of the loan advanced to the company prior to the marriage and the wife was only a guarantor in the other loan--­Contention of the returned candidate regarding non-disclosure of his own joint property and his liability was that since he had sold his share in the property jointly owned by him with his family, he bonafidely believed that he was not obliged, in law, to disclose the same---Validity---"False and incorrect declaration" as used in S.14(3)(c) of Representation of the People Act, 1976, refers to such assets and liabilities which the returned candidate admits and such admitted assets and liabilities were not declared under S.12(2)(f) of Representation of the People Act, 1976---If the returned candidate disputes the liabilities and gives plausible explanation for non disclosure then such statement under S.12(2)(f) of Representation of the People Act, 1976, cannot be construed as `false and incorrect' in order to unseat a returned candidate by holding his election void, on the ground of invalid nomination paper under S.68(a) of Representation of the People Act, 1976---Election Tribunal accepted the explanation of the candidate and declined to declare the election void---Petition was dismissed in circumstances.

Pir Syed Bachal Shah v. Syed Sadruddin Shah and others Constitution Petition No.D-1657; Tariq Mehmud v. Election Tribunal PLD 2003 Lah. 169 and The King v. Kylsant (Lord) (1932) 1 KB 442 distinguished.

Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91; Asif Jah Siddiqui .v. Government of Sindh PLD 1983 SC 46; Khurshid Anwar v. Muhammad Hussain PLD 1956 Lah. 134; Shahul Hamid v. Tahir Ali 1980 SCMR 469; Muhammad Dawood Sulaimani v. Election Tribunal PLD 2003 Lah. 106 and Muhammad Yousuf Khattak v. S.M. Ayoob PLD 1973 SC 160 ref.

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

----Ss. 12(2)(c)(f) & 14(3)(c)---Phrase "material particulars"--Applicability--- Misdeclaration of liabilities--- Determination--­Procedure ---In order to interpret S.12(2)(f) of Representation of the People Act, 1976, one should not lose sight of Ss.12(2)(c) and 14(3)(c) of Representation of the interconnected---Section 14(3)(c) of Representation of the People Act, 1976, speaks of false/incorrect statement under Ss.12 or 13 of Representation of the People Act, 1976, in material Particulars---For the purposes of determining as to whether the statement under S.12 of Representation of the People Act, 1976, was false/incorrect in material particulars, one has to keep in mind the amount fixed by the-Legislature under S.12(2)(c) of Representation of the People Act,---If a wilful false/incorrect statement has been filed undo: S.12 of Representation of the People Act, 1976, concealing material particulars in order to avoid disqualification, then the Tribunal would not go deeper into the explanations, when it is established that the disclosure of such material particulars would have exposed the candidate to disqualification---If the non-disclosure of assets and liabilities by the candidate under S.12(2)(f) of Representation of the People Act, 1976, were on account of non­ admission of assets and liabilities for which he had given plausible explanation, then it could not be construed as false or incorrect declaration---Burden in such event would lie upon the petitioner to establish that the returned candidate had no defence to offer---Phrase `material particulars' used in S.14(3)(c) of Representation of the People Act, 1976, had direct bearing on Ss.12(2)(c) and 12(2)(f) of Representation of the People Act, 1976.

Munir A. Malik for Petitioner.

Abdul Hafeez Lakho for Respondent No. 1.

Respondents Nos.2 to 7: Ex parte.

Date of hearing: 18th June, 2003.

2004 C L C 1226

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

MUHAMMAD BACHAL SHAH‑‑‑Petitioner

Versus

Syed SADRUDDIN SHAH and others‑‑‑Respondents

Election Petition No.218 of 2002, decided on 20th September, 2003.

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

‑‑‑‑S. 52‑‑‑Election petition‑‑‑Election of returned candidate/respondent was challenged by petitioner/unsuccessful candidate on sole ground that returned candidate was not qualified to contest election as he was not graduate and that certificate and degree issued in his favour were manipulated documents which fact had not been proved by petitioner‑‑­Concerned Educational Authorities issuing said certificate/degree appeared before Election Tribunal and authenticated genuineness of said documents‑‑‑Petitioner had also acquired knowledge that certificate and degree issued in favour of respondent/returned candidate were not bogus, but despite that he declined to withdraw Election petition‑‑‑Election Tribunal, in circumstances had found it a fit case to impose costs upon petitioner‑‑‑Election petition, in circumstances, was dismissed with heavy costs.

Irfan Ahmed for Petitioner.

Abdul Inam for Respondent No. 1.

Date of hearing: 20th September, 2003.

2004 C L C 1707

[Election Tribunal Sindh]

Before Muhammad Ashraf Leghari, Election Tribunal

MUHAMMAD IQBAL PAHOR --- Applicant

Versus

GHULAM ALI GOPANG---Respondent

Election Petition, decided on 8th November, 2003.

Sindh Local Government Ordinance (XXVII of 2001)-----

----Ss. 148, 154 & 156(5)---Application challenging election of returned candidate---Both applicant and respondent/returned candidate, contested election of seat of Taluka Nazim---Total number of members of electoral college in Taluka was 224 and applicant secured 105 votes whereas respondent obtained 114 votes and he was declared returned candidate--­Applicant filed application challenging election of returned candidate on the ground that returned candidate had not secured votes more than 50% of total electoral college which was 231---Seven seats which applicant had included in 224 seats of electoral college of Taluka were vacant and notified returned candidates of electoral college were 22.1 and under Explanation to S.148 of Sindh Local Government Ordinance, 2001 all members of` Union Councils notified as returned candidate, in the election, would be deemed to be members of the electoral college and: seven vacant seats were not part of the electoral college---Number of members of electoral college in Taluka being 224, returned candidate having obtained more than 50% votes of members of electoral college consisting of 224, was rightly declared successful.

Jhamat Jethanand for Applicant.

Hussain Rashidi for Respondent.

Date of hearing: 8th November, 2003.

2004 C L C 1901

[Sindh Election Tribunal]

Before Justice Amir Hani Muslim, Election Tribunal

FIDA HUSSAIN DERO---Petitioner

Versus

MUHAMMAD KHAN JUNEJO and others---Respondents

Election Petition No. 125 of 2002, decided on 16th January, 2004.

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

------Ss. 52, 67(1)(c), 69, 99(1)(cc)---Election petition---Disqualification of returned candidate---Declaring election of returned candidate as void and unsuccessful candidate as returned candidate---Petitioner; unsuccessful candidate in his Election Petition had challenged election of returned candidate on the ground that he was not qualified to contest election as he was not a graduate and degree and certificate submitted by him along with his nomination papers were false and forged documents---University verified the degree and certificate of the returned candidate from record from where in transpired that degree and certificate submitted by returned candidate before Returning Officer were bogus/false---Record of University showed that a candidate other than returned candidate had passed the Examination under Roll Number at which returned candidate claimed to have passed the Examination--­Petitioner, had prayed that election of returned candidate be declared void and that election of returned candidate being void, petitioner was liable to be declared as returned candidate as he had secured record highest number of votes in the constituency- --Returned candidate being not qualified to contest election on nomination day for want of academic qualification in terms of S. 99(1)(cc) of Representation of the People Act, 1976 his election was declared as void---Election Tribunal under, provisions of Ss. 67(1)(c) and 69 of Representation of the People Act, 1976, could declare petitioner or any other contesting candidate to be duly elected, if Election Tribunal -was satisfied that petitioner or such other contesting candidate was entitled to be declared elected--­Expression Satisfaction' used in S. 69 of Representation of the People Act, 1976, implied objectivesatisfaction'---Petitioner was to establish that disqualification of the returned candidate was notorious---Petitioner had neither pleaded in his petition nor led any evidence to show petitioner or voters of the , constituency were in the knowledge of disqualification of returned candidate prior to elections and/or on date of election---Petitioner after 8 days, of the election had approached the University seeking verification of degree of returned candidate--­Petitioner, in circumstances was not entitled to be declared as returned candidate under Ss. 67(1)(c) & 69 of Representation of the People Act, 1976---Fresh election was ordered in the constituency, concerned, in circumstances.

Rashid Ahmed v. Barkat Ali PLD 1968 SC 301; 1986 MLD 2011; 2002 CLC 1807; 1975 SCMR 409 and 1986 SCMR 1701 ref.

Rasheed A. Razvi for Petitioner.

Nawab Mirza for Respondent No. 1.

Dates of hearing: 12th, 13th, 14th and 15th January, 2004.

2004 C L C 12

[Karachi]

Before Muhammad Ashraf Leghari, J

Mst. ZUBAIDA BAI ESSA‑‑‑Petitioner

Versus

Mst. ZUBAIDA‑‑‑Respondent

Constitutional Petition No.464 of 2002, decided on 6th August, 2003.

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

‑‑‑‑Ss. 15(2)(iii)(vii) & 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Bona fide personal need of landlord and conversion of premises from residential to commercial by the tenant‑‑‑Rent Controller and Appellate Court concurrently allowed ejectment application of landlady and tenant had challenged the concurrent judgments in Constitutional petition‑‑‑Evidence adduced by landlady was, consistent to the contentions raised in her ejectment application‑‑‑No illegality or irregularity had been pointed out in the concurrent judgments of two Courts below so as to attract Constitutional jurisdiction of High Court‑‑‑Both Rent Controller and Appellate Court had evaluated and assessed the evidence adduced by parties and concurrent judgments of Courts below were justified and well founded‑‑‑Tenant admittedly had converted residential premises into commercial‑‑‑Landlady and her husband were of old age and infirm and it was prerogative and choice of landlady to occupy the place suitable to her needs‑‑‑Tenant was rightly ordered to vacate premises.

Mrs. Ruby Miso v. Mrs. Kaniz Fatima and others 1990 CLC 1320; Muhammad Sadiq v. Abdul Ghani and others 1991 CLC 1398; Dost Muhammad v. Mst. Ramzan Bibi and 9 others 1990 MLD 1667; Muhammad Ilyas v. Hussaini 2000 MLD 160; Muhammad Lehrasab Khan v. Mst. Aqeel‑un‑Nisa and 5 others 2001 SCMR 338; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394 and Khalifa Fateh Muhammad v. Ahmed Nasir Khan 1988 SCMR 689 ref.

M.G. Dastagir for Petitioner.

Zafar Iqbal Datt for Respondent.

Date of hearing : 6th August, 2003.

2004 C L C 15

[Karachi]

Before Sabihuddin Ahmed and Zahid Kurban Alvi, JJ

JAMAL NASIR‑‑‑Petitioner

Versus

KARACHI DEVELOPMENT AUTHORITY (K. D. A.) and others‑‑‑Respondents

Constitutional Petition No.D‑2001 of 1999, heard on 3rd May, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Allotment of plot, cancellation of‑‑‑Allotment of plot in favour of allottee was subsequently cancelled by the Authorities simply stating that said allotment was made in violation of the Rules and Regulations‑‑‑No prior notice of cancellation of allotment was given to the allottee and it had not been shown as to which of the Rules and Regulations by making such allotment had been violated‑‑‑All that was urged was that cancellation of allotment had been effected on the orders of Housing and Town Planning Department‑‑‑Such plea by itself would render the order of cancellation invalid inasmuch as it had not been shown under which law such directions were binding on the Authorities‑‑‑Authorities being repositories of public power were required to independently apply their mind instead of acting mechanically on directions of those, whose own validity was subject to serious doubts‑‑‑Order canceling allotment which was mala fide and was passed without lawful authority, was set aside and Authorities were restrained from interfering with property rights of allottee created through registered lease executed by the Authorities.

Shoukat Hayat for Petitioner.

Muzaffar Imam for Respondents Nos. 1 and 2.

Qasim Mirjat, Asstt.A.‑G.

Date of hearing: 3rd May, 2000.

2004 C L C 46

[Karachi]

Before Ghulam Rabbani, J

Dr. IFTIKHAR AHMED‑‑‑Appellant

Versus

Dr. Shaikh SHAHZADA KABIR AFTAB‑‑‑Respondent

First Appeal Nu.59 of 1999, decided on 12th May, 2003.

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

‑‑‑‑ O. XXXVII, Rr.2, 3, Ss.20(c), 96 & O.V, Rr.10, 10‑A, 11, 20‑‑­Suit for recovery of amount‑‑‑Territorial jurisdiction of Court‑‑‑Service of summons on defendant‑‑‑Plaintiff who was Karachi based manufacturer and distributor of goods supplied goods to defendant who was Peshawar based, at his request‑‑‑Three post‑dated cheques issued by defendants in favour of plaintiff having been dishonoured, plaintiff, after giving notice to defendant, instituted suit under O.XXXVII, C.P.C. for recovery of amount against him‑‑‑Suit was resisted on two grounds, firstly that Court at Karachi had no jurisdiction to entertain and adjudicate upon the matter and secondly that summonses were not duly served upon defendant‑‑‑Validity‑‑‑Contract for supply of, goods between parties, was concluded at Karachi from where goods in question were undeniably supplied and dispatched by plaintiff to defendant‑‑‑Part of cause of action, in circumstances, had accrued at Karachi‑‑‑Cheques, which subsequently were. dishonoured, drawn by defendant in favour of plaintiff, were delivered and were made payable to him at Karachi‑‑­Such fact had also indicated that a part of cause of action accrued to the plaintiff within territorial jurisdiction of Trial Court at Karachi and that suit was competently filed by plaintiff at Karachi in Court which enjoyed plenary powers to entertain and adjudicate upon the matters in suit‑‑­Trial Court at Karachi where the suit was filed, had jurisdiction to entertain and adjudicate upon matter involved in the suit‑‑‑Objection of defendant with regard to territorial jurisdiction of Court at Karachi was repelled, in circumstance‑‑‑Summonses were ordered to be served on defendants through bailiff, registered post A.D. by Courier Service and also pasting of the same at outer gate of defendant and lastly as substituted service by publication in the daily newspaper, Peshawar‑‑­Except service by publication as substituted service, nothing was on record that summonses were served on defendant through any of the above stated ordinary modes of service‑‑‑Defendant admittedly was not served by any other modes of service, even service of summonses by publication was not made according to order of Court‑‑‑Court had specifically ordered for publication of summonses in a daily newspaper, Peshawar, but it was published in a newspaper of Rawalpindi/Islamabad, which could not be considered as proper and sufficient service of notice/summonses‑‑‑High Court allowing appeal against judgment of Trial Court whereby suit of plaintiff was decreed, set aside judgment of Trial Court and remanded the case for fresh disposal in accordance with law after allowing defendants to appear and defend the suit.

Jivatlal Purtapshi and others v. Lalbhai Fulchand AIR 1942 Bom. 251; Sheikh Imam Ali v. Ch. Muhammad Shafi PLD 1956 Lah: 341; Rehmat Ali' v. Additional District Judge 1999 S C M R 900: Muhammad Yaseen and 2 others v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395; United Distributors (Pvt.) Ltd. v. Mirza Trading Agency 1997 MLD 2797 and Arunachana Chettiar and another v. Murugappa Chettiar and another AIR 1956 Mad. 629 ref.

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

‑‑‑‑O. V, R. 20‑‑‑Substituted service‑‑‑Normally publication of notice/summons as substituted service, was‑ordered when Court choosing, to adopt such mode of service as a last resort, having applied its judicial mind, would form an opinion that conditions essential for ordering substituted service were complied with and that recourse to ordinary mode would be of no avail.

1993 CLC 2303; 1995 MLD 170; Messrs United Bank Ltd., Karachi v. Messrs Mohibali Tannery Ltd. Karachi PLD 1994 Kar. 275 and Allied Bank of Pakistan Limited v. Tahir Traders PLD 1986 Kar. 369 ref.

Z. U. Mujahid for Appellant.

Mrs. Shirza Iqbal Chowdhary for Respondent.

Date of hearing: 28th February, 2003.

2004 C L C 66

[Karachi]

Before Zahid Kurban Alvi, J

Qazi NISAR AHMED ‑‑‑PLalntiff

Versus

Messrs ISOLUX WATT, GROUP ISOLUX PAKISTAN, LAHORE through Resident Manager, Ratko Kostic and another‑‑‑Defendants

Civil Suit No.575 of 1999, decided on 7th April, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑O. VII, Rr. 2 & 11‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑­Suit for declaration, injunction and recovery of amount‑‑‑Rejection of pLalnt‑‑‑PLalntiff had sought declaration that he being Octroi Contractor, was entitled to payment of 5% octroi on goods imported by defendant within area concerned and that defendant was liable to pay amount of octroi within contract tenure of pLalntiff commencing from 1‑7‑1997 to 30‑6‑1998‑‑‑CLalm of pLalntiff was denied by defendant contending that as per Notification dated 12‑2‑1981 imported goods were exempted from duty/tax etc. and that revised Schedule published in Gazette dated 24‑1‑1998 whereby goods imported by defendants were declared liable to pay octroi, was forged and that notification issued in that respect was also a forged document‑‑‑Defendant had contended that at a time when octroi was not payable on a particular commodity, it could not be made payable through subsequent notification with retrospective effect‑‑‑No octroi was payable in year 1980‑82 on the goods imported by defendant but pLalntiff by forged notification made octroi payable on goods imported by defendant ‑which earlier was exempted from such octroi‑‑­PLalntiff had tried to make subsequent notification effective with retrospective effect‑‑‑Right enjoyed by defendant, could not be taken away through a retrospective operation of notification issued subsequently‑‑‑Application filed by defendant under O.VII, R.11, C.P.C. was allowed and pLalnt was rejected.

Gul Ahmed Textile Mills Limited v. Landi Korangi Municipal Committee 1988 MLD 2753.; Taj Mahal Hotel Limited, v. Karachi Water and Sewerage Board 1997 SCMR 503; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 Hashwani Hotels Limited v. Federation of Pakistan PLD 1997 SC 315;‑Army Welfare Sugar Mills Ltd. v. The Federation of Pakistan 1992 SCMR 1652; Condicalo Hypolite Constancio Noronha v. Damji Deji and others PLD 1954 PC 22; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Income Tax Officer (Investigation), Circle 1, Dacca and another v. SuLalman Bhai and another PLD 1970 SC 80; Mian Rafi‑ud‑Din and 6 others v. The Chief Settlement and. Rehabilitation Commissioner and 2 others PLD 1971 SC 252; Mahmood Shah and others v. Additional Settlement Commissioner Revenue and others PLD 1979 Lah. 709 ref.

I.H. Zaidi for PLalntiff.

Hassan Akbar for Defendant No. 1.

Badar Alam for Defendants Nos.2 and 3.

2004 C L C 97

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

NATIONAL BANK OF PAKISTAN‑‑‑Decree‑Holder

Versus

ZARAK TEXTILE MILLS LIMITED‑‑‑Judgment‑Debtor

Execution Application No.92 of 2001, decided on .20th October, 2003.

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

‑‑‑‑O. XXI, Rr.92, 94 & S.65‑‑‑Sale by auction under Court's order‑‑­Purchaser's title‑‑‑"Lump sale"‑‑‑Definition‑‑‑Lump sale as applied to­ judicial sales, means a sale in mass, as where several distinct parcels of real estate, or several articles of personal property, are sold together for a "lump" or "single gross sum".

Amin v. Haji Abdul Sattar 1998 CLC 1256 quoted.

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

‑‑‑‑O. XXI, Rr.92, 94 & S.65‑‑‑Sale by auction under Court's order‑‑Purchaser's title‑‑‑Certification of sales by Court‑‑‑Entire property, in the present case, was sold as lump sale, which was inclusive of the entire land with building thereon and all the machineries, furniture, fixtures, appliances, spare parts, electrical goods, etc.‑‑‑Such factual position had been admitted by the auction‑purchaser in various documents‑‑­ Contention of the auction‑purchaser was that the bifurcation of the offer of the auction‑purchasers was specifically allowed by the Court and the sale of machinery and the sale of land, building, furniture and fixtures ‑ was‑to be treated : separately and consequently, separate sale certificates were to be issued‑‑‑Validity‑‑‑Contention was not tenable because Court, on the request of the auction‑purchaser had allowed the request for ‑bifurcation of offer for the limited purpose of tax returns only, which was evident from the fact that a clarification was made by the Court that the bifurcation would have no bearing on valuation for the purpose of the machinery which was to be decided in accordance with law‑‑‑Official assignee, in circumstances, shall issue the sale certificate under O.XXI, R.94, C.P.C., specifying entire immovable property sold to the auction­ purchaser and vesting in him‑‑‑Request of the auction‑purchaser for issuance of sale certificate in piecemeal for a part of immovable property sold being not in consonance with the law, was rejected by the High Court.

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

‑‑‑‑O. XXI, Rr.92, 94 & S.65‑‑‑Sale by auction under Court's order‑‑­Lump sum sale‑‑‑Issuance of sale certificate by the Court ‑‑‑Procedure‑‑­After the sale becomes absolute having the effect of vesting the entire sold property in auction‑purchaser, only one "Sale Certificate" specifying the entire property sold, could be issued‑‑‑Principles.

A bare reading of the provisions of section 65 and Order XXI, Rules 92 and 94, C.P.C. shows that with the confirmation of sale under Order XXI; Rule 92 the sale takes effect from the date of the sale and the entire immovable property sold in the execution of a decree vests in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. Once the executing Court confirms the sale it becomes functus officio. Thus, after the sale becomes absolute under Order XXI, Rule 92 the entire immovable property so sold vests in the purchaser from the time when the property is sold by virtue of the provisions contained in section 65, C.P.C. and the executing Court becomes functus officio, the Court can issue only a Sale Certificate in terms of Order XXI, Rule 94. A Sale Certificate is construed by reference to the decree, the order of the Court and the sale proclamation. It is specifically provided in Order XXI, Rule 94 that, where the sale of immovable property has become absolute, the Court shall grant a Certificate specifying the property sold and the name of the person who, at the time of sale, is declared to be purchaser. Thus, in the Sale Certificate issued under Order XXI, Rule 94, C.P.C., the Court has no option but to specify the property sold, meaning thereby, each and every part of the property, in its entirety. The provisions contained in Order XXI, Rule 94 do not envisage the issuance of Sale Certificate in piecemeal or in respect of any part of the property so sold on the ground of convenience of the auction‑purchaser or for any other reason. Thus, after sale becomes absolute having the effect of vesting the entire property sold in auction‑purchaser, only one Sale Certificate specifying the entire property sold can be issued.

Industrial Development Bank of Pakistan v. Waheed Textile Mills Ltd. 1989 ALD 507; Mall Developers (Pvt.) Limited v. Joint Official Liquidators Milly Leather Industries Ltd. PLD 1993 Lah. 688; Makhan Lal Kela v. Baldeo Prasad AIR 1938 All. 471; Chase Manhanttan Bank v. Messrs Firdous Spinning and Weaving Mills Ltd. 2002 CLD 145; Amin v. Haji Abdul Sattar 1998 CLC 1256 and Bejoy Krishna Paik v. Montajuddi Shaikh PLD 1961 Dacca 177 ref.

Ziaul Haque Makhdoom for the Decree‑Holder.

Mushtaq A. Memon for the Auction‑Purchaser.

Bashir A. Memon, Official Assignee.

Date of hearing; 6th October, 2003.

2004 C L C 223

[Karachi]

Before S. Ali Aslam Jafri, J

Mrs. ZAHRA ZAIDI---Plaintiff

versus

M. ANWAR KHAN GHAURI---Defendant

Suit No. 1434 of 1999, decided on 23rd April, 2001.

Tort---

---- Frivolous litigation---Suit for damages---Quantum of damages, determination of---Plaintiff filed suit for damages to recover Rs.50,00,000 from defendant claiming that she had sustained heavy loss and faced agonies due to frivolous litigation of defendant against her--­Validity---No yardstick existed to measure or assess actual quantum of damages in respect of mental torture sustained by plaintiff while facing agonies of a frivolous litigation against her---In order to prove the expenditure incurred on such litigation, a party could place on record details of such expenditure, but in the present case no specific evidence was available on that point---Even if plaintiff failed to prove actual quantum of damages, her suit was not to be dismissed on that ground as Court itself was competent in circumstances to ascertain quantum of damages---Keeping in view the facts and circumstances which had given rise to the present suit, particularly the fact that plaintiff who was a Pardanashin lady belonging to a respectable family, was dragged by defendant' and she had to face the agony of such frivolous litigation for a number of years before various Courts in order to vindicate and safeguard her right of property, family prestige and reputation, Court concluded that ends of justice would meet if suit of plaintiff be decreed and she be awarded an amount of Rs.10,00,000 as damages to be paid by defendant to her---Suit was decreed accordingly.

Muhammad Sharif V. Nawab Din and another PLD 1957 (W.P.) Lah. 283 and Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202 ref.

Mirza Waqar Hussain for Plaintiff.

Nemo for Defendant.

Date of hearing: 2nd April, 2001.

2004 C L C 249

[Karachi]

Before Ata-ur-Rehman and Azizullah M. Memon, JJ

SHAUKAT ALI FANCY and others--Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.340 of 2003, decided on 4th June, 2003.

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

----Art. 199---Constitutional petition---Auction---Failure of petitioner to deposit earnest money---Effect---Aggrieved person--Petitioner by his letter had agreed to accept all the terms and conditions of public notice of auction, but failed to deposit earnest money a which was condition precedent for participation in the auction proceedings despite opportunity was provided to him to deposit the said money---Petitioner had not been able, to - place on record any lawful justification for his claim exempting him from depositing the earnest money---Any services rendered or contribution of family of petitioner in promoting the establishment concerned could not be substituted for the required earnest money---Petitioner was not an "aggrieved person" in circumstances, and he could not be allowed to invoke Constitutional jurisdiction under Art.199 of Constitution of Pakistan (1973).

Sandal Fibers Ltd. v. U.B.L. PLD 1992 Lah. .400; Zahir Enterprises v. Government of Pakistan and others 1999 MLD 3112; Messrs Pecific Multinational (Private) Ltd. v. Inspector-General Police, Sindh Police Headquarter and 2 others PLD 1992 Kar. 283; Messrs Dadabhoy Investment (Private) Ltd., Karachi v. Federation of Pakistan and others PLD 1995 Kar. 33; Mian Fazaldin v. Lahore Improvement Trust, Lahore and others PLD 1969 SC 223; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery PLD 1975 SC 244; National Bank of Pakistan v. Crescent Star Insurance Co: Ltd.. 2002 SCMR 1789; Messrs Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Badar Iqbal v. The Speaker, Sindh Provincial Assembly PLD 1995 Kar. 312; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Petitioners v. Federation of Pakistan NLR 1995 (CLJ) 574; Nagina Bakery v. Sui Southern Gas Ltd. and 3 others 2002 CLC 1559; Syed Muhammad v. Settlement and Rehabilitation Commissioner and others 1976 SCMR 61; Babu Parvez Qureshi v. Settlement Commissioner, Lahore, Multan and others 1974 SCMR 337; Messrs Ittehad Cargo Service and 2 others v. Messrs S. Tasneem Hussain Naqvi and others PLD 2001 SC 116 and People's Union for Democratic Rights and others v. Union of India and others AIR 1982 SC 1473 ref.

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

----Art. 199---Constitutional petition---Public interest litigation---Prayer clauses in Constitutional petition had disclosed that petitioner had not sought any relief in the interest of public, but for his personal interest as he had prayed for a declaration that he was highest bidder and entitled to the transfer of shares of the Commercial Establishment---For maintaining petition on public interest side, it was necessary that some material be available before the Court for interference into the transaction---In absence of any evidence to that effect it would be an exercise which would hamper normal business of commercial institutions---No case in favour of petitioner having been made out, he was not entitled to relief claimed by him.

Rasheed A. Rizvi and Khalid Hameed for Petitioners.

Khursheed A. Hashmi, D.A.-G.; Khalid Anwar, Mazher Jafri, Mansoorul Arfin and Afsar Abdi for Respondents.

Date of hearing: 6th May, 2003.

2004 C L C 275

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

GARRISON ENGINEERS (DP) and others---Appellants

versus

Messrs ALSTOM PAKISTAN (PVT.) LTD. and another---Respondents

High Court Appeal No.242 of 2000, decided on 19th April; 2003.

Specific Relief Act (I of 1877)---

--Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Law Reforms Ordinance (XII of 1972), S.3---Suit for declaration and injunction---Temporary injunction, grant of---High Court appeal--­Serious questions of fact and law required determination after recording of evidence and plaintiff had made out an. arguable case---Prima facic case for purpose of issuance of temporary injunction had been made out---Balance of convenience was in favour of plaintiff---While considering balance of convenience it had to be seen that in event of refusal of temporary injunction which party was going , to face more inconvenience and likewise it was to be seen as to whether the plaintiff was likely to suffer irreparable injury if same was refused---All ingredients for issuance of temporary injunction existed in favour of plaintiff---High Court, in circumstances, was justified in granting temporary injunction in favour of plaintiff.

Syed Tariq Ali, Standing Counsel for Appellants.

Yawar Farooqi for Respondent No. l

Muhammad Hamid for Respondent No.2.

Date of hearing:, 19th January, 2003.

2004 C L C 289

[Karachi]

Before Sabihuddin Ahmed, J

SARDAR MUHAMMAD ---Appellant

versus

Khawaja MUHAMMAD NAZAR ---Respondent

First Rent Appeal No.87 of 1999, decided on 16th March, 2000.

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

----Ss. 2(b) & 15---Title of property---Jurisdiction of Rent Controller--­Scope---Rent Controller had no jurisdiction to decide the question of title to property---Where there was a serious dispute as to property, in appropriate case it could be proper to allow get such dispute resolved before deciding the ejectment ; there was no universal rule that Rent Controller must invariably stay his hands from proceeding with the matter, the moment the tenant claimed title to the property or even filed a suit for determination of title.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Allahyar v. Additional District Judge 1984 SCMR 714; Province of Punjab v: Mufti Abdul Ghani PLD 1985 SC 1 and Iqbal and others v. Rabia Bibi PLD 1991 SC 242 ref. '

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

----Ss. 2(f) & 15---"Landlord"---Definition---Eiectment application--- Landlord need not necessarily be the owner of the property---Any person authorized to collect rent could be treated as landlord and he could file proceedings for ejectment in his name.

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

----Ss. 15 & I8---Ejectment application---Notice under S; 18, Sindh Rented Premises. Ordinance, 1979-- Filing of ejectment application itself was a notice under S. 18 of Sindh Rented Premises Ordinance, 1979---No justification for tenant in not tendering rent to landlord after notice of ejectment application was served upon him.

M.M. Tariq for Appellant.

Khawaja Manzoor for Respondent:

Date of hearings :16th March. 2000

2004 C L C 308

[Karachi]

Before Zia Perwaz, J

MUHAMMAD ASLAM---Plaintiff

versus

KARACHI DEVELOPMENT AUTHORITY and others---Defendants

Suit No.708 of 2002, decided on 9th October, 2002.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Sindh Public Property (Removal of Encroachments) Act (V of 1975), Ss.3, 9, 11, 12 & 13---Suit for declaration, injunction and damages---Initiation of proceedings under S.3 of Sindh Public Property (Removal of Encroachments) Act, 1975 for eviction of plaintiff from disputed land---Plaintiff first filed Constitutional petition, and after its dismissal filed petition before Supreme Court, but withdrew the same--­Plaintiff thereafter filed the present suit---Defendant sought rejection of plaint on the ground that suit was hit by S.11, C.P.C. and thus was barred by law---Plaintiff's plea was that since the suit was also for damages, plaint was not liable to be rejected under O. VII, R.11, C.P.C.---Validity---Relief for damages in itself was not a new cause of action, but a consequential relief---Unless and until plaintiff first established his right over the disputed land, he could not claim damages---If plaintiff failed to establish his claim over disputed land, his claim for damages would evaporate in the air---After dismissal of Constitutional petition and petition for leave to appeal before the Supreme Court, plaintiff could not claim any title or interest in the disputed land---Suit was, thus, hit by principles of res judicata---Without first availing remedy of appeal before Tribunal as envisaged under S.12, Sindh Public Property (Removal of Encroachments) Act, 1975, suit being premature was hit by Ss.9,_11 & 13 of the said Act and barred by principle laid down in Tariq Transport Company's case PLD 1958 SC (Pak.) 437---High Court rejected the plaint under O. VII, R.11, C:P.C.

Tariq Transport Co. v. Sargodha-Bhera Bus Service and others PLD 1958 SC (Pak.) 437 fol.

Pir Bakhsh through L.Rs. v. The Chairman, Allotment Committee PLD 1987 SC 145; Muhammad Anwar v. Mst. Nawab Bibi and others 1989 SCMR 836; Ziauddin v. Pakistan Defence Housing Authority 1999 CLC 723; Fairoz .Din and others v. Muhammad Sher Khan 1979 CLC 742; Begum Atiya Hasimi and. others v. Mst. Aamee and others 1987 MLD 305; Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183; Salahuddin v. Federation of Pakistan and others 2002 CLC 1275 and Salima Begum and others v. Mst. Sardaran Bibi and others PLD 1995 SC 406 ref:

(b) Islamic Jurisprudence---

--- Islamic Law---Islamic Jurisprudence and Islamic Law cannot be subordinated to another principle, which comes in clash with them.

Sakhi Muhammad v. Munshi Khan PLD 1992 SC 256 fol.

(c) Encroacher---

----Sale of land by encroacher---Validity---If a person purchases some land from an encroacher, he steps into the shoes of such encroacher and cannot become lawful owner at any time.

(d) Administration of justice---

---- Party complaining of a breach of statute must first avail remedy provided by statute before applying for any other remedy.

Where a statute creates a right and also provides machinery for enforcement of that right, the party complaining of a breach of the statute must first avail himself for the remedy provided by the statute for such breach before he applies for any other remedy ---Civil Procedure Code (V of 1908), O.VII, R.11(d).

Tariq Transport Co. v. Sargodha-Bhera Bus Service and others PLD 1958 SC (Pik.) 437 fol.

Akhlaq Ahmed Siddiqui for Plaintiff.

Nazar Hussain Dhoon for Defendant No.3

Ch. Muhammad Rafiq, A.A.-G. for the State.

2004 C L C 344

[Karachi]

Before Muhammad Moosa K. Leghari, J

Messrs CHAPAL BUILDERS---Plaintiff

versus

EDITOR, DAILY DAWN and others---Defendants

Suit No. 1721 of ZUUU, decided on 10th September, 2003.

Specific Relief Act (I of 1877)---

--Ss. 42 & 54---Suit for libel, malice, declaration, injunction and damages---Plaintiffs had filed suit against defendants alleging that publication of news articles by defendants was mala fide and was calculated to damage the reputation and credibility of the plaintiffs--­Plaintiffs had sought injunction for restraining defendants from publishing, printing or circulating any derogatory material against plaintiffs and grant of damages---Case of plaintiffs rested on malice and falsehood oil the part of defendants and in such situation it was for the plaintiff to prove the falsity of the words; defendant's malice; and that the plaintiffs had suffered actual loss---No ill-will or motive was attributed by the plaintiffs against News Agency concerned which had flashed the story in respect of plaintiffs---News Agency was not even impleaded as a party by the plaintiffs which, in given circumstances, was a necessary party---Suit, in circumstances, otherwise was bad for non­joinder of necessary party---Plaintiffs did not make any effort to lead tangible evidence to conclude that disputed news was false---Malice and ill-will were questions of fact which in the particular circumstances of case should have been spelt out in the plaint and subsequently proved by evidence, `but the pleadings were bereft of any such details---Burden of proving express malice both by extrinsic and intrinsic evidence lay on plaintiffs to show that publications were actuated by some indirect or improper motive---Plaintiffs were required to bring something concrete and solid to prove their case, but they failed to do so---Plaintiffs could not be relieved of their burden by merely saying that defamatory articles were published by defendants at the behest of persons best known to them---Such vague statement could hardly be credible worth consideration---By no stretch of imagination it could be gathered that defendants were nurturing malice or grudge of any kind against plaintiffs---Plaintiffs' witnesses had expressly admitted in their cross-­examination that they had no enmity with the defendants---Plaintiffs, in circumstances, had failed to substantiate their claim by proving the factum of having been libelled by the defendants and that act was committed with intentional and deliberate malice, which was an essential ingredient in a suit for libel---Plaintiffs having failed to prove motives, ill-will against defendants, suit filed by plaintiffs against defendants was dismissed.

Adeeb Javedani's case 1995 CLC 1246 and Shaikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief , The Nation and Nawa-e-Waqt, Lahore and another PLD 2002 SC 514 ref.

Ms. Mehr-un-Nisa for Plaintiffs.

Muhammad Ali Abbasi for Defendants.

Date of hearing: 12th August, 2003.

2004 C L C 356

[Karachi]

Before Khilji Arif Hussain, J

BALOOCH AKBAR KHAN---Plaintiff

versus

MUHAMMAD HUSSAIN and another---Defendants

Suit No.37 of 2003, decided on 27th May, 2003.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.3---Leave to defend the suit, grant of---Investment in business---Proof---Suit was filed by plaintiff on the basis of dishonoured cheques---Plea raised by the plaintiff was that to secure the investment made by him in the business, the defendants had issued five cheques which were dishonoured by the Bank---Defendants denied any business transaction with the plaintiff---Plaintiff had not produced any document alongwith plaint, to establish the claim made in the plaint ---Effect--­Allegations made in the plaint could be established only by recording of ,evidence---Leave to defend the' suit was granted unconditionally.

Muhammad Arif v. Abdul Qayyum'1991 CLC 442 rel.

A.S. Pingar for Plaintiff.

Muhammad Saleem Thepdawala for Defendant No. 1.

Syed Aminuzzaman for Defendant No.2.

2004 C L C 370

[Karachi]

Fore Muhammad Roshan Essani, J

ABDUL SATTAR---Applicant

versus

BASHIR AHMED and others---Respondents

Revision Application No. 119 of 1989, decided on 10th October, 2003.

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

----S. 115---Revisional jurisdiction---Scope---Such jurisdiction was discretionary ---Revisional Court could interfere only, when subordinate Court had exceeded its jurisdiction or failed to exercise jurisdiction so S vested or acted illegally or with material irregularity in exercise of its jurisdiction.

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

----O. XX, R.5---Failure to consider each issue separately ---Effect--­Issues inextricably linked with each other and considered together---Such consideration would not be violative of mandate contained in O.XX, R.5, C.P.C.

Azizullah Khan and others v. Gul Muhammad Khan and others 2000 SCMR 1647 fol.

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

----S. 115---Relief under revisional jurisdiction-Party seeking such relief must show that impugned judgment was contrary to law and facts.

(d) Administration of justice---

---- Party cannot be deprived of its rights merely on technicalities.

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

---S. 115---Concurrent findings of facts by two Courts below--­Validity---Such findings could not be disturbed without strong reasons merely on the ground that on reappraisal of evidence, different view was possible.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 rel:

Basharat Ahmed Jatt:-for Petitioner.

Abdul Sattar Kazi for Respondents.

Date of hearing: 8th-September, 2003.

2004 C L C 392

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

SULTAN and others‑‑‑Petitioners

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petitions Nos.D‑147, D‑233, D‑396, D‑453, D‑460, D‑491, D‑1235, D‑1323, D‑1358, D‑1438, D‑595, D‑454, D‑1064, D‑466, D‑621, D‑1262, D‑1299, D‑1444; D‑1957 of 2002 and D‑563 of 2003, heard on 16th June, 2003.

Sindh Katchi Abadies Act (Il of 1987)‑‑‑

‑‑‑‑Ss. 19 & 21‑‑‑Sindh Local Council Land Rules, 1975, R.13‑‑‑Karachi Building Control Ordinance (V of 1979), S.6‑‑‑Constitution of Pakistan (1973), Arts.24 & 199‑‑‑Constitutional petition‑‑‑Construction of Lyari Expressway‑‑‑Removal of construction and encroachments on embankment of Lyari River‑‑‑Petitioners claimed to be in possession of land under lease deeds, Village Forms II and VII etc., executed in their favour by the Authorities‑‑‑Petitioners prayed for permanent injunction to restrain respondents not to interfere with their possession except in due course of law and not without payment of compensation ‑‑‑Validity‑‑­Various title deeds relied upon by the petitioners were still intact and had not been either cancelled or challenged before competent forum/Court of law by respondents‑‑‑Mere fact that before execution of lease‑deeds while treating various localities as Katchi Abadies, Scheme as required under S.21 of Sindh Katchi Abadies Act, 1987 had neither been prepared nor sent to the Government for its approval, would not make any difference‑‑‑Non‑observance of such provision of law could not be taken by. Government as a ground to dislodge claim of petitioners‑‑­Respondents could not blame petitioners for inefficiency or dishonesty of their own officers‑‑‑Registered leases in favour of petitioners had to be given full effect till those were adjudged void by Courts of competent jurisdiction‑‑‑Allotment made pursuant to a validly approved scheme could not be treated as unauthorized‑‑‑Once such area was notified to be Katchi Abadi, leases in favour of petitioners could not be treated as void‑‑‑Petitioners could not be deprived of their property rights except in due course of law and not without payment of compensation‑‑‑High Court declined to pass restraining order in view of such project being of national importance as further delay in its construction would cause large burden on public exchequer and inconvenience to public‑at‑large‑‑‑High Court directed the respondents to either resolve the dispute through private settlement or by payment of appropriate compensation to petitioners in accordance with law with observations that construction, if any, raised without approved plan would be liable to be demolished at owner's costs and petitioners, in such cases, would be entitled to compensation for value of land only.

Naik Muhammad v. Maqbool Ahmed and another C.P. No.D‑1516 of 1999 rel.

Gul Muhammad Hajiano for Petitioners (in C.P. No.D‑460 of 2002), Maula Bukhsh Khoso, Abdus Salam Baloch, Abid Hussain, Maqbool‑ur‑Rehman, M. Ilyas Khan, Khalid Javed and Amjad Ali for Petitioners.

Anwar Mansoor Khan, A.‑G., Sindh, Raja Qureshi (the then A.‑G. Sindh), Suleman Habibullah (the then Addl. A.‑G. Sindh), Abbas Ali, Addl. A.‑G. Sindh, Sarwar Muhammad Khan, Manzoor Ahmad, Shahid Jamiluddin Khan and Anwar Ali Shah for Respondents.

Dates of hearing: 19th February; 6th, 25th March; 13th, 23rd May; 4th and 16th June, 2003.

2004 C L C 430

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

BASIT RASOOL QADIR and others‑‑‑Appellants

Versus

FIRST GENERAL LEASING MODEL‑‑‑Respondent

Civil First Appeal No. 110 of 2000, decided on 6th October, 2003.

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Arts.2‑A & 37(d)‑‑‑Refund of court‑fee paid on memo. of appeal after withdrawal of appeal on ground .of compromise‑‑‑Entitlement‑‑‑No order on merits of case affecting rights of parties had been passed, when appeal was withdrawn‑‑‑Appellant was entitled to refund of court‑fee, irrespective of the fact, whether provisions of S.13 of Court Fees Act, 1870 were attracted or not‑‑‑Appellant was issued certificate for refund of court‑fee.

Sh. Riaz‑ud‑Din v. Aqil‑ur‑Rehman Siddiqui PLD 1993 SC 76 fol.

Khalil Ahmed Siddiqui for Appellants.

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

Date of hearing: 6th October, 2003.

2004 C L C 544

[Karachi]

Before Shabbir Ahmed, J

LITHUANIAN AIRLINES‑‑‑Plaintiff

Versus

BHOJA AIRLINES (PVT.) LTD. and others‑‑‑Defendants

Suit No.41 of 2002, decided on 20th October, 2003.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Stay of suit for reference of dispute to arbitration--‑Affidavit‑‑‑Such request of defendant was resisted by plaintiff by filing objection supported by affidavit of its counsel‑‑‑Validity‑‑‑Affidavit in support of case should be filed by party or its agent or attorney and not by the counsel‑‑‑Such affidavit was excluded from consideration.

Giorgio Beverly Hills Inc. v. Colgate 'Palmolive Pakistan Ltd. 1999 MLD 3173 fol.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Stay of suit for reference of dispute to arbitration‑‑‑Essential pre‑conditions to be fulfilled stated.

In order to grant stay under this section, it is necessary that these conditions should be fulfilled: (1) The proceedings must have been commenced by a party to an arbitration agreement against any of the party to the agreement. (2) The legal proceedings, which are sought to be stayed must be in respect of a matter agreed to be referred. (3) The applicant seeking stay must be a party to the legal proceedings and he must have taken no step in the proceedings after appearance. It is also necessary that he should satisfy the Court not only that he is, but also was, at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration. (4) The Court must be satisfied that there is no sufficient reason, why the matter should not be referred to an arbitration in accordance with the agreement.

Anderson Wright Ltd. v. Moran & Co. AIR 1955 SC 53 fol.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑S. 34‑‑‑Stay of suit for reference of dispute to International Arbitral Tribunal as per terms of the agreement‑‑‑Plaintiff's objection was that such arbitral proceedings would be too expensive and inconvenient as entire evidence was at place "K" in Pakistan‑‑‑Validity‑‑‑Existence of arbitration agreement between' parties was not disputed‑‑‑Legal proceedings sought to be stayed was in respect of matter agreed to be referred‑‑‑Defendant had not taken any step in proceedings after appearance except moving application for stay of proceedings‑‑‑Plaintiff could not defeat arbitration clause on such ground though having knowledge that evidence would be at place "K" in Pakistan and that arbitration would be through International Arbitration Rules and Procedures‑‑‑Approach of Court in such regard should be dynamic‑‑­Court should not lightly release parties from their agreement on ground of inconvenience or hardship‑‑‑Appreciation for stay of suit was allowed.

India Steel and Wire Products Ltd. v. P.T. Debi Prasad Malaviya AIR (sic) All. 253; Anglo Persian Oil Co. v. Panchapakesa Aiyar AIR 1924 Mad. 336; Echardt & Co. v. Muhammad Hanif PLD 1993 SC 42; Messrs Manzoor Textile Mills Ltd. v. Nichimen Corporation 2000 MLD 641; Messrs Aslo Marines Ltd. v. M.T. Magda and another PLD 1985 Kar. 745; Muhammad Amin and Muhammad Bashir Ltd. v. Pas+R and others 2002 CLD 671 and Haji Soomar Haji Hafan v. Muhammad Amin Muhammad Bashir Ltd. 1981 SCMR 129 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Stay of suit for reference of dispute to arbitration‑‑‑Suit was against three defendants, while application for stay of suit was made by defendant‑Company alone‑‑‑Plaintiff's plea against stay of suit was that if suit was proceeded only against non‑applicant defendants; then conflicting decisions might ensue‑‑‑Validity‑‑ Non‑applicant defendants were Directors of defendant‑Company, who had signed agreement on behalf of their company‑‑‑Such objection was rejected in circumstances.

Messrs Haji Muhammad Ibrahim and others v. Karachi Municipal Corporation and others PLD 1960 Kar. 916 rel.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Arbitration (Protocol and Convention) Act (VI of 1937), S.3‑­‑Agreement containing foreign arbitration clause‑‑‑Provisions of S.34 of Arbitration Act, 1940‑‑‑Applicability‑‑‑Provisions of S.3 of Arbitration (Protocol and Convention) Act, 1937 would not apply in absence of actual submission.

W. Wood and Sons v. Bengal Corporation AIR 1956 Cal. 238 and Bajrang Electric Steel Co. v. Commissioner of the Port of Calcutta AIR 1957 Cal. 240 rel.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 2(a)‑‑‑Agreement to refer dispute to arbitration‑‑‑Word "dispute"‑‑‑Connotation and illustration.

A dispute implies an assertion of a right by one party and repudiation thereof by another party.

A failure to pay a claim constitutes a matter of difference between the parties to a submission.

Where lessor claims outstanding amount of lease, while lessee repudiates, it is a dispute arising out of contract containing arbitration clause.

Nandram Hanutram v. Raghunath & Sons Ltd. AIR 1954 Cal. 245 and Lahore Stock Exchange v. Fredrick, J. Whyte Group (Pakistan) Ltd. and others PLD 1990 SC 48 ref.

Chandmull Ganeshmull v. Nippon Munkwa Kabushiki, Kaisha AIR 1921 Cal. 342 and Messrs Beith Stevenson & Co. Ltd. v. Firm of Naroomal Khemchand AIR 1924 Sindh 117 fol.

Muhammad Masood Khan for Plaintiff.

Miss Sana A. Minhas for Defendants.

Date of hearing; 20th October, 2003.

2004 C L C 565

[Karachi]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

Mst. SHAHIDA MAQSOOD‑‑‑Petitioner

Versus

PRESIDENT OF PAKISTAN through Secretary, Law Justice and Human Rights Division and another‑‑‑Respondents

Constitutional Petition No. 1375 of 2002, heard on 21st August, 2003.

Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑

‑‑‑‑S. 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Order of President passed in appeal filed against order of Federal Tax Ombudsman‑‑­Constitutional petition against such order before Sindh High Court‑‑­Maintainability‑‑‑Complaint filed by petitioner at "R" had been examined by, Federal Tax Ombudsman in "I" ‑‑‑Representation had been made at Rawalpindi ‑‑‑Cause of action or part thereof, thus, had not accrued within jurisdiction of Sindh High Court‑‑‑Jurisdiction of High Court to issue direction was confined to persons performing functions in connection with affairs of Federal or Provincial or local authority within the territorial jurisdiction of the Court‑‑‑High Court dismissed Constitutional petition for want of territorial jurisdiction.

Sabiruddin v. Government of Pakistan 1997 SCMR 555 and Abdul Ghaffar Lakhani v. Federal Government of Pakistan PLD 1986 Kar. 525 rel.

Kunwar Mukhtar Ahmed for Petitioner

Nadeem Azhar Siddiqui, Dy. A.‑G.

Date of hearing; 21st August, 2003.

2004 C L C 567

[Karachi]

Before Muhammad Afzal Soomro, J

Mst. HAMEEDA‑‑‑Applicant

Versus

MUHAMMAD IBRAHIM ‑‑‑Respondent

Civil Revision Applications Nos.64 and 63 of 2001, heard on 3rd March, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑‑Suit for specific performance of agreement to sell property‑‑­Allegation of the defendant was that the agreement was forged‑‑­Assertions of plaintiff and statement of witnesses produced by her created doubt about the genuineness of the alleged sale‑deed‑ ‑‑Both the Trial and Appellate Courts, in circumstances, were right in dismissing the suit and appeal of the plaintiff.

Shaikh Fazal Din for Applicant.

Riaz Ahmed Qureshi for Respondent.

2004 C L C 574

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SAIFAL‑‑‑Applicant

Versus

Haji GHULAM QADIR and 6 others‑‑‑Respondents

Civil Revision No.90 of 1996, heard on 8th November, 2002.

Islamic Law‑‑‑

‑‑‑‑ Pre‑emption‑‑‑Making of Talbs‑‑‑Plaintiff had made both the Talbs according to law and had deposited the price as well as the court‑fee in the Trial Court‑‑‑Suit was rightly decreed by the Court in circumstances.

Abdul Fateh Malik for Applicant

Bhajandas Tejwani for Respondent No. 1.

Date of hearing: 8th November, 2002.

2004 C L C 578

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

NIZAR ALI ---Petitioner

Versus

KARACHI WATER AND SEWERAGE BOARD and others---Respondents

Constitutional Petition No.D-446 of 2001, decided on 17th October, 2003.

(a) Interpretation of statutes---

----Schedule to the statute must conform to the requirement of parent statute.

(b) Karachi Water and Sewerage Board Act (X of 1996)---

----Ss. 7 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Demand of water supply charges raised in respect of premises not connected with water line of the Board---Validity---If water charges were collectable by Board irrespective of question whether any services were rendered, then such a levy could only be treated as a tax for general revenue purposes---No provision existed in Karachi Water and Sewerage Board Act, 1996 enabling the Board to levy any tax---Board under Ss.7 & 8 of the Act, was competent to collect charges -for supply of water---Water rates prescribed in the Schedule might not invariably conform to quantum of services rendered, but same must show that some services were being rendered---Water rate schedule must conform to requirement of the parent statute---Water rate relating to commercial premises not connected with water line was only intended to serve a national purpose for determining quantum of water charges payable, but same did not authorize Board to collect charges from a person, who was not provided with any services contemplated in the Act---High Court accepted Constitutional petition and restrained the Board from collecting water charges till such time supply to petitioner's premises was made.

Muhammad Ismail v. Chief Cotton Inspector PLD 1966 SC 388 and Government of N.-W.F.P. v. Rahimullah 1992 SCMR 750 ref.

Nooruddin Sarki for Petitioner.

Abdul Karim Khan for Respondents.

Date of hearing: 3rd October, 2003.

2004 C L C 587

[Karachi]

Before Muhammad Moosa K. Leghari, J

DHUNJISHAH B. GHADIALY and others---Plaintiffs

Versus

KARACHI PARSI COOPERATIVE HOUSING SOCIETY LTD. and others---Defendants

Suit No.1055 of 2002, decided on 29th October, 2002.

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

----Ss. 54, 70 & 70-A---Civil Procedure Code (V of 1908), S.9---Suit against Cooperative Society and its officers for restraining them from holding election till final decision regarding plaintiffs' membership by proper authority/forum---Maintainability-- Provisions of S.54 of Cooperative Societies Act, 1925 would apply to such dispute of election touching business of Society---Jurisdiction of Civil Court had been expressly barred to entertain or adjudicate upon matter, which statutory functionaries were empowered to dispose of or determine---Plaintiff filed suit before expiry of two months after service of notice on Society--­Plaintiff had, thus, not complied with mandatory requirement of S.70 of the Cooperative Societies Act, 1925---Plaintiffs claiming to be members of Society were required to enter into arbitration proceedings as stipulated under S.54 of the Act---Suit was dismissed being not maintainable.

PLD 1981 Kar. 138; PLD 1970 Kar. 200; PLD 2002 Kar. 414 and PLD 2002 SC 660 rel.

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

----O. VI, Rr.4, 7 & O. VII, R.1---Plaint in a suit for damages without pleading same therein specifically---Maintainability--Unless something was pleaded in plaint, that could not be granted---Plaintiff had not pleaded anywhere in plaint about damages---Prayer in such respect could not be granted.

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

----O. XLI, R. 5---Suit for restraining holding of election of Society--­Plaintiff after dismissal of suit prayed for withholding of election till filing of appeal by him---High Court directed not to hold election till the specified date.

Khawaja Mansoor Ahmed for Plaintiffs.

Agha Faisal for Defendants Nos. 1 to 3.

R.F. Virjee (Defendant No.4) in person.

Date of hearing: 25th October, 2002.

2004 C L C 671

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Messrs DAWOOD COTTON MILLS LTD.---Appellant

Versus

K.F. DEVELOPMENT CORPORATION LTD. ---Respondent

High Court Appeal No.230 of 2001 decided on 8th April, 2003.

(a) Execution---

----Jurisdiction---Wrong order/judgment--Decree without jurisdiction--­Powers of Executing Court---Scope---Executing Court could not go behind decree, except where the same was passed by a Court having no jurisdiction or was nullity in the eye of law being without jurisdiction--­Wrong order/judgment could be questioned by way of appeal/revision or other remedy available in law, but Executing Court could not normally refuse to execute a decree on such plea.

B.V. Aatan Kar and others v. C.G. Sastry AIR 1961 SC 272 and Faqir Abdullah and others v. Government of Sindh PLD 2001 SC 131 ref.

(b) Jurisdiction---

---- Order/judgment passed by Court having jurisdiction could not be equated with an order passed by Court having no jurisdiction in the matter.

Abrar Hassan for Appellant.

M.G. Dastgir for Respondent.

Date of hearing: 12th March, 2002.

2004 C L C 678

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Messrs S.G. FIBRE LIMITED---Petitioner

Versus

GOVERNMENT OF SINDH and others----Respondents

Constitutional Petition No. D-1974 of 1999, decided on 16th August, 2003.

Electricity Act (IX of 1910)---

----Ss. 14 & 26---Constitution of Pakistan (1973), Art. 199--­Constitutional petition--- Demand of average bills for electricity consumed by petitioner---Fixation of "Check Meter" on directive of Electric Inspector for determination of actual and correct consumption of electricity---Authority instead of actual reading of units transpired from "Check Meter", continued to send bills on average basis at much higher side than such actual reading---Electric Inspector decided matter without considering reading of "Check Meter'", which order was upheld by Appellate Authority---Validity--Check Meter" installed at premises had remained in control of the Authority for all practical purposes, which could prima facie establish consumption of electricity by petitioner---No reason had been given m the impugned orders for increasing average units consumption and for not accepting reading of "Check Meter "---Authority had failed to discharge burden to prove that reading shown by "Check Meter" was not acceptable for some cogent reasons---High Court accepted Constitutional petition and set aside impugned orders.

Abdul Ghafoor Mangi for Petitioner.

M. Sarwar Khan, A.A. -G. for Respondent No.1.

Muhammad Nadeem holding brief for M. Sohail for Respondents Nos. 2 and 3.

Date of hearing: 21st May, 2003.

2004 C L C 697

[Karachi]

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

Mst. MUMTAZ BEGUM and 8 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh and 5 others---Respondents

Constitutional Petition No.D-211 of 2003, decided on 11th September, 2003.

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

----O. VI, R. 17---Amendment of pleadings---Expression "at any stage of proceedings" as used in O.VI, R.17, C.P.C.---Scope---Any development taking place during pendency of proceedings---Duty of Court--­Principles.

The delay alone in seeking amendment of the plaint is no ground to refuse amendment application. Amendment in pleadings can be sought at any stage of the "proceedings" and the expression "at any stage of proceedings" used in Order VI, rule 17 has to be liberally construed. Even the amendment in the pleadings can be ordered up to the stage of Supreme Court. The Courts are further required in law to allow all such amendments that may be necessary for the purpose of determining the real question in controversy.

During pendency of proceedings, if any development takes place in the proceedings, the Courts would not overlook such development and that too when it is material for the purposes of deciding controversy between the parties.

Question of limitation is not significant in the case of grant of amendment in the pleadings.

The scope for grant of application under Order VI, rule 17, C.P.C. is very wide and such application ought to be granted liberally as same restrains parties from multitude of proceedings.

Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345 rel.

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

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O.VI, R.17--­Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration and permanent injunction---Amendment in plaint sought on basis of subsequent events---Plaintiff sought declaration to the effect that defendant had no legal right to raise wall on suit plot and prayed for issuance of permanent injunction to restrain defendant from interfering in his possession---Plaintiff, after his dispossession from the suit plot, sought amendment in plaint to include relief of mandatory injunction and mesne profits---Trial Court dismissed amendment application as time­-barred, which judgment was upheld by Revisional Court on the ground that its grant would amount to introduction of new cause---Validity--­Such application containing allegation of dispossession and seeking consequent amendment in plaint was necessary---Courts below had overlooked reasonable explanation given by plaintiff for making such application and there was no delay---Question of limitation would not be important in case of grant of amendment in pleadings---Application under O. VI, R.17, C.P.C. ought to be granted liberally as same would restrain parties from multitude of proceedings---Reasonings of both Courts below in dismissing such application were erroneous and not sustainable in law---High Court accepted Constitutional petition directing plaintiff to file proposed amended plaint before Trial Court within specified time.

Arshan Bi v. Maula Bakhsh 2003 SCMR 318 and Muhammad Hussain v. Sani Hussain 2000 SCMR 391 ref.

(c) Administration of justice---

---- Subsequent events---Duty of Court---During pendency of proceedings, if any development takes place in the proceedings, the Courts would not overlook such development and that too when it is material for the purposes of deciding controversy between the parties.

Kamaluddin for Petitioners.

Masood A. Noorani, Addl. A.-G. for Respondents.

Date of hearing; 10th September, 2003.

2004 C L C 707

[Karachi]

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

SAIFULLAH MEMON---Petitioner

Versus

UNION COUNCIL No.2, QASIMABAD and 2 others---Respondents

Constitutional Petition No.D-159 and M.A. No.653 of 2003, decided on 21st August, 2003.

(a) Sindh Local Government Ordinance (XXVII of 2001)---

---Ss. 89(4) & 92---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Motion of no-confidence for recall of Naib-Nazim moved in a meeting of Union Council presided over by Acting Nazim, when its agenda did not include such item---Validity---Nothing on record was available to confirm issuance of written notice to the petitioner containing allegations with specific instances---Opportunity of hearing to explain his position could not be said to have been given to the petitioner in absence of service of such notice---Allegations on the basis of which such motion had been moved were ex facie vague and not specific warranting such motion against petitioner---Action to circumvent mandatory procedure of S.92 of Sindh Local Government Ordinance, 2001 would shake confidence of electorates of constituency and would have far-reaching effects on public in general---Minutes of meeting had not authorized Acting Nazim to preside over such session---Such motion had been moved on account of serious differences between petitioner and Acting Nazim---Members and/or office-bearers of Council should not settle their score within Council on basis of personal vengeance---Interest of public should be kept Supreme while move of such nature was made--­High Court accepted Constitutional petition and declared impugned resolution and notification of removal of petitioner to be without lawful authority.

(b) Sindh Local Government Ordinance (XXVII of 2001)---

----S. 92(2)---Motion of no-confidence for recall of Naib-Nazim--- Union Council already in session---Non-issuance of notice to Naib-Nazim-- ­Effect---Requirement of notice contemplated under S.92(2) of Sindh Local Government Ordinance, 2001 could not be dispensed with even if Council was already in session.

(c) Sindh Local Government Ordinance (XXVII of 2001)---

----S. 92(1)(2)---Motion of no-confidence for recall of Naib-Nazim-- ­Essentials---No elected representative could be deprived of his office on basis of vague allegations and without notifying him in writing---Such Naib-Nazim must know allegations containing specific instances on basis of which such motion had been moved.

Muhammad Yousuf Leghari for Petitioner

Abdul Aziz A. Shaikh for Respondent No. 1.

Masood Noorani, Addl. A.-G.

Date of hearing: 19th August, 2003.

2004 C L C 755

[Karachi]

Before Zahid Kurban Alvi, J

Haji SHOUKAT ALI ---Plaintiff

Versus

ABDUL RASHEED---Defendant

Civil Miscellaneous Application No.996 of 2003 in Suit No.1229 of 2000, decided on 10th March, 2003.

Malicious prosecution---

----Suit for damages---Limitation---Starting point---Application for rejection of plaint---Period of one year prescribed under Art.23 of Limitation Act, 1908 for filing suit for damages for malicious prosecution would run from date of final termination of criminal proceedings either in revision or appeal---Limitation would not run from the date of acquittal of plaintiff, by criminal Trial Court---Suit filed by plaintiff within one year from date of disposal of appeal by High Court, was within time--­Plaint filed by plaintiff thus could not be rejected being barred by time---Limitation Act (IX of 1908), Art. 23---Civil Procedure Code (V of 1908), O.VII, R.11(d).

Messrs Marine Management Company v. Government of Pakistan and others PLD 2000 Kar. 214; B. Madan Mohan Singh v. B. Ram Sunder Singh AIR 1930 All. 326; Mehtab son of Sh. Fareed v. Balaji AIR 1946 Nag. 46; Bhikham Singh and others v. Darshan Singh AIR 1942 Oudh. 498; Purshottam Vithaldas Shet v. Raoji Hari Athavle AIR 1922 Bom. 209; Daddeti Subbayya v. Mutayalu Kesavulu 1945 Mad. 288; Syed Israr Ali v. Mst. Ahmedi Begum and others 1990 MLD 1834 and Muhammad Zubair Qureshi v. Munir Hussain Shirazi and 4 others PLD 1991 Kar. 214 ref.

Zafar Hadi Shah for Plaintiff.

Muhammad Ikram Siddiqui for Defendant.

2004 C L C 767

[Karachi]

Before Sabihuddin Ahmed and Zia Perwaz, JJ

Mst. ZARINA and another‑‑‑Petitioners

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No. D‑1775 of 2001, decided on 6th May, 2002.

(a) Interpretation of statutes‑‑‑

--‑‑Words in a statute were to be given their ordinary, grammatical and literal meaning based upon common sense and a statute/document had to be read as a whole.

(b) Karachi Building Town Planning Regulations, 1979‑‑‑

‑‑‑‑Regln. 29‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Sub‑rule (1) of Regln. 29 of Karachi Building Town Planning Regulations, 1979, was the general rule and sub‑rule (3) of said Regln. was an exception thereto for corner plots‑‑‑Plot in question being a corner plot, application of sub‑rule (1) of Regln. 29 of Karachi Building Town Planning Regulations, 1979 was fully attracted and building plan had been correctly passed by prescribing the minimum compulsory open space at the rear in terms of sub‑rule (3) of Regln. 29 of said Regulations.

(c) Karachi Building Town Planning Regulations, 1979‑‑‑

‑‑‑‑Regln. 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Regln. 32 of Karachi Building Town Planning Regulations, 1979 had provided for access or a right of way from the street of specified width which was open to sky for an approach to a building at the rear and not abutting on a street‑‑‑Same was only applicable where the building did not abut on a street‑‑‑Said Regln. would hardly be relevant where there was no rear building‑‑‑Said Regln. was not applicable in the present case as plot in question was a corner plot abutting two streets.

Abdul Razzak v. KBCA PLD 1994 SC 512; Continental (Pvt.) Ltd. 1996 CLC 417 and Ali Asghar and another v. The Creator Builders 2001 SCMR 279 ref.

(d) Karachi Building Town Planning Regulations, 1979‑‑‑

‑‑‑‑Reglns. 29 & 32‑‑‑Cohstitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Obtaining No‑Objection Certificates from Agencies/Authorities‑‑ Necessity‑‑‑Obtaining No‑Objection Certificate by agencies/Authorities supplying utility services was not mandated by Sind Buildings Control Ordinance, 1979 or Karachi Building Town Plaintiff Regulations.

Shehla Zia v. WAPDA PLD 1994 SC 693; Excell Builders Ardeshir Cowasjee 1999 SCMR 2089; Continental (Pvt.) Ltd. Government of Sindh 1996 CLC 417 and Abdul Razzak v. KBCA PK 1994 SC 512 ref.

(e) Karachi Building Town Planning Regulations, 1979‑‑‑

‑‑‑‑Reglns. 29 & 32‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Unless petitioners or objectors actually specified any violation of Sindh Buildings Control Ordinance, 1979 or Karachi Building Town Planning Regulations, 1979, no interference could be made by High Court in exercise of its Constitutional jurisdiction.

Multiline v. Ardeshir Cowasjee PLD 1995 SC 423 ref.

Muhammad Zahid Khan for Petitioner No.1.

Naim‑ur‑Rehman for Petitioner No.2.

Farogh Naseem for Respondents Nos.3 and 4.

2004 C L C 782

[Karachi]

Before Zia Perwaz, J

SIRAJ AHMED NOMANI‑‑‑Plaintiff

Versus

IFTIKHAR AHMED NOMANI and others‑‑‑Defendants

Suit No.595 of 1995, decided on 13th August, 2003.

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Benami transaction‑‑‑All title documents were in the name of plaintiff who had sought declaration to the effect that he was exclusive and independent owner of the suit house‑‑‑Claim of defendants (who were brothers and sisters of plaintiff) was that plaintiff was Benami owner of suit house‑‑‑Onus to prove that plaintiff was Benami owner of suit house lay on the defendants‑‑‑Party claiming a. transaction to be Benami transaction, had to show that the person in whose name a property stood, was not in a financial position to pay for the same‑‑‑Sufficient proof was supplied showing that amount spent on the construction of suit house had come from the pocket of the father of the plaintiff and defendants which had proved that real owner of suit house was father of the parties to suit and plaintiff was its Benamidar.

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

‑‑‑‑O.I, R.10‑‑‑Non‑joinder of party‑‑‑Non‑joinder of any party would be inconsequential when it had caused no prejudice to any party to suit.

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

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Liability of co‑owners to pay utility bills‑‑‑Plaintiff and defendants who were co‑owners of suit house and were living therein, were liable to pay utility bills in equal shares‑‑‑Both of them were liable to pay the utility bills accordingly for the past as well as for the future‑‑‑Payment of electricity, gas and telephone bills, based on actual consumption, however, were the responsibility of plaintiff alone as defendants were not availing said facilities.

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Question of limitation would not arise when plaintiff had asserted sole ownership of suit property while defendants who were brothers and sister of plaintiff and were living in suit property in a joint family had denied claim of plaintiff and had asserted that it was a joint property.

Ali Akbar and Anwar Hussain for Plaintiff.

Abdul Rasheed Awan for Defendants.

Date of hearing; 13th May, 2003.

2004 C L C 830

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD IRFAN‑‑‑Petitioner

Versus

Mst. FATIMA SAEED and others‑‑‑Respondents

Constitutional Petition No.969 of 2002, decided on 7th February, 2003.

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

‑‑‑‑Ss. 15, 19 & 22‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Default in payment of rent by tenant and bona fide personal need of landlady ‑‑‑Ejectment proceedings‑‑‑Closing side of tenant‑‑‑Application for re‑opening the same‑‑‑Son and attorney of landlady filed his affidavit‑in‑evidence and his evidence remained unrebutted as according to Rent Controller tenant had failed to cross­ examine attorney of landlady‑‑‑Tenant had alleged that no proper opportunity was provided to him either to cross‑examine attorney of landlady or to adduce his own evidence in rebuttal ‑‑‑Ejectment of tenant was ordered on both grounds of default in payment of rent and personal bona fide need of landlady, concurrently by Rent Controller and the Appellate Court‑‑‑Application for re‑opening side of tenant and grant of permission to cross‑examine attorney of landlady, was rejected by Rent Controller on the ground that same was filed beyond time, though no such time was provided under any provisions of Limitation Act, 1908 or any other law for the time being in force‑‑‑Order for closing side of tenant and further refusing to recall attorney of landlady and to allow tenant to cross‑examine the said witness, were not justified as reasonable opportunity was not provided to tenant by Rent Controller to put up his case by cross‑examining the attorney of landlady and thereafter filing his evidence in rebuttal‑‑‑Rent Controller had failed to exercise jurisdiction vested in him on flimsy ground which had no legs to stand as no time limit was provided for filing application for re‑opening the side of tenant‑‑‑Right of parties should not be allowed to be jeopardized in such manner‑‑‑Courts were not expected to thwart the rights of litigants as main object of procedure in any system of administration of justice was to help and not to thwart the grant of rights to the people‑‑‑High Court allowing Constitutional petition, set aside concurrent orders of Rent Controller and Appellate Court and remanded case to decide afresh after providing opportunity to tenant to cross‑examine landlady and her witness.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

Anwar Hussain for Petitioner.

Muhammad Shafiq Mughal for Respondent No.1.

Dates of hearing: 13th and 20th January, 2003.

2004 C L C 842

[Karachi]

Before Muhammad Roshan Essani and Gulzar Ahmed, JJ

Malik MUHAMMAD TAJ and another‑‑‑Petitioners

Versus

SHABBIR BADSHAH and 7 others‑‑‑Respondents

Constitutional Petition No.D‑152 of 2003, decided on 22nd October, 2003.

Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 152‑‑‑Election Commission of Pakistan, Notification No.F.I(7)./2002‑Law, dated 6‑3‑2002‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Election‑‑‑Qualification of Nazim‑‑­Disqualification of returned candidate‑‑‑Member, Election Commission, jurisdiction of‑‑‑No objection was raised at, the time of filing of nomination papers but after the candidate was elected as Nazim, two applications were filed one before the Chief Election Commissioner and the other before .the Member, Election Commission‑‑‑Prior to decision of Chief Election Commission, the Member declared the returned candidate as disqualified being not Matriculate‑‑‑Plea raised by the returned candidate was that the member did not have jurisdiction to declare him disqualified‑‑‑Validity‑‑‑Member, Election Commission could validly exercise the powers within his jurisdiction, which were conferred upon Chief Election Commissioner‑‑‑Jurisdiction of the Member was not challenged by any party to proceedings when the matter was heard and the order was passed‑‑‑Member summoned the original record relating to testimonials of the returned candidate from the concerned authorities and in presence of his counsel the record was examined and it transpired that the testimonial produced and relied by the returned candidate was fake and forged document‑‑‑Invalidity of the testimonial was not even questioned by the counsel of the returned candidate‑‑‑Neither the counsel of the returned candidate disputed nor requested the Member, Election Commission for examining or cross ­examining any person on the point in issue, on the contrary, the counsel of the returned candidate conceded to the fakery of the testimonial and expressed that he had no arguments to advance in view of the report of the concerned authorities‑‑‑Order of disqualification passed by the Member, Election Commission did not suffer from any material illegality, infirmity or jurisdictional defect‑‑‑No factual controversy was involved in the matter for which Election Tribunal should be directed to adjudicate the matter after recording of evidence‑‑‑Constitutional petition was dismissed in circumstances.

Ali Asghar v. Muhammad Sharif 1986 MLD 2048; Hakeem v. The State PLD 1963 (W.P.) Kar 63. and Syed Shah Jehan v. Arshad Hussain PLD 2003 Pesh. 20 distinguished.

G.M. Qureshi and Ms. Noor Naz Agha for Petitioners.

Masooda Qureshi for Respondent No.1.

2004 C L C 856

[Karachi]

Before Shabbir Ahmed, J

GHULAM RASOOL‑‑‑Decree‑holder

Versus

ABDUL RASHEED and others‑‑‑Judgment‑debtor, Execution Application No.95 and C.M.A. No.2888 of 2002, decided on 25th August, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 47 & O.XXI, Rr.23‑A, 58‑‑‑Execution of decree‑‑‑Application for restoration of possession‑‑‑Possession was handed over to decree‑holder, in pursuance of execution of decree‑‑‑One of the judgment‑debtors filed an application for restoration of possession with the plea that he was in possession of the plot in dispute when its possession was taken from him‑‑‑Official Assignee after examining bailiff and considering affidavits of bailiff and parties, submitted detailed report wherein he stated that possession of property, restoration of which was sought by one of judgment debtor, was handed over to the decree‑holder by bailiff‑‑‑Plea of applicant/judgment‑debtor was not tenable, in circumstances and possession could not be restored‑‑‑Said judgment­ debtor was prosecuting his own suit before District Court for specific performance of contract; unless his right was matured its possession could not be restored.

Nisar A. Mujahid for Decree‑holder.

Muhammad Anwar Tariq for Applicant.

Mukhtiar Ahmed Mughal for Judgment‑debtor.

2004 C L C 866

[Karachi]

Before Ghulam Nabi Soomro, J

FARHATEEN HAMEED In re:‑‑‑Petitioner

C.M.A. No.1817 of 2003 in S.M.A. No.302 of 1998, decided on 10th March, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 12(2)‑‑‑Succession Act (XXXIX of 1925), S.278‑‑‑Grant of Letter of Administration‑‑‑Objection to‑‑‑Conduct of Advocate‑‑‑Letter of Administration of immovable property belonging to deceased was granted to successors of property owned by the deceased‑‑‑Objection application under S.12(2), C.P.C. was filed after more than four years of passing of impugned order‑‑‑Said objection application was filed by Advocate of objectors with the sole purpose of recovery of his professional fee from objectors‑‑‑Course adopted by the Advocate for recovery of his fee from his client was improper and not warranted under law‑‑‑Advocate seemed to have travelled beyond professional etiquette and conduct, which an Advocate was expected to maintain under Bar Councils Act, Rules and Code of Conduct‑‑‑Advocate could be questioned by relevant Authority about his such conduct which could not be endorsed‑‑‑Objection application filed under S.12(2), C.P.C. was dismissed with costs being not maintainable and amount of costs were to be paid by the Advocate.

Nisar A. Mujahid for Petitioner.

Sarfraz Ahmed Khan, Advocate.

2004 C L C 867

[Karachi]

Before Zahid Kurban Alvi and Maqbool Baqar, JJ

Syed ALI MURAD SHAH and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitution Petition No. D‑665 of 2003, decided on 31st October, 2003.

(a) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑--

‑‑‑‑Preamble‑‑‑Local Government system‑‑‑Concept‑‑‑Local Government system envisages participation of local population in Local Government and it is with the same spirit that the present system of Local Government has been evolved, as codified by Sindh Local Government Ordinance, 2001.

(b) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑--

‑‑‑‑S. 148‑‑‑Local Bodies elections‑‑‑Procedure‑‑‑Electoral college, constitution of‑‑‑Elections of members of Union Council including Union Nazim and Naib‑Nazim are based on adult franchise and through separate electorate ‑‑‑Zila Nazim, Naib Zila Nazim and the Council members for reserved seats of women, peasants, workers and minorities in Zila Council are to be elected through electoral college, constituted of all the members of Union Councils in the District, including Union Nazim and Naib Union Nazim‑‑‑Electoral college for elections of Taluka Nazim, Town Nazim, Taluka Naib‑Nazim and Town Naib‑Nazim and reserved seats of women, peasants, workers and minorities in Taluka Council and Town Councils are required to be elected through an electoral college constituted of all the members of the Union Council in Taluka or as the case may be, town including Union Nazim and Naib Union Nazim.

(c) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑--

‑‑‑‑S. 156(3)(a)‑‑‑Local Bodies bye‑elections‑‑‑Limitation‑‑‑. Computation‑‑‑Period of one year for bye‑elections under S.156(3)(a) of Sindh Local Government Ordinance, 2001, has to be computed from the date of assumption of the office of the Council ‑‑‑In the year in which general elections are to be held bye‑elections may be held within 18 months.

(d) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 156‑‑‑Local Council vacant seats, election to‑‑‑Principle‑‑‑Vacant seat of a member of Council is to be filled up through bye‑elections, essentially within a period of one year‑‑‑Such period of one year may be extended to 18 months, in the event only, where general elections are to be held during the relevant year‑‑‑Election for vacant seats of a Council can be delayed for a period up to 18 months and that too upon a contingency, otherwise a vacant seat is to be filled up through bye‑election within a period of one year from the date it falls vacant.

(e) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑--

‑‑‑‑S. 156(4)(5)‑‑‑Expression "as far as practicable"‑‑‑Applicability‑‑­Insertion of the expression "as far as practicable" in S.156(4)(5) of Sindh Local Government Ordinance, 2001, shows that the adherence to such time frame for bye‑elections of the post of Nazim and Naib‑Nazim, is not mandatory and same has to be implemented, so far as it is practicable.

(f) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑--

‑‑‑---------Ss. 148 & 156‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Local Bodies, bye‑elections ‑‑‑Delay‑‑­Preparation of electoral rolls‑‑‑Holding of election of Naib Zila Nazim without first filling up the vacant seats of electoral college‑‑‑Petitioners being registered voters of different Union Councils had assailed the act of Provincial Government, whereby the bye‑elections of vacant seats of electoral college were not held within the due time‑‑‑Grievance of the petitioners was that holding of election of Naib. Zila Nazim without first filling up the vacant seats of electoral college was illegal‑‑‑Plea raised by the Government was that the delay had been caused due to the step being taken for the preparation of electoral rolls on separate electoral basis‑‑‑Validity‑‑‑Such explanation of the Government did not justify delaying of elections for seats of the Union Councils as the same was in violation of the mandate of S.156 of Sindh Local Government Ordinance, 2001‑‑‑Holding of election of Naib Zila Nazim without first filling up the vacant seats of electoral college, as required by law, would result in disenfranchisement of a large population/voters of the District and the same would negate the concept of Local governance‑‑‑High Court directed the authorities to immediately commence the process of election in respect of the seats lying vacant in various Councils and thereafter, proceed to hold the elections for the office of Naib Zila Nazim.

Irfan Akhtar Shah v. Election Tribunal District Shahpur PLD 1961 (W.P.) Lah. 189; Lt.‑Col. Farzand Ali and others v. Province of West Pakistan through the Secretary Department of Agriculture Government of West Pakistan, Lahore PLD 1970 SC 98; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge and Returning Officer, Sindh and 13 others PLD 1994 Kar. 1; Kartar Singh Sadda Singh and another v. The State of Patiala and East Punjab States Union and others AIR (38) 1951 Pepsu 141 C.N. 55; Bibi Supply Co. v. Union of India and others (1956) SC 479 (S) AIR V 43 C 83 (June) and Haji Rehan‑ud‑Din v. Farooq A. Sheikh and others PLD 1961 (W.P.) Lah. 719 ref.

(g) Words and phrases‑‑‑

‑‑‑"Electoral college" ‑‑‑Meaning.

Black's Law Dictionary ref.

(h) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑Ss 148 & 156‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑ Constitutional petition‑‑‑Maintainability‑‑‑Locus standi‑‑‑Aggrieved person‑‑‑Petitioners being registered voters of different Union Councils had assailed the act of Provincial Government, whereby the bye‑elections of vacant seat of Naib Zila Nazim were to be held without first filling up the vacant seats of electoral college‑‑‑Plea raised by the Government was that the petitioners were not the aggrieved persons within the definition of Art. 199 of the Constitution‑‑‑Validity‑‑‑Petitioners were registered voters of District and their fundamental right to elect their chosen representatives to an important office of their Local Government was being affected through the proposed elections‑‑‑Petitioners were justly concerned with and had every right to challenge the 'bye‑election‑‑­Constitutional petition was maintainable in circumstances.

Imdad Ali Awan, Shaukat Ayaz Awan and Asif Kamal for Petitioners.

Abdul Fattah Malik, Dy.A.‑G.

G.D. Shabahni, Addl. A.‑G.

Abdul Qayoom Shaikh, Advocate.

Date of hearing; 22nd October, 2003.

2004 C L C 979

[Karachi]

Before S.A. Rabbani, J

Mst. YASMEEN --- Applicant

Versus

NATIONAL INSURANCE CORPORATION and others---Respondents

Civil Revision Application No.22 of 2000, decided on 30th May, 2001.

Civil Procedure Code (V of 1908)---

----S. 47 & O.XXI, Rr.10 & 24---Execution of decree---Powers of Executing Court---Where decree had become final; Executing Court would have no option but to execute same as it was passed---Executing Court could not go behind the-decree sought to be executed---Executing Court had no jurisdiction to re determine the liability of any party or reconsider the law for that purpose.

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

Nasir Maqsood for Applicant.

Siddiq Mirza and Abdur Rauf Khan for Respondents.

Date of hearing: 18th May, 2001.

2004 C L C 990

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

KARACHI WATCH AND CARE SOCIETY---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY, and others---Respondents

Constitution Petition No. 1864 of 2001, decided on 27th February, 2003.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1, 2, 3, 4 & S.151---Constitution of Pakistan (1973), Art.204---Grant of interim order---Violation---Contempt application--­Respondent/Contemner against whom interim order restraining him from raising further construction was issued, had admitted allegation of defiance of Court orders, but had contended that he violated the order of the Court under public pressure---Validity---In every Civilized Society an individual was required to act within limitation of law and no high­handedness could be allowed in the name of public pressure--­Respondent, who admitted defiance of Court order, did not deserve any leniency and he -was ordered to be detained in prison for a period of three months.

Abdul Jabbar Korai for Petitioner.

Abdul Karim Khan for Respondents.

Mirza Sarfraz Ahmad, Shahid Jamiluddin Khan and S. Anwar Ali Shah for Respondents.

2004 C L C 1000

[Karachi]

Before Gulzar Ahmed, J

MUHAMMAD AMIN MUHAMMAD BASHIR LTD.---Plaintiff

Versus

FEDERATION OF PAKISTAN and others---Defendants

Suit No.582 of 1986, decided on 6th January, 2004

Civil Procedure Cods (V of 1908)---

----S. 11 & O. VII, R. 2---Constitution of Pakistan (1973), Art. 199--­ Suit for recovery of amount ---Resjudicata, principles of ---Applicability--­ Plaintiff though in substance wanted implementation of judgment passed earlier in Constitutional petition, but in his suit he had reopened all issues which stood already adjudicated and determined by said judgment­ --Such course of action adopted by plaintiff was not permissible in law and was barred by principles of resjudicata--Plaint showed that main purpose of suit was to obtain implementation of judgment earlier passed in Constitutional petition as all rights and obligations of parties stood adjudicated and determined by said judgment and except its implementation, nothing remained to be decided between the parties--­Even if anything did remain to be decided, it would not be possible to decide the same as it would be barred by principles of constructive resjudicata---Constitution , had itself provided for various modes far obtaining implementation of judgment passed under Art.199 of the Constitution---Court which passed judgment or order, was also competent to implement/execute the same---Suit filed by plaintiff was barred by principles of resjudicata because of the existence of judgment earlier passed by High Court in Constitutional petition in which all matters and question raised in suit, had, already been adjudicated and, determined between the parties in said petition.

Al-Samraiz Enterprise v. Federation of Pakistan 1986 SCMR 1917; Muhammad Hussain v. Muhammad 2000 SCMR 367; Associate Food Industry Ltd. v. Pakistan 1985 SCMR 1753; Associated Trading Co. Ltd. v. Central Board of Revenue PLD 1987 Kar: 63; Pir Shah Mardan Shah v. Chief Land Commissioner PLD 1974..Kar. 375; Idrees Ahmad v. Hafiz Fida Ahmad Khan PLJ 1985 SC 512; Hussain Bakhsh v. Settlement Commissioner PLD 1969 Lah. 1039; Shafi and 4 others v. Munshi and 2 others PLD 1973 Note 66 at.p.89; Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208; Abdul Wadood v. Chief Law Commissioner 1983 PSC 5370; PLD 1959 SC 54; Muhammad Anwar v. Mst. Nawab Bibi 1989 SCMR 836; Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 46; Abdul Majid v. Abdul Ghafoor Khan PLD 1.982 SC 146; Muhammad Chiragh-ud-din Bhatti v. The Province of West Pakistan 1971 SCMR 447 and Mehdi Hassan v. Zulfiqar Ali PLD 1960 Lah. 751 ref.

Abdul Rauf for Plaintiff.

Defendants Nos.1 to 3: Absent

I.H. Zaidi for Defendant No.4

Date of hearing; 12th November, 2003.

2004 C L C 1029

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

ARIF MAJEED MALIK and others---Appellants

Versus

BOARD OF GOVERNORS KARACHI, GRAMMER SCHOOL---Respondent

H. C. A. No. 1 of 2003, decided on 4th September, 2003.

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

----O. VII, R. 11---Rejection of plaint---Documents---Reliance---Only contents of plaint have to be looked into for the purpose of rejecting plaint under O.VII, R.11 C.P.C.---Even undisputed document placed on record can also be looked into for rejecting a plaint.

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

----S. 42---Term, status'---Import, object and scope---Divergent views of Superior Courts---Reason---Grant of relief under S.42 of Specific Relief Act, 1877---Power of Courts---One reason for the divergence of judicial opinion is that when Specific Relief Act, 1877, was enacted, concept of rights which could be enforced through Courts was largely confined tostatus' as understood in feudal social context or rights pertaining to property in laissez-faire economy---With the development of jurisprudence over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights---Right of privacy, to carry on business of one's choice, access to public information and large body of social and cultural rights neither relate to status in the traditional sense nor tangible property- --Principle, "wherever there is a right there must be a remedy to enforce it", persuaded Courts not to remain bound within the technicalities of S.42 of Specific Relief Act, 1877, for granting relief.

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

----S. 42---Constitution of Pakistan (1973), Arts.4 & 5---Enforcing of rights---Provisions. of S.42 of Specific Relief Act, 1877---Applicability--­Constitution under its Art.4, guarantees to every citizen inalienable right to be treated in accordance with law---Such guarantee which has been often described as embodying the right of law does not operate merely against the instrumentalities of the State---Obedience to law has been stipulated under Art.5 of the Constitution as the inviolable obligations of every citizen---Anomalous to suggest that a victim of illegal action has to go without redress because sub-Constitutional legislation does not lay down the mode for enforcing his rights---Provisions of S.42 of Specific Relief Act, 1877, for such reasons, are not exhaustive.

Burma Eastern Limited v. Burma Eastern Employees Union PLD 1967 Dacca 190; Alavi Sons Ltd. v. The Government of East Pakistan PLD 1968 Kar. 222; Abdur Rahman Mobashir v. Amir Ali Shah Bokhari PLD 1978 Lah. 113; Vemareddi Ramaraaghava Reddy v. Konduru Seshu Reddy AIR 1967 SC 436 S.G. Films Exchange v. Brijnath Singhji AIR 1975 SC 1810 and H.A. Rahim & Sons (Pvt.) Ltd. v. Province of Sindh 2003 CLC 649 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---"Public interest" ---Private schools---Status---Though no amount of Government appears to be involved in a school being run by any private organization but such organization by its very nature performs functions of great concern to the public---Public interest involved in its working is far more than that in a joint stock company whose directors have been held to be holders of public offices for the purposes of Art. 199 of the Constitution.

Maqbool Illahi v. Khan Abdul Rehman PLD 1960 SC 266 and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

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

----Ss. 3 & 54---Perpetual injunction, grant of---Enforcing such injunction against private school---Scope---Even when a private school is not a department of Government or an institution substantially owned and managed by it, an element of public duty to impart proper education to students who fulfill the fee requirement and agree to abide by disciplinary and other regulations, is always, present---Such public powers must be exercised fairly and honestly irrespective of any strict legal right existing in favour of the students---Such duty amounts to an obligation in terms of S.3 of Specific Relief Act, 1877, and the same can always be enforced through a perpetual injunction under S.54 of Specific Relief Act, 1877.

Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 ref.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11--­Rejection of plaint---Expelling student from private school---Children of plaintiffs were studying in the school being run by defendants---On a dispute with the parents, the defendants struck off the names of the children from roll of the school---Trial Court rejected the plaint under O.VII, R.11, C.P.C. on the ground that the plaintiffs were not entitled to a declaration---Validity---Removal of children from the school was effected not in exercise of absolute discretion vesting in the defendants but on account of certain specific allegations which created a permanent stigma which could also affect the prospects of their admission in any other school---Even if the plaintiffs were not entitled to a declaration as to their entitlement it was possible for the Court to grant permanent injunction preventing the defendants from violating their obligations ordained by law---If the plaintiffs were found not entitled' to a declaration and injunction in terms of S.42 of Specific Relief Act, 1877, the Court could still examine whether relief by way of cancellation of the order passed by the defendants could be granted under S.39 of Specific Relief Act, 1877---Order passed by the Trial Court was set aside and the case was remanded to Trial Court for decision on merits---Appeal was allowed accordingly.

Arshan Bi v. Maula Bakhsh 2003 SCMR 318; Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad PLD 1965 Lah. 92; Abbas Khaleeli v. Saifuddin Valika PLD 1969 Kar. 692 and Muhammad Siddiq Javaid v. Government of West Pakistan PLD 1974 SC 393 ref.

Iqbal Kazi for Appellants.

K.B. Bhutto for Respondent.

Date of hearing: 4th September, 2003.

2004 C L C 1041

[Karachi]

Before Amir Hani Muslim, J

WAPDA through Superintending Engineer LBOD Project, Sanghar and Nawabshah and others—Appellants

Versus

LAND ACQUISITION OFFICER, LBOD PROJECT, WAPDA SANGHAR NOW LAND ACQUISITION OFFICER, DEPUTY COMMISSIONER, NAWABSHAH and others---Respondents

First Appeals Nos. 15 to 17 of 2001 and 82 to 87 of 2002, decided on 6th October, 2003.

Land Acquisition Act (I of 1894)--

----Ss. 4, 6, 18, 48 & 54---Acquisition of land---Non-utilization of acquired land---Entitlement of landowners to compensation---Appeal against judgment of Referee Court---Appellant for whom lands in dispute were acquired, was put in possession of such lands against proper acknowledgment of possession---Contention of appellant was that it was liable to pay compensation amount only in respect of land which, was utilized by it and was not bound to pay compensation for land which though was notified in Notification, but was not used by it---Contention was repelled because once notification was issued and appellant was put in possession of notified lands and notification whereby lands were acquired, was in field, appellant could not deny or refuse compensation amount to different landowners who were dispossessed pursuant to notification competently issued by Land Acquisition Officer---Appellant could not take shelter under the garb that it had not utilized portion of acquired lands, when appellant had not resorted to provisions of S.48 of Land Acquisition Act, 1894 requesting the Government for de notifying such un-utilized land---Once landowners were deprived of their lands, they were entitled to compensation in terms of Notification on basis of which award had been made---Order passed by Referee Court, being lawful, would not warrant interference in appeal---Appeals filed by appellant, were dismissed, in circumstances.

Muhammad Idrees Naqashbandi for Appellants.

Masood Noorani, Addl. A.-G. for Respondent.

Basharat Ahmed Jatt for private Respondent.

Date of hearing: 3rd October, 2003.

2004 C L C 1128

[Karachi]

Before Khilji Arif Hussain, J

SHAHEEN NIAZI MALIK ---Applicant

Versus

MUMTAZ NIAZI and others---Respondents

Judicial Miscellaneous No.2 of 2003, decided on 26th May, 2003.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Limitation Act (IX of 1908), Art. 181--- Application for setting aside decree on allegation of fraud and misrepresentation--­Limitation ---Application under S.12(2), C.P.C. could be filed within three years from the date of judgment and decree passed by the Court and/or from the date when fraud came to the knowledge of applicant--­Applicant in the present case was party to agreement arrived at between parties- and relevant para. of said agreement had provided time for performance of the obligation under said para ---Applicant having himself failed, to take action and/or to question said para. within stipulated period of time, his, application was held, to be barred by time.

Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Sharif Ahmed Hashmi v. Chairman, Screening Committee 1978 SCMR 367; Yousuf Ali v. Muhammad Aslam Zia PLD 158 SC (Pak.) 104; Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 and Muhammad Ismail v. Abdul Rashid and another 1983 SCMR 168 ref.

Farrukh Zia Shaikh for Applicant.

Abid S. Zuberi for Respondents.

2004 C L C 1152

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Shaikh MUNEER FATEH‑ Appellant

Versus

Mst. ANEESA AZHAR and others‑‑‑Respondents

H. C. A. No. 248 of 1999, heard on 11th September, 2003.

Specific Relief Act (I of 1877)‑‑‑

.

‑‑‑‑Ss. 8, 12, 42 & 54‑‑‑Adverse possession‑‑‑Suit for possession, specific performance, declaration, permanent injunction etc.‑‑‑Plea of adverse possession being against injunctions of Islam,, said plea was no more available to the plaintiff‑‑‑Even otherwise co‑sharer could not raise plea of adverse possession against other co‑sharer because each co ­sharer, even though not physically in possession of the property in which he had a share to any extent, could be deemed to be in possession of property as in that case a co‑sharer was presumed to be having possession in every inch of the property jointly owned by him with other co‑sharers.

Muhammad Tasnim for Appellant.

Ms. Rizwana Ismail and Khurshid Jawaid for Respondents.

Date of hearing: 11th September, 2003.

2004 C L C 1276

[Karachi]

Before Muhammad Moosa K. Leghari, J

Messrs ZAY SQUARE GARMENTS INDUSTRIES and others‑‑‑Plaintiffs

Versus

Messrs SINDH INDUSTRIAL TRADING ESTATES LTD. ‑‑‑Defendants

Suit No.380 of 2000, decided on 6th May, 2004.

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

‑‑‑‑Ss. 12 & 42‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑‑Registration Act (XVI of 1908), Ss.17 & 49‑‑‑Transferring interest in immovable property‑‑‑Suit for specific performance and for declaration‑‑‑Two provisions of law standing in the way of transfer of interest in immovable property in favour of a party, were contained in S.49 of Registration Act, 1908 and S.107 of Transfer of Property Act, 1882‑‑‑Section 49 of Registration Act, 1908, provided that no document which was required by S.17 of said Act to be registered and had not been registered, could either create a right in immovable property or be received as, evidence of such right while under S.107 of Transfer of Property Act, 1882, a lease for period of more than one year could not be created except by a registered instrument and a lease even for a period of one year could be created only by registered instrument or by an oral agreement coupled with delivery of possession‑‑‑Document upon which plaintiffs were relying, was badly hit by both said provisions of law‑‑‑According to S.17 of Registration Act, 1908, a document evidencing a lease for more than one year was compulsorily registerable‑‑‑Possession of property, in the present case, having never been delivered to plaintiff, same could not be deemed to be a lease and specific performance thereof was not warranted by law‑‑‑Document which was subject‑matter of suit, was merely a. licence which was revocable‑‑‑Prayer for grant of specific performance was thus without merit. and was declined in circumstances‑‑‑Fact, of the matter was that neither licence granted to plaintiff was revoked nor amount deposited by plaintiffs was returned by defendant‑‑‑Nothing was on record to demonstrate that defendant had shown his willingness to return amount of premium to plaintiffs and defendant unjustifiably appropriated said amount to his own use without any valid reason‑‑‑Defendant undoubtedly rendered himself liable to pay compensation to plaintiffs‑‑‑Suit was decreed to the extent of amount paid by plaintiffs to defendant with profit at the rate of 10% per annum from date of deposit of said amount with defendant till realization of said amount.

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

‑‑‑‑S. 105‑‑‑Lease‑‑‑Lease was transfer of an interest in immovable property‑‑‑Ownership of physical property consisted of a number of rights and the owner of such property when created a lease, would transfer to the lessee a part of the right of ownership i.e. the right of enjoyment of property, for a certain period for consideration.

Munir‑ur‑Rehman and Mustafa Hussain for Plaintiffs.

S.A. Samad Khan for Defendants.

Date of hearing: 15th April, 2004.

2004 C L C 1287

[Karachi]

Before Amir Hani Muslim, J

SHARIFUDDIN‑‑‑Appellant

Versus

BHAWANMAL and 3 others‑‑‑Respondents

R. As. Nos. 12 and 13 of 1997, decided on 6th October, 2003.

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

‑‑‑‑Ss. 121 & 122‑‑‑Establishment of the Office of Ombudsman for the Province of Sindh Ordinance (IX of 1991), Ss.2(2) & 9‑‑‑Renting out or transferring properties of Municipality without permission of Competent Authority‑‑‑Function of Public Authorities‑‑‑Deceased respondent had been shown to be a permanent tenant of Municipality concerned in respect of plot which in fact was portion of footpath‑‑‑Petitioner on the other hand claimed to have possessory rights on the portion of said footpath and had sought direction against Municipality to rent out said portion to him‑‑‑Record had shown that no permission from Competent Authority had been sought while alienating Municipal assets/properties resulting huge monetary losses to Municipality‑‑‑Footpaths, streets and roads could neither be rented out nor could be allowed to be encroached upon being unalienable civic amenities which were meant and reserved for public‑‑‑Residents of town, could not be deprived of their basic rights to walk on the footpaths nor smooth flow of traffic could be hampered under the garb of allowing any individual to encroach upon civic amenity either on rent or otherwise‑‑‑All such acts of Municipal officers were illegal and violative of provisions of Sindh Local Government Ordinance, 1979, besides the relevant provisions of Municipal Laws‑‑­Such acts of Municipal Officers would fall within mischief of a maladministration ‑‑‑Both private parties in case had no legal right to claim any right and or seek any relief through proceedings of which instant revisions were offshoot‑‑‑Revision filed by parties stood dismissed with observation that even respondent had no legal right to file suit claiming to be permanent tenant of a portion of footpath which he had sublet‑‑‑Properties of Municipality could not be allowed to be sublet unless a lease containing such a clause was incorporated which was not the case in instant proceedings‑‑­Office was directed to immediately refer the matter to Ombudsman under S.9 of Establishment of Office of Ombudsman for Province of Sindh Ordinance, 1991 to investigate actions of officers of Municipal Committee concerned in regard to leasing out or renting out footpaths, streets etc. to individuals unauthorizedly.

Haresh Dewan for Applicant.

Agha Kausar Hussain for Respondent.

Masood Noorani, Addl. A.‑G, for Respondent.

Date of hearing: 6th October, 2003.

2004 C L C 1294

[Karachi]

Before Muhammad Ashraf Leghari, J

Mst. MUMTAZ JEHAN and 5 others‑‑‑Applicants

Versus

GOVERNMENT OFF SINDH through Settlement Commissions, Pakistan Secretariat, Karachi and 10 others‑‑‑Respondents

Revision Application No. 115 of 1998, decided on 10th November, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and injunction‑‑‑Suit house which was in joint possession of all four brothers/plaintiffs, was transferred in the name of one of four brothers by issuing him P.T.O. in 1960 and after payment of price of said house, P.T.D. was issued in favour of transferee‑‑‑Plaintiffs were in possession of suit house for the last 55 years and had occupancy rights‑‑‑After permanent transfer of house to plaintiffs, same was not available for auction to defendant‑‑‑Suit which was well within time and was filed by plaintiffs after exhausting their remedies, before other forums, had rightly been decreed by Appellate Court after discussing all points elaborately‑‑‑Judgment of Appellate Court, being sound and well‑founded, could not be interfered in revision petition.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC .153; Muhammad lqbal and others v. Shah Muhammad and others 1985 SCMR 789; Sadiq Hussain and others v. Ghulam Rasool 1986 SCMR 322; Allahyar Khan v. Mst. Sardar Bibi and others 1986 SCMR 1957; 1988 SCMR 1526; Muhammad Rafiq and others v. Barkat Ali 1988 SCMR 1526; Province of Balochistan v. Messrs Tribal Friends Company Loralai, Civil Revision No.252 of 1977 and Province of Balochistan v. Messrs Tribal Friends Company, Loralai 1986 PLD Quetta 321 ref.

Qazi Munawar Ali for Applicants.

Hamid Hussain for. Respondents.

Rasheed A. Qureshi, Asstt. A.‑G. for Respondents Nos. 1 and 2.

Date of hearing: 24th October, 2003.

2004 C L C 1326

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD IKRAM and another‑‑‑Petitioners

Versus

RENT CONTROLLER‑‑‑Respondent

Constitutional Petition No.S‑302 of 2003, decided on 6th November, 2003.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Statement of landlord on oath if found consistent with the averments made in the ejectment application in respect of personal bona fide requirement which neither had been shaken nor satisfactorily contradicted, had to be accepted‑‑‑Personal requirement of landlord in the present case having been proved to be in good faith, it could not be said that landlord was requiring shop in question mala fide.

Akhtar Qureshi v. Nisar Ahmed 2000 SCMR 1292; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398 and Muhammad Aslam and others v. Haneef Abdullah and Brothers 2003 SCMR 1667 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional jurisdiction could not be exercised to protect wrong doers‑‑­Discretionary jurisdiction of High Court of Art. 199 of the Constitution, was meant to rectify the illegalities and to curb mischief in order to do justice‑‑‑Constitutional jurisdiction neither could be allowed to be used as a cloak to perpetuate injustice nor could High Court be rendered as an instrument of oppression.

Rafique Ahmed for Petitioners.

Mirza Hyder Abbas for Respondent No.3.

Date of hearing: 6th November, 2003.

2004 C L C 1353

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

ARDESHIR COWASJEE and 11 others---Petitioners

versus

SINDH PROVINCE and others---Respondents

Constitutional Petition No.D-856 of 2002, decided on 14th October, 2003.

(a) Administration of justice---

---- Courts would not normally pronounce' upon purely academic controversies.

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

----Art. 199---Constitutional petition---Maintainability---Locus standi--­Even if petition on behalf of some of petitioners would be found to be not maintainable, locus standi of others could not be questioned.

Said Ahmed Khan's case PLD 1974 SC 151ref.

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

----Art.199---Constitutional petition ---Vires of law---Aggrieved person--­Locus standi---High Court could only entertain Constitutional petition moved by aggrieved person---Expression "aggrieved person" would not confine to a person having strict legal right, but would extend to any person having a legitimate interest in performance of a public duty, particularly in cases relating to high rise buildings and protection of environment---Every resident of an area or even that of a town, had locus standi to ensure that building laws were followed in construction of buildings ---Vires of law enabling regularization of buildings constructed in violation of the statute and Building Regulation, could be questioned by any citizen.

Aredeshir Cowakee v. Karachi Building Control Authority 1999 SCMR 2883 ref.

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

----Art. 128---Power of Governor to promulgate Ordinance---Governor was the sole Judge as to the existence of emergency for taking immediate action---Courts would not sit in judgment over .the wisdom of Legislature and while acting under Art. 128 of the Constitution, Governor would exercise Legislative and not merely executive powers ---Mala fides could not be attributed to Legislature.

Abdul Majid v. Province of Sindh PLD 1974 Kar. 417; Fauji Foundation v. Shamimur Rehman Alvi PLD 1983 SC 457; Ghulam Nab; v. Province of Sindh PLD 1999 Kar. 372 and Chaudhari Qasimuddin v. Province of Pakistan PLD 1957 Lah. 76 ref.

(e) Administration of justice---

---- Independence of judiciary is one of the most important pillars of Constitutional system of Pakistan.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCMR 1905; Haider Automobile v. Pakistan PLD 1969 SC 623; Zaman Cement Company v. Central Board of Revenue 2002 SCMR 312 and Army Welfare Sugar. Mills v. Federation of Pakistan 1992 SCMR 1652 ref.

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

----S. 5---Power to regularize buildings---Provisions of S.5 of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 had proceeded to confer power upon Karachi Building Control Authority to regularize certain buildings during a limited period and subject to certain conditions with retrospective effect---No question of past and closed transactions arose---Judicial power would not stand eroded by enactment of said provisions of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002---Approval of a building plan was not the function of Court, but was that of the Authority possessing required expertise and given powers under the law and all that said S.5 of .the Ordinance appeared to have done was to extend such powers in enabling Karachi Building Control Authority even to accord post facto approval to a building already constructed subject to certain conditions and limitations---Any regularization effected in violation of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, could always be subject to judicial review.

Al-Samrez's case 1986 SCMR 1917 and Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCMR 1905 ref.

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

----Arts. 9 & 14---Right to life and human dignity---Word 'life', meaning and scope---Articles 9 &. 14 of the Constitution had guaranteed the right to life and human dignity---Word `life' could not be confined to mere vegetable or animal existence, but it included the right to all amenities and facilities which a person born in a free country was entitled to enjoy with dignity---Right to life also included the right to live in a pollution free environment.

Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(h) Interpretation of Statutes---

---- Every effort should be made to save rather than to destroy a Legislative instrument and the doctrine of reading it down could also be resorted to for doing so.

(i) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition- --Public interest litigation--­Constitutional petition filed by petitioners belonged to area known as public interest litigation---Court, in such matters, would not pronounce upon respective rights and obligations of parties arrayed before it, but would examine the questions raised for a broader perspective of public interest---Courts were required to strike a delicate balance between various competing interests before pronouncing judgments.

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

----Arts. 8 & 25---Equal protection of law and equality of citizens--­Art.25 of the Constitution of Pakistan, did not require all laws to apply uniformally upon all persons---Classification was always permissible provided it was reasonable and bore a direct nexus with the objects of the Legislation---No law repugnant to Art.25 of the Constitution could be made by Legislature in view of Art.8 of the Constitution.

Shrin Munir v. Government of Punjab PLD 1990 SC 295; Government of Balochistan v. Azizullah Menton PLD 1993 SC 341 and Government of N. W. F.P. v. Muhammad Irshad PLD 1995 SC 281 ref.

(k) Interpretation of statutes-----

---- When a statute was shown to be discriminatory or repugnant to fundamental rights on face of it, same could be struck down straightaway; otherwise if it was merely capable of being applied in a discriminatory manner and an action taken thereunder could be questioned.

East and West steamship v. Pakistan PLD 1958 SC 41 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(l) Administration of justice---

---- Court of law, would not sit in judgment over the wisdom of the Legislature and a statute could not be declared ultra vires the Constitution as long as a rational basis for classification was shown.

Muhammad Salim v. Administrator K.M.C. 2000 SCMR 1748 ref.

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

----Art. 25---Equality of citizen---If a statute would purport to confer absolute unbridled powers upon the executive to pick and choose parties for the purpose of more beneficial or prejudicial treatment, it was liable to be struck down for being repugnant to Art.25 of the Constitution.

(n) Sind Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, (VIII of 2002)---

----S. 5---Object of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, was to protect a definite class of people and not to destroy Building Control Laws---Words "building constructed before commencement of this Ordinance" occurring in S.5 of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance 2002, must only be confined to those buildings which were fully completed on the date of commencement of said Ordinance and would not apply to any incomplete building or one in the process of construction.

Muhammad Salim v. Administrator Karachi Metropolitan Corporation 2000 SCMR 1748 ref.

(o) Public Functionaries---

---- Functions of---Even if an individual did not have an enforceable legal right that fact alone could not relieve any Functionary of the State from performing his obligations, honestly fairly and in public interest.

Shaukat Ali and others v. Government of Pakistan PLD 1997 SC 342 ref.

M. Naim-ur-Rehman and Qazi Faez Issa for Petitioners.

Anwar Mansoor Khan, A.-G. Sindh for Respondent No.1 alongwith Dr. Qazi Khalid Ali Addl. A.-G. Sindh.

Waqar Muhammad Khan Lodhi, Shahid Jamiluddin Khan and Anwar Ali Shah for Respondent No.2.

Manzoor Ahmed for Respondent No.3.

Abid S. Zuberi for Respondent No.4

Date of hearing: 28th August, 2003.

2004 C L C 1386

[Karachi]

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

MUHAMMAD USMAN RATHORE and hers --- Petitioners

versus

CITY NAZIM through Taluka Municipal Administration, Hyderabad --- Respondent

Constitutional Petition No.D-36 of 1992, decided on 2nd October, 2003.

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

----Ss. 53 & 70(f)---Sindh Local Councils (-Appeal) Rules, 1982, R.4(1)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Locus standi---Deprivation of civic amenities by Local Council (i.e. reducing width of public road from 65 feet 30 feet affecting flow of traffic)---Even stranger could challenge such deprivation before Appellate Tribunal or High Court in Constitutional jurisdiction.

Fazal Din v. Lahore Development Trust PLD 1969 SC 223 rel.

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

----Art. 199---Constitutional jurisdiction---Scope---Relief not prayed for in Constitutional petition---Effect---Defect in the form of prayer could not restrain High Court to mould relief according to circumstances of case---High Court in Constitutional jurisdiction could mould or alter relief according to circumstances, if justice of cause required so, though such relief had not been prayed for.

Abul A'ala Maudoodi v.. Government of West Pakistan PLD 1964 SC 673 rel.

Abdus Salam Qureshi for Petitioners. .

Naimatullah Soomro for Respondent.

Bahadur Ali Baloch for H.D.A. on Court notice.

Masood Noorani, Addl. A.-G. on Court notice.

Date of hearing: 2nd October, 2003.

2004 C L C 1407

[Karachi]

Before Sarmad Jalal Osmany, J

INTERNATIONAL MERCHANDISE (PRIVATE) LIMITED through Chief Executive---Plaintiff

versus

CHARLES ANTEBY and 3 others---Respondents

Suit No.478 of 2004, decided on 24th May, 2004.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for declaration permanent injunction---Grant of status 4uo---Amendment in plaint---Prima facie, some dispute regarding monetary matters between parties had arisen which had escalated into levelling of accusations against each other and exchange of threats--­Parties, in circumstances were ordered to maintain status quo till next date.

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

----O. VI, R.17---Plaint---Aritendment---Dispute between share-holders of company inter .se---Pakistani share-holders having claim against their foreign counterparts---Such share-holders were needed to be made plaintiffs in the case---Plaint was asked to be amended accordingly.

Nisar A. Mujahid for plaintiff.

2004 C L C 1427

[Karachi]

Before Khilji Arif Hussain, J

OFFICE INCHARGE, MARKET COMMITTEE and others---Applicants

versus

ARSALAH KHAN BROTHERS and others---Respondents

Judicial Miscellaneous Nos.54, 44, 45, 46 of 1999 and 906 of 1998, decided on 25th September, 2003.

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

----S. 79---Section 79, C.P.C.---Procedural section---Substantial compliance with requirement thereof could be termed as sufficient compliance.

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

----S. 79 & O. XXVII, R.3---Suit against public officer in his official title or designation---Maintainability---Only a person with legal entity' could sue or be sued---Official functionaries for not being legal entity or corporate sole could not sue or be sued---Suit against public officer in respect of act done by him in his official capacity could be filed, but same would not mean that one could sue such officer in his official name or just as if he was a corporate sole.

Mst. Afroz Jehan v. Mst. Noor Jehan and others 1988 CLC 1318; Province of Sindh through Secretary, Boards of Revenue, Hyderabad and another 1988 CLC 242; Province of Punjab through Collector, Multan and others v. Muhammad Rashid and others 1988 MILD 2560; N.H.M. Abdul Cader and others v. S.L. Ahmado Lebbe Marikar and others AIR 1936 PC 31; Central Government of Pakistan and another v. Suleman Khan and others PLD 1992 SC 590; East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663; Brig. Saadat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694; Pakistan through Secretary, Ministry of Works, Islamabad v. Mrs Khalid Nazir 1991 CLC 563; Pakistan v. Ghulam Moinuddin Ahmed PLD 1966 Dacca 570; M-,4hall-Ifflad Sharif v. Mahmood and another 1984 CLC 2380; Salima Begun and 4 others v. Mst. Sardaran Bibi and 4 others PLD 1995 SC 406; Syed Yasin Skaff Shah v. Secretary, Ministry of Health, Labour and . Social Welfare Government of Pakistan, Islamabad 1988 MLD 960; Forest Department and others v. Muhammad Jan Khan 1996 CLC 1190; Rehmat Ali v. Additional District Judge, Multan 1988 SO 261 and Forest Department and others v. Muhammad Jan Khan 1996 CLC 1190 ref.

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

----S. 12(2)---Power of Court while dealing with application under S.12(2), C.P.C.---Scope---Court cannot sit on order/judgment/decree as a Court of Appeal---Duty of Court is to see only, whether same has been obtained by misrepresentation or fraud.

Mst. Nasira Khatoon and another v. Mst. Aisha Bat and 12 others 2003 SCMR 1050 , ref.

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

----Ss. 12(2), 79, O.I, R.9 & O.XVII, R.3---Suit against official functionaries without joining necessary parties and concealing from Court proper parties---Court passed decree in suit believing that proper parties were before the Court---Application by defendants under S.12(2), C_P.C. for sating aside such decree---Validity---Suit as framed was not maintainable shall defendants were official functionaries---Suit could not be dismissed on such technical ground of non-joinder or mis-description of parties--Application was accepted with direction to plaintiff to file amended title by joining parties m view of requirement of S.79, C.P.C

Ch. Muhammad Rafique Rajwary, A.A.-G. for Applicants in Judicial Miscellaneous Nos.44 and 45 of 1999).

Abdul Ghafoor Mangi for Applicants (in Judicial Miscellaneous Nos.46 and 54 of 1999).

Muhammad Sharif Khan for Plaintiffs (in Judicial Miscellaneous Nos.45 and 54 of. 1996 and 44 and 46 of 1999).

Dates of hearing; 27th and 29th August. 2003.

2004 C L C 1459

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Mst. RAHAT BEGUM---Applicant

versus

Syed HASHMAT ALI SHAH through Legal Representatives and others---Respondents

R.A. No.57 of 1998, decided on 4th June, 2004.

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

----Ss. 54, 122 & 123---Execution of sale-deed, or gift-deed by a Pardanashin lady---If a sale-deed; gift-deed or any other document denuding herself of valuable properties was executed by a Pardanashin, illiterate or infirm lady and subsequently execution of document by a conscious and intelligent application of mind and after full comprehension of the facts, was denied by the executant, the burden was on the beneficiary to prove that no facts were concealed, entire facts were disclosed and made intelligible to such Pardanashin and illiterate lady and after disclosure of entire facts the document was executed with free-will of lady without any coercion or duress---Such was basically the question of fact and the cloak of protection round the Pardanashin and illiterate lady had been woven by the superior Courts entirely to protect their interest, looking to the social conditions prevailing in the Sub-continent

National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Mst. Farid-un-Nisa v. Mukhtar AIR 1925 PC 204; Sri Ram v. Nand Kishore AIR 1925 Lah. 196; Kamawati v. Digbtjai Singh AIR 1992 PC 14; Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC l; JannaE 8ihi v. Sikandar Ali PLD 1990 SC 642; Mst. Hafeeza Bibi v. Ali Hussain 1994 SCMR 1194 and Talib Bibi v. Maqsooda Bibi 1997 SCMR 459 ref.

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

----S. 42---Transfer of Property Act (IV of 1882), S.54---Suit for declaration---Execution of sale agreement---Mother of both plaintiff and defendant executed sale agreement in favour of defendant in presence of Stamp Vendor and her husband and sale-deed was executed in presence of Sub-Registrar and her husband ---Executant of sale agreement had never raised any objection to the execution of said document though she remained alive for a period of about one year after execution of said sale­deed---Signing of sale-deed by husband of executant, who was father of both plaintiff and defendant, had further indicated that executant of sale agreement/deed had assistance and advice of her husband---In the wake of husband of executant of agreement being attesting witness it could not be said that defendant got said document executed by misrepresentation fraud or concealment of facts ---Executant of document of sale­ agreement/deed remained alive for a period of about one and half month after death of her husband, but she never disclosed to her daughter/the plaintiff that sale-deed was got executed by defendant against her free­will or without disclosure of real facts to her---Two Courts below had rightly appreciated evidence on record and relevant law to which no exception could be taken---Concurrent judgments of Courts below not suffering from any illegality, could not be interfered with in revisional jurisdiction of High Court.

Jhamat Jethanand for Applicant.

Hassan Mehmood Baig for Respondent No. 1.

Date of hearing: 29th March, 2004.

2004 C L C 1476

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KARIM BUX---Applicant

versus

Mst. HIDAYAT through Legal Heirs and 2 others---Respondents

Revision Application No.37 of 1988, decided on 4th June, 2004.

Special Relief Act (I of 1877)---

----S. 27(b)---Protection of S.27(b) of Specific Relief Act, 1877---When available---Subsequent sale-deed executed in favour of defendant was, with prior notice- of.-sale agreement in favour of the plaintiff and, therefore, defendant and all other persons deriving, title or interest in the suit property, were not entitled to the protection contained in S.27(b) Special Relief Act, 1877.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Muhammad Bashir v. Chiraghuddin 2003 SCMR 774 and Muhammad Saleh v. Qamaruddin 2003 SCMR 1915 ref.

Jhamat Jethanand for Applicant.

Basharat Ahmed Jatt for Respondents..

Date of hearing: 16th April, 2004.

2004 C L C 1567

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jaffery, JJ

MAQBOOL COOPERATIVE HOUSING SOCIETY through Member of the Managing Committee---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller and others---Respondents

C.M.As. Nos.861, 3162, 5783 of 2003, 45, 46, 47 and 188 of 2004 in Constitution Petition No.D-1652 of 1998, decided on 3rd June, 2004.

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

----O. I, R.10---Decision in respect of the -building made against the builder shall be binding on the persons occupying the property through him and are not entitled to be impleaded as party.

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

----Art. 199---Constitutional petition---Question of fact cannot be decided in the proceedings under Art. 199 of the Constitution.

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

----O. I, R.10--Infervenors have no independent right to be impleaded as parties for contesting the issue pertaining to the authorized or unauthorized construction of the building when the Builder as well as Building Authority, who are the necessary and proper parties, are already before the Court.

(d) Precedent---

---- Judgment delivered by one Division Bench of the High Court has the binding effect on another Division Bench.

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

----S. 5---Scope and application of S.5, Sindh Regulation, and Control (Use of Plots and Construction of Buildings) Ordinance, 2002)--­Section 5 of the Ordinance speaks of the regularization of building constructed before the commencement of the said Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979---Said section 5 nowhere empowers the Building Authority or any Authority, to approve the regularization plan but it merely empowers the Authority appointed under the Sindh Buildings Control Ordinance. 1979, regularize the building already constructed---Terms "building" and "building plan" are not synonymous to each other and cannot be equated to each other---Approval of building plan is dealt with under the provisions of the Sindh Buildings Control Ordinance, 1979 and there is no provision in this behalf in the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002---Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 neither deals with the compounding of offence committed by contravening the relevant law nor envisages any process pertaining to the building plan, the approval thereof and the consequences of violation of the building plan---Such provisions are contained in Ss.6, 7 and 7-A of the Sindh Buildings Control Ordinance, 1979.

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

----S. 5---object, and scope of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings). Ordinance, 2002.

All that section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 appears to have done is to extend such powers enabling the Authority even to accord post facto approval to a building already constructed subject to certain conditions and limitations.

In substance it appears that through the said Ordinance, the Legislature attempted to treat the buildings constructed in violation of law as fait accompli (subject to certain conditions) despite the fact that the Sindh Buildings Control Ordinance and Regulations continued to remain operative.

The object of the Ordinance is to protect a definite class op people and not to destroy the Building Control Laws. The words "building constructed before the commencement 'of this Ordinance" occurring in section 5 must only be confined to those buildings which were fully completed on the date of the commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction.

One or more objects, may be added to the object of protecting the investments and right of shelter of the occupants, nonetheless, the language employed by the Legislature in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, remains the same and the connotation as well as scope thereof shall remain unaltered.

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

----Ss. 5 & 2(b)---Scope and applicability of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002--­Section 5 of the Ordinance empowers the Authority appointed under the Ordinance to regularize any building constructed before the commencement of the Ordinance in violation of the provisions of Sindh Buildings Control Ordinance, 1979 or regulations made thereunder--­Provisions contained in Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 are restricted to accord post facto regularization of the buildings already constructed before the commencement of the Ordinance and the Ordinance does not contain any provision for according approval to illegal building plan and to accord permission to commit illegality in future---Word "building" used in S.5 of the Ordinance shall be considered in the light of definition contained in S.2(b) of the said Ordinance---Building fully constructed before the commencement of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, in violation of Building Laws or a portion thereof fully completed before the commencement of the said, Ordinance may be regularized---Where before the commencement of the Ordinance neither the entire building under consideration nor any portion thereof was constructed in all respects, regularization of such building under S.5 of the Ordinance could not be made---Provisions of S.5 of the Ordinance could no', be extended to incomplete buildings (or portion thereof) or in the process of construction---Principles illustrated.

The Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is an independent piece of legislation and is a complete code in itself. It contains its own definition' clause and it is nowhere stated that the words, terms or expressions used in this Ordinance are to be read with the definition contained in the Sindh Buildings Control Ordinance, 1979 or any words or terms not defined in this Ordinance shall have the same meanings as contained in the Sindh Buildings Control Ordinance, 1979. On the contrary under section 3 of this Ordinance, the provisions contained therein shall override the provisions contained in any other law for the time being in force. The result is that the word "building" used in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, shall be considered in the light of definition contained in section 2(b) of the said Ordinance. According to this definition "building" means a plot or portion thereof constructed on a plot. The definition starts with the word means which indicates that the definition is conclusive and is not inclusive. When, the definition as above, is read with the provisions contained in section 5 one finds that a building fully constructed before the commencement of-the Ordinance, in violation of building laws or a portion thereof fully completed before the commencement of the Ordinance, may be regularized. For instance, if a builder announced a project for a 10 storeyed building, which was in violation of the building laws and commenced the construction. Now if he has erected the structure of all the 10 floors, but none of the floor was fully completed, no portion of the building will be regularized. However, if one or two floors were fully completed in all respects before the commencement of the Ordinance then only such portion could be regularized and the remaining 8 or 9 floors which were incomplete or were in process of construction were liable to be demolished for the simple reason that the amnesty provision was not available to such incomplete portion/portions of the building which were to be governed in accordance with the Sindh Buildings Control Ordinance, 1979, Regulations and Rules. The reason being that the amnesty law merely intended pardon/oblivion to the offence already committed in respect of a building or portion thereof, constructed before the commencement of the Ordinance without making the Building Control Ordinance and Regulations inoperative which continued to hold the field and remained operative, so far, a building or portion thereof was not constructed but was in the process of being constructed and was incomplete.

In the present case it is admitted position that before the commencement of the amnesty law neither the entire building under consideration nor any portion thereof was constructed in all respects. On the contrary, the admitted physical position was that 2 upper floors were fully demolished. While the remaining floors were demolished and damaged to the extent that they were made inhabitable and were in a dangerous state of affairs to the extent that even demolition was required to be made under the expert supervision, under the advice of Dangerous Buildings Committee. The result is, that, even after accepting the contention that the regularization was not restricted to an entire building/project but it extended to a portion of building as well, a building or portion thereof in a dangerous condition, being hazardous to life could not either be regularized or in the first instance it could be permitted to be reinforced, repaired and resurrected in complete violation of the Sindh Buildings Control Ordinance, 1979 and Regulations; and then could be regularized after expiry of the amnesty law. This is not possible without doing violence to specific provisions of law contained in section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, and disregarding the very concept of amnesty scheme. The provisions contained in the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, had merely an overriding effect for the purpose of regularization of building or portion thereof already constructed before the commencement of Ordinance, and had no effect of either temporarily repealing the provisions contained in Sindh Buildings Control Ordinance, 1979 and the Regulations or making them inoperative except for limited purposes envisaged in the Ordinance.

Provisions contained in Sindh Regulation and Control. (Use of Plots and Construction of Buildings) Ordinance, 2002, are restricted to accord post facto regularization of the buildings already constructed before the commencement of the Ordinance and the amnesty law does not contain any provision for according approval to illegal building plan and to accord permission to commit illegality in future and that in fact the approval accorded to the building plan in the present case and permission to carry them out is beyond the scope of amnesty law. It is in complete violation of the Sindh Buildings Control Ordinance, 1979 and the Regulations thereunder, which provisions of law deal with the approval of building plan, compounding of the offences, issuance of certificate of completion etc. It needs no emphasis that during the pendency of present petition the Authority had stated in unequivocal terms that neither the building plan was approved, nor it could be approved under the laws and that the entire building was constructed by resort to "Ghundagardi" and that the building so constructed was liable to be demolished/erased in accordance with the law.

The regularization is confined to the buildings already constructed/completed before the commencement of the Ordinance and through the amnesty law the Legislature has merely attempted to accord regularization to such illegally constructed buildings in violation of law as fait accompli. The provisions contained in section 5 are not extended to incomplete buildings (or portion thereof) or in the process of construction.

A bare reading of section 5 shows that it, empowers the authority appointed under the Ordinance to regularize, "any building constructed before the commencement of this Ordinance in violation of the provisions of the Ordinance or regulations made thereunder".

The word "constructed" has been used in section 5 by the Legislature. The expression used is in past tense and by no stretch of imagination it brings into its fold any construction to be raised in future or any construction which is incomplete or is in process of construction. One of the methods of ascertaining the intention of the Legislature is to compare a particular provision with other provisions of law on similar subject. When one compares section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, with the provisions contained in section 6(1) of the Sindh Buildings Control Ordinance, 1979, one finds that the expression used therein is, "no building shall be constructed before the authority has, in the prescribed manner, approved the plan of such building". The marked difference and distinction in the expressions used in the two provisions shows that in first provision expression "constructed" has been used, which denotes the construction which had already taken place, while in the second provision it relates to the intended construction which is to take place in future. The use of the expressions immediately after the word "construction", "before the commencement of this Ordinance in violation of the provisions of the Ordinance or Regulations made thereunder" further strengthens the that the regularization envisaged under section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to the buildings (or portion thereof) already constructed/completed in all respects before the commencement of the Ordinance and not to the construction either original or resurrected after the commencement of the Ordinance. Anything done or any act taken after the commencement of the Ordinance is clearly excluded from the provisions of section 5 and is beyond the purview thereof. The word "regularized" is itself indicative of the intention of the Legislature that it will apply to only such illegalities/irregularities which already stand committed before the commencement of the Ordinance. The expression "regularized" cannot be equated with the permission to commit the illegalities and violate the provisions of law. No authority is ever empowered to accord such permission and then subsequently affix the seal of approval or regularization on commission of such illegalities. Such course shall be destructive of the entire concept of the rule of law, having the effect of demolishing the entire legal system and would amount to creation of anarchy in the society. Such a situation could not be visualized in a State governed by the laws, but it would amount to perpetuate the law of jungle. Such a contention contains inherent contradiction and is destructive of the concept of the rule of law.

It envisages that although every individual and collective matter of the society is to be governed by the laws enacted from time to time, but certain functionaries appointed by, or under the same law, shall have the authority to accord permission to commit the illegalities with complete impunity, without fear of any adverse consequences, with the assurance that the illegalities allowed to be committed shall be validated. This would be a very horrible proposition which cannot be termed as proposition of law but would amount to proposition of negation of the law.

(h) Interpretation of statutes---

---- Language of statute---Court has to read the plain language of law and interpret the same in accordance with the consequences flowing from the plain language of law.

(i) Interpretation of statutes-----

---- Words in an enactment---Legislature shall always be deemed to have full knowledge of the import and meanings of the words used in an enactment.

(j) Interpretation of statutes---

----Intention of the Legislature---One of the methods of ascertaining the intention of Legislature is to compare a particular provision with other provisions of law on similar subject.

(k) Amnesty Scheme---

---- Concept, scope of the pardon and amnesty--- "Pardon" and "amnesty"---Distinction.

Wharton's Law Lexicon (1957 Edn.); Roget's Thesaurus, Shorter Oxford English Dictionary (1992 Edn.); Legal Thesaurus; Black's Law Dictionary (1990 Edn.); Stroud's Judicial Dictionary; Handbook of American Constitution (1939 Edn.); United States.v. Wilson (1963) 8 Law Edn. 640 (B); 3 Co. Inst. 233 and Halsbury's Laws of England 2nd Edn. p.477 ref.

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

----Preamble---Ordinance though is in the nature of amnesty scheme but has not empowered the Building Authority to accord approval to the building plan which was admittedly illegal and was held to be so by the High Court.

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

----S. 5---Sindh Buildings Control Ordinance (V of 1979), Preamble--­Constitution of Pakistan (1973), Art.199---Constitutional petition'---Provisions of S.5, Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to those buildings which were fully completed on the date of commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction ---Sindh Regulation and Control. (Use of Plots and Construction of Buildings) Ordinance, 2002 is in the nature of amnesty scheme and every amnesty scheme provides oblivion to the illegalities/offences already committed before the commencement of the amnesty scheme and no provision in such scheme is attracted to the acts done and illegalities committed after the date of commencement pf the scheme---Competent Authorities are merely empowered to extend oblivion to the illegalities already committed before the commencement of such scheme and have no authority to give approval for commission of any illegality after the commencement of amnesty scheme and any such act is violative of the Amnesty Scheme---Authorities, in the present case, had deliberately exceeded their jurisdiction and have connived and collaborated with the builder in his design to perpetuate the illegality, which they -had tooth-and-nail opposed till the disposal of the present petition and had violated the direction of the High Court and undertaking to demolish the entire building---High Court, in circumstances, directed the Chief Controller Buildings .and all other concerned officials under him to immediately demolish/erase the entire building forthwith and report compliance to the High Court within two months---Demolition was directed to be undertaken in consultation with the Electric Supply Company of the city, Sui Gas Company, Water and Sewerage Board and all other civic bodies connected with the public amenities---Chief Controller, Building may seek any assistance required by him from any agency Central, Provincial or Local including Rangers and police---All the authorities under the administrative Control of Federal Government. Provincial Government or local Government were directed by the High Court to provide all necessary and adequate help in this regard to the Building Authority---Services of Experts, if required for the purpose of demolition could also be hired by the Building Authority initially at its own expenses and subsequently, to be reimbursed by the builder who had resorted to the blatant illegality and violation of the law and directions given by the High Court.

In the present case the proceedings initiated by the builder in active collaboration with officials of the Building Authority on 12-1-2002, prior, to the promulgation and commencement of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance 2002, were under the provisions of Sindh Buildings Control Ordinance, 1979 and not under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, for the simple reason that the later Ordinance was not promulgated by that time.

The subsequent proceedings including the proceedings of dangerous Building Committee were undertaken under the Sindh Buildings Control Ordinance, 1979 and not under the Sindh Regulation and Control, (Use of Plots and Construction of Buildings) Ordinance, 2002.

The entire proceedings and all acts by all concerned in this behalf in between 12-1-2002 and 21-4-2003 were violative of the provisions contained in the Sindh Buildings Control Ordinance, 1979 as well as Sindh Regulation and Control (Use of Plots and Construction of buildings) Ordinance, 2002.

All the approvals, completion certificate, regularization and the recommendations of Technical Committee for Dangerous Buildings, were violative of the orders passed by High Court directing the demolition of building constructed illegally and in the words of Building Authority under "Ghundagardi".

Section 5 of the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is confined to those buildings which were fully completed on the date of commencement of the Ordinance and would not apply to any incomplete building or one in the process of construction.

The Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, is in the nature of amnesty scheme and every amnesty scheme provides oblivion to the illegalities/offences already committed before the commencement of the amnesty scheme and no provision in the amnesty scheme is attracted to the acts done and illegalities committed after the date of commencement of the scheme. The authorities competent are merely empowered to extend oblivion to the illegalities already committed before the commencement of the scheme and have no authority to give approval for commission of any illegality after the commencement of amnesty scheme and any such act is violative of the amnesty scheme.

The authorities have deliberately exceeded their jurisdiction and have connived and collaborated with the builder in his design to perpetuate the illegality, which they had tooth-and-nail opposed till the disposal of petition and have violated the direction of High Court, and undertaking to demolish the entire building.

High Court, in circumstances directed the Chief Controller Building and all other concerned officials under him to immediately demolish/erase the entire building forthwith and report compliance to High Court within two months. The demolition should be undertaken in consultation with the KESC, Sui Gas Company, Water and Sewerage Board and all other civic bodies connected with the public amenities. The Chief Controller Building may seek any assistance required by him from any agency. Central, Provincial or Local including Rangers and. police--­All the Authorities under the administrative Control of Federal Government Provincial Government or Local Government were directed to provide all necessary and adequate help in this regard to the KBCA. Services of Experts, if required for the purpose of demolition may also be hired by the Building Authority initially at its own expenses and subsequently, to be reimbursed by the builder who had resorted to the blatant illegality and violation of the law and directions given by the High Court.

2004 CLC 1353 ref.

Khawaja Shamsul Islam for Petitioner.

Shahid Jamiluddin Ahmed Khan for Respondent No. 1.

Muhammad Daevood through Asim Munir A. Malik for Contemner No.3.

Asim Mansoor for Contemner No.4.

Ismail Memon, Danish Shah holding brief for Farogh Naseem for Intervenors.

Dates of hearing: 10th and 11th February, 2004.

2004 C L C 1766

[Karachi]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

ALLAH RAKHA---Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT, GOVERNMENT Of SINDH and others---Respondents

C.P. No.D-1987 of 2002, decided on 5th August, 2003.

(a) Sindh Local Government Ordinance (XXVII of 2001)-----

----Ss. 156(7) & 181-A [As added by Sindh Local Government (Amendment) Ordinance (VII of 2002)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---"No confidence motion"--­Removal of Officiating Nazim---Once the petitioner was elected as Officiating Nazim in terms of S. 156(7) of Sindh Local Government Ordinance, 2001, no confidence motion could not be brought against him before 31-12-2002 according to provisions of S. 181-A of Sindh Local Government Ordinance, 2001---Removal of petitioner and election of respondent as Officiating Nazim on 2-3-2002, was in violation of provisions of S. 181-A of Sindh Local Government Ordinance, 2001.

(b) Sindh Local Government Ordinance (XXVII of 2001)-----

----Ss. 148(2)(3), 150, 156---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Election of Officiating Union Nazim---Vacancy of Nazim, was to be filled through election within period of 120 days of its occurrence, but Council could not function without Nazim and vacuum could not be created in the system---On account of expiry of said period of 120 days, in absence of any election, petitioner/present incumbent would continue without any interruption---Election Commission, was directed to conduct election on vacant seat in terms of S.150 of Sindh Local Government Ordinance, 2001 within specified period under the law.

Petitioner in person.

Muhammad Sarwar Khan, A.A.-G. for Respondent No. 1.

Manzoor Ahmed for Respondents Nos.2 to 4.

Abdul Khalil for Respondent No.5.

Date of hearing: 5th August; 2003.

2004 C L C 1797

[Karachi]

Before Shabbir Ahmed, J

RIMPA LIMITED and another-- -Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION---Defendant

Suit No.639 of 1987, decided on 3rd November, 2003.

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

----Ss. 5 & 7 [as substituted by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]---Pecuniary jurisdiction of District Courts at Karachi---Pecuniary jurisdiction of Karachi District Courts having been enhanced upto Rupees thirty lacs under S.7 of West Pakistan Civil Courts Ordinance, 1962 as substituted by Sindh Civil Courts (Amendment) Ordinance, 2002, suits and other proceedings up to value of Rupees thirty lacs, could be filed both in the High Court and District Courts of Karachi and both the Courts had concurrent jurisdiction to that extent---Subsequent amending Ordinances, including Sindh Civil Courts (Amendment) Ordinance, 2002, would not curtail jurisdiction of District Courts at Karachi.

Firdous Trading Corporation and others v. Japan Cotton and General Trading Co. Ltd. PLD 1961 Kar. 565; in re: Office reference in Respect of Civil Courts (Sindh Amendment) Ordinance, 1970 PLD 1981 Kar. 210; Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985; Province of Sindh v. Haji Razzak and another 1991 SCMR 920; Pakistan Fisheries Ltd. Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Brothers Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Messrs Muslim Commercial Bank Ltd. v. Messrs Nisar Rice Mills Lahore and another 1993 CLC 1627; Shamas Textile Mills Ltd. v. Province of Punjab 1999 SCMR 1477; Ram Sarup v. Munshi and others AIR 1963 SC 553 and Nithi Lal v. Mazhar Hussain and others ILR 7 Allahabad 230 ref.

(b) Interpretation of Statutes---

---- Repugnancy between the Provincial and Central Legislature--­Repugnancy between Provincial and Central Legislature could be ascertained on basis of three principles; viz. whether there was direct conflict between provisions of two statutes; whether Parliament intended to lay down an exhaustive Code in respect of the subject-matter replacing the Act of the Provincial Legislature and whether the law made by Parliament and law made by Provincial Legislature, occupied the same field---If Federal law was passed with respect to a matter in the Federal List or Concurrent List, it would be intra vires the Federal Legislature and as regarded the question of repugnancy to an `existing law' the Federal law would prevail.

Tika Ramji v. State of Uttar Pradesh AIR 1956 SC 676; Deep Chand v. State of Uttar Pradesh AIR 1959 SC 648; Tansukh Rai Jain v. Nilratan Prasad Shaw and others AIR 1966 SC 1780 and Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477 ref.

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

----S. 5 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]---Sindh Chief Court (O.S.) Rules, R. 10---Transfer of pending suits and other proceedings---Question had been raised against transfer of pending suits and other proceedings upto the value of thirty lacs of Rupee and vires of S.5 of Amending Ordinance, 2002 had been challenged raising important questions of law and decision thereof, would be of far-reaching consequences---Matter was referred to Chief Justice for formation of larger Bench in terms of R. 10 of Sindh Chief Court (O. S.) Rules.

Iqbal Kazi for Plaintiffs.

Syed Zaki Mohammad, Dy. Attorney-General.

Ahmed Pirzada, Addl. A.-G. Sindh.

Rasheed A. Razvi, Amicus Curiae.

Dates of hearing: 20th October and 3rd November, 2003.

2004 C L C 1815

[Karachi]

Before Sabihuddin Ahmed and Ameer Hani Muslim, JJ

Syed SHAMSUDDIN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Const. Petition No.D-1896 of 2002, decided on 14th November, 2003.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Regularization of building---Application for review of order passed earlier by High Court---Applicant had sought review of earlier order passed by High Court directing the Authority to demolish illegal structure on third floor of building, contending that impugned order had been passed without taking into consideration earlier order passed by High Court whereunder applicant had made payment to the Authority which had subsequently regularized construction in dispute---Earlier order showed that no imperative directive was given to the Authority to regularize disputed construction---Such earlier order had explicitly stated that the matter was to be considered in accordance with law--­Even otherwise when a particular power was conferred upon a statutory functionary, it had to act only in accordance with law---Once the Court had recorded its finding to the effect that law did not empower Authority to regularize incomplete structure through its judgment, different view could not be taken---Application filed by petitioner was dismissed and applicant would be entitled to seek refund of amount deposited by him with the Authority for regularization of third floor of his building.

Abdul Latif A. Shakoor for Petitioner.

2004 C L C 1829

[Karachi]

Before Shabbir Ahmed and Khilji Arif Hussain, JJ

MUSLIM COMMERCIAL BANK LTD. ---Appellant

Versus

Messrs JUNAID COTTON MILLS LTD. and others---Respondents

Special H.C.A. No.D-130 of 2003, decided on 1st June, 2004.

Transfer of Property Act (IV of 1882)---

----S. 58(f)---Mortgage by deposit of title deeds---Agent---Deposit of title deed by owner or his authorized agent was sufficient to create charge and writing was not mandatory requirement---Son though was a blood relation of the mortgagor lady, but in absence of any authorization, the son or any blood relation could not be termed to be an agent---Document deposited by an unauthorized person would not create charge over the property.

Rizwan Ahmed Siddiqi for Appellant.

2004 C L C 1831

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and Syed Zawwar Hussain Jaffery, J

TAHSEEN AHMED ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No.D-537 of 1997, heard on 13th May, 2004.

Constitution of Pakistan (1973)---

----Arts. 199, 28 & 251---Constitutional petition---Replacing English language by Urdu as National language for official and other purposes--­Grievance of petitioner was that as per Art. 251(1) of the Constitution, Urdu language was National language of Pakistan for its use for official and other purposes and it was mandatory that arrangements be made for its being used for official and other purposes within fifteen years from the commencing day of the Constitution---Parawise comments filed on behalf of Establishment Division, stated that in terms of rules of business, administrative control of National Language Authority rested with Cabinet Division and Cabinet Division was the concerned Division to take steps for enforcement of Urdu as an official language---Deputy Attorney-General for Pakistan had submitted comments of National Language Authority wherein achievements/works done in respect of enforcement of Urdu as National language, had been highlighted--­Comments were also filed by Cabinet Division wherein it was submitted that necessary- arrangements, would be taken for the use of Urdu language for official purposes as and when circumstances would allow--­Cabinet Division and National Language Authority, which were two main authorities for introduction and implementation of Urdu as working language at all levels replacing English language, were working in the right direction and proper efforts and steps were being taken by them for doing the needful, as nothing was required to be done by High Court in that behalf, Constitutional petition was dismissed.

Petitioner in person.

Sajjad Ali Shah, Standing Counsel for Respondents.

Date of hearing: 13th May, 2004.

2004 C L C 1854

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

RUKHSANA PARVEEN---Appellant

Versus

N. L. C. ---Respondent

H. C. A. No. 149 of 1993, heard on 26th May, 2004.

Fatal Accident Act (XIII of 1855)---

----S. 1---Law Reforms Ordinance (XII of 1972), S. 3---Fatal accident--­Suit for compensation---Determination of amount of compensation--­High Court appeal---Husband of plaintiff aged about 30 years and being in stable physical state, was a taxi driver and while driving his taxi was hit by an oil tanker belonging to defendant and driven by the other defendant and he died due to rash and negligent driving of the driver of oil tanker---Deceased left behind him a widow and two minor daughters aged 3 and 6 years---Plaintiff filed suit for compensation claiming a sum of Rs.8,00,000 by way of compensation---High Court found factum of rash and negligent driving on part of the driver of oil tanker and liability of both defendants to compensate plaintiff, but granted amount of compensation to plaintiff Rs.2,08,000 instead of Rs.8,00,000 as claimed by the plaintiff---Deceased died at the age of 30 years and a normal healthy person was expected to live upto the age of 70 years---Plaintiff claimed that after paying instalment of taxi, net-income of deceased was about Rs.3000 per month and that claim of plaintiff was plausible and same was also, not challenged by defendant in their cross-examination and no evidence in rebuttal was also produced by defendants---Possibility of a person's advancement in earning capacities was always taken into consideration in cases of such kind and normally in absence of evidence to the contrary or other unusual circumstances, his income was expected to increase at the rate of Rs.20% per year, but High Court could not take into consideration said fact while determining amount of compensation---Decree passed by High Court was modified in Intra-Court appeal and suit was decreed in terms of amount as claimed by plaintiff in her suit i.e. Rs.8,00,000---Out of said amount of Rs.8,00,000 amount of Rs.2,00,000 would be paid to plaintiff and Rs.3,00,000 to each minor daughters and unpaid amount would be subject to mark-up at the rate of 14% per annum with effect from date of judgment.

Amina v. Government of Pakistan 1995 MLD 1922; Dost v. Pakistan Steel Mill 1996 CLC 530 and Kulsoom v. Jameel Ahmad Khan PLD 1964 Kar. 72 ref.

Nasir Maqsood for Appellant.

Abdul Rauf for Respondent No. 1.

Nemo for Respondent No.2.

Shoukat Hayat for Respondent No.3.

Date of hearing: 26th May, 2004.

2004 C L C 1872

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

NADIRA KAISER and others---Petitioners

Versus

CHAIRMAN, KARACHI CANTONMENT BOARD and another---Respondents

C.P.No. D-931 of 2000, heard on 11th September, 2002.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Exercise of---Party who had failed to perform its obligation according to law, was not entitled to discretionary relief under Art. 199 of Constitution of Pakistan (1973).

Mobarak Ahmed for Petitioners.

Shaukat Hayat for Respondents Nos. 1 and 2.

Aitaf Hussain for intervenor.

Date of hearing: 11th September, 2002.

2004 C L C 1875

[Karachi]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

Syed ALI GOHAR SHAH---Appellant

Versus

PROVINCE OF SINDH and others---Respondents

H.C.A. No.400 of 2003, heard on 16th December, 2003.

Civil Procedure Code (V of 1908)---

----O. XXVI, Rr. 9 & 18 & O.XXXIX, Rr.1, 2, 7 & 8---Law Reforms Ordinance (XII of 1972), S.3---Appointment and report of Local Commissioner without notice to the opposite party---Application for grant of interim injunction---Court could not appoint Local Commissioner for inspection without notice to opposite party except in cases where the issuance of notice could frustrate the purpose of appointment of Commissioner, but the Commissioner had to execute the Commission with notice to opposite party---Appellant, in the present case, was hot served with notice of inspection application, even the inspection carried on by Commissioner/Nazir of the Court was without notice to the appellant---Validity---Report of Nazir, was to be excluded and could not be considered as it was prepared in violation of mandatory provisions of law---Order passed on such report, was also not legal.

Modal Vasam Latcham Naidu and another v. Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam AIR 1934 Mad. 548 and Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012 ref.

Muhammad Nawaz Shaikh for Appellant.

Ahmed Pirzada, Addl. A.-G. for Respondents Nos. 1 to 5.

Ms. Sana Minhas for Respondent No.9.

Date of hearing: 16th December, 2003.

2004 C L C 1889

[Karachi]

Before Zia Pervez, J

Messrs A.H. SERVICES---Plaintiff

Versus

PROVINCE OF SINDH, MINISTRY OF HOUSING AND TOWN PLANNING through Secretary and another---Defendants

Suit No. 1633 of 1998, decided on 15th October, 2003.

Contract Act (IX of 1872)---

----S. 2(h)---Specific Relief Act (I of 1877), Ss. 12, 54 & 55--- Suit for specific performance of contract, permanent and mandatory injunctions---Plaintiff, a registered firm applied for allotment of 20 plots and the competent Authority issued directions for allotment of said plots to the Authority concerned and plaintiff made payment of plots--­Authorities, after receiving full occupancy value; handed over the physical possession of said plots to the plaintiff, but due to temporary ban imposed by the Chief Minister on allotment, matter of formal allotment of plots remained pending and allotment of said plots in favour of plaintiff, could not be finalized---Authorities through a Resolution, resolved to refund total amount to plaintiff and refused to allot the plots in question---Validity---All ingredients of a valid contract, like proposed offer, acceptance as provided under S. 2 of Contract Act, 1872 existed which had constituted a valid contract between the parties---Acceptance and payment of consideration were not in dispute---Authorities, in circumstances were obliged to allot suit plots to the plaintiff after lifting of ban on allotment when amount of consideration deposited by plaintiff was still lying with them---Valid and subsisting contract had come into existence and Authorities had failed to give any plausible reason for not complying with their commitment---Suit which was within time, was decreed accordingly.

East and West Shipping Company v. Queensland Insurance Co. PLD 1963 SC 663; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; Sindh Industrial Estate v. Kemia Industries Ltd. 1999 CLC 1076; Khanzada Inamullah Khan v. Mst. Zakia Qutab PLD 1998 Pesh. 52; Ramjoo Mahomed v. Haridas Mullick and others AIR 1925 Cal. 1087; Habib Bank Limited v. Hussain Corp. Ltd. 1994 MLD 2276; AIR 1939 Rang. 86; Mehran Sugar Mills Limited v. Sindh Sugar Corporation Limited 1995 CLC 707; Messrs Excell Builders v. K.M.C. 1999 YLR 2657; M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1652; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 and Chairman Selection Committee/ Principal; King Edward Medical College, Lahore v. Wasif Zamir Ahmed and another 1997 SCMR 15 ref.

Badar Alam for Plaintiff.

M. Aslam Pirzada for Defendants.

Date of hearing: 30th May, 2003.

2004 C L C 1967

[Karachi]

Before Shabbir Ahmed and Muhammad Mujeebullah Siddiqui, JJ

YOUSUF A. HAROON---Petitioner

Versus

CUSTODIAN OF THE KARACHI HOTEL PROJECT through Kamran Shehzad---Respondent

Constitution Petition No.D-529 of 1994, decided on 30th September, 2004.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---While disposing of Constitutional petition on the point of jurisdiction and non-­maintainability of the petition it would not be proper for the Court to make any observation on merits and on any point of law other than maintainability of the petition as it was likely to affect the proceedings which the petitioner may like to pursue in forum available to him under the Statute.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Contractual obligation---Two different situations pertaining to the field of contract---Maintainability of Constitutional petition---Principles.

There are two different situations pertaining to the field of contract:--

(i) Situation at the time of entering into contract.

(ii) Situation after the execution of contract.

While dealing with Situation No.(ii), if the State functionaries have executed a contract then the relations are no longer governed by the Constitutional provisions and it is the contract which shall determine rights and obligations of the parties. In such circumstances, the parties can claim rights conferred upon them by the contract until and unless some statute steps in and 6nfers some special authority, power or obligation on the State in the contractual field which is apart from the contract the parties if entered into a contract and no statutory provisions governed the right and obligations of the parties no writ could be issued under the Constitutional jurisdiction. Where a contractual right can be enforced through filing of suit for specific performance the petition would not be maintainable.

Habib-ur-Rehman Unar v. Government of Sindh SBLR 2004 Sindh 1371 quoted.

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

----Art.199---Constitutional jurisdiction of High Court ---Scope--­Enforcement of purely contractual obligation could not be the subject matter of proceedings under Art. 199 of the Constitution---If, however, at the time of awarding a contract, the State functionaries had acted in an unfair and arbitrary manner or had discriminated against one of the parties, such grievance could be looked into by the superior Courts in exercise of the power under Art. 199 of the Constitution---Another exception was also available that if the State functionaries had violated any statutory provision while passing any order pertaining to contract, it could be made subject-matter of a Constitutional petition under Art, 199 of the Constitution.

Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268; Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274; Habib-ur-Rehman Unar v. Government of Sindh SBLR 2004 Sindh 1371; Messrs Momin Motor Company v. The Regional Transport Authority PLD 1962 SC 108; M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore 1968 SCMR 1136; Shamshad Ali Khan v. Commissioner, Lahore 1969 SCMR 122 and Owaisco v. Federation of Pakistan PLD 1999 Kar. 472 ref.

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

----Art.199---Karachi Hotel Project Order 1989 [MLO No. 105]--­Constitutional jurisdiction of High Court---Scope---Contractual obligation---Cancellation of bid of the petitioner---No discrimination or arbitrary exercise of powers at the time of awarding of the contract was involved---No statutory provision had been shown or alleged to have been violated while cancelling the bid in favour of the petitioner---Bid was cancelled for the reason of non-performance of the obligation on the part of the petitioner arising out of the contract and the petitioner had also based his claim entirely on the contractual obligations arising out of a contract executed between the parties---Effect---Relief sought in the petition purely arose out of a contract between the parties and such contractual obligation could not be enforced by having recourse to the Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Since disputed questions of fact were involved, proper course for the petitioner was to invoke the jurisdiction of Civil Court through a suit---Constitutional petition being not maintainable, was dismissed by the High Court.

Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268; Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274; Habib-ur-Rehman Unar v. Government of Sindh SBLR 2004 Sindh 1371; Messrs Momin Motor Company v. The Regional Transport Authority PLD 1962 SC 108; M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore 1968 SCMR 1136; Shamshad Ali Khan v. Commissioner, Lahore 1969 SCMR 122 and Owaisco v. Federation of Pakistan PLD 1999 Kar. 472 ref.

H.A. Rehmani for Petitioner.

Abdul Sattar Pirzada and Hisamuddin for Respondent No. 1.

Dates of hearing: 18th August and 14th September, 2004.

2004 C L C 1977

[Karachi]

Before Muhammad Moosa K. Leghari, J

ADAMJEE CONSTRUCTION COMPANY LTD. -Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Communications & Works, Islamabad and 2 others---Defendants

Suit No.779 of 2003, decided on 22nd April, 2004.

Arbitration Act (X of 1940)---

----Ss. 15, 20 & 30---Making award rule of the Court---Objections to award---Modification and correction of award---Court while hearing objections to the award, has not to act as Court of appeal and the Court should be slow in proceeding to scrutinize the award in order only to discover an error for the purpose of setting it aside---Court was supported to give every reasonable intendment in favour of award and lean towards upholding, rather than vitiating the same---Such rule was based on logic that arbitrator was chosen by the parties themselves therefore prima facie the award be treated final, except that same may be modified or corrected when it fell within the scope of S.15 of Arbitration Act, 1940 and it could be set aside if it was covered by provisions of S.30 of that Act.

Karachi Transport Corporation v. Karachi Tameerat Limited PLD 1992 SC 479; 1990 MLD 301; PLD 1966 Kar. 513 and Messrs Waheed Brothers (Pak.) Ltd. Lahore v. Messrs Izhar (Pvt.) Ltd., Lahore 2002 SCMR 366 ref.

Iqbal Bawani for Plaintiffs.

Sarwar Muhammad Khan for Defendants.

Date of hearing: 22nd April, 2004.

2004 C L C 1981

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL GHAFOOR and 3 others---Applicants

Versus

SHAFI MUHAMMAD through Legal Heirs and another---Respondents

Civil Revisions Nos.38 and 39 of 2000, decided on 23rd February, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 24-A(2) & O.III, R.5---Transfer of suit---Appearance of parties on transfer of suit---Appeal---Limitation---Court in which suits were pending adjudication had become vacant---Suits were being adjourned and parties and their advocates were appearing before the said Court--­Lastly suits were fixed on 29-9-1997 when parties in suits were present---Cases were adjourned to 13-11-1997 as the Court was still lying vacant, in the meantime District Judge transferred suits from P.J.G.' where same were pending to Court atK' and matters were adjourned for 13-11-1997 which was already fixed---On said date nobody having appeared before transferee Court, Court ordered for issuance of Court motion notices to advocates of parties---Advocates of parties having refused to accept said Court motion notices, Court after perusing report of bailiffs held service good and fixed suits for evidence---After recording evidence of plaintiffs suits were fixed for evidence of defendants, but defendants having failed to appear, suits were decreed--­Appeal filed by defendants after more than one and half years of passing decree in favour of plaintiffs were dismissed being time-barred--Defendants had filed revision against dismissal order of Appellate Court alleging that they had no knowledge about suits as no Court motion notices were served upon them by transferee Court and they had also prayed for condonation of delay---Parties were present on 29-9-1997 before Court when suits were adjourned to 13-11-1997---Service of Court motion notices upon advocates of defendants, was service upon defendants and was effectual for all purposes as if same had been served upon party in person---Gross negligence on part of defendants could not be condoned without assigning cogent, plausible and sufficient cause for their not appearing in the Court---Defendants who had knowledge about transfer of suits, could not claim that they had no knowledge about transfer of suits---Appeals filed by defendants were rightly dismissed being barred by time---In absence of any illegality or irregularity in the impugned judgment and decree, same could not be interfered with in revision before High Court.

David Lawernce for Applicants.

A.M. Mobeen Khan for Respondent No. 1.

Date of hearing: 16th February, 2004.

2004 C L C 1985

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD SHAMIM---Petitioner

Versus

Mrs. ZAHEER and 2 others---Respondents

Constitutional Petition No.S-408 of 2004, heard on 1st October, 2004.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlords had claimed that premises in question was required by them in good faith for their own use/occupation in order to establish a business concern--­Landlords in proof of their claim had produced revised plan duly approved from competent Building Control Authority which had clearly described need and intended use of landlords of different portions of entire building---Validity---Where landlords produced a plan duly approved from Competent Building Control Authority for the purpose of revision of building structure to prove their intention to run business of their own therein, then such approval or revision of building structure, was sufficient to prove intention of landlords towards the same---Even otherwise option of suitability and convenience to choose a particular building/premises to run a business therein was sole prerogative of landlords and tenant could not dictate any terms to landlord to suggest anything contrary to them for running of business---Two Courts below had rightly recorded finding that landlords had proved their plea beyond doubt that premises in question with other portions of building were bona fide required by them to run their own business therein.

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

----S. 15(2)(ii)---Default in payment of rent---Duty of tenant to pay water and conservancy charges---Documents produced on record had conclusively proved that landlord had been receiving rent amount from tenant separately and other charges/taxes separately and had been issuing such receipts to the tenant---Same had conclusively proved that tenant was bound to pay towards water and conservancy charges/taxes and electricity consumption charges separately---Tenant was paying said charges; but then he stopped paying towards same and had committed default---Tenant, who was bound to pay said charges having failed to comply with such demand, Courts below had rightly recorded findings against him to be a defaulter.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court would extend only to review orders of Court or Tribunal subordinate to High Court to see if any illegality had, been committed by them while passing order/judgment impugned in Constitutional petition---Incompetent petition could not be encouraged under Art.199 of Constitution---In absence of any illegality, misreading or non-reading of evidence in concurrent judgment/order of two Courts below, Constitutional petition would not -be competent and would be liable to be dismissed.

Imran Ahmed for Petitioner.

Ali Mumtaz Shaikh for Respondents.

Date of hearing: 1st October, 2004.

2004 C L C 1

[Lahore]

Before Mian Saqib Nisar and Jawwad S. Khawaja, JJ

GHULAM MUHAMMAD alias GAMA and another‑‑‑Appellants

Versus

WARYAM‑‑‑Respondent

Regular First Appeal No. 169 of 1997, heard on 14th October, 2002.

(a) Qanun‑e‑Shahdat (10 of 1984)‑‑‑

‑‑‑‑Art. 129(g)‑‑‑Withholding of best evidence without any plausible reason‑‑‑Effect‑‑‑Inference could validly be drawn against such person under Art. 129(g) of Qanun‑e‑Shahadat, 1984.

(b) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Gift‑deed by an illiterate person‑‑‑Proof‑‑‑Donor was neither accompanied by any male member of his immediate family nor any person from his village was associated for purpose of execution of gift­ deed‑‑‑Matter of gift not reported to Patwari‑‑‑Donor was residing in the, disputed property, which was his sole source of living‑‑‑Mere appendage of thumb‑impression of such donor on the gift‑deed by itself without independent proof of factum of gift in favour of donee would not be sufficient to establish that property had validly been gifted by donor to donee out of his free will.

Muhammad Rashid Ahmad v. Muhammad Siddique P L D 2002 SC 293 ref.

S.M. Zamir Zaidi for Appellants.

Abdus Samad Hashmi for Respondent.

Date of hearing: 14th October, 2002.

2004 C L C 33

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM ZAINIB and another‑‑‑Petitioners

Versus

SAID RASOOL and 8 others‑‑‑Respondents

Civil Revision No. 1541 of 1996, decided on 17th October, 2003.

(a) Islamic Law‑‑‑

‑‑‑‑ Oral gift‑‑‑Proof‑‑‑Oral gift was neither reduced to writing nor reported to Revenue Officials nor any mutation was sanctioned on its basis‑‑Effect‑‑‑Person claiming title on the basis of such gift would have to prove the same by cogent and solid evidence.

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

‑‑‑‑Ss. 122 & 123‑‑‑Registration Act (XVI of 1908), Ss.17 & 49‑‑­Islainic Law‑‑‑Oral gift or through registered deed‑‑‑Proof‑‑­Beneficiary of gift through registered deed has to prove, independent of such deed, transaction of gift as a fact‑‑‑Persons in whose favour there was no document of any kind to support gift, would stand on a much weaker wicket as compared to those getting title out of registered gift.

Zafar Iqbal and others v. Yaqoob and others 1995 CLC 7 rel.

(c) Islamic Law‑--

‑‑‑‑Oral gift by mother in favour of two daughters excluding her other children‑‑‑Proof‑‑‑Witnesses produced by donees neither gave time, date or place of making gift by donor nor explained occasion on which such declaration was made by donor nor showed that as to how they happened to be present at the relevant, time‑‑‑As to why the gift was not reduced into writing was not explained, especially when donees were .aware that there were other heirs of donor, who would claim inheritance in the estate in case of ‑death of the donor ‑‑‑Donees had not reported gift in their favour at the time of its making or thereafter to the Revenue Authorities or even before filing the suit‑‑‑Donor lady had died after four months of the alleged gift‑‑‑As to why the donor lady was not carried before the Revenue Officer for attestation of mutation was not shown‑‑‑Gift in favour of donees was not proved in circumstances.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 ref.

Mst. Nur Jehan. Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

(d) Islamic Law‑‑‑--

-----Gift‑‑‑Proof‑‑‑Absence of any assertion in the plaint as to time, date or place of gift‑‑‑Effect‑‑‑Fake assertions by witnesses in cross‑examination not specifying time and date of gift would not prove transaction of gift.

(e) Islamic Law‑‑‑--

‑‑‑‑Gift‑‑‑Proof‑‑‑Any decision in injunction suit or Superdari matter to which donee was not party would not ipso facto prove transaction of gift.

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

‑‑‑‑O. VIII, R.1 & O.XV, R.2‑‑‑Gift‑‑‑Proof‑‑‑Concessional written statement by two defendants in presence of contesting written statement by, another defendant would riot make a non‑existent gift as lawful.

(g) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑S. 122‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.2(4) & 133‑‑‑Gift‑‑­Proof‑‑‑Any lapse in cross‑examination would not make donee owner of disputed land without proof of any lawful transfer in his favour.

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

‑‑‑‑S. 42‑‑‑Oral gift‑‑‑Proof‑‑‑Sanctioning of mutation or reporting oral gift to Revenue Authorities‑‑‑Effect‑‑‑Same would be a strong circumstance in support of transaction of gift.

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

‑‑‑‑S. 115‑‑‑Revisional and supervisory jurisdiction of 'High Court‑‑‑Scope‑‑‑High Court in exercise of such jurisdiction could not contribute to an illegal act committed by Trial Court.

Rana Muhammad Sarwar for Petitioners.

2004 C L C 57

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

AKBAR REHMAN and 9 others‑‑‑Appellants

Versus

GOVERNMENT OF PUNJAB through Secretary, Minister Finance, Punjab Civil Secretariat, Lahore and 3 others‑‑‑Respondents

Intra‑Court Appeals Nos. 930, 950, 951 of 2001; 112, 645, 451 and 776 of 2002, decided on 7th October, 2003.

West Pakistan Entertainment Duty Act (X of 1958)‑‑‑

‑‑‑‑S. 3(1), proviso [as amended by Punjab Finance Ordinance (VI of 2001)]‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑‑Tax exemption in respect of cinema houses as introduced in 5.3(1) of West Pakistan Entertainment Duty Act, 1958 through Punjab Finance Ordinance, 2001‑‑‑Constitutional petition challenging vires of such amendments without impleading appellants as party, was accepted by High Court on basis of consenting statement of Advocate‑General‑‑‑Validity‑‑‑Such amendments had been made in view of Cabinet decision on the representation of persons engaged in business/trade of cinemas‑‑­Appellants having secured vested right in view of such Cabinet decision, thus, were necessary and proper party‑‑‑Consenting statement of Advocate‑General was not binding upon the appellants‑‑‑Impugned order was hit by principles of natural justice for having been passed without notice to the appellants‑‑‑High Court accepted intra‑Court appeals with directions to Government to consider matter in accordance with law after providing proper hearing to all concerned including appellants and private respondents.

Abdul Wali Khan's case PLD 1976 SC 57; Muhammad Rameez's case PLD 1992 SC 221; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Crescent Sugar Mills and Distillery Ltd. Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1; Pakistan through Secretary, Ministry of Commerce v. Salah‑ud‑Din and 3 others PLD 1991 SC 546; Pakistan through Secretary, Ministry of Finance v. Muhammad Himyat Ullah Farooqi P L D 1969 SC 407; Wazir Ali Industries' case PLD 1969 SC 65 and Fazal Din's case P L D 1969 SC 223 ref.

Syed Najam‑ul‑Hassan Kazmi and Ali Akbar Qureshi for Appellants.

Ahmad Sibtain Fazli for Respondent No.4.

Tahir Akhtar Paracha for Respondent.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent.

2004 C L C 89

[Lahore]

Before Rustam Ali Malik, J

Mian AMEER NASIR‑‑‑Petitioner

Versus

TAHIR GUJJAR, STATION HOUSE OFFICER and 3 others‑‑‑Respondents

Writ Petitions Nos.7361, 8976, 8977 and Civil Miscellaneous No. 901 of 2003, decided on 24th July, 2003.

(a) Defence Housing Authority Lahore Order (26 of 2002)‑‑‑

------Art. 19‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Aggrieved person‑‑‑Authority sealed shop in possession of tenant, who was brother of petitioner‑‑‑Prayer by petitioner for desealing such shop‑‑‑Validity‑‑‑Petitioner was not an aggrieved person, so far as sealing or desealing of such shop was concerned‑‑‑Such prayer could not be granted in Constitutional petition filed by petitioner‑‑‑Constitutional petition was not competent.

(b) Defence Housing Authority Lahore Order (26 of 2002)‑‑‑--

‑‑‑‑Art. 19‑‑‑Civil Procedure Code (V of 1908), O.I, R.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Authority sealed shop in possession of tenant for using same in contravention of Defence Housing Authority Lahore Order, 2002‑‑‑Application by landlady for impleading her as party to Constitutional petition filed by tenant seeking desealing of shop‑‑‑Validity‑‑‑Question of sealing or desealing of shop was a matter between tenant and Authority‑‑‑Constitutional petition could be decided without impleading landlady as party‑‑‑High Court ‑dismissed application.

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

‑‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Dispute about ownership of shop already‑sub judice before Civil Court‑‑‑Evidence would have to be recorded to decide such dispute, which exercise could not be undertaken while deciding Constitutional petition‑‑‑Civil Court was proper forum for adjudicating such dispute‑‑‑Matter already pending before Civil Court between parties could not be agitated before High Court through Constitutional petition­ High Court in exercise of Constitutional jurisdiction would not transgress upon jurisdiction of Civil Court, where matter was already pending‑‑­Such Constitutional petition was not competent.

(d) Defence Housing Authority Lahore Order (26 of 2002)‑‑‑--

‑‑‑‑Art. 19‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Authority sealed the shop in possession of petitioner‑tenant for using same in contravention of Defence Housing Authority Lahore Order, 2002‑‑‑Petitioner alleged such‑ action of Authority having been taken without issuing him any notice‑‑‑Validity‑‑‑Petitioner was occupier/user or a person in control of disputed shop‑‑‑Duty of Authority was to issue an order in writing to occupier/user of premises for using same in contravention of provisions of Defence Housing Authority Lahore Order, 2002 or any rules, regulations or orders made thereunder and in case of his failure to comply with order issued under Art.19(1) of Order, 2002 within specified time, duty of Authority was to provide opportunity of being heard to occupier/user of premises before stopping him from using same in violation of law‑‑‑Authority had issued notice to landlady, who claimed to be owner of disputed shop and was litigating in that respect with another claimant‑‑‑Issuance of notice to landlady of premises would not fulfil requirements of Art.19(1) of Order, 2002 as she was not occupier/user or person in control of shop‑‑‑Opportunity of being heard as required under. Art. 19(2) of Order, 2002 had not been provided to petitioner, who was in possession of shop and was allegedly violating the rules‑‑‑Impugned action of sealing shop could not be considered to be lawful‑‑‑High Court allowed Constitutional petition, declared impugned order as illegal and directed Authority to deseal shop with observations that in case Authority felt ,that petitioner was misusing shop, then he might be proceeded against by following procedure Laid down in Art.19 of Order, 2002.

Hafiz Abdur. Rehman Ansari, Waseem Mumtaz Malik, Ghulam Farid Sanotra and M. Maqsood Buttar for Petitioner.

Akbar Tarar, Addl. A..‑G. for Respondent No. 1.

Maqbool Ahmed Chaudhry for Respondents Nos. 2 to, 4.

Date of hearing : 16th July, 2003.

2004 C L C 108

[Lahore]

Before Muhammad Akhtar Shabbir, J

Dr. MUHAMMAD ASLAM SIAL‑‑‑Petitioner

Versus

BOARD OF REVENUE, PUNJAB and 2 others‑‑‑Respondents

Writ Petition No.6271 of 2003, decided on 22nd July, 2003.

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

‑‑‑‑Ss. 10, 19‑A & 30(b)‑‑‑Notification No.1925‑83/1253‑CLI, dated 20‑4‑1983‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cancellation of conveyance deed granting proprietary rights to legal heirs of original lessee on the ground of concealment‑ of material facts‑‑‑Validity‑‑‑Board of Revenue had absolute discretion in grant of such rights And selection of grantees under such notification‑‑‑Person owning land equal to or more than subsisting holding and not in. cultivating possession of leased land or having acquired land in any other scheme was not entitled to grant of proprietary rights under such notification‑‑‑Lease in favour of original lessee had terminated forthwith after his death‑‑ ‑Petitioners were neither in cultivating possession of land leased out to their predecessor nor were lessee thereof nor had taken possession thereof with permission of the Collector‑‑‑Original lessee had died in the midst of lease period, thus, possession of petitioners for left over period could not legitimize his possession‑‑‑One petitioner had obtained land in another scheme and was owner of land more than subsisting holding‑‑‑Original lessee had died as lessee and not as grantee or tenant of land, thus, provision of S.19‑A of Colonization of Government Lands (Punjab) Act, 1912 would not be attracted to case of petitioners‑‑‑Original lessee had not been granted right to purchase proprietary rights, thus, petitioners, being his legal heirs were not declared as "eligible" for its grant under such notification‑‑‑Petitioners had failed to fulfil conditions prerequisite for grant of proprietary rights under such notification‑‑‑Petitioners had acquired proprietary rights through fraud or misrepresentation‑‑‑Board of Revenue had rightly cancelled conveyance deed in exercise of powers under S.30(b) of the Act‑‑‑High Court dismissed Constitutional petition in limine.

Sharif Haroon v. Province of the Sindh through the Secretary, Government of Sindh and another PLD 2003 Kar: 237 and Hakam Dad v. Province of Punjab 2003 CLC 240 rel.

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

‑‑‑‑Ss. 10 & 30‑‑‑Notification No.1925-83/1253/CLI, dated 20‑4‑1983‑‑­Temporary cultivation scheme‑‑‑Proprietary rights, grant of‑‑‑Board of Revenue had absolute discretion in grant of such rights and selection of grantees.

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

‑‑‑‑S. 10(4)‑‑‑State land‑‑‑Tenancy of‑‑No person could be treated as tenant, unless he had taken possession of State land with permission' of Collector.

Sharif Haroon v. Province of the Sindh through the Secretary, Government of Sindh and another PLD 2003 Kar. 237 rel.

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

‑‑‑‑S. 19‑A‑‑‑Succession to tenancy of State land‑‑‑Scope‑‑‑Provisions of S. 197-A of Colonization of Government Lands (Punjab) Act, 1912 would not be applicable, where original allottee died as a lessee and not as a grantee or tenant of land.

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

‑‑‑‑S. 24‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Legal heirs remaining in possession of land after death of the original lessee‑‑‑Demand of "Tawan" by Authority ‑‑‑Validity‑‑­Petitioners had not occupied land forcibly or illegally, but had continued their possession under impression that they, as legal heirs of original lessee, were entitled to grant of its proprietary rights‑‑‑Authority had not taken legal action for resumption of land from petitioner‑‑‑Petitioner could not be penalized for such default of authority‑‑‑High Court set aside levy of "Tawan" on petitioners.

Ch. Riaz Hussain for Petitioner.

Muhammad Sohail Dar, Asstt. A.‑G. for Respondents

2004 C L C 132

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD NAZIR and others‑‑‑ Petitioners

Versus

Begum MARYAM SALAMAT and others‑‑‑Respondents

Civil Revision No. 222 of 1992, decided on 2nd July, 2003.

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

‑‑‑‑S. 42‑‑‑Contract Act (IX of 1872), S.11‑‑‑Limitation Act (IX of 1908), Ss.6, 13, 19 & Art. 148‑‑‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), Ss.2, 3 & 7‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S.25‑‑‑Suit for declaration‑ ‑‑Mortgage was effected in year 1887‑‑‑Period of 60 years to redeem mortgage expired on 27‑1‑1947‑‑‑Property was treated as evacuee and allotted to claimant in year 1960‑‑‑Plaintiffs filed suit on 22‑7‑1980 claiming that mortgage having been created during minority of their predecessors‑in-­interest by their mother (defendant) was not binding on them, thus, same could not be treated as evacuee‑‑‑Trial Court decreed suit, but Appellate Curt dismissed the same as being time‑barred and that Civil Court had no jurisdiction‑‑‑Validity‑‑‑Predecessors of plaintiffs during their life time, after attaining majority, had not challenged mortgage within period of limitation‑‑‑Plaintiffs in their application seeking redemption of mortgage filed before Collector in year 1971 had not challenged legality of mortgage‑‑‑Plaintiffs could not be allowed to approbate and reprobate in respect of same transaction‑‑‑Plaintiffs having consciously admitted mortgage as valid were estopped to challenge same on such ground‑‑­Jamabandi for year 1956‑57 [made beyond period of 60 years] finding mention of mortgage would not have effect, of acknowledgement of mortgage‑‑‑No notification of Central Government acknowledging right of redemption of mortgagor existed‑‑‑Mortgage stood terminated on expiry of 60 years on 26‑1‑1947 by operation of law‑‑‑Period of limitation for redemption of mortgage having already expired, could not he frozen at the time, when evacuee mortgagee migrated to India‑‑‑Right in suit‑land vested in Central Government, free from all encumbrances for having stepped into shoes of non‑Muslim evacuee‑‑‑Jurisdiction of Civil Court stood barred by virtue of S.25 of Displaced Persons (Land Settlement) Act, 1958, after transfer of land to claimant‑‑‑Plaintiffs had failed to specify any starting point of limitation based upon knowledge‑‑‑Suit was time‑barred‑‑‑High Court dismissed revision petition.

Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; Karim Bakhsh v. Gul Rehman 1990 CLC 1200; Yadakattu Suryaprakasam v. Ake Gangaraju and others AIR 1956 Andh. Pra. 33; Rambilas Singh and others v. Lokenath Chaudhuri and others AIR 1949 Pat. 405; Sardar Prasad Das v. Binaykrishna Datta AIR 1931 Cal. 393; Firm Bhola Ram Harbans Lal and another v. Bhagat Ram and others AIR 1927 Lah. 21; Suba through his L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others 1992 SCMR 1721; Khuda Bakhsh through Legal Heirs and 8 others v. Muhammad Din through Legal Heirs and 10 others 1994 SCMR 402; Mst. Umri v. Muhammad Boota and others 1993 MLD 1620; Samar Gul v. Central Government and others PLD 1986 SC 35; Allah Yar v. Custodian of Evacuee Properties, Punjab, Lahore and others 2000 YLR 728; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Ramzan v. Sohrab Khan and another PLD 1990 Lah. 314; Mahmood Khan v. Muhammad Hasan and 7 others 1991 SCMR 1566; Mst. Mushtri and 5 others v. Lajbar and 10 others 1984 CLC 1240; Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278; Mst. Hanifa Begum v. Muhammad Afzal Khan and 46 others 1981 CLC 1156; Kasem Molla v. Fajel Shek and others PLD 1952 Dacca 347; Buland Khan and 6 others v. Muhammad Rafique and 6 others PL.D 1979 Lah. 237; Faiz‑ud‑Din Ahmad v. Muhammad Yousaf and another 1988 SCMR 1289; Sardar and others v. Shaukat Ali and others 1990 SCMR 951; Said Akbar Khan and others v. Ali Muhammad 1992 CLC 1195; A.M. Kamal through Legal Heirs and others v. Lahore Improvement Trust 1997 CLC 121; Ch. Haq Nawaz Chohan v. Ch. Tariq Azam and 43 others 1994 CLC 1530; Fatahuddin v. Sarshad and another 1973 SCMR 248 and Said Rasool v. Muhammad Tufail 1989 MLD 165 ref.

(b) Approbate and reprobate‑‑‑

‑‑‑‑ Party could not be allowed to approbate and reprobate in respect of same transaction.

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

‑‑‑S. 60‑‑‑Limitation Act (IX of 1908), S.19 & Art.148‑‑‑Redemption of mortgage‑‑‑Limitation‑‑‑Entry in Revenue Record about mortgage made much beyond period of 60 years would not have effect of acknowledgement of mortgage.

Sardar Asmat Ullah Khan for Petitioners.

Pervez Barki and Syed Hamid Ali Bokhari for Respondents.

Date of hearing: 9th April, 2003.

2004 C L C 145

[Lahore]

Before Mansoor Ahmad and Abdul Shakoor Paracha, JJ

Mst. SHAH SULTAN and 45 others‑‑‑Appellants

Versus

CHIEF COMMISSIONER OF ISLAMABAD and 5 others‑‑‑Respondents

Intra‑Court Appeal No.77 of 2003, decided on 10th July, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Locus standi‑‑‑Any person having any right or semblance of right possesses locus standi to invoke Constitutional jurisdiction for redress against any invasion of such right.

(b) Punjab Land Acquisition Rules, 1983‑‑‑

‑‑‑‑Rr. 14 & 15‑‑‑Constitution of Pakistan (1973). Art. 199‑‑­Constitutional petition‑‑‑Locus standi‑‑‑Proceedings initiated for resumption of acquired land from company‑ ‑‑Petitioner claimed to be bona fide purchaser of such land from the company‑‑‑Petitioner having been rightly aggrieved of such proceedings, had locus standi to file Constitutional petition.

(c) Punjab Land Acquisition Rules, 1983‑‑‑

‑‑‑‑R. 15‑‑‑Land Acquisition Act (I of 1894), S.41(3)‑‑‑Punjab Land Acquisition Act, 1886‑‑‑Punjab Land Acquisition Rules, 1983, R.15‑‑­Islamabad Capital Territory (Administration) Order (P.O. 18 of 1980), Art.2‑‑‑Capital Development Authority Ordinance (XXIII of 1960), Ss.22 to 36‑B‑‑‑Resumption of acquired land from company in event of its non­ utilization for restoring the same to previous owners‑‑‑Initiation of such proceedings under R.15 of Punjab Land Acquisition Rules, 1983 in respect of land within Islamabad Capital Territory ‑‑‑ Scope ‑‑‑ Notification No.1/4/LXO/82, dated 19‑1‑1982 issued under Art.2 of Islamabad Capital Territory (Administration) Order, 1980 does not make applicable Punjab Land Acquisition Act, 1886 in its entirety in Islamabad Capital Territory‑‑‑Punjab Land Acquisition Act, 1886, and Punjab Land Acquisition Rules, 1983 ,are not applicable to Islamabad Capital Territory, which is given distinct Constitutional status and is a separate area from the Province of the Punjab‑‑‑Land Acquisition Act, 1894 is not a law applicable for purpose of acquisition within Islamabad Capital Territory‑‑‑Compulsory acquisition of land within Islamabad Capital Territory is effected under Capital Development Authority Ordinance, 1960 and Land Acquisition Regulation, 1961‑‑‑General Standing Order No.28 issued under Land Acquisition Act, 1894 is not applicable in Islamabad Capital Territory premise for. initiating proceeding under Punjab Land Acquisition Rules, 1983 by Chief Commissioner, Islamabad was not legally available‑‑‑Principles.

Through Notification No.1/4/LXO/82, dated 19‑1‑1982 issued under Article 2 of Islamabad Capital Territory (Administration) Order, 1980 (P.O. No.18 of 1980) by Administrator, Islamabad Capital Territory, it is ordered that Deputy Commissioner, Islamabad shall exercise all powers as Commissioner, Land Revenue, Islamabad within the revenue limits of Islamabad under the following laws:‑‑

1. Punjab Land Revenue Act, 1967.

2. Punjab Land Acquisition Act, 1886.

3. Punjab Tenancy Act, 1887.

4. Land Reforms Regulations, 1972 and 1977.

5. Punjab Urban Immovable Property Tax Act, 1958.

Said notification clearly shows that it has been issued by Administrator to confer powers on D.C., Islamabad to exercise all powers as Commissioner, Land Revenue. It is not the notification, whereby Punjab Land Acquisition Act, 1886 in its entirety is made applicable in Islamabad Capital Territory. Compulsory acquisition of land within Islamabad Capital Territory is effected under the special law, which is Capital Development Authority Ordinance, 1960 and its Chapter IV starting from sections 22 to 36‑B deals with it. Capital Development Authority Ordinance, 1960 provides a complete and comprehensive procedure for acquisition of land. Land Acquisition Regulation, 1961 were framed by C.D.A. in‑exercise of the powers conferred under section 51 of Capital Development Authority Ordinance, 1960. Thus, it is clear that within Islamabad Capital Territory, Punjab Land Acquisition Act, 1886 is not applicable. Punjab Land Acquisition Rules, 1983 were framed by the Governor in exercise of powers conferred upon him by section 55(1) of Land Acquisition Act, 1894. These Rules were framed and enforced by Provincial Government on 22‑2‑1983, therefore, these Rules are only applicable within Province of the Punjab. Islamabad Capital Territory is a distinct area from Province of the Punjab. On dissolution of West Pakistan by Presidential Order No.1 of 1970, Islamabad Capital Territory was given separate identity. Vide P.O. No.12 of 1970, the Administration of Islamabad Capital Territory for the time being was allowed to be with Government of the Punjab, but in 1980 through P.O. No.17 of 1980, the P.O. 12 of 1970 was repealed. Simultaneously, P.O. 18 of 1980 was issued and enforced, whereby Administrator for Islamabad Capital Territory was appointed and through a notification issued under Article 2 of P.O. 18, the Administrator, Islamabad was conferred the powers of Provincial Government. In Constitution of Pakistan, 1973, Islamabad Capital Territory is given distinct Constitutional status. Any Provincial Laws of Province of the Punjab, which were not laws existing in year 1970 do not apply in the territorial limits of Islamabad Capital Territory. Land Acquisition Act, 1894 is not a law applicable for purposes of acquisition within Islamabad Capital Territory and Punjab Land Acquisition Rules, 1983 framed much subsequently, under Punjab Land Acquisition Act are not applicable, firstly, because main Act is not applicable in Islamabad, secondly, these Rules were framed by Government of the Punjab and thirdly, these were not the existing laws in year 1970.

Rule 15 of Punjab Land Acquisition Rules, 1983 is only applicable and enforceable in Province of the Punjab and in the Islamabad Capital Territory, it has no applicability.

General Standing Order No.28 issued under Land Acquisition Act, 1909 is only applicable, when agricultural or pastoral land is acquired by any Government Department.

Standing Order No.28 is not applicable in Islamabad Capital Territory. The land acquired in present case was neither agricultural nor pastoral. Land was acquired by the company to establish industry known as Pakistan Industrial Gases Ltd. Rule 100 of Standing Order No.28 does not confer any right upon previous owners to seek restoration of land for which they had already received compensation.

Punjab Land Acquisition Rules, 1983 are not applicable within the area of Islamabad Capital Territory, therefore, the question of retrospectively becomes irrelevant.

In the absence of applicability of Punjab Land Acquisition Rules, 1983 in Islamabad Capital Territory, the premises for initiating proceedings under said Rules by Chief Commissioner, Islamabad are not legally available.

Adnan Afazal v. Capt. Sher Afzal PLD 1969 SC 187; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Mahmood Shah and others v. Additional Settlement Commissioner, Revenue and others PLD 1979 Lah. 709; Governor, N.‑W.F.P. and another v. Gul Naras Khan 1987 SCMR 1709 and Commissioner, Sindh Employees' Social Securities Institution and another v. Messrs E.M. Oil Mills and Industries Ltd. and others 2002 SCMR 39 ref.

Muhammad Ikhlaque Awan for Appellants.

Hafiz Saeed Ahmed Sheikh for Respondents.

Date of hearing: 30th June, 2003.

2004 C L C 160

[Lahore]

Before Farrukh Latif, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No.2586 of 2003, decided on 16th September, 2003.

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

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Custody of minors‑‑‑Welfare of minors‑‑‑Application filed by father of minors for custody under S.25 of Guardians and Wards Act, 1890 was accepted by Family Court on the grounds that financially applicant/father of minors was on sound footing and after separation his wife/mother of minors having remarried a person who was not related to the minors within the prohibitory degree, was riot likely to give love and affection to the minors which could be given by their father‑‑‑Appellate Court set aside the judgment of Family Court and dismissed application of father for custody of minors, on the ground that both children being of tender age, were attached with their mother; that they were enjoying good health, the daughter aged 6 years was studying in school while minor son being young was not of school‑going age; that minors were being properly brought up by the mother; that there was no substitute of love and affection of real mother; that the paramount consideration was the welfare of the minors and that mother, in circumstances, could not be deprived of their custody simply on ground that she had remarried a stranger‑‑‑Validity‑‑‑Keeping in view the tender age of the minors, it was harsh and unjust to deprive minors from mother's company‑‑‑Guardians and Wards Act, 1890 did not provide that custody of minors be decided on the basis of views expressed by different schools of jurisprudence with reference to minor's age or remarriage of divorcee‑‑‑Overriding and paramount consideration always was the welfare of the minors which would mean their mental, intellectual, moral and spiritual well being‑‑­Judgment of Appellate Court which was reasonable, was not only based on evidence, but was also supported by sound and plausible reasoning‑‑­Finding of fact recorded by Appellate Court could not be interfered with by High Court in its Constitutional jurisdiction especially when it could not be shown to be based on misreading or non‑reading of evidence or suffering from any jurisdictional infirmity.

Saghir Ahmad Bhatti for Petitioner.

2004 C L C 174

[Lahore]

Before Ch. Ijaz Ahmad, J

Prof. Dr. ANWAR AHMAD‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Government of Pakistan, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.907 of 2003, decided on 28th July, 2003.

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

‑‑‑‑Arts. 9 & 32‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Complaint before Wafaqi Mohtasib‑‑­Representation before the President‑‑‑Complaint filed by petitioner before Mohtasib having been accepted, respondents being aggrieved by order of Mohtasib filed representation under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983‑‑‑Said representation was accepted without providing proper hearing to the petitioner‑‑‑Order accepting representation having been passed without issuing notice to petitioner, was not sustainable in the eye of law‑‑‑Basic order being without lawful authority, superstructure built thereon would fall automatically‑‑‑Impugned order and notice issued on the basis of said order were set aside and representation filed by respondents would be deemed to be pending adjudication before Competent Authority which would be decided, after providing opportunity of hearing to the parties.

Federation of Pakistan v. Muhammad Tariq Pervaiz 1999 SCMR 2189; Federation of Pakistan v. Muhammad Tariq Pervaiz 1999 SCMR. 2744; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Pakistan Chrome Mine's case 1983 SCMR 1208; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; Crescent Sugar Mills and Distillery Ltd. v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 ref.

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

‑‑‑‑Art. 189‑‑‑Judgment of Supreme Court‑‑‑Binding force of‑‑­Judgment of Supreme Court was binding on each and every organ of the State.

Mirza Manzoor Ahmed for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for Respondents.

2004 C L C 219

[Lahore]

Before Sh. Hakim Ali, J

JAM ABDUL HAMEED SHAHID ---Appellant

versus

LIAQAT ALI ---Respondent

Regular First Appeal No.31 of 2000, decided on 4th December, 2003.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of amount on basis of pronote---Presumption as to, negotiable instrument---Principles---Plaintiff in his plaint claimed recovery of Rs.49,000 on the basis of pronote and receipt allegedly executed by the defendant in his favour- --Defendant in the written statement had raised plea that Rs.35,000 in fact were paid by the plaintiff to him through cheque while Rs.14,000 were entered and added as interest---Defendant had pleaded that Rs.28,000 had been paid by him to the plaintiff and admitted the liability of remaining amount of Rs.7,000 to be paid---Trial Court decreed suit considering the plea of defendant--­Version of defendant that Rs.35,000 were paid by plaintiff to him was admitted by plaintiff during trial---Burden to prove otherwise could not be placed on the defendant, because it was the plaintiff who while appearing as witness into his evidence, had deviated from his own version as was put forward by him in his plaint and in circumstances became disentitled by his own conduct to raise said presumption--­Sanctity of pronote and receipt as was to be raised under S.118 of Negotiable Instruments Act, 1881', was got lost by the said admission and action of plaintiff himself---Presumption under 5.118 of Negotiable Instruments Act, 1881 was rebuttable and different self-contradictory forms of pleas raised by plaintiff in his pleadings and at the stage of evidence had tarnished the image of sanctity attached to said document--­Where different versions and pleas were brought which were contrary to written document i.e. pronote and receipt burden of proving consideration would shift to the plaintiff unless claim in part or in whole was admitted by defendant---Trial Court, in circumstances, had rightly found that Rs.35,000 were only lent to defendant as was admitted by plaintiff himself in his statement and the marginal witness produced by him in evidence---Payment of Rs.28,000 as alleged and asserted by defendant, was rightly held to have been paid by defendant to plaintiff.

Zohra Jan v. Rajan Bibi AIR 1915 Lah: 86(2); G. Venkatareddi v. P. Nagireddi AIR.1951 Mad. 851 and Ali Muhammad and 2 others v. Gulfam and another PLD 1983 Kar: 99 ref.

Bilal Qazi for Appellant.

Malik Manzoor Ahmad Misson for Respondent.

2004 C L C 228

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. NASREEN AKHTAR---Petitioner

versus

JAVED AKHTAR---Respondent

Writ Petition No 5097 of 2003, decided on 17th October, 2003.

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

----S. 25---Custody of minor---Principles---Paramount consideration by the Courts must be given to the welfare of minors.

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

----S. 25---Constitution of Pakistan (1973), Art.199 --- Constitutional petition---Custody of minor---Father of minors filed application for custody---Minors were living with their mother and Were well-groomed, intelligent, good in studies, enjoying good health and were studying in good school---Guardian Court dismissed the application, of the father but Appellate Court allowed the appeal and application was accepted--­Validity---Minors were well-kept and better looked after about their studies---Appellate Court had wrongly considered that the mother being woman could not look after the minors---Appellate Court did not appreciate the evidence produced by the parties in proper perspective and failed to consider the paramount welfare of the minors---Uprooting the minors from the present custody at such stage would result in disaster to their studies---Judgment and decree passed by the Appellate Court was set aside and that of the Guardian Court was restored---Petition was allowed accordingly.

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

----S. 25---Custody of minor---Observation of Court---Effect---Personal observation of the Court does not carry any weight.

Muhammad Arif Ch. for Petitioner.

Abdul Hamid Rana for Respondent.

Date of hearing: 13th October, 2003.

2004 C L C 240

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

WILAYAT KHAN---Petitioner

versus

MUHAMMAD SHARIF through Mst. Irshad Bibi and others---Respondents

Civil Revision No. 1317/1) of - 1998, decided on 16th October, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption, exercise of---Principles---Such right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately on hearing the sale---Even a short delay cannot be excused.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 ref.

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

----S. 39---Entry in Register of Mutations---Not a proof of transfer---Such entry does not confer any title .as the mutation in favour of a person is not a conclusive evidence of transfer of land to such person.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 30---West Pakistan Land Revenue Act (XVII of 1967), S.39---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Right of pre­emption, exercise of---Limitation---Knowledge of attestation of mutation---Onus to prove---Scope---Where mutation in question had found its way in the Revenue Record, the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lie on the party asserting such facts.

(d) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 31 --- Pre-emption suit --- Talb-e-Muwathibat --- Proof --- Notice issued by Revenue Authorities---Evidence of most material witness about Talb-e-Muwathibat was full of contradictions as such the evidence was not trustworthy and was not relied upon by the Trial Court ---Pre-emptor was co-sharer in the same Khata in the land---Contention of the pre­ emptor was that no notice of attestation of mutation was given to public at large by the Revenue Authorities, therefore, the sale came to his knowledge through informant---Suit was dismissed by the Trial Court but the Appellate Court allowed the appeal and the suit was decreed--­ Validity ---Pre-emptor being a co-sharer in the same Khata of disputed land, it was not possible that he remained ignorant about the attestation of mutation ---Pre-emptor had to prove that he made Talb within the acquired time as envisaged in SA3, Punjab Pre-emption Act, 1991---Pre­ emptor failed to produce reliable, true and trustworthy evidence regarding knowledge of sale which was not beyond material contradictions---Judgment and decree passed by the Appellate Court were set aside and revision was allowed.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 ref.

S.M. Masud for Petitioner.

Agha Taj Muhammad for Respondents.

Date of hearing: 8th October, 2003.

2004 C L C 262

[Lahore]

Before Mian Hamid Farooq, J

ATTA MUHAMMAD and another‑‑‑Petitioners

versus

Mst. ELAHI KHANUM and 16 others‑‑‑Respondents

Civil Revisions Nos.'256 to 260 of 1992, heard on30th September, 2003.

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

‑.‑‑‑S: 115‑‑‑Civil revision admitted for regular hearing‑‑‑Dismissal of such revision for non‑prosecution‑‑‑Although the civil revision was admitted for regular hearing, yet no one entered the appearance to represent the petitioners‑‑‑Effect‑‑‑Dismissal of civil revision after its admission by the Court for non‑prosecution was not legally appropriate‑‑‑High Court refrained from dismissing the revision petition for non‑prosecution and proceeded to decide the same on merits.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 fol.

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

‑‑‑‑O. VII, R.11, O.XLI, R.23 & S.115‑‑‑Judgment at variance‑‑­Rejection of plaint‑‑‑Remand of the cases to Trial Court‑‑‑Appellate Court, jurisdiction of‑‑‑Plaints were rejected by Trial Court but the Appellate Court allowed the appeals and the cases were remanded to the Trial Court for decision on merits‑‑‑Validity‑‑‑While rejecting the plaints, the Trial Court committed legal errors which were rectified by the Appellate Court‑‑‑Reasoning and findings rendered by the Appellate Court were in consonance with the record of cases and law on the subject‑‑‑Cases did not fall within the purview and scope of any of the categories mentioned in O.VII, R.11, C.P.C.‑‑‑Judgment passed by Appellate Court was neither contrary to the record nor was in violation of the principles of administration of justice rather it had rectified the legal errors committed by the Trial Court‑‑‑Judgment of Appellate Court should ordinarily be preferred‑‑‑High Court declined to exercise the revisional jurisdiction.

Alam Khan v. Ahla and 6 others 1989 MLD 3659; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312 and Aasa v. Ibrahim 2000 CLC 500 ref.

Nemo for Petitioners.

Nemo for Respondents Nos. 1 to 15.

Ch. Shaukat Ali Saqib for Respondents Nos. 16 and 17.

Date of hearing: 30th September, 2003.

2004 C L C 269

[Lahore]

Before Ch. Ijaz Ahmad, J

NAWAB DIN---Petitioner

versus

MUHAMMAD HUSSAIN ---Respondent

Civil Revision No.48/D of 1992, heard on 28th October, 2003.

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

----S. 3---Limitation---Duty of Court to see, whether suit is barred by time or not, even without raising objection by any of the parties in view of S.3 of Limitation Act, 1908.

Sh. Allah Rakha's case 1993 MLD 2126 and Ali Hassan and another's case 1997 CLC 268 rel.

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

---S. 96 & O.XLI, R.33---First Appellate Court would be well within its right to re-appraise evidence and reverse findings of Trial Court.

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

----S. 115---Findings of Courts below on questions of fact or law--­Matters upon which High Court has to satisfy itself before interfering with such findings.

Section 115, C.P.C. empowers High Court to satisfy itself upon three matters: (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have exercised jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of trial, which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon said three- matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of subordinate Court upon questions of fact or law.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Board of Intermediate, and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 fol.

Muhammad Haleem and others v. H.. Muhammad Naim and others PLD 1969 SC 270 ref.

Syed Azhar Ali Shah for Petitioner.

Tahir Mehmood Qureshi on behalf of Mushtaq Ahmad Qureshi for Respondent.

Date of hearing: 28th October, 2003.

2004 C L C 281

[Lahore]

Before Maulvi Anwarul Haq, J

SHAUQ-UR-REHMAN --- Petitioner

versus

TAIMOOR AHMED KHAN and 2 others --Respondents

Writ Petition No.2938 of 2001, heard on 14th October

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.XXIII. R.1---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Withdrawal of suit effected through fraud---,Application seeking revival of suit by setting aside order of withdrawal of suit---Petitioner alleged that his brother (defendant) took him before Duty Judge before the date fixed in the case by representing that his property would be returned to him and his signatures were obtained there---Trial Court dismissed application without holding any inquiry, which judgment was upheld by the Appellate Court in revision---Validity---Petitioner was unmarried and respondent was his brother, --- had filed suit to challenge gift deed denying to have made gift of his property in favour of respondent---Petitioner had engaged c6unsel---Case had been taken up on a date before Duty Judge before date fixed---Petitioner had appeared without his counsel, when his statement was recorded---Petitioner was entitled to an opportunity to lead evidence to show as to how his statement was got recorded resulting in dismissal of his suit---Trial Court had simply stated that perusal of statement of petitioner would show that he had appeared in Court and got his statement recorded---High Court deprecated the approach of the Trial Court, accepted the Constitutional petition and set aside impugned order by declaring the same to be without lawful authority with directions to Trial Court to decide application after framing issues and recording evidence of both the parties.

Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46 and Mrs. Esmeraida Concaicao Bertha Podrigues Da Costa through Attorney v. Sabir Hussain and another 2001 SCMR 1522 rel.

Sardar Tariq Anees for Petitioner.

Muhammad Amin Jan for Respondents.

Date of hearing: 14th October, 2003.

2004 C L C 287

[Lahore]

Before Raja Muhammad Sabir, J

Rana MUHAMMAD AS LAM ---Petitioner

versus

SECRETARY, LOCAL GOVERNMENT through Government of Punjab

and 4 others---Respondents

Writ petition No. 15294 of 2003, decided on 6th November, 2003.

Punjab Local Government Ordinance (XIII of 2001)--

----Ss. 156(3)(5) &186(2)---Vacancy of Tehsil Nazim or Naib-Nazim--­Holding of election for such seat on officiating basis under orders of Secretary, Local Government and District Coordination Officer--­Validity---House had to elect its officiating Naib-Nazim to run the affairs of Council, till the same, was filled in through bye-election to be conducted under orders of Chief Election Commissioner--For holding election' for such seat on officiating basis, no other provision existed in Punjab Local Government Ordinance, 2001 except S.186(2) thereof--­Holding of election for such seat on officiating basis under orders of the Secretary, Local ,Government and District Coordination Officer would not be violative of any provision of the .Ordinance---Such arrangement would be- in conformity with spirit of law and democracy to run the affairs of .Council during transitory period through officiating Naib­Nazim, if he enjoyed support of majority of the House---Bye-elections would be held under orders of Chief Election Commissioner, while vacancy of Tehsil Nazim or Naib-Nazim could be filled in for officiating purposes through election under orders of Secretary, Local Government.

Dr. Khalid Ranjha. and Rana Muhammad Arif for Petitioner.

2004 C L C 293

[Lahore]

Be/ore Maulvi Anwarul Haq, J

Dr.SHAGUFTA HUSSAIN and another---Petitioners

versus, WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 4 others---Respondents

Writ Petition No.819 of 1999, heard on 20th October 2003.

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

--.-Art. 199--Constitutional petition--.Non-filing of written statement­ Effect --Facts stated in Constitutional petition would stand admitted for having not been dented.

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

----S. 23 & Sched.---Constitution of Pakistan 11973). Art. 199 -­ Constitutional petition----lise of two rooms of a residential house by a lawyer as study/library rooms- Demand of electricity charges by WAPDA for entire premises oil commercial basis---Validity-- Building in question was primarily a residential house occupied by the petitioner and her family members including her late husband (a practising lawyers)- Lawyer does not carry on trade or business---,Such building, thus, could not be converted into a commercial one on account of use of its few rooms by a lawyer as his library, study rooms or for that matter even Iris office-.High Court accepted Constitutional petition and declared such demand to he illegal and void.

V. Sasodharan v Messrs Peter and Karunakai and others 1985 PSC 777: Dr. Devendra M. Surti v. The State of Gujarat AIR 1969 SC 63 and Gull Afzal Khan. v. Muhammad unit Arif PLD 1979 Lah. 398 ref.

(c) Words and phrases---

---- Commercial" Definition.

Black's Law Dictionary, Fifth Edn.p. 245 ref.

(d) Words and phrases---

----“Profession”--- Definition.

Black's Law Dictionary, Fifth Edn. Pp-1089-1090

Nasir Saeed Sheikh for Petitioner.

Khalid Zaman for Respondents.

Date of hearing: 20th October, 2003 ,

2004 C L C 300

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD ASIF KHAN---Petitioner

versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, PUNJAB, LAHORE and 6 others---Respondents

Writ Petition No. 14488 of 2003, decided on 16th October, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. .156(7), 158 & 162---Election to vacant seat---Resignation by Union Nazim---Said resignation on the day of its submission in terms of S.162 of Punjab Local Government Ordinance, 2001 would become effective forthwith---Non-issuance of notification in this regard would not have effect of bringing the Nazim back to his old office---Members of Council would be entitled to elect any of 'their Councillor as officiating Nazim for the-vacant seat.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 156(7), 158 & 162---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Seat of Union Nazim vacated by - filing resignation---Election of officiating Nazi m---Resigned member being no more member of Union Council could not object to such election as he was not an aggrieved person within meaning of Art. 199 of the Constitution---High Court dismissed Constitutional petition.

Malik Waqar Salim for Petitioner.

2004 C L C 324

[Lahore]

Before Muhammad Akhtar Shabbir, J

DILAWAR HUSSAIN and another--- Petitioners

versus

DISTRICT COORDINATION OFFICER, OKARA and 2 others---Respondents

Writ Petition No. 12508 of 2003, decided on 16th October, 2003.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 28---Constitution of Pakistan (1973), Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---Passage passing through Medical Colony owned by Health Department---District Coordination Officer, with consent of medical staff, initially permitted petitioners (residents of adjacent colonies) to use such passage, but later on recalled its order---Petitioners claimed right to use such passage ---Validity--­Property in question belonged to the Provincial Government---Any alteration, demolition or addition could be made by D.C.O. and functionaries of Health Department after prior approval from the Competent Authority, which was the Secretary .Health---Allowing use of such passage without sanction of the Competent Authority was illegal, without jurisdiction and mala fide just to accommodate petitioners--­Respondents by recalling such permission had rectified their mistake committed by them and excess exercise of their jurisdiction---Recalling of such permission would not prejudice rights of petitioners as an illegal order would not give vested right to a party in favour the same was passed---High Court dismissed the Constitutional petition.

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

----Art. 199---Constitutional petition would be maintainable, where authority/public functionaries had violated any provision of law or statutory rules.

Shahid Bashir v. Chairman, Punjab Board of Technical Education 2001- MLD 573 and Rashid Ali v. National College of Arts 1001 YLR 1428 rel.

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

----Art. 199---General allegation of malice---Constitutional petition would not be maintainable-on basis of such allegation.

Syed Nawaz's case PLD 1981 S.C 371 rel.

(d) Thoroughfare---

---- No thoroughfare could be allowed through colonies maintained by Government without sanction of Competent Authority---In absence of sanctioned public thoroughfare, no vested right would accrue to private persons merely by using same for some days or months.

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

----Art. 199---Constitutional petition---Concealment of any fact by petitioner---Effect---High Court in such case would be competent to decline to interfere with matter while exercising Constitutional jurisdiction.

(f) Words and phrases---

------ Locus poenitentiae"---Definition.

Black's Law Dictionary ref.

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

----S. 21---Illegal order---Power of Competent Authority to- rectify, rescind, alter such order---Scope---Locus poenitentiae not a principle of law that order once passed would become irrevocable, past and closed transaction---Perpetual rights could not be claimed on basis of illegal order---Such order could be rectified, rescinded and altered--­Principle of locus poenitentiae thus, would not apply to such case--­Principles.

The competent authority, which passes any order has the power to undo it under General Clauses Act, 1897 as well as under principle of "locus poenitentiae" but the authority cannot withdraw/rescind the order, if it has taken its legal effect.

The concept of "locus poenitentiae" is the power of rescinding till a decisive step is taken, but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal, then perpetual rights cannot be gained on the basis of such an illegal order.

Where the order is illegal, it can be rectified, rescinded, altered and principle of "locus poenitentiae" would not be applicable to such case.

Pakistan, through the Secretary,, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Abdul Haq Indhar v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi 2000 SCMR 907; Messrs Excel] Builders' case 1999 SCMR 2089; The Engineer-in-Chief Branch through Ministry of Defence v. Jalaluddin PLD 1992 SC 207; Ayesha Afzal v: Chairman, Board of Intermediate and Secretary Education, Faisalabad 2001 'CLC 1765 and D.aryaus Pestonji v. Nam Singh 1998 CLC 921 rel.

(h) Jurisdiction---

--- Tribunal acting beyond sphere allotted by law---Effect---Such action would be a nullity in eye of law---Superior Courts would refuse to perpetuate something patently unjust and unlawful. ---Constitution of Pakistan (1973), Art. 199.

Raunaq Ali's case PLD 1973 SC 236 fol.

(i) Words and phrases---

------ Legal right"---Connotation---Legal right is one which is enforceable before Courts and is based upon statute and is invoked for having secured interest.

Farukh Din v. Government of Sindh PLD 2000 Kar. 154 fol.

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

---Art. 199---Question of fact---Such fact could not be adjudicated upon or gone into by High Court in exercise of its Constitutional jurisdiction.

Muhammad Yunus Khan v. Government of N.-W.F.P. 1993 SCMR 618 and Federation of Pakistan v. Major (Rtd.) Muhammad Sabir Khan PLD 1991 SC 476 fol.

Farooq Amjad Mir for Petitioners.

Muhammad Sohail Dar, Asstt. A.-G. (on Court's call)

2004 C L C 339

[Lahore]

Before Muhammad Muzammal Khan, J

RAFAQAT ULLAH CHEEMA and another---Petitioners

versus

EHSANULLAH EHEEMA---Respondent

Civil Revision No. 1095 of 2003, heard on 5th December, 2003.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.l, 2, 3 & 5.115---Suit for recovery of amount on the basis of cheques---Application for leave to appear and defend the suit--­Defendants filed application for leave to appear and defend suit which application was granted subject to deposit of Bank guarantee equivalent to the suit amount within specified period---Defendants, aggrieved of order of the Court regarding furnishing of Bank guarantee, had challenged said order in revision---Defendants who could not comply with order of the Court requiring them to furnish guarantee had earlier filed application for extension of time for furnishing guarantee which yeas allowed---Such act of defendants amounted to acceptance of order of the Court---Defendants, therefore, could not be permitted to challenge the order already accepted by them---Discretion regarding grant of leave to appear and defend suit under provisions of O.XXXVII, Rr.l & 2, C.P.C. entirely vested in the Trial Court which was to be exercised judiciously---Trial Court, in view of admission of execution of cheque, had rightly exercised discretion in accordance with settled principles---Trial Court having exercised its discretion and authority within the parameters fixed by law, no interference in revisional jurisdiction of High Court, was' called for and that too after findings by the Trial Court that dispute between the parties, could only be settled by Trial Court after recording of evidence--­Revision against such proper exercise of Court below was not competent.

Abdul Karim Jaffarani v. United Bank Ltd. and 2 others 1984 SCMR 568; Asif Khurshid v. Saeed Ahmad 2000 CLC 913; Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; Messrs Khalid Rifat Transport Company and 2 others v. Commerce Bank Ltd., Karachi 1973 SCMR 587; Khalid Javed & Company v. Javed Oil Industries 1988 CLC 53; Muhammad Anwar v. Hoechst Pharmaceutical Pakistan (Pvt.) Ltd. and others 1989 MLD 171 and Irshad Ahmed v. Tahir Saeed 1997 MLD-409 ref.

Anwar Kamal for Respondents.

Date of hearing: 5th December, 2003.

2004 C L C 351

[Lahore]

Before Muhammad Muzammal Khan, J

PARVEEN AKHTAR‑‑‑Petitioner

versus

SANIA FEROZE‑‑‑Respondent

Civil Revision No:2073 of 2003, decided on 4th December, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑ Ss. 11 & O.VI, R.17‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑ Suit for declaration‑‑‑Amendment of pleadings ‑‑‑Res judicata; principles of‑‑­Applicability‑‑‑Principles‑‑‑Suit having been dismissed by Trial Court, plaintiff filed appeal against the same alongwith application under O. VI, R.17, C.P.C, seeking amendment of plaint which application was dismissed by the Appellate Court on the ground that same was ambiguous‑‑‑Plaintiff after dismissal of earlier application for amendment of plaint, moved another application seeking same relief which was accepted and plaintiff was allowed to amend her plaint and case was remanded to the Trial Court for fresh decision after entertaining the amended plaint and written statement‑‑‑Order of Appellate Court was assailed by the defendant in revision contending that application on the same subject was not maintainable under principle of res judicata‑‑­Validity‑‑‑Dismissal of earlier application of plaintiff for amendment of the plaint was on technical ground, without touching its merits and without determining right to amend the pleadings‑‑Such dismissal was no bar for maintaining second application for same purpose‑‑‑Second application would only be barred when earlier one was decided on merits‑‑‑Earlier application was dismissed on the ground of being ambiguous and subsequently unambiguous application, detailing with clarity, the proposed amendment, could not be thrown out on the ground that a similar application was earlier dismissed when proposed amendment neither had changed cause of action nor it altered complexion or nature of suit‑‑‑Amendments of pleadings had always been liberally allowed by the Courts subject to the condition that cause of action and complexion of the suit was not changed‑‑‑Appellate Court, in circumstances, had rightly exercised its discretion and jurisdiction in accordance with law‑‑‑In absence of any illegality and irregularity, order of the Appellate Court could not be interfered with by High Court in exercise of, its revisional jurisdiction.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180; M. Saeed Sehgal v. Kazi Khurshid Hassan, Proprietor, India Film Bureau PLD 1964 SC 598 and. Mst. Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240 ref.

Muhammad Usmarl Subhani Khan fox Petitioner.

2004 C L C 365

[Lahore]

Before Muhammad Muzammal Khan, J

FAZAL KARIM ---Appellant

versus

FATEH BEGUM and 6 others---Respondents

First Appeal from Order No. 101 of 2003, heard on 1st December, 2003.

Civil Procedure Code (V of 1908)--

----O. XXXIX, Rr. 1, 2(3) & O.XLIII, R.1(2)---Temporary injunction, grant of---Violation---Application by plaintiffs seeking temporary injunction pending their suit was disposed of restraining the defendant from alienating suit property .but allowing him to complete his construction by erecting lintel at his own cost and risk---Plaintiffs aggrieved of the order of Trial Court; filed appeal before Appellate Court which on the same day, suspended the operation of order passed by Trial Court---Pending appeal, plaintiffs filed application under O.XXXIX, R.2(3), C.P.C. for initiation of proceedings of disobedience of order passed by Trial Court against the defendant on the ground that he being aware of suspension order passed by Appellate Court intentionally completed his construction work and thus had violated order exposing himself to penal action---Defendant denied the allegation of plaintiffs---Validity--Appellate Court by its order having suspended order passed by Trial Court, no prohibitory order was in the field--­Appellate Court having not restrained defendant from raising any construction over the suit property, no question of proceedings against the defendant under provisions of O.XXXIX, R.2(3), C.P.C, would arise---Plaintiff could not say that by suspension of order of Trial Court by the Appellate Court .interim order restraining defendant from raising construction had revived---In absence of any binding order, proceedings under O. XXXIX, R. 2(3), C.P.C. against defendant were not warranted ---Statu quo order would become operative, the moment it was passed whereas other injunctive orders would become effective from the time said orders were served on the parties to whom those were directed---Suspension order would take effect from the date , of its service of person to whom it was directed---Besides there was no binding injunctive order restraining the defendant from carrying on with construction work since suspension order passed by the Appellate Court was served on plaintiff three days after its passing whereas lintel by defendant was completed by the defendant before one day of service of said suspension order---Defendant, in circumstances, had not violated the order of Appellate Court---Proceedings under O.XXXIX, R.2(3), C.P.C. were not warranted and order directing demolition of construction and imposing fine on defendant was not sustainable at law.

Lt.-Col. Mahmood Khan Durrani v. Syed Noshab Ali 1984 CLC 620; Muhammad Rashid v. Iyaz Khan and others PLD 1978 Lah. 919; Haji Abdul Jalil v. Javid Ahmad 1983 SCMR 869; Mst. Ramzan Bibi v. Mst. Amina.Bibi represented by Successors-in-Interest PLD 1970 Lah. 371 and Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Limited and another 1991 CLC 149 ref.

Mehdi Khan Chohan for Appellant.

Ch. Muhammad Zafar Iqbal for Respondents

Date of hearing: 1st December, 2003.

2004 C L C 374

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUKHTARAN BIBI---Petitioner

versus

SHABBIRAN BIBI---Respondent

Civil Revision No.579 of 2003, heard on 18th November, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), Ss. 122 & 123---Suit for declaration---Gift---Claire of plaintiff was that her father was owner of land measuring 24 Kanals and 13 Marlas and he transferred the same in her favour vide registered gift-deed and that she was in possession of said land since its transfer in her name---Plaintiff had also alleged that out of the total land, 4 Kanals and' 7 Marlas out of one Khewat, inadvertently could not be entered in the said registered gift-deed and plaintiff in her suit had sought declaration with regard to said 4 Kanals and 7 Marlas---Trial Court dismissed the suit, but Appellate Court setting aside judgment and decree of Trial Court decreed the suit--­Validity---Registered gift-deed had clearly indicated that land measuring 20 - Kanals and 6 Marlas (only) had been transferred in favour of the plaintiff---Marginal witnesses of gift-deed had also stated that said gift-­deed containing 20 Kanals and 6 Marlas was read over to them before attestation of the same---Gift-deed was properly worded and description of transferred property had been very clearly stated therein---Intention of donor was also clear that he intended to transfer only 20 Kanals and 6 Marlas land 'out of 24 Kanals and 13 Marlas owned by him---Suit-land measuring. 4 Kanals and 7 Marlas was not in possession of the plaintiff but was in possession of defendants as purchasers thereof and plaintiff had not obtained possession of the suit-land on basis of alleged gift­deed---Plaintiff, in circumstances could not claim that suit-land measuring 4 Kanals and 7 Marlas was also transferred in her name--­Trial Court had rightly dismissed the suit whereas Appellate Court had failed to appreciate evidence available on record which had resulted in miscarriage of justice---High Court accepting revision, set aside judgment and decree passed by Appellate Court and suit of plaintiff was dismissed.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD `1964 SC 143 and Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50 ref.

Mian Ghulam Hussain for Petitioner.

Taqi Ahmad Khan for Respondent.

2004 C L C 382

[Lahore]

Before Ch. Ijaz Ahmad and Syed Zahid Hussain, JJ

AMIN-UD-DIN KHAN--Appellant

versus

WATER AND POWER DEVELOPMENT AUTHORITY and others---Respondents

Intra-Court Appeal No.748 of 2002 in Writ Petition No. 14921 of 1999 decided on 20th October, 2002.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court Appeal---Limitation---Delay, condonation of--­Intra-Court appeal was filed by appellant after 3 months and 20 days from passing of impugned order by Single Judge ;of High Court without any application for condonation of delay---Review application against judgment of Single Judge was also filed after more than three months from judgment of Single Judge and order passed in review was not challenged by

2004 C L C 384

[Lahore]

Before Mian Hamid Farooq, J

IRFAN FAZAL‑‑‑Appellant

versus

ZAHID IQBAL‑‑‑Respondent

Regular First Appeal No.721 of 2002, heard on 9th September, 2003.

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

‑‑‑‑O.XXXVII, Rr.2 & 7‑‑‑Proceedings under O.XXXVII, C.P.C.‑‑­Procedure‑Procedure, after grant of leave to appear and defend the suit to a defendant in the summary suit under O.XXXVII, R.7, C.P.C. is the same as in the case of a suit instituted in ordinary manner.

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

‑‑‑‑O.XXXVII, Rr.2, 3 & 7‑‑‑Grounds taken in the leave application to appear and defend the suit‑‑‑Effect‑‑‑Such grounds are effective uptil the decision of the application‑‑‑Defendant, thereafter, is allowed to file written statement and the suit is decided according to the pleadings of the parties.

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

‑‑‑‑S. 118‑‑‑Negotiable instrument‑‑‑Presumptions‑‑‑Court presumes under S.118 of Negotiable Instruments Act, 1881, that negotiable instrument was made or drawn for consideration and that every instrument bearing a date was made or drawn on such date.

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

‑‑‑‑O. XXXVII, R.1‑‑‑Qanun‑e‑Shahadat (10 of 1984) Arts. 117 & 120‑‑­Recovery suit‑‑‑Execution and delivery of cheque‑‑‑Plea of repayment‑‑­Proof‑‑‑By admitting about the availing of amount and also admitting execution and delivery of cheque, the onus automatically is shifted to the defendant to prove that he repaid the total or partial amount to the plaintiff‑‑‑Trial Court after examining the documentary and oral evidence had rightly concluded that the defendant had not been able to discharge the onus of the issue‑‑‑Judgment and decree passed by the Trial Court did not call for any interference and the findings were maintained.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749 ref.

Yousaf Kazmi for Appellant

Peer S. A. Rashid for Respondent

Date of hearing: 9th September, 2003.

JUDGMENT

Appellant/defendant, through the filing of the present appeal, has called in question judgment and decree dated 30‑9‑2002, whereby the learned Additional District Judge passed a decree for the recovery of Rs.50,000, against the appellant.

1. Briefly stated the facts of the case are that the respondent/plaintiff filed a suit for the recovery of Rs.74,000 before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C., on the basis of a cheque dated 31‑3‑2000 alleging therein, that the appellant had borrowed a sum of Rs.50,000, from him, agreed to repay the same at the rate of. Rs.3,000 p.m. and executed the cheque, which was subsequently dishonoured, thus necessitating the filing of the suit., The appellant filed an application, seeking leave to appear and defend the suit, which was allowed and he was granted leave to appear and defend the suit. Pursuant to the above, the appellant filed the written statement: inter alia, pleading that the plaintiff has approached the Court with unclean hands; that he does not hold a money lender's licence and that the suit is barred by time.

Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:‑‑

Issues

(1) Whether the plaintiff is entitled to the decree as prayed for? OPP

(2) Whether the plaintiff has not approached this Court with clean hands? OPD

(3) Whether the suit is barred by limitation? OPD

(4) Whether the suit is false, frivolous and liable to be dismissed with special costs? OPD

(5) Whether the defendant had paid Rs.41,500 in instalments to the plaintiff? OPD

(6) Relief.

Both the parties led the evidence on the said issues and ultimately the learned trial Court, after finding that the respondent is only entitled for an amount of Rs.50,000, passed a decree for the said amount, leaving the parties to bear their own costs, vide judgment and decree dated 30‑9‑2002, hence the present appeal.

1. Learned counsel for the appellant, while referring to the leave granting order has submitted that the learned Additional District Judge in the impugned judgment, did not advert to the grounds on which the appellant was granted leave to appear and defend the suit. He has next submitted that undated cheque was given to the respondent and at the time of its signing the same was blank. He has added that some other blank documents were signed and handed over to the respondent. He has further submitted that the respondent has not come to this Court with clean hands, as different amounts were mentioned in the legal notice, F.I.R. and in the suit, thus, the respondent's case becomes doubtful. He has lastly contended that the suit is barred by limitation. Conversely, the learned counsel for the respondent while supporting the impugned judgment has asserted that the learned Additional District Judge has adverted to every aspect of the case and no illegality has been committed by her.

2. So far as, the first contention of the learned counsel is concerned, there is no cavil to the proposition that after the grant of leave to appear and defend the suit to a defendant procedure in the summary suit is the same, as the procedure in the suit instituted in the ordinary manner. This is so provided under Order XXXVII, rule 7, C.P.C. The grounds, which were taken by the appellant in his leave application, found favour with the Court and, thus; he was granted leave to appear and defend the suit. The grounds taken in the leave application and pleas recorded in the order for the grant of leave to appear and defend the suit, would be effective uptil the decision of the said application thereafter the defendant would be allowed to file the written statement and of course then the suit would be decided according to the pleadings of the parties. In this case, the appellant was granted leave, allowed to file the written statement, he raised certain preliminary objections and pleaded his case in his written statement. To my mind, at this stage, it cannot be legitimately argued that the grounds, prevailed with the learned trial Court at the time of granting the requisite leave, have not been discussed in the impugned judgment.

3. So far as, the issuance of blank cheque/documents is concerned, the arguments of the learned counsel in this context are equally devoid of any merits. Section 20 of the Negotiable Instruments Act provides that where one person signs and delivers to another a paper, stamped in accordance with law, either wholly blank or having written thereon or incomplete negotiable instrument, in order that it may be made or completed into a negotiable instrument, he thereby gives prima facie authority to the person who receives that paper to make or complete it, as the case may be, into a negotiable instrument for any amount. If any case‑law is needed, the judgment reported as. Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749 can be referred. Furthermore, section 118 of the Negotiable Instruments Act provides that certain presumptions are attached to the negotiable instruments, which, inter alia includes that negotiable instrument was made or drawn for consideration and that every negotiable instrument bearing a date was made or drawn on such date.

4. Now coming to the other contentions of the learned counsel. Upon the examination of the contents of the written statement, I find that the appellant has admitted the availing of loan of Rs.50,000, execution of undated cheque and its delivery to the respondent as a mark of security. However, the case as pleaded by the appellant in his written statement and projected through the evidence on record, is that although the amount of Rs.50,000 was borrowed by him, yet he has returned the amount of Rs.41,500 to the respondent in instalments. In view of these assertions of the appellant, the learned trial Court rightly framed Issue No.5, the onus of which was placed on him. Record of the case manifests that he has not been able to prove that how much amount was returned by him, inasmuch as no receipts regarding the alleged payment of the amount through instalments were placed on record. Additionally, by admitting about the availing of the amount and the execution and delivery of cheque, the onus automatically shifted upon the appellant to prove that he repaid the total or partial amount to the respondent. In this case, the learned trial Court, after examining the documentary and oral evidence on record, has rightly concluded that the appellant has not been able to discharge the onus of Issue No.5, thus, the findings of the learned Additional District Judge are maintained.

5. So far as the issue of limitation is concerned, the cheque is dated 31‑3‑2000 and the suit was filed on 16‑12‑2000, therefore, the suit was filed within a period of three years from the date mentioned in the cheque. There is no cavil to the proposition that under Article 64‑A of the Limitation Act, a suit under the provisions of Order XXXVII on the basis of a negotiable instrument can be filed within a period of three years from the date when the debt becomes payable. Accordingly, in this case, the suit was filed within a period of three years from the date, mentioned in the cheque. The suit is, thus, within the limitation period and findings of the learned trial Court are not open to exception.

6. In the above perspective, I have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not call for any interference by this Court, thus, the findings of the learned Additional District Judge, on all the issues are maintained.

7. Upshot of the above discussion is that the present appeal is devoid of any force, thus, dismissed leaving the parties to bear their own costs.

M.H./I‑225/L Appeal dismissed.

2004 C L C 389

[Lahore]

Before Ch. Ijaz Ahmad and Farrukh Lateef, JJ

MUHAMMAD ISMAIL ‑‑‑Appellant

Versus

Syed INTIZAR ABBAS ZAIDI‑‑‑Respondent

Regular First Appeals Nos. 144 and 145 of 2002, heard on 29th July, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, Rr.2 & 3‑‑‑Suit for recovery of amount on basis of pronote‑‑‑Application for leave to defend suit‑‑‑Application filed by defendant for leave to defend suit was granted by Court conditionally subject to furnishing of adequate surety bonds up to specified date, but defendant failed to furnish the same as per order of Court and application of defendant for extension of time for furnishing surety bonds was dismissed and suit was decreed‑‑‑Validity‑‑‑Court was justified not to extend the time in view of vague grounds taken by defendant in his application for extension of time‑‑‑Where the party had been very negligent and had completely failed to provide any excuse for his default, discretion could not be exercised in favour of such party‑‑‑Where grounds mentioned in application for extension of time were absolutely vague, those were not sufficient for exercise of any discretion in favour of applicant/defendant‑‑‑Order of Trial Court not suffering from any infirmity or illegality, could not be interfered with in appeal.

Malik Hayat Ullah and others v. Murad Ali Khan PLD 1972 SC 69; Jahandad Khan v. Muhammad Arif Khan 1991 MLD 2109; Saad Ullah Khan and 2 others v. Sh. Ghulam Qasim PLD 2001 Pesh. 47; Industrial, Development Bank of Pakistan v. Ironite Industries (Pvt.) Limited and 9 others 1991 CLC 438; Aftab Iqbal Khichi v. Messrs United Distributors Pakistan Limited 1999 SCMR 1326; Re: Synthetic Chemicals Company Ltd. PLD 1988 Kar. 429 and Saeed Ahmad and others v. Karam Singh and another PLD 1949 Lah. 380 ref.

Maulvi Sultan Alam for Appellant.

Ch. Habib Ullah Nehang for Respondent.

Date of hearing: 29th July, 2003.

JUDGMENT

CH. IJAZ AHMAD, J. ‑‑We intend to decide following regular first appeals by one consolidated judgment having similar facts and law:‑‑

Regular First Appeal No.144 of 2002.

Regular First Appeal No.145 of 2002.

1. Brief facts out of which the aforesaid appeals arise are that respondents/plaintiffs filed two suits for recovery of Rs.8,00,000 and Rs,15,00,000 before the District Judge, Multan under Order XXXVII, C.P.C. on 17‑4‑2001 respectively. Appellants filed applications for leave to defend before the District Judge on 8‑9‑2001. The learned District Judge granted conditional‑leave to defend the suits subject to furnishing of adequate surety bonds till 11‑1‑2002 vide order dated 3‑1‑2002. Appellants failed to furnish adequate surety till 11‑1‑2002. Appellants filed applications before the learned District Judge, Multan for extension of 3/4 days for furnishing of the surety bonds in both the cases on 11‑1‑2002. The learned District Judge dismissed the applications of the petitioners vide orders dated 26‑2‑2002 and decreed the suits of the respondents vide orders dated 26‑2‑2002. Appellants being aggrieved filed the aforesaid appeals.

2. The learned counsel of the appellants submits that the learned District Judge decreed the suits against the appellants on technical ground which is not in accordance with the principle of administration of justice. He further submits that learned District Judge passed the impugned orders without applying his judicious mind. He further urged that impugned orders are not in accordance with law laid down by the superior Courts. In support of his contention he relied upon the following judgments:--

Malik Hayat Ullah and others v. Murad Ali Khan PLD 1972 SC 69; Jahandad Khan v. Muhammad Arif Khan 1991 MLD 2109 and Saad Ullah Khan and 2 others v. Sh. Ghulam Qasim PLD 2001 Peshawar 47.

1. The learned counsel of the respondents submits that the learned trial Court granted three opportunities to the appellants to comply the order dated 11‑1‑2002 as is evident from the orders of the learned trial Court dated 6‑2‑2002, 11‑2‑2002 and 15‑2‑2002 respectively. He further submits that respondents/plaintiffs had filed suits against the appellants under Order XXXVII, C.P.C. on the basis of pronote executed by the appellants. Therefore, the learned District Judge was justified to dismiss the applications for extension of time of the appellants vide impugned orders dated 26‑2‑2002. He further urged that section 148, C.P.C. is not applicable in the present cases. He further submits that the orders of the learned trial Court are in accordance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments.

Industrial Development Bank of Pakistan v. Ironite Industries (Pvt.) Limited and 9 others 1991 CLC 438 and Aftab Iqbal Khichi v. Messrs United Distributors Pakistan Limited 1999 SCMR 1326.

1. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

2. It is better and appropriate to reproduce relevant paragraph of the applications of the appellants for extension of time to resolve the controversy between the parties:‑‑

It is pertinent to mention here that the appellants did not attach a single document in support of para. 2 of the applications. It is settled principle of law where grounds mentioned in application for extension of time were absolutely vague, they were held to be not sufficient for exercise of any discretion in favour of the applicant as the law laid down in re: Synthetic Chemicals Company Ltd. PLD 1988 Karachi 429. It is also settled principle of law where the party had plainly been very, negligent and he had completely failed to provide any excuse for his default, discretion was not exercised in favour of such party as the law A laid down by this Court in Saeed Ahmad and others v. Karam Singh and Mst. Jawala Devi PLD 1949 Lah. 380. It is also admitted fact that the appellants were granted time to furnish surety bonds till 11‑1‑2002 vide order dated 3‑1‑2002 but the appellants did not file applications for extension of, time before 11‑1‑2002. It is also admitted fact that the appellants did not furnish surety bonds alongwith the applications filed by the appellants for extension of time. It is also admitted fact that the respondents/plaintiffs filed suits under Order XXXVII, C.P.C., therefore, the learned trial Court was justified not to extend the time in view of vague grounds taken by the appellants in their applications which is in accordance with the law laid down by the Honourable Supreme Court in Aftab Iqbal Khichi's case (supra).

1. In view of what has been stated above, we do not find any infirmity or illegality in the impugned orders of the learned trial Court. Therefore, the appeals have no merits and the same are dismissed.

H. B.T./M‑2354/L Appeals dismissed.

2004 C L C 414

[Lahore]

Before Tanvir Bashir Ansari, J

H/DR. ASHFAQ AHMAD‑‑‑Petitioner

Versus

H/DR. MUHAMMAD GULZAR KIANI and 3 others‑‑‑Respondents

Civil Revision No.31 of 2001, decided on 7th December, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for possession‑‑‑Deficiency in court‑fee; making up of‑‑‑Rejection of plaint‑‑‑Plaintiff having failed to make up deficiency of court‑fee, his plaint was rejected by Trial Court‑‑‑Conduct of plaintiff in pursuing the suit before Trial Court did not appear to be above board‑‑‑Ignorance of law was no excuse and plaintiff should have exercised due care and caution and should have valued suit correctly for the purposes of court­-fee and jurisdiction‑‑‑Plaintiff, on account of his omission, to pay court-­fee in time before the Trial Court, was obliged to pay the court‑fee when revision by him against judgment of Trial Court was filed‑‑‑Payment of court‑fee, being a fiscal matter between plaintiff and the State, omission of plaintiff, should not arm an adversary defendant with a weapon to throw his opponent/plaintiff out of the Court on a technical ground‑‑‑One final opportunity was given to the plaintiff to make good court‑fee before Trial Court failing which law would take its own course‑‑‑Order passed by Trial Court rejecting plaint was set aside and plaintiff was directed to affix necessary court‑fee as assessed by Trial Court within specified period.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Sher Muhammad and another v. Ghulam 1993 CLC 1027; Sohara v. Rashid Ahmad and others PLD 1981 Lah. 261; Safdar Khan v. Ch. Muhammad Saleem and 2 others PLD 1994 Lah. 261; Mst. Surayya Begum v. Abdul Rahman and 2 others 1992 CLC 676 and Zafar Alam v. Member (Revenue) Board and 3 others 1991 SCMR 1153 ref.

Ghufran Khurshid Imtiazi for Petitioner.

Sana Ullah Zahid for Respondents.

Date of hearing: 7th December, 2001.

ORDER

This revision petition is directed against the order and decree, dated 2‑3‑2001 passed by a learned Civil Judge, Rawalpindi whereby the plaint of the petitioner filed under section 9 of the Specific Relief Act was rejected under Order 7, rule 11, C.P.C. as the petitioner had failed to pay the court‑fee despite having been given the opportunity to do the same.

1. The facts are that the suit under section 9 of the Specific Relief Act, 1877 was filed by the petitioner for recovery of possession of immovable property described a the Potohar Homeopathic College Plot No.9 Sector 4‑B, Khayaban‑e‑Sirsyed, Rawalpindi alongwith its college and hospital equipment from the respondents. The suit was filed on 11‑10‑2000. In the plaint itself the valuation of the suit was placed as "worth lacs of rupees". A list of the articles sought to be recovered and the plan of the building whose possession was sought to be recovered was also annexed. That despite this the value of the suit for the purposes of court‑fee and jurisdiction was fixed at Rs.20,000 which is claimed to be exempt from court‑fee.

2. The respondents appeared before the trial Court on 22‑12‑2000 and filed an application for a. direction to the petitioners/plaintiffs to make up the deficiency in the court‑fee. The petitioners contested the said application through their reply filed on 2‑2‑2001. Vide order, dated 2‑2‑2001, the trial Court held that the suit was not correctly valued for the purposes of court‑fee and jurisdiction and the petitioner/plaintiff was directed to correct the value of the suit. On 15‑2‑2001 the learned counsel for the petitioner stated that the valuation of the property in suit is about Rs.10,00,000. Accordingly the petitioner was directed to affix the court‑fee in the sum of Rs.7,500 on the plaint being a suit under section 9 of the Specific Relief Act and fixed 2‑3‑2001 for making up the deficiency of the court‑fee. The record reveals that on 2‑3‑2001 as the proper court‑fee had not been affixed despite opportunity, the plaint was rejected under Order 7, rule 11, C.P.C. the instant revision petition is directed against the said order and decree. The learned counsel for the petitioner has submitted that the adequate opportunity to make up the deficiency of court‑fee was not given by the trial Court. According to him the petitioner was willing to make up the deficiency in the court‑fee on 2‑3‑2001 but the learned trial Court acted in a hasty manner in rejecting the plaint on 2‑3‑2001 at 11‑55 a.m. In support of his contention he has relied upon the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, to contend that the proper opportunity to make up the deficiency in the court‑fees should be allowed and that the petitioner of this case is entitled to such indulgence, as the petitioner was not guilty of contumacy or mala fides. He also referred to the case of Sher Muhammad and another v. Ghulam 1993 CLC 1027 to contend that opportunity to pay court‑fee should be granted if there is no element of contumacy or mala fides attributable to the petitioner. The petitioner, in aid of the same proposition relied upon Sohara v. Rashid Ahmad and others PLD 1981 Lah. 261, Safdar Khan v. Ch. Muhammad Saleem and 2 others PLD 1994 Lah. 261 and Mst. Surayya Begum v. Abdul Rahman and 2 others 1992 CLC 676.

3. On the other hand, Mr. Sana Ullah Zahid, Advocate, for respondent No. 1 contended of the conduct from the institution of suit. According to him the petitioner was in full knowledge of the valuation of the suit property and he deliberately and contumaciously placed a wrong value on the plaint and claimed exemption from payment of court‑fee. Even when an application was moved by the respondent for affixing correct court‑fee, the petitioner obstinately defended his earlier action and it was only upon the order of the trial Court, dated 2‑2‑2001 that the petitioner was constrained to value his suit at Rs.10,00,000. The learned trial Court then gave an opportunity to the petitioner. The petitioner having failed to make up the deficiency of the court‑fee his plaint was rightly rejected by the trial Court. According to the learned counsel for the respondent the petitioner has displayed contumacy and is not entitled to any indulgence. In support of his contention the learned counsel for the respondent has relied upon Zafar Alam v. Member, (Revenue) Board and 3 others 1991 SCMR 1153 to contend that it is the initial duty of the plaintiff to determine and affix the court-­fee but in case the plaintiff had failed to do so, the plaintiff was entitled as of right to only one opportunity to make up the deficiency in the court‑fee.

4. Arguments have been heard and record perused.

5. It is correct that the conduct of the petitioner in conducting the suit before the trial Court does not appear to be above board. Ignorance of law is no excuse and the petitioner should have exercised due care and caution and should have valued the suit correctly for the purposes of court‑fee and jurisdiction. Having said that this Court is also conscious of the fact that on account of the omission of the petitioner to pay court‑fee in time before the trial Court he was obliged to pay‑court-­fee upon this appeal/revision. This Court is also conscious of the fact that payment of court‑fee being a fiscal matter between a plaintiff and the State, an omission of the plaintiff should not arm an adversary defendant with a weapon to throw his opponent out of the Court on a technical ground.

6. In this view of the matter, it will be in the interest of justice it the petitioner is given one final opportunity to make good the court‑fee before the trial Court failing which the law shall take its own course.

7. In view of the above discussion, this civil revision is allowed and the order and decree of the trial Court, dated 2‑3‑2001 is set aside the petitioner is directed to affix the necessary court‑fee as assessed by the trial Court vide order, dated 15‑2‑2001 within a period of 15 days from today failing which the plaint of the petitioner shall be liable to be rejected.

H.B.T./A‑1014/L Revision allowed.

2004 C L C 421

[Lahore]

Before Syed Jamshed Ali, J

IBRAHIM and another‑‑‑Petitioners

Versus

MUHAMMAD HAYAT and 3 others‑‑‑Respondents

Civil Revision No.2084 of 1995, heard on 23rd September, 2003.

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

‑‑‑‑Ss. 52 & 41‑‑‑Transfer of property pending suit relating to sale of suit property was made by vendor its favour of subsequent vendee during pendency of suit filed by original vendee against vendor despite the fact that subsequent vendee had knowledge of pendency of suit‑‑‑Claim of subsequent vendee to be bona fide purchaser for value had rightly been turned down.

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

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement of sale‑‑‑Plaintiff vendees had claimed that defendant vendor had failed to perform his part of contract whereas they were ready and willing to perform the same‑‑­Defendant/vendor claimed that plaintiffs were at fault‑‑‑Appellate Court, after reappraising evidence came to the conclusion that defendant/vendor was in default and such finding of Appellate Court was adequately supported by evidence on record‑‑‑Agreement of sale of suit property was executed in 1986, more than 17 years back and suit was decreed in appeal by Appellate Court after more than 8 years and revision against judgment of Appellate Court before High Court took another 8 years‑‑­Suit property was alienated by defendant vendor in favour of subsequent vendee in 1987 for consideration of Rs.50,000 whereas in favour of plaintiffs/vendees was sold in 1986 for consideration of Rs.35,000 and plaintiff had already paid Rs.12,000 as earnest money‑‑‑High Court modifying judgment and decree of Appellate Court, decreed suit for consideration of Rs.50,000 instead of Rs.35,000 and directed plaintiff, to pay Rs.23,000 balance sale consideration to defendant vendor within specified period.

Zarina Chughtai v. Mst. Shahnaz Akhtar and 9 others 2003 MLD 640 and Haji Rehmat Ali v. Akbar Ali Hashmi and others PLJ 2000 Lah. 1408 ref.

Rai Muhammad Tufail Kharal for Petitioner No. 1.

Rai Haider Ali Khan Kharal for Petitioner No.2.

Pervaiz Inayat Malik for Respondents.

Dates of hearing; 22nd and 23rd September, 2003.

JUDGMENT

The judgment and decree, dated 2‑10‑1995 have been assailed in this revision petition which arises out of the following circumstances.

1. Pallu, initially respondent No.4, transposed as petitioner No.2, vide order, dated 2‑10‑1995 of this Court, owned, agricultural land measuring 9 Kanals, 2 Marlas. On 7‑1‑1986 he agreed to sell the said land in favour of respondents 1 to 3 for a consideration of Rs.35,000 (Exh.P.1), received an amount of Rs.12,000 as earnest money and executed receipt (Exh.P.2). The balance sale consideration was to be paid till 2‑5‑1986 the suit was filed by the respondents on 6‑5‑1986 their case was that they were ready and willing to perform their part of the contract, even attended Tehsil premises on 3‑5‑1986 (2nd May was Friday, a weekly holiday) on which date petitioner No.2 was also present in the Tehsil premises but at the time of purchase of the stamp paper, petitioner No.2 disappeared and on establishing contact with him he declined to execute the sale‑deed. On 16‑7‑1987, during the pendency of the suit, petitioner No.2 sold the aforesaid land in favour of Ibrahim, petitioner No. 1, a close relative of Pallu, through registered sale‑deed for a consideration of Rs.50,000 (Exh.P.3).

2. The suit was contested by both the petitioners by filing separate written statements. Petitioner No.1 claimed to be a bona fide purchaser for value while petitioner No.2, admitted execution of the agreement to sell but claimed that the plaintiffs‑respondents 1 to 3 were in default to perform their part of the contract. Accordingly, the agreement stood rescinded and the amount of earnest money forfeited.

3. Necessary issues were framed and the suit was tried. The learned trial Court found that .the agreement stood cancelled as respondents Nos.1 to 3 were in default. The issue whether the petitioner No.1 was a bona fide purchaser for value was answered in the negative with the observation that the registered sale‑deed did not, in any manner, affect the agreement to sell in favour of respondents 1 to 3. The learned trial Court was impressed by the fact that petitioner No.2 was present in the office of the Sub‑Registrar on 3‑5‑1986 and since the plaintiffs did not have money they were in breach of the terms of the agreement. Accordingly, the suit filed by the respondents was dismissed vide judgment and decree dated, 6‑1‑1991.

4. Feeling aggrieved, respondents, 1 to 3 filed an appeal before the learned District Court which was allowed vide judgment and decree, dated 2‑10‑1995 and the suit of the respondents was decreed for the balance sale consideration of Rs.23,000. The learned First Appellate Court observed that the finding of the learned trial Court that the plaintiffs‑respondents were not willing to perform their part of contract was presumptive, notional based on conjectures and speculations and, therefore, was not sustainable This judgment and decree have been assailed in this revision petition.

5. It may be noted that the case was partly heard on 22‑9‑2003, when Rai Haider Ali Khan Kharal, Advocate, appeared for petitioner No.2. On the said date learned counsel for petitioner No.1 partly made his submissions and the case was re-listed for 23‑9‑2003. However on 23‑9‑2003, petitioner No.2 also appeared in person alongwith his counsel and requested for adjournment of the case to engage another counsel and specifically stated that he will not like the learned counsel engaged by him, to argue the case. Since it was an old case and had partly been heard I declined his request.

6. The learned counsel for petitioner No.1 submits that he was bona fide purchaser for value and the agreement dated 7‑1‑1986 was not in his knowledge. He also relied on the reasoning of the learned trial Court that the plaintiffs‑respondents were in default to perform their part of the contract. Statements of D. W.1 to D. W.3 were referred to contend that on 3‑5‑1986, the date fixed for execution of registered sale‑deed, petitioner No.2 was present in the office of Sub‑Registrar but the plaintiffs/respondents did not have the money and instead promised to pay it in the village at their residence.

7. On the other hand, the learned counsel for the respondents Nos. 1 to 3 submits that it was petitioner No.2, who backed out on which the suit was filed on 6‑5‑1986. He further maintains that simultaneously with the execution of the agreement possession of the disputed land was transferred to respondents Nos. 1 to 3. The finding of the learned trial Court that the agreement stood cancelled, in fact amounts to holding that time was of the essence of the contract, which in fact was not. Reliance was placed on Zarina Chughtai v. Mst. Shahnaz Akhtar and 9 others 2003 MLD 640 and Haji Rehmat Ali v. Akbar Ali Hashmi and others PLJ 2000 Lah. 1408.

8. I have considered the submissions made by the learned counsel for the parties and have carefully perused the evidence produced by the parties. Since it was a judgment of variance examined the entire evidence. While the witnesses of the plaintiffs claimed that petitioner Nos.2 was in default, the witnesses produced by the petitioners claimed that the respondents‑vendees were in default. P. W.1, the scribe testified to Exh. P. 1, the sale agreement, and Exh. P.2, receipt for payment of Rs.12,000 to petitioner No.2, Muhammad Hayat, respondent No.1 appeared as his own witnesses as P.W.2. According to him, on the date fixed for the execution of the sale‑deed, petitioner No.2 declined to execute sale‑deed on the ground that there was a dispute. He denied that he had asked for extension of time. Ahmad Ali was examined as P.W.3. He stated that .it was petitioner No.2, who had declined to execute registered sale‑deed. D.W.1 stated that the respondents had paid a sum of Rs.8,000 against Rs.12,000 recorded in the agreement. He stated that the respondents had asked petitioner No.2 to execute the registered document and the sale consideration will be paid in the village. Thereafter, petitioner No.2 sold the land. According to him, the plaintiffs did not get the sale‑deed executed because they did not have any money. Muhammad Aslam, D.W.2 stated that he attended the Tehsil Office on 3‑5‑1986, petitioner No.2 waited till the evening and got himself marked present before the Tehsildar, Pallu, petitioner No.2 appeared as D.W.3. According to him, the bargain was struck with Muhammad Hayat, respondent No.1 for a consideration of Rs.50,000 and he was paid a sum of Rs.8,000 but earnest money was recorded as Rs.12,000. On 3‑5‑1986 respondents stated that they will pay the sale consideration at their house because they did not have money and asked for extension of two months. He further stated that he was a T.B. patient and was selling the property for, his treatment, therefore, he did not agree to extension of time. Muhammad Ibrahim, petitioner No.1, appeared as D.W.4. A niece of Pallu is his daughter‑in‑law. He claimed that he had purchased the disputed property for Rs.50,000 and he did not know the pendency of the suit at the time of purchase of land. He admitted that possession was not delivered to him and that he did not know in what capacity the respondents were in possession. According to P. W.2, (Muhammad Hayat, respondent No.1) petitioner No.2 declined execution of the sale‑deed and had raised a dispute. Petitioner No.2, who appeared as D.W.3 stated that on the date the parties were present in the office of the Sub‑Registrar, he demanded Rs.36,000 while the respondents‑vendees asked for an extension of two months. Thus, existence of a dispute on 3‑5‑1986 between the parties becomes an admitted fact. The basis for the demand of Rs.36,000 by petitioner No.2 was his assertion in cross‑examination that the bargain was struck for Rs.50,000, while in agreement Exh. P.1, the sale consideration mentioned was Rs.35,000. Perusal of the written statement filed by petitioner No.2 shows that no such plea was raised in the written statement. Instead, it was averred that against an earnest money of Rs.8,000 the amount mentioned was Rs.12,000. This clearly establishes that at the time of execution of the registered sale‑deed, petitioner No.2 insisted on the payment of an amount i.e. Rs.36,000 (against the balance amount of Rs.23,000), which was never agreed to between the parties. His assertion that against Rs.8,000 actually received by him as earnest money the amount of Rs.12,000 was wrongly shown as Rs.12,000 is also not acceptable because he not only admitted execution of agreement Exh.P.1 (which shows total sale consideration of Rs.35,000 and receipt of earnest money of Rs.12,000), but also the scribe of these documents was examined as P.W.1, who stated that Exhs.P.1 and P.2 were written by him and the parties had affixed their thumb‑impression and signatures to his presence. He was not even cross‑examined.

9. The respondents‑vendees had filed the suit on 6‑5‑1986. As noted by the learned First Appellate Court, the counsel for the petitioners had putt in appearance in the suit on 14‑5‑1986, just after 7 days of the issuance of the notices/summons to the defendants, and to test the short fall of the plaintiffs to have no money, he could make a statement in Court that he was willing to get plaintiffs' suit decreed in case the remaining amount was to be paid without fail to him". In the case of Haji Rehmat Ali, (supra), suit for specific performance was filed after four days of the date contemplated for completion of the transaction. In the said case the issue involved was whether time was of the essence of the contract. The suit which was dismissed by the learned trial Court was decreed with the following observation:‑‑

"Moreover, the appellant, had promptly filed the suit on 3‑11‑1988, this by itself shows, that the appellant, was ready was willing to perform his part of the agreement."

It was further observed that respondents/defendants could easily on the date of hearing give statement that the suit should be decreed on the payment of the consideration amount.

1. As far as petitioner No. 1 is concerned, his claim to be a bona fide purchaser for value has rightly been turned down. He was a close relative of petitioner No.2 and the sale was made in his favour during pendency of the suit. D.W.4, admitted possession of the respondents/vendees Therefore, a cursory inquiry from petitioner No.2 or the respondents/vendees, who are in possession of the suit‑land, could have revealed the true state of affairs to petitioner No. 1.

2. The learned First Appellate Court, after reappraising the evidence came to the conclusion that petitioner No.2 was in default and this finding is adequately supported by the evidence on record. The question which, however, in the circumstances, attracted my attention was as to the consideration for which the suit of the respondents/vendees should be decreed. Undisputedly the agreement was executed on 7‑1‑1986, more than 17 years back and was decreed in appeal by the learned Additional District Judge, Faisalabad on 2‑1‑0‑1995. This revision petition remained pending before this Court for little less than 8 years. The land in dispute was alienated by petitioner No.2 in favour of petitioner No. 1 on 16‑7‑1987 for a consideration of Rs.50,000, which petitioner No.2 is bound to restore to petitioner No. 1. Although, petitioner No.2 was partly responsible for the delay, yet I am of the view that he is entitled to some compensation.

3. Therefore, this revision is partly allowed, the impugned judgment and decree of the First Appellate Court is modified and instead of balance sale consideration, of Rs.23,000 the suit of the respondents/vendees is decreed for the balance sale consideration of Rs.50,000. The respondents are directed to deposit an additional amount of Rs.27,000 with the trial Court within 30 days failing which their suit shall be liable to be dismissed. Petitioner No.2 admittedly received Rs.50,000 from petitioner No.1 which he is bound to restore to petitioner No. 1. Therefore, to save the parties from further litigation, it is directed that after the respondents/vendees have deposited the additional amount of Rs.27,000 with the learned trial Court as being directed herein, petitioner No.1 shall be entitled to draw the amount of Rs.50,000.

4. No order as to costs.

H.B.T./238/L Revision partly allowed.

2004 C L C 427

[Lahore]

Before Muhammad Ghani, J

IFTIKHAR AHMAD‑‑‑Petitioner

Versus

METROPOLITAN CORPORATION, LAHORE and others‑‑‑Respondents

Writ Petition No. 16045 of 2003, decided on 13th January, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Grievance voiced through the Constitutional petition was that although the City District Government had fixed maximum Parking Fee for parking of vehicles at the Parking Stands within the city, but the contractors, to whom the contracts had been awarded for collection of Parking Fee for different vehicles, were indulging in over‑charging‑‑‑Validity‑‑‑Held, unless a fool‑proof system, which was real and effective and not a mere pious and abstract sentiment, a reality and not a teasing illusion, was devised and. implemented, with an earnest desire to produce the required results, the grievance of the citizens would not alleviate‑‑‑Counsel of the City District Government, in view of the situation, undertook that appropriate measures shall immediately be taken to ensure that all the contractors get their names printed on the Parking Fee, receipts to be used for the purpose and issued to the public making use of Parking Stands, besides mentioning therein the particulars by which one may easily identify the concerned Parking Stand‑‑‑High Court directed that the Schedule of Parking Fees shall be displayed at some conspicuous place of each Parking Stand so that it should attract one's eyes easily, and in the event of overcharging by a contractor, the citizen concerned may be able to confront him with the same.

Muzamil Akhtar Shabbir for Petitioner.

Khawaja Muhammad Afzal, Legal Advisor for Respondents.

ORDER

The grievance voiced through this Constitutional petition by Iftikhar Ahmad is that although the City District Government of Lahore has fixed maximum Parking Fee of Rs.5/‑ for parking of vehicles at the Parking Stands within the City of Lahore, but its Contractors, to whom the contracts have been awarded for collection of Parking Fee for different vehicles are indulging in over‑charging. Certain paid receipts, showing over‑charging of Parking Fee have also been filed alongwith this petition.

1. When the petition came up for preliminary hearing on 25th of November, 2003, respondent No.3 was directed to submit report and parawise comments.

2. The respondents have submitted report and parawise comments, wherein it is inter alia mentioned that the City District Government, Lahore, has established Parking Stands at different points of the City and collection rights of the Parking Fee have been leased out, through open auction to different Contractors, that the areas of Parking Stands have been duly demarcated, and that the City District Government has approved the following schedule of Parking Fees for the vehicles to be parked at such Stands:‑

| | | | --- | --- | | "(1) Car/Taxi | Rs.5 per day per trip. | | (2) Motorcycle/Rickshaw | Rs.3 per day per trip. | | (3) Cycles | Rs. 1 per day per trip. |

1. Khawaja Muhammad Afzal learned Senior Legal Advisor for City District Government, Lahore, has submitted that in order to ensure that the Contractors do not indulge in over‑charging, the Parking Stands are frequently visited and checked by the Officers of the respondents; that those found indulging in over‑charging are challaned and heavy fines are imposed on them, and that if any Contractor is found guilty of over­charging and is challaned for five times, his contract is rescinded. Following details in this connection have been provided:‑‑

| | | | --- | --- | | "(1) Challans submitted against the Contractors in the Court | 80 Nos. | | (2) Cancellation of Contracts. | 2 Nos. | | (3) F.I.Rs. registered against the contractors on the allegation of over‑charging | 5 Nos." |

1. It is further submitted that City District Government has displayed Schedule of Parking Fees on each Parking Stand, alongwith telephone numbers of the concerned Officers to Whom information can be rendered in the event any Contractor is found indulging in over­charging of Parking Fee, and that if any complaint is received, quick action is taken by the respondents.

2. Be that as it may, the fact remains that the petitioner has filed alongwith the writ petition more than fifteen receipts issued by the Contractors of the City District Government. Through all these receipts, an amount of Rs.10/‑ had been charged as Parking Fee for parking of cars and motor‑cycles. On none of the receipts, the name of the Contractor is printed. Even there are no particulars, at all, given on any of the receipts, with the result that the Parking Stands from-where these receipts have been issued, can be identified. Consequently, it is absolutely impossible for anyone, let alone an Officer of the City District Government, to proceed against the Contractors .on the basis of such receipts, even if a complaint is made, in particular, when there will be hardly a Contractor who will be telling the truth and accepting liability. The concerned Officers of the City District Government may be able to take action only against those Contractors who are caught red‑handed by them, but a little clever Contractor, who previously knows the Officer raiding his Parking Stand would certainly escape liability by concealing the Receipts Book, containing receipts wherein the amount of fee is mentioned more than the prescribed one. Therefore, to say that the City District Government keeps an eye over the activities of its Contractors or that the present system is effective one, is a mere eye‑wash. Unless a fool‑proof system which is real and effective and not a mere pious and abstract sentiment, a reality and not a teasing illusion, is devised and implemented, with an earnest desire to produce the required results the grievance of the citizens would not alleviate. When confronted with this situation Khawaja Muhammad Afzal learned Senior Legal Advisor for City District Government, Lahore undertakes that appropriate measures shall immediately be taken to ensure that all the Contractors get their names printed on the Parking Fee receipts to be used for the purpose and issued to the public making use of Parking Stands, besides mentioning therein the particulars by which one may easily identity the concerned Parking Stand.

3. Learned counsel for the petitioner also entered caveat with regard to the plea of respondents that the Schedule of Parking Fees has been displayed on each sanctioned Parking Stand. According to him, no such Schedule presently exists on any Parking Stand, because in the presence of the same the Contractor may not indulge in over-charging with impunity, and without fear I or action by the City. District Government The plea of the learned counsel for the petitioner is not altogether unfounded. Therefore, I would direct that the Schedule of Parking Fees shall be displayed at some conspicuous place of each Parking Stand so that it should attract one s eyes easily, and in the event of over‑charging by a Contractor, the citizen concerned may be able to confront him with the same.

4. In view of the above assurance, and that till such time respondents make adequate arrangements to redress the grievance of the citizens, any complaint made would be attended to quickly, and without any loss of time, and the direction given above no further action is called for in this petition for the time being and the same is disposed of accordingly.

M.B.A./I‑4/L Order accordingly.

2004 C L C 441

[Lahore]

Before Muhammad Ghani, J

MUHAMMAD MUNAWAR BAJWA‑‑‑Petitioner

Versus

Mst. ZUBERA SHAHEEN and another‑-‑Respondents

Civil Revision No.2715 of 2002, decided on 10th December, 2003.

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

‑‑‑‑S. 115‑‑‑Concurrent findings of fact by Courts below‑‑Interference with such findings in. revisional jurisdiction of High Court‑‑‑Scope and principles stated.

Wrong or erroneous conclusion on a question of fact by Courts below is not open to interference in exercise of jurisdiction under section 115, C.P.C. The fact that a more persuasive, a more reasonable or a more convincing view of the evidence is possible is also not a valid ground for interference with a concurrent finding of fact recorded by the Courts below. Reappraisal and reassessment of the evidence in the case cannot be made the basis for discarding a finding of fact, and the fact that another view of evidence is possible cannot also be a ground for interference with a concurrent finding of fact, but interference is permissible in revisional jurisdiction with a finding of fact if the finding is found to be suffering from misreading of evidence; or it has resulted due to non‑consideration of important and material evidence or it is the result of perverse appreciation of evidence on record or it is based on no legal evidence, but on surmises and conjectures, or it is based on inadmissible evidence or there is an error or defect in the procedure which has introduced an error or defect in the decision on merits; or the Courts below have acted illegally inasmuch as 'the decision rendered is against a particular provision of law or a principle of law has been violated or it is against the law declared by the Supreme Court.

Abdul Majid v. Khalil Ahmed PLD 1955 FSC 38; Noor Muhammad v. Namdar PLD 1969 Lah. 105; Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522; Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735; Muhammad Bashir Ali v. Ghulam Mohy‑ud‑Din 1996 SCMR 813; Jam Balli v. Mehar Khan 2003 SCMR 1013; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Nawaz v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 and Abdul Hakeem v. Habibullah 1997 SCMR 1339 ref.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Transfer of Property Act (IV of 1882), S.44‑‑‑Suit for declaration without claiming consequential relief of possession‑‑‑Maintainability‑‑‑Sale out of joint land in favour of defendant was challenged by plaintiff (co‑sharer) also alleging to be in possession thereof‑‑‑Trial Court found defendant to be in possession of suit‑land and rejected plaint being barred by law for plaintiff's failure to ask for relief of possession by making amendment in plaint‑‑‑Appellate Court upheld such findings‑‑‑Validity‑‑‑Sale in favour of defendant was not open to exception either on fact or law and she could retain possession of suit‑land till such time as an actual partition by metes and bounds took place between co‑owners‑‑‑Plaintiff could be allowed to amend plaint by adding prayer for possession on payment of additional court‑fee‑‑‑Such amendment would not have changed nature of suit‑‑‑Such relief would have been in the nature of an additional relief, which plaintiff should have asked for in the suit‑‑‑Plaintiff had not asked for such necessary relief by amending plaint before Courts below‑‑­Revision petition clearly omitted, any such prayer‑‑‑High Court dismissed the revision petition.

Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; AIR 1924 Lah. 293; AIR 1925 Lah. 518; AIR 1939 Oudh 243; AIR 1927 Oudh 467; AIR 1921 Oudh 106; AIR 1940 Lah. 473; Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edn., p.1296; AIR 1924 All. 63; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Ch. Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190; Karamat Ali v. Muhammad Yunus PLD 1963 SC 191; Imitaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Mst. Ghulam Bibi v. Sara Khan PLD 1985 SC 345; Karam Ali v. Muhammad Nawaz PLD 1993 Lah. 49; Muhammad Shafi v. L.D.A. 1993 CLC 2482; Mst. Zubaida Bibi v. Mst. Hashnzat Bibi 1993 SCMR 1882; Jane Margrete William v. Abdul Hamid Khan 1994 CLC 1437 and Muhammad Mian v, Shamimullah 1995 SCMR 69 ref.

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

‑‑‑‑S. 44‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Sale of specific field numbers in possession of vendor due to family arrangement‑‑­Validity‑‑‑Such arrangement would not extinguish title of other co­-sharers‑‑‑Such sale and possession would debar other co‑sharers to get back possession or challenge sale, subject to adjustment at time of partition as if vendor had not sold land.

Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; AIR 1924 Lah. 293; AIR 925 Lah. 518; AIR 1939 Oudh 243; AIR 1927 Oudh 467; AIR 1921 Oudh 106; AIR 1940 Lah. 473; Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edn., p.1296; AIR 1924 All. 63; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427 and Ch. Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190 ref.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17 ‑‑‑ Suit for mere declaration ‑‑‑Omission to seek relief for possession in plaint‑‑­Effect‑‑‑Plaintiff could be allowed to amend plaint by adding relief of possession on payment of additional court‑fee‑‑‑Such amendment would not alter nature of suit‑‑‑Such relief would be in nature of an additional claim, which plaintiff should have asked for in suit.

Karamat Ali v. Muhammad Yunus PLD 1963 SC 191 and Imitaz Ahmed v. Ghulam Ali PLD 1963 SC 382 ref.

(e) Family settlement‑‑‑

‑‑‑‑ Where parties settle a family dispute amicably take a share of property, enter into possession thereof and subsequently sell or mortgage land allotted to them, then they would be estopped from questioning such settlement‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 114.

Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edn., p.1296 rel.

Malik Waqar Saleem for Petitioner.

Raja Muhammad Anwar Raja Mahmood Akhtar and Raja Muhammad Asif for Respondent No. 1.

Respondent No.2‑ Ex parte.

Date of hearing: 19th November, 2003.

JUDGMENT

This revision petition is directed against the judgment and decree, dated 8th of May, 2002 whereby a learned Additional District Judge, Lahore, has dismissed the petitioner‑plaintiff’s appeal against the judgment and decree, dated 17th of June, 1998 rejecting the plaint in the suit for declaration and injunction.

1. Stripped of unnecessary details, the facts giving rise to this petition are that Muhammad Munawar Bajwa, petitioner herein, filed on 27th of April, 1991, a suit averring that a piece of land measuring 3 Kanals, 8 Marlas comprised in Khasra No.784/594, Khata No.89, Khatum No.195, situate within the revenue estate of Mauza Chuhng Khurd, Tehsil and District Lahore, was owned in equal shares by Ghulam Muhammad and Rehmat Ali, real brothers; that Rehmat Ali died, leaving behind a widow by the name of Mst. Ghulam Fatima, two daughters named Mst. Rani Bibi and Mst. Maryam Bibi and a son, namely, Liaqat Ali, respondent No.2 herein; that half share of Rehmat Ali deceased equal to one Kanal and 14 Marlas had devolved on his legal heirs; that all the four legal heirs of Rehmat Ali had jointly sold 10. Marlas of land to one Mst. Nasreen Kausar through a sale‑deed registered on 28th of January, 1980 who, in turn, had sold the same to one Zulfiqar Ali in whose favour a mutation had also been sanctioned; that out of the remaining land, the legal heirs of Rehmat Ali sold one Kanal of land in favour of the plaintiff‑petitioner by means of a sale­-deed, registered on 11th of May, 1980 and Mutation No.1175 was also sanctioned in his favour on 26‑12‑1981 which sale was also given effect to in the Record‑of‑Rights prepared for the subsequent years; that a few days before the filing of the suit when the petitioner resorted to laying foundations for raising construction on the land so purchased by him, respondent No. 1, along with her husband suddenly emerged, and resisted raising of construction, claiming that she had purchased one Kanal and 10 Marlas of land, including the disputed piece of land measuring one Kanai, through sale‑deed, dated 26th of March, 1984 from Liaqat Ali, respondent No. 1; that the plea of the petitioner that after sales in favour of Mst. Nasreen Kausar and the petitioner, share of Liaqat Ali in Khasra No.784/594 was only one Maria and, therefore, the alienation in favour of respondent No. 1 being beyond his entitlement was void ab initio, fell flat on respondent No. 1, which gave rise to the filing of the suit by him for declaration that the plaintiff was the lawful owner in possession of the suit‑land; that the sale‑deed, dated 11‑5‑1980 and consequent Mutation No.1175 in favour of the plaintiff‑petitioner were valid and lawful, whereas the subsequent sale‑deed, dated 26‑3‑1984 in favour of defendant‑respondent No.1 being based on fraud, misrepresentation, without lawful authority and without consideration, was inoperative. As a consequential relief, the plaintiff-petitioner sought injunction restraining defendant‑respondent No. 1 from in any way, interfering with his possession over the suit property.

2. The defendant-respondent No. 1 in her written statement pleaded that immediately after purchase of the land by her, she got the property demarcated and raised a boundary wall to the height of 4 feet around her plot; that she was in exclusive possession of the suit‑land; that the plaintiff‑petitioner being not in possession, his suit for a mere declaration was hit by the first proviso to section 42 of the Specific Relief Act and thus not maintainable; that Liaqat Ali, defendant‑respondent No.2 was a co‑sharer with Ghulam Muhammad in the joint Khata measuring Kanals, 10 Marlas; that Liaqat Ali was in exclusive possession of Khasra No.784/594, measuring 3 Kanals, 18 Marlas (wrongly mentioned as 3 Kanals, 8 Marlas by the plaintiff‑petitioner); that he lawfully sold land in ensuring one Kanal, 10 Marlas to defendant‑respondent No. 1 and handed over possession thereof to her that Liaqat Ali, defendant-­respondent No.2 having inherited 7/32 share from the estate of his late father, Rehmat Ali, equal to 20 Kanals, 1 Marla of land from the joint Khata and having sold 18 Kanals, 6 Marlas through various transactions jointly and severally, was still owner in the joint Khata to the extent of one Kanal, 15 Marlas and thus the sale in favour of defendant‑respondent No. 1 being well within his entitlement was not open to exception. It was also pleaded that the suit property was of the value of rupees seventy eight lacs and neither the suit had been properly valued nor proper court­-fee had been paid, besides the fact that the plaintiff‑petitioner had no real cause of action for the suit.

3. Divergent pleas of the parties gave rise to the framing of the following Issues on 2‑3‑1992:‑

(1) Whether the plaintiff is owner in possession of the property in dispute and as such entitled to the decree as prayed for? OPP.

(2) Whether the impugned sale‑deed in favour of the defendant No. 1, dated 26‑3‑1984 is illegal, void, inoperative and based on misrepresentation, fraud and without lawful authority and without consideration? OPP.

(3) Whether the suit is time‑barred ? OPD

(4) Whether the plaint is not maintainable in its present form?

(5) Whether the suit is not maintainable and liable to be dismissed in view of the preliminary objection No.3 of defendant No.1 in the written statement?

(6) Relief.

1. Before the learned trial Judge could, proceed with the suit on merits, defendant‑respondent No. 1 filed two applications, one under Order VI, rule 17, C.P.C. seeking amendment of her written statement, and the other under Order VII, rule 11, C.P.C. for rejection of the plaint. Vide order, dated 3‑7‑1995, the application for amendment of the written statement was allowed whereas the one for rejection of the plaint was dismissed.

2. The contesting parties were then put to trial, and after recording their evidence, the learned trial Judge vide judgment and decree, dated 17‑6‑1998 by dealing with Issues 1, 4 and 5 together, held that the plaintiff‑petitioner being not in possession of the suit property which was in possession of defendant‑respondent No. 1, first proviso to section 42 of the Specific Relief Act was attracted and the suit for mere declaration was barred, and not maintainable without seeking relief of possession. In view of findings on issues 1, 4 and 5, it was considered unnecessary to record findings on Issues 2 and 3., Consequently the plaint was rejected by observing as follows:‑‑

"In nutshell suit is not maintainable. Further proceedings in this way would be sheer wastage of time. No relief thus can be granted to the plaintiff. Since I have not reverted to the aspect of ownership of the disputed land and the plaintiff's claims that sale deed in favour of defendant No. 1 be declared as void and further that learned counsel for the plaintiff has not shown any inclination even at final stage towards making necessary amendments in the relief so as to seek possession. Therefore, in such circumstances, I have come to the conclusion that suit is barred by law‑thus rendering plaint as liable to be so rejected. The plaint thus stands rejected. No order as to costs."

Feeling aggrieved, plaintiff‑petitioner filed an appeal which was accepted by a learned Additional District Judge vide judgment and decree, dated 14th of April, 1999. After recording the findings that "it is not proved on record that respondent No. 1 is not in possession of the land which she has purchased from Liaqat which means that she had installed boundary wall" and that "this is a suit for declaration without seeking possession of the land, whatever its extent or measurement may be" the learned Additional District Judge proceeded to remand the case to the learned trial Judge by observing as follows:‑‑

"Sequel to above, leaving specific findings on each one of the issues particularly Issues Nos. 1, 4 and 5, appeal is accepted and case is remanded to learned trial Court for demarcation of the land of the appellant and that of respondent No. 1 in the first instance through Tehsildar, Lahore Cantt. in accordance with report of the Financial Commissioner recorded in the Rules and Orders of the Lahore High Court, Lahore. His report, (which shall be made by the Tehsildar Lahore Cantt. on the spot carrying demarcation with the help of his Revenue Staff, which must include a Girdawar/Qanungo,) shall also be subject to objections if any by the parties and the Local Commissioner also examined as C.W. After his report, question of possession of the parties on the suit land shall be determined and findings re‑recorded not only on Issues Nos. 1, 4 and 5, but also on Issues Nos. 2 and 3."

1. Defendant‑respondent No. 1 challenged the aforementioned decision by means of Civil Revision No.972 of 1999 which was accepted on 7th of June, 2001 by a learned Judge of this Court, by holding as follows:‑‑

"I have heard the learned counsel for the parties. Issues Nos.1, 4 and 5, relate to the maintainability of the suit filed by the respondent No. 1 and it is specifically averred in the plaint that the plaintiff is in possession of the suit property, thus, no consequential relief for possession was sought. However, from the evidence on the record, the learned trial Court has reached to a conclusion that the respondent No.1 is not in possession, therefore, his suit is hit by the first proviso to section 42 of the Specific Relief Act. The learned Appellate Court has not adverted to this aspect of the matter, but for erroneous reasons, has gone beyond the scope of the controversy between the parties and has observed that the matter between them can be resolved through demarcation. In the instant case, the question of demarcation of the plot in dispute has no relevance. Towards the object to resolving the issue about the maintainability of the suit, it is evidence on the record, which was duly led by the parties, to be taken into consideration and to decide the relevant issues. It may not be out of place to mention here, that even it has not been the case of the respondent that the demarcation of the property, is required, though to ascertain the position of possession, a local commission was appointed by the trial Court, but it was not with an intent for the purpose of demarcation.

In the light of above, the learned Appellate Court has committed irregularity and has erroneously exercised its jurisdiction in accepting the appeal of the respondent and remanding the case to the Court below. Therefore this petition is allowed. The impugned judgment and decree is set aside. The case is remanded to the learned Court in appeal for decision on all the relevant issues on the basis of evidence on the record. No order as to costs".

Pursuant to above decision and the order of remand, a learned Additional District Judge, Lahore, vide his impugned judgment and decree, dated the 8th of May, 2002, dismissed the plaintiff‑petitioner's appeal by holding that he had failed to prove Issues 1 and 2 inasmuch as the sale in favour of defendant‑respondent No. 1 was not in excess of the entitlement of the vendor in the joint Khata and, therefore, it was not open to any valid exception, and by finding Issues 4 and 5 in favour of defendant ­respondent No. 1, he has upheld the trial Court's finding that the suit of the plaintiff‑petitioner was hit by the first proviso to section 42 of the Specific Relief Act, since the plaintiff‑petitioner is not in possession of the suit land and the suit for mere declaration, without seeking the relief of possession, in the circumstances, was not maintainable. Hence this revision petition.

1. I have heard the learned counsel for the parties and have scanned through the record.

2. At the outset learned counsel for respondent No. 1 raised objection to the maintainability of the revision petition by contending that concurrent findings of facts are not open to scrutiny in revisional jurisdiction. Reliance in support of the objection has been placed on Abdul Majid v. Khalil Ahmed PLD 1955 FC 38, Noor Muhammad v. Namdar PLD 1969 Lah. 105, Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522, Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735, Muhammad Bashir Ali v. Ghulam Mohy‑ud‑Din 1996 SCMR 813 and Jam Balli v. Mehar Khan 2003 SCMR 1013.

3. In Abdul Majid v. Khalil Ahmed PLD 1955. FC 38 an erroneous approach in appraising the evidence, unless resulting in a material mistaken assumption, was held not to justify interference in second appeal, let alone in revisional jurisdiction. In the cited case, it was authoritatively laid down at page 41 of the Report as follows:‑

"It is obvious that: what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had, the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others [PLR (1954) 595] where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR 18 Cal. 23 and Wali Muhammad v. Muhammad Bakhsh 11 Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any "error in the procedure provided by law", nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final Judge of facts. The circumstances that the sale deeds contained no recital as to necessity, that the alienations were bid sales, that the alienee was dead at the time of the suit and that the vendor was leading the life of a country gentleman arid not that of a debauch or wastrel had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could riot be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded its functions in interfering with those findings".

In Noor Muhammad v. Namdar PLD 1969 Lah. 105, a learned Single Judge of this Court, while seized of a revision petition arising out of an application under section 383 of the Successions Act, had observed as follows:

"The Administrative Civil Judge has decided the questions of fact raised before him and whether he has decided the same rightly or wrongly, he had jurisdiction to decide the case and even if‑‑he has decided wrongly no case is made out under section 115 of the Code of Civil Procedure. I, therefore, decline to interfere".

In Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522 where an order of acquittal passed by a Magistrate was set aside by a learned Additional Sessions Judge in the exercise of his revisional jurisdiction, the order was challenged in writ jurisdiction, and a learned Judge of this Court, by accepting the writ petition, declared the order of the learned Additional Sessions Judge to be without lawful authority and of no legal effect, thereby restoring the order of acquittal. The order of this Court was challenged before the Hon'ble Supreme Court. It was in this background that the following observations were made in paragraph 11 of the judgment:‑‑

"The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction".

While advancing the argument based on the cases of Noor Muhammad and Abdul Rehman Bajwa (supra), learned counsel for respondent No. 1 has lost sight of the subsequent case reported as Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 where at page 452 of the Report the law has been declared in the following terms:‑

"It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly; when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction".

Moreover, in Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735 by relying on an earlier decision reported as Nawaz v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 it was held that even while exercising Constitutional jurisdiction the High Court is quite competent to interfere with a finding of fact if the same is "based on no evidence or is based on a complete misreading of the evidence". In Muhammad Bashir Ali v. Ghulam Mohy‑ud‑Din 1996 SCMR 813, it was held that "revisional powers under section 115, C.P.C. are primarily intended for correcting errors made ‑by subordinate Courts in exercise of their jurisdiction" and that "ordinarily erroneous decisions of fact are not revisable, except in case where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom". In Jam Balli v. Mehar. Khan 2003 SCMR 1013 leave was refused by observing that concurrent findings of fact by three Courts below including High Court did not suffer from any legal or factual infirmity or jurisdictional error".

1. A very lucid and clear statement of law about the limits of revisional jurisdiction of the High Court qua concurrent findings of facts recorded by lower Courts appears in the case reported as Abdul Hakeem v. Habibullah 1997 SCMR 1139 wherein it was inter alia held as follows:‑‑

"Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Court below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record".

"This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. in our view, is neither permissible nor warranted by law. As earlier pointed out by us, interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. could only be justified if such finding is found to be suffering from misreading of evidence or non‑consideration of important and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its jurisdiction under section 115, C.P.C. has to attend to the reasons given by the Court below in support of such finding and misreading, non‑reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction".

1. Doubtless, wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference in the exercise of jurisdiction under section 115, C.P.C. The fact that a more persuasive, more reasonable or a more convincing view of the evidence is possible is, also not a valid ground for interference with a concurrent finding of fact recorded by the Courts below. Reappraisal and reassessment of the evidence in the case cannot be made the basis for discarding a finding of fact, and. The fact that another view of evidence is possible cannot also be a ground for interference with a concurrent finding of fact, but interference is permissible in revisional jurisdiction with a finding of fact if the finding is found to be suffering from misreading of evidence; or it has resulted due to non‑consideration of important and material evidence the finding is the result of perverse appreciation of evidence on record; it is based on no legal evidence, but on surmises and conjectures, it is based on inadmissible evidence; there is an error or defect in the procedure which has introduced an error or defect in the decision on merits; and the Courts below have acted illegally inasmuch as the decision rendered is against a particular provision of law, or a principle of law has been violated, or it is against the law declared by the superior Courts.

2. Keeping in mind, the afore‑stated broad principles which may justify interference by this Court with concurrent findings of facts recorded by the Courts below, I proceed to examine whether there is any justification for interference by this Court with the concurrent findings of facts recorded by the Courts below. In support of his case, the plaintiff­ petitioner produced Maqbool Ahmed (P.W.1) who admitted in the cross­examination that the plaintiff‑petitioner had purchased land out of a Khasra number which was a part of joint Khata, though he denied the suggestions that Liaqat Ali was owner to the extent of 20 Kanals out of joint Khata, and that after all the alienations made by him, he was still the owner to the extent of one Kanal, 15 Marlas in the joint Khata. Farhat Munawar Bajwa (P.W.2) a son and a Special Attorney of the plaintiff‑petitioner, conceded in the cross‑examination that Ghulam Muhammad on the one hand, and Liaqat Ali, his mother and sisters on the other; were co‑owners in the entire, joint Khata, though he denied the suggestions that the joint Khata consisted of 91 Kanals, 10 Marlas of land, out of which Liaqat Ali had 7/32 share equal to 20 Kanals, 1 Marla and that Liaqat Ali had sold only 18 Kanals, 6 Marlas therefrom. The statement of Hafeez‑ur‑Rehman (P.W.3) is of no real consequence qua the controversy involved herein.

On the other hand, defendant‑respondent No. 1 produced Naib­-Tehsildar Fakhar Ahmed Khan (P.W.1) who had visited the spot and acted as Local Commission instead of Tehsildar who had, in fact, been appointed as Local Commission. According to him, Report (Exh.D.1) and site plan (Exh. D.2) were prepared by him whereas Chhant forming part of Exh.D.1 was prepared by the Patwari (who was Liaqat Ali and has appeared as D.W.3). According to the Chhant, the total area of Khewat No.35 was 91 Kanals, 10 Marlas. Ghulam Muhammad was owner of half equal to 45 Kanals, 15 Marlas, whereas the remaining half, being of his deceased brother Rehmat Ali, had devolved on his legal heirs. The following details given in the Chhant are relevant to decide the questions involved in the instant case:‑‑

| | | | | | | | --- | --- | --- | --- | --- | --- | | Name of owner. | Share in Joint Khata | Land as per share | Alienated | Balance | Excess sold, if any. | | | | K‑M | K‑M | K‑M | K‑M | | Ghulam Muhammad | 1/2 | 45‑15 | 47‑02 | 0‑0 | 1‑ 07 | | Mst. Fatima Bibi widow of Rehmat Ali. | 1/16 | 5‑14 | 3‑14 | 2- 00 | 0‑00 | | Liaqat Ali son of Rehmat Ali. | 7/32 | 20‑01 | 18‑06 | 1‑15 | 0‑00 | | Mst. Rani daughter of Rehmat Ali. | 7/64 | 10‑00 | 06‑10 | 3‑10 | 0‑00 | | Mst. Maryam Bibi daughter of Rehmat Ali | 7/64 | 10‑00 | 6‑10 | 3‑10 | 0‑00 |

Indisputably, Rehmat Ali, predecessor of Liaqat Ali etc., being owner in equal share with Ghulam Muhammad was owner to the extent of 45 Kanals, 15 Marlas in tine joint Khata, which had devolved on his legal representatives, including Liaqat Ali, defendant‑respondent No.2 whose share in the joint Khata was 20 Kanals, 1 Marla, out of which he had sold away 18 Kanals, 6 Marlas, and was still left with 1 Kanal, 15 Marlas in the joint Khata. The alienations of 18 Kanals, 6 Marlas were inclusive of sale of one Kanal, 10 Marlas in favour of defendant­ respondent No.1. Thus, the sale in favour of defendant‑respondent No.1 cannot be said to be beyond the entitlement of Liaqat Ali, vendor.

1. The plaintiff‑petitioner claims to have purchased plot of one Kanal through sale‑deed, dated 10th of May, 1980. A perusal of the said sale deed shows that Mst. Ghulam Fatima, Liaqat Ali, Mst. Maryam Bibi and Mst. Rani had sold one Kanal out of Khasra No.784/594‑min, Khata No.89, Khatuni No.195. It is also stated in the sale‑deed that possession had been delivered to the vendee by the said vendors. Based on the said sale‑deed, Mutation No. 1175 (Exh.D.3), was sanctioned in favour of the plaintiff‑petitioner: The order of the Revenue Officer who sanctioned the said Mutation shows that out of Khasra No.784/594, measuring Kanals, 8 Marlas, land measuring one Kanal had been sold. Needless to mention that in the sale deed no details of the land sold to the plaintiff ­petitioner such as boundaries etc., were given. Similarly, the Mutation conspicuously omits any Tatima having been prepared thereon. On the other hand, so far as the sale in favour of defendant‑respondent No.1 is concerned, it is of one Kanal, 10 Marlas out of the same Khasra No.784/594 and the purpose of sale is mentioned as "ﺽﺍﺭﻏﺍﻰﻧﮑﺴﺀﺍﺭﺑ" In the sale‑deed (Exh.P.8) a sketch is drawn and it is clearly shown that the sale being made was of a plot measuring 100 feet from East and West and 67‑1/2 feet from North and South, abutting Baidian Road on its South and bounded by the other property of vendor on East, West and North. It is also mentioned in the sale‑deed that the possession of the plot sold had been handed over to the vendee. So far as oral evidence is concerned, there is a word against word, both the parties, i.e. plaintiff­ petitioner and defendant‑respondent No.1 claiming to be in possession. However, upon proper analysis of the evidence of the parties, both the, Courts below have concurrently found that the plaintiff‑petitioner is not in possession whereas the defendant‑respondent No.1 is in actual physical possession of one Kanal, 10 Marlas of land out of Khasra No.784/594.

2. There is yet another important aspect of the matter and an additional factor to support the findings of the Courts below which has not been adverted to. In paragraph 6 of the plaint, the plaintiff‑petitioner had himself pleaded inter alia as follows:‑‑

"That the plaintiff, few days ago in order to raise construction over the land has purchased bricks and brought them to the spot and started excavating earth for laying foundation, suddenly defendant No. 1 along with her husband came to the spot and thereafter approached the plaintiff and resisted him forcibly from raising construction over the land ……. Defendant No. 1, with the help of her husband, who hold, very influential position in the Government intended to dispossess the plaintiff, with the help of local police. Defendant No. 1 restrained the plaintiff, forcibly from raising construction over the land in dispute."

Thus, according to the case of the plaintiff‑petitioner, he had only brought the bricks at the spot but before he could raise any construction defendant‑respondent No.1 used force to restrain him from going ahead with any sort of construction activity at the site. But, when the spot was visited by the Naib Tehsildar on the 4th of July, 1993, he found that the land measuring one Kanal, 10 Marlas was surrounded by boundary wall which appeared to be old one; that the plot covered by the boundary wall was exactly the same as was shown in the sale deed in favour of the defendant‑respondent No. 1, and that the same was owned and possessed by her. It is not the case of the plaintiff‑petitioner that the boundary wall was raised by defendant‑respondent No.1 after he had filed the suit: There is overwhelming evidence against the plea of the plaintiff­ petitioner that he is in possession of the suit property; rather possession of defendant‑respondent No. 1 stands established over land measuring one Kanal, 10 Marlas. Thus, the findings of the Courts below on Issues and 2 are based on cogent evidence neither misreading of any evidence nor non‑reading of any material piece of evidence having been shown.

1. Liaqat Ali, vendor‑respondent No.2 was one of the co‑owners in the joint Khata, along with his mother and two sisters. It is in evidence that he was their Attorney as well. Be that as it may, neither his mother nor sisters have till today voiced any grievance that the sale made by him in favour of defendant‑respondent No. 1 was in any manner unlawful or unauthorized. Similarly, Ghulam Muhammad, co‑owner to the extent of half share in the joint Khata has not taken exception thereto. In fact, as per Chhant prepared by the Patwari, Ghulam Muhammad had sold land measuring one Kanal and seven Marlas more than his entitlement. Khasra No.784/594, out of which both the contesting parties claim to have purchased their respective plots, was a part of joint holding. Since other legal heirs of Rehmat Ali (mother and sisters of Liaqat Ali) have not laid their claim so far as the suit property is concerned, nor they have taken exception to the sale thereof by Liaqat Ali, the claim of defendant‑respondent No. 1 that Liaqat Ali was in exclusive possession of the land measuring one Kanal, 10 Marlas sold to her, and that he has also handed over possession thereof to him, stands established.

2. Learned counsel for the petitioner, however, assailed as unlawful and unauthorized the sale made by Liaqat Ali by contending that the total area of Khasra No.784/594 was three Kanals eight Marlas, out of which Ghulam Muhammad was owner to the extent of half; that half share of his brother Rehmat Ali was equal to 34 Marlas; that upon death of Rehmat Ali, his said share was inherited by all his legal heirs (a widow, two daughters and a son‑Liaqat Ali); that all the legal heirs had jointly sold 10 Marlas in favour of Mst. Nasreen Akhtar and one Kanal in favour of the plaintiff‑petitioner in the year 1980, leaving only 4 Marlas as share of all the legal heirs of Rehmat Ali in Khasra No.784/594 and that, therefore, the sale of one Kanal and ten Marlas by Liaqat Ali alone in favour of defendant‑respondent No. 1 out of the same Khasra No.784/594 was beyond his entitlement. While making this submission, learned counsel for the appellant has lost sight of the fact that Ghulam Muhammad, the other co‑owner to the extent of half share has, as per Chhant of Khasra No.784/594 sold to one Mst. Shaista Hafeez land measuring one Kanal. Moreover, as per Chhant prepared by the Patwari of the entire joint Khata, Ghulam Muhammad had already sold one Kanal and seven Marlas in excess of his entitlement in the entire joint holding. Therefore, Ghulam Muhammad could not obviously lay claim to any portion of the remaining land of. Khasra No.784/594. Calculating the sales made by all the co‑owners, including Ghulam Muhammad out of the said Khasra, preceding the sale in favour of defendant‑respondent No. 1, the same come to two Kanals, ten Marlas (Ten Marlas to Mst. Nasreen Akhtar by all the legal representatives of Rehmat Ali, one Kanal by Ghulam Muhammad to Mst. Shaista Hafeez and one Kanal again by all legal representatives of Rehmat Ali in favour of the plaintiff‑petitioner). There was still one Kanal, 8 Marlas land available in Khasra No.784/594, its area being three Kanals eighteen marls as per Record‑of‑Rights for the year 1970‑71 (Exh.D/6). The question, in the circumstances, arises whether the sale in favour of defendant‑respondent No. 1 can be held to be illegal and unlawful for the reason that it was two Marlas in excess of the area of Khasra No.784/594, although it was within the entitlement of Liaqat Ali, vendor, if his share in the entire joint holding is taken into consideration.

While dealing with a similar question, in Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26, it was observed at page 30 of the Report as follows:‑‑

"I consequently hold that a person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation."

In Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 the Honourable Supreme Court had declared the law thus:‑‑

"The vendee of a co‑sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co‑sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-­sharers".

A similar question came up for consideration before the Supreme Court of Azad Jammu & Kashmir in the case reported as Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75. The case‑law was extensively reviewed at pages 77‑79 of the Report, and it was observed as follows:‑‑

"After careful examination of the law on the point and the facts of this case, we are of the view that a co‑sharer in possession of specific field numbers can validly transfer such land, even if his share in such specific field numbers exceeds his share, provided it does not exceed his over all entitlement of the share in the whole land. Of course the vendees' rights will be subject to adjustment on partition. But such a sale cannot be legally challenged on the mere ground that the land sold exceeds the share of the vendor in the specific numbers.

For this we may refer to AIR 1925 Lah. 5‑18. In that case Mr. Justice Martineau, was confronted with the question whether a co‑sharer in a Shamilat land on a transfer made by another co­-sharer of land under his sole and exclusive possession, can prevent transferee from construction of building on such land. The learned Judge after discussing all aspect of the case answered the proposition in affirmative and stated that‑‑

"Although Allahdiya and Kimun not being the sole owners of the land could not sell the full proprietary rights, the sale by them nevertheless holds good to the extent of conveying the rights which they could sell including the right to retain possession till partition. It has been held in Muhammad Amin v. Karam Das, (1924 Lah. 293) in which various rulings, on the point have been considered, that when a co‑sharer has been long in possession of a portion of the Shamilat land no other co‑sharer can oust him therefrom or even get joint possession with him as long as a partition of the Shamilat does not take place. The plaintiff has the same rights in the land that his predecessor in title had. He is entitled to undisturbed possession of the land as long as the Shamilat is not partitioned, and the defendants have no right to prevent him from building on the land".

A similar point came up for decision before Lahore High Court in AIR 1938 Lah. 465. In that case, the point to be determined was whether, in a case of joint "Khata" where one co‑sharer had been in exclusive possession for a long time of a portion of the joint land not exceeding his share in the entire holding, another co‑sharer can dispossess him against his will from such land. Mr. Justice Tek Chand, relying on AIR 1924 Lah. 293 and AIR 1925 Lah. 518 observed:‑

"It is well‑settled that in a case of joint Khata, where one co‑sharer has been in exclusive possession of a portion of the joint land, which does not exceed his share in the entire holding, another co‑sharer cannot dispossess him against his will from the portion of which he had been in possession".

Again an identical question came for consideration before the Oudh High Court in AIR 1939 Oudh 243. In that case Plot No.2807 was jointly owned by Baldeo Singh and Ambika Prasad, along with 80 other defendants. They (Baldeo Singh and Ambika Prasad) had given two leases in respect of this plot one on 11th of October, 1932 and the other on the 15th of November, 1932 in favour of defendant No. 1. The leases were made subject of a regular suit. But it was held that Baldeo Singh and Ambika Prasad being in exclusive possession of the land at the time of the lease were competent to lease it out to defendant No.1 alongwith possession. Mr. Justice Radha Krishna, held that:‑‑

"The question, therefore, is whether a co‑sharer, who has been in exclusive possession of a certain plot of land without let or hindrance by other co‑sharers, can transfer the plot to a third person subject to the right of other co‑sharers to obtain a partition of the village. The law on the point in Oudh seems to me to be well‑settled. In 21 OC 214 Lindsay, .J.C. (later Lindsay, J.) held that the general rule regarding the enjoyment of joint property by the co‑sharers is that one co‑sharer has no right to appropriate specific portions of such property to the exclusion of his co‑sharers except by means of a lawful partition. This rule, however, is subject to the qualification that where one co‑sharer has been for a long time in peaceful possession of a portion of the joint property without hindrance or opposition by his co‑owners the latter are not entitled to eject him except by means of a partition".

In the case AIR 1927 Oudh 467 and AIR 1921 Oudh 106 were relied upon:‑‑

"The question of entitlement of a co‑sharer to transfer the specific land under his possession was once again adjudicated in a Division Bench case in AIR 1940 Lah. 473. The Bench consisted of Mr. Justice Tek Chand and Mr. Justice Bhide Judges. The learned Judge Bhide who wrote the principal judgment in the case, after discussing the case‑law on the point, observed:‑

"As a result, it has been held that a co‑sharer who is in such possession of any portion of a joint Khata, can transfer that portion subject to adjustment of the rights of the other co‑sharers therein at the time of partition. This view seems to be consistent with the principle embodied in section 44, T.P. Act, regarding transfers of their `interests' in joint property by co-­sharers'.

In PLD 1955 Pesh. 26, a similar question was posed to be determined. It was held by Mr. Justice Muhammad Shafi, that:‑‑

"A person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation".

In PLD 1959 S.C. (Pak.) 9 (Full Court case), it was observed by Mr. Justice S.A. Rahman, who wrote the main judgment that:‑‑

"Alienation of specific plot transferred to the vendee would only entitle the, latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co­-sharers."

Looked from another angle we come to the same conclusion. It is conclusively established that the possession of the vendor in the specific field numbers was due to family arrangement. It is true that such an arrangement does not extinguish the title of other co‑sharers, but so far as the factum of such a possession and sale of the specific field numbers is concerned, it certainly debars other co‑sharers to get back such possession or challenge the sale. This is, of course, subject to adjustment at the time of partition as would have been the case if the vendor had not sold the land. Section 115 of the Evidence Act comes to the aid of vendee in such a case. Mr. Justice Monir, formerly Chief Justice of Pakistan in his Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edition, page 1296 says:‑‑

"Family arrangements are arrangements between the members of a family for the preservation of its piece of property. The principles upon which such arrangements are enforced in England are stated in the case of Williams v. Williams. Such arrangements are constantly entered into in this country, and, where they have been acted upon and acquiesced, the Court will not look so much to the adequacy of the consideration as to the motives and conduct of the parties. In a settlement of a doubtful right truth may be on either side, but the essential effect of the settlement is that further trouble or investigation is put to an end and a settlement is concluded to restore harmony. The consideration for such a settlement is the mutual promise made, or forbearance shown, by one party to the other. In the absence of fraud or undue influence, it is not, therefore, open to either party to resile from it afterwards and the settlement is binding not only on the parties but on their sons and descendants. A family settlement is binding, even though a limited owner is a party to it. Where parties settle a family dispute amicably, take a share of the property, enter into possession, and subsequently sell or mortgage the items allotted to them, they are estopped from questioning the settlement".

AIR 1924 All. 63 may be referred as an authority on point. In that case a person deliberately by his own conduct got the name of another person who had no right to inheritance to a property entered as owner of such property at the time of mutation. Later on he challenged the mutation. It was held by the Division Bench of the Court that he was estopped from subsequently pleading that he was the owner of the whole property".

In view of this we hold that the appellants' suit is otherwise too hit by the doctrine of estoppel as because of the fancily arrangement they are precluded from claiming their shares in the specific field numbers in possession of the vendor".

1. The afore‑quoted decision of the Supreme Court of Azad Jammu and Kashmir was cited, with approval, by the Hon'ble Supreme Court of Pakistan in Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427 wherein it was further held as follows:‑‑

"We have examined the contentions raised by the learned counsel and agree with the finding of the learned High Court Judge in principle i.e. the sale of specific field numbers by a co-­sharer in possession can, for consideration, alienate the land in possession, and if his share in such specific field numbers exceeds his share, provided it does not exceed his over all entitlement in the land, the vendee's rights would be subject to adjustment on partition as held in the case cited by the learned Judge entitled Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 S.C. (AJK) 75".

In Ch. Ghulam Abbas v. Barkat Ali add another 1999 YLR 2190, a learned Judge of this Court held in the following terms:‑‑

"Law is well‑settled that a co‑sharer, in exclusive possession of specific field number can alienate the entire field number provided the area of the said field number does not exceed the entitlement of the vendor in the entire joint holdings. The effect of this sale is that the vendee steps into the shoes of the vendor and can retain possession subject to adjustment at the time of partition".

Respectfully following the law laid down in the aforementioned decisions, I would hold that the sale in favour of defendant‑respondent No. 1 is not open to exception either on fact or in law, and she can retain possession of the suit‑land till such time as an actual partition by metes and bounds takes place between the co‑owners. The concurrent findings of facts recorded by the Courts below under Issues 1 and 2, being neither perverse or whimsical nor arbitrarily, do not call for interference.

1. Lastly, the learned counsel for the petitioner argued that the impugned decisions of the Courts below on Issues 4 and 5 are not sustainable inasmuch as the plaint could not be rejected on the ground that the relief of possession had been omitted by the petitioner although he has been found by the Courts below to be not in possession, and that the plaint could be allowed to be amended. So far as the legal position is concerned, the plaint could not be rejected on the sole ground that the plaintiff‑petitioner had not asked for the relief of possession. In fact, he had been insisting throughout that he was in possession. However, when he failed to convince the learned trial Court about his alleged possession, the seeking of the relief by way of delivery of possession had become a necessary consequential relief which should have been claimed by way of amendment of the plaint. The plaintiff could be allowed to amend the plaint by adding the prayer for possession and to pay additional court‑fee. Such an amendment would not have altered the nature of the suit. It would have been only in the nature of an additional claim which the plaintiff‑petitioner should have asked for in the suit. In Karamat Ali v. Muhammad Yunus PLD 1963 SC 191, it was held as follows:‑‑

"That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is not contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Karamat Ali himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer. This was sometime in 1944‑45 and, as such the claim of the appellants to possession has clearly become barred by limitation.

The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali v. Mst. Thakooranee Rutta Koer 11 MIA 468 and Charan Das and others v. Amir Khan and others AIR 1921 PC 50. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.

The present, in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when they auction‑purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for Khas possession and to pay the additional court‑fees as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both in this Court ‑as well as in the Courts below as a condition precedent".

The case was remanded by the Hon'ble Supreme Court to the trial Court for enabling the plaintiff‑appellant to make the necessary amendments to the plaint and thereafter for disposal of the suit in accordance with law. The following classic statement of law by late Justice B.Z. Kaikaus on the subject whether technicalities can, at all, defeat substantive rights or the same could be avoided, appears in the case reported as Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382:‑‑ .

"I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think 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 grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his".

The question whether a plaintiff who does not specifically ask for the relief of possession can still be granted the same, by allowing him to amend the plaint so as to add the prayer for possession, also came up for consideration in Ahmad Din v. Muhammad Shafi PLD 1971 SC 762 and was answered in the following terms:‑‑

"The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court‑fees and then to grant him relief even though he had not specifically asked for it".

In Mst. Ghulam Bibi v. Sara Khan PLD 1985 SC 345 while interpreting rule 17 of Order VI, CPC, it was held: "Once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment". However, a rider was attached to these all‑pervading observations to the effect that "the nature of the suit in so for as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed, the suit itself would become different from the one initially filed". On the general question of technicalities of the civil procedure when the same are pressed into service so as to thwart rights and remedies, their Lordships quoted the afore‑mentioned observations of late Justice B.Z. Kaikaus in Imtiaz Ahmed's case, and further held that "the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice". In Karam Ali v. Muhammad Nawaz PLD 1993 Lah. 49, a suit for declaration was dismissed on the ground that the plaintiff being not in possession, form of the suit was defective and as such declaratory suit was not competent. The decisions of, the Courts below were reversed by this Court in the exercise of its revisional jurisdiction, by holding that the defect in the form of the suit should be allowed to be rectified by permitting the plaintiff to amend the plaint in accordance with law. Similar views were expressed in Muhammad Shafi v. L.D.A. 1993 CLC 2482 and it was further held that a declaratory suit on the basis of a title cannot be dismissed on the ground that the plaintiff is not in possession of the disputed property, and that proper course in such a case would be to allow him to amend the, plaint and to ask for relief of possession. In Mst. Zubaida Bibi v. Mst. Hashmat Bibi 1993 SCMR 1,882 the petitioner sought permission for the first time from the Hon'ble Supreme Court to amend the plaint so as to seek the relief of specific performance of an agreement. The permission was allowed by observing: "\\\we find that the appellant is seeking this new relief entirely on the basis of the assertions already made in the plaint and thus the amendment will not change the nature of the suit. In the circumstances we allow the prayer for amendment". Relying on the aforementioned cases of Mst. Ghulam Bibi and Imtiaz Ahmed, a learned Judge of this Court in the case reported as Jane Margrete William v. Abdul Hamid Khan 1994 CLC 1437, after finding that the plaintiff was not in possession of the suit properties, and by observing that to do complete justice and to save the parties of further litigation, there is power in the Courts to allow the amendment of the plaint at any stage of the‑ suit, and that in case the relief of possession flows from the main relief of declaration of title and the case squarely falls under section 42 of the Specific Relief Act and section 7, clause (iv) (c) of the Court Fees Act, not only allowed the plaintiff, at appellate stage, to amend the plaint so as to ask for the relief of possession as a consequential relief, but simultaneously granted a decree for possession ' of the suit properties. In Muhammad Mian v. Shamimullah 1995 SCMR 69 by relying on the cases of Ahmad Din and Mst. Zubaida Bibi, (supra), application moved for the first time in the Hon'ble Supreme Court, seeking amendment of plaint so as to add the claim for possession, was allowed by holding as follows:‑‑

"The application has been contested by the respondents. It has been stated, that the application has been filed after long delay. The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage. The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is a consequential relief for declaration. This relief arises out of the claim of the appellant. The amendment sought by the appellant is only of technical nature. No further evidence is required".

1. In the above view of the matter, I would have set aside the findings of the Courts below under Issues 4 and 5 and would have allowed the plaintiff‑petitioner to amend the plaint seeking a decree for possession as a consequential relief, but for the reasons, firstly that have held that the sale of the suit land in favour of defendant‑respondent No. 1 is not open to exception and her possession is lawful, and secondly because it is mentioned in the impugned judgment of the learned trial Judge that despite being conscious of the objection as to the frame of the suit, "learned counsel for the plaintiff insisted on plaintiff's possession and did not show any inclination of feeling necessity of making any amendment in the plaintiff's claim" whereas the learned Additional District Judge also observed that although the appeal had remained pending for a long time, yet no application for amendment of the plaint to add the prayer for relief of possession had been moved, and the revision petition filed in this Court also conspicuously omits any such prayer. In Mst. Ghulam Bibi v. Sara Khan, (supra), though the contention that the plaintiff had "acted in a mala fide manner in not seeking the amendment before trial Court" was repelled by observing, that the issue regarding non‑maintainability of the suit had been decided in favour of the plaintiff, and that "it was the respondent‑side which filed` the appeal before the District Court" but the following weighty observations of their Lordships cannot be lost sight of:‑‑

"If the appellants would have failed before the trial Court on this issue and they had filed the appeal before the District Court a question could have arisen as to why they did not at least ask for the amendment of the plaint as an alternative course of action".

The observations are squarely attracted to the facts and circumstances or the instant case because here the plaintiff‑petitioner had failed on the Issue of the maintainability of the suit and had also filed the appeal as well as the present revision petition, but he has not asked for the amendment of the plaint so as to include the prayer for possession as a consequential relief. 'Nevertheless, in view of the finding about ownership of the suit property by defendant‑respondent No.1, the question regarding amendment of the plaint to include the prayer for possession has become inconsequential.

1. Needless to mention that on the Issue regarding the suit being barred by time, neither party addressed any arguments.

2. For the foregoing reasons, this petition is found to be devoid of force and dismissed accordingly, leaving the parties to bear their own costs.

S.A.K./M‑2486/L Revision dismissed.

2004 C L C 473

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

MUHAMMAD USMAN and others‑‑‑Respondents

Writ Petition No. 10637 of 2003, heard on 21st January, 2004.

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

‑‑‑‑‑S. 5 & Sched.‑-‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintenance for children, quantum of‑‑­Fixation of such maintenance‑‑‑Islam does not compel a person to do an act beyond his capacity‑‑‑Salary of father cannot be attached beyond half of the same‑‑‑Social status of the man and level of his legitimate financial sources, which are eminent factors for deciding the quantum of maintenance, shall not be ignored‑‑‑Where the Family Court had not dilated upon said aspects of the case with realistic approach nor the evidence was appraised with due precision, though the man had given oral account of the income while the lady had not produced the evidence in contrariety, High Court, in view of the income of the man, reduced the quantum of maintenance accordingly‑‑‑Amount which the man had been paying to his wife when she was living with her father, was not enough to establish his legitimate income.

Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945 and M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and others 2001 YLR 2329 rel.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintenance for breast‑feeding the suckling baby at the time of divorce to the mother of the baby‑‑‑Legitimacy of the child was not contested‑‑‑Mother was entitled to maintenance for breast­feeding the suckling baby for two years even after the period of Iddat for breast feeding the babe of the man who was a man of sufficient means.

Al‑Qur'an: Surah 2, Al‑Baqara, Verse 233 rel.

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

‑‑‑‑S. 5 & Sched.‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Divorce‑‑Record showed that father of the husband had undertaken, during the proceedings, that if his son will take any step which may give mental torture or cruel treatment to his wife or the husband will not perform matrimonial relationship he will pay Rs.4,00,000 to the wife‑‑­Effect‑‑‑Held, even the equity and natural justice demanded that the wife, who was neglected throughout by her husband and who was divorced by him at his whims and caprice and she was left alone at the mercy of cruel circumstances in a male dominated society, without any source of income, should be maintained by the divorcing husband who had acted without justification‑‑‑High Court observed that Legislature, in Pakistan having the supreme power to enact and legislate law, may, if so, deemed fit, look into this aspect of the matrimonial life and make amendment in S.9, Muslim Family Laws Ordinance, 1961 enabling the Chairman, Arbitration. Council to grant maintenance to a destitute divorced wife and may enact separate provisions of law in the same Ordinance.

Al‑Qur'an: Sura 2; Al‑Baqara, Verse 241 fol.

Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945; Usman Khan Bahamani v. Fathimunnisa Begum and others AIR 1990 Andh. Pra. 225 and Arab Ahemadhia Abdulla and others v. Arab Bail Mohmuna Saiyadbhai and others AIR 1988 Guj. 141 mentioned.

Asif Saeed for Petitioner.

Mehdi Khan Chauhan for Respondents Nos. 1 to 3.

Nemo for Respondents Nos.4 and 5.

Date of hearing: 21st January, 2004.

JUDGMENT

The brief facts in the instant writ petition are that Mst. Zaib‑un­-Nisa, the mother of the minors respondents Nos. 1 to 3 filed a suit for maintenance for herself and the minors. She demanded and prayed that she be given Rs.4,00,000 as compensation vide agreement, dated 11‑10‑1997 and the maintenance allowance of all the plaintiffs at the rate of Rs.20,000 or as directed by the Court. The suit was contested and the learned Family Court Judge vide judgment and decree, dated 17‑4‑2002 decreed the suit of the plaintiffs Nos.2 to 4 (minors) against defendant No. 1 with the observation that the plaintiffs Nos.2 to 4 are entitled to get maintenance allowance from defendant No. 1 at the rate of Rs.5,000 per month each from the filing of the suit till the operation of law and dismissed the suit filed by plaintiff No.1. On appeal the impugned judgment and decree passed by the learned Family Court Judge was affirmed vide judgment and, decree, dated 18‑3‑2003.

1. The arguments advanced by the learned counsel for the petitioner are that he is only aggrieved in respect of the quantum of maintenance and does not want to address arguments on any other ground other than the quantum of maintenance. He argued that the income of the petitioner is, at the most 15,000 per month and he has remarried and has children from the second marriage. While both the learned Courts below considering him a Steel Fitter for Sharja Police having a technical job apprehended that he would be earning more than what he has stated and, therefore, decreed the exorbitant amount.

2. The learned counsel for the respondents has argued that the learned Courts below have illegally deprived the plaintiff No.1 from her maintenance. As in the earlier suit filed by her for the recovery of maintenance allowance the matter was settled between the parties through an agreement, which is‑ on the record as Exh.P.1 and through this agreement the father of the petitioner undertook that if his son Muhammad Aslam, the petitioner will take any step which will give mental torture or cruel treatment to the respondent No.1 Mst. Zaib‑un­-Nisa or the petitioner will not perform matrimonial relationship he will pay Rs.4,00,000 to the plaintiff/wife. Since such an agreement was the outcome in a family suit the learned Family Court was bound to grant her the aforesaid amount. He further argued that the plaintiff No.1 was divorced at the whims and caprice of her husband and without any reasonable cause the divorce took place between the parties and she was granted only maintenance by the Arbitration Council for Iddat period and the petitioner's remedy against the same has been failed till High Court. He further argued that the instant writ petition is filed by the father of the petitioner without any power of attorney to move with the instant petition the quantum of maintenance is reasonable and this Court has no jurisdiction to interfere in this matter. He further argued that a divorcee wife if neglected and deserted by her husband at his whims and caprice then she is entitled for maintenance for milk of the suckling babe. He relied on Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945. He Further argued that according to Ahkam‑ul‑Qura'n Verse 333, Sura 2:‑‑

He further argued that in Majmooa "Qawaneen‑i‑Islam" it is established that:‑‑‑

Since the younger child was a suckling babe, so the defendant husband was under a duty of law to pay her the maintenance allowance for her milking even after divorce.

1. The learned counsel for the respondents in respect of the above arguments submits that the writ petition filed by the petitioner/husband to this effect is dismissed by this Court. She has not filed any appeal or objection petition for rejecting her claim of past maintenance. The law relating to the matter of substantive right of appeal exists in section 14 of the Family Courts Act, 1964 but no such appeal has been preferred by the plaintiff/wife, therefore, she cannot agitate even this right at this stage.

2. I have heard the learned counsel for the parties and have perused the record.

3. In view of judgment M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and others 2001 YLR 2329 the salary cannot be attached beyond half of it. Islam does not compel a person to do an act beyond his capacity, therefore, social status of the petitioner and level of legitimate financial sources which are eminent factors for deciding the quantum of maintenance shall not be ignored.

4. In the present case these aspects have not been dilated upon by the learned Courts below with realistic approach nor the evidence is appraised with the precision. The petitioner has given oral account of the income of the defendant but she has not produced the evidence. At this stage, the learned counsel for the petitioner submits that he is drawing near about Rs.15,000 as his salary, therefore, the fixation of quantum of maintenance of Rs.5,000 per head to my view is not correct and even the admission of the petitioner that he used to pay Rs.5,000 to the plaintiff/wife when she was living with her father, is not enough to establish the legitimate income of the petitioner. The quantum of maintenance is reduced from Rs.5,000 to Rs.3,000 per month for each minor.

5. So far as the maintenance of plaintiff/wife is concerned, undoubtedly the divorce has taken place between the spouses and during divorce proceedings the Arbitration Council granted her maintenance allowance of Rs.10,000 per month for Iddat period. She has filed a suit for her past maintenance which both the learned Courts below have ignored but it is established from the evidence on record that when the divorce took place there was a suckling babe namely Mst. Ayesha who was born on 12‑9‑2001. The petitioner is well‑settled aboard. He has contracted a second marriage in March, 2003 and he is keeping his children from the second wedlock at Sharjah while the plaintiff/wife was left alone with a suckling babe and other minor children and stood divorced. In Surah 2 Al‑Baqara; Verse 233 the Qur'an says:‑‑

1. The suit for maintenance was filed by the plaintiff for herself and the minors on 12‑9‑2001. The divorce took place in September, 2001 but according to her statement as P. W.1 she was expelled from the house in July, 2000. The learned Family Court Judge while deciding Issue No. 1 observed that the claim of the plaintiff remains uncontested to the extent of defendant No. 1 and the plaintiff has proved this issue successfully and observed that there is no question regarding the legitimacy of defendant No. 1 with plaintiff No 1 and the minor plaintiffs are legitimate children of defendant No. 1 therefore, defendant No. 1 is legally bound to maintain them and moreover, as the marriage has admittedly been dissolved between the spouses, therefore, the plaintiff No. 1 being not wife of defendant No. 1 is not entitled for any maintenance allowance. The judgment and decree dated 17‑4‑2002 was not challenged by the plaintiff/wife to her extent but so far as the maintenance of the plaintiff to the extent of her breast‑feeding her suckling babe from the date i.e. J2‑9‑2001 till 12‑9‑2003 is concerned according to Qur'anic Injunctions and dictates of Islam she is entitled for maintenance for breast‑feeding the suckling babe from 12‑9‑2001 till 12‑9‑2003, therefore, the judgments of, the learned subordinate Courts on Issue No.1 stand modified to this extent acid she is held entitled to the maintenance allowance at the rate of Rs.1,000 per month even after the period of Iddat for breast‑feeding the suckling babe of the petitioner who is a man of sufficient means.

2. As far as the recovery of the amount of Rs.4,00,000 is concerned that is through an agreement between the parties if she has any right in respect of the agreement she can always agitate the same before the proper forum and the learned Family Court as Civil Court can always look into the matter.

3. Even the equity and natural justice demands that the wife who is neglected throughout by her husband and divorced her at' his whims and caprice and is left alone at the mercy of cruel circumstances in a male dominated society without any source of income should be maintained by the divorcing husband who has acted without justification. In Sura Al‑Baqara; Verse 241, the Qur'an says:‑‑

1. In the Indian law, Muslim Women Protection of Right on Divorce exists in the provision of section 125, Cr.P.C. but there is no such existing in the law of Pakistan. There are judgments of Indian Courts i.e. Muhammad Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, Usman Khan Bahamani v. Fathimunnisa Begum and others AIR 1990 Andh. Para. (Full Bench) 225 and Arab Ahemadhia Abdulla and others v. Arab Bail Mohmuna Saiyadbhai and others AIR 1988 Gujarat 141, where a divorcee wife who is neglected and divorced by her husband at his own whims and caprice is held entitled for maintenance under section 125, Cr.P.C. of Indian Criminal Procedure Code, the Muslim Woman Protection of Right on Divorce. The Legislature in this country having the Supreme power to enact and legislate law, may, if so deems fit look into this aspect of the matrimonial life and make amendment in section 9 of the Family Laws Ordinance, 1961 enabling the Chairman, Arbitration Council to grant maintenance to a destitute divorcee wife and may enact separate provisions of law in the same Ordinance.

M.B.A./M‑38/L Order accordingly.

2004 C L C 478

[Lahore]

Before Muhammad Ghani, J

JAVED IQBAL‑‑‑Petitioner

Versus

PASSCO and another‑‑‑Respondents

Writ Petition No. 13372 of 2003, decided on 23rd December, 2003.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Rights and obligations of the parties flowing from a contract‑‑‑No hard and fast rule exists providing that Constitutional jurisdiction cannot, at all, be invoked for such rights and obligations‑‑‑Principles.

There is no hard and fast rule that Constitutional jurisdiction cannot, at all, be invoked where the rights and obligations of the parties flow from a contract.

It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspects which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition.

On principle, contractual rights and obligations have to be enforced through Courts of ordinary jurisdiction. However, where rights are based on statute, law or rules framed thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing function in relation to the affairs of the Federation or a Province or a local authority, Constitutional jurisdiction can be attracted. In such and allied situations even contractual rights and obligations may be enforced in Constitutional jurisdiction. This, however, is subject to the important rider of corresponding absence of an adequate remedy.

Thus merely, because a contract is involved in a Constitutional petition is not by itself sufficient to oust the Constitutional jurisdiction under Article 199 of the Constitution.

A person has a right to come to the Court in Constitutional jurisdiction, for issuance of a direction to the public functionaries to act strictly in accordance with law in case the public functionaries have not acted in accordance with the statute and have passed adverse orders even without issuing a show‑cause notice. Power of judicial review in such­like cases is available to the High Court even in cases where the grievance has arisen on account of violation of the contractual obligations.

While exercising writ jurisdiction, which is essentially discretionary in nature, superior Courts in Pakistan will not hesitate a moment to refuse relief to a suitor seeking enforcement of contract against State or statutory Corporation, if the national interest is thereby likely to be endangered, in the least, despite the fact that the legalistic right of such suitor for issuance of appropriate writ stood established. Relief would also be refused if the contract is shown to be unconscionable/mala fide/un-reasonable or against public policy.

A situation may arise where the Constitutional jurisdiction of High Court under Article 199 may be permitted to be invoked by an aggrieved person for declaration of the act of representative of State/statutory Corporation, about entering into a contract with third party, to be without lawful authority, on the above grounds.

Kaanay Construction Co. v. WAPDA 2001 YLR 734; Maj. (Retd.) Shehzad Hussain Khan v. Government of the Punjab 2001 PLC, (C.S.) 249; Mian Ansar Hayat v. Punjab Mineral Development Corporation 2001 YLR 2670 and Sajjad Hassan v. Additional Director-­General, Lahore Development Authority, Lahore 2001 MLD 18 distinguished.

Nizamuddin v. Civil Aviation Authority 1999 SCMR 467; M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563; Anwar Muhammad Khan v. Director of Industries PLD 1994 Lah. 70 and Wak Orient Power and Light Ltd. v. Government of Pakistan 1998 CLC 1178 ref.

(b) Contract‑‑‑

‑‑‑‑ Privity of contract‑‑‑Concept‑‑‑No one but the parties to a contract can be bound by it, or entitled under it and this principle is known as "privity of contract".

(c) Contract‑‑‑

‑‑‑‑ Novation of contract‑‑‑Rescission of one contract and the substitution of a new one is called, a novation.

(d) Contract‑‑‑

‑‑‑‑ Rule that in the absence of contract, an innocent but negligent act of non‑disclosure cannot give rise to action is not a universal rule‑‑­Dishonesty was not a necessary factor in a case of breach of duty‑‑‑Even in the absence of any direct dealings between one person and another, there are many and varied situations in which a duty is owed by one person to another.

(e) Contract‑‑‑

‑‑‑‑ Implied or express contract‑‑‑Duty of care arising from implied as well .as express contracts and duty of Court arising from other special relationship which may be found to exist in particular cases, still remains and there is no logical stopping place short of all those relationships, where it is plain that one party was twisting the other to exercise such a degree of care to disclose as the facts and circumstances of a particular case required.

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

‑‑‑‑Arts. 25 & 199‑‑‑Equality before law‑‑‑Public Corporation‑‑‑If Government, acting through its officers, is subject to certain Constitutional and public law limitations, it must follow, a fortiori, that Government, when it acts through the agency of a corporation, the latter should equally be subject to the same limitations in the exercise of its power or discretion‑‑‑Rule inhibiting arbitrary action by the Government applies equally to a Corporation which deals with the public, by way of entering into contracts; it cannot act at its sweet will and pleasure, but its actions must be in conformity with the principles which meet the test of justice, reason, fairness, equality of treatment, and must qualify standards and norms that are not arbitrary, irrational, whimsical and discriminatory and must not be guided by extraneous considerations‑‑­Every act of the Corporation must be dictated by public interest and must not be unreasoned or unprincipled, and any departure, therefrom, can be held to be invalid‑‑‑Principles.

Public Corporation in essence, performs functions which squarely fall within the executive authority of the State itself. Indisputably, the Government, which represents the executive authority of the State acts through the instrumentality or agency of either natural or juridical persons to carry out its functions. It is of common knowledge that as incidental to or in aid of Governmental functions in the fields of specialized and technical character, need was felt to forge a new administrative device, consequently the Government exercised its power to charter public corporations as its third arm. Such corporations, whether established by statutes or incorporated under the law but controlled by the Government and bound, in policy matters, by directions of the Government, are ex‑hypothesi agencies of Government and manage public enterprises, which ordinarily should be carried by Government itself departmentally. The corporations, such as one in the present case, acting as instrumentality or agency of Federal Government, because of enjoyment by it of monopoly status are impregnated with Governmental character and are obviously subject to the same limitations in the performance of their functions as the Government itself, though in the eye of law, they are distinct and independent entities. If Government, acting through its officers, is subject to certain Constitutional and public law limitations, it must follow a fortiori that Government, when it acts through the agency of a corporation, the latter should equally be subject to the same limitations in the exercise of its power or discretion. The rule inhibiting arbitrary action by the Government applies equally to a corporation which deals with the public, by way of entering into contracts; it cannot act at its sweet will and pleasure, but its actions must be in conformity with the principles which meet the test of justice, reason, fairness, equality of treatment and must qualify standards and norms that are not arbitrary, irrational, whimsical and discriminatory. It must not be guided by any extraneous consideration. Every act of a public Corporation must be dictated by public interest and must not be unreasoned or unprincipled and any departure therefrom can certainly be held to be invalid. It can hardly be disputed by any one that for a society which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings. It is more so for any functionary believing in rule of law neither to discriminate between the citizens, nor to exercise discretion at its pleasure. An authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The principle of reasonableness and rationality which is an essential element of equality or non‑arbitrariness is projected by Article 25 of the Constitution and it must characterize every State action, whether it be under authority of law or in exercise of executive power. Article 25 speaks of equality before law and equal protection of law. Public Corporation as an instrumentality of the Government, in the sense brought out above, has to observe equality and cannot exclude a person by discrimination.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contract‑‑‑No definite intention on the part of party, a Government Corporation, to strictly press into service the terms of the agreement‑‑‑Doctrine of promissory estoppel‑‑­Applicability‑‑‑Limitations‑‑‑Where the Government Corporation was not suffering any financial burden and the other party was bound to suffer loss if he was not allowed to proceed according to the agreement; the action of the Government Corporation could not be sustained.

Central London Property Trust Ltd. v. High Trees House Ltd. (1956) 1 All ER 256; Union of India v. Messrs Anglo‑Afghan Agencies AIR 1968 CSC 718; Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager v. Government of Pakistan through Ministry of Finance and 2 others 1998 SCMR 1404; Fecto Belarus Tractors Limited v. Pakistan 2001 PTD 1829; Pakistan v. Salahuddin PLD 1991 SC 546; Messrs Gadoon Textile Mills Limited and 814 others v. WAPDA and others 1997 SCMR 641; Messrs M.Y. Electronics Industries (Pvt.) Limited through Manager v. Government of Pakistan through Secretary, Finance and 2 others 1998 SCMR 1404; Collector of Customs and others v. Ravi Shipping Ltd. and others PLD 1999 SC 412; Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Fecto Belarus Tractors Limited 2000 SCMR 112; A.R. Khan v. P.N. Bogha through Legal Heir PLD 1987 SC 107 and Sajjad Hussain v. Mussarrat Hussain Shah 1989 SCMR 1826 ref.

(h) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Contract‑‑‑Time when not essence of the contract‑‑‑If, in a contract, there was power of extension and the provisions for penalties/damages, time would not be of the essence of the contract‑‑‑Principles illustrated.

If in a contract, there is power of extension and provisions for penalties/damages, time will not be of the essence of the contract.

The inclusion of clauses in a contract providing for extension of time in certain contingencies and providing for the payment of a fine or penalty for every day or week the work undertaken under the contract remains unfinished on the expiry of the time provided in the contract, is inconsistent with time being of the essence of a contract and would be calculated to render ineffective an express provision in a contract to that effect. And this certainly accords with commonsense.

The question whether or not time is of the essence of a contract is a question of the intention of the parties to be gathered from the terms of the contract. In case there is an express provision that time is of the essence of the contract and at the same time provisions for extension of time without limit or qualification and for the levy of penalty, it cannot be said that it was intended that time should be of the essence of the contract.

The very fact that a penalty was stipulated for in case of failure to complete the work within the stipulated time indicates that in case of such failure it was not the avoidance of the contract that was contemplated but acceptance of performance after the stipulated time, subject to payment of damages which were fixed.

Notwithstanding the provision that the time was of the essence of the, contract, there were other clauses, which indicted that the intention of the parties was not to strictly enforce the clause regarding time. The clauses regarding suspension of the work and the payment of penalty for the non‑performance of the contract in time, clearly indicate that the parties never intended that the time was of the essence of the contract.

Under section 55 of the Contract Act, 1872, if it is not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. In the facts and circumstances of the case it can legitimately be inferred that the parties to the contract never intended the time to be of the essence of the contract and, therefore, the termination thereof was not justified in law.

The question whether the time mentioned in an agreement is or is not of the essence of the contract depends upon the intention of the parties to the agreement which is to be gathered from the facts and circumstances of the case. The mere fact that certain time is mentioned in the Agreement for the performance of an act would not necessarily lead to the conclusion that the time specified was of the essence of the contract. The real intention of the parties to the Agreement is the determining factor, and it is to be deduced from all the' surrounding circumstances of the case. The intention of the parties can be best ascertained from the Agreement itself. If the time specified in the agreement was subject to more than one condition, it cannot be said that the parties thereto intended the time mentioned therein to be of the essence of the contract.

Shambhulal v. Secretary of State AIR 1940 Sindh 1; Roberts v. Sheikh Hyder AIR 1923 Nag. 140; Pakistan v. Lodhi House PLD 1968 Lah. 923; Aslam Khan v. Government of N.‑W.F.P. and others 1985 CLC 814; PLD 1968 Lah. 923 and Eskandar Ali v. Al‑Hamra Begum PLD 1969 Dacca 214 ref.

(i) Contract‑‑‑

‑‑‑‑Novation of contract‑‑‑Cut off date as originally provided in the agreement, stood substituted and the purchaser was well within his right to claim the period of three months, to be reckoned from specified date‑‑‑Petitioner's substitution for the original purchaser was also permissible in view of the clause of the agreement‑‑‑Seller, a Government corporation, therefore, was estopped by its own conduct and words to press into service the provision of the relevant clause of the agreement, compelling the purchaser to time as originally stipulated—­Seller, the Government corporation, had conceded that it would suffer no loss if the petitioner was given the supply after the target date while the purchaser was bound to suffer loss if not allowed to export, after having lifted a huge quantity upon payment not only of its price but 2% penalty as well, on clear understanding that it was meant for export and he would be . entitled to. the benefits arising out of the agreement‑‑­Held, there was neither any legal nor moral justification to allow the seller corporation being itself beneficiary of the agreement to push the purchaser to wall, when his turn had come to derive benefits therefrom.

A. Karim Malik for Petitioner.

Kh. Muhammad Akram for Respondent No. 1.

Respondent No.2 in person.

Dates of hearing: 23rd October; 5th and 20th November, 2003.

JUDGMENT

On 31st of March, 2003, Pakistan Agricultural Storage and Services Corporation Limited (herein mentioned as respondent‑PASSCO) entered into an agreement with Messrs The Exporters (Regd.), Birdwood Road, Lahore for sale of 25,000 metric tons of FAQ wheat (crop 2002) "for export through Sea Route." Since in order to resolve the present controversy, extensive reference will have to be made to the terms of the Agreement, therefore, the same is reproduced, for facility of reference:‑‑

"Agreement for sale of wheat for export

(1) Whereas Pakistan Agricultural. Storage & Services Corporation Ltd. (PASSCO) desired to sell wheat (hereinafter called the FIRST PARTY) and Messrs The Exporters (Regd.), Birdwood Road, Lawrence Road, Lahore (hereinafter called the SECOND PARTY) desires to buy 25,000 M/Tons of FAQ wheat (crop 2002) ex‑PASSCO storage points for export through sea route.

(2) Whereas the parties through their authorized agents respectively have agreed to the terms and conditions given below for the performances of this agreement and in token hereof affix signatures.

(3) This agreement shall come into force at once i.e. on 31st March, 2003 and shall remain valid for 60 days i.e. up to 30th May 2003 subject to the conditions as per succeeding paras.

(4) The basic price of wheat stocks is fixed @ Rs.8,625 per M/Ton ex‑storage points. Second Party will deposit @ Rs.6,538 per ton in cash for stock cost for every tranche and balance amount of Rs.2,087 per tots as refund claimed by the Second Party on account of up-gradation/export expenses shall be furnished by the Second Party in the form of bank guarantee for the entire contracted quantity of wheat stocks. (Not more than two instruments). Bank Guarantee shall be returned by the First Party to the Second Party soon on submission of valid prescribed export documents by the Second Party claiming the refund and after realizing any recovery from the Second Party due from them on account of lifting of wheat at cascading refund rate or any other penalty etc.

(5) Delivery/lifting order will be issued by the First Party (Field Wing) on confirmation of the deposit of stock cost @ Rs.8,625 per M/Ton in PASSCO's bank by the Second Party.

(6) Delivery/lifting period shall be 60 days from the date of signing of the contract. Second Party shall be entitled for the refund on account of up-gradation/export expenses @ Rs.2,087 per M/Tort for the quantity of wheat lifted.

(7) The Second Party can take delivery in lots of 500 M/Tons (minimum) each either on upfront payment in cash at the rate of Rs.8,625 per M/Ton, or provide bank guarantee relating to refund amount on account of up-gradation/export expenses @ Rs.2,087 per M/Ton for the entire contracted quantity of wheat and take delivery in lots of 500 M/Ton (Min.) each by depositing upfront the cost of wheat stock @ Rs.6,538 per M/Ton.

(8) Sale of the Goods will mean and imply taking proforma invoice and actual delivery of the goods by the Second Party in parts (Tranches of at least 500 M/Tons of wheat) or whole contracted quantity/shipment load.

(9) The First Party shall ensure availability of FAQ wheat crop 2002, as per attached specifications at Annexure "A", duly bagged in jute bags of sound condition at the mutually agreed/designated PASSCO storage points. As far as possible, however, the Second Party may be facilitated in this regard.

(10) Loading charges will be borne by the Second Party.

(11) The documents of export of wheat and/or wheat products i.e. Atta, Maida, Fine, Bran etc. have to be submitted within 3 calendar months after completion of the lifting as per clause‑3. Export quantity of bi‑products/milling products in lieu of wheat shall correspond to established rate of recovery from grains thereof and Second Party can export wheat bi‑products accordingly.

(12) The Second Party shall provide Bank Guarantee as per the specimen enclosed vide Annexure "B" for the amount of up-gradation/export expenses per M. Ton for the full contracted quantity to the First Party, release of which shall be arranged upon submission of valid export documents duly verified by the bank i.e. (a) Form‑E (b) shipping bill/bill of export (c) B/L supported with MR/TR as applicable (d) Copy of Commercial Invoice (e) Copy of LC for export by sea route (f) Sale proceeds realization certificate issued by the bank (g) Customs Declaration or any other documents PASSCO may solicit in support of export etc.

(13) If the Second Party fails to export and submit the prescribed approved export documents within the stipulated period, their Bank Guarantee will be encashed and forfeited in favour of PASSCO.

(14) The Second Party shall complete the lifting of the total quantity of wheat within 60 days, failing which, the provisions of clauses 16 and 17, as the case may be, shall operate.

(15) The Second Party has provided Performance Money in the shape of Bank Draft at the time of the signing of agreement @ 1% of the cost of quantity contracted in favour of the First Party. The same shall be released upon successful completion of the contract by the Second Party.

(16) In case the Second Party fails to take delivery of the total quantity within the stipulated period, the First Party will be entitled to impose a penalty at the rate of 1% of the value of undelivered quantity for the first 10 days and at the rate of 2% for the next 10 days. Delayed lifting of wheat by the Second Party shall however not affect the cut off date of submission of valid export documents claiming refund amount, as per clause­11.

(17) If the Second Party defaults but deposits in lump sum the cost of un-lifted/undelivered quantity, then the penalty vide clause‑16 will not be imposed and extension of 20 days may be granted.

(18) Performance Bond/Security of Second Party shall stand forfeited in favour of the First Party on non‑performance of the contract/agreement by the Second Party within the stipulated period. First Party then have the option, if deemed necessary, to rescind the agreement, arrange the sale/disposal of the wheat stock elsewhere and claim damages from the Second Party.

(20) First Party may facilitate the Second Party in the performance of the agreement as far as possible, however, without compromising PASSCO's interest. Thus any provisions may be added subsequently with mutual consent of the parties in the agreement ensuring such facilitation and for avoiding bottlenecks.

(21) Regarding the issue of jurisdiction in case of litigation between parties hereto, the Court at Lahore shall have the exclusive jurisdiction to entertain such dispute.

(Sd.) (Sd.)

First Party. Second Party.

Col. (R) Shuja Ullah (Khalid Jamil)

PASSCO HQ, Lahore For Messrs The Exporters (Regd.), (Sd.) Ijaz Ahmed Khan." Lahore.

1. It appears, Mian Khalid Jamil, representing Messrs The Exporters (Regd.) being short of funds could not lift the wheat as per Agreement, within the stipulated period, which expired on 30th May, 2003. However, he had the blessings of PASSCO, since it admittedly elected not to put an end to the Agreement soon after 30th of May, 2003 and in order to save his contract, Miah Khalid Jamil entered into an agreement, dated the 12th of June, 2003 with Javed Iqbal (petitioner herein) and Muhammad Abrar, for lifting of wheat stock of PASSCO, at a mutually agreed rate of Rs.7,600 per M/Ton. As the last date for lifting of wheat had already expired on 30th of May, 2003, the above-­named intervenors agreed to pay to PASSCO price of wheat at the rate of Rs.8,797.50 per M/Ton, which amount was inclusive of 2% late delivery charges, levied in terms of afore‑quoted Clause 16 of the Agreement amount payable by the petitioner was to be refunded to by Mian Khalid Jamil, who had also executed an irrevocable Special Power‑of‑Attorney in favour of the above‑named Muhammad Abrar for receiving the wheat from respondent‑PASSCO. Moreover, by means of an amendment dated the 24th of June 2003, introduced in the original Agreement, at the request of Mian Khalid Jamil, PASSCO had reduced the quantity of wheat from 25,000 M/Tons to 15,000 M/Tons. Whereas the remaining terms of the original Agreement were to remain intact, the amendment introduced provided that "Messrs The Exporters shall remit the cost of the total/balance quantity of wheat upto 15,000 M/Tons (as the case may be) in cash @ Rs.8,625 per M/Ton alongwith 2% penalty and shall be bound to take delivery of stock/lifting from the designated PASSCO Storage points by 30th June 2003." Needless to point out that the period of 60 days, as originally stipulated in the Agreement, dated the 31st of March, 2003 for lifting of entire agreed wheat stock had expired on 30th of May, and, as per Clause 17, only a grace period of 20 days could be given. Moreover, PASSCO did not opt to exercise its power of forfeiture as contained in Clause 18 of the Agreement. Be that as it may, Messrs The Exporters did not lift the wheat stock and, it appears, the petitioner was allowed by PASSCO, of course with the consent of the original purchaser, to lift the wheat. The petitioner then deposited with PASSCO the price of the wheat lifted by him, including 2% penalty (liquidated damages) in cash. When the petitioner had already deposited the amount as afore‑mentioned and had also lifted some quantity of wheat, Mian Khalid Jamil cancelled the irrevocable Special Power‑of‑Attorney earlier executed in favour of Muhammad Abrar. This gave rise to a dispute between the parties and consequently Javed Iqbal (petitioner herein) and Muhammad Abrar filed on 28‑6‑2003 a suit for declaration and injunction, impleading Messrs The Exporters (Regd.). Mian Khalid Jamil and PASSCO, respectively as defendants 1, 2 and 3. Some of the averments in the plaint, relevant for the present purposes, were as follows:‑‑

"Since the defendants No.1 and 2 did not have the financial resources, therefore, in order to the contract with defendant No.3, the defendant No.1 through defendant No.2 entered into an agreement dated 12‑6‑2003 with the plaintiff No.1 for purchase of the above stated quantity of wheat at the rate of Rs.7600 per Metric Ton in terms of the agreement with the plaintiff. It was agreed between the parties that the party of the Second Part will be able to lift the wheat from the office of the defendant No.3 on behalf of the defendants No.1 and 2 after paying Rs.8797 per M.T which included 2% late delivery charges which stood levied in terms of the agreement of the defendants Nos.1 and 2 with the defendant No.3 on account of non‑lifting of the stock of wheat from the defendant No.3 by defendants Nos.1 and 2 within the stipulated period of time because of lack of financial resources of the defendants Nos.1 and 2. The defendant No.3 also in terms of the agreement with the plaintiff executed a special irrevocable power of attorney in favour of plaintiff No.2, the person nominated in the agreement by the plaintiff No.1 for being appointed as special irrevocable attorney of the plaintiff No. 1 for receiving the wheat.

"That per terms of the agreement of the defendants Nos. 1 and 2 with the plaintiff, the plaintiff No. 1 had to originally deposit price of wheat i.e. 8797.5 per M/Ton which included Rs.2087 per M/T. on the amount to be deposited in the shape of bank guarantee. The plaintiff No. 1 instead of depositing a bank guarantee, however, deposited the complete price of wheat in cash with the defendant No.3."

"It is pertinent to mention here that soon after execution of agreement dated 12‑6‑2003 of the plaintiff with the defendants Nos. 1 and 2, it was realized by the defendant No. 2 that it would be difficult to replace the bank guarantee deposited by plaintiff No. 1 with defendant No.3 on or before 20th August, 2003 in terms of the agreement, therefore, with the consent of the plaintiff No. 1, the defendant acknowledged in black and white the alteration in terms of agreement whereby the defendants Nos.1 and 2 undertook to supply the bank guarantee to the defendant No.3. The defendant No.2 submitted a bank guarantee. However, the plaintiff learnt that the defendant No.3 did not accept the bank guarantee of the defendants Nos. 1 and 2 for the reasons known to defendant No.3. As already stated above, the plaintiff No. 1, therefore, in order to save his interest had to deposit the amount of bank guarantee in cash to the defendant No.3 provisionally as per the term of original agreement of the plaintiff No. 1 with the defendants Nos. 1 and 2 which stood revived on non‑acceptance of the bank guarantee by the defendant No. 3 submitted by defendants Nos. 1 and 2. On the request of defendants Nos.1 and 2, the quantity of wheat was reduced from 25000 MT to 15000 MT by defendant No.3 which was mutually agreed between the plaintiffs and the defendants Nos. 1 and 2."

"That the plaintiff No.1 as per the terms of agreement received some quantity of wheat. However, the defendant No.2 on learning about the complete payment made by the plaintiff No.1 in order to defraud the plaintiff and to devour his amount illegally and fraudulently cancelled irrevocable power of attorney executed by him in favour of the plaintiff No.2 without issuing any prior notice to him bringing the same to his knowledge or notice. The plaintiffs have complete documentary proof of all the payments made by the plaintiff to the defendant No.3 in pursuance of the agreement dated 12‑6‑2003 of the plaintiff with defendants Nos.1 and 2. These are being enclosed alongwith the plaint."

"That the plaintiff on learning about the fraud immediately through an express telegram sent to the defendant No.3 at 2 a.m. on 27‑6‑2003 requested the defendant No.3 not to allow lifting of the wheat stock by the defendants Nos.1 and 2. A detailed legal notice addressed to the defendant No.3 alongwith copies sent to defendants Nos. 1 and 2 was also served on 27‑6‑2003. The plaintiff requested the defendant No.3 vide his notice to immediately stop the defendants Nos. 1 and 2 from lifting the wheat on the basis of the permit issued by defendant No.3.

On the one hand, declaration was sought that the cancellation of irrevocable Special Power‑of‑Attorney by Mian Khalid Jamil was illegal, and was binding on him and, on the other, injunction was sought against all the, three defendants in the following terms:‑‑

"It is also prayed that a decree restraining the defendants Nos. 1 and 2 may kindly be passed from lifting the wheat from the godowns of defendant No.3 and the defendant No.3 may kindly be restrained allowing the defendants Nos.1 and 2 to lift the wheat from the godown of defendant No.3".

When the suit came up before the learned Civil Judge, to whom it had been entrusted, he passed an interim injunctive order on 28‑6‑2003, restraining defendants "from lifting the wheat from PASSCO/from disputed zones". During pendency of the suit, the plaintiff‑petitioner and the first two defendants entered into a compromise on 3rd of July 2003, some of the terms whereof took the following form:‑‑

"Whereas the party of the Second Part (petitioner herein) has offered for the total payment of Rs.61,56,250 to the party of the First Part (Messrs The Exporters through Mian Khalid Jamil) as consideration for purchase of the complete rights of the party of the First Part with Messrs PASSCO."

"The party of the Second Part will be under obligation to export 15000 MT of wheat. "

"All the documentation in terms of the export of wheat and wheat products will be done by the party of the second part exclusively and the party of the first shall assist the patty of the Second Part. "

The petitioner had inter alia agreed to purchase the reduced quantity of wheat as per terms of the Agreement, dated 31st of March, 2003, in consideration of Rs.61,56,250. The petitioner was made bound to export 15,000 metric tons of wheat of PASSCO and the documentation was to be in the name of the petitioner whereas defendants 1 and 2 were to assist him. Besides, as per the said agreement/compromise, an account was to be opened by the petitioner, though in the name of the firm "Messrs The Exporters", but it was to be operated "exclusively" by the petitioner. Mian Khalid Jamil unequivocally undertook and made himself "bound to intimate and get registered the newly opened account with Messrs PASSCO with a request in black and white to remit all amounts" in the said account which may be due to Messrs The Exporters under the original Agreement, dated the 31st of March 2003. The compromise was filed in Court and was recorded by the learned Civil Judge who passed decree in terms thereof on 5‑7‑2003, operative part of which reads as follows:‑‑

"Learned counsel for the plaintiffs Nos. 1 and 2 has stated that compromise Exh.C‑1 has been effected between the parties and defendant No.1 has received pay order No. 20/441 of Rs.26,00,000 issued by the Habib Bank, Co‑operative Branch, Lahore and Rs.24,56,250 through cross‑cheque No.MIN 6147891 to be drawn from Metropolitan Bank, Associated House, 7‑Egerton Road, Lahore in the Court.

In the light of the compromise Ex‑C‑1, the suit is accordingly decreed in terms of compromise Ex‑C‑1, because the defendant No.3 (PASSCO) is pro forma defendant. The defendant No.3 is directed to allow the plaintiffs to carry wheat within period of 5 days from today in terms and conditions of compromise Exh.C.1"

1. Doubtless, PASSCO (respondent herein), though defendant No.3 in the suit, was not a party to the afore‑mentioned agreement/compromise, in terms whereof the suit was disposed of, but PASSCO cannot plead lack of knowledge of the contents of the plaint in the suit of the petitioner or those of the agreement/compromise, dated the 3rd of July, 2003 between the petitioner and defendants Nos.1 and 2. Moreover, it is not the case of the respondent that the afore‑quoted order, dated 5‑7‑2003 of the learned Civil Judge was ever challenged by it. On the other hand, the decision of the Civil Court was accepted and given effect to in letter and spirit, by respondent‑PASSCO inasmuch as it wrote the following letter on 17th of July, 2003:‑‑

Pakistan Agricultural Storage and Services Corporation Ltd.

Comm. Wing, 54 Lawrence Road Lahore

FAX NO.6370296

No.PASSCO/Comm/977 Dated: 17 July, 2003

Muhammad Abrar son of Joil Bakhsh

Provincial Line Street No.5

Bungalow No.4‑1 Attock Oil Company

Rawalpindi.

Mr. Javed Iqbal son of Muhammad Iqbal, House No.55‑C, Jinnah Town

Quetta.

SUB:‑ SALE OF WHEAT CROP 2002 FOR EXPORT TO MESSRS EXPORTERS

Reference agreement dated 31 March, 2003.

In deference to the Court orders dated 5 July, 2003 you are allowed to lift 2,987.026 M/Tons wheat crop 2002. Lifting of wheat shall be completed up to 22 July, 2003 positively.

(Sd.)

General Manager (Comm.)

Brig. (Retd.) Aftab Ahmed."

Pursuant to the afore‑mentioned letter, the petitioner lifted the remaining quantity of wheat on 17th, 18th and 19th of July 2003, after making payment to the respondent‑PASSCO of its purchase price, plus 2% penalty. It was so averred in paragraph 6 of the writ petition which, for facility of reference, is reproduced:‑‑

"That in the meantime in pursuance of the Agreement dated 3‑7‑2003 the petitioner lifted the entire remaining quantity of 15,000 metric tons of wheat on 17th, 18th and 19th of July, 2003 after paying to the PASSCO the entire purchase price plus 296 penalty as per terms of Agreement dated 31‑3‑2003.

In reply, the respondent has taken stance in the following terms:‑‑

"Admitted that wheat stocks were lifted after payment of penalty. All actions however were in the wake of 31.03,2003 agreement and on behalf of the firm "The Exporters"/proprietor Mian Khalid Jamil. The petitioner as such did not figure in any individual independent capacity vis‑a‑vis PASSCO. He acted as an attorney."

1. The case of the petitioner is that he had then made all arrangements for export of the wheat to foreign countries as per spirit of the original Agreement, dated 31st of March 2003, but when approached, the respondent declined to accept export documents on the ground that the period of three calendar months, as stipulated in clause 11 of the said Agreement, had expired inasmuch as in terms of clause 3 thereof, the out off date was 30th of May 2003, and the period of three calendar months reckoned from the cut off date, expired on 30th of August 2003. However, before expiry of the said period, the petitioner, through his counsel's letter, dated 28‑8‑2003, approached the Managing Director of respondent‑PASSCO with the request to enable him to export wheat, but nothing having been heard from the respondent, the petitioner filed the instant Constitutional petition on 25‑9‑2003.

2. When the petition came up for hearing on the 25th of September, 2003, respondent‑PASSCO was directed to depute some responsible officer to appear in this Court, alongwith the record. Khawaja Muhammad Akram, Advocate, entered appearance on behalf of the said respondent and sought adjournment to obtain instructions. On 6th of October, 2003, learned counsel for the respondent produced, before the Court, Minutes/Recommendations, dated the 30th of August, 2003 of Wheat Export Committee of respondent‑PASSCO and the order of its Managing Director. The same are to the following effect:‑

"Minutes/Recommendations of Wheat Export Committee

Meeting held on 30th August 2003.

(1) The Committee proceeded to examine the request of the parties for extension in shipment period. It may be recalled that number of parties were given the contract for export of 3,00,000 M/Tons of wheat in various quantities and parties had sufficient period spread over about five months to complete the export of PASSCO's contracted wheat. Besides the element of force majeure conjured up by the parties do not seem to be tenable. The Committee does not recommend to accede to the request of the parties for extension in shipment period beyond the contracted period.

(Sd.)Maj.(R) Muhammad Akram(Sd.) Brig.(R.) M. Parwaiz Akbar

G.M.(Audit)/Chairman. G.M. (Field)

(Sd.) Muhammad Shwkat Haidry, (Sd.) Brig. (R) Aftab Ahmed, GM (F&A) GM (Comm.).

(Sd.) Ch. Abdul Majeed

AGM (S&C)

(2) Submitted for approval of para. 1 please.

(Sd.) 30‑8‑2003.

Brig. (Retd.) Aftab Ahmed, General Manager (Comm.).

M. D.

Para. 1 above approved.

(Sd.) (Illegible)

30/8"

A photostatic copy of the following letter statedly issued pursuant to the afore‑quoted decision, was also produced by the learned counsel for the respondent:‑‑

"Pakistan Agricultural Storage and Services Corp. Ltd.

Comm. Wing 54 Lawrence Road, Lahore

FAX NO.6370296

UMS

No.PASSCO/Comm/3836 Dated: 1st September, 2003.

Messrs The Exporters (Regd.)

Mumtaz Abad

Near Coca Cola Factory

Multan.

SUB:‑‑ Sale of wheat for export request for extension in shipment period.

Reference agreement dated 31st March, 2003 and your letter dated 25th August, 2003.

It is to intimate you that your request for extension in shipment period beyond the contracted period was considered but has not been acceded to.

(Sd.)

General Manager (Comm.)"

When confronted with the above situation, learned counsel for the petitioner, on instructions, emphatically denied receipt of any such letter by Messrs The Exporters or by the petitioner. Be that as it may, in view of the changed position, learned counsel for the petitioner sought time to file an application to amend the writ petition. Consequently, the petitioner filed application under Order I, rule 10, C.P.C. and under order VI, rule 17, C.P.C., for arraying Mian Khalid Jamil of the Firm Messrs The Exporters as respondent No.2 and for amendment of the writ petition, which was allowed, whereupon amended petition was filed, inter alia with the following prayer:‑‑

"In view of the above submission, it is most respectfully prayed that it may kindly be declared that the petitioner is entitled to file the export documents within three calendar months after adjudication of the matter by this Hon'ble Court, in circumstances of the case".

The writ petition was admitted to hearing and notices were issued to both the respondents. Respondent No. 1 (PASSCO) has filed written statement.

1. I have heard the learned counsel for the parties and have perused the record.

2. Kh. Muhammad Akram, learned counsel for respondent ­PASSCO has raised a preliminary objection to the maintainability of this petition, by contending that the enforcement of contractual obligations through a Constitutional petition is not permissible. In support of this submission, reliance has been placed on Kaanay Construction Co. v. WAPDA 2001 YLR 734, Maj (Retd.) Shehzad Hussain Khan v. Government of the Punjab 2001 PLC (CS) 249, Mian Ansar Hayat v. Punjab Mineral Development Corporation 2001 YLR 2670 and Sajjad Hassan v. Additional Director‑General, Lahore Development Authority, Lahore 2001 MLD 18.

3. There is no hard and fast rule that Constitutional jurisdiction cannot, at all, be invoked where the rights and obligations of the parties? flow from a contract. So far as the case‑law, relied upon by the learned counsel for the petitioner is concerned, Kaanay Construction Co. v. WAPDA 2001 YLR 734 is inapt for the reason that in the said case writ was refused on the grounds that disputed questions of fact were involved; that there was an arbitration clause, and the liability to pay regarding the amount claimed by the contractor was also not admitted by WAPDA. The case reported as Maj. (Retd.) Shehzad Hussain Khan v. Government of the Punjab 2001 PLC (C.S.) 249 has also no bearing. It was a case of contractual service, the appellant having been employed as Chief Officer in Municipal Corporation, Multan, on contract basis, his services were terminated prematurely before the expiration of the contract period. Order of termination was assailed through a Constitutional petition, which was dismissed by observing that in such circumstances the only remedy available was action in tort for damages both in terms of monetary, and physical or mental loss, which could be quantified in money. It was further held that forcing an unwilling employer to allow the employee to complete the period of contract was legally as vulnerable in tort as the employer in the opposite situation could be. It was also held that deciding of such a matter in the Constitutional jurisdiction was tantamount to making an order for specific performance of contract which was not possible in exercise of such Constitutional jurisdiction. Sajjad Hussain v. Additional Director‑General, Lahore Development Authority, Lahore 2001 MLD 18 was a case where contract was cancelled on the ground that the goods to be supplied were not according to the specifications. In the contract, there was an arbitration clause. It was also found that disputed questions of facts were involved. It was, therefore, held by this Court that enforcement of contractual liability in such circumstances through Constitutional jurisdiction was not permissible. In the case reported as Mian Ansar Hayat v. Punjab Mineral Development Corporation 2001 YLR 2670, relying on Ali Sher alias Ajab Ali v. The State 1994 SCMR 1884, Project Director, Balochistan Miner Irrigation and Agricultural Development Project, Quetta Cantt. v. Messrs Murad Ali & Company 1999 SCMR 121 and Mumtaz Ahmed v. Zila Council, Sahiwal 1999 SCMR 117, writ was refused for the reasons that the contract contained an arbitration clause; that disputed questions of facts were involved; that the petitioner had alternate remedies of appeal (which was provided by the Rules governing the matter), and to file a suit and that the material brought on record was deficient to record a finding with regard to alleged ulterior motives/mala fides. It was further observed that the dispute between the parties could better be resolved through arbitration; that the suit filed by the petitioner having been dismissed, his appeal was pending before the learned District Judge; and that the petitioner had not approached the Court with clean hands. The writ petition was not entertained for yet another reason, the same being that the respondents acted in good faith and did not act against the petitioner with ulterior motives. It was found, as a fact, that the petitioner had failed to complete the contracted work within the prescribed period; that at the request of the writ petitioner time for completion of work was extended, but still he failed to abide by the revised schedule and could not complete the work even within the extended time.

4. In this case, the parties are not at issue so far as the facts are concerned. It is also not denied that the matter involved is of an urgent nature. Therefore, if the petitioner is directed to resort to the remedy of a suit, even the Court of first instance would take a long time to decide his fate, whereafter the process of appeal, revision etc., would start. In the circumstances, the remedy by itself would get frustrated. The Honourable Supreme Court has laid down the law in Nizamuddin v. Civil Aviation Authority 1999 SCMR 467 in the following terms:‑‑

"It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspects which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition."

In M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563, the view taken was:‑‑

"On principle, contractual rights and obligations have to bet enforced through Courts of ordinary jurisdiction. However, where rights are based on statute, law or rules frames thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing function in relation to the affairs of the Federation or a Province or a local authority, Constitutional jurisdiction can be attracted. In such and allied situations even contractual rights and obligations may be enforced in Constitutional jurisdiction. This, however, is subject to the important rider of corresponding absence of an adequate remedy."

Thus merely, because a contract is involved in a Constitutional petition is not by itself sufficient to oust the Constitutional jurisdiction under Article 199 of the Constitution."

In Anwar Muhammad Khan v. Director of Industries PLD 1994 Lah. 70, it was observed as follows:‑‑

"Arguments of the learned counsel for the respondents to the effect that the writ petitions having arisen out of contractual obligations, hence no relief can be granted to the petitioner is misconceived. It is now well‑established legal proposition that a person has a right to come to the Court in Constitutional jurisdiction for issuance of a direction to the public functionaries to act strictly in accordance with law in case the public functionaries have not acted in accordance with the statute and have passed adverse orders even without issuing of a show cause notice. Power of judicial review in such‑like cases is available to this Court even in cases where the grievance has arisen on account of violation of the contractual obligations."

In Wak Orient Power and Light Ltd. v. Government of Pakistan 1998 CLC 1178, after striking a note of caution viz.

"While exercising writ jurisdiction, which is essentially discretionary in nature, superior Courts in Pakistan will not hesitate a moment to refuse relief to a suitor seeking enforcement of contract against State or statutory Corporation, if the national interest is thereby likely to be endangered, in the least, despite the fact that the legalistic right of such suitor for issuance of appropriate writ stood established. Relief would also be refused if the contract is shown to be unconscionable/mala fide/unreasonable or against public policy."

It was held:‑‑

"Likewise, a situation may arise where the Constitutional jurisdiction of this Court under Article 199 may be permitted to be invoked by an aggrieved person for declaration of the act of representative of State/statutory Corporation, about entering into a contract with third party, to be without lawful authority, on the above grounds."

In view of above, the preliminary objections of the learned counsel for respondent‑PASSCO fails, and is hereby repelled.

1. Before dealing with the case on merits, there are certain important aspects of this case to which a reference seems to be necessary:‑‑

(i) The contract of PASSCO with Messrs The Exporters was an `Agreement of Sale of Wheat for Export'. Thus, the Agreement itself made it abundantly clear that PASSCO was selling wheat for the purpose of its export.

(ii) In clause 1 of the Agreement, the purpose of sale of wheat was reiterated by unequivocally providing that Messrs The Exporters were buying wheat "for export through sea route".

(iii) The life of the Agreement was limited to 60 days vide clause 3 thereof, having come into force on 31st of March 2003, and expiring on 30th of May 2003, but the provisions of this clause were made dependant on and subject to the conditions contained in the succeeding clauses.

(iv) The basic price was fixed at Rs. 8,625 per metric ton, out of which an amount of Rs. 6,538 per metric ton was payable to PASSCO in cash for each tranche, and for the balance amount of Rs.2,087 per metric ton, which was payable on account of up-gradation/export expenses; the purchaser was required to furnish bank guarantee (not more than two instruments) for the entire contracted quantity of wheat stocks (returnable by PASSCO to the purchaser "soon on submission of valid prescribed export documents".

(v) While making refund, PASSCO could realize any recovery from the purchaser "on account of lifting of wheat at cascading refund rate or any other penalty etc."

(vi) Field Wing of PASSCO was to issue delivery/lifting order only "on confirmation of the deposit of stock cost @ Rs.8,625 per M/Ton in PASSCO's Bank" by the purchaser.

(vii) It was reiterated in clause 6 that the delivery/lifting period was 60 days from 31st of March, 2003, and the purchaser was entitled for refund on account of up-gradation/export expenses @ Rs.2,087 per M/Ton "for the quantity of wheat lifted."

(viii) The purchaser was given option vide clause 7 to take delivery in lots of 500 M/Tons (minimum) each "on upfront Payment in cash at the rate of Rs.8,625 per M/Ton" or to lift wheat in terms of Clause 4, subject to the further condition that lifting of stocks in lots shall not be less than 500 M/Ton each.

(ix) Vide clause 11, "documents of export of wheat" or its products specified therein were "to be submitted within 3 calendar months after completion of the lifting as per clause 3".

(x) Whereas the release by PASSCO of the amount of upgradation/export expenses in favour of the purchaser was made dependant on "submission of valid export documents duly verified by the bank" as specified and particularized in clause 12, PASSCO retained power to ask for "any other document" "in support of export etc." Such a stringent provision was made a part of the contract with a view to vouchsafe transparency of export and enswathing any effort on the part of unscrupulous elements ‑resorting to fake exports.

(xi) In case of failure on the part of purchaser to take delivery of the quantity within the stipulated period, PASSCO was entitled vide clause 16 to impose a penalty at the rate of 1% of the value of undelivered quantity for the first 10 days and at the rate of 2% for the next 10 days.

(xii) Delayed lifting of wheat by the purchaser was not to affect the cut off date of submission of valid export documents claiming refund amount as per clause 11.

(xiii) In clause 17 it was laid down that in the event of default of the purchaser, "but deposit by him in lump sum the cost of un­-lifted/undelivered quantity" "the penalty vide clause 16 will not be imposed and extension of 20 days may be granted. But, as shown above, this was not adhered to by PASSCO itself.

(xiv) Clause 18 conferred on PASSCO the power of forfeiture, to rescind the contract and to get the Agreement performed by some one else at the risk and cost of the other party/purchaser.

(xv) PASSCO retained power vide clause 19 to facilitate the purchaser in the performance of the agreement as far as possible, without compromising its interest. It was provided in the said clause:‑

"Thus any provisions may be added subsequently with mutual consent of the parties in the agreement ensuring such facilitation and for avoiding bottlenecks".

(xvi) It has come on record that due to financial constraints, it had become difficult for the original purchaser, i.e. Messrs The Exporters to strictly adhere to the terms of the agreement inasmuch as PASSCO had expressed reservations to accept the bank guarantees furnished by the purchaser and the latter had failed to adhere to time in the matter of lifting of wheat stock.

(xvii) Messrs The Exporters had executed an "Iqrarnama" in favour of the petitioner on the 12th of June, 2003 and an irrevocable Special Power‑of‑Attorney of the same date authorizing the petitioner to do all the necessary acts for collecting wheat from PASSCO in terms of the Agreement, dated the 31st of March, 2003. The said arrangement was followed by a formal Agreement dated the 3rd of July, 2003 between Messrs The Exporters and the petitioner whereby the latter had purchased "complete rights" of the former "with Messrs PASSCO" on terms and conditions stipulated in the Agreement just mentioned.

(xviii) According to the learned counsel for the petitioner, all the documents mentioned above were filed with PASSCO and the same received its approval. The submission of the learned counsel finds support from the subsequent conduct of PASSCO to which reference will be made presently.

(xix) Pursuant to an agreement, dated 12th of June, 2003, entered into between Messrs The Exporters and the petitioner herein (including one Muhammad Abrar), the petitioner paid to PASSCO entire price of the un‑lifted/un‑delivered quantity of wheat in lump sum at the rate of Rs.8,797.50 per M/Ton which was inclusive of Rs.2,0.87 (for which amount bank guarantee was to be provided) and 2% penalty in terms of clause 16 of the Agreement.

(xx) At the request of Messrs The Exporters, PASSCO had also reduced the contracted quantity of 25000 M/Tons of wheat to 15000 M/Ton and had extended the period for lifting of wheat stock upto 30th of June, 2003, though only a grace period of 20 days could be given vide clause 17.

(xxi) After the payment had been made to PASSCO by the petitioner and he had also lifted a little more than 12000 M/Tons of wheat, the original purchaser proceeded to cancel the agreement, dated the 12th of June 2003 with him as well as the irrevocable Special Power‑of‑Attorney given to him, which compelled the petitioner to file a suit against Messrs The Exporters, its Proprietor, Mian Khalid Jameel, as well as against PASSCO. The learned trial Judge had passed an injunctive order, restraining the original purchaser from lifting wheat from PASSCO's storage points.

(xxii) During the pendency of the suit, the first two defendants entered into a compromise, terms whereof were reduced into writing in the form of Agreement, dated 3rd of July, 2003 on the basis of which the suit was disposed of vide order, dated 5‑7‑2003, reproduced in paragraph 3 above.

(xxiii) The plea of the petitioner that copies of the plaint, Agreement, dated 3rd of July, 2003 and of the Court's order, dated 5‑7‑2003 were filed with PASSCO finds support from PASSCO's own letter, dated 17‑7‑2003.

(xiv) PASSCO permitted the petitioner (and Muhammad Abrar) to lift the remaining quantity of wheat, i.e. 2,987.0.25 M/Ton out of 15000 reduced quantity, vide its letter, dated 17‑7‑2003. Since the period of 60 days for lifting wheat, as originally stipulated in the Agreement dated 31‑3‑2003, had expired on 30‑5‑2003, the petitioner and Muhammad Abrar were bound down in the following terms:‑‑

"Lifting of wheat shall be completed upto 22nd July, 2003 positively".

(xxv) It is common ground between the parties that the petitioner has lifted the remaining afore‑mentioned quantity of wheat on 17th, 18th and 19th of July, 2003, after payment to PASSCO of the entire purchase price plus 2% penalty.

It is in the above backdrop of events that the following contentions of the learned counsel for respondent‑PASSCO, have to be attended to:‑‑

(a) That Javed Iqbal, petitioner has no privity of contract with the respondent‑PASSCO; and

(b) That clause 16 of the Agreement, dated 31‑3‑2003 wherein it was provided that "delayed lifting of wheat by the Second Party shall not affect the cut off date of submission of valid export documents claiming refund amount as per clause 11" does not entitle the petitioner to claim extension in time for submission of export documents.

1. So far as the first contention that there is no privity of contract between PASSCO and the petitioner is concerned, it is contradictory to the preliminary objection raised by the learned counsel for the respondent himself to the effect that contractual obligations cannot be enforced 'through a Constitutional petition. Be that as it may, the general rule indisputably is that no one but the parties to a contract can be bound by it, or entitled under it and this principle is known that of privity of contract. It would have been perfectly fair and reasonable that PASSCO should not be bound by way of agreement between the petitioner and Messrs The Exporters, but here the petitioner acted not only for the benefit of the original purchaser but also for PASSCO inasmuch as not only the price of the wheat lifted was paid by the petitioner, but 2% penalty over and above as well. Thus, all three had the intention that the petitioner should have all the rights under the Agreement, dated the 31st of March, 2003. PASSCO cannot claim that it was entirely ignorant of the arrangement between the petitioner and Messrs The Exporters. PASSCO has undeniably taken benefit of the Agreement, dated the 31st, of March, 2003. It is also not the case of PASSCO that no consideration has passed on to it from the petitioner. Thus the vinculum juris is not personal to PASSCO and Messrs The Exporters; PASSCO has received full benefit of the Agreement dated the 31st March, 2003 from the petitioner.

2. The matter can be looked at from another angle. It was, in fact, an assignment of original contract in favour of the petitioner with the tacit knowledge, rather with the concurrence of PASSCO that, Messrs The Exporters dropping out and petitioner taking their place, the burden of the contract and liabilities arising therefrom were assigned to the petitioner. If I may say so, it .was, min effect, the rescission of one contract and the substitution of a new one or, in other words, a novation. PASSCO having received not only the entire sale price of wheat, but also 2% over and above as penalty in terms of clause 16, cannot be allowed to back out to perform its obligations arising out of the Agreement, dated 31st of March, 2003, or to treat the petitioner differently, rather discriminately, as compared to the defaulting party, viz. Messrs The Exporters.

3. There is yet another aspect. In the instant case, respondent ­PASSCO allowed the wheat to be lifted by the petitioner, knowing fully well that it was for the purpose of export. If there was no intention on the part of PASSCO to permit export thereof, it owed a duty to the petitioner‑purchaser to tell him in unmistakable terms that he would not be allowed to export the wheat in accordance with the Agreement, dated the 31st of March, 2003. The plea of respondent‑PASSCO is that in the absence of its express contract with the petitioner that the latter would be allowed export of the wheat, there was no sufficiently close relationship between the parties to give rise to any such duty. It is not denied that respondent‑PASSCO sold the wheat to Messrs The Exporters whose obligation of lifting the wheat was assumed by the petitioner, for the purpose of export. PASSCO indubitably knew that the petitioner was a potential investor and was lifting the wheat on a clear understanding that it was meant for export. Therefore, apart from any express contract, the bare knowledge of facts by PASSCO paves the way for holding that it owed a duty of common honesty of having carefully apprised the petitioner of its ultimate intention. PASSCO remained reticent, though it was under obligation to have made an adequate disclosure of its intention to allow the petitioner to go ahead with the export of wheat. The contention that PASSCO acted from the best of its motives is no answer. Lest I am misunderstood to say that PASSCO had acted mala fide or dishonestly, I would make it clear that non‑disclosure of its intention, translated into the impugned action, may have been quite innocent, or even due to misconception of legal position, which might not be on account of mala fides or with dishonest intention. What I mean to say is that it is a case of breach of duty in which dishonesty is not a necessary factor. Further, there can be no universal rule that in the absence of contract, an innocent but negligent act of non‑disclosure cannot give rise to an action. It is a typical case where petitioner agreed to assume responsibility of Messrs The Exporters with whom PASSCO had an express contract and, I think, any reasonable man in the petitioner's shoes would have believed that he would be meted out the same treatment by PASSCO to which his predecessor was entitled and he would not be discriminated. Even in the absence of any direct dealings between one person and another, there are many and varied situations in which a duty is owed by one person to another. Learned counsel for respondent‑PASSCO submitted that in order that the petitioner may avail himself of relief on alleged breach of the duty of disclosure, he must show that there was such a proximate relation between him and PASSCO as to bring them virtually into the position of parties contracting with each other. The contention has no merit. The duty of care arising from implied as well as express contracts and duty of care arising from other special relationship which may be found to exist in particular cases, still remains, and I can see no logical stopping place short of all those relationships, where it is plain that one party was twisting the other to exercise such a degree of care to disclose as the facts and circumstances of a particular case required. In the instant case, PASSCO wrote the letter, dated the 17th of July, 2003 to the petitioner not only to lift stocks, but gave a dead line also, wherefrom an inference could straightaway be drawn by any reasonable person of ordinary prudence as to the purpose for which he was being allowed to lift the wheat. In fact, the petitioner was induced to believe that he would be allowed to export the wheat and in the absence of a clear warning to the contrary, in point of law, PASSCO incurred a duty and obligation of care towards the petitioner. Such a duty need not necessarily arise from a written contract; it may arise from circumstances and relations of the parties and may give rise even to an implied contract at law. Further, in a sphere where PASSCO is placed, petitioner would have reasonably relied on it and, therefore, the former should have taken reasonable care to avoid acts or omissions which one could reasonably foresee could be likely to cause loss to the petitioner. It is not PASSCO's sheet anchor that all that was being done by it was gratuitous and, therefore, it incurred no liability. It cannot capitalize its own negligence, arising out of its failure to indicate in its letter, dated 17th of July 2003, that the lifting of wheat by the petitioner would not mean that he would be allowed its export as well. By the impugned act of PASSCO, the petitioner is bound to suffer colossal financial loss, without any fault attributable to him. I am, therefore, clearly of the view that the petitioner is entitled to succeed against PASSCO even on account of breach of duty of disclosure.

4. PASSCO, in essence, performs functions which squarely fall within the executive authority of the State itself. Indisputably, the Government, which represents the executive authority of the State acts through the instrumentality or agency of either natural or juridical persons to carry out its functions. It is of common knowledge that as incidental to or in aid of governmental functions in the fields of specialized and technical character, need was felt to forge a new administrative device, consequently the Government exercised its power to charter public corporations as its third arm. Such corporations. whether established by statutes or incorporated under the law but controlled by the Government and bound, in policy matters, by directions of the Government, are ex‑hypothesi agencies of Government and manage public enterprises, which ordinarily should be carried by Government itself departmentally. The corporations, such as PASSCO, acting as instrumentality or agency of Federal Government, because of enjoyment by it of monopoly status are impregnated with governmental character and are obviously subject to the same limitations in the performance of their functions as the Government itself, though in the eyes of law, they are distinct and independent entities. If Government, acting through its officers, is subject to certain Constitutional and public law limitations, it must follow a fortiori that Government, when it acts through the agency of a corporation, the latter should equally be subject to the same limitations in the exercise of its power or discretion. The rule inhibiting arbitrary action by the Government applies equally to a corporation which deals with the public, by way of entering into contracts; it cannot act at its sweet grill and pleasure, but its actions must be in conformity with the principles which meet the test of justice, reason, fairness, equality of treatment,, and must qualify standards and; norms that are not arbitrary, irrational, whimsical and discriminatory. It must not be guided by any extraneous consideration. Every act of PASSCO respondent must be dictated by public interest and must not be unreasoned or unprincipled, and any departure therefrom can certainly be held to be invalid. It can hardly be disputed by any one that for a society which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings. It is moreso for any functionary believing in rule of law neither to discriminate between the citizens, nor to exercise discretion at its pleasure. It is well‑settled rule that an authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The principle of reasonableness and rationality which is an essential element of equality or non-arbitrariness is projected by Article 25 of our Constitution, and it must characterise every State action, whether it be under authority of law or in exercise of executive power. Article 25 speaks of equality before law and equal protection of law. PASSCO, as an instrumentality of the Government, in the sense brought out above, has to observe equality, and cannot exclude a person by discrimination. In the instant case, the petitioner is entitled to equal treatment with others similarly circumstanced. In. this view of the matter also, the impugned action of respondent‑PASSCO, since it offends against Article 25 of the Constitution, being discriminatory in character, is liable to be struck down.

5. The impugned action of respondent‑PASSCO declining export of wheat by the petitioner is liable to be set at naught on yet another ground. When the petitioner was allowed to lift the remaining quantity of wheat vide letter, dated 17th of July, 2003, a new time frame was provided. He was to complete lifting by 22nd of July, 2003. Therefore, there was an implied promise that the terminus date in his case would be computed by giving him benefit of three calendar months as from the 22nd of July 2003. It would have been gist of October 2003. When the original purchaser (Messrs The Exporters) defaulted in lifting the wheat within the stipulated period of sixty days, PASSCO, resorted to an amendment in the original Agreement, and extended the period upto 30th June, 2003 although, as pointed out above, extension could not travel beyond twenty days commencing from 31st of May 2003. Moreover, the power of forfeiture and rescission of the contract and getting the work done at the risk and cost of the original purchaser was not exercised, meaning thereby that there was no definite intention on the part of PASSCO to strictly press into service the terms of the Agreement. Therefore, while allowing the petitioner to lift the remaining wheat stock by 22nd of July, 2003, an implied promise was held out to him, founded; on the most invincible argument of common sense that he would not be required to account for the defaults of his predecessor which had been condoned by PASSCO for its own convenience, and, therefore, the condition of submission of export documents within three calendar months would not be pressed against him as from the 30th of May, but from 22nd of July. 2003 which, in his case, could be the cut off date and to this extent the original clause 3 of the Agreement, dated the 31st of March, 2003, stood superseded or, at least, varied. Having given the petitioner time to lift remaining wheat stock by 22nd of July, 2003, PASSCO cannot be allowed to count down three calendar months from 30th of May, 2003. In this context the equitable doctrine of promissory estoppels can also be pressed into service against respondent‑PASSCO. In Central London Property Trust Ltd. v. High Trees House Ltd. ((1956) 1 All E R 256), by making references to some of the earlier decisions, it was observed that:‑‑

"They are cases of promises which were intended to create legal relations and which, in the knowledge of the person making the promise, were going to be acted on by the party to whom the promise was made, and have in fact been so acted on. In such cases the Courts have said these promises must be honoured. \\\ I prefer to apply the principle that the promise, intended to be binding, intended to be acted on and in fact acted on, is, binding so far as its terms properly apply."

A very appropriate case from the Indian jurisdiction is Union of India v. Messrs Anglo‑Afghan Agencies AIR 1968 SC 718 wherein an export incentive Scheme had been notified to the public under section 3 of the Imports and Exports (Control) Act, 1947 by the Export Promotion Bureau of the Indian Government. After the party had acted on the inducement, satisfied the required conditions, there was an attempt to resile. The, relief was granted in that case in terms of the representation as hereunder reflected in para. 23 of that judgment:‑‑

"Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificates for the total amount equal to 100 per cent of the f.o.b., value of the goods exported by them unless there is some decision which falls within clause 10 of the Scheme in question. "

From our own jurisdiction reference, in the first instance, may be made to Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 wherein it was held as follows:‑‑

"We are inclined to hold that the above S.R.O.560(I)/82 contained standing representation to the effect that if a factory would manufacture sugar in a financial year exceeding from the average production in that factory for the proceeding two years, such an excess quantity of sugar shall be exempt from the payment of excise duty. The above representation could have been rescinded before it was acted upon or if it was acted upon, its effect could have been nullified by a statutory provision like section 31‑A of the Customs Act (ibid) and not by an executive act. In the present case, the appellants acted upon the above representation before it was rescinded, to their detriment as, according to them, they went on with the production of sugar even when the recovery of sucrose from the sugarcane was comparatively low on account of change in the climate and thus, they had acquired vested right before the issuance of one of the two impugned S.R.Os. However, if the appellants had passed on the additional burden of the excise duty after the two impugned S.R.Os. were issued, they are not entitled to press into service the doctrine of promissory estoppels as it will be inequitable to deny, the State excise duty on the excess quantity of sugar referred to hereinabove, in terms of section 3‑C of the Act. We may observe that doctrine of promissory estoppel has been evolved by the Courts as an equitable doctrine with the object to pre‑empt suffering of any loss by a promisee and was not designed or intended to provide a windfall profit to him though Bhagwati, J. in the case of Motilal Padampat Sugar Mills (supra) had held that it was not necessary in order to attract applicability of doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment, but this view was contrary to the Indian Supreme Court's earlier view and also to the subsequent view taken by Bhagwati, as C.J., in the case of Union of India v. Godfrey Philips India Ltd. (supra). It may be pertinent at this juncture to refer to a passage from Law of Contract by D.W. Greig and J.L.R. Davis (supra) on the above aspect, at pages 165 and 166, which reads as follows:‑‑

"(8) Promissory estoppel is based upon equitable principles.

(a) Founded in equity."

In Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager v. Government of Pakistan through Ministry of Finance and 2 others 1998 SCMR 1404 it was inter alia held by the Hon'ble Supreme Court as follows:‑‑

"The doctrine of Promissory Estoppel is founded on equity. It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the. P Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incurs a liability. In such case, the Government will not be allowed to withdraw from its promise or representation".

In Fecto Belarus Tractors Limited v. Pakistan 2001 PTD 1829, while reviewing earlier judgment, the Hon'ble Supreme Court authoritatively declared the law thus:‑‑

"It will be necessary to touch the true concept of the doctrine of Promissory Estoppel. Before proceeding further this doctrine has been variously called `Promissory Estoppel', 'requisite estoppel', 'quasi‑estoppel', and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'Promissory Estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of Promissory Estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre‑existing relationship between the parties or not. The doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why Promissory Estoppel should also not be available as a cause of action".

The following limitations for invoking the doctrine of Promissory Estoppel were laid down by the Hon'ble Supreme Court in the case of Pakistan v. Salahuddin PLD 1991 SC 546:‑‑

"(1) The doctrine of Promissory Estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation.

(2) Promissory Estoppel cannot be invoked for directing the doing of the going which was against law when the representation was made or the promise held out.

(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given.

(4) The doctrine of Promissory Estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(5) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."

The afore‑mentioned limitations were reiterated also in the cases of Messrs Gadoon Textile Mills Limited and 814 others v. WAPDA and others 1997 SCMR 641, Messrs M.Y. Electronics Industries, (Pvt.) Limited through Manager v. Government of Pakistan through Secretary, Finance and 2 others 1998 SCMR 1404, Collector of Customs and others v. Ravi Shipping Ltd. and others PLD 1999 SC 412 and Government of Pakistan through Ministry of Finance and Economic Affairs and another v. Fecto Belarus Tractors Limited 2000 SCMR 112. But none of them is attracted to the facts and circumstances of the present case. Relying on. A. R. Khan v. P.N. Bogha through Legal Heir PLD 1987 SC 107 it was held in Sajjad Hussain v. Mussarrat Hussain Shah 1989 SCMR 1826 as follows:

"The compromise, its sanctity and efficiency in putting a stop to further litigation was considered by this Court in the case of A.R. Khan. In this case but for the compromise that was reached between the parties, the plaintiff would not have been prompted to deposit the amount asked for by the respondents as price of the land. Having thus entered into a compromise and prompted the appellant to deposit the amount the respondents could not challenge it on the ground that the suit was barred by limitation." (Emphasis supplied by me.)

I have, therefore, no doubt that in the instant case whereas PASSCO will not suffer any financial burden, the petitioner is bound to suffer loss if he is not allowed to export the wheat purchased for the purpose by him from PASSCO. For this reason also the impugned action of respondent-PASSCO cannot be sustained.

1. So far as the second submission of the learned counsel for respondent-PASSCO, based on clause 16 of the Agreement, dated 31-3-2003, that delayed lifting of wheat could not affect the cutoff date of submission of export documents and, therefore, the petitioner is not entitled to extension of time is concerned, the same too is devoid of force. Besides what I have said above, the primary question that arises is whether time was of the essence of the contract. In clause 17 of the basic Agreement, it was stipulated: "If the Second Party defaults but deposits in lump sum the cost of un-lifted/un-delivered quantity, then the penalty vide clause 16 will not be imposed and extension of 20 days may be granted". Then, by virtue of clause 16, PASSCO was entitled to impose penalty at the rate of 1% of the value of undelivered quantity for the first 10 Says and at the rate of 2% for the next 10 days. Besides, by mutual consent of the parties, original Agreement could be amended to facilitate the purchaser in the performance of the Agreement and for avoiding bottlenecks. Moreover, rescission of the Agreement was optional with PASSCO, and it was not hedged by any compulsion to put an end to the Agreement once the purchaser had gone into default, particularly in the absence of time limit. As held above, defaults committed by the original purchaser were not visited with penalties, rather the same were condoned. Not only that, petitioner's substitution in place of the original purchaser received blessings of PASSCO, rather a new contract had come into being. Therefore, PASSCO cannot be allowed to bind the petitioner to time as originally stipulated vide clause 11 of the Agreement. Even otherwise, the provisions of clauses 16, 17 and 19 are inconsistent with the time being of the essence of the contract. To say in one breath that time is of the essence of the contract, but that the period provided in the contract may be extended and that the default to adhere to time could even be compensated, is a contradiction in terms: It is settled law that if in a contract, there is power of extension, and provisions for penalties/damages, time will not be of the essence of the contract. In Shambhulal v. Secretary of State AIR 1940 Sindh 1, after reviewing the case-law on the subject, it was held as follows:--

"It would appear therefore that the inclusion of clauses in, a contract providing for extension of time in certain contingencies, and providing for the payment of a fine or penalty for every day or week, the work undertaken under the contract remains unfinished on the expiry of the time provided in the contract is inconsistent with time being of the essence of a contract, and would be calculated to render ineffective an express provision in a contract to that effect. And this certainly accords with common sense."

It appears to us that the question whether or not time is of the essence of a contract is a question of the intention of the parties to be gathered from the terms of the contract. Whereas in the case of Exh.104 there is an express provision that time is of the essence of the contract and at the same time provisions for extension of time without limit or qualification and for the levy of penalty, it cannot be said that it was intended, that time should be of the essence of the contract.

In Roberts v. Sheikh Hyder AIR 1923 Nag. 140, the condition as to the time at or before which the work was to be completed was:--

"The whole work will be completed in 4 months from the date of getting permission in writing from Mr. D.W. Roberts. A fine of Rs.5 per day will be exacted for every day after that date that the work is not completed within the above-noted time. "

It was held as follows:-

"It seems to me that time was not of the essence of the contract in this case. The very fact that a penalty was stipulated for in case of failure to complete the work within the stipulated time indicate, that in case of such failure it was not the avoidance of the contract by the defendant that was contemplated but acceptance of performance after the stipulated time, subject to payment of damages which were fixed. The case in my opinion falls within paragraph 2 of section 55 of the Contract Act and the only question is, what is the compensation to which the defendant is entitled for the loss occasioned by the plaintiff's failure to complete the work within the stipulated time."

The case reported as Pakistan v. Lodhi House PLD 1968 Lah. 923 is almost on all fours. Relying on AIR 1940 Sindh 1 (supra), it was held: "In the case before me, notwithstanding the provision that the time was of the essence of the contract, there were other clauses, which indicated that the intention of the parties was not to strictly enforce the clause regarding time. The clauses regarding suspension of the work, and the payment of penalty for the non‑performance of the contract in time clearly indicate that the parties never intended that the time was of the essence of the contract." In Aslam Khan v. Government of N.‑W.F.P. etc. 1985 CLC 814, the facts were that the petitioner, Aslam Khan was allowed to extract timber from Inder Seri Guzara, Compartment No.1, Galliant Forest Division. Under clause 19 (d) of the Contract Agreement the petitioner was to remove the timber beyond the limits of the Depot by 9‑8‑1970 and beyond the limits of Galies before 24‑8‑1970. The petitioner could not remove the entire timber within the stipulated period. Therefore, on his application the time was extended by 45 days on 5‑9‑1970. The time was once again extended by 40 days, but the petitioner was unable to remove the entire timber from the forests within the extended period. He applied third time for the extension of time but his application was refused. It was directed by the Conservator of Forests, Abbottabad, on 2‑6‑1971 that since a warning was administered while granting last extension that no further period will be granted, it was not a fit case for acceding to the request of the petitioner. It was also mentioned that if snowfall had occurred then it was the duty of the contractor to inform the Divisional Forest Officer to get the period of forest operations deferred appropriately. For these reasons it was directed that the balance stock in forests as well as in road side depots reverts back to the Government under clause 19(d) of the Agreement. The contract was also terminated accordingly. Relying on AIR 1940 Sindh 1 and PLD 1968 Lah. 923, it was held as follows:‑‑

"In the case in hand it is also clear that time was not of the essence of the contract and there were circumstances which justified the request of the petitioner for the grant of further time to complete the operation and his request was turned down without any sufficient cause.\\\\\\\\\\\. Under section 55 of the Contract Act, 1872 if it is not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. In the facts and circumstances of the case it can legitimately be inferred that the parties to the contract never, intended the time to be of the essence of the contract and, therefore, the termination thereof was not justified in law".

Similarly, in Eskandar Ali v. Al‑Hamra Begum PLD 1969 Dacca 214 the following view was expressed:‑‑

"The question whether the time mentioned in an agreement is or is not of the essence of the contract depends upon the intention of the parties to, the agreement which is to be gathered from the facts and circumstances of the case. The mere fact that certain time is mentioned in the Agreement for the performance of an act would not necessarily lead to the conclusion that the time specified was of, the essence of the contract. The real intention of the parties to the Agreement is the determining factor, and it is to be deduced from alt the surrounding circumstances of the case. The intention of the parties can be best ascertained from the Agreement itself: \ \ \ \ As the time specified in the agreement for sale was subject to more than one condition, it cannot be said that the parties thereto intended the time mentioned therein to be of the essence of the contract."

Thus, the time was not of the essence of the contract, and for this reason also, the impugned action of PASSCO cannot be sustained in law.

1. I have held above that on the facts established on record, to be extent of the petitioner, it was a case of novation of contract and that the cut off date, viz. 30th of May 2003, as originally provided in the Agreement, dated 31st of March, 2003, stood substituted as 22nd of July, 2003 and the petitioner was well within his right to claim the period of three calendar months in terms of clause 11, to be reckoned with effect from 22nd of July, 2003 and not from 30th of May, 2003. Petitioner's substitution for the original purchaser was also permissible vide clause 19 of the Agreement. PASSCO is, therefore, estopped by its own words and conduct to press into service the provisions of clause 11 of the Agreement, compelling the petitioner to time as originally stipulated. Needless to add that the petitioner had approached, through his counsel's letter, dated 28th of August 2003, which was written even before the expiration of the target date, as per the original Agreement viz. 31st of August 2003 (three calendar months reckoned from 31st of May, 2003), wherein it was inter alia mentioned as follows:‑‑

"As the aforesaid wheat was meant for export, my client had made arrangements to export it to foreign countries and as clause 11 of the agreement dated 31‑3‑2003 stipulates that documents of export of wheat and/or wheat products have to be submitted within 3 calendar months after completion of lifting of wheat therefore, it is understood that lifting having been allowed by you to be completed by 22‑7‑2003, but these having been already completed by 19‑7‑2003, the period of 3 calendar months for submission of export documents to you shall be either ending on 19.10.2003 or 22.10.2003. It shall thus entitle my client to claim rebate of Rs.2087 P.M. T."

"My client Mr. Javed Iqbal is making all efforts to export the wheat without any loss of time. But firstly due to litigation, as between the parties, as indicated above, secondly, recent rains at Karachi and thirdly, the problems created by disastrous episode of Greek oil tanker, Tasman Spirit, have all hindered the export performance of my client."

"My client understands that after the date of lifting of entire wheat stock export documents can be submitted within 3 calandar months so as to claim rebate."

During hearing of the petition, when questioned, Kh. Muhammad Akram, learned counsel for respondent No. 1 frankly stated that PASSCO will suffer no loss if the petitioner exports wheat after the target date. On the other hand, the petitioner is bound to suffer loss if not allowed to export, after having lifted such a huge quantity of wheat, upon payment not only of its price but 2% penalty as well, on clear understanding that it was meant for export and he would be entitled to the benefits arising out of the Agreement, dated the 31st of March 2003. In the circumstances, there is neither any legal nor moral justification to allow PASSCO being itself beneficiary of the said Agreement to push the petitioner to wall, when his turn has come to derive benefits therefrom.

1. Needless to mention that on 27th of October, 2003, during the course of hearing of the case, learned counsel for PASSCO raised an objection that the petitioner has not approached the Court with clean hands inasmuch as he had allegedly disposed of wheat in the market and no stocks were left with him for export. The petitioner sharply reacted to this assertion and besides filing an affidavit, dated 31st of October, 2003 controverting the allegation, offered for inspection of his stocks by a Local Commission to be appointed by this Court. After submission of the said affidavit, since the learned counsel for the respondent did trot press the objection any further, the necessity to appoint a Local Commission for the purpose stood obviated.

2. As a last resort, learned counsel for respondent‑PASSCQ submitted that there is every likelihood of the petitioner not exporting wheat and by providing fake documents, he may get benefits under the Agreement, dated the 31st of March, 2003. The apprehension is not well‑founded. The draftsman of the said Agreement took special care in this behalf vide clause 12, wherein production of almost all requisite documents was made a condition precedent to the release of the amount of upgradation/export expenses. Moreover, PASSCO retained authority to demand "any other document" in proof, of export form the petitioner. Even PASSCO can depute its own representative to be physically present at the time of shipment of wheat by the petitioner. This should, therefore, allay all apprehensions entertained by the said respondent.

3. For the foregoing reasons, this petition is allowed, the impugned letter, dated 1st of September, 2003 is declared to be illegal and without lawful authority, consequently the petitioner shall be entitled to a period of three calendar months from the date of this judgment to export wheat stock purchased from PASSCO, and to submit, within the said period of three months, export documents which shall be entertained by the said respondent; and the petitioner shall be entitled to benefits in terms of the Agreement, dated the 31st of March 2003, as if no breach thereof has taken place. This order shall not, however, affect already recovered amount of penalty (liquidated damages) from the petitioner. There shall be no order as to costs.

M.B.A./J‑1/L Petition allowed.

2004 C L C 535

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

SAIF‑UR‑REHMAN‑‑‑Petitioner

Versus

Mirza MANZOOR AHMAD‑‑‑Respondent

Civil Revision No.2039 of 1995, heard on 21st January, 2004.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6(2), 35(2) & 2(a)‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Pre‑emption suit in respect of property situated within urban area of Town Committee‑‑‑Maintainability‑‑‑Rejection of plaint‑‑‑Provisions of Ss.6(2), 35(2) & 2(a) of the Punjab Pre‑emption Act, 1991 having been declared to be against the Injunctions of Islam by the Shariat Appellate Bench of the Supreme Court PLD 1994 SC 1, with effect from 31‑12‑1993, Courts below had adopted the right course for rejection of plaint under O.VLI, R.11, C.P.C. as the affect of the judgment was prospective‑‑‑Right of pre‑emption in respect of the property situated within urban area of Town Committee which could be exercised with effect from 31‑12‑1993 as per Supreme Court decision, the plaintiff could not exercise that right with respect to the land in question at initial stage on 4‑11‑1993 as on that date which was the date of sale of property in dispute, right of pre‑emption was not available to the plaintiff in respect of suit property situated within Town Committee‑‑‑Plaint of the plaintiff, in circumstances, was rightly rejected.

Muhammad Ismail Qureshi and others v. Government of Punjab, and others PLD 1991 FSC 80; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1; 1993 CLC 1679; Mst. Bashiran Bibi v. Muhammad Kashif Khan PLD 1995 Lah. 200; Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360, Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 314; Fazal Elahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 and Qazi Muhammad Shahab-­ud‑Din v. Muhammad Qasim 1996 CLC 480 ref.

M.A. Zafar for Petitioner.

Khalid Ikram Khatana for Respondent.

Date of hearing: 21st January, 2004.

2004 C L C 538

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD JAHANGIR‑‑‑Petitioner

Versus

MUHAMMAD ABBAS and 2 others‑‑‑Respondents

Civil Revision No.904 of 2003, heard on 7th October, 2003.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 6 & 24‑‑‑Suit for pre‑emption ‑‑‑Deposit of one‑third amount of sale price‑‑‑Limitation for‑‑‑Delay, condonation of‑‑‑Trial Court directed plaintiff to deposit Zar‑e‑Soim/one‑third amount of sale price within thirty days, but plaintiff deposited said amount one day beyond period of thirty days and for said default his suit was dismissed by Trial Court and order of Trial Court was upheld in appeal‑‑‑Period of thirty days as provided under provisions of S.24 of Punjab Pre‑emption Act, 1991, would be counted on filing of suit and plaintiff was duty bound to deposit one‑third sale amount as soon as he would institute the suit‑‑‑Proviso to S.24 of Pre‑emption Act, 1991 having barred the discretion of Court to extend time beyond thirty days, Court could not extend same and plaintiff was duty bound to deposit one‑third within prescribed period of thirty days‑‑‑Plaintiff though had deposited one‑third in compliance of direction of Court, but same having been deposited one day after expiry of thirty days, his suit was rightly dismissed on that ground,‑‑Where law required a particular thing to be done in a given manner, it had to be done in that manner‑‑‑Requirement of deposit of one‑third was mandatory in nature and not directory and plaintiff was required to deposit same within thirty days.

Ch. Muhammad Yaqoob v. Nazim Hussain and others 1995 CLC 1271; Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Ijaz Ahmad Khan v. Muhammad Asif 2000 CLC 808 and Jamshed Ali and 2 others v. Ghulam Hassan 1995 CLC 957 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Where law required a particular thing to be done in a particular manner, it had to be done in that manner.

Ijaz Ahmad Khan v. Muhammad Asif 2000 CLC 808 ref.

(c) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24‑‑‑Provision requiring deposit of one‑third amount of sale is mandatory and not directory.

Ch. Abdur Rehman for Petitioner.

Ch. Shahid Tabassum for Respondents.

Date of hearing; 7th October, 2003.

2004 C L C 572

[Lahore]

Before Syed Zahid Hussain, J

PERVAIZ AHMAD KHAN and 8 others‑‑‑Petitioners

Versus

ASHRAF BEGUM and 48 others‑‑‑Respondents

Writ Petition No. 1038 of 2003, heard on 14th October, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R. 17‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Amendment of written statement‑‑‑Suit for declaration‑‑‑Defendants, during pendency of suit, filed application for seeking amendment in their written statement which was dismissed by Trial Court, but in revision, amendment sought for was allowed subject to payment of costs of Rs.1,500‑‑‑Order passed in revision had been assailed by plaintiffs through Constitutional petition‑‑‑Order allowing amendment in written statement was passed by Appellate Court subject to payment of Rs.1,500 as costs which amount was paid by defendant to plaintiffs and amended written statement was also filed by defendants‑‑‑Constitutional petition against order allowing amendment was filed by the plaintiffs after receiving amount of costs, but no reference had been made by the plaintiffs in the said petition as to the receipt of costs, which undoubtedly was a suppression of material fact on the part of plaintiffs‑‑‑Plaintiffs had contended that receipt of costs would not estop them from assailing order of Appellate Court, allowing amendment in written statement‑‑‑Validity‑‑‑Contention was repelled because before filing of Constitutional petition plaintiffs had received costs and by so doing plaintiffs had acquiesced and accepted amendment so allowed by Appellate Court‑‑‑Even otherwise conduct of plaintiffs would disentitle them to get relief from High Court for suppression of material facts with regard to receipt of amount of costs from defendants.

Ram Gopal v. Man Chand AIR 1981 All. 352 and Khawaja Umar Joo v. Muhammad Hussain and others PLD 1963 Azad J&K 44 ref.

Muhammad Yaqoob Chaudhry for Petitioners.

Muhammad Yaqoob Sabir for Respondents Nos. 1 to 11.

Ch. Muhammad Anwar Waraich for Respondents Nos.37 to 41.

Nemo for the Remaining Respondents.

Date of hearing: 14th October, 2003.

2004 C L C 592

[Lahore]

Before Mian Saqib Nisar, J

Rana LIAQAT ALI ---Petitioner

Versus

GHULAM MUSTAFA and 4 others---Respondents

Civil Revision No.2306 of 2003, decided on 8th December, 2003.

Civil Procedure Code (V of 1908)---

----O. XXI, R.53 & O. XXXVIII, R. 5---Suit for recovery of amount--­Plaintiff's plea was that he and defendant as partners in business were jointly entitled to certain amount from a third party---Defendant obtained money decree against third party without impleading plaintiff as party--­Plaintiff filed suit against defendant for recovery of his share in decretal amount alongwith application under O.XXI, R. 53, C.P.C. for attachment of money decree--Trial Court dismissed application--­Validity---Such application would not be competent in a separate and independent suit for recovery of money---Such application would be maintainable before Executing Court, where money decree was under process against third party---Powers under O.XXI, R.53, C.P.C., were exercisable by Court while executing motley decree and not by Court while exercising its original civil jurisdiction in an independent suit--­Court in exercise of its original jurisdiction could pass order of attachment before judgment of a property belonging to defendant only on fulfilment of conditions mentioned in O.XXXVIII, R.5, C.P.C.---High Court dismissed revision petition.

Hassan Ahmad Khan Kanwar for Petitioner.

2004 C L C 594

[Lahore]

Before Muhammad Muzammal Khan, J

LAHORE DEVELOPMENT AUTHORITY through Managing Director, WASA, Lahore---Appellant

Versus

Messrs FAISAL INTERNATIONAL CONSTRUCTION CORPORATION LIMITED---Respondent

First Appeal from Order No. 191 of 1994, heard on 9th December, 2003.

(a) Arbitration Act (X of 1940)---

----Ss. 15 & 30---Award, substitution of---Legal misconduct--­Supervisory role of the Court---Opinion/decision given by an Arbitrator cannot be substituted by the Civil Court or even the High Court in discharge of Appellate jurisdiction unless and until' some legal misconduct is shown to have been committed by the Arbitrator---Role of the Court under Arbitration Act, 1940 is of supervisory in nature and not of the Appellate Court as under Civil Procedure Code, 1908.

Messrs Waheed Brothers [Pakistan] Ltd., Lahore through Chief Executive v. Messrs Izhar (Pvt.) Ltd., Lahore through Managing Director 2002 SCMR 366 and Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 ref.

(b) Arbitration Act (X of 1940)---

----S. 15---Amendment of award---Scope---Award can only be amended or modified or corrected when it falls within the scope of S.15 of the Arbitration Act, 1940.

(c) Arbitration Act (X of 1940)---

----Ss. 13 & 26-A---Arbitrator, powers of---Arbitrator while calculating the loss incurred to any party under the agreement may consider to the advantage of that party, factors like the depreciation of currency, loss of investment or profit, etc.

Karachi Transport Corporation v. Karachi Tameerat Limited PLD 1992 SC 479 ref.

(d) Arbitration Act (X of 1940)---

----S. 29---Interests Act, 1839, S.1---Civil Procedure Code (V of 1908), Ss.34 & 34-B---Date from which interest to be claimed---Interest can be claimed from the date when a debt or loan becomes payable, from the date specified and if no such date is mentioned in writing the claim of interest is recoverable up to the date of the suit.

Terni S.P.A. v. DECO (Pakistan Engineering Company) Ltd., 1992 SCMR 2238 ref.

(e) Arbitration Act (X of 1940)---

----S. 29---Award of interest---Principles---Grant or refusal of interest is discretion that vests in the Court and is exercisable on the basis of principles of administration of justice.

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

----Ss. 34 & 34-B---Interests Act, 1839, S.1---Arbitration Act (X of 1940), S.29---Interest can be claimed from the date when a debt or loan becomes payable from the date specified and if no such date is mentioned in writing the claim of interest is recoverable up to the date of the suit.

Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238 ref.

Mehboob Ahmed for Appellant.

Syed Ikhtisar Ahmed and Malik Amjad Parvez for Respondent.

Date of hearing: 9th December, 2003.

2004 C L C 599

[Lahore]

Before Ch. Ijaz Ahmad, J

NAEEM AHMED ---Petitioner

Versus

CHIEF ADMINISTRATOR, AUQAF, AIWAN-E-AUQAF, LAHORE and 2 others---Respondents

Writ Petitions Nos. 1548, 1755 of 1989 and 734 of 1991, heard on 22nd October, 2003.

(a) Islamic Law---

----Waqf---Waqf property cannot be alienated---Mutawalli has no power to grant lease of the Waqf property.

Muhammadan Law by D.F. Mulla quoted:

Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf 1993 MLD 2529; Malik Aslam Pervaiz v. Province of Punjab and others 1994 MLD 1986; Muhammad Sadiq and others v. Chief Administrator, Lahore PLD 1972 Lah. 780 and Qazalbash Waqf v. Chief Land Commissioner Auqaf PLD 1990 SC 99 ref.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

--Ss. 16 & 17---Constitution of Pakistan (1973), Art.199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Auction/lease of Waqf property by Auqaf Department beyond three years---Auction was not held keeping in view the ingredients prescribed by Legislature in S.16 coupled with the other conditions mentioned in Cls. (a) to (g) of the said section---Chief Administrator Auqaf had not passed any order about auction/lease after satisfaction and applying its independent mind and no order was placed on .record by the Department to show that Chief Administrator had passed the order with reasons, which was condition precedent under S.24-A, General Clauses Act. 1897---Validity--­Assumption of the jurisdiction by the Auqaf Department was not in accordance with parameters prescribed by the Legislature in S.16---Auction/lease of the Waqf property thus was not sustainable in the eye of law.

Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166 and Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 ref.

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

----Arts. 4 & 5--Duty and obligations of public functionaries elucidated.

Shaukat Ali v. Government of Pakistan PLD 1997 SC 342 and Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd. PLD 1991 SC 14 ref.

(d) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 16---Sale of Waqf property by the Chief Administrator Auqaf--­Phrase "satisfied" occurring in S.16, Punjab Waqf Properties Ordinance, 1979---Connotation.

Blyth's case 1966 AER 524; Angland v. Payne 1944 NZLR 610; Abdul Ghafoor v. The Crown PLD 1952 Lah. 624; Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Dr. Ejaz Hassan Qureshi and others v. Government of Punjab and others PLD 1978 Lah. 1419; Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and others 1994 CLC 2041; Kh. Muhammad Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725; Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166 ref.

(e) Precedent---

---- Judgment of Division Bench of High Court was binding upon the Single Judge of the said High Court.

(f) Administration of justice---

---- Statutory opinion must be an honest opinion-or conviction, based on tangible material capable of sustaining such opinion and not an ex parte opinion or colourful exercise of statutory power.

Kh. Muhammad Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 and Store Rolling Mills' case PLD 1974 Note 129 at p.189 = 1974 PTD 200 ref.

Nemo for Petitioner.

Rana Muhammad Arshad and Sher Nawaz for Respondents.

Date of hearing: 22nd October, 2003.

2004 C L C 610

[Lahore]

Before Muhammad Akhtar Shabbir, J

WALI MUHAMMAD ---Petitioner

Versus

SAIF-UR-REHMAN---Respondent

Civil Revision No. 166 of 2003, heard on 25th September, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat, making of ---Procedure---Pre-emptor has to establish the making of immediate demand (jumping demand) made in presence of people (witnesses) while he was sitting at any place.

(b) Interpretation of statutes---

---- Meaning of words in a statute, determination of---Principles---When a word is not defined in the relevant statute/law, help has to be taken from the dictionary.

(c) Words and phrases---

----"Deta" and "Haveli"---Difference---Words "Dera" and Haveli" are not distinguishable and denote dwelling, residence/house.

Urdu Dictionary ﺖﺎﻐﻠﻟﺍﺯﻮﺭﻳﻔ by Al-Haj Maulvi Feroz-ud-din and Composite Dictionary ref.

(d) Punjab Pre-emotion Act (IX of 1991)---

----S. 13----Right of pre-emption, exercise of ---Talb-i-Muwathibat---­Concurrent findings of facts by the Courts below---Place where Talb-i­-Muwathibat was made---Proof---Plea raised by vendee was that the pre­-emptor had failed to prove the place of making such demand because some witnesses said it was made by the pre-emptor at Dera and some stated that it was made in Haveli---Validity---Dera and Haveli were not different places than house of pre-emptor---No material discrepancies existed in the statements of the witnesses of pre-emptor deposing different places regarding receipt of information by the pre-emptor about the disputed sale---Judgments and decrees passed by the two Courts below, in favour of the pre-emptor, were maintained by High Court.

Abdul Hakim v. Habibullah 1997 SCMR 1139; Sh. Muhammad Bashir Ali v. Sufi Ghulam Mohyuddin 1996 SCMR 813: Abdul Qayyum v. Mushke Alam 2001 SCMR 798; Urdu Dictionary ﺖﺎﻐﻠﻟﺍﺯﻮﺭﻳﻔ by Al-Haj Maulvi Feroz-ud-din; Composite Dictionary and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

(e) Evidence---

---- Discrepancies in evidence---Scope---Discrepancies are natural variations which a human-bung makes in ordinary course of business as such the same if made in any way would not detract from the veracity of such evidence---Memory of each and every human being is not the same and such discrepancies should be ignored by the Courts below.

Ch. Arshad Mahmood for Petitioner.

Sh. Naveed Shaharyar for Respondent.

Date of hearing: 25th September, 2003.

2004 C L C 616

[Lahore]

Before Farrukh Latif, J

Rao ABDUL WAHAB---Petitioner

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Revision No.640-D of 2002, decided on 26th September, 2003.

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

----Ss. 9 & 42---Transfer of Property Act (IV of 1882), S.52---Transfer of title---Principle of lis pendens---Applicability---Petitioner assailed sale-­deed executed in favour of respondent on the ground that the deed was executed during the pendency of suit under S.9 of Specific Relief Act, 1877, filed by him---Plea raised by the petitioner was that the principle of lis pendens was applicable to the transfer of title in favour of the respondent---Validity---Principle of lis pendens was not involved in a suit under S.9 of Specific Relief Act, 1877, as question of right or title of any party was not involved---Such transfer of title in favour of the respondent was not in violation of S.52 of Transfer of Property Act, 1882---Transfer of immovable property in a suit to which any right was directly of specifically claimed was not completely prohibited but the transferee or assignee acquired right thereto or interest therein subject to the judgment or order of the Court passed in the suit---Appellate Court had rightly allowed the appeal in favour of the respondent in circumstances.

Abdus Saeed Khan and 2 others v. Basharat Ali and 13 others PLD 1995 Lah. 255 ref.

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

----S. 12---Transfer of Property Act, (IV of 1882), S.52---Specific performance of agreement to sell---Principle of lis pendens--­Applicability---Alienation of suit property during pendency of the suit is hit by doctrine of lis pendens because Specific Relief Act, 1877, ordains that not only parties to the agreement but their successor's-in-interest are also bound by it.

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

----S. 115---Words "illegality or with material irregularity" ---Meaning and scope---Such words have reference to material defect of procedure and not to errors of law or fact after the formalities, which the law prescribes, have been complied with.

Mian Shamsul Haq Ansari for Petitioner.

Syed Hashmat Hussain Naqvi on behalf of for A.A.-G. for Respondents.

Rana Nazir Saeed and Mehr Hashim Ali for Respondent No.3.

Ayub Nawaz, Tehsil Officer, T.M.A., Khanewal (Respondent No. 2).

Respondent No.4 in person.

Date of hearing: 15th September, 2003.

2004 C L C 621

[Lahore]

Before Raja Muhammad Sabir and Mumtaz Ali Mirza, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Government of Pakistan and 3 others---Appellants

Versus

Messrs FIVE STAR ASSOCIATES (PVT.) LTD. ---Respondent

Regular First Appeal No.87 of 1997, heard on 16th November, 1999.

Civil Procedure Code (V of 1908)---

----S. 96---Limitation Act (IX of 1908), S.5 & Art.156---Appeal--­Condonation of delay of 11 months, 29 days---Trial Court passed judgment and decree against Government on 31-10-1996---Application for certified copy of judgment and decree was filed on 30-1-1997, while appeal was filed on the same date---Government alleged lack of notice to suit filed by respondent and non-service of summons on them--­Validity---Impugned decree was not ex parte---Government, thus, could riot claim lack of notice as to suit and decree having been passed without their contest---Record showed that Director of appellants department, who had signed contract with respondent, had contested suit throughout in Trial Court and filed written statement---Government though contended that such officer was not competent to appear and defend suit but they had not ten any action against such Officer---Concerned officials of Government had casually dealt with such serious matter involved in the appeal---Government had acted so negligently as to apply for copy of decree for purposes of appeal alter expiry of almost one year---Explanation offered for seeking condonation of delay was not satisfactory---High Court dismissed appeal being hopelessly barred by time.

Ch. Afrasiab Khan, Standing Counsel for Appellants.

Saleem Anwar Khan and Waqar Hanif Bhatti for Respondent.

Date of hearing: 16th November, 1999.

2004 C L C 623

[Lahore]

Before Maulvi Anwarul Haq, J

UMAR HAYAT---Appellant

Versus

MANZOOR ELLAHI and another---Respondents

First Appeals from Orders Nos.4 to 7 of 2003, heard on 20th November, 2003.

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

----S. 17---Ejectment petition against tenant by one co-owner without impleading the other co-owners is maintainable.

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

----S. 17---Specific Relief Act (I of 1877), S.9---Ejectment petition against co-owner in possession ---Maintainability---Co-owner could be ejected only upon partition of joint property---Where co-owner had taken possession forcibly, then other means of taking back possession would be suit under S.9 of Specific Relief Act, 1877.

Sh. Muhammad Suleman for Appellant.

Ch. Munir Sadiq for Respondents.

Date of hearing: 20th November, 2003.

2004 C L C 626

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

NAVEED-UR-REHMAN---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No.3446 of 2002/BWP, heard on 31st July, 2003.

Punjab Local Government Elections Rules, 2000---

----R. 70---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Declaration of election of returned candidate to be void and that of unsuccessful candidate as returned candidate---Petitioner and respondent ,who were joint candidates for Naib Nazim and Nazim respectively got maximum number of votes and were declared successful and notification in that respect was also issued---Nomination papers of returned candidates were rejected by order of the Supreme Court and they were declared disqualified to contest election---Respondents/unsuccessful candidates in their election petition had prayed that returned candidates had been declared not qualified to contest election, election result was liable to be declared void and notification in that respect was liable to be cancelled and thus, they should be declared as Nazim and Naib-Nazim in place---Election Tribunal accepted the election petition--­Election Tribunal, in the light of judgment of the Supreme Court whereby petitioner and respondent were declared disqualified to contest election and their nomination papers were rejected, had rightly declared election of returned candidates as void, but as the disqualification of returned candidates was not notorious, votes cast in their favour could not be treated as thrown away or wasted---Disqualification of returned candidate was not known to voters of the Constituency at the time of election--­High Court accepted Constitutional petition, upheld judgment of Election Tribunal to the extent of declaring election of returned candidates to be void, but set aside the judgment of Election Tribunal to the extent of declaring unsuccessful candidate as duly elected as Nazim and Naib Nazim and directed that vacant seats would be filled through fresh election.

Sh. Hakim Ali for Petitioner.

Ijaz Ahmad Chaudhary, Naveed Khalil Chaudhary and Akhtar Mahmood Hashmi for Respondents.

Date of hearing: 31st July, 2003.

2004 C L C 631

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SAEED QAZI and another---Petitioners

Versus

ELECTION TRIBUNAL/ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and 16 others---Respondents

Writ Petition No.6193 of 2003, decided on 16th October, 2003.

Punjab Local Government Elections Rules, 2000---

----Rr. 70 & 78---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Recounting of votes---Conditions for---Powers of Election Tribunal---Scope---Petitioner could not seek the recount of the votes as a right and Election Tribunal could not direct the recount as a matter of course---Necessary conditions for the recount of votes were that there must be specific factual foundation laid down in the election petition; that it should be stated with accuracy as far as possible, the Polling Station, if more than one, at which, the misconduct and nature thereof had been committed in the count at the time of close of polls; not only that there should be some material in support of the facts stated in the petition, such as the affidavit of those, who were present at the time of counting of votes and had reported that incident to the candidate who was aggrieved of counts or any other material such as the statement of counts, prepared by Presiding Officer and handed over to the Polling Agents of the candidates or the consolidated statement prepared by Returning Officer showing prima facie an error in the count---Such material coupled with the factual foundation in the election petition would enable the Election Tribunal for assessing the genuineness and reasonableness of the request made in that behalf, otherwise, it would mean that any losing candidate, who, for good or bad reasons, would feel dissatisfied with counting on the basis of his sophistry about the counting, could apply to the Tribunal and Tribunal not only on the basis of any prima facie proof, in its own whim and caprice would decide the fate of the request of recounting---Such was not only against the norms of the exercise of the discretion, but also against the very principle that the recount should not be directed as a matter of right and course---Request for recount should not be allowed with the object to fish for the error in the recounting, even if the final and positive evidence were the ballot-­papers themselves---Case being not fit for recount where Tribunal should have exercised its discretion in respect thereof, Constitutional petition was dismissed.

Kanwar Ijaz Ali v. Irshad Ali and others PLD 1986 SC 483; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and others PLD 1986 SC 542; Nawab Khan and others v. Qamar-ur-Din and others 1990 SCMR 299; Muhammad Zulqarnain v. Muhammad Anwar and others 1990 CLC 736; Malik Irshad Hussain v. Muhammad Ashraf Nagra and others 2003 YLR 812; Sheikh Iftikhar-ud-Din and others v. District Judge, Bahawalpur/Election Tribunal and others 2002 SCMR 1523; Muhammad Tariq Zakhmi v. Election Tribunal and others 2002 SCMR 1995; Muhammad Arif Chaudhry v. Election Tribunal, Okara PLD 1989 Lah. 110; Muhammad Tariq Zakhmi v Election Tribunal and others 2002 MLD 284 and Bhabhi v. Sheo Govind and others AIR 1975 SC 2117 ref.

Muhammad Ahsan Bhoon for Petitioners.

Dr. A. Basit for Respondents.

Date of hearing: 24th September, 2003.

2004 C L C 637

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

RAZI AHMED ---Petitioner

Versus

Mst. SAIMA SHAFI and others---Respondents

Writ Petition No. 14313 of 2003, decided on 14th October, 2003.

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

----S. 5, Sched & S.14(2)(c)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Suit for recovery of maintenance allowance and payment of expenses of delivery of baby---Family Court framed preliminary issues and granted interim maintenance allowance to the plaintiff and also awarded delivery expenses of birth of baby with direction to the defendant to deposit amount of interim maintenance allowance---Defendant having failed to deposit the said amount in compliance of order of Family Court, his defence was struck off and suit of plaintiff was decreed---Family Court awarded Rs.800 per month as maintenance allowance to the plaintiff till date of decree and thereafter Rs.1,000 per month since birth of the baby till his majority with further increase of 10% per annum---Appeal filed by defendant against judgment of Family Court was dismissed by Appellate Court being incompetent--­Validity---Provisions of S.14(2)(c) of West Pakistan Family Courts Act, 1964 (as amended) had clearly shown that right of appeal even though substantive, was barred---Purpose of S.14(2)(c) of the Act (as amended) was to frustrate the appeal in respect of award of maintenance allowance to the extent of Rs.1,000 which previously was Rs.500, but subsequently was enhanced to Rs.1,000 under S.14(2)(c) of West Pakistan Family Courts Act, 1964---Delivery expenses was also a part and parcel of suit for maintenance which was still pending before Family Court---Appeal to the extent of award of maintenance allowance, was rightly dismissed being incompetent.

Muhammad Anwar Chaudhary for Petitioner.

2004 C L C 640

[Lahore]

Before Abdul Shakoor Paracha, J

AMIR KHALID and 14 others---Petitioners

Versus

CONTROLLER OF EXAMINATION, PUNJAB UNIVERSITY, LAHORE and 5 others---Respondents

Writ Petition No. 1907 of 2002, decided on 31st July, 2003.

(a) Educational institution---

---- Imparting education through private institutions---Non-formulation of any policy by Government---Tendency to establish private institutions without any basic facilities of imparting education and having affiliation with University---Development of culture to extract money from innocent students---Exploitation and illegal activities being carried by individuals and N.G.O.'s with connivance of University Staff highlighted.

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

----Art. 199---Constitutional petition---Educational institution---Computer Classes introduced by Government in educational institutions in association with private parties---Petitioners as students of any such institutions sought to take part in BCS final examination---University refused to accept petitioners' admissions forms on the ground that such Institution had not been granted affiliation to teach BCS Class, and that no Institution could enrol students for any discipline without having affiliation---High Court allowed petitioners to take past in examination through interim order, and directed University to announce their result and decide matter of affiliation of such Institution within 15 days---High Court clarified that in future, no student of such Institution would be allowed to appear in examination, unless same was affiliated with University---High Court also directed the Provincial Government and University to decide cases of affiliation of different private Institutions, so that innocent poor people, who were spending for imparting education to their children, might not be subjected to loot by Mafia of individuals and N.G.O.'s.

Malik Muhammad Kabir for Petitioners.

Taufiq Asif Awan for Respondents.

Raja Saeed Akram, A.A.G.

2004 C L C 643

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD BAKHSH and 13 others---Petitioners

Versus

JAMAL and 4 others---Respondents

Civil Revision No.417-D of 2002, decided on 21st July, 2003.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of facts by the Courts below---Limited jurisdiction of High Court to disturb such findings---Principles.

High Court has very limited jurisdiction to disturb the findings on facts while exercising powers under section 115, C.P.C.

Section 115, C.P.C. empowers the High Court to satisfy itself upon three matters: (a) that the order of the subordinate Court is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of subordinate Court upon questions of fact or law.

N.S. Venkatagiri Ayyangar and others v. Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

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

----O. XLI, R. 31---Judgment of the Appellate Court---Contents---First Appellate Court having confirmed the findings of the Trial Court, it was not necessary for the First Appellate Court to give findings qua each and every issue at the time of confirming the judgment of the Trial Court--­Principles enumerated.

Intej Ali and others v. Yadulla and others PLD 1961 Dacca 79; Mahendra Nath Bhunia and others v. Ashutosh Pradhan and others AIR 1926 Cal. 545; Commander (Retd.) M.A. Ansari v. Pakistan Defence Housing Authority and another 1996 CLC 198; Fardioon v. Shafiullah Khan and others 2002 CLC 1262; Walayat Begum and others v. Wazir Begum and others 1992 CLC 553; Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique and another 1994 CLC 1690; Muhammad Siddique v. Mst. Noor Jahan and another 1994 CLC 1674; Ibarat Hussain and others v. Mir Afzal Khan and 12 others 2002 CLC 1150; Malik Najib Ullah Khan and others v. Saif Ullah and others 1980 CLC 2155; Allah Bakhsh and others v. Noor Khan and others 1980 CLC 498; Muhammad Azim and another v. Mahraja Pateshwari Prasad Sin AIR 1943 Oudh 105; Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542; Ch. Abdul Kabeer v. Mian Abdul Wahid 1968 SCMR 464; Abdul Hameed v. Muhammad Zaki and others 1990 MLD 1129; Islamic Republic of Pakistan v. Messrs Abdul Ghani Abdul Rehman Limited 2002 CLC 1039 and Sultan and another v. Chatanmal 1985 MLD 526 ref.

Ch. Muhammad Iqbal for Petitioners.

2004 C L C 650

[Lahore]

Before Farrukh Latif, J

GHULAM NABI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAJANPUR and others---Respondents

Writ petition No.4227 of 2003, decided on 10th October, 2003.

Civil Procedure Code (V of 1908)---

----O. XVI, R.1---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Delay in submitting list of witnesses---Petitioner submitted the list seven years after framing of issues---No reason was given by the petitioner for such delay---Both the Courts below had rejected the application---Plea raised by the petitioner was that the provisions of O.XVI C.P.C. should be construed liberally ---Validity--­Question of liberal construction of the provisions of O.XVI, C.P.C. could have arisen if any reason for not submitting the list of witnesses within time was given in the application---Discretion exercised by the Courts below was neither arbitrary nor without jurisdiction--­Constitutional jurisdiction could only be exercised if the Lower Courts had acted without Jurisdiction---Orders passed by both the Courts below not suffering from any jurisdictional defect, petition was dismissed in limine.

Muhammad Tufail Alvi for Petitioner.

2004 C L C 652

[Lahore]

Before Muhammad Akhtar Shabbir, J

ALIA PARVEEN---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), SHEIKHUPURA and 3 others---Respondents

Writ Petition No. 7254 of 2003, heard on 16th October, 2003.

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

----Ss. 2(a), 5 & Sched---Muslim Family Laws Ordinance (VIII of 1961), Ss.6, 7, 8 & 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition----Dispute regarding determination of legality/validity of marriage or genuineness or otherwise of Nikahnama---Forum to determine---Dispute regarding determination of legality/validity of the marriage or genuineness or otherwise of Nikahnama could not be questioned before Arbitration Council---Arbitration Council had jurisdiction only to matters mentioned in Ss.6, 7, 8 & 9 of Muslim Family Laws Ordinance, 1961 and for proceedings under those sections the Legislature had framed Rules under the Muslim Family Laws Ordinance---Arbitration Council had not the power to make unlawful anything declared lawful by Islam nor could do vice versa---Provisions of S.6 of Muslim Family Laws Ordinance, 1961 which dealt with polygamy to protect the rights of existing wife/wives and interest of her children, had not expressly declared the subsequent marriage illegal---Said law had only prescribed a procedure to be followed for subsequent marriages and punishment for its non-observance---If permission at the time of subsequent marriage was not sought from Arbitration Council, it would not make subsequent marriage as illegal or invalid---Disputes arising between spouses were to be adjudicated upon by Family Courts and matters/suits exclusively triable by Family Courts had been mentioned in Schedule under S.5 of West Pakistan Family Courts Act, 1964---Disputes mentioned in Schedule could only be decided by Family Court, but Family Court would not question the validity of any marriage registered in accordance with provisions of Muslim Family Laws Ordinance, 1961 nor record any evidence with regard thereto to be admissible before such Court---Suit in which the right to property or to an office is contested is a suit of civil nature "notwithstanding", that such right may depend entirely on the decision of question as to religious rites or ceremonies--­Petitioner, in the present case, whether was legally wedded wife of deceased or not could not be decided by Municipal Authorities but same was the exclusive jurisdiction of a Civil Court to determine the rights and interests of parties with regard to the property of deceased---Action of Municipal Local Authorities determining the legality/genuineness or otherwise of Nikahnama between the parties, was without backing of legal authority---All proceedings conducted by such authorities in the matters were declared illegal, without lawful authority and without jurisdiction by High Court in exercise of its Constitutional jurisdiction.

Nazir Ahmed Ghazi for Petitioner.

M. Sohail Dar, A.A. -G. for Respondents Nos. 1 to 3.

Rana Muhammad Arif for Respondent No.4.

Date of hearing: 16th October, 2003.

2004 C L C 658

[Lahore]

Before Farrukh Latif, J

MUHAMMAD AFZAL and others---Petitioners

Versus

WALI MUHAMMAD ---Respondent

Civil Revision No.899-D of 2000, decided on 10th October, 2003.

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

----S. 12---Civil Procedure Code (V of 1908), S.115---Specific performance of agreement---Concurrent findings of fact by the two Courts below---Revisional jurisdiction of High Court --- Scope --- Plaintiffs asserted that the defendant had agreed to exchange his land with them but later on resiled from the same---Plaintiffs failed to establish through their evidence that their predecessor was the owner of the land which he agreed to give in exchange to the defendant---Even the land was not given to the defendant under the exchange agreement---Record showed that the predecessor-in-interest of plaintiffs was tenant under the defendant---Trial Court and Appellate Court dismissed the suit and appeal---Validity---Both the Courts below had given concurrent findings on question of fact that predecessor-in-interest of plaintiffs did not perform his part of obligations under the agreement and the same stood cancelled---Findings on question of fact or taw recorded by the Courts of competent jurisdiction, though erroneous, could not be interfered with in revisional jurisdiction---Such jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of law and fact not involving question of jurisdiction ---Judgments and decrees passed by both the Courts below were maintained---Revision was dismissed in circumstances.

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

-----O. XX, R. 5---Judgment--- Issue-wise findings---Interlinked issues--­Principle-- When interlinked issues were discussed together with the main issue, no prejudice was caused to parties in not discussing and deciding the interlinked issues separately.

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

----S. 115---Words "illegally" or' "material irregularity"---Meaning and scope---Such words used in S.115, C-P.C. have reference to the material defects of procedure.

Syed Tajammal Hussain Bokhari for Petitioners.

Muhammad Tufail Alvi for Respondent.

Date of hearing: 26th September, 2003.

2004 C L C 661

[Lahore]

Before Sh. Hakim Ali, J

Syed FAIZ-UR-REHMAN---Petitioner

Versus

PRINCIPAL, SHEIKH ZAYED MEDICAL COLLEGE, RAHIMYAR KHAN and 4 others---Respondents

Writ Petitions Nos.2894, 3155 and Criminal Original No.250 of 2003/BWP, decided on 15th October, 2003.

Educational institution---

----Admission in Medical College---Candidate who passed F.Sc. Pre-­Medical examination in year 2001, participated in entry test prescribed for M.B.,B.S. Class held for the Session 2001 to 2002, but he applied for admission to M.B.,B.S. Class of Session commencing from year 2002 to 2003---Candidate was informed that he was selected provisionally for admission in the first year M.B.,B.S. Class on a disabled seat for Session commencing from 2002 to 2003---Subsequently candidate was refused admission on ground that according to Prospectus of Government Medical Colleges, Health Department had prescribed that candidate applying for admission to first year M. B., B. S. Class would hold the successful result of entry test for that Session only---Candidate participated in entry test for Session 2001 to 2002, but he applied for admission for Session commencing from 2002 to 2003, for which Session he had not passed the entry test---First Session of 2001-2002 for which candidate was qualified to apply had elapsed---Government had every right to regulate the admission policy in Government Colleges through rules and regulations which could be prescribed through Prospectus of Medical College--­Prospectus itself was a complete Code which had prescribed Admission Policy and said Prospectus being inviolable document to be followed both by candidates as well as Government, had to be given its due weight--­Prospectus was a sort of compendium of rules and regulations, which had to be followed while seeking admission and remaining in Medical College and violation thereof would be disasterous to both parties---Admission was rightly refused to the candidate.

Gul Khan v. Government of Balochistan through Secretary, Education and 4 others PLD 1989 Quetta 8 and Yasir Arfat v. Vice­-Chancellor, Mehran University and others 2000 CLC 393 ref.

Malik Muhammad Aslam for Petitioner.

Ahmed Mansoor Chishti, A.A.-G.

Bashir Ahmed Chaudhry for Respondents Nos.4 and 5.

Respondent No. 1 in person.

2004 C L C 665

[Lahore]

Before Farrukh Latif, J

MUQARRAB AKBAR---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Registrar and 2 others---Respondents

Writ Petition No.9746 of 2000, decided on 22nd April, 2003.

Educational institution---

----Re-evaluation of answer-book of candidate---Marks obtained by candidate in one paper having been found by candidate below his expectation, he applied for re-checking of the said paper and on re­checking it was found that due to inadvertence 10 marks were omitted to be added in grand total and said mistake was rectified and during process of re-checking it was found that all questions attempted by candidate were duly marked---Application moved by candidate to Vice-Chancellor for re-evaluation of answer-books of candidate was dismissed without assigning any reason---Candidate had not alleged that his result was not correctly compiled or that answer-books were not in his handwriting--­Regulation 23 of Chap. VII (Conduct of Examinations) of Calendar of University did not create a statutory right in favour of candidate to get his papers re-evaluated---Discretion given to Vice-Chancellor under said Regulation was not to be used as a rule, but in exceptional cases wherein the opinion of Vice-Chancellor, was a strong ground to believe, that answer-book had not been justly evaluated---When, in such cases, exercise of discretion was an exception and non-exercise thereof was a rule, there was no reason to be given for refusing to exercise the discretion---When the answer-book of candidate was re-checked and mistake in the calculation was rectified and it was found that all the questions, -attempted were duly marked and no question was left unmarked and when there was no allegation that script was not in the handwriting of candidate and only objection was with regard to the evaluation, University was not obliged or legally bound to get answer-book of candidate re-evaluated--Application of candidate for re-evaluation of answer book, was rightly rejected, in circumstances.

Mian Mushtaq Ahmad for Petitioner.

Muhammad Tariq Rajwana for Respondents.

2004 C L C 668

[Lahore]

Before Muhammad Muzammal Khan, J

RAZIA SULTANA---Petitioner

Versus

MUHAMMAD SIDDIQUE and 3 others---Respondents

Civil Revision No.471 of 2003, heard on 13th October, 2003.

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

----S. 135---Civil Procedure Code (V of 1908), O.I, Rr.3 & 10---Suit for partition ---Non-impleading of necessary party---Suit-land was jointly owned by three owners---One male co-sharer had 4/11th share whereas the two female had 7/11th share---One of the two female share-holders filed suit for partition without impleading male sharer-holder who had a subsisting interest in joint property---Said male share-holder who was necessary and proper party having not been impleaded as a party to suit, decree passed in his absence by both the Courts below was not sustainable---Concurrent judgment and decrees passed by Courts below were set aside by High Court in exercise of its revisional jurisdiction and case was remanded for its fresh trial after impleading male co-sharer as a defendant in the suit.

Haji Abdullah Khan and others v. Nisar Muhammad and others PLD 1965 SC 690; Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706 and Syed Mohsan Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31 ref.

Sheikh Umer Draz for Petitioner.

Ch. Muhammad Tufail for Respondents Nos. 1 to 3.

Date of hearing: 13th October, 2003.

2004 C L C 713

[Lahore]

Before Muhammad Ghani, J

MASHREQ BANK---Petitioner

Versus

Messrs NAZIR COTTON MILLS and others---Respondents

Execution Petition No.24-B of 2003, decided on 26th February, 2004.

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

----S. 48---Banker and customer---Instalment decree, execution of--­Instalment decree, in the present case, contained a penalty clause, giving option to the decree-holder to invoke the same in case of default---Such clauses, doubtless, being for the benefit of the decree-holder, decree-­holder could take out execution of the decree for the full amount if there was a default in the payment of any instalment---Where, however, the decree-holder had elected not to refuse a delayed payment, and had received the same without objection, it would constitute waiver of his right---Waiver meant forsaking the assertion of a right at the proper time an intentional relinquishment of a right man was entitled to "an intentional relinquishment of a known right"---Waiver might consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of a right---Waiver, thus was meant to forego, to waive a claim or right, or not to put forward the same---Decree-holder/Bank having not exercised its right by invoking the penalty clause in compromise deed, at the relevant time, was deemed to have waived its right, consequently the execution petition being not maintainable was dismissed by the High Court.

An instalment decree, containing a penalty clause, and giving option to the decree-holder to invoke the same in case of default, is doubtless for the benefit of the decree-holder, and he can take out execution of the decree for the full amount if there is a default in the payment of any instalment. But, if he elects not to refuse a delayed payment and receives same without objection, it would constitute waiver of his right. The dictionary meaning of the word "waiver" is "to abandon, relinquish, desert, to relinquish (a right, claim or contention) either, by express declaration or by some intentional act which by law is equivalent to this". "Waiver" is, inter alia, described to mean "forsaking the assertion of a right act at the proper time", "an intentional relinquishment of a right a man is entitled to"; "an intentional relinquishment of a known right"; "it may consist either of a positive act of relinquishment or pf conduct such as would warrant an inference of relinquishment of the right". Thus the word "waiver" means to forego, to waive a claim or right, or not to put forward the same.

Bank having not exercised its right by invoking the penalty clause in the Deed of Compromise, at the relevant time, shall be deemed to have waived its right, consequently the execution petition, being not maintainable was dismissed accordingly.

Chunilal v. Shivram AIR 1950 Bom.188; Ganeshlal v. Ramgopal AIR 1955 Raj. 17; Federation of Pakistan v. Bibi Shaidae Fatima PLD 1968 Kar. 31 and Bank of Credit & Commerce v. Messrs Global Produce 1998 MLD 1759 distinguished.

Norton v. Wood (1829) IR&M 178; Nilmadhub Jchuckerbutty v. Ramjsodoy Ghose (1883) ILR Cal. 857; Radha Prasad Singh v. Bhagwan Raj (1883) ILR 5 All. 289; Nagappa v. Ismail (1889) 12 Mad. 191; Kashiram v. Pandu (1902) ILR 27 Bom. Easin Khan v. Abdul Wahab Sikandar 15 IC 10; Gopal Mal v. Gopal Singh Hira Singh AIR 1928 Lah.378; Hanmant Bhimrao v. Gururao Swamirao AIR 1943 Bom. 36; Salyauarayana v. Yelloji Rao AIR 1965 SC 1405; Najmuddin v. Zamir Ahmad PLD 1982 Kar.188; Yaqoob Ali. v. Ismail 1987 CLC 526; Halsbury's Laws of England, 3rd Edn., Vol. 14, p.637 and Halsbury's Laws of England, 3rd Edn., Vol. 14, p.638 ref.

(b) Waiver---

----Connotation elaborated.

The dictionary meaning of the word "waiver" is "to abandon, relinquish, desert, to relinquish (a right, claim or contention) either by express declaration or by some intentional act which by law is equivalent to this". "Waiver" is, inter alia, described to mean "forsaking the assertion of aright act at the proper time"; "an intentional relinquishment of a right a man is entitled to"; "an intentional relinquishment of a known right"; "it may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right". Thus the word "waiver" means to forego, to waive a claim or right, or not to put forward the same.

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

-----S. 48---Limitation Act (IX of 1908), Art. 181---Banker and customer---Instalment decree, execution of---Such decree contained a penalty cause and giving option to the decree-holder to invoke the same in case of default---Limitation---Limitation, under Art 181, Limitation Act, 1908, as a general rule, would commence to run when the first default was made---Exception to such general rule---Principles.

As a general rule, where a decree or order makes a sum of money payable by instalments on certain dates, and provides that, on default in payment of one of the instalments the whole of the money shall then become due and payable, and be recoverable in execution, then, under Article 181 of the Limitation Act, 1908 limitation commences to run, when the first default is made. There has, however, been engrafted upon this general rule an exception in certain cases, the same being that if the right to enforce payment of the whole sum due upon default being made in the payment of an instalment has been waived by subsequent payment of the overdue instalment on the one hand and receipt on the other, then the penalty having been waived, the parties are remitted to the same position as they would have been as if no default had occurred.

In the present case, decree-holder Bank's own case is that the committed by the judgment-debtor in making payment of the instalments was ranging between 26 to 319 days, though the entire liability is stated to have been liquidated ahead of the last date fixed for payment of the last instalment, viz. 31st of December, 2000, the last instalment having been paid on the 3rd of December, 2000. The Bank discretely kept silent and deliberately did not choose to raise objection to delayed payments of the instalments. The Bank appears to have been interested in first getting the settled amount, and then to make an attempt up the judgment-debtors. By receiving the amount of the delayed instalments, without any objection whatsoever; the Bank created an impression in the mind of the judgment-debtors, that it had adopted non-contentious attitude and a clear stance of no grievance. By its own conduct the Bank had waived its right, having acquiesced in the delayed payments. Therefore, on the principle of conscious waiver of its objection to the delayed payment of instalments, the Bank must be held to have given up its grievance and consequently the right to invoke the penalty clause. It is too late for the Bank to turn round and try to go behind it, and get out of its own conduct. Since the Bank had elected to take benefit under the settlement, it must also bear the burden created thereby on the well-established principle of estoppel by acquiescence and waiver which is based on the oft-quoted expression that where a person had been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.

The Courts would refuse to enforce contractual terms in a manner that would unjustly and in an unreasonable manner prejudice the borrower. In the Common Law this was done by the intervention of Equity. Its best-known example is the introduction of the "equity of redemption" in mortgage matters. In the field of contract law this was done by striking down the clauses by which "penalties" were incorporated to be paid by the borrower in case of certain named eventualities. Historically, equity would not impose harsher conditions on a borrower by the modalities of enforcement chosen by a lender which could have been avoided by a more open enforcement of the contractual rights available to such a lender. In England, Courts of Equity will, in cases which have become well defined, relieve against the rigours of the Common Law and for the purpose of this case, two heads of relief are relevant. A Court of Equity will relieve against a penalty and will also, refuse to enforce strictly stipulations as to time where it is satisfied that the parties themselves did not intend those stipulations to be acted upon strictly. This approach was juridically justified by reliance on legal theories that in terrorem liability could not be imposed by contract.

Moreover, a Bank which has a clear fiduciary position with respect to a borrower if it does not act promptly and in accordance with its contractual rights at the appropriate time for enforcement of its claims when due, it cannot be permitted in good conscience to proceed against a borrower in stages with the aim of amassing the highest amount of money from the borrower. The Courts as guardians of the public under a Constitutional system of Government cannot allow such enforcement of penalties against the citizens. The law presumes that a public financial institution will act in good faith with vast resources at its command when seeking relief against the borrowers. Scrutiny of the steps the Banks take in such a process will be closely watched by the superior Courts to ensure that public authority is properly exercised, and is not misused.

The Bank cannot claim predetermined liquidated damages from its customer even though-there might be a clause to that effect in the agreement, unless evidence is led to prove such loss suffered by the Bank from breach of contract committed by customer by delaying payment.

Bank having not exercised its right by invoking the penalty clause in the Deed of Compromise, at the relevant time, is deemed to have waived its right, consequently the execution petition, being not maintainable was dismissed accordingly.

Chunilal v. Shivram AIR 1950 Bom. 188; Ganeshlal v. Ramgopal AIR 1955 Raj. 17; Federation of Pakistan v. Bibi Shaidae Fatima PLD 1968 Kar. 31 and Bank of Credit and Commerce v. Messrs Global Produce 1998 MLD 1759 distinguished.

Jwala Ram v. Mathra Das AIR 1931 Lah. 696; Burjorji v. Madhavlal AIR 1934 Bom. 370; Narayan Chandra v. Nath Bank Ltd. AIR 1967 Pat. 124; Muslim Commercial Bank Ltd. v. Perwani Export and Import Trading Co. 1999 YLR 975; Agricultural Development Bank of Pakistan v. Jasarat Hussain 2002 CLD 93; Gopal v. Alagirisami AIR 1942 Mad. 581; Joti Prasad v. Sri Chand AIR 1928 All. 629; Ram Prasad Ram v. Jadunandan Upadhia AIR 1934 All. 534; Ranglal v. Syamlal AIR 1946 Cal. 500; Muhammad Ali v. China Silk House. 1985 CLC 679; Norton v. Wood (1829) IR&M 178; Nilmadhub Jchuckerbutty v. Ramjsodoy Ghose (1883) ILR Cal. 857; Radha Prasad Singh v. Bhagwan Raj (1883) ILR 5 All. 289; Nagappa v. Ismail (1889)'12 Mad. 191; Kashiram v. Pandu (1902) ILR 27 Bom.l; Easin Khan v. Abdul Wahab Sikandar 15 IC 10; Gopal Mal. v. Gopal Singh Hira Singh AIR 1928 Lah. 378; Hanmant Bhimrao v. Gururao Swamirao AIR 1943 Bom. 36; Salyauarayana v. Yelloji. Rao AIR 1965 SC 1405; Najmuddin v. Zamir Ahmad PLD 1982 Kar. 188; Yaqoob Ali v. Ismail 1987 CLC 526; Halsbury's Laws of England, 3rd Edn., Vol.14, p.637 and Halsbury's Laws of England, 3rd Edn., Vol. 14, p.638 ref.

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

----O. VI, R.1---Pleadings---Evidence on the matter extraneous to the pleadings could not be considered by the Court.

Ghulam Rasool v. Muhammad Khan 1999 MLD 883 ref.

Kh. Aamer Farooq for Petitioner.

Nomaan Akram Raja for Respondents.

Date of hearing: 16th January, 2004.

2004 C L C 759

[Lahore]

Before Muhammad Sayeed Akhtar, J

MUNICIPAL CORPORATION, FAISALABAD through Mayor and others---Petitioners

Versus

Messrs FAISALABAD OIL REFINERY (PVT.) LIMITED through Chief Executive and others---Respondents

Civil Revisions Nos.1860, 1427 of 1990 and Writ Petition No.63 of 1988, decided on 5th June, 2003.

(a) Punjab Local Government Ordinance (VI of 1979)---

----Ss. 6, 137, 138 & 139---Punjab Local Councils (Taxation) Rules, 1980, R.4---Imposition of octroi tax in extended territorial limits---Rates in force in existing rating area would not become ipso facto applicable to the extended territorial limits making it area of charge---Newly included areas would not ipso facto become rating areas--Without adopting the procedure prescribed by Punjab Local Councils (Taxation) Rules, 1980--­Without providing an opportunity of inviting objections to the proposed levy, the imposition of Octroi Tax by the Rating Authority would be contrary to law as taxpayers would be deprived of their valuable right to object to imposition of tax.

Messrs Chaudhri Wire Rope Industries (Private) Limited Muridke through its General Manager v. Secretary to the Government of the Punjab and Rural Development Department, Lahore and 3 others 1994 CLC 1060 ref.

(b) Punjab Local Government Ordinance (VI of 1979)---

----S. 6(5)---Altering the limits of Local Council---Powers of Government---Government under S.6(5) Punjab Local Government Ordinance, 1979 was empowered to alter the limits of a Local Council--­Government for effective change appearing to it desirable in the interest of effective and convenient Local Government, could review the boundaries of a Local Council---No legal requirement was provided in Punjab Local Government Ordinance, 1979 for inviting objections before issuing Notification for alteration of boundaries of a Local Council and Notification in that respect could not be quashed on that ground.

Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation PLD 1967 SC 241; The Chittaranjan Cotton Mills Ltd. v. The Commissioner Narayanganj Municipality and The Province of East Pakistan PLD 1958 SC (Pak.) 430; Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others PLD 1986 Quetta 148; Sindh Fine Textile Mills Ltd., Karachi v. Peoples Municipality, Shikarpur and 2 others PLD 1978 Kar. 449; Messrs Khayal Muhammad & Sons v. Chairman, Municipal Committee, Jhelum and 3 others PLD 1985 Lah. 545 and Sunshine Cotton Mills Ltd. Sheikhupura v. Administrator, Municipal Committee, Sheikhupura and 3 others PLD 1978 Lah. 263 and Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and another 1990 CLC 1732 ref.

Aamer Raza A. Khan for Petitioner.

Abid Hassan Minto and Fiza Ullah for Respondent No. 1.

Ch. Muhammad Bashir, A.A.-G. for Respondent No.2.

Ch. Muhammad Khurshid for Respondent No.3.

Dates of hearing; 20th and 22nd May, 2003.

2004 C L C 780

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. RIFFAT YASMEEN‑‑‑Petitioner

Versus

SECRETARY and others‑‑‑Respondents

Writ Petition No. 11995 of 2003, decided on 9th September, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 4 & 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­High Court had ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law by virtue of Art.4 of the Constitution while exercising powers under Art.199 of Constitution.

Pakistan through Secretary v. M. Himayatullah PLD 1969 SC 407; Jalal‑ud‑Din's case PLD 1992 SC 207 and H.M. Rizvi's case PLD 1981 SC 612 ref.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. on Court's call.

Date of hearing: 9th September, 2003.

2004 C L C 791

[Lahore]

Before Maulvi Anwarul Haq, J

Syed REHAN SHAH and others‑‑‑Petitioners

Versus

Syed KAFAIT HUSSAIN SHAH and others‑‑‑Respondents

Civil Revision No.327‑D of 1996, decided on 8th May, 2003.

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

‑‑‑‑S. 42‑‑‑Transfer of Property Act (IV of 1882), Ss.53‑A, 54 & 55‑‑­Suit for declaration‑‑‑Sale of property, proof of‑‑‑Plaintiffs had claimed that suit property owned by defendants was sold out to plaintiffs through agreement of sale on consideration and that possession was delivered to plaintiffs‑‑‑Defendants in their written statement had totally denied having entered into agreement of sale with plaintiffs and having received any money or to have delivered possession to the plaintiffs‑‑‑Plaintiffs could not prove execution of alleged sale agreement in their favour by any evidence and also could not prove matter of taking possession of suit-­land which was lying vacant‑‑‑No construction was made on suit‑land and there was no boundary wall which could hardly make out a case of delivery of possession and part performance of alleged agreement of sale‑‑‑Plaintiffs having failed to prove execution of agreement of sale in their favour and taking possession of suit property, Trial Court had rightly dismissed suit and Appellate Court was not justified to set aside judgment and decree of Trial Court.

Fazla v. Mehr Din and 2 others 1997 SCMR 837 ref.

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

‑‑‑‑S. 42‑‑‑Transr of Property Act (IV of 1882)‑‑‑S.53‑A‑‑‑Suit for declaration‑‑‑Part 'performance‑‑‑Protection of S.53‑A of Transfer of Property Act, 1882, was subject to condition of document in writing executed by or on behalf of transferor and delivery of possession under same‑‑‑Neither any agreement of sale had been proved nor its performance including payment of consideration or delivery of possession had been established‑‑‑Plaintiffs were not entitled to protection of S.53‑A of Transfer of Property Act, 1882 and Trial Court had rightly dismissed the suit‑‑‑Appellate Court was not justified to set aside judgment and decree of Trial Court.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Ch. Afrasiab Khan for Respondents.

Date of hearing: 8th May, 2003.

2004 C L C 795

[Lahore]

Before Syed Zahid Hussain, J

Hafiz ABDUL AZIZ‑‑‑Petitioner

Versus

MEMBER, (JUDICIAL‑IV), BOARD OF REVENUE, PUNJAB and 10 others‑‑‑Respondents

Writ Petition No.2638 of 2003, decided on 6th November, 2003.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 15 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre­emption ‑‑‑Suit was concurrently decreed by two Courts below holding that pre‑emptor had superior right of pre‑emption ‑‑‑No scope for interference in concurrent findings of fact of Courts below existed in Constitutional jurisdiction of High Court.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4, 21 & 25‑‑‑Suit for pre‑emption ‑‑‑Deposit of pre‑emption money‑‑‑Extension of time to deposit pre‑emption money‑‑‑Court, keeping in view the facts and circumstances of a case, could allow extension in making deposit of pre‑emption money‑‑‑Pre‑emption money which was to be deposited in the year 1984, was allowed to be deposited in year 2001 whereas pre‑emptor had remained in possession of suit‑land during said 18 years‑‑‑Inequity had indeed occurred of which Court could not be oblivious ‑‑‑Pre‑emptor/decree‑holder who remained in possession of suit‑land and having failed to deposit decretal amount, could not be allowed to deposit same decretal amount after a lapse of about 18 years as that would be unjust, unfair and unreasonable‑‑‑Maintaining original decree and order extending time in making deposit of pre‑emption money, matter was remitted to Executive District Officer concerned to determine present equivalent worth of decretal amount with reference to date, it was required to be deposited‑‑‑Decretal amount having been deposited by pre‑emptor, whatever difference would be found, would be ordered to be deposited within reasonable time.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; Muhammad Ismail v. Muhammad Ashraf PLD 1982 Lah. 197; Muhammad Siddiq v. Mst. Shakeela Jamil 1983 CLC 1705; Muhammad Shabbir v. Bashir Ahmad 1974 SCMR 24; Nazir Ahmad v. Ghulama and another 1987 SCMR 1704 ref.

Pervaiz Inayat Malik for Petitioner.

Fazal Miran Chohan for Respondents Nos. 1 and 2.

Saleem Akram Ch. for Respondents Nos.4 to 10.

Nemo for Respondent No. 11.

Date of hearing: 6th November, 2003.

2004 C L C 799

[Lahore]

Before Syed Jamshed Ali and Muhammad Ghani, JJ

Mst. MAZHAR KHANUM‑‑‑Appellant

Versus

Sheikh SALEEM ALI and 7 others‑‑‑Respondents

Regular Second Appeal No.58 of 1990, decided on 8th March, 2004.

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

‑‑‑‑O. VII, R. 11‑‑‑Provision of O. VII, R. 11, C.P.C. is not exhaustive of all situations in which a plaint can be rejected.

Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878; Muhammad Akram v. Muhammad Rafi 1989 CLC 15 and Fazal‑ur‑Rehman v. Pakistan 1987 SCMR 1036 ref.

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

‑‑‑‑O. VII, R. 11‑‑‑Court when can look beyond the contents of the plaint itself‑‑‑Principles.

It is the duty of the plaintiff to lay his cards on the table before the Court and to disclose all relevant facts forming the background of the dispute as a whole, without in any manner, suppressing any material fact or aspect of the case. He should not deliberately conceal the earlier litigation, if any, with malicious and vexatious design. In a case where the suit of the plaintiff is conceived out of motives and unbecoming tactics and tricks designed to harass the defendant, the latter has every right to seek indulgence of the Court to look beyond the contents of such a plaint. And, if the defendant brings to the notice of the Court facts which, though in existence at the time the suit was filed by the plaintiff, who was supposed to plead the same, but were withheld for any reason whatsoever, the Court cannot shut its eyes, and to sit as a mute spectator, rather it must take into consideration already existing relevant facts, brought to its notice through the written statement and the undisputed documents filed in support thereof, and treating those facts as an integral part of the plaint, it would be justified to determine whether the suit is ultimately to fail, and, if so, not to subject the defendant to the rigours of a protracted trial, inconvenience, waste of time and money, besides mental agony and torture. If on consideration of the overall facts and circumstances, the Court comes to a definite conclusion, without unduly leaning towards the defendant and at pains of unnecessarily stretching the facts in his favour, with obvious motive to shutting out altogether the plaintiff once for all, it can certainly put an end to the matter.

Ghulam Murtaza Bhatti for Appellant, Respondents Nos. 1 and 3 in person.

Dr. Sohail Akhtar for Respondents Nos.2, 4 and 6.

Respondents Nos.5, 7 and 8 proceeded ex parte.

Dates of hearing: 12th, 25th November; 3rd, 4th, 8th to 11th, 15th to 16th December, 2003; 12th to 15th January, 19th to 22nd and 26th January 2004.

2004 C L C 822

[Lahore]

Before Muhammad Khalid Alvi, J

JAN MUHAMMAD ‑‑‑Petitioner

Versus

THE VICE‑CHANCELLER, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others‑‑‑Respondents

Writ Petition No.5196 of 2002, heard on 7th August, 2002.

Statutes and Regulations for Degree of Bachelor of Law three years Course, Bahauddin Zakriya University, Multan‑‑‑--

‑‑‑‑Regln. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Grace marks, grant of‑‑‑Appearing in examination "in parts"‑‑‑Petitioner could not make the aggregate pass marks in LL.B. Part I examination‑‑‑Contention of the petitioner was that he took the examination as whole and was entitled to five grace marks‑‑‑Validity‑‑‑Interpretation of words "in parts" was not supported by any provision of law‑‑‑If a candidate appeared in an examination as a whole but was declared "failed" as a whole or had secured compartment in some subjects, such candidate could not be termed that he had been appearing "in parts" because he had originally appeared as a whole in all six subjects‑‑Candidate, who appeared in all subjects, and if he failed to qualify in any one of the subjects and he had to re‑appear in that subject, the case of such candidate would fall "in parts" and he would not be entitled to any grace marks‑‑‑If candidate had appeared in all subjects for first time and he was short of five marks either in one or more subjects or he was short of five marks in his aggregate, then the candidate was entitled to secure five grace marks‑‑‑Petitioner was not entitled to five grace marks in circumstances.

1998 CLC 5 ref.

Mian Habib‑ur‑Rehman Ansari for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2004 C L C 828

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

KHAN MUHAMMAD JAVED‑‑‑Petitioner

Versus

Mst. HAFEEZAN NASREEN and another‑‑‑Respondents

Writ Petition No. 13319 of 2003, heard on 19th January, 2004.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑ Laches‑‑‑ Principle of estoppel‑--Applicability‑‑‑‑Husband divorced his wife and sent a notice to Chairman Arbitration Council‑‑‑Proceedings were initiated on the notice and resultantly divorce effectiveness certificate was issued by the Chairman‑‑‑During the pendency of appeal against judgment and decree passed against the husband in the suit for maintenance filed by the wife, the husband asserted that the divorce was not effective‑‑‑Validity‑‑‑If the husband was aggrieved by any action of the Chairman Arbitration Council, he could have earlier, challenged the same or refused to obey his directions but the husband had duly complied with the directions passed by the Chairman, issued notice of divorce and did not challenge the omission on any action earlier‑‑‑Husband was estopped by his conduct‑‑‑Omission on action taken on the divorce at the time when maintenance decree was passed against the husband and appeal against the same was pending adjudication before the Appellate Court, the Constitutional' petition suffered from laches as it was an afterthought after the maintenance decree had been passed by the competent Court‑‑­Petition was dismissed in circumstances.

Sardar Umar Draz Khan for Petitioner.

Ch. Irshad Ullah Chatha for Respondents.

Akhtar Ali Qureshi, A.A.‑G. for Respondent No.2.

Date of hearing; 19th January, 2004.

2004 C L C 834

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABU BAKAR HAIDER SHAH‑‑‑Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 16618 of 2003, heard on 17th February, 2004.

(a) Colony Manual (Punjab)‑‑‑

‑‑‑‑ Paras. 322 & 323‑‑‑Term "Mueen"‑‑‑Connotation ‑‑‑Mueen, in a village, is a person who serves the people/inhabitants of the village, performing their functions in different categories like Dhobi (washerman), Tarkhan (Carpenter), Chowkidar (Watchman) and Chuhra (sweeper) etc.‑‑‑All these persons serve the villagers/people and are known as village servants.

(b) Words and phrases‑‑--

‑‑‑‑‑ Servant"‑‑‑Meaning.

Chambers English Dictionary ref.

(c) Words and phrases—­

‑‑‑"Serve"‑‑‑Meaning.

Chambers English Dictionary ref.

(d) Words and phrases‑--

‑‑‑‑"Menial"‑‑‑Meaning.

Chambers English Dictionary ref.

(e) Words and phrases‑‑

‑‑‑‑"Servile"‑‑‑Meaning.

Chambers English Dictionary ref.

(f) Colony Manual (Punjab)‑--

‑‑‑‑Paras. 322 & 323‑‑‑Government of Punjab Colonies Department letter No. 12331‑71‑TV/3348‑CL, dated 8‑11‑1971‑‑‑Imam Masjid, status of‑‑­Allotment of land to Imam Masjid‑‑‑Scope‑‑‑Imam Masjid is not covered within the definition of "personal servants" to the villagers, he is a person who is servitor of "mosque" and leads people in prayers to Almighty Allah‑‑‑Government of Punjab Colonies Department vide letter No.12331‑71‑TV/3348‑CL, dated 8‑11‑1971, has excluded Imam Masjid from the list of Mueen but he has been given the right for allotment of four acres of land for his subsistence‑‑‑Imam is a person who is equipped with sufficient religious knowledge and can recite the Holy Qur'an in a better way‑‑‑Imam is a respectable person to the locality having sufficient religious knowledge and is pious man who is neither subordinate to Lambardar of the village nor any of the Colony/Revenue Officers‑‑‑Imam of a village mosque cannot be said a Kammi, or Mueen.

Muhammad Shafi v, Muhammad Abdul Rahim AIR 1930 Lah. 476. page 37 ref.

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

‑‑‑‑S. 3‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.7‑‑‑Colony Manual (Punjab), Paras 322 & 323‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Imam Masjid, appointment of‑‑­Jurisdiction of Revenue Authorities‑‑‑Dispute was with regard to the appointment of Imam Masjid, and Imam appointed by the inhabitants of village had been removed by Revenue Authorities‑‑Validity‑‑‑Collector was competent and empowered to appoint a village watchman or Chowkidar but he was not empowered to appoint any other servant of the village‑‑‑Appointment of Imam was the right/prerogative of the people of area/village where the mosque was situated for which Imam was to be appointed‑‑‑Observation of Revenue Authorities that Imam was included within the category of menial was in conflict with the Injunctions of Islam and the observation was not sustainable in law‑‑‑Collector, while appointing Imam of village, had exceeded his jurisdiction under S.3 of Colonization of Government Land (Punjab) Act, 1912, who was only competent to allot land to Imam Masjid but he had no authority/power to appoint the Imam‑‑‑High Court, while following the principles enunciated by Islamic Jurisprudence, declared the vacancy of Imam vacant and further directed the authorities to fill the same with the consultation of respectable persons of the locality‑‑‑Constitutional petition was allowed accordingly.

Mian Khalid Habib Elahi for Petitioner.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 17th February, 2004.

2004 C L C 851

[Lahore]

Before Abdul Shakoor Paracha, J

SAEED AHMAD CHAUDHRY‑‑‑Appellant

Versus

BISCO KNITWEAR (PVT.) LIMITED and 11 others‑‑‑Respondents

First Appeal from Order No.41 of 1998, heard on 22nd January, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 47, 104 & O.XXI, Rr.22, 23(2), 46‑‑‑Appeal against order‑‑­Maintainability‑‑‑Execution of decree‑‑‑Issuance of notice‑‑‑Attachment of property not in possession of judgment‑debtor‑‑‑Objector owned one company and was share‑holder of the other company against which decree had been passed‑‑‑Executing Court, on the application of decree­ holder, issued notices under O.XXI, R.22, C.P.C. to the objector and his company‑‑‑Objection petition was filed on the ground that as neither the objector nor his company were party to the suit and no decree was passed against them, therefore, notice under O.XXI, R.22, C.P.C. could not be issued to them‑‑‑Executing Court deleted the name of the company owned by the objector but the property of the objector was attached under O.XXI, R.46, C.P.C.‑‑‑Validity‑‑‑Executing Court passed the order on the application of decree‑holder under O.XXI, R.46, C.P.C. through which order the objection petition to the extent of the company owned by the objector was accepted and the name of his company was deleted from the proceedings of the execution of the decree‑‑‑Order was passed by Executing Court under O.XXI, R.46, C.P.C. on the application of decree‑holder and not under S.47, C.P.C., therefore, the share‑holders of the company against which the decree had been passed, it was no ground to implead him in execution petition‑‑‑Executing Court had rightly passed the order, whereby the name of the company owned by the objector was deleted‑‑‑Appeal was dismissed in circumstances.

R. M. A. R. A. Adaikappa Chettiar and another v. R. Saeed Ahmad Chaudhry v. BISCO Knitwear (Pvt.) Ltd. Chandrasekhara Thevar PLD 1947 PC 27.9; M., Desikachariar v. Ramachandra Reddiar AIR 1951 Mad. 56; Lachhoo v. (Firm) Munnilal Babu Lal AIR 1935 All. 183 and Gopal Das and another v. Ishar Das and others AIR 1932 Lah. 376 ref.

Qazi Zahid Hussain for Appellant.

Sh. Ziaullah for Respondents Nos. 1 to 10

Ashiq Rasool for Respondents Nos. 11 and 12.

Date of hearing: 22nd January, 2004.

2004 C L C 857

[Lahore]

Before Abdul Shakoor Paracha, J

BASHIR AHMAD‑‑‑Petitioner

Versus

RIZWAN SAEED and others‑‑‑Respondents

Civil Revision No.468 of 2003, decided on 6th May, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Status quo‑‑‑Both the parties were claiming to be in possession of the suit property; status quo was directed to be maintained at the site and whosoever was in possession of the disputed property, would not be disturbed by the other side‑‑‑High Court directed the Trial Court dispose of the case on merits within specified period.

Mst. Shamail Begum v. Gulzar Begum and 3 others 1994 SCMR 818 and Muhammad Aslam and another v. Muhammad Azeem and 2 others 2000 MLD 893 ref.

Zafar Iqbal Chohan for Petitioner.

Mian Ijaz Hussain for Respondent No.3.

Date of hearing; 6th May, 2003.

2004 C L C 862

[Lahore]

Before Sh. Hakim Ali, J

Ch. MUHAMMAD AKMAL‑‑‑Petitioner

Versus

FAISAL SAEED MIRZA and others‑‑‑Respondents

Second Appeal from Order No.10 of 2003/BWP, decided on 2nd October, 2003.

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

‑‑‑‑Ss. 2(b), 3‑A & 13‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑­Rent Controller‑‑‑Status of‑‑‑Forum of Rent Controller was not a `Court' in stricto senso, but Rent Controller would act as quasi‑judicial Authority‑‑‑Provisions of Civil Procedure Code, 1908 were not applicable to that forum.

Syed Zahid Hussain Zaidi v. Muhammad Iqbal and another PLD 1981 Lah. 215 ref.

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

‑‑‑‑Ss. 2(c)(i) & 13‑‑‑Ejectment application‑‑‑Relationship of landlord and tenant‑‑‑Agreement to sell premises‑‑‑Effect‑‑‑Tenant denied existence of relationship of landlord and tenant between the parties alleging that predecessor‑in‑interest of landlord had entered into agreement to sell premises in question in favour of tenant‑‑‑Tenant had also stated that he had filed a suit for specific performance of contract on basis of said agreement to sell‑‑Validity‑‑‑Agreement to sell, would not create any right in property itself, but same only would grant right to get contract completed through decree for specific performance of contract from Civil Court, if alleged vendor had refused to perform and execute alleged contract‑‑‑No mention had been made, in the alleged agreement, with regard to existence of tenancy, but it had simply been stated therein that after execution of said agreement, relationship of landlord and tenant would stand terminated‑‑‑No useful purpose would be served in remanding the case to Rent Controller for framing issues‑‑‑Rent Controller had not to decide fact of sale and purchase allegedly made between the tenant and predecessor‑in‑interest of landlord as Civil Court, which was seized of the matter was competent to decide such dispute and if tenant succeeded, he would have the chance for recovery of possession in case of his ejectment ‑‑‑Till. decision of said civil suit, ejectment proceedings could not be stayed.

Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Muhammad Amjad v. Mst. Rehana Kausar 2001 YLR 939 ref.

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

‑‑‑‑S.13‑‑‑Ejectment proceedings‑‑‑Non‑framing of issue regarding existence of relationship of landlord and tenant‑‑‑Effect‑‑‑No prejudice had been caused to tenant due to non framing of issue of relationship of landlord and tenant because relationship of landlord and tenant was an admitted fact, while alleged agreement to sell was a disputed fact and foundation laid by tenant on alleged disputed agreement to sell was to be decided by Civil Court before which suit for specific performance of said agreement was pending.

Ghulam Rasool v. Mian Khurshid Ahmad 2000 SCMR 632 ref.

Mian Faizul Hassan and Malik Muhammad Hanif Ghaffari for Petitioner.

Sh. Karimuddin for Respondents Nos. 1 to 9

2004 C L C 889

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD ARIF SINDHU‑‑‑Petitioner

Versus

UNIVERSITY OF THE PUNJAB, LAHORE through Vice‑Chancellor, Lahore and another‑‑‑Respondents

Writ Petition No.8571 of 1996, decided on 22nd April, 2003.

Calendar of University of the Punjab (1990)‑‑‑--

‑‑‑‑Regln. 23‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Educational institution‑‑‑Re‑evaluation of answer book ­Petitioner/candidate who appeared in F.E.L. First Annual Examination, 1991 failed in Papers I and IV‑‑‑Candidate again appeared in Supplementary Examination, 1992 in the said two papers arid cleared Paper IV and was declared unsuccessful in Paper I‑‑‑Vice‑Chancellor on the application by the candidate, acting under Regln.23 of Calendar of University of Punjab, 1990 asked one Professor to re‑evaluate the answer book of the candidate‑‑‑Professor, after re‑evaluation, found the candidate entitled to 40 marks, the minimum required pass marks in the said paper‑‑‑Vice‑Chancellor after more than 8 months again asked the Principal, Law College to re‑evaluate answer book of the candidate in the same paper which had already been re‑evaluated‑‑‑Candidate on second re‑evaluation, was found entitled to 38 marks‑‑‑Vice‑Chancellor on the basis of second re‑evaluation found that on average of two evaluations, candidate was entitled to 39 marks and in circumstances candidate failed in the said paper by one mark‑‑‑Record had not shown that earlier re‑evaluation by the Professor in which candidate was found entitled to 40 marks in the relevant paper, was not acceptable or was discarded by the order passed by Vice‑Chancellor‑‑­Re‑evaluation having duly been done by Professor, University Authorities, could not suo motu, direct re‑evaluation by another Professor‑‑‑After more than 8 months of first re‑evaluation, another evaluation by another examiner was not justified‑‑‑Candidate, according to first re‑evaluation, had minimum qualifying marks in Paper I, he would be deemed to have passed Supplementary F.E.L Examination.

University of Punjab through Vice‑Chancellor, Lahore and another v. Mrs. Ruhi Farzana and 3 others 1996 SCMR 263 and Shereen Masood v. University of the Punjab through the Vice‑Chancellor, Lahore 1985 CLC 2987 ref.

Muzamil Akhtar Shabbir for Petitioner.

Syed Mohsin Abbas for Respondents.

Date of hearing: 22nd April, 2003.

2004 C L C 892

[Lahore]

Before Muhammad Zafar Yasin, J

AMMARA HASNAIN‑‑‑Petitioner

Versus

VICE‑CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and another‑‑‑Respondents

Writ petition No‑699 of 2003, decided on 19th March, 2003.

Bahauddin Zikariya University, Multan Regulation‑‑‑--

‑‑‑‑Regln: 13(b)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Application by the petitioner for re‑evaluation of M.B.B.S. Pharmacology paper was rejected by the University through impugned order on the ground that the answer book was justly evaluated‑‑‑Grievance of the petitioner was that impugned order passed by the respondent under Regulation 23(b) of the Regulations was illegal and unwarranted by law‑‑‑Validity‑‑‑No irregularity was found with evaluation on perusal by the High Court of original answer‑sheet and order of the University and verification by the petitioner of her handwriting and marks on the original answer‑sheet‑‑‑Discretion of the University under the Regulation to get a particular answer book ,re­marked was available only in exceptional cases as same required the existence of strong grounds to believe that the same was not justly evaluated‑‑‑University, in circumstances, had thus, exercised the jurisdiction vested in it in accordance with law and no illegality or material irregularity was found in the impugned order.

Muhammad Irfan Wyne for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2004 C L C 902

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASHIQ and 2 others‑‑‑Petitioners

Versus

MUHAMMAD ASLAM and another‑‑‑Respondents

Civil Revision No.2055 of 1985, heard on 16th February, 2004.

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

‑‑‑‑Ss. 96 & 115‑‑‑Issues not assailed in appeal before Appellate Court‑‑‑Effect‑‑‑Such issues cannot be challenged before High Court in exercise of revisional jurisdiction under S.115, C. P. C.

Government of the Punjab v. Prof. Mst. Jamida Malik 1991 MLD 824 and Safdar Ali through his legal heirs v. Muhammad Malik 1995 CLC 1751 ref.

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

-‑‑S. 8‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Recovery of possession of immovable property‑‑‑Oral sale, assailing of‑‑‑Unregistered sale receipt‑‑‑Provisions of Transfer of Property Act, 1882‑‑‑Applicability‑‑‑Concurrent findings of facts by the Courts below‑‑‑Plaintiffs sought recovery of possession on the basis of an unregistered sale receipt‑‑‑Trial Court decreed the suit in favour of the plaintiffs and the judgment and decree was maintained by Appellate Court‑‑‑Plea raised by the defendants was that the receipt was an unregistered document and the same should not have been relied upon by the Courts below‑‑‑Validity‑‑‑Transfer of Property Act, 1882, being not applicable in whole of the Punjab, condition precedent qua the application of Transfer of Property Act, 1882, to issue a notification to this effect, was not applicable to the general sales of immovable agriculture as well as residential properties in rural, areas‑‑‑No legal bar existed qua the oral sale of agricultural land or rural residential properties of the value of Rs.100 and more‑‑‑Both the Courts below were justified to hold that original owners could sell the suit‑land to the plaintiffs through oral sale‑‑‑Judgments and decrees passed by both the Courts below were in accordance with the law‑‑‑Sale receipt relied upon by the plaintiffs was not a document through which the sale was completed between the original owners and the plaintiffs, therefore, the receipt was not compulsorily registerable under the provisions of Registration Act, 1908‑‑‑Both the Courts below had given concurrent findings of fact against the defendants who had failed to point out any piece of evidence which was misread or non‑read by the Courts below or violated any principle of law‑‑‑High Court declined to interfere in the concurrent findings of both the Courts below as there was no infirmity or illegality committed in the judgments‑‑‑Revision was dismissed in circumstances.

(c) Administration of justice‑‑‑

‑‑‑‑ Each and every case is to be decided on its own peculiar circumstances and facts.

Malik A. Wahid for Petitioners.

M.A. Ghaffar‑ul‑Haq for Respondents.

Date of hearing: 16th February, 2004.

2004 C L C 947

[Lahore]

Before Tassaduq Hussain Jilani, J

JAFFAR HUSSAIN ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law, Justice and Human Rights Division, Islamabad and 3 others‑‑‑Respondents

Writ Petition No.9770 of 2003, decided 29th December, 2003.

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

---Art. 199‑‑‑Establishment of the Office of Wafaqi Mohtasib (Ombudsman) [Presidents Order I of 1983], Art.32‑‑‑Constitutional petition‑‑‑Petitioner's mother was a policy‑holder with Insurance Corporation and after her death the insurance claim by the petitioner, being the nominee, was declined by the Corporation on the ground that the policy had acquired paid up value for non‑payment of late fee by the policy‑holder that was required with her last delayed payment of premium ‑‑‑Wafaqi Mohtasib decided the insurance claim matter in petitioner's favour ‑‑‑Wafaqi Mohtasib's order was challenged before the President of Pakistan by the Corporation who through the impugned order set aside the order of the former‑‑‑Petitioner through Constitutional petition challenged the impugned order on the grounds that the claim had been wrongly refused and the petitioner's case was covered under insurance policy of the Corporation‑‑‑Premium for the insurance policy due in March, 1999 was paid late to the Corporation by the petitioner on 13‑3‑2000‑‑‑Such delayed premium amount was kept in the suspense account until the fee for the late payment was deposited with the Corporation‑‑‑Notice to pay late fee was sent on 18‑3‑2000 and on the next day the policy stood paid up on 19‑3‑2000‑‑‑Nothing was available on record to indicate that the notice for deposit of the late fee was ever received by the petitioner‑‑‑For a meager sum comprising late fee, the entire claim of the petitioner could not be repudiated‑‑‑Corporation had acted against its policies and had wrongly repudiated the claim of the petitioner and unjustly delayed the matter.

(b) Insurance Ordinance (XXXIX of 2000)‑‑‑

‑‑‑‑S. 118‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Liquidated damages‑‑‑Insurance claim‑‑‑Where a claim matter was unjustly prolonged by the Insurance Corporation to the detriment of the petitioner, the petitioner was entitled to liquidated damages, alongwith the insurance claim, under S.18 of the Insurance Ordinance, 2000.

Liaquat Ali Butt for Petitioner.

Ibrar Ahmad and Tariq Naseem for Respondents.

2004 C L C 955

[Lahore]

Before M.A. Shahid Siddiqui, J

AISHA HAIDER and others‑‑‑Petitioners

Versus

PAKISTAN MEDICAL DENTAL COUNCIL, ISLAMABAD through Secretary and 5 others‑‑‑Respondents

Writ Petitions Nos.2633, 2565 and 4354 of 2003, decided on 22nd December, 2003.

(a) Interpretation of statutes‑‑‑

‑‑‑‑Concession given by statute‑‑‑Duty of Court‑‑‑Scope‑‑‑Courts are expected to interpret the concession in a literal and beneficial manner but when the law puts certain limitations in clear and unambiguous way, the Courts are not expected to travel beyond the prescribed limitations.

(b) Interpretation of statutes­---

‑‑‑‑ Power of Courts to interpret the law is not unfettered.

(c) University of Health Sciences, Lahore Ordinance (LVIII of 2002)‑‑­

‑‑‑‑Ss. 27(xi) & 31‑‑‑Calendar of the University of Punjab, Part X ‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Educational institution‑‑‑Concession of grace marks‑‑‑Parental jurisdiction, exercise of‑‑‑Harshness of statute‑‑‑Petitioners had appeared twice in Part‑I of First Professional M.B.,B.S. Examination and they had failed by a margin of one or two marks in each subject‑‑‑Petitioners had also taken the First Professional M.B.,B.S. Part II Examination under the direction of High Court, at their own risk‑‑‑Petitioners availed less than 5 grace marks in First Annual Examination and claimed balance grace marks out of 5 marks in Second Annual Examination‑‑‑Plea raised by the petitioners was that under Part‑X of Calendar of the University of Punjab, they were entitled to five grace marks in toto‑‑‑Validity‑‑­Petitioners could be granted concession only once, which they had availed in the First Annual Examination‑‑‑High Court in such‑like matters could exercise parental jurisdiction‑‑‑Petitioners had not availed the entire concession because of the restriction contained in Regulations‑‑‑Harshness of the statute could be removed by the framers of the law‑‑‑Syndicate and Academic Council had ample powers under Ss.27(xi) & 31 of University of Health Sciences, Lahore Ordinance, 2002, to relax the rules in exercise of parental jurisdiction in order to remove hardships to which not only the petitioners but their parents would also be exposed‑‑‑High Court expected that the Vice‑Chancellor of the University would place the representations of the petitioners before the appropriate authority for sympathetic consideration‑‑‑Constitutional petition was disposed of accordingly.

Ammara Hasnain v. Vice‑Chancellor, Bahauddin Zakria University and another Civil Petition No.842 of 2003 ref.

Ch. Pervaiz Aftab for Petitioner.

Malik Muhammad Rafiq Rajwana for Respondents Nos.2 and 3.

Muhammad Asif Ismail for Respondent No.4.

2004 C L C 964

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

MUHAMMAD ALAMGIR AMJAD and others---Appellants

Versus

MULTAN DEVELOPMENT AUTHORITY through Director-General and 5 others-- -Respondents

Intra-Court Appeals Nos.108, 112, 116, 117, 118 and 119 of 2002 in Writ Petitions Nos.7680, 7019, 97114 of 2001, 1385, 2619, 3620 and 3632 of 2002, heard on 5th March, 2003.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court Appeal---Lease of land---Amenity plot---Use of plot for commercial purpose---Cause of action, accrual of---Appellants were residents of locality where a plot measuring 28 acres of land was reserved for park---Grievance of the appellants was that the Development Authority had leased out a portion of the plot to a private party for the purpose of establishing amusement and recreational park on commercial basis---Out of the total area of 28 acres, 5 acres of land in shape of open lawn had been reserved for free access of all without any restriction---Area of 4 acres of land consisting of open lawn, jogging tracks and shops could also be used by everybody there being free access to it without charging any fee---Private party had established the amusement and recreational facilities which were against payment of fare charges---Act of the Development Authority was assailed in Constitutional petition which was dismissed---Contention of the appellants was .that the Authority could not lease out the plot for the commercial use--Plea raised by the Development Authority was that portion of the plot was leased out with the object to increase its income---Validity---Use of amusement and recreational facilities provided by the private party was not sufficient to hold that the park was being used for commercial purpose when the Authority itself had advertised that due to insufficiency of funds the disputed portion of the park was being leased out in order to meet the expenses---When about half portion of the park was being used for the same purpose by providing certain facilities of amusements to the residents of the whole area by installing modern equipment, the appellants had no cause of action to challenge the same and more-so when it was not challenged at the time the process for leasing out was initiated---Land earmarked for the park was the property of the Development Authority and the Authority could lease out the same for its benefits---No illegality or improbability having been found in the judgment passed by the High Court in exercise of Constitutional jurisdiction, Intra-Court Appeal was dismissed.

Ahmad Khan v. Member (Consolidation), Board of Revenue Punjab, Lahore and others PLD 1990 SC 1070; AIR 1922 Lah. 292; AIR 1935 Lah. 95; PLD 1983 Pesh. 2; PLD 1970 (AJK) 66; 2001 YLR 2430 and 1999 SCMR 2908 ref.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.) Karachi and 4 others 1999 SCMR 2883 distinguished.

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

----Art. 199---Constitutional jurisdiction of High Court ---Equitable relief, providing of ---Laches---Applicability---Dispute was with regard to leasing out of a portion of park to a private party for establishing an amusement park---Advertisement in this regard was published in press in the year, 1998 and the petitioners assailed the lease in the year. 2001--­Petitioners earlier never approached the Authorities against the advertisements and even did not approach High Court when the agreement was executed or work was started---When some construction was already raised by the private party, the petitioners had approached High Court---Effect---Constitutional petition was hit by laches---Grant of relief in Constitutional jurisdiction was purely a discretionary relief and its refusal to the petitioners would be inequitable in circumstances.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Lease of land---Amenity plot---Use for commercial purpose---Failure to obtain "No Objection Certificate" from residents of the locality---Petitioners were the residents of the locality where the plot was reserved for park--­Grievance of the petitioners was that the Development Authority had leased out a portion of the plot to a private party for the purpose of establishing amusement and recreational park without obtaining "No Objection Certificate" from the residents of the Locality---Validity---"No Objection Certificate" as contended by the petitioners was not required by the Development Authority before leasing out the land to the private party to circumstances.

Alamgir Amjad for Appellants (in I. C. A. No. 108 of 2002).

Sh. Muhammad Faheem for Appellant (in I.C.As. Nos.116, 117, 119 of 2002).

Muhammad Rafique Rajwana for Respondent No.4.

Malik Muhammad Amin for M.D.A.

Ch. Altaf Hussain for N.B.P.

Hakeem Mehmood Khan for Union Council.

Date of hearing: 5th March, 2003.

2004 C L C 981

[Lahore]

Before Mian Saqib Nisar, J

JAVED IQBAL BUTT---Appellant

Versus

Sheikh FIYAZ ALI by L.Rs.---Respondents

Second Appeal from Order No.155 of 2003, decided on 11th February, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(2)(i)(3)(ii), 13(6) & 15(4)---Ejectment of tenant on grounds of default in payment of rent and bona fide personal need of landlord--­Non-compliance of tentative rent order---Striking off defence of tenant--­Rent Controller ordered tenant to deposit arrears of rent and also future rent in terms of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Tenant having failed to comply with tentative rent order, his defence was struck off---Tenant in preliminary objection in his written statement though had evasively took up position that rent was tendered to landlord and on his refusal to accept the same he started depositing same in the Court---Tenant, in circumstances, had accepted relationship of landlord and tenant between the parties---Tenant, in memo. of first appeal, had clearly conceded that, he was inducted in possession of shop in question as a tenant by landlord---Rent Controller, on basis of said admissions, made by tenant, directed the tenant to make deposit of arrears of rent and to pay future rent---Tenant under law could not disobey tentative rent order on ground that he had paid some money to widow of deceased landlord who was his attorney because such payment was not ,admitted by sons of deceased landlord which was an issue which could be resolved after evidence---Tenant was obliged to have first complied with, order under S.13(6) of Urban Rent Restriction Ordinance, 1959 and then to have proved his defence about the payment of said amount---Tenant of his own could not refuse to comply with tentative rent order of Rent Controller---Rent Controller and Appellate Authority below, in circumstances, had rightly struck off defence of tenant and ordered his ejectment ---No case for second appeal had been made out.

Dr. A. Basit for Appellant.

2004 C L C 992

[Lahore]

Before Mian Muhammad Akram Baitu, J

Syed WAQAS NOOR BUKHARI through his father---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others---Respondents

Writ Petition No.4736 of 2003, decided on 11th December, 2003.

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

----Art. 1.99---Constitutional petition---Grievance of the petitioner was that he sought admission on self-finance basis in the Electrical Department of the respondent-University and had to pay special admission charges for that purpose, but despite enhancement of self-finance seats after the affixation of three merit list he was not accommodated for admission unlike other awaiting candidates---Validity---Name of the petitioner did not come under merit list for self­ finance candidates even after the enhancement of seats and furthermore, the candidates, who were accommodated on the enhanced seats, had filed their admission forms and had obtained higher marks than the petitioner in the entry test---Constitutional petition being without any substance was, dismissed.

(b) Bahauddin Zakriya University Multan, Statutes Admission Regulation-----

----Regln. No. 13---Constitution of Pakistan (1973), Art. 199--­Constitutional petition--- Maintainability--- Admission--- Adequate alternate remedy, availability of---Effect---Objection was raised by the respondent-University that the petitioner instead of the Constitutional petition should have raised his grievance before the Appellate Admission Committee established under Regln. 13 of its Admission Regulations which provided for an adequate alternate remedy----Held, in the presence of an adequate alternate remedy the petition was liable to be dismissed.

Shahid Mahmood for Petitioner.

M. Tariq Rajwana for Respondent.

2004 C L C 995

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. GHULAM FATIMA ---Petitioner

Versus

MUHAMMAD MUNIR and 7 others---Respondents

Civil Revisions Nos.497/D, 381-D, 382-D and 472-D of 2000, heard on 16th December, 2003.

Co-sharer---

----Possession of---Immovable property---Possession---Dispute--­Resolution---Principles---Possession of one co-sharer of the property was possession of all the, other co-sharers---No co-sharer could be dispossessed from the property by force---Dispute among co-sharers with respect to possession of their property could be settled through partition of the same from a competent Court.

Abdul Rasheed Mian for Petitioner.

Ajmal Kamal Mirza for Respondents.

Date of hearing: 16th December, 2003.

2004 C L C 997

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD KHAN---Petitioner

Versus

DISTRICT COORDINATION OFFICER, BHAKKAR and others---Respondents

Civil Revision No.321 of 2003, decided on 16th January, 2003.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115 & O.VII R. 11---Suit for declaration and injunction---Rejection of plaint---Revision petition---Both Trial Court and Appellate Court accepting application of defendant filed under O. VII, R.11, C.P.C., rejected plaint and dismissed suit---Plaintiff in his plaint had specifically asserted that premises in dispute had been allotted to him and that allotment made in favour of private defendant was illegal as it was made during subsistence of allotment in favour. of plaintiff---No written statement had been filed by any of the defendants and assertion of plaintiff had yet to be admitted or. controverted by official defendants and official defendants had not filed application for rejection of plaint under O.VII, RAI, C.P.C.---Plaintiff in his plaint had claimed that premises in dispute was allotted-to him--­Validity---Unless such claim of plaintiff was controverted by official defendants, no reliance on any other material .could be placed by the "Court and at that stage neither suit could be dismissed nor plaint could be rejected---Order of Trial Court and judgment of Appellate Court, were not sustainable in law---High Court in exercise of its revisional jurisdiction, set aside concurrent judgments of Courts below with direction that Trial Court would proceed with suit in accordance with law.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 ref.

Saif-ul-Haq Ziay for Petitioner.

Allah Wasaya Malik for Respondent No.3.

Fawad Malik, A.A.-G. for other Respondents.

2004 C L C 1010

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD LATIF --- Petitioner

Versus

BASHIR AHMED and 7 others---Respondents'

Civil Revision No.64 of 1998, heard on 3rd March, 2004.

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

----Ss. 12 & 42---Suit for specific performance of an oral agreement to sell relating to land---Misreading and non-reading of evidence---During the pendency of suit the other defendants were impleaded in it on the ground that the defendant against whom the suit was filed had also entered into an agreement to sell with them relating to the same land through a registered agreement---Suit was however, decreed by the Trial Court in favour of the plaintiff after framing issues and recording of evidence---Defendants, who were later ampleaded in the suit, aggrieved of the said decree filed an appeal which was accepted by :he Appellate Court thus, reversing the decree of the Trial Court---Plaintiff subsequently filed a revision petition against the decision of the Appellate Court on the ground that it was based on misreading and non ­reading of evidence on record- --Validity---plaintiff had entered into an oral agreement with the defendant, who was his real brother---No explanation was provided as to why these real brothers entered into an oral agreement to sell and opted just to execute a receipt regarding payment of sale price and never reduced the agreement in writing---No explanation was available as to why a sale-deed was not got executed after payment of entire price by the plaintiff---Evidence on record was full of conflicting statements of the witnesses that went against the plaintiff---No misreading or non-reading of evidence by the Appellate Court existed which had taken a rightful view of the evidence on record and thus, had committed no illegality or irregularity that would call for any interference under revisional jurisdiction.

(b) Administration of justice---

----Principle of---Party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary.

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

----S. 48---Decree---Rights of decree-holder---Extent and scope--­Contention of the petitioner was that the decree in favour of the respondents had become unexecutable due to lapse of time and thus, conferred no title on them to contest the suit of the petitioner--­Validity---Rights conferred by a decree, not brought for execution, remain intact---Where a certain decree declared the respondents as owners of land in dispute, their ownership was not extinct only due to non-execution of the same.

Muhammad Nawaz for Petitioner.

Mian Muhammad Hanif Niazi for Respondents Nos. 1 to 7.

Respondent No.8. Ex parte.

Date of hearing: 3rd March, 2004.

2004 C L C 1019

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

Col. (R) Syed MUKHTAR HUSSAIN ---Petitioner

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD and 3 others---Respondents

Writ Petition No.23481 of 1998, heard on 8th December, 2003.

(a) Constitution of Pakistan, 1973---

----Art. 199---Civil Procedure Code (V of 1908), Preamble--­Constitutional petition---Failure of respondents to file written statement---Effect---Factual pleas taken by the petitioner in the contents of the Constitutional petition were considered to be admitted by the respondents in the absence of written statement---Principles---Provisions of C.P.C. are applicable to the Constitutional proceedings.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 ref.

(b) Land Reforms Act (II of 1977)---

----Land Reforms Regulation, 1972 (M.L.R.115)---Repugnancy to Islamic Injunctions---Certain provisions of Land Reforms Regulation, 1972 (M.L.R.115) were declared as un-Islamic by the Supreme-Court and cut-off date for their amendment in terms of Injunctions of Islam was provided as 23-3-1990.

Qazalbash Trust's case PLD 1990. SC 99 ref.

(c) Constitution of Pakistan, 1973---

----Art. 199---Constitutional petition---" Past and closed transaction", principle of---Applicability---Land of the petitioner fell under two jurisdictions with regard to Authorities---Where Authority from one jurisdiction had decided the matter in favour of the petitioner and was not challenged, another jurisdictional Authority could not be allowed to initiate proceedings against the petitioner on the same subject---Order by the earlier Authority had made it "a past and closed transaction".

Noor Din v. Chairman Miani Sahib Graveyard Committee PLD 1973 SC 17 ref.

Raja Muhammad Anwar and Muhammad Arif Raja for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. Punjab for Respondents Nos. 2 to 4.

Date of hearing: 8th December, 2003.

2004 C L C 1022

[Lahore]

Before Maulvi Anwarul Haq, J

DOST MUHAMMAD---Petitioner

Versus

MUHAMMAD INAYAT and 3 others --- Respondents

Civil Revision No. 107/D of 2000, heard on 10th November, 2003.

(a) Punjab Pre-emption Act (IX of 1991)-----

----Ss. 13(1) & 33---Talb-i-Muwathibat---Suit for possession by pre­emption by the petitioner was dismissed by the Trial Court---Appeal by the petitioner, was also dismissed by the Appellate Court---Contention of the petitioner was that Courts below had failed to read the evidence in the matter of Talb-i-Muwathibat as the entire evidence was discarded on the basis of a trivial discrepancy---In evidence, plaintiff had stated that he was informed of the sale by certain witnesses of elderly age, whereas those witnesses stated to have been told of the sale of someone else---High Court termed it as a "natural variation", and held that no ground existed for discarding the entire evidence of Talb-i-Muwathibat.

Abdul Qayum through legal heirs v. Mushk-e-Alam and another 2001 SCMR 798 ref.

(b) Punjab Pre-emption Act (IX of 1991)----

----S. 13(3)---Talb-i-Ishhad--- Notice sent on the address mentioned in the sale-deed---Validity---Contention of the plaintiff was that the defendants were brothers and their address was duly mentioned in the sale-deed through which they had purchased the land and it was on the said address that the notice was issued---Notice addressed to all the vendees at the address given in the sale-deed was held to be valid.

Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 33---Scrutiny of evidence showed that the story narrated in the plaint and then in the witness-box by the plaintiff and his witnesses regarding the receiving of information relating to particulars of the land sold, the date of sale-deed and the area mentioned in the said deed was highly improbable and not believable---Courts below had not misread the evidence on record or acted with material irregularity in the exercise of their respective jurisdictions---Petition was dismissed.

Mujeeb-ur-Rehman Kiyani for Petitioner.

Hafiz Hifz-ur-Rehman for Respondents.

Date of hearing: 10th November, 2003.

2004 C L C 1026

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD RASHEED---Petitioner

Versus

Mst. SALEEMA BIBI---Respondent

Civil Revision No. 159 of 2004/BWP, decided on 24th March, 2004.

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

----S. 12---Suit for specific performance of agreement to sell---Civil Procedure Code (V of 1908), S.115---Revisional jurisdiction ---Scope--­Suit for specific performance on the basis of an alleged agreement to sell land---Defendant in her written statement denied to have ever agreed to sell the said land or received any sale amount regarding it and asserted that the document was fictitious, forged, collusive and based on fraud--­Suit was dismissed by the Trial Court after appreciating and evaluating the evidence on the record---Appeal was also dismissed- --Revision petition was consequently filed by the plaintiff on the ground that the defendant had failed to prove the forged and fictitious nature of the document in dispute---Validity---Courts below had concurrently found that the execution of agreement to sell was not proved by the plaintiff as no cogent direct evidence with regard to the payment of sale price was brought on the record---Vital ingredient of payment of sale consideration was found deficient in the case---Such finding of the Courts below, was not amenable to the exercise of revisional jurisdiction except in circumstances showing misreading and non-reading of evidence on the record.

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

----S. 16---Undue influence ---Pardanashin lady---Protection to--­Fiduciary relationship between petitioner and respondent---Transactions claimed against illiterate ladies are to be shown to have contracted out of good conscience and after consultation of their consequences with some independent person---Mere thumb-marking and especially of an illiterate lady was not sufficient to prove that the transaction contained in the document was understood by her---Petitioner had failed to prove good conscience of the transaction to claim rights as the beneficiary--­Petitioner, in circumstances, had failed to prove that an independent advice was available to the respondent and moreover there was no evidence on file showing, good conscience of the transaction with the respondent who was an illiterate lady, therefore, transaction could not be considered as a lawful one.

Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324; Imam Ali Shah and others v. Ahmad Shah and others PLD 1977 Kar. 688; Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1.055; Janat Bibi v. Sikandar Ali and 2 others 1982 CLC 2076; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Sh. Allah Ditta v. Mst. Zainab Begum and 4 others 1993 CLC 234 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner.

2004 C L C 1044

[Lahore]

Before Muhammad Muzammal Khan, J

RAHEEM KHAN through Legal Heirs---Petitioners

Versus

HABIB KHAN and another---Respondents

Civil Revision No. 1038 of 1997, heard on 16th February, 2004.

(a) Punjab pre-emption Act (IX of 1991)-----

----Ss. 5, 27 & 28---Right of pre-emption--- Determination of price and market value of property---Trial Court decreed the suit of the plaintiffs for possession by pre-emption, for a certain amount to be deposited by them as sale price---Appeal of the plaintiff against the decision of the Trial Court regarding payment of the said sake price was dismissed--­Revision petition was consequently tiled by the plaintiffs---Contentions of the plaintiffs were that a certain issue was not addressed by the Trial Court as these was sufficient e6derice showing that the defendants did not pay the sale price as mentioned in the sale-deed, and a higher sale price was shown in the deed just to save the transaction from pre­emption and that the Courts below had wrongly determined the market value of the land---Validity--Sale in question was effected through a registered sale-deed over which Sub-Registrar inscribed a certificate certifying payment of the entire sale price according to which the suit was decreed-Plaintiffs did not produce any evidence on the showing that the certificate by the Sub-Registrar was incorrectly inscribed or was contrary to, the market value ---Presumption of correctness was attached under law to such certificate given by the Sub-Registrar while discharging his official duties---Plaintiffs, in order to prove market value must have produced five years average price worked out on the basis of sales effected in the vicinity, brut this exercise was not undertaken---Price paid before the Sub-Registrar, in the given circumstances, was a price actually fixed and paid---When it was proved on the file that the price shown in sale-deed was actually fixed and paid, there was no necessity of determining the market value of the land any more---No necessity of remanding the case for determination of any issue---Principles---Law does not favour unnecessary remand throwing, without any just cause, leaving the parties to protracted litigation.

Pirla and others v_ Noora and others PLD 1976 Lah. 6 and Lal Channa Shah v. Dharam Chan d Ch4nna Shah and another AIR 1941 Pesh. 52 ref.

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

----Sched. I---Punjab Pre-emption Act (IX of 1991), Ss.5, 27 & 28--­Civil Procedure Code (V of 1908), S.115---Revisional jurisdiction--­Right of pre-emption ---Court-fee, payment of---Appeal or revision--­Court-fee---Non-payment of---Effect---Trial Court decreed the suit of the petitioner for possession by pre-emption; for , a certain amount to be deposited by him as sale price---Appeal of the petitioner against the decision of the Trial Court regarding payment of the said sale price was dismissed---Revision petition was consequently 'filed by the petitioner--­Objection of the respondents that the petitioners had neither paid any court-fee before the Appellate Court nor they have affixed any court-fee, on the memorandum of revision. petition---Validity---Petitioners were required to pay the requisite court-fee both on their memorandum of appeal before the Appellate Court as well as on the memorandum of revision---Appeal or revision filed without requisite court-fee cannot be regarded as valid presentation on which no determination can be made.

Ally, Brothers & Co. Lahore v. Secretary, Government of Pakistan Ministry of Commerce, Islamabad PLD 1979 Lah. 857 ref.

(c) Punjab Pre-emption Act (IX of 1991)-----

----S. 5---Right of pre-emption, nature of---Right of pre-emption was a right of substitution and the expenses incurred by the vendee had to be disbursed by the pre-emptor.

Saif-ul-Malook for Petitioners.

Naveed Shahryar for Respondents.

Date of hearing: 16th February, 2004.

2004 C L C 1054

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD HAJI alias Haji MAHMOOD---Petitioner

Versus

Chaudhry TAJ DIN---Respondent

Civil Revision No. 1789 of 2003, heard on 16th February, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 5---Civil Procedure Code (V of 1908), O. VII, R.11---Right of pre­emption ---Rejection of plaint---Legality---Sale of land through decree passed in a suit of the defendant for specific performance of a contract--­Suit for possession through pre-emption filed by the plaintiff against the said sale---Rejection of plaint by Trial Court under O. VII, R.11, C.P.C., 1908, on the ground that it did not disclose any cause of action and the suit for pre-emption was premature as the said sale had not been executed---Appeal against the order of the Trial Court by the plaintiff was unsuccessful---Validity---Sale-deed on the basis of decree in the suit. for specific performance was found to be executed in favour of the defendant earlier to the order of the Trial Court rejecting the plaint---Suit of the plaintiff, in the circumstances, was not premature as the cause of action had attained maturity before the rejection order of the Trial Court.

Khrusheed Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070; Malik Tahir Ahmad and others v. Tanseef-ur-Rehman and others 1988 SCMR 1861; Hassan Khan and another v. Zaheerullah and 3 others 1988 SCMR 1333 and Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan PLD 1981 Lah. 33 ref.

(b) Punjab Pre-emption Act (IX of 1991)-----

----S. 5---Civil Procedure Code (V of 1908), O. VII, R.11---Right of pre-emption. ---Rejection of plaint---Legality---Sale of land through decree passed in suit of the defendant for specific performance of contract---Suit for possession through pre-emption filed by the plaintiff against the said sale---Rejection of plaint by Trial Court under O. VII, R.11, C.P.C. on the ground that it did not disclose any cause of action, for the suit for pre-emption was premature as the said sale had not been executed--­Appeal against the order of the Trial Court by the plaintiff was unsuccessful---Validity---Dispute as to whether the land subject to decree in the suit for specific performance by the defendant, permanently vested in him or amounted to permanent transfer of ownership of the said land in his favour---Determination of matter required recording of evidence and for this purpose issues were already framed by the Trial Court--­Rejection of plaint, after framing of issues was thus, not justified as the plaintiff could not succeed in his suit without proving his right to judgment.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 2(d)---Civil Procedure Code (V of 1908), O.VII, R.11---"Sale", interpretation of---Rejection of plaint---Cause of action---Sale of land through decree passed in a suit of the defendant for specific performance of a contract---Spit for possession through pre-emption filed by the plaintiff against tire said sale---Rejection of plaint by Trial Court under O.VII, R.11, C.P.C. on the ground that it did not disclose any cause of action for the suit for pre-emption was premature as the said sale had not been executed---Appeal against the order of the Trial Court by the plaintiff was unsuccessful---Objection of the defendant was that the sale under S.2(d) of the Punjab Pre-emption Act, 1991, meant permanent transfer of ownership, of an immovable property, and therefore, a decree in a suit for specific performance did not amount to permanent transfer of ownership---Validity---Under S.2(d) of the Punjab Pre-emption Act. 1991 fact of prematurity of the suit, could only be assessed in the suit at the time of conclusion of trial, as to whether some permanent transfer of ownership in immovable property, in exchange of a valuable consideration, had taken place in favour of the vendee or not---Prima facie, the decree in favour of the defendant, had an effect of permanent transfer of the property, and thus, without recording of evidence, it could not be said whether the transfer by the decree was not of permanent nature---Rejection of plaint was not warranted by law, as the suit of the plaintiff disclosed a cause of action and was not barred.

(d) Punjab Pre-emption Act (IX of 1991)-----

----S. 30---Civil Procedure Code (V of 1908), O.VII, R.11 ---Dispute regarding transfer of property through a decree---Limitation---Rejection of plaint---Cause of action---Sale of land through decree passed in a suit of the defendant for specific performance of a contract---Suit for possession through pre-emption filed by -the plaintiff against the said sale---Rejection of plaint by Trial Court under O. VII, R.11, C.P.C. on the ground that it did not disclose any cause of action for the suit for pre­emption was premature as the said sale has not been executed---Appeal against the order of the Trial Court by the plaintiff was unsuccessful--­Objection of the defendant was that under S.30 of the Punjab pre­emption Act, 1991, until and unless, sale-deed was executed or mutation was sanctioned, the suit by the plaintiff was not competent ---Validity--­Section 30 of the Punjab Pre-emption Act, 1991 dealt with the period of limitation and the sale effected through a registered sale-deed or mutation was covered by its sub-clauses (a) & (b) of S.30, whereas remaining transfers were covered by sub-clause (d) of said section--­Dispute regarding transfer of property through a decree was covered by sub-clause (d) of S.30 of the Act---Rejection of plaint, was not warranted by law, as the suit of the plaintiff disclosed a cause of action and was not barred.

Khizar Abbas Khan for Petitioner.

Khalid Ikram Khatana for Respondents.

Date of hearing: 16th February, 2004.

2004 C L C 1080

[Lahore]

Before Tassaduq Hussain Jilani, J

FATIMA-TUZ-ZAHRA---Petitioner

Versus

GOVERNMENT COLLGE UNIVERSITY, LAHORE and 3 others---Respondents

Writ Petition No. 15933 of 2003, heard on 11th March, 2004.

(a) Government College University, Lahore Examination Regulations---

---- Regln. 12.12---Constitution of Pakistan, (1973), Art. 199--­Constitutional petition---Petitioner joined University in tae year 2000 for M.A. Economics program, she had to discontinue the course due to family constraints ---Later in 2001 she again joined the same course which at that time had been changed into M.Sc. Economics--­Subsequently, in the combined result of Part I and II of the M.Sc. Economics program in 2003 she secured the highest marks---University through impugned notification missed her name as the highest scorer in the said program thus depriving her of the gold-medal that was to be awarded by the University to the candidate who topped the list--­Petitioner ,through Constitutional petition challenged the vires of the impugned notification-Contention of the University, was that since the petitioner had left the University in Part I of M.A. Economics, and her name was struck off from the rolls for non-appearance in the final Part I Examination of the said program, therefore, she would be considered to have exhausted the chance of having, availed an attempt and, therefore, her appearance in M.Sc. Economics Part I Examination in the year 2001 would be considered as a second attempt---Validity---Regln.12,12 of Government College University, Lahore Examination Regulations provided for the award of gold medal to the highest scorer, in case the candidate had passed the examination in first attempt---Word "attempt" was not defined in the said Regulations---Interpretation of the word "attempt" appearing in Regln.12.12 of the Regulations---Petitioner had never signed the examination form when she first took admission in 2000 in M.A. Part-1, thus, she did not sit for the examination for that year--­Word "attempt" was distinguished from the word "chance" appearing in Regln.3 of the M.B.,B.S. prospectus of the Government of the Punjab, as the latter word meant that a chance would be deemed to have been availed by the candidates even if they had not actually appeared in the examinations---No such intention as of word "chance" was manifest in said Regln.12.12---When the petitioner joined M.Sc. Part-I in the year 2001 riot only the nomenclature of the degree had been changed but even the course had undergone a substantial change--Circumstances in which the petitioner had to discontinue her studies for some time were sad and personal, thus, tilting equity in her favour---Petition in the circumstances was allowed and the impugned notification of the respondent University was set aside.

(b) Words and phrases---

----"Attempt"---Definition of.

Yusuf Abdulla Patel v. R.N. Slankla (1970) 72 Bom. L.R. 575 ref.

M. Mohy-ud-Din Qazi for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl.A.-G. for Respondent.

Umar Atta Bandial Amicus Curiae.

Date of hearing: 11th March, 2004.

2004 C L C 1090

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD YOUNAS and 2 others---Petitioners

Versus

ELECTION TRIBUNAL, FEROZEWALA and 3 others---Respondents

Writ Petition No. 17925 of 2003, decided on 10th February, 2004.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss. 2(6), 2(12) & 14(o)---Punjab Local Councils Elections Rules, 2000, Rr.70 & 71---Punjab Local Government Ordinance (XIII of 2001), Ss.152(1)(o) & 196---Constitution of Pakistan, 1973, Art.199--­Constitutional petition---Petitioners were declared as returned candidates under the local elections by the Returning Officer---Respondents who were the contesting candidates, being aggrieved of the election results filed Election Petition before the Tribunal---Tribunal accepted the petition with the result that the petitioners' election was declared void and the said respondents were declared as returned candidates-­Petitioners filed a Constitutional petition challenging the decision of the Tribunal---Objection of the respondents was that the Court had no jurisdiction to substitute its own findings in place of the finding of the Tribunal below while exercising power under Art.199 of the Constitution---Validity---Tribunal ,had given findings of fact on certain issues after proper appreciation of evidence---No ground existed in circumstances, for interference in the finding of facts arrived at by the Tribunal below while exercising power under Art.199 of the Constitution.

M. Massadaq Naseem Sindhoo's cage,PLD 1973 Lah. 600; Syed Azmat Ali's case PLD 1964 SC 260; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572 and Export Promotion Bureau v. Qaiser Shafiullah 1994 SCMR 859 ref.

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

----Ss. 2(6), 2(12) & 14(o)---Punjab Local Councils Elections Rules, 2000, Rr.70 & 71---Punjab Local Government Ordinance (XIII of 2001), Ss.152(1)(o) & 196---Constitution of Pakistan, (1973), Art.199--­Constitutional petition---Petitioners were declared as returned candidates under the local elections by the Returning Officer---Respondents who were the contesting candidates, being aggrieved of the election results filed election petition before the Tribunal---Tribunal accepted the said petition with the result that the petitioners' election was declared void and the said respondents were declared as returned candidates--­Petitioners filed a Constitutional petition challenging the decision of the Tribunal---Issues were as to whether the Tribunal was justified to declare the respondents as returned candidates in terms of provisions of the Punjab Local Government Elections Ordinance, 2001 and the Election. Petition Rules thereunder and whether the disqualification of petitioners was so notorious that it was known to every voter in the constituency in question---Throwing of votes, principle of---Notoriety of disqualification of the returned candidates at the time of polling, how to be established---Tests and principles laid down under the law, enunciated.

Halsbury's Law of England Vol. 14 para.549; Re: Bristol South East Parliamentary Election (1961) 3 All ELR 354; Rashid Ahmad v. Barkat Ali PLD 1968 SC 301; Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Elahi Bukhsh's case PLD 2003 SC 268; Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 and Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698 ref.

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

----Art. 24-A---Constitution of Pakistan, (1973), Art. 199--­Interpretation of S.24-A, General Clauses Act, 1897---Petitioners were declared as returned candidates under the local elections by the Returning Officer---Respondents, who were the contesting candidates, being aggrieved of the election results filed election petition before the Tribunal---Tribunal accepted the, said petition with the result that the petitioners' election was declared void and the said respondents were declared as returned candidates---Petitioners filed a Constitutional petition challenging ,the decision of the- Tribunal---Tribunal, while granting relief to the respondents to the extent of declaring them as returned candidates, had not given any reason in the impugned judgment---Legality---Tribunal was duty bound and obliged under Art.24-A of General Clauses Act, 1897 to give reasons at the time of deciding the controversy between the parties---Duty and obligation of the Tribunal was to grant relief to the respondents in accordance with law while declaring them as returned candidates---Decision of the Tribunal to the extent of declaring the respondents as returned candidates, in circumstances, .was found to be in violation of law.

Messrs Airport Support Service's case 1998 SCMR 2268; Zain Yar Khan's case 1998 SCMR 2419 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

(d) Law-----

--------Meaning of---Interpretation of---Words "law" is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in the country including even the judicial principles laid down from time to time by the superior Courts.

Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Government of West Pakistan v. Begum Agha Abdul Karim Sorish PLD 1969 SC 14 and Ch. Zahoor Elahi v. Secretary to Government PLD 1975 Lah. 499 ref.

(e) Constitution of Pakistan, 1973---

---Arts. 189, 190 & 201---Superior Court judgments---Effect--­Principles---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts.189 & 190 of the Constitution whereas the judgment of the High Court is binding on each and every organ of the State by virtue of Art.201 of the Constitution.

Muhammad Shahzad Shaukat for Petitioners.

S.M. Masud for Respondents Nos.2 and 3.

2004 C L C 1104

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

GOVERNMENT OF PAKISTAN through Secretary. Ministry of Defence, Rawalpindi and another---Respondents

Versus

Messrs SHOAIB BILAL CORPORATION and 2 others---Respondents

I.C.A. No. 190 of 1992, decided on 21st January, 2004.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3--- Constitutional petition---Maintainability---Alternate remedy---Contract between appellants and respondents---Rescission of contract by appellants through impugned order---Respondents aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of respondents---Contention of the appellants was that there being alternate remedy available to the respondents by way of suit the Constitutional petition was not maintainable ---Validity--­ Objection with regard to availability of alternate remedy by way of civil suit was raised only at the time of hearing but not in the parawise comments filed by the appellants in the Constitutional petition---Four years had elapsed since the final hearing of the Constitutional petition, and such an objection at a belated stage, not only left the respondents to .a situation wherein they were debarred from having redress from Civil Courts, on account of lapse of time, but also created a right in them to have decision from the forum not objected to by the appellants---Even otherwise, availability' of alternate remedy in form of a suit, was not a bar of jurisdiction by the Court in exercise of powers of judicial review under Art.199 of the Constitution, rather was a rule regulating its jurisdiction and convenience.

Muhammad Ashraf v. Board of Revenue, West Pakistan and another PLD 1968 Lah. 1155 ref.

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

----Art. 199---Constitutional petition---Judicial review---Scope---Power of judicial review vests in the Constitutional Court especially in the case, where an order is attacked on the ground that it was wholly without authority---Where a statutory functionary acts in an unjust and oppressive manner the High Court in the exercise of Constitutional jurisdiction has an authority to grant relief to the aggrieved party---Rule about invoking Constitutional jurisdiction under Art. 199 of the Constitution, is rule of convenience and discretion, by which Court regulates its proceedings and is not a rule of law.

Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 ref.

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

--------Art. 199---Constitutional petition---Contractual obligation---Contracts concluded by State functionaries---Judicial review---Scope---Contract concluded by State functionaries have to be just, fair, transparent, reasonable and free of any kind of mala fides, all such aspects remain open for judicial review by the superior Courts---Rule founded on the premises is that public functionaries, deriving authority from or under law, are obliged to act justly, fairly and equitably--Deviation, if of substance, can be corrected through appropriate orders under Art.199 of the Constitution, even in those cases where a pure and simple contract is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of disputed nature.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

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

----Art. 199---Constitutional petition---Contractual matters---Judicial review---Scope---Principles---Contractual liability involving disputed questions cannot be adjudicated by the High Court in its Constitutional jurisdiction and wherever the facts in such a dispute require extensive recording of evidence, the only competent forum is Civil Court because recording of evidence is not permissible in exercise of Constitutional jurisdiction---Said principle has undergone a radical change giving expansion to the judicial review by the superior Courts, in matters where facts are not disputed because the remedy by way of suit is not only expensive, lengthy and obsessive, as compared to Constitutional jurisdiction, which is less expensive, more convenient and expeditious---Invocation of Constitutional jurisdiction should not be refused to the citizens deserting easy, effective and quick remedy of Constitutional petition simply because they can move to the Civil Courts.

Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068; Shamshad Ali Khan v. Commissioner Lahore and others 1969 SCMR 122 and Al-Mahmood Industries (Pakistan) Ltd. v. The Trading Corporation of Pakistan Ltd. and another 1974 SCMR 51 ref.

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

----Art. 199-Law Reforms Ordinance (XII of 1972), S.3--­Constitutional petition---Maintainability---Arbitration clause, effect of --­ Intra-Court appeal---Contract between the parties---Rescission of contract by the appellants through impugned order---Respondents aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of the respondents ---Intra-Courts appeal filed by the appellants---Contention of the appellants that there was an arbitration clause in the said agreement with the respondents, but the Constitutional Court did not consider it, therefore, the Constitutional petition was not maintainable---Validity---Arbitration clause was no remedy under law, which could bar jurisdiction of the Court, vested in it under Art. 199 of the Constitution---Since the Arbitrator had refused to proceed with the matter, therefore, it could not be used as a weapon to non-suit the respondents---Appellants themselves were under obligation under the arbitration clause, to refer the matter to the Arbitrator, before passing impugned order of rescission---Aspect of presence of arbitration clause in the said agreement, as concluded by the Constitutional Court, in circumstances, called for no interference.

Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam, International Airport, Karachi and others 1998 SCMR 2268; Lahore Cantonment Cooperative Housing Society Limited; Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068; 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 1975 SC 355; Mumtaz Ahmad v. Zila Council, Sahiwal through Administrator and others 1999 SCMR 117; Raja .Muhammad Ramzan and 21 others v. Union Council, Bajnial and another 1994 SCMR 1484 and Muhammad Naeem v District Council, Pakistan 2000 CLC 73 ref.

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

----Arts. 99, 173(1)(3) & 199--- Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Rules of Business, (1973), R.7---Contracts by Federal Government to be expressed in the name of President--- Intra­ Court appeal---Contract between the appellants and respondents--­Rescission of contract by the appellants through impugned order--­Respondents' aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of the respondents---Intra-Court appeal filed by the appellants---Objection of the respondents was that the rescission of the contract was not expressed in the name of the President and, instead, proceeded from the competent authority, therefore, the rescission of the contract was of no effect--­Validity---Articles 99 & 173(1)(3) of the Constitution, require all the executive actions, including contracts made on behalf of the Federal Government, to be expressed in the name of the President---Any executive action, contract or rescission thereof, not so expressed, in the name of the President, would be void---Original contract having been expressed in the name of the President, could be rescinded only by the President and none else below his rank, without authority from him.

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 1975 SC 355 and Resaldar Major K.S. Muhammad Hasham Khan v. Provincial Government N.-W.F.P. PLD 1950 Pesh. 13 ref.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Contract Act (IX of 1872), S.55---Constitutional petition---Time as essence of contract ---Intra-Court appeal---Contract between the appellants and respondents---Rescission, of contract by the appellants through impugned order---Respondents aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of the respondents ---Intra-Court Appeal filed by the appellants---Contention of the appellants was that the time was the essence of the contract, and the delay by the respondents in fulfillment of their obligations under the contract justified the rescission of the same---Validity---No specific clause regulating time factor for execution of the contract existed making it as an essence of the contract---Courts decide such matter taking into account conduct of parties and circumstance of case resulting into non­ completion by the dates fixed in the agreement---From the circumstances and conditions prevailing before and after the land under the agreement was provided to the respondents by the appellants, the delay, if any, caused in execution of such agreement, could not be attributed to the respondents---Acts of the appellants amounted to the delay and extension. of the time regarding the performance of the contract, therefore, it could not be said in the circumstances, that time was of the essence of the contract.

Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwaia PLD 1962 SC 1; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Faiz Khan v. Multan Development Authority through Director­ General and 4 others PLD 1995 Lah. 429 and Sh. Muhammad Shafi v. The Lahore Improvement Trust PLD 1959 Lah. 1 ref.

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

----S. 55---Law Reforms Ordinance (XII of 1972), S.3---Intro-Court appeal---Clause of interest, effect of---Contract between the appellants and respondents ---Recission of contract by the appellants through impugned order---Respondents aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of the respondents---Intro-Court appeal filed by the appellants--­Contention of the appellants was that the time was the essence of the contract, and the delay by the respondents in fulfillment of their obligations under the contract justified the rescission of the same--­Validity---Agreement did not give an authority to the appellants to rescind the same because there was no such provision in it and instead it created a liability for the respondents, to pay interest at the bank rate on the unpaid sale price till completion of the contract, this being the only penalty provided in the agreement---Agreement with such clause of interest, could not be termed to have come to an end by mere non­payment of balance sale price or by claiming that time was the essence of the contract.

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

----Art. 199--- Law Reforms Ordinance (XII of 1972); S.3--­Constitutional petition---Unilateral rescission of contract, effect of --­ Intra-Court appeal---Contract between the appellants and respondents--­ Rescission of contract by the appellants through impugned order--Respondents aggrieved of the impugned order filed Constitutional petition---High Court accepted the Constitutional petition of the respondents---Intro-Court appeal filed by the appellants---Objection of the respondents was that the rescission of the contract was unilaterally made by the appellants without affording theta any opportunity of raising objections---Validity---Rescission of the contract by the appellants through the impugned order was unilateral, as the respondents were never called upon to show cause against such rescission, or allowed to explain the realities as determined by the appellants before such action--- Principle---Law does not favour one sided decision of the matter brought to writing with the concurrence of the parties---Court, in the given circumstances, could not sit as a silent spectator and allow the State functionaries to deal with the rights of the citizens, single-handedly and to confiscate their hard earned money, without determining fault, if any, on their part.

Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Messrs United International Associates through Managing Partner v. Province of the Punjab and another 1999 MLD 2745; Pakistan Agro Forestry Corporation (Pvt.) Ltd. v. Government of Pakistan Ministry of Commerce through Secretary of Commerce and another 1999 CLC 1301 and Network Television Market Ltd. v. Government of Pakistan and another 2001 CLC 681 ref.

(j) Law Reforms Ordinance (XII of 1972---

----S. 3---Civil Procedure Code (V of 1908), O.XLVII, R.1---Intro-Court appeal---Scope---Objection by the respondents that scope of Intro-Court appeal was not similar to the appeal filed from a subordinate Court to the higher Court under the provisions of Civil Procedure Code, 1908---Validity---Ambit of appeal under- S.3 of the Law Reforms Ordinance, 1972, was like a review petition under O.XLVII, R.1 of the C.P.C. and meant to correct some error apparent on the face of the record---Intro-Court appeal Bench could not substitute its own viewpoint in place of the one given by the Single Judge in Chambers under Constitutional jurisdiction.

Muhammad Siddique v. The District Magistrate, Lahore and 3 others 2000 MLD 240 and Babu Ram Ashiok Kumar and another v. Antarim Zila Parishad AIR 1964 All. 534 ref.

Sher Zaman Khan, Deputy Attorney-General for Appellants.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 4th November, 2003.

2004 C L C 1123

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM---Petitioner

Versus

RIASAT ALI ---Respondent

Civil Revision No. 1190 of 2003, decided on 23rd February, 2004

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

----O. XVII, R. 3---Failure to produce evidence---Suit for possession through pre-emption by the petitioner---Right of the petitioner to produce evidence was closed by the Trial Court after certain adjournments and the, suit was dismissed due to, lack of proof---Appeal against the judgment of the Trial Court by the petitioner remained unsuccessful---Revision petition was subsequently filed by the petitioner---Contention of the petitioner was that the Trial Court while framing certain issues had treated them as preliminary and the burden to prove these --issues was upon the respondent, therefore, he was to ,lead evidence, the case was incorrectly fixed for the evidence of the petitioner by the Trial Court--­Another contention of the petitioner was that the Courts below had acted illegally by dismissing the suit, as they had returned findings on other issues, which were not put to trial---Validity---Trial Court had fixed the case for the evidence of the petitioner inadvertently or on account of some clerical mistake ---Petitioner was neither needed nor required to produce evidence on which the penal provisions of O.XVII, R.3, C.P.C. were applied against him and his right of evidence was closed--­Requirement of O.XVII, R.3 C.P.C. was whether a party to a suit to whom time had been granted to produce evidence and which he was liable to produce had produced the same and since, the petitioner, in the circumstances, was not supposed to lead evidence on the said issues, therefore, provisions of O.XVII, R.3 C.P.C. could not have been invoked---After settling the preliminary issues, the Trial Court should have put on trial the other issues framed on file, requiring the parties to produce their respective evidence and only after that, could the suit have been dismissed---None of these courses wag adopted by the Courts below and instead, without putting the other issues to trial, suit of the petitioner was dismissed---Petition was thus, allowed in the circumstances.

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

----O. XVII, R. 3---Appeal filed without decree-sheet---Maintainability--Suit for possession through pre-emption by the petitioner---Right of petitioner to produce evidence was closed by the Trial Court after certain adjournments and the suit was dismissed due to lack of proof---Appeal against the judgment of the 'trial Court by the petitioner remained unsuccessful---Revision petition was subsequently filed by the petitioner---Objection by the respondent that the petitioner did not file any decree-sheet before the First Appellate Court without which, his appeal was not competent---Validity---Respondent never objected to the maintainability of the appeal before the Appellate Court---In the absence of any objection by the respondent at the first available opportunity to him, the same could not be accepted, in revisional jurisdiction, especially when it was found that the procedure adopted by the Trial Court was not in accordance with law.

M. Shahid Rana for Petitioner.

Zafar Iqbal Chohan for Respondent.

2004 C L C 1133

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD ASHRAF KHAN and 2 others---Petitioners

Versus

MUHAMMAD KHAN and 9 others---Respondents

Civil Revision No.225/D of 2000, heard on 17th December, 2003.

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

--S. 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Civil Procedure Code (V of 1908), S.115---Declaratory suit ---Inheritance--­Plea of being collateral---Proof of---Onus to prove---Concurrent findings of facts by the Courts below---Plaintiffs claimed to be collateral of deceased owner of the property who died 'issueless ---Plaintiffs asserted that after the death of the owner of suit-land, predecessor-in-interest of plaintiffs became owner of suit property to the extent of 3/4th share while widow of the owner inherited 1/4th share of the property--­Contention of the defendants was that deceased owner was not the absolute owner and after his death his widow had acquired proprietary rights by making compensation to Government--- -Through oral testimony, ownership was not proved and burden was on the plaintiffs to prove that the deceased was absolute owner and the widow did not acquire proprietary rights---No such evidence was produced by the plaintiffs--­On the contrary the plea of defendants that the deceased was only occupancy tenant was proved from evidence---Widow died in the year 1970, but at that time no property under occupancy tenancy was available because prior to year, 1970, the occupancy tenancy was converted into an absolute ownership of the widow in year, 1956---Trial Court dismissed the suit and the judgment and decree was maintained by Lower Appellate Court---Validity---No property for the purpose of inheritance was available to the plaintiffs who claimed to be the legal heirs of the deceased as collateral---In order to claim the right as a collateral by plaintiffs it was necessary for them to prove on record that all other legal heirs from 'the progeny of the deceased owner had no successor---In absence of such evidence it could not be held that the plaintiffs were the collateral of the deceased owner---Both the Courts below had rightly decided the issues and the judgments of the two Courts below did not call for any interference---Revision was dismissed in circumstances.

Hayat Gul deceased through Motarim Gull v. Mst. Rahm Bibi PLD 1997 SC 879; Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Nazir Ahmad v. Abdullah 1997 SCMR 281; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Mst. Noor Fatima v. Begum Bibi 1990 SCMR 629 ref.

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

----S. 39---Limitation Act (IX of 1908), Art.91--Suit for cancellation of instrument---Limitation, computation of---Such suit falls within the ambit of Art.91 of Limitation Act, 1908, and the period provided for such suit is three years computable from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him.

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

----S. 39---Cancellation of gift-deed---Limitation---One of the plaintiffs had the knowledge of disputed gift deed in year, 1967, purported to have been executed in favour of one of the defendants but the suit was filed in year 1990---Validity---One of the plaintiffs who had the knowledge, he was required to file the suit within a period of three years but he chose not to do so till the year, 1990---Father of the plaintiffs during his life time did not challenge the alienation of suit property through disputed gift deed---Plaintiffs filed the instant suit after 24 years of execution of disputed gift deed and subsequent instrument of transfer---Effect---Suit was barred by limitation in circumstances.

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

----S. 42---Declaratory suit---Inheritance---Limitation---Plea raised by the plaintiff was that in a suit for inheritance no limitation was applicable---Validity---When no estate was available for inheritance, merely describing a suit for inheritance would not bring it within the four corners of limitation if it was barred by time in its essence.

Sardar Asmatullah Khan for Petitioners.

Mujeeb-ur-Rehman for Respondents.

Date of hearing: 17th December, 2003.

2004 C L C 1143

[Lahore]

Before Syed Zahid Hussain and Rustam Ali Malik, JJ

Malik AHMED KHAN AWAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, PUNJAB, LAHORE and another---Respondents

Writ Petition No.6884 of 2003, decided on 5th April, 2004

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 161---Constitution of Pakistan (1973), Art.199---Constitutional petition--Order. was passed by the Election Commission, suspending notification of the petitioner's election as of a Union Council on the basis of adverse observations made in, an earlier order of the High Court regarding the petitioner---Application was filed by the petitioner for recalling the said order of the Commission, however, the Commission through an impugned order declined to interfere with the same--­Constitutional petition was filed by the petitioner against the impugned order---Contention of the petitioner was that only a final order could be passed by the Commission after following the procedure laid down by law, whereas the said order of suspension had the ramifications of order of removal and that in matters pertaining to the elected office-holders injunctive orders were not to be issued disabling them to perform their functions---Validity---power to remove an elected member, in duly and properly launched proceedings, could only be exercised by following the procedure laid down in S.161 of the Ordinance, and such a removal would be the ultimate and final result of the proceedings -on its conclusion---Elected office-holders are not to be restrained from performing their functions as an interim measure until the final determination as to the disqualification or other allegations against them was made by the forum seized of the matters.

Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Capt. Muhammad Azhar v. Province of Punjab through the Secretary, Government of Punjab, Lahore and 2 others PLD 1975 Lah. 921; Abdul Wahid and another v. Din Muhammad and others PLD 1982 Lah. 168; Rameshwar Das v. Yakin-ud-Din Khan and another AIR 1924 Lah. 633;.E.M. Gopalakrishna Konar v. A. Vilanga Konar and another AIR 1932 Mad. 132; Shamsuddin Ahmed v. Charu Chandra Biswas and others AIR 1934 Cal. 621; Ch. Abdul Qadir v. The Election Tribunal and 3 others PLD 1984 Lah. 103; Julius Salik v. Returning Officers and 27 others 1989 CLC 2499; Sardar Muhammad Abdullah Khan Tahir v. Sahibzada Muhammad Usman Khan Abbasi and 4 others 1998 CLC 612 and Syed Masroor Ahsan v. Muhammad Tariq Chaudhary and others 1991 SCMR 668 ref.

(b) Punjab-Local Government Ordinance (XIII of 2001)---

----S. 159---Constitution of Pakistan, 1973, Art,199 --- Constitutional petition---Fixation of term of office under S.159 of Punjab Local Government Ordinance, 2001---Rationale---Confidence and mandate-of the electorate was to be respected during the term of office of an elected office-holder, unless he incurred a disqualification and was found to be removed in accordance with law---Exercise of power of suspending the notification of election of the petitioner, amounted to removal -from office, and was not in consonance with the established principles as it had the -implications of grant of main relief.

(c) Punjab Local Government Ordinance (XIII of 2001)---

----S. 161---Constitution of Pakistan, 1973, Art.199---Constitutional petition---Maintainability---Objection of the respondent was that petition against an interlocutory order was not competent---Validity---Order of Election Commission was further affirmed by the same Commission through a subsequent order, and said latter order was in the nature of a final order as far as the performance of functions as elected Nazim by the petitioner was concerned---Constitutional petition by the petitioner against the final order, in circumstances, was maintainable---Order passed by the, Commission, suspending notification of the petitioner's election as Nazim of Union Council, was not warranted and was legally unsustainable and thus of no effect---Petition was allowed.

Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867; Sheikh Iftikharud Din and another v. District Judge, Bahawalpur exercising power of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523 and Pir Sabir Shah v. Election Commission of Pakistan and others PLD 1994 Lah. 516 ref.

Ahmad Awais for Petitioner.

Muhammad Nawaz Bhatti, D.A.-G. for Respondents.

Malik Muhammad Suleman Awan for Respondent No. 2.

Dates of hearing: 30th March, and 1st April, 2004.

2004 C L C 1158

[Lahore]

Before Farrukh Latif, J

MANZOOR AHMAD‑‑‑Petitioner

Versus

MUHAMMAD SHAHBAZ and 2 others‑‑‑Respondents

Civil Revision No.58 of 2003, decided on 17th September, 2003.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Judgment in terms of the award‑‑‑Evidence of the assistants appointed by the Arbitrators, validity of‑‑‑Arbitration proceedings for settlement of dispute‑‑­Application to make the award as rule of the Court‑‑‑Decision of the Trial Court was challenged by the petitioner in the Appellate Court but was unsuccessful‑‑‑Revision petition was consequently filed by the petitioner‑‑‑Contention of the petitioner that the orders of the Courts below suffered from non‑reading and misreading of evidence, as authority was not given to the Arbitrators to appoint any person to assist them, hence the evidence of the assistants so appointed by the Arbitrators could not be relied upon and that award was not properly proved; moreover objection was that he executed affidavit regarding appointment of Arbitrator under coercion‑‑‑Validity‑‑‑Petitioner could not point out any material evidence that was overlooked or misread‑‑‑Plea of coercion was not taken by the petitioner in his reply to the application, therefore, the said portion of his statement could not be looked into and was rightly ignored by the Courts below‑‑‑Point having not been taken regarding factual position in the written reply could not be allowed to be asserted during the evidence‑‑‑If authority was not given to the Arbitrators for appointing assistants, it was not of much significance because the award was not made by the assistants‑‑‑Even if testimony of the assistants was excluded there was enough evidence on record to establish that the Arbitrators were appointed and they had given the award‑‑Petition, in circumstances, was dismissed.

Irfan Ahmad Khan for Petitioner.

Fazal Rauf Joyia for Respondents.

Date of hearing; 10th September, 2003.

2004 C L C 1164

[Lahore]

Before Ch. Ijaz Ahmad, J

UNION COUNCIL DHORIA, TEHSIL KHARIAN, DISTRICT GUJRAT, through Union Nazim‑‑‑Petitioner

Versus

Mst. FAHMIDA BEGUM and 9 others‑‑‑Respondents

Civil Revision No. 1238 of 2003, decided on 17th February, 2004.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Suit for permanent injunction filed by the respondents/plaintiffs against the petitioner/defendant was dismissed by the Trial Court‑‑‑Appellate Court, however, accepted the appeal of the respondents against the petitioner‑‑‑Petitioner through revision petition assailed the impugned judgment of Appellate Court‑‑­Validity‑‑‑Trial Court had given findings on a certain issue after proper appreciation of evidence, whereas the Appellate Court did not advert to the reasoning of the Trial Court in the impugned judgment‑‑‑Appellate Court had decided the case without application of independent mind which was a condition precedent‑‑‑Judgment of First Appellate Court, in circumstances, was found to be in violation of law.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Appellate Court, jurisdiction of‑‑Material irregularity by Appellate Court, effect of‑‑‑Suit for permanent injunction filed by the respondents/plaintiffs against the petitioner/defendant was dismissed by the Trial Court‑‑‑Appellate Court, however, accepted the appeal of the respondents against the petitioner‑‑‑Petitioner through revision petition assailed the judgment of Appellate Court‑‑­Decision on facts of the Appellate Court were based on no evidence or inadmissible evidence and had resulted in grave injustice‑‑‑High Court under revisional jurisdiction found that as the Appellate Court had committed material irregularity, it had ample jurisdiction to disturb the findings of the facts of the same in such situation‑‑‑Judgment of the Appellate Court was set aside and the case was remanded to be decided afresh.

Knawal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 ref.

Mehdi Khan Chauhan for Petitioner.

Ghulam Hussain Chaudhry for Respondents.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondent No. 10.

2004 C L C 1175

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NAZIMA BATOOL alias NAZIM BATOOL‑‑‑Petitioner

Versus

SABAR ALI SHAH‑‑‑Respondent

Civil Revision No. 1934 of 2003, heard on 17th February, 2004.

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

‑‑‑‑O. XVII, R.3‑‑‑Adjournment in routine‑‑‑Suit for possession through pre‑emption filed by the petitioner‑‑‑Suit, however, kept on being adjourned for the evidence of the petitioner and her right to produce evidence was thus, closed under O.XVII, R.3, C.P.C. by the Trial Court‑‑‑Suit was ultimately dismissed for lack of proof‑‑‑Appeal by the petitioner also remained unsuccessful‑‑‑Contention of the petitioner was that her right to produce evidence was incorrectly closed, as the case was adjourned in routine, and the penal provisions of O.XVII, R.3, C.P.C. would thus, not be applicable or could have been invoked against her‑‑­Validity‑‑‑On the date, preceding the one, on which the right of evidence of the petitioner was closed, the case was found to be adjourned in routine on account of sickness of the petitioner and without any objection by the respondent‑‑‑No condition of final opportunity was imposed on her nor was she subjected to any kind of costs‑‑‑Such an adjournment could not be termed as an adjournment on the request of the petitioner‑‑­No material was on record, facilitating the Trial Court for just decision of the case and in such an eventuality by law the case should have been adjourned on the request of the party penalized‑‑‑Said adjournment being in routine, therefore, penal action against the petitioner was not justified.

Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296; Government of N.W.F.P. through Secretary, C&W and others v. Messrs Tahir Shoaib Rashid Shoaib 1998 CLC 1680; Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585; Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129; Qutab‑ud‑Din v. Gulzar and 2 others PLD 1991 SC 1109; Muhammad Shafique v. Mst. Zahida Begum and others PLD 1995 Lah. 561; K. P. W. Factors (Pvt.) Ltd. v. Shafqat Javed Cheema and others 1998 CLC 110; Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761 and Muhammad Siddique v. Syed Zulfiqar Haider and others 1995 CLC 431 ref.

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

‑‑‑‑O. XVII, R.3‑‑‑Effect of O.XVII, R.3, C.P.C.‑‑‑Provisions of R.3 of O.XVII, C.P.C. are permissive in nature and are discretionary, and should be exercised on the basis of recognized principles of administration of justice.

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

‑‑‑‑O. XVII, R. 3‑‑‑Suit for possession through pre‑emption filed by the petitioner‑‑‑Suit ‑kept on being adjourned for the evidence of the petitioner and her right to produce evidence was thus closed under O.XVII, R.3, C.P.C. by the Trial Court‑‑‑Suit was ultimately dismissed for lack of proof‑‑‑Appeal by the petitioner also remained unsuccessful‑‑­Contention of the petitioner was that her right to produce evidence was incorrectly closed, as the case was adjourned in routine, and the penal provisions of O.XVII, R.3, C.P.C. would thus not be applicable or could not have been invoked against her‑‑‑Further contention of the respondent was that the petitioner was not entitled to any relief as out of 22 dates she could not produce her evidence on 13 dates of hearing ‑‑‑Validity‑‑­Previous defaults were not material and the only relevant date under O.XVII, R.3, C.P.C. was the date preceding to the day on which the right of evidence of the petitioner was closed.

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

‑‑‑‑O. XVII, R. 3‑‑‑Sufficient cause of adjournment‑‑‑Adjournment on account of the sickness of the petitioner was a sufficient cause within the meaning of O.XVII. C.P.C. for adjournment of the case.

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

‑‑‑‑O. IX. R. 9 & O. XVII, R. 3‑‑‑Course of action of Trial Court‑‑­Legality‑‑‑Or the absence of the plaintiff on the date of hearing the Trial Court should dismiss the suit for non‑prosecution instead of applying the provisions of O.XVII, R.3, C.P.C. otherwise it would amount to the Trial Court depriving the right of the plaintiff to have the suit restored under the provisions of O.IX, R.9, C.P.C.

Munir Ahmed Khan for Petitioner.

Khalid Aseer Chaudhry for Respondent.

Date of hearing: 17th February, 2004.

2004 C L C 1180

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD BASHIR and 6 others‑‑‑Petitioners

Versus

MUHAMMAD ASHRAF and 26 others‑‑‑Respondents

Civil Revision No.786 of 1998, heard on 11th February, 2004.

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

‑‑‑‑S. 107‑‑‑Appellate Court‑‑‑Re‑appraisal of evidence‑‑‑Prerogative of Appellate Court‑‑‑Re‑appraisal of evidence is the prerogative of the First Appellate Court at the time of deciding the appeals‑‑‑First Appellate Court can reverse the findings of the Trial Court after re­appraisal of evidence.

N.S. Venkatagiri Ayyangar and others v. Hindu Religious Endowments Board of Madras PLD 1949 PC 26 and Board of Intermediate, and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

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

‑‑‑‑S. 107‑‑‑Petitioners alleged sale of certain land in their favour by the respondents‑‑‑Mutation sanctioned in favour of the petitioners by Revenue Authorities excluded the said land from the sale ‑‑‑Validity‑‑­Suit for declaration and permanent injunction in this regard filed by the petitioners was decreed in their favour by the Trial Court‑‑‑Appellate Court reversed the findings of the Trial Court and accepted the appeal‑‑­Revision petition by the petitioners‑‑‑Petitioners had not challenged the vires of subsequent sale in favour of the respondents, and moreover the said mutation was between the brothers and sisters, therefore, the First Appellate Court was justified to reverse the findings of the Trial Court.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

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

‑‑‑S. 42‑‑‑West Pakistan Land Revenue Rules, 1968, R.34‑‑‑Petitioners alleged sale of certain land in their favour by the respondents‑‑‑Mutation sanctioned in favour of the petitioners by Revenue Authorities excluded the said land from the sale‑‑‑Validity‑‑‑Suit for declaration and permanent injunction in this regard filed by the petitioners was decreed in their favour by the Trial Court‑‑‑Appellate Court reversed the findings of the Trial Court and accepted the appeal‑‑‑Revision petition by the petitioners‑‑‑Petitioners were obliged to produce the Lambardar of the village to prove the contents of mutation, but as the petitioners had failed to produce him, it was considered as having withheld the best evidence‑‑­Petitioners also failed to bring on record sufficient evidence to prove the sale and passing of consideration beyond any shadow of doubt‑‑‑Principles‑‑‑Petitioners were bound to prove their case on their own footing and not to take benefit of shortcoming of the respondents.

Muhammad Shafi's case PLD 1986 SC 519 ref.

(d) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S. 49‑‑‑Effect of registration‑ ‑‑Registered documents had sanctity attached to them and stronger evidence was required to challenge their genuineness.

Mirza Muhammad Ashraf's case 1993 SCMR 462 ref.

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

‑‑‑‑S. 41‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑­Bona fide purchaser‑‑‑Mutation, proof of‑‑‑Mutation did not reveal that the land of the original owners had been sold by them to the petitioners, therefore, the First Appellate Court was justified to give benefit to the respondents and bona fide purchaser in view of S.42 of the Transfer of Property Act, 1882.

Maulana Riaz‑ul‑Hassan v. M. Ayyub Khan and others 1991 SCMR 2513 and Sahib Noor v. Feroz Khan 1992 MLD 2563 ref.

Farooq Qureshi Chishti for Petitioners.

Khalid Ahmad and Muhammad Anwar for Respondents.

Date of hearing: 11th February, 2004.

2004 C L C 1193

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM ABBAS ‑‑‑Petitioner

Versus

DISTRICT JUDGE, JHANG and 10 others‑‑‑Respondents

Writ Petition No. 15133 of 2003, heard on 23rd February, 2004.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24(1) & (2)‑‑‑Constitution of Pakistan, (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for possession through pre‑emption was filed by the petitioner‑‑‑Suit was dismissed under S.24(2) of Punjab Pre­emption Act, 1991, by the Trial Court through rejection of plaint under O.VII, R.11, C.P.C., on the ground that the petitioner had failed to deposit one‑third of the sale‑price as ordered by the Court, for the receipt of the said deposited price was not produced on three consecutive dates of hearing‑‑‑Revision petition against the order of the Trial Court by the petitioner was dismissed by the revisional Court‑‑‑Constitutional petition was filed by the petitioner seeking findings of the trial and revisional Courts below to be declared illegal and void‑‑‑Validity‑‑­Petitioner was found to have deposited one‑third of the sale price as was ordered by the Trial Court‑‑‑Controversy .was as to whether on account of non‑furnishing of the receipt to the Trial Court, suit of the petitioner could have been dismissed under S.24(2) of the Act‑‑‑Section 24 of the Act makes it obvious that in case of default of. the petitioner, in deposit of the amount required to be deposited, he is to be proceeded under the provision of subsection (2) of the said section and not under O.VII, R.11, C. P. C. ‑‑‑Subsection (2) of S.24 of the Act equips the Court with the power to dismiss the suit of the plaintiff in case he fails to make a deposit under subsection (1) within the period fixed by the Court‑‑­Deposit by the petitioner was made as was ordered by the Court, therefore, penal action under S.24(2) of the Act could not have been taken against the petitioner.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24(2)‑‑‑Constitution of Pakistan, (1973), Art.199‑‑‑Constitutional petition‑‑‑Principles of natural justice, violation of‑‑‑Suit for possession through pre‑emption was filed by the petitioner‑‑‑Suit was dismissed under S.24(2) of Punjab Pre‑emption Act, 1991, by the Trial Court through rejection of the plaint under O. VII, R.11, C.P.C. on the ground that the petitioner had failed to deposit one‑third of the sale‑price as ordered by the Court, for the receipt of the said deposited price was not produced on three consecutive dates of hearing‑‑‑Revision petition against the order of the Trial Court by the petitioner was dismissed by the revisional Court‑‑‑Constitutional petition was filed by the petitioner seeking findings of the trial and revisional Courts below to be declared illegal and void‑‑‑Validity‑‑‑Courts normally require the plaintiff to produce receipt showing deposit as ordered by them‑‑‑In the case of the petitioner, he was not required by the Court to place on file the deposit receipt, even on the date of dismissal of the suit‑‑‑Suit was dismissed in the absence of the petitioner and his counsel‑‑‑Petitioner, in circumstances, had no notice of dismissal of his suit on account of non-­deposit of one‑third of sale‑price, therefore, the order passed by the Trial Court was violative of the law as well as principles of natural justice.

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

‑‑‑‑Ss. 96, 114 & O. XLVII, R.1‑‑‑Constitution of .Pakistan, (1973), Art. 199‑‑‑Constitutional petition‑‑‑Contention of the respondents was that the order of the Trial Court under O. VII, R. 11, C.P.C., had a force of a decree and was appealable under S.96, C.P.C. but no appeal was filed by the petitioner‑‑‑Validity‑‑‑No doubt, the said order of the Trial Court was appealable and no appeal was filed by the petitioner, but. the same was found to be patently illegal and void‑‑‑Miscellaneous application, however, was found to have been filed by the petitioner before the Trial Court in form of a review which fulfilled the pre‑requisites of S.114 & O.XLVII, R.1, C.P.C.‑‑‑Under the said provisions the Courts had jurisdiction to undo the error apparent on the face of the record‑‑‑Besides inherent powers of Courts to set right the record and to do complete justice between the parties including even their review powers under the general principles known for administration of justice, they also had power to rescind their own illegal and void orders‑‑‑Petition, in the circumstances, was accepted.

The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Hafiz Khalil Ahmed for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Munir Ahmed Khan Zai for Respondents Nos.3 to 11.

Date of hearing: 23rd February, 2004.

2004 C L C 1198

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Sayeed Akhtar, JJ

MUHAMMAD YOUNUS and another‑‑‑Appellants

Versus

MUHAMMAD IQBAL and 11 others‑‑‑Respondents

R.F.A. No.63 of 1996, heard on 28th January, 2004.

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

‑‑‑‑O. VIII, R. 1‑‑‑‑Filing of written statement, requirement of‑‑‑Order VIII, R.10, C.P.C. authorizes a Court to pronounce judgment against any party from whom the written statement is so required and who fails to present the same within time fixed by the Court.

Sardar Sakhawat‑ud‑Din and others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and The Secretary, Board of Revenue v. Khalid Ahmad Khan 1991 SCMR 2527 ref.

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

‑‑‑‑O. VIII, Rr.1 & 10‑‑‑Interpretation of Rr.1 & 10, O.VIII, C.P.C.‑‑­Filing of written statement, requirement of‑‑‑Striking off the defence of the defendants‑‑‑Suit for possession through partition by the plaintiffs‑‑­Trial Court struck off the defence of the defendants, after a number of adjournments, for trying to delay the proceedings by not filing the written statement‑‑‑Validity‑‑‑Plain reading of O.VIII, R.10, C.P.C. shows that the same restricts the powers of the Court in the matter of time to be allowed for filing the written statement and further the number of adjournments that can be granted for presenting the written statement‑‑‑No consequence has been provided in the C.P.C. where the Court proceeds to grant time in excess of 30 days or grant more than 2 adjournment‑‑‑Only provisions to be resorted to and the circumstances warranting striking off the defence of the defendants are provided in the R.10, O.VIII, C.P.C which unlike R.1 of O.VIII, C.P.C., speaks of requirement of the Court which was not existing in the present case‑‑­Written statement was found to be filed by the defendants and there was no order requiring written statement within the, meaning of law‑‑‑Order of the Trial Court striking off the defence and pronouncing the judgment against the defendants, in circumstances, was illegal and void.

Muhammad Abdul Hayee Alvi for Appellants.

Ibadur Rehman Lodhi for Respondents.

Nemo for others.

Date of hearing: 28th January, 2004.

2004 C L C 1202

[Lahore]

Before Muhammad Muzammal Khan, J

REHANA KAUSAR and 7 others‑‑‑Petitioners

Versus

FAQIR MUHAMMAD and another‑‑‑Respondents

Writ Petition No. 16015 of 2003, decided on 24th February, 2004.

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

‑‑‑‑O. XXII, R. 4(1) & (4)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit was filed by the respondent for restraining petitioners from interference in the lawful possession over the land‑‑­Father of the petitioners, who was defendant in the said suit, died before filing his written statement‑‑‑Petitioners who were his heirs/legal representatives filed an application in the Trial Court for impleadment as defendants‑‑‑Said application of the petitioners for impleadment was accepted by the Trial Court‑‑‑Respondents filed a revision petition against the impleadment of the petitioners and the same was accepted by the revisional Court through the impugned order‑‑‑Constitutional petition was subsequently filed by the petitioners against the impugned order‑‑­Contention of the petitioners was that their impleadment in place of their father as defendants in the suit was strictly in accordance with law, and the same could not have been interfered with by the Court under revisional jurisdiction‑‑‑Contention of the respondent was that father of the petitioners died without filing written statement or list of legal representatives as required under O.XXII, R.4(4), C.P.C. thus, striking off the names of the petitioners from the array of defendants was in accordance with law‑‑‑Validity‑‑‑Trial Court had rightly acted under O.XXII, R.4(1), C.P.C. to implead the petitioners as defendants in place of their deceased father‑‑‑Order XXII, R.4(1), C.P.C. provides that on an application made for impleadment of legal heirs, Court shall cause them to be impleaded as defendants and thereafter will proceed with the suit‑‑‑Under the same provision, persons so impleaded, are allowed to make their defence, as legal representatives of the deceased defendant‑‑­Provision of O.XXII, R.4(4), C.P.C., however, would only come into play when a defendant who was required to file written statement, bad failed to file it or did not appear or did not contest the suit and only in that case, judgment can be pronounced against him, notwithstanding his death and such judgment shall have the same force as if it had been pronounced before his death‑‑‑None of the said eventualities had occurred in the case of the petitioner's father, therefore, revisional Court was found to have taken an incorrect view of the said provisions of law and had wrongly reversed the order of the Trial Court.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Limitation for filing revision petition, condonation of delay‑‑‑Contention of the petitioners was that the revision petition filed by the respondent was barred by limitation, which having been provided by a special statute, could not have been condoned under S.5 of the Limitation Act, 1908‑‑­Validity‑‑‑Time requisite for obtaining certificated copies of the Court order, which was to be excluded from the prescribed period of limitation was from the date of application till the date of preparation of the copy which in the case of the respondent was eight days‑‑‑Respondent had failed to explain as to what caused the delay in filing the revision petition‑‑‑Principles‑‑‑Under law, each day's delay has to be explained‑‑­Revisional Court had taken an erroneous view, firstly, because the time requisite for obtaining certified copies was calculated from the date of application till its receipt and secondly, days of summer vacation were added to the limitation available to the respondent for filing the revision petition‑‑‑Both the courses resorted to by the revisional Court were not permissible under the law‑‑‑Litigant can claim, exclusion of time during which the Court remained closed under S.4 of the Limitation Act, 1908, but cannot claim addition to that period‑‑‑Revision petition, in the circumstances, was barred by limitation and there was no plausible explanation for condonation of delay.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Filing of, application for condonation of delay‑‑‑Requirement‑‑‑Contention of the petitioners was that the revision petition filed by the respondent was barred by limitation and could not have been condoned under S.5 of the Limitation Act, 1908‑‑‑Validity‑‑‑Respondent had come up with imaginary calculations to bring his revision petition within time and had not moved any application for condonation of delay while filing the revision petition which was, otherwise not permissible‑‑‑Impugned order of the revisional Court was thus, declared to be_ void and of no legal consequence.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and Islamic Republic of Pakistan through Secretary, Ministry of Defence and others v. Masood Enterprises 2001 YLR 327 ref.

Punjab Road Transport Corporation v. Muhammad Iqbal Lodhi and another 2000 CLC 1539 distinguished.

Mirza Shahid Baig for Petitioners.

Ch. Inayat Ullah for Respondent. No. 1.

2004 C L C 1207

[Lahore]

Before Masulvi Anwarul Haq, J

FARID KHAN‑‑‑Appellant

Versus

CHAIRMAN, FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD‑‑‑Respondent

F.A.O. No.70 ofr2002, heard on 17th February, 2004.

(a) Federal Public Service Commission Ordinance (XLV of 1977)‑‑‑

‑‑‑‑S. 7(3)‑‑‑Rule 6(iii)(a) applicable to CSS Examination, 2000‑‑­Appellant who by domicile was of Sindh had appeared in the CSS Examination‑‑‑Under the merit list for the said examination, the appellant could have been adjusted against Sindh's Provincial quota, but the Authority refused to do so through the impugned order‑‑‑Ground for refusal was that the appellant's father belonged by birth to the Province of Punjab‑‑‑Grievance of the appellant that since the father of the appellant was domiciled in Sindh, he should be treated as domiciled in the said Province‑‑‑Amended Rule 6(iii)(a) provided for allocation of seats for candidates on the basis of domicile certificate issued by competent Authority in accordance with law and the rules‑‑‑Different treatments were required to be meted out to candidates who appeared in the CSS Examinations of 2000 and 2001‑‑‑Question of domicile for candidates that appeared in the 2000 Examination was a past and closed matter not covered by the said amended rule, whereas, candidates in 2001 examination were governed by the amended rules‑‑‑Appellant had appeared in the 2000 Examination, therefore, the impugned order of the Authority did not suffer from any error or illegality.

2001 PLC C.S. 131 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Condonation of delay‑‑‑Exclusion of time proceeding bona fide in Court‑‑‑Limitation to file appeal by the appellant against the impugned order of the Authority was 30 days‑‑‑Delay by the appellant, effect of‑‑‑Application for condonation of delay was subsequently filed by .the appellant on the ground that in the meantime he had proceeded to file a Constitutional petition against the Authority‑‑‑No foundations were laid in the application for condonation of delay neither any affidavit was filed with it, nor the date of filing the Constitutional petition was provided‑‑‑Appeal of the appellant, in circumstances, was time‑barred as he could not avail the. benefit of S.14 of Limitation Act, 1908.

Syed Hamid Ali Bokhari for Appellant.

Amir Ahmad Chaudhry, Director for Respondent.

Date of hearing: 17th February, 2004.

2004 C L C 1217

[Lahore]

Before Syed Zahid Hussain and Muhammad Akhtar Shabbir, JJ

SHER MUHAMMAD through L.Rs.‑‑‑Appellants

Versus

GHULAM MUHAMMAD and others‑‑‑Respondents

Regular First Appeal No.328 of 1997, heard on 3rd March, 2004.

Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑-+‑Specific Relief Act (I of 1877), S.12‑‑‑Civil Procedure Code (V of 1908), S.96 & O.VIII, R.7‑‑‑Time whether essence of the contract‑‑‑Stipulation in the agreement‑‑‑Effect‑‑‑Defective title‑‑­Execution of agreement was admitted‑‑‑Plaintiffs' suit for specific performance was decreed by the trial Court‑‑‑Judgment and decree of trial Court were challenged on the plea that plaintiffs had failed to perform the contract within stipulated time‑‑‑Validity‑‑‑Plaintiffs had pleaded defect in title, which was not controverted by the defendant‑‑‑Defendant's witnesses had admitted that plaintiffs had approached defendant for removal of defect in the title‑‑‑Stipulation made in the agreement would not make the time as of the essence of the contract‑‑‑Specific performance of an agreement of sale relating to immovable property could be granted by Courts even after expiry of the period fixed in the contract which was short of period of limitation fixed by law‑‑­Only an owner with absolute clear title could expect the performance within the stipulated period‑‑‑Decision of trial Court was justified‑‑‑No illegality was committed by the trial Court, appeal was dismissed in circumstances.

Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600 and Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 quoted.

Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485 distinguished.

Mian Arshad Mahmood for Appellant.

Ch. Muhammad Aslam for Respondents.

Date of hearing: 3rd March, 2004.

2004 C L C 1262

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs ACSYS LIMITED‑‑‑Appellant

Versus

ASSOCIATED PRESS OF PAKISTAN CORPORATION‑‑‑Respondent

First Appeal from Order No. 14 of 2004, heard on 18th March, 2004.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 20 & 39(1)(iv)‑‑‑Limitation Act (IX of 1908); Art.181‑‑­Application to file arbitration agreement in the Court ‑‑‑Limitation‑‑­Application to file arbitration agreement in Court filed by respondent was objected to by appellant as being barred by time‑‑‑Trial Court having allowed said application, appellant had filed appeal against such judgment‑‑‑Limitation for filing said application was governed by Art. 181 of Limitation Act, 1908 which had provided three years period for filing said application from arising dispute between parties‑‑‑Dispute arose between parties in 1997 when respondent had terminated agreement and served claim upon appellant on 8‑4‑1997‑‑‑Application under S.20 of Arbitration Act, 1908 was filed on 12‑2‑2003‑‑‑Letters relied upon by respondent which had been produced on record had shown that .correspondence for arbitration started at a point of time when limitation had expired‑‑‑Trial Court gave finding that agreement between parties could not be considered as terminated, and without giving a finding as to whether or not the claim was time‑barred or that application filed under S.20 of Arbitration Act, 1940 was barred by limitation, had proceeded to refer matter to Arbitrator by allowing said application‑‑‑Such being a substantial question could have been decided by the Court both with reference to application as also the claim to be referred‑‑‑Such had not been done by Trial Court which was violative of consistent pronouncements of Superior Courts‑‑‑Since matter had not been properly decided, case was remanded to Trial Court for decision afresh after framing issues in that respect.

M. Imam‑ud‑Din Janjua v. The Thal Development Authority through the Chairman, T.D.A., Jauharabad PLD 1972 SC 123; Muhammad Nazir v. The Secretary, Cooperative Department and another 1989 MLD 1156; Messrs Progressive Engineering Associates v. Pakistan Steel Mills Corporation Ltd. 1997 CLC 236; Azad J&K Government v. Shaheen Timber Trading Corporation PLD 1965 (Azad J&K) 9; Muhammad Abdul Latif Faruqi v. Nisar Ahmad and another PLD 1959 (W.P.) Kar. 465 and Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd. and others PLD 1990 SC 48 ref.

Mian Gul Hassan Aurangzeb for Appellant.

M. Bashir Kiani for Respondent.

Date of hearing: 18th March, 2004.

2004 C L C 1266

[Lahore]

Before Ch. Ijaz Ahmad, J

KHURSHID ALAM and another‑‑‑Petitioners

Versus

AL‑KHAIR GADOON LIMITED‑‑‑Respondent

Civil Revision No. 1924 of 2003, decided on 22nd April, 2004.

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

‑‑‑‑Preamble‑‑‑Rules framed under Civil Procedure Code, 1908‑‑­Object ‑‑‑Such rules are made for advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice.

Said Muhammad's case PLD 1989 SC 532 and Mst. Sardar Begum v. Muhammad Anwar Shah 1993 SCMR 363 rel.

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

‑‑‑‑Art. 2‑A‑‑‑Decision on merits‑‑‑Administration of justice‑‑­Technicalities‑‑ Principles‑‑‑After addition of Art.2‑A in the Constitution, Supreme Court had departed from the previous practice and had insisted to avoid technicalities and that cases must be decided on merits.

United Bank Limited v. Messrs Azmat Textile Mills Ltd. 1997 MLD 1033; Malik Zafar Iqbal v. Messrs APCO Bahawalpur 1998 CLC 1133 and Abdul Rehman v. Talib Hussain 1989 CLC 1689 rel.

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

‑‑‑‑O. XXXVII, R.3 & S. 148‑‑‑Application for leave to defend ‑‑‑Non-­filing of affidavit‑‑‑Extension of time‑‑‑Defendant instead of filing affidavit along with his application for leave to defend, had verified the application on oath‑‑‑Trial Court dismissed the application‑‑‑Validity‑‑­Verification on oath although was not equivalent to affidavit as prescribed under O.XXXVII, R.3(1) C.P.C. but substantially the` requirement of O.XXXVII, R.3 C.P.C. was complied with‑‑‑Defendant was bound to support his application by an affidavit‑‑‑Failure on part of the defendant to file affidavit or declaration in terms of Form IV of Appendix‑B, C.P.C. was non‑compliance of the form but there was no prohibition or compulsion upon the Trial Court while exercising discretion under S.148 C.P.C., not to accept the belated affidavit which could be filed by the defendant‑‑‑Trial Court was under obligation to allow an opportunity to the defendant to remedy the defect‑‑‑Order passed by the Trial Court was set aside and the case was remanded to Trial Court for decision afresh‑‑‑High Court directed the Trial Court to allow the defendant to file affidavit in terms of O.XXXVII, R.3(1) C.P.C..‑‑‑Revision was allowed accordingly.

Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd. Gujranwala PLD 1973 Note 33 at p.41; Messrs Adamjee Construction Company's case 1999 MLD 2202; Muhammad Muzaffar Khan's case PLD 1959 SC 9 and Emirates Bank International v. United Exports Limited and 8 others PLD 1993 Kar. 661 rel.

(d) Administration of justice‑‑‑

‑‑‑‑ Courts are duty bound to decide the cases after judicial application of mind.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

Mian Ghulam Rasool for Petitioners.

Muhammad Saeed Mirza for Respondent.

2004 C L C 1315

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD MUNIR‑‑‑Petitioner

Versus

NASEER AHMED ‑‑‑Respondent

Civil Revision No.2328 of 2003, decided on 4th March, 2004.

(a) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Reasons for gift‑‑‑Validity‑‑‑No bar in law exists against gifting the only land owned by donor to anybody he liked‑‑‑Assigning some reason by donor for making a gift was not the requirement of law.

Alif Khan v. Mst. Mumtaz Begum and another 1998 SCMR 2124 ref.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Plea of valid gift‑‑‑Defendant denied any sale as asserted by the pre‑emptor in the suit and claimed the transaction to be a gift made in his favour by the owner of the property‑‑‑Both the Courts below had concurrently dismissed the suit and appeal of the pre­emptor ‑‑‑Plea raised by the pre‑emptor was that the defendant being co-­sharer was already in possession of the joint property and the possession did not change hands as required at the time of making gift ‑‑‑Validity‑‑­Possession of the suit‑land was proved to have been transferred to the defendant‑‑‑Plea raised by the‑ pre‑emptor was repelled by High Court because possession of the suit property was delivered to the donee/defendant and assertion of donor in that regard was enough attornment‑‑­Transaction in question was not sale but was a gift and pre‑emption suit against the defendant was not maintainable‑‑‑High Court did not feel necessity of examining concurrent findings of facts returned by two Courts below regarding making of Talb under S.13 of Punjab Pre­emption Act, 1991‑‑‑Both the Courts below did not misread/non‑read any part of evidence and no illegality or irregularity had been committed by them‑‑‑In absence of such error, no interference was permissible .in exercise of revisional jurisdiction under law‑‑‑Revision was dismissed in circumstances.

Taki Ahmad Khan for Petitioner.

Mushtaq Ahmad Mohal for Respondent.

2004 C L C 1320

[Lahore]

Before Syed Jamshed Ali, J

Mian MUHAMMAD ASLAM and another‑‑‑Petitioners

Versus

SHER AFGAN, ADDITIONAL DEPUTY COMMISSIONER GENERAL COLLECTOR (CITY), LAHORE and 5 others‑‑‑Respondents

Writ petition No.7140 of 2001, heard on 5th March, 2004.

(a) West Pakistan Land Revenue Rules, 1968‑‑‑

‑‑‑‑Rr. 67‑A & 67‑B‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Demarcation of land‑‑‑Decree for possession‑‑­Revenue Officer, jurisdiction of‑‑‑Grievance of petitioners was that the Revenue Authorities after conducting demarcation of land, passed a decree for possession and directed the petitioners to deliver the possession to the respondent‑‑‑Validity‑‑‑Revenue Authorities, while exercising summary jurisdiction under West Pakistan Land Revenue Rules, 1968, could not direct eviction of the petitioners‑‑‑While exercising jurisdiction under West Pakistan Land Revenue Rules, 1968, the Revenue Authorities had exercised the jurisdiction of Civil Court by granting a decree for possession to the respondent which could not at all be done‑‑‑Respondent should have been left to seek, appropriate remedy from the Court of competent jurisdiction‑‑‑Although the respondent had purchased a plot described only by boundaries,, yet the mutation sanctioned in her favour only reflected transfer of 10/308 share‑‑­Demarcation under West Pakistan Land Revenue Rules, 1968, could only be done on the basis of the entries in the Revenue Record‑‑‑According to such record, no specific area of Khasra number was purchased by the respondent, therefore, the Revenue Authorities had no jurisdiction because share of Khasra number could not be demarcated nor it was capable of actual physical possession except through partition‑‑‑Orders of Revenue Authorities were without lawful authority and the same were set aside‑‑‑High Court directed the Revenue Authorities to restore the possession‑of the petitioners from which they were evicted‑‑‑Petition was allowed accordingly.

Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810 ref.

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

‑‑‑‑S. 53‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Alternate remedy‑‑‑Plea raised by the respondent was that the petitioners had alternate remedy available to them‑‑‑Validity‑‑‑Revenue Authorities had usurped the jurisdiction of Civil Court, thus, it was a case of total absence of jurisdiction‑‑‑In such case availability of alternate remedy or pendency of civil suit filed by the parties did not stand in the way of High Court to exercise discretionary Constitutional jurisdiction and thereby rectifying patent injustice done to the petitioners‑‑‑Petition was maintainable in circumstances.

Ijaz Ahmed Khan for Petitioners.

Amir Rehman, Addl. A.‑G. for Respondent.

Mian Javed Iqbal Arain for Respondent No.3.

Date of hearing: 5th March, 2004,

2004 C L C 1331

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD RAFIQUE‑‑‑Appellant

Versus

JAMIL AHMAD and others‑‑‑Respondents

First Appeal from Order No.241 of 2003, heard on 18th March, 2004.

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement----Trial Court framed seven issues and while deciding all issues in favour of plaintiff, decreed suit‑‑‑Trial Court decided core issue after giving cogent reasons and exhaustively rendering its findings, after taking into consideration the documentary as well as oral evidence on record‑‑‑Appellate Court while upsetting judgment of Trial Court, did not advert to the reasonings adopted and findings given by Trial Court‑‑‑Validity‑‑‑Held, under law, it was incumbent upon Appellate Court that while giving judgment at variance, reasonings adopted by Trial Court, should be dealt with‑‑­ Appellate Court had also failed to take into account material pieces of evidence while passing impugned judgment‑‑‑Judgment of Appellate Court which suffered front grave legal infirmities, which were not sustainable, was set aside‑‑‑Appeal filed before Appellate Court below would be deemed to be pending before it which would be decided by it after hearing parties to accordance with Law.

Madan Gopal and 4 others v. Mardan Bepari and 3 others PLD 1969 SC 617 and Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302 ref.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.25‑‑‑Suit for specific performance of agreement‑‑‑Framing of issues by Appellate Court ‑‑‑Appellate Court set aside judgment and decree passed by Trial Court and remanded case to Trial Court to decide matter, afresh, after framing separate issue regarding possession over suit property‑‑‑Only ground on which case was remanded, was that certain contradictions were found in the stance of plaintiff qua the factum of possession and that no separate issue regarding possession was framed by Trial Court‑‑­Validity‑‑‑Even if Appellate Court was of the view that Trial Court had omitted to frame issue regarding possession, that would not, in any way, give any legal justification to Appellate Court to set aside judgment and decree of Trial Court and reverse findings of Trial Court, and that too without giving its own findings‑‑‑Proper course for Appellate Court was to resort to the provisions of O.XLI, R.25, C.P.C. and in no way the findings on merits of the Trial Court could be reversed on plea that certain issue had not been framed and without rendering its own findings‑‑‑Appellate Court appeared to be completely oblivious of provisions of O.XLI, R.25, C.P.C. which had provided that where the Court from whose, decree appeal was preferred had omitted to frame or try an issue which appeared to Appellate Court essential to the right decision of the suit on merits, same, could, if necessary, frame issues and refer the case for trial to the Court and direct such Court to take additional evidence and return same to Appellate Court‑‑‑Appellate Court after finding that issue of possession was necessary for determination of controversy between parties, erroneously and under misconceived notions of law unsettled the issues‑‑‑Law would not permit Appellate Court to adopt such course of action.

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

‑‑‑‑O. XLI, R. 25‑‑‑Framing of issues by Appellate Court and remanding the case‑‑‑Where Appellate Court would come to the conclusion that a particular issue should have been framed but was not framed by Trial Court or certain findings on fact were necessary for determining the controversy between parties and that further evidence should be taken on said points, then proper course for Appellate Court was to make an order under provisions of O.XLI, R.25, C.P.C. instead of remanding whole case‑‑‑Appellate Court was not bound to remand case to the Trial Court, and it was also empowered to record evidence itself.

Muhammad Ali and 9 others v. Muhammad Sharif and 4 others 1994 SCMR 1715; North‑West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan PLD 1993 SC 418 and Messrs Fahim & Company and another v. National Bank of Pakistan and 5 others 1976 SCMR 100 ref.

Ch. Muhammad Anwar Bhinder for Appellant.

Ch. Muhammad Zafar for Respondents Nos. 1 and 2.

Respondents Nos. 3 to 8: Ex parte.

Date of hearing: 18th March, 2004.

2004 C L C 1337

[Lahore]

Before Sardar Muhammad Aslam, J

Sub. (Retd.) MUHAMMAD SIDDIQUE‑‑‑Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman Capital Development Authority Islamabad and 2 others‑‑‑Respondents

Writ Petition No. 1399 of 2003, heard on 8th April, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 4, 24, 25 & 199‑‑‑Constitutional petition ‑‑‑Discrimination‑‑­Allotment of plot ‑‑‑Affectees, of Islamabad Capital Territory‑‑‑Petitioner was displaced from a village land which was acquired by Capital Development Authority‑‑‑House of the petitioner was located in Abadi Deh, he and his brother applied for allotment at one and the same time‑‑­Capital Development Authority allotted plot to the brother of the. petitioner but refused to the petitioner‑‑‑Validity‑‑‑Petitioner applied in time, deposited the cost, submitted affidavit and had been running from pillar to post since 1974, for allotment of the plot‑‑‑Case of the petitioner was at par with that of his brother but Capital Development Authority had given deaf ear to the request of the petitioner‑‑‑Petitioner being similarly placed and similarly circumstanced could not be treated with different yardstick‑‑‑Petitioner was meted out with sheer discrimination who was entitled to be dealt with equally in view of the provisions of Arts.4 and 25 of the Constitution‑‑‑Order passed by Capital Development Authority was set aside and High Court directed the Authorities to allot a plot to the petitioner on the basis of scheme announced in the year, 1963‑‑‑Petition was allowed accordingly.

Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd. Rawalpindi PLD 1991 SC 14; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Government of N.‑W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills Private Ltd. Mardan and others 1997 SCMR 1804; Airport Support Services v. Airport Manager Quaid‑e‑Azam International Karachi and others 1998 SCMR 2268 and Nazim‑ud‑Din and others v. Civil Aviation Authority and 2 others 1999 SCMR 467 ref.

Syed Masood Hassan Shah for Petitioner.

Malik Muhammad Nawaz for Respondents.

Date of hearing: 8th April, 2004.

2004 C L C 1345

[Lahore]

Before Abdul Shakoor Paracha, J

MAHMOOD KHAN---Petitioner

versus

ILAM DIN---Respondent

Civil Revisions Nos. 1996, 1997, 1998 of 1985, heard on 10th March, 2004.

Specific Relief Act (1 of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), S.54---Suit for possession---Sale of property-- -'Shamilat Deh' whether would include 'Abadi Deh'---Plaintiff had sold his entire property in the village to two vendees through registered sale-deed including his share in 'Shamilat Deh'---One of the said two vendees sold three different plots in village from property purchased from plaintiff in favour of defendants who constructed houses on said plots---Plaintiff brought suits against said defendants for possession in which he claimed that he had sold only agricultural land in favour of original vendees and not land situated in village Abadi and that defendants being subsequent vendees, had no title in plots purchased by them from original vendee ---Trial Court decreed suit observing that plaintiff by selling his share in Shamilat Deh, had not sold his ownership in village Abadi---Appellate Court, however, reversed the findings of Trial Court had observed Shamilat Deh, would include Abadi Deh---Appellate Court had observed that by selling Shamilat, plaintiff had sold Abadi Deh and that defendants were rightful owners of plots in dispute---Validity---' Shamilat Deh' included ' Abadi Deh'---Sale-deed executed by plaintiff in favour of said two vendees had provided that plaintiff had sold his entire property including Shamilat Deh in the village concerned-- -Appellate Court, in circumstances had rightly' found that plaintiff by selling his share in Shamilat Deh had also sold his ownership in Abadi Deh---In absence of any illegality or irregularity warranting interference of High Court in exercise of revisional jurisdiction, judgment of Appellate Court could not be interfered with.

Balwant Singh and others v. Khan Bahadur and others AIR 1930 Lah. 6 ref.

Yousaf Sohaib Khan for Petitioner.

Taki Ahmad Khan for Respondent.

Date of hearing: 10th March, 2004.

2004 C L C 1371

[Lahore]

Before Syed Zahid Hussain, J

FARZAND ALI ---Petitioner

versus

FAISALABAD DEVELOPMENT AUTHORITY through Director Estate Management, Faisalabad and 3 others---Respondents

Civil Revision No.2672 of 2001, heard on 27th April, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), Ss.11 & 115---Suit for declaration ---Res judicata, principle of---Applicability---Certain property was allotted to the plaintiff by the defendant-authority, which due to illegal transfer by the plaintiff to some other person led to a situation of a double allotment---Allotment in the name of the plaintiff was cancelled and he was ultimately convicted for fraud and forgery---Subsequent suit for declaration filed by the plaintiff to claim his right and entitlement over the said property was dismissed by the Trial Court followed by dismissal of an appeal preferred against the same-----Plaintiff, however, again filed a suit for declaration over the same subject-matter which was decreed by the Trial Court---Said decree of the Trial Court was set aside in appeal---Plaintiff filed a revision petition against the decision of the Appellate Court---Validity---So far as the entitlement of the plaintiff over the property was concerned, the matter stood substantially concluded in the earlier round of litigation launched by the plaintiff against the defendants, besides finding of guilt recorded against him and conviction---Undisputedly, the subject-matter of suit, regarding the right and title of the plaintiff over the property, in the previous suit and the present suit was the same--Plaintiff had failed in the earlier suit and thus, could not re-agitate the same controversy over and again in view of the principle of res judicata---No interference with the decision of the Appellate Court under revisional jurisdiction was required, in circumstances.

Malik Ghulam Siddiq Awan for Petitioner.

Ali Akbar Qureshi for Respondents Nos. l to 3.

S.M. Masood for Respondent No.4.

Dates of hearing: 26th and 27th April, 2004.

2004 C L C 1382

[Lahore]

Before Syed Zahid Hussain, J

Mst. SAKINA BIBI and others---Appellants

versus

MUHAMMAD ARSHAD ALI and 9 others---Respondents

Second Appeal from Order No. 11 and Civil Revision No. 1456 of 2000, heard on 22nd April, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--­

----S. 13---Specific Relief Act (I of 1877), S.42---Estoppel, principle of ---Expiry of tenancy agreement, effect of ---Ejectment petition was filed by the respondent against the predecessor-in-interest of the appellants-- After the death of the said predecessor-in-interest, the appellants filed a suit for declaration and injunction for the same property which was the subject-matter of the ejectment petition---Both the ejectment petition and the said suit were consolidated---Trial Court dismissed the suit of the appellants 'and accepted the ejectment petition of the respondent--­ Separate appeals filed by the appellants against tic said decisions of the Trial Court were dismissed by the First Appellate Court- -Second appeal and a revision petition was subsequently filed against the said decisions of the First Appellate Court which were disposed of together--­Contention of the appellants was that the respondent was not the owner of the premises and, therefore, could not have initiated ejectment proceedings against them and that the ejectment petition was not competent after the expiry of the period of tenancy fixed in the deed--­Reply of the respondent that the predecessor-in-interest of the appellants in his life time had not disputed the title of the respondent, nor denied the existence of relationship of landlord and tenant, therefore, the appellants were estopped to make such contentions that were never pleaded in the lower Courts---Validity---Documents on record showed that the predecessor-in-interest of the appellants had admitted and acknowledged the respondent as owner and landlord of the premises, and had never disputed the title of the latter -as the landlord---Denial of the title of the respondent by the appellants through a suit was an afterthought and a counterblast to the ejectment proceedings---Appellants could not succeed by pressing a plea which had no basis or backing of pleadings, moreover, their conduct and drift in stance also estopped them from such course of action---Even after the expiry of tenancy agreement, the terms of the same continue to operate and govern the parties, and a belated action by the landlord for ejectment would not militate against him or denude him of his title or create any adverse title in favour of the tenant---Courts below had, on appreciation of the facts and the evidence, recorded, correct findings that required no interference by the Court of second appeal or revisional Court ---Second appeal as well as the revision petition was dismissed in circumstances.

Nawab Haji Muhammad Dawood Khan and others v. Muhammad Usman Ghani and others 1985 CLC 2309 and Trustees of the Port of Karachi v. Messrs Hyesons Commercial and Industrial Corporation 1987 CLC 1932 distinguished.

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 arid Mrs. Zebra Begum v. Pakistan Burma Shell Ltd. 1992 MLD 2494 ref.

Ch. Muhammad Anwar Bhinder for Appellants.

Muhammad Ahmad Bani for Respondents.

Date of hearing: 22nd April, 2004.

2004 C L C 1392

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. BASHIRAN BIBI---Petitioner

versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Respondent

Writ Petitions Nos. 1801, 1133 and 308 of 2004, decided on 19th April. 2004.

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

----Art. 199---Constitutional petition---Principles of natural justice--­Orders passed without issuing any notice to the petitioners ---Validity--­Principles of natural justice must be read in each and every statute unless and until it is prohibited by the wording of the statute itself---As the order by the authorities were passed without issuing of any notice to the petitioners, the same were hit by principles of natural justice---Order passed by the authorities were set aside and applications of the petitioners were deemed to be pending before them for decision afresh--­Petition was allowed in circumstances.

LCCHS v. Dr. Nusrat Ullah Chaudhry PLD 2002 SC 1068; Nizamuddin v. Civil Aviation Authority 1999 SCMR 467; A.K. Trading Corporation v. Messrs Z.H. Construction PLD 1998 SC (AJ&K) 7; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Messrs Wak Orient's case 1998 CLC 1178; Bayindir Insaat's case PLD 2001 Lah. 426; Javed lqbal's case 2004 CLC 478; Network Television Marketing Ltd.'s case 200.1 CLC 681; Messrs Airport Support Service's case 1998 SCMR 2268; Commissioner of Income Tax v. Fazal-ur-Re4man PLD 1964 SC 410; Zakir Ahmad's case PLD 1965 SC 90; Pakistan and others v. Public-at-large PLD 1987 SC 304 and Pakistan Chrome Mines's case 1983 SCMR 1208 ref.

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

----Arts. 189 & 190---Judgment of Supreme Court---Judgment of Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 & 190 of the Constitution.

(c) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition---Rule of consistency--­ Applicability---When High Court had taken a view in an earlier petition, the Court declined to deviate from its own view on the principle of consistency.

Muhammad Muzaffar Khan's case PLD 1959 SC 9 ref.

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

----Art. 199---Constitutional petition---Principle of res judicata--­Applicability---Earlier Constitutional petition was disposed of by High Court with certain conditions and the order was not assailed before any higher forum---Effect---Subsequent petition .was hit by principle of res judicata.

Pir Bakhsh's case PLD 1987 SC 145 ref.

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

----S. 24-A---Speaking order---Scope---Under S.24-A, General Clauses Act, 1897, it is the duty and obligation of public functionaries to decide the applications of citizens with reasons.

Airport Support Service's case 1998 SCMR 2268 ref.

Liaqat Ali Butt for Petitioner.

Sher Zaman Khan for Respondents.(in Writ Petitions Nos. 1801 and1133 of 2004).

Jahanzeb Khan Bharwana for Respondents (in Writ Petition No.308 of 2004).

2004 C L C 1399

[Lahore]

Before Mian Muhammad Akram Baitu, J

Syed WAQAS NOOR BUKHARI through his father---Petitioner

versus

BAHAUDDIN ZAKARIYA'UNIVERSITY. MULTAN through Vice-Chancellor and 6 others---Respondents

Writ Petition No.701 of 2004, decided on 21st April, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Dismissal---Second Constitutional petition on the same subject ---Maintainability---Res judicata,, principle of---Applicability---Educational Institutions---Admission in university on basis of Self-Finance Scheme---Candidate who failed to get admission en University on Self-Finance Scheme, approached the office for refunding his advanced amount whereupon candidate was asked by concerned Authorities that if he would not insist to refund back said amount, he alongwith other five candidates would be accommodated by way of exercising discretion of, Vice-Chancellor---University accommodated rest of five candidates except the candidate despite his name was placed at the top of said five candidates---Constitutional petition filed by candidate against decision of University was dismissed on ground that he had not availed the remedy of appeal before Admission Appellate Committee--­Intra-Court appeal filed by the candidate was disposed of as withdrawn and thereafter he filed appeal before Admission Appellate Committee Which was dismissed and candidate had filed Constitutional petition--­Record had revealed that Appellate Admission Committee of University in its meeting had considered the case of candidate---No irregularity was found in the admission process and all the admissions were granted strictly on merits and according to policy of University and thus, it was ultimately found that claim of candidate was invalid---Present Constitutional petition otherwise was hit by principle of res judicata as earlier Constitutional petition filed by candidate was dismissed and dismissal order was challenged by candidate in Infra-Court Appeal which was disposed of as same was withdrawn and was not pressed---Second Constitutional petition on same subject was not maintainable.

Muhammad Irfan Wyne for Petitioner.

Muhammad Tariq Rajwana for Respondents.

Date of hearing: 8th April, 2004.

2004 C L C 1412

[Lahore]

Before M. Javed Buttar, J

Mian DILAWAR MAHMOOD---Petitioner

versus

MEMBER (JUDICIAL-III)/CHIEF SETTLEMENT COMMISSIONER, BOARD OF REVENUE, PUNJAB LAHORE---Respondent

Writ Petition No. 181/R of 1998, heard on 10th March, 2004.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 15(3) & 16---West Pakistan Land Revenue Act (XVII of 1967), S.45---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Mutation, cancellation of---Non-incorporation of valid allotment in revenue record;--Disputed allotment was made at RL-11 on 13-8-1965 and the same became final---Grievance of the petitioner was that the Authorities had wrongly set aside the allotment on 31-10-1998, on the ground that the same was not incorporated in revenue record--­Validity---If there was a valid allotment, the same was permanent and could be cancelled only under any of tire provisions as provided in the statute---Displaced Persons (Land Settlement) Act, 1958 did not provide, that if a valid allotment was not incorporated in revenue record, the same would be deemed to have been obtained through fraud or misrepresentation---Land on which a displaced person was permanently settled under S.16 of Displaced Persons (Land Settlement) Act, 1958, would vest absolutely in such person---Altottee of land did not cease to be owner merely because the allotment in his favour was not incorporated in revenue record---Such non-incorporation could be a case of carelessness on the part of the allottee or negligence of revenue staff---Order passed by the Revenue authorities was not only arbitrary and without jurisdiction but had also promoted injustice because the allotment made as far back as in 1965, and again verified under the orders of Settlement Authorities had been cancelled and declared as void without any reason or ,justification---High Court in exercise of Constitutional ,jurisdiction set aside the order passed by the Revenue Authorities---Constitutional petition was allowed in circumstances.

Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 228; Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others 1994 SCMR 150; Kareem Bux v. P.O. Sirdh end others 1998 CLC 27; Mst. Umar Bibi and another v. Officer on Special Duty, Central Record Office, Lahore and 3 others PLD 1986 Lah. 109; Ghulam Muhammad v. Sardar Muhammad Aslam Sukhera and 4 others 1.993 MLD 423 and Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719 and Ahmad Saeed v. M.B.R. and others 1999 MLD .167 ref.

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

----S. 42---Attestation of mutation---Procedure---Mutation attested on same day---Validity---If ownership of vendor is not- incorporated in revenue record, in that case the Revenue Officer firstly attests mutation in favour of the owner and then he attests the mutation in favour of the vendee on the same day---Such mutation cannot be mala fide as it was a matter of routine.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 15(3) & 16---Evacuee Property and Displaced Persons Law (Repeal) Act (XIV of 1975), S.2---West Pakistan Land Revenue Act (XVII of 1967). S.45---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Mutation, cancellation of---Non-incorporation of valid allotment in revenue record---Effect---Entries in RL-II---­Presumption---Disputed allotment was made at RL-II on 13-8-1965 and the same became final---Original record of the allotment in favour of the petitioner was destroyed in fire but before destruction. Secretary Board, of Revenue had checked the same and found it in order---During checking the original RL-II was found to be intact Without any forged entry in it---Directions were issued to Deputy Commissioner to issue certified copy of RL-II to the petitioner which was duly supplied to him copy of which was available on record---Settlement Authorities cancelled the allotment in favour of the allottee on 31-10-1991, on the ground that the same was not incorporated in revenue record---Validity---Authorities did not hold any inquiry/investigation, did not record any evidence and no such evidence was produced before the Authorities to lead to the conclusion that the entries in the disputed RL-II were bogus, fraudulent and forged---In absence of any record„ the Authority should have taken its hands off the matter in dispute because the settlement laws stood repealed and it could have issued directions to its office to approach the civil Court for necessary declaration, if and when any such record surfaced, which could prima facie show that the allotment in favour of the petitioner was fraudulent---Entries in the RL-II available on record were presumed to be true unless proved otherwise through evidence--­Order, passed by the authorities was set aside by the High. Court in exercise of Constitutional jurisdiction---Petition was allowed in circumstances.

Nasim Ahmad and 4 others v. Deputy Settlement Commissioner, (Malik Shaukat Ali) Circle V, Farid Kot House, Lahore and 4 others 1986 MLD 2382 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

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

---Art. 199---Constitutional petition---Maintainability---Locus standi--­Petitioner was vendee from the original allottee and had filed the petition to defend the allotment made in favour of the allottee---Plea raised by the petitioner was that the allotment in favour of the allottee / vendor was genuine and a valid title in land had been transferred to him through valid sale---Validity---Petitioner being vendee from original allottee had a vested right in land purchased by him and he could validly invoke Constitutional jurisdiction to protect his property---Even if the allotment in favour of the allottee /vendor was fraudulent or fake, the petitioner was entitled to hold on to the land purchased by him because he was a bona fide purchaser without notice---Petition was maintainable in circumstances.

Muhammad Hussain Awan for Petitioner.

Syed Aal-e-Ahmed for Respondent.

Date of hearing: 10th March, 2004.

2004 C L C 1438

[Lahore]

Before Syed Zahid Hussain and Rustam Ali Malik, JJ

PROVINCE OF PUNJAB through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another---Appellants

versus

RAOOF CORPORATION (PVT.) LTD. ---Respondent

Regular First Appeal No.27 of 2000, heard on 31st March, 2004.

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

----O. VII, R. 2---Suit for recovery of money for the work done---Suit was partly decreed by the Trial Court---Defendant had denied the confirmation of the executed work and had pleaded that confirmation of the executed work was under question and was being scrutinized by the Scrutiny Committee---Duty of the plaintiff was to prove its case by producing cogent and convincing evidence---Plaintiff had produced photocopy of a report which was neither proved or exhibited as piece of evidence nor was confronted to the witness---Trial Court had misread and misconstrued the evidence on record and wrongly attributed an admission of the liability---Judgment and decree of the Trial Court were set aside in circumstances.

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

----O. XX, R. 5---Decision on each issue---Trial Court disposed of four issues together---High Court found that those issues had different scope and implications---No findings were given on the issue of valuation and court-fee---Judgment and decree were set aside and case was remanded for rewriting of judgment.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816 quoted.

Mst. Gul Shahbah v. Civil Judge-III/Judge, Family Court, Haripur and 2 others PLD 1992 Pesh. 13 and Haji Abdul Jalil v. Anjuman Jame Masjid Haquani 1996 MLD 818 rel.

Mian Muhammad Athar for Appellants.

Riaz Karim Qureshi for Respondent.

Dates of hearing: 29th and 31st March, 2004.

2004 C L C 1449

[Lahore]

Before Muhammad Muzammal Khan, J

LAHORE DEVELOPMENT AUTHORITY through Director-General, 7-Egerton Road Lahore and another---Petitioners

versus

MUHAMMAD SALEEM and another--Respondents

Civil Revision No.913 of 2004, decided on 7th April, 2004.

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

----Ss. 34 & 152---Amendment of decree---Award of interest---Suit for recovery filed by the plaintiff against the defendant Authority on account of compensation of land owned by the plaintiff was decreed by the Trial Court---Appeal preferred by the defendant against said decree was dismissed---During execution of the decree, application filed by the defendant under Ss.34 & 152, C.P.C. to amend the decree on the ground that it did not contain the period for which interest was payable on the decretal amount, was also dismissed---Contention of the defendants was that the amendment of the decree under. S.34, C.P.C. was inevitable--­Validity---Under S.34, C.P.C. Trial Court was invested with power to award interest on the principal amount adjudged by it, from the date of the suit till the date of the decree and in addition thereto, any interest at such rate as the Court deemed reasonable, on the aggregate sum of the amount payable from the date of decree till the date of payment or from such earlier date, as the Court thought fit and if the decree was silent with regard to payment of further interest, that shall be deemed to have been refused---Defendant could not urge that the decree was silent about the length of period for which the interest was to be paid---Neither the decree was silent about the length of period for which the interest was to be' paid, nor S.34, C.P.C. was of any, help to the defendant---Contention of the defendant had no force and the petition was liable to be dismissed.

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

----S. 47---Executing Court, jurisdiction of---Executing Court cannot go beyond the decree which is the subject of execution.

Province-of Punjab through Secretary Industries, Government of the Punjab, Civil Secretariat, Lahore v. Burewala Textile Mills Limited 2001 SCMR 396 ref.

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

----S. 152---Scope of S.152, C. P. C. ---Scope of S.152, C. P. C. was very narrow, as this provision of law was only meant to correct clerical and arithmetical mistakes in the judgments and decrees---Said provision was not meant to reopen the case---Any omission in the judgment and decree could only be rectified through an appeal or review---Clerical and arithmetical error---Definition---Clerical and arithmetical error was one which could only be explained by considering it to be a result of slip of pen or some mistake or omission on the part of the person preparing it--­Judgment, in the present case, demonstrated that the findings of the Trial Court were given after application of conscious judicial mind to the case and thus, no error was pointed out in terms of S.152, C.P.C.--­Application of the defendant was rightly rejected by the Trial Court, in circumstances.

Crown v. Habib Ullah and others PLD 1952 Lah. 587 and Master Ghulam Rasul v. Additional District Judge, Lahore and another PLD 1982 Lah. 303 ref.

(d) Words and phrases---

----"Clerical and arithmetical error"---Connotation.

Mian Iftikhar Ahmad for Petitioners.

Muhammad Shahzad Shaukat for Respondent No. 1.

2004 C L C 1455

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SHARIF and others---Petitioners

versus

SALEEM BIBI---Respondent

Civil Revision No. 1107-D of 1998, heard on 23rd February, 2004

Specific Relief Act (I of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), Ss.44, 47 & 54---Suit for possession---Sale in joint holding---Persons purchasing from a co­sharer in joint holding, would not stand in a better position than that of their vendor and such sale would always be subject to adjustment at the time of partition---Purchaser would not become exclusive owner of specific Khasra Numbers in un-partitioned jointly owned land ---Co­sharer was entitled to retain possession of joint property---Suit for partition and a suit for physical possession in favour of a co-sharer against another co-sharer could not be filed--Suit was only maintainable to, the extent of symbolic possession---Co-sharer in a joint property would not be entitled to decree for joint possession ---Co-sharer, in a joint Khata, could alienate part of his property to stranger provided he was in possession of that property---Such possession would remain intact until partition had taken place between. co-sharers---Where no regular partition had taken place between the contesting parties, co-sharer had a right in each and every Khasra number of the suit-land irrespective of the quantity and quality---Co-sharer, who was in exclusive possession of a specific portion , of a joint property, could not alienate, transfer 'or exchange same unless a regular partition half taken place between, co­-sharers---One co-sharer in exclusive possession of a plot of land could not be dispossessed by another co-sharer except by suit for partition--­Plaintiff who was altogether out of possession out of joint property which was in exclusive possession of other co-sharer, was not entitled to get decree for joint possession---Only remedy of a co-sharer out of possession of joint, property, was by way of partition and he could get a decree for joint possession---Plaintiff had prayed for decree of specific portion of land in a joint holding, which could not be passed as suit ,for possession filed by plaintiff, was not maintainable---Appellate Court was not justified to decree the suit.

Bahadur Khan v. Darvesh Ali Khan PLD 1994 SC 354; Muhammad Siddique v. Sardar Muhammad 1992 ALD 466; Nazar Hussain v. Abdul Rauf 1994 MLD 461; Jan Begum v. Nizam Din PLD 1998 AJ&K 9; Zardad Khan v. Safia Begum 1998 CLC 2006; Noor Rehman v. Muhammad Yousuf 2000 CLC 1138; Ahmed Miaji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 259; Kutijan Bibi v. Zulmat Khan and others PLD 1968 Dacca 172; Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 and Fazar Ali Khan and 3 others v. Ghulam Ali Khan and 9 others 1995 CLC 1850 ref.

Mehdi Khan Chouhan for Petitioners

Ali Masood Hayat for Respondent

Date of hearing: 23rd February, 2004

2004 C L C 1471

[Lahore]

Before Tanvir Bashir Ansari, J

KHAN BAHADUR and another---Petitioners

versus

MUHAMMAD AFZAL GUJJAR and 4 others---Respondents

Writ Petition No.270 of 2003, decided on 17th May, 2004.

Punjab Local Government Elections Rules, 2000---

----Rr. 70- & 83---Constitution of Pakistan (1973), Art.199--Constitutional petition--Declaring election as a whole void---Election Tribunal in one of the paras of -its judgment passed in an election petition had found that no tangible evidence existed which proved allegation of rigging against returned candidates---Election Tribunal, however, had set aside Election under R.83 of Punjab Local Government Elections Rules, 2000 after coming to the conclusion that counting had not been made according to provisions of Punjab Local Government Elections Ordinance, 2000 and Punjab Local Government Elections Rules, 2000 and that elections suffered from the prevalence of extensive illegal practice without attributing any corrupt practice to the returned candidates---Election Tribunal had not found the returned candidates guilty of any specific corrupt practice, but had declared election as a whole void upon general prevalence of corrupt and illegal practice which had materially affected the result of elections---Validity---In order to declare the whole election as void, Election Tribunal must feel satisfied that the results of election had been materially affected on account of the reasons mentioned in. R.83(a) & (b) of Punjab Local Government Elections Rules, 2000---Not necessary in law that any corrupt or illegal practice must also be specifically attributed to a candidate or his representatives, etc.

Hem Raj v. Ramji Lal and another AIR 1975 SC 382 and Sudhir Laxman Hendre v. Shripat Amrit Dange and others AIR 1960 Bom.. 249 ref.

Sh. Zamir Hussain for Petitioners.

Ch. Afrasiab Khan for Respondents.

Date of hearing: 30th April, 2004.

2004 C L C 1482

[Lahore]

Before Abdul Shakoor Paracha, J

NAZIR AHMAD and others---Petitioners

versus

MUHAMMAD SALEEM and others- --Respondents

Civil Revision No. 131-D of 1995, decided on 9th April, 2004.

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

----Ss. 96, 104, 115 & O.XLIII---Specific Relief Act (I of 1877); S.42--­Suit for declaration and permanent injunction adjudging a sale-deed in favour of the defendants as void, was dismissed by the Trial Court--­Appeal against such decision was accepted-- -Revision petition was filed by the defendants---Question for determination was as to whether finding of the Trial Court recorded on preliminary issues against the defendants, for which no appeal was filed, could be agitated before the revisional Court after decision of the suit---Validity---Appeal against the order of the Trial Court through which it decided the preliminary issues, was not competent under S.96 or 104 read with O.XLIII, C.P.C., therefore, the same could be challenged when the suit was finally disposed of.

Federation of Pakistan through Secretary General, Ministry of Defence and 2 others v. Sqdn. Leader (Retd.) Mushtaq Ali Tahir Kheli and others PLJ 2003 SC 852 ref.

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

----S. 23_---Specific Relief Act (I of 1877), S.18---Contentions of the defendants were that the agreement between the plaintiffs amounted to alienation of sale as mentioned in para. 10 of MLR 91, and as such was violative of S.23 of the Contract Act, 1872 and therefore void and that the agreement to sell could not have been entered into by the plaintiffs because the land vested in the Provincial Government---Validity--­Agreement to sell between the plaintiffs did not amount to alienation by sale as mentioned in para. 10 of MLR 91---Provision of S.23 of the Contract Act, 1872, also for the same reason, was not attracted, because the agreement to sell was not prohibited by relevant law---Bar under para. 10 of MLR 91 was against the alienation and not against the agreement---If a decree is procured by a person against the other person in respect of a property which did not vest in that person it would be merely decree without corps---Some conditions precedent were attached in the present case to the validity of transfer, thus it was open for the plaintiffs to enter into such agreement subject to compliance with conditions precedent---Agreement could be enforced through performance after grant of proprietary rights by effecting the title as provided under S.18 of Specific Relief Act, 1877 which provided that a person entering into an agreement for sale of property having imperfect title but subsequently acquiring interest in the property was bound to make good the contract out of such an interest---Agreement to sell was thus not in violation of para. 10 of MLR 91, as such it was neither without consideration nor with unlawful objective as contemplated in S.23 of Contract Act, 1872, being against the pubic policy and was enforceable under the law.

Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510 and Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470 ref.

The Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1991 SCMR 736; Muhammad Siddique's case PLD 1980 Revenue 62; Manzoor Hussain and others v. Zulfiqar Ali and others1983 SCMR 137; Haji Abdullah's case PLD 1965 SC 690 and Shamoon and others v. Ahmed and others 1986 SCMR '888 distinguished.

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

----S. 12(2)---Order obtained by fraud---Validity---Distinction between void and voidable orders---Order obtained by fraud was not void but only avoidable and it remained operative as long as it was not set aside, rescinded or recalled by the competent authority in proper proceedings--­Order is to be treated void only when it is made by a Court, tribunal or ether authority which had no jurisdiction either as regards the subject­matter, pecuniary value or the territorial limits where the dispute arose--­Fraud vitiates all proceedings---Allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiry and it was for this reason that order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by same.

Chief Settlement .Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

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

----S.12---Decree for specific performance, effect of---Mere getting of a decree for specific performance does not create any right, title or interest unless the same is got executed and sale-deed registered.

Haji Abdul Rehman and others v. Noor Ahmad and others PLD 1974 BJ 25 ref.

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

----S. 41---Bona fide purchaser--- Evidence and findings on the record showed that the defendants had the knowledge of pending litigation between the plaintiffs, but they collusively purchased the land in conspiracy with one of the defendants to make unsuccessful attempt for avoiding decree which was not possible---Rights of the defendants were not protected under $.4I of the Transfer of Property Act. 1882, as they were not bona fide purchasers without notice---Defendants had disentitled themselves for the protection under S.41 of Transfer of Property Act, 1882 on account of absence of efforts to make enquiry from the Revenue Record.

Muhammad Sabir Khan and others. v. Rahim Bakhsh and others PLD 2002 SC 303 ref.

(f) Transfer of Property Act (IV of 1882)---

----S. 54---Title, determination of---Title is determined from the date of execution and not from the date of registration of the document.

Ibrahim v. Mst. Rajji PLD 1956 W.P. Lah. 609 ref.

(g) Transfer of Property Act (IV of 1882)---

----S. 52---Transfer of property pending suit---Validity---Where the parties had been contesting the sanction of mutation before the revenue hierarchy up to the Board of Revenue and the decree was not obtained by collusion or fraud, S.52 of Transfer of Property Act, 1882, would be fully applicable in their case.

Fazal Karim v. Muhammad Afzal PLD 2003 SC 818 ref.

Ch. Khurshid Ahmad for Petitioners.

Syed Najam-ul-Hassan Kazmi for Respondents.

Date of hearing: 8th March, 2004.

2004 C L C 1507

[Lahore]

Before Mrs. Fakhar-un-Nisar Khokhar, J

Malik MUHAMMAD FEROZ--Petitioner

versus

Ch. BASHIR AHMAD---Respondent

C.R. No.274 of 2004, heard 12th May, 2004.

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

----O0. XVII, R.3---Failure to produce evidence---Suit, dismissal of--­Principles---Court can use the punitive action under the provisions of O.XVII, R.3 C.P.C., without even giving a final opportunity of evidence to the parties---Provision of O.XVII, R.3 C.P.C. is permissive and discretionary and also not mandatory in nature---Court can only close the evidence if the conduct of parties is contumacious and fails to produce the witnesses---Where a party has failed to produce evidence, the Court may close its evidence and proceed to record the evidence of the other party and when evidence of the other party is recorded, the other side must be given a reasonable opportunity to impeach the testimony of the witnesses---Trial Court has to follow the guidelines before attracting the provisions of O.XVII, R.3 C.P.C., namely that (i) the time must be granted to the parties at their own instance, (it) time must have been granted to the parties to do one or other of the three things mentioned in the Rule to-produce evidence or to cause attendance of witnesses or to perform any other act necessary for the progress of the suit, (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and (iv) the Court must decide the suit forthwith, which means a decision within a reasonable time under the circumstances.

Mst. Arifa Amjad and 2 others v. Abbas Tayab Dar and another (1990 CLC 1743) (Lah.) rel.

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

---O. VII, R.11 & O. XVII, R.11---Dismissal of suit---Failure to produce evidence---Filing of application under O.VII, R.11 C.P.C.-- Instead of deciding application under O.VII, R.11 C.P.C.; Trial Court, formulated issues and the suit was dismissed for the reason that the plaintiff failed to produce evidence---Judgment of Trial Court was maintained by Appellate Court ---Validity---Where application under O.VII, R 11 C.P.C. was given and reply had been filed; the Court was bound to decide the same firstly and then should have proceeded on with the case or to frame issues and treated the issues of the suit being incompetent' as preliminary issues and recorded the evidence and then decided the same---While administering the justice, the Trial Court should not be harsh to the parties to punish them .where and whenever an occasion arose rather the Court should sit with an open and judicial mind­ant should have acted in all fairness within the norms of justice – Where the Trial Court had rushed to a punitive action rather, giving sufficient time to the parties to produce their evidence-, material irregularity, and illegality existed to attract the provisions of O.XVII, R.3 C.P.C---Judgments and decrees passed by both the Courts below were set aside and the case was remanded to Trial Court for decision on merits.

Syed Arshad Naeem and 5 others v. Atta Rabbani and 2 others 1999 MLD 2267; Mian Gul Shehzad Aman Room. V. Kameen Mian and others PLD 2003 Pesh. 60 and Muhammad Akhlas v. Syed Mehdi Raza 1988 MLD 1545 ref.

Muhammad Saeed Ahmad for Petitioner.

M. Aslam Shahid for Respondent.

Date of hearing: 12th May, 2004.

2004 C L C 1518

[Lahore]

Before Muhammad Muzammal Khan, J

GULZAR---Petitioner

versus

BASHIR AKHTAR and 2 others---Respondents

Writ Petition No. 12119 of 2003, decided on 27th April, 2004.

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

----S. 148---Constitution of Pakistan (1973), Art, 199---Constitutional petition---Extension of time---Sufficient reasons---Misunderstanding of order---Petitioner failed to deposit surety bond within the time given by the. Court and application for extension of time filed by the petitioner was dismissed---Plea raised by the petitioner was that under S.148 C.P.C., the Court was empowered to extend the time as he misunderstood the order for deposit of surety bond Validity---Court declined extension of time being oblivious of the provisions of S.148 C.P,C. which empowered the Court to extend time fixed by it for sufficient and good reasons---Petitioner had given reason of misunderstanding of the order and according to law, such reason was a good ground for showing indulgence by the Court---Court to its discretion could extend time for doing any act from time to time and could enlarge such period even though the period originally fixed might have expired- --Application seeking extension of time was duly supported by affidavit the petitioner and there was nothing on the file to controvert the same, even in the form of a counter affidavit---Order of the Court refusing extension of time being illegal and void was set Aside---High Court allowed the petitioner one opportunity to deposit the surety bond subject to payment of costs---Petition was allowed accordingly..

Muhammad Farooq Imam v. Claims Commissioner, Lahore and 2 others PLD 1964 SC 585 and Dr. Sher Din Batra v. Abdul Rehman Wahla PLD 1983 Lah. 491 ref.

Mrs. Tabinda Islam for Petitioner.

Malik Amir Muhammad Joiya for Respondent No. 1.

2004 C L C 1520

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SHARIF---Petitioner

versus, ABDUR RASHID, KHAN, MEMBER, BOARD OF REVENUE (COLONY), PUNJAB, LAHORE and 5 others ---Respondents

W. P. No. 12323 of I998, heard on 27th April, 2004.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

---S. 8---Constitution of Pakistan (1973), Art. 199---Limitation Act (IX of 1908), S. 5--- Constitutional petition---Review of order by Board of Revenue---Legality---Contention of the petitioner was that the order of the Board of Revenue could not have been reviewed by its Member, and that the application for review was filed after a delay which could not have been condoned under Limitation Act, 1908--Validity---Section 8 of West Pakistan Board of Revenue Act, 1957 provided that a review petition by an aggrieved person could be filed against the decree or order within 90 days from the date of the decree---Power of review had been conferred on the Board of Revenue under the said provision of law but it was required to be exercised within the four corners of the prescribed powers and the limitation---Power to extend the time could be exercised provided that same had been conferred on the, Authority could not be exercised if not so conferred---Section 5 of Limitation Act, 1908 had not been made applicable empowering to condone the delay or extend the limitation and the Authority exercising review power in breach of statutory provision could not have assumed such power and extended the time---After the expiry of 90 days from the date of order, the Board of Revenue did not have jurisdiction to apply -under S.5 of Limitation Act, 1908---Member of the Board had, therefore, entertained the review application, contrary - to the provisions contained in S.. 8 of, the West Pakistan Board of Revenue Act, 1957.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Power of review, scope of---Power of review jurisdiction conferred on the Board of Revenue under S.8 of West Pakistan Board of Revenue Act, 1957, did not permit the rehearing of the matter on merits and it could be exercised only where there was a mistake or error of law or fact apparent on the face of the record and to find out such error one had to scrutinize the record or evidence---Perusal of the record in the present case showed that the reasons mentioned in the impugned order were available at the time of passing of the earlier order, therefore, no case for review of the said earlier order was made out before the Board.

Riaz Hussain and others' case 1991 SCMR 2307 ref.

Syed Kaleem Ahmad Khurshid for Petitioner.

Muhammad Sohail Dar, A.A.G. for Respondents No. l and 2.

Shaukat Haroon for Respondent No.3 and 4.

Date of hearing: 27th April, 2004.

2004 C L C 1525

[Lahore]

Before Mian Hamid Farooq, J

Ch. IJAZ SARWAR---Petitioner

versus

NADEEM FAROOQ and another---Respondents

W.P. No. 3118 of. 2004, heard on 7th April, 2004.

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

----S. 13(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rent Controller, powers of---Review of order, jurisdiction of­--Ejectment petition was filed by the respondent against the petitioner in which the Rent Controller through an order framed a solitary issue to determine whether there existed relationship of tenancy between the parties---Subsequent application by .the respondent to review the said order however was accepted by the Rent Controller who through the impugned order fixed a tentative - rent of the property in question and directed the petitioner to deposit the arrears of rent since institution of the ejectment petition---Constitutional petition was filed by the petitioner against such order---Contention of the petitioner was that the Rent Controller had no jurisdiction under the law to review his order and pass the order for the deposit of rent and, therefore, the impugned order was without jurisdiction---Validity---Rent Controller under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, had no jurisdiction to review his order---Constitutional petition was allowed in the circumstances.

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965: Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94: Hussain Bakhsh v. Settlement Commissioner, Rawalpindi arid others PLD 1970 SC 1 ref.

Dad Muhammad v. Qazi Muhammad Hayat and 11 others 1996 C. LC 1705; Tariq Ali Sheikh v. Rent Controller (Khalid Nawaz) Lahore aid another 19921 C.L.C 400 and Ghulam Rasool v. Mian Khurshid Ahmed 2000 SCMR 632 distinguished.

(b) Review----

---Right of---Substantive right and not procedural matter---Review was a substantive right and not a matter of procedure and no Court possessed the inherent powers to review its decree or order unless such a power was expressly granted by the statute.

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307: S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCNIR 965: Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94: Hussain Bakhsh v. Settlement Commissioner, Rawalpindi arid others PLD 1970 SC I ref.

Muhammad Nawaz Chaudhary for Petitioner.

Ahmad Waheed Khan for Respondents.

Date of hearing: 7th April, 20(14.

2004 C L C 1531

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

ASGHAR ALI ---Appellant

versus

WAQAR-UZ-ZAMAN and others---Respondents

Regular First Appeal No.7 of 1997, heard on 16th March, 2004.

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

----O. XLI, R. 22---Decree for return of money---Non-filing of cross appeal or, cross objections---Effect---Court could not set aside or modify the decree without their being cross appeal or the cross objections--­Defendants, against whom the decree had been passed, having not raised the plea that the direction in the decree for the return of the earnest/advance money be set aside, had no locus standi to challenge such part of the decree.

Khatrati and 4 others v. Aleem-ud-Din and others PLD 1973 SC 295 fol.

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

----S. 208---Meaning and purport of 5.208, Contract Act, 1872.---When termination of agent's authority takes effect as to against, principal and as to third person---Scope---On account of the death of the principal when the property in his estate immediately and automatically has devolved upon his legal heirs, an attorney, earlier appointed by the principal in his life time, cannot deprive the legal heirs of the deceased of their ownership rights, by entering into a transaction for the alienation of their property, with any third party, and such third party on account of being unaware about the death of the principal, cannot take shelter under S.208, Contract Act, 1872---Principles.

For the purpose of understanding the true meaning and the purport of section 208 Contract Act, 1872 it is necessary to make reference to section 201, which provides the situation and the general rule about the termination of the authority of an agent. The section, inter alia, envisages that on the death of the principal or the agent, the agency shall automatically be terminated. Obviously, this is propoundly logical, because the conferment of the authority upon an agent by the principal is highly personal in nature,, and the moment an agent is dead, there is no one left to exercise such authority. Similarly the death of the principal deprives the agent of any one for whom he can act. The legal consequences which follow are, that, the agency ceases/lapses altogether. However, section 208 to some extent, is an exception to the general rule, and has a.limited scope and application. This provision of law, in no way, can be interpreted to, permit an agent to keep on exercising his authority on the basis of a power of attorney, which by operation of law, stood terminated, on account of the death of his principal, and admittedly, when this fact is in the knowledge of the agent. Such agent cannot continue entering into fresh and new agreements and transactions with the unknown and would be third party. The third party referred to .in this section and elaborated in the illustrations, means the specific person with whom the agent was conferred with an authority to, interact and that too for a particular nature of transaction. For example, if a third party has to discharge an obligation towards the principal such as the payment of any debt or the amount and before the death comes to his knowledge, the payment is made to the agent, it shall give a complete discharge to the third party.

In any case, even giving -the widest meaning to the exception under section 208, it cannot be construed and extended to connote, that on account of the death of the principal when the property in his estate immediately and automatically has devolved upon his legal heirs, an attorney earlier appointed by the principal in his life time, can deprive the legal heirs of the deceased of their ownership rights, by entering into a transaction for the alienation of their property, with any third party, and such third party, on account of being unaware about the death of the principal, can take shelter under section 208.

The above principle is more squarely applicable in the case of ­the death of a Muslim. As under the law of inheritance', the estate of a deceased Muslim automatically devolves upon his legal heirs the moment he closes his eyes. This means that on the death of Principal, which occurred much before the agreement to sell, defendants became the owner of the property in question, and Principal who had died, was left with the no right or the interest in the property, because under the law, a dead person conceivably cannot own or hold any property of whatever nature -it may be. Therefore, by utilizing the said power of attorney. Attorney could not have agreed to transfer any property which was not belonging to the Principal, and in this manner could legally bind this legal heirs; when there is no evidence on the record, if such legal heirs had rectified the alleged authority of the attorney.

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

----Ss. 12, 15, 16 & 17---Contract.Act (IX of 1872), S.208---Suit for specific performance of agreement to self land---Because of the lack of authority of attorney on behalf of co-sharers who had a larger share in the property, which otherwise, was indivisible, the Trial Court, under the provision of , Ss.15, 16 & 17, Specific Relief Act, 1877, notwithstanding the proof of the agreement to sell on behalf of some of the co-sharers, had rightly refused to grant the decree for the specific performance in favour of the plaintiff.

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

----Ss. 12 & 27(b)-Transfer of Property Act (IV of 1882), S.41---­Specific performance of agreement to sell---Bona fide purchaser for valuable consideration---Protection ---Plaintiff had failed to establish, in positive terms that the defendants had the knowledge about the agreement to sell---Entire evidence led in that behalf was most improbable and seemed to be result of concoction---Burden to prove initially as to whether defendants were bona fide purchasers with consideration without notice of the disputed 'land was on the defendants, but when the onus was discharged by the defendants, nothing in rebuttal had been stated by the plaintiff to contradict the same and to establish that they had the knowledge of the agreement in favour of the plaintiff---No protection, in circumstances, was available to the plaintiff---Plaintiff having failed to discharge his onus, High Court declined to interfere in appeal.

Mst. Khair ul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Abdul Haque and others v. Shaukat Ali and others 2003 SCNIR 74 ref.

Zafar Ali Shah for Appellant.

Ch. Khurshid Ahmed for Respondents.

Date of hearing: 16th March, 2004.

2004 C L C 1541

[Lahore]

Before Syed Zahid Hussain, J, Dr. MUHAMMAD USMAN KHAN and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Cabinet Division Islamabad and another---Respondents

W. P. No. 16894 of 2003, decided on 31st March, 2004.

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

----Art. 199---Constitutional petition---Policy decision---Locus standi--­Petitioners, who were Doctors working in Department of Urology of the Hospital pleaded that the Hospital Authorities be restrained from treating "Transplant Surgery (Kidney)" as a distinct special field---Such prayer could not be granted as the Court could not pry into the rationale or the adequacy of such a decision, nor should interfere with the same---Further prayer that Doctors' seniority in the Department of Urology may not be affected was assured by the Hospital Authorities in the written reply of parawise comments that the Department of Urology shall continue to be a distinct field of specialization apart from "Transplant Surgery (Kidney)"---Constitutional petition was dismissed in circumstances.

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

----Art. 199---Constitutional petition---Locus standi---Contention of Doctors of the Hospital was that said Hospital was acting in violation of Regulations of Pakistan Medical and Dental Council---Validity---Held, such matter was not the concern of the Doctors of the Hospital and the Council could take appropriate steps and action to avert any such situation in accordance with law---Doctors had no locus standi in the matter qua any such assumed violation.

Dr. A. Basit, Advocate.

Imran Aziz Khan, Advocate.

2004 C L C 1545

[Lahore]

Before Ch. Ijaz Ahmad, J

Mirza, SHAHID BAIG- --Petitioner

Versus

Mst. LUBNA RIAZ and 2 others---Respondents

W.P. No.2750 of 2003, decided on 27th April, 2004.

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

----Preamble & S.17---Trial of suits---Special procedure ---Object--­Purpose of enacting Special Law regarding family disputes is advancement of justice and to avoid technicalities, which are hindrance in the ultimate justice between the parties---Court has to regulate its own proceedings in view of the provisions of West Pakistan Family Courts Act, 1964---Court, in regulating the proceedings, has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Family Court can exercise its own powers to prevent the course of justice being deflected from the path---West Pakistan Family Courts Act, 1964, is a remedial statute and its enactment is actuated with beneficial object behind it, for expediting the matrimonial and family disputes by simplifying the procedure and curtailing the technicalities of the procedural law---Such procedure has been adopted keeping in view the weaker limb of our society in juxtaposition of .our social and socio-economic conditions---Purpose of enacting West Pakistan Family Courts Act, 1964, is to avoid technicalities of Qanun-e-Shahadat and Code of Civil Procedure, 1908, so that the family matters can be settled by way of administration of justice in its true sense unhindered by technicalities.

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

----Ss. 5 & 17---Constitution of Pakistan (1973). Art. 199--­Constitutional petition---Family dispute---Recovery of dowry articles--­List of dowry articles and cash memos---Family Court decreed the suit filed by wife and the value of the dowry articles was fixed on the basis of cash memos and list of dowry articles produced by the wife--­Judgment and decree was maintained by Appellate Court with a modification in the decretal amount whereby value of the dowry articles was reduced---Plea raised by the husband was that both the Courts below decreed the suit on the basis of cash memos and list of dowry articles which were not proved in accordance with the provisions of Qanun-e-Shahadat, 1984---Validity---Method of institution of suits and recording of evidence was altogether different from the cases instituted in Civil Courts---On such account the evidence adduced before Family Court could not be evaluated and appraised in a manner as it was appreciated in cases presented under Civil Procedure Code, 1908---Wife had appended list, of her dowry articles as well as the receipts with her plaint and she had also tendered such documents in her statement recorded by the Courts below, which was corroborated by her mother by appearing before Family Court---Such list was duly signed by younger brother of the husband, therefore, denial of husband qua the remaining dowry articles was not sustainable in the eyes of law---Both the Courts below had rightly reappraised all the documents in question and the evidence, and had rightly given concurrent findings of fact against the husband---Judgments and decrees passed by both the Courts below were in consonance with the Preamble of West Pakistan Family Courts Act, 1964---Special Court was constituted for expeditious disposal and justice, that was the reason the provisions of Qanun-e-Shahadat, 1984, and Civil Procedure Code, 1908, were not applicable in the proceedings before the Family Court---High Court in exercise of Constitutional jurisdiction declined to interfere with the concurrent judgments passed by the two Courts below---Petition was dismissed in circumstances.

Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; Khan Azizul Hassan Khan v. Haji Muhammad Ismail PLD 1972 Lahore 142; Hyderabad Development Authority v. Abdul Majeed etc. PLD 2002 SC 84; Sardar Baig .v. The State 1978 PCT.LJ 92; Messrs Bangle Friend & Co. Dacca v. Messrs Gour Benode Saba & Co. Calcatta, PLD 1969 SC 477; Muhammad Anwar v. Ciba Geigy Ltd. NLR 1991 AC 429; Ali Muhammad Khan v. Sher Zaman PLD 1988 Pesh. 108; Mrs Batool v. Shehzad 2002 MLD 1087; Muhammad Anwar v. Shaukat Ali 2000 CLC 1086; Abdul Majid MIA v. Maulvi Nabiruddin Pramanik PLD 1970 SC 465; Mst. Bakht-e-Rawida v. Ghulam Habib and 2 others PLD 1992 Kar. 46; Syed Amjad Ali v. Mst. Shah Jehan and others PLD 1997 Kar. 399; Mahnda etc. v. Shamim etc. 1995 CLC 908; Malik Muhammad Tufail and another v. Messrs Fauji Fertilizer Co. Ltd. 2000 CLC 1838; Muhammad Rafiq v. Mst. Kaneez Fatima 2000 SCMR 1563; Haji Sirajuddin v. Haji G.M. Khan 1990 CLC 331, Executive Engineer C & W Mansehra and 2 othqs v. Muhammad Nasim Khan and 4 others ­2002 CLC 427; Hyderabad Development Authority v. Abdul Majeed and others PLD 2002 SC 84 and Muhammad Iqbal Fasih v. National Bank of Pakistan, Lahore PLD 1980 Lah. 38 distinguished.

Muhammad Tazeel v. Mst. Khair-Un-Nisa 1995 SCMR 885; Custodian of Evacuee Property AJ&K v. Tariq Mahmood Butt 2001 YLR 3139; Mst. Attar Jan v. Mst. Resham and others 2001 YLR 3293; Municipal Corporation Mirpur v. Qazi Muhammad Farooq and 2 others 2001 YLR 3310; Nazar Muhammad v. Muhammad Nawaz and 6 others 2001 YLR 1501, Shoukat Ali v. Karachi Electricity Supply Corp. 2001 MLD 1845; Messrs Sulamic Corporation v, United Bank Limited 2002 MLD 1644; Syed Munir Hassan v. Shamsa Safdar PLD 2003 Karachi 519; Muhammad Javed Iqbal v. Mst., Tahira Naheed 2002 CLC 1396; Ghulam Murtaza v. Addl. District Judge and others 1999 CLC 81; Abdul Majid v. Judge Family Court Karorepacca 2003 YLR 884; Zulfiqar Ahmad v. Judge Family Court 1996 MLD 1997; Mst. Neelam. Nosheen v. Raja Muhammad Khaqan 2002 MLD 784; Intizar Hussain v. The State 1998 MLD 1890; Zameer Muhammad Khan v. Fateh Muhammad 1993 CLC 133; Muhammad Saeed Qureshi v. Mst. Ifat Ara 1969 SCMR 145: Hameeda Begum v. Murad Begum PLD 1975 SC 624; Haji Nizam Khan v. Addl. District Judge PLD 1976 Lah. 930; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich and others PLD 1967 Lah. 977; Syed Munir Hussain v. Shamsa Safdar PLD 2003 Kar. 519 and Trustee Board of Karachi's case 1994 SCMR 2213 ref.

(c) Interpretation of statutes

----Remedial laws---Principle---Such laws are to be liberally construed and meanings can be assigned to it without being presumptuous.

(d) Interpretation of statutes-----

----Special law excludes the genera law.

Muhammad Asim Malik v. Anwar Jalil and 4 others PLD 1989 Lah. 279: Zia-ur-Rehman's case PLD 1.973 SC 49 and Mian Nawaz Shard's case PLD 1993 SC 473 ref.

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

----Art. 199---Constitutional petition---Maintainability---Concurrent findings of facts by the Courts below- --Constitutional petition was not maintainable.

Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Muhammad Sharif v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Nature---Such jurisdiction is discretionary in character.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Haji Saif Ullah's case PLD 1989 SC 166; Rana Muhammad Arshad's case 1998 SCMR 1462 ref

(g) West Pakistan Family Courts Act (XXXV of 1964)-----

----S. 5---Suit for recovery of dowry articles---Plea not raised in pleadings---Effect---Parties were bound by their pleadings---Pleas not raised in written statement by the defendant were rightly not, relied upon by the Courts below.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 and Messrs Choudhry Brothers Ltd. Sialkot v. The Jaranwala Central Cooperative Bank Ltd. 1968 SCMR 804 ref.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Badar-ul-Ameer for Respondents.

Date of hearing: 27th April, 2004.

2004 C L C 1559

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD ABBAS GUJJAR---Petitioner

Versus

DISTRICT RETURNING OFFICER/DISTRICT JUDGE, SHEIKHUPURA and 2 others---Respondents

Writ Petition Nos.3796 and 3866 of 2004, heard on 7th May, 2004.

(a) Punjab Local Government Ordinance (XIII of 2003)---

----S. 152(1)(m)---Election expenses of previous election statement, non­ filing of---Scope---Provision of S.152(1)(m) of Punjab Local Government Ordinance, 2003, is applicable to person who is a candidate as well as to a person who has been elected---Person who is a candidate in an election is not qualified to contest the election, if such person has failed to file statement of election expenses in a previous election.

(b) Punjab Local Government Ordinance (XIII of 2003)---

----S. 152--Punjab Local Government Elections Rules, 2003, R. 18---Scrutiny of nomination papers---Procedure---Referring every dispute to Chief Election Commissioner---Validity---Such scrutiny involves summary inquiry while elaborate procedure for filing of application under S.152 of Punjab Local Government Ordinance, 2003, has been provided---Every case in which a dispute arises as to the qualification of a candidate, if the same is referred to Chief Election Commissioner, the provisions of R.18 of Punjab Local. Government Elections Rules, 2003, will be rendered nugatory and become unworkable---Such practice not only involve unnecessary inconvenience to the public but unnecessarily encumbers the Chief Election Commissioner to handle all the pre­ election disputes as to the qualification or otherwise of a candidate--­While scrutiny of nomination papers has been provided by way of a summary inquiry, under R.18 of Punjab Local Government Elections Rules, 2003, the scope of inquiry under S. 152 of Punjab Local Government Ordinance, 2003, is wider---- Provision of R.18 of Punjab Local Government Elections Rules, 2003, is not in conflict with the provisions of S.152 of Punjab Local Government Ordinance, 2003--­Only Chief Election Commissioner can competently go into the question of qualifications of a candidate at pre-election stage, it may have the effect of retarding the process of election which is against the object of election laws and public interest.

(c) Interpretation of statutes---

---- Basic principle of interpretation of statute is to make an effort to harmonize and reconcile the provisions of a statute and the rules so as to save them rather than to destroy them.

(d) Punjab Local Government Ordinance (XIII of 2003)---

----S. 152(1)(m)---Punjab Local Government Elections Rules, 2003. R.18---Constitution of Pakistan. (1973), Art. 199---Constitutional petition---Non-filing of election expenses of previous election ---Effect--­Objection before Returning Officer was raised that the candidates had not filed their election expenses of the previous elections---Only evidence on record was un-rebutted affidavit of the candidate regarding filing of election expenses as the original record of election expenses was not available---Returning Officer rejected the objection and accepted the nomination papers of the candidates---District Returning Officer being Appellate Authority, maintained the objection and rejected the nomination papers---Validity---Non-submission of documentary evidence by candidate of filing of statement of election expenses was not sufficient to disenfranchise the candidate ---Non-availability of record left the matter in serious doubt and it was not shown that the record of the statements of election expense was being maintained and if so at what level and who was the custodian of the same---Matter required detailed inquiry and the candidates could not be kept away from the process of election so as to render them remediless---If the candidates would be returned, the objectors, would have a remedy of .election petition--­Orders of Appellate Authority being without lawful authority were set aside and the nomination papers of the candidates were accepted--­Petition was allowed accordingly.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (Returning Officer) N.A. 158. Naushero Feroze and others 1994 SCMR 1299 and Election Law and Practice by Chawala (page 61 Third Edition 1985) ref.

Hafiz Abdur Rehman Ansari And Hamid Ali Shah for Petitioner.

Aamir Rehman; Addl. A.-G. with Abdul Hameed for Respondents. Nos. 1 and 2.

Ch. Fawad Hussain for Respondent No.3.

Date of hearing: 7th May, 2004.

2004 C L C 1630

[Lahore]

Before Muhammad Zafar Yasin, J

TARIQ HASSAN --- Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through VICE-CHANCELLOR and 2 others---Respondents

Writ Petition No. 1978 of 2003, decided on 30th June, 2003.

Educational Institution---

----Examination---Candidate got admission in college in Session 1993-97 and according to prospectus of University for said Session, candidate was required to qualify B.Sc. Engineering Examination within seven Academic years from date of his registration---Candidate, who was registered in November, 1994, was eligible to take 1st Annual 1994 Examination held in October, 1995---Candidate took said examination and he was required to qualify his B.Sc. Engineering upto 2nd Annual, 2000---Candidate could not complete his B. Sc. Engineering as he could not qualify five subjects of 2nd year---Candidate had prayed that he be allowed to take examination of 2nd Annual Examination, 2002 contending that according to Prospectus the University had to hold two examinations in each academic year, but University had taken examination of 2nd Annual 1996 and 1st Annual 1997 jointly and thus, candi ate, was deprived of one chance to appear in 2nd Annual to pass second year---Further contention of candidate was that he was also deprived of one chance of 2nd Annual 1999 as same was combined with 2nd Annual 2000---Candidate had claimed that after 2nd Annual, 2000, at least he had two more chances to qualify B.Sc. Engineering but he had been refused such a right---Validity---Candidate could be allowed two more chances after 2nd Annual Examination 2000 i.e. 1st Annual Examination, 2001 and 2nd Annual Examination, 2001, but it was not the case of candidate that he had ever applied for taking 1st Annual 2001 or 2nd Annual 2001 examination to pass remaining papers of 2nd year B.Sc. Engineering---Authorities had refused candidate to take such examination which had commenced and by no strength of relaxation he could be allowed to take the same---Refusal of Authorities to candidate to take examination of 2nd year B.Sc. Engineering Annual 2002 Scheduled on 20-6-2003, was neither illegal nor without lawful authority.

Zafar Ullah Khan Khakwani for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2004 C L C 1640

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD ISHAQUE KHAN---Petitioner

Versus

NAVEED AHMAD---Respondent

Civil Revision No. 199 of 2004, heard on 24th June, 2004.

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

----O. XXXVII, Rr. 1, 2, 3 & 4---Limitation Act (IX of 1908), S. 5 & Art. 181---Suit based on negotiable instrument---Ex parte decree, setting aside of---Procedure---Limitation---Conditions---Principles.

In matters of suits based on negotiable instruments, a summary procedure is prescribed under Order XXXVII of C.P.C. Order XXXVII, rule 4, C.P.C. prescribes a procedure for setting aside, of an ex-parte order passed under Order XXXVII, C.P.C.

The law provides that the decree may be set aside under Order XXXVII, rule. 4 upon the defendant showing special circumstances for his inability to appear and obtain leave within 10 days prescribed under Order XXXVII, rule. 3. The limitation provided under section 5 of the Limitation Act, is attracted for purposes of limitation in filing of applications for leave.

The provisions of Order XXXVII, Rule 4, C.P.C. take the case out of the provisions of the Limitation Act with respect to the powers of the Court in considering setting aside of the decree. It lays down the condition of showing special circumstances for setting aside the decree.

Since a special circumstance has to be shown, an application is, therefore, to be made under Article 181 of the Limitation Act and not Article 164 of the Limitation Act.

Habib Bank Limited v. Musarrat Ali Khan PLD 1987 Kar. 86 fol.

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

----Os. VII, VIII, IX & XXXVII---Interpretation and comparative study of Orders VII, VIII, IX & XXXVII, C.P.C.

Habib Bank Limited v. Musarrat Ali Khan PLD 1987 Kar. 86 quoted, (c) Civil Procedure Code (V of 1908)---

---O. XXXVII, R. 4---Suit for recovery based on cheque---Power to set aside ex-parte decree---Special circumstances---Case of the defendant, in the present case, was that he had 'not executed the cheque under reference, neither he was a guarantor nor a beneficiary and that the only allegation made against him was that he was present at the relevant time with tits executant of the cheque who happened to be his relation-­Validity---Suit was to be instituted against the executor of the negotiable instrument and not against an outsider---Defendant, in circumstances, was able to advance special circumstance for setting aside of the ex-parte decree against himself If --- Decree, in question, however would continue to be valid as far as the executant was concerned.

National Security Insurance Co. and another v. Hoechst Pakistan Ltd. and others 1992 SCMR 718 fol.

Muhammad Aurang Zeb for Petitioner.

Zulfiqar Khalid Maluka for Respondent.

Date of hearing: 24th June, 2004.

2004 C L C 1658

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

SAIF-UR-REHMAN---Petitioner

Versus

Mirza MANZOOR AHMAD---Respondent

Civil Revision No.2039 of 1995, heard on 21st January, 2004.

Punjab Pre-emption Act (IX of 1991)-----

----S. 2(a)---Constitution of Pakistan (1973), Art. 203-D---Civil Procedure Code (V of 1908), O.VII, R.11 ---Exercise of pre-emption right over urban property---Judgment of Supreme Court, prospective effect of---Suit for possession through pre-emption was filed by the plaintiff---Application for rejection of plaint filed by the defendant against the said suit was accepted by the Trial Court on the ground that no right of pre-emption could be exercised in respect of the disputed urban property---Appeal preferred by the plaintiff against the rejection of plaint was dismissed---Contention of the plaintiff was that S.2(a) of Punjab pre-emption Act, 1991, was declared repugnant to the Injunctions of Islam, and therefore, pre-emption sale could take place in respect of urban immovable property---Validity---Supreme Court through its judgment had provided that S.2(a) of the Punjab Pre-emption Act, 1991 was repugnant to the Injunctions of Islam and said decision was to take effect from 31-12-1993---Effect of the said decision was prospective in nature and thus, the right of pre-emption in respect of immovable property situated within urban area could be exercised from 31-12-1993 Right had accrued to plaintiff for the exercise of his pre­emption right before 31-12-1993 and therefore, the right of pre-emption over the suit property way not available to him---Plaint of the pre-emptor was right rejected, in the circumstances.

Mst. Bashiran Bibi v. Muhammad Kashif Khan PLD 1995 Lah. 200; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 31,,4; Fazal Elahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Qazi Muhammad Shahah-ud-Din v. Muhammad Qasim 1996 CLC 480 ref.

M.A Zafar for Petitioner

Khalid Ikram Khatana for Respondent.

Date of hearing; 21st January, 2004.

2004 C L C 1665

[Lahore]

Before Sh. Hakim Ali, J

ATTA MUHAMMAD and others---Petitioners

Versus

ALLAH WASAYA and others---Respondents

Civil Revision No.47-D of 1991, decided on 3rd June, 2004.

(a) Islamic Law---

----Inheritance---Custom, applicability of---Land in dispute was not devolved upon original owner from his ancestors, but same was his self acquired property---Original owner died in 1942 leaving behind one son and two daughters; but mutation of inheritance was got sanctioned by the only son of deceased in his name without disclosing existence of two 'daughters of deceased as his legal heirs---Mutation in favour of son of deceased was challenged by two daughters of deceased 'claiming their inheritance rights in disputed land in accordance with Islamic Law of inheritance--Son of deceased had asserted that in the Mauza concerned custom was prevalent under which daughters of deceased were not entitled to get any inheritance from their father---Both Courts below concurrently found that land left by deceased being governed by custom, same was rightly sanctioned in favour of .son of deceased ---Validity--­Land in dispute being self acquired property of deceased Custom was not applicable to said property and Islamic Law of Inheritance was applicable to same---Regulation of inheritance was an automatic and mechanical process, which would come into play without interruption of any Court or any other Authority and land would devolve upon legal heirs of deceased upon his death and thus daughters of deceased would also be his legal heirs entitled to inheritance---.Concurrent judgment of Court below were set aside and suit filed by daughters of deceased was decreed accordingly.

Qaisar Khatoon and 11 others v. Maulvi Abdul Khaliq and others PLD 1971 SC 334; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC (Pak.) 227 and Aslam and others v. Kamalzai and others PLD 1974 SC 207 ref.

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

----S. 42---Mutation---Inheritance---Revenue record of mutation could not deprive any heir of deceased owner of land from his ownership because mutations were not creator of any right or title in the property or to any land, as same were maintained only for fiscal purpose---To deprive an owner from the ownership of land, there must be an intentional relinquishment of right/title of the, property in dispute.

Sardar Muhammad Hussain Khan for Petitioners.

Aejaz Ahmad Ansari and M. Ozair Chughtai for Respondents

Date of hearing; 3rd June, 2004.

2004 C L C 1679

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD SARWAR and others---Petitioners

Versus

HAKIM ALI ---Respondent

C. R. No.693 of 1998, heard on 30th June, 2004.

Punjab Pre-emption Act (IX of 1991)-----

----Ss. 6 & 13---Suit for pre-emption----Making of Talbs---Proof of--­Plaintiff had failed to state in plaint the material facts about the performance of Talb-e-Muwathibat with necessary precision and exactness---Nothing about date, place and timing of acquiring knowledge about sale was disclosed in the notice---Mere production of witness of plaintiff to state such facts was not enough as necessary foundation for essential material facts had to be laid down in the notice and plaint---Date and time was important to be mentioned in the pleadings because therefrom the performance of Talb-e-Ishhad had to be computed so as to be within 15 days---Point of time qua the accrual of knowledge in civil cases in general, required to be mentioned specifically so that nothing was invented during evidence as an afterthought---Cases of pre-emption should not be an exception to that general law and day and time of performance of Talb-e-Muwathibat which was simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings, so that in the first instance immediacy, of Talb-e-Muwathibat was appreciated and at the second instance the limitation qua the performance of Talb-e-Ishhad was calculated--Plaintiff for the first time stated in his deposition that one of his witnesses had informed him about the sale in dispute in presence of other witnesses about' 1-3/4, years before---Plaintiff in cross-examination had expressed his ignorance about date, month and year of knowledge of sale of suit-land---Such indefinite and obscure stance militated against his assertion about performance of 'Talbs' in accordance with law---Judgment and decree passed by Appellate Court being not sustainable, sane were set aside by High Court in exercise of its revisional jurisdiction and suit filed by plaintiff was dismissed.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409 and Amir Jan v: Haji Ghulam Muhammad PLD 1997 SC 883 ref.

Ch. Muhammad Ishaq for Petitioners.

Sadaqat Mehmood Butt for Respondent.

Date of hearing: 30th June, 2004.

2004 C L C 1689

[Lahore]

Before Syed Zahid Hussain, J

INSHALLAH KHAN and 10 others---Petitioners

Versus

SIR BOLAND KHAN and 3 others---Respondents

Writ Petition No. 13973 of 2003, heard on 25th May, 2004.

(a) Constitution of Pakistan, 1973---

--------Art. 199---Constitutional and appellate jurisdictions ---Comparison--­Constitutional jurisdiction, scope and limitations---Sphere, bounds and limitations of Constitutional jurisdiction could not be equated with the appellate jurisdiction of the Court---Marked difference exists in the scope, extent and content of the two remedies---Resolution of the disputed questions of fact does not fall within the domain of jurisdiction of Constitutional Court under Art. 199 of the Constitution---Appreciation and reappraisal of the evidence was not to be undertaken by the Court.

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

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Title of landlord in ejectment proceedings; resolution of--­Ejectment petition filed by the petitioners against the respondents was accepted by the Rent Controller---Appeal preferred by the respondents against the ,decision of the Rent Controller was successful with a direction to the petitioner by the Appellate Court to establish their title before the Civil Court---Constitutional petition was filed by the petitioners challenging said order---Validity---Burden was upon the landlords to prove their title or the relationship of landlord and tenant for the purposes of ejectment, and they produced bulky evidence in this regard, but the same was considered unsatisfactory by the Appellate Court---Serious dispute as to title and identity of the property, that cropped up, had to be resolved before an ejectment order could be passed---Appellate Court was fully justified to reverse the order of the Rent Controller---Constitutional petition was dismissed in the circumstances.

Nisar Ahmad and others v. District Judge, Muzaffargarh and others 1984 SCMR 317; Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064; Junaid Rasheed and others v. Sultan Muhammad and others 20b0 SCMR 1525 and Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa Additional District Judge, Sialkot and another 1999 MLD 1607 ref.

Muhammad Farooq Qureshi Chishti for Petitioners.

S.M. Masood and Moiz Tariq for Respondents Nos. 1 to 3.

Date of hearing: 25th May, 2004.

2004 C L C 1698

[Lahore]

Before Sved Zahid Hussain, J

GHULAM ABBAS ---Appellant

Versus

Sh. GUL MUHAMMAD---Respondent

R.F.A. No.843 of 2001, heard on 15th July, 2004.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Suit for recovery of money---Suit was based on cheques which allegedly had been issued by the defendant but were not honoured by the Bank---Defendant who was allowed leave to defend and contest suit had stated that the amount had been paid by him and the claim based on the cheques was false and frivolous and plaintiff had not returned the cheques in question to him---Response of the plaintiff to the questions put to him in this respect was straight and natural and was enough to prove the receipt of said amount but he tried to add a proviso by way of explanation that the payment so made was on account of some other outstanding amount---Explanation of the plaintiff in view of evidence on record was not worthy of credence---Finding of the Trial Court to such extent being not consistent with the evidence on record, was liable to be reversed---Decree granted by the Trial Court for whole of suit amount was not sustainable and was liable to be modified accordingly and decree for the remaining amount was to remain intact in favour of the plaintiff.

Syed Zulfiqar Ali Bokhari for Appellant.

Haji Malik Muhammad Qasim Joya for Respondent.

Date of hearing: 15th July, 2004.

2004 C L C 1704

[Lahore]

Before Ali Nawaz Chowhan, J

Sardar MUHAMMD FAROOQ ABBASI---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

W.P. No.2601 of 2003, decided on 13th July, 2004.

Constitution of Pakistan (1973)---

----Art, 199---Constitutional petition---Petition which was a public interest litigation precisely stated that the educational institutions whether working under the Islamabad Capital Territory/the Federation or under the Punjab Province were exploiting the public by charging colossal amounts of fee without providing proper service----Petitioner sought directions against the Federal Government so that the Federal Government took immediate steps for promulgation of a law in this connection---Directions were also sought against the Punjab Government for strictly implementing the provisions of the Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984 and it was alleged that new institutions which had grown like mushrooms were being registered with a callous approach and nobody was bothered about any investigation under the said Rules with the result that the education system was being ruined---Contention of the petitioner was that a draft Act on the subject already prepared by the Ministry of Education, Government of Pakistan though was ready but it suffered from inaction and inaptitude of the concerned officials who were under pressure of the vested interest---Official appearing for the Federal Government informed the High Court that said draft Act was being processed without delay and gill would be submitted before the Parliament in the very near future-High Court, by providing guidelines, directed the Secretary Education Government of Punjab to ensure through all means at his command that the Provisions of the Punjab- Private Educational Institutions (Promotion and Regulation) Rules, 1984 were given effect to in letter and spirit by his subordinates ---Federal Government and the Punjab Government were directed by the High Court to firm up their inspectorate system for ensuring that the private institutions refrained from exploiting the public and against the fee charged they were providing education service both with respect to physical facilities as well as intellectual facilities; they were advised to arrange for inspections to be carried on by international bodies who were all willing to help in this connection---Standard set up by other countries were directed to be considered for purposes of inspection and for ensuring imparting proper education by the educational institutions registered with the Federal Government--­Authorities concerned were further directed to ensure that the policy makers and enforcers acted with national spirit and favour in this connection while they removed the corrupt, the retarded and destroyers from the good ones---High Court advised both the Federal Secretary Education and the Education Secretary Punjab to submit reports to the High Court about the actual steps taken in this connection in compliance with what had been observed by the High Court.

Sardar Altaf Khan for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G. with Muhammad Afzaal Azhar Legal Advisor, Education Department for Respondent.

Ch. Muhammad Tariq Deputy Attorney-General with Sohail Akhtar Malik, Section Officer, Ministry of Education, Government of Pakistan.

Tariq Mehtnood Jahangiri for Respondent No.5.

Rana M. Irshad Khan for Respondent No.6.

2004 C L C 1711

[Lahore]

Before Syed Zahid Hussain, J, MUMTAZ AHMAD KHAN and others---Petitioners

Versus

Malik TAJ MUHAMMAD and others---Respondents

C.R. No. 1856 of 2004, decided on 28th July, 2004

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.5, O.XXXVIII, R.5 & O.I, R.10---Specific Relief Act (I of 1877), S.12---Suit for recovery or money on the basis of pronote--­Attachment of properties---Application under O.I, R.10, C.P.C. to be impleaded as party on the ground that one of the properties so attached had been transferred to the applicants through an agreement and their suit for specific performance qua the same property was pending in the Civil Court---Applicants further pleaded that any attachment order passed thereabout would affect adversely their interest---District Judge accepted the application for attachment before judgment of the property and dismissed the application for being impleaded as party to the suit--­Plaintiffs in the suit for recovery also applied to be impleaded as party in the suit for specific performance---Applicants, who had applied for being impleaded as party to the recovery suit, stated that they did not intend to alienate or deal with the disputed property during the pendency of the suit for recovery or their suit for specific performance and would maintain status quo whereas the plaintiffs in the suit for recovery stated that in case any decree was passed in their favour in the suit for recovery, the same would not be executed until the decision of the suit for specific performance---Validity---Such stance of the parties, which prima facie, appeared to be just and fair, should have clinched at least the interlocutory controversy by resultant vacation of the attachment order passed by the District Judge---When the applicants had claimed some interest to have been acquired by them particularly when there was suit for specific performance also pending in the Court, if not necessary they should be considered as proper party in the suit for recovery so that they might have the opportunity of representation and defending before the Court that the agreement in their favour and the suit filed by them was not a conclusive affair---Similar approach could also be adopted qua the plaintiff in suit for recovery whose application for being impleaded as party to the suit for specific performance, to enable him to plead his case that the agreement to sell and the suit for specific performance was not aimed at the frustration or to defeat his right and this way both sides would have the opportunity-of pleading their respective causes and their presence before the respective Courts would result in avoiding the multiplicity of proceedings---Applicants who had applied to be impleaded as party in the suit for recovery were permitted to be impleaded as such by the High Court and order of attachment to the extent of the said property would stand vacated in view of the undertaking of the parties.

Rana Muhammad Sarwar for Petitioners.

Malik Noor Muhammad Awan for Respondent No. 1.

Nemo for Respondent No.2.

Ghulam Hussain Malik for Respondent No.3.

Date of hearing: 28th July, 2004.

2004 C L C 1714

[Lahore]

Before Ch. Ijaz Ahmad, J

AFZAAL AHMED ---Petitioner

Versus

DISTRICT OFFICER REVENUE and others- --Respondents

W.P. No.7142 of 2004, decided on 14th May, 2004.

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

----Art. 199---Constitutional petition---Misrepresentation of facts--­Petitioner mentioned in the petition that the earlier Constitutional petition was withdrawn. under the observation of High ' Court---No such observation was passed by the High Court rather the petition was withdrawn by the petitioner without any permission to file fresh petition---Effect---Petitioner had approached High Court with unclean hands by misrepresentation of facts in his petition---Constitutional jurisdiction is discretionary in character and he who seeks equity must come to the Court with clean hands---As the petitioner had misrepresented the facts in his Constitutional petition, therefore, High Court declined to exercise discretion in his favour in circumstances.

Abdul Rashid v. Pakistan and others 1969 SCMR 141 and Principal King Edward Medical College v. Ghulam Mustafa 1983 SCMR 196 ref.

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

----Arts. 4 & 199---General Clauses Act (X of 1897), S.24-A--­Constitutional petition---Good governance---Act of public functionaries---Grievance of the petitioner was that the Revenue authorities were not deciding his application for removal of encroachments made by the respondents on the thoroughfare ---Effect--­Constitution of Pakistan is a social binding contract between the people of Pakistan and organs of the State and it was the duty and obligation of the public functionaries to act in accordance with law in view of Art.4 of the Constitution read with S.24-A of the General Clauses Act, 1897--­High Court commented that poor citizens were being penalized by inaction of the public functionaries and on account of inaction of public functionaries the load of work of High Court was increasing day by day and people had to file Constitutional petitions even for the purpose to secure the copies of the orders passed by the public functionaries, which was not in consonance with mandate of Constitution and was not healthy sign to keep the society in befitting and progressive manners in accordance with injunctions of Islam---High Court opined that in such circumstances the country would fall in the area of chaos---Society could only run smoothly by providing justice to the people of the country­ Root-cause for non-providing of justice was basically the organ, whose duty was to act and execute under the law---High Court directed the Provincial Government to formulate policy and to issue necessary instructions to public functionaries to decide applications of citizens promptly without fear, favour, nepotism, with reasons and within reasonable time---High Court emphasized that since Pakistan was founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic concept of fair play and social justice---State functionaries like the Revenue authorities in the present case were expected to act fairly, justly and for the advancement of justice, in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise, coupled with the principle that no one should suffer on account of the act of the authority---High Court directed the petitioner to appear before the Revenue authorities who would decide his application strictly in accordance with law---Petition was disposed of accordingly.

Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC 473 rel.

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

----Art. 5(2)---General Clauses Act (X of 1897), S.24-A---Command of law--Applicability---Public functionaries---Every body is bound to obey the command of the Constitution by virtue of Art.5(2) of the Constitution---Public functionaries should also act within the parameters of the Constitution---Public functionaries should act promptly and decide the applications of citizens without fear, favour, nepotism, with reasons and within reasonable time.

Ch. Zahoor Elalhi's case PLD 1975 SC 383; Zahid Akhtar's case PLD 1995 SC 530; Messrs Airport Support Service v. Airport Manager, Karachi 1998 SCMR 2268 and Zainyar Khan v. Chief Engineer C.R.B.C. 1998 SCMR 2419 rel.

(d) Administration of justice---

---- Nobody should be penalized by act of authority.

Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate, Lahore (PLD 1994 Lahore 3) rel.

Mian Abdul Aziz for Petitioner.

Muhammad Hanif Khatana Addl: Advocate-General (on Court's call).

2004 C L C 1719

[Lahore]

Before Nasim Sikandar and Mian Hamid Farooq, JJ

Haji KHUDA BAKHSH & SONS through Muhammad Rafique and 39 others---Appellants

Versus

Ch. MUHAMMAD SHARIF and 3 others---Respondents

I.C.A. No.244 of 2002 in Writ Petition No. 19796 of 1998, decided on 5th April, 2004.

(a) Law Reforms Ordinance, 1972---

----S. 3---Punjab Agricultural Produce Markets (General Rules) 1979, R. 21---Intra-Court appeal---Maintainability---Principles---Proviso to S.3 of Law Reforms Ordinance, 1972 prohibited an infra-Court appeal where a Constitutional petition in which the impugned order was made arose out of any proceedings in which the law applicable provided for at least one appeal or revision or review to any Court, Tribunal or Authority against the original order---Rule 21 of the Punjab Agricultural Produce Markets (General Rules), 1979 provided for an appeal to the District Revenue Officer against the orders passed by the Market Committee, therefore; in terms of proviso of S.3 the Intra-Court appeal by the appellant was not maintainable.

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

----Art. 199---Constitutional petition--Maintainability---Mere fact that the respondents fell within the definition of a person as defined in Art. 199 of the Constitution does not convert a regular civil suit into a matter to be, considered and determined in exercise of Constitutional jurisdiction.

S.M. Masud for Appellant.

Mian Nisar Ahmad for Respondent No. 1

M.A. Zafar for Respondent No.4.

Date of hearing: 24th March, 2004.

2004 C L C 1723

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

Haji MUHAMMAD AFZAL --- Appellant

Versus

GOVERNMENT OF PUNJAB through Chief Administrator, Auqaf, Lahore and 4 others---Respondents

I.C.A. No. 1005 of 1998 in W.P. No.4401 of 1992, decided on 27th May, 2004.

(a) Law Reforms Ordinance (XII of 1972)---

---S. 3---Intra-Court appeal---Practice---Division Bench, in Intra-Court appeal, would confine itself to examination of the judgment of Single Judge and not am, new ground.

Mst. Janat Bibi's case 1988 SCMR 1696 and Mst. Murad Begum v Muhammad Rafi PLD 1974 SC 322 ref.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 16 & 2(c)---Constitution of Pakistan (1973), Arts.129 & 139--­Sale of Waqf property by Chief Administrator---Exercise of executive authority---Conduct of business of Provincial Government---Sale of Waqf property, by Secretary/Chief Administrator Auqaf---Procedure---Chief Administrator Auqaf/Secretary, in the present case, had prepared the summary qua sale of the Waqf property to a private party under the direction of the Chief Minister---Validity---Authority of the Government would be exercised in the name of the Governor by the Provincial Government through the Secretary in view of Arts. 129 & 139 of the Constitution---Competent authority under the provisions of Punjab Waqf Properties Ordinance, 1979 was the Secretary to Government of the Punjab and "higher authorities" were not "Government" in terms of the provisions of the Ordinance---Designation of "higher authority" of the Secretary concerned did not, figure anywhere in the provisions of the Ordinance---First summary on the subject was prepared by the Secretary concerned which was subsequently changed under the directions of the Chief Executive of the Province which meant that Secretary had not applied his independent mind which was a statutory requirement---Any action initiated by the Secretary concerned under the direction of his superior being not in accordance with law impugned sale was not legally valid---Principles.

In the present case Secretary Government of the Punjab/Chief Administrator Auqaf had prepared summary qua sale of the property in question to the appellants under the direction of the Chief Minister. The authority of the Government would be exercised in the name of the Governor by the Provincial Government through the Secretary in view of Articles 129 and 139 of the Constitution of Pakistan. The Competent Authority under the provisions of Punjab Waqf Properties Ordinance, 1979 was the Secretary, Government of the Punjab and higher authorities were not Government in terms of the provisions of the aforesaid Ordinance. The designation of higher authority of the Secretary concerned did not figure anywhere in the 'provisions of aforesaid Ordinance. Therefore, any action initiated by the Secretary concerned under the direction of the superior is not in accordance with law.

The authority was vested with the Secretary concerned in view of section 2(c) read with section 16 of the Punjab Waqf Properties Ordinance, 1979 to act on its own but in "substance" the power was exercised by another. Meaning thereby that the authority concerned did not apply its independent mind which was requirement under the law. First summary was prepared by the Secretary concerned which was subsequently changed under the direction of the Chief Executive of the Province meaning thereby that the Secretary concerned had exercised the power as the agent of the Government which was not in consonance with the aforesaid provisions of law, therefore, impugned sale was not valid in the eye of law.

The Legislature in its wisdom used the word "satisfaction" in section 16 which clearly cast duty upon Secretary concerned/Chief Administrator Auqaf to sell the land in question to the private party after applying his independent mind.

Land in question was sold by the Secretary Government of the Punjab Auqaf Department to a private party under direction of the Chief Executive of the Province. Therefore, the same was not sustainable in the eye of law in view of the peculiar circumstances of the case.

Parties were directed by the High Court to appear before Secretary to Government of the Punjab/Chief Administrator Auqaf who was directed to reconsider the matter afresh keeping in view the ground realities as alleged by the private parties that they had purchased the land in question twice i.e. from the occupants after declaration as Kachi Abadi and thereafter from the Auqaf Department. Secretary Government of the Punjab/The Chief Administrator Auqaf was directed to reconsider the issue in question including the price prevailing at the time the same was purchased by the private parties from the respondent keeping in view the prevailing price of the land in question at that time in the area in question, without being influenced by any quarter after application of its own independent mind.

Khawaj Din's case PLD 1980 Lahore 15; Punjab Textile Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032; Ghulam Mohyuddin's case PLD 1964 SC 829, Orion Paper Mill's case AIR 1970 SC 1498; Sam Labour Union's case 1946 AER 201; Ghulam Murtaza's case 1998 PLC (CS) 274; State of Punjab v. Hari Kishan Sharma AIR 1966 SC 1081; Simms Motor Units v. Minister of Labour 1946 2 All ER 201; Orient Paper Mills v. Union of India AIR 1969 SC 48; Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599 and ICA No.578 of 2003 fol.

Syed Saeed Hassan v. Payer Ali and 7 others PLD 1976 SC 6; para; 173, 193, 207, 208 of Mohammadan Law by D.F. Mulla; Qazilbash Waqf v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99; Sahibzada Mansoor Ahmad v. Chief Administrator Auqaf 1993 MLD 2529; Malik Aslam Pervez Advocate v. Province of Punjab 1994 MLD 1986; Muhammad Sadiq and 15 others v. Chief Administrator Auqaf, West Pakistan,. Lahore PLD 1972 Lahore 780; Province of East Pakistan v. Dolat Perchut Mills Ltd. PLD 1968 SC 398; Raja Abdul Qayum v. Ch. Latif Akbar, Advocate 1994 CLC 2041; Ali Enterprises v. Tehsil Administrator, Faisalabad PLD 2003 Lah. 1001; S.N. Mukherjee v. Union of India AIR 1990 SC 1984; Malina Rani Das v. The Province of East Pakistan and others PLD 1968 Dacca 177; Messrs Lavin Traders' case NLR 1993 Supreme Court Judgments 641; Hedaya by Charles Hamilton 57th Edn. page 235; Mohammeden Law by Dr. M.A. Manan Pakistan Edn. No.173 "Waqf property cannot be alienated" 207 under Heading "Power of Mutwali to sell or mortgage 208 under Heading "Power of Mutwali to grant leases"; Mishkat-ul­ Masabih Vol.2 Initial translation by Al-Haj Maulana' Fazal Karim Section 5-A Waqf ,means permanent dedication by a Muslim of any property for any purpose recognized by Islam as charitable; Fatawa-e-­Alamgiri Vo1.4 p.60 under the Heading Kitab-ul-Waqf; Ahadees-e­Sheeha by Syed Maqbool Hussain p.322, Naeem Ahmae v. Chief Administrator Auqaf 2004 CLC 599; Haji Abdul Rahim's case AIR 1923 PC 44(2); Abdul Hamid Qureshi's case PLD 1958 Lah. 824; Dr Muhammad Ismail v Deputy Commissioner Jhang PLD 1976 Lah. 758 Mian Muhammad Saeed v. Province of West Pakistan PLD 1964 SC 572; Mst Janat Bibi's case 1988 SCMR 1696; Messrs Chaudhry Brother's case 1968 SCMR 804; and Mst. Murad Begum v. Muhammad Rafi PLD 1974 SC 322 ref.

(c) Law Reforms Ordinance (XII of 1972)---

----S.3---Intra-Court appeal---Court had ample jurisdiction to look into the subsequent events at the time of deciding the case.

Mst. Amina Begum's case PLD 1978 SC 220 fol.

(d) Administration of justice-------

---Each and every case is to be decided on its own peculiar circumstances and facts.

Trustee Board of Karachi's case (1994 SCMR 2213) fol.

Abid Hassan Minto for Appellant.

Mian Nisar Ahmad, Mushtaq Raj and Muhammad Hanif Khattana, Addl. A.-G. for Respondents.

Dates of hearing: 14th, 15th and 20th April, 2004.

2004 C L C 1747

[Lahore]

Before Muhammad Muzammal Khan, J

KHUSHI MUHAMMAD and 2 others---Petitioners

Versus

JANNAT BIBI---Respondent

Civil Revision No.903 of 2004, decided on 19th April, 2004

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

----S. 42---Suit for declaration and permanent injunction filed by the plaintiff a Pardanashin lady, in order to adjudge a sale mutation which she claimed to be fictitiously sanctioned in favour of the defendants as valid was decreed by the trial Court---Appeal preferred by the defendants against the said decree was dismissed---Contentions of the plaintiff was that the defendants had failed to prove bargain of the alleged sale, the transaction or payment of price or transfer of possession and since the plaintiff was an illiterate Parda observing lady, the defendants had failed to prove through positive evidence, the transaction in their favour---Validity---Defendants stood in active fiduciary relationship with the plaintiff and after denial of transaction by the plaintiff, were required to prove through positive evidence beyond any shadow of doubt, the bargain, and transaction of sale, but they failed to do so---Plaintiff was an old, ailing, illiterate and village residing lady and such women were protected under the law and it was obligatory for the beneficiary of the transaction to show that she before parting with her immovable property, entered into bargain at her own free-will and volition and that she had an opportunity of consulting some independent person or she had some independent legal advice in this behalf---Courts below, in the circumstances, had not committed any illegality or irregularity amenable to revisional jurisdiction.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 183: Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SSCI MR 1354; Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389; Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and 13 others PLD 1993 Lahore 33; Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774; Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Sree Sree Gopal Jeo Bigraha and others v. Mst. Mahmuda Begum and others PLD 1968 Dhaka 265; Mst Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1981 SCMR 890: Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402 and Baggu v. Mst. Rahman Bibi 1996 MLD 377 ref.

(b) Power of Attorney Act (VII of 1882)------

----S. 2---Registration Act (XVI of 1908), S. 33---Qanun-e-Shahadat (10 of 1984), Art.95---Power of attorney, 2xucuttoti and presumption of--­Contention of the plaintiff was that the defendant did not prove chic execution of power of attorney in his favour by producing evidence-- Validity---Lawful execution of power of attorney in favour of the defendant was not proved and if it was assumed to have been executed and carried a presumption of correctness attached to it under S.33 of Registration Act, 1908 and under the provisions of Power of Attorney Act, and Qanun-e-Shahadat 1984, even then the defendant was required to prove that before transferring the property in favour of other defendants, who were his sons, he consulted the plaintiff and made payment of the sale proceeds to her but no such evidence was available on record---Law regarding transfer by the attorney in favour of his own kith and kin without consulting his principal, is settled and it will be presumed that the sale is in favour of attorney himself, which is void.

Fida Muhammad v. Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341; Mst Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Karachi 22 and Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique 1994 CLC 1690 ref.

Muhammad Saleem Akhtar Rana for Petitioners.

Bashir Ahmad Chaudhary-III for Respondent.

2004 C L C 1753

[Lahore]

Before Maulvi Anwarul Haq, J

AUQAF DEPARTMENT, GOVERNMENT OF THE PUNJAB through Chief Administrator, Auqaf, Punjab; Lahore and 2 others---Appellants

Versus

Mst. PARVEZ BIBI and 6 others---Respondents

F. A. O. No. 166 of 2003, heard on 15th January, 2004.

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 7 & 11---Notification under S.7 of Punjab Waqf Properties Ordinance, 1979 not published in Provincial Gazette---Effect--­Limitation for filing petition under S.11 of the Ordinance would be counted from date of knowledge.

(b) Punjab Waqf Properties Ordinance (IV of 1979)-----

----Ss. 2(e), Expln. (1), 7 & 11---Notification under S.7 of Punjab Waqf Properties Ordinance, 1979 issued in respect of property was declared by District Judge as not Waqf property---Validity---Revenue Record showed petitioners to be owners of suit-land, while possession thereof was recorded to be that of Khadim---Record did not show that petitioners had ever dedicated such land---Such entry in possession column of Revenue Record, if assumed for some purpose mentioned in S.2(e) of the Ordinance then according to Expln. (1) thereof, deeming clause could be invoked only on showing use of property since time immemorial for any such purpose---If possession of Khadim be termed as religious or pious purpose, then period of time of 12 years between last entry of possession and date of notification could hardly be termed as "time immemorial"--­Ownership of petitioners being recorded in Revenue Record, control of land could not be taken over from them in their life time except with their consent and on agreed terms and conditions---High Court dismissed appeal.

Ch. Afrasiab Khan for Appellant.

Shah Rasool Hamidi for Respondent.

Date of hearing: 15th January, 2004.

2004 C L C 1757

[Lahore]

Before Syed Zahid Hussain, J

AZIZ-UR-REHMAN --- Petitioner

Versus

MEMBER, BOARD OF REVENUE---Respondent

Writ Petition No.8154 of 2004, decided on 5th August, 2004

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----S: 13---Civil Procedure Code (V of 1908), S. 115---West Pakistan Land Revenue Act (XVII of 1967); S. 164---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Consolidation proceedings--­Powers of Board of Revenue---Scope---Board of Revenue has. the power to call for the record of any proceedings under the West Pakistan Consolidation of Holdings Ordinance, 1960 "at any time" whether the matter is "pending". or has been disposed of by the Consolidation Officer and pass such order as "it thinks fit"---When compared with the revisional jurisdiction as envisaged by S. 115, C.P.C. the difference in the scope and content of the said two provisions becomes quite obvious---Ambit and scope of power under S. 13 of the Ordinance is apparently large and extensive and is akin to the provisions of S. 164, West Pakistan Land Revenue Act, 1967---Power of Board of Revenue thus is not hedged by any such constraint or limitation and the only requirement is that before passing any :order, reversing or modifying the proceedings or order of the subordinate official, opportunity of hearing is to be afforded to the person concerned.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

------S. 13 -Consolidation proceedings---Interference by the Board of Revenue---Scope---When irregularities and illegalities go to the very root of the matter, the Board of Revenue could justifiably direct fresh consolidation of the village.

Abdul Majid Khan and others v. Member, Board of Revenue (Consolidation) and others 1986 MLD 782 ref.

(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----S. 13---Powers of the Board of Revenue---Nature and scope.

The power preserved under section 13, as the scheme of the Ordinance plainly shows, is the power of superintendence and control over the subordinate functionaries in the structure of the authorities envisaged under the Ordinance. This power appears to be vast and unbridled in its scope and amplitude, as there are no statutory limitations placed upon its reach and the manner of its exercise except the time limits on its recourse on motion of a party, and that also, in the case of Board of Revenue.

Kala v. Board of Revenue and another PLD 1985 SC 208 quoted.

(d) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Powers of Board of Revenue---Scope---Revision---Where the applicant had not taken intermediary steps of filing appeals before the lower authorities, order of the Board of Revenue did not suffer from lack of jurisdiction on the ground that such steps had not been taken.

Kala v. Board of Revenue and another PLD 19185 SC 208 quoted.

(e) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Consolidation Scheme---Power to annul the scheme by the Board of Revenue---Scope---Where the Consolidation Scheme was found to be offensive to the requirements of the law, and appeared, on the face of it, to be unjust and, unfair, the consolidation authorities were under a duty to reject the same even though it be based on compromise or undertaking among the parties or most of them---Principles.

Where a consolidation scheme is found to be so offensive to the requirements of the law; and appears on the face of it to be unjust and unfair, the Consolidation authorities are under a duty to reject it even though it be based on compromise or undertaking among the parties or most of them. Such is the power vested in the Board of Revenue and conceded by law, who is to supervise that the process of consolidation is undertaken in accordance with law without affecting the rights of the land owners. The mere filing of appeal by some of the aggrieved persons in the hierarchy would not denude the Board of Revenue of its powers vested in it under section 13 of the Ordinance, who happens to be at the apex of that hierarchy and charged with the supervisory duty under the law. It is, however, for the Board of Revenue to consider in each case when it comes before it, the nature, amplitude and import of such illegalities and irregularities and to determine whether it appropriately attracts its jurisdiction and power of annulment of the scheme.

Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16 ref.

(f) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition-Annulment of Consolidation Scheme by the Board of Revenue on the ground of illegalities and irregularities---View formed by the Member Board of Revenue after examining the record and hearing the parties was based on the satisfaction that there was no alternative but to annul the scheme in the interest of right holders of the revenue estate--­Member, Board of Revenue having not in any way acted illegally in the matter, High Court could not substitute the order of annulment under its Constitutional jurisdiction under Art. 199 of the Constitution---Member, Board of Revenue being fully justified to annul die Scheme and to direct reconsolidation in, the village, such order did not warrant interference by the High Court---High Court, observed that the time Schedule given by the Member, Board of Revenue for completion of the consolidation will be adhered to with necessary modifications and the time consumed before the High Court in the present proceedings would be taken into account.

Zafar Iqbal Ch. for Petitioner.

Fazal Miran Chohan Addl. A.-G. and Ahmad Waheed for Respondent.

Date of hearing: 5th August, 2004.

2004 C L C 1783

[Lahore]

Before Muhammad Akhtar Shabbir and Nazir Ahmed Siddiqui, JJ

Messrs CHEM PAK (PVT.) LIMITED---Appellant

Versus

NATIONAL BANK OF PAKISTAN---Respondent

F.A.O. No.46 of 2002/BWP, decided on 24th June, 2003.

Civil Procedure Code (V of 1908)---

----S. 47 & O. XXI, R. 64---Execution of decree---Matter was settled between decree-holler Bank and judgment-debtor through out of Court settlement and amount was adjusted according to said settlement Dispute arose with regard to machinery and superstructure between judgment-debtor and auction-purchaser of said machinery and superstructure--Such dispute would be decided by Executing Court and in whose favour verdict would go, he would be entitled to withdrawal of auction money already deposited with Executing Court---Executing Court was directed to decide matter within specified period.

M. Shamsher Iqbal Chughtai for Appellant.

Malik Saeed Ijaz with Parvez Akhtar, Litigation Assistant/ Representative of respondent No. 1.

Sheikh Raees Ahmad for Respondent No.2.

2004 C L C 1817

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD JAMEEL and 28 others---Petitioners

Versus

MUHAMMAD KHAN and 7 others---Respondents

Civil Revision No.2511 of 1995, decided on 3rd June, 2004.

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

----S. 42---Limitation Act (IX of 1908), S.28---Declaratory suit--­Maintainability---Adverse possession---Limitation--Period provided for extinguishing right in property at the determination of period prescribed for instituting a suit for possession of property has been declared repugnant to the Injunctions of Islam with effect from 11-8-1991---Suit was filed by plaintiffs on 10-12-1984---Law laid down by Supreme Court in case titled Maqbool Ahmad vs. Government of Pakistan, reported as 1991 SCMR 2063 was not applicable---Suit -was maintainable in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Abdur Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCMR 100 fol.

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

----S. 42---Suit for declaration of title---Plea of adverse possession and purchase---Effect---Both the pleas cannot stand together and clash is irreconcilable.

Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765 rel.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.39--­West Pakistan Land Reforms Regulation, 1959 [MLR 64], Para.22--­Civil Procedure Code (V of 1908), S.115---Title of ownership---Adverse possession---Proof---Plaintiff were tenants as Dakhil Kar under defendants regarding suit-land and there were no entries of Basharah Malikan Bawajah Noutore in Column No.10 of Revenue Record nor there was any evidence that plaintiffs were in continuous and un­interrupted adverse possession for a period of 12 years nor they had any proprietary rights under the West Pakistan Land Reforms Regulations, 1959---Trial Court decreed the suit filed by the plaintiffs and judgment and decree passed by Trial Court was maintained by Appellate Court--­Validity---Plaintiffs were not able to cultivate suit-land through Nautore nor they acquired ownership rights under para-22 of MLR 1959 nor there was any entry regarding Ghair Dakhil Kar Basharah Malikan--­Plaintiffs had no right to seek declaration and possession---Entries in column of Lagan otherwise not corroborated by any evidence could not take precedence over column of cultivation---Party relying on Lagan column as against cultivation column would have to produce evidence in support of its plea---Plaintiffs were neither owners on the basis of adverse possession nor the plea of ownership was available to them--­Trial Court fell in error to record the findings of adverse possession on that issue in favour of plaintiffs and appeal of defendants was illegally dismissed by Appellate Court—judgments of both the Courts below were result of misreading and non-reading of Revenue Record and misinterpretation of law of adverse possession and the Regulation---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by both, the Courts below---Revision was allowed in circumstances.

PLD 1978 (Revenue) 61; Allah Ditta v. Jan Muhammad 1976 SCMR 69; Ch. Muhammad Aslam Khan through Legal Heirs and others v. Malik Sher and others 1994 SCMR 1637 and Shad Muhammad v. Khan Poor PLD 1986 SC 91 ref.

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

----S.42---West Pakistan Land Revenue Act (XVII of 1967), S.39---Suit for declaration---Title of ownership---Adverse possession---Entries in Revenue Record---Effect---Mere entries in Revenue Record that the plaintiffs were tenants and were not paying Lagan or Batae owing to assertions of ownership did not in law mean open, overt and hostile act to establish adverse possession against true owners.

Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765 and Khair Muhammad v. Khuda Bakhsh and 2 others 1976 SCMR 69 ref.

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

----O. XLI, Rr.22 & 31 & S.115---Revisional jurisdiction---Powers of High Court---Plea not raised by a party---Principles---Plaintiffs did not file any cross-objections against findings of both the Courts below on which one of the issues was decided---Effect---To do the complete justice High Court, in exercise of jurisdiction under O.XLI, R.31 C.P.C., could pass any decree and make any order which ought to have been passed--­Power under O.XLI, R.31 C.P.C. could-even be exercised in revisional jurisdiction.

The Great Eastern Shipping Co. Ltd. v. S. Mohammed Samiullah Saheb & Co. and another AIR 1959 Mad. 367 rel.

Muhammad Aslam Sindhu and Qazi Khurshid Alam for Appellant.

Kh. Saeed-uz-Zafar for Respondent.

Date of hearing: 25th May, 2004.

2004 C L C 1835

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ASIA BIBI---Petitioner

Versus

GHULAM MURTAZA---Respondent

Civil Revisions Nos.1974, 1975 and 2217 of 2002, heard on 17th May, 2004, Specific Relief Act (I of 1877)---

---S. 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Civil Procedure Code (V of 1908), S.115---Suit for declaration ---Benami transaction---Onus to prove---Plaintiff and defendant were wife and husband respectively---Plaintiff claimed to be the owner of the suit properties, while the defendant claimed her to be Benamidar---Original documents were produced by the defendant but he could not prove that he paid the entire consideration for the properties---Half share in one of the properties was sold by the defendant to plaintiff for consideration amount which had been received by him in presence of Sub-Registrar, at the time of registration of sale-deed---Possession over the suit properties was with plaintiff through tenants---Effect---Initial burden of proof was on the defendant who had alleged that the plaintiff was Benamidar---Any weakness in the evidence would not relieve the person alleging transaction being Benami from discharging the burden of proof---Both the parties were at par as both of them had been living abroad and both of them stated that they had been working there for gain---Both the Courts below had failed to read the evidence on record while applying the criteria noted by Supreme Court m case titled Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain, reported as 1991 SCMR 703 to determine the nature of the transaction in question---Judgments and decrees passed by Courts below were set aside and the suit was decreed in favour of the plaintiff---Revision was allowed in circumstances.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 fol.

Mian Israr-ul-Haq for Petitioner.

Ch. Manzoor Elahi for Respondent.

Date of hearing: 17th May, 2004.

2004 C L C 1847

[Lahore]

Before Ch. Ijaz Ahmad, J

JAN MUHAMMAD ---Petitioner

Versus

COLLECTOR, DISTRICT JHANG and 3 others---Respondents

Civil Revision No.931-D of 1998, decided on 8th June, 2004.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79, 117 & 120---Civil Procedure Code (V of 1908), S.115---Suit for declaration--­Execution of document---Onus to prove---Principles---Concurrent findings of facts by the Courts below---Revisional jurisdiction of High Court, exercise of---Plaintiff asserted that power of attorney executed by defendant in favour of plaintiff was not void as the defendant was major at the time of its execution---Both the Courts below concurrently found the defendant as minor and dismissed the suit as well as appeal filed by the plaintiff---Validity---When defendant denied execution of document, the onus shifted to plaintiff to prove the same in accordance with the provisions of Arts.17 and 79 of Qanun-e-Shahadat, 1984---Both the Courts below had given concurrent findings of fact against plaintiff after proper appreciation of evidence---Plaintiff failed to point out any piece of evidence which was misread or non-read by both the Courts below or that the case has been decided in violation of law laid down by superior Courts---Judgments and decrees passed by both the Courts below did not suffer from any infirmity or illegality---Revision was dismissed in circumstances.

Salman Ali v. Maqsood Ahmad and others 2000 YLR 1983; Maqsood Ahmad and others v. Suleman Ali PLD 2003 SC 31; Muhammad Shafi and others v. Allah Ditta Khan PLD 1986 SC 519; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657; N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Ghulam Qadir's case PLD 1988 SC 625 ref.

(b) Suit--

----Plaintiff has to prove his case on its own strength by producing evidence and not to seek decree on the weaknesses of opposite party / defendant is the suit.

Nazir Ahmad Qureshi for Petitioner.

Wajeeh-ud-Din Parvez for Respondents.

2004 C L C 1860

[Lahore]

Before Sh. Hakim Ali, J

Sahibzada SHARYAR KHAN and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and others---Respondents

W.P. No.3544 of 2003, decided on 7th June, 2004.

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

----O. XXIII, R. I ---Withdrawal of suit---Effect---Plaintiff can withdraw a suit without permission of Court but he is precluded from instituting fresh suit in respect of the same subject-matter and such plaintiff cannot afterwards claim the relief, cause of action or portion of such claim in fresh suit.

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

----S. 54---Civil Procedure Code (V of 1908), O.XIII, Rr.1, 2 & O.XXIII, R.1---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit, withdrawal of---Filing of second suit on the same cause of action---Trial Court disallowed plaintiff to produce documentary evidence and such order of the Trial Court was maintained by High Court---After filing of second suit on the same cause of action, plaintiff withdrew the earlier suit---Validity---Simple withdrawal by plaintiff under O.XXIII, R.1 C.P.C. was permitted and it was a right which had been granted by the provisions of C.P.C.---Such right would be free from restriction if there was no hindrance in the exercise of such right--­When in a case which had been filed by the parties and a valuable right had accrued to a party in or during such proceedings, simple withdrawal could not be allowed to the plaintiff---Law could not be interpreted in such a way so as to defeat the intent of justice or to allow a plaintiff to exercise his right of withdrawal in such a way so as to take an undue and unfair advantage against his adversary and to make ineffective and inoperative the lawful orders of competent Court---Right to produce evidence was closed in the earlier suit, application under O.XIII, Rr.1 & 2 C.P.C. filed by plaintiff had been dismissed and the orders had attained finality---Plaintiff could not be allowed to withdraw his case and file another fresh suit so as to set aside the lawful orders of the Courts--­Order passed by two Courts below allowing plaintiff to withdraw the earlier suit was illegal and unlawful and were set aside---Earlier suit of the plaintiff was restored by High Court---Constitutional petition was allowed in circumstances.

Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 (AJ&K) 30; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Kaleem Ullah v. Additional District Judge and 3 others 2001 MLD 440; Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Syed Ahmad and 3 others v. Tanveer Ahmad and another 1990 MLD 788; The Commissioner of Income-tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; Irshad Ali v. Islamic Republic of Pakistan and 2 others 1981 CLC 111; Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336 and Mst. Amina Parekh and others v. Ahmed Parekh and others 1992 CLC 2492 ref.

(c) Administration of justice---

---- Principle of double jeopardy---Any person should not be vexed twice for the same cause .of action, incident or occurrence.

Abdul Majeed Bhatti for Petitioners.

Malik Muhammad Hanif Ghafari for Respondents Nos.3 to 19.

2004 C L C 1870

[Lahore]

Before Sh. Hakim Ali, J

HAMEEDULLAH---Appellant

Versus

FAIZ AHMAD --- Respondent

F.A.O. No. 18 of 2004/BWP decided on 2nd July, 2004.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3, O.XLIII, R.1(a) & O.VII, R. 10 ---Conciliation Courts Ordinance (XLIV of 1961), S. 6---Suit for recovery of amount on basis of pronote and receipt--- Return of plaint---Court which was seized of case, directed return of plaint to be filed in Conciliation Court-­Plaintiff was residing in one Tehsil of District concerned and defendant was residing in the other Tehsil of said District---Parties, in circumstances were residents of two different places---Conciliation Court would have jurisdiction under subsection (1) of S. .6 of Conciliation Courts Ordinance, 1961 to try a case only when parties to dispute ordinarily resided within jurisdiction of same Union Council in which cause of action had arisen---Parties in the present case, did not reside within jurisdiction of same Union Council, but were residing in two different Tehsils---Conciliation Court had no jurisdiction to try the suit--­Return of plaint, by Trial Court, was illegal and unlawful---High Court accepting appeal set aside order of return of plaint with direction to Trial Court to consider suit pending before it and adjudicate it upon merits.

Muhammad Shafiq v. Additional District Judge and others 1990 CLC 1108 ref.

Mumtaz Ahmad Aamir for Appellant.

2004 C L C 1873

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. PIARI JAN through General Attorney and another---Petitioners

Versus

HUKAM DAD and 2 others---Respondents

C.M. No.371/C of 2003 in Civil Revision 108 of 1983, decided on 17th September, 2003.

Civil Procedure Code (V of 1908)---

---S. 115---Revision---Dismissal of revision for non-prosecution-----Application for restoration----Revision was admitted to regular hearing but Advocate representing revision petitioner having been elevated to Bench, petitioner engaged another counsel, who too seriously fell ill and was bed-ridden---Nobody having appeared on date fixed for hearing of revision petition, same was dismissed for non-prosecution ---Validity--­Revision petition which was admitted to regular hearing, could not have been dismissed for non-prosecution, in circumstances of the case---No evidence was on record to the effect that petitioner had notice of dismissal of his revision petition for non-prosecution prior to issuance of notice in another case---Application of petitioner for restoration of revision was allowed and petition was restored to its original number.

Sajid Ilyas Bhatti for Petitioners.

Waqarul Haq Sheikh for Respondents.

2004 C L C 1879

[Lahore]

Before Muhammad Muzammal Khan, J

LAHORE DEVELOPMENT AUTHORITY through Managing Director WASA, Lahore---Appellant

Versus

Messrs FAISAL INTERNATIONAL CONSTRUCTION CORPORATION LIMITED- --Respondent

F.A.O. 191 of 1994, heard on 9th December, 2003.

(a) Arbitration Act (X of 1940)---

--------Ss. 14, 15, 17 & 30---Civil Procedure Code (V of 1908), O.XLI, R.33---Award---Decision/opinion of Arbitrator given in award--­Substitution of the same by the Court---Validity---Such decision/opinion could not be substituted by Appellate Court in exercise of appellate jurisdiction, unless and until some legal misconduct was shown to have been committed by Arbitrator.

Messrs Waheed Brothers (Pakistan) Ltd., Lahore through Chief Executive v. Messrs Izhar (Pvt.) Ltd., Lahore through Managing Director 2002 SCMR 366 and Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 rel.

S.G. Rayon Mills (Pvt.) Limited v. Fida Hussain and Associates 2002 CLC 353 and Karachi Transport Corporation v. Karachi Tameerat Limited PLD 1992 SC 479 ref.

(b) Arbitration Act (X of 1940)---

----S. 15---Amendment/modification/correction of award---Jurisdiction of Court---Scope---Role of Court under Arbitration Act, 1940 was of supervisory nature and not that of Appellate Court as under C.P.C.--­Award could only be amended/modified/corrected, if same fell within scope of S.15 of Arbitration Act, 1940.

Messrs Waheed Brother (Pakistan) Ltd., Lahore through Chief Executive v. Messrs Izhar (Pvt.) Ltd., Lahore through Managing Director 2002 SCMR 366 and Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 rel.

(c) Interest Act (XXXII of 1839)-----

----S. 1---Civil Procedure Code (V of 1908), S.34---Interest---Grant or refusal of interest is a discretion vesting in Court exercisable on the basis of known principles for administration of justice.

Terni S.P.A., v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238 rel.

Mehboob Ahmed for Appellant.

Syed Ikhtisar Ahmed and Malik Amjad Parvez for Respondent.

Date of hearing: 9th December, 2003.

2004 C L C 1884

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ANWAR ---Petitioner

Versus

MUHAMMAD RAFIQ---Respondent

C.R. No.400/D of 2002/BWP, decided on 25th June, 2004.

Punjab Pre-emption Act (IX of 1991)---

---Ss. 2(b), 6 & 13---Transfer of Property Act (IV of 1882), S. 54---Suit for pre-emption ---Making of Talbs---Transaction, whether sale or gift-­Plaintiff knowing and believing transaction of suit-land as sale, filed suit for pre-emption on basis of his superior right of pre-emption ---No specific date of gaining knowledge of transaction by plaintiff was entered in the plaint---Mere words of "middle of August, 1996" were not sufficient for the purpose of counting date from Talb-e-Muwathibat to that of Talb-e-Ishhad, because from the definite date the period of performance of Talb-e-Ishhad and the sending of registered notice under S. 13(3) of Punjab Pre-emption Act, 1991 was to be determined--­General words could not save the defect having arisen for the fixation of the period of limitation, as to whether notice of Talb-e-Ishhad was dispatched within prescribed period---No date having been entered in the plaint, it could not be held that notice of Talb-e-Ishhad was dispatched within period of limitation---To prove notice of Talb-e-Ishhad, evidence brought on record by plaintiff, was also not creditworthy---Plaintiff had claimed that transaction was sale, whereas assertion of defendant was that it was gift---Court could not declare a transaction to be a sale without proving the ingredients of sale---Suspicious and dubious transaction could not convert its nature for the purpose of pre-emption--­Sale had to be proved with all its concomitants components otherwise it would not be believed as prayed for---Plaintiff had not proved sale ingredients in the transaction in dispute, whereas defendant by producing evidence, had proved that transaction was gift --- Plaintiff being a stranger to the gift had to bring out the real nature of transaction of sale by credible cogent evidence---Principle that beneficiary of the gift had to prove it; could not .be applied to the case, because when the existence or validity of a gift was challenged by a third person, then said principle would not be applicable---Person/plaintiff who had challenged or was disputing the factum of gift, had to prove it and not the beneficiary of the transaction---Plaintiff having failed to prove that transaction was sale and not gift as claimed by defendant, his suit was rightly dismissed by Appellate Court---Case being not fit for exercise of revisional jurisdiction, revision petition, was dismissed.

Raja Muhammad Sohail Iftikhar for Petitioner.

Ch. Naseer Ahmad, for Respondent.

2004 C L C 1898

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ASLAM HAYAT---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 2 others---Respondents

W. P. No. 7441 of 2002, heard on 27th September, 2002.

Educational Institution---

----Disqualification of candidate---Candidate appeared in 1st Annual Examination, 2002 for B.Sc. Examination---When candidate was taking page: for general math, immediately after start of paper, there was a strike and walkout by the students on the ground that paper was out of course---Candidate was charge-sheeted and show-cause notice was issued to him alleging that he had been an active participant of said strike and walkout---Disciplinary Committee after hearing candidate, held him responsible for all also nations levelled against him and disqualified him from passing 1st Annual Examination, 2002 and from appearing in any University Examination in 2nd Annual 2002---No malice or mala fides had been alleged by candidate against Examination Centre staff nor same was available on record---Effect--To award punishment/conviction to candidate Authority/Tribunal was required to collect some evidence and particularly when in the present case evidence was available with the Disciplinary Committee in the shape of Superintendent, Deputy Superintendent a Invigilating Staff---Such staff could have been summoned in the presence of candidate to depose against him and also to identify him before Disciplinary Committee was responsible for the acts alleged and after recording their stated, any finding called for in circumstances of the case could have been recorded-- In absence of such exercise, impugned order could not be sustained---Same, accordingly was declared to be illegal and without lawful authority--­Case would be deemed to be pending with Disciplinary Committee, who would proceed in accordance with law.

Muhammad Amin Bhatti for Petitioner.

Malik M. Tariq Rajwana for Respondents.

Date of hearing: 27th September, 2002.

2004 C L C 1922

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ALI SHAH and another---Petitioners

Versus

ELECTION TRIBUNAL, (UNION COUNCIL No.49, NARHAL) DISTRICT KHANEWAL and 4 others---Respondents

W.P. No.3900 of 2003, decided on 17th October, 2003.

(a) Punjab Local Government Elections Rules, 2000---

----S. 70---Constitution of Pakistan (1973), Art.199---Constitutional petition---Unsuccessful candidates challenged election of returned candidates by filing election petition---During pendency of said election petition, Officer working as Election Tribunal was transferred and he was succeeded by other officer who proceeded with election petition--­Said Election Tribunal accepted election petition and unseated returned candidates and declared unsuccessful candidates as returned candidates and said decision of Election Tribunal was implemented---Subsequently it transpired that officer who decided election petition as Election Tribunal was neither duly appointed nor was notified as Election Tribunal---When said omission came to the notice of Election Commission, he, after inviting fresh proposal, appointed same officer as Election Tribunal and said Election Tribunal maintained earlier decision whereby he had accepted election petition and had unseated returned candidates---Earlier decision of Election Tribunal was without jurisdiction---Even otherwise decision of Election Tribunal must contain precise controversy of facts and law raised before it and grounds on which it was accepted or rejected---Decision would mean judicious determination of dispute between the parties specifying grounds and substantial reasons for arriving at a particular decision---Decision should be self-contained and conveniently intelligible---Impugned decision of Election Tribunal did not conform to said criterion and it could not be deemed as a decision/judgment in the eye of law---Same was declared as without lawful authority and of no legal effect by High Court in exercise of its Constitutional jurisdiction---Election petition would be deemed as pending before Election Tribunal who would dispose of same in accordance with law.

(b) Words and phrases---

------"Decision" means judicious determination of dispute between the parties specifying grounds and substantial reasons for 'arriving at a particular decision.

Malik Muhammad Rafique Rajwana for Petitioner.

Mian Abbas Ahmad for Respondents Nos.2 and 3.

Date of hearing: 15th October, 2003.

2004 C L C 1932

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. SOFIA RASOOL---Petitioner

Versus

Miss ABHAR GULL, JUDGE, FAMILY COURT, LAHORE and others---Respondents

Writ Petitions Nos.8503 and 398 of 2004, heard on 21st June, 2004.

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

----Ss. 5, Sched & 10---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Dissolution of marriage on ground of Khula--­Khula, meaning of---`Khula' was a release from the matrimonial bond and right of Khula vested in the woman according to the dictates of Holy Qur'an---Jurisdiction vested with the Court to determine whether condition of Khula existed in the pleadings or the evidence led by the parties--- Court would release the woman from her matrimonial bond by way of Khula---Such right purely rested with the woman according to the dictates of Holy Qur'an/because if a woman demanded right of Khula, she had to return all the benefits received by her from her husband---Defendant woman, in the present case, had not filed suit for dissolution of marriage and had not asked for Khula even in her written statement in suit for restitution of conjugal rights filed by her husband--­While determining the right of Khula, Court had to use its best prudence, capability and capacity to find out the truth and the prevalent conditions existing for such rights---Decree would follow the prayer in the plaint---No suit for dissolution of marriage was filed by defendant in case with the averment that she wanted dissolution of marriage on basis of Khula, but Family Court keeping in view the amended provisions of S. 9 of West Pakistan Family. Court Act, 1964 treating written statement of defendant woman filed in suit for restitution of conjugal rights filed by her husband, as plaint, dissolved marriage on basis of Khula and dismissed suit filed by plaintiff-husband---Validity---Court could not pass decree on basis of Khula while dismissing the suit for restitution of conjugal rights---Chairman Arbitration Council on receiving judgment and decree passed by Family Court passed order by way of approving reconciliation---Family Court being corum non judice summoned Chairman on application of plaintiff husband and directed him to issue a certificate of divorce which was arbitrary exercise of jurisdiction by Family Court---Family Court had no jurisdiction to interfere in the proceedings of Chairman Arbitration Council after being functus officio and could not direct Chairman to issue certificate of Talaq on basis of decree passed in suit for restitution of conjugal rights--­Judgments of Family Court were set aside being without lawful authority and case was remanded to be decided afresh in accordance with law.

Malik Ijaz Hussain Gorcha for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Date of hearing: 21st June, 2004.

2004 C L C 1944

[Lahore]

Before Sh. Hakim Ali, J

Haji SAIFULLAH KHAN---Petitioner

Versus

AHMAD MAHMOOD, ZILA NAZIM and others---Respondents

W.P. No.3935 of 2002/BWP, decided on 10th June, 2004.

(a) Punjab Agricultural Produce Market (General) Rules, 1979---

-----R. 11(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Resignation from office of Chairman, Market Committee--­Petitioner who was Chairman. Market Committee, addressed an application to Director Agriculture to the effect that he resigned from the office of Chairman. Market Committee as he had to participate in coming election of Provincial and National Assembly---Only two days after addressing said application, petitioner through another letter informed the Director that he had abandoned the idea and intention to resign, so he had not dispatched his resignation to District Council--Despite said letter District Council accepting resignation of petitioner, through Notification not only deseated the petitioner from the Chairmanship, but also from the Membership of Market Committee concerned---Petitioner in his Constitutional petition had challenged said order of District Council alleging that he had never submitted any resignation to District Council or to Zila Council Chairman, but due to rivalry in the political field he had been removed on the basis of alleged resignation which was never presented or submitted by him---Validity--­Letter or the application of resignation addressed and sent to Director Agriculture could not be termed submission of said letter or application to District Council---Offer from tenderer of resignation to exercise discretion as to accept or reject the resignation could not come into play unless it was conscious presentation of resignation to the Competent Authority soliciting for his yes or no decision---Person must offer his resignation to the competent person---Petitioner had never submitted his resignation to the District Council which was Competent Authority--­Sub-rule (2) of R.11 of Punjab Agricultural Produce Market (General) Rules, 1979 provided that submission of resignation to District Council was mandatory and not to District Nazim---Letter/application written by petitioner; but kept pending or not addressed or sent to the proper authority could not be considered a true and correct submission---High Court accepting Constitutional petition, declared decision of District Council accepting alleged resignation of petitioner as illegal and unlawful- --Petitioner would be deemed to be holding office of Chairman Market Committee.

A.K. Fasalul Quader Chaudhry v. Syed Shah Nawaz and others PLD 1966 SC 105; Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(b) Words and Phrases---

----‘Submission’ explained.

(c) Maxim---

------"Expressum facit cessare facitum"---Meaning and connotation---­Meaning of the maxim "Expressum facit cessare facitum" is that if doing of a particular thing was made lawful, doing of something in conflict with that, would be unlawful, so the things must be done in a way/procedure prescribed for it, to get its validity in the eye of law, otherwise it would not be conferred legality.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 and Fateh Khan v. The State 1985 PCr.LJ 1683 ref.

Petitioner in person.

M.A. Rehman Qureshi for Respondents Nos.1 and 2.

2004 C L C 1949

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ALI and another---Petitioners

Versus

ALLAH BAKHSH and 5 others---Respondents

Civil Revision No.693 of 2002, decided on 16th June, 2004.

Punjab Pre-emption Act (IX of 1991)---

---Ss. 6 & 43---Civil Procedure Code (V of 1908), S. 115---Suit for pre­emption ---Making of Talbs---Talb-e-Muwathibat, meaning of ---Talb-e­-Muwathibat had been defined as an immediate demand by a pre-emptor in the sitting or meeting in which pre-emptor had come to know the sale, declaring his intention to exercise his right of pre-emption---Provisions of S.13 of Punjab Pre-emption Act, 1991 had laid down two conditions---First condition was the immediate making of demand and the second was making Talb-e-Muwathibat in the said manner in the same Majlis.

Gul Hussain Shah v. Mulazim Hussain Shah 1996 SCMR 294 and PLD 2001 SC 13 ref.

(b) Words and Phrases---

------ Immediate", meaning of---Term `immediate' would mean doing of a thing at once and without delay.

Mian Muhammad Akram for Petitioners.

Rana M. Sajid for Respondents:

2004 C L C 1951

[Lahore]

Before Sh. Hakim Ali, J

ABDUL MAJEED and others---Petitioners

Versus

IFTIKHAR AHMAD and others---Respondents

C.R. No. 176 of 2004/BWP, decided on 23rd April, 2004.

(a) Canal and Drainage Act (VIII of 1873)---

----Ss. 68 & 68-A---Dispute with regard to use of water from a canal and restoration of interrupted supply---Jurisdiction of Sub-Division Canal Officer and Divisional Canal Officer to take cognizance of case--­Distinction---Jurisdiction of Sub-Divisional Canal Officer under S.68 of Canal and Drainage Act, 1873 would extend to settle finally dispute between two or more persons as to mutual rights and liabilities with regard to distribution of water from a canal outlet, construction, use or maintenance of watercourse supplied with water from such outlet, deposit from watercourse clearance---Interrupted water supply could be ordered to be restored under S.68-A of Canal and Drainage Act, 1873 by Divisional Canal Officer as a temporary relief, which order being of temporary nature would normally be kept intact even in Civil Court, until such dispute was finally settled by Canal Officer under S.68 of Act, 1873---Principles.

Section 68 of Canal and Drainage Act has provided three eventualities for taking cognizance of a case. It envisages differences having been arisen between two or more persons as to mutual rights and liabilities with regard to (i) distribution of water from a canal outlet, (ii) construction, use or maintenance of the watercourse supplying water from that outlet, (iii) deposit from watercourse clearance.

When anyone of the above differences arises between the persons interest and affected (according to subsection (2) of section 68 of Canal and Drainage Act), the Sub-Divisional Canal Officer to whom an application in writing is made shall proceed with the matter in dispute. After notice to the parties, making an inquiry and grant of opportunity of hearing, he shall then pass an order thereon. In other words, provision of section 68 of the Canal and Drainage Act refers to final adjudication of the dispute. Subsection (3) has granted a right of appeal against the above noted final order of Sub-Divisional Canal Officer to the Divisional Canal Officer. An order under section 68 of Canal and Drainage Act is to be passed initially by Sub-Divisional Officer, while in section 68-A, a different Officer has been empowered to take 'cognizance of it i.e. Divisional Canal Officer. But section 68-A of the Canal and Drainage Act envisages a situation, which a canal water supply to any land is interrupted by dismantling a watercourse or internal Khal', then the Divisional Canal Officer upon an application can make an inquiry and can order its restoration as an interim measure, it the complaint of annihilation of a watercourse or the internalKhal' is found genuine. The words used in section 68-A "order interim restoration of the dismantled watercourse or the internal Khal', are important for consideration. These words have shown the nature of the order, which has to be passed by the D.C.O. The words "an interim order" testify that the order passed under section 68-A is not a final one, but it requires another final order still to be passed by a competent Canal Officer and that the order is passed only for granting a temporary relief, which is an immediate remedial measure to provide prompt relief to a person whose supply of water has discontinued or disconnected. In the exercise of this jurisdiction, the final right with regard to the existence or continuance and to use theKhal' permanently, are not to be settled. Thus, the order passed under section 68-A is not a final one. The words, which are used on another place in section 68-A support this view, which are such order shall remain in force until the dispute is finally settled under section 68 and if necessary a "watercourse link is constructed under this Act". The nature of the order passed under section 68-A of the Canal and Drainage Act is of an interim/temporary nature, it has normally, to be kept intact even in the Civil Court, as the Canal Authorities have not still decided the case finally of the matter in dispute. After restoration of an internalKhal' or dismantaled watercourse, the plaintiff can follow the proceedings under section 68 of the Canal and Drainage Act and can raise and agitate the dispute of mutual rights and liabilities to be decided, if these were not being commenced upon the application of the other party by the Canal Authorities.

Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCMR 613 and Shamas-ud-Din v. Province of Punjab PLD 1992 Lah. 370 ref.

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

----Ss. 42 & 54---Canal and Drainage Act (VIII of 1873), Ss.68 & 68-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Dispute relating to restoration of interrupted water supply---Divisional Canal Officer after holding inquiry ordered restoration of dismantled Khal', which was found to be in existence since long---Plaintiff filed suit against order of Divisional Canal Officer---Ad interim order of Trial Court prohibiting the implementation of such order of Divisional Canal Officer was upheld by Appellate Court---Validity---Divisional Canal Officer had passed such order under S.68-A of Canal and Drainage Act, 1873, while separate proceedings under S.68 thereof were pending---Suit was, thus, prima facie, premature---Plaintiff had not denied existence ofKhal' in dispute prior to its alleged dismantling---Divisional Canal Officer and his subordinate officials too in their inquiry had found Khal' in existence, and that same had been dismantled---Restoration of such dismantledKhal' would not create a new situation or problem or any permanent right in favour of defendant, for whose benefit same had been restored---Courts below should have maintained such order of restoration as same was not going to affect plaintiff adversely---Such dispute and its related questions were yet to be finally decided by Canal Authorities keeping in view provision of S.68 of Canal and Drainage Act, 1873---Prima facie case and balance of convenience was tilting in favour defendant--­Grant of temporary injunction would cause more irreparable loss to defendant than plaintiff---Courts below had not exercised jurisdiction correctly and in accordance with principle of law laid by superior Courts---High Court accepted revision petition and set aside impugned orders of Courts below.

Abdul Qayyum and another v. Niaz Muhammad and another b1092 SCMR 613; Shamas-ud-Din v. Province of Punjab PLD 1992 Lah. 370: Badar Din v. Bahadur Ali and others PLD 1968 Lah. 573; Muhammad Saeed and others v. Fateh Muhammad and others PLD 1962 Lah. 317 and Abu Bakar and others v. Province of Punjab and others 1984 CLC 1699 ref.

(c) Canal and Drainage Act (VIII of 1873)---

----Ss. 68 & 68-A---Dispute relating to use of water from a canal or restoration of interrupted water supply---Inquiry and finding of Canal Authorities with regard to such dispute---Validity---Such inquiry and finding would be given due weight, unless same was shown to be whimsical, capricious, arbitrary or mala fide.

Ch. Shafi Muhammad Tariq for Petitioners.

Ch Naseer Ahmad for Responders No.1.

2004 C L C 1960

[Lahore]

Before Mian Saqib Nisar, J

KHIZER HAYAT---Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, LAHORE and 17 others---Respondents

W. P. No. 10948 of 2004, decided on 14th September, 2004.

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

----S. 10(2)---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment--­Temporary Cultivation Scheme--Petitioners were allotted land in the year 1984 under "Temporary Cultivation Scheme" and their allotments were extended from time to time---Board of Revenue issued notification in 1995 for the grant of proprietary rights to the allottees of such Scheme---Petitioners/allottees fulfilled conditions for grant of proprietary rights and thus had acquired vested right---Instead of granting the proprietary rights to the petitioners the land was allotted to evictees of the Atomic Energy Scheme---Petitioners' appeal was rejected---Board of Revenue, on further challenge formulated five issues and remanded the matter to the Commissioner----Such order was challenged in High Court in Constitutional petition which was accepted and Board of Revenue was directed to decide the case itself---Board of Revenue dismissed the revision petition---Validity---Board of Revenue instead of following the remand order passed by High Court had itself indicated the issues involved in the matter---Board of Revenue was to render its decision on those points which became redundant in view of the reasoning adopted by the Board---Order of the Board suffered from the vice of subjectivity, which was set aside with the direction to the Board of Revenue to re­decide the matter after hearing the parties in the light of earlier order.

Ch. Bashir Ahmad for Petitioner.

Muhammad Sohail Dar, A.A. -G. for Respondents Nos. 1 to 4.

Ghulam Hussain Malik for Respondents Nos.5 to 17.

Date of hearing: 14th September, 2004.

2004 C L C 81

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SAIFULLAH JAN and others‑‑‑Petitioners

Versus

MUHAMMAD AZAM and others‑ ‑‑Respondents

Civil Revision No.97 of 1990, decided on 25th April, 2003.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court ‑‑‑Scope‑‑‑Revisional jurisdiction is to correct the error resulting from non‑reading/misreading of evidence or where the Courts below are found to have failed to exercise the jurisdiction vested in them‑‑‑High Court under S.115, C.P.C. is obliged to reverse the findings of Appellate Forum in cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction by the Trial Court ‑‑‑Revisional jurisdiction cannot be invoked against conclusions of law or fact which do not affect the jurisdiction of the Court below, no matter how erroneous, wrong or perverse the decision might be either on a question of fact or on 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.

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

‑‑‑---O. XLI, Rr.32 & 33‑‑‑Appellate Court‑‑‑Duties‑‑‑Duty of Appellate Court to assess the evidence of parties, examine findings recorded by Trial Court and to give reasons for upholding or reversing the same.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revision‑‑‑Order passed by Assistant Commissioner on 22‑6‑1978, was sought to be set aside in civil suit filed in the year 1984‑‑‑PLalntiff contended that he was minor at the time when order was passed by Assistant Commissioner, therefore, the order was illegal‑‑‑Validity‑‑‑Long silence of the plaintiff had not been explained satisfactorily‑‑‑If the plaintiff was aggrieved of the finding of Assistant Commissioner, he could have gone in appeal before higher authority‑‑‑Such non‑filing of appeal by the plaintiff was taken note of by High Court and the same was not ignored‑‑‑Appellate Court had rightly reversed the findings of the Trial Court and the suit was rightly dismissed‑‑‑Revision was dismissed in circumstances.

Ghulam Hussain and others v. Ghaus Bakhsh and others 1968 SCMR 991 and Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49 distinguished.

Lal Jan Khattak for Petitioners.

Waris Khan for Respondents.

Date of hearing: 7th April, 2003.

2004 C L C 116

[Peshawar]

Before Mian Shakirullah Jan and Shahzad Akbar Khan, JJ

Haji SARIR AHMAD and others‑‑‑Petitioners

Versus

Nawazbzada SHAHABUDDIN KHAN and others‑‑‑Respondents

Writ. Petitions Nos. 1683 of 1991, 610 of 1992 and Civil Miscellaneous No.486 of 1991, decided on 10th September, 2001.

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

‑‑‑‑Art. 199(5)‑‑‑Civil Procedure Code (V of 1908), S.12(2) & O.XLVII, R.1‑‑‑Subsequent Constitutional petition in wake of order of High Court 'passed in earlier Constitutional petition‑‑‑Maintainability‑‑‑Issuance of writ to High Court by filing Constitutional petition barred by Constitutional provisions‑‑‑Petitioner neither filed review application nor application under S.12(2), C.P.C., nor made oral or written request for conversion of subsequent Constitutional petition into such application‑‑­High Court dismissed Constitutional petition as being not maintainable.

Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560; Muhammad Farood M. Memon v. Government of Sindh through its Chief Secretary 1986 CLC 1408; Mst. Chuni Begum v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others PLD 1965 (W.P.) Pesh. 112; Gohar Aman Khan v. Malik Aman and 3 others 1989 CLC 2032; Muhammad Ashraf and another v. Union Bank of Middle East Ltd. 1991 MLR 2037; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; Shaikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590; Zulfiqar Ali Bhutto v. The Federation of Pakistan PLD 1980 Kar. 113; Mumtaz Ali Bhutto v. Mr. Justice Anwarul Haq and 2 others PLD 1979 Kar. 524; M.R. Najmi v. Registrar, Federal Shariat Court, Islamabad PLD 1992 Lah. 302; Oriental Fashions Ltd. and.4 others v. National Bank of Pakistan PLD 1985 Kar. 178; Grindlay's Bank Limited v. Murree Brewery Company Limited and another PLD 1954 Lah. 745 and Ministry of Religious Affairs and others v. S. Abdul Majid 1993 SCMR 1171 ref.

(b) Dir and Swat (Devolution and Distribution of Properties) Regulation, 1972 (M.L.R.122)‑‑‑---

‑‑‑‑Para. 3‑‑‑Recommendations of Commission as to entitlement of a person to property not notified in Official Gazette‑‑‑Effect‑‑‑Issuance of such notification was determining factor for title of such person , in pursuance of M.L.R. 122, in absence of which, he could not be held to be owner of property.

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

‑‑‑‑Ss. 12(2) & 115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration of title to property‑‑‑High Court in revision upheld decree passed by Courts below‑‑‑Application under S.12(2), C.P.C. filed after lapse of seven years without mentioning date or time, on which petitioners had got knowledge of passing of decree‑‑‑Petitioners were brothers and sisters of defendant, who was party to suit and had contested same‑‑‑High‑Court dismissed such application in circumstances.

Sardar Khan for Petitioners.

Jehanzeb Rahim for Respondents Nos.2 to 8.

Qazi Rashidul Haq, A.A.‑G. for Respondents Nos.9 to 12.

Muhammad Shah Khisro and Maazullah Khan Barkandi for Respondent.

Date of hearing: 3rd April, 2001.

2004 C L C 142

[Peshawar]

Before Mian Shakirullah Jan, C.J.­ and Shahzad Akbar Khan, J

ATIQULLAH and another‑‑‑Appellants

Versus

ASSISTANT COMMISSIONER, SWABI and another‑‑‑Respondents

Regular First Appeal No. 19 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 6, 18, 23 & 54‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑‑Reference to Court‑‑‑Acquired land being Chahi' andMaira', Collector determined the price of said land accordingly‑‑­Dissatisfied with compensation amount land owners filed reference before Senior Civil Judge, which was dismissed‑‑‑Validity‑‑‑Land owners claimed that their land was situated near village Abadi' and also was situated adjacent to the path which could be used for private construction, but said facts were not considered by the Collector while determining price of their land‑nor certain mutations mentioned in statement of one of land owners showing value of adjacent lands, were taken into consideration by the Collector while determining price of their acquired land‑.‑‑Witness produced by land owners, could not prove claims of land owners that their lands were situated near,.Abadi' or were adjacent to main road‑‑‑Land owners neither had produced site‑plan regarding `Abadi' near the acquired land nor examined the parties to alleged sale transactions mentioned in photostat copies‑‑‑Mere production of such photostat copies were entirely insufficient for accepting‑ claim of land owners for enhancement of compensation‑‑‑Reference filed by land owners, in circumstances was rightly dismissed by Referee Court.

PLD 1976 Pesh. 50 ref.

Sedratul Islam for Appellants.

Malik Ahmad Jan, D.A.‑G. for Respondent No.1.

M. Alam Khan for Respondent No.2.

Date of hearing; 21st May, 2003.

2004 C L C 157

[Peshawar]

Before Malik Hamid Saeed and Shahzad Akbar Khan, JJ

MUHAMMAD IBRAR KHAN and another‑‑‑Petitioners

Versus

MUHAMMAD IKRAM KHAN and 4 others‑‑‑Respondents

Writ Petition No.872 of 2001, decided on 14th May, 2003.

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

‑‑‑‑Ss. 13 & 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition ‑‑‑Ejectment application‑‑‑Improvement made on rented premises by tenant‑‑‑Claim for compensation ‑‑‑Ejectment application was allowed by Rent Controller ordering ejectment of tenants from rented shop‑‑‑Tenant aggrieved of the order of ejectment filed appeal which was decided by Appellate Court holding that tenant having spent amount on construction raised by him on rented shop, he was entitled to compensation thereof‑‑‑Appellate Court remanded matter to Rent Controller to appoint Local Commissioner to assess market value of alleged construction/ improvement made by tenant and to decide the same in the light of his report‑‑‑Validity‑‑‑Tenant had not obtained consent of landlord qua alleged construction/improvement in writing, in the absence of any cogent and independent evidence to the effect that consent of landlord was obtained, mere oral statement of tenant was not sufficient to hold that tenant had raised the construction with consent of landlords‑‑‑Even if consent of landlord was presumed qua alleged construction by tenant, it would not give any entitlement to tenant for recovery of amount spent thereon as no evidence was available to show that landlords had accepted the liability of making payment to tenant for construction raised by him‑‑‑Landlords having expressed their consent that tenant could take away his material of alleged construction, tenant would be at liberty to remove the same‑‑‑Constitutional petition was allowed with direction that vacant possession of shop in question would be handed over to landlord within specified period.

Qazi Muhammad Qadir Khan v. Molvi Ghulam Mohyuddin and another 1970 SCMR 449 ref.

Sh. Wazir Muhammad and M. Alam Khan for Petitioners.

Fazal Ilahi Khan for Respondents.

Date of hearing: 14th May, 2003.

2004 C L C 162

[Peshawar]

Before Shah Jehan Khan, J

FAQIR MUHAMMAD and others‑‑‑Petitioners

Versus

FIDA MUHAMMAD and others‑‑‑Respondents

Civil Revision No.409 of 1999, decided on 4th July, 2003.

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

‑‑‑‑‑S. 41‑‑‑Vendor cannot transfer a better title than he possesses at the time of transfer.

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

‑‑‑‑S. 42‑‑‑Title over suit‑land‑‑‑Adverse possession, plea of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Predecessors of defendants were recorded in the ownership column specifically mentioning their possession while the plaintiffs were recorded owners without possession‑‑‑Entries of title in favour of plaintiffs were rebutted by defendants` as the predecessors of defendants had been enjoying the usufruct of the suit‑land since 1956, when they purchased the land, without recognizing any right of anybody including the plaintiffs or their predecessor‑in‑interest‑‑‑Long‑standing entries in favour of the defendants since their purchase and even before that right from first settlement in the area, those from whom the defendants had derived the title were enjoying possession of the suit‑land to the exclusion of those from whom the plaintiffs had derived mere title‑‑‑Both the Courts below had decreed the suit in favour of the plaintiffs‑‑‑Validity‑‑‑Long‑standing silence of plaintiffs since their purchase of suit‑land in the year 1946, till the institution of the present suit in the year 1989, and possession of defendants as owners open and hostile had made the case of the defendants of adverse possession‑‑‑Judgments and decrees passed by both the Courts below suffered from misreading and non‑reading‑of evidence led by the parties‑‑‑Concurrent findings of two Courts below were without jurisdiction‑‑‑Lower Appellate Court had not exercised the jurisdiction vested in it properly and had only endorsed the findings recorded by the Trial Court‑‑‑Judgments and decrees passed by both the Courts below were set aside.

2003 CLC 116; PLD 1980 Pesh. 40; 1994 SCMR 1836; PLD 2001 SC 401 and 1977 CLC 1971 distinguished.

1988 SCMR 1782; 1991 SCMR 2504 and PLD 1993 SC 336 ref.

Muhammad Aman for Petitioners.

Muhammad Younas Khan for Respondents Nos. 1 to 8.

Aamir Javed Khan for Respondent No.26.

Date of hearing; 25th June, 2003.

2004 C L C 176

[Peshawar]

Before Talaat Qayum Qureshi, J

FAIZUR REHMAN and another‑‑‑Appellants

Versus

Haji AMIR MAQSOOD and 2 others‑‑‑Respondents

Second Appeal from Order No.4 of 2002, decided on 18th March, 2003.

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

‑‑‑‑S. 13(2)(vi)‑‑‑Ejectment of tenant‑‑‑Plea of reconstruction‑‑‑Site plan produced by landlord was not got sanctioned from Municipal Committee or Town Committee of the concerned area‑‑‑Effect‑‑‑Landlord having failed to comply with the requirements of law‑‑‑Eviction order on the basis of such site plan could not be passed.

Messrs Ismail Brothers v. Kewalram 1980 SCMR 776 rel.

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

‑‑‑‑S. 13(3)‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑Even a solitary statement of landlord is sufficient to prove his bona fides.

Iqbal Book Depot v. Khatib Ahmad and 6 others 2001 SCMR 1197; Sardar Nabeel Wali v. Additional District Judge/Appellate Authority, Sahiwal and others PLD 2000 SC 829; Muhammad Shuaib Alam v. Muhammad Iqbal 2000 SCMR 903; Juma Sher v. Sabz Ali J997 SCMR 1062; F.R. Irani & Co. v. Begum Feroz 1996 SCMR 1178; Jahangir Rustam Kalia v. State Bank of Pakistan 1992 SCMR 1296 and Muhammad Iqbal v. Sardar Bacha and 2 others 2002 YLR 1940 rel.

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

‑‑‑‑S. 13(3)‑‑‑Bona fide personal need of landlord for particular premises‑‑‑Choice of landlord‑‑‑Contention of the tenant was that the landlord had got vacated another shop, therefore, the shop in question was not required by the landlord‑‑‑‑Validity‑‑‑No evidence was brought op record to show that the shop got vacated by the landlord was sufficient for his requirement and that the same was in his possession‑­Landlord has the prerogative to choose any premises from all the several tenements occupied by tenants for his personal requirement‑‑‑Appellate Court had rightly passed eviction order in favour of the landlord‑‑­Appeal was dismissed by the High Court.

1980 SCMR 776 and PLD 1985 SC 1 ref.

S.M. Nooruddin and 9 others v. S.A.G.A. Printers 1998 SCMR 2119; Shahzada Ayyaz v. Mst. Zainab Bibi 2000 SCMR 485; Messrs F.K. Irani & Co. v. Begum. Feroz 1996 SCMR 1178 and Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523 rel.

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

‑‑‑‑S. 13(4)‑‑‑Bona fide personal need of landlord‑‑‑Protection to tenant‑‑‑Scope‑‑‑Failure of landlord to occupy the premises within the stipulated period‑‑‑Tenant had every right to get back the possession by filing application before the Rent Controller.

Nasiruddin v. Muhammad Siddique 1981 SCMR 709; Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523 ref.

Mian Muhammad Younas Shah for Appellants.

Saeed Baig for Respondents.

Date of hearing: 18th March, 2003.

2004 C L C 189

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUJEEBUR REHMAN‑‑‑Appellant

Versus

ZAFAR ALI KHAN‑‑‑Respondent

First Appeal from Order No. 126 of 2000, decided on 6th January, 2003.

(a) Administration of justice‑‑‑‑‑‑--

----Every case is to be seen on its own facts and circumstances.

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

‑‑‑‑S. 17(2)‑‑‑Civil Procedure Code (V of 1908), O.XX, R.5‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Proof‑‑‑Solitary statement of landlord‑‑‑Provisions of Civil Procedure Code, 1908‑‑‑Applicability‑‑­Non‑speaking order passed by Rent Controller‑‑‑Ejectment application was accepted by the Rent Controller on the ground of default in monthly rent‑‑‑Findings by Rent Controller on the issue of default were given in a single sentence and he did not discuss the accumulative effect of statement of the tenant where he had explained the reasons for non­ tendering of the rent‑‑‑Validity‑‑‑Such judgment was violative of O.XX, R.5, C.P.C.‑‑‑Although the provisions of Civil Procedure Code, 1908, in stricto senso are not applicable to the rent cases yet such cases being judicial proceedings, the Rent Controller is under bounden duty to apply his mind judicially and record the judgment complete in all respects with all fairness and justice‑‑‑Solitary statement of landlord that too with one sentence without any substantial documentary or oral evidence was not sufficient to draw conclusion in favour of landlord as there was no denial on the side of the tenant and there was no written agreement deed between the parties‑‑‑Rent Controller had failed to exercise discretion in favour of the tenant‑‑‑Eviction order passed by the Rent Controller was set aside and ejectment petition of landlord was dismissed.

1999 SCMR 20; 1971 SCMR 598; 1975 SCMR 355; 1980 SCMR 506; 1984 CLC 393; 1998 CLC 105,4; 1997 CLC 1531; PLD 1983 Kar. 196 and PLD 1989 SC 32 distinguished.

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

‑‑‑‑S. 17(2)‑‑‑Ejectment of tenant‑‑‑Default in monthly rent‑‑‑Burden to prove‑‑‑Shifting of onus‑‑‑Principle‑‑‑Burden is on landlord to prove the issue of default‑‑‑Where landlord successfully discharges his burden then the same is to be shifted to the tenant‑‑‑Allegation of landlord about default becomes doubtful, if there is unexplained silence by the landlord in respect of payment of rent‑‑‑Benefit of such doubt always goes to tenants thus discretion vested in Rent' Controllers under S.17(2) of Cantonments Rent Restriction Act, 1963, is attracted in circumstances.

(d) Interpretation of statutes‑‑‑--

‑‑‑‑ Word "shall"‑‑‑Import‑‑‑Where law‑makers intend to make a provision mandatory, they have used word "shall".

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

‑‑‑‑S. 17(8)‑‑‑Order for deposit of tentative rent‑‑‑Object‑‑‑Landlord who alleges default, is able to receive under S.17(8) of Cantonments Rent Restriction Act, 1963 arrears of rent and future rent for subsequent months during the proceedings‑‑‑Grievance of landlord is redressed in a way, therefore, discretion is conferred on Rent Controller so that he should see the nature of default as to whether the tenant is chronic and willful 'defaulter and whether he is a cause of constant nuisance and mental torture being not regular paymaster when the rent is the source of. income for the landlord.

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

‑‑‑‑Preamble & S.17‑‑‑Ejectment proceedings‑‑‑Rent Controller‑‑‑Duties and functions‑‑‑Guidelines‑‑‑Landlords usually feel pleased to take the Rent Tribunals as Post Office so that landlords just throw a letter to reach its destination automatically‑‑‑Such practice of landlords is illegal and against the norms of fair play, justice and good conscience‑‑‑While dealing with rent cases, the Courts/Tribunals should apply their mind properly‑‑‑Incumbent upon Rent Controller to scrutinize and analyse the available evidence and material with great care and caution and sift the grain from the chaff leaving no place for doubt‑‑‑Purpose and theme of Cantonments Rent Restriction Act, 1963, is to control and regulate the dealing between tenants and landlords‑‑‑Where on the one side the Rent Controller is to ensure the regular monthly payment of rent to landlord, there on the other side, he has to secure and protect the tenant from illegal and unnecessary ejectment leaving him shelterless without any cogent reasons‑‑‑Rent Controller is though a persona designata but he is supposed to act and proceed judicially and is not allowed to play with the valuable rights of the parties‑‑‑Rent Controller is not given unbridled powers to act the way he likes as per his whims and wishes.

Muhammad Shafi v. Iqbal PLD 1965 (W.P.) Lah. 23; Abdul Aziz v. Abdul Ghani 1986 SCMR 1857; Sirajud Din v. Noor Muhammad PLD 1987 Quetta 165; Inayatullah v. Zahoorud Din 1987 SCMR 1313 and Sitaldas and 2 others v. Haji Muhammad Saffar PLD 1984 Kar. 87 ref.

Zafar Ali Khan for Appellant.

Riaz Ahmad Khan for Respondent.

Date of hearing: 2nd December, 2000.

2004 C L C 203

[Peshawar]

Before Dost Muhammad Khan, J

Mst. KISHWAR---Petitioner

versus

ABDUL DEHYAN and others---Respondents

Civil Revision No.722 of 2003, decided on 24th October, 2003.

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

----Ss. 39 & 42---Mutation---Attestation of mutation---Mere attestation of mutation, would not convey any title to vendee/donee and the very transaction must be proved independently through cogent evidence by the beneficiary claiming title thereunder---Entries in Revenue Record were maintained for fiscal purposes alone.

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

----Ss, 122 & 123---Tamleek/gift---Tamleek was a type of gift and it could be proved through cogent and convincing evidence independently of mutation and Jamabandi entries and onus would lay heavily upon the beneficiary of the same.

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

---S. 12---Finding given by Family Court on matrimonial matters, nature and binding force and execution of---Any declaration/findings given by Family Court on matrimonial matters and matters ancillary thereto were judgments in rein which would be binding on whole world---Unless and until decree of a competent Court was set aside by adopting proper legal procedure, it would have overriding and super­imposing legal effect on all other documents including so-called Tamleek mutation because legally it occupied a very high pedestal as strong legal sanctity was attached to it---As parties in the present case had settled matter amicably through mutual consent and consent decree of Family Court was passed thereon there was no need for the plaintiff to execute the same---Need for execution of decree would arise when judgment-. debtor openly and publicly would refuse to abide by the Court decree, but when decree was passed on consent, no such eventuality would arise to execute the same.

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

----S. 115---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Revision--­Suit for declaration, perpetual injunction and for possession---Both Courts below had misdirected themselves in the matter of appraisal of evidence on record and had also committed legal error due to misapplication and non-application of correct law to the subject in issue---Both Courts below due to flagrant violation of settled principle of justice, had rendered their judgments as nullity ---Revisional jurisdiction of High Court being corrective and curative in nature would come into play to undo manifest injustice having been caused/done to plaintiff--­Accepting revision petition, concurrent judgments and decrees of Courts below were set aside by High ,Court in exercise of its revisional jurisdiction and all decrees as prayed for by plaintiff in heading of plaint were granted to plaintiff.

Abdul Sattar Khan for Petitioner.

Attaullah Khan of Tangi for Respondents Nos.2, 3 and 5

2004 C L C 211

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. HUSSAN PARI and others---Petitioners

versus

MUQARRAB KHAN and others---Respondents

Civil Revision No.489 of 2002, decided on 6th October, 2003.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of land---Suit having concurrently been decreed in favour of plaintiffs, defendants had filed revision against said concurrent judgments of two Courts below---Defendants had proved that land in dispute was Seri' land which was given to their forefathers in lieu of service rendered by them on the Shrine ofZiarat Musa Baba' and defendants being Majawars' were in possession of suit-land since the time immemorial and could not be dispossessed---Evidence on record had fully proved that land in dispute wasSeri' and defendants were Serikhors' and their possession was more than eighty years old--­Predecessor of defendants had been in service of Shrine of Musa Baba and the people of village at the time of their ceremoniesSerikhors' were Malikan-e-Qabza' and they were not owners of the land in village---Defendants though wereSerikhors' and not the owners of land in dispute, but because they had improved said land by making the same cultivable and had grown trees thereon, they could not be dispossessed---Proprietary body of village notionally remained the owners of said land---Courts below had failed to appreciate said legal position, High Court accepting revision set aside concurrent judgments and decrees passed by the Courts below and dismissed the suit.

Azizur Rehman and another v. Atai Khan and 6 others PLD 1976 Pesh. 60; Muhammad Atiq and others v. Tayubuddin and others PLD 1998 Pesh. 47; Muhammad Saleem Shah and others v. Azizur Rehman Shah and others PLD 2002 SC 280 and Haji Muhammad Bashir and others v. Mst. Zardan Bi and others 2001 CLC 784 ref.

Abdul Latif Afridi for Petitioners.

Muhammad Aman Khan for Respondents.

Date of hearing: 2nd October, 2003.

2004 C L C 231

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Mst. WAJIDA BEGUM and others---Petitioners

versus

Mst. SHAMIM AKHTAR and others---Respondents

Civil Revision No.125 of 2001, decided on 10th November, 2003.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 5---Transfer of Property Act (IV of 1882), S.54---Pre-emption suit---Transaction of gift alleged to be a sale ---Proof---Pre-emptor in order to succeed in suit was obliged to satisfy judicial conscience of Court through cogent and convincing evidence that transaction shown to he a gift was in fact of sale and device had been adopted to thwart pre­emption claim---Mere allegation of pre-emptor that suit transaction was sale, in absence of any documentary proof, would not be a valid piece of evidence and could not be considered for brushing aside genuine and bona fide claim of defendants:

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

---S. 5---Transfer of Property Act (IV of 1882), S.54---Pre-emption suit---Gift by husband in tavour of wife in lieu of dower was alleged by plaintiff to be a sale---Proof---Trial Court and Appellate Court dismissed suit---Validity---Plaintiff had not proved payment of sale price- through cogent and reliable evidence---Sale was, thus, not complete in terms of S.54 of Transfer of Property Act, 1882---Husband had transferred land in his wife's name in lieu of dower in addition to dower fixed at time of marriage---Not unusual on the part of husband to alienate suit property in favour of wife by way of "Tamlik" in lieu of dower amount---Evidence produced by plaintiff to prove that in fact suit transaction was a sale and not a "Tamlik" was highly discrepant and fell short of required standard---Courts below on basis of evidence on record had found suit transaction a "Tamlik" and not a sale---High Court dismissed revision petition.

Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022; Abdul Zahid v. Haji Gulab 2002 CLC 4; Executive Engineer C&W Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427; Muhammad Qasim and 6 others v. Muhammad Hussain and 8 others PLD 2001 Lah. 9; Riaz Hussain v. Board of Intermediate and Secondary Education and others 2000 SCMR 661; Shaukat Nawaz v. Mansabdar and another 1988 SCMR 851; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Muhammad Bakhsh v. Elahi Bakhsh and others 2003 SCMR 286; Mst. Janat Bibi v. Faqir Muhammad 1998 MLD 837; Mst. Falak Naz v. Federal Land Commission, Islamabad and another 2002 CLC 518; Jan Muhammad v. Mst. Salamat Bibi and another 2002 SCMR 1408; Muhammad Afzal and 2 others v. Rehmatullah and another PLD 1990 Pesh. 131; Mst. Wilayat Jan and another v. Muhammad Sharif and another 1985 SCMR 1131: Yar Baz khan v. Lal Nawaz PLD 1996 Pesh. 86; Muhammad Azim Khan v. Mst. Muqaisha and another PLD 1968 Pesh. 120; Muhammad Irshad and 4 others v. Sardar Khan 1981 CLC 124; Muhammad Afzal and others v. Jan Muhammad and others 2003 SCMR 1286; Gulzar,Khan v. Kist. Shahzad Bibi and another 1996 SCMR 487; Shah Nawaz v. Inayatullah and another PLD 1988 Pesh. 126; Durab Khan v. Mst. Sabv_ ani PLD 1952 Lah. 421; Mst. Manzoor Elahi v. Muhammad Nawaz and others 2002 MLD 988; Muhammad Daud v. Mst. Suriya Iqbal and another PLD 2000 Pesh. 54; Anwar Zaman and 5 others v, Bahader Sher and another 2000 SCMR 431; Mehra and 6 others v. Muhammad Yunas and 20 others 2003 SCMR 759; Taj Muhammad v. Mst, Zaitoon and another PLD 1995 Pesh. 135; Gulwali Khan v. Safdar Saleem and 10 others 1997 MLD 3075; Sardar Zaman Khan v. Government of N.­W.F.P. and others 2001 CLC 1041; Maqbool Rehman v. Mst. Munawar 2001 CLC 1804; Muhammad Irfan Khan and 4 others v, Mst. Nasreen Anwar 2001 CLC 1256; M. Malik v. Mst. Razia PLD 1988 Lah. 45; Muhammad Ali's case 1984 SCMR 94; Muhammad Shafi v. Allah Dad Khan PLD 1986 SC 519 and Irfanuddin's case 1996 SCMR 1386 ref.

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

----S. 54---Sale---Essential condition---Proof of payment of some price in cash for thing sold necessary.

It is necessary that some price in cash must be paid for the thing sold.

According to section 54 of Transfer of Property Act, it is to be proved that price/consideration has been paid to the owner.

M. Malik v. Mst. Razia PLD 1988 Lah. 45 and Muhammad Ali's case 1984 SCMR 94 rel.

(d) Islamic Law---

----Dower---Practice of transferring land in favour of wife, in lieu of dower not uncommon between families.

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

----Ss. 96, 100 & 115---Exercise of discretion by Court below--­Interference in appeal and revision---Scope---Principles.

Interference in revision with. decisions regarding matters, which are within the discretion of subordinate Court is not warranted, unless order is contrary to the principles governing the exercise of such discretion or the Court had acted perversely or arbitrarily. Improper exercise of discretion may be corrected in appeal, but not in revision. Revisional jurisdiction is directed against the irregular exercise, non­exercise or illegal assumption of jurisdiction and not against the conclusion of law or fact not involving question of jurisdiction, however, erroneous that may be. It is settled principle of law that findings recorded by the Court of competent jurisdiction cannot be interfered with by High Court in exercise of its revisional jurisdiction under section 115. C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity.

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

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

----O. XLI, R.31---Judgment in appeal---Duty of Appellate Court to give decision on every point and discuss all grounds on which finding of Court below is based.

Appellate Court is required to give its decision with regard to each and every point for determination and the contentions raised and against should be disposed of by a speaking order. Appellate Court is further required to discuss all the grounds on which the finding of Court below is based.

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

----O. XLI, R.27---Remand - of case by Appellate Court ---Scope--­Remand should not be ordered, when no evidence is to be recorded or evidence on record is sufficient for Appellate Court to decide issue/question itself---Principles.

If the entire evidence on record is available, which is sufficient for -the Appellate Court to pronounce judgment and decide the issue, it is riot necessary to remand the case for trial to the lower Court particularly when no evidence is to be recorded.

Remand should not be lightly ordered, if the evidence on record is sufficient for the Appellate Court to decide the question itself. There can be no bar to the Court doing so.

Pramatha Nath Chowdhry and 17 others v. Kamir Mondal and others PLD 1965 SC 434 fol.

Ziaur Rehman Khan for Petitioners.

M. Khalid Rehman Qureshi for Respondents.

Date of hearing: 6th October, 2003.

2004 C L C 266

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

ZIA-UL-ISLAM and 2 others---Petitioners

versus

AHMED SAEED and 2 others---Respondents

Writ Petition No.104 of 2003, decided on 25th September, 2003.

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

----S. 15(1)(7)---Constitution of Pakistan (1973), Art. I99--­Constitutional petition---Appeal against ejectment order---Appellate Authority after hearing preliminary arguments directed for issuance of )re-admission notice to landlord for 12-2-2002---Wakalat Nama by landlord's counsel was filed on 12-2-2002 and case was fixed for 14-2-2002 for orders---Appellate Authority admitted appeal to regular hearing on 14-2-2002 and decided main appeal without allowing parties to argue---Validity---Appellate Authority had relied upon a reported judgment, but perusal of referred book did not show any reported judgment---Such fact showed that Appellate Authority had already made up its mind to decide appeal in favour of tenant---Appellate Authority by showing undue haste and indecent zeal in conducting proceedings had decided appeal within six days in haphazard manner, thus, had violated fundamental principles of judicial proceedings viz. that justice should not only be done, but should also be seen to have been done, and that no man should be condemned unheard---High Court accepted Constitutional petition and set aside impugned order, resultantly appeal filed by tenant would be deemed to be pending before Appellate Authority, which would be decided after hearing parties.

1982 CLC 2203 ref.

(b) Administration of justice---

---- Presiding Officer of Court is required to maintain a balanced attitude in dealing with grievances of parties with regard to conduct of proceedings and is supposed to maintain his posture and conduct in a manner, which would inspire confidence of parties and reflect his impartiality and neutrality in conduct and disposal of cases---Such Officer should be fair to parties.

Miss Nusrat Yasmin for Petitioners

Shumail Ahmad Butt for Respondents.

Date of hearing: 25th September, 2003.

2004 C L C 284

[Peshawar]

Before Talaat Qayum Qureshi, J

YAQOOB KHAN and others---Plaintiffs

versus

RAFIULLAH SHAH and others---Defendants

Civil Revision No.984 of 2003, decided on 20th November, 2003.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 31 & 32---Pre-emption suit arising from sale effected through mutation---Limitation---Such suit has to be filed within 120 days from date of attestation of mutation- --Issuance of public notice under S.32 of North-West Frontier Province Pre-emption Act,, 1987 has no nexus with period of limitation prescribed by S.31 thereof---Provision of S.32 of the Act is meant to provide an extra source of knowledge for making Talb-i­-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S.13(3) thereof.

Dr. Muhammad, Ayub Khan v. Haji Noor Muhammad 2002 SCMR 21.9 and Ghulam Rasool v.. Haroon Khan 1996 CLC 1517 rel.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 fol.

Muhammad Alamzeb Khan for Petitioners.

2004 C L C 296

[Peshawar]

Before Talaat Qayum Qureshi, J

GOVERNMENT OF N.-W.F.P. and others---Petitioners

versus

KHAIRUL BASHAR---Respondent

Civil Revision No.724 of 2002. decided on 20th November, 2003.

Forest Act (XVI of 1927)---

----S 29--.-Spcciflc Relief Act (I of 1877). S.42---Suit for declaration--­Plaintiff claimed to have purchased suit property through registered sale­deed, while plea of defendant (Provincial Government) was that same was, "protected forest" ---Trial Court, on basis of report of Local Commissioner and evidence of parties, decreed suit, which was upheld b$ Appellate Court --Validity---Notification was to be made after holding inquiry with regard to nature and extent of rights of Government and private persons over suit property---No such inquiry had been conducted ---Provincial Government could still hold such inquiry as there was no hurdle to its way--High Court directed Provincial Government to hold, inquire through impartial official/agency after associating plaintiff-- -High Court accepted revision petition, set aside judgment and decree of Appellate Court, -and remanded case with directions to decide same in the light of inquiry report to be submitted by Provincial Government.

Mat. Azam Khan Affandi v D.C., Swat and 7 others 2000 SCMR 548 fol. '

Tariq Javed, D.A.-G. for Petitioners.

Ftda Gul for Respondent.

2004 C L C 337

[Peshawar]

Before Dost Muhammad Khan, J

NOOK REHMAN---Petitioner

SHER MUHAMMAD KHAN and others---Respondents

Civil Revision No.322 of 1996, decided on 23rd September, 2003

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale---Suit property which was evacuee in nature was allotted to female as displaced person, but her attorney fraudulently got allotted same in his own name from whom plaintiff hats allegedly acquired it through unregistered sale­deed on basis of which plaintiff obtained decree for specific performance of agreement of sale--.-Claim of defendants was that they had purchased suit property from last purchaser thereof at time when allotment in favour of female allottee was intact---Allotment allegedly made in favour of attorney of female allottee who later on sold same to plaintiff, was cancelled under the order of Competent Authority when it was found that said attorney had got allotment in his favour by way of fraud---Attorney of female allottee/vendor being not owner of suit property, decree passed in favour of plaintiff, was a void decree and such decree which was nullity and void, would be ignored even by Executing Court--­Plaintiff/vendee could not take shelter behind said decree as he had stepped into the shoes of vendor -who was having no legal title 'in the suit property---View taken by Appellate Court was perfectly in accordance with law and principle of justice and was-based on solid and cogent evidence---Conclusion drawn by Appellate Court were fair and findings recorded thereon were also in accordance with evidence on record---No exception could be taken to findings of Appellate Court.

AJK BISE, Mirpur and 3 others v. Abdul Qayyum Qamar PLD 2003 SC (AJ&K) 14 and Muhammad Darwaish Khan v. Bahadar Nawaz khan and others 1995 MLD 2011 ref.

Zia-ur-Rehman Khan for Petitioner.

Gul Sadber Khan for Respondents.

Date of hearing; 23rd September, 2003.

2004 C L C 359

[Peshawar]

Before Dost Muhammad Khan, J

FAZAL REHMAN---Petitioner

versus

KHURSHEED ALI and others---Respondents

Civil Revision No.571 of 2002, decided on 14th November, 2003.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Contract Act (IX of 1872), Ss. 196, 197 & 199---Civil Procedure Code (V of 1908), S.96---Suit for pre-emption ---Appeal filed through attorney, competency of---Suit filed by plaintiff having been dismissed by Trial Court, plaintiff filed appeal against judgment and decree of Trial Court through his attorney which was accepted--- Competency of appeal was challenged by defendant contending that attorney of plaintiff was not conferred with express powers to file appeal' or revision. vide deed of attorney---Contention of defendant was repelled for the reasons that all the acts performed right up to the High Court by Attorney had been either expressly or- impliedly confirmed and ratified by plaintiff/principal---Although deed of power of attorney was to be strictly construed and unless authority/power was conferred expressly, it could not be construed to be implied or inherent in, the agent, but provisions of Ss.196, 197 & 199 of Contract Act, 1872 were an exception to the general rule wherein principal had been given an option to ratify an act not expressly conferred on the agent-Such ratification could be either express or implied and once such acts of agent were ratified by principal, same would stand validated for air legal purposes and would bind principal and would have same effect as done or performed by principal himself---All acts performed and steps taken by attorney having been confirmed/ratified by plaintiff through his conduct both express and implied, same would be held to have been validly performed by attorney---Appeal filed through attorney was competent, in circumstances.

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

----Ss. 196, 197 & 199---Power of attorney---Deed of power of attorney to be strictly construed---Effect of Ss.196, 197 & 199, Contract Act, 1872---Scope---Although deed of power of attorney was to be strictly construed and unless authority/power was conferred expressly, it could not be construed to be implied or inherent in the agent, but provisions of Ss. 106, 197 & 199 of Contract Act, 1872 were an exception to the general rule wherein principal had been given an option to ratify an act not expressly conferred on the agent---Such ratification could be either express or implied and once such acts of agent were ratified by principal, same would stand validated for all legal purposes and would bind principal and would have same effect as done or performed by principal himself---All acts performed and steps taken by attorney having been confirmed/ratified by plaintiff through his conduct both express and implied, same would be held to have been validly performed by attorney.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption ---Making of Talbs---Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal---Validity--­Omission of time, place and names of witnesses from the plaint was not fatal to the case of plaintiff---Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also riot of much consequence because both witnesses appeared in the Court and had confirmed that they had attested the original notice--- Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant---Omission to sign notice by attesting witnesses was a technical one.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR ' 329 and Abdul Malik v. Muhammad Latif 1999 SCMR 717 fol.

(d) Words and phrases---

---- Manage' andmanagement'---Meaning and, connotation.

(e) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 2, 6 & 13---Transfer of Property Act (IV of 1882), S.118---Suit for pre-emption~-Exchange of land---Exemption from pre-emption right---Exchange of land for better management---Phrase `better management' used in cl. (iv) of S.2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude---Exemption from pre-emption right in present form was conditional and was an exception to the rule regarding exchange of property---To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management--.-No hard and fast rule could be laid down to define and interpret "better management".

Abdus Sattar Khan for Petitioner.

Abdus Samad Khan for Respondent No. 1.

Respondent No.2: Ex parte.

Date of hearing: 14th November, 2003.

2004 C L C 378

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Shahzad Akbar Khan, J

SAEEDUR REHMAN and others---Appellants

versus

ASSISTANT COMMISSIONER/COLLECTOR ACQUISITION, SWABI--- Respondent

Regular First Appeal No.32 of 1997, decided on 25th June, 2003.

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

----Ss. '4, 6, 23 & 54---Acquisition of land---Determination of compensation---Reference to Civil Court---Owners of acquired land being dissatisfied with compensation amount as determined by the Land Acquisition Collector, filed reference before Referee Court---Reference having been dismissed, owners filed appeal alleging that both Land Acquisition Collector and Referee Court had not taken into consideration all the relevant facts for the purpose of determining correct price of land---Claim of owners was that acquired land was situated near the village Abadi' and on the road side which could be. used for the purpose of construction and that those were adding factors to the potentiality of the land---Evidence on record had established that land in question was not located on or alongwith the road side as claimed by the owners of land and witness in their cross-examination had also admitted that distance between village and land in question was two kilometres--­Landowners had also failed to bring on record anything to prove that any other land in the same locality was sold for a higher price ---Effect--­Mere bald statements of witnesses produced by landowners would not be sufficient to accept their claim for a higher price of acquired land---Land in question was proved to be ofMaira kind' which was not cultivable and no element of its potential value was emerging from the record--­Determination of price of land for purpose of compensation through one yearly average, being one of the modes recognized by law, having correctly been employed by Land Acquisition Collector, was rightly upheld by Referee Court.

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

----O. VI, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Art.117--­Pleadings---Proof of facts alleged in pleadings---Pleadings of the parties were not evidence and facts alleged in the pleadings must be proved through evidence of party which had claimed existence of such facts.

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.

2004 C L C 418

[Peshawar]

Before Mian Shakirullah Jan, C. J. and Shahzad Akbar Khan, J

FATEH MUHAMMMAD‑‑‑Appellant

Versus

LAND ACQUISITION COLLECTOR, SWABI and others‑‑‑Respondents

Regular First Appeal No.24 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 6, 18, 23 & 54‑‑‑Acquisition of land‑‑ ‑Compensation‑‑­Determination of‑‑-Reference to Referee Court‑‑‑Owners of acquired land being dissatisfied with the compensation amount as determined by the Land Acquisition Collector filed reference before Civil Court which was dismissed by Civil/Referee Court and owners of acquired land had filed appeal against judgment of Referee Court‑‑‑Landowners had claimed that price of acquired land as determined by Land Acquisition Collector and upheld by the Land Acquisition Judge/Referee Court was much less‑‑‑Landowners contended that acquired land which was located near village could be used for purpose of construction and that potential value of said land was not taken into consideration by the Land Acquisition Judge/Referee Court‑‑‑Landowners had further argued that lands in the vicinity were sold for higher price than that given to the landowners‑‑‑Validity‑‑‑Evidence on record had proved that land in question was `Maira' kind and was located far‑off from the village which did not have any source of water and even electric supply was not available near the said land‑‑‑Price of land was fixed on the basis of one yearly average which was one of the modes recognized by law for determining compensation under Land Acquisition Act, 1894‑‑­Landowners who had claimed that lands in the vicinity had been sold on higher price, had failed to produce any evidence in that respect‑‑­Landowners, in circumstances, had failed to prove that their land was acquired at lower rate than prevalent rate‑‑‑Appeal filed by landowners against order of Land Acquisition Collector, affirmed by Referee Court, in respect of determination of price of acquired land, was dismissed, in circumstances.

PLD 1976 Pesh. 50 ref.

Muzamil Khan for Appellant.

Malik Ahmad Jan, D.A.‑G. for Respondent No. 1.

M. Alam Khan and Ghulam Ali for Respondent No.2.

Date of hearing: 21st May, 2003.

2004 C L C 466

[Peshawar]

Before Shah Jehan Khan, J

ROZI KHAN GOJAR and another‑‑‑Petitioners

Versus

Mst. REHMAT BIBI‑‑‑Respondent

Civil Revision No.639 of 2003, decided on 19th December, 2003.

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

‑‑‑‑S. 12(2)‑‑‑Proceeding under S.12(2), C.P.C.‑‑‑Nature‑‑‑Proceeding under S.12(2), C.P.C. is in the nature of a declaratory suit seeking a declaration to the effect that the decree passed by Civil Court was the result of fraud and misrepresentation.

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

‑‑‑‑Ss. 12(2), 115, O.VII, R.11 & O.XXIII, R.1‑‑‑Rejection of plaint‑‑­Filing of suit after dismissal of application under S.12(2), C.P.C.‑‑­Earlier suit was dismissed as withdrawn and against such dismissal order, the respondent had filed application under S.12(2), C.P.C. which application had also been dismissed‑‑‑Instead of approaching next higher forum against the dismissal of her application under S.12(2), C.P.C. the respondent illegally resorted to file the‑present plaint on the same cause of action‑‑‑Trial Court in view of O.XXIII, R.1(3), C.P.C. rejected the plaint‑‑‑Appeal against the rejection order passed by the Trial Court was allowed by Appellate Court and the case was remanded to Trial Court for decision afresh‑‑‑Validity‑‑‑Trial Court had rightly rejected the plaint as the respondent had illegally resorted to file the plaint in the present proceedings which was unambiguously hit by the provision contained in O.XXIII, R.1(3), C.P.C.‑‑‑Order passed by the Appellate Court was illegal and without jurisdiction which was set aside and that ‑of the Trial Court was restored‑‑‑Revision was allowed in circumstances.

PLD 1998 Lah. 441; Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30; Messrs Sindh Engineering (Pvt.) Ltd. v. O.T.I.S. Elevator Company and 3 others 2000 CLC 1524; Ghulam Rasool and 12 others v. Shana and 12 others 2001 MLD 661; Abdul Malik v. Muhammad Urfan 1989 CLC 2363; State v. Mansoor‑ur­Rehman Khan Afridi PLD 2000 Lah. 90; Naseer Ahmad Shaikh v. Lt. ­Col. Munawar Hussain Shah 2000 CLC 1342 and Messrs Qasim International Container Terminal Pakistan Limited v. Federation of Pakistan and 7 others 1999 CLC 2065 ref.

Qazi Muhammad Jamil for Petitioners.

Qazi Zakiuddin for Respondent.

Date of hearing: 15th December, 2003.

2004 C L C 515

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. BIBI GULA and others‑‑‑Petitioners

Versus

NAIMATULLAH and others‑‑‑Respondents

Civil Revision No.350 of 2002, decided on 15th December, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Art.120‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑‑‑Declaration of title ‑‑‑Limitation‑‑­Mutation of sale attested in the year 1924 was assailed by the plaintiffs in the year 1995‑‑‑Predecessor‑in‑interest of plaintiffs did not challenge their possession in long period of 71 years‑‑‑Neither plaintiffs in their plaint pleaded nor did they explain during their statements before Trial Court as to point of time when the defendants occupied the suit property and how did they remain in possession of the suit property for such a long time‑‑‑Defendants through convincing evidence established that their predecessor‑in‑interest had purchased the suit property from predecessor‑in‑interest of the plaintiffs and they were put into physical possession also and since its purchase they had been tilling the land and enjoying its usufruct‑‑‑Effect‑‑‑Ownership with possession over the land in question was protected as bona fide purchaser‑‑‑Suit filed by the plaintiffs was barred by time but both the Courts below had failed to appreciate the same and failed to properly exercise jurisdiction vested in them‑‑‑Judgments and decrees passed by both the Courts below in favour of the plaintiffs were set aside and the suit was dismissed being time-­barred.

Miskeen and others v. Khadija 2001 MLD 1790; PLD 1964 Pesh. 159; 1996 SCMR 856; PLD 1999 Lah. 446; PLD 2001 Azad J&K 15; .2002 CLC 300; 1993 SCMR 618; 1998 CLC 2006 and Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230 ref.

Qazi Muhammad Anwar for Petitioners.

Muhammad Aman Khan for Respondents.

Date of hearing: 8th December, 2003.

2004 C L C 542

[Peshawar]

Before Talaat Qayum Qureshi, J

SHAMAS‑UD‑DIN and others‑‑‑Petitioners

Versus

Mst. BALKH NISA and others‑‑‑Respondents

Civil Revision No.228 and Civil Miscellaneous No.541 of 2002, decided on 23rd June, 2003.

Shari Nizam‑e‑Adl Regulation (I of 1999)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), Ss.9, 115 & O.VII, R.11 ‑‑‑Rejection of plaint‑‑‑Jurisdiction of Civil Court‑‑‑Concurrent findings 6f fact by the Courts below‑‑‑Dispute between the parties was referred to Provincially Administered Tribal Areas Courts and thereafter having being unsuccessful, the plaintiffs filed civil suit‑‑‑Trial Court rejected the suit on the ground that jurisdiction of Civil Court was barred under 12 of Shari Nizam‑e‑Adl Regulation, 1999‑‑‑Order passed by the Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Plaintiffs had participated and defended their rights before the Provincially Administered Tribal Areas Courts and also filed appeal and revision before the relevant forums‑‑‑After availing the remedies available to them, the plaintiffs could not turn around and challenge the decisions passed by the competent Courts before Civil Court‑‑‑Concurrent findings of fact by the Courts of competent jurisdiction against the plaintiffs‑‑‑No illegality or any material irregularity or any jurisdictional error/defect warranting interference in the judgments and decrees was found by the High Court‑‑‑Revision was dismissed in limine.

Shahzad Gul v. Additional Secretary Home, Government of N.‑W.F.P. and others 1999 SCMR 1028 fol.

Muhammad Amin Khattak for Petitioners.

Fateh Muhammad Khan for Respondent No. 1.

2004 C L C 555

[Peshawar]

Before Talaat Qayum Qureshi, J

AMINUL HAQ‑‑‑petitioner

Versus

ABDUL WASAI and others‑‑‑Respondents

Civil Revisions Nos.4 and 5 of 1991, decided on 22nd December, 2003.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑­Inheritance ‑‑‑Proof‑‑‑Entitlement of husband in the property inherited by deceased wife from her father‑‑‑Soon after the death of the wife of the plaintiff, their son also died‑‑‑Plaintiff claimed to be the exclusive owner of the property owned by his deceased wife‑‑‑Plaintiff through convincing evidence proved that he was entitled to the legacy left by his deceased wife which she inherited from her father‑‑‑Effect‑‑‑Trial Court had rightly appreciated the evidence on record, and decreed the suit in favour of the plaintiff but the Appellate Court failed to appreciate the same in its true perspective‑‑‑Judgment and decree passed by the Appellate Court were set aside and that of the Trial Court was restored‑‑­Revision was allowed in circumstances.

1987 SCMR 66; 1995 PLJ SC 26; PLD 1998 SC 187; PLD 1981 SC 105; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958; Mst. Balqees Begum and another v. Mst. Khan Bibi and others 2003 MLD 185 and Allah Rakha and another v. Muhammad Arif 2003 MLD 970 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.133‑‑‑Witness not cross‑examined on a fact‑‑‑Effect‑‑‑When a witness is not cross‑examined on a fact and his statement remained un-rebutted and unquestioned, such statement can be taken as correct.

Mst. Noor Jehan Begum v. Syed Mujtaba Naqvi 1991 SCMR 2300; Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539; Khanzada Inamullah v. Mst. Zakia Qutab and others PLD 1998 Pesh. 52; Haji Din Muhammad through L.Rs. v. Mst. Hajra Bibi PLD 2002 Pesh. 21 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 158‑‑‑Document placed on record without objection from other side, admissibility of such document cannot be challenged at appellate or revisional stage.

Abdullah and others v. Abdul Karim PLD 1968 SC 140; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 and Abdul Hamid Khan v. Muhammad Zamir Khan and 2 others 1990 MLD 1617 ref.

Mian Muhammad Younas Shah for Petitioner.

Abdul Aziz Kundi for Respondents.

Date of hearing: 15th December, 2003.

2004 C L C 582

[Peshawar]

Before Tariq Parvez and Ijaz-ul-Hassan Khan, JJ

ABBAS KHAN and 11 others---Petitioners

Versus

HAFEEZ-UR-REHMAN and 2 others---Respondents

Writ Petition No.6 of 2003, decided on 22nd December, 2003.

(a) West Pakistan Urban Rent Restrictions Ordinance (VI of 1959)---

----S. 2(c)---Expression landlord'---Essential characteristics of status of landlord-- Expressionlandlord' as embodied in S.2(c) of West Pakistan Urban Rent Restrictions Ordinance, 1959, is of wide amplitude, having larger connotation than the words owners of land'---Landlord may be one person or more than one person and personal requirement of rented premises may be of one landlord or more than one landlord---Landlord covers in its fold, not only person who actually receives rent but also who is entitled to receive rent, in, one or more of the capacities---Owner who is entitled to receive rent is landlord so also a person who is competent to receive rent on behalf of or for the benefit of such landlord (owner) would also be landlord---Essential characteristic of the status of landlord and tenant are: subordination to a landlord and liability to pay rent---Person who for the time being is entitled to receive rent in respect of any building whether on his own or on behalf of any other person is declared as landlord under S.2(c) of West Pakistan Urban Rent. Restrictions Ordinance, 1959---Expressionlandlord' is not restricted to a person who actually receives rent but also contemplates a person who is eligible to receive rent though he might have never in fact received rent.

Lal Zarin v. Niaz Muhammad Khan PLD 1984 Pesh. 46; Muhammad Salim v. Sardar Khan and others PLD 1984 Lah. 179; Syed Amjad Ali Shah v. Muhammad Afzal and 3 others PLD 1987 Lah. 280; Mst. Kalsoom Akhtar and others v. Muhammad Yaqoob PLD 1976 Kar. 992; S.A. Waheed v. Dayal Singh College Trust Society PLD 1955 Lah. 570; Muhammad Sharif v. The Additional Judge, Bahawalnagar and others 1989 CLC 2285; Province of Punjab through Secretary, Education and others v. Mufti Abdul Ghani PLD 1985 SC 1 and Messrs Urdu Digest Printers v. Hakeem Muhammad Idrees and others 1982 CLC 470 ref.

(b) West Pakistan Urban Rent Restrictions Ordinance (VI of 1959)-----

----Ss. 2(c) & 13---Constitution of Pakistan (1973), Art.199--­Constitutional petition ---Ejectment of tenant---Relationship of landlord and tenant---Proof---Tenants denied existence of such relationship on the ground that the land beneath the shops was not owned by the landlord--­Rent Controller allowed the ejectment application and eviction order passed against the tenants was maintained by the Appellate Court--­Validity---Record showed that agreement deeds, rent deeds and affidavits were, executed and the tenants had been regularly making payment of rents to the landlord who was owner of the disputed premises---Tenants could not deny title of landlord at such stage and refuse payment of rent---Plea was raised with the purpose to escape liability---Mere fact that the suits were pending in Civil Courts regarding status of the landlord about his being Muhtamim, by itself could not be considered a ground, to exonerate the tenants from the liability of paying rent or denying title of the landlord regarding the suit shops---Eviction orders were competently and correctly passed by the forums below and no infirmity was attached to the same---Petition was dismissed in circumstances.

Province of Punjab through Education Secretary and another v Mufti Abdul Ghani PLD 1985 SC 1 and Muhammad Sharif and others v Muhammad Afzal Suhail and others PLD 1981 SC 246 ref.

Rustam Khan Kundi for Petitioners.

Gohar Zaman Khan Kundi assisted by S. Abid Hussain Shah for Respondents.

Date of hearing: 18th December, 2003.

2004 C L C 682

[Peshawar]

Before Ejaz Afzal Khan, J

LAND ACQUISITION COLLECTOR, ISLAMABAD-PESHAWAR MOTORWAY PROJECT NATIONAL, HIGHWAY AUTHORITY and another---Petitioners

Versus

MUHAMMAD YOUSAF KHAN and others---Respondents

Civil Revision No.610 of 2003, decided on 30th January, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 34, 4, 6 & 17---Acquisition of land---Entitlement to get interest-­--Property in question which was acquired having been taken in possession under Ss.6 & 17 of Land Acquisition Act, 1894, it was an indefeasible right of owners of acquired land under S.34 of said Act to get interest--­No canon of law would bar recovery of interest through a civil suit if same was denied as owner of acquired land was entitled to it notwithstanding any waiver or an agreement to the contrary---Award of such interest through a decree in a civil suit could not be termed to be an. illegality or jurisdictional error by any norm so as to justify interference therewith---Award of compound interest, however, was in no way in conformity with provisions of S.34 of Land Acquisition Act, 1894.

State of Madhya Pradesh v. Man Mohan Swaroop AIR 1966 MP 270; Lalsaheb Nabin Chandra Hani Deo and another v. The State of Orissa AIR 1975 Orissa 126 and Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others PLD 2001 SC 514 ref.

Sikandar Rashid for Petitioners.

M. Alam Khan for Respondents.

Date of hearing: 30th January; 2003.

2004 C L C 694

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

KACHKOL---Petitioner

Versus

REHMAN-UD-DIN --- Respondents

Civil Revision No.574 of 2002, decided on 9th January, 2004.

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

----Ss. 8 & 42---Suit for declaration-cum-possession through partition--­Compromise---Record proved that parties had effected a compromise on basis of which suit was decreed---Mere assertion of defendant that he was not party to said compromise and that no such compromise had been effected in the case, without a positive attempt on his part to substantiate same, was of no consequence.

Begum Hamayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali 1968 SCMR 828; Abid Hussain v. Mst. Afsar Jehan Begum and another PLD 1973 SC 1; Mst. Khurshid Begum v. Mir Muhammad and 8 others 1990 CLC 1614; Muhammad Ibrahim v. Malik Akhtar Ali and 15 others 2001 CLC 1323; Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131 and Maulvi Salamat Ali Khan v. A.R. Muhammad Siddique PLD 1952 Dacca 137 ref.

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

----S. 96---First appeal dismissal of---First appeal be not dismissed in limine if facts of the case were not simple or undisputed, where, however, facts were fairly simple and straightforward and Appellate Court had ample jurisdiction, Court could dismiss the appeal in limine and maintain impugned judgment and decree of Trial Court.

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

----S. 115---Revisional jurisdiction, exercise of---Both Courts below had given concurrent finding of facts and no prejudice seemed to have been caused to the petitioner warranting interference of High Court in its revisional jurisdiction---Revision petition filed by petitioners was dismissed, in circumstances.

Ms. Nausrat Yasmeen for Petitioner.

Murtaza Khan Durrani for Respondents.

Date of hearing: 5th December, 2003.

2004 C L C 703

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan Khan, JJ

SHAHID BAKHSH ‑‑‑ Petitioner

Versus

Mst. SHAZIA BIBI and another‑‑‑Respondents

Writ Petition No. 1401 of 2003, decided on 24th November, 2003.

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

‑‑‑‑Ss. 2(b), 5 & 17‑‑‑Jurisdiction and power of Family Court‑‑‑Closing evidence of party‑‑‑No express provision existed in West Pakistan Family Courts Act, 1964 authorizing a Family Court to close evidence of party, but also there was no provision to the effect that party's evidence would not be closed even if said party had failed to produce evidence, without sufficient cause, despite having availed of several opportunities to do so‑‑‑Family Court could close evidence of a party who failed to adduce evidence without sufficient cause.

Syed Shaukat Abbas v. Mst. Bushra Rani and another PLD 1982 Lah. 281 ref.

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

‑‑‑‑Ss. 2(b), 5 & 17‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑­Jurisdiction, nature, extent and role of the Family Court‑‑‑Scope‑‑­Provisions of West Pakistan Family Courts Act, 1964, was a special law enacted to provide facility to litigants in family matters‑‑‑Role of Family Court was not merely adversary, but it was also inquisitorial‑‑‑Family Court had power to pass any order which could promote. the ends of justice and was also empowered to take all steps which it deemed necessary to ensure that substantial justice was done‑‑‑Provisions of Civil Procedure Code were not applicable in stricto senso by virtue of S.17 of West Pakistan Family Courts Act, 1964 and Family Court was competent to regulate its own proceedings as the said Act did not make provisions for every conceivable eventuality and unforeseen circumstances.

Khalilur Rehman Bhutta v. Razia Naz and another 1984 CLC 890 ref.

(c) Constitution of Pakistan (1973)‑‑

----Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑scope‑‑­Awarding of discretionary relief under Constitution mainly depended upon conduct of a party‑‑‑Where petitioner would appear to have acted contumaciously with sole object to prolong litigation and add to the agonies of respondent, no equitable relief could be granted in discretionary jurisdiction of High Court to such‑like petitioner‑‑‑In absence of any misreading and non‑reading of evidence in impugned judgments of Courts below, Constitutional petition filed against said judgments was dismissed, in circumstances.

M. Hassan Afridi for Petitioner.

Nemo for Respondents.

Date of hearing: 24th November, 2003.

2004 C L C 749

[Peshawar]

Before Talaat Qayum Qureshi, J

P. T.C. L. ---Petitioner

Versus

Dr. SHAUKAT HAYAT---Respondent

Civil Revision No.953 of 2003, decided on 17th December, 2003.

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

----Ss. 80, 82 & 91--- Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Disconnection of telephone connection---Recovery of arrears---Recovery proceedings---Unless and until specific amount was determined judicially as being "due" and was declared as "arrears of Land Revenue", coercive measures as provided under West Pakistan Land Revenue Act, 1967, could not be adopted--­Record showed that disputed amount had not been declared as "due" amount, same could not be deposited by plaintiff before filing the suit--­When disconnection order had shown that telephone had already been disconnected for non-payment of amount, provisions of West Pakistan Land Revenue Act, 1967 would not debar plaintiff to file suit without deposit---Amount "due" had not been judicially determined by the Authorities and disputed amount had not been declared as arrears of Land Revenue---Plaintiff having raised dispute with regard to amount due, bar contained in S.91 of West Pakistan Land Revenue Act, 1967 would not be attracted and plaintiff was not debarred to file suit without depositing claimed/disputed amount.

1995 CLC 1982; PLD 1962 SC 384; 1993 MLD 1031; 1984 SCMR 1047; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1984 SC 67; Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others PLD 1975 Kar. 1008 and Messrs Grain Systems (Pvt.) Ltd., Karachi v. Agricultural Development Bank of Pakistan, Islamabad 1993 MLD 1031 ref.

Ali Jamil Qazi for Petitioners.

Manzoor Khalil for Respondent.

2004 C L C 825

[Peshawar]

Before Abdul Rauf Khan Lughmani, J

Mst. RASHIDA KHATOON‑‑‑Petitioner

Versus

MUHAMMAD IQBAL and 2 others‑-‑Respondents

Civil Revision No.55 of 2002, decided on 29th December, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984); Arts.72 & 79‑‑‑Execution of document ‑‑‑Proof‑‑‑Concurrent findings of facts by the Courts below‑‑­Plaintiff claimed to be the owner of the suit property on the basis of unregistered deeds executed in her favour‑‑‑Plaintiff neither produced marginal witnesses of the deeds, nor the scribe‑‑‑Deeds produced in evidence were objected to by the defendants during the trial‑‑‑Trial Court dismissed the suit and judgment and decree passed by Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Plaintiff was required to prove execution of documents in accordance with law by producing marginal witnesses and scribe of the deeds ‑‑‑ Concurrent findings of facts by the Courts below could not be set aside unless it had been shown to be the result of non‑reading or misreading of evidence.

Syed Mahboob Ahmad Shah for petitioner.

Khalid‑ur‑Rehman Qureshi for Respondents.

Date of hearing: 9th December, 2003.

2004 C L C 825

[Peshawar]

Before Abdul Rauf Khan Lughmani, J

Mst. RASHIDA KHATOON‑‑‑Petitioner

Versus

MUHAMMAD IQBAL and 2 others‑-‑Respondents

Civil Revision No.55 of 2002, decided on 29th December, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984); Arts.72 & 79‑‑‑Execution of document ‑‑‑Proof‑‑‑Concurrent findings of facts by the Courts below‑‑­Plaintiff claimed to be the owner of the suit property on the basis of unregistered deeds executed in her favour‑‑‑Plaintiff neither produced marginal witnesses of the deeds, nor the scribe‑‑‑Deeds produced in evidence were objected to by the defendants during the trial‑‑‑Trial Court dismissed the suit and judgment and decree passed by Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Plaintiff was required to prove execution of documents in accordance with law by producing marginal witnesses and scribe of the deeds ‑‑‑ Concurrent findings of facts by the Courts below could not be set aside unless it had been shown to be the result of non‑reading or misreading of evidence.

Syed Mahboob Ahmad Shah for petitioner.

Khalid‑ur‑Rehman Qureshi for Respondents.

Date of hearing: 9th December, 2003.

2004 C L C 973

[Peshawar]

Before Talaat Qayum Qureshi, J

GUL NAWAB and others---Petitioners

Versus

NAIMATULLAH and others---Respondents

Civil Revision No.350 of 2002, decided on 15th December, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art. 120---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Limitation---Plaintiffs had sought declaration to the effect that they were owners of suit-land and that defendants had nothing to do with the same and that mutation attested in favour of predecessor-in-interest of defendants was wrong and being based on fraud, and illegality, was ineffective upon their rights---Suit was concurrently decreed by Courts below in favour of plaintiffs---Validity---Evidence on record had established that property in dispute originally belonged to predecessor-in-interest of plaintiffs and said property was mortgaged way back in year 1899 in favour of some body, but was not got redeemed---Said property thereafter was sold by predecessor-in-interest of plaintiffs to predecessors-in-interest of defendants vide mutations attested in 1924 in Jalsa-e-Aam in favour of predecessor-in-interest of defendants---Said property remained in possession of predecessor-in-interest of defendants ---Predecessor-in­-interest of plaintiffs, who remained alive for about 35 years after attestation of mutations in favour of predecessor-in-interest of defendants, never challenged the said mutation or possession of predecessor-in-interest of defendants---Defendants being successors of vendee of suit-land remained in uninterrupted possession of suit property and neither predecessor-in-interest of plaintiffs nor after his death his successors/plaintiffs challenged their possession during the long period of 71 years---Ownership with possession of defendants over suit-land was protected as bona fide--.-Suit filed by plaintiffs after 71 years of attestation of mutation and uninterrupted possession of defendants over suit-land, which at the most could be filed after six years according to Art.120 of Limitation Act, 1908 was hopelessly time-barred and Courts below were not justified to decree the suit---High Court in exercise of its revisional jurisdiction, set aside concurrent judgments and decrees of Courts below and dismissed suit filed by plaintiff being hopelessly time ­barred.

Miskeen and others v. Khadija 2001 MLD 1790; PLD 1964 Pesh. 159; 1996 SCMR 856; PLD 1999 Lah. 446; PLD 2001 (AJK) 15; 2002 CLC, 300; 1993 SCMR 618; 1998 CLC 2006; Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230 and Maqsoodur Rehman v. Mst.Janay By Legal heirs PLD 1994 Pesh. 58 ref.

Qazi Muhammad Anwar for Petitioners.

Muhammad Aman Khan for Respondents.

Date of hearing: 8th December, 2003.

2004 C L C 1016

[Peshawar]

Before Talaat Qayum Qureshi, J

SHER MUHAMMAD and another---Petitioners

Versus

AHMAD KHAN and another---Respondents

Civil Revision No.779 of 2002, decided on 19th June, 2003.

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

----O. IX, Rr. 8, 9---Specific Relief Act (I of 1877), Ss.8, 42 & 54--­Expression "Hearing"---Meanings---Suit for possession, declaration and perpetual injunction---Transfer of suit from one Court to another--­Dismissal of suit for non-appearance of plaintiff---Restoration of suit--­Suit filed in the Court of E.A.C. with the power of Deputy Commissioner, was transferred to the Court of Civil Judge/Illaqa Qazi due to amendment in law in that respect---Plaintiff who was not served with notice of such transfer, could not appear in transferee Court and due to his absence his suit was also dismissed for non-prosecution and his application for restoration of suit was also dismissed by Trial Court-­-Appellate Court below, however, allowed application for restoration of suit and case was remanded to Trial Court for deciding suit on merits--­Defendants had filed revision against judgment of Appellate Court--­Validity---Plaintiff having not been served after case was transferred to Civil Judge, question of appearance of plaintiff before transferee Civil Court would not arise---Even if plaintiff had been served and he was absent on date for which he was summoned, question would arise as to whether said date would be called date of "hearing" ---Word hearing' would mean taking of evidence or hearing of arguments or the consideration of question relating to suit which would enable the Court to finally come to an adjudication upon it and not the consideration of interlocutory matter---When case was received on transfer from another Court and fixed for determining future conduct of the suit, notice was issued forappearance' and not for `hearing'---After holding the service of notice to be proper, the Court was required to fix case for hearing and suit could not be dismissed for non-appearance of plaintiff on date when same was fixed for appearance only---Trial Court was not justified to dismiss suit and Appellate Court had rightly set aside judgment of Trial Court---In absence of any jurisdictional error/defect, warranting interference in judgment and decree passed by Appellate Court, revision petition filed against judgment and decree of Appellate Court below, was dismissed.

(b) Words and phrases---

----"Hearing"----Meaning and scope.

Qazi Zakiuddin for. Petitioners.

Jan Muhammad Khan for Respondents.

Date of hearing: 17th June, 2003.

2004 C L C 1048

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

MUHAMMAD SHARIF---Appellant

Versus

LAND ACQUISITION COLLECTOR and others---Respondents

Regular First Appeal No. 16 of 2002, decided on 24th September, 2003.

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

----Ss. 4, 18 & 23---Acquisition of land---Determination of Market value---Methods---Ascertainment of market value---Meanings---In order to determine the amount of compensation to the persons who were deprived of their interest in lands, the market value had to be assessed by taking into consideration principles laid down in S.23 of Land Acquisition Act; 1894 under which, owner was entitled to charge the price of his land fixed with reference to the probable use that would give him the best return and not merely in accordance with its present use and disposition---Compensation of acquired land must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser---Land was not to be valued merely accordance with the use to which it was being put, but also by reference to the uses to which it was reasonably capable of being put in future--­Methods of valuation to be adopted in ascertaining the market value of the land on the date of notification under SA(1), of Land Acquisition Act, 1894, were; (i) opinion of experts; (ii) the price paid within a reasonable time in bona fide transaction of purchase of land acquired or the lands adjacent to the land acquired and possessing similar advantage; (iii) a number of years purchase of actual or immediately prospective profits of the land acquired---Said factors, however, would not preclude the Court from taking any other special circumstances into consideration---In arriving at a reasonable correct market value, it could be necessary to take even two or all of those methods into account inasmuch as the exact valuation was not always possible as no two lands could be the same either in respect of situation or the extent of potentiality nor it was possible in all cases to have reliable material from which that valuation could be actually determined---Market value at the date of acquisition had to be ascertained---Ascertainment of market value would mean that valuation must be made on the basis that property was put up for sale in the open market at the date of acquisition which would mean what had to be ascertained was the price which a willing purchaser would pay on that date---While determining the market value of the land or fair compensation thereof, reference was to be made to the present use and also to the use to which land could be put in near future.

Arbab Fazlur Rehman Khan and others v. Collector, Acquisition (Industries) (W.P.) Now N.-W.F.P. Peshawar 1986 SCMR 1118; Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam AIR 1939 PC 98 and Pakistan Burma Shell Limited v. Province of N.-W.F.P. and 3 others 1993 SCMR 1700 ref. (b) Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 23 & 54---Acquisition of land---Determination of amount of compensation---Procedure---Acquisition Collector while determining amount of compensation of acquired land, had overlooked the potential value of acquired land and fixed its price arbitrarily in disregard of well established principles laid down by superior Courts for ascertaining the market value of lands acquired---Referee Judge also recorded judgment and decree in a mechanical manner without application of mind which had materially prejudiced interest of the landowner---Impugned judgment and decree passed by Referee Judge, were set aside and market price of land in question was enhanced accordingly.

Sheikh Wazir Muhammad for Appellant.

Sikandar Rashid for Respondent.

Date of hearing: 10th September, 2003.

2004 C L C 1086

[Peshawar]

Before Talaat Qayum Qureshi, J

GOVERNMENT OF N.-W. F. P. ---Appellant

Versus

SHER ZADA---Respondent

Regular First Appeal No. 130 of 2003, decided on 29th March, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 23 & 54---Acquisition of land---Determination of market value and potential value---Appeal---Basic method of determination of market value of acquired land was to take into consideration the instances of sale of adjacent land made shortly before and after notification under S.4 of Land Acquisition Act, 1894---Market value of acquired land was to be determined on the basis of instances of sale of land in the neighbouring locality as there was trend of rise in price of land of the area- Potential value of land need not be separately awarded because such sale would cover the potential value---Value of land of adjoining area which was simultaneously acquired and for which different formula of compensation had been adopted, should also be taken into consideration---Referee Court had rightly enhanced amount of compensation by fixing amount as per guidelines provided by Superior Courts in their various judgments.

Government of N.W.F.P through Collector Mardan and others v. Abdul Samad Khan and others PLD 2002 SC 422; Nisar Ahmad Khan and others v. Land Acquisition Collector, Swabi and others PLD 2002 SC 25; Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870 and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 ref.

Abdul Qadir Khattak for Appellant.

Haji Muhammad Umar Khan for Respondent.

Date of hearing: 29th March, 2004.

2004 C L C 1100

[Peshawar]

Before Talaat Qayum Qureshi and Muhammad Qaim Jan Khan, JJ

Haji MIR ALAM SHAH through Legal Heirs---Petitioners

Versus

ADAM KHAN and 16 others---Respondents

Writ Petition No. 1264 of 2002, decided on 26th January, 2004.

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

----O. XXIII, R.1---Withdrawal of suit---Effect---If earlier suit on same subject-matter was withdrawn without seeking permission to file a fresh suit on the same subject, subsequent suit on the same subject-matter, was not maintainable.

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

----O. II, R. 2---Filing of suit---Omission/relinquishing of claim--­Plaintiff had to include whole of his claim to which he was entitled in every suit filed by him, but once any claim was omitted/ relinquished under O.II, R.2, C.P.C., he could not sue in respect of that claim.

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

----S. 42---Civil Procedure Code (V of 1908), S.11, O.II, R.2, O.VII, R.11 & O.XXIII, R.1(3)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Suit for declaration---Principle of resjudicata--­Applicability---Rejection of plaint---Constitutional petition---Parties and their predecessors have had litigation between them earlier too---Neither pleadings of the parties were showing that old litigations were over the same subject-matter and between the same parties nor all the judgments/decrees passed therein were placed on record---Had the Trial Court on receipt of application under O.VII, R.11, C.P.C: for rejection of plaint, framed issue as to whether the suit filed by plaintiffs was hit by provisions of O.XXIII, R.1(3), O.II, R.2, C.P.C. and principle of constructive resjudicata and had invited the parties to lead evidence, they would have placed on, record all the judgments/decrees in the previous litigation and said material would have provided foundation for the Courts below to resolve those issues, but Appellate Court below had failed to appreciate said position---High Court accepting Constitutional petition, set aside judgment and decree passed by Appellate Court below and restored that of Trial Court.

Punjab Board of Revenue Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284; 1996 MLD 1409; 1999 YLR.991; 2000 CLC 1524; 2001 MLD 440; 2001 YLR 736; 2002 SCMR 338; PLD 2001 SC 325 and PLD 1983 Pesh. 100 ref.

Jan Muhammad Khan for Petitioners.

Miss Nusrat Yasmin for Respondents.

Date of hearing: 26th January, 2004.

2004 C L C 1160

[Peshawar]

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

AYESHA FIDA‑‑‑Petitioner

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary, Home and Tribal Affairs Department at Civil Secretariat Peshawar and 7 others‑‑‑Respondents

Writ Petition No.362 of 2003, decided on 7th April, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational Institution‑‑­Admission in Medical College‑‑‑Petitioner/candidate, having, passed Entry Test, was selected for admission in First year in M.B.B.S. Class and was directed to deposit requisite fee‑‑‑Candidate, after deposit of requisite fee, joined her class in college, but thereafter her admission was cancelled on pretext of change in Admission Policy brought through corrigendum Notification‑‑‑Not only corrigendum in question, could not have been issued by the Authorities at a time when admission process had already commenced, but documents available on record had further created an impression of mala fide intention of the Authorities behind the action taken‑‑‑As petitioner/candidate. through interim relief granted ‑by High Court, was continuing her study in the college and student who was admitted to her place was also continuing his studies for the last one year, High Court had every sympathy with said student if her admission would be disturbed because of acceptance of Constitutional petition filed by candidate, but that situation was emerging only due to the fault of the Authorities‑‑‑Authorities would decide fate of said student favourably, but cancellation of admission of petitioner/candidate in the college was totally illegal‑‑‑High Court accepting Constitutional petition filed by petitioner, allowed her to continue her Medical education in the college.

1999 SCMR 965 and 1986 CLC 1056 ref.

Syed Sardar Hussain for Petitioner.

Obatdullah Anwar, A.A.‑G. for Respondent No.2.

Waseemuddin Khattak for Respondents Nos.3 to 6.

Fazal Elahi for Respondent No.7.

Abdur Rauf Gandapur for Respondent No.8.

Date of hearing; 30th March, 2003.

2004 C L C 1211

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. GUL FAROSHA‑‑‑Petitioner

Versus

MUHAMMAD RAHIM and others‑‑‑Respondents

Civil Revision No. 1116 of 2003, decided on 12th April, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Presumption as to thirty years old documents‑‑‑Discretion under Art. 100 of Qanun‑e‑Shahadat, 1984, to be exercised judiciously‑‑­Court could refuse to raise such presumption where it had reasons to believe that documents which were claimed to be 30 years old were fabricated and suspicious.

Lutufur Rehman and others v. Zahoor and others 1999 SO 433 and Shafiqunnisa v. Shabar Ali Khan 30 IA 217 ref.

(b) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Ingredients of‑‑‑If three ingredients namely declaration of gift, acceptance of gift and transfer of possession, were proved, the gift was complete‑‑‑Even oral gift of immovable property made by Muslim in favour of Muslim son was proper if said three ingredients/requirements were complete.

AIR 1926 PC 100; 1987 SCMR 1403; PLJ 1987 SC 149; 1989 CLC 1317; PLD 1984 Pesh. 260; AIR 1942 All. 82; AIR 1963 SC 1917;1999 SO 433; 1997 MLD 754; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 and Mst. Gul Bibi and another v. Mst. Sajida Bibi 2000 CLC 399 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Exercise of‑‑‑Scope‑‑‑In absence of any misreading, non‑reading of evidence or any material irregularity or any jurisdictional error, concurrent findings of Courts of competent jurisdiction, could not be interfered with in revisional jurisdiction of High Court.

Mian Muhammad Younis Shah for Petitioner.

Ziaur Rehman for Respondents.

2004 C L C 1220

[Peshawar]

Before Talaat Qayum Qureshi, J

MINAJUDDIN arid others‑‑‑Petitioners

Versus

Mst. BAKHT MALSHA and others‑‑‑Respondents

Civil Revision No.648 of 2002, .decided on 24th May, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 72, 75, 76, 79 & 85‑‑‑Documentary evidence‑‑‑Proof "and admissibility of document‑‑‑Document creating liability, had. to be attested by two witnesses and in order to prove such document attesting witnesses had to be called and if the document was not proved in accordance with law it had to be excluded from consideration‑‑‑When original document was not produced and permission for leading secondary evidence was not obtained, copy of said document was not admissible‑‑‑Contention that sale‑deed in question being public document, was admissible, was repelled, firstly because said document was placed on record subject to objection by other side secondly original document was not produced; and thirdly it did not contain the thumb‑impression/signature of executant.

Nimatullah Shah v. Farmanullah and another 1980 SCMR 953 and Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 ref.

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

‑‑‑‑Ss. 9, 42 & 54‑‑‑Suit for possession, declaration and perpetual injunction‑‑‑Suit was concurrently decreed by Courts below after framing issues and recording pro and contra evidence of parties‑‑‑Courts below had rightly appreciated evidence available on record and law applicable to the case‑‑‑In absence of any misreading/non‑reading of evidence or any material irregularity or any jurisdictional error or defect, concurrent findings of Courts below could not be interfered with in revisional jurisdiction of High Court.

1992 SCMR 312; 2001 CLC 1119; 1997 CLC 1691; AIR 1920 Oudh 122; AIR 1926 Oudh 511; PLD 2001 SC 142; PLD 1990 SC 1; 1998 SCMR 996; PLD 1985 Quetta 105; Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704; Ghulam Ali and 2 others v Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others 1998 SCMR 1996 ref.

Mian Iqbal Hussain for Petitioner.

Roohul Amin for Respondent.

2004 C L C 1229

[Peshawar]

Before Talaat Qayum Qureshi, J

GOVERNMENT OF N.‑W.F.P.‑‑‑Petitioner

Versus

HUSSAIN KHAN and others‑‑‑Respondents

Civil Revision No.591 of 1998, decided on 30th April, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXVI, R.9‑‑‑Appointment of Commission to make local investigation‑‑‑Report of Commission, nature and binding force of‑‑­Local Commissioner under O.XXVI, R.9, C.P.C. was to be appointed by the Court for the purpose of making a local investigation and then giving his findings on points referred to him in his report‑‑‑Report of Local Commissioner could not be termed as "findings" but only proceedings of an inquiry for information and assistance of the Court‑‑­Court alone was empowered to give its findings on each and every issue‑‑‑Report of Local Commissioner was not binding on Court and on parties‑‑‑Such report was evidence, but same must be tendered as evidence before it became evidence in a suit‑‑‑Report of Local Commissioner, statements recorded by him and other material collected by him though would form part of the record of the suit, but same could not be called as `evidence in the suit' unless same was tendered "in evidence" as per prescribed law.

Maj. Azam Khan Affandi v. D.C., Swat and 7 others 2000 SCMR 548; Mushtaq‑ur‑Rehman and 4 others v. Muhammad Akbar and 5 others 1981 CLC 364: Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31; Tincowri Debi v. Suttya Dnyal Banerji and another 6 Cal. LJ 105; Sawan Mal v. Raunaq Mal AIR 1922 Lah. 47; Firm of Seth Vishindas Nihalchand v. Nazarali Samji AIR 1924 Sind 9; Assarmal and another v. Hundomal and another AIR 1925 Sind 265, Bharat Chandra Chakrbarty v. Kiran Chandra Bai AIR 1925 Cal. 1069, Tulsi Ram v. Dina Nath and others AIR 1926 Lah. 145; Bholanath Roy v. Bata Krishna Roy and others AIR 1927 Pat. 135; Nalini Kumar Chakrbarty v. Gadadhar Chaudhry and others AIR 1929 Cal. 418; Ugra Narain Chaudhry and others v. Haribans Chaudhry and others AIR 1930 Pat. 557; Dargahan Bibi v. Jyoti Prasad Singh Dev. AIR 1934 Pat. 35; Ram Krishna Dalmia and others v. Chand AIR 1960 Punj. 430; Ram Krishna Muraji v. Rattan Chand AIR 1931 PC 613; Province of East Pakistan v. Upendra Narayana Lala 1979 DLC 817; Mokam Haldar v. Naimaddi Shaikh AIR 1935 Cal. 28; Sone Kaur and others v. Baidyanath AIR 1926 Pat. 462(2); Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518 and Mohan Lal v. Lachhman Das Mohan Lal & Sons Ltd. AIR (39) 1952 All. 563 ref.

Muhammad Saeed Khan, A.A.‑G. for Petitioner.

Ziaur Rehman For Respondents.

Date of hearing: 26th April, 2004.

2004 C L C 1244

[Peshawar]

Before Talaat Qayum Qureshi, J

AKBAR KHAN, ASSISTANT SUB‑INSPECTOR‑‑‑Petitioner

Versus

MUSAM KHAN‑‑‑Respondent

Civil Revision No. 1076 of 2003, decided on 14th May, 2004.

(a) Malicious prosecution‑‑‑

‑‑‑‑ Suit for malicious prosecution‑‑‑Elements of test for malicious prosecution were; (i) that plaintiff was prosecuted by defendant; (ii) that prosecution ended in favour of plaintiff; (iii) that defendant acted without reasonable and probable cause; (iv) that defendant was actuated by malice; (v) that proceedings had interfered with plaintiff's liberty and had also affected his reputation; and (vi) that plaintiff had suffered damage‑‑‑All said elements being present in the case, suit was rightly decreed concurrently by Courts below.

2001 CLC 468; 1993 CLC 1743; PLD 1990 SC 28; Subedar (Retd.) Fazle Rahim v. Rabnawaz 1999 SCMR 700 and Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑In absence of any misreading or non‑reading of evidence, or any material irregularity or any jurisdictional error or defect in concurrent findings of Courts of competent jurisdiction, same could not be interfered with by High Court in exercise‑of its revisional jurisdiction.

Khalid Khan for Petitioner.

Muhammad Aman Khan for Respondent.

Date of hearing: 14th May, 2004.

2004 C L C 1259

[Peshawar]

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

Haji BAHADAR HILAL‑‑‑Petitioner

Versus

Engineer MUHAMMAD AYUB‑‑‑Respondent

Civil Revision No.461 of 2004, decided on 18th May, 2004.

North West‑Frontier Province Pre‑emption Act (IV of 1987)‑‑‑

‑‑‑‑Ss. 6, 13 & 24‑‑‑Suit for pre‑emption ‑‑‑Deposit of one third of sale price‑‑‑Trial Court directed plaintiff to deposit one third of sale consideration which was Rs.36 lacs and was deposited by the plaintiff‑‑­Subsequently on application of defendants that sale transaction was that of Rs.76 lacs, Trial Court directed plaintiff to deposit one third according, to said sale transaction which order had been challenged by plaintiff‑‑‑Validity‑‑‑Fixation of one third amount under S.24 of North-­West Frontier Province Pre‑emption Act, 1987, was tentative in nature and the very purpose of section 24 was to keep a check on frivolous suits and the Court would proceed with the case only when a suitable security .was furnished by the pre‑emptor by the deposit of cash‑‑‑Actual price of suit property was yet to be determined by the Trial Court after recording of evidence and same would be payable by pre‑emptor if he succeeded to establish his superior right of pre‑emption before Trial Court‑‑‑Impugned order of Trial Court in absence of any authentic document and the fact that same had been passed at a time when defendant was yet to appear and file his written statement, was not in consonance with spirit of S.24 of North‑West Frontier Province Pre‑emption Act, 1987 and was liable to be set aside‑‑-High Court setting aside order of trial Court directed Trial Court to proceed further in the matter in accordance with law.

Ziaur Rehman and Abdul Latif Afridi for Petitioner.

Muhammad Aman Khan for Respondent.

Date of hearing: 18th May, 2004.

2004 C L C 1271

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

JAVED KHAN‑‑‑Petitioner

Versus

GHULAM YASIN‑‑‑Respondent

Civil Revision No.41 of 2003, decided on 18th March, 2004.

(a) North‑West Frontier Province Pre‑emption Act (IV of 1987)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Three demands or Talbs‑‑­Connotation of‑‑‑Three demands asserting the right of pre‑emption had their own respective connotations‑‑‑First demand, i.e. Talb‑e­-Muwathibat or what was literally meant, the jumping demand was defined in the first Explanation to subsection (1) of S.13 of North‑West Frontier Province Pre‑emption Act, 1987 which envisages firstly; the act of prospective pre‑emptor coming to know about the factum of a sale; secondly, such knowledge/information emanating from a sitting or meeting i.e. Majlis and; thirdly and rather fore-mostly declaration of his intention to exercise the right of pre‑emption immediately on gaining the knowledge of .the sale‑‑‑Person who intended to pre‑empt a sale transaction by enforcing his right of pre‑emption, would make an immediate demand in the sitting or meeting in which he had come to know of the sale declaring his intention to exercise the right of pre­ emption technically called Talb‑e‑Muwathibat'‑‑‑Pre‑emptor, thereafter would be required to make the demand ofTalb‑e‑Ishhad' by establishing evidence as soon as possible, but not later than two weeks from the date of notice or knowledge whichever would be earlier, by sending a notice in writing attested by two truthful witnesses to the, vendee under a registered post cover with acknowledgment due, confirming his intention to exercise right of pre‑emption; then would come the demand for `Talb-e‑Khusumat' by filing a suit in a competent Court for enforcing his right of pre‑emption‑‑‑Mere assertion of defendant/vendee that plaintiff/pre‑emptor had waived his' right of pre‑emption by participating in suit transaction, without a positive attempt on his part to substantiate same, would be of no consequence ‑‑‑Vendee, in a pre-emption case had to prove that the sale consideration mentioned in sale­ deed had been paid in good faith‑‑‑Duty and obligation of vendee defendant was to prove payment of sale consideration statedly made by him.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Kabool Khan v. Shamoon through L.Rs. and others 2001 YL.R 51 ref.

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

‑‑‑‑S. 42‑‑‑Mutation‑‑‑Mutation was neither a proof of title nor it could establish the passage of money from the buyer to the seller.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132, 133 & 134‑‑‑Cross‑examination‑‑‑Where on a material part of his evidence a witness was not cross‑examined it could be inferred that the truth of such statement had been accepted‑‑‑Statement of a witness which was material to the controversy of .the case; particularly when it stated his case and same was not challenged by other side directly or indirectly, then such unchallenged statement should be given full credence usually accepted as true unless displaced by reliable, cogent and clear evidence.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Qamaruddin through his Legal Heirs v. Hakim Mehmood Khan 1988 SCMR 819; Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465; Muhammad Mujibur Rehman Siddique v. Abdul Bari and 3 others PLD 1981 Kar. 537 and Karimuddin Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545 ref.

(d) North‑West Frontier Province Pre‑emption Act (IV of 1987)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for pre­emption‑‑‑Appellate Court had passed a detailed and elaborate judgment in which the entire record of the case had been scrutinized and scanned‑‑‑Well‑reasoned judgment of Appellate Court not suffering from any legal or factual infirmity, could not be interfered with in revisional jurisdiction of High Court.

Rustam Khan Kundi for Petitioner.

S. Mastan Ali Zaidi for Respondent.

Date of hearing: 18th March, 2004.

2004 C L C 1291

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Muhammad Qaim Jan Khan, J

SHAH ZEB (minor) through Gul Shahzada Saleem‑‑‑Petitioner

Versus

MUHAMMAD AYUB KHAN and 2 others‑‑‑Respondents

Writ Petitions Nos. 155 to 162 of 2004, decided on 24th March, 2004.

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

‑‑‑‑Ss.2(c)(i), 13(2)(i) & 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition ‑‑‑Ejectment of tenant on ground of default in payment of rent of premises‑‑‑Landlord by producing strong evidence on record had established that relationship of landlord and tenant existed between the parties and that tenant had failed to pay disputed rent of premises‑‑‑Tenant in his cross‑examination had admitted existence of relationship of landlord and tenant and that he had not paid rent in dispute‑‑‑Rent Controller on basis of said evidence on record held that relationship of landlord and tenant did exist between parties and that tenant had committed default in payment of rent and accepted ejectment petition filed by landlord against tenant‑‑‑Appellate Court upheld finding of Rent Controller with regard to existence of relationship of landlord and tenant between parties, but did not uphold finding of Rent Controller with regard to default in payment of rent‑‑‑Case of landlord was supported by strong documentary evidence, but Appellate Court had not applied its mind to overwhelming documentary evidence and admission of tenant and based its judgment on erroneous considerations‑‑‑High Court accepting Constitutional petition, set aside order of Appellate Court and upheld order of Rent Controller.

2003 SCMR 1476 ref.

Gul Sadbar Khan for Petitioner.

Nemo for Respondents.

2004 C L C 1312

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SARWAR KHAN‑‑‑Petitioner

Versus

HABIBULLAH‑‑Respondent

Civil Revisions Nos. 134 and 135 of 2002, decided on 17th March, 2004.

(a) North‑West Frontier Province Pre‑emption Act (IV of 1987)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Partial pre‑emption ‑‑‑Proof‑‑‑Suit would be partial if pre‑emptor would not include the whole property mentioned in sale mutation in the plaint‑‑‑Plaintiff had pre‑empted the entire land mentioned in suit mutation‑‑‑No doubt it was true that in notice `Talb‑i‑Ishhad' only one of Khatas in suit had been mentioned and other Khata did not find place therein, but that was a matter which could only be determined through evidence.

Haji Fateh Muhammad and another v. Sheikh Ghulam Sarwar and another PLD 1961 BJ 62; Muhammad Hayat and others v. Rasool Bakhsh and others 2001 MILD 1648; Mst. Bashiran and others v. Abdul Ghani and others 1995 SCMR 1833; Egypt Air v. Sarfraz Ahmad Tarar 2003 CLC 1425 and Miskeen v. Additional District Judge, Mansehra and 32 others 2003 SCMR 121 ref.

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

‑‑‑‑O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Principles‑‑‑Plaint could be rejected only if it did not disclose cause of action or same was barred by any law‑‑‑In order to invoke applicability of cl.(a) of O.VII, R.11, C.P.C. Court would look into the contents of plaint only and would examine the plaint on its face value‑‑‑If the plaint by itself indicated any infirmity enumerated in cls.(a)(b) of O.VII, R.11, C.P.C., then the Court would order the rejection of plaint as the fruitless litigation required to be buried at its inception to avoid wastage of time of the Courts and unnecessary harassment to opposite party.

Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 ref.

Rustam Khan Kundi for Petitioner.

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 17th March, 2004.

2004 C L C 1348

[Peshawar]

Before Talaat Qayum Qureshi, J

SHER BAHADUR and others---Petitioners

versus

MIR AKBAR and others---Respondents

Civil Revison`No.40 of 1997, decided on 12th May, 2004.

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

----Arts. 132 & 133---Cross examination---Non-cross-examining the witness---Effect---If a witness was not cross-examined on a fact and his statement remained unrebutted and unquestioned, such statement could be taken as correct.

Mst. Noor Jehan Begum v. Syed Mujtaba Naqvi 1991 SCMR 2300; Aminul Haq v. Abdul Wasai and others 2004 CLC 555; Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539; Haji Din Muhammad through L.Rs. v. Mst. Hajra Bibi PLD 2002 Pesh. 21 and Khanzada Inamultah v. Mst. Zakia Qutab and others PLD 1998 Pesh. 52 ref.

(b) Qanutt-e-Shahadat (10 of 1984)---

----Arts. 35 & 81---Admissibility of a document---When a document was placed on record without objection by the other side, admissibility of such document could not be challenged at the appellate or revisional stages.

Aminul Haq v. Abdul Wasai and others 2004 CLC 555; Abdu Hamid Khan v. Muhammad Zamir Khan and 2 others 1990 MLD 1617 Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 and Abdullah and others v. Abdul Karim PLD 1968 SC 140 ref.

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

----Ss. 8 & 54---Qanun-e-Shahadat (10 of 1984), Art.79---Transfer of Property Act (IV of 1882), S.54---Suit for possession and perpetual injunction---Sale-deed, proof of---Sale-deed in question was a registered document---Not necessary under Art.79 of Qanun-e-Shahadat, 1984 far the plaintiff to call its attesting witnesses in, proof of sale-deed particularly when executor 'of said deed did not specifically deny its execution.

Muhammad Nazeef and others v. Mst. Mumtaz Beg um 2002 CLC 1517; Mst. Noor Jehan Begum v. Syed Mujtaba Naqvi 1991 SCMR 2300; Aminul Haq v. Abdul Wasai and others 2004 CLC 555; Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539: Haji Din Muhammad through L.Rs. v. Mst. Hajra Bibi PLD 2002 Pesh. 21 and Khanzada Inamullah v. Mst. Zakia Qutab and others PLD 1998 Pesh. 52; Abdul Hamid Khan v. Muhammad Zamir Khan and 2 others 1990 MLD 1617; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and others v. Abdul Karim PLD 1968 SC 140 and General Manager, H.B.F.C. and others v. Ali Rehman and others 1995 CLC 531 ref.

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

----Ss. 8 & 54---Transfer of Property Act (IV of 1882), S.54---Suit for possession and perpetual injunction---Registration of sale -deed---Sale­deed in respect of suit-land produced by plaintiffs being a registered document, same would take precedence over unregistered sale-deed relied upon by the defendants---Unregistered sale-deed had shown that defendants had purchased "Sufaid Daga" (open place) through said unregistered sale-deed and not house in question---Defendants, in circumstances, had failed to prove their ownership over house in question and Courts below had failed to appreciate evidence on record and said legal position---Plaintiffs could not prove that they had inducted defendants in suit house as tenants, but they successfully proved their title over the suit house---Plaintiffs were entitled to decree for possession.

Muhammad Nazeef and others v. Mst. Mumtaz Begum 2002 CLC 1517 and Mulibai v. Vassibai and another AIR 1926 Sind 98 ref.

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

----Ss. 8 & 54---Civil Procedure Code (V of 1908), 5.115---Suit for possession and perpetual injunction---Courts below having failed to appreciate legal position involved in the case, had committed material irregularity---Concurrent judgments and decrees of Courts below, were set aside and decree was granted in favour of plaintiffs.

Javed Gohar for Petitioners.

Rehmanullah for Respondent.

Date of hearing: 12th May, 2004.

2004 C L C 1378

[Peshawar]

Before Talaat Qayum Qureshi, J

Mufti NASIR IQBAL---Petitioner

versus

AZIZUR REHMAN and others- --Respondents

Civil Revision No. 119 of 2000, decided on 4th April, 2003.

(a) North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6 & 13---Suit for pre-emption ---Making of Talbs---When plaintiff came to know the sale of suit-land in favour of defendants/ vendees, he did not make jumping demand/Talb-i-Mowasibat there and then---Jumping demand was supposed to be made on learning about sale of suit-land, but plaintiff despite having learnt the same at the spot about sale in favour of defendants, did not make Talb-e-Mowasibat---Witnesses produced by plaintiff including marginal witness of notice of Talb-i­-Ishhad, did not support issuance of said notice by plaintiff---Plaintiff did not mention in the notice of Talb-i-Ishhad as to when and where he had made earlier demand---Plaintiff not only had failed to prove Talb-e­-Mowasibat, but he also did not succeed in proving Talb-e-Ishhad--­Requirement of Talbs being sine qua non for the enforcement of right of pre-emption, its non-compliance had the effect of extinguishing the pre­emptive right of pre-emptor---Suit was rightly dismissed by Courts below.

Mst. Akbari Begum v. Nadeem Ahmad and 2 others 1993 CLC 353 ref.

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

----S. 115---North-West Frontier Province Pre-emption Act (IV of 1987), Ss.6 & 13---Suit for pre-emption ---Both Courts below not only had properly appreciated evidence available on record, but had also rightly applied the law while dismissing the suit as well as appeal of the plaintiff---In absence of any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect, concurrent findings of Courts of competent jurisdiction, could not be interfered within revisional jurisdiction of High Court.

Mian Saadullah Jandoli for Petitioner.

Nasimullah Khan for Respondents.

Date of hearing: 4th April, 2003.

2004 C L C 1401

[Peshawar]

Before Nasir-ul-Mulk and Ijaz-ul-Hassan Khan, JJ

BAHAUD DIN---Petitioner

versus

CHAIRMAN, JOINT ADMISSION COMMITTEE, KHYBER MEDICAL COLLEGE, PESHAWAR and 5 others---Respondents

Writ Petitions Nos.60, 61 and 148 of 2004, decided on 5th May, 2004

Educational institution---

---- Admissions in Medical Colleges---Candidates who belonged to Frontier Region Bannu and Kohat were initially selected by Joint Admission Committee, but recommendations for their selection, were not accepted by `States and Frontier Regions Division (SAFRON) and candidates were dropped from the final list of nominations to Medical Colleges---Candidates had claimed that they were selected by Joint Admission Committee in accordance with prospectus issued by Department of Health for the Session 2003-2004 based on the allocation of seats made for Frontier Regions m summary prepared by Secretary to Governor and duly approved by Governor---Candidates had submitted that their selection was made in the meeting of Joint Admission Committee in which representatives of Governor's Secretariat and SAFRON participated---Joint Admission Committee had submitted that selection made by it was provisional and final nomination for various FATA seats were to be made by SAFRON in accordance with prospectus---Under clause 7(o) of Item No. 19 of Schedule lI to the Rules of Business of the Federal Government, affairs of the Tribal Areas had been assigned to Ministry of Kashmir Affairs and Northern Areas and States of Frontier Region Division ---SAFRON, in circumstances was the only Authority to make nominations for reserved seats---Final Authority for nomination . of candidates being SAFRON, selection of candidates made by Joint Admission Committee, was not final and did not create any vested right in selectees---Presence of representative of SAFRON in .meeting of Joint Admission Committee which had selected candidates, would not be an estoppel against SAFRON, if selection by Joint Admission Committee was against prescribed Policy of SAFRON---Nominations made by SAFRON for admission made on seats reserved for different Frontier Regions, being in accordance with its, valid policy, same would not require intervention of High Court.

Qazi Muhammad Jamil for Petitioner.

Jihanzeb Rahim. A.-G. for Respondent.

Hamid Farooq Durrani, D.A.-G., Waseemuddin Khatak, M. Sardar Khan and Waqar Ahmad Seth for Respondents.

Date of hearing: 4th May, 2004.

2004 C L C 1409

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

REHMATULLAH KHAN---Petitioner

versus

MUGHAL SHAH---Respondent

Civil Revision No. 124 of 2003, decided on 10th May, 2004.

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

----S. 115 ---Revisional jurisdiction---Scope---High Court in its revisional jurisdiction was not competent to undertake its own appraisal of evidence in the face of concurrent findings of two Courts below, in absence of any jurisdictional error or material irregularity---Revisional powers under S.115, C.P.C. were primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction---Ordinarily erroneous decisions of facts were not revisable except in cases where the decision was based on no evidence or inadmissible evidence or order sought to be revised was so perverse that grave miscarriage of justice was likely to result therefrom---Concurrent findings of facts delivered by two Courts below could neither be made subject of scrutiny by High Court nor reappraisal of evidence in the revisional jurisdiction was permissible under law.

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

---O. VII, R. 2---Suit for recovery of amount---Execution of 'Iqrar Nama' in question had not been specifically denied by defendant in his written statement---Unsuccessful -attempt had been made to show that defendant had not thumb-impressed the 'Iqrar Nama' and it was bogus and fictitious, but nothing had been produced to substantiate such allegations ---Iqrar Nama had been satisfactorily proved by Petition Writer and marginal witnesses---Onus to prove payment of outstanding amount was heavily placed on the defendant, which he failed to discharge---Mere assertion of defendant that he had discharged his liability and nothing was outstanding against him, without a positive attempt on his part to substantiate same, was of no consequence---Courts below had rightly decided lis and decreed suit in consonance with evidence on file, which had neither been misread nor non-read and had committed no illegality or irregularity, in absence of which, no interference at all, was called for in revisional jurisdiction of High Court under the law.

PLD 1982 Pesh: 42; PLD 2004 Pesh. 1; 2004 MLD 57; 2004 CLC 643 and 2004 CLC 699 ref.

Khawaja Nawaz Khan for Petitioner.

Kaleem Arshad Khan for Respondents.

Date of hearing: 10th May,2004.

2004 C L C 1424

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD ALI (Minor) through his real mother and another---Petitioners

versus

QAISAR JEHAN BEGUM---Respondent

Civil Revision No. 109 of 2004, decided on 14th May, 2004.

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

----O. XLI, R. 27---Additional evidence---Where important evidence having a material bearing on the merits of the suit, was subsequently discovered, there were three courses open to such a party; (i) it could apply for admission of fresh evidence before judgment; (ii) it could apply for review of judgment after it had been pronounced or; (iii) it could appeal from judgment and apply for admission of additional evidence before Appellate Court under R.27 of Order XLI, C. P.C- ---Additional evidence could be allowed provided provisions of R.27 of O.XLI, C.P.C. were attracted.

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

----O. XLI, R. 27---Additional evidence---Production of at appellate stage---Power of Appellate Court---Power of Appellate Court to admit further evidence was only confined to those cases in which Court required any document to be produced or any witness to be examined. to enable it to pronounce judgment or for any other substantial cause--­Party who had the opportunity .to produce evidence in the Trial Court, but did not avail the same, should not be allowed to Improve its case by producing evidence at the appellate stage---Party who had elected not to produce evidence, could not be allowed to produce same in Appellate Court---Fresh evidence should not be allowed at a later stage if such evidence was of a nature as could be easily fabricated--In absence (if satisfactory reason fur non-production of the evidence in the Trial Court, additional evidence should not be admitted in appeal because party guilty of remissness in the lower Court was not entitled to give further evidence under OALI, R.27, C.P.C.---Provisions of O.XLI, R.27, C.P.C. were not intended to allow a litigant who had been unsuccessful in the Trial Court to seek indulgence of Appellate Court and try to fill in the lacuna in his case by producing additional evidence at appellate stage which could have been produced at the trial stage.

Sheikh Qamar Javed and others v. Sheikh Hassan Ali 2001 SCMR 1766; Pordil Khan v. Sufaid Gul and others PLD 1965 (W.P.) Pesk 259 and Allah Ditta v. Ghulam Rasool PLD 1975 Lab. 138 ref.

Javed Younis Qureshi for Petitioners. .

2004 C L C 1500

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

MUHAMMAD AYUB KHAN TANOLI---Petitioner

Versus

SECRETARY OF INDUSTRIES, GOVERNMENT OF N.-W.E.P., PESHAWAR and 3 others---Respondents

W.P. No.98 of 2003, decided on 31st May, 2004.

(a) Estoppel---

----Promissory estoppel, doctrine of---Applicability---Limitations--­Where one party had made to the other party, a clear and unequivocal promise intending to create a legal relationship or to effect a legal relationship to arise in future that promise would be binding on the party making the same---Doctrine of promissory estoppel was subject to limitations; firstly, that the same could not be invoked against Legislature or, the laws framed by it because the Legislature could not make a representation; secondly, it could not be invoked for directing the doing of a thing which was against law when representation was made or the promise held out; thirdly, no agency or Authority could be held bound by a promise or representation not lawfully extended or given; fourthly, Doctrine of promissory estoppel would not apply where no steps had been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and lastly. The party which had indulged in fraud or collusion for obtaining some benefits under the representation, could not be rewarded by the enforcement of the promise.

1998 MLD 374 and PLD 1991 SC 546 ref.

(b) Locus poenitentiae, rule of--

---- If an Authority could make an order that Authority could also amend, vary or rescind the same, but on the basis of the Rule of Locus Poenitentiae that such power could not be exercised once a decisive step was taken, by virtue of which, valuable rights had accrued to the opposite party---Such an order if was obtained by fraud or was result of a mistake or misrepresentation, that order would be outside the scope of Rule of Locus Poenitentiae---Void order creating no right, title or interest, need not to be challenged, recalled or set aside.

1988 MLD 374; 1998 MLD 17; 1991 SCMR 2293; 1998 MLD 1128; 2003 SCMR 1128; AIR 1938 Nag. 513; PLD 1956 FC 46; PLD 1959 PC 108; PLD 1964 SC 97; PLD 1970 SC 439; PLD 1975 Kar. 495; PLD 1975 Lah. 859 and PLD 1976 SC 208 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Requisite---In order to seek discretionary relief under Art. 199 of Constitution of Pakistan, 1973, petitioner had to come to the Court with clean hands.

Abdur Rehman Qadir for Petitioner.

Qari Abdul Rashid, D.A.-G. for Respondents Nos.s1 to 3.

Q.M. Shahryar for Respondent No.4.

Date of hearing: 13th April, 2004.

2004 C L C 1511

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Doctor RAZA MUHAMMAD KHAN---Petitioner

versus

PRINCIPAL, AYUB MEDICAL COLLEGE, ABBOTTABAD and 3 others- --Respondents

A.W.P. No.270 of 1998, decided on 4th May, 2004.

(a) Natural justice, principles of-

-Elementary rule of universal application and founded upon principles ' of justice was that a judicial order which possible would affect or prejudice any party, could not be made unless such party had been afforded an opportunity to be heard---Such rule is based on maxim `audi alteram partein'.

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

----O. XXIII, R. 1---Withdrawal of suit---Trial Court without giving notice to opposite parties, merely on recording the statement of plaintiff, allowed plaintiff to withdraw suit with permission to file fresh suit on the basis of same cause of action on payment of costs---Trial Court had failed to give any reason for allowing withdrawal of suit---Trial Court, in circumstance had passed order of withdrawal of suit, in violation of provisions of O.XXIII, R.1, C.P.C. and said order was not sustainable--­Such order of Trial Court was struck down with the result- that suit would be pending before Trial Court to be proceeded according to law.

Town Committee Dipalpur v. Ahmad Din and 3 others PLD 1972 Lah. 290; Muhammad Yousaf and another v. Additional District Judge, Attock and others 1992 MLD 856; Dilbar Khan v. Said Akbar 1996 CLC 1178; Ch. Muhammad Ali and 3 others v. Sardar Muhammad Kazim Ziauddin Durrani and 2 others 1999 CLC 1437; Sonokhan Yar Muhammad and another v. Mst. Bachi and others AIR (31) 1944 Sindh 192; Abdul Malik v. Muhammad Urfan and another 1989 CLC 2363; Mrs. Rafiqa Iqbal Ahmad and another v. Muhammad Ali Hyder 1984 CLC 2886 and Ajant Singh v. F.T. Christian 17 C.W.N. 862 ref.

Abdullah Jan Mirza for Petitioner.

Adam Khan Jadoon for Respondent No. 1.

Qari Abdur Rashid D.A.-G. I-or' Respondent No.2. .

Barrister Mian Gul Hassan Aurangzeb for Respondent No.3

Date of hearing: 4th May, 2004.

2004 C L C 1529

[Peshawar]

Before Dost Muhammad Khan, J

ZARIF KHAN and others---Petitioners

versus

NADIR KHAN and others---Respondents

Civil Revision No.91 of 1996, decided on 3rd March, 2004.

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

----S. 115---Specific Relief Act (I of 1877), S.8---Suit for title and possession of immovable property---Plea raised in revision before High Court for the first time---Admissibility ---Plea which was neither raised by defendant in his written statement nor in his evidence nor in memo of appeal before Appellate Court could not be allowed to be raised' at revisional stage before High Court in view of legal bar that a party to a lis was bound by its pleadings and could not make a departure therefrom.

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

----S. 115---Revisional jurisdiction, exercise of---Courts below had taken into consideration the entire evidence, both oral and documentary recorded and brought by parties on the file---Courts had fairly attended to same and had made its appraisal in accordance with law and had drawn fair conclusion therefrom---Said conclusion was not susceptible to revisional jurisdiction of High Court in absence of any illegality or irregularity causing miscarriage of justice---High Court, in its limited revisional jurisdiction, would not interfere into concurrent findings recorded by two Courts below.

Haji Ghulam Basit for Petitioners.

Tahir Hussain Lughmani for Respondents Nos. l to 5.

Malik Mehmood Akhtar for Respondents Nos.6 to 8.

Masud-ur-Rehman Awan for Respondents Nos. 18 to 27

Date of hearing: 3rd March, 2004.

2004 C L C 1633

[Peshawar]

Before Dost Muhammad Khan, J

ABDUL RASHEED-- -Petitioner

Versus

LATEEF-UR-REHMAN and another---Respondents

Constitutional Petition No.36 of 2004, converted into C.R. No.681 of 2004, decided on 25th June, 2004.

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

----Arts. 189 & 190---Decisions of Supreme Court binding on other Courts---Obligation of subordinate Courts---Foremost obligation of subordinate Courts was to show greatest respect to the judgments of the Supreme Court---Subordinate Courts, under the Constitutional command, were bound to comply with the same and to give true and full effect to the judgments of Supreme Court---Plain language of Arts. 189 and 190 of the Constitution, did not require any debate nor it was susceptible to any different interpretation---Non-compliance or violence, of decision of Supreme Court would expose Judicial Officer of the subordinate Court to grave consequences---Subordinate Courts were duty bound to faithfully comply with such decisions---Subordinate Courts were neither permitted to make pick and choose, in the matter nor could they make a departure from same on any ground much less a technical one-- -Fundamental obligation of the Courts was to kill frivolous lis in its very inception--­Efforts made day and night by the Superior Courts would receive grave set back if the subordinate Courts would act the other way or failed in their duty to check and counter frivolous/malicious litigation---General public would also lose confidence in the system if matters already closed and becoming final were allowed to be re-opened through dirty tactics and tricks based on technicalities.

Sultan Ahmed Sharif v. Mathura Mohan Chowdhury and others PLD 1958 Dacca 36; Pusapati Ramabhadra Raju v. Avitha Ramanna and others AIR 1952 Mad. 125; ILR 14-L 230; Muhammad Ashraf and others v. Federation of Pakistan and 3 others 1999 SCMR 336 and Imtiaz Ahmad v: Ghulam Ali PLD 1963 SC 382 ref.

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

---S. 11 & O.XXI, Rr. 10 & 24---Constructive res judicata, doctrine of---Applicability---Doctrine of constructive res judicata was squarely applicable in the case where respondents had made a crude attempt to re-open "case/matter" which was finally and conclusively decided---Such action amounted to wanton act of infusion a life into a dead body--­Objection petition filed by respondents without any fear of rebuttal could be termed on its face to be frivolous and malicious one---No one would be allowed to retain ill-gotten gains albeit facts and some principle of law might go in its favour---Doctrine of res judicata was deeply entrenched in the system and provided relief and respite to the opposite party from being vexed twice on the same issue---Objection petition, in the present case, was dismissed by Executing Court after giving opportunity of hearing in a fair manner to the counsel for parties who had also fairly alluded to the legal and factual aspects of the case---Order of Executing Court was not liable to interference in circumstances.

Qazi Jawad Ehsanullah for Petitioner.

Abdul Sattar Khan for Respondent No. 1.

Shakeel Ahmad for Respondent No.2.

2004 C L C 1647

[Peshawar]

Before Nasir-ul-Mulk and Ijaz-ul-Hassan Khan, JJ

Messrs AL-NOOR CONSTRUCTION CO. CONTRACTORS---Petitioner

Versus

CANTONMENT BOARD, PESHAWAR through Cantonment Executive Officer and 2 others---Respondents

Writ Petitions Nos.260, 261 and 338 of 2004, decided on 5th May, 2004.

(a) Cantonments Act (II of 1924)--

----Ss. 2(ii) & 10---Constitution of Pakistan (1973), Art.199-­Constitutional petition---Blacklisting of construction company--­Construction company of approved contractors of Cantonment Board, remained in business with the Board, and had been executing works over the years successfully and completed them---Various departments of the Armed Forces of Pakistan also contracted with the company and the works done by said company had been highly commended by all concerned---Company was also enlisted as Government Contractor in category "A" with C & W Department as contractor for civil works and other departments---Company by letters, from the Cantonment Board, was informed to have been blacklisted with direction to immediately stop works being carried out without further loss of time alleging that the company was found involved in tempting Cantonment Board Staff to follow illegal methods of contracting, with a view to get personal benefits---No justification was shown by the Board to resort to such conduct against the company in arbitrary and capricious manner---Action against Company had been taken by the Board without lawful authority as no show-cause notice had been given to the Company to explain its position before taking such drastic action---High Court accepting Constitutional petition, declared order of blacklisting of petitioner­ company to be without lawful authority, without jurisdiction and of no legal effect and said order was struck down.

Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Preetam Pipes Syndicate AIR 1986 Mad. 310 and University of Dacca v. Zakir Ahmad PLD 1965 SC 90 ref.

(b) Administration of justice---

---Legal representation---Entitlement---Every person was entitled to a legal representation, if he so chose, unless it was expressly forbidden to him' by a valid law---Such right of representation was not only confined to meeting the case of the other side, 'but to represent his own case--­Person proceeded against must have a prior adequate notice of the case, charge or allegations that he had to meet and he must have a reasonable opportunity to answer the case against him and put his own case--­Decision must be made only on the allegations and the material of which notice had been given and he must have an unbiased and a fair hearing--­When an act or order inflicted civil consequences on a person in respect of his reputation or property which was harmful to interest of that person, he was entitled to be heard before such action was taken or order passed---Principles of natural justice must be followed not merely as formality, but as a well meaning and effective requirement of law.

(c) Natural justice, principles of---

----Principles of natural justice must be followed not merely as a formality but as a well-meaning and effective requirement of law.

Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 ref.

M. Sardar Khan for Petitioner.

Ihsanullah Khan for Respondents.

Date of hearing: 5th May, 2004.

2004 C L C 1661

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

UMAR KHAN and another---Petitioners

Versus

AJAB KHAN---Respondent

C.R. No. 142 of 2002, decided in 3rd June, 2004.

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

----Ss. 42 &, 54---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and permanent injunction---Suit was concurrently decreed by Courts below---Both the Courts had rightly clinched the factual controvercies, had dealt with the matter in threadbare manner and came to the conclusion that plaintiff was owner in possession of suit shops qua the defendant who was devoid of that status---Contentions raised by defendant had fully been taken care of and dealt with by the Courts very aptly which were not open to exception---Findings of fact recorded by the Trial Court and affirmed by the Appellate Court were based on correct and careful appraisal of evidence and the grounds urged stood conclusively determined by judgments of two Courts---Both the judgments of the Courts were well-reasoned and had been passed after perusal of evidence on record---Courts after having discussed the total evidence on record, and undertaking in depth study of the oral and documentary evidence on record had found plaintiff as owner in possession of suit shops---Judgments and decrees of both Courts below being based on proper appreciation of evidence were not amenable to interference by High Court in its, revisional jurisdiction.

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

----S. 115---Revisional jurisdiction---Scope---Interference in revision with decisions regarding matters which were within the discretion of subordinate Court was not warranted unless 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, but not in revision---Revisional jurisdiction was directed against the irregular exercise, non-exercise or illegal assumption of jurisdiction and not against the conclusion of law or fact not involving question of jurisdiction, however, erroneous they could be---Findings recorded by the Courts of competent jurisdiction could not be interfered with by High Court, in exercise of its revisional jurisdiction under S.115, C.P.C., unless such findings suffered from jurisdictional defect, illegality or material, irregularity---Process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under S.115, C.P.C., was neither permissible nor warranted by law---Wrong or erroneous conclusion on a question of fact by Courts below was not open to interference by High Court in exercise of its jurisdiction under S.115, C.P.C.

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

Rustam Khan Kundi for Petitioners.

Salahuddin Khan Gandapur for Respondents.

Date of hearing: 3rd June, 2002.

2004 C L C 1671

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

UMAR KHAN through Legal Heirs---Petitioners

Versus

ALI AKBAR through Legal Heirs and others---Respondents

Civil Revision No.22 of 2001, decided on 17th June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Suit for pre-emption ---Three demands/Talbs---Meaning--­Three demands/Talbs; Talb-e-Muwathibat; Talb-e-Ishhad and; Talb-e­-Khusumat, asserting the right of pre-emption, had their own respective connotation ---Talb-e-Muwathibat literally meant, the jumping demand, envisaged, firstly, the act of prospective pre-emptor coming to know of factum of a sale; secondly, such knowledge/information emanating from a sitting or meeting i.e. Majlis and thirdly, and rather fore mostly declaration of his intention to exercise the right of pre-emption immediately on gaining the knowledge of the sale---Person who intended to pre-empt a sale transaction by enforcing his right of pre-emption, would make an immediate demand in the sitting or meeting in which he had come to know of the sale declaring his intention to exercise the right of pre-emption technically called "Talb-e-Muwathibat"---Pre-emptor thereafter would be required to make demand of "Talb-e-Ishhad" by establishing evidence as soon as possible, but not later than two weeks from the date of notice under S. 32 of North-West Frontier Province Pre-emption Act, 1987 or knowledge, whichever could be earlier by sending a notice in writing, attested by two truthful witnesses to the vendee under a registered non, covet with acknowledgment due confirming his intention to exercise the right of pre-emption. then would come tile demand for "Talb-e-Khusuma;" by filing a suit in a competent Court for enforcing his right of pre-emption ---Pre-emption right could not be exercised unless and until the pre-emptor had performed the ceremony of Talb-e-Muwathibat immediately after hearing the sale--­Delay in performing the ceremony would be fatal to right of pre­emption ---When Talb-e-Muwathibat was not made instantly on coming to know of the sale, the right of pre-emptor was lost---Short delay would not be excused.

Abdul Qayyum v. Muhammad Amin 2001 SCMR 1651; Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179; Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh. 21; Altaf Hussain v. Abdul Hamid and Abdul Majid through Legal Heirs 2000 SCMR 314 and Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)-----

----Ss. 6 & 13---Suit for pre-emption ---Pre-emption right ---Pre-emption right being a feeble right, pre-emptor seeking to exercise such right was 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 and others v. Abdul Qayyum and others 1997 MLD 2945 and Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315 ref.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

--Ss. 6 & 13---Civil Procedure Code (V of 1908), S. 115---Suit for pre­emption--- Making of Talbs--- Revision--- Scope-- Though appraisal of evidence was not normal course in exercise of revisional jurisdiction, but in the case of gross misreading of evidence, High Court could reappraise the evidence oil file---In order to prove the requirements of requisite Talbs the evidence must be reliable, true, trustworthy and beyond material contradiction as to tile factum of knowledge of sale---Evidence produced by pre-emptor, in the present erase was highly discrepant and full of infirmities and contradictions which had been ignored and excluded out of consideration for valid and cogent reasons---Concurrent finding of fact recorded by forums below, was not susceptible to tile revisional jurisdiction of High Court and hardly ,would call for interference.

Nasrullah Khan Gandapur for Petitioners.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 16th April, 2004.

2004 C L C 1682

[Peshawar]

Before Talaat Qayum Qureshi and Qazi Ehsanullah Qureshi, JJ

GOVERNMENT OF N.-W.F.P. through Collector, Mardan and others---Appellants

Versus

SAIDUR REHMAN and another---Respondents

R.F.A. No.47 of 2001, decided on 4th May, 2004.

(a) Fatal Accident Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for damages---Determination of amount of compensation---Defendants who were police officials opened fire indiscriminately on a motor car for stopping the same which had not cared for the signal of the police officials---Deceased at relevant time was sitting in Bus and he was not aware of indiscriminate firing made by police officials and could not adopt any precautionary measures and was hit with negligent firing of police officials and died later on---Police officials being negligent,

2004 C L C 1692

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MASOOD ANWAR ---Petitioner

Versus

KARIM BAKHSH---Respondent

C.R. No.82 of 2003, decided on 10th June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)-----

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.115---Suit for pre­emption ---Making of Talbs---Revision---Scope---Both Courts below had, concurrently held that Talbs were made by pre-emptor in accordance with S. 13 of North-West Frontier Province Pre-emption Act, 1987 within statutory period of limitation from the date of knowledge and no delay was made in bringing the pre-emption suit---Both Courts had given a concurrent verdict/finding of fact, which could not be disturbed by High Court in its revisional jurisdiction, unless Courts below while recording finding of facts were shown to have wither misread the evidence or ignored any material piece of evidence on record or same was perverse--Judgments and decrees of both Courts below being based on proper appreciation of evidence and not suffering from gross misreading and non-reading of evidence, were not amenable to interference by High Court in its revisional jurisdiction.

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

----S. 115---Revisional jurisdiction---Scope---Process of examination of evidence for upsetting a concurrent findings of fact in exercise of powers under S. 115, C.P.C., was neither permissible nor warranted by law--­interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under S. 115, C.P.C. could only be justified if such finding was found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding was the result of perverse appreciation of evidence on record--­High Court, while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction, had to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence had to be discovered in the reasoning of the Courts below to justify interference in exercise of its revisional jurisdiction.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 6---Suit for pre-emption ---Argument that pre-emptor was poor and litigation was financed by somebody else, would not by itself mean that he was acting in the interest of another.

Muhammad Amin v. Maqbool 1993 SCMR 498 ref.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Pre-emption suit---Waiver---Waiver was an intentional relinquishment of a known right of positive act, conduct or omission indicating an inference of abandonment/relinquishment/acquiescence--­To deprive a person of any legal right that he possessed, there must be clear and cogent evidence on the record justifying that course---Mere oral statement of a few witnesses deposing to certain circumstances from which it could be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforcement of his right.

Mustaqeem v. Sher Bahadur PLD 1962 (W.P.) Pesh. 14 ref.

Saleemullah Khan Ranazai for Petitioner.

Malik Muhammad Bashir for Respondent.

Date of hearing; 10th June, 2004.

2004 C L C 1700

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Mst. BUSHRA NAZNEEN --- Petitioner

Versus

ALLAH DITTA and 2 others---Respondents

W. P. No. 107 of 2003, decided on 26th May, 2004.

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

----S. 5 & Sched---Constitution of Pakistan (1973),Art.199---Constitutional petition---Suit for maintenance---Suit of plaintiff for past maintenance was concurrently dismissed by two Courts below---Wife was entitled to claim maintenance for herself if she was forced to live apart from the husband on account of the acts of cruelty attributed to husband---Maintenance was neither in the nature of gift nor benefit, but an undeniable legal obligation of the husband to maintain his wife when she was not staying away from him without just cause---If a wife refused without any lawful justification to live with her husband, she was not entitled to any maintenance---Plausible reasons had been given by Courts below in support of the conclusions and no case of misreading or non­ reading of evidence had been made out---Evaluation of evidence usually was not made out in Constitutional petition, but such exercise was essentially undertaken by Trial Court---Object of taking away right of appeal under family matters was meaningful---If Constitutional jurisdiction would take place of appeal, then the intent and purpose of Legislature would be frustrated---Plaintiff wife had not been able to successfully demonstrate the existence of circumstances justifying interference of High Court in its Constitutional jurisdiction--­Constitutional petition by plaintiff having been found destitute of force, 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.

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

----Ss. 5 & Sched & 11---Constitution of Pakistan (1973), Art. 199--- Constitutional jurisdiction--- Scope--- Appreciation of evidence ---Jurisdiction of Family Court---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 of High Court where it was not shown to be based on misreading or non-reading of material evidence and reasons had been given in support of the conclusion arrived at--­Courts below when had the jurisdiction and lawful authority to decide the matter on merits, it was not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice was established by the party in Constitutional petition---High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within exclusive jurisdiction of Judge Family Court to believe or disbelieve the evidence---Family Court had given reasons in support of conclusion---Constitutional petition would not lie when evidence in case had been properly appreciated.

Noor Gul Khan Marwat for Petitioner.

2004 C L C 1773

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AFSAR ALI KHAN---Petitioner

Versus

SHERIN GUL and another---Respondents

Civil Revision No. 116 of 2001, decided on 16th June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)-----­

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S. 115---Suit for pre-emption ---Making of Talbs---Both Trial Court and Appellate Court dismissed the suit---Plaintiff had challenged 'concurrent judgments of Courts below in revision before High Court contending that impugned judgments and decrees were against law and facts and that findings of two Courts below on question of Talbs' were not based on proper appreciation of evidence---Validity---In view of glaring contradictions and inconsistencies appearing in the statements of the witnesses produced by plaintiff, the Courts below had valid reasons to discard their depositions and come to the conclusion that the requirement ofTalbs' as envisaged under S. 13 of North-West Frontier Province Pre-emption Act, 1987 had not been satisfactorily proved---Findings .of both the Courts below were in consonance with evidence on record and no material piece of evidence seemed to have been ignored or excluded out of consideration---Overall assessment of the evidence made by the Trial Court and affirmed by Appellate Court below and concurrent findings of Courts below did not call for interference by High Court as neither a grave miscarriage of justice had occurred nor Courts below had exercised jurisdiction illegally or with material irregularity---Both the Courts had elaborately discussed every aspect of the case and had dealt with the same in detail and in careful manner leaving no room for further discussion---Revision petition against concurrent judgments of Courts below, was dismissed, in circumstances.

PLD 2003 Pesh. 179 and PLD 1994 SC 356 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)-----

----Ss. 6 & 13---Suit for pre-emption ---Right of pre7emption---Pre­emption right being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfill its requirements meticulously and any failure in that behalf would deprive the pre-emptor of success in getting a pre-emption decree.

Bakht Zamin v. Amin Khan 2004 YLR 202 ref.

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

----S. 115---Revisional jurisdiction---Scope---Jurisdiction of High Court to interfere with the concurrent finding of fact in revisional jurisdiction under S. 115, C.P.C. was very limited---High Court in exercise of its jurisdiction under S. 115, C.P.C. could only interfere with the orders of subordinate Courts on the grounds that the Court below assumed jurisdiction which did not vest in it or had failed to exercise jurisdiction vested in it by law or that the Court below had acted with material irregularity affecting its decision in the case.

PLD 1994 SC 1836; PLD 1970 SC 288; PLD 1986 SC 89; 1984 SCMR 504; 1987 SCMR 1005; 2001 SCMR 1651; 2003 MLD 625 and 2000 CLC 1853 ref.

Rustam Khan Kundi for Petitioner.

Faridullah Khan Kundi for Respondents.

Date of hearing: 12th March, 2004.

2004 C L C 1811

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

UMER ZAD SHAH and 2 others---Petitioners

Versus

KARIM DAD KHAN---Respondent

Civil Revision No.32 of 2001, decided on 16th June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption ---Making of Talbs---Proof---Suit was concurrently decreed by two Courts below holding that plaintiff had superior right of pre-emption, he had made Talbs as required by S. 13 of North-West Frontier Province Pre-emption Act and that suit was filed within time--­Defendants had claimed that plaintiff had not complied with mandatory provisions of S. 13 of North-West Frontier Province Pre-emption Act, 1987 as he had failed to perform Talbs in the prescribed manner and within period of limitation---Validity---Reasoning recorded by the Courts below were in consonance with the evidence on record---Both the Courts below had rightly clinched the factual controversy, had dealt with the matter in a thread bare manner and came to the concurrent conclusions that Talbs had been made by plaintiff according to law within the meaning of S. 13 of North-West Frontier Province Pre-emption Act, 1987---Defendants had failed to point out any illegality by way of misreading and non-reading of evidence by the Courts below warranting interference by High Court in its revisional Jurisdiction---Both Courts below had elaborately discussed every aspect of case and had dealt with same in detail leaving no room for further consideration---Witnesses produced by plaintiff had demonstrated complete unanimity on all important features of the case and discrepancies pointed out in their statements were minor in nature and insignificant and same could not be considered sufficient to dislodge his claim---Concurrent judgments of Courts below did not suffer any illegality ,or material irregularity and no case of non-reading or misreading of evidence on record was established---Revision petition against concurrent judgments of Courts below, was dismissed, in circumstances.

PLD 1995 SC 401; Abdul Malik v. Muhammad Latif 1999 SCMR 717 and 2002 CLC 379 ref.

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

----S. 115---Revisional jurisdiction---Scope---Findings on question of law or fact recorded by competent Court of law/jurisdiction, could not be interfered in revisional jurisdiction of High Court, unless those findings suffered from jurisdictional defect, illegality or material irregularity.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 ref.

Khawaja Nawaz Khan for Petitioners.

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 16th June, 2004.

2004 C L C 1825

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ANWAR KHAN---Petitioner

Versus

Mst. ZAINAB BIBI and another---Respondents

Civil Revision No. 125 of 2003, decided on 17th June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)-----

----Ss. 6 & 13---Transfer of Property Act (IV of 1882), S.54---Civil Procedure Code (V of 1908), S.115---Suit for pre-emption ---Whether transaction was sale or Hiba---Plaintiff had claimed that suit property was sold by vendor in favour of defendant on consideration, but transaction was given a false colour of `Hiba' to frustrate the pre­emptive right of plaintiff---Defendant resisted suit contending that suit transaction was Hiba in nature which could not be pre-empted ---Both Courts below dismissed suit holding that suit transaction was Hiba which was immune from pre-emption ---Pre-emptor, in order to succeed in a suit, was obliged under the law to satisfy the judicial conscience of the Court through cogent and convincing evidence that transaction shown to be a gift was in fact a sale and device was adopted to thwart his pre­emption claim---Evidence produced by plaintiff, nowhere showed that it had been established that any consideration changed hands between defendants---All the witnesses produced by plaintiff had given evidence in the nature of hearsay and no one had witnessed any consideration changing hands---Was necessary that some price in cash must be paid for the thing sold---According to S. 54 of Transfer of Property Act; 1882, it was to be proved on record that price/consideration had been paid to the owner of property ---Price/consideration having not been proved in the case, sale was not completed in terms of S. 54 of Transfer of Property Act, 1882---Plaintiff, in circumstances had failed to prove that transaction was sale---Talbs had also not been made by plaintiff within the meaning of S.13 of North-West Frontier Province Pre-emption Act, 1987---Suit was rightly dismissed concurrently by Courts below.

M. Malik v. Mst. Razia PLD 1988 Lah. 45 and Muhammad Ali's case 1984 SCMR 94 ref.

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

----S. 115---Revisional jurisdiction---Scope---Both Courts below had given concurrent finding of fact against petitioner---Conclusion of both the Courts below were in accordance with the evidence on record and petitioner had not been able to point out any misreading and non-reading of evidence resulting in manifest injustice---Both the Courts had given concurrent findings of fact against petitioner after proper appraisal of evidence which hardly called for interference by High Court in its revisional jurisdiction---High Court had very limited jurisdiction to reverse the findings arrived at by both the Courts after proper appraisal of evidence until and unless judgments of both the Courts were the result of misreading and non-reading of evidence on record.

Gohar Zaman Khan Kundi for Petitioner.

Rustam Khan Kundi for Respondents.

Date of hearing: 4th June, 2004.

2004 C L C 1843

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

DARYA KHAN and another---Petitioner

Versus

SALEH KHAN and 3 others---Respondents

Civil Revision Petition No. 112 of 2001, decided on 2nd June, 2004.

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

---S. 115, O. VII, R. 2, O.XXXVII & O.XLI R.31---Suit for recovery of amount---Suit having concurrently been decreed by Courts below, defendants had filed revision against concurrent judgments of the Courts­--Findings of both Courts were in consonance with evidence on record and no material piece of evidence seemed to have been ignored or excluded out of consideration---Overall assessment of evidence made by the Trial Court and affirmed by Appellate Court and findings arrived at by Courts below did not call for interference by High Court---Grave miscarriage of justice had not occurred or Courts below had not exercised jurisdiction illegally or with material irregularity---Both Courts below had elaborately discussed every aspect of the case and had dealt with the same in detail, leaving no room for further discussion---Mere assertions that impugned judgments and decrees were against law and facts, without a positive attempt on that point to substantiate same, was of no consequence.

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

----S. 115---Revisional jurisdiction---Scope---Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction under S. 115, C.P.C., was very limited---High Court in exercise of its jurisdiction under S. 115, C. P. C. could only interfere with the orders, of the subordinate Courts on the grounds that the Court below assumed jurisdiction which did not vest in it or had failed to exercise jurisdiction vested in it by law or that the Court below had acted with material irregularity affecting its jurisdiction.

PLD 1994 SC 2911; 2000 SCMR 346; PLD 1994 SC 1836; PLD 1970 SC 288; PLD 1986 SC 89; 1984 SCMR 504 and 1987 SCMR 1005 ref.

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

----S. 115, O. VII, R. 2, O.XXXVII & O.XLI, R.31---Suit for recovery of amount---Judgment of Appellate Court below---Contents of--­Concurrent judgments and decrees of Courts below had been objected to on the ground that said judgments and decrees were recorded in a mechanical manner without application of mind in total disregard to requirement of O.XLI, R.31, C.P.C. which had resulted in manifest injustice---Objection was without force as issue involved in the case had been dealt with and decided .by Courts in a careful manner---Appellate Court below had given its findings on all points of controversy and no prejudice seemed to have been caused to the defendants---So far as question of giving issue-wise findings by Appellate Court was concerned, same was not the requirement of law as under O.XLI, R.31, C.P.C. Appellate Court was to state the points for determination, give its decision thereon and reasons for said decision be also mentioned---If Appellate Court chalked out a point of controversy and gave its findings thereon which were duly supported by reasoning, then Appellate Court would be said to have given its judgment in accordance with provisions of O.XLI, R.31, C.P.C.

Umar Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad Mugsi and another 2000 CLC 709 ref.

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

----O. XLI, R.31---Judgment of Appellate Court---Issue-wise finding not required to be given by the Appellate Court---Principles.

Shah Nawaz Khan Sikandary for Appellant.

Gauhar Zaman Kundi for Respondents.

Date of hearing: 2nd June, 2004.

2004 C L C 1865

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

KHIZAR HAYAT and 2 others---Petitioners

Versus

MUHAMMAD ALI ---Respondent

Civil Revision No. 104 of 2002, decided on 1st June, 2004.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption ---Making of Talbs---Delay in such making ---Effect---Pre-emption right could not be exercised unless and until pre-emptor had performed the ceremony of Talb-e-Muwathibat immediately on hearing about the sale---Delay in performing the ceremony was fatal to right of pre-emptor --- When Talb-e-Muwathibat was not made instantly on coming to know of the sale, the right of pre­emption was lost, even a short delay would not be excused.

Muhammad Nawaz through his Legal Heirs v. Allah Bakhsh and another 1993 MLD 783; Haji Ghulam Farid and 9 others v. Haq Nawaz and 93 others 2004 MLD 726 and Muhammad Ramzan v. Lai Khan 1995 SCMR 1510 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Waiver---Meaning and effect--­Waiver was an intentional relinquishment of a known right by positive act, conduct or omission indicating an inference of abandonment/ relinquishment/acquiescence which was essentially an appraisal of oral evidence and its credibility---To deprive a person of any legal right that he possessed, there must be clear and cogent evidence on the record justifying that course and mere oral statement of a few witnesses deposing to certain circumstances from which it could be possible to infer that the prospective pre-emptor had knowledge of the sale would not be enough to prove that he had positively relinquished the enforcement of his right---Right of pre-emption was lost by its waiver by pre-emptor.

Abaid-ur-Rehman and others v. Mehmood and others 1999 SCMR 201, Nazar Hussain Shah and 2 others v. Mst. Khurshid Bibi and others 2002 SCMR 49 and Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Mustaqeem v. Sher Bahadur PLD 1962 (W.P.) Pesh. 14 ref.

(c) North-West Frontier Province Pre-emption Act (X of 1987)-----

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S. 115---Suit for pre­emption ---Right of pre-emption---Making of Talbs --Waiver and estoppel--No evidence of waiver or estoppel was available in the case creating hurdle in the way of pre-emptor to exercise his right of pre­emption in respect of suit-land---In order to consider estoppel or waiver, cogent evidence of active participation of pre-emptor in the sale negotiation as well as his knowledge with regard to the price settled, his refusal to purchase land on that price and his express relinquishment of right of pre-emptor amounting to assurance to the vendee that he would not file pre-emption suit, was required to debar pre-emptor to claim right of pre-emption---Plaintiff/pre-emptor admittedly possessed preferential right of pre-emption and he had been able to prove requirements of Talbs as contemplated under S. 13 of North-West Frontier Province Pre­emption Act, 1987 by producing cogent and reliable evidence---Claim of plaintiff as set up in plaint stood established by material on record--­Finding of Appellate Court with regard to fulfilling of obligations of Talbs by plaintiff being result of correct appreciation of evidence, would call for no interference of High Court in its revisional jurisdiction.

(d) Waiver--

---- Meaning and effect.

Sanaullah Khan Shamim Gandapur for Petitioners.

Gohar Zaman Khan Kundi for Respondent

Date of hearing: 1st June, 2004.

2004 C L C 1282

[Quetta]

Before Amanullah Khan, J

HIDAYATULLAH BANDAGI‑‑‑Appellant

Versus

MUHAMMAD SAEED‑‑‑Respondent

First Appeal from Order No.50 of 2002, decided on 21st January, 2004.

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

‑‑‑‑S. 13 (3) (a) (ii)‑‑‑Bona fide personal need of landlord‑‑­Determination‑‑‑To determine bona fide requirement of a person for whom premises was required, conduct of person requiring it and circumstances under which it was required; had to be taken into consideration‑‑‑To prove his bona fides, landlord had to fulfil all the pre­requisite conditions specified irk S.13(3)(a)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Since ejectment of tenant was regulated by Statute which provided specific grounds for ejectment of a tenant,, landlord, to get an ejectment order had to fulfil all requirements and in case any condition was not fulfilled, ejectment application would not succeed.

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

‑‑‑‑S. 13(3)(a)(ii)‑‑‑Bona fide personal requirement of landlord‑‑­Landlord rented out a building adjacent to shop in question to a Bank and thereafter filed present ejectment application against tenant on ground of personal requirement of his son in respect of shop in question‑‑‑Son for whom premises/shop was required also used to assist landlord in premises which was got vacated by landlord‑‑‑Plea of landlord that he was abducted and he borrowed money to pay ransom for his release and that to pay his debts, building was rented out to the Bank, could not be considered as a valid ground for renting out said premises‑‑‑Said shop was rented out to Bank during same period when ejectment application was filed by landlord against tenant on ground of requirement for his son‑‑‑Such conduct would negate cl.(a) of S.13(3)(a) (ii) of the Ordinance which envisaged that landlord had not vacated such a building rented out without sufficient cause‑‑‑Landlord could not override provisions of Statute, rather the act of landlord by renting out premises to the Bank, had negated said provisions of Ordinance.

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

‑‑‑‑S. 13(3)(a)(ii)‑‑,‑Bona fide personal requirement of landlord‑‑‑Good faith‑‑‑Proof‑‑‑One of the essentials for ejecting a tenant in a case of personal requirement was the existence of good faith‑‑‑Landlord had to prove personal requirement and good faith simultaneously, to get ejectment order‑‑‑Landlord, in the present case, had failed to prove good faith as his son for whom shop in question was required, had been assisting his father in his business‑‑‑Son of landlord could have carried with the business ‑in shop which was rented out to the Bank, at the lime when son also required a shop for his business, which would reflect on good faith of landlord‑‑‑Tenant could not be ejected on mere wish, convenience, whim and fancy of landlord.

Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 ref.

Ehsanul Haq for Appellant.

Muhammad Riaz Ahmed for Respondent.

Date of hearing: 17th November, 2003.

2004 C L C 1302

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

Haji KHUDAI DAD‑‑‑Appellant

Versus

GHULAM YASEEN‑‑‑Respondent

Regular First Appeal No. 2 of 2001, decided on 10th March, 2004.

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

‑‑‑‑S. 55‑‑‑Transfer of property through sale‑‑‑Rights and liabilities of buyer and seller‑‑‑Provisions of subsection (2) of S.55 of Transfer of Property Act, 1882 had laid down that seller would be deemed to contract with the buyer that interest which he transferred to buyer subsisted and that he had power to transfer same‑‑‑Express covenant of title in sale‑deed or agreement, was not necessary Because such a covenant was implied in every sale according to S.55(2) of the Act‑‑­Legal effect of such a covenant was; (i) the covenant would import an absolute warranty of title; (ii) if a defect in the vendor's title was discovered after sale was duly completed, vendee was entitled to sue for damages and claim the return of purchase money, if he was dispossessed in consequence ,of his vendor's defective title; (iii) the liability was, however, limited to the title which the vendor professed to transfer and (iv) the covenant would run with the land‑‑‑Covenant was therefore, enforceable by subsequent purchasers of the land‑‑‑Notwithstanding non­-mentioning of obligations of vendor to transfer the title in. the name of vendee, vendor was under legal obligation to transfer the title in his name, without which sale could not be completed.

(b) Contract Act (IX of 1872)‑‑­

‑‑‑‑Ss. 56 & 65‑‑‑Agreement to do impossible act‑‑‑Obligation of person who had received advantage under void agreement or contract under S.56 of Contract Act, 1872, to do an act, which after the contract, was ‑made, had become impossible to be done would make such contract or agreement void‑‑‑Vendor in the present case, was under legal obligation to transfer title to vendee which not only he failed to do, but it had become impossible to be done due to refusal of Municipal Corporation to transfer title in the name of vendee ‑‑‑Agreement between parties, in circumstances became void and under S.65 of Contract Act, 1872, vendee was entitled to claim return of money which vendor was bound to restore.

Mujeteh Ahmad Hashmi for Appellant.

Qahir Shah for Respondent.

Date of hearing: 6th October, 2003.

2004 C L C 1963

[Quetta]

Before Akhtar Zaman Malghani, J

Mst. SHAH PARI---Appellant

Versus

Malik KHAN MUHAMMAD and another---Respondents

F.A.Os. Nos. 15 and 16 of 2004, decided on 6th August, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(2) [as added by Balochistan Rent Restriction (Amendment) Ordinance (VIII of 1985)]---Default in payment of rent---Deposit of due rent in Court's account by tenant before filing written statement---Rent Controller dismissed ejectment petition while condoning such default being first default---Landlord's plea was that such default was not first default committed by tenant as earlier ejectment petition on such ground had been disposed of in appeal by High Court on tenant's undertaking to pay rent regularly---Validity---In earlier proceedings, neither any findings had been given by Rent Controller or High Court regarding default nor tenant had been asked to pay outstanding rent alleged by landlord, rather tenant had been directed to pay rent from date of compromise reached at between parties---Landlord had not alleged in pleadings previous default on the part of tenant---High Court dismissed appeal in circumstances.

PLD 1994 Quetta 38 ref.

Syed Ayaz Zahoor for Appellant.

Adnan Basharat for Respondents.

Date of hearing: 21st July, 2004.

2004 C L C 17

[Shariat Court (AJ&K)]

Before Syed Manzoor H. Gilani, CJ

Mst. SARWAR JAN‑‑‑Appellant

Versus

ABDUR REHMAN‑‑‑Respondent

Appeal No. 16 of 2003, decided on 29th October, 2003.

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

‑‑‑Ss: 5 & Sched & 14‑‑‑Suit for dissolution of marriage on ground of Khula'‑‑‑Plaintiff in her sui had alleged that behaviour and treatment of defendant husband towards her, had become cruel and he started beating and abusing her and had resorted to ill and inhuman treatment against her‑‑‑Wife had alleged that in view of said inhuman and cruel treatment of husband, she had suffered from severe spiritual and mental torture and had developed extreme disliking against the husband with whom she could not live in any case within the limits ordained by Allah‑‑‑Family Court dismissed suit holding that allegation against husband had not been proved‑‑‑Wife had contended that when it was made clear before the Family Court that spouses could not live within the limits ordained by Allah, it was obligatory for Family Court to have dissolved the marriage on basis of Khula even if cruelty or other grounds as alleged by her were not proved‑‑‑Validity‑‑‑Wife had throughout maintained, that she could not live with the husband against whom she had developed severe hatred and disliking‑‑‑Said state of affairs itself had made out a case for Khula' even if her pleas of torture, beating, etc. were not proved‑‑‑Wife was at liberty to take up plea of Khula' before High Court in appeal, even if said plea was not specifically taken before Family Court‑‑­Dissolution of marriage on ground of Khula' was a pure question of law and could be raised even before the highest Court of appeal‑‑‑Such plea would not require any evidence proof as it was the statement of plaintiff/wife alone which was the determining factor in case of Khula'‑‑‑Aversion, disliking, hatred, incompatibility of temperaments, mental, intellectual, social, cultural or ideological disparity or conflict, which had the apprehension of disturbing the family life and happiness, were sufficient grounds for wife to seek Khula'‑‑‑Wife was empowered to get marriage cancelled on any reason whatsoever, whether husband was at fault or not‑‑‑Unfettered powers of husband were counter balanced by right of wife to obtain dissolution of marriage through Court subject to condition that if husband was not at fault, she was to compensate him and if he was found at fault, she was not to pay anything‑‑‑Said right of wife could not be made hostage to husband's pleasure‑‑‑When relations between the spouses had become so strained that they could not live together in accordance with limits ordained by Allah, Family Court should have dissolved marriage on ground of Khula'‑‑‑High Court accepting appeal, set aside judgment and decree of Family Court and decree of dissolution of marriage was passed in favour of wife on Khula' subject to payment of dower amount to the husband.

1980 CLC 1212; 1993 SCR 330; 2002 SCR 218; PLD 1984 SC 329; 1983 CLC 2390; PLD 1985 SC (AJ&K) 60; PLD 1983 SC 169; 1986 CLC 1996; 1992 CLC 937; PLD 1986 Quetta 185; PLD 1981 Kar. 474; Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97; Muhammad Yunus v. Mst. Razia Begum 1986 CLC 1996; Dr. Akhlaq Ahmad v. Kishwar Sultana PLD 1983 SC 169.; Humaira Mehmood v. The State PLD 1999 Lah. 494 and Mst. Naqeeba Begum v. Abdul Khaliq 2002 SCR 218 ref.

(b) Islamic Law‑‑‑-

‑‑‑‑Marriage‑‑‑Muslim marriage in essence is a contract as against sacramental concept of Christianity and Hinduism.

K. D. Khan for Appellant.

Abdur Rashid Abbasi for Respondent.

2004 C L C 1168

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ABDUL RASHEED‑‑‑Appellant

Versus

JAMILA BIBI and 4 others‑‑‑Respondents

Civil Appeal No.24 of 2003, decided on 25th March, 2004.

(a) Azad Jammu & Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑Ss. 5 & Sched & 14‑‑‑Suit for dissolution of marriage on ground of non‑payment of maintenance allowance‑‑‑Plaintiff was duty bound to prove that defendant husband had neglected her or had failed to provide for her maintenance for a period of two years, but she had failed to prove the same by any evidence‑‑‑Record had proved that plaintiff had left the house of defendant/her husband in his absence and that defendant not only had gifted her golden ornaments on her demand, but had constructed a separate house for her, on her demand, but she deliberately refused to return to defendant after voluntarily going away from his house‑‑‑Defendant, in circumstances was not bound to maintain the plaintiff‑‑‑Plaintiff was bound to prove her case through her own evidence and she could not be allowed to take benefit of weakness of evidence of defendant‑‑‑Plaintiff, in the present case, had neither succeeded to prove her case by producing cogent evidence nor any weakness in evidence of defendant was shown which could render any help to the plaintiff‑‑‑Family Court, in circumstances had misdirected itself while holding that plaintiff and her witnesses had proved factum of non‑payment of maintenance allowance to her‑‑‑Both witnesses produced by plaintiff in proof of her claim having animus against defendant, their statements could not be taken into consideration, whereas defendant had succeeded to rebut version of plaintiff through his evidence‑‑‑Findings of Family Court were based on glaring defects material irregularities and legal infirmities and Court had failed to appraise and appreciate evidence of parties in its true perspective‑‑‑Decision and decree passed by Family Court, in circumstances, could not be sustained.

PLD 1981 Lah. 335; 2003 CLC 504; 2002 CLC 123; Mst. Sherinzadgi's case PLD 1961 (W.P.) Pesh. 66; Mst. Resham Bibi v. Muhammad Shaft PLD 1967 (AJ&K) 32; Abdul Rehman v. Khalida Bi and others 1980 CLC 1098 and Mst. Asghari Sultana v. Chaudhary Shamim Ahmed and 2 others 2002 CLC 123 ref.

(b) Azad Jammu & Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑Ss. 5 & Sched‑‑‑Maintenance allowance‑‑‑Claim for‑--If wife refused to live with her husband without any lawful excuse and deserted her house or otherwise wilfully failed to perform her marital duties, she would have no right to claim maintenance allowance from her husband‑‑­If husband in said circumstances would not maintain his wife, it could not be said that there was negligence or failure of husband to provide for maintenance to wife.

Ch. Muhammad Bashir Inqalabi for Appellant

Ch. Mehboob Elahi for Respondents.

2004 C L C 1186

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

FOZIA BEGUM‑‑‑Appellant

Versus

TARIQ HUSSAIN ‑‑‑ Respondent

Civil Appeal No.27 of 2002, decided on 19th February, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑­

‑‑‑‑Arts. 117 & 118‑‑‑Burden of proof‑‑‑One who asserts a fact must prove the same.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage on ground of Khula‑‑­Entitlement of husband to benefits‑‑‑Wife filed suit for dissolution of marriage on grounds of cruelty, mental torture etc. and in alternative on ground of Khula‑‑‑Plaintiff had failed to prove fact of cruelty or mental torture, but Family Court decreed suit on basis of Khula which decision of Family Court had attained finality as husband had not challenged the same‑‑-Husband during proceedings of case for dissolution of marriage on ground of `Khula' did not make any demand for restoration of benefits‑‑‑Husband who had not put forward any claim for payment of golden ornaments worth Rs.48,808 which allegedly were paid by him in lieu of Dower, was not entitled to receive any consideration for the same.

1989 SCMR 173; 1999 CLC 1358; Noor Muhammad v. Judge, Family Court, Burewala, District Vehari and another PLD 1989 Lah. 31 and Muhammad Sadiq v. Mst. Bashiran and others 1991 CLC 1647 ref.

Raffiullah Sultani for Appellant.

Khalid Mehmood Khokhar for Respondent.

2004 C L C 304

[Azad J&K]

Before Sardar Muhammad Nawaz Khan, J

Raja MUHAMMAD SIDDIQUE KHAN -Appellant

versus

Raja MUHAMMAD SAEED KHAN alias MUHAMMAD SAID KHAN and 9 others---Respondents

Civil Appeal No. 92 of 2002, decided on 23rd September, 2003.

(a) Azad Jamu and and Kashmir Right of Prior Purchase Act, 1993 (B.K.)-------

---Ss. 6 & 14---Suit for pre-emption ---Preferential right of pre-emptor over rival pre-emptor ---Suit was decreed in favour of two rival pre­emptors T' andS', but Trial Court in its order declared 'T' having preferential right of pre-emption over 'S' on ground that 'T' was collateral of vendor coupled with the fact that he was also sharer in the suit-land---Rival pre-emptor 'S' was placed at No.2 on ground that he was simply a sharer in joint property-- -Appellate Court upheld decision of Trial Court---Validity---Both Courts below were in agreement that both rival pre-emptors `T' and 'S' had qualified themselves to be 'Shaft Shareek' in joint immovable property out of which a share had been transferred through sale-deed---Amended law of pre-emption governing pre-emption matters, had only provided three categories; firstly, Shafi Shareek; secondly Shafi Khalit; and thirdly Shafi Jar---Amended law of pre-emption had further provided that where all the said classes of pre­emptors were claimants, then first category. (Shaft Shareek) would exclude; second category and second would exclude the third category--­Both rival pre-emptors, in the present case, were shown to have prior right of pre-emption against vendee being Shafi Shareek---Concurrent view taken by Courts below that pre-emptor 'T' had preference over pre­emptor 'S', because he had two additional qualifications, could not be allowed to prevail because under amended law, relationship of a pre­emptor with vendor was no ground or qualification and any additional qualification even though recognized by amended law of pre-emption could not be considered to place a pre-emptor in a better position while deciding pre-emption suits filed by rival pre-emptor ---Both rival pre­emptors being Shafi Shareek falling in first category; would be entitled to equal share one half to each and decretal amount would also stand divided in equal share.

(b) Pleadings---

---- No evidence could be looked into on a fact which was not specifically pleaded in pleadings.

Sardar Muhammad Arif Khan for Appellant.

Raja Muhammad Sajjad Khan for Respondent No.9.

2004 C L C 318

[Azad J&K]

Before Sardar Muhammad Nawaz Khan, J

SAID MUHAMMAD and another---Appellants

versus

MUHAMMAD SHARIF -Respondent

Civil Appeal No.36 of 2000, decided on 23rd September, 2003

(a) Suits Valuation Act (VII of 1887)---

----S. 11---Objection regarding wrong valuation of suit for purpose of jurisdiction---Such objection raised in appeal for the first time--­Maintainability---No objection regarding wrong valuation of suit for the purpose of jurisdiction, could be allowed to be raised before Appellate Court if such objection had not been raised before Trial Court.

Muhammad Ameen's case 1992 SCR 178' ref.

(b) Approbate and reprobate---

----Principle of---Applicability---Party could not say at one time that transaction was valid and thereby obtaining some advantage and at another time say that it was invalid for the purpose of securing further advantage.

PLD.1987 SC 107 ref.

(c) Registration Act (XVI of 1908)---

----S. 17---Contract for sale---Registration---Contract for sale would not require its compulsory registration because it was a document which, by itself, would not create a title, but it was a document creating a right to obtain another document i.e. sale-deed in favour of person in whose favour contract was executed.

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

----S. 12---Transfer, of Property Act (IV of 1882), S.53-A---Suit for specific performance of contract---Plaintiff had only sought performance of contract of sale to obtain sale-deed in his favour and had not asserted his title over suit-land through agreement for -sale---Factum of delivery of possession would be irrelevant in such case because plaintiff did not seek declaration of title on the basis of contract of sale---Although possession after its delivery to a party through an agreement to sell would be protected under S.53-A of Transfer of Property Act, 1882, but when party did not assert title over the suit-land, but simply requested the Court to direct performance of contract to obtain a further document creating title in favour of person seeking declaration, no bar existed to bring a suit for specific performance on the basis of such agreement as provided under S.12 of Specific Relief Act, 1877---Effect of an agreement to sell immovable property was that it would give a privilege to obligee/vendee against obligor/vendor to compel vendor by a suit for specific performance of contract, but vendee would have no direct right over the suit-land---Had the plaintiff paid purchase money of suit-land to defendant/vendor who had failed to execute sale-deed in favour of plaintiff, suit for specific performance, filed by plaintiff against defendant would have been competent---Defendant was under legal obligation to execute sale-deed in favour of defendant according to agreement arrived at between the parties---Suit was rightly decreed by Courts below.

Mumtaz Hussain Khan's case 2001 CLC 946 and Pordil Khan's case PLD 1965 Pesh. 259 ref.

Sardar Khan for Appellant.

Kh. Ghulam Mohiy-ud-Din for Respondent

2004 C L C 333

[Azad J&K]

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD YOUSAF KHAN---Appellant

versus

MUHAMMAD ASLAM and another- --Respondents

Civil Appeal No.47 of 2002, decided on 23rd September, 2003.

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK.)---

----Ss. 6 & 14---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for pre-emption ---Superior right of pre-emption ---Amendment in plaint--­Plaintiff in his plaint had based his claim of superior right of pre-emption on three qualifications viz.; Shafi Shareek, Shafi Khaleet and Shafi Jar--­Said qualifications were recognized only under amended law of pre­emption which came into force in Azad Jammu and Kashmir on 13-3-1993 whereas present suit had been brought on 18-1-1993 which showed that pre-emption suit was instituted before the enforcement of amended law---Validity---Pending pre-emption cases were to be decided in the light of the old law governing pre-emption matters---When the Appellate Court observed that suit filed by plaintiff was required to be adjudicated upon according to the old law, plaintiff by sensing his ultimate failure had resorted to amendment in the plaint by inserting word `Mohal' in the same---If proposed amendment was allowed after expiry of limitation, it would amount to add or place a fresh ground not specifically taken in the pleadings and it would certainly change cause of action which was not permissible under law--­Amendment application was disallowed, in circumstances--­Qualifications on basis of which present suit had been brought, being not recognized by old law, suit filed by plaintiff had been rightly disallowed by Appellate Court.

Noof Muhammad's case PLD 1987 Lah. 473; Muhammad Khan's case 1999 YLR 1308; Azad Khan's case PLD 1971 Azad J&K 49; 1996 CLC 480 and Muhammad Iqbal's case PLD 1987 Azad J&K 170 ref.

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

----.O. VI, R. 1-Pleadings---Pleadings were always looked into as a whole to ascertain the real controversy between the parties.

Sardar Shamshad Khan for Appellant.

Sardar Suleman Khan for Respondents.

2004 C L C 432

[Azad J&K]

Before Sardar Muhammad Nawaz Khan, J

RAFAQAT HUSSAIN AWAN‑‑‑Petitioner

Versus

DEEWAN ALI CHUGHTAI and 18 others‑‑‑Respondents

Election Petition No. 1 of 2003, decided on 13th November, 2003.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 42‑‑‑Judgment of Supreme Court is the law of the State of Azad Jammu and Kashmir.

(b) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970‑‑‑

‑‑‑‑Ss. 51(3) & 59‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑‑Non‑verification of election petition‑‑‑Effect‑‑‑Verification of election petition is mandatory under S.51(3) of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970‑‑‑Non­compliance of such provision would entail dismissal of election petition.

S. M. Ayub v. Syed Yousuf Shah and others PLD 1967 SC 486 fol.

(c) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970

----S. 51‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑‑Non­verification of annexure or schedule appended with election petition‑‑­Effect‑‑‑Such annexure or schedule does not make additional allegation neither they furnish better particulars of allegations made in election petition, so as to give them status of substantive ground of petition‑‑­Non‑verification of such annexure or schedule would not be fatal to election petition.

Jagan Nath v. Jaswant Singh 9 ELR 23 (SC) fol.

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

‑‑‑‑O. VI, R.15‑‑‑Verification of pleadings‑‑‑Object‑‑‑Non‑compliance with such requirement‑‑‑Effect‑‑‑Principle discussed.

Verification of pleadings is an act of proving to be correct. A plaintiff or petitioner or the case may be under law is required to verify the pleadings on oath or solemn affirmation. It is because the Court cannot take cognizance of it in absence of verification. Verification, which is in accordance with law, prima facie provides an evidence to believe that the averments made in the plaint or allegations levelled in a petition are correct. This is something initially satisfying the Court about" the genuineness of the claim, so that the cognizance could be taken. Therefore, when verification of pleading is required by law, it should be done as the law says and if it is found not in accordance with law, it is to be deemed as non‑existent.

When an, act is required by law to be performed in a prescribed manner, then it should be performed in that way or not at all.

Verification, if proved false, entails penal consequences. A person verifying false averments/allegations on oath or solemn affirmation incurs penal liability for it is an offence under Penal Code. Therefore, a Court or Tribunal, as the case may be, cannot take cognizance of a plaint or petition, unless it is verified in accordance with law, because the person making averment or levelling allegation cannot be held responsible, if proved false.

Verification of allegations or averments in a suit or a petition is the base or foundation on which legal edifice is raised for redressal of grievance with the help of Court or Tribunal under law. Therefore, when the petitioner or plaintiff puts his signature at the foot of pleadings, he admits them and no further admission on oath or solemn affirmation is required by him. However, the verification of allegations or averments on oath or solemn affirmation is required under law just to ask the Court or Tribunal to take cognizance.

(e) Practice and Procedure---

‑‑‑‑When an act is required by law to be performed in a prescribed manner, then same should be performed in that way or not at all.

(f) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970‑‑‑

‑‑‑‑Ss. 50, 51 & 59‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑­Verification of election petition containing allegations of corrupt practices and illegal acts‑‑‑Effect‑‑‑Such election petition, if succeeds would entail consequences like de‑seating of returned candidate and penal action against those found to be involved in such practices or acts‑‑‑Such election petition has, thus, the status of a criminal proceedings‑‑‑Verification of election petition is a mandatory legal requirement, which should be complied with as law suggests.

Jagan Nath v. Jaswant Singh 9 ELR 23 (SC) and AIR 1958 SC 698 rel.

(g) Interpretation of statutes‑‑‑

‑‑‑‑ Statutory requirement of Election Law 'must be strictly observed.

Jagan. Nath v. Jaswant Singh 9 ELR 23 (SC) fol.

(h) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970‑‑‑

‑‑‑‑Ss. 50, 51 & 59‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑­Election petition‑‑‑Words "admit" and "verify" ‑‑‑Scope‑‑‑Distinction‑‑­Petitioner in verification available at foot of election petition admitted on oath its averments‑‑‑Validity‑‑‑To "admit' a fact and to `verify" a fact were two different matters having different meaning and different legal connotation‑‑‑Petitioner had admitted his pleadings twice, once by putting his signature and secondly by making admission on oath, but he had failed to verify same on oath or solemn affirmation as required by law‑‑‑Verification of pleadings/petition was a mandatory requirement of law‑‑‑Verification not made in conformity with law is no verification in the eyes of law‑‑‑Election petition was dismissed.

2003 YLR 2784; 1998 CLC 83; 1997 CLC 1724; 1995 CLC 150; 1986 CLC 2050; 2002 SCR 146; PLJ 2003 SC 934; 1994 CLC 2041; 1990 CLC 301 and Mogha's Law and Principles of Pleadings ref.

(i) Words and phrases‑‑‑

‑‑‑‑‑‑To admit" and "to verify" a fact‑‑‑Distinction‑‑‑Both such expressions are different having different meaning and connotation.

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

‑‑‑O. XII, R.1 & O. VI, R.15‑‑‑"Admission of fact"‑‑‑Connotation‑‑­Fact alleged or stated by one party and accepted by opposite‑party would be an admission and would bear its own consequences‑‑‑Such admission would not require further declaration on oath or solemn affirmation.

Mushtaq Ahmed Janjua for Petitioner.

Abdur Rashid Abbasi for Respondents.

2004 C L C 858

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD HUSSAIN and another‑‑‑Appellants

Versus

MUHAMMAD AZAM and 2 others‑‑‑Respondents

Civil Appeal No.68 of 2001, decided on 20‑2‑2002.

(On appeal from the judgment of the High Court, dated 12‑5‑2001 and decree, dated 14‑5‑2001 in Civil Appeals Nos.43 and 45 of 2000).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

‑‑‑‑S. 42‑‑‑Appeal to Supreme Court‑‑‑Documents not tendered before Courts below‑‑‑Tendering same before Supreme Court‑‑‑Both gift‑deed and Khasra Girdawari were not tendered in evidence before any of the Courts below nor additional evidence was sought for by appellant‑‑‑Said documents which were not part of record of any of the Courts below, could not be taken into consideration in appeal before Supreme Court.

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

‑‑‑‑S. 41‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for declaration‑‑‑Appeal before Supreme Court‑‑­Cross‑suit filed by appellants seeking a declaration that they were owners in possession of suit‑land was dismissed on ground that no record with regard to their ownership was produced as they were shown in possession of suit‑land as tenants‑at‑will‑‑‑High Court, in circumstances, had committed no illegality in dismissing both cross‑suits.

Ch. Muhammad Afzal, Advocate for Appellants.

Raja Hassan Akhtar, Advocate for Respondents.

Date of hearing: 15th February, 2002.

2004 C L C 882

[Supreme Court (AJ&K)

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

MUHAMMAD MALIK ‑‑‑Appellant

Versus

Ch. YAQOOB JAVED BATALVI and another‑‑‑Respondents

Civil Appeals Nos. 3, 4 and 5 of 1999, decided on 30th June, 1999.

(On appeals from the judgment and decree of the High Court, dated 18‑9‑1998 in Civil Appeals Nos.9 and 7 of 1997).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)-----

‑‑‑‑Ss. 6, 14, 20‑A & 29‑‑‑Suit for pre‑emption ‑‑‑Limitation—­Condonation of delay‑‑‑Limitation for filing suit for pre‑emption was four months from date of registration of sale‑deed, whereas suit was filed after about ten months of the registration of sale‑deed and application for condonation of delay in filing suit was made about five months after institution of the suit‑‑‑No explanation for exemption from limitation bar had been claimed in pre‑emption suit itself‑‑‑As to why plaintiff had kept mum for seeking condonation of delay for about five months after institution of suit was not forthcoming‑‑‑Discretion with regard to condonation of delay or refusing same by Courts below was hardly interfered with by High Court‑‑‑Trial Court, in circumstances had rightly dismissed suit being barred by time.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)--------

‑‑‑‑Ss. 6, 14, 20‑A & 29‑‑‑Suit for pre‑emption ‑‑‑Improvement in status of vendee during pendency of suit‑‑‑Right of prior purchase‑‑‑Existence of said right ‑‑‑Vendee could improve his status during pendency of suit‑‑‑Right of prior purchase, should be existing on three dates, namely; the date of execution of sale‑deed; date of institution of suit and date of pre‑emption decree in favour of pre‑emptor ‑‑‑As a result of sale­ deed obtained by vendee during pendency of suit, he had become co­ sharer in suit‑land‑‑‑Suit for pre‑emption filed by pre‑emptor against vendee who had also become co‑sharer after sale‑deed in his favour, could not succeed‑‑‑Person who became co‑sharer by purchasing land out of one survey number in Khewat, would be deemed co‑sharer in whole of survey number comprised in a Khewat‑‑‑Main plank on which case of plaintiff against sale‑deed rested, having come to an end, suit filed by plaintiff, was dismissed.

Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others PLD 1976 Lah..1433; Rahmat Bibi and 4 others v. Ghazanfar Hussain and another PLD 1983 SC (AJ&K) 25; Saadullah Khan and 3 others v. Mohabat and 29 others PLD 1975 Pesh. 218 and Fazal Dad v. Mst, Sakina Bibi and another 1997 MLD 2861 ref.

Raja Liaquat Ali Khan, Advocate for Appellants.

Respondent in Person.

Date of hearing: 30th June, 1999.

2004 C L C 895

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

Khawaja GHULAM QADIR and another‑‑‑Appellants

Versus

CUSTODIAN EVACUEE PROPERTY and 13 others‑‑‑Respondents

Civil Appeal No. 10 of 1992, decided on 2nd November, 1992.

(On appeal from the judgment of the High Court, dated 7th December, 1991, in Writ petition No.49 of 1991).

(a) Administration of justice‑‑‑--

‑‑‑‑ Before granting relief to a litigant, the Court was duty bound to see whether relief prayed by him was legally allowable in accordance with procedure laid down for seeking same‑‑‑Technicalities, though should be kept at their proper place .and should not be extended to defeat the purpose of law and justice, but technicalities which were fundamental and basic, could not be bypassed.

Mirza Lal Hussain v. Custodian and others 1992 SCR 214 ref.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑S. 43(6)‑‑‑Review‑‑‑Application for review‑‑‑Limitation‑‑‑Application for review could be filed before Custodian within prescribed period which was thirty days‑‑‑Review application filed on face of it, was barred by time as it had been filed after seven years and it was for the applicant to explain delay‑‑‑Lack of knowledge could be pleaded and review application could be filed within thirty days from the date of knowledge‑‑‑Contention of the applicant in review application was that the order of cancellation of allotment from the name of allottee was passed without hearing him and in a clandestine manner in collusion with the Rehabilitation Authorities and that allottee could not come to know about it‑‑‑Record showed that allottee died in 1988, but it had nowhere been stated as to when son of the deceased allottee came to know that entitlement certificate and orders for transfer of proprietary right had been issued in favour of subsequent allottees‑‑­Delay of each day had to be explained‑‑‑Delay in filing review application having not been explained. Additional Custodian of Evacuee Property, was right in holding that review application was barred by time.

Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 93; Mirza Lal Hussain v. Custodian and others 1992 SCR 214 and Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner PLD 1964 SC 829 ref.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Rafique Mahmood Khan and Nawaz Khan, Advocates for Respondents.

Date of hearing; 4th July, 1992.

2004 C L C 910

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Khawaja Muhammad Saeed, J

KARAM DAD and 3 others‑‑‑Appellants

Versus

Mst. BARKAT JAN and 10 others‑‑‑Respondents

Civil Appeal No. 61 of 2001, decided on 31st January, 2001.

(On appeal from the judgment and decree of the High Court, dated 30‑3‑2001 in Civil Appeal No. 10 of 1998).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑­

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.XIV, R.1‑‑‑Framing of issues‑‑‑Appeal to Supreme Court‑‑‑Points not raised before Court below were raised before Supreme Court‑‑‑Validity‑‑‑Point not raised before Courts below could not be allowed to be raised before Supreme Court‑‑­Point of law going to the root of the case could be allowed to be raised in exceptional cases‑‑‑Appellants could not be allowed to raise question of framing of any issue at appeal stage because admittedly it was duty of the Court as well as the Advocates of parties to ensure that necessary issues arising out of pleadings of parties were framed before the Trial Court‑‑‑Counsel representing appellant had never brought to the notice of Trial Court any omission or correctness of any issue framed by it‑‑‑Such point could not be raised in Supreme Court‑‑‑Even otherwise, in the present case, it was not brought to notice of Supreme Court that non-framing of any issue had resulted in substantial injustice.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑­

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Appeal before Supreme Court‑‑‑Trial Court as well as First Appellate Court had discussed in detail the evidence which was produced by parties and had resolved issues in favour of respondents‑‑‑High Court under embargo contained in S.100, C.P.C. had observed that it had no jurisdiction to entertain second appeal against concurrent findings of Courts below, particularly when it was not brought to its notice that findings so recorded suffered from any misreading or non‑reading of evidence‑‑­View expressed by High Court was in accordance with provisions contained in S.100, C.P.C.‑‑‑Appellants having failed to point out any misreading or non‑reading of evidence by Courts below, appeal against concurrent judgments of Courts below which were not suffering from any defect, was dismissed by Supreme Court.

Ch. Muhammad Azam Khan, Advocate for Appellants.

Nazir Ahmed Ghauri, Advocate for Respondents.

Date of hearing: 22nd January, 2002.

2004 C L C 937

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

KHALID MEHMOOD BUTT and another‑‑‑Appellants

Versus

MANAGING DIRECTOR, AKLASC and 4 others‑‑‑Respondents

Civil Appeal No. 128 of 2000, decided on 8th February, 2002.

(On appeal from the judgment of the High Court, dated 28‑4‑2000 in Writ Petition No.408 of 1997).

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Principles of‑‑‑Fundamental principle relating to interpretation of statute was that it should be read as a whole and no part or word of it should be omitted from consideration‑‑‑Intention behind the statute/rules must be taken into consideration which could be gathered from looking into the statute/rules as a whole‑‑‑All attempts should be made to reconcile various provisions of statute for rational meaning avoiding redundancy to any provision thereof.

Rafiq Akhtar Chaudhry v. Azad Jammu and Kashmir Government PLD 1982 SC (AJ&K) 124; State v. Nadeem and 4 others 1996 MLD 506; Messrs Kamran Industries v. The Collector, Customs (Exports), 11th Floor, Customs House, Karachi and 4 others PLD 1996 Kar. 68; Muhammad Azam Muhammad Fazil & Co. v. N.A. Industries, Karachi PLD 1977 Kar. 21; Muhammad Hussain v. Mian Mahmood Ahmed and 3 others PLD 1970 Lah. 140; Institution of Engineers, Pakistan Engineering Centre v. Pakistan Engineering Council and another 1996 CLC 129 and President of Pakistan's case PLD 1957 SC 219 ref.

(b) Azad Kashmir Logging and Sawmills Corporation, Ordinance (IV of 1968)‑‑‑

‑‑‑‑Ss. 7 & 17‑‑‑Azad Kashmir Logging and Sawmills Corporation Rules, 1977‑‑‑Quashing of amended Rules‑‑‑Board had to function according to approved guidelines of Government‑‑‑Under provisions of S.17 of Azad Kashmir Logging and Sawmills Corporation Ordinance, 1968, it had been made clear that rules and regulations were to be framed by Corporation which would be enforced with approval of Government‑‑­Provisions of S.7 of Azad Kashmir Logging and Sawmills Corporation Ordinance, 1968, had empowered Corporation to make rules and regulations for carrying out purposes of the Ordinance with approval of Government‑‑‑If amendment carried in Azad Kashmir Logging and Sawmills Corporation Rules, 1977 framed under Azad Kashmir Logging and Sawmills Corporation Ordinance, 1968 was necessary in wisdom of Board, then it must obtain approval of Government as required by S.17 of the said Ordinance‑‑‑Impugned amendment in the Rules having been enforced without prior approval of Government, said amendment had no legal sanction behind‑‑‑If any seniority list had been prepared under those amended Rules, that would also be without legal authority‑‑­Original Rules were made with prior approval of Government and stood published in official Gazette‑‑‑Any change in said Rules should also be effected in same manner‑‑‑Even otherwise any law including rules having force of law which were related to the rights and obligations of citizens, must be made known to them.

Muhammad Rashid Choudhry v. Chairman, AKLASC and others 1993 PLC (C.S.) 1201 and Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17 ref.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Two conflicting provisions in same enactment‑‑‑If there were apparently two conflicting provisions in same enactment, one which appeared to statute at the later stage, would override the former and same would be considered operative.

M. Tabassum Aftab Alvi, Advocate for Appellants.

Muhammad Farid Khan Advocate for Respondents Nos. 1 to 4.

Date of hearing: 8th October, 2001.

2004 C L C 960

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ

Mst. YASMEEN BIBI‑‑‑Petitioner

Versus

Mst. SAKINA BIBI and 5 others‑‑‑Respondent

Civil P.L.A. No. 196 of 2001, decided on 7th February, 2002.

(On appeal from the judgment of the High Court, dated 9‑10‑2001 in writ Petition No. 197 of 2000).

Administration of justice‑--

‑‑‑‑ Practice and procedure‑‑‑Challenge to jurisdiction, when cannot be made‑‑‑Party after submitting itself to the jurisdiction of the Court, could not turn round and say after an adverse order was passed against it, that such Court had no jurisdiction.

Ejaz Ahmad Awan and 5 others v. Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 and Mst. Yasmeen Bibi v. Azad Government and others, decided on 2‑12‑1999 ref.

Raja Muhammad Hanif Khan, Advocate for Petitioner.

Mujahid Hussain Naqvi, Advocate for Respondent No. 1.

Date of hearing: 6th February, 2002.

2004 C L C 984

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

PERVEEN AKHTAR---Appellant

Versus

MUHAMMAD ASGHAR and 3 others---Respondents

Civil Appeal No.67 of 2001, decided on 31st January, 2003.

(On appeal from the judgment of the Shariat Court, dated 18-5-2001 in Shariat Appeal No.22 of 2000).

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

----S. 5 & Sched---Muslim Family Laws Ordinance (VIII of 1961), S.7--­Divorce---Divorce-deed was not the requirement of law to be written on a stamp paper.

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

----S. 5 & Sched---Suit for restitution of conjugal rights---Trial Court dismissed suit by husband, and decreed the suit for jactitation by wife against husband, but Shariat Court reversed judgment of the Trial Court---Husband failed to obtain order of suspension against decree alongwith stay order from Shariat Court against the wife that she should not contract second marriage---Husband in his suit had clearly stated that wife wanted to contract second marriage with some other person--­Husband in his concise statement had stated that wife had contracted second marriage---Second husband of the lady had stated in the Court that she was the mother of a female child out of their wedlock---Appeal of husband had become infructuous before Shariat Court---Judgment of Shariat Court was set aside and suit filed by plaintiff stood dismissed and judgment recorded in favour of wife by Trial/Family Court stood restored.

Liaquat Ali Khan, Advocate for Appellant.

Ch. Muhammad Sharif Tariq, Advocate for Respondent No. 1.

Date of hearing: 21st January, 2002.

2004 C L C 1236

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Chaudhary Muhammad Taj, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 2 others‑‑‑Appellants

Versus

NEELUM FLOUR MILLS through Managing Director‑‑‑Respondent

Civil Appeal No. 18 of 2003, decided on 1st April, 2004.

(On appeal from the judgment of the High Court, dated 5‑10‑2002 in Civil Miscellaneous No. 108 of 2002).

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

‑‑‑‑O. III, R. 4 & O.IX, Rr.9 & 13‑‑‑Appointment of Advocate‑‑‑Under provisions of O.III, R.4, C.P.C., an Advocate once appointed would continue till his appointment was terminated in writing by either side with leave of the Court; or when all proceedings had ended insofar as his client was concerned, provided, Advocate was authorized to appear before such other forum; and upon death of either of the Advocate or the client‑‑‑Appointment of Advocate made under O.III, R.4, C.P.C. would not require a fresh `Vakalatnama' for filing an application under O.IX, Rr.9 & 13, C.P.C.

Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800; Mt. Boro Vai, wife of Khubchand Mahajan v. Ramsunder Prayagdutt Brahmin AIR 1938 Nag. 272; Abdul Aziz v. Punjab National Bank Ltd. AIR 1929 Lah. 96; Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216; Ghulam Qasim v. Ghulam Hussain PLD 1992 SC 577; Abdul Karim v. Maqbool Hussain and another PLD 1978 SC (AJ&K) 140; Sub. (Rtd.) Behram Khan v. Custodian of Evacuee Property and 5 others 2000 YLR 2326 and Mt. Jwala Devi v. Bhrigunath Sahai AIR 1941 All. 238 ref.

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

‑‑‑‑O. III, R.4, O. XXVII, Rr. 1, 4 & O. XLI, Rr. 17 & 19‑‑‑Appointment of Advocate‑‑‑Dismissal of appeal‑‑‑Filing of fresh Vakalatnama or memo. of appearance‑‑‑Advocate appearing for a private party had to file `Vakalatnama' whereas Advocate appearing on behalf of the Government, had to put in memo. of appearance, but that would not alter the status of an Advocate‑‑‑Rule 4 of O.III, C.P.C. had contemplated filing of a document signed by the party appointing pleader which was Vakalatnama or memo. of appearance in terms of O.XXVII, C. P.C. ‑‑‑Principle in respect of a private party would also be attracted in case of an Advocate appearing on behalf of the Government‑‑‑Fresh appointment of Advocate on behalf of Government would not be necessary and fresh Vakalatnama or memo. of appearance would not be required for restoration of appeal, if appeal was dismissed in default and question of fresh sanction for appointment of advocate, would not arise.

Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 ref.

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

‑‑‑‑O. XLI, Rr. 17 & 19‑‑‑Dismissal of appeal in default‑‑‑Restoration of‑‑‑" Sufficient cause" ‑‑‑Appellant whose appeal was dismissed in default had filed application for restoration of appeal‑‑‑Said application was supported by a photocopy of cause list of Supreme Court cases of relevant date when appeal was dismissed by High Court in default‑‑‑Opposite party did not dispute the fact of cases shown on the cause list prosecuted by counsel representing appellant Government‑‑‑Such fact could be regarded a "sufficient cause" for not appearing when appeal was called for hearing as counsel was shown to be busy before Supreme Court at that time‑‑‑Such ground had always been considered a `sufficient cause' for setting aside dismissal order of appeal‑‑‑Order passed by High Court being not maintainable, was set aside and appeal in High Court stood restored to its original number.

Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 ref.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondent.

Date of hearing: 18th March, 2004.

2004 C L C 1340

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J and Chaudhary Muhammad Taj, J

ABDUL REHMAN‑‑‑Appellant

Versus

SHER ZAMAN and another‑‑‑Respondents

Civil Appeal No.52 and Civil Miscellaneous No.68 of 2003, decided on 26th February, 2004.

(On appeal from the judgment of the High Court, dated 16‑6‑2003 in Civil Appeal No.62 of 2002).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. II‑‑‑Rejection of plaint‑‑‑Cause of action, meaning and scope‑‑‑Term cause of action' referred to every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right which would mean the whole of material facts which were necessary for the plaintiff to allege and prove, in order to succeed‑‑‑Termcause of action' referred to the ground on the basis of which plaintiff asked for a favourable judgment‑‑‑Suit could be rejected under O.VII, R.11, C. P. C., if same did not disclose a cause of action for which plaintiff was not only to allege the bundle of facts, but was also required to show that not only the right had been infringed, but a right to seek a relief was in existence‑‑‑Provisions of O.VII, R.11, C.P.C. being not exhaustive, if at any stage, it appeared to the Court that the suit was incompetent, parties to the suit would be at liberty to draw Court's attention to same by way of application and Court could decide the matter under O.VII, R.11, C.P.C. as the policy of law was that incompetent suits should be laid to rest at the earliest moment so that no further time was wasted‑‑‑Plaint, in the present case did not disclose any cause of action and plaintiff had failed to show any infringement of his right‑‑‑Plaint was rightly rejected by Courts below and also by High Court.

Abdul Rehman v. Wahid Bakhsh and others PLD 1977 Lah. 1243: Burmah Eastern Ltd, v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 and T. Arivandandam v. T.V. Satyapal AIR 1977 SC 2421 ref.

M. Riaz Inqlabi, Advocate for Appellant.

Syed Khalil Ahmad Bukhari. Advocate for Respondents.

Date of hearing: 25th February, 2004.

2004 C L C 1397

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Chaudhary Muhammad Taj, J

NOREEN AKHTAR---Appellant

versus

LIAQUAT HUSSAIN ---Respondent

Civil Appeal No.90 of 2003, decided on 26th March, 2004.

(On appeal from the judgment of the Shariat Court, dated 30-7-2003 in Sh. Civil Appeal No.31 of 2003).

Azad Jammu & Kashmir Family Courts Act, 1993---

----S. 13(5)---Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), S.42---Making payment of decretal amount in instalments--­Family Court passed a decree against respondent to pay amount of dowry and other golden ornaments to appellant and on application of respondent Family Court ordered to make payment of decretal amount in instalments of rupees ten thousand each every month---Appellant did not challenge said order---On filing appeal, by respondent against said order Shariat Court determined each instalment of rupees five thousand instead of ten thousand as ordered by Family- Court---Appellant had challenged said order of Shariat Court in appeal before Supreme Court on ground that decree passed in respect of dowry could not be satisfied through instalments---Validity---Order of payment of amount of dower in instalmetns, was neither challenged by appellant before Family Court nor before Shariat Court, which had shown that appellant had accepted order of payment in instalments---Appellant had challenged order when same was further modified by Shariat Court from ten thousand to five thousand per month---Judge Shariat Court had given reasons for making payment in modified instalments---Instalments could be made keeping in view the overall circumstances in the cases governed under Azad Jammu and Kashmir Family Courts Act, 19.93---Order passed by Shariat Court after appreciation of facts and law, could not be interfered with by Supreme Court in appeal.

Sultan Mehmood, Advocate for Appellant.

Respondent in person.

Date of hearing: 22nd March, 2004.

2004 C L C 1443

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, CJ

Mst. ZULAIKHA KHATOON --- Petitioner

versus

Ch. MUHAMMAD YASIN and 5 others---Respondents

Civil Petition for Leave to Appeal No.128 and Civil Miscellaneous No. 100 of 2003, decided on 8th March, 2004.

(On appeal from the judgment of the High Court, dated 23-10-2003 in Civil Revision No.34 of 2003).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K)------

----Ss. 6, 14 & 21---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Suit for pre-emption ---Deposit of 1/5th of consideration amount---Limitation---Plaintiff was ordered to deposit 1 /5th of consideration amount within one month, otherwise suit was to be dismissed---Before expiry of period of one month, plaintiff moved an application in Trial Court praying that instead of depositing 1/5th of consideration amount, she might be allowed to furnish personal surety for said amount---On said application, Trial Court vide its order fixed case for filing objections by opposite party/defendant who submitted objections and on next date of hearing application filed by plaintiff was finally dismissed by Trial Court, but through same order time for deposit of 1/5th of consideration amount was extended---Said order of Trial Court was set aside by High Court to revision and suit filed by plaintiff, stood rejected---Validity---No request was made by the plaintiff for extention of time to deposit 1/5th of consideration amount, but in the said application request was made to furnish personal surety for said amount---Totally new and inconsistent case was put by plaintiff before Trial Court, in circumstances---Plaintiff though had moved application before Trial Court within time, but same was not accepted or rejected on the same date, but Trial Court asked for objections from opposite side/defendant ---Trial Court long after date which was fixed for deposit of 1/5th of consideration amount, rejected application of plaintiff, but at the same time extended the time for depositing 1/5th of consideration amount---When order for extension of time was passed, Trial Court had become functus officio and had no jurisdictional competence to pass order for extension of time---On expiry of date fixed for deposit of 1/5th of consideration.' amount, suit filed by plaintiff stood automatically dismissed as suit was dependant upon deposit of 1/5th of consideration amount within one month---Trial Court had wrongly extended time--­High Court, in circumstances had rightly set aside order of Trial Court--­High Court had committed no error to accepting revision petition filed by respondent---Petition for leave to appeal, was dismissed, in circumstances.

Muhammad Yaqub v. Kala Khan and others 1994 SCR 52 ref.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K)---

----S. 21---Suit for pre-emption ---Provisions of S.21 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993, which arose out of a special statute, were mandatory in nature and same were to be construed strictly---Right of pre-emption was a piratical right which deprived lawful owners of their right to purchase certain property on the basis of their right of prior purchase.

Raja Muhammad Siddique, Advocate for Petitioner.

Ch. Jahandad Khan, Advocate for Respondent No. 1.

Date of hearing; 25th February, 2004.

2004 C L C 1768

[Supreme Court (AJ&K)]

Before Khawaja Muhammad Saeed and Chaudhary Muhammad Taj, JJ

RAJ MUHAMMAD ---Appellant

Versus

ZINAT BEGUM and 8 others---Respondents

Civil Appeal No.88 of 2003, decided on 2nd July, 2004.

(On appeal from the judgment and decree of the High Court, dated 18-4-2003 in Civil Appeal No.55 of 2002).

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

----S. 39---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for cancellation of gift-deed---Plaintiff had sought cancellation of gift-deed allegedly executed by him in favour of defendant---Plaintiff had claimed that he had never appeared before Sub­ Registrar and that alleged gift-deed had been got registered by defendant illegally and committing fraud---Trial Court dismissed suit, but Appellate Court accepting appeal, set aside judgment of Trial Court and High Court also up-held judgment of Appellate Court---High Court through an exhaustive judgment held that no reasons were shown in the gift-deed as to why same was executed in favour of defendant particularly when donor had a wife and a son living with him---Admittedly execution of gift-deed had not been proved through any evidence---None of the marginal witnesses or scribe of document was produced to prove execution of said document---Execution of gift- having been denied by executant thereof, burden of basic issue of execution of the same should have been placed on defendant who had claimed its valid execution, but that had not been done in the case--possession of suit­land was still with plaintiff and had not been transferred to defendant--­Essentials of gift having not been satisfied in case, both Appellate Court below and High Court, had rightly decreed the suit and cancelled gift-deed---Concurrent judgment of Appellate Court and High Court would not warrant any interference by Supreme Court in appeal.

Abdul Malik and others v. Muhammad Latif and others 1993 SCR 335; Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932; Muhammad Ashraf v. Bahadur Khan and others 1989 SCMR 1390; Rashid Ahmad and others v. Sardar Bibi and others 1994 MLD 467 and Riasat Ali v. Sardar Ali and 7 others 1994 CLC 475 ref.

Muhammad Yunus Tahir, Advocate for Appellant.

Raja Hassan Akhtar, Advocate for Respondents.

Date of hearing: 29th June, 2004.

2004 C L C 1785

[Azad J&K]

Before Syed Manzoor H. Gilani, C.J.

Mst. SARWAR JAN---Appellant

Versus

ABDUR REHMAN --- Respondent

Appeal No. 16 of 2003, decided on 29th October, 2003.

(a) Azad Jammu and Kashmir Family Courts Act, 1993-----

----S. 5 & Sched.---Dissolution of marriage on ground of Khula--­Dissolution of marriage on ground of Khula was a pure question of law and could be raised even before the highest Court of appeal---Such question would not require any evidence or proof as it was the statement of wife alone which was the determinative factor in the case of Khula--­Aversion, disliking, hatred, incompatibility of temperaments, mental, intellectual, social,. cultural or ideological disparity or conflicts, which had the apprehension of distorting the family life and happiness, were sufficient grounds for a wife to seek Khula---Union; in the present case was forced for the sake of family honour, it. would breed rather than solve the problems---Separation as against forced union would end the perpetual disharmony and enable both to start a new comfortable life--­Court had to judge the possibility of future relations of the spouses in an. objective manner as to whether there was any chance of their re continuation and happy marital life in future, irrespective of fact who was at fault---Assuming the wife was at fault and she did not want to live with the husband .any more at any cost whatsoever, should she be made hostage of her fault---Court should hate the sin not the sinner and would be committing another fault if she was forced to live against her free will or was kept tied in wedlock as long as husband's ego was not satisfied--­Such was not the spirit of Qur'an, Hadith or law laid down in the light of Qur'an.

1980 CLC 1212; 1993 SCR 330; 2004 YLR 1719; PLD 1984 SC 329; 1983 CLC 2390; PLD 1985 SC (AJ&K) 60; 1992 CLC,937; PLD 1986 Quetta 185; PLD 1981 Kar. 474; Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97; Muhammad Yunus v. Mst. Razia Begum 1986 CLC 1996 and Dr. Akhlaq Ahmed v. Kishwar Sultana PLD 1983 SC 169 ref.

(b) Azad Jammu and Kashmir Family Courts Act, 1993------

----S. 5 & Sched.---Dissolution of marriage---Suit for dissolution of marriage---Wife had a right to obtain divorce from the husband and a Judge was obliged to order cancellation of contract of marriage when wife emphatically asserted that she could not keep the limits set by God---Equality was maintained between the spouses by allowing the wife that right through the intervention of Court as against absolute right of husband to divorce wife at any time and even without any reason---Wife was similarly empowered. to get the marriage cancelled on any reason whatsoever, whether husband was at fault or not-- -Unfettered powers of husband were counter-balanced by the right of wife to obtain dissolution of marriage through Court subject to the conditions that if the husband was not at fault, she was to compensate him and if he was found at fault, she was not to pay anything---That right could not be made hostage to husband's pleasure nor subjected to social or family bounds, except the satisfaction of the Court that in case marriage was not dissolved the spouses could not maintain the limits of God Almighty---However, as against marriage, which was a contract between the spouses only the dissolution of marriage had the apprehension of affecting the society and the State in case the spouses had minor children, that was why it was left to be decided by the Court---Wisdom behind subjecting the wife to seek dissolution of marriage through Court was to enable the Court to regulate the guardianship and maintenance problems of the minor or suckling children who remained attached to mother and not to the father.

(c) Azad Jammu and Kashmir Family Courts Act, 1993---

----S. 5 & Sched.---Dissolution of marriage on ground of Khula---As husband had the unfettered powers of dissolution of marriage by divorce, unless otherwise agreed upon between the spouses, the consequences of rescission of marriage by Talaq would be that the wife would be entitled to the entire amount of dower if not already received and other gifts, to the maintenance and residence during the period of Iddat, to the custody of children upto the age limit prescribed by Shariat on the husband's expenses, of course subject to their welfare and best interest---When the dissolution of marriage was sought by the wife who was otherwise not entitled to rescind the contract of marriage without any consideration on any of the grounds mentioned in Muslim Marriages Dissolution act, 1939, she could offer any consideration to the husband for her release from the marriage he if husband agreed, it would operate as Khula---If husband did not agree, she could approach Qazi, which was Court of competent jurisdiction in the modern era, who was bound to order dissolution of marriage, as it was right of the wife to obtain Khula if she felt constrained to seek it ---Qazi/Court was bound to award compensation to husband to be payable by the wife---Compensation was normally the amount equal to the dower and other gifts received by the wife---Court, however; could award even more than the dower and other gifts---Compensation in the case of breach of marriage contract, was for the injuries to feelings, affections, wounded pride, reputation as well as for the loss of marriage ---Khula could not be allowed on mere, asking of the wife or on her choice, but it could not be refused when conduct of the parties did not leave a room for their co-existence as wife and husband---Was better to err on the right side if at all it was an error--­States and Governments were under obligations not only under Qur'an and Sunnah, but also under international conventions as well to ensure dignity and rights of women during marriage and at its dissolution.

Balqis Fatima v. Najmul Ikram Qureshi PLD 1959 (W.P.) Lah. 566; PLD 1985 SC (AJ&K) 60; PLD 1986 Quetta 185; Humaira Mehmood v. The State PLD 1999 Lah. 494 and Mst. Naeeba Begum v. Abdul Khalilq 2004 YLR 1719 ref.

K.D. Khan for Appellant.

Abdur Rashid Abbasi for Respondent.

Date of hearing; 29th October, 2003.

2004 C L C 1925

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. Khawaja Muhammad Saeed and Chaudhary Muhammad Taj, JJ

DEFENCE DEPARTMENT OF PAKISTAN through Military Estate Officer, Muzaffarabad---Appellant

Versus

Sardar MUHAMMAD KHAN and another---Respondents

Civil Appeal No. 158 of 2002, decided on 18th June, 2004.

(On appeal from the judgment of the High Court, dated 31-5-2002 in Civil Appeal No.20 of 2001).

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

----S. 115---Revisional jurisdiction---Scope---Limitation---Even though no period of limitation was prescribed in the Limitation Act, 1908 or under relevant provisions of Civil Procedure Code, but practice had developed and the Courts insisted upon the observance of the same by litigant public to seek revisional jurisdiction of the High Court within a period of ninety days, the period fixed for availing Appellate jurisdiction of High Court--­Party availing revisional jurisdiction beyond such period was required to explain such delay.

Azad Government and others v. Mst. Razia Farooqi and others 1996 SCR 136; Government of Pakistan v. Muhammad Shafi Khan and others 2000 YLR 3058; Kesho Prasad Singh v. Mohoendra Prasad and others AIR 1933 Pat. 582; Ahmad Sheikh v. Paris Museum AIR 1959 (J&K) 76; Khadim Hussain and others v. Mst. Fazlan Bibi and others 1997 MLD 411; Federation of Pakistan v. Muhammad Sadiq 19876 CLC 1631 and Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

(b) Appeal (civil)---

---- Right of appeal was statutory right which could be availed by observing the mandatory requirements fixed by law---Courts of law however, in exceptional cases had refrained from taking hypothetical view in respect of procedural requirements laid down under law and in exceptional cases overlooked the procedural technicalities to meet the ends of justice.

(c) Administration of justice---

----To have a uniform policy, everyone who wanted to invoke the jurisdiction of the Court under any statutory provision for the redressal of his grievance, must fulfil the procedural requirements laid down by law.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

---S. 42(11)(d)---Appeal to Supreme Court---Limitation---If the amount or value of the subject-matter of the dispute in Azad Jammu and Kashmir was above Rs.50,000, an aggrieved party could seek indulgence of Supreme Court in respect of its grievance by filing a direct appeal under S.42(11)(d) of Azad Jammu and Kashmir Interim Constitution Act, 1974­--No limitation had been prescribed even under Supreme Court Rules, 1978---Scheme of law was that there should be an end to litigation--­Wherever a remedy had been provided, the procedure to avail the same and the period within which that remedy could be availed, was also provided under law or rules framed to carry out the purpose of such law---No matter was left open for indefinite period and it was not at the pleasure of an aggrieved contesting party to avail the jurisdiction of the next forum provided under law within indefinite period---Appeal particularly was a right which was provided by law and there was always limitation provided for availing said remedy---If within such period of limitation the right of appeal was not availed of, then the issues resolved by the Court of competent jurisdiction through judicial verdict would bar fresh litigation after prescribed period at the very outset, because in such case matter in dispute having been passed in 'rem judicatum' would bar the re-opening of the matter- --Litigation must come to an end even under public policy which had been owned by law that no individual could be vexed twice for the same cause---As finality was to be given to pronouncements of the Courts and no matter could be left open for indefinite period at the pleasure of contesting parties---Period must be provided to avail the jurisdiction of appeal before Supreme Court---Period for filing appeal before Supreme Court could not be beyond the period fixed for availing the jurisdiction of Supreme Court where special leave to appeal was required to he filed---Necessary addition should be incorporated 'in Supreme Court Rules 1978---Appeal, in the present case had been filed after five months, even the copies of documents were obtained by appellant beyond period of sixty days---No premium could be allowed to a negligent party for his indolent and lethargic attitude, when no explanation whatsoever had been tendered by the appellant---Appeal being barred by time, no good reason was to proceed with the appeal on merits.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant.

Farooq Hussain Kashmiri, Advocate for Respondent No. 1.

Date of hearing: 8th April, 2004.

2004 C L C 1938

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

Ch. MUHAMMAD YUNUS ARVI and 2 others---Petitioners

Versus

SOHAIL BOSTAN and 3 others---Respondents

Civil Review Petition No.2 of 2004, decided on 2nd July, 2004.

(In the matter of review from the judgment of this Court dated 26-2-2004 in Civil P.L.A. No. 118 of 2003).

(a) Fraud---

---- Meaning scope and effect---Fraud was suggestion, as a fact, of that which was not true, by one who did not believe it to be true---Fraud would include active concealment of a fact by one having knowledge or belief of fact, a promise made without any intention of performing it, any other act fitted to deceive and any such act or omission as law specially declared to be fraudulent---Fraud would vitiate the most solemn proceedings and no party should be permitted to repatriate benefit of his fraud---Fraud would vitiate all solemn acts.

Muhammad Yunus Khan and others v. Government of N.-W.F.P. and others 1993 SCMR 618; Saifur Rehman and others v. Haider Shah and another PLD' 1967 SC 344; Mst. Athar Jabeen and another v. Deputy Settlement Commissioner and another PLD 1993 Lah. 842; and Mst. Fahmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction---Scope---Writ jurisdiction, no doubt was a discretionary jurisdiction, however, the Court was not supposed to pass unguided and arbitrar3, orders---Court was expected to exercise its discretion in a judicious manner and the verdict given by High Court for and against a petitioner who had invoked writ jurisdiction, must be expressed in a well-reasoned judicial order---Discretion for or against a party must be exercised like all other judicial discretion in accordance with law---High Court, was not supposed to throw away writ petition merely on the ground that Court had discretionary power.

1995 MLD 1350; Nazar Hussain v. Mst. Azmat Bibi 2004 PCr.LJ 880 and Azad Government and others v. Haji Sumandar Khan 1995 MLD 1350 ref.

(c) Administration of justice---

---- An aggrieved party could attack the findings recorded by Presiding Officer of any Court before Appellate Court, however, it could not blame Presiding Officer of the Court in the garb of appeal.

Petitioner No. 1 in person.

Nisar Ahmed Anjum, Advocate for Respondents Nos.2 to 4.

Date of hearing: 26th May, 2004.