CLC 2005 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Board Of Revenue Sindh
Election Tribunal Punjab
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court Azad Kashmir

PLD 1991 Lah. 400 ref.

----"Shall"---Meaning and import.

Where word "shall" appears in a statute it is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or do something like it instead.

PLD 1991 Lah. 400 ref.

Muhammad Ahmed Arian for Appellant.

Khuda Dino Soomro for Respondents Nos. 1 to 16.

Official Representatives for Respondents Nos.17, 18 and 19.

CLC 2005 BOARD OF REVENUE SINDH 152 #

2005 C L C 152

[Board of Revenue, Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

MUHAMMAD HAROON---Appellant

Versus

MUHAMMAD ACHAR and others---Respondents

Case No.SROA-50 of 2002 decided on 17th February, 2003.

Sindli Goth Abad (Housing Scheme) Act (VII of 1987)---

----S. 9 [as amended by Sindh (Amendment) Ordinance (XXXVI of 2001)]---Appeal---Order of Executive District, Officer (Revenue) passed in appeal under S.9 of Sindh Goth Abad (Housing Scheme) Act, 1987, was final as no further appeal before Board of Revenue had been provided in the said Act.

Appellant in person.

Kazi Muhammad Saleh for Respondents Nos. 1 to 5.

CLC 2005 BOARD OF REVENUE SINDH 235 #

2005 C L C 235

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

Messrs STARCO LIMITED‑‑‑Appellant

Versus

SINDH AGRICULTURAL RESEARCH FARM, TANDO JAM through Director Finance, and others‑‑‑Respondents

Appeal No.SROA‑57 of 2002 decided on 24th July, 2003.

(a) West Pakistan Board of Revenue Act (XI of 1957)‑‑‑

‑‑‑‑Ss. 5(2) & 8‑‑‑Review of order by Board of Revenue‑‑‑Order passed by Assistant Mukhtiarkar in respect of revival of certain entries, was nothing but a mere compliance of orders of Board of Revenue which under S.5(2) of West Pakistan Board of Revenue Act, 1957 was the Highest Court of appeal and revision in revenue cases‑‑‑Since said order was neither original nor revisional, no appeal or revision was competent against that order, except review before Board of Revenue against original order under S.8 of West Pakistan Board of Revenue Act, 1957.

PLD 1986 Quetta 421; PLD 1976 SC 37; 1985 CLC 201 ref.

(b) West Pakistan Board of Revenue Act (XI of 1957)‑‑‑

‑‑‑‑Ss. 6(2) & 7(1)(2)‑‑‑West Pakistan Board of Revenue (Conduct of Appeals and Revision) Rules, 1959, R.5‑‑‑Appeal or revision against order passed by Member Board of Revenue before Full Board‑‑‑Order of Member (Judicial), Board of Revenue with certain modifications made in review was final order as contemplated by S.7(1) of West Pakistan Board of Revenue Act, 1957‑‑‑No further appeal; revision or review by any Revenue Officer/Revenue Court including Board of Revenue, was competent/admissible against said order which order as was laid down in S.6(2) of West Pakistan Board of Revenue Act, 1957, was the order of Board of Revenue‑‑‑Since order passed in the matter by Board of Revenue was in exercise of revisional jurisdiction, even no revision to Full Board as envisaged in proviso to S.7(2) of West Pakistan Board of Revenue Act, 1957 read with R.5 of Board of Revenue (Conduct of Appeals and Revision) Rules, 1959 was competent‑‑‑Chapter was, thus finally closed on revenue side.

‑‑‑‑S. 161‑‑‑Appeal‑‑-Competency‑‑‑Limitation‑‑‑Appeal against order passed by Assistant Mukhtiarkar on 16‑11‑1992 was filed before Assistant Commissioner on 24‑1‑2001, which otherwise was not competent and was barred by time‑‑‑Order passed on said appeal by Assistant Commissioner on 14‑4‑2001 without condonation of delay, was ultra wires and corum non judice and was perverse and based on conjectures and the facts mentioned therein were mostly contrary to record‑‑‑Assistant Commissioner did not even consider that appeal before him was badly time‑barred and he passed order without condoning delay which was not to be condoned impliedly‑‑‑Order passed in appeal by. Assistant Commissioner was illegal and void ab initio.

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

‑‑‑‑Ss. 161 & 164‑‑‑Appeal‑‑‑Competency‑‑‑Appeal under S.161 of West Pakistan Land Revenue Act, 1967 had been directed against order passed by Executive District Officer (Revenue) which he had passed in exercise of his revisional jurisdiction under S.164 of West Pakistan Land Revenue Act, 1967‑‑‑Since order of Executive District Officer (Revenue) was not an original order and original order was that of Assistant Commissioner, no further application or appeal was competent as provided in Second Proviso, to subsection (4) of S.164 of West Pakistan Land Revenue Act, 1967-‑‑Had the order of Executive District Officer (Revenue) been original order, then of course an appeal would have been competent against his order.

PLD 1994 Lah. 334; PLD 1987 Rev. 28; PLR 1987 Rev. 214 and PLD 1988 Rev. 38 ref.

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

‑‑‑‑S. 52‑‑‑Presumption in respect of entry in record‑of‑rights‑‑‑Entry in record‑of‑rights and a certified entry in the register of mutation would be, presumed to be true until contrary was proved or a new entry was lawfully substituted.

1988 CLC 1812 ref.

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

‑‑‑‑S. 181‑‑‑Bar of legal proceedings against Revenue Officer‑‑‑Revenue officer having passed order under law, was protected by S.181 of West Pakistan Land Revenue Act, 1967 which had contemplated that no suit, prosecution or other legal proceedings would lie against a Revenue Officer for anything done or ordered to be done in good faith by him in pursuance of said Act or of any other law for the time being in force.

Ghulam Hyder Khowja and Jhamat Jethanand for Appellant.

Syed Muhammad Haroon Rasheed for Respondent.

Mukhtiarkar (Revenue) Taluka Hyderabad (Respondent No.2).

Representative of Respondent No.3.

Tapedar of the beat along with the Record.

CLC 2005 BOARD OF REVENUE SINDH 296 #

2005 C L C 296

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

AISHA and others‑‑‑Applicants

Versus

Molvi ABDUL SATTAR‑‑‑Respondent

S.Review No.55 of 1997, decided on 8th June, 2004.

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

‑‑‑‑S. 166‑‑‑Clerical mistake‑‑‑Rectification of‑‑‑Applicants after a lapse of three years, six months and three days, had filed application for correction of order passed in review without assigning any reason for such an inordinate delay‑‑‑Application under S.166 of West Pakistan Land Revenue Act, 1967, could be filed at any stage, but if order sought to be corrected had been acted upon and valuable rights had been accrued, it would certainly be hit by principle of Locus Poenitentiae‑‑Nothing was on record to suggest that area of land allowed to respondent was jointly possessed by respondent and applicants‑‑‑Contention of applicants that non‑inclusion of their names in impugned order was a clerical error/mistake, was incorrect‑‑‑No substance was found in application of., applicants to add their names in impugned order by invoking provisions of S.166 of West Pakistan Land Revenue Act, 1967‑‑‑Application being devoid of force was dismissed, in circumstances.

(b) Words and phrases‑‑‑--

‑‑‑‑`Clerical mistake/error' defined and explained.

PLD 1983 SC (AJ&K) 197 ref.

‑‑‑‑Ss. 7, 10, 16, 161 & 164‑‑‑Powers .of Executive District Officer (Revenue)‑‑‑Competency of Revenue Officer to make reference to Board of Revenue‑‑‑Executive District Officer (Revenue), being appellate/revisional Authority, was required to decide appeal/revision tiled before him and pass appropriate orders under law‑‑‑Revenue Officer hearing appeal or revision, was not competent to make any reference or write any letter to the Board of Revenue seeking instructions/guidance in a judicial matter.

Nabi Bukhsh A. Gujar for Applicants Nos.1, 2 and 3.

Gianchand H. Keshwani for Respondent.

Election Tribunal Punjab

CLC 2005 ELECTION TRIBUNAL PUNJAB 172 #

2005 C L C 172

[Election Tribunal, Punjab]

Before Mr. Justice Tanvir Bashir Ansari, Election Tribunal

Haji Ch. MASOOD AKHTAR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 7 others---Respondents

Election Petition No.2 of 2002, decided on 19th July, 2004.

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

----Ss. 52, 54, 55, 56 & 63---Election petition---Maintainability--Election petition filed by unsuccessful candidate against returned candidate challenging his election and its accompanying Annexures, were not duly verified/signed by petitioner/unsuccessful candidate--Representation of the People Act, 1976 was a complete and self-contained Code and Provisions of S.55(3) of the said Act required that every election petition and every Schedule or annex to that petition should be signed and verified in the manner laid down in C.P.C.---Effect of non-compliance of mandatory provisions of S.55(3) of Representation of the People Act, 1976 or of defective verification had been provided in S.63 of the said Act, whereby Election Tribunal was obliged to dismiss election petition if provisions of Ss.54 & 55 of the Act had not been complied with and penal consequences provided under said special law had made requirement of valid verification of election petition as a sine qua non of election petition itself and a defect or omission in that behalf would render election petition as incompetent---Verification of election petition under Representation of the People Act, 1976 was not merely a procedural requirement, but was mandatory in nature and it was obligatory upon petitioner to verify the same in accordance with law--None of the requirements of law regarding verification of election petition having been fulfilled by petitioner, it was liable to be dismissed being not competent---Delay in taking objection with regard to maintainability of election petition would not amount to waiver or estoppel because provisions of Representation of the People Act, 1976 were mandatory in nature, and there could be no waiver or estoppel against a statute.

Mst. Asif Nawaz Fatiana v. Walayat Shah 2003 CLC 1896; Alain Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250 and Rafaqat Hussain Awan v. Deewan Ali Chughtai and 18 others 2004 CLC 432 ref.

(b) Administration of justice---

----Where the law prescribed the method of doing a thing in a particular manner, same had to be done in that manner or not at all.

Muhammad Ikram Chaudhry for Petitioner.

Mujeeb-ur-Rehman Kiani for Respondent No.3.

CLC 2005 ELECTION TRIBUNAL PUNJAB 219 #

2005 C L C 219

[Election Tribunal Punjab]

Before Justice Tanvir Bashir Ansari, Election Tribunal

Mian MUHAMMAD RIAZ ‑‑‑ Petitioner

Versus

Khawaja MUHAMMAD ASIF and 4 others‑‑‑Respondents

E.ps. Nos.3 and 22 of 2002, decided on 15th June, 2004.

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

‑‑‑‑Ss. 12, 14, 52 & 78‑‑‑Election petition‑‑‑Nomination papers‑‑Rejection of‑‑‑Corrupt practice‑‑‑Recounting of votes‑‑‑Objection was filed on behalf of petitioner against nomination papers of candidate on ground that candidate being Bank defaulter, was not eligible to contest election‑‑‑All or any of the amounts which was found outstanding against candidate were duly paid by him before his nomination papers were rejected‑‑‑Petitioner had also failed to establish that candidate had committed such default within meaning of S.78 read with S.12(2)(f) of Representation of the People Act, 1976, which would amount to a corrupt practice‑‑‑Petitioner having not raised any objection regarding irregularity in the count of votes at the time of consolidation of result, he could not be allowed to take same through election petition.

Rao Tariq Mehmood v. Election Commissioner of Pakistan PLD 2003 Lah. 165 and Rao Tariq v. Election Tribunal Punjab Lah. PLD 2003 Lah. 169 ref.

Abid Hassan Minto for Petitioner.

Rashdeen Nawaz for Respondents.

Date of hearing: 23rd April, 2004.

CLC 2005 ELECTION TRIBUNAL PUNJAB 535 #

2005 C L C 535

[Election Tribunal Punjab]

Before Justice Nasim Sikandar, Election Tribunal

Haji MUHAMMAD SAIFULLAH KHAN‑‑‑Petitioner

Versus

AHMED MEHMOOD, ZILA NAZIM, DISTRICT Government RAHIM YAR KHAN‑‑‑Respondent

Files Nos. 18(23) and 18(24) of 2002‑Law, decided on 31st March, 2004.

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

‑‑‑‑Ss.79, 82, 92, 95 & 97‑‑‑Prosecution of Zila Nazim and declaring him to be disqualified on certain allegations‑‑‑Petitioners in election petition, had sought prosecution and disqualification of Zila Nazim from his office under Ss.79, 82 & 92 of Representation of the People Act, 1976 alleging that he misused his official position to influence results of election‑‑‑Proceedings under S.79 of Representation of the People Act, 1976 which deal with bribery, could be initiated either by police or at the complaint of any party before the Sessions Judge‑‑‑Person in service of Pakistan could not, be prosecuted without a complaint made by an order or under authority of Election Commission or Commissioner‑‑Petitioner, in order to seek such permission was required to establish that Zila Nazim was a person `in the service of Pakistan'‑‑‑No argument had been addressed that Zila Nazim fell in that category, whereas Zila Nazim had placed on record a certificate from concerned Accounts Officer stating that he was not charging any salary to perform duties of Zila Nazim‑‑‑Election Commission of Pakistan, could not by itself make a certain action to be a crime nor could prescribe any punishment therefor‑‑‑Prayer made in election petition by petitioners regarding application of provisions of Ss.79 & 82 of Representation of the People Act, 1976, had become infructuous, in circumstances‑‑‑Petitioners had alleged that in one of the newspapers Zila Nazim was shown sitting in the meeting accompanied by District Police Officer and District Coordination Officer‑‑‑Such photograph would not by itself go to establish that Zila Nazim was showing support for a particular candidate in election‑‑‑Contents of election petitions filed by petitioners as well as Press Clipping sought to support the allegations were contradictory and did not inspire confidence‑‑‑Allegations made against Zila Nazim were too vague and uncertain to be crystallized even by evidence at a subsequent stage‑‑‑Material so far brought on record did not help forming even a tentative opinion qua the veracity of allegations contained in petitions‑‑‑No material was available to support allegations that any District Government employee was under a directive of Zila Nazim to support a particular candidate‑‑‑Law did not forbid a Zila Nazim to have a personal inclination or sympathy with a particular candidate for any elected office in district‑‑‑Only legal requirement was that he would not exercise his position" in such a manner to affect the result of election of that candidate‑‑‑Involvement of a Zila Nazim in an election campaign on the strength of his office as well as official sources at his disposal was something that needed to be established by record‑‑Mere news items mostly based upon the opinion of correspondents, would not answer that requirement‑‑‑Prayer of petitioners was refused.

Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC. 473; Haji Muhammad Afzal v. Ch. Muhammad Altaf and others 1986 SCMR 1736; Mian Zia‑ud‑Din v. Punjab Local Government Election Tribunal, Lahore and 2 others 1984 CLC 1544 and Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 ref.

Petitioner in person.

Umar Atta Bandial for Respondent

Date of hearing: 27th February, 2004.

CLC 2005 ELECTION TRIBUNAL PUNJAB 1493 #

2005 C L C 1493

[Election Tribunal Punjab]

Before Justice Syed Jamshed Ali, Election Tribunal

MUHAMMAD SAEED---Petitioner

Versus

TAHIR MALIK and others---Respondents

Election Petition No.85 of 2002, decided on 16th July, 2004.

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

----Ss. 54, 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Non-verification of schedule and documents filed with petition---Effect---Neither petitioner had relied on any such documents nor any document placed on record was in the nature of additional/supplementary information on facts---Provision of S.55(3) of Representation of the People Act, 1976 held, would not attract to such documents.

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

---Ss. 54, 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15(3)---Election petition not verified in prescribed manner---Non-raising of such objection in written statement---Effect---Verification of petition in accordance with requirements of O.VI, R.15(3), C.P.C. was not a mere formality as verification of its contents on basis of knowledge and belief might have different consequences---Section 63 of Representation of the People Act, 1976 explicitly mandated dismissal of election petition for non-compliance of Ss.54 & 55 thereof---Mandatory provision must be fulfilled exactly---Such question being a pure question of law not requiring any investigation into facts, could be considered by Tribunal suo motu---Election petition was dismissed.

Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83; Iqbal Zafar Jhagra v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 and Asif Nawaz Fatayana v. Walayat Shah 2003 CLC 1896 rel.

----Mandatory provision must be fulfilled exactly.

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

---Ss. 54 & 99(cc)---University Grants Commission Act (XXIII of 1974), S.8---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Conduct of General Election Order (7 of 2002), Arts.3 & 8-A---Constitution of Pakistan (1973), Art.225---Election petition---Jurisdiction of Election Tribunal to examine legality, validity or otherwise of equivalence certificate issued to returned candidate by University Grants Commission/Higher Education Commission---Scope---Election of returned candidate could not be challenged except by way of election petition--Neither Conduct of General Election Order No.7 of 2002 nor Representation of the People Act, 1976 had excluded such jurisdiction of Tribunal--Question whether returned candidate was disqualified for not being a graduate possessing a bachelor degree recognized as equivalent by University Grants Commission would be open to examination by Tribunal particularly in view of Art.225 of the Constitution---Principles.

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

----Ss. 54(b) & 63---Election petition---Issuance of notice to returned candidate without copy of petition---Effect---Mere issuance of notice would not be sufficient---Copy of petition was required to be served on returned candidate either personally or through registered post---Noncompliance of provisions of S.54 of Representation of the People Act, 1976 would entail dismissal of petition---Provision of S.63 of Representation of the People Act, 1976. providing for a penal consequence would be construed as mandatory---Non-compliance of a mandatory provision could not be condoned---Election Tribunal in case of such mandatory provision would have no option, but to enforce same---Election petition was dismissed.

M. Karu Nanthi v. H.V. Honda AIR 1983 SC 558 fol.

(f) Interpretation of statutes---

---Mandatory provision, non-compliance of---Effect---Non-compliance could not be condoned---Court would have no option, but to enforce mandatory provision.

M. Karu Nanthi v. H.V. Honda AIR 1983 SC 558 fol.

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

----S. 64-Provisions of S.64 of Representation of the People Act, 1976---Directory in nature.

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

----S. 64---Election petition---Non-filing of affidavit of witness along with petition---Effect---Election Tribunal could examine such witness.

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

----S. 99(CC)-University Grants Commission Act (XXIII of 1974), S.8---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Conduct of General Election Order (7 of 2002), Arts.3 & 8-A-Constitution of Pakistan (1973), Art.225---Election petition---Equivalence Certificate issued to returned candidate by University Grants Commission/Higher Education: Commission---Validity---Issuance of certificate by Director Accreditation of Commission without verifying documents submitted by candidate---Non-placing of matter before Equivalence Committee of Commission either before or after issuance of such certificate--Basis of such certificate not disclosed---Issuance of such certificate on date of application by applicant---Duration of degree possessed by returned candidate was four years---Non-submission of documents before, Tribunal by returned candidate, which he claimed to have submitted before Commission---Held, such facts and circumstances would cast doubt on veracity of Equivalence Certificate issued by Commission.

Dr. Mohy-ud-Din for Petitioner.

Dr. A. Basit for Respondents.

Date of hearing: 16th July, 2004.

CLC 2005 ELECTION TRIBUNAL PUNJAB 1521 #

2005 C L C 1521

[Election Tribunal Punjab]

Before Justice Syed Jamshed Ali, Election Tribunal

QAISER AHMED SHEIKH---Petitioner

Versus

MUHAMMAD TAHIR SHAH and others---Respondents

Election Petition No.195 of 2002, decided on 19th July, 2004.

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

----Ss. 52, 55, 70, 78, 81 & 83---Civil Procedure Code (V of 1908), S.139---Oaths Act (X of 1873), S.7---Election petition challenging election of the returned candidate---Election of returned candidate had been called in question in election petition by the unsuccessful candidate---Case of petitioner was that illegal practices were committed before election, at the time of de-limitation, setting up of Polling Stations, appointment of Polling Staff, election campaigning itself, during the Polls and immediately after the Polls---Written. statement filed by returned candidate revealed that a number of preliminary objections were taken against the election petition including non-compliance of provisions of S.55(3) of Representation of the People Act, 1976 and it was alleged that affidavits filed by petitioner with his election petition did not fulfil the requirement of law; that oath on verification of election petition was not attested in accordance with instructions and rules of High Court and that very "schedule or annex" filed on record of election petition or exhibited at the trial was not verified by petitioner---Validity---Object of oath was to confront the maker with Almighty God and to ensure truth of declaration and that was to be made before a person duly authorized---Petitioner neither had appeared before Oath Commissioner nor there was prescribed certificate as to how the Oath Commissioner had satisfied himself of the identity of maker of oath---Verification on election petition and accompanying affidavit was not attested as required by law---Mandatory provisions of S.55(3) of Representation of the People Act, 1976 having not been complied with, Election petition was liable to be dismissed on that sole ground---Pre-election complaint of petitioner regarding de-limitation, had no merits as no evidence was available on record that result of election was materially affected---Other complaint against returned candidate was that election campaign was launched by Tehsil Nazim who was his real nephew and said Nazim had participated in election Jalsas of the returned candidate and had made certain other arrangements---Statement of petitioner was a self-serving statement and allegations could not be proved by independent evidence---Said allegation could not be maintained---Petitioner had failed to prove that the returned candidate had been guilty of other corrupt or illegal practice as alleged by him against the returned candidate---Election petition was dismissed, in circumstances.

Engineer Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250; S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486; Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896; M. Kaurnanidhi v. H.V. Honda AIR 1983 SC 558; Sattva Narain v. Dhuja Ram and others AIR 1974 SC 1185; Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766; Mian Shah Jehan v. Abdus Subhan Khan and others 1988 CLC 750; Ibrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175; Mehr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289; Rai Asghar Ali Khan v. Returning Officer and other PLJ 1999 Lah. 632; Haji Aziz-ur-Rehman Chan v. Mian Abbas Sharif and another 1994 MLD 2293; Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382; Hakam Ali and others v. Deputy Commissioner/Election Tribunal and other PLD 1982 SC 172; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Jamaluddin Shah v. Abdul Sattar and 13 others PLD 1986 Journal 146 and Mir Beharam Khan Marri v. Nawabzada Mir Gazain 1996 CLC 963 ref.

Khizar Abbas Khan for Petitioner.

Malik Rab Nawaz for Respondent.

Dates of hearing: 24th March, 5th, 8th, 13th, 20th, 21st, 23rd April and 6th May, 2004.

CLC 2005 ELECTION TRIBUNAL PUNJAB 1550 #

2005 C L C 1550

[Election Tribunal Punjab]

Before Justice Mian Hamid Farooq, Election Tribunal

HAROON AKHTAR KHAN---Petitioner

Versus

Sheikh AMJAD AZIZ and others---Respondents

Election Petition No.59 of 2002 decided on 16th February, 2004.

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

----Ss. 52, 54, 68, 69 & 70-Conduct of General Election Order, (7 of 2002), Art.8-A---Election petition---Declaring election of returned candidate void and declaring unsuccessful candidate as returned candidate---Unsuccessful candidate in his election petition had called in question Notification issued by Election Commission whereby respondent was declared as returned candidate---Election of returned candidate had been challenged mainly on the grounds that returned candidate was neither a graduate nor passed any Bachelor degree and despite that his nomination papers were unlawfully accepted by Returning Officer; that the returned candidate had deliberately fabricated and forged B.Sc. "pass result intimation" and that returned candidate had not even passed his Intermediate Examination---Evidence on record had shown that returned candidate had passed examination of Matriculation, C.Com. and D.Com. and it could not be proved on record as to whether diplomas of C.Com. and D.Com., were equivalent to intermediate examination---Admitted position was that returned candidate had never passed even Intermediate examination---Returned candidate had claimed that he had passed Bachelor Degree, but no such degree was ever issued to him despite he applied University Authorities for issuance of B.Sc. degree---At the time of filing of nomination papers, returned candidate had only produced Photocopy of B.Sc. result intimation card and no other document was submitted before Returning Officer to show that he was a graduate---Only on basis of Photocopy of pass result intimation it could not be legitimately argued that on the day of filing of nomination papers, returned candidate was possessed of a bachelor degree---Returned candidate had failed to produce any evidence to demonstrate that he was in possession of bachelor degree---University Authorities, after' thorough inquiry, had come to the conclusion that "pass result intimation" produced by returned candidate was a fake document on which signatures of two University employees were forged and Gazette notification had been fraudulently manipulated---Returned candidate on date of filing nomination papers not possessing Bachelor Degree, his candidature to contest General Election, suffered from inherent defect in view of Art.8-A of Conduct of General Election Order, 2002 and he was not qualified to be elected---Election of returned candidate was declared void and petitioner who had secured second highest votes in election, was declared as returned candidate---As election of returned candidate had been declared null and void and petitioner/unsuccessful candidate had been declared returned candidate, facts and circumstances of case did not justify re-election---Election petition competently filed by petitioner was allowed.

Secretary v. Javaid Hashmi and others PLD 1989 SC 396; S. M. Ayyub v. Yousaf Shah PLD 1967 SC 486; Engineer Zafar Iqbal Jhagra v. Khalil-ur-Rehman 2000 SCMR 250 ref.

Ejaz Ahmad Awan for Petitioner.

Naseer Ahmad Butta for Respondent No. 1.

Gohar Razzaq Awan for Respondent No.5.

Respondent No.4 in person.

Respondents Nos.2, 3, 6 to 10 proceeded ex parte.

Date of hearing: 28th January, 2004.

CLC 2005 ELECTION TRIBUNAL PUNJAB 1577 #

2005 C L C 1577

[Election Tribunal Punjab]

Before Justice Syed Zahid Hussain, Election Tribunal

Ch. MUHAMMAD SABOOR KASANA---Petitioner

Versus

MUHAMMAD AJMAL CHEEMA and another---Respondents

Election Petition No.31 of 2002 heard on 17th September, 2004.

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

---Ss. 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15(2)---Election petition---Verification not in the manner prescribed in O.VI, R.15(2), C.P.C.---Effect---Provisions of S.55(3) & 63 of Representation of the People Act, 1976 were mandatory warranting strict compliance, failure whereof would result in dismissal of petition---Election petition was dismissed in circumstances.

Asif Nawaz Fatiana v. Walayat Shah 2003 CLC 1896; Pir Shaukat Hussain Shah v. Tanvir Asia Malik and 2 others PLJ 2004 Lah. 296; Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914 and Abdul Rahim Khoso v. Mir Hazar Khan Bijrani 2004 CLC 77 rel.

Dr. Mohy-ud-Din Qazi and Qazi Muhammad Latif for Petitioner.

Ch. Fawad Hussain and Ashtar Ausaf Ali for Respondents.

Date of hearing: 17th September, 2004.

Karachi High Court Sindh

CLC 2005 KARACHI HIGH COURT SINDH 3 #

2005 C L C 3

[Karachi]

Before Muhammad Sadiq Leghari, J

PAKISTAN STATE OIL COMPANY LIMITED---Petitioner

Versus

SIKANDAR A. KARIM and others---Respondents

C.Ps. Nos.S-877 and S-901 of 2003, decided on 13th April, 2004.

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

----S. 15(2)(iii)(a)---Civil Procedure Code (V of 1908), O.I, R.10--Application of sub-tenant to become party to ejectment proceedings filed against tenant---Scope---Lease agreement did permit tenant to sub-let property, but there was no privy between landlord and sub-tenant---So far as landlord was concerned, sub-tenant for not having independent or separate right in tenancy would have to sail or sink with tenant and could not be acknowledged as co-tenant---Application of sub-tenant was dismissed.

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

----S. 15(2)(iii)(a)(vii)---Constitution of Pakistan (1973), Art.199--Constitutional petition ---Ejectment order---Prayer of tenant to place on record some documents for decision of Constitutional petition--Validity---Impugned order had been recorded on basis of material placed before Rent Controller, legality of which would be examined---High Court refused to accept documents.

----S. 15(2)(vii)---Bona fide personal need of landlord---Without express and clear plea showing the purpose for which demised premises was required by landlord, Court could neither consider nor decide question of requirement and its reasonableness.

(d) Evidence---

----Evidence beyond scope of pleadings deserves to be excluded from consideration, as law does not permit it.

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

----S. 15(2)(vi)(vii)---Bona fide personal need of landlord--= Reconstruction of demised plot---Plea of landlord that he would raise construction upon plot and use some shops thereof himself and give others to third party---Validity---Plan of proposed construction showed large number of shops, thus, landlord was required to say expressly as to how he wanted to use them---Such plea would not discharge responsibility of proving personal requirement reasonably and in convincing manner to satisfaction of Court---Landlord was legally required first to accommodate tenant for running business at same level, but in plan of proposed construction no such provision was available---In absence of any such satisfactory explanation, ground of reconstruction for commercial performance could not be accepted-- -Ejectment petition was dismissed in circumstances.

Messrs Mustafa Oil Mills v. Muhammad Asif 1997 CLC 339 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846 ref.

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

----S. 15(2)(vi)---Reconstruction of premises---Construction plan not having any provision for accommodating tenant---Validity---Presence of provision in construction plan for accommodating tenant after reconstruction was essential---In absence of any such satisfactory provision, ground of reconstruction could not be accepted nor ejectment would be ordered---Principles.

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

----Ss. 10(4) & 15(2)(ii)---General Clauses Act (X of 1897), S.27--Default in payment of rent---Deposit of rent in Court after non-encashment of cheques sent to landlord through registered post containing covering letter of tenant---Tenant brought in evidence postal registration receipt, A.D. Receipt and copy of covering letter---Landlord did not enter witness-box to deny receipt of such letter/cheque, but his attorney orally denied the same---Validity---Ordinary and common mode of communication between citizens was post---Registration receipt showing correct address would be evidence of dispatch and delivery of material---Non-disputing correctness of address mentioned on postal receipt had confirmed dispatch of envelope/material to landlord---In presence of such postal receipt and covering letter, presumption would be that landlord had received envelope containing cheques, unless he proved the contrary---Oral denial by attorney would not rebut such presumption as he did not say as to what had been received by landlord in envelope---Tenant was justified in depositing rent with Rent Controller and had not committed wilful default in payment of rent ---Ejectment petition was dismissed in circumstances.

Muhammad Bashir v. Sakhawat Hussain 1991 SCMR $46 and Rasheed Ahmed v. Messrs Friends Match Works PLD 1989 SC 503 rel.

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

----S. 15(2)(ii)---Limitation Act (IX of 1908), S.3---Laches---Default in payment of rent---Filing of ejectment petition after 10 years of alleged default---Limitation---No limitation fixed in Sindh Rented Premises Ordinance, 1979 for filing ejectment petition---Where provisions of Limitation Act, 190-8 did not apply, then principle of laches would play a role---Tenant had not pleaded waiver by landlord---Silence for a decade after alleged default was sufficient for tenant to believe that landlord had no mind to come for his ejectment, thus, he continued with his business under such belief---Ejectment petition was hit by principles of laches.

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

----S. 3---Laches---Where provisions of Limitation Act, 1908 do not apply, then principle of laches would play a role.

Agha Faqir Muhammad and Shaukat Hayat for Petitioner.

S. Sajjad Ali Shah for Respondents.

Date of hearing: 29th January, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 25 #

2005 C L C 25

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

MUHAMMAD ZAKIR --- Petitioner

Versus

DIRECTOR KATCHI ABADI and others---Respondents

Constitutional Petition No.2497 of 2001, decided on 28th August, 2003.

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

----Ss. 105 & 108---Constitution of Pakistan (1973), Art.199--Constitutional petition---Plot in dispute was, allotted to predecessor-in-interest of petitioner way back in 1951 together with possession and rights, in the same as well as rights for transfer to petitioner---Occupation of petitioner over plot in dispute 'was admitted by respondent, but no regularization of same was effected---Petitioner after failing to obtain redress from concerned Authorities, filed Constitutional petition and by a consent order dated 27-8-2002 respondents were directed to survey the plot and pass allotment order/grant lease in favour of petitioner according to law---Petitioner applied for lease of allotted plot at rate of Rs.300 per square yard, in 1998, but rates having since been revised to Rs.4500 per square yard, respondent had contended that petitioner was liable to pay revised rates---Validity---Petitioner was entitled to execution of lease in his favour long before filing of petition and it was only due to failure of respondent to perform its duly ordained by law that petitioner was constrained to move High Court---Respondent could demand only such amount as was payable by petitioner when right to execute lease in his favour occurred---No justification was found for claiming revised rates and lease could be executed after recovering charges payable on the date when right in favour of petitioner accrued.

Ibadul Hussain for Petitioner.

Manzoor Ahmad for Respondents.

CLC 2005 KARACHI HIGH COURT SINDH 48 #

2005 C L C 48

[Karachi]

Before Sarmad Jalal Osmany, J

Mst. YASMEEN MALIK and others---Petitioners

Versus

Mrs. SAFIA MALIK and others---Respondents

Constitutional Petition No.S-331 of 2003, decided on 23rd June, 2004.

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

----Ss. 15(2)(vii)---Bona fide personal need of landlord---Landlady had claimed that she required shops to question to establish her business with her son---Landlady, in cross-examination had admitted that she was running a business in some other premises, but nothing had been asked of her whether those premises were sufficient for running the new business which she proposed to do along with her son---Son of landlady had also stated in his affidavit in evidence that he intended to start a business along with his mother in the shops in question and again nothing had been asked in cross-examination as to the nature of intended business or whether he in fact intended to start such business---All that landlord was required to do in respect of personal bona fide need, was to state in Court his bona fide need, whereupon the burden would shift to the tenant to establish the contrary---Need of the landlord should be bona fide and ejectment of tenant should not be sought for some other ulterior purpose or on a mere whim or fancy---Both landlady and her son deposed before Rent Controller that they required shops in question in order to establish a business ---Even if landlady had admitted in cross-examination that she was running another business in another premises and her son had also admitted that he was also running a business with his friend, but said admissions were not sufficient to dispel stand of landlady and her son that they required shops in question in good faith for their own personal bona fide need---Landlord/landlady had all the right to open up any number of business in the premises belonging to them or for that matter elsewhere which was not questionable by the tenant except where mala fides could be established--- Landlady having established her personal bona fide needs and that of her son for the shop in question, Rent Controller had rightly allowed ejectment application for ejectment of tenant on ground of her personal bona fide need.

Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233; Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Muhammad Aslam v. Muhammad Aslam 1987 CLC 686; Mst. Hajiyani Ayesha Bai v. Zahid Hussain 1999 MLD 2761; Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Muhammad Anwar v. Jamaluddin 1996 SCMR 771; Mst. Razia Begum v. Muhammad Rafi 1986 SCMR 309; Saira Bai v. Anis-ur-Rehman 1989 SCMR 1366 and S.M. Nooruddin v. Saga Printers 1998 SCMR 2119 ref.

Faisal Arab for Petitioners.

Muhammad Ismail Memon for Respondents.

Dates of hearing: 30th October, 2003 and 21st June, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 83 #

2005 C L C 83

[Karachi]

Before Rahmat Hussain Jafferi, J

MADERSSA DARUL FAZAL HALANI---Applicant

Versus

MUHAMMAD RAMZAN KASHMIRI---Respondent

Civil Revision No.82 of 1998, decided on 12th February; 2004.

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

----Arts. 30 & 133---Not challenging any piece of evidence during crossexamination---Effect---Presumption would be that such piece of evidence was accepted as true by other side.

Muhammad Akhtar v. Manna 2001 SCMR 1700 rel.

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

----S. 8---Words "entitled to possession" as used in Specific Relief Act, 1877---Meaning and scope ---Possessory rights or interest in property--Nature of---Possessor's right to maintain ejectment against other person on basis of possessory rights or interest in property---Principles stated.

The words "entitled to possession" mean a right to possession on the basis of ownership or possession of which person claiming has been dispossessed. There may be a title by contract, inheritance, prescription or even by possession and the last will prevail where no preferable title is shown. The lawful possession of land is sufficient evidence as owner as against a person, who has no title whatsoever and is a mere trespasser. Possession is a good title against all persons, except the rightful owner and entitles the possessor to maintain ejectment against any person other than such owner, who dispossessed him. A person in possession without title has an interest in the land possessed which, unless and until the true owner interferes, he can dispose of by execution of sale in just the same manner as if his title was unimpeachable. The possessory rights or interest of a person in possession of property is not only transferable, but also heritable, therefore, he can dispose of the same by deed, gift, Will or by execution of sale.

Ismail Ariff v. Mahomad Ghous, ILR 20 Cal. 834 (PC); ILR 6 Bombay 215; AIR 1958 Mad. 497; Gobind Prasad v. Mohan Lal ILR 24 All. 157; Asher v. Whitlock LRI QB 1 and Shri Gopal v. Ayesha Begum ILR 29 All 52 fol.

Abdul Haq Comboh for Applicant.

Muhammad Sadiq Ansari for Respondent.

Date of hearing: 30th January, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 88 #

2005 C L C 88

[Karachi]

Before Sabihuddin Ahmed and Syed Ali Aslam Jafri, JJ

Syed TANVIR ALI ---Petitioner

Versus

MALIR CANTONMENT BOARD and others---Respondents

C.P. No.319 of 1998, heard on 29th March, 2002.

(a) West Pakistan Motor Vehicles Ordinance (XIX of 1965)---

----S. 44---Cantonments Act (II of 1924), Ss.2, 117 & 210---Route permit granted by Provincial Transport Authority for plying commercial vehicles in Cantonment area---Jurisdiction of Cantonment Board to impose further conditions and restrain entry of such vehicles in Cantonment area---Scope---Power of Cantonment Board to restrict entry of persons or vehicles must be spelt out from statute---Cantonment Board's decision in this regard must be conscious conforming to the law and rights guaranteed by the Constitution---Vocation of transportation of commercial vehicles was not covered by S.210 of Cantonments Act, 1924---Cantonment area would fall within territorial limits of a Province in which it situates---Transporter possessing valid route permit granted by Authority, could not be required by Cantonment Board to obtain a separate licence for allowing entry of his vehicles in Cantonment area.

Pakistan v. Province of Sindh PLD 1975 SC 37 fol.

(b) Cantonments Act (II of 1924)---

----S. 3---Constitution of Pakistan (1973), Art.199---Cantonment area would fall within territorial limits of a Province in which it situates.

Pakistan v. Province of Sindh PLD 1975 SC 37 fol.

Shoukat Ali Shaikh for Petitioner.

Khalid Daudpota and Faisal Khalid for Respondent No. 1.

Abbas Ali, A.A.-G. for Respondents Nos.4 to 6.

Date of hearing: 29th March, 2002.

CLC 2005 KARACHI HIGH COURT SINDH 123 #

2005 C L C 123

[Karachi]

Before Anwar Zaheer Jamali and Gulzar Ahmed, JJ

YOUSAF MUNEER SHAIKH and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

C.P. No.D-715 of 2004, decided on 21st July, 2004.

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

----Ss. 27, 52, 57, 68 & 103-AA---Remedy of aggrieved candidate against election results---Scope---General remedy of aggrieved candidate was to present election petition before Election Tribunal having power to declare election of returned candidate void on any ground stated in S.68 of Representation of the People Act, 1976---Election Commission had power to declare a poll void subject to various conditions spelled out from language of S.103-AA of the Act---"Satisfaction" of Commission contemplated under S.103-AA of the Act could not be arbitrary or fanciful,-but should be in accord with view expressed by Supreme Court in case of Syed Saeed Hassan v. Pyar Ali and others PLD 1976 SC 6--Commission could order fresh poll on one or more polling stations on the ground provided under S.27.

Mian Muhammad Jahangir and others v. Government of Punjab through Secretary, Housing and Physical Planning, Lahore and others 1999 SCMR 2051 and Master Construction Ltd.'s case AIR 1966 SC 1047 ref.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 fol.

(b) Interpretation of statutes---

---- Provision of law is to be given its literal meaning as evidenced from its language---Each and every word used by Legislature has its own import/significance and no word is to be deemed redundant.

----Ss. 42 & 103-AA---Election Commission declared void whole election process in four constituencies and directed holding of fresh bye-elections---Validity---Material available with Commission while invoking its jurisdiction under S.103-AA of Representation of the People Act, 1976 consisted of reports of Home Secretary, Law Enforcing Agencies, Returning Officer/Assistant Returning Officers and complaints in forms of telegrams/letters and according to such reports, adequate safety measures had been taken through Law Enforcing Agencies to ensure completion of election process in a smooth and peaceful manner---Due to such arrangement, polling had continued without any disturbance or interruption except stoppage of polling on two polling stations for a short period due to incidents of indiscriminate firing outside polling stations, but same had again resumed and concluded as per schedule-Polling Officers in such situation, if at all prevailed, had power under S.27 of Act, 1976 to stop polling and inform Returning Officer, who in turn 'would report matter to Commission, which could direct fresh poll at such polling stations ---Such authority had not been exercised by Polling Officers---Such reports from independent sources had been rejected by Commission without cogent reasons and further inquiry---Commission had brushed aside affidavit of petitioner without assigning any reason--Commission had accepted such complaints as true for no valid reason, which were neither supported by complainants nor same were corroborated by reliable material---Such incidents resulting in loss of several human lives could not be made basis to declare whole election process void, unless same was shown and proved to have any material bearing on election process/result or petitioners/returned candidates were responsible for same---No material was available with Commission for taking impugned action---High Court accepted Constitutional petition, declared impugned order without lawful authority and of no legal effect with directions to Commission to declare results of such constituencies in terms of S.42 of Act, 1976 without delay as per results submitted by Returning Officers.

Kunwar Khalid Younus v. Federation of Pakistan PLD 2003 Kar. 209; Messrs Joint Venture KG/KIST v. Federation of Pakistan PLD 1996 SC 108; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Mohtarama Benazir Bhutto v. President of Pakistan PLD 2000 SC 77; Abdul Hamid Khan Achakzai v. Election Commissioner of Pakistan, Islamabad and 24 others 1989 CLC 1833; Raja Muhammad Afzal v. Ch. Muhammad Ali Altaf Hussain 1986 SCMR 1736; Haji Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352; Mehmood Khan v. Election Commission of Pakistan 2003 YLR 1413; Bartha Ram v. Lala Mehar Lal Bheet 'and another 1995 SCMR 684; Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Abdul Hafeez Pirzada v. Agha Ghulam Ali Buledi and others 1991 CLC 2093; Syed Muhammad Khalil-ur-Rehman Chishti v. Shamshad Khan and others 1993 MLD 1225; Faiz Ali Shah v. The State PLD 1989 SC (AJ&K) 61; Mian Khurshid Mahmood Kasuri v. Returning Officer and 9 others 1994 CLC 296; Sarfraz Ahmed Khan v. District Judge, Multan 2003 CLC 44; Dr. Ruqia Shaukat v. Additional District and Sessions Judge and others 2003 CLC 1310 and PLD 1977 Journal 164 ref.

(d) Criminal trial---

----Principles---Any number of accused may escape unpunished for lack of sufficient evidence or failure of prosecution to prove guilt beyond reasonable doubt, but no innocent person should be convicted or punished for what he has not done.

Abul Inam and Aftab Ahmed Sheikh for Petitioners.

Makhdoom Ali Khan, Attorney-General of Pakistan, along with Nadeem Azhar, Deputy Attorney-General of Pakistan.

Anwar Mansoor Khan, A.-G. Sindh along with Qazi Khalid Ali, Addl. A.-G.

Shahadat Awan for Respondent No.13.

Muhammad Junaid Farooqi for Respondents Nos. 17 and 25.

Muhammad Khalid Khan Arshi for Respondent No.28.

Mehboob Anwar, Deputy Election Commissioner on behalf of Respondent No. 1.

Nemo for other Respondents.

Dates of hearing: 14th, 15th and 16th July, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 158 #

2005 C L C 158

[Karachi]

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

MUHAMMAD AZAM and another---Petitioners

Versus

COLLECTOR OF CUSTOMS (PREV.), HEADQUARTER, KARACHI and 3 others---Respondents

Misc. A. No.3840 of 1998 in C.P. No.1572 of 1991, decided on 20th October, 2004.

Civil Procedure Code (V of 1908)---

----O. XLVII, R.1 & S.151---Review---Only ground urged by the petitioner was that while passing the order, in a Constitutional petition, Division Bench of the High Court did not properly appreciate a cited judgment though reference of the said case was available in the admission order by the Court---Validity--Such ground could be a ground for consideration in appeal but looking at the limited scope of review it could not be made basis for review, moreso when reasons recorded by the Division Bench for dismissing the Constitutional petition were different and there was no reference in it about citing of the said case at the time of hearing of the Constitutional petition.

Muhammad Saleem Samoo for Petitioner.

Raja Muhammad Iqbal for Respondents Nos. 1 to 3.

S. Ziauddin Nasir, Standing Counsel.

CLC 2005 KARACHI HIGH COURT SINDH 285 #

2005 C L C 285

[Karachi]

Before Anwar Zaheer Jamali, J

MALHAR‑‑‑Applicant

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

R.A. No. 12 of 1984, decided on 21st May, 2004.

(a) Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑Art. 14‑‑‑Period of limitation‑‑‑Starting point‑‑‑Period of limitation provided in Art.14, Limitation Act, 1908 starts from the date of the act or order passed by an officer of Government in his official capacity, which a party seeks to have the same set aside‑‑‑Bar to maintainability of suit in terms of Art. 14 of the Limitation Act, 1908 will be applicable where the relief sought in the plaint is to have an order of the nature mentioned in Art.14 i.e. "set aside" and not to a suit where the relief sought is declaratory in nature, that the impugned act or order is void, without jurisdiction or mala fide.

F.A. Khan v. The Government of Pakistan PLD 1964 SC 520; Rashid Inayat v. The Federation of Pakistan PLD 1957 (W.P.) Lah. 378; Province of East Pakistan v. AKN Raza Karim and another PLD 1969 Dacca 280 and Hussain Bukhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039 ref.

1988 MLD 1980; 1988 CLC 169; 1987 CLC 240; 2001 MLD 1142 and PLO 2002 SC 526 distinguished.

(b) Interpretation of statutes‑‑‑--

‑‑‑‑ Penal provision‑‑‑Every word used, in a statute/provision of law is to be given its literal meaning, in case of penal provision same is to be construed/interpreted strictly and in case of doubt, benefit of such doubt is to be given to the subject, who could be deprived of his right on such technical ground.

‑‑‑‑Arts. 120 & 14‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Suit for declaration and injunction‑‑‑Limitation‑‑‑Plaint showed that the prayer was for declaration that impugned orders were illegal, void, mala fide, inoperative and not binding on the plaintiff‑‑‑Both the Courts below misdirected themselves in deciding the issue of limitation and applying Art. 14 of the Limitation Act, 1908 against the plaintiff, overlooking the nature of reliefs claimed by him in the suit and the fact that the suit, looking to the nature of reliefs sought was governed by Art.120 of the Limitation Act, 1908 which provided six years period of limitation‑‑Judgments/orders passed by the two Courts below, being illegal were set aside.

PLD 1964 SC 520; PLD 1969 Lah. 1039; PLD 1990 Lah. 153; PLD 1957 Lah. (W.P.) 378; 2000 CLC 942 and PLD 1969 Dacca 280 ref.

1988 MLD 1980; 1988 CLC 169; 1987 CLC 240; 2001 MLD 1142 and PLD 2002 SC 526 distinguished.

Jhamat Jethanand for Applicant.

Masood Noorani, Addl. A.‑G. for Respondents Nos. 1 to 4.

Hassan Mehmood Baig for Respondents Nos.5 and 6.

Dates of hearing: 11th and 21st May, 2094.

CLC 2005 KARACHI HIGH COURT SINDH 305 #

2005 C L C 305

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs DADEX ETERNIT LIMITED‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Ministry of Local Government and others‑‑‑Respondents

C.P. No.D‑878 of 1999, decided on 29th June, 2004.

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

‑‑‑‑S. 116 & Second Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Demand, of payment of conservancy rates calculated on basis of 50% water rates‑‑‑Petitioners who owned a cement factory outside territorial limit of Karachi denied payment of conservancy rates calculated on basis of 50% of water rates payable by them contending that petitioners who were paying water rates for supply of bulk water according to prescribed rates, were not liable to pay conservancy charges as petitioners had their own system for maintenance and operation of sewerage works in their factory area and disposal of sewerage and waste in their own Septic Tanks and Soak Pits etc.‑‑Petitioners had claimed that their premises was not connected with any drain being operated by the Government or Metropolitan Corporation‑‑Validity‑‑‑Conservancy charges leviable by the Authorities were only in the nature of fee for rendition of specific services and in case of petitioners no service being performed, conservancy charges could not be levied on petitioners.

Sh. Abdul Aziz for Petitioner.

Suleman Habibullah, A.A.‑G. for Respondent No. 1.

Abdul Karim Khan for Respondent No.2.

Mansoor Ahmad for Respondent No.3.

Date of hearing: 8th May, 2003.

CLC 2005 KARACHI HIGH COURT SINDH 317 #

2005 C L C 317

[Karachi]

Before Ata‑ur‑Rehman and Amir Hani Muslim, JJ

MUHAMMAD ILYAS and 11 others‑‑‑Petitioners

Versus

ADDITIONAL DEPUTY COMMISSIONER‑I HYDERABAD and 8 others‑‑‑Respondents

Constitutional Petition No.D‑217 of 1993, decided on 8th September, 2004.

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

‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Double allotment‑‑‑After the repeal of the Evacuee Laws, what was only saved was the pending proceedings‑‑‑Where the matter in question was not the subject‑matter of proceedings before any forum on the cut off date and only an attempt had been made to show that the land in question was subject‑matter of the pendency proceedings and in this regard copies of .the orders of the High Court were placed‑‑‑Said copies of the orders passed by the High Court; ex facie, did not cover the land which was subject‑matter of the present Constitutional petition and were not "judgments in rem but were judgments in personam" and would lay only the points to the proceedings and the petitioners were not party to the said proceedings‑‑‑Additional Deputy Commissioner in circumstances, was not competent to entertain the application after the cut off date‑‑‑Law did not authorize the Additional Deputy Commissioner to determine the issue of double allotment after cut off date, once the proceedings had been shown to have finalized prior to cut off date‑‑‑High Court declined to dilate upon further on the question of title or possession of either party as it might prejudice them during trial before the appropriate forum but at the same time, while holding that the impugned orders of 'the Additional Commissioner were violative of the bar created under S.2 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, allowed the petition and directed that all the subsequent orders and/or actions taken by the Revenue Authorities or any other forum shall stand reversed as if impugned order was never passed‑‑‑Respondents, however, would be free to approach the appropriate forum for redressal of their grievance in regard to the question of alleged forgery or fraud committed by petitioners but at the same time the entries in favour of the respondents or their successors‑in-interest shall be reversed by the Revenue Authorities in favour of the petitioners or their successors‑in‑interest.

Shamroz Khan v. Muhabbat Khan 1989 SCMR 819; Muhammad Baran v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab PLD 1991 SC 691; Bashir‑ud‑Din v. Government of N.‑W.F.P. 1995 CLC 1394 and Mst. Azam Jehan Ara Begum v. Commissioner, Sargodha Division 2004 MLD 1053 distinguished.

Umar Hayat v. lahangir 2002 SCMR 629 ref.

Hasan Mehmood Baig for Petitioners.

Masood Noorani, Addl. A.‑G. for Respondent No. 1.

Allah Bachayo Soomro for Respondents Nos.2 and 3.

Abdul Aziz Shaikh for Respondents Nos.5 to 9.

Dates of hearing: 1st and 8th September, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 328 #

2005 C L C 328

[Karachi]

Before Ata‑ur‑Rehman and Amir Hani Muslim, JJ

MUHAMMAD RIZWAN and another‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh, Karachi and others‑‑‑Respondents

Constitutional Petitions Nos.D‑208 and D‑271 of 2004, decided on 15th October, 2004.

Police Order [P.O. 22 of 2902]‑‑‑--

‑‑‑Chap. V [Arts.37‑48]‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional. petition‑‑‑Chairperson of the .District Public Safety Commission cannot continue his office as Chairperson on expiry of one year‑‑‑Principles.

Article 37 of the Police Order, 2002 speaks of the establishment of the District Public Safety, Commission. Article 38 provides its composition. According to the language of Article 38, the District Public Safety Commission is composed of members, which fall in three categories. The first category of the members are termed as "elected members" who are members of Zila Council and are elected in terms of Article 38(4) of the Police Order, 2002, through the Chairperson of the District Selection Panel. The other category known as `independent members" comprises of the persons who are appointed by the Governor from the list recommended by the District Selection Panel in terms of Article 38(2). The third category shall confine to the womenfolk but the members amongst them are also either from elected category or independent category; as has been categorized under Article 38(1) and (2).

The question in the present case was whether on expiry of one year, the Chairperson could continue his office as Chairperson of District Public Safety Commission against the language of Article 39(1) of the Police Order, 2002.

The language of Article 39(1) is unambiguous and it clearly provides that the Chairperson shall be elected by the members amongst themselves annually altering between the "independent and elected members,". Admittedly the Chairperson 'in the present case was recommended in terms of Article 38(2) of the Police Order, 2002 as independent member whereafter he was elected as Chairperson.

Article 39(1) speaks that the term for the office of the Chairperson is one year whereafter the members would elect the Chairperson from the other category. There is no dispute that the Chairperson was from the category of the independent member and on expiry of one year from the date of his election he ceased to hold office and the members were obliged in terms of Article 39(1) to elect their Chairperson amongst the category of the elected members.

The contention that Resolution by the members of the District Public Safety Commission under Article 47(5) of the Police Order, 2002, in favour of the Chairperson would extend his term is completely misconceived. Article 47 pertains to the meetings and conduct of business of the District Public Safety Commission and it cannot have any overriding effect against Article 39(1) of the Police Order, 2002, which deals with the appointment of Chairperson. Effect of section 39(1) of the Police Order, 2002, cannot be diluted either by any Resolution passed under section 47(5) of the Police Order, 2002 or by any administrative order of any authority.

High Court allowed the petitions, and directed the concerned persons to elect Chairperson from the category of elected members in terms of Article 39(1) of the Police Order, 2002 within a period of three weeks from the date of communication of present order.

Umerdin Qureshi for Petitioner (in C.P. No.D‑208 of 2004).

Tahir Nisar Rajput for Petitioner (in C.P. No.D‑271 of 2004).

Ayaz Latif Palejo and Masood A. Noorani, Addl. A.‑G.

CLC 2005 KARACHI HIGH COURT SINDH 388 #

2005 C L C 388

[Karachi]

Before Mushir Alam, J

SAEED AHMED ‑‑‑Plaintiff

Versus

CANTONMENT BOARD, MALIR CANTT.‑‑‑Defendant

Suit No. 1208 of 2003, heard on 15th March, 2004.

(a) Cantonments Act (II of 1924)‑‑‑

‑‑‑‑S. 273‑‑‑Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), Ss.5(1), 3, 10 & 11‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.1‑‑‑Suit by plaintiff assailing notice issued under S.5 Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 seeking mandatory injunction of restoration of possession and restraining order not to interfere with plaintiff's running and operating petrol pump‑‑‑Contention of the plaintiff was that Cantonment Board could not' claim any protection under S.273, Cantonments Act, 1924‑‑‑Contention of the defendant was that suit was barred under S.273; Cantonments Act, 1924 as well as under Ss.5, 10 & 11 Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 as in terms of S.273 of the Cantonments Act, 1924 no notice, as required under said provision, was served and, therefore, suit was not maintainable and that Cantonment Board, in good faith had taken action and in accordance with the provisions of Government Lands and Buildings (Recovery of Possession) Ordinance, 1.965, therefore suit was barred under Ss. 10 & 11 of the said Ordinance‑‑‑Validity‑‑‑Held, admittedly the Cantonment Board had taken the impugned action; in purported exercise of authority conferred in terms of S.5(1) of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, therefore, Cantonment Board could not be allowed to use statutory shield under S.273 of the Cantonments Act, 1924‑‑‑Notice was specifically dispensed with in terms of S.2.73(4) of the Cantonments Act, 1924 in suits for an injunction, reason being that, the giving of the notice or the postponement of the institution of the suit proceedings would defeat the object, therefore suit was not barred under S.273, Cantonments Act, 1924‑‑‑Action impugned was the notice and consequent taking over possession of a running petrol pump‑‑‑Suit was filed after the possession was already taken over by the Cantonment Board in purported exercise of jurisdiction of S.5, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, therefore, bar in terms of S.10 of the said Ordinance in the present case, would not be attracted‑‑‑Nothing was brought on record to show that any enquiry was ever held before passing an order of eviction, therefore question of satisfaction of the authority before passing an order, as required under S.5, Central Government Laws and Buildings (Recovery of Possession) Ordinance, 1965 did not arise‑‑Lease existing in favour of plaintiff being valid for the relevant period, prima facie the plaintiff was not in unauthorized occupation in terms of S.2(e)(ii) of the Ordinance‑‑‑Action of the Cantonment Board, in circumstances, could not be said to be within four corners of the Ordinance therefore bar to invoke the jurisdiction of High Court could not be pressed into service‑‑‑Bar to launch proceeding or suit, within contemplation of S.11, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 was attracted only where two conditions were fulfilled to the effect that the action assailed was done in good faith and it fell within the four corners of the said Ordinance‑‑‑Plaintiff, in circumstances, was able to make out a good prima facie case, balance of convenience was also in his favour while the defendant had displayed utter disregard for the due process of law which conduct was to be admonished‑‑‑Defendant was in circumstances, restrained from operating petrol pump in any manner.

Cantonment Board v. Hazari Lal AIR 1934 All. 436 and Cantonment Board, Meriut v. Kamta Prasad AIR 1947 All. 243 fol.

Cantonment Board v. Hazari Lal AIR 1934 All. 436; Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board, Karachi PLD 2003 Kar. 495; Mst. Arshan Bi v. Maula Bakhsh 2003 SCMR. 318; Daulat Khan and others v. Fazal Ahmed and 2 others 1998 MLD 1771; Messrs Azeem & Sons v. Ministry of Defence and 3 others 2001 CLC 1339; Cantonment Board, Meriut v. Kamta Prasad AIR 1947 All. 243; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268; Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD .1959 SC 45 and Commissioner of Income‑Tax East Pakistan v. Fazlur Rahman PLD 1964 SC 410 ref.

(b) Cantonments Act (V of 1924)‑‑‑

‑‑‑‑S. 273‑‑‑Notice to be given of suit‑‑‑Object and purpose‑‑‑Service of two months notice is not condition precedent for bringing suit of each and every nature‑‑‑Such 'notice is required to be served in all matters falling under the Cantonments Act, 1924 excepting suits or action for the recovery of immovable property; for a declaration of title, thereto, and suits where only relief claimed is an injunction‑‑Principles.

Service of two months notice is not a condition precedent for bringing suit of each and every, nature under the Cantonments Act. Notice is required to be served only in all matters 4alling under the Cantonments Act, excepting suits or action for the (a) recovery of immovable property (b) for a declaration of title thereto and (c) suit where only relief claimed is an injunction.

The notice within the contemplation of section 273 of the Act, as a condition precedent before bringing any' cause to the Court is purposeful. Object of notice under section 273(1) of the Act of 1924 is to provide a course or mechanism to a person who is aggrieved of an act done or purported to be done under the Cantonments Act, for the speedy redressal of his grievance at the departmental level. In case the grievance is not attended within two months from the date of service of notice on the Board, member, or servant of the Board, as the case may be, the act complained of could be brought to the Court. Such course is available where the act complained of is performed or proposed to be carried out, falls within the four corners of the Cantonment Act, or of any rules or bye laws made thereunder.

Precondition to serve the notice before bringing the cause in Court is attracted under section 273 of the Cantonments Act only "in respect of any act done, or purporting to have been done, in pursuance of this. Act or of any rule or bye‑law made thereunder". No notice is required to be served where suits or action is for the (a) recovery of immovable property (b) for a declaration of title thereto and (c) suit where only, relief claimed is an injunction. Where the `action impugned' is shown to be prima facie illegal, mala fide and/or beyond the realm of the authority, in such cases plaintiff cannot be non‑suited for want of notice. Merely because the functionary constituted under the Cantonments Act took impugned action, ipso facto, would not attract any immunity or statutory protection. Burden is upon the authority or functionary seeking immunity or protection of statutory bar to show that the act done, or purported to be done was and is in pursuance of the Cantonments Act or of any rule or bye laws made thereunder. Immunity in terms of section 273 of the Cantonments Act, to the functionaries thereunder, is also not available where the act impugned is done in exercise of authority invested under some other enactment.

‑‑‑‑S. 273(4)‑‑‑Notice .for filing suit‑‑‑Notice is specifically dispensed with in terms of S.273(4), Cantonments Act, 1924, in suits for an injunction, reason being that, the giving of the notice or the postponement of the institution of the suit proceedings would defeat the object.

(d) Central Government Lands, and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑

‑‑‑‑S. 10‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑Jurisdiction of Civil Court is curtailed from passing temporary or interim injunctive order in any suit or proceeding restraining the Central Government or any Officer authorized by it from taking possession of any land or building under Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965‑‑‑Conditions and, requirements for such curtailment enumerated.

Jurisdiction of Civil Court is curtailed from passing temporary or interim injunctive order in any suit or proceeding restraining the Central Government or any Officer authorized by it from taking possession of any land or building under‑the Ordinance. The bar to grant temporary or interim injunction would come into play only (i) when it is shown that impugned action is being taken under the Ordinance of 1965 and secondly that injunctive relief is being sought before the possession of any land or building is taken. As a natural corollary, bar would not be attracted where it is demonstrated firstly, that the impugned action is not backed by any provision of Ordinance of 1965, And/or secondly, the impugned action is challenged after the possession of any land or building has been taken over under the purported or colourful exercise of jurisdiction under the Ordinance, 1965.

(e) Judicial review‑‑‑

‑‑‑‑Scope‑‑‑When any public authority or functionary exercises any authority or jurisdiction under any law it is not only expected but is required of him to be fully aware of the' existing law, under which authority or jurisdiction is being exercised‑‑‑Ignorance of law is no excuse for any person including public functionary‑‑‑Where ignorance of law is‑ displayed by public functionary, it is nothing short of criminal negligence and amounts to breach of statutory duty and is amenable to judicial review.

(f) Public functionary‑‑‑--

‑‑‑Duty of‑‑‑Ignorance of law displayed by public functionary was nothing short of criminal negligence and amounted to breach of statutory duty and was amendable to judicial review.

(g) Central, Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑

‑‑‑‑S.5‑‑‑Conditions for passing order of dispossession in terms of S.5, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 enumerated.

Order of dispossession in terms of section 5 of the Central Government Lands & Buildings (Recovery of Possession) Ordinance, 1965 could only be taken provided following conditions are met, (i) Enquiry into nature of occupation of a person.

(ii) Providing opportunity of being beard to the occupant.

(iii) Satisfaction of the Federal Government or the delegated authority that a person is an unauthorized occupant of any land or building of the Federal Government.

(iv) Pass an order in writing directing person found to be in unauthorized occupation to vacate the land or building.

(iv) specify the period within which the building or land is to be vacated.

(h) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑--

‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.4‑‑‑Right of individuals to be dealt with in accordance with law‑‑‑Scope‑‑‑Holding of enquiry before passing an order, for dispossession‑‑‑Opportunity of hearing‑‑‑Necessity‑‑‑"Satisfaction" under S.5 of the Ordinance was: a condition precedent to exercise authority under S.5 and that too before an order, of eviction is passed‑‑‑Conditions and requirements highlighted.

Where any judicial or quasi judicial enquiry is required to be carried out by a public or statutory functionary and no procedure is provided, then it implies an investigation into the matter from different sources in order to find out the truth of the matter and/or veracity of allegations. In case a person is likely to be affected by the result of any enquiry, in all fairness, equity and good conscience, such person must be given an opportunity of being heard and offer explanation as to matter relating to his conduct.

After holding an enquiry, it is not necessary that an order of eviction is to be passed mechanically or as a matter of course. Eviction order is to be passed by the authority concerned after being satisfied as a result of any enquiry that the person is in unauthorized occupation.

"Satisfaction" under section 5, is a condition precedent to exercise authority under section 5 of the Ordinance, 1965 and that too, before an order of eviction is passed. The satisfaction in terms of section 5 is to be unbiased and fair in nature and not merely illusory or superficial and must reflect from the assessment, the situation and finding of the enquiry.

Authority concerned, before passing order of eviction, in terms of section 5 of .the Ordinance 1965, must hold an enquiry into the allegation as to unauthorized occupation of any person. It is only when the authority concerned, after holding an enquiry, is satisfied that person, against whom action for dispossession is proposed to be taken, is in unauthorized occupation, order for eviction could be passed.

It is inalienable right of every citizen of Pakistan and every other person for the time being in Pakistan, under Article 4 of the Constitution of Pakistan, to enjoy protection of law and to be treated in accordance with law. Section 5 of the Central Government Lands & Buildings (Recovery of Possession) Ordinance 1965 recognized right of hearing. Any action for taking over the possession could only be taken after giving such person an opportunity of being heard, and after holding enquiry. Admittedly neither, any opportunity of being heard was given to the Plaintiff nor, any enquiry was held before declaring the plaintiff to be in unauthorized occupation. Where law requires some thing to be done in a particular manner it is to be done in that particular manner. There is no inherent power in public functionary or authority, they can only act within the parameters of law. The moment it is shown that any act of the public functionary does not fit in the scheme of law under which authority is purported to be exercised, it is prima facie sufficient to assume that such action is not in good faith and certainly not in accordance with law. No authority howsoever high, can be allowed to impinge valuable right of hearing recognized specifically under section 5 of the Ordinance, 1965.

Where a statute confers any jurisdiction on a public functionary to do or execute law, or to act in a particular manner then it is incumbent on such authority to act strictly in accordance with the mandate of law. Inalienable right of a citizen to be treated in accordance with law as enjoined under Article 4 of the Constitution correspondingly imposes duty on public functionary responsible to implement law, in the manner it is required to be executed. The moment public functionary acts in a manner not provided for in law or acts in defiance of mandatory requirement of law, he not only abdicates his duty, steps over his jurisdiction but, at the same time impinges upon inalienable rights of a citizen to be treated in accordance with law.

High Court remarked that unfortunately, public functionaries do not care for due observance of law, they are carried away more by their whims and fancies and extraneous considerations rather than to observe law in letter and spirit. It is matter of serious concern that, those enjoined to carry out and execute the law, take pride in defying the same and have audacity to defend, rather to mend the wrong. Such attitude is neither in good taste nor can be approved by the Court. Such mindset of public functionary and display of irresponsible attitude and misuse of State authority adversely affect the society at large and burden the Courts with litigation which could be conveniently avoided, in case the public functionary acts fairly, equitably and in accordance with law.

(i) Judicial or quasi‑judicial enquiry‑‑‑

‑‑‑‑ Requirements.

Where any judicial or quasi‑judicial enquiry is required to be carried out by a public or statutory functionary and no procedure is provided, then it implies an investigation into the matter from different sources in order to find out the truth of the matter and/or veracity of allegations. In case a person is likely to be affected by the result of any enquiry, in all fairness, equity and good conscience, such person must be given an opportunity of being heard and offer explanation as to matter relating to his conduct.

(j) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)‑‑‑

‑‑‑S.2(e)‑‑‑"Unauthorised occupant" ‑‑‑Definition.

A person under the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 could be said to be in an unauthorized occupation of the Government land or building firstly, where he is occupying any land or building of the Federal Government without the express permission or authority. Secondly, where lessees or licensees or any person claiming through or under them is found `holding over' possession, after the determination of the lease or the licence, of such land or building, as the case may be.

(k) Counsel and client‑‑‑

‑‑‑‑Counsel supporting unauthorized and wholly unjustified actions of their clients deprecated by High Court‑‑‑Duty of counsel highlighted.

High Court observed that it is indeed very painful to note that Advocates some time support unauthorized and wholly unjustified actions of their clients. In doing so they fail to discharge their primary duty they owe to the Court as an officer of the Court, secondly towards society and lastly towards their client. Where on the face of record, the action of the Authority cannot be sustained for valid reasons, foremost duty of a counsel is to advise them to mend their ways, guide them and put them on the right path. It is only then, the cause of justice is served.

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

‑‑‑‑O. XXXIX, R. 1‑‑‑Application seeking restraining order against the defendant, a statutory body, not to part with the possession of the property (petrol pump) and or giving its operation to any other person‑‑Defendant, before the hearing of the application on merits stated that, the application had become infructuous as the petrol pump had been dismantled and was no more in existence‑‑‑High Court took serious notice of such statement of the defendant and observed that it appeared that dismantling of the petrol pump was carried out by the defendant in haste without waiting for the decision of the pending application, and in all fairness the defendant, as statutory body, was required to maintain status quo till the hearing of the application‑‑‑High Court remarked that further proceedings in this regard would be taken after the inspection was carried out which had become necessary under the circumstances of the case.

(m) Constitution of Pakistan(1973)‑‑‑

‑‑‑‑Art. 4‑‑‑Right of individuals to be dealt with in accordance with law‑‑‑Duty of public functionariesScope and extent‑‑‑High Court deprecated the way public functionaries were carried away more by their whims and fancies and extraneous considerations rather than to observe law in letter and spirit‑‑‑Principles.

Where a statute confers any jurisdiction on a public functionary to do or execute law or act in a particular manner then it is incumbent on such authority to act strictly in accordance with the mandate of law. Inalienable right of a citizen to be treated in accordance with law as enjoined under Article 4 of the Constitution correspondingly imposes duty on public functionary responsible to implement law, in the manner it is required to be executed. The moment Public functionary acts in a manner not provided for in law or acts in defiance of mandatory requirement of law, he not only abdicate in his duty, steps over his jurisdiction but, at the same time impinges upon inalienable rights of a citizen to be treated in accordance with law.

High Court remarked that unfortunately, public functionaries do not care for due observance of law, they are carried away more by their whims and fancies and extraneous considerations rather than to observe law in letter and spirit. It is matter of serious concern that, those enjoined to carry out and execute the law, take pride in defying the same and have audacity to defend, rather to mend the wrong. Such attitude is neither in good taste nor can be approved by the Court. Such mindset of public functionary and display of irresponsible attitude and misuse of State authority adversely affect the society at large and burden the Courts with litigation which could be conveniently avoided, in case the public functionaries act fairly, equitably and in accordance with law.

Iqbal Qazi for Plaintiff.

Ashraf Butt for the Defendant.

Date of hearing: 15th March, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 409 #

2005 C L C 409

[Karachi]

Before Muhammad Sadiq Leghari, J

HABIB BANK LTD. ‑‑‑Plaintiff

Versus

ALI MUHAMMAD ‑‑‑Defendant

Suit No.76 of 2003, heard on 4th November, 2004.

Civil Procedure Code (V of 1908)---

‑‑‑‑Ss. 9 & 20‑‑‑Suit related to transactions 'having taken place in a foreign country under the law of that State and default was also committed there but after plaintiffs' failure to get the decree of foreign Court satisfied there, cause of action accrued to Bank for suing the defendant (guarantor) in Pakistan as by that time he had shifted to Pakistan‑‑‑Validity‑‑‑Held, transaction in question was governed by the law of the foreign country/State and forum to enforce the rights and obligations in consequence of the transaction, was also available there and Court in Pakistan had no jurisdiction to entertain the present suit for the only reason that the defendant had allegedly shifted to Pakistan‑‑Foreign Courts did not lose their authority or competency to proceed with the suit against him nor the Courts of Pakistan had jurisdiction over the matter for that reason‑‑‑Principles.

Admittedly the transaction/contract had taken place in a foreign country and the alleged default also occurred there. Even the plaintiff had filed a suit there under the law of that, State and obtained a judgment, thus there could be, no denial of the fact that the transaction was governed by the law of that country/State and forum to enforce the rights and obligations in consequence of the transaction was also available there.

Civil Procedure Code, 1908 extends upto the territories of Pakistan as a procedural enactment. It cannot take place of substantive laws on a particular subject. Obviously the transactions and acts governed by the procedural as well as substantive law of any other State or country, do not come within the scope of Civil Procedure Code. Nor the Courts at Pakistan have jurisdiction to decide the causes and issues governed by the law of any other country or State applying sections 9 and 20 of Civil Procedure Code, 1908 which relate to the cases and matters within the cognizance of Courts in Pakistan.

As the contract/transactions which is the subject‑matter of present suit is governed by procedural and substantive laws of foreign country and statutory forum to decide the controversy and enforce the rights under those transactions is also available there, Pakistani Court had no jurisdiction 'to entertain the present suit for the only reason that the defendant had allegedly shifted to Pakistan. Courts of foreign country do not lose their authority or competency to proceed with the suit against defendant. Nor the Courts at Pakistan have the jurisdiction over the matter for that reason.

The plaintiff had not stated the actual terms of the contract of credit facility in the plaint nor he had produced the documents containing the terms of the contract. Also, plaintiff did not sue the guarantor while filing suit/claim against the principal borrower. It is not known what prevented it from suing the guarantor, whether there was any impediment in its way under the relevant laws of the State. The effect of omission to sue the guarantor is also not known. Thus the present suit is also not a fair and bona fide exercise on the part of the plaintiff.

Nadeem Ghani v. United Bank Limited and others 2001 CLC 1904 dissented from.

Hamza I. Ali for Plaintiff.

Defendant in person.

Date of hearing: 4th November, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 424 #

2005 C L C 424

[Karachi]

Before S. Ali Aslam Jafri, J

SINDH INSTITUTE OF UROLOGY AND TRANSPLANTATION and others‑‑‑Plaintiffs

Versus

NESTLE MILKPAK LIMITED and others‑‑‑Defendants

Suit No.567 and C.Ms. Nos.3717 and 5343 of 2004, decided on 30th November, 2004.

(a) Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 7, Illus. (g)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.1‑‑‑Exclusive right to enjoy‑‑‑Injunction, grant of‑‑‑Landowner has a right to collect and dispose of within his own limits all water under the land which does not fall in a defined channel but such right is not unfettered‑‑‑Natural resources of the earth, including the air, water, land, flora arid fauna especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate and Court, while dealing with the equitable relief of injunction, should keep this in view.

(b) Public Trust, doctrine of‑‑‑

‑‑‑‑Scope‑‑‑Natural resources like air, sea, waters, and forests are like Public Trust‑‑‑Such resources being a gift of nature, should be made freely available to every one irrespective of the status‑‑‑" Doctrine of Public Trust" as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes‑‑‑Even under the Islamic law certain water resources are to be protected from misuse and over exploitation.

Principle 2 of Stockholm Declaration, 1972 and Environmental Dimensions of Islam by M. IZZI DIEN at p.37 ref.

‑‑‑‑Public Trust, doctrine of‑‑‑Scope.

(d) Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 7, illus. (g)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.1‑‑‑Plaintiff's land was earmarked for Education City‑‑‑Defendant, a multinational company, elected to set up a water bottling plant close to the city by tapping into and making free use of sub‑soil water aquifer lying underneath the Education City area‑‑‑Plaintiffs had sought declaration and prayed that pending the disposal of suit the defendant be restrained from raising any construction with a view to set up and operate a bottled water factory in the area known for Education City as the same was contrary to educational and health use, for which such land could be used‑‑Validity‑‑‑Held, prima facie case for grant of injunction had been made out in favour of the plaintiffs; balance of convenience also appeared to be in their favour because once the process of extracting the water in such a huge quantity was allowed to operate, each day, each hour, and each minute water deposits in the aquifer would demolish rapidly and shall, adversely affect the rights of plaintiffs to use the underground water according to their genuine needs which shall cause an irreparable loss to them‑‑‑High Court confirmed the' injunction granted to plaintiffs till the decision of the suit and in the meantime, the defendant was restrained from initiating any commercial/industrial activities including setting of a bottling plant in the area.

State of Tamilnadu v. Hind Stone 1981(2) SC 205; M.C. Mehta v. Kamal Nath (1997) 1 Supreme Court Cases 388; National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419 (Supreme Court of California), Marks v. Whitney 6 CA‑1. 3d 231 (Supreme Court of California); Ardeshir Cowasjee v. Province of Sindh 2004 SBLR Sindh 763; Shehri v. Province of Sindh 2001 YLR 1139; Gaved v. Marlyn 34 LJCP 352; Gul Haider v. Asat PLD 1978 Pesh. 157; Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555; Asrabullah v. Kiamatullah AIR 1937 Cal. 245;Karathigundi Keshava Bhatta v. Sunnanguli Krishna Bhatta AIR (33) 1946 Mad. 334; Principle 2 of Stockholm Declaration, 1972 para.13 and Environmental Dimensions of Islam by M. IZZI DIEN p.337 ref.

Qazi Faez Isa for Plaintiffs.

Wasim Sajjad, Ali Wasim Sajjad and Arshad Tayebally for Defendant No. 1.

Abbas Ali, A.A.‑G., Sindh for Defendants Nos.2 to 4.

Defendant No.5: Called absent.

Dates of hearing: 19th August, 7th, 8th September, 6th, 7th and 25th October, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 441 #

2005 C L C 441

[Karachi]

Before Atta‑ur‑Rehman and Amir Hani Muslim, JJ

MEHRAB KHAN through Attorney‑‑‑Petitioner

Versus

PROVINCE OF SINDH through Secretary, Irrigation and Power Department, Government of Sindh and 5 others‑‑‑Respondents

Constitutional Petition No.D‑39 of 2004, decided on 23rd September, 2004.

(a) Sindh Irrigation Act, 1879‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Application of petitioner for transfer of Peach from one water course to another water course‑‑‑Codal formalities as provided in Sindh Irrigation Act, 1879 were followed by the petitioner/applicant‑‑‑Record showed that other Khatedars of the water course objected to the transfer of Peach as a result of which the litigation ensued between the petitioner, and the Khatedars of the water course‑‑‑District Officer (Revenue) who was the competent Officer, allowed the transfer of the Peach of the petitioner against which the rival Khatedars filed revision under the Sindh Irrigation Act, 1879 and the Revisional Authority allowed the revision against the petitioner‑‑‑Petitioner filed Constitutional petition on the ground that he was not allowed to irrigate his land from the original water course on account of influence of the neighbouring Khatedars and the Irrigation Department had failed to discharge its duty by not providing the petitioner, his due share of water from the original Peach‑‑Petitioner, in view of the situation had prayed that High Court may issue direction to the officials of Irrigation Department to provide outlet to the land of the petitioner‑‑‑Validity‑‑‑Held, petitioner, was entitled in law, to his due share of water under his original water course, which the Irrigation Department shall continue to supply to the petitioner according to his due share and if somebody offered resistance he should be dealt with in accordance with law with the assistance of police‑‑‑High Court, however directed the officials of the Irrigation Department to ensure that the petitioner got his due share of water from his original watercourse‑‑Persons who had made ^the applications against the petitioner if intervened, resisting and or restraining the Irrigation Officials from discharging their duties inclusive' of duty to provide water share to the petitioner, would expose themselves to contempt proceedings for wilful defiance of the orders of the High Court‑‑‑Petitioner was directed to approach the High Court in case of defiance of the orders by anyone, besides the District Police Officer shall take appropriate action against those, who were guilty of defiance of law and provide lawful protection to the petitioner as and when he approached the District Police Officer.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court can mould the relief in favour of the petitioner even if the same was not prayed for.

Petitioner in Person.

Masood A. Noorani, Addl. A.‑G. along with I/C P.D.S.P., Abdul Jamil Hashmi on behalf of D. P.O. Hyderabad, Dost Muhammad Manghrio S.D.L. Chamber and Abdul Aziz Executive Engineer Nasir Division.

Jhamat Jethanand for Intervenors.

CLC 2005 KARACHI HIGH COURT SINDH 452 #

2005 C L C 452

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

Messrs HINOPAK MOTORS LTD. and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

C.P.D. Nos. 169 of 1996, 345 of 1995 and 1878 of 1994 heard on 1st October, 2004.

(a) Employees' Old‑Age Benefits Act (XIV of 1976)‑‑‑

‑‑‑‑S. 9 [as amended by Labour Laws (Amendment) Ordinance (XXIII of 1993; Labour Laws (Amendment) Ordinance (VII of 1994) and Labour Laws (Amendment) Act (XI of 1994)]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Petitioners who were employers and were making contributions in respect of every person drawing wages not exceeding Rs.1500 in their insurable employment at the rate of 5% of their wages under S.9, Employees' Old‑Age Benefits Act, 1976 assailed the promulgation of Amending Ordinances whereby they became liable to make contributions in respect of all the employees whose wages did not exceed Rs.3000 per month and its passage as an Act of Parliament‑‑Validity‑‑‑Power to promulgate an Ordinance ought to be conceded to the President in case the legislature chose to take time in deliberations over its provision without approving or disapproving the same; a vacuum could not be countenanced and under such conditions Ordinance which was repromulgated upon expiry of the Ordinance was a valid piece of legislation‑‑‑Constitutional petition was dismissed in circumstances.

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 fol.

Collector of Customs v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363 and Riaz Ahmed v. State 1998 SCMR 1729 ref.

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

‑‑‑‑Art. 89‑‑‑Power of President to promulgate Ordinance‑‑‑Scope‑‑Article 89 of the Constitution only required an Ordinance laid before the Houses of the Parliament and this must be done when it was still in force‑‑‑Supremacy of the legislature thus was recognized by Art.89 of the Constitution that the Ordinance would cease to have effect upon disapproval by either House‑‑‑If the legislature, however, chose to take time in deliberation over its provisions without approving or disapproving same, a vacuum could not be countenanced and under such conditions the power to promulgate an Ordinance ought to be conceded to the President.

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 ref.

M. Rafat Usmani for Petitioner.

Khalid Habibullah for Respondents.

M.A.M. Namazi for Respondent No.2.

Faisal Arbab, Standing Counsel.

Rafiq Rajori, Additional Advocate‑General.

Date of hearing; 1st December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 455 #

2005 C L C 455

[Karachi]

Before Ata‑ur‑Rehman and Amir Hani Muslim, JJ

KALEEMULLAH MALAK and another‑‑‑Petitioners

Versus

TALUKA OFFICER INFRASTRUCTURE/INCHARGE RANI BAGH, HYDERABAD and 10 others‑‑‑Respondents

C.P. No.D‑243 of 2004, decided on 6th October, 2004.

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

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Functions and powers of Taluka Municipal Administration‑‑Recreational activities by Taluka‑‑‑Administration of Taluka had no definite plans to improve the condition of a historical recreational park of the Town and no funds had been allocated under the head of "recreational activities" ‑‑‑No other place for recreation of a common man was available in the Town‑‑‑No Government functionary had ever given serious thought to provide the residents of the Town with such recreation which was their fundamental right, as all the development Schemes were financed by public money which was not spent on recreational program like the said historical Park‑‑‑High Court, in circumstances ordered that all the expenditure incurred on the said Park by the Taluka Municipal Administration would be accounted for by it to the Additional Registrar of the High Court till further orders.

Ayaz Latif Palijo for Petitioners.

Aftab Ahmed Shaikh along with Agha Abdul Qadir Pathan, T.M.O. Qasimabad, Dr. Muhammad Arif, Assistant Director Zoo, Hyderabad and Ziauddin Ursani, T.O./Incharge Rani Bagh.

Masood A. Noorani, Addl. A.‑G.

Date of hearing: 6th October, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 461 #

2005 C L C 461

[Karachi]

Before Ata‑ur‑Rehman, J

MEHFOOZ YAR KHAN‑‑‑Appellant

Versus

Mrs. MARGRATE KARIMULLAH‑‑‑Respondent

F.R.A. No.7 of 2002, decided on 18th February, 2003.

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

‑‑‑‑S. 17‑‑‑Ejectment sought on bona fide personal need of landlady and for using the premises by tenant for different use‑‑‑Intention of the landlady whether bona fide could be judged from the evidence on record‑‑‑Evidence of the landlady/landlord on the issue of requirement of the premises for the personal use appeared to be quite, satisfactory‑‑Record had not shown any mala fide intentions of the landlady to get the possession of the premises or that she wanted vacant possession with the object other than the personal need‑‑‑Landlady, in the present case, had been able to establish through the evidence that she required the premises in good faith for her occupation and that she had sufficient cause to sell her property which was adjacent to the property in question a year and three months before filing of the, present proceedings‑‑‑Fact that the tenant had been using the residential premises or portion thereof as office as well, was also established‑‑‑Findings of the Trial Court on these issues in favour of landlady being just and fair, High Court declined interference.

Syed Israr Alam v. S.M. Hussain 1983 CLC 468; Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624; Agha Muhammad Ilyas v. Masjid Committee, Rahim Yar Khan PLD 1968 Lah. 863; National Development Finance Corporation v. Shaikh Naseemuddin and 4 others PLD 1997 SC 564; United Bank Limited v. Mrs. Alafia Hussain 1999 SCMR 1796; Mst. Saira Bai v. Syed Anisur Rahman 1989 SCMR 1366; Muhammad Amin v. Mst. Nafeesa Khatoon PLD 1996 Kar. 340; Ch. Muhammad Din and others v. Malik Muhammad Din and others 1979 SCMR 243; Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689; Raja Qurban Khan v. Begum M.M. Sharif and another 1980 SCMR 590; S. Pin Liu v. Mrs. Najma Kazmi 1980 SCMR 983; Muhammad Ishfaque v. Asghar Ali and others 1989 SCMR 1315; Taj Muhammad Abbasi v. Messrs Ferozesons (Rawalpindi) Pvt. Ltd. 1996 SCMR 97; S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119; Muhammad Ali Pinham v. Muhammad Idris 2002 SCMR 400; Mehdi Nasir Aizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Syed Nisar Haider v. Mst. Razia Sultana 1990 SCMR 642 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Agha Faqir Muhammad for Appellant.

M. Inayatullah for Respondent.

Date of hearing: 18th February, 2003.

CLC 2005 KARACHI HIGH COURT SINDH 476 #

2005 C L C 476

[Karachi]

Before Ata‑ur‑Rehman, J

BHOOL CHAND‑‑‑Plaintiff

Versus

PORT QASIM AUTHORITY through Chairman‑‑‑Defendant

Suit No.1331 and C.M.A. No.7924 of 1999, decided on 22nd November, 1999.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 21, 42 & 54‑‑‑Contract not specifically enforceable‑‑‑Suit for declaration and injunction‑‑‑Plaintiff by relying upon the "letter of intent" contended that since the defendant had failed to exercise its right in negative on or before the specified date, the option by the defendant would be deemed to have been exercised in favour of the plaintiff as a result of which the contract could only be awarded to him; that in the inter‑departmental correspondence/exchanges of the defendant it had recommended that the contract in question be awarded to the plaintiff; that in view of the contents of letters exchanged between the parties the contract stood offered and accepted between the parties and the defendant was bound to award the contract to the plaintiff and that in the last tenders, the plaintiff had offered the lowest bid and therefore, he was entitled to the award of the contract‑‑‑Validity‑‑‑Held, exercise of the right of option to award the contract in question rested with the defendant unconditionally and the plaintiff had no tight to compel the defendant to exercise the same in his favour; the contention of the plaintiff that since the defendant had failed to exercise its right in negative the defendant would be deemed to have exercised the option in favour of the plaintiff was not sustainable as the wording of the clause of the letter of intent itself was very clear and the proposition suggested on behalf of the plaintiff could not be read into the same ‑‑‑Interdepartmental correspondence/exchanges of correspondence were the part of the normal course of business and in that a number of suggestions and recommendations were made by one department and rejected by the other and unless those were officially .communicated and forwarded the same were of no help to the plaintiff‑‑‑If such correspondence/recommendations of the departments were made binding on the departments by the outsiders the entire working of inter‑department exchanges/correspondence would come, to a stand still and the departments would not reduce any suggestion or recommendation in writing fearing that the same would be made binding upon them by the outsiders; that said inter‑departmental correspondence /exchanges being not binding on the defendant, plaintiff legally could not seek protection thereof to improve his case and that it could not, in circumstances, be said that there was an "offer" and an "unconditional acceptance" which would amount to execution of contract between the parties ‑‑‑Plaintiff, in circumstances, had failed to establish a prima facie case in his favour for injunction‑‑‑Convenience was in favour of the defendant and not in favour of plaintiff because the defendant was a public Corporation where public money was involved‑‑‑Principles.

Mst. Narmeen S. Hussain v. The Administrator, Abandoned Properties Management and another PLD 1999 Kar. 250; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283 and Messrs Dadabhoy Investments (Pvt.) Limited Karachi v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and another PLD 1995 Kar. 33 distinguished.

H.A. Rahmani for Plaintiff.

Zahid F. Ebrahim for the Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 487 #

2005 C L C 487

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD MOOSA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr. B.A. No.S‑392 of 2004, decided on 3rd September, 2004.

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

‑‑‑‑S. 39‑‑‑Record of Rights‑‑‑Sealing of such record by the Revenue Authorities by an administrative order‑‑‑Validity‑‑‑Entire record of Deh cannot be sealed by any administrative order, as such action deprives the public in general from obtaining the certified copies and entering into any transaction in respect of their private lands in the Deh‑‑‑West Pakistan Land Revenue Act, 1967 contains no provision which authorizes the Revenue Authorities to order sealing of the entire record of Deh‑‑High Court ordered that the record in question be de‑sealed forthwith‑‑‑Revenue Authorities however, could scrutinize and/or rectify and/or update the record but at the same time the sealing order which was prima facie outside the jurisdiction of .the Revenue Authorities was set aside by the High Court‑‑‑High Court directed the Senior Member of Provincial Board of Revenue to submit compliance report to 'the High Court accordingly.

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

‑‑‑‑S. 39‑‑‑Record of rights‑‑‑Holding of inquiries in respect of private lands on anonymous applications and on spy reports by the Anti-Corruption Police was beyond the jurisdiction of the said police‑‑Principles‑‑‑High Court directed the Senior Member of the Provincial Board of Revenue to direct and instruct the relevant District Officers of the Revenue Department to provide attested copies of the Revenue Record which was needed for the purposes of the investigation‑‑‑Original Revenue Record would not be given to the Investigating Officer nor could said officer seal the Revenue Record.

The Anti‑Corruption Police who has authority under law to prosecute the Revenue Officers subject to sanction by the administrative head, are exceeding their authority by holding inquiries on anonymous applications and on spy reports. The law does not authorize Anti-Corruption Police to entertain any application of any private person in respect of private land. If a complaint of a private person pertaining to an entry of land, which is not owned by the Government, is allowed to be entertained, it would amount to usurping the powers of Revenue Authority provided under the Sindh Land Revenue Act, 1967. The Officer of the Anti‑Corruption can only take cognizance in those matters in which the Government land is involved and they do not have the authority to determine dispute in regard to entries pertaining to private lands nor the law authorizes them to entertain any complaint in regards to title dispute between the private parties. The authority of Anti-Corruption Police is confined to investigation into the entries kept in respect of Government lands and disputes in regard to the private lands are subject to jurisdiction of the Revenue Authorities and/or of the Civil Courts.

The Anti‑Corruption Police was directed by the High Court to stay its hands off from entertaining complaints of private persons in regard to any entry in Revenue Record belonging to the private person. In future any cognizance by the Anti‑Corruption Police over private disputes would expose them to criminal prosecution for abusing their powers. However, they can entertain complaints in respect of Government lands subject to sanction by the administrative head of the Revenue Department or by the Chief Secretary of the Province as the case may be.

The Senior Member, Board of Revenue was directed to instruct the relevant District Officers of the Revenue Department to provide attested copies of the Revenue Record which was needed for the purposes of the investigation as it has been complained that the custodian of the Revenue Record does not cooperate with the Investigating Officers of the Anti‑Corruption Department. However, in future original record would not be given to the Investigating Officers nor could they seal the Revenue Record. In case the custodian fails to provide any information or record to the Investigating Officer of the Anti‑Corruption, he may approach the next immediate Revenue Officer under the hierarchy.

Masood Noorani, A.A.‑G. along with Mirza Karim Baig, Senior Member, Board of Revenue, Alim Uddin Bulo, D.C.O. Dadu, Abdul Rahim Soomro, EDO, Dadu, Raza Muhammad Bhutto, Mukhtiarkar, Thana Bola Khan, Inspector, Ayaz Pandhiani, CO, ACE, Dadu, Faiz Qureshi Reader to DD ACE, Hyderabad.

Date of hearing: 3rd September, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 497 #

2005 C L C 497

[Karachi]

Before Gulzar Ahmed, J

Syed RAUNAQ RAZA through L. Rs. ‑‑‑Plaintiffs

Versus

THE PROVINCEOF SINDH through Senior Member, Board of Revenue, Government of Sindh, Hyderabadand 2 others‑‑‑Defendants

Suit No.1094 of 1989, decided on 19th March, 2004.

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

‑‑‑‑S. 10‑‑‑Specific Relief Act (I of 1877), Ss.42 & 55‑‑‑Suit for declaration and permanent injunction‑‑‑Lease of State land‑‑‑One of the legal heirs of the deceased lessee could maintain a suit for the benefit of all the legal heirs who were co‑lessees in the land in question.

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

‑‑‑‑S. 10‑‑‑Statement of Conditions For Grant of Sate Land in Local Limits of Karachi, Condition 25(1)‑‑‑Specific Relief Act (I of 1877), Ss.42 & 55‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Suit for declaration and permanent injunction‑‑‑Lease of State land for building purpose‑‑‑Renewal‑‑‑Power vested in the Government functionary had to be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment under which it is exercised‑‑‑Question as to whether the requirements of relevant law relating to lease had been fulfilled or not was to be seen from the order impugned by the lessee‑‑Where the order refusing the renewal of lease simply mentioned "that your request for renewal of the lease had been refused", and why the same had been refused was not mentioned, particularly, when there was a stipulation of renewal of 20 years, the giving of reasons was all the more necessary‑‑‑Where the alleged violations by the lessee were not mentioned in the impugned order, even if assuming that alleged violations were the reasons for non‑renewal of lease, then it again became all the more necessary for the department to give hearing to the lessee, which admittedly was not given‑‑‑Terms of Condition 25(1) of the Statement of Conditions which provision was in the field on the date of termination of initial period of lease, the lessees and other legal heirs of the deceased lessee were entitled to the renewal of lease for another period of 20 years on the revised rates of increased rent determined by the Deputy Commissioner as word "shall" had been used in Condition 25(1) to give the Condition a mandatory force so that it was applied in every case of existing lease without any difference or distinction‑‑‑Government in circumstances, was left with no option but to renew the lease for another period of 20 years‑‑‑Impugned order and notice of defendants were declared as illegal and void by the High Court‑‑‑Defendants were directed to renew the lease of the land in favour of plaintiffs (lessees) and other legal heirs for period of twenty years‑‑Rent already paid was to be adjusted in the revised rent, if any‑‑‑Suit was decreed accordingly‑‑‑Principles.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Syed Raunaq Raza v. Province of Sindh and others 1994 CLC 317; Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi 1998 SCMR 2268; Shah Muhammad v. Muhammad Hanif PLD 1988 Rev. 43; Yarntex Trading Company and others v. Chief Controller of Buildings and others PLD 1998 Kar. 11; Haji Muhammad Qasim v. Government of Sindh 2003 YLR 2586; Muhammad Suleman v. Additional Deputy Commissioner (General), Lahore Cantt. PLD 2000 Lah. 262; Sardar Muhammad Aslam Sial v. Government of Pakistan 1985 SCMR 9 and EFU General Insurance Company Ltd. v. Federation of Pakistan PLD 1997 SC 700 ref.

Nadeem Azhar Siddiqui for Plaintiffs.

Muhammad Qasim Mirjat, Asstt. A.‑G., Sindh for Defendants.

Date of hearing: 23rd February, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 508 #

2005 C L C 508

[Karachi]

Before Muhammad Moosa K. Leghari, J

JAVED MEHMOOD‑‑‑‑Applicant

Versus

Mst. SAMEENA and another‑‑‑Respondents

Civil Transfer Application No.17 of 2003, decided on 26th January, 2004.

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

‑‑‑‑S. 25‑A‑‑‑Suit for dissolution of marriage‑‑‑Transfer of case‑‑Application for‑‑‑Suit was sought to be transferred by defendant from Family Court on ground that Judge of Family Court concerned was nourishing malice against applicant/defendant and that plaintiff was not residing within the jurisdiction of Family Court concerned‑‑‑Issue with regard to territorial jurisdiction of Family Court having been framed subsequently, no prejudice was caused to applicant/defendant‑‑‑Merely because Trial Court omitted to frame issue of territorial jurisdiction in the first instance, would by itself be no ground to infer that Trial Judge was nourishing grudge or malice against applicant/defendant‑‑‑Glaring evidence and strong reasons were available to believe that applicant/defendant had been making all attempts at his command to protract proceedings‑‑‑Present transfer application had also been moved in furtherance of same object and adequately demonstrated propensity on the part of applicant/defendant to get the trial prolonged‑‑‑Transfer application having been filed with ulterior motives and being devoid of substance, was dismissed‑‑‑Trial Court was directed to dispose of case without any further delay.

(b) Administration of justice‑‑‑

‑‑‑‑High Court deprecated that whenever a serious attempt was made to expedite disposal of a case, either of the affected parties tried their best to create hurdles under the garb of concocted pleas of law to get the same delayed‑‑‑He who seeks equity must demonstrate equity‑‑‑No litigant could be allowed to linger on the proceedings by making farcical cries of justice being done to be manifestly seen without showing that his own conduct was bona fide‑‑‑Practice of achieving benefits out of one's own wrong in no case, could be allowed.

Ch. Abdul Majeed for Applicant.

Aijaz Ali Hakro for Respondent.

Date of hearing: 26th January, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 520 #

2005 C L C 520

[Karachi]

Before Rasheed A. Razvi, J

NAFEES‑UL‑HASSAN‑‑‑Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI through Administrator‑‑‑Defendant

C.M.As. Nos.1203 of 1993, 5293 and 6031 of 1994, Suit No.431 of 1993, decided on 28th August, 1996.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Dispute as to lease of Government land‑‑Application seeking interim injunction against the defendants, their agents, staff and/or members etc. from interfering with the physical and constructive possession of the plaintiff on the area of land till disposal of the suit with further prayer that the defendants be restrained from demolishing the construction raised by the plaintiff on the property‑‑Plaintiff, along with his application had produced two survey reports by the Mukhtiarkar/City Survey Officer and the other by the Deputy Registrar (Judicial) in support of his case‑‑‑Validity‑‑Documents filed with the plaint and two survey reports of the Commissioners as well as respective submissions of the parties led the Court to the tentative view that the plaintiff had made out a prima facie case for grant of injunction and that the balance of convenience as well as question of suffering irreparable loss and injury were also in favour of the plaintiff‑‑‑High Court, however, declined to grant the relief as prayed in view of both the reports of the Commissioners to the effect that the boundary wall constructed by the plaintiff was seen to have been demolished and only debris and other wild bushes were found on the disputed land which indicated that at the time of hearing none of the parties was in actual physical possession of the suit-land‑‑High Court, in order to keep the suit‑land protected from alienation imposed terms on both the parties as detailed in the judgment.

Raja Muhammad Iqbal for Plaintiff.

Raja Muhammad Irshad along with Zafar Iqbal for Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 617 #

2005 C L C 617

[Karachi]

Before Muhammad Moosa K Leghari and Muhammad Roshan Essani, JJ

MUHAMMAD ISHAQUE---Appellant

versus

RETURNING OFFICER and another---Respondents

Election Appeal No.35 of 2002, decided on 10th September, 2002.

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

----Ss. 14(5) & 99(1)---Disqualification of candidate---Order passed by Returning Officer accepting nomination papers of the candidate, had been challenged by appellant on ground that degree of B.A. produced by candidate was bogus and it did not contain required particulars and was not countersigned by the Registrar of the University---Representative of University Grants Commission had submitted that notwithstanding genuineness of degree furnished by candidate, University of Calcutta (India) from where said degree was issued was not accredited Institution and that said degree was not acceptable---Returning Officer provisionally accepted nomination papers of candidate subject to verification of degree in question---Order passed by Returning Officer was in derogation of law as no provision existed about provisional acceptance of nomination papers---Degree produced by candidate did not show father's name of holder of said degree and it was bereft of Roll number of the degree-holder---Necessary particulars were lacking in the degree, which had rendered it to be dubious---Candidate, in circumstances, was not qualified to be elected as a member of Assembly---Provisional acceptance of nomination form of candidate, being illegal, nomination papers of candidate, were rejected.

Appellant in person.

Syed Muhammad Saleem for Respondent No.2.

Muhammad Yaqoob, Director Finance, University Grants Commission.

CLC 2005 KARACHI HIGH COURT SINDH 633 #

2005 C L C 633

[Karachi]

Before Azizullah M. Memon, J

ASGHAR HUSSAIN---Petitioner

versus

Mst. TAUHEED BEGUM and 2 others---Respondents

Constitutional Petition No.S-459 of 2004, heard on 23rd December, 2004.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord---Constitutional petition---Landlady had sought ejectment of tenant from shop in question on the ground that the same was required for personal use of her son who being a graduate in commerce subject needed same to run his own business---Both Rent Controller and Appellate Authority concurrently allowed ejectment application and ordered ejectment of tenant from shop in question---Validity---Landlord/landlady was entitled to seek ejectment of tenant from premises on ground that same was bona fide required for personal use of his/her son having no independent business of his own---If a landlady had many premises under her ownership, even then choice would always remain with her to choose shop best situated for her son to utilize same for running his own independent business---Son of landlady was proved to have to establish his own business---Need of landlady to get tenant ejected from shop in question, in circumstances stood proved to be bona fide---Two Courts below, in circumstances had rightly directed for ejectment of tenant from shop in question---In absence of any illegality in the findings of two Courts below and misreading of evidence produced by parties, their concurrent findings could not be interfered with in Constitutional jurisdiction of High Court.

Muhammad Azizullah v. Abdul Ghaffar 1984 CLC 2837; S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119; Muhammad Yameen v. Khaliq Begum 1988 CLC 1297; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Hasan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832; Jehangir Rustam Kamalia v. State Bank of Pakistan 1992 SCMR 1296; Malik Muhammad Ramzan v. General Iron Stores and another 1995 SCMR 1125; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398 and Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 SCMR 1960 ref.

Abdul Wajid Wyne for Petitioner.

Muhammad Siddiq Mirza for Respondent No.1.

Date of hearing: 23rd December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 666 #

2005 C L C 666

[Karachi]

Before Mushir Alam, J

HAZRAT ALI---Plaintiff

versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Planning and Development and 2 others---Respondents

Suit No.391 of 1997 and C.M. No.1072 of 2003, decided on 24th May, 2004.

Civil Procedure Code (V of 1908)---

----S. 153 & O.VII, R.11---Rejection of plaint---Correction of name of defendant---Name of one of the defendants earlier cited in title of plaint was corrected without effecting change in name of his parentage---Correction in the name of defendant did not have any bearing on merits of suit---Bona fide mistake or misdescription could be rectified at any stage as no period of limitation was provided for such exercise in terms of S.153, C.P.C.---Since no one was in attendance from defendants side when case was called out application filed by defendants under O.VII, R.11, C.P.C. for rejection of plaint was dismissed.

Muhammad Anwar v. Muhammad Ashraf PLD 2001 SC 209 ref.

Nasir Maqsood for Plaintiff.

CLC 2005 KARACHI HIGH COURT SINDH 680 #

2005 C L C 680

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Messrs PAK SUZUKI MOTOR CO. LTD.---Applicant

versus

Haji AHMED SHAIKH and another---Respondents

Revision Application No.13 of 2001, decided on 16th December, 2004.

Limitation Act (IX of 1908)---

----S. 12(5) [as added by Limitation (Amendment) Act (XIII of 1991)]---Sindh Chief Court Rules (O.S.) Rr.323 & 331---Exclusion of time requisite for obtaining certified copy of judgment---Notice to applicant by Copying Branch, non-issuance of---Effect---Non-compliance of the provisions contained in the law and Sindh Chief Court Rules would not have the effect of saddling applicant with responsibility of delay caused due to such non-compliance---Limitation in such case would be calculated from the date of supply of certified copy---Principles.

Peninsular and Oriental Steam Navigation Co. v. Pfizer Laboratories Ltd. 1980 CLC 1972 and Muhammad Iqbal v. Karachi Metropolitan Corporation 2002 MLD 1856 fol.

Muhammad Iqbal v. Karachi Metropolitan Corporation 2002 MLD 1856 distinguished.

Nasir Maqsood for Applicants.

Mirza Sarfraz Ahmed for Respondent No.1.

Date of hearing: 16th December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 688 #

2005 C L C 688

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Messrs UNITY PAPER PRODUCTS through Partner---Applicants

versus

Messrs BEST PRODUCTS (PVT.) LTD. through Director and another---Respondents

Civil Revision Application No.197 of 2003, decided on 25th January, 2005.

Court Fees Act (VII of 1870)---

----S. 13---Civil Procedure Code (V of 1908), S.115---Application for refund of court-fee---Revision petition having been withdrawn and having not been heard at all on merits, High Court directed the refund of court-fees accordingly.

S.M. Yakoob for Applicant.

Aftab Hussain Soomro for Respondents

CLC 2005 KARACHI HIGH COURT SINDH 694 #

2005 C L C 694

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

IRFAN and 7 others---Petitioners

versus

KARACHI BUILDINGS CONTROL AUTHORITY and 5 others---Respondents

C.Ps. Nos.D-1048 and D-3007 of 1992, decided on 24th December, 2004.

(a) Karachi Development Authority Order [5 of 1957]---

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

----Art. 199---Constitutional petition---Laches---Effect---Laches per se would not bar filing of a Constitutional petition, nor would the laches be weighed in the scales of Limitation Act, 1908---Question of delay or laches was to be considered with reference to the facts of each case and delay/laches could be overlooked in a Constitutional petition if the facts of the case and dictates of justice so warranted.

Costa Livinas case 1999 SCMR 2883 and Aredshir Cowasjee v. Multiline Associates PLD 1993 Kar. 237 ref.

----Art. 85---Sindh Buildings Control Ordinance (V of 1979), Ss.21 & 2---Karachi Building and Town Planning Regulations, 1979, Vol.II---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contentions of the petitioners were that permission granted to the Building Developers by the Authorities for carrying out high rise multistoreyed building on an amenity plot was beyond their authority and power and was illegal, being in contravention of the relevant laws viz. Karachi Development Authority Order, 1957, Sindh Buildings Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 1979; that laid out plan, once approved by Karachi Buildings Authority could not be altered or modified without inviting objections as envisaged in the relevant statutes; that the construction was being carried in excess of plot ratio and the compulsory open space was also being covered and that the petitioners Constitutional rights of privacy and enjoyment of property had been contravened---Validity---Held, commercialization of plots on the main road was permitted by way of a resolution passed by the Governing Body of the Karachi Development Authority and the process of commercialization of residential plots commenced from the year 1980 and onwards, as a result whereof a large number of plots in the vicinity on main road stood commercialized and now a number of multistoreyed structures had been raised on main road and during such entire period the residents kept quiet and filed the petitions in 1992 and by now that building was occupied to some extent and a market was being run continuously---Third party interest had already been created and it was too late in the day to question the act of commercialization of plots in question and the belated prayer that the lease granted in favour of the Builders be cancelled, was neither justified nor reasonable---Conversion of residential plots on main road into commercial plots, therefore, were not a questionable act and only matter to be considered was that Building Bye-laws, Regulations etc. were not violated in that regard---Principles.

Secretary, Ministry of Defence v. Province of Punjab PLD 1975 SC 37; Messrs Zeshan Builders v. Karachi Building Control Authority 1992 MLD 2259; Suleman Mala v. Karachi Building Control Authority 1990 CLC 448; Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Zahid v. State PLD 1993 Kar. 237; Excel Builders v. Ardeshir Cowasjee 1999 SCMR 2089; Costa Livinas case 1999 SCMR 2883; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Shehla Zia v. WAPDA PLD 1994 SC 693; Khalil Jute Mills Limited v. United Bank Limited 1994 SCMR 512; Asghar Ali Khan v. Returning Officer 1999 CLC 565; Ardeshir Cowasjee v. Government of Sindh 1998 MLD 1219; Century Links Development Corporation (Pvt.) Limited v. Karachi Cantonment Board PLD 2000 Kar. 50; Ali Asghar v. Creators (Builders) 2001 SCMR 279; Kausar Musa Jee v. Niaz Ahmad 2000 SCMR 1823; Ardeshir Cowasjee v. K.B.C.A. 2002 CLC 673; Muhammad Hanif v. Samina Sibtain D-1153 of 2003; Captain Muhammad Aslam v. K.B.C.A. and others 771 of 2004; Ardeshir Cowasjee and others v. Clifton Cantonment Board and others C.P. No.D-294 of 1998 and Allah Rakhas case 2003 SCMR 1756 ref.

Naimur Rahman for Petitioners (in C.P. No.D-1084 and D-3007 of 1992).

Anwar Ali Shah for Respondent No.1 (in both petitions).

Ahmed Ali Pirzada, Addl. A.-G., Sindh for Respondent No.3 (in both petitions).

Umer Qureshi for Respondent No.4 (in both petitions).

Kh. Shamsul Islam for Respondent No.5 (in both petitions) and for Respondent No.6 (in C.P. No.D-1084 of 1992).

Date of hearing: 10th December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 713 #

2005 C L C 713

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

SINDH PEOPLES WELFARE TRUST (REGD.) through Secretary---Petitioner

versus

GOVERNMENT OF SINDH through Secretary Housing, Town Planning and Local Government and 2 others---Respondents

C.P. No.D-1461 of 1997, heard on 11th February, 2005.

(a) Karachi Development Authority Order [5 of 1957]---

----Art. 4(2)---Karachi Development Authority (Disposal of Land and Estates) Rules, 1971, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner, a charitable organization, had acquired rights in property through an allotment order and paid the full amount of the price of the land and possession was delivered to the petitioner---Cancellation of said allotment of property took place as a consequence of a omnibus order passed pursuant to the orders of the Provincial Government to the effect that allotment of plots made in violation of the Rules and Regulations in between 20-10-1993 and 5-11-1996 stood cancelled with immediate effect---No show-cause notice was given to the petitioner before cancellation of the allotment---Validity---Allotment of plot was made by the then Chief Minister of the Province without following the procedure prescribed by Karachi Development Authority Order, 1957 and Karachi Development Authority (Disposal of Land and Estates) Rules, 1971 and the petitioners themselves chose to defy the requirement of Rules by making a direct application for allotment to the Chief Minister who had no power in law to effect the allotment---Allotment was ordered by the Chief Minister overruling the recommendations of the Chief Secretary and bypassing the Committees of the Karachi Development Authority and the Governing Body empowered to make such allotment---Trustees of the petitioner organization happened to be four prominent members of the political party to which the then Chief Minister belonged and included the then Prime Minister of the country---Allotment in question, therefore, was not merely in violation of the Rules but also lacked bona fides---Petitioner had founded its claim on show-cause notice upon the principles of natural justice and not on any statutory provision of law---When the impugned action was taken in violation of mandatory provisions of law requiring notice to the affected party the action was void, ab initio---When absence of notice was complained of on the grounds of violation of the principles of natural justice, the defect could be rectified even at a consequent stage---Acceptance of payment by the Karachi Development Authority in circumstances, could not be deemed to have ratified the irregularity---Considering the unusual haste with which the then Chief Minister handed down the order of allotment, it was impossible to urge that any opportunity for independent application of mind was made available to the Governing Body and the Committee of the Karachi Development Authority---Held, allotment had been effected by a person who had no jurisdiction to do so and the petitioner could not claim having acquired an interest in the property which could not be taken away without being provided an opportunity of hearing particularly when the petitioner itself chose not to apply for allotment in the prescribed form according to the Rules and sought the same from a person having no jurisdiction---Petitioner could not claim violation of principles of natural justice in circumstances---High Court deprecated the conduct of public functionaries in using public property for political ends and also disapproved the tendency on the part of officials in ignoring the requirements of law---While dismissing the Constitutional petition, High Court directed that the amount deposited by the petitioner be refunded with 5% mark up from the date of deposit within 30 days.

Al-Shafiq Housing Society v. Pakistan Medical Association PLD 1992 SC 113 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court under Art.199 of the Constitution is discretionary and such discretion ought not to be exercised in aid of injustice notwithstanding the illegality of the impugned action.

----Art. 4(2)---Karachi Development Authority (Disposal of Land and Estates) Rules, 1971, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had acquired rights in property through an allotment order and the principles of natural justice required that the allotment could not be cancelled without a show-cause notice---If however, allotment made in violation of rules and regulations was required to be cancelled pursuant to a policy decision of the Government, the concerned authorities in the Karachi Development Authority ought to have applied their independent minds after hearing the petitioner as to whether the rules and regulations had in fact been violated while affecting the allotment in question.

Abdul Latif A. Shakoor for Petitioners.

Ch. Muhammad Rafique Rajouri, Addl. A.-G., Sindh for Respondent No.1.

Raghib Baqi for Respondents Nos.2 and 3.

Date of hearing: 11th February, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 731 #

2005 C L C 731

[Karachi]

Before S. Ali Aslam Jafri, J

SABAH SHIPYARD (PAKISTAN) LIMITED---Plaintiff

versus

RIAZ AHMED, SAQIB, GOHAR & CO.---Defendant

C.M.A. No.1517 of 2004 in Suit No.851 of 2004, decided on 24th November, 2004.

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

----O. XXXIX, R.10, S.151, O.XXIX, R.2 & O.VII, R.11---Application on behalf of plaintiff company under O.XXXIX, R.10 read with S.151, C.P.C. praying therein that until the disposal of the suit, defendants/ Auditors of the company be directed to deposit in Court all registers, documents and correspondence, including but not limited to correspondence addressed by and to the Company Registration Office in respect of the plaintiffs, records related to such of the companys as were required by the Companies Ordinance, 1984 to be maintained at the Registered Office of a Company, and kept by defendant in its capacity as the custodian of the plaintiffs statutory records and, once the same had been deposited, to permit the plaintiff to make photocopies of the same---Defendant claimed right of lien---Record showed that documents in question were required to be produced by the plaintiff before a Court in England where the proceedings between the plaintiff and the Government of Pakistan (as a guarantor for a corroboration) were pending---Plaintiff, in circumstances, was entitled to the relief sought for---Non-compliance of O.XXIX, R.2, C.P.C. by the plaintiff, however, had resulted in the rejection of the plaint of the plaintiff which rendered the application infructuous and liable to be dismissed---Contention of the defendant claiming the right of lien would not require any finding in circumstances.

Abdul Rahim and 2 others v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Cementation Intrafor and others v. Indus Valley 1989 MLD 4906; Messrs Taurus Securities Limited v. Arif Saigol and others 2002 CLD 1665; All India Reporter Ltd. and another v. Ramchandra Dhondo Datar AIR 1961 Bom. 292; Messrs Muhammad Siddiq Muhammad Umar and another v. the Australasia Bank Ltd. PLD 1966 SC 684; The Central Bank of India Ltd. v. Messrs Taj-ud-Din Abdur Rauf and others 1992 SCMR 846; Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. PLD 1959 SC (Pak.) 258 and H.M. Ebrahim Sait v. South India Industrials Ltd. AIR 1938 Mad. 962 distinguished.

Messrs V.N. Lakhani & Co., Karachi v. Government of Pakistan and 2 others PLD 1975 Kar. 781; Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 CLC 440 and Devendrakumar v. Gulabsingh AIR 1946 Nag. 114 ref.

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

----O. VII, R. 11---Rejection of plaint---Suit had been filed on the basis of a power of attorney executed by a Director of the plaintiff-Company in exercise of powers conferred upon him under the Articles and Memorandum of the Company but the fact remained that there was no resolution passed by the Board of Directors in that respect which was necessary under the said Article of the Company under which the Power-of-Attorney was executed by the Director of the Company---Opening words of the said Article showed that the powers to be exercised under said Article were subject to any resolution of the Board, which made it clear that a resolution of the Board of Directors of the company was sine qua non for exercise of the powers under the said Memorandum and Articles of Association of the Company by its Chief Executive---Suit filed, in circumstances, was barred under the law, hence the plaint was rejected under O.VII, R.11, C.P.C.---Other contentions of the defendant claiming the right of lien would not require any finding by the Court.

Salman Talibuddin for Plaintiff.

M. Akram Zuberi for Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 745 #

2005 C L C 745

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

KHALID MOHSIN---Petitioner

versus

SECRETARY, MINISTRY OF DEFENCE, Government of Pakistan, Islamabad and 2 others---Respondents

Constitutional Petition No.59 of 1988, decided on 23rd November, 2004.

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

----S. 45---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Disputed question of fact---Mutation, a document of title---Petitioner claimed to be owner of the land which had been mutated in favour of his predecessor-in-interest on the basis of allotment by Settlement authorities---Question for determination was whether the petitioner had acquired any title to the land so as to entitle him to the relief of possession or whether he had locus standi to seek declaration in respect of existence or otherwise of requisition---Validity---No allotment order by a competent officer in favour of the predecessor-in-interest of the petitioner was available on record---Petitioner had relied upon an order of Assistant Rehabilitation Mukhtiarkar directing that the land be mutated in the name of the predecessor-in-interest of the petitioner---Nothing was available to show that the predecessor-in-interest of the petitioner had applied for allotment of evacuee land against units available with him---Predecessor-in-interest of the petitioner was entitled to 159 units but was allotted land comprising of 453 units---Mutation entries did not confer title but could at the best be considered evidence of title which was rebutable---Such disputed questions requiring detailed scrutiny of facts and production of evidence could not be undertaken in the proceedings under Art.199 of the Constitution---Petition was dismissed in circumstances.

Hassan Akbar for Petitioner.

Nadeem Azhar Siddiqui, D.A.-G. and S. Tariq Ali, Federal Counsel for Respondents.

Ahmed Pirzada, Addl. A.-G.

Date of hearing: 29th August, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 753 #

2005 C L C 753

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

MUHAMMAD YOUSAF MEMON through Attorney and another---Petitioners

versus

CITY DISTRICT GOVERNMENT through District Coordinate Officer and 5 others---Respondents

Constitutional Petitions Nos.D-265, 266, 365, 366 and 367 of 2004, heard on 23rd December, 2004.

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

----Ss. 39 & 42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revenue record---Tampering with entries---Examination of revenue record by High Court---Petitioners assailed entries in Village Form VII made in their favour by Revenue authorities---Contention of the petitioners was that the land in question was allotted/leased out to their predecessors-in-interest which were later on transferred in their favour---High Court called for record and examined the same itself---Entries kept by the concerned Mukhtiarkar in favour of the petitioners were in violation of Revenue Laws---Entries in favour of the petitioners were kept without looking into the corresponding entries available in the record, by which the leases in favour of the predecessors-in-interest of the petitioners were already cancelled with red ink pursuant to the orders of the then Deputy Commissioner---Cancellation note against the original entries was made by the concerned officer against such entries and in spite of such note at seven different places of the corresponding entries in the Village Form VII, the concerned Mukhtiarkar had kept fresh entries in favour of the petitioners---Word Rad ( ) used in the cancellation note was tampered with by substituting the word Bahal ( ) with different pen---Effect---High Court having observed the tampering with record, directed Anti-Corruption Department to initiate criminal proceedings against the concerned Mukhtiarkar and Tapedar of the beat by lodging F.I.R.---High Court further directed the Board of Revenue or any other authority to immediately initiate disciplinary action against the concerned Mukhtiarkar and Tapedar---High Court declined to interfere with the entries and left the matter open for the petitioners to avail remedy, if any, under the Revenue Laws---Petition was dismissed in circumstances.

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

----Ss. 39 & 42---Revenue record---Tampering with entries---Land-grabbers, measures against---Remedial directions to Board of Revenue---High Court after examination of revenue record concluded that the entries subject-matter of the petition were tampered with to give benefit to petitioners---High Court had shown its serious concern about such tampering and to minimize the same directed Board of Revenue to order the concerned officials that the original revenue record would be kept with the concerned Mukhtiarkar in future and would not be removed from his office by any of his subordinates---Tapedar and/or Supervising Tapedar would not be handed over the original revenue record---Entries in the record would be kept and signed by the Supervising Tapedar along with the concerned Mukhtiarkar---Deputy District Officer (Revenue) would verify such entry---Concerned Mukhtiarkar would be made custodian of the record and Tapedar of the beat would have no access to the original record in future---High Court observed that tampering with revenue record had become a common feature of the day and high-ups in the Revenue Department had failed to take the required steps to check the forgeries in record of rights resulting in usurpation of thousands of Acres of Government lands by land-grabbers through the blessings of subordinate revenue staff besides depriving the private owners of enjoyment of their own properties.

Raza Muhammad Raza for Petitioners.

Abbas Ali, Addl. A.-G. for Government of Sindh.

Munawar Malik for Malir Development Project.

Manzoor Ahmad for C.D.G.K.

Date of hearing: 23rd December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 759 #

2005 C L C 759

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ Capt. S.M.

ASLAM and others---Petitioners

versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Executive Nazim-e-Aala and others---Respondents

Constitutional Petitions Nos.D-771, D-936 and D-1122 of 2004, decided on 5th November, 2004.

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

----Art. 199---Constitutional jurisdiction of High Court---Relief, moulding of---Scope---If the facts pleaded in petition warrant so, in order to meet the ends of justice, High Court has ample power to alter and/or mould the relief in favour of a petitioner, even if it is not prayed for.

(b) Karachi Development Authority Order (5 of 1957)---

----Art. 40---Constitution of Pakistan (1973), Art.199---Constitutional petition---Commercialization of residential plots---Notification was issued by Provincial Government for commercialization of road on which the disputed plot was located---City District Government did not approve concept plan submitted by the petitioner on the ground that the plot was not commercialized by it---Validity---As the road on which the plot was located had been commercialized by virtue of the Notification under the Zonal Plan Scheme, there was no question of seeking permission of Karachi Development Authority or City District Government for commercialization---Once the notification had been issued by the Provincial Government, the petitioner was not required to seek change of land use as the status of subject plot already stood changed from residential to that of commercial on the issuance of Notification by Provincial Government---No permission of Karachi Development Authority was required and the petitioner was free to construct a commercial building on the plot in dispute subject to approval of concept plan by City District Government---Petitioner was not required to pay any commercialization fee---Petition was allowed in circumstances.

----S. 6---Repeal of statute---Effect---Once vested right has accrued in favour of a party under a statute, which statute is subsequently repealed, such right cannot be disregarded.

Petitioner in person (in Constitutional Petition No.D-771 of 2004).

Rasheed A. Razvi for Petitioner (in Constitutional Petition No.D-936 of 2004).

Raja Sikandar Khan Yasir for Petitioners (in Constitutional Petition No.D-1122 of 2004).

Anwer Ali Shah for K.B.C.A.

Ashraf Ali Butt for Cantonment Executive Officer.

Manzoor Ahmed for City District Government.

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

Date of hearing: 5th November, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 768 #

2005 C L C 768

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SOHAIL and another---Petitioners

versus

Mst. RASHIDA BEGUM and another---Respondents

Constitutional Petition No.S-569 of 2002, decided on 2nd December, 2004.

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

----S. 15---Ejectment application---Statement recorded in other case---Tenant relied upon a statement not recorded in the present case but recorded in another case---Such statement was not brought on record of the ejectment proceedings in the present case---Effect---Tenant was not allowed to rely on such statement in circumstances.

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

----S. 15---Ejectment of tenant---Default in payment of monthly rent---Delayed filing of ejectment application---Presumption against landlord---Ejectment application was filed in the month of August 1998, whereas default in payment of rent was alleged from the month of June 1995---Contention of the tenant that the delay in filing of ejectment application had given an inference to the presumption that the landlord had all along received the rent was repelled, as there was no such law warranting the inference.

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Payment of monthly rent---Onus to prove---Rent Controller dismissed the application but Appellate Court allowed the same and passed eviction order against the tenant---Plea raised by tenants was that the rent for the period from June 1995 to December 1998, was deposited in Court---Validity---Tenants failed to discharge the onus that they had actually tendered the rent to landlord from June, 1995 to December, 1998---Version of tenants that they deposited rent for the defaulted period in Court had given an inference of non-payment of rent for the period---Findings of Appellate Court to the effect that the tenants committed default in payment of monthly rent was not open to any exception---No illegality in the finding of Appellate Court having been found---Petition was dismissed in circumstances.

State Life Insurance Corporation v. Surriya Sajjad 2000 CLC 1813 ref.

Umar Hayat Sandhu for Petitioners.

Arif Khan for Respondent No.1.

Date of hearing: 2nd December, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 787 #

2005 C L C 787

[Karachi]

Before Khilji Arif Hussain, J

ARSHAD KHAN---Petitioner

versus

Mrs. FAUZIA NASIR and 2 others---Respondents

Constitutional Petitions Nos.636 and 637 of 2002, decided on 27th October, 2004.

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

----Ss. 10, 15(2)(ii) & 15---Default in payment of rent---Modes of tendering rent---Tenant had alleged that on refusal of landlady to receive rent of the premises in question on pretext that printed receipts were not available and that she would receive rent later on, he deposited rent with the Rent Controller and as such he had not committed default in payment of rent---Validity---Tenant, on alleged refusal of landlady to receive rent should have sent rent by money order and on refusal to receive said money order, then was justified to deposit rent with the Rent Controller---Deposit of rent with Rent Controller without adopting due course of law was totally contrary to provisions of S.10(3) of Sindh Rented Premises Ordinance, 1979---Tenant having deposited rent in the Court without first remitting same by postal money order and also failed to tender rent to landlord after service of notice of the case, he had committed default in payment of rent and was rightly ordered to be ejected on that ground.

Mrs. Ram Lal and 8 others v. Mst. Nargis Khanum PLD 1996 Kar. 440; Munawar Hussain v. Badiul Hassan 1992 CLC 2495; Feroze Ahmad v. Mst. Zehra Khatoon 1992 CLC 735; Mst. Surriya Bibi v. Muhammad Siddique 1994 CLC 955; Mirza Anwar Baig v. Abdul Rab 1996 CLC 394; Abdullah v. Hassan Abbas 1985 CLC 892; Hirijibhai Behrana Dare-Mehar v. Messrs Steel Works Partnership Firm 2001 SCMR 1888 and Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCMR 1140 ref.

Muhammad Sadiq for Petitioner.

Shaffat Hussain for Respondents.

Date of hearing: 7th October, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 797 #

2005 C L C 797

[Karachi]

Before Azizullah M. Memon, J

KAMRAN AKHTER---Appellant

versus

JAWED AHMED KHAN---Respondent

First Appeal No.10 of 2004, decided on 17th January, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount---Cheque for repayment of amount of loan which was issued by defendant on 7-12-2000, was presented by plaintiff in Bank on 24-7-2001, after more than six months of its issue---Bank declined to encash cheque as same bore date of issue of more than past six months and had become "stale cheque"---Suit based on such out of date stale cheque, could not have been decreed by Trial Court---Appeal filed against judgment of Trial Court was allowed and suit was remanded to Court below with a direction that same be treated to have been filed under ordinary provision of Civil Procedure Code and be tried and decided accordingly.

Habib Bank Ltd. v. Jamilur Rehman 1994 MLD 271; Messrs Karachi Bonded Stores Ltd. v. Trustees of the Port of Karachi 1999 MLD 3214; Retd. Colonel Ashfaq Ahmed and others v. Shaikh Muhammad Waseem 1999 SCMR 2832; United Bank Limited Mianwali v. Muhammad Khan and another PLD 1988 Lah. 424 and Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 ref.

Zaheer Minhas for Appellant.

S. Ali Ahmed Tariq for the Respondent.

Date of hearing: 10th January, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 931 #

2005 C L C 931

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

Syed GHULAM MUSTAFA SHAH and others---Petitioners

versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petitions Nos.D-527 to D-530 and D-386 of 1994, decided on 10th March, 2004.

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

----Ss. 161, 163 & 164---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Allotment of land---Cancellation---In counter Constitutional petitions, legality and validity of orders passed by Revenue Authorities had been challenged by two rival groups which, for sake of convenience, were referred as 'claimant' and 'Haris'---Land in dispute approximately measuring 150 acres being evacuee property was allotted to 'claimant' in satisfaction of his verified claim---Out of said land 'claimant' allegedly surrendered an area of approximately 51 acres and opted to purchase same as provided under Martial Law Regulation No.89/91 and had claimed to have deposited entire amount---Barrage Authorities/Colonization Officer, however, granted disputed land to "Haris" which was challenged by 'claimant' before Additional Commissioner who, vide his order, declared order passed by Colonization Officer as illegal and held that land so granted to 'Haris' was the property of Central Government---Said order of Additional Commissioner was challenged in appeal and revision by both groups before Member (Judicial) Board of Revenue and the Board after hearing parties found that order passed by Colonization Officer was appropriate and set aside order passed by Additional Commissioner---On filing review by 'claimant', Member Board of Revenue altered his previous order observing that grants in favour of "Haris" being made during ban period, were illegal and against Government Policy and cancelled the grants---Member Board of Revenue also observed in his order that no order for re-purchase of surrendered land by 'claimant' as opted purchaser being available on record, payment of purchase price was in collusion with Revenue Staff and land in question, on its surrender by 'claimant' under M.L.R. No.89, was entered in Revenue Record in the name of Central Government---Claimant was unable to place on record or point out from record any order for repurchase of surrendered land having ever been issued by competent Authority in his favour---Order passed by Member Board of Revenue that payment of challan was made by claimant in collusion with lower staff of Revenue Department was unexceptionable---Member Board of Revenue had also rightly found that disposal of land in dispute in favour of 'Haris' during ban period was illegal and against Government Policy---Two orders passed by Member (Judicial) Board of Revenue were neither illegal nor perverse nor were suffering from any jurisdictional error---Orders being just, legal, proper and based on valid and cogent reasons, could not be interfered with by High Court in its constitutional jurisdiction.

Bhim Rai Mulani and Jagdesh Mulani for Petitioners in (Constitutional Petitions Nos.D-527, 528, 529 and 530 of 1994).

Masood A. Noorani, Addl. A.-G., Sindh for Respondents Nos.1 to 3.

Respondent No.4 Rahim Bux (in Constitutional Petition No.D-527 of 1994).

Respondent No.4 Younus (in Constitutional Petition No.D-528 of 1994).

Respondent No.4 Sikandar (in Constitutional Petition No.D-529 of 1994).

Muhammad Younus Behan for Respondent No.4 (in Constitutional Petition No.D-530 of 1994).

Muhammad Younus Behan for Petitioners (in Constitutional Petition No.D-386 of 1994).

Jagdesh R. Mallani for Respondent No.4 (in Constitutional Petition No.D-386 of 1994).

Date of hearing; 10th March, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 1010 #

2005 C L C 1010

[Karachi]

Before Muhammad Afzal Soomro, J

Capt. NASEEMUL HAQ‑‑‑Applicant

Versus

Dr. MUHAMMAD FAROOQULLAH and another‑‑‑Respondents

C. P. No. S‑209 of 2003, decided on 15th September, 2004.

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

‑‑‑‑O. XLI, R. 27‑‑‑Additional evidence, production of‑‑‑Where application for production of additional evidence was filed with the object to overcome the weakness and lacuna in evidence by producing additional evidence, Appellate Court should not have allowed production of additional evidence nor same should have been relied upon for reversal of order passed by Court below.

Bashir Ahmed v. Ahmad‑ul‑Haq Siddiqui 1985 SCMR 1232; Asadullah Khan v. Abdul Karim 1995 CLC 1889 and Town Committee Jauharabad v. Falak Sher 2003 CLC 71 ref.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Ejectment of tenant on ground of default in payment of rent‑‑‑Burden to prove payment of rent, no doubt initially was upon the landlord, but it would shift upon the tenant once landlord asserted on oath that rent had not been paid to him‑‑‑Reason for such principle was that status of tenant was that of a debtor and a fact could not be proved in the negative‑‑‑Tenancy in the present case being on monthly basis, if tenant had committed default even in respect of one month, subsequent payment of rent could not wipe off default in payment of rent.

Allah Din v. Habib PLD 1982 SC. 465; Dr. Salma Nassir v. Zaitoon Khatoon and 5 others 1986 CLC 720; Amin Muhammad and another v. Muhammad Bux and others PLD 1961 (W.P.) Kar. 173; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 and Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P. and others 1993 SCMR 618 ref.

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual controversies could not be investigated and decided by High Court in exercise of jurisdiction under Art. 199 of the Constitution‑‑‑Constitutional jurisdiction had been invoked in the present case questioning the conflicting findings of judgments passed by two Courts below together with assertion that material evidence had not been considered or had been misread‑‑‑Moreover, issues raised about burden of proof and admissibility of additional evidence, in the case were purely legal, affecting jurisdiction of Appellate Court below‑‑‑High Court could validly entertain said questions and adjudicate upon same in accordance with law.

Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680 ref.

Mushtaq Ahmad Memon for Applicant.

Hyder Raza Naqvi for Respondents.

Date of hearing: 11th August, 2004.

CLC 2005 KARACHI HIGH COURT SINDH 1021 #

2005 C L C 1021

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

IQBAL AHMED and others‑‑‑Petitioners

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN and another‑‑‑Respondents

C. P. No. D‑684 of 1999, heard on 24th February, 2005.

Evacuee Trust Property (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss. 8 & 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Evacuee trust property‑‑‑Transfer of‑‑‑Petitioners had claimed that property in question had been transferred to them on 18‑9‑1962 as they had bought it in public auction and a P.T.D. had been issued to them in respect thereof‑‑‑Property in question was under management and control of Deputy Administrator Evacuee Trust Properties since 1‑4‑1960 and was notified as such by the Divisional Evacuee Trust Committee of Evacuee Property Trust Board in official Gazette on 15‑7‑1963‑‑Objections to treatment of said property as evacuee trust property were invited, but petitioners had not communicated any objection to said Committee‑‑‑Clause (b) of S.10(1) of Evacuee Trust Property (Management and Disposal) Act, 1975, only permitted validation of transfer of property through a P.T.D. issued prior to a specific date which was June, 1968, if such validation was made against a verified claim, whereas petitioners had claimed that they had purchased property in question in open auction and not against satisfaction of their verified claim‑‑‑Provisions of S.10(1)(b) of Evacuee Trust Property (Management and Disposal) Act, 1975 would ex facie not apply to the transaction in question‑‑‑Even otherwise petitioners were allowed more than quarter of a century (27 years) to pass since grant of the P.T.D. and publication of property in Gazette, but they made no efforts even to collect rent from its occupants‑‑‑Permanent Transfer Deed also had been alleged to be a forged document‑‑‑Petitioners having failed to prove their claim in respect of property in question, their Constitutional petition, was dismissed.

M.G. Dastagir for Petitioners.

Faisal Arab, Standing Counsel for Respondent No. 1.

Malik A.R. Arshad for Respondents Nos.2 and 3.

Date of hearing: 24th February, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1032 #

2005 C L C 1032

[Karachi]

Before Rahmat Hussain Jafferi, J

SIKANDAR ALI ‑‑‑Applicant

Versus

Haji ABDUL KARIM and others‑‑‑Respondents

Civil Appeals Nos.S‑6 and 7 of 1999, decided on 10th January, 2005.

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

‑‑‑‑S. 9‑‑-Jurisdiction of Civil Court-‑‑Ouster of jurisdiction‑‑‑Conditions to be examined‑‑‑Four conditions which were to be examined for ousting the jurisdiction of Civil Court or otherwise were that the Authority should have been constituted as required by the Statute; that the person proceeded against should be subject to the jurisdiction of the Authority; that the ground on which the action was taken should be within the grounds stated by the Statute; and that the order made should be such as could have been made under the Statute‑‑If said conditions were fulfilled, then ouster of jurisdiction of Civil Court was complete even if the Authority had committed some omission or irregularity in adopting the procedure.

1984 CLC 411; 1985 CLC 1817; 1974 SCMR 356; 1999 SCMR 1202; 1970 SCMR 506; 1982 CLC 55; PLD 1966 Kar. 315 and Zafarul Islam v. Islamic Republic of Pakistan PLD 1960 SC 117 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑When neither was there any illegality or irregularity in the impugned judgment and decree nor was any misreading or non‑reading of evidence, impugned judgment and decree, would not require interference in revisional jurisdiction of High Court.

Rahmat Ali Rajput for Applicant.

Moohanlal K. Makhijani for Respondents.

Muhammad Bachal Tonyo, Addl. A.‑G. for the State.

Date of hearing: 10th January, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1042 #

2005 C L C 1042

[Karachi]

Before Khilji Arif Hussain, J

SHAUKAT ALI and 2 others‑‑‑Plaintiffs

Versus

LIAQUAT ALI and 6 others‑‑‑Defendants

Suit No.517 of 1993, heard on 28th August, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2) & O.VII, R.11‑‑‑Specific Relief Act (I of 1877), S.42‑‑Allegation of fraud and misrepresentation‑‑‑Suit for declaration and damages‑‑‑Maintainability‑‑‑Rejection of plaint‑‑‑Remedy had been introduced by Legislature through S.12(2), C.P.C. to provide a speedy and cheap relief to affected parties in case party would establish that judgment, decree or order had been obtained by fraud, misrepresentation or want of jurisdiction‑‑‑Remedy for filing suit challenging judgment, decree or order by way of filing separate suit, was no more available to parties and an order/judgment/decree, passed by the Court could be questioned now by filing application under S.12(2), C.P.C.‑‑‑Entire claim of plaintiffs in the present case, was based on allegation that order of ejectment passed by Rent Controller had been obtained by defendants by fraud, misrepresentation and due to professional misconduct of defendants/advocates who obtained said order in collusion with each other by concealing material facts from the Court‑‑‑Since there was bar against filing any suit questioning the validity of order passed by the Court; even if such order had been passed without jurisdiction, present suit in which plaintiffs had sought declaration that order had been obtained by perjury in relation to proceedings in the case, said declaration could not be granted‑‑Alleged damages could be claimed by plaintiffs only if competent Court would hold that order was obtained by defendant by fraud, misrepresentation and concealment of facts‑Plaintiffs had no cause of action to claim alleged damages‑‑Validity of judgment, decree or order, could not be challenged by way of independent suit on ground of fraud, misrepresentation or want of jurisdiction‑‑‑Plaint was rejected as same was barred under S.12(2), C.P.C.

Mrs. Amina Bibi v. Nasrullah and others 2000 SCMR 296; Ardeshir Cowasjee and others v: K.B.C.A. PLD 2003 Kar. 314; 1984 SCMR 586 and 1999 SCMR 1516 ref.

Ghulam Ghous for Plaintiffs.

Abdul Waheed Kanjo for Defendants.

2005 C L C 1207

[Karachi]

Before Mushir Alam, J

NATIONAL BANK OF PAKISTAN---Plaintiff

Versus

SHOGAN INT (PVT.) LTD. and other---Defendants

Suit No.B-44 of 1998, decided on 1st March, 2005.

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

---O. XXII, R. 10---Person on whom the interest or liability devolves, nay be joined to prosecute or defend the claim in terms of O.XXII, R.10, C.P.C.

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

----S. 41---Where a promisee accepts performance from a third person, cannot, afterwards, enforce performance against the predecessor promisee.

----Ss. 62 & 41---Novation of contract---Effect---Tenor of the agreement sufficiently demonstrated that in the present case, plaintiff accepter assumption of the liability by the defendants---Such assumption amounted to novation of contract---Liability, if any, on the basis of claim in suit :gad been taken over and assumed under a fresh agreement, therefore, predecessor agreement on the basis of which suit was filed was superseded and was no more enforceable---Successor agreement was in fact novation of contract relieving and discharging the earlier promisors of their liability, if any.

S. Sibtain Fazli v. Star Film Distributors PLD 1964 SC 337 fol.

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

----Ss. 41 & 62---Where parties to the contract agree to substitute a new contract the original contract need not be performed; it gives effective discharge to the party liable under the predecessor contract---Only contract under the circumstances is the successor where the creditor himself is party to a contract and accepts its performance by another se: of persons, who not only assumes, the previous liability but also agree: to discharge the same---Creditor, in the present case, to all intent any purposes, had discharged the earlier debtors---Plaintiff failed to point out any clause in the agreements whereby plaintiff had reserved to itself, any right to enforce the liability in suit against the original debtors either jointly and/or severally with the new set of the debtors---Once the plaintiff unequivocally accepted the assumption and discharge of suit liability by the particular defendants, in fact exonerated and discharged the other defendants of any suit liability and suit could be decreed against the defendants who were not exonerated by the plaintiffs.

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

----O. I, R. 10---Court, under O.I. R. 10, C.P.C. at the best, may either join or refuse to join or delete any party but cannot decree a suit.

Zubair Qureshi for Plaintiff.

M. Salim Thepdawala for Defendants Nos. 1 to 3.

Muhammad Habib Khan for Defendant No.4.

CLC 2005 KARACHI HIGH COURT SINDH 1236 #

2005 C L C 1236

[Karachi]

Before Mushir Alam, J

HABIB ADM LIMITED---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LIMITED---Defendant

C.M.As. Nos.4215, 4216 and 4217 of 2005 in Suit No-680 of 2005, decided on 20th May, 2005.

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

----Ss. 24(2) & 26(6)---Specific Relief Act (I of 1877), Ss.42 & 54--- Suit for declaration and permanent injunction---Controversy raised in suit was demand raised by Electric Supply Company as plaintiff had made excess payment---Controversy as urged in the suit fell within the purview of Ss.24(2) and 26(6) of Electricity Act, 1910---Controversy was referred to, plaintiff was to deposit current Electric Inspector; in the meantime plaintiff was to deposit current demand with the Company and disputed amount was to be deposited wish Nazir of the Court within three days---Electric Inspector was directed to decide controversy within three months---Pies were entitled to avail remedy of appeal as provided under Electricity Act, 1910 itself---Electric Supply Company could not take any coercive action for recovery of disputed amount till decision was recorded by Electric Inspector.

Salim Salam Ansari, Muhammad Nasir Khan and Mukhtiar Ahmed Kuber for Plaintiff.

CLC 2005 KARACHI HIGH COURT SINDH 1305 #

2005 C L C 1305

[Karachi]

Before Amir Hani Muslim, J

Messrs TRADING CORPORATION OF PAKISTAN -Plaintiff

Versus

Messrs RAHAT & CO.---Defendant

C.M.A. No.1666 of 2004 in Suit No.196 of 1996, decided on 11th March, 2005.

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

----O. XIII, R.2---Non-production of documents---Effect---Under the law of pleadings, a party is required to plead the material facts and there is nothing under the C.P.C. under which a party is obliged to file copies of documents along with the pleadings---Non-filing of such documents with the written statement by the defendant was immaterial.

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

----O. XIII, R.2---Issue involved in the suit was that of wastage/shortage in movement of rice---Plaintiff which was a public functionary, was in custody and possession of various reports and opinions, which reflected the natural wastage/shortage in handling the movement of rice at various stages and conditions---Wastage/shortage in movement of rice according to such reports was inevitable---Documents sought to be produced therefore, were material for the purposes of resolving the controversy between the parties---Withholding of such material by the public functionary deprecated by High Court.

----O. XIII, R.2 & O.XII, R.8---Qanun-e-Shahadat (10 of 1984) Art.77---Once the affidavit-in-evidence has been sworn by the witness of the plaintiff, who was in custody of the relevant documents and who had denied the contents of the written statement, even after service of legal notice under O.XII, R.8, C.P.C. read with Art. 77 of the Qanun-eShahadat, 1984, defendant was justified in making the application under O.XIII, R.2, C.P.C. in the given circumstances.

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

----Art. 158---Privileged document---In order to claim privilege, law requires specific procedure, which, in the present case, was not adhered to therefore, documents in question could not be treated as privileged documents.

(e) Document-----

---- Party cannot be compelled to disclose the source for obtaining copy of any document.

Bisvil Spinners (Pvt.) Ltd. v. Pakistan PLD 1992 SC 96 fol.

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

----O. XIII, R.2---Object, scope and application of O.XIII, R.2, C.P.C.

The provisions of Order XIII Rule 2, C.P.C. are an exception and have to be interpreted liberally once the Court is of the opinion that the documents sought to be produced are the relevant documents for the purpose of resolving the controversies between the parties and the documents sought to be produced are relevant in this regard, which would resolve the controversy between the parties.

The rules and procedure are intended to advance justice rather than to obstruct it and objection in regard to delay could hardly be a ground to deny a party to produce documents under Order XIII Rule 2, C.P.C., which documents were otherwise relevant in resolving the controversy between the parties. The object of Order XIII Rule 2, C.P.C. is to exclude forged documents and expedite trial but it is never intended to apply this provision to deny a party to produce genuine documents which have the effect of resolving controversy between the parties on the ground that such an application has been made at a belated stage.

Bisvil Spinners (Pvt.) Ltd. v. Pakistan PLD 1992 SC 96 and Allah Bakhsh v. Fateh Bibi 1994 SCMR 1945 distinguished.

Mutali v. Manzoora PLD 1994 Lah. 298; Walya v. Zaiban ,1984 CLC 1385; United Bank Ltd., Karachi v. Shabbir Ahmed Abbasi PLD 1981 Kar. 255; Muhammad Hussain v. Settlement Commissioner, Lahore PLD 1984 Lah. 139; Nawab Bibi v. Additional District Judge PLD 1993 Lah. 492; Makhdoom Ahmed Mahmood v. Fouzia Hussain 1995 MLD 1164 and Muhammad Hanif v. Parsan Bibi 1996 MLD 1158 ref.

Syed Mamnoon Hassan for Plaintiff.

H.A. Rahmani for Defendant.

Date of hearing: 11th March, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1318 #

2005 C L C 1318

[Karachi]

Before Muhammad Sadiq Leghari, J

Messrs BATA PAKISTAN LIMITED---Petitioner

Versus

VTH ADDITIONAL DISTRICT JUDGE, KARACHI (SOUTH) and 14 others---Respondents

Constitutional Petitions No.769 of 2003, decided on 19th March, 2004.

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

----S. 16(1)(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Non-compliance of tentative rent order---Striking off defence of tenant---Rent Controller passed consent order directing tenant to deposit in the Court arrears of rent within 30 days, but tenant deposited rent two days after the expiry of 30 days period as specified in tentative rent order passed by Rent Controller under S.16(1) of Sindh Rented Premises Ordinance, 1979---Tenant explained the delay of two days in depositing arrears of rent that his advocate and advocate of landlords had been negotiating on the question of payment of arrears of rent outside the Court directly to landlords and they were kept on promises till the expiry of specified period of 30 days---Tenant pleaded that delay in deposit of rent was neither wilful nor. deliberate---Rent Controller repelling explanation of tenant directed his ejectment by striking off his defence--Appeal filed by tenant against judgment of Rent Controller having been dismissed by Appellate Authority, tenant had filed Constitutional petition---Validity---Tenant had not come forward to say a word on Oath in respect of non-compliance of direction issued by Rent Controller--Even otherwise arrangement for payment of arrears of rent directly to landlord was definitely against direction issued by Rent Controller through tentative rent order under S.16(1) of Sindh Rented Premises Ordinance, 1979 which required the tenant to deposit arrears of rent in the Court---No rational or reasonable justification for making such arrangement seemed to be available---Contention that tenant's counsel wanted to save parties from inconvenience of depositing rent in the Court and withdrawing from there, was not convincing one, but was a lame excuse and was not valid reason for non-compliance with tentative rent order passed by Rent Controller---Conclusions drawn by Rent Controller and Appellate Authority, were correct and did not warrant any interference of High Court in exercise of its Constitutional jurisdiction.

State Life Insurance Corporation Pakistan v. Kotri Textile Mills Limited 2001 SCMR 605; Muhammad Umar v. Mst. Aiysha Aziz, 1981 SCMR 276; M. Nasir v. S. Shaukat Ali, 1982 SCMR 985; Malik Aman v. Khawaja Abdul Aziz through L.Rs. 1987 CLC 425 ref.

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

----S. 16(1)(2)---Non-compliance of tentative 'rent order---Striking off defence of tenant---Explanation for non-compliance of tentative rent order---Authority of Rent Controller to consider explanation---Tentative rent order passed by Rent Controller required tenant to deposit arrears of rent within thirty days, but tenant failed to do so and deposited said rent with delay of two days---Explanation advanced by tenant for said delay of two days in depositing rent was not considered by Rent Controller under a wrong assumption that he had absolutely no authority to consider explanation---Such was not correct approach of the Rent Controller, because perfect barrier on his powers was in respect of condonation of delay, which would not mean the restriction upon considering the explanation in order to establish that it was due to the reasons beyond the control of party concerned.

Rao M. Shakir Naqashbandi for Petitioner.

Masood Khan Ghory for Respondents Nos.3 to 15.

CLC 2005 KARACHI HIGH COURT SINDH 1391 #

2005 C L C 1391

[Karachi]

Before Anwar Zaheer Jamali and S. Zawwar Hussain Jaffery, JJ

FAISAL HYDRANT---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-1059 of 2004, decided on 6th October, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---When a Constitutional petition relating to same controversy is already pending before the High Court, it will be more appropriate if the petitioner sought any further relief relating to same dispute by filing interlocutory application in such proceedings instead of filing a fresh petition.

Ms. Soofia Saeed for Petitioner.

Ahmed Pirzada, A.A.-G. Sindh and Manzoor Ahmed for C.D.G.K. for Respondents.

CLC 2005 KARACHI HIGH COURT SINDH 1430 #

2005 C L C 1430

[Karachi]

Before Mushir Alam, J

Mrs. AZRA NAZIM KAZMI---Plaintiff

Versus

Professor Colonel ASIF ALI NUR and another---Defendants

Suit No.1616 of 2000 C.M.As. Nos.5306 and 6140 of 2003, decided on 6th April, 2005.

Civil Procedure Code (V of 1908)---

----O.XI, Rr. 21, 12, 13, Ss.148 & 151---Application under O.XI, R.21, C.P.C. by defendant, who sought dismissal of suit for want of prosecution due to non-compliance of the order of the defendant's application under O.XI, R.12, C.P.C. with further contention that the suit was filed without any documents and High Court had directed the plaintiff to disclose the documents which was not done till today---Plaintiff, on service, moved an application under S.148 read with S.151, C.P.C. seeking condonation of delay in filing the affidavit of the plaintiff in terms of O.XI, R.13, C.P.C. and affidavit regarding discovery of the documents under O.XI, R.13, C.P.C. was also filed---Effect---Held, since the application under S.148, C.P.C. seeking condonation of delay was filed when almost 17 months had passed the documents had been placed on record and no prejudice would be caused to the defendant as the evidence had yet not commenced; at the best, costs, could be imposed on the plaintiff for filing the same belatedly---Application of the defendant was dismissed and application of the plaintiff was allowed however, subject to costs of Rs.2,000 and affidavit regarding discovery of the documents under O.XI, R.13, C.P.C. was taken on record.

PLD 2005 SC 1; PLD 1988 SC 109; 1988 SCMR 82 and 1997 MLD 1852 ref.

Nasir Maqsood for Plaintiff.

Muhammad Ali Sayeed for Defendant No.1.

CLC 2005 KARACHI HIGH COURT SINDH 1484 #

2005 C L C 1484

[Karachi]

Before Mushir Alam, J

MUHAMMAD HANIF and 3 others---Applicants

Versus

KARACHI TRANSPORT CORPORATION through Chairman Secretary or Director and 2 others---Respondents

C.M.As. Nos. 507, 50 and 3110 of 2003 in Exe. Appl. No.51 of 2002, decided on 6th April, 2004.

Execution of decree---

----Application for recalling the order passed by the High Court whereby non-food account of the judgment-debtors was ordered to be attached---Validity---Affidavit filed in support of application revealed that the decree was passed against Karachi Transport Corporation or Transport Department, Government of Sindh---More than one year had passed since the date of judgment and the Government of Sindh had not taken any steps for the satisfaction of the decree---High Court accepted the application and the amount attached was ordered to be remitted to Nazir of the High Court for payment.

Nasir Maqsood for Decree-holder.

Abbas Ali, Addl. A.-G. for Defendants.

CLC 2005 KARACHI HIGH COURT SINDH 1602 #

2005 C L C 1602

[Karachi]

Before Mushir Alam, J

Messrs GREEN FUELS---Plaintiff

Versus

SHELL PAKISTAN LIMITED---Defendant

Suit No.927 of 2004, decided on 3rd May, 2005.

(a) Easements Act (V of 1882)---

----Ss. 60 & 62---Specific Relief Act (I of 1877), Ss. 42 & 55---Suit for declaration and permanent injunction---Plaintiffs had sought declaratory relief as to their right to operate C.N.G. stations under the licence agreement and had impugned the notice from the defendant (licenser) to plaintiffs to vacate---Plaintiff had prayed for consequential injunctive relief to the effect that the defendants be restrained to take adverse action against the plaintiffs on the basis of the notice calling upon the plaintiffs to vacate the C.N.G. filling plant within 30 days---Permission to operate C.N.G. station, issued by all the regulatory agencies were admittedly valid for 15 years and it was for that reason that renewal for two consecutive terms of five years was provided for in the agreement to cover the period of permission---Renewal clause in the agreement was to the effect that "this licence is valid for an initial period of 5 years beginning from the date, month and year first above written and may be renewed for two additional terms of five years each"---Contention of defendants that licence was only renewable at the option of the licenser was not convincing, the option for renewal in the renewal clause was not left at the discretion either of the licenser or of licensee---Termination of licence clause also showed that defendant could not terminate the agreement arbitrarily or at its sweet will, whims and fancies---Discretion was controlled by well-defined contingencies in terms of clauses of the agreement---Defendant, in terms of such clauses could terminate the licence before expiry of term on occurrence of three eventualities namely that the licenser for the surrender to its landlords required the premises; that the licensee had failed to discharge any of the objections under the agreement and that the licensee had failed to observe the safety standards---None of the contingencies, giving rise to revoke the licence agreement had admittedly either been invoked or, shown to, have occurred---Effect---Held, on examination of licence agreement as a whole it was noticed that the use of word "may" as employed in the renewal clause of the agreement carried obligatory connotation---Defendant, thus was obliged to renew the licence for two consecutive terms of five years as committed---Unless the contingencies as stipulated under termination clause of the agreement were available or occurred, the licence could not be revoked or come to an end before 15 years---Plaintiff, in circumstances had made out a prima facie good case for the grant of application, balance of inconvenience also leaned in favour of the plaintiff in case injunction was refused, beside no loss would be caused to the defendant, on the contrary, it was the plaintiff who would suffer loss if uprooted.

(b) Easements Act (V of 1882)---

----Ss. 60 & 62---Relationship of licenser and licensee is regulated under the Easements Act, 1882 and licensee has limited right as against the tenant who could not be evicted otherwise than provided under the rent laws.

----"May"---Connotation---"May" is generally used in permissive sense, it is interchangeable with "shall,'' having obligatory connotation, and at times, if context so permits, could be interpreted as obligatory---Principles.

"May" is generally used in permissive sense, it is interchangeable with "shall" having obligatory connotation, and at times, if context so permits, could be interpreted as obligatory. It therefore, follows that the use of "may" in any legal or contractual instrument should not always be perceived with rigidity as attributed to it in ordinary usage. Use of such expression carries varying connotations. At times, it implies what is permissive, elective, optional or discretionary and, at times, it is obligatory and imperative upon an authority or person invested with power to exercise it, as laid down under the instrument. To decipher the intention of parties whether "may" is to be given optional connotation or imperative, instrument is to be examined as an organic whole.

Tanzeem-e-Mulazmin Baldia v. Government of West Pakistan PLD 1971 Kar. 535; H.M. Siddique v. Administrator, Lahore Municipal Corporation 1980 CLC 1289 and Wasim Beg v. State of Uttar Pradesh AIR 1998 SC 1291 ref.

(d) Interpretation of statutes---

----Where a statute is capable of two interpretations, the one that favours the subject is to be preferred, reason being that the statute is framed by the State having dominating and commanding position as against the subject.

(e) Interpretation of document---

---Where a word, phrase or expression used in an instrument is capable of two interpretations, then the dispute is to be resolved against the party that had drawn the instrument or the party having dominating and imposing position.

Province of West Pakistan v. Gammons Pakistan Ltd. PLD 1976 Kar. 458 ref.

(f) Easements Act (V of 1882)---

---S. 60---Specific Relief Act, (I of 1877), Ss.42 & 55---Suit for declaration and permanent injunction---Licence, revocation of---Not all and every licence are revocable---Section 60, Easements Act, 1882 provides exception to this general rule---Licence is irrevocable only in cases where it is coupled with interest or where a licensee has raised construction of a permanent nature---Plaintiff/licensee, in the present case, acting upon the licence had executed work of permanent character and incurred expenses in the execution---Plaintiff on the representation made in the licence had installed C.N.G. filling station and incurred substantial expenditure---Held, it would be wholly unfair, that the licenser be clothed with arbitrary authority to terminate the licence at his whims, against specified grounds to seek revocation as provided for in the termination of agreement clause---Incurring of substantial expenses would not be feasible for a shorter term of five years---Unless the licensee was allowed to exploit the licence for the full stretch of 15 years as agreed upon, licensee would suffer irreparable loss as against the licenser who would not suffer any loss---Application of plaintiff/licensee for grant of injunction was allowed in circumstances.

(g) Easements Act (V of 1882)---

----S. 62---Specific Relief Act (I of 1877), Ss.42 & 55---Suit for declaration and permanent injunction---Revocation of licence---Each clause of S.42, Easements Act, 1882 applies on its own force and provides disjunctive cause of revocation of licence---"May" as used in the renewal clause of the agreement of grant of licence, in facts and circumstances of the present case, had obligatory connotation, therefore, it could not be said that the term of the licence had expired---Plaint did not show any allegation that the licence was acquired on conditions which were breached or that agreement had become void on the performance or non-performance of a specified act, or the condition on which it was acquired---In absence of such allegation as was required under S.62(2), Easements Act, 1882, defendant (licenser) had failed to substantiate his case from the pleadings---Plaintiff had made out a prima facie good case for the grant of relief in circumstances.

Kamal Azfar for Plaintiff.

Dr. Farogh Nasim for Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 1616 #

2005 C L C 1616

[Karachi]

Before Sarmad Jalal Osmany, J

ABSAR HUSSAIN---Plaintiff

Versus

Syed AHMED QADRI---Defendant

C.M.As. Nos.7106 and 3407 in Suit No.1098 of 2000, decided on 1st April, 2002.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXIII, R.1 & O.VII, R.11---Suit for declaration, injunction etc.---Rejection of plaint---Application for---Withdrawal of suit---Defendant, in application filed under O.VII, R.11, C.P.C., had prayed that as suit was barred under O. XXIII, R.1, C.P.C., same was to be dismissed---Plaintiff had' prayed for permission to file fresh suit and though said application of plaintiff was granted by the Court, but it was not recorded anywhere whether permission to file fresh suit had been given---Court was cognizant of plaintiff's prayer for filing a fresh suit and simply because that was missing from the order of Court, it could not be said that such permission was refused---Such permission, in circumstances could be implied as application for permission to file fresh suit was granted---Even otherwise matters were to be adjudicated on merits as law favoured that course of action.

Messrs Sindh Engineering (Pvt.) Limited v. OTIS Elevator Company 2000 CLC 1524; Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and others PLD 1992 Kar: 21 and Muhammad Mansha v. Sabir Ali 1999 SCMR 1782 ref.

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

----O. XXIII, R.1---Withdrawal of suit---Provisions of O.XXIIII, R.1, sub-rule (2), C.P.C. were quite different from those of sub-rule (3) of said rule---Sub-rules (1) and (2) of R.1 of O.XXIII, C.P.C. contemplated that because of some legal or formal defect or on other sufficient grounds, if plaintiff wished not to press suit in order to file a fresh one he could do so for the purpose of curing such defect---Sub-rule (3) of R.1 of O.XXIII, C.P.C. contemplated a withdrawal per se where plaintiff would forego his remedy against defendants altogether.

Aminuzzaman for Plaintiff.

Masood Khan Ghori for Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 1624 #

2005 C L C 1624

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Maqbool Baqar, JJ

Syed SHAHID ALEEM and others---Petitioners

Versus

PAKISTAN DEFENCE OFFICERS HOUSING SOCIETY through Administrator and others---Respondents

Constitutional Petitions Nos.D-390 and D-541 of 2005, decided on 13th June, 2005.

Pakistan Defence Officers' Housing Authority Order [7 of 1980]-------

----Arts. 23 & 9-Constitution of Pakistan (1973), Arts.199, 4 & 18---Constitutional petition---Executive Committee of the Pakistan Defence Officers' Housing Authority had prescribed criteria and qualification for Real Estate Agents working within the territorial jurisdiction of the Authority and dealing with the properties governed by the Authority---Effect of such condition would be that nobody else shall be permitted to conduct .real estate business in the area under the control of the Authority except those registered with the Authority---Contention of the petitioners was that the Authority had no such authority in law and the criteria/qualification prescribed for registration of Real Estate Agents, was violative of Arts. 18 and 4 of the Constitution---Validity---Held, Rules/Regulations passed by the Authority should be restricted and confined to carry out the purposes of the Pakistan Defence Officers' Housing Authority Order, 1980 but same shall not extend to regulate the business or affairs of any other person/persons or agencies which were not part and parcel of the Authority; for the purpose of regulating the business of Real Estate Agents, there should be specific provision within the realm of delegated legislation and in exercise of that delegated authority only, the Authority could make law in the nature of subordinate legislation---Executive Committee was empowered to make such regulations not inconsistent with the provisions of Pakistan Defence Officers' Housing Authority Order, 1980 and the Rules it might consider necessary or expedient for the administration and management of the affairs of the Authority---Authority, had no jurisdiction to prescribe any condition or authority to regulate the working of the Real Estate Agents---Purported regulation passed by the Authority was without jurisdiction and consequently void ab initio---Criteria/qualification and every decision made thereunder by Authority was ordered to be quashed by the High Court being ultra vires, and violative of the provisions contained in Arts. 4 and 18 of the Constitution---Principles.

Mushtaq A. Memon, Faisal Kamal Alain and Hasan Akber for Petitioners (in C.Ps. Nos. D-390 and D-541 of 2005).

Muhammad Jamil for Respondents (in both Petitions).

Date of hearing: 13th June, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1639 #

2005 C L C 1639

[Karachi]

Before Rahmat Hussain Jafferi, J

PAK ARAB NURSERIES---Plaintiff

Versus

HABIB BANK LIMITED---Defendant

Suit No.Nil of 2005, decided on 15th April, 2005.

Civil Procedure Code (V of 1908)-

----Ss. 13, 44-A(1), 12(2) & O.VII, R.11---Specific Relief Act (I of 1877), Ss.42, 10 & 54---Suit for declaration, injunction, recovery and damages----Main prayer of the plaintiff was that foreign judgment and decree may be declared as void and of no legal effect as fraud was committed upon the said Court---Preliminary objection was raised about the maintainability and jurisdiction of the Court---Validity---Held, foreign judgment under S.44-A(1), C.P.C. was executable if the judgment. was passed by the Courts of reciprocating territory having reciprocal arrangements with the Government of Pakistan for which purpose Government was required to issue notification mentioning the names of such countries---Section 13, C.P.C. did not confer jurisdiction upon the' Court to entertain a suit to declare the foreign judgment illegal on the ground of fraud and Court had no jurisdiction to entertain the suit on such plea--Present suit was also barred under S.12(2), C.P.C.---If the 'plaintiff wanted to challenge the decree of a foreign Court then he might file appropriate proceedings before the said Court or any other Court permissible under law of the said country---Suit being not maintainable in circumstances, plaint was rejected under O.VII, R.11, C.P.C.---Principles.

A perusal of section 13, C.P.C. reveals that in law presumption is attached to the foreign judgment on the points mentioned therein and certain exceptions have also been shown in the section. Meaning thereby that if a case falls within any of the clauses of exceptions then such presumption cannot be attacked. Presumption of conclusiveness is such presumption where the parties are not required to lead any evidence in proof of such facts. There are various types of presumptions under the law. Some presumptions are rebuttable; some presumptions are unrebuttable and some presumptions are of conclusive nature. The presumption falling under the last category does not require any proof of such facts. Therefore, section 13 of C.P.C. is in respect of different subject but it does not confer jurisdiction upon the Court to declare a foreign judgment illegal on the ground of fraud.

However, a foreign judgment can be used by the plaintiff in support of his claim or defendant as his defence. The foreign judgments under section 44-A(1), C.P.C. are executable if the judgments are passed by the Court of United Kingdom or any reciprocating territory of the countries having reciprocal arrangements with the Government of Pakistan. For that purpose the Government is required to issue notification mentioning the names of the countries and the Courts of such countries. As such foreign judgment can be produced as an evidence in proof of facts as mentioned in provisions of section 13, C.P.C. Thus section 13 of C.P.C. does not confer jurisdiction upon the Court to entertain a suit to declare the foreign judgment illegal on the ground of fraud. Therefore, the foreign judgment cannot be declared illegal on the ground of fraud, by the Court. Thus the Court has no jurisdiction to entertain the suit on such plea.

Even otherwise a rule has been laid down under section 12(2) of C.P.C. wherein if a decree is challenged on the ground of fraud, misrepresentation of facts or want of jurisdiction then fresh suit is barred, therefore, the parties are required to approach the Court which passed the final judgment. When the fresh suit is barred under section 12(2), C.P.C. if a Court in Pakistan passes a decree then how a fresh suit can be entertainable by the Court on the ground of fraud when the decree is passed by a foreign Court. The said rule is also applicable in the present circumstances of the case, therefore, on this account also the present suit is barred under section 12(2), C.P.C. If the plaintiff wants to challenge the decree of a foreign Court then: he may file appropriate proceedings before the said Court or any other Court permissible under the law of the said country. Consequently the plaint was rejected under Order VII, Rule 11, C.P.C. for want of jurisdiction.

Hakim Ali Chohan for Plaintiff.

Navid-ul-Haq for Defendant.

CLC 2005 KARACHI HIGH COURT SINDH 1645 #

2005 C L C 1645

[Karachi]

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

AHMED HASSAN---Petitioner

Versus

EXCISE AND TAXATION OFFICER and others----Respondents

C.P. No.D-100 of 2005, decided on 27th April, 2005.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 25 & First Schedule, Form G & III---Government of Sindh Notification No.S.O.(T-II)/8-45/85/1066, dated 13-7-1994---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contentions of the petitioner were that he had submitted an application to the Department for obtaining personalized registration for his car, his application was marked to the subordinate officer with the remarks, to do the needful according to rules/instructions; that the subordinate officer instead of completing required legal formalities for issue of such registration mark, demanded Rs.2,00,000 from the petitioner and also his consent for the payment of said amount as its charges which the petitioner declined; that petitioner served a legal notice to the Department apprising them about the relevant Notification and the illegal demand of the subordinate officer with request for issuance of personalized mark for his vehicle in accordance with the relevant law but with no result---State Counsel had placed on record details of some personalized registration marks issued by the Department, which showed that even after the institution of the Constitutional petition by the petitioner and during its pendency such personalized marks have been issued by the Department to other persons, on payment of Rs.2,00,000 as its fee which had been deposited in the Government account---No notification or provision of law was shown justifying recovery of Rs.2,00,000 from the concerned parties which was ten times to the fee notified in the relevant notification dated 13-7-1994---State Counsel, however, on the last date of hearing viz. 12-4-2005 had further placed on record copy of letter dated 24-3-2005 to show that the scheme of issuance of personalized registration mark had been abolished with immediate effect and contended that in view of said letter the petitioner was no more entitled for the relief claimed in the Constitutional petition---Validity---Held, by not granting personalized registration mark to the petitioner in terms of notification dated 13-7-1994, Department could not take benefit of their own wrong by saying now that in view of the notification dated 22-3-2005, the petitioner was not entitled to such personalized registration mark for his vehicle---Case of the petitioner for grant of personalized registration mark was already pending before the Department and it could not be disposed of due to the slackness and illegal demand of Rs.2,00,000 by the Department, therefore, it would not be hit by the subsequent notification, dated 22-3-2005, moreso when the said notification had no retrospective effect---High Court allowed the Constitutional petition in the terms that subject to completion of other formalities the Department shall issue personalized registration mark to the petitioner on the basis of his application dated 1-12-2004 by charging a sum of Rs.20,000 for the purpose, which was official fee of the Government.

Z.U. Mujahid for Petitioner.

Aimed Pirzada, A.A.-G. Sindh along with Kanwar Muhammad Hanif, Excise and Taxation Officer, Motor Registration Wing, Civic. Centre Karachi.

Date of hearing: 27th April, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1659 #

2005 C L C 1659

[Karachi]

Before Rahmat Hussain Jafferi, J

UNITED DISTRIBUTION PAKISTAN LTD.---Plaintiff

Versus

AL-SYED AGROCHEMICALS SERVICES and others---Defendants

Suit No.796 of 2003, decided on 26th April, 2005.

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

----S. 20---Suit to be instituted where defendants reside or cause of action arises---Plaintiff according to S.20, C.P.C., has three options to sue: (a) where the defendant or each of the defendants actually resides, carries on business or personally works for gain; or (b) in case there are more than one defendants any of them resides, carries on business or personally works for gain; or (c) at the place where the cause of action, wholly or in part, arises---Where the defendants are neither residing in place at "K", where the plaintiff lived, nor they are carrying on business or having their sub-office at place "K", suit can be filed where the cause of action wholly or in part, arises---Explanation II of S.20, C.P.C. is not applicable to such a case.

Brandy & Co. (Pakistan Ltd. v. Syed Saigal Industries Ltd. 1981 SCMR 494 ref.

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

----S. 20---Contract Act (IX of 1872), S.28---Suit to be instituted where cause of action arises---Plaint, in the present case, showed that there was a contract between the parties for the supply of agrochemical on credit basis---Case being based upon the contract executed between the. parties the cause of action will arise at the places viz, where the contract is made; where the contract is to be performed or the performance thereof completed, or breach, or non-performance takes place and where in performance of the contract any money was expressly or impliedly payable---Plaintiff had admitted that the contract was executed between the parties at "J" and contract was to be performed at "J" as demand and supply was to be made at "J ---Cause of action in circumstances, had accrued within the jurisdiction of place "J".

Kadir Motors (Regd.) v. National Motors Ltd. 1992 SCMR 1174; Gordhandas v. Dowlatram AIR 1926 Sind 238; AIR 1942 Odisa 250 and Sundar Das Prem Singh v. Puran Chand AIR 1933 Lah. 599 ref.

----Ss. 20, 9 & O.VII, R.10---Contract Act (I of 1872), S.28---Jurisdiction---Consent of the parties to give jurisdiction to the Court will be applicable when the said Court has jurisdiction along with any other Court---Consent of the parties cannot invest or divest the Court of its jurisdiction---Where the Court had no territorial jurisdiction to try the suit, the plaint be returned to the plaintiff for presenting the same before the Court having jurisdiction in the matter---Principles.

Hakim Singh v. Gammon AIR 1971 SC 740; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 and Standard Insurance Co. v. Pak. Garments Ltd. 1998 SCMR 1239 ref.

Masood Anwar for Plaintiff. Shakir Iqbal for Defendants.

Date of hearing: 19th April, 2005.

2005 C L C 1877

[Karachi]

Before Sabihuddin Ahmed and Rahmat Hussain Jafferi, JJ

HORTICULTURAL SOCIETY OF PAKISTAN and another---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-520 of 1991, decided on 24th March, 2005.

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

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of lease and resumption of allotted/leased land---Plot allotted to petitioner for establishment of Horticulture Garden, was cancelled by the Authority and after such cancellation same was allotted to respondents---Provisions of S.24 of Colonization of Government Lands (Punjab) Act, 1912 provided that whenever a breach of conditions of tenancy had been committed by tenant, Collector could either impose a penalty or order resumption of tenancy, but where breach was capable of rectification, neither of the two measures could be taken before calling upon tenants to rectify said breach within reasonable period---Failure to do so within said time, Collector 'was required to independently apply his mind and decide to impose a penalty or order resumption of tenancy, but Collector had failed to perform both statutory obligations and proceeded to act under dictation from the Chief Minister---Even the elementary principles of natural justice, were not observed---Cancellation of lease of petitioner, in circumstances was declared by High Court as mala fide, void and inoperative---Petition was allowed and cancellation of allotment of petitioner was declared to be without lawful authority.

Haji Noor Muhammad v. Karachi Development Authority 1975 Kar. 373 and Asif Ali v. Deputy Commissioner 1982 CLC 833 ref.

Miss Sana Minhas for Petitioner.

Muhammad Rafiq Rajori, A.A.-G. for Respondent No.2.

Manzoor Ahmed for proposed Intervenor.

Khalil-ur-Rehman for Respondent No.3.

Nemo for remaining Respondents.

Date of hearing: 24th March, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1931 #

2005 C L C 1931

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

ATIQUE HUSSAIN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Communication and 2 others---Respondents

Constitutional Petition No.D-593 of 2005, decided on 12th July, 2005.

Privatization Commission Ordinance (LII of 2000)---

----Ss. 22, 23, 24, 25, 6, 7, 8 & 9---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Ss.36 & 34---Civil Servants Act (LXXI of 1973), S.36---Constitution of Pakistan (1973), Arts.173(1), 142(2) & 199---Constitutional petition---Vires of privatization of Pakistan Telecommunication Company by the Government of Pakistan on the touchstone of the Constitution---Contention of the petitioner was that Art.142(a) of the Constitution provided that Majlis-e-Shoora (National Assembly) shall make laws in respect of any matter provided in the Federal Legislative List; that Entry No.7 in Part-I of the said list pertained to Post and Telegraph hence the privatization of the company without necessary legislation by the National Assembly was quite incompetent and unlawful and that the working conditions of the employees would be adversely affected since the new owners were bound to make changes to suit their interests---Validity---Federal Government under Art.173(1) of the Constitution had the right to sell, mortgage or dispose of State property which was subject only to the well-settled principles in respect thereof viz.; executive authority was to be exercised in accordance with law and must be transparent, fair and nondiscriminatory---No specific legislation was required for the exercise of executive authority under Art.173(1) of the Constitution---Nevertheless Ss.22, 23, 24 & 25 of the Privatization Commission Ordinance, 2000 had been enacted which specifically catered for privatization of State property and in the manner in which privatization was to be carried out---Government of Pakistan, in principle, did have the power and the authority to dispose of the shares of the company---Provision of S.142(a) of the Constitution had given exclusive powers to make laws with regard to the matters listed in the Federal Legislative List, Part-I, in which Post and Telegraph were at Entry No.7 and said Article read with Entry 7, gave the National Assembly exclusive power to make laws vis-a-vis matter relating to Post and Telegraph and had nothing to do with the Federal Government's powers to dispose of State property which exercising powers under Art.173 of the Constitution as these two provisions of the Constitution dealt with separate organs of the State, i.e. the Federal Government and the National Assembly---Section 36, Pakistan Telecommunication (Reorganization) Act, 1996 catered for the terms and conditions of employees of the company and in particular S.36(2) of the Act provided that all employees shall be treated in accordance with the law of Pakistan and their terms and conditions would not be altered except with their consent and upon award of appropriate compensation---Constitutional petition against the privatization of the Company was dismissed by the High Court in circumstances.

Amin Ahmed v. Ministry of Production Government of Pakistan PLD 1996 Kar. 27 and Talat Saeed Khan v. Privatization Commission 1999 YLR 1084 fol.

Reference No.1 of 1988 made by the President of Pakistan PLD 1989 SC 85; Calicon (Pvt.) Ltd. v. Federal Government of Pakistan 1996 MLD 705; Haji T.M. Hassan Rawther v. Kerala Financial Company AIR 1988 SC 157 and Abid Hassan v. PIAC 2005 SCMR 25 ref.

Sohail Hameed for Petitioners.

Ahmed Pirzada, Addl. A.-G. for Respondent No.1.

A.H. Pirzada for Respondent No.2.

Dates of hearing: 15th and 20th June, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1937 #

2005 C L C 1937

[Karachi]

Before Ghulam Rabbani, J

BAHADUR KHAN-Petitioner

Versus

QABOOL AHMED and 4 others---Respondents

Civil Revision No.13 of 2005, decided on 18th April, 2005.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42----Suit for declaration of ownership of property---Right of ownership of any property depends entirely on the title i.e. the source of acquisition of the right while entry in the Revenue Record is not the conclusive evidence of the right of the ownership---Entry in Revenue Record can only be used for fiscal purpose and is not a title deed---Such entries could neither create nor extinguish title to the property.

Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 fol.

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

----O.XL, R.1 & S.151---Receiver, appointment of---Requirements---Incumbent upon the party asking for appointment of Receiver to show of all necessity, that the property in the hands of other party was in danger of being wasted---Court will appoint a Receiver of the disputed property if the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach such conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial interest therein which requires protection or preservation pending final determination of the rights of parties in the suit and because of expected waste or peril to such property, the right or interest of plaintiff cannot be preserved or protected without appointment of Receiver---Mere fact that the defendant happens to be in possession would be no bar to the appointment of Receiver, if the plaintiff, on his part, shows an immediate right to possess---Delay, if explainable or if not degenerating into inequity, depending upon the circumstances of each case, should in itself be no insurmountable hurdle to appointment of Receiver---Principles.

Iqrar Muhammad Siddiq v. Mst. Shahid Zareen PLD 1997 Kar. 409; Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others PLD 1976 Kar. 181 and Aftab Ahmed Mufti and another v. Mst. Seema alias Zareena 1988 CLC 1567 ref.

Bhajandass Tejwani for Applicant.

Abdul Nabi M. Memon for Respondent No.1

M. Mahmood S. Khan Yousifi, Asstt. A.-G.

CLC 2005 KARACHI HIGH COURT SINDH 1953 #

2005 C L C 1953

[Karachi]

Before Amir Hani Muslim, J

Mrs. FARZANA KHANUM---Plaintiff

Versus

Mian ZAFAR IQBAL---Defendant

Suit No.923 of 2004, decided on 4th July, 2005.

Specific Relief Act (I of 1877)---

---Ss. 12 & 55---Civil Procedure Code (V of 1908), O.X-Suit for specific performance of agreement to sell and grant of injunction---Examination of parties by the Court---In the face of the statements of the parties and their witnesses recorded by the Court, coupled with the documents produced in support thereof, the defendant was not in the city on the date the alleged sale agreement was executed between the plaintiff and the defendant---Attesting witnesses to the alleged sale-deed were also planted by the plaintiff---Sale agreement or the receipt, which was the subject-matter of the suit, was never signed by the defendant as the signatures appearing on both these documents, on a comparison with the admitted signatures of defendant were completely different---Plaintiff on the basis of the forged sale-deed had filed the suit and was not entitled to any of the reliefs claimed therein---Suit was dismissed accordingly.

Nasrullah Siddiqui for Plaintiff.

K.A. Wahab for Defendant.

Date of hearing: 31st May, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1963 #

2005 C L C 1963

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ

Hakeem MUHAMMAD HASAN YOUSUF SIDDIQUI---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 6 others---Respondents

M.A. No.1716 of 2004 in Constitutional Petition No.D-378 of 2004, decided on 31st March, 2005.

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

----S. 14---Sindh Local Government Ordinance (XXVII of 2001), S.190---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Building plan, in the present case, was sanctioned under the provisions of Sindh Local Government Ordinance, 2001---Any person aggrieved of such action could pursue his grievance in accordance with the mechanism provided in S.190, Sindh Local Government Ordinance, 2001 and not under Sindh Buildings Control Ordinance, 1979---Order passed under S.14, Sindh Buildings Control Ordinance, 1979 was without jurisdiction and not sustainable in law---No mechanism having been notified so far by the Sindh Government, aggrieved person could approach the High Court under Art.199 of the Constitution---Constitutional petition was maintainable in circumstances.

Imdad Unar for Petitioner.

Masood A. Noorani, Addl. A.-G. for Respondents Nos.1 to 6.

Respondent No.7 called absent.

CLC 2005 KARACHI HIGH COURT SINDH 1969 #

2005 C L C 1969

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Mujeebullah Siddiqui, JJ

PAKISTAN RAILWAY EMPLOYEES HOUSING SOCIETY---Applicant

Versus

Messrs M.A. KHAN & CO.---Respondent

C.M.As. Nos.563 and 793 of 1996 in H.C.A. No.113 of 1995, decided on 23rd August, 2005.

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

----O. XLI, R.1 & S.151---Arbitration Act (X of 1940), S.39---Limitation Act (IX of 1908), S.3---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Limitation---Delay---Condonation of---When the appeal was presented in the High Court on 18-9-1995, the same was accompanied with photostat copies of certified true copies of. impugned judgment and decree; original certified true copies of the impugned judgment and decree were not filed at the time of presentation of appeal but no objection to this effect was raised by the office at that time; memorandum of appeal was accompanied with an application under S.151, C.P.C. seeking exemption from filing certified true copies of the documents with the appeal which was allowed by the High Court but subject to all just exception; for the first time objections as regards the non-filing of certified true copy of decree along with memo. of appeal 'was orally raised by respondent on 11-12-1995; in response to. such objection, certified true copies of impugned judgment and the decree were filed by the appellant on 12-12-1995, without any particular direction of the Court in this regard; listed application seeking rejection/dismissal of appeal on the ground of non-filing of certified true copies of decree at the time of presentation of appeal was moved by the respondent on 22-5-1996---Question for consideration for the Court was whether in the facts and circumstances of the present case, when the appeal was pending before the High Court for almost one decade and during this period on 12-12-1995, even before filing of listed application, the appellant had shown the promptness and bona fides by production of certified true copy of the decree to cover up any procedural lapse on its part, it shall be penalized/non-suited due to such pure technical objection of non-compliance of the provisions of O.XLI, R.1, C.P.C., or in the larger interest of justice, such objection should not be allowed to prevail, delay in meeting the requirement of O.XLI, R.1, C.P.C. be condoned and the appeal should be heard and decided on merits---Held, though the provisions of O.XLI, R.1, C.P.C. were mandatory in nature, but for penalizing a party for its non-compliance no rigid/inflexible rule of application could be laid down, moreso when the relevant provision did not provide any penal consequences for its non-compliance---No element of contumacy, in the present case, could be justly attributed to the appellant for non-filing of certified true copy of the decree in the first instance at the time of presentation of appeal---After filing of certified true copy of decree in Court on 12-12-1995, the issue of non-fulfilment of the requirement of O.XLI, R.1, C.P.C. was no more alive before the High Court, but the issue for consideration before the Court was for condonation of delay occasioned in this regard due to the filing of photostat copy of certified true copy of decree at the time of presentation of appeal---Held, further, that looking to the overall facts and circumstances of the present case, judicial discretion for condonation of delay had to be exercised in favour of the appellant to save the present appeal from technical knock out---Listed application of respondent merited no consideration and the same was liable to be dismissed as such.

1981 CLC 1479; 1986 MLD 2717; PLD 1986 Quetta 11; 1988 CLC 514; 1990 MLD 2094; 1991 CLC 1288; PLD 1993 Lah. 439; 1993 CLC 1; 2002 CLC 1177; 2002 YLR 1592; PLD 1983 Pesh. 215; AIR 1929 Lah. 771; AIR 1961 Pat. 129; AIR 1972 Rajisthan 123; AIR 1961 SC 832; 2004 SCMR 707; 1985 CLC 1711; PLD 1962 SC 382; 2003 SCMR 181 AND 2003 SCMR 318 ref.

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

----S. 4---High Court appeal---Insufficiency of court-fee paid by the appellant---Held, in terms of relevant provisions of Court Fees Act, 1870 the appellant was required to make payment of court-fee on ad valorem basis according to the value of subject-matter of the appeal, and affixation of court-fee stamp of Rs.20 on the memo. of appeal was not sufficient, such mistake/omission of the appellant regarding non-payment of proper court-fee on the memo. of appeal was neither deliberate nor contumacious act on the part of appellant, an opportunity was, therefore, to be afforded to the party for payment of deficient court-fee, before dismissal of appeal on that account---High Court, in circumstances, allowed ten day's time to the appellant from the date of present judgment to make payment of proper court-fee on the memo. of appeal.

1997 SCMR 919; PLD 1985 SC 341; 1989 SCMR 1791; PLD 1992 SC 404; 1991 SCMR 207; 1994 SCMR 1756; PLD 1994 SC 688; 1989 SCMR 58; 1990 SCMR 1723; 2003 SCMR 157; 1991 SCMR 221 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

Rasheed A. Razvi for Applicant.

H.A. Rehmani for Respondent.

Dates of hearing: 22nd, 23rd, 24th February and 1st March, 2005.

CLC 2005 KARACHI HIGH COURT SINDH 1982 #

2005 C L C 1982

[Karachi]

Before Rahmat Hussain Jafferi, J

Messrs SIGN SOURCE---Applicant

Versus

Messrs ROAD TRIP ADVERTISERS and another---Respondents

C.M.A. No.3410 of 2005 in Suit No.573 of 2005, decided on 1st June, 2005.

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

------O. VII, R.11---Rejection of plaint---Considerations---While considering an application under O.VII, R.11, C.P.C. the Court is required to examine the contents of the plaint and the admitted documents.

(b) Easements Act (V of 1882)---

----S. 52---"Licensee" cannot transfer more rights than what he himself had in the property---Heading of the document, in the present case, was "Licence for Advertisement", which clearly showed that the person was merely a licensee and said document could not be called a lease deed and licensee could not be termed as lessee.

----S. 52---Licence---Essential feature of licence enumerated.

The essential features of licence are three folds, which are as under:------

(1) A licence is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

(d) Easements Act (V of 1882)---

----Ss. 52 & 56---Licence---Rights of a licensee---Nature and scope.

A licence is a personal right granted to a person to do something upon immoveable property of the grantor, and does not amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable in certain circumstances expressly provided for in the Act itself. The licence has no other effect than to confer a privilege upon the licensee to go upon the land and to do a certain act, which would, in the absence of such license, be unlawful.

Generally a licence which is also known as licence of pleasure is founded on personal confidence and is a purely personal privilege exercised by the grantee himself therefore its exercise cannot be delegated to anybody else as such it can neither be assigned to anybody else nor can it be exercised by the licensee's servants or agents. However, exceptions to the general rule are mentioned in section 56 of Easements Act, 1882.

Thus, the grantor can also make a licence pure and simple assignable as well as exercisable by the servants or agents of the licensee. Such intention of the licensor may be either express or it may be implied from the very constitution of the right granted. Implied intention of the licensor can be gathered from the very nature of the grant, for example, if the license granted is, by its very nature, not exercisable by the licensee without being exercised by his servants or agents then it will be presumed that the licensor while granting the license, intended that it should be exercised through servants and agents of the licensee.

Muhammad Khan v. Ramnaryan AIR 1956 Orissa 156 and 7 M. & W. 67 ref.

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

---S. 105---Lease---Essentials---Essential features of lease is transfer of interest to enjoy property with exclusive possession given to the transferee of the property and conveyed, in consideration of the price paid or promised etc.

(f) Easements Act (V of 1882)---

---S. 52---Transfer of Property Act (IV of 1882), 5.105---"Lease" and "licence"---Distinction---Determination as to whether a grant was a "lease" or "licence"---Test.

The cardinal distinction between the lease and the licence is that in lease, there is a transfer of an interest in the property to enjoy it, whereas in the case of licence there is no transfer of interest, although the licensee may acquire the right to occupy the land. One of the essential conditions of a tenancy is that the tenant should have the right to the exclusive possession of the premises with transfer of an interest to enjoy the property, while license on the other hand, implies the permission to do some act which without the permission, would be unlawful.

In deciding whether a grant amounts to a lease or a licence pure and simple regard must be had to the substance of the agreement and not to what it purports to be. Since exclusive possession coupled with the transfer of a right to enjoy the property, is the test in determining - whether a grant is a license or a lease, there can be no scope for doubt that when the grantee takes under the grant only the right to use the land without exclusive possession, the right granted is a license and not a lease.

Bherai Lal v. Chhote AIR 1933 All. 911 fol.

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

----Ss. 42, 12, 56 & 50---Easements Act (V of 1882), S.52---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, specific performance of agreement, and permanent and mandatory injunction--Plaintiff, in the present case, was the agent of defendant who was the licensee of a person through which no right was created in respect of the property in question as such the suit for declaration was hit by S.42, Specific Relief Act, 1877 which provided that if any person had a right, title or interest in the property and the same was denied by the other side then the suit was maintainable with consequential relief---Plaintiff having no right, title or interest in the suit property as such the suit for declaration was not maintainable---Plaint was rejected in circumstances.

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

----Ss. 56 & 58---Easements Act (V of 1882), S.52---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Plaintiff, in the present case, was the agent of defendant who was the licensee of a person through which no right was created in respect of the property in question---Plaintiff, in circumstances, was not entitled to claim injunction on the basis of being agent of licensee---Suit being not maintainable, plaint was rejected.

M.A. Nasir v. Chairman Pakistan Eastern Rly PLD 1965 SC 83 ref.

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

----S. 12---Easements Act (V of 1882), Ss.52 & 64---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement---Plaintiff, in the present case, was the agent of defendant who was the licensee of a person through which no right was created in respect of the property in question---Licence period executed between the licensor and licensee having already expired after the expiry of licence given to the licensee, he had no control over the suit property and thus, the agreement executed between the plaintiff (agent) and the licensee could not be enforced and suit was not maintainable---Plaint was rejected in circumstances---Principles.

Ms. Navin Merchant for Applicant.

Tasawar Ali Hashimi and S. Ali Ahmad Tariq for Respondents.

Date of hearing: 27th May, 2005.

Lahore High Court Lahore

CLC 2005 LAHORE HIGH COURT LAHORE 1 #

2005 C L C 1

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SHAKEEL---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF AGRICULTURE, FAISALABAD and 2 others---Respondents

W.P. No.7837 of 2004, heard on 23rd September, 2004.

Educational institution---

----Admission---Course of Master Degree having four semesters--Marks criteria for promotion in 4th semester as fixed in first notification was 1.75 CGPA---Petitioner obtained 1.98 CGPA in examination of 3rd semester held under first notification, but was not promoted in 4th semester due to subsequent change in marks' criteria fixing 2.00 CGPA for such promotion---Validity---No change had been brought in first notification till appearance of petitioner .in examination of 3rd semester and passing same---Petitioner had, thus, acquired vested right and legitimate expectation for such promotion---Subsequent change in marks' criteria would not affect such right of petitioner---New criteria could not be applied retrospectively to destroy and prejudice right earned by petitioner---High Court directed University Authorities to promote petitioner to 4th semester for having qualified according to criteria laid down in first notification.

Liaqat Ali Malik for Petitioner.

Rashdeen Nawaz Kasuri along with Muhammad Aslam, Admn. Officer for Respondents.

Date of hearing: 23rd September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 11 #

2005 C L C 11

[Lahore]

Before Syed Jamshed Ali and Abdul Shakoor Paracha, JJ

LIAQAT ALI --- Appellant

Versus

BASHIRAN BIBI and 9 others---Respondents

F.A.O. No.88 of 2000, heard on 30th June, 2004.

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

----O. XXI, R.68---Proclamation of sale---Date of issue of proclamation, non-mentioning of---Proclamation for sale dated 22.7.1995 did not indicate the date of its issue, whereas the notices on record to judgment-debtor and decree-holder were issued on 15.7.1995---Effect---Provision of O.XXI, R.68 C.P.C. was prima facie violated which amounted to illegality.

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

----O. XXI, Rr. 65, 71 & 84---Sale by auction---Signatures of auction-purchaser on bid sheet---Object and scope---Necessary to obtain the signatures of the highest bidder on bid sheet because in case of re-sale on account of default, the highest bidder is not only liable to pay all expenses attending re-sale but also the deficiency in the sale price on resale as provided in O.XXI, R.71 C.P.C.---Sale is contemplated by O.XXI, R.84 C.P.C. while O.XXI, R.71 C.P.C. provides for re-sale and if the purchaser defaults and the property is re-sold, deficiency in price cannot be recovered from him unless it, could be shown that he was the purchaser---In absence of signatures, the purchaser can come forward with the plea that it was somebody else who had made the bid.

----O. XXI, Rr. 106 & 110 (as inserted by Allahabad High Court amendment)---Provisions of O.XXI, Rr.106 and 110 C.P.C.--Applicability---As far as Lahore High Court is concerned, provisions of Rr.106 arid 110 do not exist to O.XXI C.P.C.

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

----O. XXI, R. 90---Objections, form of---No particular form of filing of objections to sale has been prescribed in O.XXI, R.90 C.P. C.

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

----O. XXI, R. 92---Confirmation of sale---Principle---Question of confirmation of sale only arises in case of a valid sale---Duty of Executing Court is not excluded under O.XXI, R.92 C.P.C. to satisfy itself that the sale conducted by Court Auctioneer was bona fide and in accordance with law.

Brig. (Rtd.) Mazhar-ul-Haq and another v. M.C.B. Ltd Islamabad PLD 1993 Lah. 706 ref.

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

----S. 47 & O.XXI, Rr.66, 89 & 90---Execution of decree---Objections, investigation of---Procedure---Setting aside of sale---In the present case not only the objections of the judgment-debtor to the sale were on the record, the interveners also asserted that they intended to participate in auction but no auction was in fact-held ---Plea raised by the appellant was that appellant was the highest bidder but the Executing Court neither confirmed the sale in his favour nor sale certificate was issued rather the sale was set aside---Validity-: -Application under O.XXI R.90, C.P.C. might raise question as to the execution, discharge and satisfaction of a decree and even a separate suit was barred---If Executing Court could feel difficulty to deal with an application under O.XXI, R.90 C.P.C., such application could be treated as falling under S.47 C.P.C. for which no specific limitation was provided for---Such course might be necessary in a case to remove patent injustice---Was the duty of Executing Court to examine whether the sale had lawfully been made to do justice, even if application under O.XXI, R.89 C.P.C. filed by any objector was not maintainable---In case no sale was conducted or mandatory provision of law was violated or the sale was collusive and fraudulent, it would be a nullity and such objection could be inquired into under S.47 C.P.C. independently of O.XXI, R.90 C.P.C ---Judgment passed by Executing Court setting aside sale could not have been passed without holding inquiry---High Court in exercise of appellate jurisdiction set aside the judgment passed by Executing Court and remanded the case to Executing Court for decision afresh---Appeal was allowed accordingly.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal; Lahore and others PLD 1996 Lah. 672; Lutfer Rehman v. Mst. Tahera Khatun and others PLD 1961 Dacca 303, Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; National Bank of Pakistan v. Economic Office Machines and Equipment and 8 others 1990 MLD 258; Mir Wali Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another PLD 2003 SC 500; Ram Parasad v. Shiva Kumar AIR 1932 All, 55; Brig. (Rtd.) Mazhar-ul-Haq and another v. M.C.B. Ltd. Islamabad PLD 1993 Lah. 706; Ram Chandar and another v. Sarupa AIR 1939 Lah. 113; Bhan Kumar Chand and another v. Lachmi Kanta Rai AIR 1941 Pat. 566; Kandasawami v. Narasimha Aiyar AIR 1952 Mad. 582 and Nanal v. Mst. Siddquan AIR 1957 All. 558 ref.

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

----O. XXI, R. 90---Sale setting aside of---Grounds---One of the grounds in O.XXI, R.90 C.P.C. is fraud in publishing or conducting a sale---As such the same presupposes that a sale was in fact conducted and if it was proved to the contrary, then provisions of O.XXI, R.90 would not apply.

(h) Administration of justice---

---- Proceedings of one type converting into other type---Rules of procedure---Object and scope---Rules of procedure are intended to foster justice and technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master---To avoid failure of justice and multiplicity of litigation, one type of proceedings can be converted into another type of proceedings.

Mushtaq Mehdi Akhtar for Appellant.

Shahid Iqbal Mian for Respondents.

Date of hearing: 30th June, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 27 #

2005 C L C 27

[Lahore]

Before Jawwad S. Khawaja and Syed Jamshed Ali, JJ

TARIQ SAEED BUTT---Appellant

Versus

HABIB AHMAD KHAN and others---Respondents

R.F.A. No.857 of 2001, heard on 24th June, 2004.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of loan on the basis of a promissory note/receipt---Plaintiff claimed that three defendants who were brothers inter se had borrowed amount by executing promissory note/receipt to secure repayment of same to plaintiff---Testimony of plaintiff was not consistent with contents of plaint and did not fix any liability on two out of three defendants as plaintiff had not at any point of time testified that defendants Nos.2 and 3 were present when suit amount was advanced by him by way of loan---Two marginal witnesses had deposed that all three defendants were present and executed promissory note/receipt in their presence, whereas plaintiff did not claim having advanced loan to defendants Nos.2 and 3 and he also did not assent that said two defendants were present when disputed transaction took place---Testimony of said two witnesses was not credible--Promissory note did not bear the signatures of defendants, however signatures only appeared under receipt and receipt could not be equated with liabilities under pronote without corresponding signatures of defendants under the promissory note---Signatures on the revenue stamps affixed under promissory note, had also not been proved by any of witnesses examined by plaintiff---Alleged signatures of defendants on revenue stamps, in circumstances could not be accepted as proving execution of pronote in question---Promissory note in question was not executed by three defendants---Testimony of attesting witnesses was contrary to the contents of promissory note and also had contradicted evidence of plaintiff in material particulars---Said circumstances were sufficient to hold that plaintiff had failed to prove that defendants had borrowed loan in question from plaintiff by executing promissory note and receipt---Suit of plaintiff, in circumstances was rightly dismissed by Trial Court.

Malik Amjad Pervez for Appellant.

Zia-ud-Din Kasuri for Respondent.

Date of hearing: 24th June, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 33 #

2005 C L C 33

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD SIDDIQ and 6 others---Petitioners

Versus

ZAFAR IQBAL and 9 others---Respondents

Civil Revision No.D-587 of 1981, decided on 17.th March, 2004.

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

----S. 30---Board of Revenue Memo. No.3734-82/44/4, dated 6-11-1982---Islamabad Oustees Scheme---Proprietary rights, grant of--Allotment made in favour of Islamabad Outstee without including land in Schedule of "Islamabad Oustees Scheme" was confirmed by Board of Revenue---Validity---Board of Revenue being highest forum for allotment of land was competent to do so.

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

----Ss. 10 & 30---Allottee under "Grow More Food Scheme"--Proprietary rights, grant of---Pre-conditions---Continuous possession over land of such allottee and non-allotment of same land to any other person under any other permanent scheme were the preconditions.

----Ss. 30 & 36---Specific Relief Act (I of 1877), S.42---Suit for declaration ---Allottee under "Grow More Food Scheme" ---Proprietary rights, grant of---Suit by allottee seeking decree declaring him to be entitled to grant of proprietary rights---Maintainability---Record showed that lease in favour of plaintiff under such scheme after expiry of its initial term had neither been extended nor he had been in continuous possession- of land---Not proved that plaintiff had brought 50% of land finder cultivation---Revenue/Colony hierarchies had exclusive jurisdiction to determine rights of plaintiff for grant of proprietary rights---Suit was, neither competent nor maintainable in absence of prayer for consequential relief of possession by non-occupant plaintiff.

Muhammad Shafi v. Hayat Jan PLD 1978 Lah. 1228; Alam Sher v. Muhammad Sharif 1988 SCMR 468; Hakim Dad v. Province of Punjab 2003 CLC 240 and Lila Ram v. Ghulam Ali 1991 SCMR 932 ref.

Alam Sher's case 1998 SCMR 468; Muhammad Ishaq v. Abdul Ghani's 'case 2000 SCMR 1083; Abdullah v. Allah Ditta 1998 SCMR 2749 and Muhammad Shafi v. Hayat Khan PLD 1978 Lah. 1228 rel.

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

----Art. 14---Order passed by Administrative/Executive Officer--Limitation to challenge such order is one year.

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

----S. 120---Person in possession of land, threat to rights of---Limitation for filing suit to ward such threat would start running from time of such threat:

Sardar Muhammad v. Sardar Muhammad 2000 YLR 433; Province of Punjab through Collector v. Muhammad Arif 2003 MLD 1077; Fazal Begum v. Municipal Corporation, Lahore and 5 others 1983 CLC 1643 and Muhammad Shafi v. Mushtaque Ahmad through Legal Heirs and others 1996 SCMR 856 ref.

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

----O. XXIII, Rr.1(3) & 2(b)---Withdrawal of suit, with permission to file fresh suit on payment of costs---Filing of fresh suit without payment of costs---Validity---Plaintiff was bound to deposit costs before or at the time of filing of fresh suit---Burden was on plaintiff to prove such deposit---In absence of payment of costs, there could not be a proper suit before Court, thus, fresh suit would be liable to be dismissed being incompetent---Non-suiting of plaintiff on mere technicalities of procedure would not be in the interest of justice---Trial Court could direct plaintiff to pay original costs plus further specified costs for omission on his part---Trial Court had not passed any such order---Had Trial Court given direction to plaintiff to deposit original costs, then on his contumacious failure to obey such order, fresh suit would have been liable to be dismissed---if plaintiff had tendered costs subsequently, then plaint would be deemed to have been properly presented and must be taken to have been filed on the date of such tender---No such effort had been made by Trial Court or plaintiff---Fresh suit held was not competent.

Gollapudi Seshayya v. Nadendla -Subbayya AIR 1924 Mad. 877 and K. Gopalakrdshnayya v. Vadlamudi Suba Naidu and another AIR (32) 1945 Mad. 168 ref.

Sajid Gul and others' case AIR 1947 Pesh. 43; Malang Dad v Mst. Mah Pari PLD 1993 SC 6 and K.P. Kesavalu Naidu. v. A.R Venkatarama Chettiar and others AIR 1942 Mad. 35 rel.

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

----Ss. 30 & 36---Specific Relief Act (I of 1877), S.42---Suit for declaration ---Allottee under "Grow More Food Scheme" ---Proprietary rights, grant of---Suit by allottee seeking decree declaring them to be entitled to grant of proprietary rights---Maintainability---Suit was dismissed by Trial Court, but was decreed by Appellate Court---High Court in revision set aside judgment/decree of Appellate Court and restored that of Trial Court to the extent of non-occupants plaintiffs, but directed remaining plaintiffs to approach Revenue hierarchy for grant of proprietary rights for being in continuous possession of suit-land for about 44 years.

Hakim Dad v. Province of Punjab 2003 C LC 240 ref.

Abdur Rasheed Sheikh for Petitioners.

Rana Luqman Ali for Petitioners Nos.3-C and D.

Mian Muhammad Siddique Kamyana for Respondents.

Date of hearing: 11th March, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 68 #

2005 C L C 68

[Lahore]

Before Mian Saqib Nisar, J

SHER MUHAMMAD and 3 others‑‑‑Appellants

Versus

HAQ NAWAZ and 12 others‑‑‑Respondents

R.S.A. No.435 of 1972, heard on 13th September, 2004.

(a) West PakistanLandRevenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39‑‑‑Specific Relief Act (I of 1877), Ss.42 & 56‑‑‑Suit for declaration‑‑‑Shard Wajab‑ul‑Arz‑‑‑ Interpretation‑‑‑Plaintiffs filed suit for declaration and permanent injunction claiming that the property was part of "Shamlat Deh" and they were the co‑owners thereof‑‑‑Plaintiffs further alleged that entries in the Revenue Record showing the property in the exclusive ownership of the defendants were illegal and unlawful and needed to be corrected‑‑‑Suit was concurrently decreed ‑‑‑Validity‑‑Defendants had taken the plea that the matter was settled and a "Shard Wajab‑ul‑Arz", was entered in the Revenue Record‑‑‑Predecessors of the defendants were acknowledged to be the owners of that part of property which was made cultivable by them‑‑‑Interpretation of a document is a question of law, which could be construed in the light of evidence led by the parties‑‑‑Wording of the "Shard Waiab‑ul‑Arz" showed the intention of the parties to the "Shard" and the "Shamlat" was yet to be divided‑‑‑Rights available to the defendants were to enjoy the possession and the usufruct of the said land and by describing them as the owners only, meant for the purpose of the responsibility and the implication of the land revenue‑‑‑Exclusive ownership was dependent upon the partition in accordance with law‑‑‑No error in reading the evidence or the interpretation or any other legal or factual infirmity in judgments was found‑‑‑Second appeal was dismissed in circumstances.

(b) Words and Phrases‑‑‑

‑‑‑‑‑‑‑Mahsub"‑‑‑Meanings‑‑‑"Mahsub" used in the "Shard" means part, Number, reckoned, computed, calculated, carried to account.

Urdu, Classical Hindi and English Dictionary by Joint T. Platts ref.

‑‑‑Document's interpretation is a question of law, which could be construed in the light of evidence led by the parties.

Tariq Kamal Qazi for Appellants.

M. Aslam Riaz for Respondents.

Date of hearing: 13th September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 74 #

2005 C L C 74

[Lahore]

Before Muhammad Akhtar Shabbir, J

KHURSHID AHMAD and 3 others---Petitioners

Versus

ASSISTANT COMMISSIONER, BAHAWALPUR and 4 others---Respondents

W.P. No.497 of 1987/BWP, heard on 17th September, 2001.

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

----Sched. II, Condition 1---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Power of Collector to sanction natural path--Petitioners in their Constitutional petition had called in question order passed by Authority restoring sanctioned natural path through the land of petitioners on the ground that said order had been passed in their absence in violation of principle of natural justice and also that petitioners being full owners of said land, no path could be carved or sanctioned through their owned land without their consent---Petitioners were present when Tehsildar went on the spot---Contention of petitioners that there was no sanctioned path existing at the site or that they were not heard, being misconceived, was repelled---Natural path in dispute had been duly sanctioned while making survey of land and petitioners were unable to controvert copies of Furd Takseem, Shajra Parcha and Khasra Girdawari showing sanction of natural path---Government/Collector, under Condition 1, Sched. II of Colonization of Government Lands (Punjab) Act, 1912, was empowered to sanction 1-1/2 Qadams width on either side of survey of square or any line of road whichever not yet made to have been marked upon on the ground, to restore same and implement order of sanctioning natural path at sight---Petitioners having alternate remedy of appeal before next higher Authority, Constitutional petition filed by petitioners, held, was not maintainable.

The Christian Educational Endowment Trust Lahore v. The Deputy Commissioner, Lahore and others 1997 SCMR 1189; Muhammad Sadiq Khan and others v. M. Saleem Khan and others 1988 MLD 1676; Noor Muhammad v. Habibullah 1991 MLD 1651; Ch. Muhammad Ismail v. Fazal Zada Civil Judge, PLD 1996 SC 246; Mrs. Rehana Masood v. Mumtaz Ali Chungani and others 1989 ALD 534 and Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

Rana Sardar Ahmed for Petitioners.

Malik Abdul Ghafar Awan for Respondents.

Mian Muhammad Bashir, A.A.-G.

Date of hearing: 17th September, 2001.

CLC 2005 LAHORE HIGH COURT LAHORE 78 #

2005 C L C 78

[Lahore]

Before Tanvir Bashir Ansari, J

Mst. ZARDAN BEGUM and 2 others---Petitioners

Versus

ABDUL MAJEED and 3 others---Respondents

Civil Revision No.274 of 2000, heard on 9th July, 2004.

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

----S. 42---Declaration of title---Inheritance---Share of legal heirs, proof of---Principle---Whenever a party claims title as against inherited share of legal representatives of propositus, that party should substantiate his claim through positive evidence---No party can be obliged to prove the negative.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 72, 117 & 120---Suit for declaration of title---Execution of will---Onus to prove---Non-production of original will---Attestation of mutation on the basis of will--Plaintiffs assailed mutation on the basis of will in favour of defendant by the predecessor-in-interest of the parties---Plaintiffs alleged the will to be a false and forged document---Trial Court and Appellate Court dismissed the suit and appeal respectively---Plea raised by the plaintiffs was that the original will was not produced by the defendant during the trial--Validity---Mere fact that the mutation was attested would not ipso facto prove the execution of will---Will was allegedly presented before Revenue Authorities after the death of predecessor-in-interest of the parties, in these circumstances, the non-production of Will was fatal to the case of defendant---Plaintiffs had denied execution of Will by their predecessor-in-interest in respect of the suit property and in support of Will, the defendant had appeared as his own witness but did not support the document through any other witness---Other witness produced by the defendant deposed that the predecessor-in-interest of the parties had executed a Will on an ordinary piece of paper in favour of defendant and that it was after his death that the mutation was, attested according to the Will---Such statements without any other corroborative evidence was not sufficient to prove the execution of Will---No Revenue official was produced in evidence by the defendant---As the status of the plaintiffs as of legal heirs of the deceased owner of the suit property was undisputed and the Will in favour of defendant was not established, there was no impediment to the claim of the plaintiffs and other legal representatives of the deceased owner---Judgments and decrees of both the Courts below were set aside and the suit of plaintiffs was decreed in their favour--Revision was allowed in circumstances.

----S. 42---Declaration of title ---Limitation---Co-sharers---As the defendant did not deny the status of the plaintiffs at least as co-sharer in the suit land, the bar of limitation would not apply to the plaintiffs in circumstances.

Muhammad Younis Bhatti for Petitioners.

Sardar Tariq Anees for Respondents.

Date of hearing: 9th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 95 #

2005 C L C 95

[Lahore]

Before Muhammad Muzammal Khan, J

BARKAT ALI through Legal Heirs---Petitioners

Versus

SHAMAS DIN---Respondent

C. R. No. 1410 of 1996, heard on 24th June, 2004.

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

----Ss. 105 & 106---Specific Relief Act (I of 1877), S.8--- Suit for possession---Maintainability---Plaintiff had averred that suit-land was let out to defendant through rent note at monthly rent for a period of 11 months, that defendant undertook to vacate said land by removing his superstructure raised for residential purposes and that he would continue paying settled amount of rent---Suit was filed by plaintiff on ground that defendant had failed to pay rent despite notice---Suit was resisted by defendant alleging that land in dispute being situated within Municipal limits and locality in which land was situated having been declared `Kachi Abadi' suit filed by plaintiff was not maintainable and plaintiff should have filed ejectment application under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959---Validity---Rent Note, had clearly demonstrated that an open piece of lard without any structure over there was rented out at fixed monthly rent on which defendant was allowed to raise his "Jhugi" for residential purposes-- -Assertion of defendant that plaintiff should have filed application under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959 instead of a suit for possession merely for the reason that defendant had raised some construction over said rented land for residential purpose and same fell within Municipal limits, could not be accepted---Suit, in circumstances was competently filed by plaintiff---Default in payment of rent as claimed by plaintiff had fully been proved---Defendant had brought nothing on record to show that land in his possession was part of Kachi Abadi---Tenancy between parties being admitted, defendant on account of default in payment of rent and non-complying with terms of rent note, had to vacate land---Both Courts below had rightly decreed suit filed by plaintiff---In absence of any misreading or non-reading of evidence, concurrent judgment of Courts below not suffering from any illegality or irregularity, could not be interfered with by High Court.

Noor Muhammad Khan v. Haji Muhammad Ali Khan and others PLD 1973 SC 218; Mistri Ahmad Hassan v Abdur Rauf Khan and others 1986 SCMR 494; Fateh Muhammad v. Rustam Din NLR 1980 AC 295; Zubeda Bai v Syed Faqir Shah PLD 1993 Quetta 84; Pakistan. State Oil Company Limited v. Begum Rehana Sarwar 2000 CLC 506 and M. Imam-ud-Din v. Mst. Surriya Khanum PLD 1991 SC 317 ref.

Ehsanullah Khan Lilla and Iftikhar Hussain Shahid for Petitioners.

Atir Mahmood for Respondent.

Date of hearing: 24th June, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 100 #

2005 C L C 100

[Lahore]

Before Sh. Hakim Ali, J

AHMAD HASSAN ---Petitioner

Versus

SENIOR CIVIL JUDGE and another---Respondents

W. P. No.3947 of 2003, decided on 29th January, 2004.

(a) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(ix)---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Dissolution of marriage on ground of "Khula"---Development of aversion/hatred in mind of wife against husband making her life miserable---Such aversion/hatred could develop at any time, though its birth might differ from person to person---No yardstick could be fixed to measure such development---Dissolution of marriage would be better, if judicial mind and conscience of Court was satisfied that re-union of spouses would become a hateful union---Principles.

It is not correct that hatred cannot grow, unless one of the spouses takes residence in the house of the other. Aversion/hatred can develop at any time. Birth of it differs from one person to another. Even a single event can ignite the aversion, while the greater blows could be borne with perfect satisfaction in one's life without taking any adverse action. So it depends upon man to man and person to person and cannot be measured through any measurement/scale and weight. After having passed the whole life in cool and calm atmosphere, but in the last days of life, when the presence of one is supportive stick for the other, becomes so miserable that desertion/dissolution comes out as the sole solution of the abhorrence. Human being is a creature, whose deportment can take U-Turn at any time. Thus, no yardstick can be fixed for this purpose. From the facts of each case, the Court seized of it, has to make the judgment after examining all the aspects. If the judicial mind and conscience of a Judge is satisfied that re-union would become a hateful union of miserable and pitiable spouses, it would be better to dissolve, rather to push them into hell.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(ix)---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Decree for dissolution of marriage on ground of "Khula" passed by Courts below---Validity---Such finding would be treated as finding of fact and could not be assailed in Constitutional petition--Husband had filed suit against father of wife for recovery of money allegedly advanced to him---Re-unification of spouses would not serve any purpose in view of such litigation having started---High Court dismissed Constitutional petition in limine.

Mian Muhammad Tayyib Wattoo for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 144 #

2005 C L C 144

[Lahore]

Before Muhammad Muzammal Khan, J

GHAZANFAR ALI CHAUDHARY and another---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Transport, Government of the Punjab, Lahore and 4 others---Respondents

W.Ps. Nos.4888 of 2004 and 11016 of 2004, decided on 15th July, 2004.

(a) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 69-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice-- Opportunity of hearing---Route Permits of the petitioners stood rescinded by operation of law---Formal cancellation order was not needed---Absence of notice or opportunity of hearing could not be claimed in circumstances.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 69-A---Constitution of Pakistan (1973), Arts.18, 25 & 199--Constitutional petition---Freedom of Trade---Equality before law--Freedom of trade, business or profession are subject to certain qualifications as may be prescribed by law and could be hedged to the extent of lawful prohibition---Restrictions imposed by law cannot be claimed to be violation of fundamental right---Rationale behind the franchise of route permit was to provide qualitative, comfortable and excessive transport to the public and such classification being permissible under the Constitution, could not be knocked down by saying it to be discriminatory.

I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan v. Aziz Ullah Memon and 160 others PLD 1993 SC 341; Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641 and Arshid Mehmood v. Government of the Punjab PLD 2003 SC 567 ref.

----S. 69-A---Constitution of Pakistan (1973), Art.199---Civil Procedure Code (V of 1908), O.I, Rr.8, 11 & 12---Constitutional petition Representative suit---Conduct of suit---Appearance before Court--Constitutional petitions were not filed in representative capacity but for the benefits of all the route permit holders---Provisions of Civil Procedure Code, 1908 were directly applicable to the Constitutional petitions---Provision of O.I, rule 8, C.P.C. are directory in nature--Omission to follow said provisions would result in follow up procedure provided in O. I, Rules 11 and 12 of the C. P. C.

(d) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 69-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---District Regional Transport Authority---Secretary being official of the District Transport Authority corrigendum was issued under decision of the District Regional Transport Authority for the benefit of the petitioners and was undisputedly made under approval of the said Authority---Challenge to the corrigendum in question was of no help to the petitioners.

(e) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 66---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Availability of---Statutory remedy of appeal---Effect---Remedy of appeal under section 66 of the Provincial Motor Vehicles Ordinance, 1965, though available to the petitioners, maintainability of Constitutional petition was not affected as relief claimed by petitioners could not be prayed for in appeal.

Saeed Ullah Khan for Premier Bus Service (in Writ petition No.4888 of 2004).

M. Shan Gull for Petitioner (in W. P. No. 11016 of 2004).

Sheikh Abdur Rashid for Petitioner (in W.P. No.11016 of 2004).

Hamid Shabbir Azar.

Kamran Shuja for Respondent No. 1.

Muhammad Lone (in W.P. No.4888 of 2004).

Rizwan Mushtaq A.A. -G. for Respondent No. 1.

CLC 2005 LAHORE HIGH COURT LAHORE 160 #

2005 C L C 160

[Lahore]

Before Syed Zahid Hussain, J

Messrs ENVIRONMENT CONSTRUCTION CO. LTD. ---Petitioner

Versus

MUHAMMAD SARWAR and others---Respondents

C.R. No.2068 of 1997, heard on 6th September, 2004.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXII, Rr.10 & 11 & S.115---Suit for declaration and cancellation of sale-deed---Necessary party, non-impleading of---Devolution of interest during pendency of suit---Successors of the previous owner of the suit-land assailed two registered sale-deeds executed in years, 1968 and 1970 in favour of defendants on the ground of fraud and misrepresentation--Suit was filed in year 1981 and during the pendency of suit, the defendants sold the suit-land to petitioner company vide registered sale-deed dated 29-12-1985---Suit was decreed by Trial Court on 5-5-1994 and appeal was filed by defendants before Appellate Court---Petitioner company filed application under O.I, R.10 C.P.C before Appellate Court on 18-11-1997 for impleading it as a necessary party---Appellate Court dismissed the application of the petitioner for the reason that if the petition would be entertained, it would be to pull the clock back as once again the parties would stand at the stage where they were in the year 1981---Validity---Court was entitled to add any person at any stage of the proceedings, enabling it to effectually and completely adjudicate upon and settle the question involved in the suit---Apart from the provisions of O. I, R.10 C. P. C. which were to be construed liberally by the Court, the provisions of O.XXII, Rr.10 and 11 C.P.C. also were applicable--Rejection of application by Appellate Court for impleadment of the petitioner as party to the appeal was not warranted by the facts and circumstances of the present case, rather the petitioner who had come forward for protecting and defending its right and interest of its own should have been allowed to be impleaded and heard in the matter--View taken by the Appellate Court in rejecting the application of petitioner was untenable and erroneous in law and was not sustainable--High Court in exercise of revisional jurisdiction set aside the order passed by Appellate Court and remanded the matter to Lower Appellate Court for hearing and deciding the appeal after impleading the petitioner as party thereto---Revision petition was allowed accordingly.

Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171 rel.

Muhammad Ahmad Qayyum and Azmat Saeed for Petitioner.

Farooq Mahmood Kahloon for Respondents.

Date of hearing: 6th September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 168 #

2005 C L C 168

[Lahore]

Before Mian Saqib Nisar, J

TAUSEEF MANZOOR---Appellant

Versus

ZAHID JAVAID and another---Respondents

S.A.O. 141 of 2003, decided on 6th October, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.7---Bona fide personal need of the landlord---Juristic person---Natural person--Pleadings---Proof---Departure---Landlords had claimed the ejectment on the ground of their personal requirement---Witnesses stated that the premises was needed for the extension of juristic person a "company" Clear departure and conflict in the pleadings and the evidence was found---Nothing was on the record to establish that the premises were needed by the landlords for their own use---Appeal was allowed and orders of ejectment passed on the ground of personal need were set aside in circumstances.

Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613 and Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158 distinguished.

Muhammad Amin Sheikh for Appellant.

Javed Bashir for Respondents.

Date of hearing: 6th October, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 178 #

2005 C L C 178

[Lahore]

Before Nazir Ahmad Siddiqui, J

HABIB BANK LIMITED through Azmat Jamshed, Ex-Manager and another---Petitioners

Versus

IMRAN MEHMOOD AKHTAR, ADVOCATE---Respondent

C.R. No.431 of 2004/BWP, decided on 15th July, 2004.

Tort---

---- Suit for damages for insult and humiliation---Both the Courts below had examined the matter in its true perspective with reference to evidence available on the file and had rightly concluded concurrently that plaintiff had successfully made out a case justifying his claim for damages as he was insulted/humiliated, without there being any fault or omission on his part and that his reputation was badly impaired/injured---Concurrent findings of fact of Court below deriving force from the evidence, neither being perverse nor arbitrary, were immune from further scrutiny in revisional jurisdiction---Revision petition was dismissed in circumstances---Civil Procedure Code (V of 1908), S.115.

Chaudhry Riaz Ahmad for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 188 #

2005 C L C 188

[Lahore]

Before Syed Zahid Hussain, J

KAKEZAI ASSOCIATION--Petitioner

Versus

C.S.C. and others---Respondents

W. P. No. 127/R of 1998, heard on 14th October, 2004.

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

----S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Matter required enquiry into facts as to the determination of status of the property---Both sides having their respective stance, finding, needed to be recorded by the competent forum on the controversy--Decision of the matter thus had to be taken by the Notified Officer in accordance with the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---High Court could pass remand order notwithstanding the fact that the matter was not pending at the time of repeal of Evacuee Laws---Notified Officer, in circumstances, could exercise the jurisdiction in the matter in order to find out the status of the property and legality or otherwise of the Transfer Order made by the Deputy Administrator Residual Properties---High Court observed that appropriate course open in such circumstances consistent with law and the practice was to remit the matter to the Notified Officer and to pass order in accordance with law after affording opportunity of hearing to parties concerned---Declaring the impugned order as of no legal effect, High Court remanded the matter to the Notified Officer before whom the application of the petitioner would be deemed pending, to be heard and decided by him in accordance with law.

Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193 and Muhammad Baran and others v. Member, (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 ref.

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

----Art. 199---Constitutional petition ---Laches---Perusal of the impugned order showed that the petitioner was not associated with the proceedings nor the order was passed in his presence which was followed by an order of transfer of property---As and when the petitioner acquired the knowledge of the same the matter was agitated before the concerned Department---Question of laches, in circumstances, hardly arose in the matter.

Ch. Muhammad Hussain for Petitioner.

Ch. M.Z. Khalid for Settlement Department on Court's call.

Ch. Yawar Ali for Respondent No. 3.

Date of hearing: 14th October, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 197 #

2005 C L C 197

[Lahore]

Before Mian Hamid Farooq, J

Ch. JAVED IQBAL‑‑‑Petitioner

Versus

Mst. ZAINAB BIBI and 8 others‑‑‑Respondents

W.P. No.9477 of 2004, decided on 28th July, 2004.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order passed in revision‑‑‑Order passed by Court of competent jurisdiction‑‑‑Judgment passed by a revisional Court in exercise of its powers under section 115, C.P.C. was challenged, invoking the jurisdiction of High Court under Article 199 of the Constitution‑‑‑Judgment passed by the revisional Court was neither void nor without jurisdiction‑‑‑Constitutional petition being incompetent and not maintainable was dismissed in circumstances.

Muhammad Sami Ullah Khan v. Additional District Judge and others PLD 2002 Lah. 56; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 quoted.

(b) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(x)(a)‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Constitution of Pakistan (1973), Art.199‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitutional petition‑‑‑Suit for Specific performance of contract‑‑‑Deficiency in Court‑fee‑‑‑Making up deficiency‑‑‑Suit for purposes of Court fee and jurisdiction was valued at Rs.22,00,000‑‑Couit fee of Rs.1000 was affixed with the assertion that the deficiency in the Court fee will be made up when ordered by the Court‑‑‑Litigant was duty bound to pay proper Court fee at the time of initial presentation of the plaint‑‑‑Suit was for specific performance of contract of sale and Court fee was payable on the amount of consideration mentioned in the agreement to sell‑‑‑Suit was filed in the year 2000 and Court fee was paid on 28‑1‑2004‑‑‑Non‑payment of Court fee at the time of filing of suit was not explained‑‑‑Persistent contumacious negligence in making up deficiency did not merit to be excused when valuable right had accrued favouring the other party‑‑‑Discretionary and equitable jurisdiction was not exercised by High Court and petition was dismissed in circumstances.

‑‑‑S. 7(x)(a)‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for specific performance of contract‑‑‑Sale consideration value for purposes of Court fee‑‑‑In suits for specific performance of contract of sale, the amount of Court‑fee to be paid on the plaint is the amount of consideration.

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

‑‑‑‑O. VII, R.1.(i)‑‑‑Plaint‑‑‑Court fee‑‑‑Litigant is duty bound to pay proper Court fee at the time of initial presentation of plaint.

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

‑‑‑‑S. 149‑‑‑Making up the deficiency in the Court fee‑‑‑Transfer of case‑‑‑Initial order directed the petitioner to make up the deficiency in the Court fee‑‑‑Such order was contumaciously avoided‑‑‑Additional Court fee was not paid taking advantage of transfer of the case‑‑Transfer of the case would not enlarge or extend the period fixed by the Court.

(f) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(x)(a)‑‑‑Specific Relief Act (I of 1877), S. 12‑‑‑Suit for specific performance of agreement‑‑‑Plaint‑‑‑Court fee‑‑‑Knowledge‑‑‑Petitioner was an Advocate and it was not believable that Advocate was not aware about the law that in suits for specific performance of agreement, Court‑fee was to be paid on the amount of consideration.

(g) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(x)(a)‑‑‑Civil Procedure Code (V of 1908), O.VII, R. 11 & S.149‑‑‑Rejection of plaint‑‑‑Lenient view‑‑‑Contumacious act‑‑‑Trial Court taking a lenient view and being oblivious of the passing of initial order directed the petitioner to make up deficiency in the Court fee till next date‑‑‑Petitioner avoided to pay additional Court fee taking advantage of the transfer of the case‑‑‑Petitioner's act was contumacious.

(h) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7(x)(a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑Discretion‑‑‑Equitable relief‑‑‑Petitioner had not explained as to why the law about Court fee was not complied with initially, his persistent contumacious negligence to obey the orders of the Court disentitled him for the grant of discretionary and equitable relief.

Muhammad Akbar Khan for Petitioner.

Sh. Aizad Masud for Respondents Nos.7 and 8.

Nemo for other Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 204 #

2005 C L C 204

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD REHMAN HASHMI and 4 others‑‑‑Appellants

Versus

Mian MUHAMMAD ALI through Mian Nisar Ahmed Warsi ‑‑‑ Respondent

R. F. A. No. 152 of 2004, heard on 22nd November, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VIII, R.10‑‑‑Failure to file written statement‑‑‑Striking off defence‑‑‑Where the defendant, deliberately failed to file written statement to defend a cause, the Court, after providing adequate opportunity in that behalf, was justified in invoking the provisions of O.VIII, R.10, C.P.C.‑‑‑While striking off the defence of the defendant, Court was not bound to pronounce the judgment forthwith or postpone the same for the written statement by granting further opportunity‑‑Discretion about the option of the Court to pass such orders as it thinks fit, in fact empowers the Court that despite striking off the defence of the defendant, the Court may still require the plaintiff to satisfy the Court about genuineness of his claim.

Syed Afzal Haider for Appellant.

Nadeem Kausar and Muhammad Anzak Raja and Mian Nisar Ahmed Warsi for Respondent.

Date of hearing: 22nd November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 206 #

2005 C L C 206

[Lahore]

Before Sh. Hakim Ali, J

Rana MUHAMMAD IKRAM and another‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB and 3 others‑‑‑Respondents

Civil Revision No.407 of 2000/BWP, decided on 23rd August, 2004.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Reference to Arbitrator‑‑‑Agreement containing arbitration clause‑‑‑Steps in the proceedings‑‑‑Plaintiff's suit for declaration and injunction on basis of agreement, which contained an arbitration clause, was referred to Arbitrator by the Trial Court‑‑‑Appeal against such order failed‑--Validity‑‑‑Defendants had not abandoned and abdicated their stand for referring the dispute to the Arbitrator‑‑‑No written statement was filed‑‑‑Application for getting clarification of order of status quo also indicated their intention to get a reference to Arbitrator and not the intention to get the matter decided by Civil Court‑‑‑No illegality or material irregularity in the exercise of jurisdiction by the Courts below was found‑‑‑Civil revision was dismissed with costs in circumstances.

The Province of the Punjab v. Messrs Irfan & Co., PLD 1956 (W.P.) Lah. 442 and Novelty Cinema, Lyallpur v. Firdaus Films and another PLD 1958 (W.P.) Lah. 208 distinguished.

Badshah Meah Sowdagar v. Nurul Haq and others PLD 1967 Dacca 250 and Island Textile Mills Ltd., Karachi v: V/O Techno-expert and another 1979 CLC 307 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Steps in the proceedings‑‑‑Criteria‑‑‑Criteria to determine as to whether steps in the proceedings had been taken or not by the party‑‑Act and conduct of the party had to show his intention to waive the objection and to submit to the jurisdiction/proceedings of the suit to be conducted by Civil Court.

Ch. Muhammad Amjad Khan for Petitioners.

Muhammad Aslam Khan Dhukkar for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 211 #

2005 C L C 211

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs AL‑BARKAT INDUSTRIAL CORPORATION LTD.‑‑Petitioners

Versus

I. D. B. P. ‑‑‑Respondent

C. R. No. 1286 of 2004, decided on 14th July, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2), 115 & O.XXI, R.58‑‑‑Execution of decree‑‑‑Objection to‑‑‑Attachment of goods‑‑‑Petitioner filed application under S.12(2), C.P.C. against order passed by Executing Court while executing decree in favour of respondent against judgment‑debtor‑‑‑Bank filed an objection petition under O.XXI, R.58, C.P.C. which petition was conceded by Decree‑holder, resultantly Executing Court de‑attached disputed goods‑‑‑Petitioner claimed that after de‑attachment of said goods, judgment‑debtor agreed to sell said goods to petitioner, with the concurrence of the Bank and petitioner had paid entire price thereof to the judgment-debtor‑‑‑Agreement of sale allegedly arrived at between the petitioner and judgment‑debtor, was alleged to be void and not enforceable at law‑‑‑Executing Court dismissed application of petitioner with a view that petitioner did not bring any document on file to prove that the Bank was party to said agreement or had conceded to said agreement between petitioner and judgment‑debtor‑‑‑Dispute involved in the case required deeper appreciation and determination in accordance with law‑‑‑Order dismissing application of petitioner by Executing Court, on face of it, was tainted with material irregularity and illegality, as envisaged by S.115, C.P.C.‑‑High Court accepting revision petition set aside impugned order, with the result that petitioner's petition, would be deemed to be pending and would be decided afresh in accordance with law.

Talat Farooq Sheikh and Sardar Anwar Ahmed Khan for Petitioner.

Shoaib Zafar for Respondent No. 1.

S. Khalid Mahmood for Respondent No.2.

Date of hearing: 14th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 224 #

2005 C L C 224

[Lahore]

Before Sh. Hakim Ali, J

BAHAWAL KHAN alias MUHAMMAD IQBAL‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, CHISHTIAN and 2 others‑‑‑Respondents

Writ Petitions Nos.3821, 3867, 3871 of 2003/BWP, 1036 and 2480 of 2004/BWP, decided on 27th July, 2004.

(a) Conciliation Courts Ordinance (XLIV of 1961)‑‑‑

‑‑‑‑Ss. 2(ff), (h) & 5(2)‑‑‑Punjab Local Government Ordinance (VI of 1979), S.182‑‑‑Punjab Local Government Ordinance (XIII of 2001), S.196(1)(iii)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Jurisdiction‑‑‑Conciliation Court had decreed the suits for recovery of amount‑‑‑Appeals 'against such decrees had failed‑‑‑Validity‑‑‑Suits were not based on any written contract‑‑‑Conciliation Courts could not be constituted‑‑‑Suits could not be entertained, heard and decided‑‑‑Constitutional petitions were accepted and judgments and decrees, passed by Courts below were declared illegal and unlawful in circumstances‑‑‑Repeal and saving clauses in the Local Government Law cannot affect Conciliation Courts Ordinance, 1961.

(b) Conciliation Courts Ordinance (XLIV of 1961)‑‑

‑‑‑‑Ss. 2(ff)(i), (j), 4 & 5‑‑‑Punjab Local Government Ordinance (VI of 1979), S.102‑‑‑West Pakistan General Clauses Act (VI of 1956), S.7‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Repeal‑‑‑Saving clause‑‑‑Conciliation Courts‑‑‑Musalihati Anjuman‑‑‑Clauses (ff), (i) and (j) of S.2 of Conciliation Courts Ordinance, 1961 were not creation of the Punjab Local Government Ordinance of 1979‑‑ No nexus of Musalihati Anjuman with that of Conciliation Court as to declare the law of Conciliation Courts to have become inoperative and infructuous‑‑‑Section 7 of the West Pakistan General Clauses Act, 1956 had rescued the life and existence of Conciliation Courts.

Musa Kazimi v. K.M. Sheriff and another AIR 1959 Mad. 542; The University of the Punjab, Lahore and 2 others v. Rehmatullah PLD 1982 Lah. 729; Gulab Chand v. State and another 1963(2) Crl.LJ 589 (Vol.) 67, C.N.177 rel.

‑‑‑‑Ss. 4 & 5‑‑‑Constitution of Conciliation Court‑‑‑Chairman of Union Council or the member representing the ward can be the Chairman of the Conciliation Court‑‑‑Other two representatives are nominated by each party‑‑‑Sole person who is necessarily to be Chairman of the Conciliation Court is the person who has to act through, election/selection/nomination held under any Local Government law' and who has to become the Chairman and has to be borrowed from Local Council.

Ch. Manzoor Ahmad and Mrs. Samina Qureshi for Petitioner.

Ahmad Mansoor Chishti A.A.‑G. and Sardar Muhammad Aftab Khan Baloch, for Respondents.

Date of hearing: 26th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 265 #

2005 C L C 265

[Lahore]

Before Mian Saqib Nisar, J

Malik ZAHID IQBAL and others‑‑‑Petitioners

Versus

DISTRICT COORDINATION OFFICER, FAISALABAD and others‑‑‑Respondents

W. P. No.16170 of 2004, decided on 9th December, 2004.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 92‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Recall motion of Naib Union Nazim‑‑‑Requirements‑‑‑Where a recall motion contains sufficient allegations against the Naib Nazim enabling the members to form an opinion against him, within purview of S.92(1), Punjab Local Government Ordinance, 2001 which provides him chance to know, as to what he has to defend, that shall be sufficient compliance of the law‑‑Recall motion moved against Naib Nazim wherein allegations against him were duly specified was a proper recall motion‑‑‑If the D.C.O. was of the view that on account of the absence or leave of the Naib Nazim the resolution of recall and the notification, could not be sustained, he, while declaring those to be illegal etc., should have kept the recall motion intact and pending and should have directed for the discussion and the voting upon such motion, after providing opportunity of hearing to the Naib Nazim as required by law under S.92(7), Punjab Local Government Ordinance, 2001‑‑‑Principles.

It is the matter about the opinion of the members of the house, as to whether the Naib Nazim, is acting against the public policy and/or the interest of the people, but it is not the requirement of law, that the exact words of the statute must be expressed in the motion. Therefore, where a recall motion contains sufficient allegations against the Naib Nazim enabling the members to form an opinion against him, within the purview of section 92(1), which provides him chance to know, as to what he has to defend, that shall be the sufficient compliance of the law. It shall be misconception to argue and to hold that the allegation in a recall motion, should be in the nature of a charge‑sheet or the charge as framed in the criminal matter, and that the strict rule of proving the charges should also rest upon the shoulders of the persons, who are movers of the motion. Rather it is on account of the allegation; the discussion and the debate in the house, by all or any of the members, including the person, against whom the motion is moved, that the house shall decide the motion on the basis of the majority rule. In the present case, if on account of the absence or leave of the Naib Nazim the D.C.O. was of the view that the resolution of recall and the notification; cannot be sustained, he, while declaring those to be illegal, etc. should have kept the recall motion intact and pending and should have directed for the discussion and the voting upon such motion, after providing opportunity of hearing to the Naib Nazim as required by the law under S.92(7).

A direction was issued to the Nazim, Union Council to convene a meeting of the house for considering the earlier recalling motion, which shall be deemed pending, and to proceed with the matter strictly, within the purview of The Punjab Local Government Ordinance, 2001.

In order to watch the proceedings, High Court directed the Deputy District Officer, to be present on the occasion, and to record the minutes of the meeting, which shall be retained by him, to be kept with him, so that in case of any further dispute between the parties, some advantage can be taken from such minutes.

Syed Farooq Hassan Naqvi for Petitioners.

Ch. Azeem Sarwar for Respondent No.4.

CLC 2005 LAHORE HIGH COURT LAHORE 269 #

2005 C L C 269

[Lahore]

Before Muhammad Akhtar Shabbir, J

TALAT JAHAN BURKI and another‑‑‑Petitioners

Versus

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, Lahore and 4 others‑‑‑Respondents

W. P. No. 124/R of 1996, heard on 20th October, 2004.

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑--

‑‑‑‑Ss. 10, 11 & 14 (1)‑‑‑Allotment of land on the basis of fraud and misrepresentation‑‑‑Allotment of building, site' to Mukhbar‑Principles‑‑‑Mukhbar was entitled for allotment only if he had an un‑certified claim‑‑‑Claim of evacuee for agriculture land could be adjusted only against agriculture land‑‑‑Disputed land was declared as urban land within the municipal limits asbuilding site' and no allotment of such land on the basis of claimants units whether urban or rural could be made.

Bashir Ahmad's case 1991 SCMR 377 rel.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑--

‑‑‑‑Ss. 10, 11 & 14 (1)‑‑‑Allotment of land on the basis of fraud and misrepresentation ‑‑‑Mukhbar, entitlement of‑‑‑Principles‑‑‑Person who was not Mukhbar was not entitled for allotment of land under the relevant provision of Displaced Persons (Land Settlement) Act, 1958.

‑‑‑‑Ss. 10, 11 & 14 (1)‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Maintainability‑‑‑Power of attorney‑‑‑Petitioners claimed allotment of land in their favour on the basis of their being Mukhbar‑‑‑Constitutional petition was filed by a person who was appointed as special attorney by the general power of attorney holder of . the petitioners‑‑‑Plea raised by the respondents was that the general attorney was not authorized by the petitioners to appoint special attorney‑‑‑Validity‑‑‑Power of atiorney must be construed strictly as giving only such authority as was conferred expressly or by necessary implication and the person' authorized to do any particular act would do only that specific act and would not travel beyond the authority vested in him‑‑‑Judicial proceedings launched in a manner not authorized by power of attorney executed in favour of a person would be nullity in the eye of law‑‑‑Power of attorney, could only give that power which was specifically mentioned therein, and it would operate prospectively and not retrospectively‑‑‑Petitioners while authorizing general attorney had not authorized him to appoint a special attorney, therefore, the present Constitutional petition filed by the special attorney was not maintainable as he had no authority‑‑‑Petition was dismissed in circumstances.

Muhammad Ramzan v. Member (Rev.)/CSS 1997 SCMR 1635; Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822; Muhammad Mahrban v. Sadruddin 1995 CLC 1541; Muhammad Afsar Khan v. Khadim Hussain PLD 1978 SC (AJK) 143; The Central Bank of India Ltd., Lahore v. Messrs Tajuddin Abdur Rauf 1992 SCMR 846. and Abu Bakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367 ref.

(d) Power of attorney‑----

‑‑‑‑ Scope.

Raja Muhammad Arif for Petitioners.

Sh. Muhammad Anees Sadiq for Respondents.

Date of hearing: 20th October, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 273 #

2005 C L C 273

[Karachi]

Before Shabbir Ahmed, J

Messrs AEROFLOT RUSSIAN AIRLINES‑‑‑Decree‑holder

Versus

Messrs GERRY'S INTERNATIONAL (PVT.) LIMITED‑‑‑Judgment‑debtor

Ex. No.8 of 2004, decided on 30th August, 2004.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Arts. 181 & 183‑‑‑Execution'of judgment and decree passed by the High Court of Sindh in Civil Suit‑‑‑Limitation‑‑‑Jurisdiction exercised by High Court of Sindh while trying a suit is of principal Civil Court of original jurisdiction in contradistinction with extraordinary civil jurisdiction exercised by a Chartered High Court‑‑‑Article 181 and not Art.183 Limitation Act, 1908 is applicable to the application for execution of the decree passed by Sindh High Court on original side‑‑‑Where the application for execution was filed beyond three years as prescribed under Art.181 of the Limitation Act, 1908, such application was barred by time.

Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985 applied.

Firdous Trading Corporation and others v. Japan Cotton and General Trading Co. Ltd. PLD 1961 (W.P.) Kar. 565; Pakistan Fishries Ltd. Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985; National Bank of Pakistan v. Mian Aziz‑ud‑Din and 7 others 1996 SCMR 759; Ahmad Khan v. The Chief Justice and the Judges of the High Court West Pakistan and others PLD 1968 SC 171; Haji Razak v. Usman and 9 others PLD 1975 Kar. 944; Province of Sindh v. Haji Razak 1991 SCMR 921: Sri. Muhammad Ali v. Messrs China Silk House and another 1985 CLC 679; Mst. Tayyaba Begum v. Gul Rehman and 2 others 1988 CLC 2370; Lall Zaman v. Safdar Ali Khan 1996 MLD 860; Civil Courts (Sindh Amendment) Ordinance, 1970 PLD 1981 Kar. 210 and Rimpa Limited and another v. Karachi Metropolitan Corporation 2004 CLC 1797 ref.

Shahid Anwar Bajwa for Decree‑holder.

Kazim Hasan for Judgment‑debtor.

Date of hearing: 9th August, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 283 #

2005 C L C 283

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

ALLAH DITTA‑‑‑Respondent

Civil Revisions Nos.726‑D and 727‑D of 1995, head on 19th October, 2004.

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

‑‑‑‑Ss. 2(d) & 5‑‑‑Right of Pre‑emption ‑‑‑Sale of immovable property‑‑Plaintiff filed suits to pre‑empt sale of occupancy rights and claimed to be a Shafi Jar and Shafi Khaleet and pleaded performance of Talbs‑‑Suits were decreed by Trial Court‑‑‑Appellate Court had dismissed suits on the ground that sale did not fall within the definition of pre‑emptable sale‑‑‑Validity‑‑‑Ownership of both the properties had vested in the Provincial Government‑‑‑Occupancy rights were sold and there was no transfer of ownership as envisaged by sections 2(d) and 5 of the Punjab Pre‑emption Act, 1991‑‑‑Suits were rightly dismissed by .the Appellate Court.

Aziz Hussain and others v. Rashid Ahmad and others 1992 SCMR 1018 fol.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑--

‑‑‑‑S. 13(3)‑‑‑Making of Talbs‑‑‑Talb‑i‑Ishhad‑‑‑ One of the attesting witnesses of the notice of Talb‑i‑Ishhad was not produced, which witnesses should have essentially been produced‑‑‑Valid Talb‑i‑Ishhad thus, was not proved on the record.

Sh. Muhammad Naeem Goreja for Petitioner.

Mian Mushtaq Ahmad for Respondent.

Date of hearing: 19th October, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 292 #

2005 C L C 292

[Lahore]

Before Sh. Hakim Ali, J

Mst. ZOHRA KAUSAR SAIMA‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, KAROR, DISTRICT LAYYAH and 2 others‑‑‑Respondents

W.P. No.3901 of 2004, decided on 8th September, 2004.

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

‑‑‑‑S. 17‑‑‑Constitution of Pakistan, 1973, Art. 199‑‑‑Constitutional petition‑‑‑Suit for jactitation of marriage‑‑‑Validity of Nikahnama‑‑Petitioner had challenged the validity of Nikahnama in suit for jactitation of marriage and in the alternative decree for dissolution of marriage on ground of Khula was also claimed‑‑‑Trial Court dismissed the plea of jactitation but decreed the suit for dissolution of marriage on ground of Khula'‑‑‑Such decree was upheld in appeal‑‑‑Validity‑‑‑Documentary evidence was produced in form of affidavits attested by the Magistrates and affidavits attached with the Constitutional petition where she claimed to be legally wedded wife of respondent‑‑‑Daughter was born in wedlock‑‑‑Question of correct parentage of the child was also involved‑‑Courts have always shown reluctance to such an interpretation of matrimonial contracts which would stigmatize a child‑‑‑No useful material was produced to prove her case‑‑‑Constitutional petition was dismissed in limine.

Manzoor Hussain v. Zahoor Ahmad and 4 others 1992 SCMR 1191; Major Sher Afzal v. Shamim Firdaus and another PLD 1980 SC 228 cited.

(b) Islamic Law‑‑‑--

‑‑‑‑Marriage‑‑‑Petitioner's admission in her statement that she had been wandering from place to place when she had many chances of open space and place to flee and return to her parent's house‑‑Her preference to remain in the state of continuous cohabitation for period of more than one and a half year was itself best proof of existence of marriage.

Chandu Lal v. Bibi Khatemonnessa AIR 1943 Cal. 76; Chochalingam v. Sami Battar AIR 1925 Mad. 426 and Bashir Ahmad and others v. Ilam Din and others PLD 1988 SC 8 ref.

Ch. Muhammad Akram for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 303 #

2005 C L C 303

[Lahore]

Before Maulvi Anwarul Haq and Farrukh Latif, JJ

ZARI TARAQIAYATI BANK LTD. through Manager‑‑‑Applicant

Versus

ZAFAR PERVAIZ‑‑‑Respondent

E.F.A. No.1 of 2004 and C.M. No.1/C of 2004, decided on 20th October, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 48 & O.XXI, R.11‑Limitation Act (IX of 1908), Arts. 181 & 182‑‑‑Execution, petition‑‑‑Limitation‑‑‑Suit for recovery of money was decreed on 21‑1‑1996‑‑‑First execution application was filed on 17‑5‑2001‑‑‑Executing Court dismissed the said application on ground that it was barred by time‑‑‑validity‑‑‑Decree was passed on 21‑1‑1996 and first application for its execution was filed on 17‑5‑2001‑‑‑Section 48, Civil Procedure Code, 1908 governed the second application‑‑‑No application for execution was filed within three years prescribed by Article 181 of Limitation Act, 1908‑‑‑Application filed after the expiry of the said period was barred by time.

Mahboob Khan v. Hassan Khan Durrani PL.D 11290 SC 778 quoted.

Sardar Riaz Karim for Applicant.

CLC 2005 LAHORE HIGH COURT LAHORE 307 #

2005 C L C 307

[Lahore]

Before Sh. Hakim Ali, J

GULZAR AHMAD through L.Rs.‑‑‑Petitioners

Versus

MASJID FAROOQIA, KHANGARH TOWN, through Muhammad Rafiq, Khatib Masjid‑‑‑Respondent

C. R. No. 412‑D of 2004, decided on 11th October, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Revision‑‑‑Limitation‑‑‑Condonation of delay‑‑‑Suit for declaration was concurrently dismissed‑‑‑Revision was filed after a delay of about two years and eight months‑‑‑Application for condonation of delay was filed without the averment that copying agency had not informed the petitioner and copies were obtained on 1‑1‑2004‑‑‑Validity‑‑‑Delay of two years and eight months showed the indifferent attitude of the petitioner who had not cared to approach the Copying Agency for such a long period‑‑Slackness of petitioners did not entitle them to any concession in the form of condonation of delay to be extended to them in the period of limitation‑‑‑Civil Revision was dismissed in limine in circumstances.

Ch. Muhammad Ashraf Kamboh for Petitioners.

2005 C L C 346

[Lahore]

Before Sh. Hakim Ali, J

TAHIR PERVAIZ‑‑‑Petitioner

Versus

MUHAMMAD SADIQ and others‑‑‑Respondents

Civil Revision No.95 of 2001/BWP, decided on 31st July, 2004.

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

‑‑‑‑Art. 140‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration to annul the registered gift‑deed‑‑Cross‑examination‑‑‑Previous statements in writing‑‑‑Portions contained in the documents were put to the plaintiff in cross‑examination‑‑‑Denial of such statements was of no use to plaintiff as he had not produced evidence to prove that such portions were not written on his instructions or those documents had not originated from his acts or conduct.

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

‑‑‑‑Arts. 85 & 86‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Judicial record‑‑‑Presumption‑‑‑Plaintiff had not denied that he had not filed earlier suit and application for its withdrawal‑‑‑Such documents were part of judicial record and could not be disbelieved on hyper technicalities‑‑‑No prudent man could consider it to be plausible that the contents of the documents were not written with his consent.

‑‑‑‑Gift‑‑‑Conditions of gift‑‑‑Conditions of gift would not remain valid and those conditions would evaporate in the air leaving the gift pure and simple‑‑‑Non‑fulfillment of conditions could not be made ground to cancel the registered gift deed‑‑‑If the passions and feelings which were the cause of gift were changed, that would not make the gift revocable.

(d) Islamic law‑‑‑--

‑‑‑Gift of a share of a joint property‑‑‑No bar in law in making gift of the share of a joint property‑‑‑Donor had to divest all those rights as he possessed into that property, for completion of the gift‑‑‑Once intention to make such gift was discernible from the facts of the case and proved, the completion of gift would be presumed.

(e) Islamic law‑‑‑----

‑‑‑‑Gift‑‑‑Reasons for gift may be to please or appease‑the donee and to get concessions from him‑‑‑All these are manifestations of possession in the shape of gift, having no monetary gain or consideration in lieu of the gift‑‑‑Non‑existence of blood relationship would not be sufficient ground to declare a gift invalid.

(f) Islamic law‑‑‑--

‑‑‑‑Gift‑‑‑Donor had gifted only share from the `Khata' to the donee‑‑Donee took possession of the plot of his own choice and raised huge construction over it‑‑‑High Court summoned the parties‑‑‑Defendant offered reasonable compensation to compensate the plaintiff‑‑‑High Court though dismissed the suit of the plaintiff, compensation amount was decreed in favour of plaintiff as equitable relief.

Ch Naseer Ahmad for Petitioner.

Ch. Muhammad Amjad Khan for Respondent No. 1.

Date of hearing: 25th June, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 352 #

2005 C L C 352

[Lahore]

Before Ijaz Ahmad Chaudhry, J

WALI MUHAMMAD and another‑‑‑Petitioners

Versus

THE SECRETARY, COLONIES, BOARD OE REVENUE, PUNJAB, LAHORE and 9 others‑‑‑Respondents

Writ Petition No.4474 of 2002, heard on 14th July, 2004.

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

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of land‑‑‑Right of, Return (Haq‑e‑Wapsi)Petitioners were allotted 92 Kanals and 12 Marlas of land as "Moeens" (Tharkhan‑Lohar) vide order dated 2‑3‑1977.by Extra Assistant Colony Officer‑‑‑Such order was not incorpor4ted in the Revenue Record‑‑‑Same land was adjusted to respondents vide order dated 24‑3‑1997 passed by Extra Assistant Colony Officer against right of Return (Haq‑e‑Wapsi)‑‑Appeal and revision against such order had failed‑‑‑Validity‑‑‑District Officer (Revenue) had reported that land was allotted to petitioners as "Moeens"‑‑‑Such order was not implemented by the lower staff‑‑Respondents were allotted 341 Kanals land in excess of their entitlement and it was inefficiency of the Extra Assistant Colony Officer that he could not get implemented the order passed on 2‑3‑1977 in favour of petitioners‑‑‑Orders passed by Extra Assistant Colony Officer on 24‑3‑1997 in favour of respondents for adjustment of the State land against their right of return without setting aside order of allotment dated 2‑3‑1977 which was in favour of the petitioners, and was still in the field, was illegal and unlawful as the, said land was not available for allotment‑‑‑Petitioners were not even summoned and were condemned unheard‑‑‑Courts below had not taken into consideration such facts and had passed brief orders which were declared as illegal as basic order itself was illegal‑‑‑Constitutional petition was accepted, orders passed by Revenue Courts were set aside‑‑‑Extra Assistant Colony Officer was directed to get the order dated 2‑3‑1977 implemented in the Revenue Record in the name of the petitioners.

Sh. Ata Muhammad for Petitioners.

M. R. Khalid Malik, Addl. A.‑G. for Respondents Nos. 1 to 4.

M. Muhammad Rafique Bajwa for Respondents Nos.5 to 11.

Date of hearing: 14th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 356 #

2005 C L C 356

[Lahore]

Before Maulvi Anwarul Haq, J

RAHIM BAKHSH and 7 others‑‑‑Petitioners

Versus

QADIR BAKHSH and 12 others‑‑‑Respondents

Civil Revision No.99 of 1985, heard on 20th September, 2004.

Qanun‑e‑Shahadat (10 of 1984)-------

‑‑‑‑Arts. 75, 76 & 85(5)‑‑‑Civil Procedure Code (V of 1908), O.VIII, R.2‑‑‑Contract Act (IX, of 1872), S.215‑‑‑Specific Relief Act (I of 1877)‑‑‑S.42‑‑‑Suit for declaration‑‑ Document, proof of ‑‑‑Pleadings‑‑ Payment‑‑‑Agent's duty to communicate‑‑‑Plaintiffs in suit for declaration had challenged the appointment of general attorney and consequent sale made by him‑‑‑Defendants had controverted the plaintiffs‑‑‑Suit was decreed by the Trial Court, but Appellate Court dismissed the same‑‑‑Validity‑‑‑Original document (general power of attorney) was not produced‑‑‑Defendants had to prove the document by primary evidence‑‑‑Document had gone out of the pale, of public documents as per Article. 85(5) of the Qariun‑e‑Shahadat, 1984‑‑‑One of the plaintiffs who appeared in the witness‑box was not confronted with the document said to have been executed by him‑‑‑Payment allegedly made before the execution of power of attorney was not pleaded in written statement‑‑‑One of the principals of the power of attorney had died before the sale‑‑‑Alleged sale was effected in the names of sons of the attorney which required consent of the principal‑‑Appellate Court had acted with material irregularity in exercise of his jurisdiction‑‑‑Judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored in circumstances.

Aminuddin Khan for Petitioners.

Rafiq Ahmad Malik for Respondents.

Date of hearing: 20th September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 359 #

2005 C L C 359

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD AZAM KHAN‑‑‑Petitioner

Versus

CHAIRMAN, ARBITRATION BOARD, MARKET COMMITTEE KHANPUR and another‑‑‑Respondents

W.P. No.1130 of 2004/BWP, decided on 23rd August, 2004.

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

‑‑‑‑Ss. 2 & 24‑‑‑Punjab Agricultural Produce Markets (General) Rules 1979, Rr.50 & 79‑‑‑Constitution of Pakistan (1973), Art.199‑‑ Constitutional petition‑‑‑Arbitration Board‑‑‑Jurisdiction of Arbitration Board, prerequisites‑‑‑Petitioner had obtained the lease of the fruits of gardens through a settled contract‑‑‑Amount settled was not paid‑‑ Respondent filed application before Arbitration Board, Market Committee concerned for recovery of lease money‑‑‑Arbitration Board through its decision directed the petitioner to pay the amount‑‑Validity‑‑‑Before proceeding with the dispute, it had to be proved on the record that the matter in dispute had arisen within the notified market area as notified under section 4 of the Punjab Agricultural Produce Market Ordinance; 1978‑‑‑No such notification having been brought on the record by any of the parties, it could not be declared that the dispute had arisen within the notified market area‑‑‑Restriction imposed by Rule 79 of the Punjab Agricultural Produce Markets (General) Rules 1979 and its impact on the case with all other prerequisites for exercise of jurisdiction to entertain and adjudicate upon the matter in dispute were not considered by the Arbitration Board before making the decision‑‑Such decision was declared to be illegal and unlawful‑‑‑Matter was referred to the Board for reconsideration.

Malik Muhammad Sadiq Charmer for Petitioner.

Muhammad Aslam Khan Dhukkar for Respondent No. 1.

Mirza Muhammad Nadeem Asif for Respondent No.2.

CLC 2005 LAHORE HIGH COURT LAHORE 366 #

2005 C L C 366

[Lahore]

Before Syed Zahid Hussain, J

Messrs NIZAMI CONSTRUCTION COMPANY through sole Proprietor‑‑‑Petitioner

Versus

CHIEF EXECUTIVE OFFICER, GUJRANWALA ELECTRIC SUPPLY COMPANY (GEPCO) and 2 others‑‑‑Respondents

W.P. No.5768 of 2004, heard on 2ndJuly, 2004.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Contractual liability‑‑‑Blacklisting of a firm‑‑‑Failure to issue show‑cause notice‑‑‑Speaking order ‑‑‑Show cause notice was not issued‑‑‑Petitioner firm was blacklisted and debarred from future tendering without giving show‑cause notice‑‑Blacklisting of a company, firm, or person tarnishes its reputation, credibility, honour‑‑‑No proper show cause notice having been given qua the contemplated action against it, such order was not consistent with law‑‑‑Petition was accepted and order was declared as of no legal effect‑‑‑Option was left with the respondents to proceed in accordance with law if so desired.

Zulfiqar Ali v. Division Superintendent (Workshops), Pakistan Railways, Moghalpura, Lahore and another PLD 2001 Lah. 13 quoted.

Kazim Abbas Khan for Petitioner.

Abdul Rehman Madni for Respondents.

Date of hearing: 2nd July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 368 #

2005 C L C 368

[Lahore]

Before Abdul Shakoor Paracha, J

Dr. SADIQ HUSSAIN ‑‑‑Petitioner

Versus

Mst. MAQBOOL BEGUM and 5 others‑‑‑Respondents

Civil Revisions Nos. 1638, 1636 and 1637 of 1992, heard on 16th July, 2004.

(a) Islamic Law‑‑‑

‑‑‑‑Will‑‑‑Will in favour of a heir‑‑‑Bequest‑‑‑Testator had many heirs‑‑Will made in favour of one of the heirs cannot take effect unless the other heirs consent thereto after the death of the testator.

(b) Evidence Act (IX of 1872)‑‑‑--

‑‑‑‑Ss. 67 & 68‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.78 & 79‑‑Document‑‑‑Proof of contents and execution of document‑‑‑Execution of document was not proved by producing the scribe and marginal witness‑‑‑Nothing was paid before the Sub‑Registrar‑‑‑Payment made at time of agreement was not proved by producing marginal witnesses‑‑Mere production of attested copies was not proof of the sale‑deeds when the execution was denied by the executants.

‑‑‑‑S. 111‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 127‑‑‑Good faith‑‑Active confidence‑‑‑Fiduciary relationship‑‑‑When there was a question of good faith of the transaction between the parties burden to prove good faith was on the one who stood to the other in a position of active confidence‑‑‑Sale with consideration was not proved‑‑‑Courts below had rightly held the documents as not proved.

(d) Registration Act (XVI of 1908)‑‑‑--

‑‑‑‑Ss. 59 & 60‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Registration‑‑‑Endorsement‑‑‑Certificate of Registration‑‑Certificate signed, sealed and dated by the Registering Officer is admissible for proving that the document was duly registered in manner provided by the Act‑‑‑Such endorsement certificate was neither decisive on the identity of executant nor precluded enquiry‑‑‑Presumption of truth to the Sub‑Registrar's endorsement of the sale‑deed about payment of sale price stood rebutted when payment of sale price had no support of any evidence in writing.

Administrator‑General, Punjab v. M. Stanley Charles William Rose PLD 1986 Lah. 333 and Bilawal and another v. Abdul Razzak 1987 CLC 1092 distinguished.

1991 CLC Note 74 p. 59 and Qazi S. Altaf Hussain and another v. Ishfaq Hussain.1986 SCMR 1427 quoted.

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

‑‑‑‑S. 115‑‑‑Concurrent findings of facts‑‑‑Concurrent findings of facts recorded by two Courts of competent jurisdiction cannot be interfered with in exercise of revisional jurisdiction.

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

Ch. Abdul Razzaq Kamboh for Petitioner.

Abid Hassan Minto for Respondents.

Date of hearing: 16th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 375 #

2005 C L C 375

[Lahore]

Before Sh. Hakim Ali, J

Mst. SAID BIBI‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and 5 others‑‑‑Respondents

W .P. No. 1369 of 2004/BWP, decided on 12th July, 2004.

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

‑‑‑‑S. 24(2)‑‑‑Deposit of one third of sale price by plaintiff‑‑‑Court not fixing the date for such deposit‑‑‑Party cannot suffer for the omission committed by the Court‑‑‑Order having not specified the date; penalty for non‑compliance cannot be imposed‑‑‑Penalty of dismissal is conditioned with the fixation of the period.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 24(1) & (2)‑‑‑Interpretation of S.24, Punjab Pre‑emption Act, 1991‑‑‑First Proviso of section 24 of Punjab Preemption Act, 1991 has only provided the outer limit of 30 days but has not restricted the fixation and provision of a date for deposit of 1/3rd earlier to the expiry of 30 days‑‑‑Penalty of dismissal is conditioned with the fixation of the period.

‑‑‑‑S. 24(1)(2)‑‑‑Penal provisions‑‑Interpretation‑‑‑Penalty clause of law where there is a clear order fixing the date for deposit of Zar‑i‑Soenm‑‑‑ Penal provisions arc to‑be strictly applied in a given situation where it comes within its four corner.

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

‑‑‑‑S. 24‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for pre‑emption ‑‑‑Act of Court‑‑‑Trial Court did not fix the date of deposit of Zar‑e‑Soim‑‑‑ Plaintiff tried to deposit the "Zar‑e-Soim" before the date fixed for hearing but the Manager of the Bank demanded fresh order of Court‑‑‑Petitioner filed contempt proceedings against the said Manager and filed application for extension of time‑‑‑Trial Court extended the time‑‑‑Such order was set aside in revision‑‑‑Validity‑‑‑Defective order cannot be made a plank to deprive a litigant from enforcing his rights‑‑‑No person shall be prejudiced by the act of the Court‑‑‑Order passed by the revisional Court was declared illegal and that of Trial Court was upheld in circumstances.

Muhammad Ilyas and others v. Munshi Khan NLR 2004 UC 321; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001 and Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957 rel.

Haji Muhammad Sharif v. Chaudhry Khan and 2 others 2003 YLR 1471; Mahram Khan v. Fateh Khan and 3 others 2003 CLC 1434 and Habibullah Khan v. Amir Zaman and 9 others 1995 SCMR 135 distinguished.

Rana Sardar Ahmad for Petitioner.

Mumtaz Hussain Bazmi for Respondents Nos.5 and 6.

CLC 2005 LAHORE HIGH COURT LAHORE 379 #

2005 C L C 379

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

REHMAT ALI ‑‑‑Respondent

C.R. No.536 of 1999, heard on 13th July, 2004.

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

‑‑‑‑S. 13‑‑‑Non‑making of Talbs‑‑‑Effect‑‑‑ Extinguishment of preemption right‑‑‑Plaintiff had not mentioned in his plaint the exact date, time and place of meeting of witnesses who told him about‑the sale in question‑‑‑Plaintiff had failed to make Talbs and his right of pre‑emption had extinguished in circumstances‑‑‑Material contradictions and discrepancies having appeared in the statement of witnesses, suit was rightly dismissed by Courts below.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 quoted.

Tabi Ahmad Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 13th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 383 #

2005 C L C 383

[Lahore]

Before Sh. Hakim Ali, J

MUZAMMAL ABDULLAH‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others‑‑‑Respondents

W.P. No. 1866 of 2004/BWP, decided on 30th June, 2004.

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

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dismissal of ejectment application in default‑‑‑Dismissal for non‑production of evidence‑‑‑Recalling of such order‑‑‑Order passed on merits‑‑ ‑Petitioner did not produce evidence in his ejectment petition‑‑Such petition was dismissed in presence of both the counsel after the order of closing the evidence‑‑‑Rent Controller recalled such order and restored the original petition‑‑‑Respondent filed revision petition which was dismissed‑‑‑Validity‑‑‑Ex parte order must be differentiated from the case dismissed for non‑production of evidence‑‑‑Cases noted in first category could be restored and law treats the latter order to be an order passed on merits‑‑‑Authority passing the latter order had become functus officio‑‑‑Constitutional petition was accepted and orders passed by the Rent Controller for recalling his own final order was declared illegal and unlawful in circumstances.

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

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.XVII, R.3‑‑Dismissal of ejectment application for non‑production of evidence‑‑‑No procedure had been laid down by the West Pakistan Urban Rent Restriction Ordinance 1959 for conduct of trial‑‑‑Rent Controller had borrowed the provisions of Order XVII, Rule 3, C.P.C. and had applied it while dismissing the ejectment application‑‑‑Rent Controller must have followed the procedure prescribed for remedy in shape of appeal or revision to the higher Court against the decree or order passed under Order XVII, Rule 3, C.P.C.

Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 rel.

Nadeem Iqbal Chaudhry for Petitioner.

Shahzad Hussain Sheikh for Respondent No.3.

CLC 2005 LAHORE HIGH COURT LAHORE 413 #

2005 C L C 413

[Lahore]

Before Syed Zahid Hussain, J

Ch. MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and others‑ ‑‑Respondents

Writ petition No.4251 of 2000, heard on 16th December, 2004.

Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Amendment or alteration of a sanctioned Scheme by the Authority‑‑‑Scope‑‑‑Allotment of plots earmarked for the purpose of providing to the people of the area a Community Centre, Park and a Poly Clinic to individuals' for commercial/residential purposes by the Authority‑‑‑Contention of the Authority was that Authority could modify sanctioned Scheme at any time‑‑‑Validity‑‑‑Such a wide ranging proposition aimed at authorizing and empowering the Authority to change, alter or modify a sanctioned Scheme could not be countenanced as the law did not give unbridled or unfettered power‑‑‑Provisions of S.14 Lahore Development Authority Act, 1975 could be invoked and used by following the procedure i.e. "in the same manner as may be prescribed for the preparation of a Scheme" ‑‑‑Authority, however, would not be acting without any justification or in any arbitrary manner inasmuch as it was acting pursuant to the judicial orders/decisions by the Courts‑‑‑Alterations made by the Authority to calve out plots where the rightful owners of the land were to be adjusted in a sanctioned Scheme pursuant to the judicial decision/order, could not be said to be without lawful authority‑‑‑High Court observed that in the modern city planning trends, sites for the use of public i.e. Parks and Community Centres etc. were considered a necessity‑‑‑Earmarking/reservation and development of such sites serve the larger interest of the public at large and the residents of the locality, in particular‑‑‑Present case having a peculiar background, action of the Authority was upheld due to the special circumstances in the same.

Ch. Mehraj Din and others v. Lahore Improvement Trust, Lahore through the Chairman PLD 1986 SC 673 Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 ref.

Ch. Shaukat Ali Saqib for Petitioner.

Mian Muzaffar Hussain for Respondent No. 1.

Ch. Khurshid Ahmad for Respondents Nos. 2 to 11.

Date of hearing; 16th December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 419 #

2005 C L C 419

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. JAMILA and another‑‑‑Petitioners

Versus

BASHIR AHMED and 6 others‑‑‑Respondents

C.R. No.2428 of 1996, heard on 19th November, 2004.

Islamic law‑‑‑

‑‑‑‑Inheritance‑‑‑Plaintiff claimed that his father was son of real brother of female who was widow of person who died issueless in India; that said female was limited owner of property in question and that after her death property in‑question had to be reverted to him and not to female who was sister of his grandfather, who died issueless ‑‑‑Suit was dismissed by Trial Court, but decreed in appeal‑‑‑Validity‑‑‑No evidence was available on record to prove that said female died issueless as limited owner‑‑‑Mutation of her inheritance of property devolving upon her from her husband, had not been produced on record‑‑‑Whether she received disputed property as full owner or limited owner, had not been proved‑‑‑Plaintiff, in circumstances had failed to prove that said female was limited owner and that father of plaintiff was her real brother‑‑‑Suit filed by plaintiff otherwise was hopelessly barred by time‑‑‑Revision filed by defendants was allowed and judgment of Appellate Court was set aside and that of Trial Court was restored.

Dr. M. Mohy‑ud‑Din Qazi for Petitioners.

Mushtaq Ahmad Qureshi for Respondents.

Date of hearing: 18th November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 446 #

2005 C L C 446

[Lahore]

Before Mian Saqib Nisar, J

HAMAYUN through L.Rs. and another‑‑‑Appellants

Versus

Mst. NAMWAR KHATOON through L.Rs.‑‑‑Respondents

S.A.O. No.95 and W.P. No.8301 of 2000, heard on 3rd December, 2004.

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

‑‑‑‑Ss. 13(6)‑‑‑Ejectment of tenants was sought on the ground of reconstruction of the premises by landlady‑‑‑Contentions of the tenants were that the property in dispute did not correspond to the one, for which the landlady had obtained the plan and in this regard, an application for adducing the additional evidence was moved with the Court of appeal, but the same was ignored and not decided; that the landlady had failed to make out a case for re‑construction of the property and that the demand for eviction was tainted with mala fide intentions, to seek the ejectment of the tenants and to rent out the same at enhanced rent or to dispose it of‑‑‑Validity‑‑‑Plea of tenants that the property in question was different from the one for which, the site plan was got sanctioned by the landlady, was not at all available to them; even if any such application raising the said plea was filed by them, which according to the tenants had not been considered by the Court, while passing the impugned order, the application was liable to be rejected simply for the reason that the Court below could not decide the plea by violating the order of the High Court passed while remanding the case to the said Court‑‑‑Tenants had conceded, that no application for the additional evidence had been moved in the present appeal before the High Court, obviously the object behind the application was to further prolong the matter‑‑‑Landlady admittedly was the owner of the suit property; she wanted to improve the property by spending money, for which site plan had been got approved; it was only for and on account of the delaying tactics used by the tenants, that since 1973 till this date, the possession could not be obtained by the landlady for the re‑erection of her building; which if was not reconstructed by her, after getting the eviction of the tenants sufficient safeguards were provided by the law‑‑‑High Court felt sorry for the landlady who kept waiting for the adjudication of her ejectment application by an administrative Tribunal, where simple and summary procedure was supposed to be applicable and then lost .her breath, yet the matter was lingering for the last 31 years and observed that present case was one of the most deplorable and sad nature of cases coming for adjudication, where the owner of the property had been yearning for such a long period, to seek the eviction of her tenant on the ground of re‑construction, to have full benefits and yield, of her improved property‑‑‑Record showed that the tenants used all the delaying tactics and were successful in making the mockery of law and now again the plea, that the sanction plan did not correspond to the property in question had been raised, which was the continuity of the frivolous stance of the tenants and the obvious object was to further drag the matter on the score of additional evidence‑‑‑Tenants were mainly responsible for delaying the matter; they were and are instrumental and were a hurdle in the way of the process of dispensation of justice, which when delayed was deemed to have been denied‑‑‑High Court dismissed the appeal and Constitutional petition of the tenants as being without merits and imposed a special cost of Rs.25000 each which was hardly any compensation to the landlady side, who had suffered for such a long period of time.

Nauman Qureshi for Appellants.

Muhammad Ghani for Respondents.

Date of hearing: 3rd December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 467 #

2005 C L C 467

[Lahore]

Before Syed Jamshed Ali and Umar Ata Bandial, JJ

ABDUL WADOOD and 18 others‑‑‑Petitioners

Versus

UNIVERSITY OF HEALTH SCIENCES, SHEIKH ZAYED HOSPITAL, LAHORE through Vice‑Chancellor and 3 others‑‑‑Respondents

Writ Petitions Nos. 18509 14760 and 2685 of 2004, heard on 9th December, 2004.

(a) University of Health Sciences Lahore Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S. 37‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Grant of affiliation to Medical College by the University of Health Sciences subject to the condition that the affiliated college shall follow the admission policy approved by the University of Health Sciences‑‑‑Petitioners, the students of the affiliated Medical College who had failed at three stages of examination sought relief that they be granted the benefit of internal assessment to the extent of 30% of their aggregate results for their respective examination as was being granted by the University with which the College was originally affiliated before the affiliation with the Punjab University and finally with University of Health Sciences‑‑‑Validity‑‑‑Held, at the three stages of examinations that the petitioners had taken and failed, they did not raise any objection about the lack of internal evaluation system as basis of their overall performance, by their conduct the petitioners' demonstrated that their assertion for such benefit was a belated initiative to get pass marks in their final examinations‑‑‑Record showed that the right of affiliating colleges that was recognized by the representation of University of Health Sciences, was to confer the same benefits on students of such College as were' enjoyed by them under the policies of the University with which they were previously affiliated (Punjab University in the present case) and was in vogue for these colleges‑‑‑Petitioners had admitted that Punjab University with which their college had been affiliated before the affiliation with University of Health Sciences did not have a System for internal assessment as a criteria for evaluation of performance of its students‑‑‑No vested right in circumstances, had accrued to the petitioners for claiming the benefit of internal assessment as a means of evaluation of their performance as the policy in the matter of examination results was known at the time of the affiliation of their College with University of Health. Sciences‑‑‑System of internal assessment could be implemented only under specified safeguards; one of the safeguards, was to have the result of the internal assessment conveyed to the examining auth6rity of the administering University prior to the conduct of the examination itself; in such way assessment could not be changed in order to avoid the consequences of a poor or, fail performance in the examination‑‑‑No such assessment, .in the present case had been forwarded by the College to the University‑‑‑Allowing of incorporation of such assessment in the aggregate results of the, petitioners at the present stage, there was a serious possibility that these assessments may be exaggerated to undo the fail results that the petitioners had obtained in their examination attempts‑‑‑University of Health Sciences, therefore was justified in omitting such a system of evaluation from the examination criteria for the students of the petitioner's College.

Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752 and Miss Sultana Khokhar and 2 others v. The University of the Punjab through its Registrar PLD 1962 SC 35 ref.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑‑

‑‑‑‑S. 33‑‑‑Pakistan Medical and Dental Council Regulations having not received the approval of the Federal Government as envisaged by S.33 of the Ordinance, did not have the binding effect.

M. Umar Farooq v. P.M.D.C. and others 1997 CLC 534 ref.

Iqbal Mahmood Awan for Petitioners (in Writ Petition No. 18509 of 2004).

M. Aftab Iqbal Chaudhry for Petitioners (in Writ Petition No. 14760 of 2004).

Masood Mirza for Petitioners (in Writ Petition No. 12685 of 2004).

Syed Najam‑ul‑Hassan Kazmi for Respondents Nos. 1 and 2.

Pervaiz I. Mir for Respondent No.4.

Date of hearing: 9th December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 481 #

2005 C L C 481

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD TALAT IQBAL KHAN through General Attorney‑‑‑Petitioner

Versus

TANVIR BATOOL through Wasim Iqbal, and 2 others‑‑‑Respondents

Writ Petition No. 10294 of 2004, heard on 21st December, 2004.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 1(2) & 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Dissolution of marriage, notice of‑‑‑Nationality of parties‑‑‑Authorities received notice of divorce from husband but having come to know that the wife was British national and the husband had acquired nationality of Zimbabwe, declined to proceed any, further under the provisions of Muslim Family Laws Ordinance, 1961‑‑Validity‑‑‑Nothing to such effect was on record nor it had been urged by the parties that they had ceased to be citizens of Pakistan or if so in what circumstances and through what process‑‑‑In absence of such express relinquishment of Pakistani citizenship, both the parties would continue to fall within the ambit of S.1(2) of Muslim Family Laws Ordinance, 1961‑‑‑All the provisions of Muslim Family Laws Ordinance, 1961, were applicable to the parties‑‑‑Order passed by the authorities was set aside and the case was remanded to them for proceeding on the notice of divorce‑‑‑Petition was allowed accordingly.

Muhammad Salah‑ud‑Din Khan v. Muhammad Nazeer Siddiqi 1984 SCMR 583; Muhammad Asad v. Mst. Hamira Naz 2000 CLC 1725; Ahmed Nadeem v. Chairman, Arbitration Council 1991 MLD 1187; Mst. Saboohi Sarfraz v. Chairman; Arbitration Council 1999 MLD 1115; Saima Rasheed v. Imran Riaz 1993 CLC 1331; Amira Bokhari v. Jamil‑ud‑Din PLD 1994 Lah. 236 and Attorney‑General v. C. H. Cooti (1817) 4 price 183 ref.

(b) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961‑‑‑

‑‑‑‑‑R. 3(b)‑‑‑Notice of divorce‑‑‑Scope‑‑‑Where wife to whom divorce had been pronounced was actually residing within the territorial jurisdiction of one or the other union council, the provisions of R.3(b) of West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, were applicable.

‑‑‑‑‑R. 3‑A‑‑‑Notice of divorce‑‑‑Service through press proclamation‑‑Pre‑requisites‑‑‑Where the whereabouts of wife or her relatives are not known at all; in such situation the provisions of R.3‑A of West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, are applicable and the notice of divorce can be effected through proclamation in press.

Muhammad Ahmed Hassan for Petitioner.

Ijaz Feroz for Respondent No. 1 and Muhammad Ilyas Malik for Respondent No.2.

Date of hearing: 21st December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 506 #

2005 C L C 506

[Lahore]

Before Muhammad Akhtar Shabbir, J

RAFAQAT ALI ‑‑‑Appellant

Versus

MUHAMMAD BASHIR KHAN and another‑‑‑Respondents

F. A. O. No. 159 of 2004, decided on 25th November, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 104, O. VIII, R.1 & O.XLII, R.1 (b)‑‑‑Written statement, non‑filing of‑‑‑Striking off defence‑‑‑Defendant being defaulter in filing the written statement despite two opportunities given by Trial Court his defence was struck off under O.VIII, R.1, C.P.C.‑‑‑Validity‑‑‑Two adjournments had been granted by Trial Court for filing of written statement but the defendant did not file the same‑‑‑Trial Court had only struck off the defence and not pronounced the judgment, therefore, appeal under O.XLIII, R. 1(b), C.P.C. was not competent‑‑‑Defendant failed to point out any illegality in the order passed by Trial Court‑‑‑Order passed by Trial Court was neither without lawful authority nor without jurisdiction and the same was rightly passed by Trial Court‑‑‑Appeal was dismissed in limine.

Raja Ikram Amin Minhas for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 510 #

2005 C L C 510

[Lahore]

Before Muhammad Muzammal Khan, J

Sh. MUHAMMAD SHAFI and 2 others‑‑‑Petitioners

Versus

Sh. ALA‑UD‑DIN and 10 others ‑Respondents

Civil Revisions Nos.841 and 905 of 2000, heard on 19th November 2004.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.117 & 120‑‑‑Title Onus to prove‑‑‑Defendants in their written statement denied transfer of title in favour of plaintiffs‑‑‑Effect‑‑‑After such denial, onus to prove transfer of title shifted to plaintiffs who were beneficiaries of the transaction.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.76 & 100‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Declaration of title‑‑‑Thirty years old document‑‑‑Proof‑‑‑Non‑production of thirty years old document in original‑‑‑Execution of document denied‑‑‑Concurrent findings of fact by the Courts below‑‑‑Plaintiffs claimed ownership of the suit property on the basis of registered sale‑deed executed in favour of their predecessor-in‑interest by the owner‑‑‑Defendants resisted the suit on the ground that the suit property was transferred by the owner to his wife in lieu of her deferred dower amount and the wife had transferred the property in their favour‑‑‑Defendants in support of their claim relied upon a copy of agreement allegedly executed on 30‑6‑1960‑‑‑Trial Court decreed the suit in favour of plaintiffs as the defendants failed to prove the execution of agreement in favour of the wife by the owner‑‑‑Judgment and decree passed by the Trial Court was maintained by Appellate Court‑‑‑Plea raised by the defendants was that the agreement was an admitted document being thirty years old‑‑‑Validity‑‑‑Execution of the agreement by simply relying on Art.100 of Qanun‑e‑Shahadat; 1984, could not be said to have been proved especially when it was denied by the executant‑‑‑Documents could be proved under Art.76 of Qanun‑e-Shahadat, 1984, through secondary evidence regarding its existence‑‑Conditions and contents of original document were not proved by the defendants by producing its scribe, marginal witnesses or the persons acquainted with handwriting/signatures of the executant‑‑‑In absence of any proof even by way of secondary evidence, it could not be held that the wife of the owner became owner on the basis of unproved agreement and the defendants were transferred the suit property with lawful title‑‑Defendants also failed to prove that marriage between the spouses was solemnized for a deferred dower amounting to Rs.32,000‑‑‑Was not proved on record that the deferred dower was claimed by the wife‑‑‑Transfer of urban property within municipal limits could not be effected through a simple agreement‑‑‑Transfer of such property could only be made through registered document and not otherwise in terms of Registration Act, 1908‑‑‑Courts below properly appraised the evidence on the file and their judgments were not tainted with any illegality/irregularity thus those were not open to any interference in revisional jurisdiction‑‑‑Revision was dismissed is circumstances.

M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 Lah. 953; Sh. Nazir Ahmad v. Haji Ghulam Hussain and others 1985 CLC 7; Capt. Dr. Abdul Wahab v. Province of Punjab and another 1986 MLD 2049; Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others 1989 SCMR 949; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Sirbaland v. Allah Loke and others 1996 SCMR 575; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and Mst. Ameer Begum v. Muhammad Naeem Khan and another PLD 2000 SC 839 rel.

‑‑‑‑O. XLI, R. 27‑‑‑Additional evidence, production of ‑‑‑Principles‑‑Defendants sought to produce certain documents as additional evidence but Appellate Court did not allow the same‑‑‑Validity‑‑‑Defendants failed to demonstrate as to why the documents sought to be produced by way of additional evidence were not produced at the time of trial of the suit, where they consumed considerable time for conclusion of their evidence during which the record to be produced as additional evidence was available with them for production‑‑‑Defendants had also failed to explain any reason as to how the record sought to be produced was necessary for just and fair decision of the case‑‑‑Additional evidence was rightly refused by Appellate Court in circumstances.

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

‑‑‑‑O. XLI, Rr.1, 23 & 33‑‑‑Powers of Appellate Court‑‑‑Non-mentioning of prayer for remand of case in memo of appeal‑‑‑Effect‑‑Appellate Court was otherwise equipped with power to remand the case even in absence of any specific prayer in memo. of appeal.

S.M. Masud for Petitioners.

Ahmed Waheed Khan for Respondents.

Date of hearing: 19th November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 525 #

2005 C L C 525

[Lahore]

Before Muhammad Khalid Alvi, J

ZAFAR and 2 others‑‑‑Petitioners

Versus

GHULAM MUHAMMAD and 9 others‑‑‑Respondents

C.R. No.627 of 2004, decided on 8th July, 2004.

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

‑‑‑‑O.IX, Rr.6, 7 & 13‑‑‑Words at or before such hearing'‑‑‑Meaning‑‑Ex parte proceedings, setting aside of‑‑‑Limitation‑‑‑Principles‑‑‑Ex parte proceedings against defendant are taken under O.IX, R. 6 C.P.C. and a remedy against such order is provided under O.IX, R.7 C.P.C.‑‑No limitation for filing application under O.IX, R.7 C.P.C. has been provided in Limitation Act, 1908‑‑‑Application for setting aside ex parte proceedings can only be filed by a defendant when the case was adjourned ex parte and he can file applicationat or before such hearing'‑‑‑If such stage is crossed, the defendant is precluded from challenging order passed under O.IX, R.7 C.P.C. before the same Court‑‑‑Ex parte proceedings' cannot be set aside on application under O.IX, R.13 C.P.C.

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

‑‑‑‑Ss. 96, 105 & O.IX, R.13‑‑Ex parte decree, setting aside of‑‑Remedies‑‑‑Scope‑‑‑To get an ex parte decree set aside, defendant has two remedies; either by way of filing application under O.IX, R.13 C.P.C. or by filing appeal under S.96 C.P.C.‑‑‑Limitation of the Court attending application under O. IX, R. 13 C.P.C. is that such ex parte decree can only be set aside on showing sufficient cause for non‑appearance or on account of non‑service of summons and no further material is to be looked into for setting aside such a decree‑‑‑If a defendant chooses to file an appeal under S.96, C.P.C. against .such decree, then the entire case re‑opens in appeal, even all the interim orders including the one passed under O.IX, R.6, C.P.C. can also be challenged and examined under S.105, C.P.C. and merits of ex parte judgment can also be examined by the Appellate Court.

‑‑‑‑O. IX, R.13‑‑‑Limitation Act (IX of 1908), Art. 164‑‑‑Ex parte decree, setting aside of ‑‑‑Limitation‑‑‑Computation‑‑‑Principles‑‑‑For filing application under O.IX, R.13; C.P.C., period of limitation is governed by Art. 164 of Limitation Act, 1908‑‑‑Period of thirty days has been provided by Art. 164 of Limitation Act, 1908, for filing of application for setting aside ex parte decree‑‑‑First part of Art. 164 of Limitation Act, 1908, postulates that the period of limitation is thirty days from the date of decree and the second part provides that if summons are not duly served then the period of thirty days is computed from the date of knowledge.

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

‑‑‑‑S. 115 & O.IX, R.13‑‑‑Limitation Act (IX of 1908), Art.164‑‑‑Ex parte decree, setting aside of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Defendants were duly represented by their counsel and on the date fixed 'for evidence of plaintiffs, the defendants or their counsel did not appear and the suit was decreed ex parte on 23‑1‑2002‑‑‑Application under O. IX, R.13, C. P. C. for setting aside the ex parte decree filed by defendants on 26.4.2002 was dismissed by Trial Court and appeal too was dismissed by Appellate Court‑‑‑Validity‑‑‑Defendants were duly represented by their counsel, therefore, their case would fall under first part of Art. 164 of Limitation Act, 1908‑‑‑Lapse if any was attributed to the counsel for defendants and not to the Court or the plaintiffs‑‑‑No sufficient cause existed for setting aside the ex parte decree against the defendants in circumstances.

PLD 1981 SC 21 distinguished.

Tariq Zulfiqar Ahmad Choudhary for Petitioners.

CLC 2005 LAHORE HIGH COURT LAHORE 529 #

2005 C L C 529

[Lahore]

Before Muhammad Muzammal Khan, J

SHARIFAN BIBI‑‑‑Petitioner

Versus

JUDGE, GUARDIAN COURT, DASKA and 3 others‑‑‑Respondents

W.P. No.5303 of 2003, decided on 3rd December, 2004.

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

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Right of maternal grandmother‑‑‑Father of minor was working abroad and had re‑married‑‑‑Minor was living with maternal grandmother since death of his mother‑‑‑Father applied for custody of minor, which was handed over to him by Guardian Judge‑‑Order passed by Guardian Judge was maintained by Appellate Court‑‑Plea raised by grandmother was that in absence of father, paternal uncle was looking after the minor, therefore, welfare of minor was with maternal grandmother‑‑‑Contention of father was that concurrent findings of fact by the Courts below could not be replaced by High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑Maternal grandmother had been looking after the minor for a period of seven years and brought him up without intervention of any other relative‑‑‑In preference to maternal grandmother, the paternal uncle was alien to the child‑‑‑Before handing over the custody of minor to father, the Guardian Judge did not decide as to who would look after the minor in absence of father‑‑‑In absence of any such arrangement/decision by Guardian Judge, the order of custody would negatively work for the minor and was not in his welfare‑‑‑High Court in exercise of Constitutional jurisdiction declined to substitute the decision of lawful forums within their compass of jurisdiction‑‑‑Orders passed by both the Courts below were set aside and High Court remanded the case to Guardian Judge for decision afresh keeping in view the absence of father from country and to provide shelter to the child in his absence‑‑‑Petition was allowed accordingly.

Sultan Mahmood Khan for Petitioner.

Muhammad Ashraf Mughal for Respondents Nos.2 and 3.

Respondent No.4 in person.

CLC 2005 LAHORE HIGH COURT LAHORE 556 #

2005 C L C 556

[Lahore]

Before Syed Hamid Ali Shah, J

ABDUR RAZZAQ and others‑‑‑Petitioners

Versus

ZAHOOR AHMAD and others‑‑‑Respondents

C. R. No.2851 of 2004, decided on 6th. December, 2004.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42‑‑‑Suit for declaration to the effect that the plaintiff was owner of the property‑‑‑Trial Court dismissed the suit in the first round of litigation while the Appellate Court accepting the appeal set aside the judgment and decree of the Trial Court and remanded the case with direction to decide the case afresh allowing the parties to seek amendment and adduce additional evidence‑‑‑Both the parties did not produce any additional evidence (oral or documentary)‑‑‑Trial Court dismissed the suit after remand mainly, on the ground that suit for declaration without seeking relief of possession was not maintainable‑‑Judgment and decree of the Trial Court was upheld by the Appellate Court‑‑‑Contention of the plaintiffs was that valuable rights of the plaintiffs, could not be knocked out; on technical grounds and if the plaintiffs had not claimed the relief of possession, it was open to the Court to allow the plaintiffs to amend the plaint by adding prayer of possession‑‑‑Validity‑‑‑Held, plaintiffs were provided ample opportunity to amend the plaint but the same was not availed‑‑Plaintiffs, even after the remand failed to avail the opportunity to amend the suit despite clear direction of the Appellate Court‑‑Plaintiffs having not sought amendment in the pleadings even at subsequent stage, had thus abandoned the right of possession‑‑‑Suit for declaration without consequential relief of possession was not maintainable‑‑‑Plaintiff was certainly out of possession of the suit property and mere declaration without seeking the possession was not competent.

Mst. Arshan Bibi v. Maula Bakhsh 2003 SCMR 318; Inayat Ali alias Inayat Hussain and others v. Muhammad alias Tota and others 1993 MLD 2367; Muhammad Yar v. Mst. Iffat Sultana 2000 MLD 531 and Farmanullah and others v. Qalandar and others 1999 YLR 1610 ref.

Ch. Zafarullah for Petitioners.

CLC 2005 LAHORE HIGH COURT LAHORE 589 #

2005 C L C 589

[Lahore]

Before Muhammad Sair Ali, J

Maj. (R.) Khawaja MUHAMMAD YOUSAF---Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary Law and Justice Division Islamabad and others---Respondents

Writ Petition No.20393 of 2002, decided on 23rd November, 2004.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Principle of natural justice, violation of---Petitioners complaint having been decided by Acting Ombudsman in his favour Director Legal Affairs filed representation before President of Pakistan under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Section Officer, Government of Pakistan by an office order informed petitioner that upon acceptance of representation, decision of Acting Ombudsman had been set aside by President of Pakistan---Petitioner had been denied notice and right of hearing on representation against petitioner and representation had been decided by the President of Pakistan in absence of the petitioner---Impugned order had adversely affected petitioner as the same had set aside an order in his favour without giving an opportunity of defence to him---Allowing the right of participation to the affected party was fundamental to rules of natural justice as well as administration of legal system of justice---President of Pakistan had to meet the minimum standards of natural justice by giving opportunity of hearing to affected person and to pass a well-reasoned judgment on due consideration of facts of the case and application of law---Such statutory obligation could neither be abridged nor departed from by President under any circumstances or in any eventuality whatsoever---Such having not been done in the present case, impugned orders of President of Pakistan conveyed to petitioner through Memos were declared by High Court to be without lawful authority and of no legal effect---Representation in question would be deemed to be pending and would be re-decided in accordance with law after giving due notice and opportunity of hearing to parties.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744; Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2189 and Messrs Eastern Leather Company (Pvt.) Limited v. Federation of Pakistan and others PLD 2004 Lah. 83 ref.

Syed Mohsin Abbas for Petitioner.

Waqar Saleem, D.A.-G. for Respondents.

Date of hearing: 23rd November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 594 #

2005 C L C 594

[Lahore]

Before Muhammad Sayeed Akhtar, J

PERVAIZ---Appellant

versus

AMIR AZIZ---Respondent

S.A.O. No.94 of 2003, heard on 3rd February, 2005.

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

----Ss. 13 & 13-A---Bona fide personal need of landlord---Change of ownership of property---Relationship of landlord and tenant---Contentions of the tenant were that no property number was given in the eviction application nor in the sale-deed (through which the ownership was changed), as such the property was not identifiable; that boundaries of the shop given in the ejectment petition did not coincide with the boundaries given in the sale-deed; that there was no relationship of landlord and tenant between the parties; that neither the vendors nor the original sale-deed were produced in the evidence; that when the identity of property was not clear the ejectment could not be ordered and that after the close of the evidence of the tenant, landlord was allowed to produce documentary evidence, but no opportunity was granted to tenant to rebut the same---Validity---Held, record showed that description of the property given in the eviction application and the site-plan appended with the same did tally with the description of the shop given in the sale-deed---Sale-deed showed that the shop in question was situated in front of a specified shop and site-plan confirmed the same---Sale-deed also revealed that behind the shop in dispute there was a specified shop which was found to be correct according to the site-plan---Site-plan and the boundaries given in the eviction application also coincided; on one side of the shop in question was shown a particular shop and main Bazar was also shown and on fourth side the lane was also present---No discrepancy in the description of shop in the sale-deed and the eviction application/site-plan having been found by the High Court, contentions of the tenant were repelled---Tenant, in circumstances, was directed to handover the possession of the shop to landlord accordingly.

Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCMR 1173; Alamdar Hussain and others v. Nazir Hussain 2004 SCMR 595 and Ram Rattan (dead) by legal representatives v. Bajrang Lal and others AIR 1978 SC 1393 ref.

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

----Ss. 13-A & 13---Change of ownership of property---Notice to the tenant---Proof---Relationship of landlord and tenant---Ejectment application on ground of bona fide personal need of landlord---Notice under S.13-A, West Pakistan Urban Rent Restriction Ordinance, 1959 was stated to have been sent by registered post to the tenant---No evidence had been produced by the tenant to rebut the receipt of notice through registered post---Held, notice sent through registered post would be presumed to have reached the addressee---New owner, in circumstances, having become landlord, tenant was bound to tender rent to him---Issue of landlord and tenant having been rightly decided concurrently by the two Courts below, High Court declined interference in second appeal---Tenant was directed to handover vacant possession of the shop to the landlord accordingly.

Abdul Majid represented by Legal Heirs v. Dr. Din Muhammad represented by Legal Heirs 1980 CLC 513 and Masood Sadiq v. Haji Muhammad Ali PLD 1968 Lah. 1201 ref.

Mian Nisar Ahmad for Appellant.

Ch. Fawad Ahmad and Hamid Ali Mirza for Respondent.

Date of hearing; 3rd February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 599 #

2005 C L C 599

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

MASOOD AHMAD---Appellant

versus

SECRETARY, LOCAL GOVERNMENT and others--Respondents

Intra-Court Appeal No.198 of 2004, decided on 23rd November, 2004.

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

----S. 162---Law Reforms Ordinance (XII of 1972), S.3---Resignation from seat of Nazim---Resignation once submitted deemed to be accepted---Respondent, who was elected as Nazim of Union Council, submitted his nomination papers to contest general elections for seat of Provincial Assembly and he submitted his resignation from seat of Nazim of Union Council to meet the requirements of S.162 of Punjab Local Government Ordinance, 2001 which had placed an embargo on dual membership---Nomination papers of respondent after scrutiny were accepted and his name was entered in the list of contesting candidates and he legally continued to remain a contesting candidate, but meanwhile he continued to hold his office as Nazim of Union Council---Respondent had claimed that he had not submitted his resignation and provisions of S. 162 of Punjab Local Government Ordinance, 2001 were not applicable to his case and that his retention of office of Nazim of Union Council was lawful---Validity---Affidavit submitted by respondent before Returning Officer was indicative of the fact that he had submitted his resignation from the office of Nazim of Union Council and under S. 162 of Punjab Local Government Ordinance, 2001, a resignation once submitted would be deemed to be accepted and effective forthwith and could not be retrieved subsequently under any law or circumstances---Respondent having submitted his resignation from office of Nazim and his name having been brought on the list of eligible candidates to contest election for general election, he had ceased to hold the office of Nazim of Union Council---Order of High Court whereby appellant was directed to move a fresh application before Secretary Local Government who being competent Authority, would take remedial steps and decide same, was set aside in Intra-Court appeal and writ was issued in the nature of quo warranto declaring that respondent had ceased to hold office of Nazim of Union Council---Respondent stood denotified from the seat of office of Nazim.

Muhammad Ahsan Bhoon for Appellant.

Jari Ullah Khan for Respondent No.5.

Abdul Shakoor Section Officer on Behalf of Secretary Local Government, for Respondent No.6.

Date of hearing; 23rd November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 603 #

2005 C L C 603

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD ALI---Petitioner

versus

MUHAMMAD ANWAR---Respondent

F.A.O. No.291 of 2004, heard on 9th February, 2005.

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

----Ss. 19 & 20---Civil Procedure Code (V of 1908), O.VII, R. 11---Pre-emption suit---Principle of partial pre-emption---Applicability--Scope---Rejection of plaint on the ground that suit was hit by the principle of partial pre-emption---Validity---Plaintiff, in a pre-emption suit was bound to sue for the whole of the property to which his right of pre-emption extended---Plaintiff cannot be choosy and cannot break nor he can make the property divisible when his right of pre-emption extends to whole of it---Principle of partial pre-emption can only be invoked if plaintiff does not sue for whole of the property to which his right of pre-emption extends---Since pre-emptor, in the present case, had sued for the whole of the property pre-emptible as envisaged by S.19(2) of the Punjab Pre-emption Act, 1991, his suit was not hit by the principle of partial pre-emption---Trial Court had thus erred in non-suiting the plaintiff by rejecting his plaint which order was rightly reversed by the Appellate Court---Principles.

In the present case the suit instituted was for half of the land as the plaintiff had claimed his equal right of pre-emption, i.e. equally entitled with the vendee. Such a suit was treated as for partial pre-emption by the Trial Court who ordered the rejection of plaint whereas the Appellate Court had taken the view that the suit was not hit by the principle of partial pre-emption as the plaintiff had sued for the whole of the property pre-emptible. Such a view had been taken by him in view of the provisions of section 19(2) read with section 20 of the Punjab Pre-emption Act, 1991. Thus the controversy that had cropped up in the case was whether the suit instituted by the plaintiff was hit by the principle of partial pre-emption and which of the approaches adopted by the two Courts was correct and consistent with the law.

The import of the provisions of section 20 Punjab Pre-emption Act, 1991 was that where the pre-emptor and the vendee fall within the same class and had equal right of pre-emption, the property had to be shared by them equally. Though subsection (1) of section 19 of Punjab Pre-emption Act, 1991, prohibited (subject to provisions of section 16 of the Act), the divisibility of right of pre-emption, subsection (2) laid down that the claim for pre-emption shall be made on the whole property pre-emptible. The key phrase in the context was the whole property pre-emptible. The question, therefore, was when the right of the plaintiff extended to half of the property pre-emptible could he be non suited by applying the principle of partial pre-emption.

While construing a statutory provision each word is to be given meaning and is not to be rendered as redundant. While doing so, however, the language is not to be twisted into a meaning which it cannot bear or results in irrationality or absurdity. Thus the only inescapable and reasonable and fair meaning of the phrase is that the claim for pre-emption shall be made on the whole property pre-emptible. It does not admit of any other meaning except that the pre-emptor is required to sue for the whole property to which his right of pre-emption extends. Any other meaning to this clause would give rise to anomalies as for instance that though the right of pre-emption of a plaintiff may extend to a part of the property, yet he may be compelled to sue for the whole of the property and pay court-fee and make deposit of price qua the whole of it. Such a construction will produce absurd and unjust consequences. Irrationality and absurdity cannot be attributed to the legislature.

The provisions of sections 19 and 20 of the Punjab Pre-emption Act, 1991 have been enacted to bring the law on the subject in conformity with the Injunctions of Quran and Sunnah.

A plaintiff in a pre-emption suit is bound to sue for the whole of the property to which his right of pre-emption extends. He cannot be choosy and cannot break nor he can make the property divisible in case when his right of pre-emption extends to whole of it. The principle of partial pre-emption can only be invoked if he does not sue for whole of the property to which his right of pre-emption extends. In the present case, the pre-emptor had sued for the whole of the property pre-emptible as envisaged by subsection (2) of section 19 of the Punjab Pre-emption Act, 1991. His suit was not hit by the principle of partial pre-emption. The Trial Court had thus erred in non-suiting the plaintiff by rejecting his plaint which order has rightly been reversed by the Appellate Court.

In the application moved by the defendant, under Order VII, Rule 11, C.P.C., for rejection of the plaint, the question of limitation was also raised that the suit of the plaintiff was barred by limitation. That aspect was not touched by the Trial Court and the rejection of the plaint was ordered by invoking the principle of partial pre-emption. The question of limitation would be open for decision by the Trial Court in the course of the trial of the suit.

Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570; Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123; Abdul Rehman v. Muhammad Khan alias Khan Muhammad 2003 MLD 374; Sarfraz Khan v. Nimatullah Khan 2002 SCMR 751; Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299; Ali Akbar v. Muhammad Anwar 1981 SCMR 775; Allah Din and others v. Jan Muhammad and others PLD 1951 Lah. 163; Dhala v. Khanun and others AIR 1935 Lah. 635; Ali Akbar v. Muhammad Anwar 1981 SCMR 775; Muhammad Yousaf v. Ghulam Muhammad and 5 others 2002 YLR 3764 and Muhammad Hayat v. Faiz Ali and another 2002 MLD 938 ref.

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

----Ss. 19 & 20---Import of S. 20, Punjab Pre-emption Act, 1991---Provisions of Ss. 19 & 20 of the Act have been enacted to bring the law on the subject in conformity with the Injunctions of Islam.

----While construing a statutory provision each word is to be given meaning and is not to be twisted into a meaning which it cannot bear or results in irrationality or absurdity---Irrationality or absurdity cannot be attributed to the legislature.

Ch. Shaukat Ali Saqib for Appellant.

Muhammad Abdul Majid for Respondent.

Date of hearing: 9th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 610 #

2005 C L C 610

[Lahore]

Before Muhammad Sayeed Akhtar, J

NASEEM AHMAD SIDDIQUI---Petitioner

versus

Mst. BUSHRA and another---Respondents

Civil Revision No.2018 of 1997, heard on 1st February, 2005.

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

----Ss. 11 & 115---Res judicata, principle of---Applicability---Scope---Application of principle of res judicata is not limited to the Courts of first instance but applies equally to the procedure of the first and second Appellate Court---Decision once made in a case, by the highest Court empowered to make it, is conclusive upon the parties to the controversies and the privies, who are not allowed afterwards to revive in a new proceeding for the purpose of raising the same or any other question; matter in controversy has become res judicata, a thing definitely settled by judicial decision---Appeal of the petitioner in the present case, against the judgment in favour of the respondent was decided on 29-11-1997 and the appeal filed by the petitioner against the order setting aside the ex parte decree dated 6-1-1992 was decided on 4-2-1999---Appeal earlier decided would operate as res judicata against the petitioner.

Pir Bakhsh represented by his legal heirs and others v. The Chairman Allotment Committee and others PLD 1987 SC 145, Shahul Hamid v. Tahir Ali 1980 SCMR 469; Court of Wards, Hyderabad v. Muhammad Kaim PLD 1965 Kar. 170; Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464; Swami, Turiananda alias Diunesh Chandra Guha Mustafi and another v. Sisir Kumar Sen PLD 1955 Dacca 96; Civil Procedure Code 12th Edition by Mulla and Balkishan and another v. Kishan Lal ILR 11 All. 148 ref.

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

----Ss. 12 & 2(2)---Decree---Petitioner filed suit against the respondent on 2-10-1989 when the suit against him filed by the respondent was already pending on the same subject-matter---Petitioner obtained the decree ex parte which came to the notice of the respondent for the first time on 21-11-1994 when the petitioner appeared as a witness in the suit filed by the respondent---Petitioner concealed the said fact and the decree so obtained by him was void, based upon fraud and misrepresentation.

----Fraud and misrepresentation---Onus to prove---Principles---Sale of property on the basis of power-of-attorney---Report of the Forensic Science Laboratory showed that signatures of alleged executant of General Power-of-attorney on the deed of power-of-attorney were forged and did not bear identical characteristics with her specimen signatures and that the specimen signatures of the alleged executant on general power-of-attorney bore similarities with the specimen signatures obtained from her husband (respondent) who had not appeared and a criminal case had been registered against him under Ss.420/468/471/109, P.P.C.---Lady, the alleged executant had appeared and stated that she never executed any power-of-attorney in favour of the respondent---Onus shifted on the respondents to prove the veracity of power-of-attorney---Witnesses of the power-of-attorney did not appear in the witness-box, similarly only one witness of the sale-deed appeared---Effect---Power-of-attorney being based upon fraud and misrepresentation, respondent had no authority to sell the property in question and both the documents i.e. power-of-attorney and the sale-deed had not been proved on record.

Shehzad Shaukat for Petitioner.

Muhammad Ghani for Respondents.

Date of hearing; 1st February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 620 #

2005 C L C 620

[Lahore]

Before Syed Jamshed Ali, J

HABIB AHMAD and another---Petitioners

versus

MUHAMMAD RIAZ---Respondent

Civil Revision No.259 of 1989, heard on 27th October, 2004.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.9---High Court (Lahore) Rules and Orders, Vol.I, Chap.I-M(i), Rr.1(b) & 3---Hadd Shikni suit---Construction of bath-room by defendant was alleged by plaintiff to have been made on his share in house---Dismissal of plaintiffs suit by two Courts below---Appointment of Local Commissioner by High Court to inspect the site and report as to exact area in possession of each party---Local Commissioner reported that such construction had been made on plaintiffs share and as per such report, plaintiff was in possession of more area than his entitlement in the house, while defendant was in possession of less area than his entitlement---High Court, in circumstances, declined to interfere in concurrent findings of Courts below and dismissed revision.

Ch. Muhammad Sarwar for Petitioners.

Saleem Anwar Khan for Respondent.

Date of hearing; 27th October, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 622 #

2005 C L C 622

[Lahore]

Before Bashir A. Mujahid, J

ABDUL MAJEED---Petitioner

versus

ABDUR REHMAN and others---Respondents

Writ Petition No.4477 of 2002, decided on 10th May, 2004.

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

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Horse Breeding Tenancy Scheme---Allotment of land under Horse Breeding Tenancy Scheme---Determination of eligibility---Original allottee of land having died, District Remount Officer recommended name of eldest son of the deceased, but District Collector did not agree with the said recommendation and selected petitioner, who was also the son of deceased as his successor---Commissioner accepting appeal against order of District Collector, reversed order of District Collector and said order of the Commissioner was upheld in revision by Member Board of Revenue, holding eldest son as eligible for allotment of land as successor of the original allottee---Petitioner had challenged said order in Constitutional petition---Commissioner had passed order after obtaining fresh report---Factual detailed inquiry had revealed that elder son of the deceased allottee had been helping his deceased father---Commissioner as well as Member Board of Revenue had selected the eldest son for allotment of tenancy with cogent reasons by placing reliance on report and recommendations collected from different sources---Eligibility of eldest son was finally determined by Commissioner and Member Board of Revenue, being the final Authority in revenue hierarchy---In absence of any illegality or infirmity of reasons in impugned judgment warranting interference Constitutional petition was dismissed.

Raja Muhammad Aslam v. Raja Muhammad Sarwar and others 2000 SCMR 531; Sher Bahadur and others v. Sher Zaman and others 1988 CLC 2084; Ghulam Hussain Shah v. Member, Colonies Board of Revenue Punjab and others 1989 SCMR 1457; Sub. Muhammad Asghar v. Mst. Safia Begum and others PLD 1976 SC 435 and Khuda Yar v. Member, Board of Revenue and others 2003 MLD 1075 ref.

Ch. Abdul Ghani for Petitioner.

Ch. Muhammad Hussain Taheem for Respondent.

Date of hearing: 18th May, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 625 #

2005 C L C 625

[Lahore]

Before Maulvi Anwarul Haq, J

ASIF AMAN ULLAH KHAN and 6 others---Appellants

versus

MUHAMMAD YOUSAF---Respondent

S.A.Os. Nos.7 to 11 and C.M. No.1/2-C of 2004, decided on 30th November, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(6) & 15---Tentative rent order---Non-compliance of---Rent Controller passed tentative rent order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 directing tenant to deposit future monthly rent till 15th of each month---Rent for the month of April was deposited by tenant on 17th of April---Rent Controller ordered ejectment of tenant holding that tenant had failed to comply with tentative rent order---Validity---Rent for the month of April would become due on 1-5-2004 and it was to be deposited before 15-5-2004 and in fact was deposited on 17-4-2004, i.e. it was deposited even before it became due---By no stretch of imagination it could be said that tenant had committed default in compliance of tentative rent order passed by Rent Controller.

Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580 ref.

Malik Waqar Haider Advocate.

CLC 2005 LAHORE HIGH COURT LAHORE 628 #

2005 C L C 628

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. KHURSHID BEGUM---Petitioner

versus

MUHAMMAD ASHRAF---Respondent

Civil Revision No.1010 of 1998, heard on 30th November, 2004.

(a) Custom (Punjab)---

----Inheritance---Daughter as only heir---Entitlement---Only daughter cannot get any share in property of her deceased father under Custom except as a limited holder, till her marriage or death.

(b) Islamic Law---

----Inheritance---Daughter as only heir---Entitlement---Daughter is entitled to 1/2 share in the property of deceased father.

----S. 42---Declaration of title---Islamic Law---Inheritance---Entitlement of only daughter---Limitation---Deceased owner of suit property was survived by progeny of the only daughter---Father of plaintiffs was the real brother of deceased owner of suit property---Plaintiffs assailed mutation of inheritance attested in favour of defendant/daughter on the ground that she was limited owner and after her marriage the limited estate terminated and the property stood transferred according to Sharai shares in favour of father of plaintiffs and defendant/daughter---Suit was dismissed by Trial Court on the ground that it was barred by limitation---Appellate Court set aside the judgment and decree passed by Trial Court and the suit was decreed in favour of plaintiffs---Plea raised by the defendant was that the suit was barred by limitation and also claimed her right on the basis of adverse possession---Validity---On termination of limited interest of defendant, half of the estate of deceased owner automatically reverted to the collaterals out of whom, the father of plaintiffs was nearest being real brother who was alive at the time of death of the owner---Through such reversion to the father of plaintiffs and on his death transfer through inheritance, plaintiffs had become co-sharers along with the defendant---Suit by co-sharers could not be held to be barred by limitation---Defendant also could not claim adverse possession against plaintiffs, as she was to hold the land on behalf of her other co-sharers---Appellate Court correctly concluded that plaintiffs were entitled to the extent of ½ share out of the estate of the deceased owner---Appellate Court did not commit any illegality/irregularity amenable to revisional jurisdiction of High Court.

Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Waziran v. Ranjha 1993 SCMR 1557 and Abdus Sattar Khan and another v. Rafique Khan and another 2000 SCMR 1570 ref.

(d) Plea---

----Plea not raised in pleadings---Effect---Un-pleaded case deserves no consideration, as the same could not have been proved.

Amir Shah v. Ziarat Gul 1998 SCMR 593; Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs 2004 SCMR 578; Siraj Munir through Legal Heirs and 3 others v. Rai Sarwar Khan and 4 others 2001 CLC 1509; Ghulam Abbas v. Manzoor Ahmed and another PLD 2004 Lah. 125 and Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. and another 2004 MLD 361 rel.

Khan Muhammad Bajwa for Petitioner.

Taki Ahmed Khan for Respondent.

Date of hearing; 30th November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 641 #

2005 C L C 641

[Lahore]

Before Syed Jamshed Ali, J

SHAHAMAD KHAN---Appellant

versus

Sh. MUHAMMAD AKBAR and others---Respondents

E.F.A. No.275 of 2004, decided on 18th November, 2004.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3, O.XXI, Rr.12 & 13---Contract Act (IX of 1872), Ss. 134 & 139---Suit for recovery of amount on basis of Promissory Note---Execution of decree---Attachment of property of surety---Discharge of surety---Plaintiff filed suit for recovery of amount and defendant was allowed to appear and defend suit subject to his furnishing security---A stood surety for the defendant and bound himself, his property and a residential house to satisfy decree if passed against the defendant and bond in that respect was submitted before Trial Court---Plaintiffs compromised the dispute and defendant had stated that he had paid considerable amount to the plaintiff and had no objection if the suit to the extent of remaining amount was decreed---Such having been accepted by plaintiff, suit was decreed accordingly---Decree-holder in execution proceedings moved an application for attachment of property of the surety, who challenged initiation of execution proceedings contending that though he stood surety for the judgment-debtor, but he had never undertaken that even if a consent decree was passed, he would be liable---Validity---Surety, according to the bond had categorically undertaken that in case suit was decreed, he would be liable to pay decretal amount and he also bound his property to satisfy decree passed by Trial Court---No reservation was made in the surety bond that he would be bound only by a decree passed after contest of the suit---No rule existed showing that in case of a consent decree surety was ipso facto discharged.

Seth Pratapsingh Moholalbhai and another v. Keshavlal Harilal Setalwad and another AIR 1935 PC 21; Mahanth Singh v. U. Ba Yi AIR 1939 PC 110; Mian Aftab A. Sheikh and others v. Messrs Trust Leasing Corporation Limited and others 2003 CLD 702; Mohan Lal v. Suraj Mani and another AIR 1973 J&K 92; Kabiruddin v. Debish Singh and others AIR 1935 Nag. 16; Annadana Jadaya Goundar v. Konammal and another AIR 1933 Mad. 309; Dalip Singh v. Kishan Chand and others AIR 1937 Lah. 34 and Messrs Meena Trading Co., Karachi v. Abdul Ghani and another PLD 1972 Kar. 19 ref.

Syed Kaleem Ahmad Khurshid for Appellant.

Mukhtar Hussain for Respondent No.1.

Zafar Iqbal Chohan for Respondent No.2.

Mushtaq Ahmad Khan for Respondent No.3.

Date of hearing: 18th November, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 646 #

2005 C L C 646

[Lahore]

Before Muhammad Akhtar Shabbir, J

FATEH SHER---Petitioner

versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No.1259 of 2003, decided on 13th December, 2003.

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Right of pre-emption, exercise of---Principle of merger and waiver---Applicability---Pre-emptor, a witness to sale-deed of land under pre-emption---Pre-emptor was tenant on the suit-land and filed a suit for pre-emption on the ground of tenancy against the portion of land purchased by vendee---Remaining portion of land under tenancy was purchased by the tenant / pre-emptor on the same day---Suit filed by pre-emptor was dismissed by Trial Court on the principle of waiver as the pre-emptor / tenant was present at the time of execution of sale-deed---Judgment and decree passed by Trial Court was maintained upto Board of Revenue---Validity---As the landlord/vendor executed sale-deed in favour of tenant/pre-emptor, the same had changed the status of tenant and his right as tenant extinguished by merger of such rights into ownership rights---Right of principle of merger was attracted to the present case---Concurrent findings of facts by all the three revenue Courts regarding question of waiver of right were on the record---View taken by the Courts below passed on proper appreciation of evidence was not open to exception through Constitutional jurisdiction---Question of waiver was a question of fact and the evidence arrived at by the lower Courts that pre-emptor had waived his right of pre-emption was not open to interference by High Court---Where a person consented to a sale and had taken active part in its completion, such person was estopped from filing a suit for pre-emption in respect of such sale.

Luqman v. Allah Diwaya and others PLD 1967 Pesh. 166; Banga Chandra Dhu Biswas and another v. Jagat Kishore Acharjya Chowdhuri and others AIR 1916 PC 110 and Muhammad Bashir and 2 others v. Board of Revenue and 5 others 1983 CLC 930 ref.

Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265; Muhammad Yousaf v. Khalil Ahmad NLR 1980 SCJ 358; Ali Haider Khan v. Sher Afzal Khan and others PLD 1983 SC (AJ&K) 5 and Muhammad Irshad v. Muhammad Khan 1981 CLC 203 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 21---Right of pre-emption---Purchase of land by tenant---Effect---After purchase of land, tenant lose his status of being tenant and become owner and cannot claim that at the time of sale, he was tenant.

Sher v. Aulia Khan and others NLR 1981 UC 615 rel.

Sahibzada Ahmed Raza Khan Qasuri for Petitioner.

Haji Muhammad Akram for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 650 #

2005 C L C 650

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD FAYYAZ and others---Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.4743 of 2004, decided on 11th May, 2004.

Punjab Local Government Elections Rules, 2000---

----Rr. 39, 40 & 70---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Preparing fresh consolidated statement excluding earlier statement of count and declaring unsuccessful candidates as returned candidates---Returning Officer on receiving result from all Polling Stations including disputed Polling Station, prepared a consolidated statement in Form No. XV under R. 40 of Punjab Local Government Elections Rules, 2000 wherein petitioners were shown to have secured maximum votes and petitioners were declared returned candidates---Returning Officer had admitted said consolidated statement to have been issued by him and its transmission to District Returning Officer according to rules---Subsequently, on application of respondents/ unsuccessful candidates filed by them alleging that statement of count remitted by Presiding Officer of disputed Polling Station was tampered with, Returning Officer prepared a fresh consolidated statement excluding earlier statement of count of said Polling Station in which votes of petitioners were reversed---Returning Officer declared respondents/unsuccessful candidates as returned candidates instead of petitioners on basis of said revised statement of counts---Validity---No provision was available in Punjab Local Government Elections Rules, 2000 or Punjab Local Government Ordinance, 2001 authorising Returning Officer to change his consolidated statement on whatever ground---Returning Officer or Presiding Officer after publication of result of election in Gazette, would become functus officio and only remedy available was that of filing of Election Petition under R. 70 of Punjab Local Government Election Rules, 2000---Entire exercise of entertaining applications of respondents/unsuccessful candidates and from Presiding Officer with regard to alleged tampering of record and recording of statement without notice to all contesting candidates in terms of R.40(2) of Punjab Local Government Election Rules, 2000, was absolutely unwarranted, illegal, unauthorized and of no legal consequence---High Court accepting Constitutional petition filed by petitioners/Returned candidates, issued writ as prayed for declaring subsequent consolidated statement prepared by Returning Officer, his order and notification of result on basis thereof as void, non-existent and of no legal effect.

Ch. Abdul Hameed v. Deputy Commissioner and others 1985 SCMR 359; Begum Talat Khan and another v. Presiding Officer and others 1988 CLC 819; Ahmad Saeed Kirmani v. Muhammad Nawaz Cheema and another PLD 1966 (W.P.) Lah. 88; Dr. Liaqat Ali Khan and another v. District Returning Officer 2002 SCMR 1632 and Muhammad Afzal v. District Judge/District Returning Officer 2002 CLC 310 ref.

S.M. Masud for Petitioners.

Shahid Naseer, Returning Officer, Respondent No.4 in Person.

Mohy-ud-Din Qazi and Muhammad Kazim Khan for Respondents Nos.5 and 6.

Date of hearing: 22nd April, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 658 #

2005 C L C 658

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. NASEEM AKHTAR and 3 others---Petitioners

versus

NASIR JAVED and 7 others---Respondents

Civil Revision No.291 of 2004, heard on 2nd December, 2004.

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

----O. VIII, R.4---Evasive denial---Effect---Evasive denial of any of the paras. of plaint was not warranted under the law.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 rel.

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

----O.VIII, R.4---Evasive denial---Scope--Allegation of fact in plaint, if not denied specifically or by necessary implication or stated to be not admitted in pleading of defendant, the same is taken to be admitted except as against a person under disability.

The Trustees of the Port of Chittagong and Muhammad Islam v. River Steam Navigation Co. Ltd. Chittagong PLD 1965 SC 352 rel.

----S.42---Evidence Act (I of 1872), Ss.72 & 90---Qanun-e-Shahadat (10 of 1984), Arts.72 & 100---Civil Procedure Code (V of 1908), S.115---Declaration of title---Thirty years old document---Proof---Non-producing of marginal witnesses---Effect---Provisions of Qanun-e-Shahadat, 1984---Applicability---Concurrent findings of fact by the Courts below---Owner of suit property executed disputed Mahr Nama in favour of his daughter-in-law in year 1952, and transferred the property in her favour---Subsequently the owner of the property again transferred the suit property in favour of his daughter on 11-11-1997, through registered gift deed---Plaintiffs claimed ownership on the basis of Mahr Nama executed in favour of their mother and assailed registered gift deed---Scribe of Mahr Nama appeared as witness and stated on oath that he was petition writer at that time and Mahr Nama was reduced into writing by him---Scribe also admitted that the owner of the property signed Mahr Nama in his presence along with marginal witnesses who also put their thumb-impressions---Trial Court decreed the suit in favour of plaintiffs and the judgment and decree was maintained by Appellate Court---Plea raised by defendant was that Mahr Nama was not proved in accordance with the provisions of Qanun-e-Shahadat, 1984---Validity---Provisions of Evidence Act, 1872, were applicable and not that of Qanun-e-Shahadat as the same was promulgated in the year, 1984---Trial Court had rightly concluded that the suit property was transferred in favour of daughter-in-law of the owner in lieu of her dower at the time of her marriage and plaintiffs being legal heirs were owners of the suit property---Trial Court also rightly held that the registered gift deed in favour of defendant was against the law and fact---Both the Courts below had rightly concluded that Mahr Nama was reduced into writing and was proved in accordance with law---Concurrent findings of fact recorded by two Courts below on the basis of evidence could not be interfered with in exercise of revisional jurisdiction of High Court.

Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10; Mst. Mehr Bhari and 6 others v. Mst. Bhag Bhari and 2 others 1991 SCMR 897 and Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 ref.

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

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

----Art. 71---Evidence---Signature or writing, proof of---Modes enumerated.

Following are modes to prove signature or working:--

(i) By calling the person who signed or wrote the document.

(ii) By calling a person in whose presence the document was signed or written.

(iii) By calling a handwriting expert.

(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.

(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.

(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.

(e) Evidence Act (I of 1872)---

----S. 90---Qanun-e-Shahadat (10 of 1984), Arts.100 & 72---Thirty years old document---Presumption---Attesting witness, production of---Requirement---Principles---Presumption of correctness is attached to thirty years old document as per S.90 of Evidence Act, 1872---Disputed document being thirty years old attesting witness was not required to be called.

Rash Behary Karnury v. Corporation of Calcutta AIR 1926 Cal. 102 ref.

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

----Arts. 159 & 160---Document---Document, proof of---Defect in mode of proving---Objection, raising of---Principle---Any defect in method of proving of a document or objection as to formality of proving the same is to be taken at an early stage---When a document is admitted in evidence, objection against mode of proof of document cannot be allowed subsequently.

Malik Din and another v. Muhammad Islam PLD 1969 SC 136 rel.

(g) Islamic Law---

----Gift---Hiba-bil-Iwaz---Transfer of possession---Scope---Possession is not required to complete the transfer, as it is required in case of Hiba. [p. 665] H

Lutufur Rehman and others v. Zahoor and others PLJ 1999 SC 204 rel.

Shakeel Ahmed for Appellant.

Sh. Hameed Anwar for Respondent No.1 to 5.

Tariq Mahmood for Respondent No.7.

Date of hearing: 2nd December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 667 #

2005 C L C 667

[Lahore]

Before Syed Shabbar Raza Rizvi, J

FAISAL ZULFIQAR---Petitioner

versus

JUDGE, FAMILY COURT, RAWALPINDI and another---Respondents

Writ Petition No.3403 of 2004, decided on 1st February, 2005.

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

----S. 7(3)(ii)---Constitution of Pakistan (1973), Art. 199---Suit for dissolution of marriage---Word relies occurring in S. 7(3)(ii), West Pakistan Family Courts Act, 1964---Impact---One could rely on a document, a paper or thing which existed---Document in question certainly did not exist even not conceived at the time of filing of suit for dissolution of marriage by wife---Provision of S.7(3)(ii), West Pakistan Family Courts Act, 1964 was not attracted in circumstances.

Ch. Tajammal Murad for Petitioner.

Tahir Jameel Butt for Respondent No.2.

CLC 2005 LAHORE HIGH COURT LAHORE 669 #

2005 C L C 669

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. FAREEDA NOOR---Petitioner

versus

Mehar MUHAMMAD NAWAZ SIAL and another---Respondents

Writ Petitions Nos.5890 and 5353 of 2004, decided on 2nd December, 2004.

Succession Act (XXXIX of 1925)---

----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---One of the terms of appointment according to terms of advertisement was that ten additional marks were to be given to a candidate if she opted to be employed in a school at the place of her residence---Petitioner opted to be employed in school at place 'C'---Petitioner initially was given ten marks, but later on same were deducted and she was not appointed---Petitioner though initially was resident of place 'S', but after her marriage at place 'C' where her husband was residing, she became resident of place 'C' and her Identity Card also had shown her permanent address at place 'C'---Provisions of S.16 of Succession Act, 1925 had provided in clear terms that wife's domicile during her marriage would follow the domicile of her husband, but Authorities had completely ignored said statutory provisions---Petitioner would automatically be deemed to be domiciled of place "C" where she was married---Petitioner would be considered for appointment on basis that she was entitled to ten additional marks as she had opted to serve in school in place 'C'---High Court setting aside order of Authority directed that petitioner be considered for appointment on basis that she was entitled to ten additional marks within specified period.

Mian Noor Muhammad Vehniwal for Petitioner.

Shahbaz Hussain SST/Law Officer, E.D.O. (Edu.), Sahiwal.

CLC 2005 LAHORE HIGH COURT LAHORE 671 #

2005 C L C 671

[Lahore]

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

MUHAMMAD ELLAHI through Legal Heirs---Appellants

versus

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN, LAHORE through Chairman and 2 others---Respondents

I.C.A. No.163 of 2004 in Writ Petition No.1726 of 2000, heard on 14th December, 2004.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 8---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Declaration of property as evacuee trust property---Jurisdiction of Chairman Evacuee Trust Property Board---Settlement Authorities declared the disputed property as evacuee property and Permanent Transfer Deed was issued in year, 1967, in favour of predecessor-in-interest of appellants---Chairman Evacuee Trust Property Board, cancelled the Permanent Transfer Deed in year, 2000, declaring the property as evacuee trust property---Order passed by the Chairman was maintained by High Court in exercise of Constitutional jurisdiction---Plea raised by the appellants was that two portions of the disputed property allotted to other persons had already been declared as evacuee property by High Court and order of Chairman Evacuee Trust Property Board was set aside---Validity---Order of Settlement authorities having not been challenged in appeal attained finality and the order was, thus, legal, valid and binding on the parties---Chairman had no jurisdiction to pass orders for cancellation of the allotment of land on the ground that the same was evacuee trust property---Two portions of the disputed property had already been declared as evacuee property and the order of Chairman Evacuee Trust Property Board had been set aside by High Court---Remaining third portion of same property belonging to appellants could not be declared as evacuee trust property as it was not a separate property and it included in the whole area---Order passed by High Court in exercise of Constitutional jurisdiction was not sustainable in law---Cancellation of Permanent Transfer Deed by Chairman Evacuee Trust Property Board, issued in favour of appellants was declared to have been passed illegally, without lawful authority and was of no legal effect---Intra-Court Appeal was allowed accordingly.

District Evacuee Trust Committee v. Muhammad Umar 1990 SCMR 25; Mst. Bani v. Government of Pakistan through Secretary, Ministry of Religious and Minority Affairs, Islamabad 1999 SCMR 2927; Haji Muhammad Hayat v. Malik Ghulam Hussain 1997 CLC 271; Nizamuddin v. Chairman E.T.P.B. 1997 SCMR 1152 and Federal Government of Pakistan v. Khurshid Zaman Khan 1999 SCMR 1007 ref.

Hafiz Saeed Ahmad for Appellant.

Ishrat Mahmood Clerk from E.T.P.B.

Date of hearing; 14th December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 678 #

2005 C L C 678

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Haji MUHAMMAD HANIF ABBASI and 2 others---Petitioners

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and 11 others---Respondents

Civil Revision No.7 of 2005, decided on 17th January, 2005.

Constitution of Pakistan (1973)---

----Art. 20---Freedom to profess religion and to manage religious institutions---Provisions of Art. 20, of the Constitution give right to every citizen to profess, practise or propagate his religion and that every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions---Church is a religious institution, construction of which according to Art. 20 of the Constitution is a right of Christian citizens of Pakistan.

Jibendra Kishore Achharyya Chowdhry and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) 9 fol.

Speech of Quaid-i-Azam Muhammad Ali Jinnah dated 11-8-1947 quoted.

Malik Qamar Afzal for Petitioners.

CLC 2005 LAHORE HIGH COURT LAHORE 686 #

2005 C L C 686

[Lahore]

Before Syed Hamid Ali Shah, J

GIYANI KHAN and 7 others---Petitioners

versus

SHER ALI and 3 others---Respondents

Civil Revision No.538 of 1999, decided on 3rd February, 2005.

(a) Islamic law---

----Inheritance---Brother of predeceased husband of a lady could not inherit her property.

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

----O. VII, Rr.7, 8, O.XIV, R.1 & O.XX, R.5---Conclusion drawn by Court without any specific prayer or issue---Validity---Such conclusion could not be set at naught specially when same was drawn on basis of settled law.

----Preamble---Power of Court under provisions of Civil Procedure Code, 1908---Scope---Such provisions are merely rules of procedure and subservient to cause of justice---Such laws do not control the power of Court to pass an order necessary for doing full justice in the circumstances of a case.

AIR 1971 SC 361 ref.

Province of Punjab v. Ch. Abdul Majeed 1997 SCMR 1692 fol.

Muhammad Tufail Janjua for Petitioner.

Ch. Din Muhammad Meo for Respondents.

Date of hearing: 24th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 727 #

2005 C L C 727

[Lahore]

Before Syed Zahid Hussain, J

Messrs STANDARD ENGINEERING WORKS---Petitioner

versus

WAPDA and others---Respondents

Writ Petition No.5540 of 2004, decided on 14th February, 2004.

Electricity Act (IX of 1910)---

----S. 35---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detection bill---Appeal---Chairman Advisory Board---Status---Chairman relinquishing the charge of Chief Engineer (Power) Irrigation and Power Department---Petitioner being aggrieved of detection bill issued by Water And Power Development Authority, assailed the same before Electrical Inspector---Application of petitioner was accepted by Electrical Inspector against which the Authorities filed appeal before Provincial Advisory Board---During the pendency of appeal, the Chairman of Advisory Board was transferred and was no more Chief Engineer (Power) Irrigation and Power Department---After the notification of transfer, the Chairman set aside the order passed by Electrical Inspector---Plea raised by the petitioner was that the Chairman of Advisory Board could not pass any order after his transfer, as he was no more Chief Engineer (Power) Irrigation and Power Department---Validity---Chairman of Advisory Board when ceased to hold the office of Chief Engineer (Power), he became functus officio to act as Chairman of the Board as well; it would have been his successor who should have acted as Chairman of the Board---Though some hearing had taken place before the transfer of the Chairman, yet as the order had not been passed nor any decision announced, any decision taken after his transfer was of no legal effect---Such order passed by the Board was set aside and the appeal was remanded to Advisory Board to be decided in accordance with law---Petition was allowed accordingly.

Mirza Abdul Hameed and others v. Member, Board of Revenue II 1986 SCMR 257 and Muhammad Boota and 4 others v. Feroze Din and 5 others PLD 1981 Lah. 237; Malik Muhammad Samad Ishaq v. Land Acquisition Collector and others PLD 1978 Lah. 1139; Messrs Cristal Cold Storage, Gujranwala through Irshad Ali v. Water and Power Development Authority, Lahore through Chairman and 5 others PLD 1999 Lah. 347 and Barkat Ali v. Additional Commissioner and others 2004 MLD 1633 ref.

Risaal Hassan Syed for Petitioner.

Mian Muhammad Mudassar Bodla for Respondents.

Date of hearing: 14th February, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 738 #

2005 C L C 738

[Lahore]

Before Abdul Shakoor Paracha, J

ALLIED BANK OF PAKISTAN LTD. through Manager---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and 2 others---Respondents

Writ Petition No.1698 of 2004, decided on 3rd December, 2004.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Partnership Act (IX of 1932), Ss.15 & 69---Ejectment petition by unregistered firm---Maintainability---Assets of firm are only to be held and used by partners exclusively for business purposes---Ejectment case can be filed against a tenant, who may be a living or juristic person---Registered firm is a juristic firm, which can sue and be sued---Such principle applicable to Civil Courts can be pressed into service in proceedings before Rent Controller---Unregistered firm cannot file ejectment petition against tenant.

Cooperative Development Funds and Projects through its Project Manager, Karachi v. Glimmer Textile Printing Industries, Karachi PLD 1976 Kar. 808; Khadim Hussain Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459 and Messrs Construction Service (Pakistan) v. Ali Hussain 1982 CLC 1241 rel.

M. Aslam Awan v. Ras Tariq Chaudhary 1985 CLC 2514 and Province of Sindh through Secretary, Public Works Department, Government of Sindh, Karachi and 6 others v. Messrs Royal Contractors 1996 CLC 1205 distinguished.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17(4)(b)---Bona fide personal need of landlord---Plea raised in ejectment petition was that one of the landlords (i.e. MA) wanted to establish his office in demised premises---MA while appearing as witness negated his case by deposing that he wanted to establish hotel business in demised premises---Another landlord while appearing as witness admitted that landlords would extend lease agreement on payment of Rs.1 lac as monthly rent---Held: ejectment petition had been filed just to enhance rent at exorbitant and unjustified rate.

----Ss. 10 & 17(2)(i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment petition---Default in payment of statutory enhanced rent---Ejectment order passed by Rent Controller was upheld by Appellate Court---Validity---Landlord had not alleged that tenant despite service of notice on him had failed to pay increased rent---Rent Controller had misinterpreted provisions of S.10 of Islamabad Rent Restriction Ordinance, 2001---High Court accepted Constitutional petition and set aside impugned orders, resultantly ejectment petition was dismissed.

National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others PLD 1997 SC 564 and Javed Iqbal v. S.M. Khurrram Wasti, Advocate 2000 CLC 126 fol.

Tariq Mehmood Jahangiri for Petitioner.

Ch. Ghazanfar Ali for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 749 #

2005 C L C 749

[Lahore]

Before Maulvi Anwarul Haq and Farrukh Lateef, JJ

ATTA MUHAMMAD KHAN---Appellant

versus

ALI GOHAR & COMPANY (PVT.) LTD. through Special Attorney and another---Respondents

I.C.A. No.93 of 2004, decided on 16th December, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 16---Civil Procedure Code (V of 1908), OXVI, R.1---Law Reforms Ordinance (XII of 1972), S.3---Ejectment proceedings---Calling of witnesses---Applicability of Civil Procedure Code, 1908---Scope---Landlord along with ejectment application, filed a list of witnesses---Nine days after framing of preliminary issue, landlord filed application for summoning witnesses mentioned in said application and thereafter landlord filed another application seeking permission to deposit expenses for said witnesses---Rent Controller noted that witnesses were entered in the list of witnesses and they be summoned---Witnesses were produced before Rent Controller and were examined, but were not cross-examined--Later on when said witnesses were produced by landlord for cross-examination, an objection was raised by tenant to the effect that since list of witnesses had not been filed within seven days of settlement of issues mentioning names of said witnesses, their statements could not be recorded as they could not have been called by the Court---Rent Controller accepting objection, proceeded to exclude evidence of said witnesses already recorded by him in the form of examination-in-chief---Rent Controller did not see that a list of witnesses was filed by landlord along with ejectment application itself and that witnesses were allowed to be summoned after observing that names of said witnesses were included in the list so filed---Provisions of S.16 of West Pakistan Urban Rent Restriction Ordinance, 1959 was to be read with reference to provisions of C.P.C. for summoning of witnesses--Condition embodied in R.1 of Order XVI, C.P.C. could not at all be read into S. 16 of West Pakistan Urban Rent Restriction Ordinance, 1959---Even assuming that provisions of O.XVI, R.1, C.P.C. were applicable, it could not at all be said that appellant/tenant could complain of any prejudice as witnesses summoned and recorded before Rent Controller were duly mentioned in the list filed by respondent/landlord along with his ejectment application---Rent Controller passed order which on face of it was not only illegal, but was unjust and Rent Controller had proceeded to deprive respondent/landlord of his right to lead evidence in violation of law and particularly without even reading his own file---High Court had rightly allowed Constitutional petition against order of Rent Controller and just and proper order of High Court could not be interfered with in intra-court appeal.

Mst. Musarat Bibi and 2 others v. Tariq Mehmood 1999 SCMR 799 ref.

Mian Shamas-ul-Haq Ansari for Appellant.

Pirzada Mohtashamul Haq for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 766 #

2005 C L C 766

[Lahore]

Before Sh. Azmat Saeed, J

JAVED HUSSAIN through Special Attorney---Appellant

versus

Syed RIZWAN ALI SHAH and another---Respondents

S.A.O. No.159 of 2004, decided on 8th February, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Successive and persistent unexplained delays in the deposit of rent violating order under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959---Striking off defence of the tenant---Once an order passed under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959 is violated, there is no discretion left with the Rent Controller but to strike off the defence of the tenant---Even delay of few days can be fatal.

Khan Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 and Muhammad Umer v. Aisha 1981 SCMR 276 fol.

Abdul Raaziq v. Mst. Shahida Nasreen and 2 others 1987 CLC 1530; Muhammad Bashir v. Muhammad Siddiq and 2 others PLD 1981 Lah. 770 and Habib Bank Ltd. v. Amanullah 1986 CLC 2917 ref.

Shafqat Mahmood for Appellant.

Shaukat Ali Javed for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 773 #

2005 C L C 773

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM HASSAN and 4 others---Petitioners

versus

MUNAWAR HUSSAIN and 5 others---Respondents

Civil Revision No. 140/D of 2004, decided on 7th December, 2004.

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

----S. 11, Explanation IV & O.VII, R.11(d)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint on ground of res judicata---Validity---Defendant had been declared owner of suit-land in previous suit filed against predecessor of plaintiff---Plaintiff in plaint of second suit had concealed factum of passing of such decree in favour of defendant---Facts agitated in second suit had never been agitated or brought as a defence in written statement of previous suit---Previous suit had been tried by Court of competent jurisdiction---Held: Second suit was hit by S.11 (Explanation IV), C.P.C. and principle of res judicata.

Maj. (Rtd.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633; Khushi Muhammad and 2 others v. The Province of the Punjab through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633; S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338; Ume Aiman and 43 others v. Muhammad Yousuf and 10 others 2002 CLC 1620; Messrs Al-Riaz Agencies v. Chambers of Commerce and Industries, Karachi and others 2001 CLC 1966; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 and Rahat Mahmood v. Tariq Rashid and another PLD 1993 Kar. 648 ref.

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

----O. VII, R.11---Rejection of plaint---Material/documents to be considered by Court at such stage---Principles stated.

Normally the rule of procedure is that the Court should look into the contents of the plaint and refrain from looking into other material on record for applying the provisions of Order VII, R.11, C.P.C.

Where facts of previous suit and its decision by competent Court of jurisdiction have been concealed by the plaintiff in the plaint of his suit, then the material produced in evidence and documents by way of filing written statement or along with the application under O.VII, R.11, C.P.C. should also be kept into mind for rejecting the plaint.

Muhammad Tariq Mehmood and 2 others v. Anjuman Kashmiri Bradri Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335 and Shahul Hamid v. Tahir Ali 1980 SCMR 469; Maj. (Rtd.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633 and Khushi Muhammad and 2 others v. The Province of the Punjab through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633 rel.

----S. 11---Res judicata---Matter concluded upto High Court or Supreme Court---No Court would have jurisdiction to reopen such matter on principle of "res judicata".

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

----S. 115---Revision---Well-reasoned judgment of Trial Court maintained by Appellate Court---Such judgment could not be interfered with by High Court in exercise of revisional jurisdiction under S.115, C.P.C.

Bashir Ahmad's case and 5 others 2003 CLC 374 ref.

Sh. Zameer Hussain for Petitioner.

Muhammad Amir Butt for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 780 #

2005 C L C 780

[Lahore]

Before Syed Zahid Hussain and Sakhi Hussain Bokhari, JJ

DAWOOD EXPORTS---Appellant

versus

MAERSK LINE PAK---Respondent

R.F.A. No.259 of 2001, decided on 8th February, 2005.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr.2 & 3---Production of documents---Discretion of Trial Court, exercise of---Administration of justice---Direction of High Court for expeditious disposal of suit---Effect---After close of evidence by plaintiff, he filed application for production of certain documents---Defendant, in reply to the application, did not dispute the authenticity of the documents---Trial Court dismissed the application on the ground that the permission to produce the documents would delay the decision of the trial---Plea raised by the plaintiff was that the Trial Court declined to produce the documents only for the reason that there was a direction of High Court for expeditious disposal of the suit---Validity---Documents sought to be produced by the plaintiff would have been of relevance and importance for the decision of the matter---Rejection of application that if permission was allowed, it would run counter to the direction of High Court, was based on extraneous reasons, unsustainable in law---By producing the documents, the defendant should have an equal opportunity to rebut/disprove the assertion of plaintiff---Plaintiff should have filed the application for production of such documents, soon after the written statement had been filed by the defendant, therefore, High Court allowed the application for production of documents and burdened the plaintiff with a cost, for such lapse---Judgment and decree passed by the Trial Court was set aside and the case was remanded to Trial Court for decision in accordance with law---Appeal was allowed in circumstances.

The Lahore Improvement Trust v. Messrs Khuda Bakhsh Meral Din PLD 1956 Lah. 252; United Bank Ltd. Karachi v. Shabbir Ahmad Abbasi and another PLD 1981 Kar. 255 and Shabbir Ahmad Abbasi v. United Bank Limited Karachi and others PLD 1981 Kar. 596 rel.

Sh. Anwarul Haq for Appellant.

Muzaffar Ahmad Zafar for Respondent.

Date of hearing: 8th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 784 #

2005 C L C 784

[Lahore]

Before Umar Ata Bandial, J

Haji FAZAL-UR-REHMAN---Appellant

versus

ABDUL HAFEEZ alias BABAR---Respondent

S.A.O. Nos.5 and 6 of 2005, decided on 17th February, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Default in compliance of order of Rent Controller under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959---Where the Rent Controller had approved the manner in which the rent was being deposited by the tenant and the landlord had failed to raise any objection at that stage, there was no intentional violation of the mandate under S.13(6) of the Ordinance or the order passed by the Rent Controller thereunder---Allegation of the landlord that the deposit was intended to deprive him of the benefit of rent deposited, was not justified in the light of foregoing acquiescence by the landlord and approval of the Rent Controller---Objection and grievance of the landlord about difficulty in withdrawal could be redressed by an appropriate order of the Rent Controller, making correction or giving clarification for which the tenant had undertaken to extend his fullest cooperation and not by depriving the tenant of his right to defend his tenancy---Non-compliance by the tenant, in the present case, being of a technical nature, did not stand in the way of meeting the requirement and object of S.13(6) of the Ordinance or for that matter the order passed by the Rent Controller under the said provision.

Bahadar Khan v. Ch. Muhammad Hussain 1991 SCMR 429 and Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9 ref.

Ali Masood Hayat for Appellant.

Muhammad Saleem Chaudhry for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 792 #

2005 C L C 792

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD HUSSAIN and 2 others---Petitioners

versus

RENT CONTROLLER, CANTONMENT BOARD, SARGODHA and 2 others---Respondents

Writ Petition No.12201 of 2004, decided on 25th November, 2004.

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

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment proceedings initiated by a co-owner, who had purchased a fractional share from a co-owner of a joint property, without permission/concurrence of the other co-owners---Impleadment of such other left out co-owners as parties in ejectment proceedings was refused by the Rent Controller---Validity---One of the co-owners though could initiate ejectment proceedings against the tenant but the cases in which tenancy/landlordship under one of the co-owners, left out from the proceedings was apparent and the tenant had denied default in payment of rent with the assertion of its payment to such left out co-owner and apprehension of collusion between the parties to the ejectment proceedings, were of different nature to those in which a co-owner initiated ejectment proceedings for the benefit of all co-sharers---Such person, by purchase of a fractional share, could not be permitted to take over a joint property by keeping the other co-owners away from the proceedings, by misusing law which was originally promulgated for protection of tenants without resort to suit for partition---Left out co-owners/petitioners, on the face of the record were the landlords as per averments of the tenant and thus they were necessary parties to the ejectment proceedings for protection of their rights, nonetheless they, having interest as owners/landlords, were, at least, proper parties especially in view of their apprehension of collusion between the ejecting petitioner and the tenant---Principles.

Mst. Zubaida Bai v. Mst. Kaniz Bano and another 1989 CLC 1929; Anwar Khan v. Abdul Manaf 2004 SCMR 126; Manzoor Ahmed v. The Rent Controller 2004 YLR 558 and Mian Sher Bahadar and 2 others v. Civil Judge, Takht Bhai and another 2003 YLR 1722 distinguished.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---All the acts/orders, incidental or collateral and not appealable, passed by the statutory functionaries discharging judicial/quasi-judicial functions within jurisdiction of High Court, are subject to judicial review/scrutiny of High Court under Art. 199 of the Constitution.

Sh. Naveed Shahryar for Petitioners.

Ch. Masood Jahangir for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 803 #

2005 C L C 803

[Lahore]

Before Ch. Ijaz Ahmad, J

NADAR---Petitioner

versus

AHMED KHAN---Respondent

Civil Revisions Nos.2089 to 2093, 2630 to 2634 of 2004, heard on 15th February, 2005.

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

----Ss. 31, 27 & 28---Civil Procedure Code (V of 1908), Ss.96 & 115---Pre-emption suit---Contents of the notice revealed that no notice of sale was affixed in terms of S.31, Punjab Pre-emption Act, 1991---Plaintiff claimed to have superior right of pre-emption on the ground that he was co-sharer in Khata, watercourse and passage---Plaint revealed that plaintiff acquired knowledge of sales at 10-00 a.m. on 27-11-1997 and immediately expressed his intention to pre-empt the sales, thereafter he secured copy of Jamabandi from Revenue Patwari but he fell ill and thus could not issue notice of Talb-i-Ishhad immediately but along with two truthful witnesses he issued notice of Talb-i-Ishhad on 2-12-1997 to the defendant who received but failed to reply---Defendant filed written statement and controverted the assertion made in the plaint---Trial Court decreed the suit deciding six issues in favour of plaintiff and one issue in favour of the defendant---Appellate Court reversed the findings of Trial Court---Plaintiff, in revision before the High Court contended that Appellate Court had reversed the finding of the Trial Court without adverting to the reasoning of the Trial Court and without appraisal of evidence on record and therefore, the same was decided by the Appellate Court without judicial application of mind which findings were liable to be set aside in revision by the High Court---Defendants contended that both the Courts below had decided the cases against the defendant on the issue by misreading and non-reading of evidence on record---Defendant further contended that Talbs were not proved by the plaintiff in accordance with law and witnesses of the plaintiff were at variance in their statements on all material points qua Talbs, therefore judgments of both the Courts, while rendering on the issues against defendant were not sustainable in the eye of law---Validity---Held, it was the duty and obligation of the Presiding Officer to decide the controversy between the parties after application of mind but the Appellate Court had decided the case without judicial application of mind which was not in consonance with law---Where the first Appellate Court had decided the case in violation of the prescribed parameter of law, the same was to be termed as material irregularity and High Court had ample jurisdiction to interfere while exercising power under S.115, C.P.C.---Impugned judgment of the Appellate Court was set aside 'meaning thereby the appeals filed by the defendant shall be deemed to be pending before the Appellate Court.

Madan Gopal's case PLD 1969 SC 617; Mollah Ejahar Ali's case PLD 1970 SC 173; Gouranga Mohan Sikdar v. Controller of Import and Export PLD 1970 SC 158; Kanwal Nain's case PLD 1983 SC 53; Shaukat Nawaz's case 1998 SCMR 851 and Ghulam Mohy-ud-Din's case PLD 1964 SC 829 ref.

Muhammad Arif Gondal for Appellant.

Atta-ul-Mohsin Lak for Respondent.

Date of hearing: 15th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 817 #

2005 C L C 817

[Lahore]

Before Maulvi Anwarul Haq, J

ZULFIQAR and 2 others---Petitioners

versus

Mst. NIAZ BIBI and others---Respondents

Civil Revisions Nos.106 to 109, 173 and 340 of 1996, decided on 2nd February, 2005.

(a) Islamic Law---

----Conversion---When once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children.

As soon as a person embraces Islam, he, at once, becomes subject to the Muslim Personal and Religious Law and is completely cut off from his past. He accepts a new mode of life and enters a new domain where his deeds, words and actions are governed by the laws of his new religion. So far as his individual personality is concerned, there cannot be any doubt about it that his future in all aspects of his life becomes amenable to Muslim law, from the moment of his conversion to Islam.

When once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children.

In the present case, admittedly, a Hindu became a Muslim and his right to hold the property was not in any manner affected by his embracing Islam. Even otherwise, the right to hold the property inherited from his father would not be affected.

He alienated the property as a Muslim owner. The custom having been declared to be void by a competent authority even within the meaning of unamended section 5 of the Punjab Laws Act, 1872 and the derogatory provision having already been removed by the competent Legislature, there could possibly be no restriction on the said person to alienate the land which could be enforceable under the Hindu Customary Law.

Farooq Leivers v. Adelaide Bridget Mary PLD 1958 Lah. 431 and Mitar Sen Singh v. Maqbul Hassan Khan AIR 1930 PC 251 fol.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2A---Punjab Laws Act (IV of 1872), S.5 (as amended)---Succession---Alienation---Custom allowing collaterals to challenge alienation is repugnant to Injunctions of Islam---Custom would be applicable in the matter if the parties concerned are not Muslims.

Muhammad Ishaq's case PLD 1981 FSC 278 and The Federation of Pakistan v. Muhammad Ishaq and another PLD 1983 SC 273 fol.

Muhammad Ishaq v. Federation of Pakistan PLD 1981 FSC 278; The Federation of Pakistan v. Muhammad Ishaq and another PLD 1983 SC 273; Mst. Khatun v. Malla and 5 others 1974 SCMR 341; Mst. Rahmat Bibi and others v. Ibrahim PLD 1966 SC 349; Rehmat Ali v. Sooba Khan and 25 others PLD 1994 Lah. 259; Muhammad Arshad and others v. Government of Pakistan and others 1992 MLD 1147; Mahomedan Law by D.F. Mulla para. 21; Farooq Leivers v. Adelaide Bridget Mary PLD 1958 Lah. 431; Nur Ali and another v. Malka Sultan and others PLD 1961 Lah. 431; Mitar Sen Singh v. Maqbul Hassan Khan AIR 1930 PC 251; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213; Roshan Ali v. Noor Khan and others PLD 1985 SC 228; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 and Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Mirza Manzoor Ahmad for Petitioners.

Riaz Ahmad Khan Sadozai and M. Alamgir Amjad for Respondents.

Dates of hearing: 22nd December, 2004 and 13th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 835 #

2005 C L C 835

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD YOUSUF---Petitioner

versus

MANZOOR AHMAD---Respondent

Civil Revision No.448-D of 1998/BWP, decided on 2nd April, 2004.

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

----Ss. 6, 13 & 30(d)---Suit for pre-emption---Right of pre-emption as "Shafi Jar" and "Shafi Khaleet"---Ingredients---Vendee of suit-land had to file suit for specific performance of sale contract against his vendor and after a prolonged litigation, suit was decreed in favour of vendee on 1-2-1975---After conclusion of execution proceedings of decree, sale-deed was registered in favour of vendee on 25-7-1996---Plaintiff/pre-emptor filed suit for pre-emption against vendee on 23-11-1996 claiming the basis of his right of pre-emption as "Shafi jar" and "Shafi Khaleet"---After passing of decree in favour of vendee on 1-2-1975, transfer of ownership of suit-land had come into existence and decree had become clearly pre-emptible in accordance with law---Residuary Art.120 of Limitation Act, 1872 providing six years period for filing suit was applicable in the case---Decree passing in favour of vendee could be pre-empted within six years from date of passing of said decree, but plaintiff had not exercised his right of pre-emption within said period---Suit filed by plaintiff on 23-11-1996 was clearly barred by limitation---Plaintiff at the time of execution of decree in favour of vendee knew very well about sale transaction in favour of vendee, but he did not make 'Talb-e-Muwathibat' immediately---Plaintiff had also failed to perform Talb-e-Ishhad---Requirement contained in S. 13 of Punjab Pre-emption Act, 1991 thus, could not be held to have been fulfilled by the plaintiff---Plaintiff, who claimed superior right of pre-emption on the basis of "Shafi Jar" had, produced 'Aks Shajra' on record to prove his claim---"Aks Shajra" could not prove ownership, so the adjacent nature of land had not been proved by plaintiff and plaintiff could not prove to be Shafi Jar---Plaintiff also claimed right of pre-emption as "Shafi Khaleet", plaintiff to prove his said right had brought on record "Warabandi of outlet" of Rajbah and from said Warabandi, plaintiff could not be declared as a participator of special rights of irrigation attached with immovable property sold---Mere having right of irrigation from Khaal/water-course could not confer upon a pre-emptor the right of "Shafi Khaleet" unless pre-emptor succeeded to show that those rights were attached to immovable property and that he had the right of participation in those rights---Both Courts below had concurrently found that plaintiff had got no right of pre-emption; that suit filed by him was barred by time; and that plaintiff had failed to perform Talbs as required by law---Since facts of performance of Talbs and superior right of pre-emption fell within domain of factual inquiry, findings recorded by Courts below on factual aspect and found not to be illegal, perverse or based on misappreciation of evidence, could not be upset by High Court in exercise of revisional jurisdiction---High Court upheld concurrent judgments and decrees of Courts below.

Jangi v. Jhanda and others PLD 1961 (W.P.) BJ 34; Sohna v. Allah Dad and another PLD 1962 BJ 17; Muhammad Bakhsh v. Ziaullah and others PLD 1971 BJ 42; Pir Bakhsh v. Budhoo; PLD 1978 BJ 86; Syed Haji Imam Bakhsh Shah and others v. Mir Muhammad Ali Haji Ali Murad Khan NLR 1993 SD 442; Muhammad Nawaz v. Fida Hussain and another 1994 CLC 1487; Muhammad Sharif and another v. Muhammad Siddiq PLD 2000 Lah. 306; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Gullan (deceased) represented by Jan Muhammad and others v. Muhammad Ramzan and others 1968 SCMR 142 and Muhammad Bashir v. Ghulam Akbar 1982 SCMR 1018 ref.

Ijaz Ahmad Chaudhry for Petitioner.

Inamullah Hashmi and Raja Muhammad Sohail Iftikhar for Respondent.

Date of hearing: 8th March, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 846 #

2005 C L C 846

[Lahore]

Before Syed Zahid Hussain, J

Sh. MUHAMMAD SHAFIQ SAITHI---Appellant

versus

Mian SIRAJ AHMAD JAMAL---Respondent

S.A.O. No.126 of 2003, heard on 4th March, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 22---Civil Procedure Code (V of 1908), O.XVII, R.3---Ejectment of tenant---Technicalities---Provisions of Civil Procedure Code, 1908---Applicability---Appellate Court remanded the case to Rent Controller for second time on the ground that case was adjourned without any specific order for production of evidence---Validity---Though no specific order was passed for production of evidence on the adjourned date, yet the tenant was represented through counsel who was fully aware of the proceedings for which the case had been coming up before Rent Controller and adjournments were granted to him---Tenant was merely banking upon hyper-technicalities to the effect that date had not been specifically fixed for production of evidence---Provisions of Civil Procedure Code, 1908, were not stricto senso applicable to the proceedings before Rent Controller as under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller acted as persona designata---Rent Controller was justified to pass order in exercise of his discretion which could not be regarded either arbitrary or whimsical---Appellate Court was not justified to interfere with such order of Rent Controller by ordering another remand---Judgment of Appellate Court was not sustainable and was set aside---Second appeal was allowed in circumstances.

Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 ref.

Dr. A. Basit for Appellant.

Tahir Maqsood Butt for Respondent.

Date of hearing: 4th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 848 #

2005 C L C 848

[Lahore]

Before Sh. Azmat Saeed, J

E.F.U. GENERAL INSURANCE COMPANY LTD. through Branch Manager and 2 others---Petitioners

versus

ZAHIDJEE TEXTILE MILLS LTD. through Assistant Director and another---Respondents

Civil Revision No.71 of 2005, decided on 28th February, 2005.

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

----O. VII, R. 11---Rejection of plaint---No partial rejection of plaint is permissible.

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

----O. I, R. 10(2)---Deletion of names of defendants---Applicants had prayed for deletion of their names from array of defendants---By no stretch of imagination could applicants, in facts and circumstances of the case, escape the net of being at least proper parties, if not necessary parties---Application being devoid of any merit, was dismissed, in circumstances.

Hamid Khan and Ijaz-ul-Hassan for Petitioners.

Ch. Fawad Hussain, Muhammad Asif Ismail and Miss Ambreen Moeen for Respondent No.1.

Muhammad Ayub Shaheen for Respondent no.2.

CLC 2005 LAHORE HIGH COURT LAHORE 852 #

2005 C L C 852

[Lahore]

Before Syed Zahid Hussain, J

Sh. ATTA MUHAMMAD and another---Appellants

versus

ZAHID UMAR HAYAT---Respondent

S.A.O. No.131 of 2004 and C.M. No.159-C of 2005, decided on 3rd March, 2005.

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

----Ss. 13 & 22---Ejectment sought for reconstruction of the property---Concurrent findings of fact by the Courts below---Resources of landlord for reconstruction---Ejectment application was allowed by Rent Controller on the ground of bona fide need of landlord for reconstruction---Eviction order passed by Rent Controller was maintained by Appellate Court---Plea raised by the tenant was that the landlord did not have the resources to reconstruct, therefore, the need for the purpose was not bona fide---Validity---Landlord had successfully proved his bona fides for reconstruction, as he had made strenuous efforts and waited for a long time for the sanction of construction plan which he got by virtue of a decree of Civil Court---Efforts made by the landlord for such purpose were indicative of his bona fide and good faith and should dispel any doubt or apprehension about the same---Findings on vital issue were concurrent and there was no justification to interfere with such due and proper appraisal of evidence---No misreading and non-reading of any material piece of evidence was found which could impair the legality of the findings of the Courts below---Concurrent findings of the Courts below did not call for any interference by High Court in appeal under S.22 of West Pakistan Urban Rent Restriction Ordinance, 1959---Second appeal was dismissed.

Abdur Rashid and others v. Ghulam Dastgir 1981 SCMR 1087; Ch. K.A.M. Bajwa and 2 others v. Asghar Ali and 3 others 1987 CLC 2256; Azizur Rehman v. Pervaiz Shah and others 1997 SCMR 1819; Sh. Abdul Aziz and others v. Kh. Hasan Joo and 5 others 1981 SCMR 924; Haji Allah Ditta v. Mst. Shahzadi Bilqis and another 1980 SCMR 41; Madrissa Darul Uloom Al-Baqiat-ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another PLD 1992 SC 401; Muhammad Saleem v. Waqf Muhammad Meher Elahi through Mutwalli 2003 YLR 3304; Muhammad Ishaq v. Syed Muhammad Zubair 1996 MLD 797 and Muhammad Yousaf Butt v. Muhammad Ali and another 1992 MLD 976 ref.

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

----S. 13---Ejectment of tenant---Relationship of landlord and tenant---Dispute between landlord and some third party over title of demised premises---Effect---Such dispute would be decided by the forum seized of the same---Tenant having been inducted into the premises as tenant, would continue to have that status and could not plead denial of such title.

Irfar Qureshi for Appellants.

Iqbal Hussain Kalanauri for Respondent.

Date of hearing: 3rd March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 856 #

2005 C L C 856

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. SHAHNAZ ABBAS---Petitioner

versus

PACE (PAKISTAN) LIMITED through General Manager---Respondent

Civil Revision No.119 of 2005, decided on 1st March, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Rejection of plaint---For the purpose of provisions of O.VII, R.11, C.P.C., only the contents of the plaint were to be considered---Averments of the plaint were to be deemed as true, while applying provisions of O.VII, R.11, C.P.C.

Sarwar Khan v. Habibullah 2004 CLC 1312; Abdul Rehman v. Sher Zaman and another 2004 CLC 1340; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476; Board of Intermediate and Secondary Education v. Khalid Mehmood 1985 CLC 657; Malik Khadim Hussain and others v. Haq Nawaz and others 2004 CLC 184; Haji Shoukat Ali v. Abdul Rasheed 2004 CLC 755; Rafique Ahmad Khan v. Province of Punjab and others 2004 SCMR 1065; Chief Officer, District Council v. Haji Sultan Safdar and others 1999 YLR 1963; Abdur Rashid v. The State Bank of Pakistan and another PLD 1970 Kar. 344 and Mst. Mazhar Khanum v. Sh. Saleem Ali and others 2004 CLC 799 ref.

Qazi Muhammad Arshad for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 859 #

2005 C L C 859

[Lahore]

Before Syed Zahid Hussain, J

ANEELA KHAN---Petitioner

versus

TAHIR SAEED and others---Respondents

Writ Petition No.7740 of 2004, decided on 4th March, 2005.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Welfare of minors---Determination---Choice of minors---On inquiry of High Court about the wishes of the children, all of them had stated that they would like to continue living with their mother---In view of the wishes of the children, the father preferred welfare of the minors and their interest overall---Father sought permission to have access to his children---Effect---Mother had no objection to access of the father to his children---High Court resolved the matter of the custody of the children in accord with the wishes of the children---Petition was disposed of accordingly.

Syed Mukhtar Abbas for Petitioner.

Muhammad Asif Ismail for Respondents.

Date of hearing: 4th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 861 #

2005 C L C 861

[Lahore]

Before Sh. Azmat Saeed, J

ZAKIR ULLAH---Petitioner

versus

Mrs. SAROSH YAQOOB and 2 others---Respondents

Writ Petition No.16132 of 2003, decided on 14th February, 2005.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Striking off defence---Non-compliance of tentative rent order---Rent Controller passed tentative rent order and directed the tenant to deposit arrears of rent as well as future rent by 15th of every month---Tenant failed to deposit the future rent in accordance with the direction of Rent Controller---Defence of the tenant was struck off and eviction order was passed---Tenant in appeal relied upon an agreement whereby she claimed to have paid the rent---Lower Appellate Court passed ex parte order and remanded the matter to Rent Controller for decision afresh---Validity---Original order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, consisted of two parts, one with reference to deposit of the arrears of the rent and the second part was with reference to future rent which was to be deposited before 15th of each successive month---Tenant did not deposit the future rent in compliance of the order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Tenant also did not disclose before the Appellate Court that the future rent was in fact deposited---Tenant failed to explain the non-compliance of the order to the extent of future rent---Present was a case of violation of the order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959; in the event of such violation, the defence of the tenant was to be struck off and ejectment order had to follow---Order of remand passed by the Appellate Court was set aside and that of the Rent Controller was restored---Petition was allowed in circumstances.

Mst. Fatima Gul v. Malik Saeed Akhtar PLD 2005 SC 34 and Muhammad Umar v. Mst. Aiysha Aziz 1981 SCMR 276 ref.

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

----S. 13(6)---Ejectment of tenant---Striking off defence---Plea of filing of ejectment application by unauthorized person---Defence of tenant was struck off by Rent Controller, resultantly eviction order was passed---Contention of the tenant before High Court was that the power of attorney in favour of the person, who had filed the ejectment application required consideration---Validity---Tenant could not be permitted to take such defence if she had violated the order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, when her defence was struck off.

----Art. 199---Constitutional jurisdiction of High Court---Interference in order of remand---Principle---Writ could be issued against remand order to avoid perpetuation of an illegality---When the order impugned was patently illegal it would be unjust and unfair to condemn the petitioner to further unnecessary litigation by refusing to interfere in the matter---Constitutional petition was maintainable in circumstances.

Muslim Commercial Bank Ltd. v. Mahmood Alam Niazi 2003 PLC 378 ref.

Muhammad Kamran Sheikh for Petitioner.

S. Abid Mumtaz Tirmzi for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 865 #

2005 C L C 865

[Lahore]

Before Tanvir Bashir Ansari, J

SAEED AHMED---Petitioner

versus

JAN SULTAN and another---Respondents

Civil Revision No.2263 of 2004, decided on 13th September, 2004.

Civil Procedure Code (V of 1908)---

----S. 46---Objection petition during proceedings on a precept---Maintainability---Attachment of property by Civil Court in pursuance of precept issued by Executing Court---Dismissal of objection petition by Civil Court on merits---Such dismissal was upheld by Appellate Court on the ground that what was pending before Civil Court was a precept---Validity---Main execution proceedings never stood transferred to Civil Court as under S.46, C.P.C., Executing Court issues a precept to another Court having jurisdiction in the matter, where property belonging to judgment-debtor proposed to be attached is situated---Decree under execution passed about twenty years back and upheld up to Supreme Court could not be executed primarily upon objections filed only by brother of judgment-debtor---High Court dismissed revision petition in circumstances.

M.A. Zafar for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 868 #

2005 C L C 868

[Lahore]

Before Sardar Muhammad Aslam, J

AL-FARID TRADERS through Vice-President and 35 others---Petitioners

versus

MARKET COMMITTEE through Administrator and 3 others---Respondents

Civil Revision No.1150 of 2004, decided on 24th February, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Interim relief, refusal of---Petitioners along with suit had filed application for grant of interim relief which was dismissed by Trial Court and Appellate Court---Since concurrent findings of fact had been recorded by Courts below, no interference was called for in revision---Market Committee (respondent) however, was directed to maintain correct and true account in respect of collection of disputed fee and if on final decision of case, it was found that Market Committee was not authorized to collect fee, same might be returned to the petitioners.

Ch. Abdul Majid for Petitioners.

M.A. Zafar for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 870 #

2005 C L C 870

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD YAQOOB---Petitioner

versus

HAMEEDA BEGUM and 4 others---Respondents

Civil Revision No.1598 of 1998, heard on 3rd March, 2005.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.84---Specific Relief Act (I of 1877), Ss. 8 & 42---Civil Procedure Code (V of 1908), S.115---Suit for possession and declaration---Original owner having died, mutations in respect of his land were sanctioned in favour of defendants who were widow and daughters of deceased---Plaintiff, who was brother of deceased owner, filed suit in which he alleged that mutations which were sanctioned in favour of defendants in his absence and without notice to him, were patently wrong, void and inoperative qua his right and that he being brother of deceased was entitled to inherit land from estate of deceased up to extent of 5/24 shares---Defendant had claimed that mutations in question were duly approved on the evidence of official witnesses who had signed and entered mutations in question in their favour---Defendants had categorically stated in their statements that plaintiff had signed said mutations and those were sanctioned in his presence---Plaintiff, who alleged that he was not present at time of sanctioning mutations in favour of defendants and that his signature on said mutations were false and fabricated, filed application for comparison of his signature from Handwriting Expert, which application subsequently was withdrawn by him---Trial Court decreed suit, but Appellate Court below reversed findings of Trial Court and dismissed suit---Appellate Court compared signatures of plaintiff and gave finding against plaintiff to the effect that signatures of plaintiff available on all documents were similar---Fact that plaintiff was present at the time of sanction of mutations in favour of defendants and that he had signed the mutations, having been perused, principle of estoppel was attracted in the case in all respects---First Appellate Court had all powers to appraise evidence while deciding appeal exercising powers under S.96, C.P.C.---Man could tell a lie, but documents could not---Documents in the case were proved by Revenue Officials, who had no enmity with plaintiff and no love with defendants---In absence of any infirmity and illegality in impugned judgment of Appellate Court whereby suit filed by plaintiffs, which otherwise was time-barred, was dismissed---Revision against judgment of Appellate Court below, was dismissed.

Ashiq Hussain v. Prof. Muhammad Aslam and 9 others 2004 MLD 1844; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Arif Beg's case PLD 1992 Lah. 366; Muhammad Din's case 1991 MLD 1070; Abdul Hameed alias Ladai Mia PLD 1956 Dacca 14; Ahasanullah Chowdhury's case PLD 1958 Dacca 57; Ahasanullah Chowdhury v. Haji Abdul Jabbar Chowdhury 9 DLR 543; Haji Muhammad Younas's case PLD 1959 Kar. 755; Nageshar Bakhsh Singh v. Mt. Ganesh AIR 1920 PC 46; Ganges Manufacturing Co. v. Sourajmull ILR 5 Cal. 669; Lakshman Goundan v. Subramania Aiyar AIR 1924 PC 44; Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376; N.S. Vankatagiri Ayyangar and another v. the Hindu Religious Endowments Board Madras PLD 1949 PC 26; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 and Ghulam Qadir's case PLD 1988 SC 625 ref.

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

----Art. 84---Comparison of signatures---Court could itself compare signatures along with other relevant material to effectively resolve main controversy.

Messrs Waqas Enterprises' case 1999 SCMR 85; Syed Iftikhar Hussain's case 1990 ALD 570; S.M. Zaheer's case 1974 SCMR 490 and Haji Muhammad Khan's case 1992 SCMR 2439 ref.

Muhammad Iftikhar Shah for Appellant.

Ch. Muhammad Amin Javed for Respondents.

Date of hearing: 3rd March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 880 #

2005 C L C 880

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD IMRAN and 4 others---Petitioners

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and another---Respondents

Writ Petition No.16888 of 2004, decided on 28th October, 2004.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 30---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Violation of fundamental rights---Court had directed the petitioners that its licence would not be cancelled, but petitioners would not re-broadcast any programme of the specific radio channel---Respondent alleged that despite such specific direction, petitioner-Company continued to re-broadcast the said programme on different dates---Petitioners though had tendered unqualified apology stating that it was not intentional, but had alleged that fundamental rights of the petitioners had been violated by prohibiting the broadcast of the radio channel---Question whether any of fundamental rights of the petitioners were violated, was yet to be determined---Conduct of petitioners would disentitle them to be heard in discretionary jurisdiction of High Court---Constitutional petition was dismissed; and in view of unqualified apology of petitioners, they were not proceeded against in contempt jurisdiction.

Raza Kazim for Petitioner.

Dr. Danishwar Malik, Deputy Attorney-General of Pakistan for Respondent No.2.

Muhammad Azam Zia for Respondent No.1.

CLC 2005 LAHORE HIGH COURT LAHORE 882 #

2005 C L C 882

[Lahore]

Before Abdul Shakoor Paracha, J

NURICON UNION (PVT.) LTD. through Officer Incharge, Islamabad---Petitioner

versus

MUHAMMAD NASAR SAJJAD and 5 others---Respondents

Writ Petition No.438 of 2005, decided on 18th February, 2005.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Arbitration Act (X of 1940), S.34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Stay of proceedings---Arbitration clause, invoking of---Rent Controller allowed the application and eviction order was passed---Grievance of tenant was that there was arbitration clause in the agreement between the parties and despite filing of application for invoking the arbitration clause, the Rent Controller did not stay the proceedings---Validity---Tenant did not file the application under S.34 of Arbitration Act, 1940, in civil Court but he had filed the application before Rent Controller which was not a civil Court---Rent Controller acted in quasi-judicial capacity and not as a Court---Petition was dismissed in limine.

Pakistan and Divisional Superintendent Pakistan Railways, Rawalpindi v. Muhammad Faiz Ahmed NLR 1978 Civil 1186 distinguished.

Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459 rel.

Sheikh M. Suleman for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 884 #

2005 C L C 884

[Lahore]

Before Farrukh Latif, J

AMAR LAL---Petitioner

versus

PRINCIPAL NISHTAR MEDICAL COLLEGE, MULTAN and 6 others---Respondents

Review Petition No.24 of 2002 in Writ Petition No.3476 of 2002, decided on 2nd April, 2003.

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

----S. 114 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Review---Educational institutions--- Examination---Petitioner/candidate appeared in first Professional M.B.,B.S. Annual Examination 2000 and vide Notification was declared successful, but through another Notification was declared failed in three subjects---Petitioner having failed to appear in consecutive successive three examinations viz. 2nd Annual 2000, 1st Annual 2001 and 2nd Annual 2001, he was expelled from Medical College on the ground that he could not pass said examination in four chances (availed or unavailed) according to Rules---Next 2nd Annual Examination was to commence on 26-10-2000 whereas notification declaring petitioner failed in 3 subjects was issued on 24-10-2000 with only one day intervening between issuance of notification of his failure and commencement of examination and it was not humanly possible to complete formalities for appearing in that examination in such time---When chance for appearing in that examination was not available, it should not have been considered as a chance not availed by him---Under the Rules petitioner had got one chance at his credit for appearing in said examination of which he was illegally deprived by the University and College---In order to saddle a candidate with the liability of not availing chance, the chance should be provided to him for appearing in the examination---Without making chance available to candidate, he could not be blamed for not availing same---Chance for appearing in 2nd Annual 2000 examination being not made available to candidate that examination should not have been considered to have been unavailed by him---Earlier said facts were not brought to the notice of High Court and Constitutional petition filed by petitioner was dismissed; as soon as said facts and documents came to the notice of candidate he had promptly filed review application along with application for condonation of delay which was supported by affidavit and which had not been rebutted by any counter-affidavit by Authorities---Review application as well as application for condonation of delay was allowed by High Court---Order whereby candidate was expelled, was set aside and it was declared that candidate still had got one chance for appearing in 1st professional M.B.,B.S. examination.

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

----S. 114 & O.XLVII, R. 1---Review---A review could be made for any sufficient reason including misapprehension regarding true circumstances.

Tahir Mahmood for Petitioner.

Sh. Sajjad Ahmad for Respondent No.1.

Muhammad Tariq Rajwana for Respondents Nos.2, 5 and 6.

Date of hearing: 27th March, 2003.

CLC 2005 LAHORE HIGH COURT LAHORE 890 #

2005 C L C 890

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD AKRAM through Special Attorney---Petitioner

versus

Mst. BUSHRA BEGUM and 2 others---Respondents

Writ Petition No.10695 of 2003, decided on 9th February, 2005.

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

----S. 13(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of value of dowry articles---Execution of decree---Executing Court, to ascertain value of dowry articles, appointed Court auctioneer for auction of property owned by judgment-debtor---Order of Executing Court was maintained by Appellate Court in exercise of revisional jurisdiction---Plea raised by judgment-debtor was that it was only the dowry articles which could be recovered and not its value---Validity---Decree-holder could insist upon the value of dowry articles if the dowry articles themselves could not be restored---Original dowry articles were not in possession of judgment-debtor and his attempt to replace the same would amount to re-opening the case as the question regarding quality and condition of replaced dowry articles would always be open to question---Where judgment-debtor had himself denied to be in possession of the dowry articles in his written statement, it was incumbent upon the Executing Court to straightaway execute the decree for money as alternatively decreed by the Family Court---High Court declined to interfere in the concurrent orders passed by both the Courts below---Petition was dismissed in circumstances.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 rel.

Mst. Nasreen v. Government of Sindh PLD 1989 Kar. 28; AIR 1959 Mysore 164 and Muhammad Akram v. Mst. Shahida Parveen PLD 2004 Lah. 249 distinguished.

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

----O.XXI, R.10---Execution---Recovery of movable property instead of value of the property---Pre-condition---To seek recovery of movable property itself and not its value, the pre-condition is that movable property should be available to be restored to the decree-holder.

Ch. Khan Muhammad Bajwa for Petitioner.

Tasawar Hussain Qureshi for Respondent No.1

CLC 2005 LAHORE HIGH COURT LAHORE 894 #

2005 C L C 894

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. AYISHA BIBI---Petitioner

versus

SAFDAR ALI SHAH and another---Respondents

Writ Petition No.156 of 2005, decided on 7th February, 2005.

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

----Ss. 17 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Welfare of minors---Petitioner/mother of two minors had entered into a second marriage with a person, not within the prohibited degree of her daughter aged 14 years---Petitioner's second husband had no interest in proper bringing up of minors and one of them being a female of the age of 14 years, it was not safe for her to live with the petitioner---Both minors had crossed the ages of Hizanat and mother/petitioner having become disqualified for the custody of minors it was the right of father under Islamic Law to have the same---Both Guardian Judge and Appellate Court had rightly and concurrently decided that custody of minors be given to respondent/father of minors who had a right to claim custody of minors---Respondent/father of minors, despite second marriage had no offshoot therefrom---Woman without any child would not give step-motherly treatment to minors and that too while living with their real father---Lawful decision taken by Courts below within the ambit of their jurisdiction conferred by law and based on reason, could neither be interfered with nor could be substituted in Constitutional jurisdiction of High Court---No illegality could be pointed out to have been committed by Courts while passing impugned orders, which being not arbitrary/fanciful, were immune from indulgence of High Court---Constitutional petition was dismissed in circumstances.

Sh. Kamran Shahzad Siddiqui for Petitioner.

Syed Muhammad Tariq Shah and Mirza M. Nizakat Baig for Respondent No.1.

CLC 2005 LAHORE HIGH COURT LAHORE 897 #

2005 C L C 897

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. NAZIRAN BEGUM and 8 others---Petitioners

versus

ABDUL GHANI and 2 others ---Respondents

C. R. No.436 of 2000, heard on 4th February, 2005.

(a) Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

----S. 2---Affectees of decision passed by Courts---Remedy---Limitation---Cases in which decision had already been made as a result of some litigation between the parties and as a result of that litigation some adverse order was passed against the persons who were to inherit from the last male owner, treating the females as full owners, in such cases the provisions of S.2 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, were applicable---Right was given to such affected parties under S.2 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, to move application before the same Court or authority within a period of one year from the date of commencement of the Act, i.e. 31-3-1975.

(b) Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

----S. 3---Fresh suit, filing of---Scope---Persons who had not filed any suit against any alienation or order of succession before the commencement of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, were given a right to file a fresh suit within a period of one year from the date of commencement of the Act.

1993 SCMR 950 rel.

----S. 2----Affectees of decision passed by Courts---Bar of limitation---Applicability---Condition precedent to apply the bar of limitation provided in S.2 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, is that the parties had litigated the issue of limited ownership of the female and some decree, judgment or order was passed in any suit, appeal or proceedings by any Court or authority treating the refugee female allottee as a full owner of the property allotted to her in lieu of her property abandoned by her in India or to which she was otherwise entitled as a limited owner.

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

----S. 42---Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), Ss.2 & 3---Declaration of title---Limited estate---Right of legal heirs---Bar of limitation---Owner of suit property died issueless before partition and his widow became limited owner who migrated to Pakistan and died in the year 1987---On the death of widow, mutation of inheritance was attested in favour of defendant being her nephew, treating the widow as full owner---Plaintiff claimed 3/4th share in the property being collateral of the original owner---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed---Plea raised by the defendant was that the suit was barred by limitation prescribed under Ss.2 and 3 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975---Validity---Necessary ingredients to apply the bar of limitation i.e. litigation between the parties prior to the coming into force of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, were missing---Case did not fall under S.2 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975---Widow did not alienate the property in her life time till she died in the year, 1987 when her succession opened, therefore, bar of limitation contained in S.3 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975 was also not applicable---On coming into force of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, the plaintiff had become a co-sharer of the property on account of termination of limited estate of the widow---Once having become co-sharer in the property, no limitation ran on account of recurring cause of action on every denial---High Court declined to interfere with the judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.

PLD 1987 Lah. 553; 1998 MLD 2513; 1993 CLC 214; PLD 2003 Lah. 186; PLD 2002 SC 741; 2002 SCMR 1000; PLD 2004 Lah. 1 and PLD 2002 SC 823 ref.

PLD 1990 SC 1 rel.

(e) Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

----S. 3---Fresh suit, filing of---Bar of limitation---Applicability---Conditions required for the application of bar of limitation as provided in S.3 of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975, are that the female limited owner had dealt with the property by way of alienating it in any form i.e. sale, gift, exchange, mortgage etc. or on account of her death, succession had opened before coming into force of Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975---If either of the two incidents i.e. alienation or succession had happened but the aggrieved person, for one reason or the other, could not challenge such alienation or succession he was given right to file a suit within the extended limitation.

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

----S. 115---Revision---Copy of document not annexed with revision---Respondent had tried to refer to a document produced before Appellate Court as additional evidence---Such document was neither produced by the petitioner nor by the respondent as required by S.115 C.P.C.---Effect---Without the document being on record, the same could not be commented upon.

Ch. Khurshid Ahmed for Petitioners.

Syed Kaleem Ahmed Khurshid for Respondents Nos.1 and 2.

Imran Masood for Respondent No.4.

Date of hear: 4th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 905 #

2005 C L C 905

[Lahore]

Before Syed Zahid Hussain, J

PAKISTAN RAILWAYS, HEADQUARTERS OFFICE, LAHORE through Chairman and another---Petitioners

versus

BORDER AREA ALLOTMENT COMMITTEE, LAHORE through Chairman and another---Respondents

Amended Writ Petition No.81-R of 2001, decided on 18th March, 2005.

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

----Art. 184 (1)(2)---Dispute between two Governments, decision of---Jurisdiction of Court---Scope---Whenever there is any dispute between two or more governments, the original jurisdiction of Supreme Court gets attracted to the exclusion of every other Court.

Constitution of Islamic Republic of Pakistan, 1973 by Justice Muhammad Munir rel.

(b) West Pakistan Border Area Regulation, 1959 (M.L.R. Zone "B")---

----Paras. 9, 10 & 15---Constitution of Pakistan (1973), Arts.184 (1) (2) & 199---Constitutional petition before High Court---Maintainability---Ownership of land in question was disputed between Federal Government and Provincial Government---Border Area Committee declared the land to be the ownership of Provincial Government---Order passed by Border Area Committee was assailed by Federal Government before High Court in exercise of Constitutional jurisdiction---Validity---Dispute having arisen in the case as to which of the Governments was the owner of the disputed property, it fell within the ambit and exclusive jurisdiction of Supreme Court under Art.184 (1) (2) of the Constitution---Border Area Committee which was constituted by Provincial Government stood denuded of the power in the matter---Committee could neither assume jurisdiction nor grant declaration as had been done in the case---Constitutional jurisdiction of High Court also stood ousted in view of exclusionary jurisdiction clause of Art.184 (1) of the Constitution---High Court a fortiori declined even to examine the matter---Petition was disposed of accordingly.

Mehr Din and 7 others v. Border Area Committee, Bahawalnagar and another PLD 1970 SC 311; The Punjab Province v. Federation of Pakistan PLD 1956 FC 72; Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and The Commissioner of Income-tax, Lahore v. Messrs Government Jallo Rosin and Turpentine Factory, Lahore PLD 1976 Lah. 1135 rel.

Jehangir A. Jhoja for Petitioners.

Aamir Zaheer Chohan for Respondent No.1.

Aamir-ur-Rehman, Addl. A.-G. and Yawar Ali, D. A.-G. for Respondent No.2

Dates of hearing: 8th and 18th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 912 #

2005 C L C 912

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

Messrs NIGAH-E-KARIMEE ENTERPRISES through Proprietor and another---Appellants

versus

TRUST INVESTMENT BANK LIMITED---Respondent

Regular First Appeal No.230 of 2004, heard on 7th September, 2004.

Contract Act (IX of 1872)---

----S. 74---Lease agreement stipulating late payment charges for default in payment of instalments---Validity---Such late payment charges were in nature of penalty---Lessor could not recover such charges without proving loss.

Syed Haider Ali Shah for Appellants.

Syed Hasnain Kazmi for Respondent.

Date of hearing: 7th September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 914 #

2005 C L C 914

[Lahore]

Before Ali Nawaz Chowhan, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 5 others---Petitioners

versus

RIAZ MUHAMMAD---Respondent

Civil Revision No.1967 of 2003, decided on 23rd February, 2005.

Electricity Act (IX of 1910)---

----S. 54-A---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Temporary injunction, grant of---Trial Court granted temporary injunction to the consumer whereby Authorities were restrained from disconnecting connection of electricity of consumer provided he deposited specified amount within a period of 30 days---Appellate Court on appeal had found that deposit of specified amount was of harsh nature and order of Trial Court amounted to refuse temporary injunction and that it would be in the interest of justice to delete condition to deposit the amount---Appellate Court ordered the consumer to furnish surety bond of equal amount along with one surety---Authorities had assailed substituting order of Appellate Court in revision contending that said order was something exceptional and violative of S.54-A of Electricity Act, 1910---Order substituting amount with a surety bond was not as good a guarantee as a cash deposit or a Bank guarantee---Allowing too much of concession to a consumer against a claimed bill, could make him relaxed with respect to the case and could also cause financial problems for the statutory body---Some sort of method in circumstances at the interim stage, had to be evolved by the Courts dynamically so that both parties were placed in a position of equal advantage and disadvantage which was the purpose of justice---High Court in exercise of its revisional jurisdiction, directed that order of Civil Court be modified to the extent that consumer would deposit with the Trial Court 1/3rd of amount of bill claimed and for the other 2/3rd would provide a Bank guarantee within a period of six weeks, failing which stay order would stand vacated.

Riaz Hussain Khan for Petitioners.

Nemo for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 917 #

2005 C L C 917

[Lahore]

Before Syed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ

SARDAR JEHANZEB ALI and others---Appellants

versus

ASSISTANT COMMISSIONER and others---Respondents

Regular First Appeal No.472 of 1999, decided on 4th April, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 23, 18, 4 & 54---Punjab Land Acquisition Rules, 1983, R.10(1)---Stamp Act (II of 1899), S.27-A---Purpose for acquisition of the land was construction of Offices, Mosques, Model Schools, Auditoriums, Guest Houses, Residences for the officers/officials, Hostels for girls and boys, Cafeterias, Banks, Hostels for the indoor games, Swimming Pool and Playgrounds for the male and female, Outdoor tournaments for the Board of Intermediate and Secondary Education which was indicative of not only its situation and location but also its utility and potentiality---Revenue Record showed that property was situated in close proximity of G.T. Road---Compensation, determination of---Factors to be considered---Contentions of the landowners were that the property around and in the vicinity was fast acquiring urban colour and utility and was losing its agricultural character due to the growing trend of expansion of City; that evidence led by the landowners qua its potentiality, future use and utility and appreciation in price had not been given due consideration and weight by the Court and the Court had erred in law by adopting the criteria of average price of the preceding one year; that notification issued by the Collector under S.27-A, Stamp Act, 1899 showed inadequacy of rate of land; that even the average value of land of the preceding one year had not been correctly worked out; that while assessing compensation for the acquired land a liberal and generous approach was to be adopted by the Court and that due and fair compensation had not been awarded to the landowners---Validity---Held, while making determination of fair compensation various matters were to be taken into consideration including the value of the land in the neighbouring locality, its future utility and potentiality and the price which a willing purchaser would pay for the land to the willing seller---Previous sales of land could not, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired---Court had adopted the assessment made by the Land Acquisition Collector who followed the formula of average sale---Landowners thus, were justified in their grievance that whereas they had been deprived of their valuable land, fair and proper compensation had not been paid to them and that the evidence that was produced by them had not been considered and given due weight by the referee Court---Court, in circumstances, appeared to have acted oblivious of the considerations which were germane to deciding the matter of assessment of due compensation of acquired land and fell into error in not adverting to all these aspects---Court was required to make an objective assessment on appraisal of the evidence in order to determine the fair compensation of the land---High Court set aside the impugned judgment in appeal and remanded the case to the referee Court for decision in accordance with law keeping in view all the relevant circumstances as highlighted in the precedent law.

Malik Anman and others v. Land Acquisition Collector and others PLD 1988 SC 32; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar 1999 SCMR 1647; Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 1322; Province of Punjab v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; Secretary to Government of N.-W.F.P. Peshawar and 15 others v. Haji Fateh Khan and 15 others 2001 SCMR 974;Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407; Nisar Ahmad Khan v. Collector Land Acquisition, Swabi and others PLD 2002 SC 25; Hyderabad Development Authority through M.N.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 and Province of Punjab, Lahore and another v. Shah Rasool and 3 others 1992 CLC 67 ref.

Muhammad Jehangir Asif for Appellants.

Aamir Rehman, Addl. A.-G. for Respondent No.1.

Sh. Shahid Waheed for Respondent No.2.

Date of hearing: 4th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 922 #

2005 C L C 922

[Lahore]

Before Syed Zahid Hussain, J

J.L. PAUL & SONS---Petitioner

versus

DIRECTOR-GENERAL, EXCISE AND TAXATION, PUNJAB and another---Respondents

Writ Petition No.11688 of 2002, heard on 5th April, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Natural justice, principles of---Applicability---Delegation in adjudication---Validity---Direction of the High Court in another Constitutional petition was to the persona designata and not to any other functionary and it was only that persona designata who was to afford the opportunity of hearing to the petitioner and then pass a speaking order---No concept of delegation in adjudicatory process i.e. hearing by someone else and decision to be made by someone else existed---What at the most could be conceived and considered permissible was that such a persona designata could obtain a report as to certain aspect of the matter from the departmental functionaries but he was obliged to hear and decide the matter on due consideration by himself otherwise a valuable right of hearing of a party could be stultified---Any exercise that was made by the persona designata delegating his authority to another to hear the matter on his behalf was wholly unwarranted and violative of principles of natural justice---Order passed by the persona designata on the basis of hearing by another functionary, was not sustainable in law and was declared as of no legal effect---Principles.

Crescent Sugar Mills and Distillery Ltd. Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 fol.

Ms. Hina Jilani for Petitioner.

Fawad Malik, A.A.-G. with Jam Siraj Ahmad, Excise and Taxation Officer (Tech.) for Respondents.

Date of hearing: 5th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 925 #

2005 C L C 925

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. NAZIR BEGUM and 2 others---Petitioners

versus

MUHAMMAD TAHIR and another---Respondents

Civil Revision No.2973 of 2004, decided on 28th March, 2005.

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

----Ss. 41 & 52---Lis pendens, doctrine of---Object and scope---Primary object of such doctrine is to maintain status quo and protect parties to litigation against alienation by their opponents during pendency of suit, wherein any right to immovable property is in question---Rights of purchaser for valuable consideration not having knowledge about pendency of litigation would be protected under S.41 of Transfer of Property Act, 1882, being bona fide purchaser---Principles.

Muhammad Zafar-uz-Zaman and 4 others v. Faqir Muhammad through legal Heirs PLD 2001 SC 449 and Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003 ref.

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

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.56(b)(h)---Transfer of Property Act (IV of 1882), S.52---Temporary injunction, grant of---Lis pendens, doctrine of---Applicability---Despite applicability of such doctrine, Court could grant temporary injunction in order to avoid multiplicity of proceedings and prohibit introduction of strangers into lis to enlarge scope of dispute between parties, provided plaintiff succeeded in establishing his case on parameters of prima facie case, balance of convenience and irreparable loss and injury in his favour.

Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others PLD 1976 Kar. 181; Syed Ahmad Shah v. Lal Khan and 8 others 1999 CLC 1044; Irshad Hussain v. Province of Punjab and others PLD 2003 SC 344; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Jamil Ahmad v. Provincial Government of West Pakistan and 4 others PLD 1982 Lah. 49 ref.

Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492; Haji Gul Muhammad Haji Ismail and others v. Munawar Ali Khan and others 1987 MLD 2828 and Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lah. 82 rel.

Muhammad Shahzad Shaukat for Petitioners.

Ch. Abdul Haque Sindhu for Respondent No.1.

CLC 2005 LAHORE HIGH COURT LAHORE 935 #

2005 C L C 935

[Lahore]

Before Muhammad Akhtar Shabbir, J

Ch. MUHAMMAD AFZAL---Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary, Irrigation and Power Department, Lahore and 4 others---Respondents

Writ Petition No.11148 of 2002, decided on 21st March, 2005.

Canal and Drainage Act (VIII of 1873)---

----Ss. 4 & 68---Constitution of Pakistan (1973), Arts.129 & 199---Notification altering local limits of Sub-Divisional Canal Officer for purposes of S.68 of Canal and Drainage Act, 1873 issued by Secretary Irrigation of Provincial Government---Validity---Governor could exercise executive authority of the Province or all executive actions would be taken in his name---Impugned notification had not been issued by Governor or in his name---No proof on record to show that Governor had vested his authority under S.4 of Canal and Drainage Act, 1873 to the Secretary---High Court accepted Constitutional petition while declaring issuance of impugned notification to be illegal and without lawful authority.

Messrs Al-Noor Textile Mills Limited and another v. Additional Chief Secretary, Housing Town Planning Local Government and Rural Development Department, Government of Sindh and 3 others 1992 MLD 654; Sh. Akbar Hussain v. Government of the Punjab NLR 1986 Civil Case 565; Salimullah Khan and 10 others v. Raqib Khan and 15 others 1989 SCMR 1879 and Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224 rel.

Ch. Muhammad Zahoor Nasir for Petitioner.

Ch. Muhammad Suleman, Addl. A.-G. for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 939 #

2005 C L C 939

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ARSHAD---Petitioner

versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, LAHORE and 4 others---Respondents

Writ Petition No.4800 of 2005, decided on 30th March, 2005.

(a) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----R. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Aggrieved person---Auction---Mere possibility of bidding out the auction without actual participation conferred no locus standi to file Constitutional petition---Prospective/potential bidder who had not joined the auction proceedings, could not be treated as an "aggrieved person" to maintain a Constitutional petition under Art.199 of the Constitution---If such persons were allowed to challenge the approval of highest bids coming out of open auction after due publication, sanctity attached to the official acts will lose its worth in the eyes of public at large and they will prefer not to participate in such proceedings in future.

Nisar Ahmad and others v. Additional Secretary, Food and Agricultural Government of Pakistan 1979 SCMR 389; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577 and Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 ref.

(b) Punjab Local Government (Auctioning of Collection Rights), Rules, 2003---

----R. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-auction---Petitioner, in the present case, had not participated in the re-auction but had challenged the same in Constitutional petition on technical ground---Non mentioning the reserved price in the notice of re-auction was not a defect of such nature that on the basis of which the entire activity of re-auctioning be annulled---Such a lapse was mere accidental/procedural and could not be given any credence especially when the highest bid was 50% over and above the last year's income and above all the auction proceedings conducted were absolutely transparent and the petitioner could not point out any malice, unfairness or favouritism in those proceedings as these were scanned by the general house of Town Municipal Administration while according sanction in the meeting of the Town Council---All the necessary documents including agreement between parties were executed and the successful bidder had entered into the job since July, 2004 and at this juncture pulling carpet from his feet, could not be justified on the basis of any law or canon known for administration for justice---Petitioner, in the present case, having no cause of action to file an appeal before the Secretary, Local Government of the Province and at the same time he being not an aggrieved person within the meaning of Art.199 of the Constitution, his petition was not maintainable besides being devoid of any force and was dismissed.

Ashtar Ausaf Ali for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 943 #

2005 C L C 943

[Lahore]

Before Muhammad Sayeed Akhtar, J

PUNJAB COOPERATIVE BOARD OF LIQUIDATION, LAHORE---Petitioner

versus

Messrs AVANTI LTD. through Director and another---Respondents

Writ Petitions Nos.4146 and 4197 of 1995, decided on 8th April, 2005.

(a) Punjab Cooperative Societies and Co-operative Banks (Repayment of Loans) Ordinance (XIV of 1966)---

----S. 8---Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993), S.7(v)---Cooperative Societies Act (VII of 1925), S.54---Conversion of proceedings pending under Punjab Cooperative Societies and Cooperative Banks (Repayment of Loans) Ordinance, 1966 into proceedings under S.54, Co-operative Societies Act, 1925---No provision existed in Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 ousting the jurisdiction of the Secretary Co-operatives to hear appeals against the awards under S.54 of the Cooperative Societies Act, 1925.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7(v), 11 & 17---Punjab Co-operative Board for Liquidation can refer a case for the execution of any decree, order or Award passed in favour of an Undesirable Society to the Cooperative Judge who may dispose the same or otherwise deal with it in accordance with such procedure as may be prescribed---By no stretch of imagination can S.7(v) of the Act be extended to conferring power on the Cooperative Judge to hear the appeal against the award given by the Registrar of Co-operatives---Provision of S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 provides that a person aggrieved of an act or decision of the Cooperative Board may apply to the Cooperative Judge, who may confirm, reverse or modify the act or decision complained against and make such order as he may think just in the circumstances of the case---Cooperative Judge can be approached against the act or decision of the Cooperative Board and not against the Award of the Registrar of Co-operatives.

----S. 17---Exclusive jurisdiction of the Co-operative Judge---Jurisdiction of all other Courts is ousted in respect of matter which a Co-operative Board and the Co-operative Judge is empowered to determine---Co-operative Judge has no jurisdiction to hear the appeals against the Awards pronounced by the Arbitrator---Appeal being a creation of the statute, is a substantive right and not a mere matter of procedure---Right of appeal from any decision of any Tribunal must be given by express enactment.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; I.C.I. Pakistan Limited v. Salahuddin and others PLD 1991 SC 15; and Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others PLD 1995 SC 418 ref.

(d) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----Ss. 7, 11 & 17---Cooperative Societies Act (VII of 1925), Ss.64 & 54---Jurisdiction of Secretary Cooperatives to hear appeals under S.64, Cooperative Societies Act, 1925 is still intact---Principles.

Muhammad Ilyas Khan for Petitioner.

Sayyed Najamul Hassan Kazmi for Respondents.

Date of hearing: 24th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 950 #

2005 C L C 950

[Lahore]

Before Sh. Azmat Saeed, J

PAK KUWAIT TEXTILES LTD. JAUHARABAD DISTRICT KHUSHAB---Petitioner

versus

TOWN COMMITTEE, HADALI through Administrator and 2 others---Respondents

Civil Revision No.489 of 1999, heard on 3rd February, 2005.

Punjab Local Councils (Taxation) Rules, 1980---

----Rr. 3, 4 & 5---Punjab Local Government Ordinance (VI of 1979), S.3(1)(ii)---Non-publication of tax proposals for every tax and every financial year---Effect---Held, there could be no escape from the fact that the tax proposals must be for each financial year and thereafter such taxation proposals must be published and objections invited in terms of Rr.4 & 5, Punjab Local Council (Taxation) Rules, 1980---Taxation proposals, in the present case, were neither prepared nor published nor objection solicited and received---When a law required specified formalities to be fulfilled before imposing any tax, such provisions were deemed to be mandatory and non-compliance thereof would render the entire proceedings including the levy of tax to be void---Rules 3, 4 & 5 of the Punjab Local Councils (Taxation) Rules, 1980 being mandatory, failure to comply with the same would render the tax imposed as invalid and void.

Rauf Trading Company Limited v. Faisalabad Municipal Corporation through Mayor and others 1990 CLC 1732; I.C.I. Pakistan Limited v. Zila Council Jhelum through its Chairman and others 1992 CLC 458 and Galxo Laboratories (Pakistan) Limited v. Union Council, Dulu Khurd through Chairman and 4 others 1991 CLC 354 ref.

Mehmood A. Sheikh for Petitioner.

Malik Muhammad Imtiaz Mahil for Respondent No.1.

Fauzi Zafar, A.A.-G. for Respondents Nos.2 and 3.

Date of hearing: 3rd February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 955 #

2005 C L C 955

[Lahore]

Before Syed Hamid Ali Shah, J

Rana ISHTIAQ AHMAD---Petitioner

versus

M.H. INDUSTRIES (PVT.) LTD. FAISALABAD through Chief Executive---Respondent

Civil Revision No.331 of 2005, decided on 28th February, 2005.

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

----Art. 129(e)---Judicial proceedings recorded in open Court by its Presiding Officer---Presumption---Credibility would be attached to proceedings before a judicial forum---Strong and unimpeachable evidence would be needed to rebut such presumption---Such proceedings could not be altered on basis of affidavits to the contrary filed by a party or his counsel---Such course of action, if adopted might lead to a number of complications.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 and Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 rel.

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

----Art. 114---Party persuaded Court to adopt a specific procedure for decision of case---Effect---Such party, after having an adverse order against him, could not come forward with a plea that such adopted procedure was illegal.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 and Shakirullah v. Hadayatullah and 3 others 1999 MLD 389 ref.

M.M. Alam Chaudhry, Advocate.

CLC 2005 LAHORE HIGH COURT LAHORE 959 #

2005 C L C 959

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AFZAL MAQSOOD KHAN---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION TIBBI, LAHOREand 4 others---Respondents

Writ Petition No.4929 of 2005, heard on 5th April, 2005.

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

----Ss. 18, 54(n) & 76(g)---Constitution of Pakistan (1973), Art.199---Permission granted by Nazim, Union Council to hold a fair within its local limits---Intervention by District Nazim in holding such fair---Validity---Permission granted to District Nazims by Provincial Government could not deprive petitioner of his right granted by Nazim, Union Council under S.76(g) of the Punjab Local Government Ordinance, 2001---District Nazim had no power to grant permission to hold fairs as same had been expressly conferred upon Union/Tehsil Administration and Town Municipal Administration---Home Department of Provincial Government could not confer a power, which was not granted by statute---High Court declared permission granted by Nazim, Union Council to be valid while directing respondents not to interfere in execution thereof.

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

----Preamble, Ss.2(vi)(vii)(xvi) & 12---Punjab Local Government Ordinance, 2001---Purpose---To devolve political power downwards, decentralize administration and financial authority---Different Councils and Administrations were provided for each local areas and all of them were assigned different functions and vested with different powers under relevant sections of Ordinance, 2001.

Malik Saeed Hassan for Petitioner.

Khursheed Anwar Bhindar, Addl. A.-G. along with Zubair Khalid Chaudhry and Maqsood, Inspector for Respondent.

Date of hearing: 5th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 964 #

2005 C L C 964

[Lahore]

Before Nazir Ahmed Siddiqui and Sh. Hakim Ali, JJ

Messrs QUALITY WEAVING MILLS LTD.---Appellants

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Intra-Court Appeal No.40 of 2005, decided on 21st March, 2005.

Constitution of Pakistan (1973)---

---- Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal--- Constitutional petition--- Maintainability---Contractual obligations and complicated and disputed questions of facts were involved---Constitutional petition, in circumstances, could not be considered as an appropriate remedy and party had to seek alternate, efficacious and proper remedy of civil suit---Contractual obligations or question arising from a contract were to be resolved through Civil Court because material facts were alleged by one party while the other denied those facts and in such an event, the best and proper forum was Civil Court for adjudication of factual as well as legal disputes/controvercies---Question of mala fide, in the present case, revolved around foundation of laying facts before a Court of law, it was therefore, not a simple case of admitted facts upon which mala fide in law could be determined---Order passed by Single Judge could not be reversed in Intra-Court Appeal and case was not a fit one for interference into judgment of Single Judge---Appellant had rightly been directed to seek remedy through Civil Court, if, so advised.

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Dr. Fozia Amber v. Government of Punjab and others PLD 2003 Lah. 741; Mirza Zafar Ali and 4 others v. Member (Revenue) Board of Revenue Punjab and 2 others 1990 CLC 1772; Islamia University, Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141; Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224; Federal Government Employees Housing Foundation v. Muhammad Akram Alizai Deputy Controller P.B.C. Islamabad PLD 2002 SC 1079; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; Pakistan Medical Association, Karachi v. Government of Sindh and 5 others 1979 CLC 382; Khizar Hayat and others v. Municipal Corporation, Faisalabad and others 2000 CLC 1374; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Dr. Zaheer Nasir and others v. Karachi Development Authority and others PLD 2000 Kar. 168; Mehboob Ali Malik v. Province of West Pakistan PLD 1963 Lah. 575; Central Board of Revenue and others v. Shakeel Brothers and others 1998 SCMR 237; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595; Vincent and others v. The Karachi Development Authority and others 1992 CLC 518; Ijaz Ahmed and others v. The State and others PLD 2001 Lah. 94; Tata Engineering and Locomotive Co. Ltd. v. The Assistant Commissioner of Commercial Taxes and another AIR 1967 SC 1401; Messrs Mahabir Prasad Santosh Kumar v. State of U.P. and others AIR 1970 SC 1302; Haji Noor Muhammad and another v. K.D.A. and others PLD 1975 Kar. 373; Arshad Mahmood v. Director-General, Lahore Development Authority and 2 others 1993 CLC 376; Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 and Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 ref.

M. Sohail Iqbal Bhatti for Appellant.

Qamar-uz-Zaman Butt for Respondent No.5.

CLC 2005 LAHORE HIGH COURT LAHORE 970 #

2005 C L C 970

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD KHALID and another---Petitioners

Versus

MUHAMMAD IQBAL and another---Respondents

Civil Revision No.2339 of 2002, heard on 24th March, 2005.

(a) Question of law---

----Question of law could be raised at any stage.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 rel.

(b) Administration of justice---

----Law must be written on the sleeves of Judge---Non-citing law by counsel of parties before Court would be no excuse.

Mst. Salma Afrozes case PLD 1992 SC 263 rel.

----O. XIV, Rr.1, 2 & 3---Issues of law and fact, framing of---Principles---Duty of Court and parties---Fundamental duty of Trial Court is to settle proper issues for its decision on basis of divergent pleadings of parties---In case of omission by Court, party would be equally responsible to invite its attention for supplying deficiency---Each material proposition should be reflected in distinct issue instead of joint issues---Point raised in one issue should not be stretched in other issue---Absence of material issue would cause prejudice to either side---Issues of law and fact should be clearly illustrated enabling parties to understand the points in issue and support their respective claims by relevant evidence on all material points---Failure of parties to press an issue, would be no ground for not framing proper issue---Objection with regard to an improperly framed issue could be raised by a party at any stage.

Major (Retd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316; Muhammad Ismail v. Mukhtar Ahmad and another 1994 MLD 402; Ghulam Ali v. Muhammad Hussain Kathawala PLD 1985 Kar. 152; Faiz Muhammad Khan v. Syed Qabil Shah PLD 1949 Pesh. 5; Azizur Rehman v. L.D.A. 1985 CLC 2028; Naseem Sadiq v. Ghulam Ghause 1980 CLC 286; Gul Nawaz v. Gul Bazar and others 1996 MLD 1406; Rehmat Khan v. Iftikhar Ahmad and 8 others 1991 MLD 981; Dr. Sajjad Ahmad v. Dr. Muhammad Bashir PLD 1979 Lah. 304; Gul Baz v. Abdur Raziq PLD 1985 Pesh. 38; Fazal Mahmood and others v. Tajar Khan 1992 MLD 1439; Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others PLD 1961 Dacca 65; Raja Ghulam Haider v. Major (Retd.) Jamshed Alam Khan 1991 MLD 1284; Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448; Roazi Khan and others v. Nasir and others 1997 SCMR 1849 and Mansab Ali v. Nawab and others 1994 CLC 2208 rel.

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

----S. 99 & O.XIV, Rr.1, 2---Omission of Court to frame issue---Validity---Party would not be penalized for such omission by Court---Party would be prejudiced by such omission, which being an irregularity not curable under S.99, C.P.C.

Azizur Rehman v. L.D.A. 1985 CLC 2028 and Sardar Khan v. Muhammad Jan and others 1997 CLC 361 rel.

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

----O. XIV, R.1, O.XVIII, R.2 & O.XX, R.5---Framing of issues---Object stated.

The object of framing of issues is to ascertain real issue between the parties by narrowing down the area of conflict and determine between the parties, where they differ coupled with the fact that the framing of issues is one of the most important stage of the trial in view of O.XVIII, R.2, C.P.C. read with O.XX, R.5 and O.XIV, R.1, C.P.C.

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

----S. 12---Civil Procedure Code (V of 1908), O.XIV, Rr.1 & 3---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement to sell---Dismissal of suit on ground of limitation in absence of any issue regarding thereto---Appellate Court upheld such dismissal---Validity---Defendant had raised nine preliminary objections in written statement, but Trial Court had framed one omnibus issue without highlighting the real controversy between parties---Plaintiff had been prejudiced by such omission of Trial Court---Defendant had not produced evidence that suit was time-barred---Fact of non-framing of proper issues by Trial Courts was not noted by Appellate Court---Failure of Courts below to discharge their duties in terms of law laid down by superior Courts would be termed as material irregularity---High Court set aside judgment/decree of Appellate Court by remanding case thereto to frame issues in clear terms on basis of divergent pleadings of parties and then proceed in the matter in accordance with law either to record evidence itself or send case to Trial Court for its decision in terms of additional issues framed by Appellate Court after recording evidence of parties.

Muhammad Anwar v. Bahan 2000 YLR 378; Ch. Zia Ilahi, Advocate v. Khushi Muhammad PLD 1999 Lah. 238; Abdul Hamid v. Abbas Bhai PLD 1962 SC 1; Ashfaque Ahmad Sheikh v. The State PLD 1972 SC 39 and Kaniz Fatima v. Sh. Muhammad Sohail 2002 CLC 923 ref.

Kanwal Nains case PLD 1983 SC 53 and Shaukat Nawazs case 1988 SCMR 851 rel.

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

----S. 115---Failure of Courts below to follow law laid down by superior Courts---Effect---Such failure would be termed as material irregularity.

Kanwal Nains case PLD 1983 SC 53 and Shaukat Nawazs case 1988 SCMR 851 rel.

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

----S. 115---Concurrent findings of fact by Courts below being in violation of parameters prescribed by superior Courts---Validity---High Court had ample jurisdiction to interfere in such findings.

Sh. Abdul Aziz for Petitioners.

Ali Akbar Qureshi for Respondents.

Date of hearing: 24th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 978 #

2005 C L C 978

[Lahore]

Before Nazir Ahmed Siddiqui and Sh. Hakim Ali, JJ

YAMIN---Appellant

Versus

Mst. JAJAN and others---Respondents

Intra-Court Appeal No.184 of 2004, decided on 21st March, 2005.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court Appeal---Scope---Wisdom for providing Intra-Court Appeal against an order passed in Constitutional jurisdiction of High Court was for bringing another finding from a second Court so that no wrong/mistake/error/omission should remain in the field and the parties be given full opportunity of hearing and adjudication by at least two authorities/forums or Courts---Appeal being the first remedy provided to a party, therefore, after second remedy of Constitutional petition, seeking a third finding/judgment through Intra-Court Appeal had been closed by Legislature in its wisdom---Power of Intra-Court Appeal could not be exercised in case where a remedy of appeal/revision/review/ representation was available against original order---Intra-Court Appeal being not maintainable, was dismissed.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Bassi v. Qasim Ali and others 1998 SCMR 13; Mst. Wazir Begum and others v. Member, Board of Revenue/Chief Settlement Commissioner and others 2000 SCMR 989; Basai v. Qaim Ali and 8 others PLD 2003 SC 325 and Province of Sindh through Chief Secretary, Sindh v. Gul Muhammad Hajano 2003 SCMR 325 ref.

Athar Rehman Khan for Appellant.

Muhammad Amir Bhatti for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 983 #

2005 C L C 983

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. HUMA BILAL‑‑‑Appellant

Versus

GHULAM FARID‑‑‑Respondent

S.A.O. No.33 of 2000, heard on 9th March, 2005.

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

‑‑‑‑Ss. 13(2)(i) & 13-A‑‑‑Transfer of ownership‑‑‑Intimation to tenant in writing of such transfer through registered post‑‑‑Effect‑‑‑Tenant, if paid entire rent due within 30 days of receipt of such intimation, would not be deemed to have defaulted in payment of rent for purposes of S.13(2)(i) of West Pakistan Urban Rent Restriction Ordinance, 1959.

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

‑‑‑‑Ss. 13(2)(i) & 13‑A‑‑‑Default in payment of rent‑‑‑Transfer of ownership‑‑‑Service of notice on tenant about such transfer‑‑‑Payment of rent to previous owner and then its deposit in Court even after receipt of notice by tenant‑‑‑Non‑deposit of arrears of rent by tenant after filing reply to ejectment petition‑‑‑No explanation on record as to why after receipt of notice, rent was not deposited in favour of petitioner‑‑‑No explanation on record as to why after petting in appearance in ejectment proceedings, no attempt was made to deposit rent for disputed period‑‑Section 13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 would benefit such tenant who, after receipt of notice, deposited entire rent due within 30 days‑‑‑Deposit in favour of previous owner could not be deemed to be a deposit in favour of petitioner‑‑‑Tenant was defaulter within meaning of S.13(2)(i) read with S.13‑A of Ordinance, 1959.

Mst. Bushra Fayaz v. Ismail 1987 CLC 390; Muslim Commercial Bank Ltd. and another v. Additional District Judge, Faisalabad and 7 others 1985 CLC 1854; Qaisar Zamani v. Rasheeda Begum and 2 others 1985 CLC 596 and Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232 ref.

Major (Retd.) Muhammad Yousaf v. Mehraj‑ud‑Din and others 1986 SCMR 751; Syed Azhar Imam Rizvi v. Mst. Salama Khatoon 1985 SCMR 24 and Suleman, and another v. M.A. Mallick 1988 SCMR 775 rel.

-‑‑Ss. 13(2)(i) & 13‑A‑‑‑Transfer of ownership‑‑‑Ejectment petition as notice of such transfer of tenant‑‑‑Scope‑‑‑If service of a notice under S.13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 was not proved, then filing of ejectment petition itself would be a notice‑‑‑If thereafter entire rent due was not paid to new landlord, then tenant could be ejected on ground of default‑‑‑Appeal against ejectment order was dismissed.

Major (Retd.) Muhammad Yousaf v. Mehraj‑ud‑Din and others 1986 SCMR 751 and Syed Azhar Imam Rizvi v. Mst. Salama Khatoon 1985 SCMR 24 and Suleman and another v M.A Mallick 1988 SCMR 775 fol.

Mian Habib‑ur‑Rehman Ansari for Appellant.

Mirza Aziz Akbar Baig for Respondent.

Date of hearing: 9th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1039 #

2005 C L C 1039

[Lahore]

Before Muhammad Nawaz Bhatti, J

MEHREEN ZAIDI‑‑‑Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES and others‑‑‑Respondents

Writ Petitions Nos. 1436 and 1690 of 2005, heard on 19th April, 2005.

Educational Institution‑‑‑

‑‑‑‑Petitioners passed their written examination obtaining very good marks in final first annual M.B.,B.S. examination, but were declared fail in clinical part of the practical examination in ENT Subject as they had secured 18 and 21 out of 50 marks respectively whereas according to Regulations For Examination, 50% marks were required to pass in said subject‑‑‑Regulations were approved by Board of Governors of the University of Health Sciences on recommendation of Syndicate and Academic Council in its meeting‑‑‑Change in old system was brought to the notice of Principal of concerned college before start of Final Professional M.B.,B.S. Annual Examination, 2004‑‑‑Held, it was not proper, in circumstances to issue a direction to the Authorities to compile result of petitioners according to old System.

Miss Fozia Mir v. Controller of Examination 1995 CLC 1147 and University of the Punjab and others v. Dr. Aamer Mahmood Ijaz 1999 SCMR 49 ref.

Malik Muhammad Rafique Rajwana and Ghulam Qasim Rajwana for Petitioner.

Muhammad Sarwar Bhatti, A.A.‑G. far Respondent.

Muhammad Asif Ismail for Respondents Nos. 1 and 2.

Sh. Sajjad Ahmad for Respondent No.3.

Muhammad Ramzan Khalid Joyia for Respondent No.5.

Respondent No.5 also in person.

Date of hearing: 19th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1049 #

2005 C L C 1049

[Lahore]

Before Muhammad Nawaz Bhatti, J

KHAIRAT MUHAMMAD ‑‑‑Petitioner

Versus

JUDGE, FAMILY COURT‑‑‑Respondent

Writ Petition No.6659 of 2005, decided on 31st March, 2005.

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

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Interlocutory orders‑‑‑Closing of evidence‑‑‑Suit for dissolution of marriage was filed by wife on the ground of attaining puberty‑‑Husband submitted his written statement and evidence of wife was completed‑‑‑Despite five opportunities were given to husband, he failed to produce his evidence‑‑‑Family Court closed the right of evidence of husband and adjourned the case for further proceedings‑‑‑Validity‑‑Family Court was justified in closing the right of evidence of husband because West Pakistan Family Courts Act, 1964, was a brief enactment aimed at securing expeditious disposal of matrimonial disputes and there was no provision‑ therein to the effect that the evidence of a party would not be closed in any case‑‑‑Order passed by Family Court was interlocutory order and the same could hot be allowed to be taken exception to in Constitutional jurisdiction because it would only linger on the matter‑‑‑High Court in exercise of Constitutional jurisdiction, declined to interfere with the order passed by Family Court as the same was interlocutory in nature‑‑‑Petition was dismissed in circumstances.

Khalid Akhtar v. Mst. Robina and others 1991 MLD 2349; Malik Furkan Ahmad v. Judge, Family Court, Lahore and another 2003 MLD 1641; Maqsood Ahmed v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 and Syed Shaukat Abbas v. Mst. Bushra Rani and another PLD 1982 Lah. 281 ref.

Rashid Ahmad v. Soofi Muhammad Saleem PLD 1976 Lah. 1450 rel.

Abid Hussain Bhutta for Petitioner.

Muhammad Ishfaq Chaudhry for Respondent.

Date of hearing: 31st March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1055 #

2005 C L C 1055

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD SADIQ‑‑‑Petitioner

Versus

MUHAMMAD ALAM and 2 others‑‑‑Respondents

Writ Petition No.3714 of 2005, decided on 14th April, 2005.

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

‑‑‑‑S. 151‑‑‑Inherent powers of the Court‑‑‑Scope‑‑‑Every power exercisable by the Court would flow from the law applicable‑‑‑Section 151, C. P. C. i.e. the inherent powers of the Court, only recognized such powers of the Court as existed under the law‑‑‑Subordinate Courts, in the garb of inherent powers could not be let loose to pass any order or to do anything which might not even be permissible by the law or contemplated by the law.

(b) Administration of justice‑‑‑

‑‑‑Judge ought not lay down moral standards to make any disparaging remarks against a person who was neither a parry nor a witness in the case‑‑‑Duty of Court illustrated.

Malik Firoz Khan Noon v. The State PLD 1958 SC (Pak.) .333 ref.

Ch. Muhammad Abdullah for Petitioner.

Saleem Khan Chichi and Aamir Rehman, Addl. A.‑G. Punjab for Respondents.

Date of hearing: 14th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1062 #

2005 C L C 1062

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL SHAKOOR and 7 others‑‑‑Petitioners

Versus

FAUJA and another‑‑‑Respondents

Civil Revision No.339‑D of 1998, heard on 16th March, 2005.

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

‑‑‑‑O.IX, Rr.8, 9 & O.XXII, R.3‑‑‑Non‑appearance of plaintiff on a date fixed for filing of amended plaint to implead legal heirs of a party‑‑Dismissal of suit for non‑prosecution‑‑‑Application for restoration of suit was dismissed by Trial Court and Appellate Court‑‑‑Validity‑‑‑Case had not been fixed for hearing‑‑‑Legal heirs of deceased plaintiffs had already been brought on record during course of earlier revision, thus, there was no need to implead them again in the main suit‑‑‑Duty of Court was to issue such directions after applying a conscious mind to facts on record‑‑Trial Court had not applied its mind to determine as to what was to be done in the suit‑‑‑High Court accepted revision, set aside impugned order and allowed such application.

Meer Ghulam Abbas and others v. Hashim and others 1969 SCMR 257; Zakria Begum v. Aziz Ahmad and others 1986 CLC 2410(2) and Ch. Meraj Din v. Mst. Zohra Begum PLD 1981 Lah. 451 fol.

(b) Administration of justice‑‑‑

----Issuance of directions by Court‑‑‑Essentials‑‑‑Court must pass an order after applying a conscious mind and then issue directions.

‑‑‑‑S. 115 & O.XXII, Rr.3, 4‑‑‑Legal heirs of a party impleaded during course of revision‑‑‑Effect‑‑‑When legal heirs were impleaded at any stage of proceedings, then there would be no requirement at all of impleading them again in main suit.

Meer Ghulam Abbas and others v. Hashim and others 1969 SCMR 257; Zakria Begum v. Aziz Ahmad and others 1986 CLC 2410(2) and Ch. Meraj Din v. Mst. Zohra Begum PLD 1981 Lah. 451 fol.

Syed Muhammad Ali Gillani for Petitioners.

Ch. Muhammad Siddique for Respondents.

Date of hearing: 16th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1066 #

2005 C L C 1066

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

ZAHRA HANIF‑‑‑Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL (P.M.D.C.), and 2 others‑‑‑Respondents

Writ Petitions Nos. 195 and 196 of 2005, heard 6th April, 2005.

(a) Pakistan Medical and Dental Council Regulations‑‑‑

‑‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑M.B.,B.S. Doctor, registration as‑‑‑Petitioners in years 1998 and 1999 secured admission in Medical College and obtained certificates from University after qualifying M.B.,B.S. examination‑‑‑Refusal of Pakistan Medical and Dental Council to allow petitioners to practice as Doctor on the ground that they having secured less than 60% marks in F.Sc. (Pre-Medical) were not eligible to secure admission in Medical College‑‑Validity‑‑‑Petitioners had secured admission in years 1998 and 1999‑‑Council had approved its Regulations in year 2003‑‑‑Council had no lawful authority to take away vested right of petitioners through a Regulation by giving thereto retrospective effect‑‑‑High Court accepted Constitutional petition and set aside impugned order after declaring same to be without lawful authority.

Pakistan through Secretary v. Salahuddin PLD 1991 SC 546 and Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 rel.

(b) Pleadings‑‑‑

‑‑‑‑ Parties would be bound by their pleadings.

Mst. Murad Begum's case PDL 1974 SC 322 rel.

‑‑‑ Nobody should be allowed to approbate and reprobate‑‑‑Estoppel.

Wajeeh‑ud‑Din Pervez for Petitioner.

Rao Saeed Ahmed for Respondent No. 1.

Rasal Hassan Syed for Respondent No.2.

Iqbal Mehmood Awan for Respondent No.3.

Muhammad Hanif Khatana, Addl. A.‑G.

Date of hearing: 6th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1069 #

2005 C L C 1069

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and others‑‑‑Respondents

Writ Petition No. 11680 of 2004, decided on 30th July, 2004.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 92‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Recall motion‑‑‑Petitioner, Naib Nazim of Union Council, had sought recall motion against him, approved by House of Union Council, to be declared void‑‑‑Grievance of petitioner primarily was that no confidence motion against him was initiated without fulfilling prerequisites of S.92 of Punjab Local Government Ordinance, 2001 including lack of notice and providing him a right of addressing the house‑‑‑Respondents who were mover of no confidence motion had offered that impugned resolution could be annulled subject to keeping recall motion alive, which could be directed to be put to the House again where petitioner would have a right to face the same‑‑‑Such offer of respondents was acceptable to the petitioner‑‑‑Person not holding confidence of the House should not remain as elected office‑bearer, in view of concurrence between parties, Constitutional petition filed by petitioner was accepted and resolution of recall motion against the petitioner was declared as void and non‑existent with the result that recall motion of respondents would be deemed to be pending and motion would be put to the House for voting and other formalities after notice to all members of Union Council accordingly.

Muhammad Shan Gul for Petitioner.

Najma Rashid for Respondents Nos. 1 to 3.

Date of hearing: 30th July, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 1070 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

CLC 2005 LAHORE HIGH COURT LAHORE 1075 #

2005 C L C 1075

[Lahore]

Before Parvez Ahmad, J

ALLAH NAWAZ and others‑‑‑Petitioners

Versus

MUSA ‑‑‑Respondent

Civil Revision No. 1706 of 2002, decided on 12th November, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. 2‑‑‑Suit for recovery of amount‑‑‑Plaintiffs brought a suit for recovery of amount with assertion that ‑ defendant, who was in possession of property as a lessee, had failed to make payment of lease amount‑‑‑Trial Court decreed suit, but on appeal decretal sum was reduced from Rs.15,537.50 to Rs.9,000‑‑‑Plaintiff assailed legality and validity of order of Appellate Court in revision‑‑‑Validity‑‑‑Defendant in his cross‑examination had admitted that plaintiffs had not filed any suit for recovery of money for the lease period which had been paid by him which clearly meant that suit filed by plaintiffs was with regard to lease money which had not been paid by defendant‑‑‑Suit of plaintiffs, in circumstances was liable to be decreed for entire amount and judgment of Appellate Court, in that context was not liable to be maintained‑‑Allowing revision, by High Court; judgment and decree of Appellate Court, were set aside and those of Trial Court were maintained.

Zafar Iqbal Chohan for Petitioners.

Nemo for Respondent.

Date of hearing: 12th November, 2003.

CLC 2005 LAHORE HIGH COURT LAHORE 1083 #

2005 C L C 1083

[Lahore]

Before Nazir Ahmad Siddiqui and Sh. Javaid Sarfraz, JJ

PROVINCE OF PUNJAB through District Collector Lodhran and 6 others‑‑‑Appellants

Versus

MUHAMMAD KHALID KHAN‑‑‑Respondent

R.F.A. No.52 of 2002, heard on 7th February, 2005.

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

‑‑‑‑S. 96 & O.XLI, R.3‑‑‑Limitation Act (IX of 1908), Art.156‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Chap.1‑A, R.5 & Chap.3, R.8‑‑‑Appeal‑‑‑Limitation‑‑‑Office objection raised after filing of appeal within limitation period‑‑‑Non‑issuance of notice to appellant by Office for removal of objection‑‑‑Re‑filing of appeal after removal of objection‑‑‑Appeal was not barred by limitation.

Mst. Sabiran Bibi v. Ahmad Khan 2000 SCMR 847 rel.

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

‑‑‑‑Ss. 18 & 23‑‑‑Civil Procedure Code (V of 1908), O.VIII, R.5‑‑Constitution of Pakistan (1973); Art.25‑‑‑Land acquisition‑‑Compensation enhancement of‑‑‑Award of compensation to landowner by Referee Court at higher rate than the one at which identical land was acquired‑‑‑Validity‑‑‑Landowner in petition under S.18 of Land Acquisition Act, 1894 had specifically asserted that his land was identical to other land acquired at higher rate ‑‑‑Authorities in its reply had admitted award of such higher compensation, but had not denied landowner's assertion that his land was of same kind‑‑‑Landowner's such assertion would be deemed to have been admitted by authorities‑‑‑Fact admitted need not be proved‑‑‑Such was a clear case of discrimination violating rights guaranteed to landowner under Art.25 of the Constitution‑‑‑High Court dismissed appeal in circumstances.

Inam Naqshaband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 rel.

Muhammad Yousaf Syed for Appellants.

Ch. Muhammad Shafi Meo for Respondent.

Date of hearing: 7th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1087 #

2005 C L C 1087

[Lahore]

Before Sardar Muhammad Aslam, J

JALAL KHAN‑‑‑Petitioner

Versus

NAWAZISH ALI and others‑‑‑Respondent

Civil Revision No.348‑D of 1997, decided on 3rd November, 2003.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 2(d), 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Sale‑‑Meaning of‑‑‑Sale in respect of suit‑land to all intents and purposes took place on 17‑3‑1993 when consideration amount was paid and statements of vendor and vendee were recorded, though mutation of the sale was attested subsequently on 28‑4‑1993‑‑‑"Sale" as defined in S.2(d) of Punjab Pre‑emption Act, 1991 was permanent transfer of ownership of immovable property in exchange for a valuable consideration and it had got no reference to attestation of mutation or registered deed‑‑‑Section 13(2) of Punjab Pre‑emption Act, 1991 had provided that when fact of sale would come within knowledge of pre‑emptor through any source, he would make Talb‑i‑Muwathibat‑‑‑ Plaintiff had rightly performed Talb‑i-Muwathibat on acquisition of knowledge on 20‑3‑1993 with regard to sale which had taken place on. 17‑3‑1993 and issued notice of Talb‑i‑Ishhad on 1‑4‑1993 though mutation in respect of said sale was sanctioned on 28‑4‑1993‑‑‑Vendees did not deny receipt of consideration amount and statement recorded on 17‑3‑1993 for transfer of suit‑land‑‑-Sale, in circumstances was complete in all respect on the day when statements of parties to transaction were recorded by Revenue Officer‑‑‑Terminus quo for purpose of Talb‑i‑Muwathibat was that knowledge of oral sale, completed on recording of statement of vendor and vendee on payment of consideration amount before Revenue Officer and not date of sanction of mutation‑‑‑Appellate Court was not justified to dismiss suit on ground that Talbs were not made by plaintiff according to law‑‑‑Impugned judgment and decree of Appellate Court were set aside by High Court in revision.

Jangi v. Jhanda and others PLD 1961 (W.P.) B.J. 34; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070 and Fazal Rehman and others v. Abdul Qayyum 1996 SCMR 1201 ref.

Mazhar Masood Khan for Petitioner.

S.M. Ayub Bukhari for Respondents.

Dare of hearing: 3rd November, 2003.

CLC 2005 LAHORE HIGH COURT LAHORE 1092 #

2005 C L C 1092

[Lahore]

Before Maulvi Anwarul Haq, J

SARDAR MUHAMMAD and another‑‑‑Appellants

Versus

NOOR AHMAD and 3 others‑‑‑Respondents

R.S.A. No.28 of 1996, heard on 3rd March, 2005.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), Ss.96 & 100‑‑‑Suit for specific performance of agreement to sell‑‑‑Non‑impleading of one of the vendors/defendants as party in first and second appeals filed against decree passed in such suit‑‑‑Effect‑‑‑Such vendor was a necessary party to appeal whose non‑impleading would be fatal.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement to sell immovable property‑‑‑Date fixed in agreement for its performance‑‑‑Extension of time by vendor‑‑‑Such date was never intended to be the essence of agreement.

Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1865 SC 690 and Mst. Ghulam Jannat by Legal Heirs and another v. Allah Ditta 2003 YLR 981 ref.

Muhammad Amir Bhatti for Appellants.

Syed Muhammad Ali Gilani for Respondents.

Date of hearing: 3rd March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1097 #

2005 C L C 1097

[Lahore]

Before Fazal‑e‑Miran Chauhan, J

UMER FAROOQ‑‑‑Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Highways Department, Punjab, Lahore and 4 others‑‑‑Respondents

Writ Petition No.2489 of 2001, decided on 24th February, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Power of High Court to issue directions to public functionaries‑‑‑Extent‑‑‑Duty of public functionaries was to act strictly in accordance with law and perform their duties with due diligence‑‑‑High Court had ample powers to direct public functionaries to perform their duties.

H.M. Rizvi's case PLD 1981 SC 612 rel.

Sardar Balakh Sher Khan Khosa for Petitioner.

M. Qasim Khan, A.A.‑G. with M. Sajid Akhtar, D.C.O., D.G. Khan for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1099 #

2005 C L C 1099

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD DIN‑‑‑Petitioner

Versus

IKRAM ALI ‑‑‑Respondent

Civil Revision No.226 of 1986, heard on 17th January, 2005.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 4‑‑‑Sale or gift‑‑‑Real nature of transaction; determination of‑‑Factors to be considered by Court‑‑‑Court should look into relationship of donor and donee, reasons which motivated donor to part with his property without any consideration; financial position of donor and the fact as to whether donor owned some other property and had legal heirs or not.

Sardara v. Muhammad Abid 1985 MLD 467 and Ghulam Rasool v. Muhammad Hafeez and 2 others 1996 CLC 1161 ref.

Pir Muhammad Asif Rafi for Appellant.

Nemo for Respondent.

Date of hearing: 17th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1101 #

2005 C L C 1101

[Lahore]

Before Fazal‑e‑Miran Chauhan, J

ZAHRO‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, D.G. KHAN and 4 others‑‑‑Respondents

Writ Petition No.5238 of 2004, decided on 21st February, 2005.

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

‑‑‑‑O. XII, R. 6 & O. XXIII, R. 1‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Withdrawal of suit, application for‑‑Prior to date fixed for evidence, plaintiff filed application for withdrawal of suit through another counsel and recorded her statement in Court that her grievance had been redressed by defendants‑‑Another application by plaintiff to continue with suit was made through her original counsel on same day before passing any order by Court on her earlier statement--Trial Court after recording another statement of plaintiff decided to proceed with the suit and fixed case for evidence‑‑‑Revision filed against such order was dismissed by District Judge‑‑‑Plea of defendants was that earlier application seeking permission to withdraw suit and statement made to such effect amounted to admission of plaintiff warranting dismissal of suit under O.XII, R.6, C.P.C.‑‑‑Validity‑‑‑Earlier statement of plaintiff was not final as no order had been passed thereon by Court, when another statement was made by her to continue with suit‑‑‑Such statement would not amount to an admission under O.XII, R.6, C.P.C.‑‑Neither there was admission in pleadings binding the plaintiff nor there was any admitting document, the admission of which would constitute admission on the part of plaintiff‑‑‑No admission had been made by plaintiff authorizing Court to decide suit against her‑‑‑Plaintiff was within her right to withdraw her earlier statement and proceed with suit‑‑‑No reasonable and plausible explanation was shown as to why earlier application was made through another counsel, when original counsel had not been released by plaintiff‑‑‑Females of families are generally denied right of inheritance from ancestral property‑‑‑Plaintiff was being denied her right of inheritance by her brother and father the defendants over that she had filed present suit‑‑‑Plaintiff had been misled by defendants on false promise‑‑‑No illegality had been committed by Courts below‑‑‑High Court dismissed Constitutional petition in circumstances.

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

‑‑‑‑O. XII, R. 6‑‑‑Judgment on admission‑‑‑Essentials‑‑‑Admission in pleadings of parties or otherwise qualifying for grant of judgment/decree must be clear, unambiguous, unqualified and unequivocal.

‑‑‑‑O.XXIII, R.1‑‑‑Withdrawal of suit or abandonment of claim, prayer for‑‑‑Scope‑‑‑Such prayer could be made orally or in writing or by recording statement in Court‑‑‑Withdrawal would be complete after passing an order by Court to such effect‑‑‑Prior to passing such an order plaintiff could withdraw such prayer by making a written application or by recording statement in Court‑‑‑Principles.

Mirza Aziz Akbar for Petitioner

Najaf Ali Chawhan for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1106 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

CLC 2005 LAHORE HIGH COURT LAHORE 1116 #

2005 C L C 1116

[Lahore]

Before Ch. Ijaz Ahmad, Actg. C. J.

Mst. INAYAT BEGUM‑‑‑Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and another‑‑‑Respondents

Writ Petition No.6735 of 2005, decided on 27th April, 2005.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 129(e)‑‑‑Acts of officials are presumed to be correct.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner, in his previous Constitutional petition was directed by the High Court to send his application to the Authority on 7‑2‑2005 or 8‑2‑2005, but the petitioner had sent said application on 16‑2‑2005‑‑‑Such fact brought the case of the petitioner in the area that the petitioner had not approached the High Court with clean hands‑‑‑Constitutional jurisdiction being discretionary in character, maxim that he who seeks equity must come to the Court with clean hands would be fully applicable‑‑‑High Court, in circumstances, declined to exercise its Constitutional jurisdiction.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Haji Saifullah's case PLD 1989 SC 166 and Kh. Muhammad Sharif's case PLD 1998 SC 725 ref.

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Petitioner before approaching the High Court had filed a complaint before Federal Ombudsman who had given his findings against the petitioner‑‑‑Such fact would bring the case in the area that petitioner had not approached the High Court with clean hands‑‑‑Constitutional jurisdiction being discretionary in character maxim that, he who seeks equity must come to the Court with clean hands would be attracted‑‑‑High Court, in circumstances, declined to exercise its Constitutional jurisdiction.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Haji Saifullah's case PLD 1989 SC 166 and Kh. Muhammad Sharif's case PLD 1998 SC 725 ref.

(d) Administration of justice‑--

‑‑‑‑Order passed by Authority challenged‑‑‑Scope‑‑‑Court was duty bound to explore every possible explanation for its validity and examine the entire field of powers conferred on the Authority in pursuance to which the impugned order had been passed.

Liaqat Ali Butt for Petitioner.

Muhammad Jehangir Wahlah, Advocate/Standing Counsel on Courts' call.

CLC 2005 LAHORE HIGH COURT LAHORE 1119 #

2005 C L C 1119

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. MUNAWAR SULTANA‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and 2 others‑‑‑Respondents

Writ Petition No.396 of 2005, heard on 13th April, 2005.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)‑‑‑

‑‑‑‑Ss. 6, 17 & 2(j)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Landlord moved eviction application against the tenant from house and averred in the plaint that the house in question was leased to the tenant for two years by an agreement and tenancy had expired two years before; that tenant was served a notice requiring him to vacate the demised premises; that the tenant was also a defaulter in the payment of rental and utility bills and that the premises was required for personal bona fide need‑‑‑‑Validity‑‑‑Held, ejectment of tenant (as defined in S.2(j) of the Ordinance) could be sought only on the grounds given in S.17, Islamabad Rent Restriction Ordinance, 2001 and there was nothing in S.17 to show that the tenant could be ordered to be ejected from a residential building merely on the ground of expiry of the lease period‑‑Section 6 of the Ordinance was not an overriding section and it was subject to S.17 of the Ordinance‑‑‑Tenant will continue to fall within the definition of "Tenant" who continued to remain in possession even after the termination of tenancy‑‑‑After the expiry of the agreed period between the landlord and tenant the tenancy was not valid and the same would not be governed by the terms and conditions of the previous tenancy agreement but it did not mean that a tenant who continued to be in possession or occupation after the expiry of the period will be subjected to ejectment on the ground which did not find mention in S.17 of the Ordinance‑‑‑Ejectment of the tenant could be sought only on the grounds enumerated in S.17 of the Ordinance‑‑‑Principles‑‑‑Impugned order of ejectment of tenant was declared to be without lawful authority and of no legal effect, resultantly the eviction application of the landlord stood dismissed.

The reading of the section 6, Islamabad Rent Restriction Ordinance, 2001 shows that it is subject to the provisions of section 17 of the Ordinance Under section 17 of the same Ordinance "a tenant in possession of building or rented land shall not be evicted therefrom except in accordance with the provisions of this section.

There is no ambiguity in the said section. Subsection (1) of section 17 of the Ordinance is in the negative form and enjoins that a tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this section" The landlord can apply for eviction of the tenant on the grounds enumerated therein.

Under subsection (4) which is also relevant in the present case a landlord may apply to the Rent Controller for eviction of the tenant on the ground that he requires it in good faith for his own occupation or of any member of his family. The expression `tenant' has been defined in section 2(j) of the Islamabad Rent Restriction Ordinance, 2001.

`Tenant' includes any person who continues to be in possession or occupation of the premises after termination of his tenancy.

The tenant will continue to fall within the definition of tenant' who continues to remain in possession even after the termination of tenancy. The ejectment of thetenant' (as defined in section 2(j) of the Ordinance) can be sought only on the grounds given in section 17 of the Ordinance. There is nothing in the provisions of section 17 to show that the tenant can be ordered to be ejected from a residential building merely on the ground of expiry of the lease period. Section 6 of the Ordinance is not the overriding section, it is subject to section 17 of the Ordinance. It merely states that the tenancy shall not be valid beyond such period as the landlord and tenant may by mutual agreement fix before or after the commencement of the tenancy. After the expiry of the agreed period between the landlord and tenant the tenancy is not valid and the same will not be governed by the terms and conditions of the previous tenancy agreement but it does not mean that a tenant who continues to be in possession or occupation after the expiry of the period will be subjected to ejectment on the ground which does not find mention in section 17 of the Ordinance. The ejectment of the tenant can be sought only on the grounds enumerated in section 17 of the Ordinance. The Rent Restriction Laws are generally made for the protection of the tenant. If the contention of the landlord is accepted that after expiry of the lease period the tenant is to be evicted, the provisions of section 17 of the Islamabad, Rent Restriction Ordinance, 2001 shall have to be amended. Previously the matter was covered by the Transfer of Property Act, 1882. Section 111 of the Act of 1882 gives eight grounds on which the tenancy determines. Under subsection (a) of section 111 of the Transfer of Property Act lease determines by a flux of time limited thereby. The preamble to the Islamabad Rent Restriction Ordinance, 2001 shows that the Ordinance was enacted by the legislature in order to "regulate the relations between the landlords and tenants of rented premises in Islamabad Capital Territory and to provide for matters ancillary thereto or connected therewith." The Rent Restriction Ordinance being a special law will prevail over the ordinary law. The eviction of the tenant on the ground of efflux of time cannot be read into the section 17 of the Ordinance. There being no provision in section 17 of the Ordinance for ejectment of the tenant on the ground of expiry of the tenancy, the ejectment of the tenant cannot be ordered. The general rule is that the Court can neither add to or delete any word from any section of a statute. A Court must not import in a statute anything more nor anything less than what the language clearly indicates. It is not the function ref the Court to read into an enactment words that are not there. The mere fact that the language of a section in an Act is not happy or appropriate, would not justify the Court in adopting an interpretation which leads to anomalous results and frustrates the very object of the statute. The provisions of section 17 of the Islamabad Rent Restriction Ordinance are clear and unambiguous and cannot be given an effect not contemplated by the Ordinance.

The issue of default in the payment of rent was decided in favour of the tenant. No issue was framed on the personal bona fide need of the landlord nor the Tribunals below discussed any evidence produced by the landlord on this fact.

The impugned orders were declared to be without lawful authority and of no legal effect. Resultantly the eviction application of the landlord stood dismissed.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑Court can neither add to or delete any words from any section of the Statute‑‑‑Court must import in a Statute neither anything more nor anything less than what the language clearly indicates‑‑‑Not the function of the Court to read into an enactment words that are, not there.

‑‑‑‑Mere fact that the language of a section in an Act is not happy or appropriate would not justify the Court to adopt an interpretation which leads to anomalous results and frustrates the very object of the Statute.

Haider Mehmood Mirza for Petitioner.

Munir Elahi Qureshi for Respondents.

Date of hearing: 13th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1128 #

2005 C L C 1128

[Lahore]

Before Ch. Ijaz Ahmad, Actg. C. J.

JAVED RIAZ‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director‑General and 3 others‑‑‑Respondents

Writ Petition No.6705 of 2005, decided on 27th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199, 4 & 5‑‑‑General Clauses Act (X of 1897), S.24‑A‑--Constitutional petition‑‑‑Land acquisition‑‑‑Contention of the petitioner was that since impugned order was passed by Land Acquisition Collector in violation of parameters prescribed by the High Court in an earlier round of litigation and without application of his mind, the same was not sustainable in eye of law‑‑‑Validity‑‑‑Impugned order and documents attached with the petition, if put in juxtaposition, it was clear that Land Acquisition Collector had decided the controversy between the parties without judicial application of mind and without reasons which was condition precedent‑‑‑Giving the reasons for an action or order was one of the fundamentals of good administration‑‑‑Superior Court always insisted upon disclosure of reason in support of the order‑‑‑Manner of exercising power was also termed as mala fide‑‑‑Land Acquisition Collector having passed the impugned order without adverting to the documents and without reasoning and without following the directions of the High Court in earlier Constitutional petition same was not in consonance with law and S.24‑A, General Clauses Act, 1897‑‑‑Said order was set aside by the High Court under its Constitutional jurisdiction‑‑Principles.

In present case, if the impugned order and documents attached with the Constitutional petition are put in juxtaposition, it would be crystal clear that Land Acquisition Collector had decided the controversy between the parties without judicial application of mind which is condition precedent to decide the controversy between the parties after application of mind. Under section 24‑A of the General Clauses Act, it is the duty of the public functionaries to decide the controversy between the parties after application of mind. Section 24‑A of the General Clause Act, being procedural in nature, has retrospective effect. The public functionaries must decide the controversy between the parties after application of mind. No body should be penalized by inaction of the public functionaries. Admittedly the functionary has decided the controversy between the parties under statutory power, therefore, even if it is an administrative order, it is open to review by High Court.

The Land Acquisition Collector has decided the controversy between the parties in the capacity as Quasi‑Judicial Authority. The giving of reasons is one of fundamentals of good administration. The condition to record reasons introduces clarity and excludes arbitrariness and satisfies the party against whom order is passed. To provide a safeguard against the arbitrary exercise of power by the public functionaries, the condition of recording reasons is imposed on them, under section 24‑A General Clauses Act. In case, the public functionaries fail to give reasons in the impugned order, then it is violation of principles of natural justice.

Reasons are linked with the material on which certain conclusions are based. They disclose how the mind is applied to the subject‑matter for a decision, whether it is purely administrative or quasi-judicial. Courts insist upon disclosure of reason in support of order on the following grounds:‑‑

(A) The party aggrieved has the opportunity to demonstrate before the appellate, or revisional Court that the reasons which persuaded the authority to reject his case were erroneous;

(B) The obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power; and

Constitution is social binding contract to all the organs of the State i.e. Legislature, Judiciary, Executive and People of Pakistan. The command of Constitution by virtue of Article 5(2) is that every body should obey the command of the Constitution. Manner of exercising power is also termed as mala fide. In the present case, Land Acquisition Collector had decided the case without adverting to the documents and without reasoning, therefore, the impugned order was not in consonance with law and section 24‑A of the General Clauses Act and Articles 4 & 5 of the Constitution.

The petitioner had filed earlier Constitutional petition, which was disposed of by High Court with certain direction to the Authorities, therefore, earlier order passed by High Court in Constitutional petition against the Authorities is final between the parties on the well known principle of res judicata. The principles of C.P.C. are applicable in Constitutional proceedings. Collector had decided the case in violation of parameters prescribed by High Court; therefore, the impugned order was not sustainable in the eye of law.

The impugned order was set aside, and petitioner was directed to appear before the Land Acquisition Collector who was directed to decide the matter of the petitioner afresh after application of mind strictly in accordance with law keeping in view the provisions of Law as early as possible.

Zainyar Khan's case 1998 SCMR 2419; Messrs Airport Support Service's case 1998 SCMR 2268; Ahmad Latif Qureshi's case PLD 1994 Lah. 3; Tariq Transport Co. v. Sargodha Bhera Bus Service PLD 1958 SC (Pak.) 437; N.Q. Industries v. Mst. Bapai Kaikhusro PLD 1968 Kar. 589; Breen's case (1971) 1 All ER. 1148; Writ Petition No.2728 of 2005; Ch. Zahoor Ellahi's case PLD 1975 SC 383; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 ref.

Arif Chaudhry for Petitioner.

Mian Muzaffar Hussain Legal Advisor of the respondents (L.D.A.) on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1133 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

CLC 2005 LAHORE HIGH COURT LAHORE 1137 #

2005 C L C 1137

[Lahore]

Before Sh. Azmat Saeed, J

Mrs. KOKAB JAVED‑‑‑Petitioner

Versus

ABDUL AHAD KHAN‑‑‑Respondent

Civil Revision No.413 of 2005, heard on 26th April, 2005.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr.1 & 2‑‑‑Suit for recovery of money on the basis of cheques‑‑‑Application for leave to defend the suit‑‑‑Trial Court allowed the application to defend the suit subject to furnishing of bank guarantee equivalent to the suit amount‑‑‑Validity‑‑‑Defendant, in the present case, was a female and widow, and admittedly, both the defendant and plaintiff were working in the same organization, where the plaintiff was stated to be employed as her senior having much more superior status‑‑‑In plaint, general allegation with regard to the payment of consideration had been made, spelling out absolutely no details whatsoever as to when, where, and in what manner the consideration was paid‑‑‑Such details were conspicuously absent even in the reply of plaintiff to the application to defend the suit by the defendant‑‑‑Record revealed that the transaction, if any, inter se the parties would be of not the result of a normal business relationship as both the parties were employees and did not conduct any business as primary economic activity‑‑‑Fifteen cheques, subject‑matter of the suit, were spread over a period of three years and without any action being taken by the plaintiff despite their dishonour for a considerable lapse of time and the allegation in the plaint read in the context of the defence taken did not inspire much confidence‑‑‑Direction for furnishing bank guarantee on the ground that it was "to save the interest of the plaintiff" was not sufficient ground available in law for the imposition of the onerous condition‑‑‑Condition of furnishing bank guarantee by Trial Court, in circumstances, appeared to be onerous‑‑‑Peculiar circumstances and salient features inevitably had made out a case for interference to invalidate the impugned order‑‑‑High Court set aside the order whereby the defendant was directed to furnish the bank guarantee, and ordered that defendant shall furnish only the security to the satisfaction of the Trial Court within a period of two weeks.

Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925; Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Haji Karim and another v. Zikar Abdullah 1973 SCMR 100; Ehsanul Haq Kiani v. Allied Bank of Pakistan Karachi 1984 SCMR 963 and Sh. Abdul Majeed v. United Bank Ltd. 1984 SCMR 1434 distinguished.

Abdul Sattar Zahid Sh. for Petitioner.

Mian Israr‑ul‑Haq for Respondent.

Date of hearing; 26th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1141 #

2005 C L C 1141

[Lahore]

Before Sh. Hakim Ali, J

Mst. ZUBEDA BIBI‑‑‑Petitioner

Versus

Mian KHALIL‑UR‑REHMAN‑‑‑Respondent

Civil Revision No.369‑D of 2003/BWP, decided on 21st January, 2004.

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

‑‑‑‑S. 67‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Mortgage‑‑Suit for foreclosure‑‑‑Rejection of plaint‑‑‑Suit for foreclosure filed had finally been decreed which had attained finality as defendant had not assailed the said decree in the higher Court‑‑‑Defendant, however, filed suit in which she pleaded that registered mortgage‑deed in respect of property in question was result of fraud and same was forged and illegal because she had not executed the same‑‑‑Application filed under O.VII, R.11, C.P.C. for rejection of subsequently filed suit having finally been accepted, defendant challenged the same‑‑‑Validity‑‑‑Defendant having accepted execution of mortgage‑deed in the suit for foreclosure earlier filed by mortgagee which had finally been decreed, could not file a fresh suit taking contradictory plea in it ‑against admitted fact, there must be an end to the litigation‑‑‑Suit subsequently filed by defendant being malicious "and vexatious to put parties into vicious circle of another protracted agonizing litigation, could not be permitted merely to satisfy the mind of defendant simply on technicalities‑‑‑Plaint in subsequently filed suit .having rightly been concurrently rejected by two Courts below, revision against same was dismissed, in circumstances.

Punjab Board of Revenue, Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore 2003 SCMR 1284 ref.

Raja Muhammad Sohail Iftikhar for Petitioner.

Sardar Jamshaid Iqbal Khakwani for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 1144 #

2005 C L C 1144

[Lahore]

Before Maulvi Anwarul Haq, J

KHADIM HUSSAIN and 2 others‑‑‑Petitioners

Versus

WARIS ALI and another‑‑‑Respondents

Writ Petition No. 1149 of 2005, decided on 8th March, 2005.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Suit for specific performance of agreement to sell immovable property‑‑‑Relief for recovery of possession neither asked for in plaint nor incorporated in decree passed in such suit‑‑‑Effect‑‑‑Asking for such relief would not at all be necessary as same would spring out of contract for sale and would be incidental to main relief of specific performance granted in suit‑‑Prayer for such relief would be redundant‑‑‑When such suit was decreed, then upon compliance with the conditions laid down by Trial Court, plaintiff in its execution would also be entitled to get possession of suit property.

Birgis Jahan Bajiga Malik v. Muhammad Hassan and others PLD 1964 Dacca 202 and Arjun Singh v. Shahu Maharaj Narain AIR 1950 All. 415 ref.

----Art. 199--Constitutional jurisdiction of High Court---Object and nature of---Such jurisdiction was discretionary and its object was to foster justice and right a wrong---Order without jurisdiction if not working injustice, could not be set aside.

Zulfiqar Khalid Malooka for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1169 #

2005 C L C 1169

[Lahore]

Before Ch. Ijaz Ahmad, J

MAZHAR-UL-HAQ alias MAZHAR ABBAS ---Petitioner

Versus

GHULAM MUHAMMAD and 2 others---Respondents

Writ Petition No.5282 of 2004, decided on 6th April, 2005.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--Findings of fact of Tribunal below---High Court had no jurisdiction to substitute its own finding in place of findings of Tribunal below.

Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268 ref.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo PLD 1973 Lah. 600 and Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 rel.

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

----Art. 199--Constitutional petition ---Laches--Filing of Constitutional petition after 3 months, 25 days of passing of impugned order---Effect-Constitutional jurisdiction was discretionary in character---Petitioner had not approached High Court immediately after passing of impugned order---High Court dismissed Constitutional petition on principle of laches.

Haji Saif Ullah's case PLD 1989 SC 166; Kh. Muhammad Sharif's case PLD 1988 Lah. 725 and Khaili Khan v. Haji Nazir Ahmad and 4 others PLD 1997 SC 304 eel.

---Art. 199---Constitutional petition---Justice done to petitioner through impugned order---Effect---High Court would not exercise discretion in favo6r of petitioner.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

Mirza Arshad Nazir for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1173 #

2005 C L C 1173

[Lahore]

Before Jawwad S. Khawaja, J

RAFIQUE AHMAD---Petitioner

Versus

Mst. SAKHOO MAI and others---Respondents

Civil Revision No.234 of 1991, heard on 16th September, 2004.

Islamic Law---

----Inheritance---Plaintiff was the legal heir of deceased daughter of deceased original owner of suit properties, whereas defendants were legal heirs of son of deceased original owner of suit properties---On death of original owner of properties, his son, predecessor-in-interest of defendants got mutations of the entire property of deceased original owner sanctioned in his name to the exclusion of his sister, predecessor-in-interest of plaintiff---Case of plaintiff was that his predecessor-in-interest being daughter of deceased original owner was entitled to 1/3rd of suit-land but son of the deceased got two mutations recorded in his favour---Suit was resisted by defendants on the ground that inheritance in the suit property at the relevant time was governed by custom and not by Shariat or Islamic Law---Trial Court decreed the suit, but on appeal by defendants against judgment of Trial Court, Appellate Court set aside judgment of Trial Court ---Validity---Wajib-ul-Arz for two Mauzas where suit properties were situated, had clearly stipulated that in respect of Muslims, Islamic Law of Inheritance was the governing law in the said Mauzas---Inheritance of original owner, in circumstances was governed by Islamic Law and not by custom---Plaintiff, was entitled to 1/3rd of suit property---Since plaintiff and before him, his mother, had become co-owners of suit-land along with defendants through inheritance, limitation would not run against them---Appellate Court, in circumstances was not justified in law to reverse findings of Trial Court---Appellate decree was set aside and that of Trial Court was restored.

Muhammad Yousaf through Legal heirs and 2 others v. Mst. Karam Khatoon 2003 SCMR 1535 ref.

S.M. Akhtar Shah for Petitioner.

Shamsher Iqbal Chughtai and Malik Imtiaz Mehmood for Respondents.

Date of hearing: 16th September, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 1176 #

2005 C L C 1176

[Lahore]

Before Maulvi Anwarul Haq, J

KHAIR MUHAMMAD and 3 others---Petitioners

Versus

MUHAMMAD ASLAM and another---Respondents

Civil Revision No.949/D of 2003, heard on 14th February, 2005.

(a) Islamic law---

----Gift---Sole brother alleged gift in his favour by sister, though she had children of her own---Denial of gift by sister---Proof---Burden was on brother to prove a valid gift in his favour by sister---Original mutation had not been produced---Mutation was attested through Qanungo, but he was not produced in the Court---Witness produced by brother was alleged to have identified sister while putting her thumb-impression on mutation---Such witness during cross-examination admitted not to be present at the time of attestation of mutation and showed his ignorance about personal appearance of sister---Such witness knew neither the place where gift was made nor the place where mutation was attested nor had knowledge about children of sister---Nothing in pleadings or evidence was shown as to why sister had made gift to her brother, when she had children of her own---Other witnesses produced by brother knew nothing about the alleged gift---Alleged gift had not been proved in circumstances.

Barkat Ali through Leal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 rel.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Gift mutation---Suit for declaration challenging validity of gift mutation ---Limitation--Mutation was attested on 23-4-1952---Suit was filed on 19-5-1986--Plaintiff's plea was that she came to know of alleged gift, when defendant in Kharif, 1985 stopped to pay share in produce from suit-land--Validity---Plaintiff was co-heir and consequently a co-sharer in suit-land---Assuming that plaintiff had not been given any share in produce, even then an ouster would not be assumed as she would be deemed to be in possession of every inch of joint land---Objection with regard to suit being barred by limitation was overruled in circumstances.

Ghulam Ali and 2 other v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Mian M. Arshad Latif and Ahmed Usman Khan Miana for Petitioners.

Malik Abdul Khaliq and H. Akbar Sayid for Respondents.

Date of hearing: 14th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1215 #

2005 C L C 1215

[Lahore]

Before Ch. Ijaz Ahmad, J

Mian MUHAMMAD SAEED, Advocate --- Petitioner

Versus

FEDERAL GOVERNMENT through Ministry of Interior, Government of Pakistan Islamabad and 3 others---Respondents

Writ Petition No.7393 of 2004, decided on 20th May, 2005.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---National Database and Registration Authority (National Identity Card) Rules, 2002, Rr.10, 11, Sched. I & II---National Identity Card---Period of validity---Word as used in Schedule-I of National Database arid Registration Authority (National Identity Card) Rules, 2002---Connotation---Word had been used for word "expiry".

Kitabistan Practical Dictionary rel.

(b) Words and phrases----

----"Cancel"--Meaning.

Black's Law Dictionary Sixth Edition; Words and Phrases Permanent Edition Vol. VI; Kitabistan Practical Dictionary and Ferozesons English Dictionary New Edition rel.

----"Expire"---Meaning.

Black's Law Dictionary Sixth Edition; Kitabistan Practical Dictionary; Ferozesons English Dictionary New Edition; Corpus Juris Secundum Vol.35 and Pradip Kumar's case AIR 1974 SC 2151 rel.

(d) Words and phrases------

----"Validity-Meaning.

Black's Law Dictionary Sixth Edition; Kitabistan Practical Dictionary Ferozesons English Dictionary New Edition and Corpus Juris Secundum Vol-91 rel.

(e) Words and phrases-----

-------"Tanseekh" "---Meaning.

Kitabistan Practical Dictionary rel.

(f) National Database and Registration Authority Ordinance (VIII of 2000)----

----S. 19(4)---Constitution of Pakistan (1973), Art.25---National Identity Card ---Expiry period of such card fixed with regard to age of each citizen---Not discriminatory, as authority had formulated uniform policy.

I.A. Shervani's case 1991 SCMR 1041 and Sakina Begum's case 1995 SCMR 334 rel.

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

----Art. 199---Constitutional petition---Maintainability---Where impugned. action was not in derogation of rules and regulations of public functionaries, then Constitutional petition would not be maintainable.

Ali Mir's case 1984 SCMR 433 rel.

Malik Ghulam Mustafa Khar's case PLD 1988 Lah. 49; S.M. Yousaf's case PLD 1968 Kar. 599; Rehmat Ullah's case 1996 SCMR 156 and Muhammad Hussain's case PLD 1956 Kar. 508 ref.

Mian Muhammad Saeed in Person.

M. Pervaiz Akhtar, Deputy Attorney-General for Respondent Nos.1 and 2.

Shahzad Rabbani for Respondents Nos.3 and 4.

CLC 2005 LAHORE HIGH COURT LAHORE 1223 #

2005 C L C 1223

[Lahore]

Before Syed Zahid Hussain, J

FARZAND ALI and another---Petitioners

Versus

FATEH MUHAMMAD---Respondent

Civil Revision No.2486 of 2004, decided on 25th May, 2005.

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

----O. VII, R.11---Rejection of plaint---Principles---If there was some other material before the Court, apart from the plaint at that stage which is admitted-by the plaintiff, the same can also be looked into and taken into consideration while rejecting the plaint under O.VII, R.11, C.P.C.--If on meaningful reading of the plaint and the material brought on record by the plaintiff the Court finds the suit as merit less and vexatious, it must be nipped in the bud at the initial stage.

There are certain principles for invoking and applying, the provisions of R.11 of Order VII of the Code of Civil Procedure, 1908.

A plain reading of the Order VII, Rule 11, C.P.C. would show that the rejection of plaint under this provision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the Plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while king action for rejection of plaint under Order VII, rule 11, C.P.C cannot take into consideration pleas raised by the defendant in the suit is defence, as at that stage the pleas raised by the defendants are contentions in the proceedings unsupported by any evidence on record However, if there is some other material before the Court apart from Taint at that stage which is admitted by the plaintiff, the same can also looked into and taken into consideration by the Court while rejecting plaint under Order VII, rule 11, C.P.C. It, thus, becomes permissible or the Court to look into the material that comes before it in order each the conclusion whether the plaint deserves to be rejected or not.

The provisions of Order VII, rules 11, C.P.C. are invocable to such suits for rejection of plaints at the initial stage so that the parties relieved from pursuing vexatious litigation. If on meaningful reading he plaint and the material brought on record by the plaintiff, the finds the suit merit less and vexatious, it must be nipped in the bud at initial stage. The trial of such a suit would merely prolong unnecessary and frivolous litigation.

Jewan and 7 others v. Federation of Pakistan through Secret revenue; Islamabad and 2 others 1994 SCMR 826 fol.

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

-----O. VII, R.11---Specific Relief Act (I of 1877), S.42 --- Evacuee property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 suit for declaration---Matter related to inheritance---Rejection of plait principles---Suit, in the present case, had initially been instituted on 29-7-2003 on the basis of some orders passed by the Rehabilitation Authorities dated 18-12-1962, however, later on, an application for amendment in the plaint was filed on 6-12-2003 whereby orders dated 17-8-1963 and of 1-6-1967 were also sought to be assailed---Order dated 17-8-1963 was statedly passed by the Deputy Rehabilitation Commissioner---Such was the material which was brought on record by he plaintiff by himself---Evacuee Laws were repealed with effect from 1-7-1974 and plaintiff had not assailed the orders passed by the settlement Authorities in that hierarchy and said determination had thus, become final which was sought to be assailed now after a long time trough a declaratory suit in the year 2003---Validity---Matter pertained to the exclusive jurisdiction of Rehabilitation Authorities, which could of be allowed to be agitated in the Civil Court---Determination of 2heritance was made by the Rehabilitation Authorities long before filing of the suit and repeal of evacuee laws and the plaintiff had slept over the matter and failed to agitate at proper time before the proper forum if indeed he had sound foundations for his claim and cause of action Averments in the plaint in the initial plaint and later application amendment indeed belied his claim and his suit was barred by law a was time-barred as well---Provisions of O.VII, R.11, C.P.C. were invocable to such suit for rejection of plaint at the initial stage so that t:, parties were relieved from pursuing vexatious litigation---If meaningful reading of the plaint and the material brought on record by the plaintiff, the Court found the suit as meritless and vexatious, it mug be nipped in the bud at the initial stage---Trial of such a suit would ha\ ; merely prolonged an unnecessary and frivolous litigation---Plaint, in the present case, thus was rightly rejected by the Trial Court in circumstances.

Syed Iftikhar Hussain Zaidi v. Mst. Shafiqa Begum and 30 other, 2003 SCMR 844; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Munir Ahmad v. Settlement and Rehabilitation Commissioner and another PLD 1981 Lah. 735; Ch. Ghulam Muhammad v. Mian Habib-ur-kehman and others PLD 1982 Lah. 368; Sardar, Muhammad Mushtaq Khan and 6 others v. Sardar Muhammad Pervez Khan and 14 others 2001 MLD 1725; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Ahmad Din v. Muhammad Shafi and others PLD 19 SC 762 ref.

Dr. A. Basit for Petitioner.

Syed Muhammad Anis Sadiq for Respondent.

Dates of hearing: 24th and 25th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1237 #

2005 C L C 1237

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL HAFEEZ---Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others---Respondents

Writ Petition No.982 of 2005, decided on 9th March, 2005.

Constitution of Pakistan (1973)---

----Art. 199--- Constitutional petition---Educational Institution--Admission in M.Sc. Telecommunication---Petitioner applied for admission in M.Sc. Telecommunication in University and had made requisite deposits within stipulated time, but his admission Form was rejected on. sole ground that deposit had not been made by the petitioner---Report submitted by the University had admitted that amount, .in fact was deposited by the petitioner within stipulated time, but deposit challans or its copy was not appended with admission form and consequently petitioner, who in fact had come on merits list,. his form was rejected and next man in waiting was admitted---Prospectus, showed a list of documents to accompany the Form had been stated, but it did not include the challan or its copy---Apart from that petitioner was issued a receipt of documents submitted by him and no objection was raised that challan was not there---Bank where the deposit was to be made was located in the Campus of the University and it was not at all difficult for the University to have verified the factum of deposit of amount---Even otherwise no explicit requirement was mentioned in the Prospectus to append copy of challan with the Form---Effect---Petitioner was entitled to admission as per merit list drawn by the University---Even if another boy had been admitted, it was for the University to provide a seat to the petitioner for which he was eligible according to their own criteria---No fault was to be attributed to petitioner in the matter particularly when it stood admitted that requisite deposit had been made by him within time-High Court allowing Constitutional petition, issued a mandamus to the University to admit the petitioner to M.Sc. Telecommunication course.

Nishat Ahmad Siddiqui for Petitioner

Malik Muhammad Tariq Rajwana for Respondents

Date of hearing: 9th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1303 #

2005 C L C 1303

[Lahore]

Before Jawwad S. Khawaja, J

AFRAH ENTERPRISES (PVT.) LIMTIED---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 19556 of 2001, heard on 16th May, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Dispute in the present case was between the petitioners on the one hand, and the respondents, on the other, regarding sales tax liability in question---Such controversy between the parties could only be resolved on the basis of evidence led at a proper trial before a competent Court of the arbitration---Constitutional petition was not maintainable.

Usmai Associates v. Pakistan Housing Authority 2005 MLD 233 distinguished.

Jawwad Hassan for Petitioner.

Najmul Hassan, A.A. -G. for Respondent No. 1.

Muhammad Naeem Sehgal for Respondent No.2.

Khalid Bashir for Respondent No.3.

Khawar Ikram Bhatti for Respondent No.4.

Date of hearing: 16th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1330 #

2005 C L C 1330

[Lahore]

Before Sh. Hakim Ali, J

FATEH MUHAMMAD --- Petitioner

Versus

FAQIR MUHAMMAD and others---Respondents

Writ Petition No.893 of 1993/BWP, decided on 25th April, 2005.

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

----Art. 84---Comparison of signatures---Summoning of witnesses--Power of Court---Scope---Court has ample power to examine/compare itself or to get the document compared from any expert---For such purpose; Court can direct any person to write any word or figure---Court can also issue notice/summons to marginal witnesses for their presence fn, comparison of their signatures/thumb-impressions.

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

----Ss. 32, 94 & OXVI, R.10---Qanune-e-Shahadat (10 of 1984), Art. 84---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Securing attendance of witnesses---Issuance of bailable warrants of arrest---Power of Trial Court---Application for comparison of disputed signatures was allowed and marginal witnesses were summoned by Trial Court for getting their signatures compared with those available on disputed document---On failure of witnesses to appear in response to summons, Trial Court issued bailable warrants of arrest of witnesses---Validity---Power to summon witness was not only inherent but was also allowed by O.XVI, C.P.C. to a Civil Court---If a Court was not considered to have been invested with such power, then no party could summon any person for any purpose in Court---Summoning of parties/witnesses through process provided was the basic power upon which whole fabric of trial of suit dependent---If such power was not presumed to lie with Court, whole actions of Court would become farcical---If a witness did not appear in spite of his service or refuse to appear in Court, Trial Court had got enough power to compel his attendance through modes prescribed by Civil Procedure Code, 1908--Court was empowered under S.32, C.P.C. to cause attendance of any person in his Court to obtain his signatures for the purpose of comparison---Trial Court could issue not only notice but could also attach salary or property of such disobedient person who refused to appear and could impose fine also---Court had been granted power under the provisions of S.94, C.P.C. to pass any other interlocutory order when it considered it just and convenient in a case in a given situation, particularly where law had not provided any of its solutions--Court which was seized of the case, had to act for the smooth running and trial of case for its conclusion---No prohibition against Court to pass such order---High Court declined to interfere in bailable warrants of arrest issued by Trial Court---Petition was dismissed in circumstances.

Muhammad Saeed v. Seerat-ul-Fatima and others PLD 1978 Lah. 1459 ref.

Ijaz Ahmad Chaudhry for Petitioner.

Muhammad Mahmood Bhatti for Respondents Nos. 1 to 3.

CLC 2005 LAHORE HIGH COURT LAHORE 1336 #

2005 C L C 1336

[Lahore]

Before Maulvi Anwarul Haq and Ijaz Ahmad Chaudhry, JJ

PROVINCE OF PUNJAB through Collector Rajanpur and 2 others---Appellants

Versus

MUHAMMAD ZAMIR KHAN and 5 others---Respondents

Regular First Appeal No. 94 of 1994, heard on 30th March, 2005.

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

----Ss. 4, 6, 10, 17, 18, 23 & 54---Acquisition of land---Determination of compensation---Land Acquisition Collector allowed compensation to landowners at the rate of Rs.550 per Marla ---Dissatisfied with award of Land Acquisition Collector, landowners filed application under S.18 of Land Acquisition Act, 1894 to Referee Court for enhancement of amount of compensation---Referee Court had increased price of acquired land at the rate of Rs.5,000 per Marla instead of Rs.550 per Marla as determined by Land Acquisition Collector---Authorities had filed appeal against judgment of Referee Court---Land Acquisition Collector, who had inspected site, had himself found that acquired land was costly being situated near Factories, other Abadi and on a metalled road---Sale-deeds in respect of adjoining lands showing enhanced amount were produced by landowners which were duly examined by Land Acquisition Collector, but despite that he fixed compensation at lower rate of Rs.550 per Marla ---Evidence on record had fully proved that land in question was situated at National Highway, a Degree College was constructed about 400/500 Yards away from said land, besides a Microwave Station and Ginning and Oil Factories were constructed there and in front of said Degree College there were residential colonies and near the said land there was a hotel---Landowners had also claimed that price of land was about Rs.6,000/7,000 per Marla which was situated two Kilometres away from main road---Documentary evidence produced by landowners had fully supported that land in the vicinity was sold at the rate of 6,000 or more per Marla and Referee Court had rightly relied upon the said documentary evidence---Assessment made by Referee Court was supported by evidence on record---Impugned judgment was based on cogent reasons which was supported by evidence on record, which called for no interference---Appeal having no merit, was dismissed by the High Court.

Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 ref.

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

----O. XLI, R.27---Land Acquisition Act (I of 1894), S.54---Production of additional evidence in Appellate Court---During pendency of appeal, appellants filed application for placing on record certain documents as additional evidence---No reason had been given by appellants as to why said evidence, could not be produced before the Trial Court---Sufficient cause having not been shown by appellants for producing additional evidence, application in that respect was dismissed.

Sh. Ashraf Qureshi and M. Yousaf Syed for Appellants.

Rana Luqman Ali Khan and Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 30th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1353 #

2005 C L C 1353

[Lahore]

Before Maulvi Anwarul Haq, J

KHALID SAEED---Appellant

Versus

HAMEEDUD DIN GHORI---Respondent

Regular First Appeal No.47 of 1988, heard on 7th April, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Leave to appeal---Defendant received amount from plaintiff and a receipt and pro note to pay back the amount were duly executed---Execution of receipt and pro note were admitted by defendant and no objection whatsoever to existence, validity and legality was raised by defendant even in appeal---Trial Court after recording evidence of parties, decreed the suit---Evidence on record had fully proved that suit amount was received by the defendant---Defendants had claimed that he had repaid principal amount along with profit to plaintiff through two cheques, but he could not prove the same by any evidence, while evidence on record had fully proved that amount received by defendant was never paid to plaintiff---Suit was rightly decreed by Trial Court and appeal against said judgment was dismissed.

Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366; Sheikhupura Central Cooperative Bank Ltd. through its Honorary Secretary v. Ch. Tawakkal Ullah and another PLD 1977 Lah. 763; Firm Sri Chand Sheo Parshad v. Lajjia Ram AIR 1939 Lah. 31; Sohan Lal Nihal Chand v. Raghu Nath Singh and others AIR 1934 Lah. 606; Abdul Haque and others v. Shaukat Ali and 2 others 2005 SCMR 74 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

Mirza Manzoor Ahmed for Appellant.

Malik M. Tariq Rajwana for Respondent.

Date of hearing: 7th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1368 #

2005 C L C 1368

[Lahore]

Before Muhammad Sair Ali, J

TRUST LEAVING---Applicant

Versus

Messrs REGENT DYING---Respondent

C.M. No.181/B of 2001 in Execution Application No.45/B of 1999 decided on 27th November, 2001.

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

----O. XXI, Rr.90 & 92---Confirmation of sale held in execution proceedings---Objection raised to such confirmation was that one of the Court auctioneers was biased in favour of purchaser (decree-holder) being its counsel, who had facilitated purchaser to purchase property at a very low price---Validity---Name of such Court auctioneer appeared under prayer in an application made in present proceedings, but neither he had signed same nor he had been given power of attorney by purchaser---No evidence of misconduct of proceedings or bias of such Court auctioneer in favour of purchaser had been produced' nor evidence of misconduct, bias or prejudice against other Court auctioneer had been shown---Objector had neither made any offer of purchaser at a higher price nor shown his locus standi to object to confirmation of sale by Court---Mere inadequacy of sale price would not be a ground for setting aside such sale---High Court rejected objection petition, confirmed sale and directed delivery of possession of property to purchaser.

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

----O. XXI, R.90---Mere inadequacy of sale price would not be a ground for setting aside sale held in execution proceedings.

Haq Nawaz Chattha for Applicant.

Zahid Malik for Decree-holder.

CLC 2005 LAHORE HIGH COURT LAHORE 1377 #

2005 C L C 1377

[Lahore]

Before Umar Ata Bandial, J

Rana ABDUL HAFEEZ---Petitioner

Versus

MUHAMMAD ALI KHAN and 12 others---Respondents

Civil Revision No.2912 of 2004, heard on 21st April, 2005.

Contract Act (IX of 1872)---

----S. 37--Specific Relief Act (I of 1877), S. 12---Qanun-e-Shahadat (10 of 1984), Art,17(2)---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement to sell--Rejection of plaint---Agreement executed by vendor in favour of first vendees in respect of sale of land---Plaintiff was not vendee in the agreement but claimed to have acquired rights thereunder pursuant to a second agreement to sell land executed in his favour by the first vendees in respect of the same land and vendor had subscribed the second agreement to sell by signing the same at least in the capacity of an attesting witness---Vendor with the execution of the second agreement, also extended the date of completion under the first agreement to sell with the first vendee---Plaintiff had contended that the two agreements had to be read together in order to appreciate the legal right of the plaintiff to enforce the sale transaction against the vendor, in the plaintiff's favour as "vendee" under the second agreement to sell to which the vendor had subscribed---Validity---Factum of vendor's signature on the second agreement to sell would prima facie demonstrate two things in terms of Art. 17(2)(a) of the Qanun-e-Shahadat, 1984 viz. his knowledge about the transaction concluded by the agreement; and by virtue of such knowledge his endorsement of or consent to that transaction---Such and other facts in the case would have bearing upon the question whether the vendor could, in the circumstances of the case, be treated to be a party to the second agreement to sell---Plaintiff had a case that disclosed a cause of action and a right that was not barred by law to attract rejection of plaint---Commercial transaction could be concluded through a string of agreements; such agreements were not unknown to legal jurisprudence---Back to back agreements could create effective legal relations between a series of parties provided the essential links of consent by knowledge of the relevant persons remained present through the transactions---Such area was covered by the law of assignment---Law had made a distinction based on knowledge and consent on this point; requirement for consent differed on considerations whether it was the benefit of a contract that was being passed or its burden---Benefit of the vendor's promise under the first agreement to sell was capable of being assigned to the vendee under the second agreement to sell---Person whose consent in the present case was prima facie relevant and necessary was the vendee who was the promisee under the vendor's promise---First vendee's contractual right under the first agreement might, with his consent, be transferred to a second vendee, however the first agreement might not be assignable without the vendor's consent if it were a personal contract---If there was any such consideration in the contract apart from payment of money then the vendor's consent would also be required---Such consent in fact was claimed by the plaintiff---Suit of the plaintiff, in circumstances, was neither barred by law nor devoid of a cause of action so as to be defeated at the very outset under O.VII, R.11, C.P.C.---Impugned judgments of the Courts below were set aside and the plaint of the plaintiff in the suit was restored to its original number for its trial and adjudication in accordance with law.

Khardah Company Limited v. Raymon & Co. (India) Private Ltd. AIR 1962 SC 1810 fol.

Rashid Ahmed Khokhar v. Sana Ullah 1997 CLC 1159 ref.

Ch. Zahoor-ul-Haq and M. Aslam for Petitioner.

Nemo for Respondents Nos. 1 to 4 and 9 to 11.

Mian Sultan Tanveer for Respondents Nos.5 and 6.

Ch. Nisar Ahmad Dhilon for Respondents Nos. 12 and 13.

Date of hearing: 21st April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1389 #

2005 C L C 1389

[Lahore]

Before Abdul Shakoor Paracha, J

TAHIR HUSNAIN AZIZ and another---Petitioners

Versus

UNIVERSITY OF PUNJAB through Vice-Chairman and 2 others---Respondents

Writ Petitions Nos.874 and 875 of 2005, decided on 21st April, 2005.

Calendar of the University of the Punjab, 1998---

----Vol. II, Reglns. 2 & 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---LL.B. Part-III Annual Examination to be held in August, 2003, appearance in---Eligibility---Appearance of petitioner in LL.B., Part-III Supplementary Examination, 2003 in full subjects under interim orders of the High Court passed in Constitutional petition---Refusal of University to announce result of petitioner---Validity---Petitioner was not entitled to appear in LL.B. Part-III Annual Examination to be held in August, 2003 as he had not passed LL.B. Part-II Examination, which was announced on 28-2-2004---Interim orders of High Court were subject to result of Constitutional petition---High Court dismissed Constitutional petition for having no merits.

Ajam Naz Malik for Petitioners.

M.D. Shehzad for the University.

CLC 2005 LAHORE HIGH COURT LAHORE 1401 #

2005 C L C 1401

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. BARKAT BIBI---Petitioner

Versus

Mst. SALMA BIBI and 2 others---Respondents

Writ Petition No.9370 of 2005, decided on 30th May, 2005.

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

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for setting aside of ex parte decree on ground of fraud---Trial Court after recording evidence, dismissed application, but same was accepted by Revisional Court---Validity---Counsel engaged by applicant had filed his power of attorney in suit---Due to subsequent non-appearance of applicant and her counsel, Trial Court had no alternative except to decree suit ex parte---Applicant after knowing about ex parte decree had not filed the application well in time---Applicant before filing such application had gifted suit-land to her son---Revisional Court had passed impugned order after considering the reasoning of Trial Court and reappraisal of evidence on record---High Court refused to exercise discretion in favour of petitioner and dismissed Constitutional petition.

Abdul Rehman v. Shukar Din 1983 CLC 1441; Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Tanvir Jamshed v. Raja Ghulam Haider 1992 SCMR 917; Mumtaz Bibi and others v. Ghulam Akbar 1995 MLD 1175; Anees Haider v. Additional District Judge, Lahore 2003 CLC 462; Mst. Rasheeda Begum and others v. Muhammad Yousaf 2002 SCMR 1089; Muhammad v. Mst. Rehman 1998 SCMR 1354 and Allah Dad and others v. Dhuman Khan and others 2005 SCMR 564 ref.

Mohsin Khan and others v. Chief Settlement Commissioner and others 1969 SCMR 306; Suleman and 4 others v. Board of Revenue, Lahore 1970 SCMR 574; Nawab Syed Raunaq Ali v. Chief Settlement Committee PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner and others 1998 SCMR 1462; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106 and G.M. Malik, Chairman, Board v. Province of Punjab and others 1990 CLC 1783 rel.

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

----Art. 199---Constitutional petition---Findings of Tribunal below---Validity---High Court in exercise of Constitutional jurisdiction could not substitute its own findings in place of findings of Tribunal below.

Board of I&S.E. Lahore v. M, Musaddaq Naseem PLD 1973 Lah. 600; Syed Azmat Ali Shah v. Chief Settlement Commissioner and others PLD 1964 SC 260 rel.

----Art. 199---Constitutional petition---Laches---Impugned order was passed on 22-2-2005--Certified copy was obtained on 7-4-2005---Constitutional petition was filed on 28-5-2005---Validity---Petitioner would not be entitled to discretionary relief from High Court---Constitutional petition was dismissed on ground of laches.

Federation of Pakistan and others v. Haji M. Saif Ullah Khan and others PLD 1989 SC 166; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 rel.

(d) Precedent---

----Each and every case would be decided on its own peculiar facts and circumstances.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

S.M. Tayyab for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1412 #

2005 C L C 1412

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. BAGH SULTAN and 4 others---Petitioners

Versus

MUHAMMAD MASKEEN and another---Respondents

Civil Miscellaneous Nos.289, 290, 291, 292/C of 2005 in Civil Revision No.251 of 1996, decided on 24th May, 2005.

(a) Partition--

----Suit for---Plaintiffs as heirs of "F" claimed to be co-sharers in suit-land---Defendants challenging inheritance of "F" though not his descendants---Validity---Defendants would have no locus standi to pray for dismissal of partition suit on the ground that share of "F" was incorrectly given to plaintiffs---Principles illustrated.

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

---S. 12(2)---Limitation Act (IX of 1908), Art.181---Application under S.12(2), C.P.C. after six years of passing of impugned judgment---Validity---No period of limitation was provided under law for filing such application---Article 181 of Limitation Act, 1908 would govern such application---Impugned judgment had been passed in presence of applicant---No plausible explanation was given for such inordinate delay---Such application was dismissed as time-barred.

----Ss. 12(2), 115 & O.VIII, R.1---Application for setting aside judgment of High Court passed in revision---Disputing correctness of mutation in such application---Plea not raised in written statement by applicant, but raised for the first time in such application after losing case upto level of Supreme Court---Validity---After decision of case on merits by Supreme Court High Court would not be in a position to annul its own judgment as its net result would be setting aside of judgment of Supreme Court against which High Court could not sit in appeal---Applicant could not set up such plea and would have no locus standi to challenge judgment of High Court on its basis---High Court dismissed such application circumstances.

Razzaq A. Mirza for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1418 #

2005 C L C 1418

[Lahore]

Before Ch. Ijaz Ahmad, J

IFTIKHAR AHMAD-Petitioner

Versus

DEPUTY COMMISSIONER/COLLECTOR, GUJRANWALA and 9 others---Respondents

Writ Petition No.9152 of 2005, decided on 26th May, 2005.

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

---Art. 199---Constitutional petition---Maintainability---Concurrent findings of fact by the Tribunals below---Effect---Constitutional petition was not maintainable against concurrent findings.

Khuda Bakhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan Ahmad and others PLD 1981 SC 522 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Substituting findings of Tribunals below---Scope---High Court, while exercising powers under Art.199 of the Constitution, has no jurisdiction to substitute its own findings in place of findings of Tribunals below.

Board of I.&S.E. Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600 and Syed Azmat Ali Shah v. Chief Settlement Commissioner and others PLD 1964 SC 260 rel.

----Art. 199---Constitutional petition---Maintainability---Principle of laches---Applicability---Petitioner assailed the order passed by Settlement Authorities before Board of Revenue---Board of Revenue declined to interfere with the order on the ground of lack of jurisdiction---Validity---Board of Revenue had rightly observed that it had no jurisdiction to assume jurisdiction qua orders which were passed by Settlement Authorities---Constitutional jurisdiction is discretionary in character and he who seeks equity must come to the Court with clean hands and must be vigilant for his rights---Board of Revenue had passed order on 16-4-2004, whereas petitioner had filed present petition on 25-5-2005, therefore, the Constitutional petition was liable to be dismissed on the principle of laches---High Court declined to interfere in the order passed by Board of Revenue---Petition was dismissed in circumstances.

Federation of Pakistan and others v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Khawaja Muhammad Sharif v. Federation of Pakistan and 18 others PLD 1988 Lah. 725; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Ahsanullah Khan v. Chief Settlement Commissioner, West Pakistan PLD 1966 Lah. 723 rel.

Ch. Javaid Bashir Cheema for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. assisted by M.A. Aziz on Court's call for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1432 #

2005 C L C 1432

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD LATIF---Petitioner

Versus

MUHAMMAD ABID---Respondent

Civil Revision No.230 of 2003/BWP, decided on 17th May, 2005.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of money on basis of pro note---Ex parte decree, setting aside of---Dismissal of application for setting aside of ex parte decree on the ground of its non-maintainability for being not accompanied by petition for leave to appear and defend suit---Validity---Applicant-defendant could not be considered as party before Court, unless ex parte decree was set aside---Petition for leave to appear and defend suit would be required for purposes of filing written statement, and was not a condition precedent for filing application for setting aside ex parte decree---No suit was pending at the time of filing application for setting aside of ex parte decree---Question, whether applicant's default in non-appearance was intentional at the time of passing of ex parte decree or due to some other reason, could be determined after recording of evidence---High Court accepted revision petition and set aside ex parte decree with direction to Trial Court to decide application after framing issue and recording evidence of parties.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of money---Ex parte decree, setting aside of---Non-furnishing of sufficient security for satisfaction of possible decree to be passed against defendant after setting aside of ex parte decree---Held, plaintiff would be at liberty to continue execution proceedings already launched against defendant in respect of ex parte decree.

M. Shamshir Iqbal Chughtai for Petitioner.

Rana Muhammad Javed for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 1435 #

2005 C L C 1435

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed ZARIF HUSSAIN SHAH---Petitioner

versus

PROVINCE OF THE PUNJAB through District Officer (Revenue), Jhang and 6 others---Respondents

Writ Petition No.8899 of 2005, decided on 26th May, 2005.

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

----Ss. 10 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate remedy---Factual controversies---Colombo Plan Scheme---Proprietary rights, grant of---Case of petitioner was recommended for grant of proprietary rights to him---Authorities, instead of deciding his applications, passed ex parte order against him---Plea raised by petitioner was that order passed by Revenue Authorities was not in consonance with the provisions of S.24 of Colonization of Government Lands (Punjab) Act, 1912)---Validity---Petitioner had more than one alternate remedy available against the order, before higher Revenue Authorities under the provisions of law, therefore Constitutional petition was not maintainable---Controversy could not be resolved without recording evidence of parties, which was not permissible in the eye of law, as High Court seldom records evidence while exercising power under Art.199 of the Constitution---Case of petitioner involved disputed question of fact and High Court had no jurisdiction to resolve such question in Constitutional jurisdiction---High Court in the interest of justice and fairplay and keeping in view the peculiar circumstances of the case, allowed petitioner a ten days time to approach the Authorities for availing alternate remedy---Petition was disposed of accordingly.

Messrs Airport Support Service's case 1998 SCMR 2268; Asian Food Industries Ltd. and others v. Pakistan and others 1985' SCMR 1753; Khizar Hayat v. Member, Board of Colony 2004 CLC 1960; S. Abdur Rahim and others v. The Member Board of Revenue (Colonies), West Pakistan, Lahore and others 1989 MLD 2299; Anjuman-e-Ahmadiya v. Deputy Commissioner and others PLD 1966 SC 639; Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395; Bashir Ahmad and others v. M.B.R. (Colonies), and others NLR 1980 Revenue Lah. 33; Noor Ahmad v. Member, Board of Revenue 1986 MLD 2065; Ghazi Fabric International Ltd. v. WAPDA and 3 others PLD 2000 Lah. 349; Mst. Razia Begum v. Cantonment Board, Clifton and others 2000 YLR 2114; Town Committee v. Authority under the Payment and others PLD 2002 SC 452; Messrs Ahmad Clinic v. Government of Sindh and others 2003 CLC 1196 and Muhammad Aslam v. Senior Member (Colonies) and others 2004 SCMR 1587 distinguished.

Writ Petition No.4174 of 1998 and Muhammad Younas Khan v. Government of N.-W.F.P. 1993 SCMR 618 rel.

(b) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

----Principle of consistency---High Court haling already formed a view, declined to deviate from its own view on the principle of consistency.

Muhammad Muzaffar Khan v. Yousaf Khan PLD 1959 SC 9 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. assisted by M.A. Aziz on Court's call for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1447 #

2005 C L C 1447

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

TAYYAB IQBAL---Petitioner

Versus

MEMBER, (COLONIES) BOARD OF REVENUE, PUNJAB LAHORE and 3 others-Respondents

Review Petitions Nos.12 to 23 of 2004 in Writ Petition No.3816 of 2003, decided on 7th April, 2005.

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

----Art. 199---Constitutional petition---Limitation---Laches, condonation of---Constitutional petition has to be filed within a reasonable time i.e. time requisite for filing of appeals/revisions before High Court, which is normally three (3) months---Filing of petition after four years of passing of order impugned therein, would suffer from laches---Non-filing of application for condonation of laches by giving reasons---Such inordinate unexplained delay in approaching High Court could not be condoned---Principles.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 rel.

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

----Art. 199---Constitutional petition---Pendency of civil suit before Trial/ Appellate/Revisional Courts filed against same order challenged in Constitutional petition--Effect---Pending determination of civil suit, invocation of Constitutional jurisdiction would not only be with unclean hands/mala fide, but also illegal.

Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238; Brig. Sahibdad Khan v. Secretary, Colonies, Board of Revenue, Government of the Punjab, Lahore and 5 others PLD 2000 Lah. 244; Haji Bossa Limited and others v. The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another 1986 CLC 1193 rel.

----Art. 199---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Judgment in Constitutional petition---Review---Petitioner did not point out discovery of any new/important piece of evidence, which after exercise of due diligence, was not within his knowledge at the time of passing such judgment---No mistake or error apparent on the face of record or any sufficient reason justifying review was pointed out---No case for review was made out---Review petition was dismissed.

Peer Ahmad Shah Khaga for Petitioner.

Ch. Jamshaid Hussain Assistant Advocate-General and Zeeshan Qamar, J.C. D.O.R. Office Khanewal.

CLC 2005 LAHORE HIGH COURT LAHORE 1472 #

2005 C L C 1472

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. NOREEN IQBAL---Petitioner

Versus

SOHAIL IQBAL and others---Respondents

C.M. No.126/C of 2004 in Transfer Application No.3/C of 2004, decided on 18th April, 2005.

(a) Divorce Act (IV of 1869)---

----Ss. 3(3) & 10---Petition for dissolution .of marriage---Territorial jurisdiction of Court of Civil Judge---Scope and extent---Such petition could be filed in the Court of Civil Judge, where spouses resided or had been residing together.

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

----Preamble, S.5 & Sched.---Family cases by non-Muslims-Law applicable---Provisions of West Pakistan Family Courts Act, 1964 would apply to such cases.

Mrs. Daphne Joseph v. Malik Eric Roshan Khan PLD 1978 Kar. 336; Mian Ziaud Din v. Punjab Local Government and others 1985 SCMR 365; The Chairman, Railway Board, Lahore and others v. Messrs M. Wahabud Din and sons PLD 1990 SC 1034 and Messrs Mehraj Flour Mills and others v. Provincial Government and others (sic) ref.

Sultan Ahmad v. Mst. Mehr Bhari and another PLD 1982 FSC 48; Mulchand v. Smt. Indra and others PLD 1985 Kar. 362; Mst. Shamshad Yousaf v. Yousaf Masih 1994 MLD 1078; Ramdas v. Mst. Bernadat PLD 1998 Kar. 42; Naeem Ahmad v. Nuzhat Almas and 2 others 1981 CLC 195; Mrs. Daphne Joseph v. Malik Eric Roshan Khan PLD 1971 Kar. 887 rel.

----Preamble, Ss.5, 25-A & Sched.---Divorce Act (IV of 1869), S.10---Civil Procedure Code (V of 1908), S.24---Suit/petition by non-Muslim for dissolution of marriage---Transfer of case from one Court to another Court---Scope---Nature---Transfer of family suit from one Court to another was a matter of procedure only---Application of S.25-A of West Pakistan Family Courts Act, 1964 to the cases by non-Muslims, thus, would not be barred---Court of Civil Judge was empowered to hear petition filed under S.10 of Divorce Act, 1869---Procedure provided in C.P.C. would be attracted to cases tried by Civil Court---High Court had power under S.24, C.P.C., to transfer any case pending before Civil Court to any other Court of competent jurisdiction--Principles.

Ajmal Kamal Mirza for Petitioner.

Sanaullah Zahid for Applicant/respondent No. 1.

CLC 2005 LAHORE HIGH COURT LAHORE 1478 #

2005 C L C 1478

[Lahore]

Before Ch. Ijaz Ahmad, J

Mirza ALLAH DITTA alias MIRZA JAVED AKHTAR---Petitioner

Versus

AMNA BIBI and 2 others---Respondents

Writ Petition No.9447 of 2005, decided on 1st June, 2005.

(a) Precedent---

----Each and every case would be decided on its own peculiar facts and circumstances.

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

----Art. 185(3)---Petition for leave to appeal---Pendency of such petition without suspension of impugned judgment/decree---Effect---Courts below would not be barred to proceed in the matter.

----O. VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of plaint, application for---Dismissal of application by Trial Court and Revisional Court---Effect---Constitutional petition would not be competent.

Allah Bakhsh and others v. Dr. Abdul Waheed and others PLD 1996 Kar. 458; Riaz Ahmad v. Dr. Amtul Hameed Koser and 8 others 1996 CLC Kar. 678; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; and Haji Mir Alam Shah v. Adam Khan and 16 others 2004 CLC 1100 ref.

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

----Art. 199---Concurrent findings of fact by Courts below---Validity---High Court had no jurisdiction to substitute its own findings in place of such findings of Courts below.

Board of I.& S.E. Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600 and Syed Azmat Ali Shah v. Chief Settlement and others PLD 1964 SC 260 rel.

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

----S. 115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impugned order passed by District Judge under S.115, C.P.C.---Constitutional petition may lie against such order in proper cases but same would not be entertained merely that another view was possible.

Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and others v. Lal Muhammad and others 1988 SCMR 322; Pakistan through Secretary v. Special Court (Banking) 1991 SCMR 2355 and Mst. Iqbal Begum v. Muhammad Akbar and others 992 CLC 232 rel.

Sh. Naveed Shahryar for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1486 #

2005 C L C 1486

[Lahore]

Before Muhammad Akhtar Shabbir, J

M.D. TAHIR, ADVOCATE---Petitioner

Versus

PUNJAB GOVERNMENT through Chief Secretary Punjab, Civil Secretariat, Lahore and 4 others---Respondents

Writ Petition No.2801 of 1996, decided on 6th April, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Manufacturing of substandard stoves/oil Chullas---Direction for registration of criminal cases against manufacturers of said substandard stoves---Petitioner had sought issuance of a direction to authorities for non-performance of their duties, taking action against manufacturers, sellers of substandard stoves/Chullas causing death through explosion of kerosene oil and for registration of cases against those persons who were supplying to the public sub-standard stoves---Authorities in their comments had stated that Government, from time to time, had been issuing notifications to bring certain items under compulsory "Certification Marks Scheme" for issuance of manufacturing licences and those licences were issued only after ascertaining that proper quality control facilities were available with the manufacturers---Authorities/Government was proved to be vigilant about activities of those persons, who prepared and supplied to the market the stoves/Chullas manufactured with substandard material---Provincial and Federal Governments were not silent and were proceeding in accordance with law against delinquent persons---Even otherwise business of manufacturing and selling of oil stoves was decreasing in the country as people in general were losing the trend of purchasing said stoves---Authorities were directed to continue their efforts in eradicating the trend of manufacturing substandard stoves/Chullas to save the lives of innocent people.

Petitioner in person.

Danishwar Malik, Deputy Attorney-General for Pakistan for Respondents.

Date of hearing: 6th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1488 #

2005 C L C 1488

[Lahore]

Before Muhammad Akhtar Shabbir, J

NAZIR AHMED---Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, GOVERNMENT OF PUNJAB and 3 others---Respondents

Writ Petition No.9824 of 2005, decided 3rd June, 2005.

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

----S. 30(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---State land---Acquisition of proprietary rights by respondent upheld in revenue hierarchy---Alleging such allotment in Constitutional petition to be result of fraud and misrepresentation after lapse of 24 years---Validity---Question of fact involved would require recording of evidence and examination of record---High Court in exercise of Constitutional jurisdiction would not go into such matter--No illegality or jurisdictional defect could be pointed out in impugned order---High Court dismissed Constitutional petition in limine.

Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918 and Federation of Pakistan and 2 others v. Major (Rtd.) Muhammad Sabir Khan PLD 1991 SC 476 ref.

Ali Baqar Najafi for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1490 #

2005 C L C 1490

[Lahore]

Before Ch. Ijaz Ahmad, J

YOUSAF BAIG---Petitioner

Versus

TEHSILDAR, TEHSIL SARA-E-ALAMGIR, DISTRICT GUJRAT and another---Respondents

Writ Petition No.9257 of 2005, decided on 27th May, 2005.

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

----Arts. 4 & 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Public functionaries---Applications of citizens, deciding of---Grievance of petitioner was that Revenue Authorities had not decided his application for securing Fard Milkiyat---Validity---Duty and obligation of public functionaries to decide application of citizens without fear, favour and nepotism within reasonable time as was envisaged by Art.4 of the Constitution read with S.24-A of General Clauses Act, 1897---High Court directed the petitioner to appear before the officer concerned who would pass an appropriate order in accordance with law after providing proper hearing to all concerned including .the petitioner and any other person who would be aggrieved by his order---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.

(b) Interpretation of statutes---

----Duty of Court---Scope---Court has to interpret law and other organs of State have to discharge their duties within parameters prescribed by law.

----S. 24-A---Deciding of applications of citizens by public functionaries---Import, object and scope---On account of non-exercising power by public functionaries, Legislature was compelled to add S.24-A in General Clauses Act, 1897, according to which it was made duty and obligation of public functionaries to decide application of citizens without fear, favour and nepotism within reasonable time.

Messrs Airport Sport Service's case 1998 SCMR 2268 and Zain Yar Khan's case 1998 SCMR 2419 rel.

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

----Art. 5(2)---Mandate of Constitution---Scope---Mandate of Constitution is binding on each and every organ of the State and every body is bound by command of the Constitution as per Art.5(2) of the Constitution.

Ch. Zahoor Ellahi's case PLD 1975 SC 383 rel.

Aurangzeb Chaudhry for Petitioner.

M. Hanif Khatana, Addl. A.-G. for Respondents on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1507 #

2005 C L C 1507

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AKBAR KHAN---Petitioner

Versus

MUHAMMAD BILAL AHMAD and 7 others---Respondents

Civil Revision No.386 of 2005, decided on 25th May, 2005.

Civil Procedure Code (V of 1908)---

----S. 48 [as amended by Law Reforms Ordinance (XII of 1972)]---Limitation Act (IX of 1908), Art.181---Execution petition---Limitation---Article 181 of Limitation Act, 1908 would apply in cases in which limitation was not provided in its Schedule or by S.48, C.P.C.---Limitation for filing execution petition as provided by S.48, C.P.C. was six years from date of decree---Reference in this regard to Art.181 of Limitation Act, 1908, thus, would be misplaced.

Secretary . to Government of N.-W.F.P. Forest Department, Peshawar and another v. Abdur Rehman and 2 others 2000 CLC 1047; Habib Bank Ltd. v. Remifar (Pakistan) Ltd. and 5 others PLD 2000 Kar. 46 and Muhammad Bakhsh and 2 others v. Muhammad Bakhsh and 9 others 1981 CLC 98 ref.

Qazi Muhammad Tariq for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1509 #

2005 C L C 1509

[Lahore]

Before Syed Zahid Hussain, J

AAMER MUSHTAQ DAR---Petitioner

Versus

WAPDA through Chairman, Lahore and 4 others---Respondents

Writ Petition No.5613 of 2003, heard on 31st May, 2004.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2 & O.XXVII, R. 8--Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount of damages---Suing public officials in private capacity---Suit was filed by plaintiff against Authority through its Chairman along with other defendants the officers of Authority in their private capacity---Pending suit said other defendants filed application under O.XXVII, R.8, C.P.C. contending that they having acted and performed their Government duty should not be treated as party in their personal capacity and should not be sued in private capacity---Said application of the defendants was accepted by Trial Court and also by Appellate Court in revision and plaintiff had filed Constitutional petition against orders of Court below---Validity---Alleged inaction on part of other defendants pertained to and had nexus with their official duties and competent Authority had decided to contest suit in its official capacity and defendant Authority would be liable for its consequences---Since defendant Authority was prepared and had undertaken to contest the matter and to accept the liability on behalf of its employees/the other defendants, rights of plaintiff in eventuality of a decree if so passed in his favour, would be fully safeguarded in view of said undertaking---Grant of relief by High Court in its Constitutional jurisdiction was discretionary and High Court would have to keep in view all such aspects of matter while exercising or declining to exercise its Constitutional jurisdiction and it could not be overlooked that impugned order was passed on an interlocutory application and interference with such a matter in any case was not appropriate.

Secretary, B&R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Tahir A. Khan v. Central Board of Revenue and others 2003 YLR 196; WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18; WAPDA v. Muhammad Zubair and others 1997 PLC (C.S.) 189; Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others PLD 1999 Kar. 257 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 ref.

Mushtaq Ahmad Khalid for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 31st May, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 1512 #

2005 C L C 1512

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM MUHAMMAD---Petitioner

Versus

MEMBER, (JUDICIAL-III), BOARD OF REVENUE PUNJAB, LAHORE---Respondent

Writ Petitions Nos.8786, 8787 and 8788 of 2005, decided on 25th May, 2005.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Principle of laches---Review before Board of Revenue---Filing of five review petitions successively---Petitioners had filed various review petitions before Board of Revenue and last and fifth review petition was rejected on 10-3-2005---Validity---No provision existed under the law to file second review petition before Board of Revenue, therefore, order whereby first review petitions were rejected, had become final between the parties---Petitioners had not challenged the same well in time, therefore, Constitutional petitions were liable to be dismissed on the principle of laches---Petitions were dismissed in circumstances.

Member (Colonies) Board of Revenue v. Taj Muhammad 2003 SCMR 1349 and Aziz Din v. Member, Board of Revenue 2003 SCMR 1985 ref.

Federation of Pakistan and others v. Haji M. Saif-ullah Khan and others PLD 1989 SC 166 and Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 rel.

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

----Art. 199---Constitutional petition---Material facts, concealing of---Petitioners were aggrieved of the orders passed by Board of Revenue in five successive review petitions but they did not attach any' review petition filed by them with present, petition---Effect---Such fact had brought the case of petitioners in the area that they had concealed the material facts from High Court---He who seeks equity must come to the Court with clean hands---Petitioners had not approached High Court with clean hands by not attaching review petitions with Constitutional petition---High Court declined to exercise discretion in favour of petitioners-Petition was dismissed in circumstances.

Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Principal, K.E.M. College v. Ghulam Mustafa and others 1983 SCMR 196 rel.

----Art. 189---Judgment of Supreme Court---Effect---Such judgment has prospective effect and not retrospective effect.

Muhammad Yousaf v. Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 101 rel.

Ch. Nazar Hussain for Petitioners.

Muhammad Hanif Khatana, Addl. A.-G. assisted by M.A. Aziz for Respondents on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1515 #

2005 C L C 1515

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and others---Respondents

Writ Petition No.14112 of 2003, decided on 21st January, 2004.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application for setting aside decree on ground of fraud---Limitation---Applicant not party to suit---Provision of Art.181, Limitation Act, 1908 would govern such application---Limitation for filing such application would start from date of knowledge of applicant about decree and not from date of decree---Principles illustrated.

Malik Yar Muhammad and 3 others v. Muhammad Farooq Ahmad Khan and 3 others 2000 MLD 322; Abdul Aziz and 6 others v. Member, Board of Revenue and 15 others 1998 SCMR 1078 and Inter Home (Pvt.) v. Pakistan Steel Mills Corporation PLD 1992 Kar. 99 ref.

Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 and Allah Bakhsh and another v. Irshad Begum and others 1986 SCMR 1496 fol.

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

----S. 12(2) & O.VII, R.11---Limitation Act (IX of 1908), Art.181---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for setting aside decree on ground of fraud and misrepresentation---Disputed property earlier allotted of "T" was subsequently allotted to applicant, which allotment remained intact upto Supreme Court--Suit by "S" in respect of disputed property alleging its sale by "T" without impleading applicant as party---Passing of consent decree on 2-4-1996 on basis of confessional statement of "T"---Applicant getting knowledge on 4-11-1998 about decree during proceedings in another suit---Filing of application under S.12(2), C.P.C. on 22-10-2001--Rejection of application under O.VII, R.11, C.P.C. as being time-barred by Trial Court and Revisional Court---Validity---Date of knowledge asserted by applicant had not been denied by "T" and "S"---Article 181 of Limitation Act, 1908 would govern such application---Period of limitation for filing such application by a person not party to suit would run from date of his knowledge and not from date of decree---Limitation being a mixed question of law and fact could not be decided without providing parties an opportunity to prove their respective stances by leading evidence---High Court accepted Constitutional petition and declared impugned orders as illegal with directions to Trial Court to decide such application after framing of issues and recording of evidence.

Fida Hussain V. Ghulam Sarwar 2002 SCMR 1554; Allah Bakhsh and another v. Irshad Begum and others 1986 SCMR 1496 and 1999 SCMR 2396 rel.

----Limitation is a mixed question of law and fact, which in certain cases, cannot be decided without recording of evidence.

1999 SCMR 2396 rel.

Ch. Azeem Sarwar for Petitioner.

Muhammad Shahzad Shaukat for Respondents Nos.3 to 7.

Date of hearing: 21st January, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 1538 #

2005 C L C 1538

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AMEER and 7 others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector, Okara and 23 others---Respondents

Civil Revision No.1526 of 1998, decided on 10th May, 2005.

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

----S. 115--Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Revision---Matter related to mutation of inheritance---Both the Courts below had not only miscomprehended the controversy but also misread the record---Misreading of documents or misunderstanding of revenue record by the Appellate Court, had resulted into incorrect and unsustainable findings by it---Appellate Court had not attempted to compare all the pedigree-tables produced by both the parties---Had this exercise been undertaken by the Appellate Court, fate of the case would have been altogether different---Judgments/decrees passed by the two Courts below were in clear conflict with evidence on the record, the same were not sustainable at law being tainted with material irregularities/illegalities---Consequently the same were set aside and revision was accepted, with the result that suit of the plaintiff was decreed.

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

----S. 3---Co-sharer---Mutation---Joint Khata---Undeniably share of produce was being paid by the co-sharer in possession of land---Sanctioning of mutation with regard to such land being ab initio void, would not fix point for starting of limitation against the co-sharers in whose absence, mutation was sanctioned.

Muhammad Nawaz and others v. Mst. Ismat Jan 1986 SCMR 1238 fol.

----Ss. 42 & 54-West Pakistan Land Revenue Act (XVII of 1967), S.53---Suit for declaration---Mutation---Parties were holding joint Khata in land---Even adverse entries in the revenue record and non-participation in the profits of the suit property, would not amount to ouster of co-sharer as wrong sanctioning of mutation conferred no right in the property to the persons in whose favour it was sanctioned---Co sharers/co-owners were not obliged to file a suit for declaration that mutation had wrongly been sanctioned because such persons could file suit on denial of their rights by their adversaries---Plaintiffs, in the present case, had averred in their plaint that the defendants had been paying their share of produce and said assertion was supported by their oral evidence which remained unrebutted and according to their contention, their proprietary rights were denied by the defendants only two days earlier to filing of the suit---Held, neither the defendants were in adverse possession which could mature in title nor suit of the plaintiffs was barred by limitation and plaintiffs were also not estopped from filing suit for declaration.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

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

---O. XLI, R. 22---Dismissal of suit by the Trial Court only on one issue relating to the limitation and other issues were answered in favour of respondent---Non-filing of cross-objections by respondent---Effect---Respondent who does not file an appeal or cross-objection against a part of a decree can nevertheless support the decree under O.XLI, R.22, C.P.C. on any of the issues decided against him by the Court---Appellate Court, however,' in an appropriate 'case, may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which had been found against him in the judgment and decree.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 quoted.

Malik Abdul Wahid for Petitioners.

Shaukat Hussain Khan Baloch for Respondents.

Date of hearing: 5th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1546 #

2005 C L C 1546

[Lahore]

Before Ch. Ijaz Ahmad, J

MIAN GUL through L.Rs.---Petitioners

Versus

SAMAR GUL and 2 others---Respondents

Civil Revision No.1104 of 2005, decided on 26th May, 2005.

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

----S. 42---Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Concurrent findings of fact by the Courts below---Sanction of mutation on the basis of decree passed by Civil Court---Pre-emption suit filed earlier by defendant was decreed in his favour on the basis of compromise---Execution petition filed by defendant was dismissed for non-prosecution but he instead of getting the petition restored, filed application before Revenue Authorities for implementation of decree---Application filed by defendant for implementation of decree was dismissed by Revenue Officer as well as by Appellate Authority but Board of Revenue accepted the revision and set aside the orders passed by Revenue Officer as well as by Appellate Authority---Plaintiffs being aggrieved of the order passed by Board of Revenue filed the present suit and sought interim injunction against the order passed by Board of Revenue---Validity---Held, it was the duty and obligation of Revenue Authorities to sanction the mutation on the basis of decree, therefore, Revenue Authorities erred in law not to sanction the mutation in favour of defendant on his application---Both the Courts below had concurrently refused to exercise discretion in favour of plaintiffs which was in consonance with the law laid down by Supreme Court in case of Shahzada Muhammad Umar Baig, reported as PLD 1970 SC 139-High Court declined to interfere in the orders passed by the Courts below and directed the Trial Court to decide the case without being influenced by the observation made by it.

Mst. Haliman Bibi's case 1989 CLC 1588; Abdul Hamid's case PLD 1969 Dacca 357 and Messrs Capital Farms Islamabad's case PLD 1996 Lah. 99 distinguished.

Ali Ahmad's case PLD 1973 Lah. 207; Maulvi Abdul Qayyum's case 1992 SCMR 241; Shahzada Muhammad Umar Baig's case PLD 1970 SC 139; N.S. Vankatagiri Ayyangar and another's case PLD 1949 PC 26; 1985 CLC 657 and Ghulam Qadir's case PLD 1988 SC 625 rel.

(b) Order---

----Interim order---Observations---Nature---Observations in interim order are of tentative in nature.

Malik Amir Muhammad Joya for Petitioners.

Muhammad Hanif Khatana, Addl. A.-G. entered appearance on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1571 #

2005 C L C 1571

[Lahore]

Before Muhammad Muzammal Khan, J

ZAFAR IQBAL and 5 others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector Gujrat and 10 others---Respondents

Civil Revision No.1570 of 2001, heard on 14th April, 2005.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.42, 44 & 164---Suit for declaration---Inheritance mutation sanctioned in favour of daughter of deceased was confirmed in appeal by Collector---Additional Commissioner (Revenue) annulled mutation for its non-attestation by Lambardar of Village and non-mentioning the name of daughter in pedigree-table---Validity---Both such reasons were not lawful and sufficient to deprive. a person from hereditary rights---Pedigree-table prepared earlier to birth of plaintiff was not supposed to carry her name therein---Agriculturists tribes in Central Punjab were being governed by custom, whereunder daughters normally did not inherit---Name of a female, not entitled to inherit under custom was not to be included in pedigree-table as same was prepared on basis of mutations/Jamabandis---Veracity of statements of plaintiff's witnesses that she was daughter of deceased, could not be shaken during the cross-examination---Plaintiff's birth entry made 75 years ago showed her to be daughter of deceased and found name of her grandfather mentioned therein-,--Such entry having not been annulled by any competent Court, would have its own evidentiary value and could not be disbelieved for simple reason that deceased was not residing at plaintiff's place of birth---Commissioner had exceeded jurisdiction for not leaving such dispute to be determined by Civil ' Court---Plaintiff being daughter of deceased her suit was decreed accordingly.

(b) Custom (Punjab)----

---Inheritance by females---Agriculturists in Central Punjab were being governed by custom whereunder daughters normally did not inherit---Name of a female, not entitled to inherit under custom was not to be included in pedigree-table as same was prepared on basis of mutations/Jamabandis.

----Ss. 42, 44 & 164---Mutation of inheritance---Mutation attested by Revenue Officer was confirmed in appeal by Collector---Additional Commissioner (Revenue) in exercise of revisional jurisdiction annulled mutation---Validity---Mutation proceedings were summary in nature---Rights of inheritance involving intricate questions could not be determined in summary proceedings like mutation---Additional Commissioner was supposed to decide such matter within parameters applicable to Revenue Officer while sanctioning mutation---Additional Commissioner should have left dispute of inheritance for its determination to Civil Court on being approached by aggrieved party---Additional Commissioner had exercised excessive jurisdiction not vested in him.

(d) West Pakistan Land Revenue Act (XVII of I967)-------

-S. 42---Mutation---Evidentiary value---Mutation itself would not create or extinguish right in any property as same was maintained only for fiscal purposes.

(e) Islamic Law---

----Inheritance---Property belonging to deceased on his death would vest in his heirs---Persons so inheriting property would hold the same irrespective of entries in Revenue Record.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----S. 115--Revision---Concurrent findings of fact by Courts below---Validity---Such findings if tainted with material irregularity/illegality, would neither be immune from interference by High Court nor could be allowed to be sustained.

Ms. Gulzar Butt for Petitioners.

Kh. Muhammad Saeed for Respondents Nos.1 to 4.

Ch. Muhammad Sadiq for Respondents Nos.7 to 10.

Date of hearing; 14th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1580 #

2005 C L C 1580

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. AMNA BANO and 6 others---Petitioners

Versus

BASHIR AHMAD and 2 others---Respondents

Civil Revision No.204-D of 1992/BWP, heard on 17th January, 2005.

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

----S. 13---Civil Procedure Code (V of 1908), O.VII, R.11---Pry-emption suit---Plaint disclosing performance of three Talbs---Validity---Such plaint could not be rejected for non-disclosure of Talbs.

Mehr Moman Khan v. Ghulam Abbas and 3 others 2001 SCMR 1979 ref.

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

---Ss. 5, 13 & 35(2)---Civil Procedure Code (V of 1908), O.VII, R. 11-Pre-emption suit---Limitation---Rejection of plaint by Trial Court on 21-4-1992---Dismissal of suit as time-barred by Appellate Court---Plea of plaintiff was that Punjab Pre-emption Act, 1991 came into force during pendency of suit, thus, suit filed within one year of sale was within time---Validity---Shariat Appellate Bench of Supreme Court through judgment reported as PLD 1994 SC 1 had declared provisions of S.35(2) of Punjab Pre-emption Act, 1991 relating to period of limitation of one year as repugnant to Injunctions of Islam w.e.f. 31-12-1993---Rationale behind such judgment of Supreme Court PLD 1994 SC 1 could not be different from one taken in Said Kamal Shah's case PLD 1986 SC 360---Suit had not been decreed at any stage till 31-12-1993---Plaintiff could neither take benefit of S.35(2) of Punjab Pre-emption Act, 1991 nor seek protection provided therein---Suit was, - thus, barred by limitation---High Court dismissed revision petition.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province Lahore PLD 1994 SC 1; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and PLD 1990 SC 865 rel.

Ghulam Abbas Baluch for Petitioners.

Mian Noor Ali Wattoo for Respondents.

Date of hearing: 17th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1584 #

2005 C L C 1584

[Lahore]

Before Ch. Ijaz Ahmad, J

SAFDAR JAVED and another---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 3 others---Respondents

Civil Revision No.1065 of 2005, decided on 23rd May, 2005.

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

----O. VI, Rr.17, 18, O.XXII, Rr.3, 6 & S.115---Restoration of appeal---Death of appellant---Non-filing of amended appeal---Appellants failed to file amended appeal, despite the opportunity was given by Appellate Court---Appeal was dismissed by Appellate Court for such failure---Appellants filed application for restoration of appeal on the ground that mother of their counsel had died and due to such happening the amended appeal could not be filed in the prescribed time---Appellate Court allowed the application and the appeal was restored---Validity---Order of restoration of appeal not falling under O.XVII, R.3, C.P.C., provisions of O.VI, R.17, C.P.C. were not attracted---Penal consequences under O.VI, R.18, C.P.C. were prescribed only in case the patty had failed to . amend petition subject to the condition that amendment was sought under O.VI, R.17, C.P.C. and had fulfilled the requirements thereunder---In case O.VI, R.18, C.P.C. was attracted then the Appellate Court could not dismiss the appeal in default---High Court in exercise of revisional jurisdiction did not find any infirmity or illegality in the order of Appellate Court and the same was maintained---Revision was dismissed in circumstances.

Sayed Muhammad Shah v. Abdul Jabar Muhammad Yaqub and others AIR (30) 1943 Sind 132 and Sardar Sakhawat-ud-Din and 5 others v. Muhammad Iqbal and 2 others PLD 1983 Lah. 448 distinguished.

Mst. Safia Bibi's case 1989 MLD 4535 and N.S. Vankatagriri Ayyanger and another v. The Hindu Religious Endowments Board Madrass PLD 1949 PC 26 rel.

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

---O. VI, R.18-:-Amendment of pleadings---Extension of time---Scope---Court has to extend time in filing of amended pleadings in terms of O.VI, R.18, C.P.C.

Muhammad Hussain Khan and others v. Nawab Khan PLD 1958 AJK 14 and Pahali Raut v. Khulana Bewa and others AIR 1985 Orissa 165 rel.

---When Basic order is without lawful authority then the superstructure has to fall on ground automatically.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 and Crescent Sugar Mills and Distillery Ltd. Faisalabad v. Central Board of Revenue, Islamabad PLD 1982 Lah. 1 rel.

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

---O. IX, R.4---Restoration of appeal without notice to respondents---Effect---Appeal was dismissed in absence of respondents, for non-filing of amended appeal within time specified by Court---On the application filed by appellants, the Appellate Court restored the appeal without notice to respondents---Validity---On the basis of. analogy prescribed under O.IX, R.4, C.P.C. there was no requirement to restore the appeal/readmission of appeal without notice to respondents.

Mst. Rehmat's case PLD 1976 Kar. 953 and Khushi Muhammad's case PLD 1976 Lah. 99 rel.

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

----O. I. R.10, O.VI, Rr.17, 18 & O.XVII, R.3, O.XXII---Death of appellant- Abatement of appeal---Scope---In case amended appeal is not filed after the death of appellant, the provisions of O.XVII, R.3 read with O.VI, Rr.17 & 18, C.P.C. are not attracted rather provisions of O.XXII, read with 0.I, R.10, C.P.C. are attracted under which appeal cannot be abated.

Muhammad Riaz v. District Judge, Sialkot and 5 others PLD 1993 Lah. 452 rel.

(f) Administration of justice---

----Cases be decided on merits instead of technicalities.

Khudda Yar's case PLD 1975 SC 678 rel.

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

----S. 151---Inherent powers of High Court---Scope---High Court has inherent powers to set aside impugned order in case it is not within the parameters of provisions of Civil Procedure Code, 1908.

Jan Muhammad's case PLD 1981 SC 513 rel.

Ch. Manzoor Hussain, for Petitioners.

CLC 2005 LAHORE HIGH COURT LAHORE 1590 #

2005 C L C 1590

[Lahore]

Before M. Dilawar Mahmood, J

BASHIR AHMAD and others---Petitioners

Versus

MEMBER, BOARD OF REVENUE (COLONIES), and others---Respondents

Writ Petition No.4474 of 1978, decided on 17th December, 1979.

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

----Ss. 10 & 24---Punjab Colony Manual, 'Para.6(3)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Grant of land under Mule-Breeding Scheme---Resumption of such land---Original grantee/ Lambardar of land in dispute was given option to purchase land when he was allowed to acquire proprietary rights in said land; he did not pay price of land to Government and none of his successors was appointed as Lambardar of Chak concerned after his death---Tenancy was resumed by Collector due to non-payment of the price of land---Conditions governing Mule-Breeding Tenancy specifically laid down that in case a grantee defaulted in payment of purchase price, his grant would be liable to resumption---Petitioners had not denied that original grantee had not paid the balance of purchase price to the Government---Land, in circumstances was liable to resumption---Grant did not confer any right on legal heirs or successors of original grantee who had failed to deposit instalments as required by law---District Collector had rightly resumed tenancy, in circumstances.

Anjuman-e-Ahmadiya v. Deputy Commissioner Sargodha PLD 1966 SC 639; Allah Ditta v. Member, Board of Revenue (Consolidation) PLD 1967 Lah. 897; Noor Khan v. Muhammad Nawaz PLD 1979 Revenue 24 and Muhammad Yousaf v. Punjab Province PLD 1976 Lah. 328 ref.

Mian Ata-ur-Rehman for Petitioners.

M.M. Ashraf for Respondent No.4.

Javaid Jalal for Respondents Nos. 1 to 3.

Allah Rakha, Senior Clerk D.C. Office Faisalabad with record.

Date of hearing: 17th December., 1979.

CLC 2005 LAHORE HIGH COURT LAHORE 1593 #

2005 C L C 1593

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD AZAM and 11 others---Petitioners

Versus

MUHAMMAD NAWAZ and 8 others---Respondents

Civil Revision No.2791 of 2000, decided on 13th July, 2005.

(a) Punjab Pre-emption Act (I of 1913)----

----Ss.4 & 21---Right of pre-emption, exercise of'--Transaction whether sale or exchange---Onus to prove--Mutation of exchange attested in favour of vendee, was assailed by pre-emptors on the ground of its being sale and not exchange---Trial Court dismissed the suit by holding that the transaction was exchange and not sale---Appellate Court reversed the findings of Trial Court holding the transaction as sale and decreed the suit in favour of pre-emptors---Validity---Trial Court was entitled to find out the true nature of transaction and was to conclude on the basis of evidence produced by parties---In order to show and prove that transaction was not the same as was described and recited in the document, heavy onus was on the party pleading so---Claim of sale transaction must be proved by pre-emptors---No such reliable, convincing or cogent evidence had been proved by pre-emptors---Comparative approach of two Courts below considered in the light of evidence on record objectively led to the conclusion that findings recorded by Trial Court on the issue of nature of transaction were consistent with evidence on record whereas approach adopted by Appellate Court was not backed by evidence and was unsustainable in law---Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored.

Muhammad Amin v. Ghulam Yasin PLD 1983 Pesh. 13; S. Masih Hasan v. Allah Diya and others AIR (34) 1947 Lah. 320; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Salehoon v. Nazir Ahmad 1996 MLD 1922; Haq Nawaz v. Muhammad Jan PLD 1965 SC 561; Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892; Allah Ditta v. Haji and another AIR 1934 Lah. 823; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Bahadur Khan v. Muhammad Yousaf and another 1992 SCMR 2117 and Faiz Muhammad and others v. Zafar Ahmad and others 2005 SCMR 1125 ref.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 4.& 21---Transaction whether sale or exchange---Determination---Disparity in quantity of land---Effect---Such disparity itself does not lead to inference or conclusion to strike. down the transaction as owned by parties and recited in public record.

Sher Azam v. Fazle Azim Shah 1972 SCMR 649; Ghulam Hussain v. Jam Allah Dad through Legal Heirs PLD 1989 Lah. 73 and Syed Khalil-ur-Rehman Chishti v. Abdul Hamid Khan 2004 SCMR 838 rel.

Malik Noor Muhammad Awan for Petitioners.

Taqi Ahmed Khan for Respondents.

Dates of hearing: 11th, 12th and 13th July, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1613 #

2005 C L C 1613

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. MALOOK BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.5502 of 2000, decided on 1st March, 2005.

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

----O. XXXIII, R.1 & O.XLIV, Rr.1 & 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Formapauperis, appeal---Determination---Report of Revenue Officer, non-reliance of---Plaintiff being aggrieved of the judgment and decree passed by Family Court, filed appeal before Appellate Court in forma pauperis---Appellate Court called for report of Revenue Officer with regard to the status of plaintiff:--Report of Revenue Officer was in favour of plaintiff but the Appellate Court disbelieved the report on the basis of affidavits of two irrelevant persons---Validity---Report of Collector/Revenue Officer was to be given weight unless the same was perverse or against facts---If Appellate Court was not satisfied with the report of the Revenue Officer, he could also obtain a fresh report in that regard---Under no provision of law, the Appellate Court could dismiss the same just on the basis of affidavits of two irrelevant persons---Appellate Court had acted illegally and with material irregularity by refusing permission to the plaintiff---Order passed by Appellate Court was neither proper nor based on good reasoning and was violative of principle of Islamic law, hence, the same was set aside and the appeal was remanded to Appellate Court for decision afresh---Petition was allowed accordingly.

(b) Islamic Law---

----Dower---Object and scope---Dower is a basic right of a woman as a consideration in lieu of contract of marriage.

Malik Ghulam Fareed for Petitioner.

Mian Saeed Ali Bhatti for Respondent No.2.

CLC 2005 LAHORE HIGH COURT LAHORE 1632 #

2005 C L C 1632

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

RIZWAN RABBANI---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES---Respondent

Writ Petition No.3445 of 2005, decided on 8th June, 2005.

(a) Educational institution---

----First Professional M.B.,B.S., Part-I Examination---Paper of Bio-Chemistry---Internal Assessment Marks, awarding of---Conditions---Candidate would not be entitled to get any marks to be included in Theory Part of such paper out of Internal Assessment Marks---.Teacher/Professor attending a student throughout the year would assess his performance as an Internal Teacher and might grant him upto 15 marks---Internal Teacher could grant maximum 10'marks to a student for his performance in theoretical studies and 5 marks for his performance in practical and viva voce---Word "theory" as used in relevant note of Regulations could not be interpreted to include Internal Assessment Marks in Theory Part of such paper---Fifteen marks reserved for internal assessment was absolutely a different entity having no nexus with performance of student during his examination held by the University, whether theory, oral/viva or practical---Discretion of internal teacher to award 15 marks of internal assessment keeping in view performance of student in theory and practical separately---Internal teacher would send such marks to the University to be added to total marks obtained by a student in examination without making bifurcation.

Tradex (Pvt.) Limited v. Governor State Bank of Pakistan and another 2003 CLD 756 ref.

Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652 and Pakistan v. Salahuddin PLD 1991 SC 546 rel.

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

----Art. 199---Constitutional petition---Maintainability---Violation of Rules/Regulations by Authority concerned would be condition precedent for maintainability of Constitutional petition.

Ali Mir's case 1984 SCMR 433 rel.

Muhammad Ahmad Qayyum for Petitioner.

Rasaal Hassan Syed for Respondents Nos. 1 to 3.

Shoaib Zafar for Respondent No.4.

M. Hanif Khatana, Additional A.-G. for Respondent No.5.

CLC 2005 LAHORE HIGH COURT LAHORE 1643 #

2005 C L C 1643

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH BAKHSH and 10 others---Petitioners

Versus

ABDUR RAHIM and 23 others---Respondents

Civil Revision No.997-D of 1996, heard on 1st April, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 58---Civil Procedure Code (V of 1908); S.47---Suit for possession---Plea of fraud or collusion in obtaining judgment or incompetency of Court---Proof---Dispute in respect of property in question having arisen between two brothers an arbitration agreement was entered into between them---Arbitrator vide award partitioned the property and as a result suit-land came to the share of respondent---Application was filed for making award rule of the Court and during pendency of said application, brother of respondent sold land to petitioners---Land in dispute having been sold by brother of respondent, application for execution of decree passed in favour of respondent as a result of award, was withdrawn by respondent and he sought decree for possession of land---Petitioners in whose favour land was sold had alleged that award as well as decree in favour of respondent based on said award was without jurisdiction and ineffective against their right as respondent and his vendor brother had colluded with each other---Respondents were relying upon the award and decree passed by the Court after making it rule of Court, whereas award and decree was challenged by petitioners on the ground that it was without jurisdiction---Any party, to a suit could show that any judgment, order or decree which had been proved by adverse party was delivered by a Court not competent to deliver it---Very vital question arising in the suit having remained unanswered, there was no choice but to remand the case---High Court, set aside impugned judgments and decrees passed by Courts below with the result that suit would be deemed to be pending before Court below which would proceed to decide same afresh accordingly.

M. Naveed Hashmi for Petitioners.

Sardar Tariq Sher Khan for Respondents.

Date of hearing: 1st April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1651 #

2005 C L C 1651

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MASOOD AKHTAR---Petitioner

Versus

MANZOOR AHMAD---Respondent

Civil Revisions Nos.558-D and 559-D of 2004, heard on 9th March, 2005.

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

----S. 42---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land Revenue Act (XVII of 1967), S:42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Sale of immovable property--Defendants claimed that predecessor-in-interest of plaintiff had alienated suit-land to them through two mutations for consideration---Plaintiff, minor son of deceased had filed suit for declaration through his mother in which he had challenged alleged alienation of land and mutations---Plaintiff had alleged that his-deceased father had never alienated suit-land in favour of defendants and that alleged mutations were forged, fraudulent and ineffective upon his rights and that no consideration was paid by defendants to his father who at relevant time was facing "Marzul-Maut" and he died soon---Plaintiff had further alleged that both mutations were not sanctioned in accordance with S.42 of West Pakistan Land Revenue Act, 1967---Trial Court decreed suit, but Appellate Court reversed findings of Trial Court and dismissed suit---Plaintiff had filed revision against judgment of Appellate Court---Defendant had failed to produce any evidence to discharge onus as to how much amount was paid to deceased and what was the mode of its payment---No documentary proof was produced by defendants to prove that payment was made to deceased father of plaintiff---Appellate Court, had not given valid reasons to upset finding of Trial Court which were arrived at by properly appreciating evidence on record---Impugned judgment and decree passed by Appellate Court, were set aside and those of Trial Court decreeing suit filed by plaintiff, were restored.

Haqnawaz Khan and others v. Rab Nawaz and others 1992 SCMR 993; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and PLD 1985 Lah. 607 ref.

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

----S. 115---Revisional jurisdiction---Scope---High Court usually would not interfere in orders passed by competent Courts, but if there was any misreading or non-reading of evidence apparent on face of record and impugned judgment was not passed properly in accordance with decision of superior Courts, High Court was very much competent to interfere therewith in revisional jurisdiction.

---S. 42---Mutation---Creation of title---Mutation by itself would not create title and person deriving title thereunder had to prove that transferor did part with ownership of property subject of mutation in favour of transferee and that mutation was duly entered and attested---Any person, who was acquiring title through a mutation, burden of proof of proving transaction embodied in mutation was upon him.

Mst. Jaina v. Mst. Zohra Bibi and 12 others 1999 MLD 2302 and Hakim Khan v. Nazir Ahmad Lughmani and 10 others 1992 SCMR 1832 ref.

Ch. Muhammad Hussain Jahania for Petitioner.

Mirza Aziz Akbar Baig for Respondent.

Date of hearing: 9th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1665 #

2005 C L C 1665

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL NADEEM CH. and another---Petitioners

Versus

CHAUDHARY RESTAURANT through Proprietor and 2 others---Respondents

Civil Revision No.861 of 2004, heard on 25th May, 2005.

Punjab Agricultural Produce Market (General) Rules, 1979---

----R. 8---Punjab Agricultural Produce Market Ordinance (XXIII of 1978), S.4(4)---Civil Procedure Code (V of 1908), O.XXXIX; Rr:1 & 2-Specific Relief Act (I of 1877), Ss.42 & 54--Constitution of Pakistan (1973), Art.18---Suit for declaration and injunction---Temporary injunction, grant of---Respondent who was allotted a plot in auction held by Market Committee, had issued an advertisement that only such persons could sell eatables in the market who had licences from him---Petitioners in their suit had sought declaration that said act of respondent was illegal and void and that respondent be restrained from interfering with the right to do business by the petitioners---Petitioners had also filed . an application for temporary injunction which was resisted by respondent and was concurrently dismissed by Trial Court and Appellate Court---Petitioners were hawkers and were hawking eatables in said Market/Sabzi Mandi and under R.8(c) of Agricultural Produce Market (General) Rules, 1979, it was specifically provided that hawkers, who were not engaged in dealing of agricultural produce would stand exempted from taking a licence---Provisions of S.4(4) of Punjab Agricultural Produce Market Ordinance, 1978 which had provided that no person would, within the market, store, purchase, sell or in any other manner deal in any commodity which was not declared as agricultural produce, had to be read with provisions for declaration of a notified market area as also specification of agricultural produce under the Ordinance which would not at all mean that hawking of eatables in the Market area would not be allowed---Article 18 of the Constitution vested a citizen with an absolute right to conduct any lawful trade or business subject, of course, to its regulation in accordance with proviso to said Article---Petitioners had a prima facie case and they were bound to suffer an irreparable loss in case respondent would interfere with the business of petitioners/Hawkers---Balance of convenience was also in favour of petitioners---Both orders of Courts below were set aside by the High Court---Respondents were accordingly restrained from interfering with the business of petitioners pending decision of suit.

Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 ref.

Syed Abdul Razzaq Gilani for Petitioners.

Malik Muhammad Afzal, Syed Khurshid Ali Shah and Muhammad Akhtar Khan for Respondents.

Mushtaq Ahmad, Secretary, Market Committee with records.

Date of hearing: 25h May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1688 #

2005 C L C 1688

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. HAMEEDAN BIBI---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General, Lahore-Respondent

Civil Revision No.1282 of 2005, decided on 27th June, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), Ss.11, 115 & O.II, R.2---Revision---Jurisdiction of High Court under S.115, C.P.C. exercise of---Principles of res judicata---Applicability---Filing of second suit in same cause of action against same parties---Duty and obligation of Trial Court---Earlier suit filed by petitioner was decided against him up to the level of Supreme Court---After being unsuccessful even in Supreme Court, the petitioner filed present suit on the plea that in earlier round of litigation, the respondent had concealed a notification which was necessary for the just decision of the case---Trial Court rejected the plaint on the basis of principles of res judicata---Judgment and decree passed by Trial Court was maintained by Appellate Court---Validity---Matter had been settled up to the apex Court, therefore, second suit qua the same subject-matter and relief, was not maintainable in view of S.11 and O.II, R.2, C.P.C.---In case Presiding Officer entertained such subsequent suit, then he would be prosecuted, therefore, there was no infirmity or illegality in the judgments of the Courts below---It was duty and obligation of the petitioner to show that judgments of Courts below were in violation of any principle laid down by the superior Courts or was the result of misreading or non-reading of record---Judgments of both the Courts below were in accordance with dictum laid down by Supreme Court---High Court in exercise of revisional jurisdiction did not find any infirmity or illegality in the judgments---Revision was dismissed in circumstances.

Abdul Majid v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Asif Jan Siddiqui v. Government of Sindh and others PLD 1983 SC 46 and N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 rel.

Ijaz Ahmad Khan-I for Petitioner.

Mian Muzaffar Hussain, Legal Advisor of Respondent on Court's call.

CLC 2005 LAHORE HIGH COURT LAHORE 1693 #

2005 C L C 1693

[Lahore]

Before Maulvi Anwarul Haq, J

MUSHTAQ AHMED and 8 others---Petitioners

Versus

MUHAMMAD AMEEN and 14 others---Respondents

C.M. No.1/C of 2005 in Civil Revision No.413 of 2005, decided on 29th April, 2005.

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

----O. VII, R.3, O.XX, R.9 & O.XXI, R.35---Execution of decree for recovery of land---Objection petition by judgment-debtor that decree could not be executed against him as Khasra number of land in his possession was different from that included in decree---Description of suit-land given in plaint and its site plan with reference to Khasra number and boundaries had not been questioned by judgment-debtor, rather he promised in execution proceedings to vacate suit-land---Objection petition was dismissed in circumstances.

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

----O. VII, R.3---Description of land in plaint or deed---Inconsistency between description by boundaries or area---Such description, which express most nearly the intention of parties, identifies land more sufficiently and is more certain, stable and least likely to have been mistaken would prevail---Principles.

If in the plaint or in any deed, there is an inconsistency between the description by the boundaries or by the area, then that which is more certain, stable and least likely to have been mistaken and which sufficiently identifies the land, should prevail. The true construction is that which, as far as possible, bring the several factors into harmony with one another and express most nearly the intention of parties.

----O. VII, R.3---Insufficient description of property in plaint---Effect---Suit would not fail on account of such insufficiency.

United Bank of India Ltd. v. Azirannisa Bewa alias Azizannessa Bewa PLD 1965 SC 274 and Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah. 89 ref.

Nadeem Ahmad Khan Sherwani for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1698 #

2005 C L C 1698

[Lahore]

Before Muhammad Jehangir Arshad, J

TEHSIL MUNICIPAL ADMINISTRATION---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition. No.1382 of 2004, heard on 17th January, 2005.

Civil Procedure Code (V of 1908)---

------O. XIII, R.2---Non-production of documents at the first hearing of suit or omission to mention such documents in the list of reliance---Discretion of Court to allow or disallow production of such documents at a later stage---Scope---Such documents, if essential for just decision of case and absolutely free from any suspicion of being fabricated, could be allowed to be produced at a later stage---Defaulting party could be burdened with reasonable costs to compensate opposite party and also by way of punishment for his negligence--Principles.

PLD 1993 Lah. 774 ref.

Umar Hayat v. Naik Alam PLD 1977 AJ&K 78 fol.

Sardar Muhammad Aslam Khan for Petitioners.

Mumtaz Mustafa for Respondents.

Date of hearing: 17th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1700 #

2005 C L C 1700

[Lahore]

Before Maulvi Anwarul Haq, J

PEER BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.640 of 2005, heard on 20th April, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---Ss. 13(6) & 15(5)---Duty of Rent Controller and Appellate Authority to direct tenant to deposit arrears of rent, if any, before a date fixed by him and to deposit future rent before 15th of each month---Penalty provided under law could be imposed upon tenant only on his failure to comply with order passed in such manner---Where no date was fixed for deposit of arrears of rent or correct date prescribed by law was not given for deposit of future monthly rent, then tenant could not be punished for non-compliance of such order---Principles.

Malik Haider Jamal Maitla for Petitioner.

Muhammad Asghar Bhutta, for Respondent No.3.

Date of hearing: 20th April, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1704 #

2005 C L C 1704

[Lahore]

Before Ijaz Ahmed Chaudhry, J

ILAHI BAKHSH---Petitioner

Versus

Sheikh MUHAMMAD SADIQ and 2 others---Respondents

Writ Petition No.8139 of 1995, heard on 1st February, 2005.

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

----S. 12(2) & O.VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Setting aside of decree on the basis of fraud and misrepresentation---Rejection of plaint---Failure to ascertain identification of parties---Deciding of incompetent suit---Misstatement of facts---Respondent filed suit for declaration asserting to have purchased the suit-land on the basis of oral sale and further asserted that the possession was delivered to him---Suit was decreed in year 1971, on the basis of consenting statement of petitioner---Petitioner came to know in 1986 about the fraud when he filed application under S.12(2) C.P.C. for setting aside of the decree---Trial Court as well as Appellate Court dismissed the application and revision respectively---Validity---Trial Court had passed the decree on the basis of consenting statement but did not ascertain the identification of petitioner through any independent source as to whether he was a genuine person---Trial Court also did not raise any question about maintainability of the suit which, on the face of it, was not competent, as regarding the claim of respondent in the plaint only a suit for specific performance could have been filed which required affixation of Court-fee according to the value of the suit---No date regarding deal between the parties for sale of land was given and mode of payment of sale price was also not mentioned---Respondent had not come in the Court with clean hands and firstly he had saved the amount of Court-fee by filing suit in wrong forum and as such also committed fraud with the Trial Court, besides causing loss to the public exchequer--Fraud committed by respondent was proved on record that in the plaint he claimed that the possession of suit-land was delivered to him but the actual possession was with the petitioner even till the filing of Constitutional petition and it never changed hands---Respondent never sought implementation of decree during a period of about 15 years, which showed that he was afraid of its having come in the knowledge of the petitioner, otherwise, the respondent might have got it executed immediately after passing of the same---Both the Courts below had failed to appreciate the evidence on record in true perspective and reached at a wrong conclusion that no fraud was committed with the petitioner---Suit filed by respondent for declaration was not maintainable and at the most he could have instituted suit for specific performance of agreement, therefore, the plaint was liable to be rejected under O.VII, R.11 C.P.C.---High Court in exercise of Constitutional jurisdiction set aside the orders passed by both the Courts below, application under S.12(2) C.P.C. was accepted and the plaint filed by respondent was rejected under O.VII, R.11, C.P.C.---Petition was allowed in circumstances.

1996 SCMR 1223 and PLD 1986 Lah. 399 rel.

PLD 1982 BJ 33; 2003 SCMR 1050; 2004 MLD 1677; 1999 YLR 2020; 1992 SCMR 2184 and PLD 1988 Lah. 398 ref.

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

-----S. 12(2)-Practice and procedure---Setting aside of decree---Petitioner admitting his signatures on written statement---Petitioner sought setting aside of decree on the basis of fraud, misrepresentation and collusion---Respondent asserted that the petitioner had admitted his signatures on the written statement---Validity---Although the petitioner had admitted his signatures on the written statement, yet he stated that his signatures were obtained through fraud---High Court noted that it was generally a practice in the country that the clients normally give signed blank papers to their Advocates having trust in them for looking after their interest in case of any emergency, for filing of any application during the proceedings of the case in their interest, without waiting for the client to come and to sign the same as it might cause some irreparable loss to the client---Merely because the petitioner had admitted his signatures on the written statement was not sufficient to knock him out from the proceedings because such was not sole question involved in the case---Decree was set aside in circumstances.

------S. 12(2)-Application for setting aside of decree---Maintainability--Period of limitation, computation of---Date of knowledge of decree--Respondent never sought implementation of decree during a period of about 15 years, which showed that he was afraid of its having come to the knowledge of the petitioner, otherwise, the respondent might have got it executed immediately after passing of the same---Validity---Claim of petitioner that-he could not have knowledge of consenting decree for a long period was believable---Petition was not barred by time in circumstances.

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

----S. 12(2)---Application for setting aside of decree---Maintainability---Filing of separate suit---Decree was passed in year 1971, and the application was filed in year, 1986, when the petitioner came to know about passing of the same---Plea raised by the respondent was that when the decree was passed provision of S.12(2) C.P.C. was not in field, therefore, the petitioner instead of filing of application under S.12(2) C.P.C., should have filed separate suit---Validity---When the petitioner came to know about the passing of decree, then the amendment was already on the statute and the petitioner had rightly filed application under S.12(2) C.P.C. being law of the State---In case the petitioner filed separate suit for setting aside of the decree; preliminary objection could have been raised by the respondent'about the maintainability of the suit due to the amendment in Civil Procedure Code, 1908---Application under S.12(2) C.P.C. was maintainable in circumstances.

Imtiaz Ahmad v.. Ghulam Ali and 2 others PLD 1963. SC 382: rel.

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

---S. 12(2) & O.VII, R.11---Application for setting aside of decree---Rejection of plaint---Principle---High Court, in exceptional circumstances, can straightaway reject the plaint under O.VII, R.11 C.P.C., if the same is barred by law even if no plea has been taken in appropriate proceedings, as a wrong decision cannot be allowed to perpetuate with another wrong.

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

---S. 12(2) & O.XLI, R.23---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Setting aside of decree---Case not remanded to the Courts below---Period of 34 years had elapsed when the suit for declaration was filed by respondent, which on the face of it was not maintainable---Respondent was a practising lawyer and on the other hand the petitioner was a simpleton villager having become blind---Effect---Fraud was committed with the petitioner by respondent, to deprive him of his valuable property, the remanding of case to Trial Court would amount to increase worries of the petitioner who had already faced a lot of them due to the profession of the respondent---High Court did not remand the case to Trial Court and decided the same itself in circumstances.

1994 SCMR 782 rel.

Syed Izhar-ul-Haq Gillani and Bashir Ahmad Chaudhry for Petitioner.

Sardar Muhammad Rafique Khan for Respondent No. 1.

Date of hearing: 1st February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1714 #

2005 C L C 1714

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KHURSHID BIBI and others---Petitioners

Versus

RAMZAN and others----Respondents

Civil Revision No.442 of 1995, heard on 25th May, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), Ss. 122 & 123---Civil Procedure Code (V of 1908), S. 115---Suit for declaration---Gift, proof of---Original owner of suit-land had died leaving behind his son, widow and 3 daughters and mutation of inheritance was duly attested---Land of plaintiff daughters, firstly was got mutated in favour of widow of deceased and thereafter in favour of defendant son, with the result that land of plaintiffs stood transferred to brother of plaintiffs---Brother claimed that plaintiffs had transferred their shares in land to him through gift---Plaintiffs denied execution of any gift in favour of brother and filed suit seeking declaration that they being co-sharers in suit-land was entitled to get their shares in the land---Courts below having dismissed suit, plaintiffs had filed revision petition against judgments and decrees of Courts below---Validity---Plaintiffs admittedly having inherited property of their father, it was for the said brother to prove a valid transfer of same in his favour---Brother had failed to bring proof of any valid gift or of surrendering property by plaintiffs in his favour---Trial Court had dealt with the matter on the assumption that a mutation of gift incorporated into Jamabandi enjoyed presumption ,of genuineness and Appellate Court below followed suit---Both Courts below had completely lost sight of attending circumstances of the case apparent on the face of record---No evidence was on record to show as to why plaintiffs, who had their own children and husbands, proceeded to gift away their shares in suit-land to their mother and then to their brother---Such fact had cast doubt on genuineness of transaction of alleged gift---Inference of Courts below that mutation having been incorporated in the Jamabandi enjoyed a, presumption of genuineness, was also without lawful authority inasmuch as notwithstanding the fact that a mutation stood incorporated in Revenue Record, if a dispute would arise, burden would squarely lay upon beneficiary to prove the validity of transaction---Question of limitation had also been wrongly decided by Courts below because parties being co-heirs, no question of limitation arose which could run against plaintiff---Both judgments and decrees passed by Courts below were set aside and suit filed by plaintiffs was decreed as prayed for.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Barkat All through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; .Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Muriel Sakina 2004 SCMR 1043 ref.

Syed Mohtshamul Haq Pirzada for Petitioners.

Respondents: Ex parte.

Date of hearing; 25th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1719 #

2005 C L C 1719

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SARWAR and others---Petitioners

Versus

REHMAT ALI and others---Respondents

Civil Revision No.343 of 2002/BWP, decided on 12th January, 2005.

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

-----O. XLI, R.27---Additional evidence; production of---Principle---Public record---Delay in filing of application for additional evidence---Application filed by petitioners was dismissed by Appellate Court on the ground that the same was filed at a belated stage---Validity---Mere delay was no ground for disallowing any party to lead additional evidence, otherwise various provisions of Civil Procedure Code, 1908, empowering Court to allow additional evidence at any stage would become redundant---In almost every case prayer for additional evidence was made usually at a later stage and sometimes at fag end of the trial, rather even at Supreme Court level and while deciding such application, Courts always ignored the stage and considered the question whether the same was necessary/essential for just decision of the matter---Petitioners, through the application, merely wanted to place on record certified copies of public documents which were per se admissible---Permission to produce additional evidence never meant that the genuineness of the documents or for that matter its evidentiary value had been impliedly admitted in favour of the party producing that document---Order passed by Appellate Court was set aside and the petitioners were allowed to produce additional evidence subject to payment of cost---Revision was allowed accordingly.

1999 SCMR 1870 and Ijaz Muhammad Khan and others v. Mst. Sahib Bibi and others 1996 SCMR 598 distinguished.

Sh. Karim-ud-Din for Petitioners.

Mian Ahmed Nadeem Arshad for Respondents.

Date of hearing: 18th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1723 #

2005 C L C 1723

[Lahore]

Before Ch. Ijaz Ahmad, J

Malik RASHEED-UR-REHMAN---Appellant

Versus

KHYZAR HAYAT through L.Rs.---Respondents

S.A.O. No.69 of 2005, decided on 29th June, 2005.

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

---S. 15(6)---Second appeal before High Court---Both Courts below had passed judgments after proper appreciation of evidence of the parties on record---Appellant/tenant had failed to point out any piece of evidence, which was misread or non-read by Courts below---High Court had very limited jurisdiction to interfere in concurrent findings of facts in second appeal---Concurrent findings recorded by Courts below, could not be interfered with by High Court while exercising powers under S.15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, however, erroneous that finding might be.

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

----S. 13(3)---Personal bona fide need of landlord---On issue of personal need, assertion or claim of landlord, if was consistent with his averments in his ejectment application and was not shaken in cross-examination or disproved in rebuttal, was sufficient to prove that need of landlord was bona fide.

Abdul Majid and others v. Khalil Ahmad NLR 1955 FSC 38; Pathana's case PLD 1965 SC 134; Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866; Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729; Abdul Ghafoor and Abdul Qadar's case 1986 MLD 1636; S.M. Noor-ud-Din's case 1998 SCMR 2119; Jehangir Rustam Kaka's case 1992 SCMR 1296; Tauheed Khanum's case 1980 SCMR 593 and Messrs Yasmeen Riaz's case 1999 SCMR 832 ref.

Akhtar Masood Khan for Appellant.

CLC 2005 LAHORE HIGH COURT LAHORE 1727 #

2005 C L C 1727

[Lahore]

Before Muhammad Akhtar Shabbir, J

FEROZE DIN through L.Rs. and others---Appellants

Versus

HUSSAIN and others---Respondents

R.S.A. No.14 of 2002, heard on 7th June, 2005.

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

----Ss. 6 & 8---Civil Procedure Code (V of 1908), O.XXIII, R.1---Suit for pre-emption---Joint right of pre-emption---Principle of sinker---Withdrawal of suit---Suit originally was filed by two pre-emptors, but subsequently one of the pre-emptors had withdrawn his claim of pre-emption and suit was dismissed to his extent as withdrawn---Remaining plaintiff claimed superior right of pre-emption qua defendants claiming the whole suit-land but he had not objected to said withdrawal of suit nor pre-emptor, who had withdrawn suit, had prayed for permission to institute a fresh suit---Where there were several plaintiffs, suit could be withdrawn without consent of all plaintiffs, but any of them could withdraw his suit so far as his own interest was concerned---As to objection of defendants that withdrawal of suit by a co-plaintiff would attract the principle of partial pre-emption, suffice to say that partial pre-emption simply would prevent pre-emptor from making a pick and choose in the sale and require that normally bargain had to be taken as a whole by pre-emptor who could not elect to get only a part of property sold---Where no part of land had been left out and entire land sold formed subject-matter of suit, then no case of partial pre-emption would be made out---Entire sold land, in the present case, was the subject-matter of the suit---No portion of land was left by the pre-emptor and the remaining plaintiff had proved his superior rights of pre-emption `qua the vendees/defendants---Remaining plaintiff was entitled for decree of whole suit-land---Right of remaining pre-emptor could not be defeated on the ground that his co-pre-emptor/plaintiff had withdrawn suit, while at the time of withdrawal of suit, defendants or remaining pre-emptor did not object to said withdrawal, neither matter was agitated in earlier litigation through appeal or in revision in the High Court, when case was remanded to Appellate Court for fresh decision.

Baidayanath Nandi and others v. Shyama Sundar Nandi AIR 1943 Cal. 427; Muhammad Zafarullah Khan and 3 others v. Hasan Muhammad and another PLD 2004 Lah. 43; Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 Lah. 69; Ghulam Haider and 9 others v. Ghulam Muhammad and 18 others 1988 CLC 548; Murad Baldish and another v. Abdul Ghafoor and 5 others 1980 CLC 1274 and Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 ref.

Zaheer Zulfiqar for Appellants.

Ch. Muhammad Nasrullah Warriach for Respondent No.1.

Date of hearing: 7th June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1733 #

2005 C L C 1733

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. RASHIDAN BIBI through L.Rs.---Petitioner

Versus

Mst. JANNATAY and 2 others---Respondents

Review Petition No.32 of 2005 in Civil Revision No.966 of 2005, decided on 7th July, 2005.

Civil Procedure Code (V of 1908)---

----O. XLVII, R.1---Review petition---Competency of---Petitioner had sought review of judgment on the ground that documents in question had been recovered after judgment of High Court passed in revision---Petitioner had failed to bring sufficient material on record to show that documents, in question were not available to him at the time when he filed suit against respondents---Review petition, in circumstances, could not be accepted at such stage on said documents---Petitioner was not entitled to file review on discovery of new and important matter or evidence according to his convenience and pleasure---Said documents could not be considered at belated stage---Law of limitation had to be strictly followed---In case of discovery of new and important matter or evidence, there must be shown diligence on the part of party concerned which was essentially a question of fact.

Fazal Din and others v. Barkat Bibi PLD 1978 Lah. 1016; M.D. Yakur Sardar and others v. Mazu Bibi and others 1970 DLC 434; Rasab Khan and another v. Abdul Ghani and 4 others 1986 CLC 1400; Haji Nawab Din's case 1973 SCMR 143; Zafrullah's case 1975 SCMR 473; Abdul Majid's case 1980 SCMR 504; Mst. Kalsoom Malik's case 1996 SCMR 710; Mian Rafiq Saighal's case 1997 SCMR 685; Noor Hussain Awan's case 2001 SCMR 367; Ayyaz Baig's case 2002 SCMR 380; Daewoo Corporation's case 2004 SCMR 1213; Syed Shaukat Iqbal's case 2004 SCMR 1315; Muhammad Afzal's case 2004 SCMR 1248; Messrs Pak. International Airline's case 2004 SCMR 1737; Sh. Muhammad Amjad's case PLD 2004 SC 32; Syed Wa,jihul Hassan's case PLD 2004 SC 801 and Sahib Khan's case 1997 MLD 1832 ref.

Rao Monawar Khan for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1736 #

2005 C L C 1736

[Lahore]

Before Muhammad Muzammal Khan, J

GUL BIBI and 2 others---Petitioners

Versus

SURAYYA BEGUM and 2 others---Respondents

Civil Revision No. 595/D of 2000, heard on 29th June, 2005.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Specific Relief Act (I of 1877), Ss.54 & 55---Suit for permanent/mandatory injunction---Failure to produce evidence---Dismissal of suit---During course of recording of evidence, plaintiffs after recording statements of three witnesses, wished to produce further evidence, but their request was declined and suit was concurrently dismissed by Trial Court and then Appellate Court---Evidence of plaintiffs stood closed on account of their lapse to produce remaining evidence as according to the Trial Court, case had been adjourned on their request---Request for adjourmnent of case was made by plaintiff on account of indisposition of their counsel which was not opposed by defendants---Plaintiffs were not warned that they would not be granted any more opportunity to produce evidence and they were also not penalized with costs etc.---Adjournment of case being through a routine order, penal provisions of O.XVII, R.3, C.P.C. could not have been invoked---Plaintiffs were not afforded proper/full opportunity of proving their case under a false cover of direction by High Court to conclude proceedings expeditiously, which would not mean that rights of parties should be curtailed by incorrectly applying provisions of law which otherwise were not applicable---Despite closure of evidence of plaintiffs on 29-7-1998, case was not decided till 10-10-1998 and there occurred more than two intervening dates, thus, grant of another opportunity by fixing case after couple of days, would have-brought nothing adverse to the direction issued by High Court---False shelter under direction by High Court was taken to deprive plaintiffs of their right to produce evidence which course could not be justified on the basis of any canon known for administration of justice---Evidence of plaintiffs, in circumstances was illegally closed by Trial Court and structure thereon by subsequent judgments/decrees by Trial/Appellate Court could not be allowed to remain intact.

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 ref.

Malik Shaukat Ali for Petitioners.

Sajid Ilyas Bhatti for Respondents.

Date of hearing: 29th June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1740 #

2005 C L C 1740

[Lahore]

Before Muhammad Jehangir Arshad, J

IFTIKHARUL HAQ---Petitioner

Versus

DISTRICT CANAL OFFICER and others---Respondents

Civil Revision No.677-D of 2004/BWP, decided on 10th February, 2005.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XXXIX, R.1 & 27--Rejection of plaint while deciding application for interim injunction---Considering material other than the plaint---Trial Court, while deciding application for interim injunction, took into consideration the material other than the plaint and rejected the plaint under O.VII, R.11 C.P.C.---Order passed by Trial Court was maintained by Appellate Court---Validity---Neither the plaint could be rejected while deciding application for temporary injunction nor Trial Court, while rejecting plaint, could take into consideration the material other than the contents of plaint or the material produced by plaintiff---Facts stated in the order of Trial Court related to ingredients required to be proved by plaintiff for obtaining temporary injunction---Trial Court did not mention about the contents of plaint or the material attached to it---Appellate Court decided the matter while taking into consideration either extraneous material or facts which could only be proved after recording of evidence---Judgments and decrees of both the Courts below were not only violative of the provisions of law as contained in O.VII, R. I l C.P.C. but were also in disregard of the law declared by Supreme Court---High Court noted with concern that a general tendency has developed in Trial Courts and even in Lower Appellate Courts confirming the orders of Trial Court to reject plaint while deciding application for temporary injunction in derogation of express provision of O.VII, R.II C.P.C.---High Court directed that such tendency needed to be curbed by taking a serious view of the matter in order to save public from indulging into litigation by way of filing appeals and revisions up to High Court due to unlawful orders of subordinate Courts and also to ensure safe administration of justice and law through competent judicial officers---Orders passed by both the Courts below were set aside and the case was remanded to Trial Court for passing a separate fresh order on the application filed by plaintiff for temporary injunction---Revision was allowed accordingly.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 fol.

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

----Art. 189---Decisions of Supreme Court---Non-compliance of such judgment by the Courts below whether was an act of contempt of Court---Decisions of Supreme Court deciding a question of law or a principle of law, are binding on all Courts in Pakistan---Judgment cited before the Courts below constituted a law in terms of Art. 189 of the Constitution, hence binding on all the Courts---Findings recorded by both the Courts below were not only against the law but also contravened the expressed mandate of the Constitution as contained in Art. 189 of the Constitution---High Court recommended proceedings against Trial Court as well as Lower Appellate Court for passing judgment not only in violation of law declared by Supreme Court but also acting in violation of Art. 189 of the Constitution.

M.H. Bazmi for Petitioner.

Ch. Haq Nawaz for Respondent No.3.

Date of hearing: 10th February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1745 #

2005 C L C 1745

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL GHAFOOR and another---Petitioners

Versus

Mst. SAHIB and 3 others---Respondents

Writ- Petition No.3733 of 1998 and C.M. No.368 of 2005, decided on 15th March, 2005.

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

----S. 48 & O.XX, R.14---Decree in pre-emption suit passed on 16-12-1969 --Execution of decree---Limitation---Deposit of decretal amount within time---Filing. of first execution petition on 28-9-1972 and, its dismissal for non-.prosecution on 8-6-1973- Filing of second execution petition on 2-3-1974--Maintainability,--Once an application for execution was made within prescribed time, then any number of applications could be presented within, six years period from date of decree---Second execution petition, held, was not time-barred.

Mahboob Khan v. Hassan Khan PLD 1990 SC 778 fol.

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

--------Art. 199 --Constitutional jurisdiction of High Court---Scope---Constitutional petition could not be heard as an appeal from a subordinate Court---High Court could not embark upon reappraisal of evidence, but would only see jurisdictional defect or violation of statute or law settled by superior Courts while passing impugned order.

Ch. Muhammad Anwar-ul-Haq for Petitioner/Applicant.

CLC 2005 LAHORE HIGH COURT LAHORE 1748 #

2005 C L C 1748

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL MANNAN --- Petitioner

Versus

ALLAH YAR through L.Rs. and others---Respondents

Civil Revision No.241 of 1996, heard on 29th March, 2005.

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

----S. 19--Civil Procedure Code (V of .1908), O.VII, R.11---Specific Relief Act (I of 1877), S.42 --- Suit fox declaration---Rejection of plaint---Plaintiff was allottee of suit-land under Grow More Food Scheme-Defendant on basis of agreement to sell in his favour obtained decree restraining plaintiff from alienating suit-land, and then defendant on its basis got order from Collector sanctioning sale in his, favour---Plaintiff's application under S. 12(2), C.P.C., challenging decree for injunction was dismissed and appeal filed against same was also dismissed---Plaintiffs appeal filed against sanction order was dismissed by Commissioner and revision filed against same. was dismissed by Board of Revenue---Civil suit filed by plaintiff challenging thereby all such orders was dismissed as withdrawn---Constitutional petition filed by plaintiff against sale sanction, order was dismissed by High Court---Plaintiff filed suit to declare, sale sanction order of Collector to be "void---Defendant by admitting all such facts made application under O.VII, R.11, C.P.C." for rejection of plaint---Plaintiff: in his reply did not deny any of such facts, but prayed for dismissal of application-- Trial' Court rejected plaint, but Appellate Court remanded case for its decision afresh after recording of evidence---Validity-Plaintiff in his plaint had not at all mentioned such facts---All said orders and proceedings were admitted---Such authentic documents i.e. certified copies of orders and judgments, must have been looked into---Sale sanction order of Collector impugned in suit for declaration had already been found by High Court to be legal and valid---Such order of High Court had not been challenged any further---Suit was bound to fail being barred-,by law---High Court dismissed revision petition, set. aside impugned order and restored order of Trial Court rejecting plaint under O.VII, R.11, C.P.C.

Muhammad Shafi 'and another Muhammad Bakhsh and another PLD 1971 Lah. 148 ref.

Muhannnad Akhtar and others v. Abdul Hadi and others 1981 SCMR and S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (moin) through Legal Heirs 2002 SCMR 338 rel.

Rana Luqman Ali Khan for Petitioner.

Aurangzeb Alamgir Janjua for Respondent No. 1.

Nemo for other Respondents.

Date of hearing: 29th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1751 #

2005 C L C 1751

[Lahore]

Before Sh. Javaid Sarfraz, J

Syed ALI HUSSAIN NAQVI---Appellant

Versus

ALI SHER NAQVI---Respondent

R.F.A. No.69 of 2003, decided on 14th March, 2005.

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

----O. XXXVII, R.2---Contract Act (IX of 1872), S.25---Suit for recovery of amount on basis of promissory note and its receipt---Execution of promissory note and receipt not denied by defendant---Plaintiff produced no evidence regarding actual payment of amount to defendant---Validity---Promissory note and its receipt executed 'by defendant being without consideration, were void and could not be enforced through Court of law---Plaintiff was not entitled to decree claimed in suit.

Muhammad Ilyas v. Mst. Ijazan and another 1991 SCMR 1508; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1,995 Lah. 395 and Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440 rel.

Muhammad Zafar Iqbal Shah and Ijaz Ahmad Janjua for Appellant.

Jameel Ahmad Chohan for Respondent.

Date of hearing: 2nd March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1755 #

2005 C L C 1755

[Lahore]

Before Maulvi Anwarul Haq, J

Sheikh WASEEM AHMAD---Petitioner

Versus

Mst. WAZIR BEGUM and 2 others---Respondents

Writ Petition No. 1769 of 2005, decided on 5th April, 2005.

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

---S. 25 Custody of minor---Entitlement---Paramount consideration would be welfare of minor.

Mst: Firdous Iqbal v. Shiiat Ali and others 2000 SCMR 838 fol.

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

----S. 25---Custody of minor son---Contest between father and maternal grandmother of minor after death of his real mother---Father having a daughter from second marriage---Effect---Evidence on record showed that grandmother was much better placed than father and was certainly in a better position to look after minor---Grandmother certainly had preferential right to, custody of minor under Islamic law---Refusal of father to deliver custody of minor to his grandmother would constitute removal within meaning of S.25 of Guardians and Wards Act, 1890---Application for, custody being competent was allowed in circumstances.

Muhammad Nafeez Abbas v. The Guardian Judge, Lahore and others NLR 1994 Civil 4; Mst. Salima Bibi v. Muhammad Khan PLD 1987 Lah. 383; Mst. Razia Bibi v. District Judge, Bahawal Nagar and others 1,992 CLC 1981 and Mst, Imtiaz Begum v. Sheikh Azmat Ullah PLD 1959 (W.P.) Lah. 750 ref.

----S. 25---"Custody" of minor---Connotation---Custody would include constructive custody.

Sh. Sajjad Ahmad and Malik Muhammad Rafique Rajwana for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1758 #

2005 C L C 1758

[Lahore]

Before Muhammad Khalid Alvi, J

Hafiz ALTAF AHMED---Appellant

Versus

Haji AHMED DIN---Respondent

S.A.O. No. 64 of 2005, heard on 4th July, 2005.

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

----S. 13(3)(a)(ii), first proviso---Personal bona fide need of landlord---First tenancy agreement which was executed for a period of 11 months showed one of the conditions that premises in question would not be got vacated by landlord from tenant on ground of personal need of landlord---After expiry of said original tenancy agreement, numerous agreements were executed by parties in continuation of tenancy, but none contained said condition and said condition ceased to exist between the parties---Even otherwise, such a condition which, by itself, was inherently against provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and which gave a right to landlord to seek eviction on the ground of personal need, could not be termed to be a legal condition---Even if by mutual consent such a condition was agreed upon, same could not have perpetual effect depriving landlord from seeking ejectment of tenant on ground of personal need if at a later point of time such a need accrued, in particular when in subsequent agreement said condition was also not mutually agreed---Restriction imposed on landlord in first proviso to S.13(3)(a)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959, which was only for specified period agreed upon between the parties, was also not available to tenant---After lapse of 11 months period in first tenancy agreement, landlord was relieved of said condition---Condition of terms of an agreement although expired, was permissible provided same were not inconsistent with the statute.

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1986 SC 190 and Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah. 97 ref.

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

----S. 13---Specific Relief Act (I of 1877), S. 12---Ejectment petition and suit for specific performance of contract---Ejectment petition under West Pakistan Urban Rent Restriction Ordinance, 1959 and a suit for specific performance by tenant, were two distinct proceedings- Effect of ejectment order could not be diluted by mere pendency of a civil suit on the basis of an agreement to sell---If an ejectment order was passed against a tenant, same was necessarily required to be executed in letter and spirit---However, tenant, if succeeded in his litigation, could get possession restored through execution of his decree---Neither the two proceedings were required to be consolidated nor the effect of ejectment order could be diluted on the ground of pendency of a civil suit filed by tenant.

Sardar Muhammad Anwar Khan v. Mian Asghar Ali 1988 CLC 402; Miss Shazia Umar Choudhry v. Board of Intermediate and Secondary Education, Faisalabad through Chairman and 2 others 2000 CLC 1684; Aleem-ud-Din and another v. Muhammad Aslam and 2 others 1991 SCMR 850; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17; Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

Ch. Imdad Ali Khan for Appellant.

M. Naeem Sadiq for Respondent.

Date of hearing: 4th July, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1765 #

2005 C L C 1765

[Lahore]

Before Mian Saqib Nisar, J

ZAFAR ULLAH KHAN and others---Petitioners

Versus

NASRULLAH KHAN---Respondent

Civil Revisions No.666 and 628 of 2000, heard on 17th December, 2004.

Islamic law-----

----Gift, validity of---Essential ingredients of valid gift, namely the declaration, offer made by donor, acceptance by donee and delivery of possession, were not established in the present case, rather were lacking, but Courts below had ignored all such aspects of the case---Concurrent judgments of Courts below, based upon total misreading of statement of alleged donor and ignoring and misapplying law pertaining to valid gift, could not be maintained.

Fateh Muhammad v. Adalat Khan 1979 CLC 587 ref.

Manzoor Hussain Basra for Petitioners.

Hamid Ali Mirza and Mian Ashfaq Ahmad for Respondent No. 1.

Badar Munir Malik for Respondent No. 2.

Date of hearing: 17th December, 2004.

CLC 2005 LAHORE HIGH COURT LAHORE 1769 #

2005 C L C 1769

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AAMIR MUNIR---Petitioner

Versus

GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT and 2 others---Respondents

Writ Petition No. 14 of 2005, decided on 30th June, 2005.

Punjab Local Government Ordinance (XII1 of 2001)---

----Ss. 152, 159 & 1617--Constitution of Pakistan (1973), Art.199---Constitutional petition---Town Nazim---Corruption case, involvement in---Sealing the office of Town Nazim by order of Secretary/Deputy Secretary, Government of the Punjab---Validity---No provision existed in Punjab Local Government, Ordinance, 2001 authorizing Authority to pass impugned order---High Court set aside the order while declaring the same to be without lawful authority and of no legal effect---Principles.

Malik Ahmad Khan Awan v. The Election Commission of Pakistan 2004 CLC 1143 ref.

Muhammad Kamran Sheikh for Petitioner.

Khurshid Anwar Bhinder, Addl. A.-G. for respondents with Amjad Zahoor Warraich, Deputy Secretary (Regulation).

CLC 2005 LAHORE HIGH COURT LAHORE 1772 #

2005 C L C 1772

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AMIN---Petitioner

Versus

ATTIQ-UR-REHMAN and another---Respondents

Civil Revision No.2084 of 2003, decided on 3rd March, 2005.

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

----Ss. 6 & 13---Suit for pre-emption----Making of Talbs---Suit was decreed by Trial Court, but was dismissed on appeal---Validity---Appellate Court had non-suited plaintiff/pre-emptor on account of delay in performance of Talb-i-Muwathibat and Talb-i-Ishhad---Evidence of plaintiff had fully proved performance of Talb-i-Muwathibat on acquiring knowledge and dispatch of notice of Talb-i-Ishhad---Plaintiff and his witnesses being villagers were prone to give estimated time---Neither computerized treatment could be given nor their statements could be weighed with mathematical precision---On acquisition of knowledge the Talb-i-Muwathibat was performed by plaintiff---Calculation made by Appellate Court was too technical to be given any weight---Impugned judgment and decree of Appellate Court were set, aside and that of Trial Court, was restored.

Muhammad Kaleem Akbar for Petitioner.

Mian Muhammad Athar for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1774 #

2005 C L C 1774

[Lahore]

Before Jawwad S. Khawaja, J

IRSHAD ULLAH---Petitioner

Versus

MUHAMMAD ARSHAD---Respondent

Civil Revision No. 1766 of 2001, heard on 8th June, 2005.

(a) Power of attorney---

----Delegation of powers to attorney---Extent and scope---Determination--- In order to -determine the powers delegated to attorney by principal, it is necessary to see the language of the document.

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

----S. 14---Right of pre-emption ---Exercise of such right through attorney ---Scope ---Pre-emption suit was filed by father of pre-emptor, in his capacity of general power of attorney holder regarding property already owned by pre-emptor ---Validity ---Power of attorney did not confer on the attorney a power to file, institute or defend suits---Such power, however, was circumscribed by the warding that all powers granted to the attorney were in respect of the property owned by preemptor---Subject-matter of pre-emption suit was property other than the property owned by pre-emptor ---Pre-emption suit filed by the attorney on behalf of pre-emptor was beyond the scope of the authority vested in him---Suit was not maintainable in circumstances.

----S. 14---Right of pre-emption ---Word `agent'---Meaning---Exercise of right of pre-emption through attorney---Making of required Talb by attorney ---Pre-emptor residing in a foreign country---Pre-emption suit was filed by father of pre-emptor, in his capacity of general. power of attorney holder regarding property owned 'by pre-emptor ---Required Talbs were made by the attorney as the pre-emptor was residing in a foreign country---Validity---Agent could make the required Talb under S.14 of Punjab Pre-emption Act, 1991, only if the pre-emptor was unable to do so---Pre-emptor was not suffering from any disability due to which he was unable to make the requisite Talbs---Mere fact that pre-emptor was residing in foreign country did not prove that he was unable to make Talb---Agent could only make the requisite Talbs, if he had been authorized to do so---Pre-emption suit was not maintainable in circumstances.

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

----S. 14---Word agent'---Meaning---Wordagent' used 'in S.14 of Punjab Pre-emption Act, 1991, presupposes that the agency created by the principal authorizes the agent to make Talbs under S.13 of Punjab Pre-emption Act, 1991.

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

----Ss. 13 & 14---Right of pre-emption ---Exercise of such right through attorney---Making of required Talbs by attorney---Concurrent findings of fact by the Courts below ---Pre-emption suit was filed by father of pre-emptor, in his capacity of general power of attorney holder regarding property already owned by pre-emptor ---Required Talbs were also made by the attorney on behalf of pre-emptor,--Judgment and decree passed by Trial Court in favour of pre-emptor was maintained by Lower Appellate Court---Plea raised by vendee was that the attorney was not authorized to make Talbs as well as to file suit---Validity---Attorney of pre-emptor admitted that he made requisite Talb-i-Muwathibat when he was informed of the sale by vendor---There was nothing on record to show that the pre-emptor himself had made Talb-i-Muwathibat when he became aware of the sale---Talb made by attorney of pre-emptor did not fulfil the requirements of S.13 of Punjab Pre-emption Act, 1991---Pre-emption suit filed by father of pre-emptor purporting to be his general attorney was beyond the scope of the authority delegated to him---Talbs which were made by the attorney were also unauthorized---Judgments and decrees passed by both the Courts below proceeded on error of law and were not legally sustainable, which were set aside and the suit was dismissed---Revision was allowed in circumstances.

Manzoor Qadir for Petitioner.

Abdul Majeed Khan for Respondent.

Date of hearing: 8th June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1778 #

2005 C L C 1778

[Lahore]

Before Muhammad Nawaz Bhatti, J

SULTAN SHAH---Petitioner

Versus

DISTRICT PUBLIC SAFETY COMMISSION and others---Respondents

Writ Petitions Nos. 1478 and 4067 of 2005, decided on'21st July, 2005.

Constitution of Pakistan (1973)---

---- Art. 199---Writ of mandamus---Aggrieved person---Person could not be said to be an aggrieved, unless he had aright in the performance of statutory duty by a person performing functions in respect of any right which he could have in relation to performance of such functions---Petitioners, in the present case, had not stated as to how they were aggrieved persons pressing for issuance of a writ of mandamus---People who come to Courts with a non-serious approach and without doing their homework while they endeavor to point out impressive issues, would not add anything in the positive sense for the benefit of society---Such people not coming to the Court with clean hands deserve to be discouraged---Petition was dismissed.

M. Ghulam Nabi Awan Advocate v. Government of Pakistan and 3 others 2003 MLD 90 ref.

Malik Javed Akhtar Vains for Petitioner.

Mubashir Lateef Gill, A.A.-G.

Ch. Ghulam-ud-Din Aslam for Respondent No.3.

Muhammad Ashraf, Circle Officer, A.C.E. Lodhran.

Date of hearing: 21st July, 2005

CLC 2005 LAHORE HIGH COURT LAHORE 1781 #

2005 C L C 1781

[Lahore]

Before Muhammad Muzammal Khan, J

KOHINOOR INDUSTRIES LIMITED PROJECT, KOHINOOR TEXTILE MILLS LTD. through Chief Executive---Petitioner

Versus

SARGODHA SPINNING MILLS LIMITED through Chief Executive and 2 others---Respondents

Civil Revision No. 1855 of 2005, decided on 28th July, 2005.

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

----O. IX, R.13---Limitation Act (IX of 1908), S.5 & Art. 164---Ex parte decree, setting aside of---Framing of issues after filing of written statement---Ex parte proceedings against defendant for his non-appearance, when case was fixed for plaintiff's evidence---Passing of ex parte decree about eight (8) months after ex parte proceedings---Filing of application for setting aside ex parte decree after six (6) months of its passing---Plea of defendant was that his counsel had absented abruptly without conveying any information to him---Validity---Defendant in application had not denied knowledge about pendency of suit or date fixed in suit --Matter regarding undertaking of counsel to appear in suit and non-conveying of his absence from suit was between defendant and his counsel in which Court was not involved in any manner---Negligence of counsel would not be sufficient cause or good ground for setting aside ex parte decree---Defendant might sue his counsel for damages occasioned on account of his lapse, but for such reason, prayer for setting aside ex parte decree could not be granted---Defendant was obliged under law to follow suit diligently and his dependence on his counsel was not lawfully sufficient to absolve him from legal obligations cast on him---Sleeping over his rights for six months showed that absence of defendant or anybody on his behalf was intentional/deliberate---No specific application for condonation of delay had been filed---Application for setting aside ex parte decree was dismissed in circumstances.

Haji Ahmad Hassan v. Dr. Mian Aziz Ahmad and 5 others 1979 CLC 629; Saee and others v. Zulfiqar Ali and others PLD 1992 Lah. 241 and Muhammad Munawar v. Ch. Khurshid Alam 1978 SCMR 266 rel.

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

----O. IX, R.13---Ex parte decree, setting aside of---Negligence of counsel---Not sufficient cause or good ground for setting aside ex parte decree---Remedy of defendant would be to sue his counsel for damages occasioned on account of his lapse.

Haji Ahmad Hassan v. Dr. Mian Aziz Ahmad and 5 others 1979 CLC 629; Saee and others v. Zulfigar Ali and others PLD 1992 Lah. 241 and Muhammad Munawar v. Ch. Khurshid Alam 1978 SCMR 266 rel.

----Law requires an indolent litigant to explain delay of each day, which cannot be done merely on the ground that dispute should be decided on merits ignoring technicalities.

Ch. Abdul Rab for Petitioner.

CLC 2005 LAHORE HIGH COURT LAHORE 1785 #

2005 C L C 1785

[Lahore]

Before Farrukh Lateef, J

FARMAN AHMAD---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Registrar Academic and 7 others---Respondents

Writ Petition No.7151 of 2002, decided on 8th November, 2002.

Educational institution---

----Admission in second year B-Tech Course---Prayer of petitioner in Constitutional petition was that a direction be issued to Authorities for issuing N.O.C. to him and that Chairman Admission Committee be directed to place his name on merit list prior to names of two others and to grant him admission in second year B-Tech Course in the college---Validity---Under Art. 199 of the Constitution, direction could not be issued to Chairman Admission Committee, to do anything which was not permitted by law to do i.e. to grant admission to petitioner without N.O.C.---Petitioner could neither claim N.O.C. as of right nor it was statutory duty of the authorities to issue N.O.C. in favour of petitioner--- Direction could not be given to the Authorities to issue N.O.C. in favour of petitioner in circumstances---Constitution of Pakistan (1973), Art. 199.

Mehr Muhammad Naeem Arshad for Petitioner.

Muhammad Saleem, Registrar Respondent No.3, in person.

Respondents Nos.5 and 6 in person.

Comments have been submitted by Respondent No.6.

Date of hearing: 30th October, 2002.

CLC 2005 LAHORE HIGH COURT LAHORE 1787 #

2005 C L C 1787

[Lahore]

Before Nazir Ahmad Siddiqui and Sh. Azmat Saeed, JJ

MEHREEN ZAIDI---Appellant

Versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor and 5 others---Respondents

I.C.As. Nos.98 and 93 of 2005, heard on 13th May, 2005.

(a) University of Health Sciences Lahore Regulations---

----Rgln. 5(3)(iv)(v)(xii-a, i, j, k)---Law Reforms Ordinance (XII of 1972), 5.3---Intra-Court Appeal---Alteration / correction in marks sheet---Procedure---Grievance of appellants was that the marks awarded to them by external examiner in viva voce were altered in violation of Regulations, with mala fide intention and personal bias and the appellants were declared as fail---Authorities had debarred the concerned external examiner from holding examinations further---Effect---Spirit of Rgln.5(3)(xii)(j) of University of Health Sciences Lahore, Regulations was that even after alteration / correction, the original marks should appear legible so as to give fair, clear, and un-blurring picture of what had been earlier done by the examiner---Policy / rule makers of the University deserved to be appreciated for framing such Regulations but at the same time the office of the Controller of Examinations as well as the examiners failed to discharge their assignment fairly, honestly, justly and diligently in the context of implementation/substantial compliance of the Regulations---High Court observed that if such alarming tendency for not caring the Rules / Regulations aimed at ensuring fair and transparent system of examination was not timely and effectively checked, there would be no end to the allegations / complaints / grievances in the context of malpractice, favouritism, personal bias etc. and the confidence / trust reposed by the public in general and the students in particular in the system of examination would also be awfully impaired---High Court in exercise of Constitutional jurisdiction did not examine the matter in its true perspective hence the judgment suffered from inherent infirmities and was set aside---High Court in Intra-Court Appeal directed the University Authorities to re-assess the appellants on the basis of marks obtained by them in internal assessment ---Intra Court Appeal was allowed accordingly.

(b) Administration of justice---

----When law requires an act to be done in a particular manner, doing otherwise renders the same a nullity in the eye of law.

Muhammad Waseem Shahab and Hafiz M. Naveed Akhtar for Appellant.

M. Asif Ismail for Respondents Nos.1 and 2.

M.R. Khalid Joya for Respondents Nos.4 and 5.

M.R. Khalid Malik, Addl. A.-G.

Dates of hearing: 10th, 11th and 13th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1797 #

2005 C L C 1797

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. AMIRAN MAI and 7 others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector, Multan and 2 others---Respondents

Civil Revision No. 1445/D of 1994, decided on 13th June, 2005.

(a) Jurisdiction---

----Ouster of jurisdiction---Principles---If a statute provides that order made by any authority acting under it should not be called in question in any Court, all that is necessary to oust the jurisdiction of Court is to see that the authority should have been constituted as required by the statute; person proceeded against should be subject to the jurisdiction of the authority; the ground on which the action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute---Such contentions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority---If an Appellate Authority is provided by the statute, the omission or irregularity alleged can be a matter of that authority and not for other Courts of law.

Zafar-ul-Ahsan v. The Islamic Republic of Pakistan PLD 1960 SC 113 rel.

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

----S. 36---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Declaration of title---Bar on jurisdiction of Civil-Courts --- Concurrent findings of fact by the Courts below---Land allotted to predecessor-in-interest of plaintiffs was cancelled by Collector and the order of cancellation was maintained by Board of Revenue---Plaintiffs assailed the order passed by Revenue Authorities in civil suit on the ground that the order was against the facts---Trial Court dismissed the suit on the ground of bar of jurisdiction under S.36 of Colonization of Government Lands (Punjab) Act, 1912 and the judgment and decree was maintained by Appellate Court---Validity---Civil Court could not examine the question of jurisdiction and legal merits of the order passed by Revenue Authorities under the provisions of Colonization of Government Lands (Punjab) Act, 1912---Civil Court was not competent to entertain a suit, even if the order passed by the Authorities was found to be wrong---Jurisdiction of Civil Court could not be made dependent on the correctness of the litigants' contention---Civil Court could only see if the authority passing the order was empowered under the provisions of Colonization of Government Lands (Punjab) Act, 1912, to pass such order---Plaintiffs failed to point out any non-reading and misreading on the part of both the Courts below---There were concurrent findings of facts and law given by both the Courts below that the orders passed by the Revenue Authorities, while exercising jurisdictions vested with them, were not erroneous or illegal---Both the Courts below had rightly held that such orders of Revenue Authorities could not be discussed or set aside by Civil Courts as the jurisdiction of Civil Courts was ousted in such matters---Plaintiffs failed to show that the orders passed by the Revenue Authorities were passed without any lawful authority---Revision was dismissed in circumstances.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 fol.

Abdul Ghafar and others v. Government of West Pakistan and others PLD 1963 Kar. 215 ref.

----S. 115---Revisional jurisdiction of High Court, exercise of---Findings of facts, substitution of---Principles---High Court, while exercising revisional jurisdiction, cannot disturb findings of fact arrived at by the lower Courts in proper exercise of jurisdiction vesting in the Court and upon consideration of relevant evidence on record---Finding of fact by lower Court can only be disturbed in revisional jurisdiction by High Court if it is found to be fanciful, perverse or it has been arrived at by a process which has rendered the exercise of jurisdiction vesting in the Court defective---In cases of misreading of evidence or non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by High Court in exercise of its revisional jurisdiction.

Malik Noor Muhammad Awan for Petitioners.

M. Qasim Khan, A.A.-G. assisted by Azmat Ali Khanzada for Respondent No. 1.

Kh. Muhammad Asghar for Respondent No.2.

Rana Muhammad Nazir Saeed, for L.Rs. or Respondent No.3.

Date of hearing: 4th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1805 #

2005 C L C 1805

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MUHAMMAD BAQIR SHAH and 8 others---Appellants

Versus

Mst. ISMAT KHATOON and another---Respondents

Regular Second Appeal No.81 of 1988, decided on 29th April, 2005.

Punjab Pre-emption Act (I of 1913)---

----Ss. 4, 5, 16 & 21---Suit for pre-emption ---Suit was decreed by Trial Court, but Appellate Court reversed findings of Trial Court on certain issues and dismissed the suit---Points to be determined in second appeal were; whether one of the transactions pertained to a shop which was not pre-emptible and that whether custom of pre-emption existed in the area where suit property was situated ---Defendant claimed that one of the transactions related to a shop which was not pre-emptible, whereas claim of plaintiff was that no shop had been constructed either by vendor or vendee and it in fact was the passage to the house---Evidence on record had fully proved that shop was never in existence at any point of time before sale was made in favour of defendant/vendee by vendors---Trial Court, in circumstances had rightly found that said transaction was preemptible and in view of said established factual and legal position on record, Appellate Court below was not justified to reverse findings of Trial Court on said issue---Findings of Trial Court on that issue was restored---Regarding existence of custom of pre-emption in the locality concerned, Trial Court on basis of notification according to which limits of Town Committee concerned were extended, held that custom of pre-emption did exist in area where suit property was situated---Appellate Court below disagreeing with opinion of Trial Court, had formed the opinion that locality in question was outside the limits of old town and said area was outgrowth and that mere fact that custom existed in old town, would not lead to inference that it existed in extended area as well---Finding of Trial Court was set aside by Appellate Court below---Evidence on record showed that, Circular Road constituting the bounds of Town Committee concerned and suit property was located outside---Said extension would not also constitute extension of custom of pre-emption---Finding recorded by Appellate Court below that custom or pre-emption did not exist in area concerned was affirmed while findings of Trial Court on other issues were affirmed by the High Court in second appeal.

Wadhawa Mal v. Lachman Das and others AIR 1924 Lah. 213; Sandhi v. Khair-ud-Din and others AIR 1927 Lah. 328; Sant Singh v. Gobind Ram AIR 1923 Lah. 209; Haji Muhammad Naim v. Mst. Umatur Rasul and others PLD 1965 Pesh. 57; Ghulam Mustafa v. Haji Mian Muhammad and another PLD 1969 Pesh. 241; Mst. Dilbar Jan and others v. Abdul Ghaffar PLD 1966 Pesh. 80; Mukhtar Ahinad v. Abdul Rahim and another PLD 1985 Pesh. 122; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; Keramat Ali and another v. Muhanunad Yunus Haji and others PLD 1963 SC 191; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Sabir Ali v Mst. Zubaida Bibi 1993 MLD 321 and Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through L.Rs. and another 1993 SCMR 1477 ref.

Mian Muhammad Arshad Latif for Appellants.

Mirza Manzoor Ahmad for Respondents.

Dates of hearing: 28th February, 24th and 25th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1816 #

2005 C L C 1816

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM ABBAS---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector, Jhang and 9 others---Respondents

Writ Petition No.5373 of 2005, decided on 10th June, 2005.

(a) Conciliation Courts Ordinance (XLIV of 1961)---

----S. 7(2) & Sched., Part II---Conciliation Courts---Pecuniary jurisdiction---Scope---Imposing of penalty equivalent to pecuniary jurisdiction---Validity---Pecuniary jurisdiction of such Courts is fixed at RS.1,00,000 in Part-II of Schedule of Conciliation Courts Ordinance, 1961, and it does not convey that the Courts have been conferred with ,jurisdiction to impose a penalty of Rs. 1,00,000.

(b) Conciliation Courts Ordinance (XLIV of 1961)---

---Ss. 5 & 7---Conciliation Committee---Scope---Conciliation Committee of Union Council, acting as Conciliation Court---Validity---No provision existed in Conciliation Courts Ordinance, 1961, equipping members of a Union Council to act as Conciliation Committee and to discharge functions of Conciliation Court or to penalize any of the parties before them, with any kind of penalty---Conciliation Committee of Union Council does not figure any where in Conciliation Courts Ordinance, 1961---Conciliation Committee in terms of S.5 of Conciliation Courts Ordinance, 1961 is a body consisting of a Chairman and two representatives to be nominated in the prescribed manner, one by each of the parties to the dispute---Committee of Union Council cannot act as Reconciliation Court under S.5(1) or Conciliation Courts Ordinance, 1961, and cannot assume jurisdiction in terms or S.7(3) of Conciliation Courts Ordinance, 1961.

----Ss. 5, 7 & Sched.---Limitation Act (IX of 1908), S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Conciliation Committee-.--Family matters ---Laches, condonation of---Orders passed by incompetent forum---Dispute pertaining to restitution of conjugal rights was referred to Conciliation Committee---Members of Conciliation Committee constituted by Union Council took up the matter and imposed penalty of Rs.1,00,000 on the petitioner---Validity---Members of union council could not entertain any dispute regarding restitution of conjugal rights as the same was not included in ^the Schedule to Conciliation Courts Ordinance, 1961, wherein, civil disputes triable by Conciliation Courts only included suits for recovery of money on contracts, for recovery of movable property, for compensation on wrongful taking or damage to movable property and 1'or damages caused by cattle trespass--Order passed by members of Conciliation Committee of Union Council was without jurisdiction---Petitioner did not sleep over his rights and did not accept the orders of the Committee at any stage which were ultimately assailed by hint through the Constitutional petition---Petitioner had filed application for condonation of laches suffered in approaching High Court and had explained delay in his approach to High Court---Illegality could not be allowed to be perpetuated solely for the reasons that the petitioner being illiterate kept on roaming before different Courts/Authorities who could not adjudge/rescined orders passed by an incompetent forum--- Order passed by such Conciliation Committee being void could not remain in field and the same was set aside---Petition was allowed in circumstances.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

Members (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 fol.

Arbab Hafizullah Khan v. Mir Badshah and another PLD 1968 Pesh. 190; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Yousal Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 rel.

Khalid Ikram Khatana for Petitioner.

Muhammad Yasin Badar for Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1821 #

2005 C L C 1821

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

KHALID MAHMOOD---Appellant

Versus

ASGHAR ALI BHATTI---Respondent

Regular First Appeal No.910 and C.M. No.1/C of 2001, heard on 12th July, 2005.

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

----O. I, Rr.9 & 1.0---Necessary party, impleading of---Suo motu powers of Trial Court---Suit was dismissed by Trial Court for not impleading a necessary party---Validity---Courts had ample power to suo motu implead/add a party, whose presence was necessary to effectually and completely adjudicate upon all the questions involved in the suit---Trial Court was under obligation that once it had come to the conclusion that the person was a necessary party, then the Court should have itself' impleaded that person in the suit instead of short cutting the matter by dismissing the suit---Judgment and decree passed by Trial Court was set aside and the matter was remanded to Trial Court for decision afresh---Appeal was allowed in circumstances.

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

----O. I, R.10 & O.XLI, R.33---Impleading of necessary party---Appellate Court, jurisdiction of---Suit was dismissed by Trial Court for the reason that person necessary to the decision of the case-was not impleaded---Plaintiff along with appeal filed application for impleading the necessary person as party---Validity---Appeal was continuation of suit and Appellate Court, in exercise of its powers under O.XLI, R.33, C.P.C. could pass any order which ought to have been passed or made as the case might have required---Once. the Appellate Court had come to the. conclusion that a person was "a necessary party, then the Judge ought to pass order directing such person to join as a party---High Court, in exercise; of appellate jurisdiction, set aside the judgment and decree passed by Trial Court, as the Court had fallen into a legal error in dismissing the suit---Matter was remanded to Trial Court for decision afresh after impleading the necessary person as party to the suit---Appeal was allowed accordingly.

Muhammad Anwar Naseem v. Commissioner of Income Tax, Gujranwala and another 1998 SCMR 2020; Chiraghuddin v. Muhammad Ibrahim and others 1995 CLC 1632; Messrs Ideal Life Insurance Co. Ltd and another v. Mst.' Khairunnisa A.G. Mirza 1980 CLC 1375; Muhammad Ashraf v. Ghulam Nabi and others 1981 CLC 817; University of the Punjab through Vice-Chancellor and another v. Malik Jehangir Khan 1994 MLD 452; Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217; Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781 and Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 ref.

Malik Tabassum Maqsood for Appellant.

Malik Taj Muhammad Khan for Respondent.

Date of hearing: 12th July, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1827 #

2005 C L C 1827

[Lahore]

Before Muhammad Jehangir Arshad, J

MUSHTAQ AHMAD and others---Petitioners

Versus

MEHMOOD AHMAD and others---Respondents

Civil Revision No. 306/D of 2004 and C. M. No. 1002 of 2005, decided on 1st June, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3; O.XXXVIII, Rr.4, 5, Ss.47, 48, 145 & O.XXI, Rr.64, 66, 67, 69, 92 & 94---Suit for recovery of amount on basis of cheques---Attachment of property of defendants before decree---Execution of decree, objection against---Suit was filed along with application under O. XXXVIII, R. 4, C.P.C. for attachment of property of defendants before decree---Defendants had filed application for grant of leave to appear and defend suit---Plaintiff had stated in his statement that if defendants would submit surety bond equal to suit amours they could be allowed to appear and defend suit---Trial Court dismissed plaintiff's application filed under O.XXXVIII, R.4, C.P.C. as withdrawn and granted leave to appear and defend suit to defendant subject to their furnishing security accordingly---Defendants, who could not arrange for surety, filed application that property mentioned in their application for leave to appear and defend suit be attached as security for grant of leave to appear and defend suit; Court ordered accordingly and adjourned the suit for recording evidence of parties---Trial Court, after completion of evidence of parties, decreed spit against one defendant only and dismissed suit to the extent of remaining defendants and five defendants were ordered to be deleted from the suit---Executing Court, on filing execution petition by decree-holder, directed that property detailed in application of defendants for leave to appear and defend suit, be sold through public auction, against which objection petition was filed by defendants seeking annulment of order of auction---Defendants had contended that by dismissal of suit to their extent, they were not liable for performance of decree passed against one defendant only---Validity---Defendants did stand surety and gave undertaking for performance of decree irrespective of their being defendants/judgment-debtors, their status as surety neither did come to an end nor they could avoid any liability by taking benefit of deletion of their names from suit---Executing Court before proceeding with property of said defendants, did not issue any notice to them and straightaway proceeded to order auction of their property after giving notice to judgment-debtor only which was violation of S.145, C.P.C. which had provided that while proceeding against property of surety, Court was bound to give notice to him---Order of Executing Court directing auction of property of defendants through Court Auctioneer, was declared to be without lawful authority and of no legal effect and was set aside.

Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; Muhammad Hussain v. Muslim Commercial Bank Ltd. 2003 CLD 1693; Messrs S.P.R.L. Rehman Brothers v. Judge, Banking Court No.II, Lahore and another 2000 MLD 1957; Sheikh Rahim-ud-Din v: Murli Dhar and others AIR 1938 Lah. 593; Maula Bakhsh v. Allah Ditta AIR 1935 Lah. 145; Karimbhai v. Hatimbhai PLD 1994 Kar. 311; Ghulam Abbas v. Zohra Bibi and others PLD 1972 SC 337; Messrs Masoom Industreis and others v. Habib Bank Limited and another 2005 SCMR 746; Refique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 and Firm Nanak Chand Ramji Das v. Ibrahim and another AIR 1937 Lah. 772 ref.

Haji Muhammad Asghar and Aziz-ur-Rehman Khan for Petitioners.

Ijaz Ahmad Ansari for Respondent No.l. Ch. Ijaz Ahmad for Respondent No.2.

M.A. Farazi for Muhammad Afzal judgment-debtor (though not party).

Sh. Faisal Munir for Applicant (in C.M. No. 1002 of 2005).

Date of hearing: 20th May, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1839 #

2005 C L C 1839

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

Mst. IQBAL BIBI through L.Rs. and others---Respondents

Civil Revision No. 1432 of 1996, heard on 20th July, 2005.

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

----Ss. 188 & 214---Sale of principal's property by Attorney in favour of his blood relation---Validity---Such sale would be treated as transfer in favour of Attorney himself, which could not be done or legalized without special permission from principal---Principles illustrated.

Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Fida Muhammad v. Pir Muhammad Khan through L.Rs. and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and others 1997 SCMR 1811; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1984 SCMR 818 and Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shugufta Rafique 1994 CLC 1690 rel.

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

----Ss. 188 & 214---Qanun-e-Shahadat (10 of 1984), Art.199---Sale of wife's property by husband as her attorney in favour of his real cousin---Denial of transaction by wife---Effect---Onus to prove such sale to be with wife's consent would shift on beneficiary---Self-serving statement of attorney, in absence of any corroboration, would not be enough to prove such sale to be with wife's consent --Principles illustrated.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 rel

---- S. 214---Pardahnashin lady---Property of Pardah-ob serving lady---Such lady is entitled to special protection under law---Property of such lady should be dealt with, with great care/caution especially by those, who stood in fiduciary relationship with her like husband etc.---Such persons are bound under law to prove their good faith and good conscience of transaction entered on her behalf especially as her attorney.

Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC. 1140; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609 rel.

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

----Ss. 188 & 214---Qanun-e-Shahadat (10 of 1984), Art. 129(p) --- Sale of wife's property by husband as her attorney in favour of his real cousin---Denial of sale by wife---Cousin alleging sale in his favour by attorney on payment of price made against a receipt---Non-production of receipt in evidence---Effect---Withholding of receipt would give rise to presumption adverse to the cousin's case.

Mushtaq Masood for Petitioner.

Nemo for Respondents.

Date of hearing: 20th July, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1844 #

2005 C L C 1844

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ZAFAR---Petitioner

Versus

JUDGE, FAMILY COURT and another---Respondents

Writ Petition No. 1025 of 2005/BWP, decided on 30th June, 2005.

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

----S. 10(4), proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Suit for dissolution of marriage---Failure of reconciliatory efforts---Effect---Family Court would decree suit forthwith and restore to husband dower received by wife at the time of marriage in consideration of marriage, but not before or after marriage as additional dower or gift would not include therein.

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

---S. 10(4), proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Proviso to S.10(4) of West Pakistan Family Courts Act, 1964---Object and applicability---Aim of such provision was to expedite disposal of dissolution of marriages at pre-trial reconciliation stage---If such stage was not availed by Court or parties and matter was contested on basis of evidence, then passing of decree by invoking the powers under proviso to S.10(4) of the Act would be a discretion of Court---If Court decided or parties desired that upon failure of conciliation efforts, instead of passing decree, matter should be decided on merits by a reasoned judgment, then proviso to S.10(4) would have no application.

----S. 10(4), proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Suit for dissolution of marriage---Failure of reconciliatory efforts---Decree dissolving marriage, passing of---Husband's right to .restoration of Haq Mehr---Scope ---If husband by his acts, deeds and conduct made life of wife miserable and pitiable compelling her to seek divorce from a Court then restoration of Haq Mehr would not be necessary and mandatory---Principles illustrated.

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

----S. 10(4), proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Suit for dissolution of marriage---Return of dower neither claimed/prayed for in written statement nor during trial of suit---Failure of reconciliation efforts---Passing of decree for dissolution of marriage without ordering wife to return dower to husband---Validity---High Court in Constitutional jurisdiction would examine the vires, legality and correctness of impugned judgment to see whether same was passed in consonance with the provisions of law and facts of the case as prayed for and claimed---Such demand must have been made before Trial Court, so that other party must have chance to meet same and Court should have opportunity to ascertain and determine dower paid or delivered to bride---Husband could not claim indulgence of High Court for return of restoration of dower as he had missed all advantageous and proper situations, events and occasions in the case---High Court dismissed Constitutional petition in circumstances.

Mrs. Samina Qureshi for Petitioner.

Malik M.H. Zafar Missan for Respondent No.2.

Date of hearing: 24th June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1851 #

2005 C L C 1851

[Lahore]

Before Muhammad Nawaz Bhatti, J

SHER MUHAMMAD and others---Petitioners

Versus

ALI MUHAMMAD and others---Respondents

Writ Petition No.5097 of 1996, decided on 22nd June, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plea of fraud and misrepresentation---Petitioners had challenged impugned judgment and decree passed by Appellate Court below dismissing appeal against judgment and decree passed by Trial Court whereby it had accepted application filed under S. 12(2), C.P.C.---Trial Court after giving issue wise finding accepted application under S. 12(2), C.P.C. and observed that it was well-established that fraud vitiated most. solemn proceedings and any superstructure based on foundation of fraudulently obtained certificate, had to be demolished to the ground---Revision petition against judgment of Trial Court whereby application under S. 12(2), C.P.C. was accepted was also dismissed---No illegality, material irregularity and jurisdictional flaw having been pointed out in the impugned judgments---Constitutional petition being devoid of force was dismissed, in circumstances.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Muhammad Ibrahim v. Chief Settlement and Rehabilitation Commissioner and another PLD 1966 Lah. 396; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Rana Mamoon Rasheed v. Kokab Noorani Okarvi and others PLD 1999 Kar. 257 ref.

Malik Altaf Hussain Raan and Syed Mohtasham-ul-Haq Pirzada for Petitioners.

Ch. Muhanunad Hussain Jahanian for Respondents Nos.6 to 9.

Mubashar Lateef Gill, A.A.-G. for Respondent No.5.

Date of hearing: 22nd June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1884 #

2005 C L C 1884

[Lahore]

Before Muhammad Jehangir Arshad, J

Dr. GHULAM DASTIGIR and others---Applicants

Versus

ABDUL GHANI and others---Respondents

Civil Miscellaneous Nos.75 of 1994 and 218 of 1993 in Writ Petition No. 566/R of 1970, decided on 11th March, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2)---West Pakistan Land Revenue Act (XVII of 1967), 5.7---West Pakistan Land Revenue Rules, 1968, R.67-A---Challenging order of demarcation of property in application under S.12(2), C.P.C.---High Court vide impugned order directed Deputy Commissioner/District Collector concerned to demarcate property in question---Applicants who claimed to be transferees from joint property in question challenged order of demarcation alleging that it had been passed without impleading them as party, without any notice to them and without affording opportunity of hearing to them---Impugned order was passed in Constitutional petition, despite question of demarcation was not subject-matter of said Constitutional petition---Applicants, who were necessary party, should have been impleaded and High Court could not order/direct demarcation to the extent of share of Constitutional petitioners only in joint property in absence of other sharers and bona fide purchases therefrom without notice to them as well as without affording them opportunity of hearing---Even otherwise demarcation conducted by Revenue Authorities in compliance with said order of High Court, did not appear to be a fair exercise, but same seemed to have been done just to avoid consequences of non-compliances of order of the Court---Demarcation proceedings were not conducted independently or under provisions of Land Revenue Act, 1967---Order of demarcation passed by High Court in Constitutional petition was without jurisdiction for the reasons; that no prayer was made in Constitutional petition for demarcation of property in dispute and High Court, while sitting in Constitutional jurisdiction, could not sit over jurisdiction of a competent forum i.e. either under Land Revenue Act, 1967 or Civil Court; that property in dispute being joint property, each co-sharer was necessary party and without joining them and without affording them reasonable opportunity of hearing, same could not be demarcated just at the desire of some of the co-sharers; that demarcation proceedings were not conducted strictly in accordance with law; and that factum of pendency of partition suit before Civil Court with regard to joint property was not brought to the notice of High Court by parties in Constitutional petition and obtained order for demarcation of their shares which amounted to playing fraud on High Court---Applications under S.12(2), C.P.C. were accepted and impugned order was declared as without jurisdiction based on fraud and demarcation proceedings conducted by Revenue Authorities on basis of said order were declared as without lawful authority and of no legal effect.

Province of Punjab through Collector Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Riyaz Qasim v. Messrs A.M.A. (Pvt.) Ltd. 1999 CLC 445 and Pakistan and others v. Public-at-large and others PLD 1987 SC 304 ref.

Ch. Naseer Ahmad and Ch. Muhammad Shafi Meo for Applicants.

M.M. Bhatti for Respondents.

Date of hearing: 8th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1894 #

2005 C L C 1894

[Lahore]

Before Maulvi Anwarul Haq, J

GIIULAM MUHAMMAD and 18 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary to the Government

and another---Respondents

Writ Petition No.2521 of 2002, heard on 16th Juae, 2005.

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

---S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Kala Base Evictees---Principle of res judicata---Applicability---Two rounds of litigation had taken place between the parties and the matter vas finally resolved by Supreme Court interpreting the provisions of notification issued by Board of Revenue regarding conferment of proprietary rights to Kala Base Evictees--Provincial Government, after the pronouncement or the judgment of Supreme Court, again issued a clarification of the notification---Validity - Matter decided by Supreme court could not be re-agitated before High Court in exercise of Constitutional jurisdiction---Clarification by Provincial Government after the decision of Supreme Court bordered on contempt---In view of the judgment recorded by Supreme Court and its observations such matter was res judicata---Such clarification of notification by Provincial Government was an attempt to circumvent a conclusive adjudication of the issue up to the level of Supreme Court---Petition was dismissed with costs in circumstances.

Col. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019 and Government of the Punjab through Chief Secretary v. Khadim Hussain 1999 SCMR 1639 ref.

Sardar Manzoor. Ahmad Khan for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. for Respondents Nos.1 and 2.

Syed Athar Hassan Bukhari for Respondents Nos.3 to 10.

Ch. Muhamrnad Iqbal Ghazi for Respondents Nos. 11 to 40.

Date of hearing: 16th June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1899 #

2005 C L C 1899

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. SARWARI BIBI --- Petitioner

Versus

ARSHAD ALI KHAN and 2 others---Respondents

Writ Petition No. 12936 or 2003, decided on 14th July, 2005.

Punjab Land Revenue Rules, 1968---

----Rr. 17 (a) & 19 (2)(d)---Constitution of Pakistan (1973), Arts.25 (2) & 199---Constitutional petition---Lambardar, appointment of---Right of female---Principle of primogeniture---Scope---Lambardar of the village died issueless and her sister applied for the appointment of Lambardar in place of her brother---Petitioner claimed that her father was also a Lambardar---Though the Revenue Authorities recommended the petitioner for the appointment but she was not appointed being a female---Validity---Ordinarily a female should not be appointed as Lambardar, under R. 19(2)(d) of Punjab Land Revenue Rules, 1968, but a female might be appointed when she was the sole owner or for special reasons---Appointment of female' as Lambardar on the principle of primogeniture was approved by Supreme Court---Right of female was fully guaranteed under Art.25(2) of the Constitution and the provisions contained in R.19(2)(d) of Punjab Land Revenue Rules, 1968, had been declared as un-Cons titutional---Held, petitioner could not be ignored for the appointment only on the ground of her being a female, if she was otherwise most suitable for such appointment---Order passed by Board of Revenue spoke of the suitability of respondent as Lambardar and was silent with regard to the suitability of petitioner for the appointment in question---Order passed by Board of Revenue was set aside and the case was remanded for decision afresh on the basis of the report of field staff, keeping in view the provisions of R. 17(a) of Punjab Land Revenue Rules, 1968---Petition was allowed accordingly.

Muhammad Sarwar v. Umar Din PLD 1957 Rev. 31; Ghulam Rasul v. Hassan Muhammad PLD 1960 Rev. 52; Ch. Asghar Ali v. Member, Board of Revenue and others 1993 CLC 858 and Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

Mushtaq Hussain v. Naeem Akhtar PLD 1982 SC 271; Writ Petition No.72 of 1993 and Mst. Nasreen Iqbal v. Member (Revenue) Board of Revenue Punjab and others PLD 1993 Lah. 423 fol.

Zafar Iqbal Chauhan for Petitioner.

Syed Farooq Hassan Naqvi for Respondent No 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 2nd June, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1903 #

2005 C L C 1903

[Lahore]

Before Muhammad Muzammal Khan, J

SOHNI KHAN and 4 others---Petitioners

Versus

GHULAM QADIR and others ---Respondents

Civil Revision No. 1225 of 2000, decided on 12th July, 2005.

Punjab Tenancy Act (XVI of 1887)---

----S. 5---Specific Relief Act (I of 1877), S.42--- Civil Procedure Code (V of 1908), S.115---Declaration of title---Adverse possession, plea of---Concurrent findings of fact by the Courts below---Plaintiffs asserted in plaint that suit-land was in their continuous / undisturbed possession and their possession had matured into a title by way of adverse possession---Defendants claimed that the possession of plaintiffs was that of tenants under them---Predecessor-in-interest of plaintiffs was occupancy tenant without paying any rent of the land in his possession, which was changed in year, 1969-70 on account of non-payment of dues in terms of S.5 of Punjab Tenancy Act, 1892---Plaintiffs did not challenge the change in Revenue Record for twenty years till the present suit was filed on 7-5-1990, and that too on the basis of adverse possession without. challenging the change in the Revenue Record---Both the, Courts below dismissed the suit and appeal respectively ---Validity --Suit of plaintiffs, as it stood, was not competent, as plea of adverse possession could be used as a shield by defendants but it could not be made' basis for filing the suit claiming proprietary rights on the basis thereof---Adverse possession was contrary to the Injunctions of Islam---Such plea otherwise could not be proved on record as mere entry of non-payment of rent to owner in year 1969-70 was not enough in support of declaration of title ---Khasra Girdawari and other Revenue Record revealed that at the time of institution of suit, the plaintiffs were tenants; hence no decree in their favour could have been passed about their status earlier to year, 1969---None of the Courts below committed any illegality/irregularity as envisaged by S.115 C.P.C. because they passed the judgments strictly in consonance with the evidence on the record---No case for interference in revisional jurisdiction of High Court was made out---Revision was dismissed in circumstances.

Mian Muhatmnad Abbas for the Petitioners.

Sh. Naveed Shahryar for the Respondents.

CLC 2005 LAHORE HIGH COURT LAHORE 1906 #

2005 C L C 1906

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Major SHAHID CHAUDHRY---Petitioner

Versus

Miss. SHUMAILA YAQOOB, JUDGE, FAMILY COURT, LAHORE and 2 others---Respondents

Writ Petition No. 9706 of 2005, heard on 22nd July, 2005.

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

----S.S---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dissolution of marriage ---Khula---Non-framing of issues---Power of attorney, ratification of---Husband was residing in Pakistan whereas wife was residing in a foreign country---Suit filed by wife through her attorney was decreed on the basis of Khula---Plea raised by husband was that the suit was not filed through duly constituted attorney and no issues were framed---Validity---If suit was not instituted through duly constituted attorney, the second power of attorneys executed by wife, empowered the attorney to do the needful---Wife also submitted affidavit and admitted execution of both special power of attorneys___ Institution of suit, even if the same was instituted unauthorizedly, stood ratified in view of the recitals contained in subsequent special power of attorney, execution whereof could not be called in question---Wife had developed hatered against her husband, therefore, there was no possibility of parties living together as husband and wife---Family Court had rightly decreed the suit on the basis of Khula---Judgment mistakenly showed that Family Court had decided the case after framing of issues but it made no difference because the suit was decreed on the basis of Khula---Suit could not be dismissed merely on the ground that no issues were framed---There was no illegality or infirmity in the judgment so as to warrant interference by High Court in Constitutional jurisdiction---Petition was dismissed in circumstances.

Mst. Surayya Kausar v. Muhammad Asmat Ullah 2000 MLD 507 rel.

Ch. Muhammad Abdullah for Petitioner.

Munawar-us-Salam for Respondents.

Date of hearing: 22nd July, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1909 #

2005 C L C 1909

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM MUHAMMAD through L.Rs. Nazir and others---Petitioners

Versus

Mst. RASOOLAN and others---Respondents

Civil Revision No. 924 of 2001, heard on 22nd February, 2005.

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

----Ss.8 & 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120--- Declaration of title and recovery of possession--Ownership of suit land---Onus to prove---Concurrent findings of fact by the Courts below ---Plaintiffs sought declaration of title being owners of the suit-land and asserted that the defendants had taken forcible possession of the land sonic 8-1/2 years ago---Trial Court and Appellate Court decreed the suit and dismissed the appeal---Validity---Plaintiffs were to prove their case that they were owners of suit-land and entitled to possession of the same as prayed for in their plaint---Both the Courts below had exercised their jurisdiction illegally and with material irregularity by proceeding on the premise that it was initially for the defendants to prove their defence, such was not purport of law---Plaintiff's have to prove their case before the defendants could have called upon to prove their defence---In view of the documentary evidence, the plaintiffs failed to prove their case on account, of their failure to justify exclusion of name of predecessor-in interest of defendants from Jamabandi for year 1981-82---On the other hand Jamabandi from year, 1934-35 to 1968-69 showing the predecessor-in-interest of plaintiffs as owner coupled with physical possession of suit-land was sufficient to discharge the onus of proof placed on defendants with regard to issue regarding purchase of suit-land by the predecessor-in-interest of defendants---Plaintiffs failed to produce any Jamabandi preceding year, 1934-35 which could show that the predecessor-in-interest of defendants was not shown as owner in possession of suit-land---Both the Courts below had misread the evidence on record and acted in exercise of their jurisdiction in a manner which was illegal and had resulted in material irregularity---Judgments and decrees passed by both the Courts below were set aside and the suit filed by plaintiff's was dismissed.

Ch. Muhammad Asif Ranjha for Petitioners.

Ch. Lehrasap Khan Gondal, for Respondents.

Date of hearing: 22nd February, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1913 #

2005 C L C 1913

[Lahore]

Before Muhammad Muzammal Khan, J

IJAZ AHMED through Attorney---Petitioner

Versus

JUDGE, FAMILY COURT and 5 others---Respondents

Writ Petition No.4598 of 2005, decided on 8th July, 2005.

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

----Ss. 5 & 17---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance, enhancement of---Principle of res judicata---Applicability---Earlier suit was decreed on the basis of compromise and a sum of Rs.600 per child per month was fixed as maintenance allowance---After lapse of three years, the minors felt necessity of enhancement of maintenance allowance, as they were promoted to higher classes and were admitted in better schools, where tuition fees etc. were comparatively snore---Minors filed second Suit which was decreed in their favour by Family Court and a sum of Rs.2000 per child per month was fixed as maintenance allowance---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Plea raised by father was that principle of res judicata was applicable and the second suit was barred under law---Validity---Demands of minors increased by gaining of their ages and maintenance allowance lost its purchasing powers due to inflation and dearness---Only course open for minors was to file fresh suit, because under law, the Family Court which passed earlier decree became functus officio and could not have increased the amount fixed therein---Limitation for filing of appeal against the earlier decree had also lapsed---There was no bar in West Pakistan Family Courts Act, 1964, for filing second suit for enhancement of maintenance allowance except the one under S.11 C.P.C., which was made applicable to such proceedings by virtue of S.17 of West Pakistan Family Courts Act, 1964---Second suit would only be barred in case the matter had been directly or substantially in issue in a former suit between the parties---Although the earlier suit was for recovery of maintenance, yet issue regarding its enhancement was neither raised nor was considered in that suit and thus was not in issue, then---Subsequent suit which was filed only for enhancement of maintenance allowance was not barred under S.11 C.P.C.---Both the Courts below did not commit any illegality amenable to Constitutional jurisdiction of High Court and they competently entertained, adjudicated and decided second suit and correctly enhanced the maintenance allowance---Petition was dismissed in circumstances.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Shahul Hamid v. Tahir Ali 1980 SCMR 469; Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Arbab Mir Muhammad v. Mst. Irani Iltimas and 4 others 1999 CLC 1668 and Mehmood Asir Butt v. District Judge, Gujranwala and 2 others 2004 CLC 217 ref.

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

----S. 5, Sched. & S.14---Maintenance allowance, enhancement of---Filing of subsequent suit---Validity---Subsequent suit filed for enhancement of maintenance allowance is not debarred under Ss.5, 14 and Schedule of West Pakistan Family Courts Act, 1964.

----S. 5---Constitution or Pakistan (1973), Art.199 ---Constitutional petition---Maintenance allowance, enhancement of---Quantum--- Earlier suit was decreed on the basis of compromise and a sum of Rs.600/- per child per month was fixed as maintenance allowance---After lapse of three years, the minors felt necessity of enhancement of maintenance allowance as they were promoted to higher classes and were admitted in better schools, where tuition fees etc. were comparatively more---Minors filed second suit which was decreed in their favour by Family Court and a sum or Rs.2000/- per child per month was fixed as maintenance allowance for the reason that father was employed in a foreign country and had means to pay the amount awarded---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Plea raised by father was that the allowance fixed by both the Courts below was exorbitant---Validity---Keeping in mind the rate of inflation in country and dearness, besides viewing the increased demands of minors, who were in 9th, 6th and 4th classes respectively in year 2002 and were further promoted by three classes each, increase in maintenance allowance from Rs.600 to Rs.2000 was not excessive/exorbitant---Petition was dismissed in circumstances.

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

----Art. 199---Constitutional jurisdiction of High Court---Substitution of decision,---Scope---Lawful decision cannot be substituted in Constitutional petition.

Rana Muhammad Akram Khan for the Petitioner.

Parvez I. Mir for Respondents Nos.3 to 6.

CLC 2005 LAHORE HIGH COURT LAHORE 1918 #

2005 C L C 1918

[Lahore]

Before Muhammad Sair Ali, J

JANAT BIBI---Petitioner

Versus

MUHAMMAD ZAMAN---Respondent

Civil Revision No. 2794 of 2000, heard on 18th January 2005.

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

---- Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff had stated that on acquisition of knowledge of mutation, he pronounced as Talb-e-Muwathibat his intention to pre-empt suit-land as he possessed superior right of pre-emption and that he sent notice of Talb-e-Ishhad through registered A.D. with attestation of two witness o---Plaintiff, however had neither specified date of knowledge nor date, time and place of exercising Talb-e-Muwathibat as pre-condition to filing of suit for possession through pre-emption ---Even in examination-in-chief, plaintiff had failed to particularize or specify the date of knowledge of sale transaction and did not make statement as to particular date of exercise of Talb-e-Muwathibat---Particulars and mandatory requirements of Talb-e-Muwathibat as prescribed in S.13 of Puq;ab Pre-emption Act, 1991, in circumstances, had not been fulfilled and proved by pre-emptor either in his statement or in other evidence or pleadings---Trial Court, in circumstances had rightly concluded that plaintiff had not fulfilled his mandatory obligation qua performance of Talb-e-Muwathibat without which no suit could be filed---Impugned judgment of Appellate Court whereby suit filed by pre-emptor was decreed was set aside and judgment and decree passed by Trial Court was upheld.

Hafiz Khalil Ahmad for Petitioner.

Syed Iftikhar Hussain Shah for Respondent.

Date of hearing: 18th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1921 #

2005 C L C 1921

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ASHRAF and others---Appellants

Versus

MUHAMMAD SHARIF and others---Respondents

Regular Second Appeal No. 46 of 1998, heard on 14th January, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Trial Court dismissed suit by returning findings on issue of waiver and also that plaintiff had failed to establish Talb-e-Ishhad---Appellate Court, however, reversed findings of Trial Court on both issues and decreed the suit---Defendant had contended that plaintiff through a document had categorically agreed and admitted that land would not be purchased by him and he would have no objection if it was sold to anyone including defendants/vendees---Trial Court dismissed the suit on basis of alleged document holding that plaintiff had waived his right of pre-emption---Appellate Court, held issue of. waiver against defendants/vendees on the ground that a person simply being a witness to a transaction or having knowledge, otherwise, if did not assert his right, would not be deemed to have waived his right of pre-emption---Notice of Talb-e-Ishhad was rightly sent on correct address of vendees and same was received by general attorney of vendees/defendant---Plaintiff, who was alleged to have executed disputed document appeared in Court as a witness, but he was not confronted with said document---Defendants/vendees could not prove said document on account of which it could be held that plaintiff had waived his right to file suit for pre-emption---Issuance of Talb-e-Ishhad had also been fully proved---Appellate Court, in circumstances, had rightly decreed suit setting aside judgment and decree of Trial Court.

1988 CLC 1001 and PLD 1972 SC 133 ref.

Syed Shamim Abbas Bokhari for Appellants.

Ch. Nusrat Javed Bajwa for Respondents.

Date of hearing: 14th January, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1925 #

2005 C L C 1925

[Lahore]

Before Rustam Ali Malik and Sardar Muhammad Aslam, JJ

SANA SULTAN---Petitioner

Versus

'UNIVERSITY OF HEALTH SCIENCES---Respondent

Writ Petitions Nos.4142 and 5574 of 2005, decided on 14th April, 2005.

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

----Art. 199---Constitutional petition---Educational Institution---Examination---Petitioners had to clear first professional Part-II Examination of M.B.B.S. within three permissible chances---Petitioners who availed said three chances, but failed to clear the first professional Part-II, had ceased to become eligible for further Medical Education and students at the top of merit were granted admission in institution---Said order could not be challenged in Constitutional petition because only bright, studious and hardworking students were to be selected in the field of Medicine---Students who were carefree in studies, could not be allowed to sit in colleges for indefinite period and occupy seats which could be available to any other deserving student---Those who failed to come up to the standard prescribed by educational institutions and fell below in merit, should select some other field and should not be allowed to waste time and money.

Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752; Shafique Ahmad and others v. Government of the Punjab and others PLD 2004 SC 168; Abdul Wadood and 18 others v. University of Health Sciences, Sheikh Zayed Hospital, Lahore through Vice-Chancellor and 3 others 2005 CLC 467; Akhtar Ali Javed v. Principal Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 538; Maroof Khan v. Principal Ayub Medical College, Abbotabad and 4 others 1996 SCMR 1101; Munza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790 and Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction, was to be exercised in order to advance and promote justice in accordance with law and was not meant to bypass the provisions of statute.

Munir Ahmad Bhatti for Appellants.

Syed Najam-ul-Hassan Kazmi for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 1935 #

2005 C L C 1935

[Lahore]

Before Mian Hamid Farooq, J

Malik AHMAD KHAN---Applicant

Versus

DISTRICT RETURNING OFFICER, JHANG and 3 others---Respondents

Review Application No.61 of 2005 in Writ Petition No.14308 of 2005, decided on 12th August, 2005.

Civil Procedure Code (V of 1908)---

----S. 114, O. XLVII, R.1---Constitution of Pakistan (1973), Art.199---Application for review---Review could not be made a pretext for re-arguing whole case and matter could not be re-opened under the garb of review application---Case of applicant as made out in the application, did not fall within scope of O.XLVII, R.1, C.P.C. inasmuch as no mistake or error on the face of record had been pointed out by applicant---Applicant had produced copy of an order which was not produced, originally, with constitutional petition---Even that would not advance case of applicant as production of copy of said order, at belated stage, would not amount to discovery of new and important matter or evidence---No case of review of order having been made out, High Court, declined to review impugned order.

Muhammad Zafarullah Khan v. Muhammad Khan and another 1975 SCMR 473 ref.

Muhammad Ahsan Bhoon for Applicant.

CLC 2005 LAHORE HIGH COURT LAHORE 1949 #

2005 C L C 1949

[Lahore]

Before Syed Hamid Ali Shah and Mian Hamid Farooq, JJ

TARIQ ASLAM SHEIKH TOONI---Petitioner

Versus

HAQ NAWAZ---Respondent

Regular First Appeal No.591 of 1999, heard on 24th March, 2005.

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

----S. 33---Civil Procedure Code (V of 1908), O.XXXVII, R.2---Arbitration Act (X of 1940), S.5---Suit for recovery of amount on the basis of promissory note and receipt---Parties, during the course of proceedings, agreed to resolution of their dispute through the decision of referee and order-sheet of the Court in this behalf was signed by the counsel of the parties and parties affixed their thumb-impressions thereupon---Date was fixed for the statement of the referee---Defendant, however, moved an application, seeking revocation of authority of referee on the ground that the referee had joined hands with the other side and had called parties to make statements and thus he had assumed the role of Arbitrator---Trial Court without requiring the plaintiff to file reply to the application of the defendant, had dismissed the application---Consequently, the suit of the plaintiff was decreed on the basis of the statement of the referee---Validity---Held, statement got recorded by the parties, was signed by their counsel as well, decision of the referee, in its letter and spirit thus, had the binding impact---Statements of the parties showed that authority of the referee was irrevocable and was not subject to termination---Trial Court, therefore, had rightly dismissed the application for the revocation of the authority of the referee---Plea by the defendant that referee, after having summoned the parties to record their statement, had lost his status of referee and thus, had no weight---Statement of the referee showed that his statement was on the basis of personal knowledge and wisdom about the point in issue and his statement was not based on any local inquiry---Mere calling the parties to appear before the referee would not, in any manner, change his character from referee to an arbitrator---No infirmity having been found in the judgment of the "Trial Court, suit was rightly decreed and appeal against the same had no merit which was dismissed by the High Court.

Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah. 418; Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah.

672; Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Muhammad Akram v. Nawab Din and others 1989 SCMR 1083; Rehmat and others v. Residents of, Deh and others 1988 CLC 1922 and Muhammad Arif and others v. Farrukh Hafeez 2005 YLR 3106 ref.

Zafar Iqbal Chouhan for Appellant.

Syed Mukhtar Abbas for Respondent.

Date of hearing: 24th March, 2005.

CLC 2005 LAHORE HIGH COURT LAHORE 1959 #

2005 C L C 1959

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD RIAZ---Petitioner

Versus

Mst. RAZIA BEGUM and 2 others---Respondents

Writ Petition No.12141 of 2005, decided on 28th July, 2005.

West Pakistan Urban Rent Restriction Ordinance (IV of 1969)---

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition--Rent Controller had adjourned the proceedings arising from landlord's ejectment petition until the conclusion of the suit for declaration filed by the tenants with regard to the property/premises, subject-matter of the ejectment petition---Validity---Merely because a civil suit had been filed by the alleged tenants with reference to the title of property/premises in question, the Rent Controller need not automatically stay the proceedings till the decision of the civil suit especially where such claim was disputed bona fide---Petitioner (landlord) in the present case, claimed that he possessed a sale-deed while the respondents (tenants) were basing their claim on the basis of an oral sale---Undisputedly, in the civil suit, the Court had found that respondents (tenants) even did not have a prima facie arguable case, and thus, had rightly dismissed respondents' application for grant of temporary injunction---Ejectment proceedings, in circumstances, should continue in the normal course and the Rent Controller should decide the vital issue as to whether the relationship of landlord and tenant existed---Case being fit for interference and invalidation of impugned order, High Court set aside the same and remanded the case to the Rent Controller with direction to proceed with the ejectment petition and to decide the same expeditiously in line with the observations of the High Court.

Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064 and PLD 1991 SC 242 fol.

Wajid Ali Khan v. Sheikh Murtaza Alit and 2 others 2003 SCMR 1416; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 and Mrs. Anita Haroon v. Mst. Sughran Bibi and another 2000 SCMR 716 ref.

Rana Muhammad Anwar for Petitioner.

Akhtar Masood Khan for Respondent.

CLC 2005 LAHORE HIGH COURT LAHORE 1965 #

2005 C L C 1965

[Lahore]

Before Sayed Zahid Hussain, J

ALLAH RAKHA and another---Petitioners

Versus

NAZIR AHMAD and 2 others ---Respondents

Revision Petition No.445 of 2000, decided on 13th September, 2005.

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

----O. XIV, R.1 & S.115---Non-framing of proper issues---Objection---Issues were framed in presence of parties who not only continued to take part in the trial without any objection but also produced evidence on such issues---Despite the provisions available in O.XIV C.P.C., no attempt at any stage was made by petitioners for framing of proper issues---Such grievance could not be made before High Court in revision petition.

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

----S. 42---Civil Procedure Code (V of 1908), 5.115---Suit for declaration---Oral gift---Proof---Inconsistent pleas---Filing of suit after the death of owner of suit land---Effect---Concurrent findings of fact by the Courts below---Suit land was allegedly gifted by mother of defendants in favour of plaintiffs, who were real brothers of owner of suit land---Both the Courts below concurrently dismissed the suit and appeal of plaintiffs---Validity---Plea about making of gift in favour of plaintiffs suffered from inconsistencies inasmuch as in the plaint the case sought to be set up was that the gift was made in their favour for the services rendered by them to her, whereas while deposing before Trial Court, plaintiff stated that the owner had offered to give her land in the name of Allah---Entries in Roznamcha and mutation did not support either of their assertion rather the mutation showed that the alleged oral gift was against the consideration of Rs.30,000; as such it proved the hollowness of inconsistent pleas of plaintiffs---Owner of the land was a married woman having two sons and a daughter and there was no apparent reason brought on record for the owner to gift away her land in favour of plaintiffs by depriving her own sons and daughter---Gift was allegedly made six months before the death of the owner and mutation of gift was declined by revenue officer in the life time of the owner---Plaintiffs obtained attested copy of the order of revenue officer on the next day of its refusal but the suit was not instituted during the life time of the owner and it was filed a few days after her death---Such facts militate against the foundation of the claim of plaintiffs as to the factum of gift---Concurrent judgments passed by both the Courts below did not warrant any interference by High Court in revisional jurisdiction---Revision was dismissed.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1988 SCMR 1121 distinguished.

Fazal Mehmood and others v. Tajar Khan 1992 MLD 1439; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140 and Khalil Ahmad v. Abdul Jabbar Khan 2005 SCMR 911 ref.

Ch. Inayatullah for Petitioners.

Ch. Muhammad Sharif Sahi for Respondents.

Date of hearing: 13th September, 2005.

Peshawar High Court

CLC 2005 PESHAWAR HIGH COURT 54 #

2005 C L C 54

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

HIDAYATULLAH---Petitioner

Versus

AMNA BIBI and another---Respondents

W. P. No. 158 of 2003, decided on 30th September, 2004.

(a) Islamic Law---

---- Divorce---Khula, grant of---Essentials---Wife for claim of Khula need not come out with logical objective and sufficient reasons---Principles.

A wife cannot be forced to live with her husband without her consent and liking. Wife need not come out with logical objective and sufficient reasons regarding her claim of Khula. It is enough to show that she had developed a fixed aversion for her husband and the parties cannot live together within the, limits prescribed by God, which is the most important ingredient for grant of Khula.

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

----Art. 199---Finding of fact recorded by Court below---Interference with such finding in Constitutional jurisdiction of High Court--Principles.

Powers of High Court in Constitutional jurisdiction are not analogous to those of an Appellate Court. Constitutional jurisdiction can only be exercised, if the lower Court has exceeded its jurisdiction or acted without jurisdiction. Finding of fact recorded by a Court possessing jurisdiction cannot be disturbed merely on the ground that another view is possible on the same evidence, unless that finding is based on no evidence, is fanciful or arbitrary. The object of taking away right of appeal in the family matters is meaningful. If the Constitutional jurisdiction takes the place of appeal, then the intent and purpose of Legislature would be frustrated. Impugned judgment, if passed with competence and jurisdiction conferred on the Court of law, then it cannot be adjudged in Constitutional jurisdiction of High Court.

Kalim Arshad Khan for Petitioner.

CLC 2005 PESHAWAR HIGH COURT 118 #

2005 C L C 118

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD HASSAN and others---Petitioners

Versus

DUR MARJAN and 14 others---Respondents

C.R.No.163 of 1999, decided on 17th September, 2004.

Specific Relief Act (I of 1877)---

----Ss. 42 &, 54---Suit for declaration and injunction---Limitation---Suit filed by plaintiffs was concurrently dismissed by Trial Court and Appellate Court being barred by time---Plaintiffs in their suit had challenged inheritance mutations entered in Revenue Record in the years 1932 and 1933---Plaintiffs became fully aware of position with regard to mutation at least 26 years before institution of the present suit, but they did not seek any remedy regarding suit-land---Both Courts below while dealing with issue "whether suit was time barred" had concurrently found that suit was barred by time---Plaintiffs having awakened after a long slumber; could not be allowed to challenge entries in Revenue Record affecting their rights and asking for their rectification--Noticeable delay on part of plaintiffs was not ignorable ---Trial Court and Appellate Court had taken a rightful decision regarding limitation which was in consonance with evidence on file---No .misreading or non-reading of evidence on part of Courts below had been proved and judgments of Courts below were not shown to have been tainted with any illegality or irregularity---No interference was permissible in revisional jurisdiction of High Court, in circumstances.

1983 SCMR 626; 2000 SCMR 1574; 1991 MLD' 25; 1986 MLD 764; 1998 SCMR 996; PLD 1984 SC 394; 2002 CLC 689; PLD 1983 SC 273; 2003 SCMR 362; 1997 SCMR 281; 2002 CLC 1704; 2002 CLC 1539; 1995 CLC 380; 2001 MLD 1790; 2001 YLR 2615; 2004 CLC 515; 2002 CLC 1709; 2002 MLD 500 and 2002 CLC 754 ref.

Rustam Khan Kundi for Petitioners.

Gauhar Zaman Khan Kundi and Malik Muhammad Bashir for Respondents.

Date of hearing: 9th September, 2004.

CLC 2005 PESHAWAR HIGH COURT 154 #

2005 C L C 154

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

M.C. TANK through Town Nazim Town II, Tank and another---Petitioners

Versus

WARIS KHAN and 2 others---Respondents

C. R. No. 17 of 2003, decided on 17th September, 2004.

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

----O. VII, R.2---Specific Relief Act (I of 1877), S.42---Suit for recovery of amount and declaration---Determination of appellate forum---Valuation of suit as stated in the plaint was relevant for determination of appellate forum and not the decretal amount.

2000 CLC 1493; Sadar Din v. Ellahi Bakhsh and another PLD 1976 Lah. 1; Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394; Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284 and Ellahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 ref.

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

----Ss. 3, 5 & 14---Delay, condonation of---Wrong advice or ill-advice of the counsel was not a ground for extension of time of limitation either under S.5 or S.14 of Limitation Act, 1908---Litigation before a wrong forum had never been considered to be a bona fide act in law and delay caused thereby had never been condoned---With lapse of time valuable rights having accrued to other side, defaulting party, was required to explain each day's delay in approaching the Court.

Abdul Majeed and another v. Ghulam Haider and others 2001 SCMR 1254; Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Karachi Water and Sewerage Board through Managing Director and another v. Muhammad Moosa 2001 CLC 221; Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471 = 2003 PLC (C.S.) 1175; Ijaz Baig and 16 others v. Irshad Baig and 2 others 2003 CLC 1805; Raj Muhammad v. Mst. Chan Bibi and others 1984 SCMR 1058; Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Ismail Din v. Allah Nawaz and others 1988 SCMR 2; Ch. Muhammad Sharif v. Muhammad Ali Khan 1975 SCMR 259; Mirza Muhammad Saeed v. Shahabuddin PLD 1983 SC 385 and Muhammad Tufail Danish v. Deputy Director, F.I.A. 1991 SCMR 1841 ref.

----S. 115---Revisional jurisdiction--Scope---In absence of any illegality or material irregularity concurrent judgments and decrees of Courts below would not warrant any interference by High Court in exercise of its revisional jurisdiction.

Faridullah Khan Kundi for Petitioners.

Muhammad Yousaf Khan for Respondents.

Date of hearing: 17th September, 2004.

CLC 2005 PESHAWAR HIGH COURT 165 #

2005 C L C 165

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

RAB NAWAZ---Petitioner

Versus

Haji MUHAMMAD IQBAL---Respondent

C.R. No.47 of 2004, decided on 16th September, 2004.

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

----S. 17---Execution of order---Not open to Executing Court to go beyond decree and re-determine liabilities of the parties---Material on record had established that tenant/judgment-debtor had enjoyed possession of suit shop for almost 20 months after passing decree against him without paying any rent to landlord/decree-holder---Judgment-debtor thus, could not be allowed to take benefit of his own failed attempts through which he blocked execution of impugned orders ---Judgment debtor could not be rewarded for such act and he was bound to discharge his liability and pay outstanding amount---Decree-holder could not be deprived of the fruits of decree passed in his favour---Mere technicalities of procedural law, unless offering insurmountable hurdles, were not to be allowed to defeat the ends of justice.

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

----S. 115---Revisional jurisdiction---Exercise of---Where petitioner was unable to point out any illegality or material irregularity in impugned orders requiring interference of High Court in its revisional jurisdiction, revision which had been found bereft of substance, was liable to be dismissed.

2002 SCMR 222; 2004 SCJ 547, 2002 MLD 861; Nasim Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22; Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 and Mir Nawaz Khan and others v. Gul Ayub Khan and another 2003 CLC 1428 ref.

Malik Muhammad Bashir for Petitioner.

Sajid Nawaz Khan Saddozai for Respondent.

Date of hearing: 7th September, 2004.

CLC 2005 PESHAWAR HIGH COURT 180 #

2005 C L C 180

[Peshawar]

Before Dost Muhammad Khan, J

FIDA HUSSAIN and others---Petitioners

Versus

ABDUL AZIZ---Respondent

C.R. No.1106 of 2004 and C.M. No.793 of 2004, decided on 11th October, 2004.

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

----Art. 100---Civil Procedure Code (V of 1908), O.XIII, R.4---Thirty years old document---Presumption as to authenticity of such document--Scope, extent and exceptions---Raising of such presumption not imperative, but discretionary with Court---Presumption limited to extent stated in Art.100 of Qanun-e-Shahadat, 1984 would neither amount to a proof about correctness of contents of such document nor dispense with formal proof thereof---Not proper for Court to raise such presumption, once proof as to contents of document was provided---Onus to prove contrary in such case, would shift to opposite party---Genuineness of document, if susceptible to suspicion, then Court would refuse to raise presumption and additional proof would be required about correctness of its contents---Such document, if marked as exhibit without objection, would not stand proved and Court would not consider same, unless pre requisites of Art.100 of Qanun-e-Shahadat, 1984 are satisfied--Principles.

The rule contained in Article 100 of Qanun-e-Shahadat, 1984 is founded on convenience and expediency alone. In the case of ancient documents by afflux of time the evidence may disappear like the non-availability of its author, executants and attesting witnesses either because of death or that they cannot be procured being not subject to the process of the Court or have otherwise become incapable of giving evidence. The presumption to be raised is discretionary with the Court, which may refuse to raise the presumption in a particular case keeping in view peculiar circumstances and facts of that case, thus, the rule of raising presumption is not imperative. The provision of Article 100 has a limited scope as the presumption is confined to and would arise in respect of the document to the extent (i) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, (ii) that the document was executed by the person by whom it purports to have been executed, and (iii) that the document was attested by the person by whom ii purports to have been attested, the same would not by itself amount to a proof about the correctness of its contents. The scope of such presumption is confined to the extent stated above and does not dispense with the formal proof regarding the contents of a document. When such proof about the correctness of its contents is provided, then it becomes improper for the Court to raise presumption about its contents also and the onus would shift to the opposite party to dislodge such a presumption by leading cogent, convincing and believable evidence to the contrary.

There are certain other exceptions to the rule of raising a presumption in favour of thirty years old document albeit, if produced by person having proper custody and is brought on record in the laid down manner, still the Court may refuse to raise the requisite presumption about it in cases amongst others; (i) if it is executed by a "Parda Nasheen illiterate lady" or even by illiterate person with unintelligent mind, (ii) or is executed by a person of unsound mind, (iii) or facts and circumstances suggest exercise of undue influence, element of practising fraud or is the result of misrepresentation or in case of sale transaction, the payment of sale consideration becoming a begging question, then all these would serve as negation factors and in all such cases, in the absence of requisite proof about the correctness of the contents of the document, the Court shall refuse to raise the presumption.

A document, the genuineness of which is seriously challenged by the opposite party on the ground of fraud, forgery, fabrication or there are apparent overwriting, interpolations made in it rendering it suspicious one, then in that case the party relying on it shall adduce evidence by producing the signatory to the document i.e. the executants, its author and the two attesting witnesses, if they are alive or capable of giving evidence and are subject the process of the Court and whose attendance can be procured without any inconvenience or without any unreasonable delay to free the document from all suspicions/doubts surrounding it. In the absence of such evidence, the raising of requisite presumption may be refused by the Court being discretionary with it, because the effect of presumption may be weakened or even dislodged by circumstances, which tend to raise doubts about authenticity of a document.

Where such document is tendered in evidence and mark of exhibit is put on it by the Court without objection by the other side, then it would not stand proved and Court shall not consider it. The endorsement on the document only makes it a part of the evidence, but its evidentiary value and legal worth depends upon the above prerequisites, which are provided in the provision of Article 100 itself. The presumption to be raised in respect of document provided in the relevant provisions of Qanun-e-Shahadat, 1984 are of two kinds. Some are imperative, where the Court shall presume a document to be correct, while in other cases like the one under Article' 100, as the word "may" has been employed leaving discretion with the Court to raise or refuse to raise such a presumption, thus, when genuineness of thirty years old document is susceptible to suspicion, then unless additional proof is provided about the genuineness of its contents, the presumption would be weakened or almost diminished.

Muhammad Darwesh v. Haji Muhammad Hussain and others 1999 CLC 106 distinguished.

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

----Art. 2(b)---Document---Words "intended to be used or which may be used" as appearing in Art.2(b) of Qanun-e-Shahadat, 1984--Implication---Due execution of a document by party or parties associated thereto is one of its essential elements---Principles.

One of the essential elements of due execution of a document is that the document should be signed by the party or parties associated with it. The words "intended to be used or which may be used" in the definition of the word `document' in Article 2(b) of Qanun-e-Shahadat, 1984, necessarily imply that the document has to be used by some party against another. If it is to be so used, then there should be intrinsic evidence in the document itself of some particular party or parties being associated with the same.

Muhammad Tahir v. Mst. Sardar Bano AIR 1952 All. 782 fol.

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.2(b) & 100---Sale transaction incorporated in mutation---Evidentiary value---Execution of mutation by vendor not required by law---Such mutation being an incident of transfer required by law to be entered in relevant register and attested in open gathering---Purpose of mutation proceedings is to maintain record up to date for fiscal purposes---Mutation not a document like deed executed by parties and duly signed or thumb-impressed by them---Mutation though a document in ordinary sense, but its nature for purposes of Art. 100, Qanun-e-Shahadat, 1984, is doubtful.

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

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Art. 100---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration and possession on basis of gift mutation---Validity---Suit mutation was neither implemented in periodical Jamabandis nor were reflected therein at any stage before institution of suit---Gift mutation in favour of defendant by same donor, though later in time, was duly incorporated into next Jamabandi and same was repeated up to date without any interruption---Defendant had been shown continuously as owner-in-possession of suit-land---Evidence led by defendant held, would have overriding and super imposing effect on suit mutation, in support of which no independent evidence had been led---Suit was dismissed in circumstances.

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

----S. 115---West Pakistan Land Revenue Act (XVII of 1967), S.42--Qanun-e-Shahadat (10 of 1984), Art.100---Revision---Refusal of Courts below to raise presumption in favour of mutation under Art.100 of Qanun-e-Shahadat, 1984--Validity---Findings of Courts below were based on sound materials and reasons---High Court in view of narrow and limited jurisdiction under S.115, C.P.C. could not interfere into discretion exercised by Courts below---Revision was dismissed in limine.

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

----S. 42---Mutation---Evidentiary value---Mere attestation of mutation would not convey any title nor same would be an evidence of title--Beneficiary of mutation would be required to prove transaction through independent evidence---Mere entry of mutation or its attestation would be of no benefit to party claiming benefit thereunder.

Abdul Sattar Khan for Petitioners.

CLC 2005 PESHAWAR HIGH COURT 192 #

2005 C L C 192

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. BISMILLAH and 3 others---Petitioners

Versus

GHULAM SHABBIR alias SHABBIR and 11 others---Respondents

W.Ps. Nos.98 and 99 of 2002, decided on 7th October, 2004.

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

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of ejectment petition for non-existence of relationship of landlord and tenant between the parties was upheld by Appellate Court‑‑‑Validity‑‑‑Landlord was holding Permanent Transfer Deed in respect of disputed shop for having purchased same from Settlement Department in open auction‑‑‑Municipal Committee was tenant of Department so long as disputed shop remained in its ownership‑‑‑Letter produced in evidence by Committee had been treated as an allotment order, though same was a request made by its Chairman to Deputy Settlement Commissioner for transfer of disputed shop in favour of Committee‑‑‑Appellate Court while upholding finding of Rent Controller had not cared to see that same was result of gross misreading and non‑reading of evidence‑‑‑Impugned finding of fact, though concurrent, could not be maintained‑‑‑High Court accepted Constitutional petition, set aside impugned orders and remanded case to Rent Controller for its decision afresh after duly considering entire material on record.

Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Ashraf Kiyani and others v. Mst. Hajira Bibi and others 1999 MLD 2821 ref.

Ashraf Kiyani and others v. Mst. Hajira Bibi and others 1999 MLD 2821 and Muhammad Lehrasab Khan v. Mst. Aqeel‑un‑Nisa and 5 others 2001 SCMR 338 rel.

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

‑‑‑‑S. 15‑‑‑First appeal‑‑‑Duty of Appellate Court‑‑‑Presiding Officer of First Court of appeal and final Court of fact was bound to satisfy its judicial conscience before concurring with findings of Rent Controller that same was based on proper appreciation of oral and documentary evidence.

‑‑‑‑‑Art. 199‑‑‑Findings of fact‑‑‑Interference with such findings by High Court in exercise of its Constitutional jurisdiction‑‑‑Scope‑‑‑High Court could interfere with such findings, if same were based on misreading or non‑reading of evidence or wrong assumption of law and fact.

Muhammad Lehrasab Khan v. Mst. Aqeel‑un‑Nisa and 5 others 2001 SCMR 338; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 and Assistant Collector v. Al; Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514 rel.

Muhammad Younus Thaheem for Petitioners.

Gohar Zaman Kundi, Tariq Aziz Baloch and Ghulam Hur Khan Baloch for Respondents.

Date of hearing: 5th October, 2004.

CLC 2005 PESHAWAR HIGH COURT 312 #

2005 C L C 312

[Peshawar]

Before Talaat Qayum Qureshi, J

TEHSEEN ULLAH‑‑‑Petitioner

Versus

USMAN KHANRespondent

Civil Revision No.87 of 2004, decided on 29th November, 2004.

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

‑‑‑‑S. 149‑‑‑Powers of Court to make up deficiency of court‑fees and grant time for the purpose‑‑‑Scope‑‑‑Court had discretion to allow the person by whom court‑fee was payable, to pay the whole or part of such court fee "at any stage "‑‑‑Appellate Court had ample powers to extend time to deposit court‑fee, even if time granted for deposit of court‑fee had expired.

2003 CLC 1548; Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Bayer AG and another v. Pharmedic Pvt. Ltd. through Chief Executive 2003 CLC 1548 and Abdur Rahim alias Reheema v. The State 1986 SCMR 105 ref.

(b) Court‑Fees Act (VII of 1870)‑‑--

‑‑‑‑Preamble‑‑‑Object of Court Fees Act, 1870‑‑‑Court‑fees Act 1870 like other fiscal statutes, was to be construed strictly in favour of subject as it was passed with the object to secure revenue for benefit of the State and not to arm a litigant with the weapon of technicality to harass his opponent.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Rachappa Subrao v. Shiddapa Venkatrao AIR 1918 PC 188; Muhammad Sharif v. Mst. Natho PLD 1965 Lah. 686 and Sharaf Faridi v. M.S. Shahani PLD 1975 Kar. 59 ref.

Ziaur Rehman for Petitioner.

Khalil Khan Khalil for Respondent.

Date of hearing; 24th November, 2004.

CLC 2005 PESHAWAR HIGH COURT 325 #

2005 C L C 333

[Peshawar]

Before Talaat Qayum Qureshi, J

STATE LIFE‑‑‑Petitioner

Versus

ANWAR SULTANA and others‑‑‑Respondents

Civil Revision No.304 and C.M. No.281 of 2004, decided on 29th November, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O. VII, R.2 & O.IX, Rr.7, 13‑‑‑Suit for recovery of amount‑‑‑Ex parte decree, setting aside of‑‑‑Case, on the dates fixed for evidence of plaintiff, was adjourned on note of Reader of the Court to the effect that "Presiding Officer of Trial Court was on leave on the said date and case was adjourned to next date of hearing" ‑‑‑On adjourned date of hearing ex parte decree was passed against defendant‑‑‑Validity‑‑‑Date of hearing which was adjourned by Reader of the Court was not the "date of hearing" and final action could not be taken against defendants without any notice to them on said date.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Nosheri Khan v. Said Ahmad 1983 SCMR 1092 and Asimullah Khan and another v. Ihsanullah Khan and another PLD 2004 Pesh. 38 ref.

Ijaz Anwar for Petitioners.

Respondent No.1 in person (in C. M. No. 281 of 2004).

2005 C L C 710

[Peshawar]

Before Muhammad Raza Khan, J

Mian SARFRAZ GUL---Appellant

versus

COLLECTOR LAND ACQUISITION and others---Respondents

R.F.As. Nos.53 and 69 of 1999, decided on 31st January, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23, 53 & 54---Acquisition of land---Determination of compensation---Reference to Court---Acquired property consisted of land as well as built up area in the shape of house, shops and mosque---Collector, Land Acquisition announced two awards, one relating to built up property and other in respect of landed property---Appellants/land-owners being dissatisfied with said awards filed objections which were forwarded to Referee Court for disposal and Referee Court dismissed said objections---Judgments of Referee Court had been assailed in appeal before High Court---Judgments of Referee Court were full of defects---Referee Court had not drawn decree sheets along with judgments; in addition to non-availability of decree sheets, several other defects were appearing in judgments of Referee Court---One of the major defects in judgments of Referee Court was that report of Local Commissioner, appointed by Referee Court, itself was rejected by Court on sole ground that the Local Commissioner himself was not a construction expert and was not accompanied by qualified Engineer and Court believed in the assessment made by Engineer of the department, which was acquiring the land, which was violative of principles of law---Referee Court in the said judgments had held that valuation by Engineering Staff of acquiring Department was not binding on the Court whereas value of superstructure determined by Local Commissioner had the binding force---Representative of Department, who was Sub-Divisional Officer was accompanying the Local Commissioner who had signed report of Local Commissioner in token of correctness of measurement---Referee Court was under the impression that acquired property was uncultivable and its price could be determined by Land Acquisition Collector, whereas evidence on record had proved that basic amenities were available to convert the land from agricultural to one fit for residential purpose, such fact was also ignored by the Referee Court---Referee Court reproduced seven issues, but excepting discussion on two issues, remaining issues were neither discussed in the judgment nor any observation was made relating to them---Judgments of Referee Court suffered from several defects, High Court, without commenting further on the merits of the case, remanded cases to Referee Court for recording judgment, on all issues after listening to the arguments of parties.

2001 CLC 1847; CLC 1985 Pesh. 228; PLD 1995 Pesh. 78; 1990 CLC 718 and PLD 1990 SC 1248 ref.

M. Alam for Appellant.

Obaidullah Anwar with Anwar Hussain for Respondents Nos.3 to 5.

Date of hearing: 14th October, 2005.

CLC 2005 PESHAWAR HIGH COURT 719 #

2005 C L C 719

[Peshawar]

Before Talaat Qayum Qureshi, J

Haji MUHAMMAD TAWAS---Petitioner

versus

FAZAL HUSSAIN and others---Defendants

Civil Revision No.337 of 2002, heard on 18th January, 2005.

(a) North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6, 13 & 31---Suit for pre-emption---Both plaintiff and defendant being owners of respective contiguous properties, Trial Court properly appreciating evidence available on record decided the suit whereby both parties were held entitled to half share each in the property in dispute being owners of contiguous properties---Appellate Court, set aside judgment and decree passed by Trial Court and dismissed suit---Suit was within time and Talb-e-Muwathibat was made on the same day and notice of Talb-e-Ishhad was also sent by plaintiff in accordance with law---Appellate Court had not only failed to appreciate evidence available on record, but also had not applied proper law applicable to the case, whereas judgment of Trial Court was based on cogent reasons and proper appreciation of evidence---Judgment and decree passed by Trial Court thus, needed no interference---Impugned judgment of Appellate Court was set aside by High Court in exercise of its revisional jurisdiction and judgment of Trial Court, was restored.

PLD 1994 SC 356; PLD 1984 SC 188; 2003 YLR 95; 2000 CLC 336; 2004 YLR 115; Gharib Shah and others v. Zarmar Gul PLD 1984 SC 188; Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356 and Gul Rehman and another v. Muhammad Ismail 2003 YLR 95 ref.

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

---- O. XIII, Rr. 1 & 7---Document admitted in evidence---Objection to---Once document was admitted in evidence without any objection from other side, objection against its admission could not be allowed at appellate stage what to speak of raising such objection at revisional stage.

Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Muhammad Akram v. Syed Imrao Ali Shah 1988 CLC 2228; Abdul Hamid v. Muhammad Zamir and 2 others 1990 MLD 1617; National Bank of Pakistan v. Said Mir 1987 CLC 1103 and Sher Bahader and others v. Mir Akbar and others 2004 CLC 1348 ref.

Abdul Latif Afridi for Petitioner.

Muhammad Aman Khan for Respondents.

Date of hearing: 18th January, 2005.

CLC 2005 PESHAWAR HIGH COURT 830 #

2005 C L C 830

[Peshawar]

Before Muhammad Raza Khan, J

MAZHAR JAVED---Petitioner

versus

Haji MUHAMMAD IQBAL---Respondent

Civil Revision No.4 of 2004, decided on 18th February, 2005.

North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6, 13, 24 & 34---Suit for pre-emption---Deposit of one third of amount---Limitation---Trial Court which took cognizance of suit on 4-6-2003 issued summons to defendant for 19-6-2003 along with a notice for temporary injunction and order of status quo---On reverse of order sheet a direction was given to the effect that plaintiff should deposit one third amount before the date fixed---Trial Court, on 19-6-2003 dismissed suit of plaintiff for non-deposit of pre-emption amount before the date mentioned on reverse of order sheet---On filing appeal by plaintiff against order dismissing suit, Appellate Court set aside order of Trial Court and directed plaintiff to deposit one third amount before 19-7-2003 which order was complied with by plaintiff---Validity---Held, it was not a case of intentional default in deposit of one third---Order of deposit of one third amount was not passed by Trial Court in presence of plaintiff and his counsel, but was added later on, on the backside of the page---Case of plaintiff was that he had no knowledge of additional sentence written on the reverse page after he and his counsel had left the Court room---Case was not that of wilful default, but was lack of knowledge and the consequences of act of Trial Court and Appellate Court had rightly interfered to protect rights of plaintiff---Civil Procedure Code 1908, being applicable to pre-emption cases under S.34 of North-West Frontier Province Pre-emption Act, 1987, Appellate Court had all powers vested in the Court of appeal for rectification of an illegality, providing relief to the person suffering from misapprehension of law and particularly for correcting irregularities committed by Courts of original jurisdiction---Even otherwise period of 15 days given by Trial Court to plaintiff for deposit of one third amount was insufficient---Appellate Court, in circumstances had rightly set aside order of Trial Court and plaintiff having complied with order of Appellate Court for depositing one third amount, case was rightly remanded to Trial Court for decision of case on merits.

Rustam Khan Kundi for Petitioner.

Khawaja Nawaz Khan for Respondent.

Date of hearing: 18th February, 2005.

CLC 2005 PESHAWAR HIGH COURT 909 #

2005 C L C 909

[Peshawar]

Before Dost Muhammad Khan and Jehanzeb Rahim, JJ

MUHAMMAD IRSHAD---Petitioner

versus

JUDGE, FAMILY COURT, OGHI, and another---Respondents

Writ Petition No.93 of 2004, decided on 23rd February, 2005.

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

----Ss. 5 & Sched.10(4) Proviso & 14(2)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula'---Suit, having been decreed by Family Court, defendant had challenged the decree in Constitutional petition contending that decree allowed to plaintiff was based on no evidence and undue haste had been shown by Family Court while granting same without making sincere efforts for reconciliation---Validity---Contention of defendant was unfounded because Judge Family Court in his order had categorically mentioned that reconciliation efforts were made, but same failed because plaintiff (wife) was vehement and had openly declared that she was not ready to live with the defendant as his wife at any cost---Proviso to subsection (4) of S.10 of West Pakistan Family Courts Act, 1964 had conferred powers and jurisdiction on Family Court to dissolve marriage on basis of "Khula" if despite all efforts made by it for reconciliation no scope was left for happy reunion of the spouses to live within the limits ordained by Allah---Proviso to S.10(4) of the Act was couched in such a language, containing non obstante clause giving wide ranging power to Family Court to dissolve marriage when facts of a case would permit such course and the provision was enacted with the object that in the past suits for dissolution of marriage were tried like regular suits and it had to take years till its conclusion and by that time the hair of wife turned white-gray and at that age she had no choice to re-marry because of old age---To suppress said mischief Legislature had enacted such beneficiary provision conferring jurisdiction and power on Family Court to dissolve marriage forthwith on basis of "Khula" if despite sincere efforts made for reconciliation the parties, particularly the wife was not ready to become life partner of her husband---No exception could be taken to procedure adopted by Family Court because impugned order was strictly in accordance with proviso to subsection (4) of S.10 of West Pakistan Family Courts Act, 1964---Constitutional petition filed against judgment of Family Court being devoid of legal merits, was dismissed in circumstances.

H. Ghulam Younis Khan Tanoli for Petitioner.

Qazi Shamsud Din for Respondents.

Date of hearing: 23rd February, 2005.

CLC 2005 PESHAWAR HIGH COURT 952 #

2005 C L C 952

[Peshawar]

Before Shahzad Akbar Khan and Muhammad Salim Khan Minakhel, JJ

MUHAMMAD AMIN---Appellant

versus

Haji KHAISTA GUL and others---Respondents

First Appeal from Order 82 of 2003, decided on 21st March, 2005.

Civil Procedure Code (V of 1908)---

----Ss. 20, 104, O.VII, R.10 & O.XLIII, R.1(a)---Specific Relief Act (I of 1877), S.42---Appeal against order---Suit for declaration---Territorial jurisdiction of Court---Return of plaint---Plaintiff in his appeal had called in question order passed by Illaqa Qazi whereby plaint was returned to plaintiff---Trial Court abdicated its jurisdiction for the reason that defendants, who were shown to be residents of the place 'D', which was in the jurisdiction of Trial Court, had finally been deleted---Trial Court, by way of a legal compulsion arising out of deletion of defendants had returned the plaint---One defendant who, on deletion of the said defendants had become defendant in the case, was Range Forest Incharge of place 'D' which was in jurisdiction of Trial Court---Said defendant who being Range Forest Incharge, was residing within the territorial jurisdiction of the Court, Trial Court, therefore, could assume jurisdiction on grant of leave as provided under cl.(b) of S.20, C.P.C.---Grant of leave would be based on convenience of the parties and it was the job of Trial Court to weigh said convenience---Impugned order had indicated that said legal aspect of the case escaped the attention of Trial Court---Even otherwise till the return of plaint, no objection was raised from opposite side which, in circumstances, could be considered as acquiescence---Situation would certainly be changed if any objection came from other defendants---High Court allowing appeal, set aside impugned judgment and case was sent back to Trial Court which would consider question of jurisdiction as grant or refusal of leave was the job of Trial Court.

Mian Iqbal Hussain for Appellant.

Asghar Khan Kundi for Respondent No.1.

Obaidullah Anwar, A.A.-G. for Respondents Nos.3 to 5.

Date of hearing: 21st March, 2005.

CLC 2005 PESHAWAR HIGH COURT 980 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

CLC 2005 PESHAWAR HIGH COURT 988 #

2005 C L C 988

[Peshawar]

Before Talaat Qayum Qureshi, J

MUHAMMAD AFZAL KHAN and others‑‑‑Petitioners

Versus

ALI AKBAR and others‑‑‑Respondents

Civil Revision No.338 of 2004, decided on 14th April, 2005.

Civil Procedure Code (V of 1980)---

-‑‑O. VII, R.10‑‑‑Specific Relief Act (I of 1877), S.8---Suit for possession‑‑‑Return of plaint‑‑‑Question of jurisdiction of the Court‑‑Determination of‑‑‑When a challenge was thrown about Court's jurisdiction, then it was incumbent on the Court to decide such question in the first instance before proceeding further on merits‑‑‑Where the Court would come to conclusion that it had no jurisdiction in the matter, then it must abstain from proceeding any further and embarking on the merits of the case‑‑‑Neither Trial Court nor Appellate Court, in the present case, had appreciated said legal aspect of the case‑‑‑Courts below thus, had committed material irregularity‑‑‑High Court accepting revision petition, set aside impugned judgment/order passed b the Courts below.

1999 SCMR 348; PLD 1973 SC 214; 1995 CLC 1566; Raja Khurshid Ali v. Dr. Abdul Malik 1991 SCMR 1944; Miss Rukhsana Ijaz v. Secretary, Education Punjab and others 1997 SCMR 167; Javed Hussain Shah v. Government of Punjab and others 1998 SCMR 220 and Asadullah Rashid v Haji Muhammad Munir and others 1998 SCMR 2129 ref.

Mian Iqbal Hussain for Petitioners.

Haji Abdur Raziq Khan for Respondents.

Date of hearing: 14th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 995 #

2005 C L C 995

[Peshawar]

Before Muhammad Saleem Khan Minakhel, J

ABDUL QADIR KHAN and another‑‑‑Petitioners

Versus

GHULAM HUSSAIN ‑‑‑Respondent

Civil Revision No. 116 of 1999, decided on 21st April, 2005.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revision petition‑‑‑Suit for declaration and permanent injunction‑‑‑Statements made by plaintiff witnesses, who were relatives of both the plaintiffs, had clearly shown that suit property was originally in the ownership of plaintiffs and their other relatives‑‑‑One plaintiff had never appeared in Court to say that he was one of the plaintiffs, though his name appeared as plaintiff/appellant/and petitioner at all the stages of the case‑‑‑Had the said plaintiff taken part in the proceedings, his share in the suit property could also be ascertained‑‑‑No need in circumstances was there to ascertain whether said plaintiff had or had not sold his share in the suit property to defendant and whether he was or was not entitled to his share‑‑‑Another plaintiff had proved that suit property was sold by some of the relatives of plaintiffs to defendant in the year 1972 when the said another plaintiff was abroad ‑‑‑Defendant could not produce any evidence to the effect that alleged sale consideration for the alleged share in the suit property was ever paid to the said another plaintiff, either by defendant himself or through relatives of the plaintiff or any other person‑‑‑Defendant had never asserted that suit property was either his ancestral property or he was one of the original co‑sharers in the suit property or that he had become the owner of .share of the plaintiff in property in question by any other legal means‑‑‑Revision petition was partially accepted to the extent that said another plaintiff was the owner in possession of suit property to the extent of 1/30th share and was entitled to the declaration and permanent injunction as prayed for by him to that extent‑‑‑Judgments and decrees of Courts below to the extent of remaining 29 shares out of 30 shares were maintained in favour of defendant subject to the right, if any, of the necessary parties, who not joined as‑ plaintiffs/defendants.

Muhammad Shoib Khan for Petitioner.

Abdul Sumad Khan for Respondent.

Dated of hearing: 15th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1004 #

2005 C L C 1004

[Peshawar]

Before Muhammad Saleem Khan Minakhel, J

MINISTRY OF DEFENCE‑‑‑Petitioner

Versus

JAVED & CO. ‑‑‑Respondent

Civil Revision No.320 of 1999, decided on 15th April, 2005.

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

‑‑‑‑O. VII, R.2‑‑‑Limitation Act (IX of 1908), Ss.3, 5, Arts.96 & 149‑‑Constitution of Pakistan (1973), Arts.4, & 25‑‑‑Suit for recovery of amount‑‑‑Delay, condonation of‑‑‑Limitation Act, 1908‑‑‑Applicability‑‑Law of limitation as provided in Limitation Act, 1908, was to be strictly observed because delay in initiating legal proceedings provided valuable rights to the opposite party which, once accrued, could not be snatched away by opposite party, except through due process of law on establishing rights and liabilities in accordance with law‑‑‑Law of limitation was equally applicable to the Government, Federal or Provincial and to all the litigants, who were entitled to be dealt with in accordance with provisions of Arts.4 & 25 of Constitution‑‑‑Period of limitation was not to be condoned except on convincing explanation, specially unavoidable circumstances, legal disabilities, importance of litigation in the general public interest, innocent lapse or fault, in spite of advertence and due diligence and the like‑‑‑Mere fact that valuable rights of the plaintiff were involved in the matter, was not good ground by itself for condonation of delay.

Chief Land Commissioner, Punjab, Lahore v. Makhdoom Syed Nazar Hussain Shah and 13 others 1975 SCMR 352; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; Syed Ahmad Hussain v. The Chief Justice and Judges of the West Pakistan High Court PLD 1961 SC 162; Superintendent of Central Excise, Lyallpur v. Ch. Faqir Hussain PLD 1958 SC (Pak.) 167; 1975 SCMR 91; 1975 SCMR 277(1); 1981 SCMR 37; 1979 SCMR 45; 1979 SCMR 191; Custodian of Enemy Property v. Hoshang M. Dastur and others 1995 SCMR. 191; 1975 SCMR 38; PLD 1970 SC 287 and PLD 1998 Pesh. 21 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Impugned order of Appellate Court was based on correct understanding of law and proper appreciation of record on the file‑‑‑Said order neither suffered from any illegality or material irregularity, nor was perverse or the result of misapplication/non‑application of power or jurisdiction nor on misreading, non‑reading or over‑reading of any evidence‑‑‑Said order, in circumstances did not call for any interference of High Court in revision.

Hamid Farooq Durrani, D.A.‑G. for Petitioner.

Waqar Hanif Bhatti for Respondent.

Date of hearing: 8th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1110 #

2005 C L C 1110

[Peshawar]

Before Shahzad Akbar Khan and Salim Khan, JJ

KHURSHID IQBAL‑‑‑Petitioner

Versus

DIRECTOR, LAND RECORDS N.‑W.F.P., PESHAWAR and 5 others‑‑‑Respondents

Writ Petition No. 1308 of 2004, heard on 13th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Admission in Patwar School and appearing in examination‑‑‑Petitioner, who was enlisted as Patwari candidate was admitted in Patwar School‑‑‑Examination, after completion of training, was announced to commence, but no roll number was issued to the petitioner‑‑‑Petitioner filed civil suit, but only a notice was issued in that suit‑‑‑On filing revision, in the Court of Additional District Judge, petitioner was allowed to appear in examination provisionally‑‑‑Petitioner Appeared in four papers of theory and for two practicals, but Additional District Judge dismissed revision filed by petitioner during commencement of examination and petitioner was unable to appear in examination of remaining papers and practicals‑‑‑Validity‑‑‑Petitioner was fully eligible to appear in Patwari examination as regarded his educational qualifications and age limit‑‑‑Nothing was on record to show that age of petitioner was either less or more than prescribed age‑‑Petitioner being an enlisted candidate, had a right to attend Patwar School and present himself for Patwari examination on payment of examination fee, but his said right had been refused to him by Authorities‑‑‑High Court accepting Constitutional petition set aside impugned orders, with direction to authorities to allow petitioner to appear in remaining papers as well as practicals in next coming examination and also directed them to declare result of petitioner as a whole after marking the papers already given by petitioner and giving him marks for the practicals already conducted by him.

Abdul Mabood Khattak for Petitioner.

Obaidullah Anwar, Addl. A.‑G. for Respondents.

Date of hearing; 13th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1179 #

2005 C L C 1179

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

GOVERNMENT OF N.-W.F.P. through Secretary C&W and others---Petitioners

Versus

REHMAN CONSTRUCTION COMPANY---Respondent

Civil Revision No.872 of 2004, decided on 3rd May, 2005.

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

----S. 42---Civil Procedure Code (V of 1908), O.IX, R.13--Suit for declaration---Ex parte decree, setting aside of---Defendants who remained absent, were proceeded ex parte---Application for setting aside ex parte decree was made by defendant after about five months from passing of ex parte decree and no application for condonation of said delay was made by defendant---Summons placed on record were duly served on defendant through an Inspector---No evidence was on record to prove that whole proceedings of service of summons on defendant had been parried out mala fide---Defendant was entitled to demonstrate by leading evidence that he was not served with summons in accordance with law, but no such. evidence was forthcoming---Defendant having full knowledge of suit, purposely did not appear in Court to contest suit---Second Proviso to O.IX, R.13, C.P.C. required a Court to dismiss application for setting aside ex parte decree despite any irregularity in service if person making application had knowledge of proceedings---Submission of defendant that as Government interest was involved in the case, lenient view should be taken---Submission of defendant (Government Department) could not be considered because scale of justice must weigh equally between citizen; and citizen or citizen and State and moreso in an Islamic State like Pakistan---Courts below, in circumstances were quite justified to decline to set aside ex parte decree---Impugned decision being well-based, was not amenable to revisional jurisdiction of High Court under S.115, C.P.C.

PLD 2003 SC 724; 1995 CLC 516 and Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum 1985 CLC 231 ref.

(b) Mala fide---

---- Mala fide was one of most difficult thing to prove and onus was entirely upon person alleging mala fide, to establish the same.

Muhammad Saeed Khan, A.A. -G. for Petitioner.

Shakeel Ahmed for Respondent.

Date of hearing: 25th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1233 #

2005 C L C 1233

[Peshawar]

Before Salim Khan, J

KHAN SIDDIQUE and others---Petitioners

Versus

ABDUL AKBAR KHAN and others---Respondents

Civil Revision No.40 of 2005, decided on 11th April, 2005.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for declaration---Plaintiffs had claimed that they had become owners of half portion of land in dispute, while other half was owned by defendant and that defendant was not entitled to sell total land to vendees/other defendants---Plaintiffs had stated that sale of suit-land by defendant to the extent of half share of plaintiff was wrong, void, illegal and result of fraud and was liable to cancellation---Plaintiff could not produce any reliable evidence to` show as to why names of their forefathers were not entered as owners in Revenue Record; why they were excluded specifically from ownership of suit-land and why plaintiffs and their ancestors remained silent for such a long period---Fair chance of examining and cross-examining witnesses and for production of Revenue Record was given to plaintiffs, which they did not avail at the proper time---Party could not be allowed to fill up the gaps by production of evidence again and again---Plaintiff could not show that a fair chance was not provided to them in that respect---Negligence of plaintiffs or their 3 counsel to produce relevant record at proper time should not prejudice defendants at any stage---Original Court and Appellate Court while , dismissing suit filed by plaintiffs, had properly appreciated evidence available on record and had properly disallowed application of plaintiffs " for other rounds, which if allowed, would have amounted to filling up the gaps in their evidence and unnecessary delay in disposal of case at the cost of injustice to defendants---Law would help vigilant and not the indolent---No defect was found in judgment of Appellate Court which had correctly confirmed judgment of original Court---Concurrent findings on facts of two Courts, would not warrant interference--Revision being without any merit, was dismissed, in circumstances.

1999 SCMR 1326 ref.

S.M. Attiq Shah for Petitioner.

Muhammad Iqbal Khalil for Respondents Nos.1 to 5.

Date of hearing: 11th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1240 #

2005 C L C 1240

[Peshawar]

Before Salim Khan, J

MUHAMMAD KHAN and others---Petitioners

Versus

MUHAMMAD ISHAQ and others---Respondents

Civil Revision No.159 of 2005, decided on 2nd May, 2005.

Muslim Family Laws Ordinance (VIII of 1961)----

----S. 4---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiffs had contended that S.4 of Muslim Family Laws Ordinance, 1961 by which sons and daughters of pre-deceased son of a deceased, were declared entitled to inheritance of deceased, having been declared against the injunctions of Islam vide judgment of Federal Shariat Court reported as PLD 2000 FSC 1, their case be remanded to original Court for recording evidence of parties after framing issues and for decision on merits---Said decision of Federal Shariat Court in the light of Proviso to cl.(2) of Art. 2,03-D of preferred Constitution was not to take effect before disposal of an appeal preferred to Supreme Court against the decision---Provisions of S.4 of Muslim Family Laws Ordinance, 1961, would remain operative until appeal was disposed of by the Supreme Court.

Allah Rakha v. Federation of Pakistan and others PLD 2000 FSC 1; 1990 SCMR 1677 and PLD 2003 SC 475 ref.

M. Amin Khattak Lachi for Petitioner.

CLC 2005 PESHAWAR HIGH COURT 1327 #

2005 C L C 1327

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NAWAB ALI---Petitioner

Versus

IMTIAZ KHAN---Respondent

Civil Revision No. 93 of 2005, decided on 6th May, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & S.115---Suit for recovery of amount---Findings on questions of fact or law recorded by the Court. of competent jurisdiction could not be interfered with in revisional jurisdiction unless those findings suffered from jurisdictional defect, illegality or material irregularities---Impugned judgments of two Courts below in any respect were not arbitrary or fanciful, but fulfilled all the requirements of doing justice on the basis of canons known in that respect---No misreading or non-reading of evidence on part of forums below had been pointed out in the case---Claim of plaintiff had not been satisfactorily proved and both Courts below had appreciated material on record in its true perspective--Concurrent findings of fact recorded by Courts below were unexceptionable and hardly called for interference of High Court in its revisional jurisdiction---Revision petition being devoid of force, was dismissed, in circumstances.

Muhammad Sain v. Muhammad Din 1996 SCMR 1918 and Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 ref.

Muhammad Salim Toru for Petitioner

Mian Fazle Amin for Respondent.

Date of hearing: 29th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1334 #

2005 C L C 1334

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Mst. BUSHRA and others---Petitioners

Versus

Mst. REHMATAL BIBI and others---Respondents

Civil Revision No.585 of 2001, decided on 2nd May, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and possession---Both Courts below concurrently dismissed suit dealing with the matter in a proper manner with application of judicious mind and had given a correct finding---Said Courts had rightly considered matter and had correctly exercised their jurisdiction---No misreading or non-reading of evidence had been asserted or pointed out--Concurrent findings of Courts below were not amenable to revisional jurisdiction of High Court, in circumstances.

Mian Shaukat Hussain for Petitioners.

Astaghfriullah for Respondents.

Date of hearing: 25th April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1341 #

2005 C L C 1341

[Peshawar]

Before Salim Khan, J

YASIN and another---Petitioners

Versus

QADEEM SHAH and another---Respondents

Civil Revision No. 378 of 2005, decided on 11th April, 2005.

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

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908); S.115---Suit for possession, declaration and permanent injunction---Claim of plaintiffs was that house in dispute was directly sold by its owner to their-father and that defendants who were members of "Hajjam/Barber" community were residing in said house as "Hamsaya" or tenants and were paying "Torah" and `Khakshora' (names of services) to the plaintiff, but later on refused to pay same and had claimed ownership of the house---Suit was contested by defendant claiming that suit house was given to him by its owner as gift due to his certain services to owner of said house and that the other defendant was living with him as his tenant---Suit was concurrently decreed by Trial Court and Appellate Court below--Plaintiffs by producing oral as well as documentary evidence on record had sufficiently proved their ownership over suit house, whereas evidence produced by defendants in proof of their claim was not supported by any document or other convincing material---Both Trial Court and Appellate Court decreed suit taking into consideration all evidence produced by parties in proof of their respective claims--Defendants could not show any misreading, non-reading or over reading of evidence by two Courts and defendants could also not show any perversity; illegality or irregularity in the judgments and decrees in question---Concurrent findings of competent Courts below, could not be interfered with by High Court in exercise of its revisional jurisdiction.

1994 SCMR 22; 2002 SCMR 222; 2003 SCMR 1476; 2001 CLC 1819; 2002 MLD 861; 2003 CLC 1428; 2005 CLC 154 and 2005 SCMR 135 ref.

(b) Words and phrases---

---- Local terms and words like "Khidmat", "Khakshora", Dheran',Torah', Kasabgar',Zamindar', Kulal',Baghwan', etc. were defined and explained.

Nadir Ali Khan for Petitioners.

CLC 2005 PESHAWAR HIGH COURT 1383 #

2005 C L C 1383

[Peshawar]

Before Shahzad Akbar Khan, J

Mst. ZINAT-UN-NISA and 2 others---Petitioners

Versus

ABDUL WAHAB and another---Respondents

Civil Revision No.118 of 2001, heard on 17th January, 2005.

(a) North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 3---Succession to estate of deceased Muslim---Inheritance mutation excluding daughters due to prevalence of Riwaj at the time of death of deceased---Validity---North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 would be given retrospective effect---Deceased would be deemed to have died under domain of Muslim Law, even if death had taken place before promulgation of Act, 1935---Daughters of deceased were co-owners of property---Possession of a co-sharer would be considered as possession of other co-sharer in absence of any ouster---Attestation of mutation excluding a co-sharer or a female co-sharer could not be made basis for holding that limitation would run against her from date of its attestation---Question of limitation or adverse possession would not operate as a barring factor in the way of daughters.

Muzaffer Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Namdara and 3 others v. Sahibzada and 2 others 1998 SCMR 996; Miskin and another v. Mst. Hassan and others PLD 1968 Pesh. 94; Suleman Shah and others v. Nasrullah and others 1999 MLD 249; Ghulam Ali and others v. Ghulam Sarwar Naqvi PLD 1990 SC 1 and PLD 1987 Pesh. 100 fol.

(b) Co-sharer---

----Inheritance---Adverse possession---Legal heirs inheriting property of deceased would become co-owners thereof---Possession of a co-sharer would be considered as possession of other co-sharer in absence of any ouster.

Ghulam Ali and others v. Ghulam Sarwar Naqvi PLD 1990 SC 1 and PLD 1987 Pesh. 100 rel.

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.31---Suit for declaration---Succession to estate of deceased---Denial of inheritance to plaintiffs-sisters---Plea of brothers was that suit-land was not inherited property of deceased, but was their self-acquired property given to them by ex-Nawab in lieu of services rendered to him---Validity---Brothers in a previous suit filed against them by ex-Nawab had filed written statement where they had claimed to be in possession of suit-land as owners since their forefathers and had denied the factum of service with Nawab---In view of such admission made by brothers in previous suit, suit filed by sisters was decreed.

H. Ghulam Basit and Ghulam Younis Khan for Petitioners.

Abdul Khaliq Khan for Respondents.

Date of hearing: 17th January, 2005.

CLC 2005 PESHAWAR HIGH COURT 1392 #

2005 C L C 1392

[Peshawar]

Before Tariq Parvez Khan and Muhammad Raza Khan, JJ

AFSAR KHAN---Petitioner

Versus

TRIBUNAL F.C.R./HOME AND TRIBAL AFFAIRS DEPARTMENT, N.-W.F.P., PESHAWAR through Secretary and 6 others---Respondents

Writ Petition No.126 of 2002, decided on 19th May, 2005.

(a) Frontier Crimes Regulation (III of 1901)---

----S. 55-A---Constitution of Pakistan (1973), Arts.1(2)(c), 199 & 260(1)---Pakistan Citizenship Act (II of 1951), Ss.3 & 4---Constitutional petition---Federally Administered Tribal Areas---Domicile certificate granted' to petitioner was cancelled on the basis of report of Council of Elders---Return of revision petition by one member of Tribunal F.C.R. for want of jurisdiction, while its member did not find time to contribute his view on such issue---Validity---Service record and address of late father of petitioner, domicile of his mother recorded in pension papers, domicile certificate issued to his cousins and other family member proved that petitioner and his family resided in such areas---Pedigree-table of petitioner showed that his family owned landed property in such area--Person belonging to a sub-caste could not be denied right of citizenship or domicile, if he fulfilled criteria laid down by law, rules and guidelines given by the Supreme Court---Unambiguous certificate issued by Tribal elders of relevant caste of tribe confirmed entitlement of petitioner to benefits and liabilities of tribe, being a resident of such area---Petitioner and his father fell within category of citizens of Pakistan and they would have right of domicile somewhere---If petitioner was denied facility of certification of permanent resident in such area, then he would be deprived of getting domicile certificate from any other authority---Denial of such right to petitioner being a permanently domiciled in such area, would amount to denial of a legal and Constitutional right---Such points were to be scrutinized and adjudicated upon by a legally constituted Tribunal and revision petition was accordingly moved before the same---Functions assigned to Tribunal F.C.R. were purely of judicial nature---Impugned order indicating lack of jurisdiction did not mention any reason for return of revision---High Court accepted Constitutional petition, set aside impugned order and remanded case to Tribunal F.C.R. for disposal of revision petition.

PLD 1981 Pesh. 57; Muhammad Ashfaq Khan v. Chairman, Nomination Board and another PLD 1979 AJK 43; PLD 1978 Quetta 17 and 1975 SCMR 265 rel.

(b) Words and phrases---

----"Domicile certificate"---Meaning---Such certificate means official confirmation of the place of permanent residence of a citizen which has apparently nothing to do with castes or tribes.

----Ss. 8 & 11---Domicile certificate, grant or cancellation of---Provisions of Ss.8 & 11 of Frontier Crimes Regulation, 1901---Applicability---Such provision would not be attracted to domicile certificate, thus, such matter could not be referred to Council of Elders---Grant or cancellation of a domicile certificate was neither a civil nor a criminal dispute, which being purely an administrative matter could be decided on basis of administrative inquiry after providing opportunity of hearing to parties and production of necessary documentary and oral evidence.

(d) Natural justice, principles of---

----One of the well-recognized principles of natural justice is that "order" has to be a speaking order.

(e) Frontier Crimes Regulation (III of 1901)---

----S. 55-A---Tribunal F.C.R.---Functions assigned to such Tribunal were purely of judicial nature.

Qazi Jawad Ihsanullah Qureshi for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G. for Respondents.

Sanaullah Khan Gandapur for Respondent No.7.

Date of hearing: 4th March, 2005.

CLC 2005 PESHAWAR HIGH COURT 1408 #

2005 C L C 1408

[Peshawar]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

FOREST DEVELOPMENT CORPORATION, N.-W.F.P. through Managing Director---Appellant

Versus

INHABITANTS OF LOCAL ROYALTY-HOLDERS---Respondents

Regular First Appeal No.92 of 2000, decided on 21st April, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Suit for recovery of amount of royalty and damages---Regular first appeal had been directed by defendant-Corporation against judgment and decree of Trial Court whereby suit of plaintiffs for recovery of amount of royalty and damages was partially decreed---Impugned judgment of Trial Court suffered from the vice of misreading and non-reading of evidence which had resulted in manifest injustice and it was not discernible from material on record that timber in question was burnt due to negligence of officials of defendant-Corporation and they were responsible for the loss sustained by plaintiffs/royalty-holders-"Qanun-e-Shahadat" provided that a person who asserted/alleged a particular fact and wanted the Court to believe that such fact existed, would be required to prove existence of said fact---Evidence led by plaintiffs/royalty-holders had clearly suggested that officials of defendant-Corporation were not behind the occurrence and that timber was put to fire by violent mob duly equipped with arms and ammunition---Relevant clauses of agreement deed showed that it was sole responsibility of the contractor to ensure safe transportation of timber to its destination and defendant-Corporation could not be held responsible for any default or lapse on the part of the contractor---Evidence of defendant-Corporation had not been given due weight which comparatively was more reliable---Officials of defendant-Corporation, had no hand in the occurrence as a result of which timber was burnt to ashes---Impugned judgment and decree passed by Trial Court, were set aside and suit filed by plaintiff/royalty-holders against defendant-Corporation was dismissed.

Syed Mir Muhammad for Appellant.

Mian Fazal Hussain for Respondents.

Date of hearing: 21st April, 2005.

CLC 2005 PESHAWAR HIGH COURT 1415 #

2005 C L C 1415

[Peshawar]

Before Dost Muhammad Khan, J

FAZAL-UR-REHMAN---Petitioner

Versus

Mst. ZAVEDI JAN alias ZUREDA JAN---respondent

Civil Revisions Nos.86, 87 and 88 of 2002, heard on 31st March. 2005.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talbs, performance of---Proof---Minor discrepancies in statements of witnesses of Talbs recorded after more than four years of sale---Effect---Such discrepancies could not be made ground for dismissing suit on ground of Talbs.

Yar Muhammad Khan v. Bashir Ahmed PLD 2003 Pesh. 179 ref.

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

----Arts. 70 & 71---Oral evidence---Minor discrepancies in statements of witnesses recorded after lapse of considerable period to be ignored by Courts--Reasons stated.

It is judicially noticed that witnesses appearing after lapse of consideration period, while appearing in Court, are bound to contradict each other on minor points, because human faculty of memory is subjected to faultering besides the testimony of witnesses inter se is always found to be of varying nature, because after a, lapse of such a long time, they are not expected to give hundred per cent. accurate statement on each and every minor point having taken place in their presence. Courts have always leaned in favour of ignoring such minor discrepancies.

Masood-ur-Rehman Awan assisted by Sajida Masood for Petitioner.

Sardar Hussain for Respondent.

Date of hearing: 21st March, 2005.

CLC 2005 PESHAWAR HIGH COURT 1422 #

2005 C L C 1422

[Peshawar]

Before Muhammad Qaim Jan Khan and Muhammad Raza Khan, JJ

ALLAH BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-I, D.I. KHAN and 2 others---Respondents

Writ Petition No.138 of 2002, decided on 16th May, 2005.

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

----S. 128(2)(f) & O.VIII, Rr.1, 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of balance price of motorcycle---Defendant's plea was that plaintiff had received balance money before due date---Trial Court in compliance with provisions O.XV, C.P.C., framed two issues and adjourned case for plaintiff's evidence---Defendant on adjourned date filed application for amendment of written statement to assert therein that plaintiff had agreed to transfer his land in lieu of price of tractor, but plaintiff was found to be its occupancy tenant and not its owner---Trial Court dismissed such application, which judgment remained intact in revision filed by defendant---Validity---Neither such land of plaintiff had been transferred nor tractor had been delivered, thus, alleged adjustment of balance amount of motorcycle in price of tractor was merely fictitious, frivolous and meaningless---Prayer for amendment was self-negating, unreasonable and frivolous---Defendant had taken 11 months for filing written statement and thereafter by moving such frivolous application had further prolonged matter for five years---Suit had been delayed for almost six years---Such conduct of defendant amounted to gross misuse of process of law---Trial Court should have imposed costs for causing unnecessary delay through such frivolous application---Courts below had exercised jurisdiction legally---High Court dismissed Constitutional petition with costs throughout while directing Trial Court to decide suit within one month after allowing parties to lead evidence on issues already framed.

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

----O. VIII, R.1---Written statement-Period of thirty days prescribed for filing of written statement---Effect---Written statement must not be accepted beyond thirty days of first hearing---Plaint would be taken as uncontroversial, if written statement was not submitted within thirty days---Where law prescribed a time limit in terms of days, then same could be relaxed for some days only---Term "ordinarily" used in proviso to O.VIII, R.1, C.P.C., though diluted mandatory effect of the term "shall not" used therein, but same would not mean to have entirely relaxed prescription of period of "thirty days"---Such period might exceed by a couple of days in exceptional circumstances, but delay of several weeks or months would be violative of proviso to O.VIII, R.1, C.P.C.---Not possible under law to adjourn matter for several times to afford opportunity and then "last opportunity" for filing written statement---Principles.

PLD 1996 Lah. 523 rel.

----Delay by Court in disposal of civil cases---Steps for curtailing such delay highlighted.

Court delays have become the major ground of criticism against our system of administration of justice. This can be rectified by a collective effort to plug every leaking point, so that the delay can be reduced as far as possible. The delay in submission of written statement, the filing of miscellaneous petition, the frequent adjournments for the production of evidence, the lack of application of mind for choosing the proper mode of summons, the failure to avail the facility of Rule 10-A of Order V, C.P.C. for the issue of several processes of service simultaneously, the unnecessary insistence of proving certified documents by oral evidence of official witnesses etc., are some of the areas mainly responsible for causing delay in the disposal of civil suits. The due attention to these issues can certainly curtail the delay.?

(d) Administration of justice---

----Where law required a thing to be done in a particular manner, then same would be lawfully done only, if was done in such manner and not otherwise.?

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

----S. 128(2)(f)---Money suits---Summary trial of such cases---Scope---Spirit of summary procedure was to finalize a matter on first day of hearing or at least within a couple of days or weeks thereafter---Delay of 11 months in filing of written statement neither justified in summary trial cases nor permissible in normal cases---Object of summary trial of such cases as required by S.128(2)(f), C.P.C., could be achieved by issuing summons in Form No.1, Appendix "B", C.P.C., and by hearing parties at first hearing of suit in compliance with O.X read with O.XV, C.P.C.---Non-compliance of legal provision at initial stage would delay disposal of such cases, prolong agony of plaintiff and result in depreciation of value of suit money---Money suits should be given priority, otherwise purpose of approaching Court would be defeated---Principles illustrated.?

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

----S. 115---Constitution of Pakistan (1973), Art.199---Constitutional petition against revisional order of Court with prayer as made in original proceedings---Maintainability---Article 199 of the Constitution provided for extraordinary remedy against a State functionary, who had trespassed his jurisdiction, or failed to exercise jurisdiction so vested in him---Where law did not provide a remedy after decision of revision petition, then creation of an additional remedy through Constitutional petition would be patently illegal as thereby intention of Legislature of drawing a line for termination of litigation would be negated---Unless petitioner pointed out some serious defects in exercise of jurisdiction by judicial fora, Constitutional petition would not be maintainable as a matter of routine---Principles.?

Saleemullah Khan Ranazai for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 16th May, 2005.

CLC 2005 PESHAWAR HIGH COURT 1441 #

2005 C L C 1441

[Peshawar]

Before Salim Khan, J

MUQADAR SHAH and others---Petitioners

Versus

MUDAM GUL---Respondent

Civil Revision No.466 of 2000, decided on 14th June, 2005.

(a) Oaths Act (X of 1873)---

----Ss. 5, 7, 8, 9 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Oath under Art. 163 of Qanun-e-Shahadat, 1984 was different in nature from Oath under the Provisions of Oaths Act, 1873; in the first case, plaintiff taking oath in favour of his claim, would submit an application that defendant could take oath in support of his plea and the case would be decided on completion of proceedings, while in the case of oath under Oaths Act, 1873, a party could offer oath to other party or its witness and could bind himself by taking of such oath---Decision on the basis of oath was an established mode of decision of cases Generally, a party could not resile from the offer of oath, when the oath, as per offer, had been administered---Court in such a case, had no alternative, but to decide case in accordance with the effect of oath---Such oath, however, was to be offered with due diligence and was to be accepted after due consideration---Offer would be made to the opposite party after considering its effect and the opposite party could either accept or reject the offer after considering its consequences---Parties in such circumstances, were well-composed and not overcome by spontaneous emotions---Party offering Oath must be mentally calm and not under the influence of emotions and must be in a position to clearly know that he would lose his right, if any, if the oath was taken by opposite party People of villages, when not sufficiently educated and properly experienced, offered oath during heated discussions, only to oppose the stance of opposite party and to show that opposite party was telling a lie.

1999 SCMR 2702; 1999 CLC 1685; 1998 SCMR 816; PLD 2002 SC 310; PLD 1984 Pesh. 121; 1999 MLD 389; PLD 1990 SC 841; PLD 2002 SC 655; PLD 1993 Pesh. 72; 1991 SCMR 1371; 1997 SCMR 1085; 1999 SCMR 2115; PLD 1988 Pesh. 65 and PLD 1993 Pesh. 71 ref.

(b) Administration of justice---

----Court of law was to decide a' case keeping in view the rights and liabilities of the parties in the light of the record on file and not merely to dispose of a case in a hurry---Courts being the ultimate protectors of the rights of the litigants, had the responsibility to ensure that valuable rights of such litigants were not destroyed by their unintentional faults and innocent mistakes.

---Ss. 5, 7, 8, 9 & 10-Qanun-e-Shahadat (10 of 1984), Art.163---Oath---Party could offer oath to the opposite party, after due consideration; the Court could consider whether such an offer should or should not be made in circumstances prevailing at the time of such offer; that an application for making such oath was made to the Court and the party to which the offer was made, was provided chance to consider the offer with diligence, and if such party agreed to take oath, the statement of the parties were recorded---Court could then, either proceed with the oath taking by itself, or could depute a commission for taking such oath---Court should avoid the situation where one party in the heat of discussion, or in emotional situation offered oath to the opposite party without due consideration of its effects and without submitting a proper application and the opposite party in the same circumstances immediately accepted the offer without having a chance of patiently considering the consequences of oath.

Ziaur Rehman for Petitioners.

Abdul Latif Afridi for Respondent.

Date of hearing: 11th May, 2005.

CLC 2005 PESHAWAR HIGH COURT 1453 #

2005 C L C 1453

[Peshawar]

Before Talaat Qayum Qureshi and Salim Khan, JJ

Haji ABDUL WAHID and others---Appellants

Versus

WAPDA and others---Respondents

Regular First Appeals Nos.85, 108 109 of 2002 89, 72, 82, 94 of 2003; 21, 50, 51, 34 of 2004 Cross-Objections Nos.2 of 2003, and 1 of 2005, decided on 29th March, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of amount of compensation---Land Acquisition Collector classified acquired lands into four categories and fixed amount of compensation accordingly---Landowners being not satisfied with amount so fixed filed objection petition and matter was referred to Judge Referee Court for determination of amount---Judge Referee Court, in many cases enhanced amount of compensation---Landowners, however being still dissatisfied with amount of compensation filed appeals and Acquiring Department had also filed appeal against enhancement of amount of compensation---Judgments and decrees passed by Judge Referee Court, had shown that neither Land Acquisition Collector nor Judge Referee Court had fixed proper and adequate compensation---Some of acquired lands were fit for commercial purposes being situated near Abadi and same were also fit for residential purposes---Land taken from one Chunk was near to road---Report of Local Commissioner recorded by him after spot inspection, had gone unrebutted from both sides---Trial Court should have justifiably recorded findings on the strength of that evidence as same was cogent and sufficient---Both Land Acquisition Collector and Judge Referee Court had not properly appreciated evidence on record while determining amount of compensation---Appellate Court, determined amount of compensation taking into considering all facts on record and fixed amount of compensation and compulsory acquisition charges accordingly.

1987 SCMR 1647; 2000 SCMR 1322; PLD 1997 Pesh. 90; 1996 CLC 27; 1997 SCMR 1692; 1985 SCMR 395; PLD 1988 SC 32; 1996 SCMR 1361; PLD 1997 SC 1470; Province of Punjab through Collector Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; Nisar Ahmad Khan and others v. Land Acquisition Collector and others PLD 2002 SC 25; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Sadiq and others v. The Deputy Commissioner, East Karachi and another 1988 SCMR 87; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 3; Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; Fazlur Rehman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Banaras Khan and others v. Chairman, WAPDA and others PLD 1982 SC 100; Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Chimanal Hargovinddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652; Collector Land Acquisition, Peshawar and others v. Rokhan and others PLD 1995 Pesh. 78; Muhammad Saeed and 78 others v. Collector Acquisition Land Mansehra and 3 others PLD 1996 Pesh. 22; Akbar Ali and others v. Province of Punjab and others 1990 CLC 718; Government of N.-W.F.P. through D.C. Bannu and others v. Muhammad Khan alias Ann 1990 CLC 1898; Muhammad Hussain v. Fauji Foundation Hospital 1989 CLC 1 and Collector Land Acquisition v. Muhammad Saeed 2001 SCMR 1032 ref.

Abdul Sattar khan for Appellants.

Abdul Qadir Khattak for Respondents.

Date of hearing: 9th March, 2005.

CLC 2005 PESHAWAR HIGH COURT 1599 #

2005 C L C 1599

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AKBAR SAID KHAN and others---Petitioners

Versus

Mst. SHAHEEN and others-Respondents

Civil Revision No.469 of 2001, decided on 24th June, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for possession, declaration and permanent injunction---Challenging judgment and decree on plea of fraud and misrepresentation---Judgment and decree passed in favour of petitioners were challenged by respondents on ground of fraud, misrepresentation and collusion, in their application filed under S.12(2), C.P.C.---Said application was dismissed by Trial Court, but Appellate Court set aside order of Trial Court and remanded the matter to Trial Court to decide afresh after framing issues and providing opportunity to parties to adduce evidence---Validity---Respondents were not impleaded as a party in earlier round of litigation, whereby suit was decreed in favour of petitioners---Nothing was on record to indicate that application under S.12(2), C.P.C. was filed collusively with no other purpose, but to add to the agonies of petitioners---Mere fact that some of relatives of respondents were party to previous litigation, by itself, constituted no bar in the way of respondents for filing application under S.12(2), C.P.C.---No procedure had been prescribed for the determination of an application under S.12(2), C.P.C. nor was any separate remedy indicated against such determination---Where application under S.12(2), C.P.C. was presented, evidence in support and rebuttal of the contents of application had to be led, unless, application was not bona fide---Appellate Court below, was quite justified to remit matter back to Trial Court for fresh decision after formulating issues and providing a fair chance to parties to lead evidence as allegations of fraud could only be established by elaborate inquiry---No substance having been found in revision, same was dismissed.

Mst. Nasira Khatoon and another Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National. Development Finance Corporation, Karachi 2002 SCMR 1761 ref.

Iftikhar Elahi and Jan Muhammad Khan for Petitioners.

Qazi Zakiuddin for Respondents.

Date of hearing: 24th June, 2005.

CLC 2005 PESHAWAR HIGH COURT 1619 #

2005 C L C 1619

[Peshawar]

Before Shahzad Akbar Khan, J

MUHAMMAD TARIQ KHAN---Petitioner

Versus

Mst. GUL SAWARA---Respondent

Civil Revision No.329 of 1999, decided on 26th May, 2005.

(a) Easements Act (V of 1882)-

----S. 4---Right of easement of necessity---For sustenance of claim of right of easement of necessity, it must be shown that without enjoyment of such a right, the property for whose beneficial user, the right existed, could not at all be used---Not enough to show that it was merely necessary for use of the property or without it the enjoyment of said property would be rendered inconvenient.

Abdul Hamid Shah and another v. Muhammad Yar and 13 others PLD 1991 SC 815; Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estates Ltd. and another 1991 SCMR 119; Mariyayi Ammal v. Arundachala Pandaram AIR 1956 Mad. 584; Nawab Zekia Begum v. Lucknow Improvement Trust AIR 1937 Oudh 263; Daw Tint v. Maung Kywr AIR 1935 Rangoon 56; Krishnamarzu v. Marrazu 15 MLJ 255; Sheo Nath and others .v. Mughla AIR 1938 Lah. 800; Narayana Gajapatraju v. Janaki Rathayyammaji AIR 1930 Mad. 609; Qazi Muhammad Ishaq v. Abdul Waheed PLD 1975 Pesh. 82; Abdul Hafiz and others v. Mafizuddin and others (1955) 7 DLR 577; Muhammad Ismail and others v. Malik Muhammad Shafi and others 1992 CLC 2060 ref.

(b) Easements Act (V of 1882)---

---- S. 4---Specific Relief Act (I of 1877), S.42--- Civil Procedure Code (V of 1908), S. 115---Suit for declaration---Right of easement---Two Courts below had concurrently decreed suit filed by plaintiff--Concurrent findings of two Courts below were not based on true appreciation of evidence and correct perception of law on the subject---High Court allowing revision set aside judgments and decrees of two Courts below and dismissed suit of plaintiff.

Maqsoodullah Khan for Petitioner.

Ziaur Rehman Khan for Respondent.

Date of hearing: 26th May, 2005.

CLC 2005 PESHAWAR HIGH COURT 1649 #

2005 C L C 1649

[Peshawar]

Before Nasir-ul-Mulk, C.J. and Ijaz-ul-Hassan Khan, J

GOVERNMENT OF N.-W.F.P. through Advocate-General, N.-W. F. P.---Appellant

Versus

MUHAMMAD IQBAL and others---Respondents

R.F.As. Nos.62 and 64 of 1999, decided on 22nd March, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Reference to referee Court---Landowners feeling dissatisfied with rate of compensation filed reference petition under S.18 of Land Acquisition Act, 1894 praying for enhancement of compensation at the rate of Rs.25,000 per Marla---Referee Court enhanced compensation to Rs.20,000 per Marla---Both landowners and Acquiring Authority dissatisfied with determination of said rate of compensation, filed first regular appeal against judgment of Referee Court---Validity---Referee Court had taken into consideration the entire material on record as well as the report of Local Commissioner appointed in compliance with remand order of High Court to form its opinion regarding market price of land in question---Local Commissioner had taken pain and prepared the report which was comprehensive and had rightly been made basis of impugned decision---Submission of parties that impugned judgment and decree was the outcome of misreading and non-reading of evidence which had resulted in manifest injustice and could not be allowed to remain intact, was without force---Compensation determined by Referee Court, being adequate and fair, appeals filed by parties, deserved outright dismissal---Appeals were dismissed in circumstances.

M. Ayaz Khan, Addl. A.-G. for Appellant.

Alam Khan for Respondents.

CLC 2005 PESHAWAR HIGH COURT 1673 #

2005 C L C 1673

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

REHMAT ALI---Petitioner

Versus

DILAWAR SHAH and others---Respondents

Civil Revision No.1478 of 2004, decided on 17th June, 2005.

Civil Procedure Code (V of 1908)---

----S. 115---Revision petition---Scope---Continuance of criminal proceedings side by side with civil proceedings---Propriety---Continuance of criminal proceedings side by side with civil proceedings, would not advance cause of justice---Where Civil Court had taken cognizance and was deciding same issue, filing of private complaint and pendency of same before Trial Court was abuse of process of law---When case was purely of civil nature, criminal proceedings were not warranted in law and would be stayed till final disposal of civil suit---Impugned order being flawless and hardly calling for interference of High Court in its revisional jurisdiction under S.115, C.P.C., revision petition against impugned order was dismissed.

Mst. Bismillah v. Pervez Subhani and another 1982 PCr.LJ 93; Javaid Hamid v. Hassan Jan and 2 others PLD 1991 Pesh. 121; Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr.LJ 513; A-Habib Ahmad v. M.K.G. Scott Cristian and 5 others PLD 1992 SC 53 and Ch. Pervez Elahi v. The Federation of Pakistan and 3 others 1995 MLD 615 ref.

Muhammad Yousaf Khan Yousafzai, for Petitioners.

Abdul Latif Afridi for Respondents.

Date of hearing: 17th June, 2005.

CLC 2005 PESHAWAR HIGH COURT 1855 #

2005 C L C 1855

[Peshawar]

Before Muhammad Qaim Jan Khan and Salim Khan, JJ

Sardar HAROONUR RASHID and another---Petitioners

Versus

MUHAMMAD ANWAR and 5 others---Respondents

Writ Petition No. 1213 of 2005, heard on 10th August, 2005.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----S. 152(1)(i)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Nomination papers of candidates were rejected on the objection petition of petitioners on the ground that they had concealed their assets---Returning Officer discussed case of one candidate and did not discuss case of the other---No appeal or cross-objection having been filed against order of Returning Officer, case of said other candidate was not discussed at appellate stage also---Such point could not also be discussed for the first time in Constitutional petition---District Returning Officer in appeal came to the conclusion that defect in Assets Declaration Form furnished by candidates was neither intentional nor for any ulterior motive---District Returning Officer accepted appeal and set aside impugned order---Being a question of fact, District Returning Officer had made up his opinion on the basis of record---When more than one opinion could be formed on the basis of certain facts at the original or appellate stage and one of such opinions had been formed by a competent forum at that stage, then opinion formed while dealing with Constitutional petition, could not be substituted for such an opinion---Opinion formed by District Returning Officer, on basis of solid reasons, could not be interfered with in Constitutional petition, as recording of full evidence and going deep into merits and demerits of the case, was out of scope of constitutional petition.

H. Ghulam Basit for Petitioners.

Saeed Khan, Addl. A.-G. for Respondents.

Date of hearing: 10th August, 2005.

CLC 2005 PESHAWAR HIGH COURT 1864 #

2005 C L C 1864

[Peshawar]

Before Muhammad Qaim Jan Khan and Salim Khan, JJ

AURANGZEB and another---Petitioners

Versus

RETURNING OFFICER/ADDITIONAL DISTRICT JUDGE-III, UNION COUNCIL PAWA, ABBOTTABAD and 5 others---Respondents

Writ Petition No. 1350 of 2005, decided on 10th August, 2005.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----S. 152(1)(d)---North-West Frontier Province Elections Rules, 2000, Rr.16 & 18---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Rejection of nomination papers---Nomination papers of candidates for seats of Nazim and Naib Nazim of Union Council, were rejected on ground that educational certificate of candidate for the seat of Naib Nazim was not found correct---Said candidate had himself admitted in his statement before Election Tribunal that Board Authorities had cancelled his Matriculation Certificate in the year, 1975---Such admission of candidate, prima facie had suggested that he had committed fraud and forgery by producing false and fictitious certificate during previous elections---Candidate, in circumstances had told lie before Returning. Officer as well as before District Returning Officer and telling lie by candidate being a major sin, he was not entitled to contest election---Nomination papers of candidates, were rightly rejected, in circumstances.

Abdul Qayum Sarwar for Petitioners.

Muhammad Saeed Khan, A.A.-G. for Respondents.

Date of hearing: 10th August, 2005.

CLC 2005 PESHAWAR HIGH COURT 1876 #

2005 C L C 1876

[Peshawar]

Before Muhammad Qaim Jan Khan and Salim Khan, JJ

Mst. SAFIA BIBI---Petitioner

Versus

RETURNING OFFICER, DARGAI and 4 others---Respondents

Writ Petition No. 1383 of 2005, decided on 11th August, 2005.

North-West Frontier Province Elections Rules, 2000---

---Rr. 16 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Name, parentage and number in the voters list of proposer and seconder as well as name of Union Council and the ward had been left blank in nomination papers of candidate---Some signatures were at the space meant for the proposer, but no signatures or thumb-impression was found at the space meant for the seconder---Such were exemplary incomplete nomination papers which merited rejection, and were thus rightly rejected and appeal also failed---Validity---Petitioner was not a properly nominated candidate as no proof was on record to show as to who were proposer and seconder of candidate---Time limit had been fixed for submission of complete nomination papers, but candidate failed to find out a proposer and a seconder for herself at proper time---Candidate could not be given extended time to fill up the lacunae---Other candidates were not made parties to the proceedings by the candidate---Valuable right having accrued to other candidates by rejection of nomination papers of candidate, they could not be condemned unheard.

M. Haroon Iqbal for Petitioner .

Saeed Khan, Addl. A.-G. for Respondent.

Date of hearing: 11th August, 2005.

CLC 2005 PESHAWAR HIGH COURT 1881 #

2005 C L C 1881

[Peshawar]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

MUHAMMAD ASAD KHAN---Petitioner

Versus

Mst. SADAF NIAZ and another---Respondents

Writ Petition No. 1126 of 2003, decided on 23rd June, 2005.

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

----S. 5 & Sched.---Dissolution of marriage on ground of Khula---Relations between the couple, were not cordial which led wife to file suit against her husband for dissolution of marriage, recovery of dower and maintenance allowance etc.---Wife had developed a fixed aversion for her husband and it was no more possible for the couple to live together as husband and wife within the limits ordained by Allah---If the wife could not habitate with her husband, she could ask for Khula' on the ground of alleged hatred with all consequences flowing therefrom---Wife would not be entitled to benefit of dissolution of marriage and she would have to surrender the benefit in the forms ofMahar', etc. from her husband---Family Court had rightly dissolved marriage of parties on basis of Khula.

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

----S. 5 & Sched.---Suit for maintenance by wife---Wife, in the present case, had herself stated that maintenance was offered to her by husband but she refused to receive the same---Wife who had left the house of her husband on her own, otherwise was not entitled for grant of maintenance allowance---If a wife refused, without any lawful justification to live with her husband, she was not entitled to any maintenance---Wife had no valid reason to be awarded maintenance allowance in circumstances.

Qazi M. Jamil for Petitioner.

Amir. Zaib for Respondents.

Date of hearing: 22nd June, 2005.

Quetta High Court Balochistan

CLC 2005 QUETTA HIGH COURT BALOCHISTAN 1241 #

2005 C L C 1241

[Quetta]

Before Amanullah Khan, J

Haji JAN MUHAMMAD---Petitioner

Versus

Mst. ANWARI HUSSAIN and 14 others---Respondents

Civil Revision No.252 of 2001, decided on 11th March, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42--Civil Procedure Code (V of 1908), S.115---Suit for possession and declaration---Title of plaintiff in respect of suit property was based on registered sale-deed executed by initial owners of said land in favour of plaintiff---Documents produced on record had revealed that Vendors of suit property were initial owners of the property even prior to independence and said property remained in their names till its transfer in the name of plaintiff through registered sale-deed---Defendant could not prove their title in respect of suit property but despite that Courts below concurrently dismissed the suit---Both Courts below had misread and misappreciated documentary evidence produced by plaintiff and had committed a grave illegality and irregularity by rejecting document produced on record without giving cogent reasons---Serious prejudice had been caused to the case of plaintiff---Both Courts below fell in error in discarding evidence on record and findings arrived at by both Courts were based on conjectures, presumption and wrong assumption of law--High Court, in circumstances would be well within its rights to set aside both judgments in exercise of its revisional jurisdiction---Impugned judgment and decrees concurrently passed by Trial Court and Appellate Court were set aside and suit filed by plaintiff was decreed.

Saheb Khan through L.Rs. v. Muhammad Pannah PLD 1994 SC 162; Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974; Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286; Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443 and N.S. Vankatagiri Ayyangar and another v. The State Hindu Religious Endowments Board Madras PLD 1949 PC 26 ref.

Sundar Dass for Petitioner.

Tahir Muhammad Khan for Respondents Nos. 1 to 13.

Rashid Awan for Respondents Nos. 14 and 15.

Date of hearing: 25th February, 2005.

CLC 2005 QUETTA HIGH COURT BALOCHISTAN 1866 #

2005 C L C 1866

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nasir Khan, JJ

FAUJI FOUNDATION OF PAKISTAN---Petitioner

Versus

GQVERNMENT OF BALOCHISTAN through Secretary, Government Revenue Department and 3 others---Respondents

C.P. No.720 of 2000, decided on 28th June, 2005.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Review---Jurisdiction of Board of Revenue---Scope---Board of Revenue is authorized under S.8 of West Pakistan Board of Revenue Act, 1957, to exercise right of review in respect of any order, discovery of new and important matter or mistake or error on the face of record.

(b) Balochistan Cancellation of Illegal Allotments of State Land Act (V of 1996)---

----S. 4---Land Lease Policy, 1998---West Pakistan Board of Revenue Act (XI of 1957), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Government lands---Allotment, cancellation of---Disputed land was allotted to respondents at very nominal price which was, leased out to petitioner---Subsequently Board of Revenue cancelled the allotment in favour of respondents---Plea raised by petitioner was that order passed by Board of Revenue was illegal and status of petitioner was that of occupancy tenant---Validity---Petitioner could not be allowed to retain ill-gotten gains---Even provisions of Land Lease Policy, 1998, were not followed at the time of transfer---Original transfer in favour of respondents was also void having been made without backing of law---Board of Revenue had no jurisdiction to transfer/sell Government land without determination of tenancy and without advertising same in newspapers publicly---Transaction had taken place within twenty eight days, which appeared to be collusive and shaky---Petitioner did not approach High Court with clean hands---Petition was dismissed in circumstances.

Munawar Kashan and another v. Government of Balochistan through Secretary, Revenue, Balochistan Civil Secretariat, Quetta and 2 others 2000 MLD 2015; Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan 2002 SCMR 122; Nawabzada Jahangir Shah Jogezai and others v. Province of Balochistan and others decided on 2nd November, 1998 and 2000 .MLD 2015 ref.

Muhaimnad Aslam Chishti for Petitioner.

Amin-ud-Din Bazai, Addl. A.-G. for Respondents Nos. 1 to 3.

Mirza Hussain Khan for Respondents Nos.4 to 32.

Date of hearing: 20th June, 2005.

Supreme Court Azad Kashmir

CLC 2005 SUPREME COURT AZAD KASHMIR 457 #

2005 C L C 457

[Supreme Court (Azad J&K)]

Present: Khawaja Muhammad Saeed, Actg. C.J. and Syed Manzoor Hussain Gillani, J

MUHAMMAD SHARIF CHATTER‑‑‑Appellant

Versus

COMMISSIONER REHABILITATION, AZAD JAMMU AND KASHMIR GOVERNMENT, CAMP MIRPUR and 6 others‑‑‑Respondents

Civil Appeal No.21 of 2004, decided on 3rd December, 2004.

(On appeal from the judgment of the High Court, dated 20‑2‑2004 in Writ Petition No.43 of 2003).

(a) Azad Jammu and Kashmir Rehabilitation Ordinance, 1952‑‑‑

‑‑‑‑S. 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)‑‑‑Powers of Commissioner to hear revision relating to Rehabilitation matters‑‑‑Appeal to Supreme Court‑‑‑Government, in exercise of powers vested in it under S.3 of Azad Jammu and Kashmir Rehabilitation Ordinance, 1952, issued notifications whereby ,powers of appeals, revision and review etc. relating to rehabilitation matters were vested in Commissioner concerned‑‑‑In view of said Notifications Rehabilitation Commissioner had no jurisdiction to hear a revision filed before it by respondents‑‑‑Commissioner of concerned Division would be deemed as Rehabilitation Commissioner for the purposes mentioned in said Notifications‑‑‑Revision petition would be decided by Commissioner of Division concerned in accordance with law in his capacity as Rehabilitation Commissioner.

(b) Interpretation of statutes‑‑‑

‑‑‑‑While construing a statute, it had to be read as a whole and every notification issued under the Statute would be read within the meaning and spirit of law which authorized issuing such notification‑‑‑Law and notification had to be read in juxta‑position to each other so as to ensure their purpose.

Liaquat Ali Khan, Advocate for Appellant.

Raja Bashir Ahmed Khan, Advocate for Respondents.

Date of hearing; 2nd December, 2004.

CLC 2005 SUPREME COURT AZAD KASHMIR 492 #

2005 C L C 492

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Chaudhary Muhammad Taj, J

KHURSHID AHMAD‑‑‑Appellant

Versus

SULTAN HABIB and 50 others‑‑‑Respondents

Civil Appeal No.60 of 2003, decided on 3rd December, 2004.

(On appeal from the judgment of the High Court dated 12‑6‑2003 in Civil Revision No.42 of 2003).

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

‑‑‑‑O. VII, Rr. 1(e) & 11(a)‑‑‑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 and would mean the whole of material facts which it was necessary for the plaintiff to allege and prove in order to succeed‑‑‑Termcause of action' referred to the ground on basis of which plaintiff asked for a favourable judgment‑‑‑Cause of action was the sum total of all those allegations upon which the right to relief claimed was founded and would include every fact which if traversed would be necessary to prove, in order to enable a plaintiff to sustain his action‑‑‑In determining as to what was a cause of action, one was not concerned with the nature of the defence that could be set up, but had only to see what was alleged in the plaint‑‑Facts which were alleged in the plaint and which required to be proved, without which plaintiff would not be entitled to a judgment, would constitute cause of action‑‑‑Every such fact which was necessary to prove, would form a part of cause of action‑‑‑It was to be ascertained from the allegations in the plaint as to what was the cause of action in each case.

Abdul Ghafoor & Brothers v. Natural Food & Beverage (Pvt.) Ltd. and 2 others 2001 YLR 3243; Khadim Hussain v. Jamal Hussain and 2 others 1997 MLD 2952 and T. Arivandandam v. T.V. Satyappal and another AIR 1977 SC 2421 ref.

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

‑‑‑‑O. VII, R.11‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑Rejection of plaint‑‑‑Plaintiff had filed a suit for declaration to the effect that he was owner in possession of suit‑land and a declaration was also sought for cancellation of sale‑deed as being illegal and ineffective against his rights‑‑‑Plaint filed by plaintiff did disclose the cause of action particularly when an amendment application to remove the defects, if any, was also moved by plaintiff‑‑‑No occasion existed for rejection of plaint, in circumstances.

Shaukat Ali and others v. Jalal‑ud‑Din and others 1999 CLC 1396; Maulana Nur‑ul‑Haq v. Ibrahim Khalil 2000 SCMR 1305 and Sultan Habib and 10 others v. Mst. Walayat Begum and 10 others 2003 SCR 92 ref.

M. Yunus Arvi, Advocate for Appellant.

Ch. Muhammad Afzal, Advocate for Respondents.

Date of hearing: 29th November, 2004.

CLC 2005 SUPREME COURT AZAD KASHMIR 543 #

2005 C L C 543

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Chaudhary Muhammad Taj, J

MUHAMMAD RAFIQUE BUTT‑‑‑Appellant

Versus

AMANAT ALI and 3 others ‑Respondents

Civil Appeal No.58 of 2003, decided on 3rd December, 2004.

(On appeal from the judgment and decree of the High Court dated 21‑6‑2003 in Civil Appeal No.85 of 2002).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

‑‑‑‑S. 6‑‑‑Suits Valuation Act (VII of 1887), Ss.3 & 8‑‑‑Court Fees Act (VII of 1870), S.7(v)(vi)‑‑‑Suit for pre‑emption ‑‑‑Determination of value of suit‑land for purpose of jurisdiction of Court‑‑‑Objection to‑‑‑Defendants did not raise any objection with regard to value of suit for purpose of jurisdiction of Court and fixation of court‑fee either in pleadings or during arguments in the Trial Court or even before District Judge, but was raised first time before High Court, which could not be raised at that stage of the case.

Muhammad Suleman and another v. Javed Iqbal and others PLD 1985 SC (AJ&K) 1; Ghulam Rasool v, Muhammad Khan and another 2000 YLR 2104; Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280; Visanda Mal and others v. Ganesha Mal and others AIR 1916 Lah. 208; Ram Samlhart Tewari v. Rajman Naik and others AIR 1918 All. 233; Mathura Prasad v. Karam Singh AIR 1929 Oudh 240(2); Muhammad Iqbal v. Mst. Ghulam Roquia 2003 MLD 138; Sain v. Muhammad Din and others 1995 SCR 208; Ghulam Hussain Shah v. Hidayatullah Khan, PLD 1981 SC (AJ&K) 55 and Muhammad Hussain's case 2001 YLR 3280 ref.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

‑‑‑S. 6‑‑‑Court Fees Act (VII of 1870), S.7(v)(a)(b)(d)‑‑‑Suits Valuation Act (VII of 1887), S.8‑‑‑Suit for pre-emption‑-‑Valuation of suit‑land for determination of jurisdiction of Court‑‑‑Suit‑land was assessed to land revenue and its value for purpose of jurisdiction was determined,, but determined amount was not paid having been exempted by Government‑ ‑‑Land was assessed to Land Revenue, the court‑fee was to be computed under S.7(v)(a) & (b) Court Fees Act, 1870, and if it was not assessed to land revenue, the court‑fee was to be computed in accordance with S.7(v)(d) of Court‑Fee Act, 1870 and valuation of suit was to be determined under S.8 of Suits Valuation Act, 1887‑‑‑Actual payment of land revenue was not mandatory portion of procedure laid down for assessing suit's value‑‑‑Land revenue and not its actual payment was payable to Government which was key to procedure for valuation.

‑‑‑‑S. 6‑‑‑Suit for pre‑emption‑‑‑Right of pre‑emption‑-‑Jurisdiction of Court‑‑‑Determination of‑‑‑Appellate forum‑‑‑Contention of the defendants that appeal before District Judge being not related to the right of pre‑emption, but for the purpose of reduction of consideration amount, forum of appeal according to law, was not District Judge was repelled being without substance‑‑‑If question of right of pre‑emption in respect of agricultural land in appeal was not involved and matter related to the reduction of amount, jurisdictional value would be determined according to that amount which, according to law, was not in the jurisdiction of District Judge.

Muhammad Iqbal v. Mst. Ghulam Roquia 2003 MLD 138; Haji Ghulam Qadir v. Abdul Qadir PLD 1952 BJ 62 and Muhammad Hussain v. Muhammad Afsar and 5 others 2001 YLR 3280 ref.

Raja Muhammad Siddique Khan, Advocate for Appellant.

Ch. Ali Muhammad, Advocate for Respondents.

Date of hearing: 26th November, 2004.

CLC 2005 SUPREME COURT AZAD KASHMIR 559 #

2005 C L C 559

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gillani and Chaudhary Muhammad Taj, JJ

RAQUIA BIBI‑‑‑ Appellant

Versus

MUHAMMAD AZEEM and 2 others‑‑‑Respondents

Civil Appeal No.8 of 2004, decided on 3rd December, 2004.

(On appeal from the judgment of the High Court, dated 16‑10‑2003 in Civil Revision No.60/03 of 2003).

Azad Jammu and Kashmir Right of Prior Purchase Act, (1993 B.K.)----

‑‑‑‑Ss. 6 & 21‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Suit for pre‑emption ‑‑‑Order to deposit 1/5th value of suit property‑‑‑Trial Court, after receiving written statement from defendant/vendee, passed order for deposit of 1/5th price of suit‑land‑‑On failure of plaintiff to comply with order of Trial Court, suit was dismissed‑‑‑Revision petition filed by plaintiff with High Court was also dismissed‑‑‑Validity‑‑‑Claim of plaintiff was that before filing written statements on behalf of defendants/vendors, order for deposit of 1/5th of ostensible price of suit-land could not be passed by Trial Court, whereas said order was passed after obtaining written statement of vendee only and not receiving written statement of vendors‑‑‑Claim of plaintiff had no merit because under provisions of S.21 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 order to deposit 1/5th of ostensible price of suit‑land could be made at any time before or at the time of settlement of issues‑‑‑No compulsion existed to the effect that said order could only be made after filing of written statement of vendors/defendants who were not even necessary parties and were also deleted from proceedings‑‑‑Plaintiff had neither filed application for extension of time to deposit 1/5th of price nor had made any request in that respect‑‑‑High Court having passed a lawful order after elaborately discussing matter, no, reason was found by the Supreme Court to differ with the same.

Hidayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69; Faqir Muhammad v. Mutwali PLD 1982 SC (AJ&K) 55 and Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 ref.

Ch. Muhammad Ayub Sabir, Advocate for Appellant.

Ch. Muhammad Afzal, Advocate for Respondents.

Date of hearing: 23rd November, 2004.

CLC 2005 SUPREME COURT AZAD KASHMIR 564 #

2005 C L C 564

[Azad J&K]

Before Ghulam Mustafa Mughal, J

ARFAN HAMEED, S.D.O. MIRPUR and 42 others‑‑‑Petitioners

Versus

SECRETARY, EDUCATION, AJ&K GOVERNMENT CIVIL SECRETARIAT, MUZAFFARABAD and 3 others‑‑‑Respondents

W.P. No.344 of 2003, decided on 30th October, 2003.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 114‑‑‑Promissory estoppel‑‑Rule of promissory estoppel was that where one party had, by his word or conduct, made to the other party, a clear promise which was intended to create or effect a legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom promise was made and it was, in fact so acted upon by the other party, that promise would be binding on the party making it and he was not entitled to resile from it.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑

‑‑‑‑S.4, Clauses 15 & 17‑‑‑Equality of State subjects and safeguard against discrimination in services‑‑All State subjects were equal before law and were entitled to equal protection of law‑‑‑Clause 17 of S.4 of Azad Jammu & Kashmir Interim Constitution Act, 1974 had provided a safeguard against discrimination in service‑‑‑Scope of equality of citizens and "equal protection of law" had received attention of the superior judiciary of Sub‑Continent and consensus was that "Equality of citizens" would not mean that all laws must apply to all subjects or that all subjects must have the same rights and liabilities; that a citizen's rights as a human being were not affected by reason of his descent religion, social or official status, economic condition or place of birth or residence; and further that all citizens were equally subject to the general law of the land‑‑‑Clause 17 of S.4 of Azad Jammu & Kashmir Interim Constitution Act, 1974 had permitted classification; word "equal protection of law" would mean that no person or class of persons would be denied same protection of laws which were enjoyed by other person or persons or class or classes in same circumstances‑‑‑Said Constitutional guarantee, in fact required that all persons would be treated alike under like and. similar conditions‑‑Equal protection of law connoted that in similar circumstances, same law would apply to same class of people‑‑Right of equality before law was anchor‑sheet of Constitution and could not be violated on the basis of pick and choose and personal liking and disliking.

2001 CLC 770; Muhammad Sharif Khan's case 1993 SCR 88; Abdul Hafeez Abbasi's case 2002 SCMR 1034; Secretary to Government of N.‑W.F.P.'s case 1996 SCMR 413; Dr. Naveeda Tafail's case 2003 SCMR 291; Ch. Abdul Majeed and others v. Azad Jammu and Kashmir Government through Chief Secretary and others PLD 2001 (AJ&) 24 and Abdul Sattar v. The State 1989 PCr. LJ 77 ref.

‑‑‑‑S. 13‑‑Prime Minister was Chief Executive of the State and Executive Authority of State vested in him who would exercise said authority either directly or through Ministers‑‑‑Business of Government was regulated by Rules of Business, 1985‑‑‑Bureaucracy or public functionaries discharged their duties as a delegatees of the State and for that matter they were bound to discharge the functions of their respective offices as a trust.

Ashfaque Hussain Kiani for Petitioners.

Raja Ibrar Hussain, A.‑G. assisted by Raja Raza Ali Khan for Respondents.

CLC 2005 SUPREME COURT AZAD KASHMIR 689 #

2005 C L C 689

[Azad J&K]

Before Ghulam Mustafa Mughal, J

MUHAMMAD ZAMAN---Petitioner

versus

ABDUL RAZZAQ and 56 others---Respondents

Civil Revision No.116 of 2004, decided on 3rd February, 2005.

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

----O. IX, R. 7---Limitation Act (IX of 1908), Art. 181---Ex parte proceedings against defendant---Setting aside of---Limitation---Ex parte order or proceedings could be set aside at any time before conclusion of the trial, provided that application for the same was made within a period of 3 years as provided by Art. 181, Limitation Act, 1908---Defendant having stated reasons for his non-appearance, whatever their worth was it could be decided after providing an opportunity to him to substantiate the same---Failure on the part of Trial Court and disposal of his application for setting aside ex parte proceedings, in a summary manner, was unwarranted and not a proper exercise of jurisdiction.

1989 MLD 2173; 1993 MLD 1101; 1994 MLD 1947; 1991 MLD 261; 1993 MLD 227; KLR 1982 Civil Case 81 and 1994 MLD 1947 ref.

(b) Administration of justice---

----Rules of procedure were meant for advancement of justice and parties could not be non-suited on technicalities of law when their valuable rights were sub judice before the Court.

Manzoor Ahmed Bhattis case PLD 1973 Lah. 659 ref.

Ch. Muhammad Azam Khan for Petitioner.

Ch. Reaz Alam for Respondents.

CLC 2005 SUPREME COURT AZAD KASHMIR 811 #

2005 C L C 811

[Azad J&K]

Before Ghulam Mustafa Mughal, J

IFTIKHAR HUSSAIN KHAN and 13 others---Appellants

versus

MUHAMMAD GULZAR KHAN and 5 others---Respondents

Civil Appeal No.95 of 2002, decided on 15th March, 2005.

Civil Procedure Code (V of 1908)---

----S. 100 & O.XXII, R. 3---Adverse possession---Suit on the basis of adverse possession---Second appeal, abatement of---Respondents had claimed that suit-land was admittedly in possession of their grandfather and after his death it remained in possession of their father during his life time and thereafter they were in its possession which possession not only had been admitted by appellants, but was supported by entries in Revenue Record---Trial Court and Appellate Court having concurrently decreed suit filed by respondents, appellants had filed second appeal before High Court against said judgments and decrees---One of appellants had died during pendency of appeal, but his legal heirs were not brought on record by appellants within prescribed period of limitation---Respondents had contended that due to non-impleading of legal heirs of deceased appellant, said appeal stood abated in toto---Plea of appellants was that after adoption of Pakistan Law Reforms Ordinance, 1972 in Azad Jammu & Kashmir, appeal would not abate for non-impleading of legal heirs of any party---Validity---Deceased appellant had died long before adoption of said amendment in Azad Jammu & Kashmir and same having not been given retrospective effect, was not applicable in the case---Law existing prior to adoption of said amendment would govern the matter---Even said amendment was effected in Code of Civil Procedure through Law Reforms Ordinance, 1972 which had not been made applicables retrospectively---Respondents could not be deprived of vested right which had accrued to them before adoption of amendment in Azad Jammu & Kashmir---Decree under challenge having been awarded on basis of adverse possession, same was indivisible---Appeal stood abated in toto and was dismissed accordingly.

PLD 1983 AJK 46; PLD 1982 SC (AJ&K) 37; PLJ 1983 SC (AJ&K) 175; PLD 1994 SC 462; PLD 1990 Lah. 229; PLD 1983 (AJ&K) 81; 1987 CLC 830; 1992 CLC 1591; 1983 CLC 1029; 1985 CLC 695; 1989 CLC 2369; Sardar Noor Hussain's case PLD 1983 SC 62; Khawaja Jalal Din's case 1985 SCMR 1359; Muzaffar and 2 others v. Maulvi Aziz-ul-Rehman 1983 CLC 16 and Aksar Ali's case 1982 CLC 1309 ref.

Abdul Rasheed Abbasi for Appellants.

Muhammad Arif Khan Abbasi for Respondents.

CLC 2005 SUPREME COURT AZAD KASHMIR 999 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

CLC 2005 SUPREME COURT AZAD KASHMIR 1018 #

2005 C L C 1018

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MUNSHI KHAN‑‑‑Appellant

Versus

KALA and 8 others‑‑‑Respondents

Civil Appeal No. 13 of 2004, decided on 15th March, 2005.

(On appeal from the judgment and decree of the High Court dated 23‑10‑2003 in Civil Appeal No.47 of 2002).

(a) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)‑ ‑

‑‑‑‑S. 6‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑ Suit for pre‑emption‑‑‑Consideration, determination of‑‑Suit for possession by pre‑emptor was decreed against consideration of Rs. fifteen lacs‑‑‑Appeal before High Court challenging consideration amount alleging that same was fixed against evidence on record‑‑‑Trial Court after recording evidence and hearing parties had determined the amount of considerations which was upheld by High Court in appeal by pre‑emptor after taking into consideration the factual as well as legal aspects of case through a well‑reasoned judgment‑‑‑Consideration amount having been fixed in accordance with law, order passed by High Court did not warrant interference of Supreme Court‑‑‑Appeal was dismissed by the Supreme Court with direction to appellant to deposit consideration amount along with sale‑deed expenses determined by Trial Court within specified period.

Muhammad Shamoon v. Mohabat Khan PLD 1984 SC (AJ&K) 94 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 42‑‑‑Appeal to Supreme Court‑‑‑Point not taken before Court below could not be taken for the first time before Supreme Court.

Mujahid Hussain Naqvi, Advocate for Appellant.

Ch. Muhammad Ibrahim Zia, Advocate for Respondents.

Date of hearing: 9th March, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1025 #

2005 C L C 1025

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, Actg. C.J.

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 2 others‑‑‑Respondents

Versus

Ch. KHADIM HUSSAIN ‑‑‑Respondent

Civil P.L.A. No. 126 of 2004, decided on 19th January, 2005.

(On appeal from the judgment of the Service Tribunal, dated 7‑4‑2004 in Service Appeal.No.266 of 2000).

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978‑‑‑

‑‑‑‑O. XIII, R. 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)‑‑‑Petition for leave to appeal to Supreme Court‑‑‑Petitioner under O.XIII, R.3 of Azad Jammu and Kashmir Supreme Court Rules, 1978 was required to file four copies of his petition for leave to appeal accompanied by impugned judgment recorded against him by the Court below and copies of other necessary documents‑‑‑Petitioner who wanted to avail the right of appeal, should nave obtained the relevant copies in his own name either personally or through his recognized attorney or agent who could be even his advocate; if he was duly appointed by petitioner prior to filing of petition for leave to appeal‑‑ ‑Petitioner, in the present case had to obtain copies in his own name, and he, could also avail the facility provided by law to engage some attorney or agent for such purpose‑‑‑Present petition lacking said mandatory requirements of Supreme Court Rules, was not maintainable and was liable to be dismissed.

State v. Naseer Ahmed and another 2004 SCR 104; Azad Government and another v. Mujahid Hussain Naqvi 2002 SCR 302; Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13; Reference No. 1 of 1997 by President AJ&K PLD 1978 SC (AJ&K) 37; Azad Government and others v. Faqir Hussain Shah and another 2004 SCR 23 and Habibullah v. Government of Punjab and others PLD 1980 Lah. 337 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑‑While interpreting any provisions of law, all the provisions of Act or Rules should be taken into consideration in order to avoid any conflict in interpretation of its provisions because provisions of law, as a whole, were to be applied in a harmonious manner.

Raja Ibrar Hussain, Advocate‑General for Petitioners.

Date of hearing: 14th January, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1076 #

2005 C L C 1076

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gillani and Chaudhary Muhammad Taj, JJ

Syed LAL HUSSAIN SHAH‑‑‑Appellant

Versus

LAL MUHAMMAD and 5 others‑‑‑Respondents

Civil Appeal No.99 of 2004, decided on 4th March, 2005.

(On appeal from the judgment of the High Court, dated 11‑3‑2004 in Writ Petition No.420 of 2002).

(a) Azad Jammu and Kashmir Grant of Khalsa Land (Ground Rent and Lease) Rules, 1985‑‑‑

‑‑‑‑R. 2(c)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 42‑B‑‑‑Appeal to Supreme Court‑‑‑Sanction of "Charand Ghair Mumkan Khalsa Land" which was reserved for village common purposes‑‑‑Sanction granted in favour of respondent was upheld up to High Court, but Supreme Court vacated order of High Court and case was remanded to High Court for fresh decision on all points raised in the writ petition filed before High Court‑‑‑High Court, after remand order, without taking into consideration the order of Supreme Court again granted sanction of disputed land to respondent‑‑‑Validity‑‑‑Land in dispute was Khalsa which was entered in Revenue Record as "Charand Ghair Mumkan" and such land which was reserved for village common purposes, could not be regularized in favour of anybody‑‑‑Any report contrary to it by any Revenue Officer could not be given any credence until the entries in Revenue Record, which alone were authentic under law, were corrected in accordance with law‑‑‑As long as the entries in that respect would remain on Revenue Record, those were to be read in the same spirit otherwise a chaotic situation would be created by scot‑free reporting of Revenue Officers, howsoever, correct it might be‑‑‑Said point having been conclusively decided by. Supreme Court earlier under same circumstances, had become the law of the land and no Authority, be it High Court, could bypass law laid down by Supreme Court‑‑‑High Court, upheld allotment/sanction of land in dispute in favour of respondent despite the fact that said judgment of Supreme Court was brought to its notice‑‑‑Hierarchy of the Courts and supremacy of Constitution demanded that judgment of Supreme Court had to be accepted in view of S.42‑B of Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑Orders passed by Revenue Authorities and High Court were declared as without lawful authority.

Muhammad Kabir Khan and 4 others v. Naseer Ahmed Khan and 3 others 2000 MLD 1600; Ghulam Hussain v. Member, Board of Revenue and 2 others 1995 SCR 355; Fazal Karim v. Abdul Manaf and another 1997 MLD 2867; Tanveer Hussain Shah v. Maqbool Begum and 23 others 2000 MLD 1618 and Haq Nawaz and others v. Lt‑Col. Muhammad Hanif Khan Malik and others PLD 1978 Revenue 441 ref.

(b) Limitation‑‑‑

‑‑‑‑Condonation of delay‑‑‑When the case was decided on merits, limitation would be deemed to have been condoned.

Sardar Aftab Muhammad v. Sardar Khurshid Hussain 1999 PLC (C.S.) 40 and Shah Muhammad Khan and another v. Muhammad Haleem and 3 others 2000 YLR 1901 ref.

‑‑‑‑S. 42‑‑‑Appeal to Supreme Court‑‑‑Scope‑‑‑Concurrent findings of fact‑‑‑Concept‑‑‑Concurrent findings on facts, though had to be upheld and not disturbed, but if any finding was recorded on the basis of some misreading, non‑reading or misconstruing the record, that could not be deemed as concurrent and principle of authenticity of concurrent findings of fact was not attracted in such cases‑‑‑Concurrent finding was that when on a point of fact, all Courts below were one and there appeared no circumstance or reason to believe that finding was against the record‑‑‑In a case where it was pointed out that anyone or more of the Courts had not read the record and record also spoke otherwise, findings of fact in that case could not be said to be concurrent‑‑‑In absence of pointing out any misreading or non‑reading of; record concurrent findings, would be deemed to be conclusive and final, but once it was challenged and a substantial misreading was found, that had to be rectified by the Court competent to do it and principle of concurrence would not apply‑‑‑Held, it was not correct to say that concurrent findings of fact recorded by all Courts below had to be accepted by High Court and could not be disturbed by it on any ground whatsoever.

Fazal Karim v. Abdul Manaf and another 1997 MLD 2867; Tanveer Hussain Shah v. Maqbool Begum and 23 others 2000 MLD 1618; Muhammad Hanif Khan and 6 others v. Government of AJ&K through its Chief Secretary and 15 others PLJ 2004 AJ&K 93 and Haq Nawaz and others v. Lt.‑Col. Muhammad Hanif Khan Malik and others PLD 1978 Revenue 41 ref.

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

‑‑‑‑S. 167‑‑‑Limitation Act (IX of 1908), Preamble‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑ Appeal to Supreme Court‑‑‑Applicability of Limitation Act, 1908 in revenue matters‑‑‑Provisions of S.167 of West Pakistan Land Revenue Act, 1967 had unequivocally provided that in computation of period for an appeal from or an application for the review or revision of an order under the said Act, Limitation thereof would be governed by Limitation Act, 1908‑‑There being no specific exclusion of any of provisions of Limitation Act, 1908, same would apply in its totality‑‑‑Contention that Limitation Act, 1908 would not apply in the matters arising under West Pakistan Land Revenue Act, 1967, was repelled being incorrect.

Syed Khalil Ahmed Bukhari, Advocate for Appellant.

M. Riaz Tabassum, Advocate for Respondents.

Date of hearing: 1st March, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1347 #

2005 C L C 1359

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J

MUHAMMAD BASHIR KHAN---Appellant

Versus

MUHAMMAD IQBAL KHAN and 12 others---Respondents

Civil Appeal No.102 of 2004, decided on 1st April, 2005.

(On appeal from the judgment and decree of the High Court, dated 19-5-2004 in Civil Appeal No.34 of 2002).

Civil Procedure Code (V of 1908)---

----O. XXIII, R.1---Withdrawal of suit---Fresh suit---Bar---Only that fresh suit would be barred which was filed after withdrawal of earlier suit and not one which was filed and was pending at the time of filing fresh suit---First suit filed by plaintiff was withdrawn subsequently when second suit stood already instituted---Suit was not instituted after withdrawal of earlier suit, so as to attract provisions of sub-rule (3) of R.1 of O.XXIII of C.P.C.---Comparative study of first and second suit had revealed that in the earlier suit, plaintiff had sought a decree for perpetual injunction for restraining defendant from interfering in particular Khasra No. of land in dispute and correction of revenue record to that extent only, while in subsequent suit he, besides seeking that remedy, had also sought possession of other Khasra No. which was not earlier sought---Plaintiff, in subsequent suit also sought a declaration that he was owner of three Khasra Nos. on the basis of sale-deed executed in favour of his father, while that relief was not claimed in earlier suit--Earlier suit was against three persons only, while subsequent suit was against many other persons, besides revenue officers insofar as the correction of revenue record was concerned---Such relief was not sought in earlier suit---Identity of causes of action and of parties, besides the relief sought in two suits, being different, bar contained in sub-rule (3) of R.1 of O.XXIII, C.P.C. would not apply---If identity of parties and causes of action were not same, provisions of O.XXIII, Sub-rule (3) of R.1 of C.P.C., would not be attracted.

Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30; Karim Bakhsh v. Jan Muhammad PLD 1977 Lah. 1033; Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672; The Commissioner of Income Tax N.C.A. Circle Karachi and another v. Ashfaque Ahmad Khan and 10 others PLD 1973 SC 406; Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Rangacharya and others v. Guru Ravti Raman Acharya AIR 1928 All. 689; Albert Judah Judah v. Rampada Gupta and another AIR 1959 Cal. 715; Ram Bharose v. Baramdin and others AIR 1939 All. 584; Vallabh Das v. Dr. Madan Lal and others AIR 1970 SC 987; Sonokhan Yar Muhammad and another v. Mt. Bachi and others AIR 1944 Sind 192; Rain Mal v. Upendra Datt AIR 1928 Lah. 710; Mungi Lal v. Radha Mohan AIR 1930 Lah. 599; Ashfaq Ahmad Khan v. Custodian of Evacuee Property PLD 1966 Kar. 597 and Irshad Ali v. Islamic Republic of Pakistan 1981 CLC 111 ref.

Ch. Ali Muhammad, Advocate for Appellant.

Raja Muhammad Siddique Khan, Advocate for Respondent No. 1.

Date of hearing: 28th March, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1359 #

2005 C L C 1371

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MUHAMMAD AZAM---Appellant

Versus

ALLAH BELI alias TASSADEQ BAIG and 9 others---Respondents

Civil Appeal No.15 of 2004, decided on 1st April, 2005.

(On appeal from the judgment of the High Court dated 13-12-2003 in Writ Petition No.15 of 1999).

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

----Ss. 4(4) & 161---Appeal before Member, Board of Revenue---Board of Revenue was no doubt an Appellate Authority of subordinate revenue agency, but its appellate powers were regulated by law and had to be exercised in accordance with law---Finding on facts was the concern of subordinate Revenue Officer maintaining the record and their reports had to be given weight unless a cogent contrary record or evidence was brought on record.. Rule of concurrent findings could not be said not to be applicable in such proceedings when it was found by Collector as well as Commissioner, on the basis of reports of Patwari, Girdawar, Revenue Assistant and spot inspection that respondents were in possession of the land---Member, Board of Revenue had definitely acted contrary to law and facts concurrently concluded by subordinate Revenue Authorities.

Rehmatullah and others v. Muhammad Ismail and others PLD 1958 W.P. (Rev.) 77 ref.

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

----S. 164---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Revision---Suo motu power of Board of Revenue---Appeal to Supreme Court---Suo motu power of Board of Revenue, prima facie would be attracted when it would take notice of a particular fact on its own based on its own knowledge and not when an unsuccessful person invoked its jurisdiction---Courts or other quasi-judicial Authorities were not to act in aid of private vengeance, but in furtherance of law, justice and their own duty---If the orders or proceedings of subordinate Authority were illegal, irregular or unjust, the revisional Authority could suo motu set them right, even if, those would come to their notice at a belated revision stage of an aggrieved person---In instant case, appellant before Board of Revenue was never a party before subordinate Revenue Authorities and no illegality or irregularity was in the proceedings---No reason was to invoke suo motu powers.

Raja Muhammad Siddique, Advocate for Appellant.

Muhammad Yunus Tahir, Advocate for Respondents.

Date of hearing: 22nd March, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1371 #

2005 C L C 1371

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MUHAMMAD AZAM---Appellant

Versus

ALLAH BELI alias TASSADEQ BAIG and 9 others---Respondents

Civil Appeal No.15 of 2004, decided on 1st April, 2005.

(On appeal from the judgment of the High Court dated 13-12-2003 in Writ Petition No.15 of 1999).

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

Rehmatullah and others v. Muhammad Ismail and others PLD 1958 W.P. (Rev.) 77 ref.

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

Raja Muhammad Siddique, Advocate for Appellant.

Muhammad Yunus Tahir, Advocate for Respondents.

Date of hearing: 22nd March, 2005.

CLC 2005 SUPREME COURT AZAD KASHMIR 1979 #

2005 C L C 1979

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MUHAMMAD ASLAM---Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 3 others---Respondents

C.A. No.175 of 2003, decided on 18th March, 2005.

(On appeal from the judgment of High Court, dated 8-9-2003 in Writ Petition No.633 of 2001).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction-Scope-Disputed question of fact, meaning of---Disputed question of fact would not mean the denial of a right asserted in a writ petition---If a party asserted a right and other party denied the right, it would not make a question as disputed one---Disputed question of fact would mean that a certain matter could not be resolved , unless a detailed scrutiny of facts was made or some evidence was recorded.

Abdul Waheed Butt v. Excise and Taxation Officer and 3 others 2003 SCR 298; Syeda Shaista Mumtaz v. Secretary Education and 6 others 2003 SCR 446 and Ch. Muhammad Mahmood v. Aurangzeb and 6 others 1997 SCR 14 ref.

(b) Azad Jammu and Kashmir Rehabilitation Act, 1956----

---S. 6-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Writ petition---Allotment of land---Appeal to Supreme Court---Appellant had filed writ petition for issuance of requisite direction on the ground that he was lawful owner of land in dispute which was in possession of respondents who were not paying rent---High Court entertained certain doubts about allotment and also proceeded to dismiss writ petition on ground that disputed questions of fact were involved in the case which could not be resolved in writ jurisdiction---Matter was remanded by Supreme Court to High Court to decide writ petition after resolving question of validity of allotment and to make inquiry in any manner, if need would so arise.

Imdad Ali Mallick for Appellant.

Raja Ibrar Hussain, Advocate-General for Respondents.

Date of hearing: 14th March, 2005.