CLC 2007 Judgments

2007 C L C 297

[High Court (AJK)]

Before Sardar Muhammad Nawaz Khan, CJ

DAOOD AHMED KIANI and 3 others----Appellants

Versus

REHMAT DIN and 28 others----Respondents

Civil Appeal No.36 of 2000, decided on 8th December, 2006.

Specific Relief Act (I of 1877)---

----Ss. 9 & 54---Suit for possession and perpetual injunction having been concurrently dismissed by the Trial Court and Appellate Court, plaintiffs had filed second appeal against said concurrent judgments and decrees---Compromise was arrived at between the parties during pendency of suit whereby suit-land was transferred in favour of father of plaintiffs whereby they became rightful owners of the suit-land in view of compromise deed---Both the Courts below unanimously arrived at the conclusion that plaintiffs who were in possession of suit-land, were dispossessed in the year 1989 and that finding had not been challenged by other side---Irresistible conclusion, in circumstances was that plaintiffs were in possession of suit-land till 1989 and when they were dispossessed, they brought present suit in the year 1990---When a full owner, being in possession of suit-land, was dispossessed in the year 1989 and he brought his suit in the year 1990, then by no stretch of imagination, it could be said that their suit was time barred and it could be dismissed on that ground---Plaintiffs having satisfactorily proved themselves to be the owners of suit-land and also having bee found to have brought the suit within time, impugned judgments and decrees of Courts below were set aside---Suit by plaintiffs stood decreed in their favour, whereas cross suit filed by defendants, was disallowed.

AIR 1932 Born. 466 rel.

Raja Gul Majid for Appellants.

Sardar Mansoor Pervaiz for Respondents.

2007 C L C 1206

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD ISHTIAQ----Petitioner

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 5 others----Respondents

Writ Petition No.235 of 2006; decided on 21st March, 2007.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Educational institution---Direction had been sought to the University to accept examination forms of petitioners who were earthquake hit, without any examination fee---Petitioners who were regular students of B.Ed and M.Ed. had alleged that university through its press release had demanded examination fee along with admission forms for annual examination, whereas government vide notification had remitted fee of the students residing in Earthquake hit Districts; and that said notification was adopted by the university---Petitioners had alleged that said action of the university was violative of the government notification---High Court directed the Controller Examination of the University to receive admission forms of petitioners without any fee, however their result would not be released till the decision of writ petition---Examination of petitioner was conducted, but result was not announced---Petitioners who were already affected by earthquake, were not well off and had lost the lives of their relatives in the tragedy and it was not proper to give petitioners more mental torture---Version of the university that it would suffer financial loss in case of acceptance of writ petition, was repelled---University had to release result of petitioners because university had already received financial grant from the government---University was prohibited to take admission fee from the petitioners and were further directed to announce the result of petitioners, accordingly.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ of mandamus---Writ of prohibition---Issuance of---Scope---Writ of mandamus and writ of prohibition, were two independent writs to be issued under different circumstances---Writ of prohibition was limited to prevention of exercise of jurisdiction by a body performing judicial or quasi judicial functions and had nothing to do with executive acts, which could be controlled by the writ of mandamus---Writ of prohibition available under sub-clause (1) of clause (A) of S.44(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 lay before completion of an illegal act.

Tanveer Hussain for Petitioners.

Farooq Hussain Kashmiri for non-petitioners Nos.3 to 5.

Asghar Ali Malik for non-petitioners Nos. 1 and 2.

2007 C L C 1229

[High Court (AJ&K)]

Before Rafiullah Sultani, J

GHULLAB BUTT and 2 others----Petitioners

Versus

Mir ABDUL GHANI----Respondent

Civil Revision No.9 of 2007, decided on 27th April, 2007.

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

----S. 54---Civil Procedure Code (V of 1908), Ss.9, 115, O.VII, Rr.7 & 11---Suit for permanent injunction---Rejection of plaint---Jurisdiction of Civil Court---Plaintiff instituted civil suit pertaining to new number Khasra Shamlat Deh seeking .perpetual injunction against defendants---Trial Court having decided relevant issues against defendants, they had filed revision against its judgment---Contention of defendants was that suit was not maintainable in the eyes of law and was liable to be rejected under O.VII, Rr.11, C.P.C.; that plaintiff had no cause of action; that agreement to sell would not convey title to plaintiff who had no locus standi and that property being common land (Shamilat Deh), decree of permanent injunction could not be granted in favour of plaintiff---Validity---Suit was not a declaratory suit, but was for perpetual injunction---Revenue record had clearly shown the possession of plaintiff on land in dispute---Irrespective of question of ownership fact remained that plaint had clearly shown that suit land was prima facie in possession of plaintiff---To ascertain the cause of action in the plaint, the court must apply its mind to the averments made in the plaint to ascertain as to whether presuming averments made in the plaint to be true, plaintiff was entitled to any relief---If the court would come to the conclusion that prima facie plaintiff could get relief claimed, plaint could not be rejected for non-disclosure of cause of action.

2006 SCR 183; 2005 SCR 156; 1997 SCR 57 and Hameedullah v. Muhammad Hussain 2006 SCR 18 rel.

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

----O. VII, R. 7---Prayer in the plaint---Court, under O.VII, R.7, C.P.C., could mould the prayer made in the plaint and grant proper relief in the circumstance given in the case---If plaintiff had asked for a larger relief, but the Court came to the conclusion that he was entitled to a lesser relief, suit could not be dismissed, but the relief to which plaintiff was entitled must be granted.

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

----S. 9---Jurisdiction of civil court---Question of jurisdiction was to be decided on the basis of the averments of the plaint and not on the basis of any defence which had been set up in the written statement---To resolve controversy, whether in a particular case, jurisdiction of civil court had been ousted or not, decision would depend upon the contents of the plaint and wording of the ouster clause---Question of ouster of jurisdiction by necessary implication was to be decided in the case according to the words used in special provision of the statute.

(d) Azad Kashmir Grant of Khalsa Waste Land Shamilat Deh Act, 1966---

----S. 9---Civil Procedure Code (V of 1908), S.9---Jurisdiction of civil court---Ouster---Jurisdiction of civil court had been ousted in respect of all those matters upon which Revenue Officer or Government had competency to lay their hands---Civil court would not take cognizance of those matters in which Government or Revenue Officer could exercise their power vested in them by or under grant of Azad Jammu and Kashmir Khalsa Waste Land Shamilat Deh Act, 1966---Section 9 of Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat Deh Act, 1966 did not debar a private party to institute a suit against a private party---Such suit was maintainable in the eye of law---No illegality having been found in the impugned order of the Trial Court whereby relevant legal issues were decided in favour of respondents, Trial Court would proceed with the suit, in accordance with law.

Kh. Muhammad Aslam Habib for Petitioners.

Mir Tanveer Hussain for Non-petitioner.

2007 C L C 1693

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan Actg. C.J. and Ghulam Mustafa Mughal, J

BAQA MUHAMMAD KHAN----Appellant

Versus

Kh. ZAFFAR IQBAL----Respondent

Civil Appeal No.8 of 2002, decided on 16th July 2007.

Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

----Ss. 6, 14, 20-A, 21 & 21-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.56---General Clauses Act (X of 1897), S.6--- Suit for pre-emption---Superior right of pre­emption---Improvement in status of vendee---Pre-emptor had filed suit claiming that he being a co-sharer in the suit-land, had preferential right of purchase in respect of suit-land---Vendee during pendency of suit, had become a co-sharer in the suit-land on the basis of a compromise decree in respect of some other piece of land, which was a part of the same Khewat---Trial Court, after necessary proceedings, found that vendee having improved his status; pre-emptor was not entitled to any decree and dismissed the suit---Appellate Court granted decree of possession in favour of pre-emptor, holding that after amendment in the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 B.K. in the shape of S.20-A, improvement in the status of vendee after the institution of the suit was not permissible---Said judgment of Appellate Court was maintained by the High Court---Legislature had enacted provisions of S.20-A, in Right of Prior Purchase Act, 1993 B.K. to protect the right of pre-emption of pre-emptor which was a statutory right and the courts were duty bound to give full effect to the wisdom of Legislature, especially to those laws which had been enacted for carrying out supremacy of Shariah---Pre-emptor obtained decree on date when S.20-A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 B.K., was already in the field when vendee improved his status---Only those rights of vendee could be protected which had become his property in shape of decree or otherwise before promulgation of law in which S.20-A was firstly added.

Sardar Muhammad Suleman Khan for Appellant.

Kh. Ghulam Mohi-ud-Din for Respondent.

2007 C L C 64

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. ZOHRA BAI MERCHANT through L.Rs. and others----Plaintiffs

Versus

Mst. FATIMA KHANUM and 3 others----Respondents

Suit No.209 of 2000, decided on 5th August, 2006.

(a) Islamic law---

----Inheritance---Sunni Law---Widow of an issueless deceased---Entitlement---Such widow would not inherit whole property left by deceased, rather her share would be only 1/4th, while remaining would go to brothers and sisters of deceased, if any.

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

----Ss. 54 & 55(3)---Oral sale---Non-production of any evidence regarding alleged transaction except oral assertion by successor of alleged purchaser---Mere possession of property and its title documents by purchaser would not be proof of sale nor would same confer any title upon purchaser or his successor.

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

---Ss. 186 & 188---Specific Relief Act (I of 1877), S.39---General Power of Attorney---Principal not exclusive owner of property authorizing agent to sell whole property---Validity---Such Power of Attorney being in excess of principal's authority would have no legal effect---Sale-deed, if any, executed by attorney on basis of such Power of Attorney in favour of purchaser would be without lawful authority and liable to be cancelled for same being of no legal effect---Principles.

M.A. Khan for Plaintiffs.

Bilal A. Khawaja for Defendants Nos.1 to 3.

Muhammad Qassim Mirjat, Asstt. A.-G. Sindh for Respondent No.4.

Dates of hearing: 29th March, 9th May and 18th May, 2006.

2007 C L C 92

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. NASIRA ANSARI and 2 others----Plaintiffs

Versus

Mst. TAHIRA BEGUM and 6 others----Defendants

Suit No.739 of 1993, decided on 5th August, 2006.

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

----Art. 120---Suit for declaration by legal heirs that deceased was real owner of property and widow was his Benamidar, thus, transfer of property by widow was illegal---Limitation---Right to sue would accrue to plaintiff on the day when he came to know about transfer of property by widow---Suit filed within period allowed by law was not barred by Limitation Act, 1908.

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

----Art. 120---Words "right to sue" as used in Art.120 of Limitation Act, 1908---Meaning---Such words would mean right to seek relief i.e. right to prosecute by law and obtain relief by means of legal proceedings.

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

----S. 11---Res judicata, principle of---Applicability---Such principle would be applicable when matter in controversy was earlier adjudicated upon and finally decided between parties---Principles.

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

---Art. 114---Estoppel by conduct, plea of---Validity---Party without pleading and proving facts in support of such plea could not seek protection under Art.114 of Qanun-e-Shahadat, 1984.

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

----S. 70---Notice in suit---Plaint not mentioning service of notice upon defendant-society---Effect---Suit would not be maintainable against such defendant for want of notice.

(f) Benami transaction---

----Admission of wife that her husband was a man of resources and had acquired property in dispute in her name; that she with his funds constructed same, which her husband desired to gift to his sons---Validity---Such admission was sufficient to establish that wife was only Benamidar and husband was real owner of property.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Aminuddin Ansari for Plaintiffs.

Shahenshah Hussain for Defendants Nos.1 and 3.

S. Faiq Hussain Rizvi for Defendant No.2.

S.H. Kizilbash for Defendant No.4.

Nemo for Defendant No.5.

2007 C L C 148

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

Ch. FAZAL MUHAMMAD through L.Rs.----Appellants

Versus

PAKISTAN through Secretary Ministry of Defence and others----Respondents

High Court Appeal No.138 of 2005, decided on 26th September, 2006.

(a) Arbitration Act (X of 1940)---

---Ss. 17, 39 & 41---Civil Procedure Code (V of 1908), S.12(2)---Making award rule of Court---Application under S.12(2), C.P.C. for setting aside such judgment on plea of fraud, misrepresentation or want of jurisdiction---Maintainability---Scope and object of S.12(2), C.P.C.---Object of insertion of S.12(2) in C.P.C., was to save parties from bringing a separate suit by providing an expeditious mode of moving such application---Object to get matter resolved through arbitration was expeditious disposal of controversy---Relegating aggrieved party in such matter to resort to cumbersome remedy of filing separate suit would defeat this very object---Every Court having inherent jurisdiction to recall or review its own order obtained by fraud or misrepresentation or passed without jurisdiction---Provisions of Arbitration Act, 1940 not prohibiting Court from dealing with such cases---Such application against decrees arising in arbitration proceedings would be maintainable--Principles.

When an order, judgment or decree is obtained by fraud, misrepresentation or such order, judgment or decree is passed by a Court having no jurisdiction, any person aggrieved by it has inherent right to challenge it and get it cancelled as an aggrieved person cannot be left without any remedy. Prior to the insertion of section 12(2) in the Civil Procedure Code, such remedy was resorted to by filing a separate suit. After the incorporation of section 12(2) in Civil Procedure Code, no other recourse was left with an aggrieved person, but to make an application under section 12(2), C.P.C., to the Court, which passed the final order. The object of bringing about such a procedural change was to save the parties from the ordeal of a regular trial of a suit, which took years to be decided. In order to decide such controversies with necessary dispatch, the expeditious mode of moving application under section 12(2), C.P.C., was adopted. When one of the objects to get the matter resolved through arbitration is expeditious disposal of the controversy, then in such matters relegating an aggrieved person to resort to the cumbersome remedy of filing a separate suit, would defeat this very object. One other purpose to incorporate section 12(2), C.P.C., was to prevent multiplicity of proceedings.

A plain reading of section 17 of the Arbitration Act, 1940 also indicates that the order making an award rule of the Court is to be treated as judgment, which is then followed by a decree. The judgment and decree passed in arbitration suit, thus, become judgment and decree passed by a Civil Court. Section 41 of the Arbitration Act, 1940 provides that the provisions of the Code of Civil procedure shall apply to all proceedings before the Court, and to all appeals subject to the provisions of Arbitration Act, 1940. Therefore; except for the situations envisaged under the provisions of the Arbitration Act, the Code of Civil Procedure is applicable to arbitration proceedings. When none of the provisions of the Arbitration Act prohibits the Court from dealing with cases where validity of an order, judgment or decree is challenged on the ground of fraud, misrepresentation and want of jurisdiction, then there remains no justification not to apply the provisions of section 12(2), C.P.C., in arbitration suits. If the argument with regard to the maintainability of application under section 12(2), C.P.C., in arbitration

matters is accepted, then it would defeat the very object of the law and would relegate an aggrieved person to the cumbersome procedure of filing separate suit.

?

Section 12(2), C.P.C., was incorporated in recognition of the principle that every Court or Tribunal must have inherent jurisdiction to recall or review its own order, which has been obtained by fraud or misrepresentation or was obtained when the Court or Tribunal did not possess the jurisdiction to decide a matter. Section 12(2), C.P.C., thus, empowers the Court to invalidate its own orders, judgments or decrees, which have been obtained by playing fraud, misrepresentation or the Court did not possess jurisdiction to decide the matter in the first place. Even in cases in which Civil Procedure Code is not applicable, the principles laid down in section 12(2), C.P.C., are applied by Courts and Tribunals such as in constitution petitions and rent cases etc. Therefore, the provisions of section 12(2) can be made applicable to decrees arising in arbitration matters.

(b) Arbitration Act (X of 1940)---

----S. 17---Civil Procedure Code (V of 1908), S.12(2)---Judgment making award rule of Court---Application under S.12(2), C.P.C., for setting aside such judgment on ground of fraud, misrepresentation or want of jurisdiction --Court finding such judgment to be obtained on any such ground---Effect---Duty of Court in such circumstances would be to set aside such judgment, but not the award---Setting aside of award in such circumstances not warranted in law---Court after setting aside such judgment, would again hear objections to award and then decide whether to remit, set aside or make award rule of Court.

(c) Arbitration Act (X of 1940)---

---Ss. 14(2)(3) & 17---Civil Procedure Code (V of 1908), S.12(2)---Filing of award in Court by Arbitrator---Non-service of respondent on its wrongly described address---Non-issuance of notice to respondent on its proper address---Judgment making award rule of Court---Application under S12(2), C.P.C., by respondent for setting aside such judgment on ground of fraud and misrepresentation---Such judgment was set aside in circumstances.

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

----S. 12(2)---Object and scope of S.12(2), C.P.C.

Kamal Azfar and Zahid Hamid for Appellants.

Ashraf Ali Butt for Respondent No.1, Mustafa Lakhani for Respondent No.3 and Asghar Farooqui, Standing Counsel.

Date of hearing: 7th September, 2006.

2007 C L C 157

[Karachi]

Before Mushir Alam and Muhammad Akhtar Saeed, JJ

R.B. AVARI & CO. (PVT.) LTD. through Director----Petitioner

Versus

FEDERATION OF PAKISTAN through Director-General Ministry of

Food, Agriculture and Livestock and another----Respondents

Constitution Petition No.D-581 and Miscellaneous Nos.2214 and 2215 of 2006, decided on 22nd June, 2006.

(a) Agricultural Pesticides Rules, 1973---

----R. 9-A(5) & Form 17---Pesticides, import of---Import permission certificate, renewal of---Condition precedent---Certificate of registration of pesticides in country of origin would be condition precedent for its import, registration and renewal---Renewal of `Import Permission Certificate' could not be claimed on basis of fake certificate of origin---Potency and effectiveness of pesticides, if not established in country of origin, then such pesticides would be spurious and could not be allowed to be imported, which if imported would either be re-exported or destroyed---Principles.

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

----Art. 199---Constitutional petition---Petitioner having approached High Court with unclean hands or procured favourable order from regulatory authority by using fake documents---Effect---Constitutional jurisdiction of High Court being discretionary, High Court declined discretionary relief to cost petitioner and dismissed petition with costs throughout.

Aziz A. Shaikh for Petitioner.

S. Tariq Ali, Federal Counsel for the Federation of Pakistan.

Raja M. Iqbal for Respondent No.2.

2007 C L C 163

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

MUHAMMAD YOUSAF through L.Rs. and others----Appellants

Versus

UME AIMAN and 45 others----Respondents

H.C.A. No.259 of 2001 and C.M.A. No.6251 of 1991 in Suit No.300 of 1988, decided on 28th February, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---Mainly averments made in plaint would be taken into consideration.

Naveedul Haque for Appellants.

Muhammad Ali Hakro for Respondents.

2007 C L C 230

[Karachi]

Before Mushir Alam and Syed Zawwar Hussain Jaffery, JJ

Messrs TAJ LINES TRANSPORT through Managing Partner----Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through D.C.O./Nazim and another----Respondents

Constitutional Petition No.D-2075 of 2006, decided on 8th November, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioners who imported Buses for long route under Urban Transport Scheme, had stated that a portion of the amount was to be paid by District Government under the Scheme, but same had not been paid and Bank was taking over and seizing the vehicles to the prejudice of petitioners for no fault on their part---Notice was directed to be issued by the High Court to the District Government and the Bank and matter to come along with bunch of petitions on the same date before the same bench---Till then no coercive action was to be taken against petitioners, however, subject to deposit of their respective share of instalment due with the Nazir of High Court within specified time.

Saalim Salam Ansari and Rana Azeem for Petitioner.

2007 C L C 239

[Karachi]

Before Munib Ahmed Khan, J

MUHAMMAD RAFIQ---Applicant

Versus

PAK-GULF LEASING COMPANY LIMITED through Chief Executive Officer and another----Respondents

Revision Application No.18 of 2006, decided on 4th October, 2006.

Defamation Ordinance (LVI of 2002)---

----S. 13--Civil Procedure Code (V of 1908), S.115 & O.VII, R.10---Suit for recovery of damages on account of defamation---Return of plaint by Additional District Judge on the ground that issue pertained to jurisdiction of Banking Court---Petitioner had contended that District Judge had exclusive jurisdiction under S.13 of Defamation Ordinance, 2002 and that plaint had wrongly been returned---Validity---Petitioner was a guarantor in a finance granted to borrower and being a guarantor, leasing company was entitled to issue a notice for recovery and demand and that notice could not be construed to have caused defamation---Order returning plaint passed by Additional District Judge, seemed to be proper.

Arshad Jamal Siddique for Applicant.

Amir Mansoor Qureshi for Respondent No.1.

2007 C L C 242

[Karachi]

Before Faisal Arab, J

MUHAMMAD AZEEM and another----Petitioners

Versus

DHANI BUX and others----Respondents

Constitution Petition No.D-93 of 1998, decided on 5th April, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199---Suit for declaration and injunction---Setting aside ex parte decree allegedly based on fraud and misrepresentation---Plaintiff on basis of ex parte decree passed in his favour, sought mutation of disputed land in his name---Defendants who claimed that they were the real owners of 112 acres out of 211 acres of disputed land, by filing application under S.12(2), C.P.C. sought setting aside of ex parte decree passed in favour of plaintiff on the ground that they had purchased 112 acres of land from the person to whom land was transferred under Evacuee Laws---Defendants, in their application had alleged that plaintiff obtained judgment and decree behind their back without impleading them as party to the suit---Trial Court allowed application of defendants filed under S.12(2), C.P.C. and set aside ex parte decree, but Appellate Court below set aside order passed by the Trial Court and restored ex parte judgment and decree---Defendants had filed constitutional' petition against judgment of the, Appellate Court below---Admitted position was that 112 acres of disputed land stood in the names of defendants at the time of passing ex parte decree---Plaintiff had himself pleaded in plaint that Federal Government was the owner of land---Impugned judgment, in circumstances was set aside and order of the Trial Court passed on applications of defendants filed under S.12(2), C.P.C., was restored, with further directions that plaintiff would file amended plaint impleading the defendants, etc.

Abdul Hamid Blverger for Petitioners.

Abdul Hameed for Respondents.

Date of hearing: 5th April, 2006.

2007 C L C 255

[Karachi]

Before Nadeem Azhar Siddiqui, J

ABDUL RAQEEB and 9 others----Petitioners

Versus

1ST RENT CONTROLLER/1ST SENIOR CIVIL JUDGE, SUKKUR and 5 others----Respondents

Constitution Petition No.S-728 of 2006, decided on 20th October, 2006.

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

----S. 10---Stay of proceedings---Proceedings could be stayed if the matters in issue in both the suits directly and substantially were the same; previously instituted suit must be pending before a competent Court and the Court was competent to grant relief; both the suits must be between the same parties or their representatives and the parties were litigating in both the suits under the same title.

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

----Ss. 10 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stay of proceedings---Res judicata, principle of---Applicability---Petitioners had challenged order passed by the Rent Controller by which he had stayed further proceedings of ejectment application---Application was stayed on the basis of pendency of civil revision before the High Court---Rent Controller had not discussed the grounds on the basis of which proceedings were stayed---Facts of ejectment application and civil revision, were not directly and substantially the same---Section 10, C.P.C. provided stay of proceedings in a subsequently instituted suit in the presence of earlier suit---Ejectment application could not be stayed on the strength of pending suit---Ejectment application was prior in time and civil revision was subsequent in time---Section 10, C.P.C. would apply when two suits were pending and the matter in both suits was same---After stay of proceedings in the subsequent suit, decision given in the previously instituted suit would operate as res judicata by virtue of S.11, C.P.C.

Mukesh Kumar G. Karara for Petitioners.

Shaikh Abdul Rehman for Respondents Nos.2 to 5.

2007 C L C 269

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

PAKISTAN RAILWAY EMPLOYEES COOPERATIVE HOUSING SOCIETY LIMITED ----Petitioner

Versus

PROVINCE OF SINDH through Secretary and 21 others----Respondents

C.Ps. Nos.D-301, D-302, D-303 and D-355 of 2001, decided on 16th November, 2006.

Cooperative Societies Act (VII of 1925)---

----S. 71---Cooperative Societies Rules, 1927, R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amendment in Rules---Assailing notification of amendment in constitutional petition---Petitioner, Cooperative Society registered under Cooperative Societies Act, 1925, had assailed notification whereby amendment was made in Cooperative Societies Rules, 1927---Common grievance of petitioner was that by way of insertion of Clauses (aa)(i) to (vii) in R.4 to Cooperative Societies Rules, 1927 in terms of said notification, much complication had been created for it; that said notification spoke volume about its unreasonableness, lack of wisdom and malice---Validity---Impugned notification had been issued by the authorities in good faith and in the interest of public at large to ensure that corrupt practices prevailing in the affairs of the Cooperative Society, could be checked properly at the level of government and that the affairs of the Cooperative Societies were properly controlled for that purpose---For issuing impugned notification under S.71 of Cooperative Societies Act, 1925, Provincial Government was duly authorized---No illegality, in circumstances, was committed by authorities in the exercise of such powers---Material available on record had shown that for issuance of impugned notification proper procedure was followed by Provincial Government by inviting objection in the first instance, before issuance of the notification---Allegations of petitioner having been decided by the authorities, presumption of correctness was attached to the official acts of the government functionaries.

I.H. Zaidi and Aamir Aziz Khan for Petitioners.

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

Date of hearing: 14th November, 2006.

2007 C L C 288

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KABIR AHMED----Applicant

Versus

SAUDABAD TRUST through Administrator Deputy Commissioner Office, Karachi----Respondent

Civil Revision No.187 of 2002, decided on 31st October, 2006.

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

---Ss. 42 & 54---Suit for declaration and permanent injunction---Claim of plaintiff was that Administrator, Municipal Committee had issued allotment order in respect of house in question and rent was deducted from his salary---Plaintiff had averred that defendant could not ask plaintiff to vacate said house as plaintiff had acquired substantial tenancy rights under letter issued by Administrator--Trial Court decreed suit filed by plaintiff, but Appellate Court set aside said judgment and decree---Validity---Administrator Municipal Committee, had no right in law to issue any allotment order or even licensee in respect of property admittedly owned by the Trust---Plaintiff had never applied for any allotment of suit house, but had merely sought permission to occupy the same, which was granted by the Administrator---Letter of permission had clearly stated that plaintiff would be liable to vacate suit house on his transfer, promotion, dismissal, retirement or at any time Authority would require him to vacate same without issuance of any notice--Since plaintiff had approached the Court for declaration and injunction alleging himself as allotted of the house in question, onus was on plaintiff to establish that he had certain right in law which should be protected by the Court---If a person had no right in law, he could not approach the Court seeking protection---Appellate Court below, had rightly set aside judgment and decree of the Trial Court---Impugned judgment of Appellate Court below based on record and facts of the case, was not open to any exception, especially when no illegality or material irregularity causing miscarriage of justice, had been pointed out.

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

----O. VIII, R.10---Specific Relief Act (I of 1877), Ss.42 & 54---Failure to file written statement by defendant---Effect---Even if defendant had not filed written statement and had not cross-examined the witnesses produced by the plaintiff and had not produced any defence witnesses and suit proceeded ex parte; he had the right to contest the suit; and take plea that on basis of evidence produced by the plaintiff himself, the suit was liable to be dismissed---Every ex parte proceedings, would only exclude defendant from producing evidence, but it would not confer a right on plaintiff ipso facto, in cases where plaintiff had failed to establish right alleged in the suit---Every ex parte suit was not to be decreed as a matter of course because the burden would still be on the plaintiff to establish that he was entitled to the relief sought by him---Every party had to stand on his own strength and legs and not on the weakness of the other side.

S. Zahir Hussain Chishti for Applicant.

Fariduddin for Respondent.

Date of hearing: 31st October, 2006.

2007 CLC 315

[Karachi]

Before Mushir Alam, J

MUHAMMAD HANIF through Attorney and others----Plaintiffs

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Executive and another----Defendants

C.M.As. Nos.6200 and 6201 of 2003 in Civil Suit No.1188 of 2003, C.M.A. No.6207 of 2003 in Suit No.1190 of 2003, C.MAs. Nos.6242 and 6243 of 2003 in Suit No.1193 of 2003; C.M.A. No.6245 of 2003 in Suit No.1195 of 2003; C.M.A. No.6256 of 2003 in Suit No.1198 of 2003 and C.M.A. No.6274 of 2003 in Suit No.1203 of 2003, decided on 19th August, 2004.

(a) Interpretation of statutes---

----Provision in a statute, whether mandatory or directory---Tests for determination---Use of words "may" and "shall" in an enactment---Significance---In order to determine whether a particular provision in the statute was mandatory or directory, various tests were employed---Each statute had its own complexion, which could be determined by examining the intent, purpose and object for which it was enacted, and the mischief it intended to suppress---Where a statutory provision was couched in a negative tone, it was generally construed to be mandatory---Enactment could create or recognize a right, impose an obligation, cast a duty, provide a mechanism, Manner and/or consequences to claim, observe, perform the same---Though not always, but at times language employed could also assist so as to determine the nature of an enactment or provision in a statute---Use of "may" and "shall" in a statute had often been debated in court, to call real intent of the law maker, both the terms, at times, were used interchangeably---Where. "may" was used in a provision, it was generally taken to be an expression of permissive tone and enwrap certain degree of discretion as against "shall", which expression was generally used where some persuasive force was intended, it carried some degree of imperative character---Another litmus test was the provision of consequences in case of breach thereof---In case consequences were provided, provision was generally construed to be mandatory, otherwise conceived as directory---Where a statute was enforced to cheek and curb a mischief and advance some public good then interpretation that suppressed the mischief and advanced the cause and objective of the Statute, should be adopted.

Muhammad Saleem and 5 others v. Administrator, Karachi Metropolitan Corporation, K.B.C.A. (K.M.C.), Karachi and 2 others 2000 SCMR 1748 ref.

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

----Preamble, Ss.3(3) & 6(2)---Intent and purpose of Sindh Buildings ''Control Ordinance, 1979---Provisions of Sindh Buildings Control Ordinance, 1979 not directory---Sindh Buildings Control Ordinance, 1979, appeared to have been promulgated to regulate the planning, construction, control and demolition of buildings and disposal of buildings and plots in the Province of Sindh---Ordinance tends to curb the practice of growing tendency of unauthorized, illegal, haphazard and mushroom constructions that had converted once the city into a jungle of reckless concrete structures---Ordinance tended to cultivate environment friendly, orderly and planned construction of buildings, meeting present day requirement ensuring provision for basic amenities, services and facilities for general good and healthy living---Sindh Buildings Control Ordinance, 1979 on the one hand provides guidance and binds down the builders/developers to raise construction strictly in accordance with approved building plans and Town Plan Regulations, on the other hand it imposes an obligation on prospective buyer to obtain occupancy certificate and see that Authority had given permission to sell in writing before acquiring and occupying any building; further that the unit that was being acquired in fact, was constructed for the purpose, it was sold---Ordinance also imposes a duty on the Authority to see and enforce strict compliance of the Ordinance and, Regulations framed thereunder, through various remedial and penal provisions---If the provisions of subsection (2) of S.6 of Sindh Buildings Control Ordinance, 1979 were held to be merely directory, then it would mean that mischief which was intended to be checked, suppressed and remedied by promulgation of the Ordinance, would not be attained---Interpretation that would defeat the very object and purpose of Sindh Buildings Control Ordinance, 1979 for which it was promulgated, was to be avoided.

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

----S. 3(3)---Acquiring property in a building---Constructing building in violation of approved plan---Where law provided manner as to how an individual was to act while acquiring property in a building, then it would impose an obligation to act accordingly to claim any benefit or right; it was only when one would perform his part of obligation imposed by law, a right was created capable of enforcement---If a thing was required to be done in a particular manner, it had to be done in that very manner alone or not at all---All persons were obligated to obey law, no person could be allowed to act in a manner not provided under the law---If any person acted in breach thereof in a manner to circumvent or bypass an obligation, then he could not claim any right on which the foundation rested on violation, breach or disobedience of law.

Muhammad Aslam Gatta v. K.B.C.A. 1998 MLD 544; Asma Builders v. Government of Sindh 1999 CLC 326; Muhammad Saleem v. Administrator K.M.C. 1998 CLC 952; Jamil Ahmed v. K.B.C.A. 2001 MLD 1635 and Muhammad Saleem and 5 others v. Administrator, Karachi Metropolitan Corporation, K.B.C.A. (K.M.C.), Karachi and 2 others 2000 SCMR 1748 ref.

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

----S. 3(3)---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Acquiring property in a building---Construction of said building in violation of approved plan---Suit for declaration and permanent injunction---Application for ad interim restraining orders---No prima facie case had been made out, neither balance of inconvenience leaned in favour of plaintiff' nor irreparable loss would be caused to him---If so advised, plaintiff could claim refund and damages from builder--Applications for grant of interim relief, were dismissed.

Shehanshah Hussain and Rana Azeem for Plaintiffs.

Shahid Jamiluddin, Abdul Wajid Wyne and Mansur Ahmed for Defendant No.1.

Nemo for Defendant No.2.

2007 C L C 333

[Karachi]

Before Gulzar Ahmed, J

GOVERNMENT OF SINDH through Secretary, Public Works Department, Karachi and 2 others----Appellants

Versus

ABDUL GHAFOOR KHINCHI----Respondent

Ist Appeal No.25 of 2004, heard on 1st September, 2006.

Land Acquisition Act (I of 1894)---

----Ss. 6, 18, 23 & 54---Acquisition- of land---Determination of compensation---Reference to Referee Court---Respondent being dissatisfied with award made by Land Acquisition Officer, applied under S.18 of Land Acquisition Act, 1894 to Land Acquisition Officer for making reference to the Court, which application was rejected on the ground that it was badly time-barred---Land Acquisition Officer sent order of rejection to District Judge, which was treated as reference under S.18 of Land Acquisition Act, 1894 and was registered as such---Reference was to be made by the Collector and not by anyone else and that too on the application of interested person who had not accepted the Award---After rejecting application of respondent, no reference was made by Deputy District Officer to the Court nor was there any occasion to do so as reference applications had been rejected---Record had shown that order rejecting reference application had not been sent by Deputy District Officer to the Court, but respondent himself had filed said order before District Judge who had admitted same as a reference under S.18 of Land Acquisition Act, 1894, and took further proceedings in it---Order rejecting reference application being filed by respondent in the Court, could not be a reference under S.18 of Land Acquisition Act, 1894---Court, in circumstances had nothing before it to undertake determination---Law did not provide for making of repeated references in respect of one and the same matter. and the said exercise was altogether illegal---District Judge, in circumstances had no jurisdiction in the matter as no reference was made to it as required under S.18 of Land Acquisition Act, 1894---Impugned judgment, in circumstances was not maintainable in law.

Ghulam Muhammad v. Government of East Pakistan PLD 1967 SC 191; Col. Bashir Hussain v. Land Acquisition Collector, Lahore PLD 1970 Lah. 321; Haji Muhammad Yunus v. Land Acquisition Officer 2000 YLR 1185; A.K. Subramania Chettiar v. Collector of Coimbators AIR 1946 Mad. 184; The Collector, Mardan v. Ms. Taj Bibi PLD 1972 Pesh. 197; Province of Sindh v. Ramzan PLD 2004 SC 512; Gulzaman v. Collector, Land Acquisition PLD 1984 Pesh.. 35; Bashir Ahmed v. The Collector, Multan PLD 1962 W.P. Lah. 292; Mahadeo Krishrna Parkar v. Mamlatdar of Alibag AIR 1944 Bom. 200; Qamar-ul-Islam v. District, and Sessions Judge PLD 2005 Kar. 591; Land Acquisition Officer v. Gul Muhammad PLD 2005 SC 311; Government of West Pakistan v. Arbab Haji Ahmed Ali Jan PLD 1981 SC 516; Shakir Ali Jafferi v. Land Acquisition Officer, 1984 CLC 2353 and Government of Pakistan v. Mst. Asmatun Nisa PLD 1983 SC 109 rel.

Muhammad Humayoon Khan for Appellants.

Anwar A. Khan for Respondent.

Date of hearing: 1st September, 2006.

2007 C L C 394

[Karachi]

Before Nadeem Azhar Siddiqi, J

WAJID HUSSAIN FARUQUI----Plaintiff

Versus

SHAHIDA SHAHNAWAZ and another----Defendants

Suit No. Nil of 2006, decided on 26th June, 2006.

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

----Ss. 12 & 42---Suit for specific performance---Parties not at issue--Effect---Plaintiff asserted that he purchased a plot from the latter and executed a sale agreement, paying a certain amount as part payment towards sale consideration and that defendant was pressurizing him to make payment of balance sale consideration without obtaining original title documents from concerned authority---Defendant stated that he had provided the plaintiff all title documents and he was ready to execute sale deed and to hand over possession of suit plot subject to payment of balance sale consideration---Validity---Parties were not at issue and no purpose was to be served by keeping the suit pending---Suit was decreed subject to deposit of balance sale consideration by plaintiff within four weeks from the date of order and in case of plaintiff's failure to deposit the said amount his suit was to be dismissed---Suit was decreed accordingly.

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

----Ss. 16, 17, 20 & 120---Letters Patent (Lahore), 1919, Cl.12---High Court of West Pakistan (Establishment) Order (XIX of 1955), S.5---Sindh Courts Act (VII of 1926), S.8---Civil suit---Original civil jurisdiction of High Court---Scope---Section 16, C.P.C. regulated the territorial jurisdiction of civil courts, however, S.120, C.P.C. provided that Ss.16, 17 and 20, C.P.C. were not to apply to High Court in exercise of its original civil jurisdiction---Sections 16, 17 and 20, C.P.C. were not applicable to High Court in exercise of its original civil jurisdiction and High Court could entertain all suits where cause of action had arisen within local limits of its jurisdiction---Sections 16, 17 & 20, C.P.C. and clause 12 of Letters Patent (Lahore), 1919 prescribed the forum and place for suing but said sections did not apply to High Court---Section 5 of High Court of West Pakistan (Establishment) Order, 1955 and S.8 of 1926 did not prescribe the place of suing---Section 5 of High Court of West Pakistan (Establishment) Order, 1955, only saved jurisdiction of Karachi Bench of High Court of West Pakistan as exercised by it under S.8 of Sindh Courts Act, 1926---Effect of S.120, C.P.C. was to enlarge jurisdiction instead of its curtailment---Jurisdiction in the present matter could not be questioned merely on ground that Ss.16, 17 & 20, C.P.C. were not applicable---Accrual of cause of action, even partly, gave jurisdiction to the High Court to proceed with the present suit.

Messrs Sh. Muhammad Amin & Co. v. The Provincial Industrial Development Corporation 1991 CLC 684; Abdul Majid and another v. Government of Pakistan through Secretary, Ministry of Health and 7 others 1988 CLC 2451 and West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Limited PLD 1964 (W.P.) Kar. 11 rel.

Arshad Tayabally for Plaintiff.

Mansoor Ahmed Shaikh for Defendants.

2007 C L C 427

[Karachi]

Before Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J

MUHAMMAD YOUSUF and others----Appellants

Versus

BADRUDDIN AHMED and others----Respondents

High Court Appeal No.30 of 1982, decided on 15th December, 2006.

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

----Ss. 12 & 35---Limitation Act (IX of 1908), Art.113---Contract Act (IX of 1872), Ss.55, 63 & 66---High Court appeal---Delay in filing suit for specific performance of agreement to sell---Question of lathes---Expiry of period fixed in agreement to sell---Increase in value of property---Effect---Plaintiff was ready and willing to perform his part of obligation under the agreement and had sent letters and telegrams to attorney of predecessors of defendants which were not replied by the latter rather predecessor of one of the defendants had promised to convey the said property in favour of plaintiff---Contention of defendants that plaintiff remained silent for about one and half year and, therefore, he was not entitled to an equitable relief of specific performance was without force as a party could not be non-suited for mere laches when period of limitation was yet to expire---Question of laches could not be permitted to be prevailed as plaintiff had resorted to put predecessors of defendants on reasonable notice to complete the transaction in terms of agreement---Conduct of parties revealed that plaintiff was anxious to complete the transaction but respondents avoided and neglected to perform their part of contract with a view to frustrate the contract on account of escalation of prices of immovable properties in the year 1970---Intention of parties could be gathered from terms and conditions of agreement and facts and circumstances of the case---Specific performance of an agreement of sale relating to an immovable property could be granted even after expiry of period fixed in agreement---Delay alone in filing suit for specific performance did not defeat claim unless barred by Art.113 of Limitation Act, 1908, whereby a suit for specific performance could be filed within three years from date fixed in the agreement---Predecessors of defendants, during the said span of period, remained silent and presumed that plaintiff was not interested but they did not revoke the agreement orally or in writing, therefore, there was no justification on the part of predecessors of defendants to refuse specific performance of agreement---Objective assessment of evidence on record revealed that predecessors of defendants had all along been avoiding to complete transaction on account of tremendous increase in prices of properties---Alternative remedy available to defendants in terms of S.35 of Specific Relief Act, 1877, was to rescind an agreement and under S.63 of Contract Act, 1872, promisee might dispense with or remit, wholly or in part, with performance of contract or extend the time for such performance and S.66 of Contract Act, 1872 provided for communication or revocation of a proposal---Predecessors of defendants had retained earnest money which also supported the existence of contract which factum had not been disputed by defendants---Question pertaining to consideration tantamount to be reasonable was to be viewed with reference to price prevailing at the time of completion of agreement and not in the context of prices prevalent at the time of decision of suit---Simple increase in value of said property could not be a ground for refusal of specific performance of agreement as the subject was to be viewed with prices prevalent at the time when parties entered into the said agreement---Judgment passed by single Judge was set aside---High Court appeal was allowed and suit was decreed.

Karachi Port Trustees v. Ghulamali Habib PLD 1961 (W.P.) Kar. 623; Civil Petition No.K-185 of 1983 and High Court Appeal No.72 of 1988 rel.

Qadir Bukhsh v. Hakam AIR 1932 Lah. 503; Basheshar Nath and others v. Municipal Committee Moga AIR 1940 Lah. 69; Bindeshari Prasad v. Lekhraj Sahu and others AIR 1916 Pat. 284; Purvvada Venkata Subbayya v. Attar Sheikh Mastan AIR (36) 1949 Mad. 252; Nooruddin and others v. Mst. Amiran Bibi 1999 SCMR 2878; Mir Hashmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56; Muhammad Amin and others v. Mian Muhammad PLD 1970 BJ 5; Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Ghulam Nabi v. Muhammad Yaqub PLD 1983 SC 344; Adam Ali Agaria v. Asif Hussain 1996 MLD 322; Kaniz Fatima v. Muhammad Sohail 2003 CLC 923; Ashraf Hanif v. Najma Alavi 2001 CLC 1029 and Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 ref.

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

----Ss.17 & 23-Specific Relief Act (I of 1877), S.12---High Court appeal---Doctrine of pari delicto---Applicability---Contract opposed to public policy---Effect---Escalation of prices and specific performance of contract---Scope---Agreement, the consideration or object whereof was fraudulent, was void in terms of S.23 of Contract Act, 1872---Both the parties, in the present case, had chosen to enter into separate agreements in respect of same property and there could be no conceivable intent to deceive each other and ex facie no fraud could be inferred---Doctrine of pari delicto that when both parties were equally at fault, benefit was to go to defendant, could not be invoked in circumstances---Was not uncommon that parties to a transaction did execute more than one agreement, i.e. one reflecting the real consideration and the other a lower amount with the object of paying less taxes and registration charges than what would be actually due---Such charges, in the present case, were admittedly payable by defendant and as such this practice was apparently resorted to only to benefit the defendant---Plaintiff apparently only obliged defendant and, therefore, both parties could not even be treated as being in pari delicto---Contract opposed to public policy was also void and unenforceable---Concept of public policy was amorphous and single Judge was justified in holding that a contract intended to defraud collection of public revenues was opposed to public policy---Such principle, however, could be attracted only to the agreement showing sale consideration to Rs.75,000 but admittedly plaintiff had approached the court seeking enforcement of genuine agreement disclosing the admitted sale price of Rs.1,52,000 and such a genuine transaction could not be deemed opposed to public policy---Where a question of inadequacy of consideration was raised it was to be determined with reference to the date of contract and not in the light of subsequent events---Nothing was there to show that transaction was fraudulent or unconscionable at the time it was made, hence, contention as to tremendous escalation of prices of property could not be sustained.

Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170 rel.

(c) Fraud---

----Definition---Status of frauds was not a mere rule of evidence but was a declaration of public policy---Litigant where had attempted to use courts for fraudulent purpose and failed, public policy forbade prosecution of another suit involving same subject-matter and parties.

Words and Phrases, Vol. 35 (Proxy Public System) at P.476 and LE Furgey v. Beck 13 Sold 179, 182, 244 Ala. 281 ref.

Mushtaq A. Memon and Shahid Ali Ansari for Appellants.

Aziz A. Munshi for Respondent.

Dates of hearing: 26th May, 21st August, 6th and 27th November, 2006.

2007 C L C 462

[Karachi]

Before Nadeem Azhar Siddiqi, J

TRADING CORPORATION OF PAKISTAN (PVT.) LIMITED----Plaintiff

Versus

Messrs NIDERA HANDELSCOMPAGNIE B.V. MEENT 94, P.O. BOX 676, 3000 AR ROTTERDAM THE NETHERLANDS and another----Respondents

Suit No.588 of 1991, decided on 16th January, 2007.

(a) Arbitration Act (X of 1940)---

----Ss. 32 & 33---Civil Procedure Code (V of 1908), S.9---Scope and extent of application of Ss.32 & 33 of the Arbitration Act, 1940---Jurisdiction of civil court---Scope---Suit with the prayer to restrain the defendants from seeking remedy by way of arbitration and in alternate to declare that no binding contract had been concluded between the parties---Maintainability---Contentions of the plaintiff were that defendants having failed to submit an acceptable performance bond/bank guarantee, the plaintiff was within its right to recall the conditional acceptance communicated to defendants; that threatened arbitration proceedings by the defendants were wholly unauthorised as no final binding contract between the parties had come into existence; that the main agreement was challenged and was under attack wherein the arbitration clause was included and that agreement could not be challenged by way of an application under S.33 of the Arbitration Act, 1940 and that S.32 of the Arbitration Act, 1940 would not bar suit where existence, effect and validity of main contract was challenged wherein arbitration clause was also included----Validity---Section 9, C.P.C. does not bar a suit where the existence, effect or validity of a contract is questioned in which an arbitration clause is also incidentally included---Such a broad contract cannot, as a whole, be challenged under S.33, Arbitration Act, 1940 though the arbitration clause therein had been separately mentioned---Plaintiff, in the present case, having not challenged the contract as a whole the bar contained in S.32, Arbitration Act, 1940 would not come in its way and the suit for relief that no binding contract was concluded between the parties, was maintainable---Principles.

In the present case, the prayer clause shows that the plaintiff has challenged the entire contract which includes the arbitration clause also on the plea that no binding contract having been concluded between the parties. Section 32 of the Arbitration Act, 1940, bars suit contesting arbitration agreement. Section 32 of the said Act has a limited application and deals with the existence, effect or validity of arbitration agreement only. Sections 32 and 33 of the Arbitration Act, 1940 cannot be invoked to challenge the contract as a whole. The existence and validity of the contract as a whole cannot be challenged by pressing into service sections 32 and 33 of the Act. In the present suit independent relief challenging the contract as a whole has been claimed and this cannot be done by filing application under section 33 of the Act. The bar contained in section 32 of the Act can only be invoked where the remedy is available under section 33 of the Act. The civil court has jurisdiction to try all suits of civil nature unless expressly or impliedly barred. There is also a general presumption in law that civil court has jurisdiction over all matters of civil nature. Any law taking away the jurisdiction of civil court is to be strictly construed.

Section 9 of the Code of Civil Procedure does not bar a suit where the existence, effect or validity of a contract is questioned in which an arbitration clause is also incidentally included. Indeed, such a broad contract cannot, as a whole, be challenged under section 33 of the Arbitration Act, though the arbitration clause therein separately may be.

An independent relief which does not involve determination of the existence of arbitration agreement or an award or their effect, is not barred by section 32 of the Arbitration Act, 1940.

If the intention of the Legislature were that all documents containing an arbitration clause should come within the purview of sections 32 and 33, Arbitration Act, 1940 the Legislature would have said so in appropriate words. Sections 32 & 33, Arbitration Act, 1940 have a very limited application, namely, where the existence of validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, has a right to bring a suit which was of a civil nature and the court has jurisdiction to try all suits of civil nature under section 9 of the Civil Procedure Code that right has not been taken away by section 32 of the Arbitration Act, 1940. Such a right can only be taken away by express terms or by necessary implication. Section 32 of the Act does not have that effect.

Section 33 of the Arbitration Act, 1940 has nothing to- do with the other terms of the contract which the parties have signed.

Since the plaintiff', in the present case, has challenged the contract as a whole the bar contained in section 32 of the Arbitration Act, 1940 will not come in its way and the suit for the relief that no binding contract was concluded between the parties, is maintainable.

Messrs Awan Industries Ltd. v. The Executive Engineer Lined Channel Division and another 1992 SCMR 65; Hassan Ali & Co. Pvt. Ltd. v. Poly Cotton S.A. and others 1996 CLC 1812; Trading Corporation of Pakistan Pvt. Ltd. Karachi v. Messrs Nidera Handles Compagnie B.V. and another 2001 SCMR 646; Port Qasim Authority, Karachi v. Al-Ghurair Group of Companies and others PLD 1997 Kar. 636; Messrs Trading Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nidera Handles Compagnie B.V. and another 1998 CLC 1610; Hafiz Abdul Muqtadir and another v. Mst. Mumtaz Begum and others 1981 CLC 1271; Orient Transport Co. Gulabra and another v. Messrs Jaya Bharat Credit and investment Co. Ltd. and another 1988 PSC 997; Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43 and Shiva Jute Baling Limited v. Hindley and Company Limited AIR 1959 SC 1357 ref.

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

----S. 4---Binding contract---Contract is complete only upon acceptance of offer which acceptance should be absolute and unqualified; it is the communication of an offer and intimation of its acceptance which creates a contract---Evidence, in the present case, had established that for concluding the contract it was necessary that there should be a signed contract; the performance bond should be on the prescribed pro forma and the letter of credit was to be opened within two weeks after signing of the contract---Performance bond was not submitted in accordance with the pro forma attached with the relevant document, no formal agreement was signed and no letter of credit was established/opened---No concluded and binding agreement between the parties took place in circumstances.

Messrs Jamal Jute Baling & Co. v. Messrs M. Sarkies & Sons PLD 1971 SC 784 and Pakistan Steel Products v. Indus Steel Pipe Ltd. 1996 CLC 118 ref.

(c) Pleadings---

----Party cannot lead evidence which is not supported by pleadings---Party can prove a case which has been pleaded by it---No evidence can be led or looked into in support of a plea which has not been taken in the pleadings---Party is required to plead facts necessary to seek relief claimed and would be entitled to produce evidence to prove those pleas---Variation in pleading and proof is not permissible in law.

Binyameen and others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

Samiuddin Sami for Plaintiff.

S. Afsar Ali Abidi for Defendants.

Dates of hearing: 13th December, 2005, 18th and 31st May, 2006.

2007 C L C 483

[Karachi]

Before Faisal Arab, J

Syed IMTIAZ H. RIZVI----Plaintiff

Versus

ABDUL WAHAB and another----Respondents

Suit No.127 and C.M.A. No.6375 of 2004, decided on 15th January, 2007.

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

----O. II, R. 2, O.VII & R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration and damages---Filing of second suit---Splitting up claims---Rejection of plaint---Pending earlier suit, plaintiff filed another (present) suit wherein same cause of action was disclosed which was the basis of earlier suit, but reliefs sought in each of the two suits were different---Provisions of O.II, R.2, C.P.C., provided that plaintiff was not allowed to seek a relief in subsequent suit which he could have sought in the earlier suit---Commonality of cause of action in the subsequent suit would bar its maintainability and the fact that reliefs sought in both the suits were different, were of no legal consequence---Present suit being subsequent to earlier suit and based on same cause of action, was not maintainable under provisions of O.II, R.2, C.P.C.---Rule 2 of O.II, C.P.C. was devised to prevent a party from splitting up its claims and remedies arising out of same cause of action against same party---Where a plaintiff complained of breach of a contract, commitment or obligation, then several reliefs arising out of such breach, could not be allowed to be split up so as to seek remedy in more than one proceedings---Object was to prevent a plaintiff to initiate multiple proceedings against a defendant on the basis of same cause of action; and in case he had omitted to seek any relief in one proceedings, then he, in terms of O.II, R.2, C.P.C., was estopped from seeking the relief so omitted in subsequent proceedings---Bar under O.II, R.2, C.P.C. as well as the fact that reliefs sought in the suit were also barred by time, no useful purpose would be served to try the suit---Plaint was rejected under O.VII, R.11, C.P.C. in circumstances.

AIR 1933 Lah. 270; AIR 1940 Cal. 29; 1992 MLD 1196 and 2004 YLR 373 rel.

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

----Ss. 201 & 203---Specific Relief Act (I of 1877), S.42---Power of attorney---Revocation by principal---Scope---Suit for declaration---Plaintiff was only authorized to act as representative of defendant under power of attorney---Plaintiff, in circumstances was to act at the pleasure of defendant as his representative who deemed fit to revoke same at his own sweet-will---Attorney had no legal right to object to revocation of power-of-attorney or seek declaration that revocation was inconsequential in law, unless the attorney was conferred any proprietary interest in the property for which he was authorized to act---Such being not the case, with the revocation of attorney, plaintiff's authority to represent defendant and act on his behalf came to an end---Relief claimed by plaintiff that defendants be directed to pay damages to him for the loss sustained by him for revocation of power-of-attorney, was not available to plaintiff under any provisions of law---No law would permit a person to act and represent any other person against his wishes---Suit filed by the plaintiff to that effect, was bad in law and was not maintainable for seeking such relief.

S. Zaki Muhammad for Plaintiff.

Shaukat Hayat for Defendant No.1.

Sajida Nizami for Defendant No.2.

2007 C L C 521

[Karachi]

Before Sajjad Ali Shah, J

Syed KAMAL----Plaintiff

Versus

CIVIL AVIATION AUTHORITY and others----Defendants

Suit No.1246 of 2004, decided on 6th April, 2006.

Civil Aviation Authority Rules, 1994---

----Rr. 91(2) & 94(3)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Plaintiff had prayed that defendant (Civil Aviation Authority) be directed not to restrain plaintiffs' Mini Bus of specified route from carrying services as per their valid route permit granted by the Regional Transport Authority and that at the one hand defendant (Aviation Authority) had resisted plaintiff from carrying Mini Bus service in accordance with valid route permit granted by competent authority and on the other hand defendant, without any route permit on the same route, had allowed service of vehicle of 12 seaters; that sole authority to grant route permit vested in the Regional 'Transport Authority and defendant (Aviation Authority) had no authority whatsoever to stop the services of' plaintiff's Mini Buses on any ground---Validity---Defendant/Civil Aviation Authority was not in a position to question the authority of Regional Transport Authority to issue route permit for operating coach services throughout the Province and that all the Cantonment areas were included in the territorial limits of a Province in which those were situated---Contention of defendant that after shifting of Airport, from old Airport Area to new terminal the licence of plaintiff had become infructuous, was also not acceptable---Defendant (Civil Aviation Authority) could not question the purpose of a valid route permit nor it had any authority to judge the purpose of licence or its feasibility by assuming the functions of the Regional Transport Authority---Plaintiff, despite shifting of' the Airport to new Terminal, if felt that carrying of coach service to old Airport area was still feasible, could not be restrained from carrying such services till he held valid route permit---Even otherwise, the limits of the aerodrome could not be extended to exclude the operation of route in question---Civil Aviation Authority, in the present ease, had singled out the vehicles of the plaintiff and was allowing access to the rest of the vehicles as enumerated in Civil Aviation Authority Rules, 1994 which was not only against the spirit of said Rules, but was discriminatory also---Plaintiff having made out a strong case for grant of relief prayed for, Civil Aviation Authority was directed not to restrain the Mini Buses of the plaintiff carrying passenger services on the route in accordance with their route permit.

Pakistan v. Province of Punjab PLD 1975 SC 37 ref.

Shoukat Ali Shaikh for Plaintiff.

Faisal Kamal and Arshad Hussain for Defendant No.1.

Anwar Mansoor Khan, A.-G. Sindh.

2007 C L C 530

[Karachi]

Before Sarmad Jalal Osmany, Actg. CJ. And Gulzar Ahmed, J

ISLAM HUSSAIN----Petitioner

Versus

CITY DISTRICT GOVERNMENT and others----Respondents

Constitutional Petition No.D-173 of 2004, decided on 26th April, 2006.

Constitution of Pakistan (1973) ---

----Arts. 9 & 199---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss.23 & 115---Constitutional petition---Security of person---Taking immediate action against noise/smoke pollution caused by vehicles---Petitioner prayed that directions be issued to the City Government for taking immediate action against noise/smoke pollution caused by vehicles in the city as well as removal of illegal bus-stands etc.---Right to enjoy an unpolluted atmosphere and breathe clean air was a fundamental right of every citizen of the country wherever he might be which was guaranteed by the Constitution under its Art.9, being a right to life---Deputy Inspector-General of Police (Traffic) was directed by the High Court to ensure that no smoke emitting vehicle or one causing noise pollution should ply in the city and to take action against those vehicles which did not have any number plate in accordance with S.115 of Provincial Motor Vehicles Ordinance, 1965---Deputy Inspector-General of Police (Traffic) would have full authority to impound any vehicle/rickshaw which was found to ply in the city while emitting smoke and noise.

Shehla Zia's case PLD 1994 SC 963 ref.

Petitioner in person.

Masood Zaidi for City District Government, Karachi.

2007 C L C 535

[Karachi]

Before Ali Sain Dino Metlo, J

Chaudhry SAEED MEHMOOD----Petitioner

Versus

DISTRICT JUDGE, KARACHI EAST and others----Respondents

Constitution Petition No.S-132 of 2006.

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

----Ss. 2(F)(J), 115(2)(iii), (c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contractual tenant---Subletting---Original tenant obtained shop in question on rent in his personal name through an agreement from its owner---Agreement specifically mentioned that tenant would not sublet the shop in question or any portion of it to anybody else under any circumstance---Petitioner had contended that he was partner in business with original tenant, but after bringing an end to the partnership, original tenant left the business and that landlord had accepted petitioner as tenant---Validity---Written agreement of tenancy had clearly shown that tenancy was in the personal name of original tenant and notwithstanding the prohibition on subletting, contained in S.15(2)(iii)(c) of Sindh Rented Premises Ordinance, 1979, the agreement had conspicuously provided that tenant would not sublet the shop or any portion of its to anybody else under any circumstance---In presence of such clear statutory provision as well as contractual prohibition, no weight could be attached to the contention of petitioner that he was verbally acknowledged as tenant---Nothing was on record in support of contention of petitioner that previous owner who had sold away the shop had ever acknowledged petitioner as his tenant or had received rent from him.

PLD 1968 Lah. 20; PLD 1986 Lah. 20; PLD 1986 Kar. 117; 1982 CLC 2004; 1983 CLC 1714; 1984 CLC 2684; 1984 CLC 2682, 1985 CLC 1550; 1987 MLD 707; 1990 CLC 1170; 1991 CLC 385; 1992 MLD 323; 1993 CLC 519; 1993 CLC 761; 1993 MLD 2196; 1994 CLC 1522; 1995 CLC 1655; 1997 CLC 1085; 1997 SCMR 1775 and 2003 CLC 278 ref.

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

----S. 2(f)(j)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Tenant---Kinds of tenants recognized by law---Contractual tenant and statutory tenant---Under S.2(j) of Sindh Rented Premises Ordinance, 1979, two kinds of tenants had been recognized; first, contractual tenants, one who would undertake to pay rent and were bound as such to pay rent during the contractual period of tenancy; and secondly, statutory tenants who were bound to pay rent by operation of law, such as a contractual tenant continuing possession or occupation of the premises after expiry of contractual period of tenancy; or heirs of a tenant in possession of premises after death of tenant---Except for those two categories, no other category, including heirs not in possession or a sub-tenant, was recognized as tenant under the law and it would be a fallacy to say that anybody who happened to possess or occupy property of somebody else, would become tenant in respect of that property---One could be in possession in other capacities, such as, trespasser, licensee, mortgagee etc.---All owners could not be landlord or possessors or occupiers of their properties and all possessors or occupiers, could not be tenants of the owners---Mere ownership, could not be sufficient for conferring the status of landlord and mere possession or occupation could not be sufficient for conferring the status of tenant---Sub-tenant had no independent right of his own and had to stand or fall, sail or sink with the tenant and had no right to claim tenancy or pay rent or file appeal against orders of ejectment when the original tenant had not appealed---Petitioner, in view of circumstances and legal position, claimed to be tenant along with original tenant, who had not filed appeal against his ejectment order, was a sub-tenant and not a tenant and had to go with original tenant---Appellate Court had rightly dismissed the appeal--Constitutional petition was dismissed in circumstances.

Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Kar. 444; Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117; Pakistan State Oil Company Limited v. Sikandar A. Karim 2005 CLC 3; Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others 1990 CLC 1320 ref.

Iftikhar Javaid Qazi for Petitioner.

Muhammad Safdar for Respondents Nos.4 and 5.

Nemo for Respondents Nos.1 to 3.

2007 C L C 546

[Karachi]

Before Mrs. Yasmin Abbasey, J

TABASSUM IQBAL SHEIKH----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE and others----Respondents

Constitution Petition No.S-535 of 2005.

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

----S. 16(1) & (2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Passing of tentative rent order---Purpose---Non­compliance of tentative order---Striking off defence of tenant---Very purpose of passing order under S.16(1) of Sindh Rented Premises Ordinance, 1979 was to protect the right and interest of the landlord by way of deposit of rent in the court during pendency of case---Nature of such order, though was always tentative, but still tenant was required to comply with it---Any default in compliance of same would mean not only to deprive landlord of his right of rent of the demised premises, but would import an element of negligence or fault on the part of tenant which would mean something more than the mere non-compliance of rent order---Circumstances, however, might be wherein due to some unavoidable circumstances tenant would not be in a position to deposit rent in time for which a relaxable attitude could be made---In the present case rent order was passed in presence of the counsel of petitioner/tenant and he was well aware of the fact that specific direction for deposit of rent were made, but despite that petitioner continued depositing rent in other case---Even if it was taken that due to some error on the part of petitioner it so happened, then at least after moving application under S.16(2) of Sindh Rented Premises Ordinance, 1979, petitioner should have rectified same, but no such bona fide act appeared on his part---Despite specific direction to petitioner to deposit rent in the right ease, petitioner deliberately avoided to deposit same in court and continued on depositing rent in an another case with mala fide intention just to put landlord under undue pressure---Petitioner having failed to comply with tentative rent order, his defence was rightly struck off.

1979 SCMR 496 and PLD 1967 (sic) 530 ref.

Raja Aftab Ahmed Khan for Petitioner.

Farooq Rasheed for Respondent.

2007 C L C 621

[Karachi]

Before Mushir Alam, J

MUHAMMAD ANWAR----Appellant

Versus

Dr. GOHAR ALI----Respondent

First Appeal No.1 of 2003, decided on 4th October, 2004.

(a) Partition Act (IV of 1893)---

----Ss. 2 & 4---Suit for partition and division---Scope---Once entitlement of the plaintiff to the suit property was established, partition and division of property could not be denied, unless, of course, it was shown that such property was incapable of division and partition.

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

----O. XLI, R.22---Cross-objection---Any of the respondents inappeal, irrespective, whether he was plaintiff or defendant before the Trial Court, could prefer cross-objections---Such cross-objections were, to all intents and purposes, would be treated and tried as an appeal-Only limitation to maintain cross-objections as provided was that such cross-objections were to be filed within 30 days from the date of service of notice of appeal.

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

----O. XX, R.12 & S.2(12)---Partition Act (IV of 1893), Ss.2 & 4---Suit for partition and division---Mesne profits---Claim for mesne profit---Scope---Any person in possession of the property enjoying benefit therefrom to the exclusion of rightful owner, plaintiff was liable to pay rent or mesne profit---Contention that defendant being co-owner, plaintiff could not claim mesne profit, was not substantiated by any law---Plaintiff who claimed mesne profit, had to show that he was owner of the property and that defendant was in wrongful possession thereof---Even a co-owner could be in wrongful possession, when he occupied the property to the exclusion of the other rightful co-owner---Co-owner in possession to the exclusion of other co-owner in such case, could be held liable to the extent of his unauthorized or hostile occupation, possession or enjoyment thereof---Once a person established and court came to a conclusion that person was entitled to any right or share in the property; and he was being deprived of use of such right or share in property by the other person, then the owner who was out of possession or enjoyment would become entitled to' claim those profits actually received by person in unlawful possession or enjoyment of such part thereof, as the case could be---Conclusion of the Court that suit for mesne profit was not maintainable, was not sustainable and accordingly was set aside.

Mst. Jamila Begum v. Awan Ulnas and others PLD 1978 Lah. 1376; Shafqatullah and others v. District and Sessions Judge, Noshera 2001 SCMR 274; Mt. Mohankuar and others v. Bhagatram and others AIR 1993 Nag, 316; Raghubans Narain Singh v. Khub Lal Singh AIR 1931 PC 209; Babburu Basavayya v. Babburu Guravayya AIR 1951 Mad. 938 and Atta Muhammad v. Sahibzada Manzoor Ahmed and others 1992 SCMR 138 rel.

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

----O. XX, R. 12 & S.2(12)---Suit for mesne profit---Maintainability---Where there was clear and convincing evidence showing that the actual profit or income was derived out of such property by the person who was enjoying and reaping benefit out of its use, the court could award such claim of profit that was derived or was capable of being derived out of such use and enjoyment by the person who was held to be in its unauthorized use---Person claiming and establishing any right or any share in the property would be entitled to claim profit or mesne profit to the extent of his share or right and interest in the property---Plaintiff, in the present case, had not led any convincing evidence as to determine with certainty the actual income or benefit derived by the defendant in unauthorized possession or enjoyment; or that the property was capable of fetching any profit---Such situation was redressed by awarding decree of mesne profit by directing preparation of decree for mesne profit in terms of O.XX, R.12, C.P.C. and after holding such inquiry as was necessary, final decree could be prepared.

Muhammad Anwar Durani for Appellant.

Abdul Ghafoor Bhurgri and Abdul Hamid Bhurgi for Respondents:

Date of hearing: 4th October, 2004.

2007 C L C 631

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

DEFENCE HOUSING AUTHORITY-Appellant

Versus

NASIRA WAZIR ALI and 2 others----Respondents

H.C.A. No.188 of 2002, decided on 31st January, 2007.

(a) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Art. 17(h)---Pakistan Defence Officers' Cooperative Housing Society Bye Laws, 1972, Bye-laws Nos.7 & 8---Allotment of plot---Managing Committee, powers of---For grant of associate membership and allotment of plot, powers of Managing Committee were not restricted/ confined to Bye-law No.7 of Pakistan Defence Officers' Cooperative Housing Society Bye Laws, 1972---Under special circumstances and for special reasons, irrespective of limitations provided under Bye-law No.7 of Pakistan Defence Officers Cooperative Housing Society Bye Laws, 1972, such power could have been exercised by the Society in individual cases.

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

----Ss. 42 & 54---Pakistan Defence Officers' Housing Authority Order (7 of 1980), Art.17(h)---Pakistan Defence Officers' Cooperative Housing Society Bye Laws, 1972, Bye-laws No. 7 & 8---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Allotment of plot---Special circumstances---Determination---Powers of Managing Committee---Scope---Suit plot was allotted to plaintiff in secret ballot and after deposit of due's in year, 1976, possession was handed over to him---Society, in the year 1990, cancelled the plot on the ground that plaintiff was not eligible for allotment---High Court decreed the suit in favour of plaintiff and set aside the cancellation order---Validity---No underhand practice, collusion or mala fide intention could be attributed to plaintiff---Full authority was conferred upon Managing Committee of the Society under bye-law No. 8 of Pakistan Defence Officers' Cooperative Housing Society Bye Laws, 1972, to accord membership to any individual in special circumstances and for special reasons, notwithstanding the limitations imposed by bye-law No.7 in such regard---Question whether there were special circumstances and special reasons for according membership to plaintiff and allotment of suit plot to him, were the matter of opinion/discretion with the Managing Committee of the Society---Such issue could not have been re-opened/re-examined/scrutinized by Managing Board of Society formed under Pakistan Defence Officers Housing Authority Order, 1980, after lapse of over fourteen years---Whole action of Society challenged in the suit by plaintiff was illegal and rightly undone by Single Judge of High Court by passing judgment and decree in favour of plaintiff---Conclusion recorded by Single Judge of High Court on various issues framed in the suit was correct and in line with the ratio of judgments of Supreme Court---Division Bench of High Court, in intra-court appeal, declined to interfere with the judgment and decree passed in favour of plaintiff---Intra-Court appeal was dismissed in circumstances.

Dr. Syed Tariq Sohail and another v. Pakistan Defence Officers' Housing Authority 2001 YLR 1193; Pakistan Defence Officers' Housing Authority, Karachi v. Shamim Khan and 5 others PLD 2005 SC 792 and Pakistan Defence Officers' Housing Authority Karachi v. Munir Ahmed Ghulam Mustafa Akhtar 2006 SCMR 178 rel.

Mustafa Lakhani v. Pakistan Defence Officers' Housing Authority, Karachi Civil Petition No.631-K of 2004 distinguished.

Munawar Malik for Appellant.

Javed Mir for Respondents.

2007 C L C 648

[Karachi]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

Mst. PARVEEN----Petitioner

Versus

DISTRICT RETURNING OFFICER, SUKKUR and 3 others----Respondents

Constitutional Petitions Nos.D-880 and 881 of 2006, heard on 16th November, 2006.

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

----Ss. 152 & 157(1)(c), (2)---Sindh Local Government Elections Rules, 2005, Rr.2(vii) & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Entry of name of candidates in voters list of two union councils---Rejection of nomination papers and disqualification of candidates---Petitioners/candidates were listed voters in electoral roll of two union councils; on objection raised by respondents, nomination papers of petitioners were rejected by District Returning Officer and petitioners were disqualified on that ground---Validity---Disqualification of candidate must be such as provided under any law for the time being in force---Double enrolment had not been specifically made disqualification---Scope of disqualification being restricted to those prescribed by law, which clearly did not set forth, the enlistment of the name of candidate in more than one list as a disqualification, existence of names of petitioners in more than one list of different wards; could not be made ground for rejection of their nomination papers and they could not be disqualified---Impugned orders of District Returning Officer being contrary to established principles of law, were set aside by High Court---Petitioners could be allocated proper symbols to entitle them to participate in election after completing all legal formalities.

Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others 1984 SCMR 537; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Hamida Begum v. Returning Officer and others 2001 CLC 1253 and Bachal Shah v. Asad Sikandar PLD 1989 Kar. 53 ref.

(b) Words and phrases---

----`Deem' defined and 'explained.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

Qurban Ali Malano and Sarfraz A. Akhund for Petitioner.

Mukesh Kumar G. Karara for Respondents.

G.D. Shahani Addl. A.-G. and A.R. Farooque Pirzada D.A.-G for official Respondents.

Date of hearing: 16th November, 2006.

2007 C L C 657

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

NATIONAL BANK OF PAKISTAN----Appellant

Versus

ANWARGAIB WHITE CEMENT LTD. and others----Respondents

H.C.A No.287 of 2005, decided on 2nd February, 2007.

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

----O. XXIX, R.1---Suit by Corporation through attorney---Photocopy of power of attorney filed along with plaint not formally produced in evidence---Effect---Such copy could be looked into to verify legal status and authority of the person under whose signatures/verification on oath suit was instituted, so as to avoid failure of suit on mere technical lapse not otherwise affecting merits of case---Institution of suit and verification of plaint by attorney being duly competent and authorized person on behalf of Corporation was valid and legal.

Nathe Khan v. Mst. Rehmat Bibi PLD 1961 BJ 96 rel.

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

----O. XXIX, R.1---National Development Finance Corporation Act (XIII of 1973), S.20---Suit by Corporation through its sub-attorney---Resolution of Board of Directors of National Development Finance Corporation issuing General Power of Attorney to its Chairman also authorizing him to sub-delegate his power thereunder to other attorney---Appointment of sub-attorney by such General Attorney to institute suit and verify plaint on oath on behalf of the Corporation---Signing and verification of plaint on oath by sub-attorney were strictly in accordance with law.

Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. PLD 1966 SC 684 and Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 distinguished.

Bankers Equity Ltd. and 5 others v. Suntlo Cit-Russ Ltd PLD 1999 Lah. 450; Messrs Secretary Leasing Corporation Ltd. and 3 others v. Diamond Food Industries Ltd. 2003 CLD 861; Tahira Haq v. A.H. Khan Niazi, Additional Commissioner (Revenue), Multan and others PLD 1968 Lah. 344; Phullan (deceased) through L.Rs. and others v. Muhammad Sarwar and 2 others 1992 CLC 1975; National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260; Khalil Ahmed and others v. Mst. Muhammad Jan and others 2004 SCMR 1034 and Nathe Khan v. Mst. Rehmat Bibi PLD 1961 BJ 96 ref.

(c) Interpretation of statutes---

---Delegation of powers by the statute---Further delegation of such powers by delegates---Scope---Where intention of law-makers had been that delegatee should not further delegate the delegated powers, then such provision could be incorporation in the statute itself.

Muhammad Aslam Butt for Appellant.

Dr. Muhammad Farogh Nasim for Respondents Nos.1, 3, 6, 7 and 11.

Nemo for other Respondents.

2007 C L C 668

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Mushir Alam, JJ

ARDESHIR COWASJEE and 9 others----Petitioners

Versus

KARACHI DEVELOPMENT AUTHORITY through Director-General and 3 others----Respondents

C.P. No. D-1590 of 1994, decided on 6th September, 2006.

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

----Art. 52-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Area earmarked for public park---Conversion of same to purpose other than park---Area within the jurisdiction (City) Development Authority which was earmarked for the public park, was transferred to Cantonment Board under, notification---Cantonment Board proposed to establish a degree college and plot in question was identified for the said purpose---Petitioners, who were residents of the vicinity in the surrounding area aggrieved of said conversion filed constitutional petition---Not only the petitioners, but (City) Development Authority also protested against the conversion of the plot---Petitioners had contended that without formally converting the area earmarked for the Park, Cantonment Board attempted to convert same for another purpose, whereas Cantonment Board was not even owner of the property at all as it was within the domain of (City) Development Authority under Karachi Development Authority Order, 1957---By virtue of amendment, sub-Article (2) was added in Art.52-A of Karachi Development Authority Order, 1957 and conversion of amenity plot was not permissible under law---Cantonment Board, in circumstances, could not be allowed to convert the area reserved for public park to any other purpose---Action of Cantonment Board, converting park into college, was struck down by High Court, in circumstances.

Shafiqur Rehman and others v. Government of Sindh PLD 2006 Kar. 10 and Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.

Naimur Rehman along with Khursheed Javed for Petitioners.

Sohail H.K. Rana for Respondent No.2.

Zarar Ahmed Khan for CDGK.

2007 C L C 682

[Karachi]

Before Muhammad Sadiq Leghari, J

MUKHTAR HUSSAIN----Applicant

Versus

MUHAMMAD NAQI----Respondent

Civil Revision Application No.236 of 2004, decided on 30th August, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Plaintiff had claimed that house in dispute was gifted to him by his father/original owner and, that later on he (plaintiff) put his brother in possession of the house as his licensee, but the said lessee (brother) had refused to vacate the house and also issued threats to him---Defendant, in his written statement resisted suit and challenged alleged gift-deed in respect of suit house in favour of plaintiff by his father---Trial Court dismissed suit, but on appeal suit was decreed---Defendant had assailed judgment of the Appellate Court---Validity---Defendant who had disputed making of gift in favour of plaintiff had seriously contested completion of gift for want of possession on the house in dispute as possession of house was not with plaintiff/alleged donee, but was with defendant---Alleged gift having deprived other legal heirs of original owner of the house who was father of parties, it was essential for plaintiff to prove delivery of exclusive possession of house at the time of making and acceptance of gift and putting defendant in possession of house as licensee, but he could not do so---Judgment passed by the Trial Court, in circumstances was wrongly set aside by Appellate Court---Appellate judgment and decree, were set aside by High Court, maintaining judgment of the Trial Court, whereby suit filed by plaintiff was dismissed.

Zafar Ahmed Khan for Applicant.

S. Hassan Azhar Rizvi for Respondent.

2007 C L C 693

[Karachi]

Before Munib Ahmed Khan, J

ROSHAN KHAN and 2 others----Plaintiffs

Versus

KARACHI CANTONMENT BOARD through Executive Officer and 3 others----Defendants

Suit No.707 of 2003, C.M.As. Nos.5472, 5473 and 5474 of 2006 decided on 4th September, 2006.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Public way---Easement, right of---Suit and application for permanent injunction---Plaintiffs had alleged that defendants were intending to close two ways by erecting iron gates on the road which ways have been in the use of plaintiffs for more than 50 years---Claim of plaintiffs was that defendants had no right to close said two ways under the law of casement, irrespective of ownership of land in question and plaintiffs and other residents of the area concerned were entitled to use said ways---Plaintiffs had filed application for grant of interim relief till final decision of the suit---Validity---Fact that disputed area was being used by plaintiffs and other residents of area as outlet for considerable long time, was recorded in the shape of Gazette Notification and that fact had also been proved by other evidence on record---Balance of convenience was greatly on the side of plaintiffs---Contention of defendants was that application filed by plaintiffs for grant of interim injunction could not be granted because prayer of the suit was the same, was repelled as by that application, plaintiff had sought interim relief---Rights of the parties were to be decided after recording of evidence---Public way and road could not be blocked/restricted---Application was allowed to the extent that respondent was restrained from blocking passages/road in question and if there was any restriction or installation made by defendant, that would be removed, and that position would be maintained till the disposal of suit.

PLD 1999 Lah. 305; 2004 MLD 1936; 2002 SCMR 1294; 1988 CLC 1301; AIR 1938 Lah. 619 and AIR 1995 Mad. 179 rel.

Ahmed Hasan Rana for Plaintiffs.

Junaid Ghaffar for Defendants.

2007 C L C 700

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

SHAHABUDDIN SHAH and others----Petitioners

Versus

DEPUTY DISTRICT OFFICER (REVENUE) and others----Respondents

C.Ps. Nos.D-249 and D-337 of 2004, decided on 4th October, 2006.

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

----Ss. 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pica as to non-issuance or non-publication of notifications under Ss.4 & 6 of Land Acquisition Act, 1894 before passing of award under S.11 thereof---Validity---Such plea for not having been raised at any earlier stage was only an afterthought and that too without any material to substantiate same---High Court declined to entertain such plea for the first time at such belated stage.

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

----Ss. 4, 6 & 11---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Land acquisition, notification of---Award under S.11 of Land Acquisition Act, 1894 having reference as to sending of notification to Government Press for publication---Effect---No conclusion would be drawn from such reference as to non-publication of notification in official Gazette---Such reference would give impression that notification was published in official Gazette in due course.

Ghulam Hussain and others v. Province of Sindh C.P. No.D.274 of 2005 ref.

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

----Ss. 18, 28-A & 34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Landowners' claim for benefits of Ss.28-A & 34 of Land Acquisition Act, 1894---Non-availing of remedy under S.18 of the Act, regarding such claim---Effect---Principles of acquiescence or estoppel or laches would not come into play against petitioner to disentitle him from claiming such benefit in constitutional petition---Remedy under S.18 of the Act was available to persons not having accepted award for certain specified reasons---Such benefits were rider in nature to compensation determined under the award and such benefits being mandatory in nature would be allowed invariably---High Court accepted constitutional petition of landowners by upholding the claim---Principles.

Mir Ghulam Abid v. Land Acquisition Officer, Khairpur 2004 YLR 77; Province of Sindh v. Ramzan and others PLD 2004 SC 512; Government of Balochistan v. Haji Muhammad Akber Kansi PLD 2004 SC 855; Thy Deputy District Officer (Revenue) and Land Acquisition Collector, Sanghar and another v. Shoukat Ali and others C.P.L.A. No.767-K of 2004; Inclus Pencil Industries (Private) Ltd. v. Vikar Industries (Private) Limited PLD 1999 Kar. 281; Ghulam Mustafa v. Azad Government of the State of Jammu and Kashmir and 2 others 1996 MLD 355; Khushi Muhammad and 9 others v. Murad Ali and 13 others 1998 MLD 1793; Syed Nazar Abbas v. Commissioner, Sargodha Division Sargodha PLD 1983 Lah. 482; Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119; Mirza Maqbool Elahi and others v. Capital Development Authority, Islamabad and 3. others 1998 SCMR 1074; Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah. 458; Allandino v. Fakir Muhammad and another PLD 1969 SC 582; Mst. Bibi Rahmania and 14 others v. Government through Director, North Regional Research Laboratories and Collector, Peshawar and 13 others PLD 1971 Pesh. 191 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

Syed Saadi Jafri Zainabi v. Land Acquisition Controller and Assistant Commissioner PLD 1992 SC 472 and Deputy District Officer (Revenue) and Land Acquisition Collector, Sanghar and another v. Imamuddin Shah C.P.L.A. No.719-K of 2004 rel.

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

----Art. 199---Constitutional petition---Alternate remedy, availability of---Effect---Mere availability of alternate remedy would be no bar for invoking constitutional jurisdiction depending upon facts and circumstances of each case---In order to foster cause of justice and to avoid technicalities of law to prevail upon and defeat ends of justice, High Court had ample power in exercise of its jurisdiction under Art.199 of the Constitution.

Ghulam Rasool Qureshi and Imran Qureshi for Petitioners (in C.Ps. Nos.D-249 and D-337 of 2004).

Anwar Mansoor Khan, A.-G. Sindh and Masood A. Noorani, Addl. A.-G., Sindh for Respondents Nos.1 and 2 (in both cases).

Dates of hearing: 3rd and 4th October, 2006.

2007 C L C 713

[Karachi]

Before Amir Hani Muslim, J

JAMIA MASJID AL-REHMAN TRUST through Chairman----Petitioner

Versus

MUHAMMAD NAZEER and 2 others----Respondents

Constitutional Petition No.292 of 2006, decided on 14th February, 2007.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quantum of rent, fixation of---Appellate Court can modify the order of Rent Controller for fixation of rent from the date of passing of the order.

Arshad Mubeen for Petitioner.

Muhammad Nawaz Abbasi for Respondents.

2007 C L C 717

[Karachi]

Before Zia Parwaz, J

MUHAMMAD FAROOQUE----Petitioner

Versus

SHAKEEL AHMED and 2 others----Respondents

Constitutional Petition No.S-458 of 2002, heard on 2nd November, 2006.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Bona fide personal need of landlord---Non-appearance of landlord---Landlord seeking ejectment of petitioner/tenant, admittedly was not in possession of any shop at all---Mere fact of 1/7th share in ownership of joint properties, was not relevant for determination of question of occupation---Landlord was not required by law to make a declaration of all other properties owned by him---Bona fide need of landlord, in the present case, had been proved through his elder brother who appeared in evidence---Personal need of landlord, would be considered to be bona fide when landlord owned other shops in the same premises---Such ownership would not disentitle a landlord from getting specific shops vacated for running his business or for the benefit of his unemployed son for running up a business---To deny a right to landlord would be unreasonable even if he was carrying on business when he let out the shop and it could not be made a ground to defeat the bona fide 'requirement---Question of fact conclusively determined by two forums below, would leave no ground to reopen the same---Landlord was not required to appear in person to prove his bona fide need; same could be proved through a duly constituted attorney fully conversant with the facts of the case--Constitutional petition being distinct from appeal, was only maintainable within the narrow scope and it was not a substitute for a remedy of second appeal.

Saifullah v. Muhammad Bux 2003 MLD 480; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Muhammad Lehrasab Khan v. Aqeel-un-Nisa 2001 SCMR 338; Dilawar Jan v. Gul Rehman PLD 2001 SC 149; Akhter Muhammad v. Sirajuddin 1986 SCMR 1887; Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal PLD 1991 SC 265; Muhammad Atique v. Muhammad Hanif Khan 1996 SCMR 1260; Latif Ahmad v. Farrukh Sultana 1996 FMR 1233; Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Binyameen v. Hakim 1996 SCMR 336; 1990 SCMR 336; Amir Shah v. Ziarat Gul 1998 SCMR 593; Mahmood Khan v. Nasima Khatoon 1982 CLC 1807; Sardar Nabeel Wali v. Additional District Judge PLD 2000 SC 829; Muhammad Hanif v. Mumtaz Ahmad PLD 1986 Kar. 16; Muhammad Jaffar v. Syed Zia-ul-Islam Shah 1996 MLD 976; Muhammad Zakria Kansi v. Bashir Ahmed PLD 2001 Quetta 40; Shahzada Ayyaz v. Zainab Bibi 2000 SCMR 485; Sirajuddin Shaikh v. Shakeel Ahmed 2000 SCMR 1922; Abdul Waheed v. Muhammad Anwar Khan 2000 YLR 18; Abdul Raiff v. Abdul Sattar 1998 SCMR 2525; Public Electric Works v. Mst. Sabha Begum 2000 MLD 901; Muhammad Afzal v. Muhammad Tufail 2000 MLD 1858; Ahmad v. Khair Muhammad 1992 CLC 2504; Muhammad Jamil v. Government of Pakistan 1998 MLD 1049; Ghulam Muhammad Dosal & Company v. Shahid Hassan 2000 YLR 1601; Ahmad Din v. Din Muhammad 1985 SCMR 529; Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246; Khalil Ahmad Kershi v. Noor Muhammad 1986 SCMR 1464; Abdul Aziz v. Muhammad Ibrahim PLD 1977 SC 442; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16; Shahnaz Begum v. Ikhlas Ahmed 1990 CLC 904; Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307; Mst. Fatima Bai v. Shaikh Muhammad Zai and 6 others 1990 CLC 1064 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

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

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), Ss.15 & 21---Constitutional petition---Scope---"Constitutional petition" and "appeal"---Distinction---Constitutional petition being distinct from appeal, was only maintainable within the narrow scope and it was not a substitute for a remedy of second appeal.

Abdul Naeem for Petitioner.

Abdul Qadir Shaikh for Respondent No.1.

Ghulam Dastagir A. Shahani, Addl. A.-G. for Respondents Nos.2 and 3.

Date of hearing: 2nd November, 2006.

2007 C L C 728

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

AYAZ BUILDERS through Partner----Petitioner

Versus

KARACHI WATER AND SEWERAGE BOARD through Managing Director and 2 others----Respondents

C.P. No.1206 of 2006, decided on 1st November, 2006.

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

----Art. 199---Constitutional petition---Contract, award of---Vested right of lowest bidder---Tender evaluation process---Transparency---Responsive and eligible bid---Determination---Despite being the lowest bidder, petitioner was not awarded the contract---Plea of mala fide on the part of authorities and lack of transparency in the process of evaluation of tender was raised by petitioner---Validity---Mere participation in bidding process would not entitle a bidder to claim contract in question, although he might be the lowest---Unsuccessful bidder could certainly approach High Court where it had alleged mala fides and discrimination etc. in awarding of contract to another bidder---Responsive and eligible bid might be considered for award of contract, which exercise had yet to be completed by the authorities---Such exercise could only be carried out by the concerned. State functionaries in conjunction with expert advice and courts were not qualified to do so---What the courts were the most familiar with was lack of transparency, due process of law, discrimination and unfair exercise of executive power---Normally in such context the superior courts, while exercising constitutional jurisdiction had interfered in matters which were otherwise contractual in nature---Where it had been established before a constitutional court that lower bid suffered from some flaws inasmuch as bidder lacked necessary technical expertise etc., which was possessed by higher bidder, the government's decision to award bid to higher bidder was upheld---High Court in exercise of constitutional jurisdiction directed the authorities to again invite tenders for the project and thereafter conduct transparent, fair and judicious exercise in evaluating tenders in conjunction with their consultants and finally award the contract to tenderer who was found to be the most suitable in terms of tender documents/instructions to tenderers---Petition was allowed accordingly.

Messrs Pacific Multination (Pvt.) Ltd. v. I.-G. Police Sindh and others PLD 1992 Kar. 283; Owaisco v. Federation of Pakistan PLD 1999 Kar. 472 and Asadullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445 rel.

Balochistan Construction Company v. Port Qasim Authority SBLR 2001 Sindh 661; Haqbahoo Corporation v. PIA PLD 2003 Kar. 369; Kay Bee International (Pvt.) Ltd. Islamabad v. Secretary to the Government of Punjab, Industries and Mineral Development Department PLD 2002 SC 1074; Rashid Mahmood v. Administrator District Council PLD 1997 Lah. 407; Kalat Press v. Secretary Federation Department, Government of Balochistan 1998 CLC 833; Munshi Muhammad v. Faizanul Haq 1971 SCMR 533; Parvez Qureshi v. Settlement Commissioner, Multan and Bahawalpur Divisions 1974 SCMR 337; Al-Abbas Sugar Mills v. M.D. Karachi Water and Sewerage Board 2006 CLD 674; Abid Hassan v. PIAC 2005 SCMR 25; Rehmat Ali v. The Revenue Board, West Pakistan Lahore 1973 SCMR 324; Meraj Din v. Noor Muhammad 1970 SCMR 542; Messrs Iris Rist Technologies (Pvt.) Ltd. v. Government of Punjab PLD 2006 Lah. 198; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police Sindh Police PLD 1992 Kar. 283 and Fawwad and Fareen Enterprise Ltd. v. Director of Industries Government of Sindh PLD 1983 Kar. 340 ref.

(b) Public functionaries---

----Executive authorities, acts of---Principle---Executive authorities have been enjoined to act fairly, bona fide and in a manner which ensures transparency of process before them.

Asadullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445 and Dadahbhoy Investment (Pvt.) Ltd. v. Federation of Pakistan PLD 1995 Kar. 33 rel.

Khalid Javed Khan for Petitioner.

Abdul Karim Khan for Respondent No.1.

Raja Qureshi for Respondent No.2.

Muhammad Sarwar Khan, Addl. A.-G.

2007 C L C 740

[Karachi]

Before Muhammad Sadiq Leghari, J

Qazi ABDUL RASHID through L.Rs. and 6 others----Appellants

Versus

FAZLUR REHMAN----Respondent

F.R.A. No.18 of 2005, decided on 22nd May, 2006.

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

---Ss. 7 & 24---Determination of fair rent-.--Application for---Appeal---Rent mutually agreed for the premises in question was Rs.372 per month---Rent Controller fixed fair rent at the rate of Rs.1,200 per month on application of landlord for fixation of fair rent---Application against enhancement of monthly rent by tenant having been dismissed by Rent Controller appellant had filed appeal against said order---Validity---Provision of S.7(4) of Cantonments Rent Restriction Act, 1963, imposed restriction for increase of rent more than 25 per cent of the rent already being paid while fixing the fair rent---Order fixing rate of Rs.1,200 instead of Rs.465, after 25% increase, was in violation of subsection (4) of S.7 of Cantonments Rent Restriction Act, 1963---Appeal against order fixing rent passed in violation of law, was accepted.

Muhammad Siddiq's case 1984 CLC 2236 rel.

Muhammad Afzal for Applicants.

Muhammad Basharat for Respondent.

2007 C L C 817

[Karachi]

Before Syed Zawwar Hussain Jaffery and Maqbool Baqar, JJ

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY----Appellant

Versus

Messrs SHAUKAT & RAZA (PVT.) LIMITED and 2 others----Respondents

H.C.A. No.269 of 2002, decided on 14th November, 2006.

Contract Act (IX of 1872)---

----S. 73---Construction contract---Completion of work by contractor through sub-contractor beyond stipulated date---Withholding of certain amount by principal out of running bills payable to contractor and its adjustment towards risk and cost---Validity---Amount of mobilization of advance stood adjusted towards work done and was not re-payable by contractor to the principal---Impugned adjustment of amount was not authorized by contract, thus, it was wholly unjustified---Principal was not justified to invoke mobilization advance payment bond, thus, was not entitled to seek refund of amount of mobilization advance in circumstances.

Tamliz S. Burney for Appellant.

Samiuddin Sami for Respondent No.1.

Ejaz Ahmed for Respondent No.2.

Muhammad Shahid for Respondent No.3.

Date of hearing: 1st February, 2006.

2007 C L C 844

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Maqbool Baqar, J

ROSHAN DIN JUNEJO----Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Local Government Sindh Secretariat, Karachi and 5 others----Respondents

C.P. No.D-891 and D-864 of 2004, decided on 5th January, 2005.

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

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Internal recall of Zila Nazim---Procedure---Chairman, Election Authority, in pursuance of the order of the High Court, vide a notification, nominated a Member on the panel of Presiding Officers elected in the first Session of the Zila Council under S.24(5) of the Sindh Local Government Ordinance, 2001, to call and preside over a session of the Zila Council for conducting proceedings pertaining to the recall motion in accordance with the provisions of S.24 of the Ordinance on specified date with full opportunity to Zila Nazim to address House in the manner provided under the law---Said Member, accordingly convened the session of the House and issued notice to the Zila Nazim to attend the Session and address the House---Session was duly attended by seventy-six out of 83 members of the Zila Council, the proceedings were presided over by the Member of the panel, with house permission the mover/member read the contents of the motion in presence of Zila Nazim (petitioner), who, in rebuttal, addressed the House at length whereafter the Presiding Officer invited the members to express their views but the members requested the Presiding Officer to put the motion to vote, whereupon the members were allowed to cast their votes through secret ballots---Empty ballot box was shown to the members and representatives of the Press and the media before the commencement of voting---Out of 68 members who attended the motion, 64 voted in favour of the motion and only three members voted against the motion, whereas one ballot was found blank---Held, there seemed to be no irregularity or illegality in the proceedings of the session in question and session was commenced and conducted in full conformity with the High Court's order---No appeal having been filed by the Zila Nazim against order of the High Court under which the Session was conducted same had attained finality, the propriety or legality of which could not therefore, be challenged before the High Court under its constitutional jurisdiction---Principles---High Court disposed of the constitutional petition accordingly and directed the Election Authority to cause votes to be cast by the members of the Union Councils in the District as required by S.24(4) of the Ordinance without any further delay.

Khawaja Ahmed Hassan v. Government of Punjab and others PLD 2004 SC 694; Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan, PLD 2004 SC 583; Zubair Ahmad, and another v. Shahid Mirza and 2 others 2004 MLD 1010 and Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Food and Agriculture, Peshawar 1993 SCMR 618 ref.

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

----S. 24---Internal recall of Zila Nazim--Ingredients---Member, in terms of S.24(1) of Sindh Local Government Ordinance, 2001 can move a recall motion against the Zila Nazim only where, in the opinion of such member, there are reasons to believe that Zila Nazim is acting against the public policy or the interest of the people or is being negligent or is responsible for loss of opportunity for improvement in governance and service to the people within the ambit of his responsibilities.

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

----S. 24---Qanun-e-Shahadat (10 of 1984), Art.164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Internal recall of Zila Nazim---Contention that recall motion was a product of a political deal between two political parties was supported by two news reports published in daily newspapers which contained certain alleged statements and purported information attributed to "an unnamed reliable source"---No other material was placed before the High Court to substantiate the alleged deal---Validity---No reliance, held, could be placed on such press reports and the same were of no avail to the petitioner-Principles.

Mian Muhammad Shahbaz Sharif v. Federation of Pakistan, PLD 2004 SC 583; Zubair Ahmad, and another v. Shahid Mirza and 2 others 2004 MLD 1010 and Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Food and Agriculture, Peshawar 1993 SCMR 618 ref.

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

----S. 24---Sindh Local Government (Election Authority) Rules, 2001, R.3---Internal recall of Zila Nazim---Provisions of S.24, Sindh Local Government Ordinance, 2001 and R.3, Sindh Local Government (Election Authority) Rules, 2001 which provide for nomination of Election Authority, do not require that the offices of Chairman and Members of the Authority be held by a Judge of High Court or by a District Judge.

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

----S. 24---Sindh Local Government Election Ordinance (X of 2000), S.10(2)---Internal recall of Zila Nazim---Electorate of Zila Nazims and impeachment of Zila Nazim and Naib Nazim---Principles.

The Zila Nazims in Sindh were elected under the Sindh Local Government Election Ordinance, 2000, subsection (2) of section 10 whereof clearly' prescribes that the electoral college for the elections of Zila Nazim and Naib Zila Nazim, Town Nazim and Naib Town Nazim or Taluka Nazim or Naib Taluka Nazim, all shall be members of Union Council in the District, Town and City or a Taluka as the ease may be, so it is factually incorrect to say that the Zila Council does not form electoral college for the election of Zila Nazim and/or that the Zila Nazim was not elected through the votes of the Zila Council and Union Councils falling within the Zila.

The Nazim and Naib Nazim could be impeached only by the electorate by whom, and the manner in which, they were elected and in no other manner and by no other forum or electoral college. There is no principle of universal application that only such forum or authority can remove or impeach an office holder which has appointed or elected him.

Muhammad Ramzan and 3 others v. Government of Pakistan through Secretary of Law, Justice and Parliamentary 2004 YLR 1856 and Ghulam Mustafa Insari and 48 others v. Government of Punjab and others 2004 SCMR 1903 ref.

Khawaja Ahmed Hassan v. Government of Punjab and others PLD 2004 SC 694 distinguished.

Abdul Mujeeb Pirzada for Petitioner (in C.P. No.D-891 of 2004).

Kamal Azfar, Amin Lakhani and Ali Sher Habibani for Petitioner (in C.P. No.D-864 of 2004).

Rasheed A. Rizvi for Respondent No.5 (in C.P. No.D-891 of 2004).

Irfan Ahmed Memon for Respondent No.6 (in C.P. No.D-891 of 2004).

Jhamat Jethanand for Respondent No.3 (in C.P. No.D-864 of 2004).

Muhammad Sarwar Khan, Addl. A.-G. for the State.

Dates of hearing: 20th October, 3rd, 24th November, 1st, 8th, 22nd, 23rd and 24th December, 2004.

2007 C L C 864

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

TANVEER AFZAL KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Works, Government of Pakistan, Islamabad and 6 others----Respondents

Constitutional Petition Nos.D-1662 and D-1480of'1999, decided on 27th February, 2007.

Co-operative Societies Act (Vii of 1925)---

----S. 54-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotment of plot---Allotment of plot in question in favour of petitioners having been cancelled by authorities, petitioners had challenged same in constitutional petition---Condition precedent or basic eligibility for allotment of plot in question was to be an employee of Federal Government and member of Pakistan Employees Co-operative Housing Society---One of the petitioners was neither a Federal Government employee nor he was member of the Society---Other petitioner who was also neither Government employee nor member of the Society, claimed to have purchased plot in question from the allottee of the plot---Allotment of plot in favour of original allottee/vendor having been cancelled under the recommendation of Martial Law Enquiry, no rights in respect of said plot were conveyed to the petitioners---Both petitioners being not entitled to allotment of respective plots, their allotments were rightly cancelled by authorities---Parties, in circumstances could avail remedy in civil court as could be permissible under the law---Society was directed, not to create any third party interest over the plot in dispute for three months---In case none of the party was interested to enforce its right over the subject plot and no restraining orders were received by the Society from the court, Society would be at liberty to dispose of the plot in dispute strictly in accordance with the list of eligible members on merit and seniority.

Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474 rel.

H.A. Rehmani for Petitioner (in Constitutional Petition No.D-1662 of 1999).

Saifuddin for Respondent No.1 (in Constitutional Petition No.D-1662 of 1999).

Syed Mehmood Alam Rizvi, Standing Counsel for Respondent No.2 (in Constitutional Petition No.D-1662 of 1999).

Ali Muhammad Memon for Respondent No.3 (in Constitutional Petition No.D-1662 of 1999).

Ali Mumtaz Shaikh for Intervenor (in Constitutional Petition No.D-1662 of 1999).

Ali Mumtaz Shaikh for Petitioner (in Constitutional Petition No.D-1480 of 1999).

Syed Mehmood Alam Rizvi, Standing Counsel for Respondent No.1 (in Constitutional Petition No.D-1480 of 1999).

Saifuddin for Respondent No.2 (in Constitutional Petition No.D-1480 of 1999).

Ali Muhammad Memon for Respondent No.4 (in Constitutional Petition No.D-1480 of 1999).

2007 C L C 879

[Karachi]

Before Mrs. Qaiser Iqbal, J

SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY----Plaintiff

Versus

BOARD OF TRUSTEES OF KARACHI PORT TRUST, KARACHI----Defendant

Suit No.1058 of 2004, decided on 7th March, 2007.

(a) Arbitration Act (X of 1940)---

----Ss. 29 & 14---Filing of award in Court by the arbitrators to be made rule of the Court---Interest, award of---Scope---Arbitrators have no powers to award interest beyond the date of decree---Principles.

A.Z. Company v. S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505; Ghulam Abbas v. K.P.T. PLD 1987 SC 393 and Messrs Ibad & Co. v. Province of Sindh through Secretary to the Government Commission and Works Department and 2 others PLD 1980 Kar. 207 ref.

(b) Arbitration Act (X of 1940)---

---Ss. 30 & 14--- Filing of award in Court by the arbitrators to be made rule of the Court---Application for setting aside of award---Powers and jurisdiction of Court---Scope.

Champsey Bhara & Company v. Jivarajh Baloo Spinning and Weaving Company Ltd. AIR 1923 PC 66 and Pakistan Steel Mills v. Mustafa Sons PLD 2003 SC 301 ref.

(c) Arbitration Act (X of 1940)---

---Ss. 26-A & 14--- Filing of award in Court by the arbitrators to be made rule of the Court---Recording of reasons in support of award by the arbitrators is a mandatory requirement---If arbitrators fail to provide the reasons, Court has power to remand the award back to the arbitrators and require them to provide further and sufficient details/reasons in support thereof.

Balwal Khan v. Muhammad Alain Khan PLD 1956 Lah. 494 and Muhammad Yousuf v. Gul Zaman 2004 MLD 735 ref.

(d) Arbitration Act (X of 1940)---

---Ss. 30 & 14--- Filing of award in Court by the arbitrators to be made rule of the Court---Misconduct by arbitrators---Situations tantamount to misconduct for the purpose of S.30, Arbitrator Act, 1940 enumerated.

Government of Pakistan v. Overseas Enterprises (Pvt.) Ltd. 1992 CLC 1139; Bawany Sugar Mills Ltd. v. Karachi Trading Agency 1987 MLD 3036; Director of Industries and Mineral Development v. Dadabhoy Hormusjee and Sons 1990 MLD 301 and Khalid Abbas v. Muhammad Farooq 2004 YLR 274 ref.

(e) Arbitration Act (X of 1940)---

----Ss. 30 & 14---Filing of award in Court by the arbitrators to be made rule of Court---If the issue of law or contractual interpretation is not specifically referred to by the arbitrators, the arbitrators will be deemed to have gone beyond the scope of reference.

Sadiq Muhammad Afzal v. Ministry of Industries PLD 1966 (W.P.) Kar. 412 and Barisons (Pak.) Ltd. v. Pakistan 1980 CLC 470 ref.

(f) Arbitration Act (X of 1940)---

----Ss. 30, 33 & 14---Filing of award in Court by the arbitrators to be made rule of court---Objections under Ss.30 & 33, Arbitration Act, 1940---Role of courts under Arbitration Act, 1940---Nature and scope.

The role of the Courts under Arbitration Act, 1940 is of supervisory nature and not that of the usual appellate powers under C.P.C. which are not available to the court. Award may be modified or corrected when it falls within the scope of section 15 of the Arbitration Act, 1940 and it can be set aside, if attacked on the grounds provided in section 30 as there is no provision of review of an award in the Act.

If the arbitrators adequately considered and decided every item of the claim made by the parties and no misconduct was established against them then law would lean in favour of upholding such an award and avoid vitiating the same.

However by a mere mention in the award that the parties had evidence before the Arbitrator, law does not raise a presumption that the evidence becomes a part of the award upon the scrutiny through an application under sections 30 and 33 of the Arbitration Act because the Court hearing objections for setting aside the award cannot convert itself into a Court of appeal over the decision of the arbitrators and cannot make a sifting investigation of the entire proceeding as to whether award suffered from any patent error, or legal infirmity. So far as the question of interpretation of the clauses in agreement is concerned it is settled' principle that award should be construed liberally and the interpretation of any relevant clauses of the contract does not vitiate the award. Since both the parties to arbitration had pressed into service the provisions of certain clauses in the agreement the clauses have been interpreted within the scope of reference, without interpreting the clauses the dispute referred to the arbitration could not be resolved.

An award is final determination of a particular issue or claim in the arbitration and the arbitrators in consonance of the agreement arrived at between the parties can determine payment of money if payment is to be made by one party with reference to the other party.

Finding by arbitrators on claim which relates to question of facts and comes within the exclusive domain of arbitrators cannot be disturbed when sufficient reasons for coming to the conclusion have been furnished. Insufficiency of evidence, non-consideration of evidence, failure to take into account any evidence and even if a court would have come to a different conclusion, cannot be the ground for interference by the court under section 30 or any other provision of the Act.

Insufficiency of evidence or that the Court would have taken a different view on the basis of same evidence as was on record of arbitration proceedings do not warrant interference with the award while deciding the objections under sections 30 and 33 of the Arbitration Act. Court does not sit in appeal against the award given by the arbitrators. The issue involved finally determining the controversy between the parties cannot be set aside on the ground of insufficiency of evidence and non-consideration of any part of the evidence and failure to take into account any evidence, if the award is in clear terms, no misconduct and illegality having been committed by the arbitrators.

Sadiq Muhammad Afzal v. Ministry of Industries PLD 1966 (W.P.) Kar. 412; Barisons (Pak.) Ltd. v. Pakistan 1980 CLC 470; Messrs Waheed Brothers (Pakistan) Ltd. Lahore through Chief Executive v. Messrs Izhar (Pvt.) Ltd. Lahore through Managing Director 2002 SCMR 366; Tribal Friends v. Province of Balochistan 2002 SCMR 1903; Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108; Ashfaq Ali Qureshi v. Municipal Corporation of Multan 1984 SCMR 597; National Fibers Ltd. and another v. Pakistan through Secretary Privatization Commission, Ministry of Finance, Islamabad PLD 2004 Lah. 722; Lahore Development Authority v. Messrs Faisal International Construction Corporation Ltd. 2004 CLC 1879; Province of Punjab v. Sh. Fazalul Hussain 2003 CLC 1780; Board of Governors, Divisional Public High School, Lyallpur v. Sh. Fazal Hussain & Company 2002 CLC 159; Kashmir Corporation Ltd. v. Pakistan International Airlines PLD 1995 Kar. 301; Messrs Hussain Textile Mills Ltd. Karachi v. Messrs Dada Sons Limited, Karachi PLD 1973 Kar. 413; Russell on Arbitration 22nd Edition; Qutabuddin Khan v. K.E.S.C. 1980 CLC 1977; The Premier Insurance Co. Pakistan Ltd., Karachi v. Ejaz Ahmed 1981 CLC 311; Province of Balochistan v. Haji Gul NLR 1982 AC 398 and Messrs Ebad & Company v. Province of Sindh PLD 1980 Kar. 207 ref.

Bilal A. Khawaja for Claimant.

Zahid Jamil for Defendant.

2007 C L C 901

[Karachi]

Before Khilji Arif Hussain, J

KARACHI CADET SCHOOL through Proprietor----Plaintiff

Versus

Messrs COMTECH through Proprietor and another----Respondents

Suit No.780 of 1997, decided on 22nd December, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, damages, recovery of amount, and for mandatory and permanent injunction---Documents on record had established beyond any shadow of doubt that though defendant had received a sum of Rs.19,96,560 for supply of 22 computers and printers but had failed to deliver the same---Plaintiff due to failure of defendant to supply computer, had to pay a sum of Rs.21,10,000 to Modarba Company to settle the dispute as per terms of lease agreement which amount defendant ought to have paid to the plaintiff---Suit was decreed in a sum of Rs.21,10,000 with interest.

Arshad Mubeen for Plaintiff.

Nemo for Defendants.

Date of hearing: 7th November, 2006.

2007 C L C 906

[Karachi]

Before Mushir Alam, J

MUHAMMAD MUNIR and 20 others----Plaintiffs

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer and 6 others----Defendants

Suit No.1221 of 2004, decided on 29th November, 2006.

Karachi Building and Town Planning Regulations, 2002---

----Regln. 18-14.2---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Application under O.XXXIX, Rr.1 & 2, C.P.C.---Conversion of residential property into commercial and building of multi-storeyed building was purportedly allowed in violation of law, rules and regulations applicable thereto by the City District Government---Plaintiffs, residents of the concerned area, in their application under O.XXXIX, Rr.1 & 2, C.P.C., had prayed for injunctive relief against construction of multi-storeyed building---Validity---Held, if the building was allowed to be constructed, it would give rise to more complication rather than resolving, most likely third party interest, if created, would seriously affect the existing position and give cause to multiplicity of proceedings---Plaintiffs, in circumstances, were able to make out prima facie case and balance of inconvenience tilted in favour of the plaintiffs, it was therefore, in the fitness of things that the controversy be resolved on merits---Ad interim order passed earlier was confirmed by High Court.

Nooruddin v. Gul Bann PLD 1973 Note (Kar.) 130; Nooruddin v. Amanullah D. Dharani 1979 CLC 252; S.M. Aslam v. K.B.C.A. 2005 CLC 759; Abdul Razzak v. The Collector of Customs 1995 CLC 1453; Atezaz Ahsan's case PLD 1989 SC 61 (64); Jatoi's case 1993 SCMR 2350 ref.

Ms. Rizwana Ismail for Plaintiffs.

Manzoor Ahmad for Defendants Nos. 1 (i) to (v).

Ghulam Moinuddin for Defendant No.1(iii).

Faisal Siddiqui for Defendant No.1(v).

Khaleeq Ahmed for Defendant No.2.

Anwar Tariq and Rehman Malik for Defendant No.7.

Ahmed Pirzada, Addl. A.-G. and Raja Sikander Khan Yasir for K.B.C.A.

2007 C L C 912

[Karachi]

Before Maqbool Baqar, J

NAVID HUSSAIN and 5 others----Plaintiffs

Versus

CITY DISTRICT GOVERNMENT, KARACHI (CDGK) through District Coordination Officer, Karachi and 4 others----Defendants

Suit No.728 of 2004, C.M.As. Nos.4624, 4625 of 2004, decided on 23rd May, 2005.

Karachi Building and Town Planning Regulations, 2002---

----Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), S.151---Sindh Chief Court Rules (O.S.), R.76---Constitution of Pakistan (1973), Arts.9, 14, 23 & 25---Suit for declaration and permanent injunction---Maintainability---Plaintiffs had brought the suit for protection of their rights against nuisance, their right of peaceful and noiseless enjoyment of property, their right to enjoy fresh air free from pollution, and of a clean and healthy environment and, against transgression of the lessees' covenant to exclusive residential use of the lease-hold, and also for the protection of their fundamental rights guaranteed by the Constitution---Plaintiffs were the residents of Housing Society, two of them claiming to be residing within a 100 yards of the subject plot and in order to show the location of their residences, had annexed a copy of layout plan of the area---Plaintiffs had spelt out the details of the apprehended nuisance laying particular stress on the neighbourhood which was prime residential Block of the Housing Society, it was alleged that with the construction of a multi-storeyed building on the subject plot the original low density character of the neighbourhood would be completely destroyed, degrading the environment and worsening the quality of their life and of the other residents of the neighbourhood---Plaintiff thus had clear actionable right against the impugned construction and also to seek enforcement of the restrictive covenant of the lessees, in addition, the plaintiffs had sought to enforce through the suit, their fundamental rights and such suits were maintainable---Plaintiffs had a right to ensure that no construction in their vicinity be allowed in violation of law, rules and regulations, which may infringe on their right of enjoyment of life -Suit plot was subject to restrictive covenants to use the same for residential purposes only and the plaintiffs were, in equity and quite apart from contract, entitled to the benefit of such covenant--Defendants' contention that certain multi-storeyed buildings were already constructed in the area and therefore the plaintiffs had lost their right against the impugned construction was liable to be repelled because two wrongs could not make a right and principle of locus poenitentiae could not be pressed into service against the residents as they were not the authority, which had accorded the approval of the building plan in violation of the Regulations and that said principle could not be invoked in aid to perpetuate an illegal action, which may be detrimental to the interest of public at large---Plaintiffs having established a prima facie case for grant of injunction, application for injunction was granted by High Court and builder/defendant was restrained from raising any construction on the subject plot and from parting with the possession thereof or creating any third party interest therein---High Court, however, clarified that views expressed in the present judgment were merely tentative in nature and shall have no bearing on the final adjudication of the case after recording evidence.

Tariq Construction Company (Pvt.) Ltd. v. Razzak Adamjee and others 1995 CLC 846; A. Razzak Adamjee and others v. Messrs Datari Construction (Pvt.) Ltd. 2005 SCMR 142; Shehri C.B. and others v. K.B.C. A. 2003 YLR 1086; Messrs Excell Builders and others v. Aredshir Cowasjee and others 1999 SCMR 1089; Ardeshir Cwasjee and others v. Karachi Building Control Authority 1999 SCMR 2883 and Mrs. Nazshauka Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540 ref.

Shehri CBE and others v. Karachi Building Control Authority and others 2003 YLR 1086 distinguished.

Rizwana Ismail for Plaintiffs.

Muhammad Sharif for Defendant No.5.

Khurshid Jawed for Defendant.

Manzoor Ahmed for Defendant No.1.

2007 C L C 923

[Karachi]

Before Sabihuddin Ahmed, C.J. and Mrs. Yasmeen Abbasey, J

LIAQUAT ALI GHANGHRO----Petitioner

Versus

PROVINCE OF SINDH through Secretary Education and Literacy Department Government of Sindh and another----Respondents

Constitutional Petitions Nos.D-1611, D-1477, 1622 and 1629 of 2006, decided on 13th December, 2006.

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

----Arts. 25 & 14---Equality of citizen---Inviolability of dignity of man---Equality under the law guaranteed by Art.25 of the Constitution permits reasonable classification and if certain Union of civil servants in one Province are treated differently on account of special conditions operating there, it could not be urged that the action is discriminatory because other Unions are not treated similarly where those conditions may not be existing---Mere ban on a Union could not be held to be violative of dignity of man.

Hussain Ahmed Haroon's case 2002 SCMR 104 ref.

(b) Government Servants (Conduct) Rules, 1966---

----R. 28---Government of Sindh Notification No.SO(HE-1) Misc1257/2006 dated 21-7-2006---Constitution of Pakistan (1973), Arts.17 & 19---Freedom of association and speech---Provisions of Government Servants (Conduct) Rules, 1966 and notification issued by Provincial Government placing fetters upon functioning of service Associations cannot withstand the test of constitutional validity---Principles.

Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781 ref.

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

----Arts. 25, 14, 16, 17, 18, 19, 24, 232 & 233---Proclamation of emergency---Right to form Association or Union---Some reasonable nexus has to exist between the law or the executive action taken in derogation of fundamental rights and the objects of the proclamation of emergency---Ex facie denial of a right to form Associations and Unions to a particular class of persons in one Province of the State has nothing to do with dealing with the situation of a country being threatened by external aggression and it appears wholly incongruous that all the citizens should stand denuded of their basic rights of movement, association, business, expression and property in their ordinary avocation of life having nothing to do with a national emergency or the Parliament and the Federal Government should assume complete control over all affairs of Provinces on the pretext of a Proclamation of emergency issued eight years ago.

Farooq Ahmed Leghari v. Federation of Pakistan PLD 1999 SC 57; Cheng Poh alias Cher Meh v. Public Prosecutor Malaysia 1980 AC 458 and Australian Communist Party v. Common Wealth 1950-51 83 CLR 1 ref.

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

----Arts. 232, 233, 15, 16, 17, 18, 19 & 24---Proclamation of Emergency dated 28-5-1998---Effect---Assuming the valid continuance of the said proclamation, the State may no longer be bound to make laws or take executive action in strict conformity with Arts.15, 16, 17, 18, 19 & 24 of the Constitution, nevertheless these fetters arc removed only for the purpose of dealing with the State emergency declared through the proclamation and not otherwise.

Farooq Ahmed Leghari v. Federation of Pakistan PLD 1999 SC 57; Cheng Poh alias Cher Mch v. Public Prosecutor Malaysia 1980 AC 458 and Australian Communist Party v. Common Wealth 1950-51 83 CLR 1 ref.

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

----Arts. 17 & 199---Constitutional petition---Freedom of Association---Restriction through notification by Provincial Government---Validity---Association was neither furnished with allegations on which a tentative opinion could be formed nor given an opportunity to explain its position-Such requirements of natural justice were a mandatory precondition for such action---Application of notification imposing restrictions on the Association was thus, without lawful authority.

(f) Penal Code (XLV of 1860)---

---Ss. 147 & I48---Constitution of Pakistan (1973), Arts.14 & 199---Constitutional petition---Registration of case under Ss.147 & 148, P.P.C. against petitioner, a respectable member of teaching profession on the basis of false report---Petitioner had stated that while he was only on his way to the place where peaceful protest was being recorded, the police inquired about his identity and on finding that he was a professor he was taken to the police station and false F.I.R. was recorded against him---Scope and application of Ss.147 & 148, P.P.C.---Nothing was available to show that petitioner was ever armed with a weapon---Without inquiry into the matter and without taking appropriate action against the police, Chief Secretary of the Province took it upon himself to mention the registration of the case as a ground for action---Authorities had not explained as to what documentary material was available with them to proceed against the petitioner particularly when his contention that he was yet to reach the occasion of protest, was itself one which required appropriate enquiry---To keep respectable member of the teaching profession in custody on the basis of a false report was itself violative of the dignity of man guaranteed by Art.14 of the Constitution---High Court, in circumstances, declared the impugned show cause notice to be mala fide and of no legal effect whatsoever.

(g) Civil service---

---Misconduct---Dispensing with an enquiry---Conditions.

Though the power to dispense with an inquiry is available to an authorized officer under the rules, it has to be exercised on sound judicial principles indeed, if the alleged misconduct or ground for penalty can be inferred from undisputed documentary material, holding of an inquiry could be dispensed with. Nevertheless whenever fact finding is involved an independent inquiry must be held.

(h) Civil service---

--Withholding of salary---Mala fide.

Akhtar Hussain for Petitioner (in C.P. No.D-1477 of 2006).

Rasheed A. Razvi and Kashif Paracha for Petitioner (in C.P. No.D-1611 of 2006.

Abdul Mujeeb Pirzada, Khalid Shah and Jawed Akhtar for Petitioners (in C.Ps. Nos.D-1622 and 1629 of 2006).

Khalid Anwar for Respondents (in all Petitions).

Dates of hearing: 10th and 30th October, 2006.

2007 C L C 941

[Karachi]

Before Sabihuddin Ahmed, CJ

Dr. MUKHTAR AHMED----Appellant

Versus

Mst. SHAMIM HASHMI----Respondent

1st Appeal No.10 of 2006, decided on 20th November, 2006.

(a) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---Application made to a person and authority for protection of one's own interest could not amount to defamation.

(b) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---False statement---Ingredients---Claim of damages---Burden to prove---Accused, in the present case, had stated in evidence before the trial Court that allegations complained were false and could not be proved but beyond that nothing was said--Section 3 Defamation Ordinance, 2002 makes a false statement causing injury to the reputation of a person or to bring him in redicule, unjust criticism and dislike a defamation---Distinction in this context needs to be drawn between the statement, ,which is not proved and one which is explicitly found to be false for the purpose of Defamation Ordinance, 2002---All benefits, under criminal law are to be granted to an accused and the prosecution must establish its case beyond a reasonable doubt---Very strong burden of proving a statement to be false is to be discharged by the plaintiff in a suit for damages and the mere fact that it could not be proved, does not necessarily show that it was false--If such distinction is obliterated, every accused granted the maximum benefit of doubt may upon acquittal bring an action for defamation, which does not appear to be the intention of law.

Arshad Jamal Siddiqui for Appellant.

2007 C L C 943

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD ANAS KAPADIA and 19 others----Plaintiffs

Versus

M. FAROOQ HAJI ABDULLAH and 5 others----Defendants

Suit No.1251 and C.M.A. No.7107 of 2005, decided on 5th August, 2006.

(a) Karachi Change of Lands Use and Master Planning Bye-Laws, 2003---

----Sindh Local Government Ordinance (XXVII of 2001), S.195, Sixth Sched. Items 24 & 25---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Sindh Chief Court Rules (OS), R.76---Constitution of Pakistan (1973), Arts.9, 14, 23, 24 & 25--Suit for declaration, injunction and cancellation of document---Application for grant of injunction---Commercialization of a residential plot in residential area---Plot in question was situated in a residential area and the plaintiffs were residents of the said area---Plaintiffs had prayed in the application under O.XXXIX, Rr.1 & 2, C.P.C. read with R.76, Sindh Chief Court Rules (OS) that the owner of the plot may be restrained from using the said plot for any other purpose except residential and restrain the authorities from commercialization and/or approving the plans for commercial buildings---Validity---Plot in question, admittedly was situated in a residential area and the plaintiffs were residents of the area---Plaintiffs had right to object construction of high rise building in their neighbourhood provided they established that their right of privacy, light and' air would be disturbed---Proposed commercialization, apparently, was in violation of the clause of lease---Owner upto the date had not obtained any approval from the lessor and without its approval the authorities had issued NOC for change of land use and demanded a sum of Rs.81,00,000 from the builder who deposited the same--Bye-laws framed by the City District Government did not provide for any approval from the lessor---No objection certificate, issued by authorities apparently, was in violation of lease conditions and the builder taking advantage of Bye-Laws 2003 could not violate the lease conditions---Breach of lease conditions had a direct bearing upon the vested rights of the plaintiffs and they had the right to object to the same and to protect their vested rights---Plaintiffs, apart from breach of lease conditions had also claimed violation of easementary rights, and had provided the details of the same---Violation of easementary rights being independent from the violation of lease, tentatively it could be said that construction of high rise commercial building in the vicinity of a recognized residential area, without providing necessary infrastructure, would not be in the interest and welfare of plaintiffs---If the injunction application was refused the process of commercialization would be completed and the plaintiffs will suffer as after commercialization and construction of building the builder might create third party interest and it would be difficult to reverse the position and bring it to the position as on the date of filing of the suit---Corpus of the dispute was to be preserved during pendency of the proceedings so that if any decree was passed the same could be executed---Plaintiffs having succeeded to make out a prima facie case for grant of injunction as prayed and balance of convenience also being in their favour, they would suffer an irreparable loss and injury in case such injunction was refused--Application for grant of injunction was allowed by the High Court.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and Messrs Continental (Pvt.) Limited v. Government of Sindh through Secretary, Housing Town Planning Department, Karachi and another 1996 CLC 417 ref.

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

----Chap. 1 (Arts.8 to 28)---Every citizen has right to live in a peaceful environment, clear atmosphere and the right to have protection from encroachment on privacy and liberty---Any law, in so far as it is inconsistent with the rights conferred by Chapter I of the Constitution, shall, to the extent of such inconsistency, be void.

Ms. Rizwana Ismail for Plaintiffs.

Manzoor Ahmed for Respondent No.3.

Abid S. Zuberi for Respondent No.6.

2007 C L C 978

[Karachi]

Before Munib Ahmad Khan, J

PRUDENTIAL COMMERCIAL BANK LTD. through Attorneys ----Decree-holder

Versus

WEST PAKISTAN TANKS TERMINAL (PVT.) LTD. and 5 others----Judgment-debtors

Execution Application No.29 of 1998, C.M.As. Nos.684, 685, 709, 712 and 714 of 2006, decided on 10th November, 2006.

Civil Procedure Code (V of 1908)---

----O. XXI, R.29---Banker and customer---Applications for stay of execution pending suit between decree holder and judgment-debtors---Certain relaxations during the course of execution had been granted and no sound efforts had been made to pay off the debts---Court, though could stay the proceedings under O.XXI, R.29, C.P.C. but that could be subject to sufficient security to satisfy the existing decretal amount with future claim in respect of mark-up, which aspect was missing in the present case---Record showed that execution was filed in 1998 while the applications under O.XXI, R.29, C.P.C. had been filed after about seven years, which apparently was late in time---Judgment-debtors could make certain efforts if they were inclined to satisfy the decree but the same was not done---Adjustment which had been claimed in respect to sale proceed of pledged shares did not belong to either of the judgment-­debtors---Applications for stay of execution proceedings had no force in circumstances---Official Assignee was allowed to proceed further in terms of the order already passed by the Court.

AIR 1928 Cal. 222; AIR 1936 Mad. 102; PLD 1957 Dhaka 603; AIR 1931 Born. 247; Order 21 R-29 C.P.C.; AIR 1935 Rangoon 151 and 1972 SCMR 236 ref.

Shahab Sarki for Decree-holder.

Ali Sibtain Fazli for Judgment-debtors Nos.1, 2 and 4.

2007 C L C 994

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

M. YOUSUF ADIL SALEEM & CO. and 7 others---Appellants

Versus

HAMID MASOOD---Respondent

High Court Appeal No.30 of 2007, decided on 25th April, 2007.

(a) Partnership Act (IX of 1932)---

---Ss. 32, 33, 39, 40, 41, 42, 43 & 44---Retirement of a partner---Modes, conditions and effect---Where the partnership provides the mode of retirement, such mode has to be adopted for retirement alone which would fall within the ambit of S.32(1)(b), Partnership Act, 1932---Principles.

A perusal of Partnership Act reveals that there are three ways of retirement of partner: (1) dissolution of partnership as provided under sections 39 to 44; (2) one or more partners' retirement as provided under section 32; and (3) expulsion of partner as provided under section 33. It will be noticed that the word "dissolution" is defined whereas "retirement" is not defined in the Partnership Act. The retirement of a partner from the firm is somewhat different from the dissolution of the firm. According to section 39 which defines the dissolution, "dissolution" means dissolution of the partnership as between all the partners. What happens on the retirement, on the other hand, is that the partnership is not dissolved. It remains what it has been, but only a member or two leave it. This can happen clearly because the very scheme of the Partnership Act is such that ingress and egress of members can be regulated without affecting the continuity of the firm.

The retirement of a partner has the effect of dissolving the jural relations of partnership inter se amongst all tote partners. A partner can retire in the cases set out in section 32 and when he does so, he is said to have retired from the firm.

From the bare reading of S.32, Partnership Act, 1932 it is clear that a partner may retire;

(a) with the consent of all other partners. This will result in amicable retirement of a partner, (b) in accordance with an express agreement by the partners. This will result in a case where the partnership agreement itself provides for the retirement of a partner or partners under certain conditions, (c) in case a partnership is at will a partner may retire by giving notice in writing to all other partners of his intention to retire.

It appears that all the three clauses of S.32, Partnership Act, 1932 cover different situations as clause (a) deals with the situation where there is no express agreement in the partnership deed with regard to the retirement of partners or the partnership is at will.

Clause (a) is a general provision about retirement of partner. The clauses (b) and (c) deal with specific situations mentioned thereunder, as such, those are special provisions in respect of retirement of partner. When a statute has general and special provisions then special provision will prevail over general provision. Applying the above principle when conditions mentioned in clauses (b) & (c) are fulfilled then retirement should be made in that manner alone as the partners have unanimously agreed to such procedure. If no such agreement appears in the partnership deed then the partner can retire in the manner as provided under clause (a) only. Nevertheless, if all the partners agree upon retirement of partner in the manner as provided under clause (a), then such mode can also be adopted in retirement of partner, subject to proof of such fact showing modification in the partnership agreement within the meaning of Articles 102 & 103 of Qanun-e-Shahadat, 1984. Thus the clauses (a), (b) & (c) are mutually exclusive.

Where the partnership deed provides the mode of retirement, such mode should be adopted for the retirement alone. If a thing is required to be done in a particular manner then it shall be done in that manner alone. When the mode of retirement is provided in the partnership deed, the case would fall within the ambit of section 32(1)(b) of Partnership Act.

S.W.F. Product (Pvt.) Limited v. Sohanlal Bagla AIR 1964 Cal.209; IT v. A.W. Figgis AIR 1953 SC 455 and Moss v. Elphick 102 LT 639 ref.

(b) Partnership Act (IX of 1932)---

---Ss. 7 & 68---Partnership at will---Rules of evidence---Principles---Entries of the Registrar of Firms appearing in his Register made on the information furnished by firm would be conclusive proof against the firm by virtue of S.68, Partnership Act, 1932---Estoppel, principle of---Applicability---Scope---Conclusive proof' andconclusive evidence'---Definition.

Somawanti v. State of Punjab AIR 1963 SC 151 ref.

(c) Partnership Act (IX of 1932)---

----S. 7---Partnership at will---Implications---Where no provision is made by contract between the partners for the duration of the partnership, or for the determination of the partnership, the partnership is `partnership at will'---Exceptions.

Section 7, Partnership Act, 1932 provides that where no provision is made by contract between the partners for the duration of the partnership, or for the determination of the partnership, the partnership is partnership at will. Thus, section 7 of the Act contemplates two exceptions to a partnership at will. The first exception is where there is a provision in the contract for the duration of the partnership, the second exception is where there is a provision for the determination of partnership. In either of these cases the partnership is not at will. The duration of a partnership may be expressly provided in the contract. Nevertheless, where there is no express agreement to continue a partnership for a definite period there may be an implied agreement to do so. The general rules of partnership are well settled. Where no term is expressly limited for its duration, and there is nothing in the contract to fix it, the partnership may be terminated at a moment's notice by either party-without doubt, in the absence of express term, there may be an implied contract as to the duration of a partnership.

The same principle applies to a case of determination. The contract may expressly provide that the partnership will determine in certain circumstances; but even if there is no such express term an implied term as to when the partnership will determine may be found in the contract.

It has been observed in Moss's case (102 L.T. 639) that in order to negative the implication of a partnership at will, there must be some express or implied agreement that is inconsistent with the right which a partner would otherwise have to determine the partnership by notice. Thus, an express term that "This agreement shall be terminated by mutual arrangement only" will clearly amount to such an agreement.

Whether the partnership is a partnership at will or not is a question of interpretation of the partnership deed and the conduct of the partners.

Crawshay v. Maula (1818) 36 ER 479 ref.

(d) Partnership Act (IX of 1932)---

----Ss. 7 & 32(1)(c) Partnership at will---Retirement of a partner---Procedure provided under S.32(1)(c), Partnership Act, 1932 is required to be followed.

(e) Words and phrases---

----`Tantamount'---Meaning.

Chamer's 21st Century Dictionary ref.

(f) Partnership Act (IX of 1932)---

----S. 32(1)(a)---Retirement of a partner---Conditions---Mere non-signing of agreement of alteration of partnership deed cannot be a ground by itself to retire a partner.

Under section 32(1)(a) of the Partnership Act, 1932 a partner has to make, suggest or intend to retire voluntarily with his freewill, without any pressure, inducement, threat, promise and such proposal or intention of retirement can be expressed at any time subject to the condition that all the partners are agreeable to retirement, voluntarily with their own freewill without any pressure, inducement or coercion. Partnership is a voluntary association of consenting members, therefore, with equal ease the membership of anyone of them can be de-linked with the consent of all of them. "Consent" may take the form of an express agreement, but it may equally be inferred from conduct. The very fact that nobody objects to the retirement is sufficient evidence of consent by acquiescence. Nevertheless, the first and foremost condition is the intention or proposal of retirement of the partner, which should be voluntarily made clear, unambiguous, without pressure, promise and coercion. If the above elements are missing in the proposal then the same cannot be termed as a valid and legal proposal hence the consent, if any, given on such type of proposal would not affect the relationship between the partners.

The non-signing of the agreement of alteration of partnership deed was not the ground by itself to retire a partner.

(g) Partnership Act (IX of 1932)---

----Ss. 7, 32 & 68---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Partnership at will---Suit for permanent injunction with a prayer for restraining the defendant (one of the partners) from acting as partner of the firm and for mandatory injunction---Plaintiff had failed to show the prima facie case in his favour---Balance of convenience was also not in favour of the plaintiff as great inconvenience was likely be caused to the defendant if he was debarred from participating in the partnership firm---Defendant was associated with the firm from the year 1986 and had raised serious objections before the Registrar of the Firms when he came to know that his name was excluded from the partnership firm and conditions mentioned in S.32(1)(b) of the Partnership Act, 1932 had not been fulfilled---If the defendant was debarred from acting as partner in the firm, irreparable loss would be caused to him which could not be compensated in terms of money because he would suffer not only financially but mentally and physically---High Court declined to interfere in the order refusing the grant of injunction by the Single Judge in original jurisdiction.

(h) Estoppel---

----Principle of---Applicability---Scope.

Somawanti v. State of Punjab AIR 1963 SC 151 ref.

Kamal Azfar for Appellants.

Salahuddin Ahmed for Respondent.

Date of hearing: 28th March, 2007.

2007 C L C 1499

[Karachi]

Before Gulzar Ahmed, J

Messrs SARWAT ALI & SONS----Applicant

Versus

GENERAL MANAGER T&T, W.T.R. QUETTA and another----Respondents

J.M. No.9 of 1987, decided on 20th June, 2007.

(a) Arbitration Act (X of 1940)---

----Ss. 30, 33 & 20---Application under Ss.30 and 33, Arbitration Act, 1940 with prayer to set aside the award---Consultant of the contract who seemed to have entered upon a first arbitration, had, in material sense, discussed all matters of dispute between the parties by formulating points and then proceeded to consider the documentary evidence that was placed before him and thereafter gave his decision---Consultant had adorned himself as first arbitrator and at many places in his decisions mentioned that if the party was not satisfied with his decision, appeal to a functionary of the Government Department was provided in the arbitration clause of the agreement---Such assumption by the consultant would not change the character of the arbitration clause itself as he (consultant) was not named to be an arbitrator but a forum where he could settle the dispute between the parties---Consultant, apparently was not required to hear evidence or arguments or to make an enquiry in the form of a judicial determination but was to confine himself to hearing point of view of both the parties and bring them to a settlement failing which, he was to give his decision not based upon enquiry or of the nature of judicial determination---Decision of the consultant, in circumstances, could not be termed to be an `award' which could be made, in terms of arbitration clause only by the functionary of the Government Department or his nominee who was named as an arbitrator in the arbitration clause of the agreement---High Court, converted the application under Ss.30 and 33 of Arbitration Act, 1940 into a suit under S.20, Arbitration Act, 1940 and referred the dispute for arbitration to the functionary of the Government or his nominee who would give award in accordance with law.

New Jubilee Insurance Company Ltd. v. National Bank of Pakistan PLD 1999 SC 1126; Government of N.-W.F.P. v. Hussain Ahmed Haroon 2003 SCMR 104; Rasheeda Begum v. Ch. Muhammad Anwar FLD 2003 Lah. 522; Fazal Din v. Commissioner Peshawar

Division PLD 1968 Pesh. 30; Ch. Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516 and Syed Ziauddin v. Syed Raze-ud-Din 1999 YLR 978 ref.

(b) Arbitration Act (X of 1940)---

----Ss. 30, 33 & 20---Application under Ss.30 & 33 of Arbitration Act, 1940 with prayer to set aside award---Consultant having a direct pecuniary interest in the matter, could not at all be a judge to give decision on his entitlement to his own supervisory expenses---Such would be violation of Art.4 of the Constitution---Said consultant, though was not a judge to make a judicial determination but the very fact that the arbitration clause in the agreement made him a forum for making a decision on dispute between the parties regarding his own supervisory expenses, he was not a person qualified to sit and make decision and his decision would not be legal and could not remain final or binding on the parties but void--- High Court, converted the application under Ss.30 & 33 of Arbitration Act, 1940 to a suit under S.20, Arbitration Act, 1940 and referred the dispute for arbitration to the functionary of the Government or his nominee who would give award in accordance with law.

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689 fol.

(c) Administration of justice---

----Any direct pecuniary interest, however small in the subject of enquiry, does disqualify a person from acting as a judge in the matter.

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689 fol.

H.A. Rehmani for Applicant.

Shabbir A. Shaikh for Respondent No.1.

Nemo for Respondent No.2.

Dates of hearing: 7th, 16th, 28th February and 7th March, 2007.

2007 C L C 1568

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

NAVAID HUSSAIN and 5 others----Appellants

Versus

JAHANGIR SIDDIQUI through Attorney and 9 others----Respondents

High Court Appeal No.15 of 2007, decided on 8th May, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Change of Land Use and Master Planning, Bye Laws, 2003, Bye-law No.3(2)---Interim Injunction, refusal of---Appellants had challenged construction raised by respondents on plot in question on the ground that plot in question which was residential one had illegally been converted into commercial one and that proper procedure for making residential plot into commercial, had not been adopted---Appellants had moved application under O.XXXIX, Rr.14 & 2, C.P.C. for grant of interim relief/temporary injunction, which was contested by the respondents---Court, after hearing the counsel of the parties, dismissed said application by impugned order--Validity---Disputed plot was situated on a road, which was a commercial road as per Resolution of the Authority---Once an area was declared as commercial, then commercial activities were required to be carried out in accordance with law without any hindrance---Tentative assessment of the material available on record showed that appellants had no prima facie case---Balance of convenience was also not in favour of appellants as great inconvenience was likely to be caused to owners of plot in question in exercising their legal rights to deal with said plot was per law---Entire building on the plot was completes and third party interest had already been created---No irreparable loss would be caused to the appellants, if interim injunction was refused to them, because the loss, if any, could be compensated in the shape of damages as claimed by the appellants---Impugned order whereby application filed by appellants under O.XXXIX, Rr.1, 2, C.P.C. was dismissed, did not require any interference.

2005 CLC 759; Irfan v. K.B.C.A. 2005 CLC 694; PLD 2006 Kar. 63; 1989 SCMR 2089 and Excell Builders v. Ardeshir Cowasjee 1999 SCMR 2089 rel.

M. Naim-ur-Rehman, Abdur Rehman and Khursheed Javed for Appellants.

Abid S. Zuberi and Umar Lakhani for Respondents Nos.1(a) and (b).

Faisal Siddiqui for Respondent No.3.

Zafar Ahmed Khan for Respondent No.4.

Yawar Faruqui for Respondents Nos.7 to 10.

2007 C L C 1682

[Karachi]

Before Amir Hani Muslim, J

Syed QUTUB AHMED----Petitioner

Versus

Syed FAISAL ALI SUBZWARI and others----Respondents

Election Petition No.228 of 2002, decided on 14th July, 2007.

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

----Ss. 52 & 68(2)---Election petition---Declaring election of returned candidate as void on ground of corrupt and illegal practice---Petitioner/unreturned candidate, had challenged election of respondent/returned candidate, in his election petition, on the ground that initially petitioner was declared elected as per unofficial results, wherein he claimed to have secured 15126 votes against respondent who was shown to have secured 15104 votes---Petitioner's, further contentions were; firstly, that envelope containing 88 votes claimed to have been polled in his favour, was missing; that said 88 votes were valid and were wrongly excluded from the count and that seal affixed on the votes of different polling stations, was of different number and did not match with the seal of actual polling station, which was allocated particular number by the Election Authority---Petitioner did not examine any witness nor had summoned any officer from Election Authority to establish that any missing envelope containing 8S antes in his favour had been destroyed by the Election Authority with the ulterior motive to benefit the respondent---Mere words of petitioner in the pleadings, in absence of any proof, could not be made a ground to unseat respondent/returned candidate---Petitioner was required to prove allegations of corrupt practice against respondent, which petitioner had failed to do---Petitioner had also failed to prove other allegation of affixation of wrong polling seals on the votes---In order to unseat a returned candidate, on the ground of corrupt practice, standard of proof required was the same as that of proving guilt of accused in criminal proceedings; and that yardstick, if applied in saki proceedings, would show failure on the part of petitioner to establish any proof against respondent; that he in any manner was involved "in corrupt practices---Petitioner had not placed any material of that nature on record---Petitioner, having failed to substantiate allegations against respondent regarding alleged practice, his election petition was dismissed.

Muhammad Junaid Farooqui for Petitioner.

Tariq Ghani Mansoori for Respondent No.1.

Date of hearing: 14th July, 2007.

2007 C L C 1746

[Karachi]

Before Faisal Arab, J

FAHEEM AHMED----Plaintiff

Versus

ATA-UR-REHMAN----Defendant

Suit No.550 of 2004, decided on 13th August, 2007.

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

----S. 55---Time as the essence of contract---Plea that time was of the essence of contract---Scope---Such plea could be taken by a party, who was in a position 'to perform his obligation within time fixed under contract---Such plea could not be taken by a party, who himself had failed to complete documentation necessary for registration of conveyance deed within stipulated time.

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

----S. 12---Transfer of Property Act (IV of 1882), S.54---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement of sale of immovable property---Time fixed in agreement for execution of sale-deed was extended twice by parties with mutual consent---Failure of defendant to complete within extended periods documentation requisite for registration of sale-deed---Issuance of notice by plaintiff showing his readiness/willingness to complete transaction and calling upon defendant to perform his part of agreement---Refusal of defendant to execute sale-deed on the ground that time fixed for performance being the essence of contract had expired---Validity---Nothing was stipulated' in the agreement that time was of the essence of contract---Agreement did not mention that upon expiry of time fixed therein; contract would automatically come to an end---Mere fixing time for performance of an agreement could not be construed as making time the essence of contract---Time was never intended to be made the essence of contract---Defendant on such plea could not avoid and put an end to agreement---Suit was decreed in circumstances.

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

----S. 54---Contract Act (IX of 1872), S.55--Sale of immovable property, agreement for---Time fixed in agreement for execution of sale-deed---Failure of seller to complete documentation requisite for execution of sale-deed before Sub-Registrar---Effect---Unless such documentation was complete, the agreement would continue to remain enforceable at buyer's option, irrespective of the fact whether the time was of the essence of contract or not, provided buyer at all material times had shown his readiness/willingness to complete his part of bargain.

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

----S. 55---Specific Relief .Act (I of 1877), S.12---Time as the essence of contract---Two kinds of contracts, wherein time was and was not the essence of contract---Non-performance of obligation' by any of contracting parties in both such cases---Steps necessary to be taken by willing party before putting an 'end to contract and taking legal action against defaulting party---Remedies available to willing party against defaulting party in both such cases discussed.

In the contracts where time is of the essence of the contract and the seller fails to complete the documentation within stipulated time, the buyer has the option either to sue the seller for damages in lieu of the performance-of the contract or may seek specific performance of the contract and also claim damages in addition to the' relief of specific performance. This course is to be taken by a buyer only when time is the essence of the contract. Where, however, time is not the essence of the contract and the seller fails to perform his part within the stipulated time, then the buyer has to first serve notice upon the seller calling upon him to perform the contract within a reasonable time. If the seller still fails to perform, then the buyer may either put an end to the contract, seek damages in lieu thereof or may seek the relief of specific performance of the contract as well as damages in addition to the relief of specific performance. The difference between the two kinds of contracts is that in cases where time is not the essence of the contract, the contract' cannot be unilaterally put to end by any of the contracting parties without first serving and giving reasonable time to the other side for its performance. Likewise, in .cases where time is the essence of the contract and the buyer avoids or fails to perform the seller can treat the contract as having come to an end and can lawfully refuse .performance if approached by the buyer after the expiry of the period fixed for performance. However, in cases where time is not the essence of the contract anal the buyer avoids or fails to perform within stipulated time, then in such eventuality the seller must first serve notice of his readiness to complete the .transaction and call upon the buyer to complete the transaction. If after receiving seller's notice of readiness, the buyer still fails to complete the transaction within reasonable time, then the contract automatically comes to an end and thereafter creates no obligation on the seller to perform his obligation under the contract. The seller thereafter may sue the buyer for any damage that may have been caused to him upon refusal of the buyer to complete the transaction.

Thus, in "cases where time is not the essence of the contract, the seller is bound to intimate the buyer that the seller is prepared to complete the transaction before the seller could treat the contract as having come to an end. Once the seller gives such intimation, then it is for the buyer to act with necessary dispatch and seek completion of the transaction. The sellers after intimating the buyer of his readiness to perform his part of the contract, is not expected to run after the buyer and continue to remain bound indefinitely by the contract of sale at the opinion of the buyer; When-the buyer becomes aware of the fact that the seller is now ready to perform his part of the contract, then in such circumstances the buyer has to come forward to get the transaction completed within reasonable time. If he does not, then the buyer loses his right to seek specific performance. Inaction on the part of the buyer when seller has demonstrated his readiness to complete the transaction, would by itself reflect that buyer is not ready and willing to perform the contract thereby disentitling himself for the discretionary relief of specific performance of the contract.

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

----S. 12---Suit for specific performance of .agreement of sale of immovable property---Refusal of defendant to perform his part of contract and receive balance amount on the ground. that time fixed for performance had expired---Validity---Defendant's refusal on such ground was not legally justifiable and dishonest, but was a reaction of an ordinary layman---Plaintiff for buying suit property had arranged loan from a Bank, but had not secured- same due to refusal of defendant---Had transaction been completed at stipulated time i.e. four years ago, then interest would have been accrued on loan amount---Amount of interest saved by plaintiff on such loan for -four years, if paid to defendant with balance sale price, would compensate him to certain extent for increase having taken glace in value of real estate during .past four years---Suit was decreed subject to payment of balance sale price to defendant within specified time along with interest @ 12% per annum for four years, but on failure of plaintiff to do so, suit would be deemed to have dismissed.

Naved-ul-Haq for Plaintiff.

Abdul Muqtadir Khan for Defendant.

Dates of hearing: 4th, 18th December, 2006, 22nd January, and 26th February, 2007.

2007 C L C 1757

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mrs. ZAIBUNNISSA----Plaintiff

Versus

MUHAMMAD SAJID and another----Defendants

Suit No.1352, C.M.As. Nos.8490, 9104 of 2004 and 7557 of 2005, decided on 17th January, 2006.

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

----Art. 31---Admission by plaintiff's counsel while arguing case, but correcting himself immediately---validity---Such admission could not be treated as a clear, unambiguous, unqualified and unequivocal admission on the basis of which suit could be dismissed.

Azad Government v. Abdullah and others PLD 1969 (AJ&K) 30; Muhammad Bashir v. Muhammad. Shafi 1984 CLC 609 and Chaudry Muhammad Sharif v. Hassan Ali and others 1999 YLR 1163 ref.

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

----Ss. 39 & 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration, injunction and cancellation of sale agreement---Part payment of sale price to plaintiff under agreement---Application for interim injunction to protect plaintiff's possession over suit property--Validity---Defendant had not paid entire sale price to plaintiff and could not claim. possession in terms of agreement---Plaintiff had every right to protect his possession till entire sale price was paid to him---Plaintiff being in possession of property could not be dispossessed by force---Defendant could not be allowed to .take possession of suit property without establishing his right over property---Plaintiff had made out a prima facie case in his favour---Balance of convenience would lie in favour of grant of injunction---Application for interim injunction was accepted with directions to parties to maintain status quo with regard to title, possession and position of property as existed on date of institution of suit.

Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Jant Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194; Taleh Bibi and others v. Mst. Maqsooda Bibi and another 1997 SCMR 459; Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Karachi Parsi Cooperative Housing Society Ltd. v. Dina S. Hazari and others 2004 YLR 2071; National-Bank of Pakistan v: Mst. Hajra Bai and 2 others PLD 1985 Kar. 431; Federation of Pakistan v. Public-at-large 1988 SCMR 2041; Hem Chandra Roy Chaudhury v. Suradhani Debya Chaudhrani and others AIR 1940 PC 134; Purna Chandra Choudhury v. Sarojini Choudhurani AIR 1935 Calcutta 234 ref.

Ghulam Muhammad v. Ch. Khushi Muhammad and another 1985 CLC 457 rel.

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

----O. VII, R.11---Rejection of plaint, application for---Court while hearing such application would not consider plea of defence---Plaint would be accepted or rejected on basis of facts disclosed therein.

Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Karachi Development Authority v. Hadi Bux Memon and another 1992 CLC 1036 rel.

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

---O. VII, R.11---Rejection of plain in part not permissible.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, injunction, cancellation of sale agreement and damages---Rejection of plaint, application. for---Validity---Plaint could not be rejected in part---Plaintiff had claimed four independent reliefs, and even if one relief was permissible, then plaint could hot be rejected---Plaint in presence of claim for damages .could not be rejected---Application was dismissed in circumstances.

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

----O. VII, R.11---Rejection of plaint in presence of claim for damages not permissible.

Mushtaq A. Memon for Plaintiff.

Kh. Shamsul Islam for Defendants.

2007 C L C 1783

[Karachi]

Before Atta-ur-Rehman, J

M. MASOOD KHAN and 39 others----Plaintiffs

Versus

PROVINCE OF SINDH through Member Land Utilization Department, Karachi and another----Defendants

Suit No.683 of 2003, C.M.As. Nos.6681, 4356 and 6680 of 2004 decided on 7th- December, 2004.

(a) Sindh Goth Abad (Housing Scheme) Act (VII of 1987)---

----Ss. 3, 8 & 10---Order of Collector allotting 20 acres of land at one and same time to applicants---Validity---Impugned order. disclosed neither names of persons applying for allotment nor area of land allotted to each, applicant---Impugned order did not disclose' on what considerations such allotment was made by Collector---Impugned order was in contravention of S.3, Sindh Goth Abad (Housing Scheme) Act, 1987, under which Collector, on recommendation of .Allotment Committee, might allot, for construction of house a piece of land to an applicant not exceeding 2 Ghuntas, which limit under proviso 'thereto would not apply to land or Asaish whereupon a deserving person had built a house before coming into force of Sindh Goth Abad (Housing Scheme), Act, 1987.

(b) Sindh Goth Abad (Housing Scheme) Act (VII of 1987)---

----Preamble, Ss.1, 2(m) & 3---Sindh Goth Abad (Housing Scheme) Act, 1987, would come into play in respect of existing village, in absence of which question of allotment under S.3 or proviso thereto, would not arise.

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

----S. 4---Assessment Committee, powers of---Scope---Such Committee could not decide title of parties, but would only determine market value prevailing at the time of allotment of lands to parties.

Fiaz H. Shah for Plaintiffs.

Ahmed Pirzada, A,A.-G., Manzoor Ahmed and Muhammad Akhtar along with Abdul Aziz, Mukhtiarkar Scheme 43 for Defendants.

Date of hearing: 7th December, 2004.

2007 C L C 1790

[Karachi]

Before Khilji Arif Hussain, J

JAN MUHAMMAD ABBASI----Applicant

Versus

MUKHTIARKAR ESTATE, LARKANA (BARRAGE MUKHTIARKAR) and others----Respondents

Civil Revisions Applications Nos.69 to 71 of 2004, decided on 31st May, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.30---Sindh Revenue Jurisdiction Act (X of 1876), S.11---West Pakistan Land Revenue Act (XVII of 1967), S.53--Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration---Entries standing in plaintiff's name in record of rights as owner of State land---Cancellation of such entries by Authority for being made on basis of forged documents---Suit by plaintiff for declaring such order as ab inito void and illegal---Maintainability---Plaintiff had filed suit without first availing remedy available under West Pakistan Land Revenue Act, thus, suit was barred by S.11 of Sindh Revenue Jurisdiction Act, 1876---Provision of S.53, West Pakistan Land Revenue Act, 1967 would apply to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry----An order not passed strictly in accordance with law, would not become an order without jurisdiction---Plaintiff, except oral statement, had not produced in court any document showing granting of State land to him in open Katchery and payment of its entire price by him---Suit was dismissed on merits and also for being non-maintainable.

Hawaldar Sawar Khan v. Province of Sindh 1998 CLC 382; Muhammad Hafeez v. Jalal Din 1981 SCMR 1171 and Himayat Ahmad v. Khalid Khan and others 1991 MLD 153 rel.

Muhammad Anwar Channa for Applicant-(in all R.As.).

Muhammad Bachal Tonyo, Addl. A.-G. for Respondents (in all R.As.).

Date of hearing; 17th May, 2005.

2007 C L C 1811

[Karachi]

Before Sabihuddin Ahmed, C.J. and Faisal Arab, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.----Appellant

Versus

MERCHANT AGENCY----Respondent

H.C.A. No.328 of 2006, decided on 23rd November, 2005.

Civil Procedure Code (V of 1908)---

----O. XXIX, R.1---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Appellant/ company's suit for recovery was dismissed by the High Court on the sole ground that it was not maintainable in law as no resolution passed by appellants/company's Board of Directors was filed authorizing the person to file suit on behalf of the Company---Perusal of notings on the internal file of the company, had shown that their Directors including the then Chairman of the company gave their respective approval to the filing of recovery suit against respondent---Suit was filed against respondent only after such approval---Articles of Association of the company had provided that minimum quorum for the meeting of the Board of Directors, would be two Directors---Even if no formal meeting of Directors was called for passing the requisite resolution, approval of three Directors including the Chairman could be treated as resolution by circulation under Articles of Association of the company granting authority for filing recovery suit---Held, though no formal resolution. was passed in a meeting for filing recovery suit against respondent, there did exist approval of the requisite number of Directors who authorized filing of the suit---Absence of formal resolution, in circumstances, could only be treated as technical omission, which, in peculiar circumstances, could not be regarded as incurable defect---Impugned judgment and decree, were set aside.

Samiuddin Sami for Appellant.

Nemo for Respondent.

Date of hearing: 23rd November, 2006.

2007 C L C 1821

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD ANWAR----Plaintiff

Versus

PAK ARAB REFINERY LIMITED through Managing Director----Defendant

Civil Suit No.1343 of 2004 and C.M.A. No.1216 of 2005, decided on 29th August, 2007.

Limitation Act (IX of 1908)---

----S. 3, Arts.19, 22 & 23---Civil Procedure Code (V of 1908), O. VII, R.11(d)---Malicious prosecution and false imprisonment---Recovery of damages---Limitation---Duty of Court---Plaintiff was acquitted on 16-6-2001 and suit for recovery of damages was filed on 11-6-2004---Defendant company sought rejection of plaint for its being barred by limitation---Validity---Plaint could be rejected under O. VII, R.11(d), C.P.C. where it appeared to be prima facie barred by any law from perusal of statements .in the plaint and no inquiry was needed---Question of limitation was always not a mixed question of law and facts---Where question of limitation was apparent on the face of record, the court could proceed without any further inquiry---Matters of limitation could not be left to .pleadings of parties---Duty had been imposed on court to notice point of limitation, irrespective of fact whether plea of limitation was raised or not---Suit was prima facie barred by limitation provided under Arts.19, 22 and 23 of Limitation Act, 1908'--Plaint was rejected in circumstances.

Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lah. 298; Kayumraz v. Messrs Mohammedi Tramway Company, Karachi PLD 1968 Kar. 376 and Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi AIR 1964 Pat. 372 ref.

Nemo for Plaintiff.

Shahid Anwar Bajwa for Defendant.

2007 C L C 1829

[Karachi]

Before Nadeem Azhar Siddiqi, J

RUKNUDDIN (PVT.) LTD.----Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY----Defendant

Suit No.1517 of 2001, decided on 27th August, 2007.

Civil Procedure Code (V of 1908)---

---O. X, R.4 & S.151---Oral examination by court---Non-appearance of defendants---Striking off defence---Recalling of order---Court intended to examine parties but as defendants did not appear personally before the court, therefore, their defence was struck off---Validity---Order for personal appearance of a party under O.X, R.4, C.P.C. could only be made if their counsel had refused to answer material questions relating to the suit---Personal appearance of defendants was ordered without hearing counsel for defendants and without giving finding that their counsel had refused or was unable to answer material questions relating to the suit---High Court recalled its earlier order whereby defence of defendants was struck off---Application was allowed accordingly.

Irfanullah Khan for Plaintiff.

Qaiser Jameel for Defendant.

2007 C L C 1835

[Karachi]

Before Faisal Arab, J

Messrs UNION TAXES PAKISTAN INC.----Appellant

Versus

AHMED and others----Respondents

Appeal No.22 of 2005, decided on 31st August, 2007.

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

----S. 11---Acquisition of land---Compensation---Determination---"Transactional method" and "yearly income method"---Distinction---Several modes of determining compensation of land existed which include transactional value of similar lands in the same vicinity as well as ascertaining yearly rental value of land and then multiplying the yearly income with 20 times to determine its price---Method of transactional value is the most unreliable mode of determining compensation as it is not unusual that purchaser, in order to avoid stamp duty on actual transactional value or to conceal actual sale consideration, resort to valuing the lands at the minimum possible price---Other mode of determining value of land is by adopting formula of multiplying yearly rental of land 20 times to reach its value---Such mode is the most accurate mode of valuing land particularly when lands which are sought to be acquired or any other similar land in the vicinity is already fetching yearly rental income.

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

----S. 11---Acquisition of land---Compensation---Determination---Potential value of land---Scope---Potential value of land sought to be acquired is one of the factors to be considered while determining compensation of land.

Gunj Khatoon v. The Province of Sindh 1987 SCMR 2084; Aman v. Land Acquisition Controller PLD 1988 SC 32 and Muhammad Saeed v. Collector, Land Acquisition 2002 SCMR 407 rel.

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

----S. 18---Acquisition. of land---Receiving of compensation imposes bar to seek enhancement---Validity---Receiving compensation determined by Land Acquisition Officer and seeking enhancement of compensation under S.18, Land Acquisition Act, 1894, are two different things---Receipt of amount does not divest a party to seek enhancement in legal proceedings.

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

----Ss. 18 & 54---Appeal---Locus standi---Reference filed under S.18, Land Acquisition Act, 1894, by landowner---Referee Court enhanced compensation---Company for whose benefit land was being acquired was aggrieved of the enhancement and had assailed the judgment passed by Referee Court---Validity---Local authority .or the company for whose benefit land was acquired had no right or locus standi to question determination of compensation by way of reference or appeal---Appeal was dismissed being not maintainable in circumstances.

AIR 1931 Sind 168; AIR 1949 Mad. 902 and PLD 1960 Lah. 469 ref.

Pir Khan v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; Behram Khan and 54 others v. Military Estate Officer and 2 others 1988 SCMR 1160; Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others 1989 SCMR 812; ICA Pakistan Limited v. Salahuddin and others 1991 SCMR 15 and Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193 rel.

Jhamat Jethanand for Appellant.

Aijaz Ali Hakro for Respondents Nos.1 and 2.

Mushtaque Ali Samo, A.A.-G.

2007 C L C 1846

[Karachi]

Before Muhammad Moosa K. Leghari, J

S.M.A. No.118 of 2005 in Re:

S.M.A. No.118 of 2005, decided on 17th April, 2,007.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 291---Petition for grant of Letter of Administration---Petitioner had stated that deceased owner of immovable property died leaving behind petitioner and two other legal heirs---Said two other legal heirs of deceased filed affidavit wherein they had stated that they had no objection to the grant of the Letter of Administration in favour of petitioner---Said legal heirs also appeared before the court and confirmed the contents of their. affidavits---Notice of petition of petitioner was got published in the Newspaper to invite objections against the same from the interested persons, but none had come forward to file objection---Petition was granted, and Letters of Administration pertaining to the immovable property left by the deceased was directed to be issued in the name of petitioner, provided that he would furnish administration bond far the purpose of S.291 of the Succession Act, 1925 for the value of said immovable property to the satisfaction of Nazir of the court.

Mukhtar Ahmed for Petitioner.

Akhtar Hussain for L.Rs. Nos.1 and 2.

2007 C L C 1853

[Karachi]

Before Mushir Alam, J

Haji MUHAMMAD ALI----Plaintiff

Versus

Mst. SHAHNAZ AKHTAR and 4others----Defendants

Suit No.421, C.M.As. Nos.2607; 2608, 7496 of 2004 and C.M.A. No.2417 of 2004 in Suit No.368 of 2004, decided on 7th February, 2005.

Contract Act (IX of 1872)---

----S. 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement of sale---Interim injunction, application for---Total sale consideration was Rs.1,06,00,000---Plaintiff claimed to be in possession of property on payment of Rs.5,30,000 to defendant---Balance amount of Rs.1,00,70,000 was payable to defendant at the time of registration of sale-deed in his favour upto 60 days from date of agreement---Such term of agreement had made time as the essence of contract---Plaintiff had not paid balance amount---Plaintiff had not disputed legal notice of defendant calling upon him to pay balance amount---Value of property was multiplying day and night---Plaintiff could not be allowed to freeze valuable property of defendant against a meagre sum for indefinite period---Balance of convenience would not lie in favour of plaintiff---Equitable discretion could not be exercised in favour of plaintiff in such circumstances---Application was dismissed accordingly.

Zahid Marghoob for Plaintiff.

Fiaz H. Shah for Defendants Nos. 1 to 4.

2007 C L C 1892

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

CHANESAR----Applicant

Versus

MUHAKMUDDIN and another----Respondents

Case No.SROR 92 of 2005, decided on 17th September, 2005.

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

----S. 10(4)---West Pakistan Land Revenue Act. (XVII of 1967), S.164---Cancellation of allotment of land---Respondent had been proved to be never in possession of land in dispute and had never been a tenant as contemplated by S.10(4) of Colonization of Government Lands (Punjab) Act, 1912 and had no right whatsoever over the land---Allotment of land made in favour of respondent, in circumstances was void ab initio and no limitation would run against a void order---Allotment made in favour of respondent, automatically stood cancelled, when he failed to pay initial deposit within stipulated period of 30 days and by receiving some amount 11-om respondent, land would not stand restored in his favour---Land in dispute being State land, could be disposed of afresh in open hatchery as per land grant policy, provided that no ban over the allotment/grant was imposed by the Government in Land Utilization Department, and that land in question was free from all encumbrances.

Sadaruddin N. Shaikh for Applicant.

Mumtaz Ali Bughio for Respondent No.1.

2007 C L C 1902

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

ILLAHI BUKHSH and another----Petitioners

Versus

Mst. MALIHA and others----Respondents

Revision Petition No.129 of 2002, decided on 23rd June, 2005.

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

----S. 39---Mutation---Powers of Revenue Officer Revenue Court---Scope---Revenue Officer could not declare a registered document as `void' but in mutation cases, the purpose of issuing notices (even in the case of registered document) inviting objections to the document and deciding the objections (if any) in open Katchery by the mutation officers, was to enquire into the correctness of the document---Revenue Officer, even in the case of registered document, was competent, to a certain limit, to examine the previous title of the land area mentioned in the sale-deed which must be tallying with the area mentioned in the record---Revenue Officer/Revenue Court was not competent to declare any registered document as void, but he was not prevented from refusing the mutation of "Mutsarfi", which meant that title, possession, ownership was not clear---If those were not tallying or there was any discrepancy in between the area mentioned in the registered document and the area mentioned in the revenue/city survey record etc.---Revenue Officer/City Survey Officer would be justified in refusing the mutation till such time the documents were ratified through ratification deed or any other mode admissible under the law.

PLD 1975 Rev. 53 (Punjab) and 1999 SCMR 1245 ref.

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

----Art. 117---Burden of proof---In case of allegation/objection, that signatures put on special as well as general power-of-attorney, were not genuine and. were forged, burden of proof that power-of-attorney was genuine, would ordinarily be shifted to the persons who were benefited from such document.

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

----Ss. 39(2)(d) & 42---Sindh City Survey Rules, 1988, R.9(5)---Change in mutation---Property Ruled Card, as envisaged in R.9(5) of Sindh City Survey Rules, 1988, read with S.39(2)(d) of West Pakistan Land' Revenue Act, 1967, was deemed to be the record-of-right and would be governed by West Pakistan Land Revenue Act, 1967---Any subsequent change/mutation in the Property Ruled Card was to be effected in accordance with provisions of S.42 of West Pakistan Land Revenue Act,1967.

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

----S. 42---Mutation---City Survey---Where there was city survey, it was understood that for the words "Mukhtiarkar (Revenue)", wherever used in S.42 of West Pakistan Land Revenue Act, 1967, the words "City Survey Officer" were to be read.

(e) Maxim---

----"A communi observantia non est recedendur"---Meaning---Maxim "A communi observantia non est recedendum." means that where a thing was provided to be done in particular manner, it had to be done in that manner, and if not so done, same would not be lawful---Where a power was given to do a certain thing in any certain way, that thing must be done in that way or not at all---Any other method of performance was necessarily forbidden.

PLD 2000 Lah. 262 ref.

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

----S. 39---Mutation---Where mutation was not made in accordance with the laid down procedure, same was not legal and proper, and entire structure built on it would crumble---If notices were not issued to the concerned parties and they were not heard, the mutations effected or any appellate or revisioual order passed in consequence of such ex parte proceedings, would be deemed illegal and void.

1993 SCMR 618; NLR 1995 Revenue 26; Zaibtun Textile Mills Ltd. v. Central Board of Revenue PLD 1983 SC 358; 1981 SCMR 1061 and PLD 1971 SC 580 ref.

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

---Ss. 161 & 164--Appeal against order passed by City Survey Officer/Mukhtiarkar---Limitation---Appeal against au order passed (mutation effected) by the City Survey Officer/Mukhtiarkar (Revenue) would be before Assistant District Officer of first grade---Appeal before Executive District Officer .(Revenue) was not an appeal, but was an application for revision under S.164 of West Pakistan Land Revenue Act, 1967, which otherwise was time-barred---Since order of the City Survey Officer was void , question of condonation of delay was immaterial .and appeal/application -was to be considered in time.

PLD 1993 Rev. 19 (Punjab); Mst. Nirmala Mehdi v. Iqbal Mehdi 1993 SCMR 618; PLD 1962 W.P. (Rev.) 21; 2000 MLD -1374; PLD 2003 SC 494 and 2000 MILD 1324 ref.

(h) West Pakistan Board of Revenue Act (XI of 1957)---

----Ss. 2(3), 5(2) & 6(2)---West Pakistan Land Revenue Rules, 1968, R.6---Constituting and governing of Board of Revenue---Board of Revenue was constituted under and was governed by West Pakistan Board of Revenue Act, 1957---Board of Revenue was the highest court of appeal and revision in revenue cases---Any order' made or adecree' passed by Member of the Board, would be deemed to be the order or decree of the Board----Rule 6 of West Pakistan Land .Revenue Rules, 1968, provided that the provisions of Civil Procedure Code, 1908 were partly applicable in the proceedings before the Revenue Offices/Revenue. Courts.

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

----Ss. 4(4), 7(i)(a) & 22---West Pakistan Land Revenue Rules, 1968, R.7---Civil Procedure Code (V of 1908), S.2(2)---Qanun-e-Shahadat (10 of 1984), ArL2(1)(a)--- Court decree, definition of---Power of Board of Revenue---Word court' as defined in Article 2(1)(a) Qanun-e-Shahadat, 1984 includes all Judges, Magistrates and all persons, except arbitrators, legally authorized to take evidence---Worddecree' as defined in S.2(2}, C.P.C., means the formal expression of an adjudication which so far as regards the Court expressing at conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit---Board of .Revenue being Revenue Court', was quite competent to record evidence and require the submission of documents---Not only that, the Board of Revenue/Revenue Officer, was legally authorized to record evidence in the matter being ;adjudicated upon by it/him, but it/he could also issue commissions as envisaged in Rule 7 of West Pakistan Land Revenue Rules, 1968---Board of Revenue, was not only aRevenue Court', but it was also a `Revenue Officer' classified in S.7(1)(a) of West Pakistan Land Revenue Act, 1967 it was empowered under S.22 of said Act to summon any person who .would be bound to state the truth upon oath and produce such documents and other things relating to any such matter as the Revenue Officer could require.

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

----Ss. 42, 161 & 164---Mutation---Issue of notice and affording opportunity of hearing to the person affected/being affected, was mandatory and equally applicable in all mutations, appeals and revisions.

PLD 1980 Rev. 48 and PLD 1980 Rev. 27 ref.

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

---Ss. 39 & 42---Mutation of registered document---Permission for--Seeking permission for the mutation of registered document, was not a legal requirement as it finds place nowhere under any law/enactment---Mutation on the basis of document which. was duly registered, wherever produced, could not be refused if "Mustafri" was clear and there was no legal embargo and statutory procedure was strictly adhered to/complied with---Cancellation of entries on that ground alone could not be considered justified---District Officer (Revenue) and Mukhtiarkar (Revenue)/City Survey Officer, both had .committed the similar gross illegalities by not following the proper legal procedure---Orders passed by them were nullity in law and were not sustainable---Said impugned order was set aside and five mutation orders/entries, effected by said two officers, were also cancelled/set aside, because of being violative of laid down procedure.

Wahid Bux Baloch for Applicants.

Sadaruddin Shaikh for Respondent No. l

2007 C L C 1929

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

NASEEM KHAN----Applicant

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), THATTA and 3 others----Respondents

Case No.SROR-230 of 2005, decided on 5th July, 2006.

Sindh Gothabad (Housing Scheme) Act (VII of 1987)---

----Ss. 3, 6 & 9---Transfer of Property Act (IV of 1882), Ss.41 & 2---West Pakistan Land Revenue Act (XVII of 1967), S.164---Cancellation of allotment of land---Area allotted to each allottee, exceeded the permissible ceiling of 2 Ghunttas and nothing had been produced to prove that said allotments were made on the recommendations of the Allotment Committee and that the allottees were deserving persons---Allotments, in circumstances were made in contravention of S.3 of Sindh Gothabad (Housing Scheme) Act, 1987---Petitioners had purchased certain plots on the basis of oral statement and such entries were made in Form-II---District Officer (Revenue), had cancelled allotments of plots in question in exercise of powers conferred upon him under S.6 of Sindh Gothabad (Housing Scheme) Act, 1987, on the main ground the said allotments had been made in excess of permissible ceiling of 2 Ghunttas---Said allotments were made clandestinely in utter disregard of the process of Sindh Gothabad (Housing Scheme) Act, 1987 in collusion with lower Revenue/Gothabad staff---Ex-allottees, whose allotments had been cancelled had Furnished wrong information for securing allotments/grants and also had committed breaches of conditions of allotment and all said infringements/breaches of conditions of allotment were not rectifiable---Contention of applicant, in present case, was that he being bona fide purchaser of plots in question, was entitled to protection of S. 41 of Transfer of Property Act, 1882---Contention was repelled, as S.2 of Transfer of Property Act, 1882, postulated that nothing contained in the said Act, would apply or be deemed to have ever applied to any grant or other transfer of land or to any interest therein, heretofore made or hereafter to be made by or on behalf of government to or in favour of any person---Applicant, in circumstances, could not get the benefit of any of provisions of Transfer of Property Act, 1882, which was inapplicable in the case---Applicant had not acquired any right in the disputed land, which was State land and was not transferred to him---Revision application filed by applicant being devoid of legal force and incompetent, was dismissed by the Board of Revenue.

T.H. Amer for Applicant.

2007 C L C 1948

[Karachi]

Before Zia Perwez, J

IQBAL AHMED KHAN----Petitioner

Versus

MUHAMMAD AFZAL----Respondent

C.P. No.204 and C.M.A. No.1191 of 2005, decided on 2nd October, 2007.

(a) Administration of justice---

----Natural justice, principles of---Applicability---Pursuing of cases---Scope---Proper and fair opportunity be afforded to parties to pursue their case---Such opportunity, however, should not be made an excuse for misuse of provisions or abuse of judicial process.

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

----S. 12---Civil Procedure .Code (V of 1908), O.XLI, R.19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal, non-restoration of---Ailment of counsel---Failure to file affidavit of counsel---Tenant filed appeal against order passed by Rent Controller and had sought number of adjourmnents---Appellate Court dismissed the appeal for non-prosecution---Plea raised by tenant was that on the date when appeal was dismissed, his counsel was absent due to his illness---Validity---Provisions of O.XLI, R.19 C.P.C. could only come into force after it was proved before appellate court that there was sufficient cause for not proceeding with appeal---Person concerned claiming to be unwell ought to have filed his personal affidavit duly supported by record of medical treatment to show his bona fides---Neither affidavit of counsel nor any medical certificate showing his illness had been filed which had given inference that sufficient compliance of requirements of O.XLI, R.19 C.P.C. was not fulfilled---No illegal exercise of jurisdiction or violation of law or jurisdiction calling for indulgence in exercise of constitutional jurisdiction of High Court was made out---Petition was dismissed in limine.

Muhammad Irfan v. Mst. Fatima Screed 2004 CLD 830; Abdul Aziz Khan v. Noor Muhammad 1985 CLC 583; Sattar Muhammad Raja v. Anwarullah Khan 1985 CLC 1550 and Iqbal Hassan v. Muhammad Anwar 1985 CLC 1957 distinguished.

Abdul Rehman v, Farooq 1989 MLD 951 and Muhammad Ashraf v. Agricultural Development Bank of Pakistan 2000 CLC 1760 ref.

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

----O. XLI, R.19---Scope and applicability of O.XLI, R.19, C.P.C.

Zahid Marghoob for Petitioner.

M.G. Dastgir for Respondent No.1.

2007 C L C 1952

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

Messrs KARIM BIDI WORKS----Petitioner

Versus

CITY DISTRICT GOVERNMENT and another----Respondents

C.P. No.D-523 of 2005, decided on 5th September, 2006.

Administration of justice---

----Duty of public functionaries---Dispensation of .justice not the exclusive function of courts of law---Duty of public functionaries and civic agencies to provide justice to public in routine and petty matters at departmental level---Raising of frivolous objections for sake of objections would not only breed corruption, but would disrepute entire department and force public to approach the court---Resolution of such matters at departmental level would not only save lot of public time, energy and resources, but would save public from hassle of court proceedings---Principles.

Civic agencies and public authorities is repository of public trust. They are required to act honestly and fairly: Dispensation of justice is not the exclusive function of the courts of law. Public functionaries in discharge of their duties are required to act fairly, equitably and diligently and avoid myopic approach. While attending and solving routine problems and/or providing proper guidance that may lead to resolve the problems is in fact a great service and amounts to providing justice at departmental level. Raising of frivolous objections for the sake of objection not only breeds corruption, but also disrepute the entire department. If petty matters were resolved at departmental level, it would not only save lot of public time, energy and resources, but would save citizen from hassle of Court proceedings. The people are forced to knock at the doors of the court as frivolous objections are raised, .hurdles are created for obvious and motivated reasons, compelling affected persons to approach the court. Such conduct on the part of the public functionaries cannot be approved. Large number of cases raising grievances against .the actions of the officials of City/District Government are pending and are regularly being filed. It is high tune Nazim-e-Ala, may look into large number of cases pending against City/District Government, and its affiliated group of officers in courts of law at different level on petty issues, including cases for renewal of lease, demarcation of plots, double or fictitious allotments, .unauthorized construction, allotment and conversion. Nazim-e-Ala may take stock of the matter and take such remedial measure as may provide justice at the departmental level and provide respite to the citizen from cumbersome and expensive legal battle.

Mustafa Lakhani for Petitioner.

Manzoor Ahmed for Respondents.

Date of hearing; 5th September, 2006.

2007 C L C 1956

[Karachi]

Before Zia Perwez, J

MUHAMMAD NADEEM----Petitioner

Versus

NASIMUDDIN and another----Respondents

Constitutional Petition No.S-526 and C.M.A. No.3268 of 2006, decided on 2nd October, 2007.

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

----S. 16---Arrears of rent---Recovery---Tentative rent order---Statutory period of two months---Scope---Proceedings initiated before expiry of period of two months are not invalid.

Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1; Khawaja Muhammad Razzaque v. Omer Farouk 1982 CLC 318; Muhammad Iqbal v. Sheikh Riaz Ahmad 1984 CLC 913(2); Haji Ahmed Haji Essa v. Rent Controller and others 1983 CLC 840; Muhammad Riaz v. Mst. Begum Jan and another 1984 CLC 2970; Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741 and Iqbal Yousuf v. Kishwar Jehan 1991 SCMR 864 ref.

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

----Ss. 14, 15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Tentative rent order---Power of Rent Controller---After service of notice to tenant, landlord did not wait for statutory period of two months and filed ejectment application---Rent Controller passed tentative rent order and directed tenant to deposit arrears of rent---Plea raised by tenant was that proceedings initiated under provisions of S.14 of Sindh Rented Premises Ordinance, 1979, did not empower Rent Controller to entertain application under S.16(1) of the Sindh Rented Premises Ordinance, 1979----Validity---Power to pass tentative rent order was neither confined to cases of withdrawal only nor to cases falling under S.15 of Sindh Rented Premises Ordinance, 1979---No distinction had been made with regard to Ss.14 and 15 of Sindh Rented Premises Ordinance, 1979, for entertaining application---Scope of powers for passing tentative rent order in such cases could not be narrowed down---Constitutional Petition before High Court was not maintainable on the ground of passing of order under S. 16 (1) of Sindh Rented Premises Ordinance, 1979---Cause of action to approach High Court by way of constitutional petition accrued to tenant only when order was passed by Rent Controller ordering for ejectment in compliance of tentative rent order under S.16 (2) of Sindh Rented Premises Ordinance, 1979---Proceedings under S.14 of Sindh Rented Premises Ordinance, 1979, were maintainable but constitutional petition was not maintainable being premature---Petition was dismissed in circumstances.

Messrs Niazsons v. S.M. Younus 1992 MLD 400 and Muhammad Riaz v. Mst. Begum Jan 1984 CLC 2970 rel.

Haji Sattar v. Zaki Ahmad 1995 MLD 1146 and Moeen Afridi v. Capt. M.R. Choudry 1982 CLC 1116 ref.

S. Muhammad Haider for Petitioner.

Sami Ahmed Tirmizy for Respondent.

2007 C L C 1961

[Karachi]

Before Zia Perwez, J

Mrs. Syeda TAHIRA MUBASHAR----Petitioner

Versus

Mst. ZAKIA KHAN and another----Respondents

C.P. No.144 and C.M.A. 1334 of 2007, decided on 4th October, 2007.

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

----S. 21---Constitution of Pakistan {1973), Art.199---Constitutional petition---Maintainability---Interim order---Scope---Constitutional petition is not maintainable against interim order of Rent controller---If constitutional petitions yvere to be entertained, the very purpose of S.21 of Sindh Rented Premises Ordinance, 1979, would be defeated.

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

----S. 16(1) & (2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arrears of rent---Recovery---Tentative rent order was assailed by tenant on the ground that if the same was not paid she would be ejected from the premises---Tenant had approached High Court by way of petition immediately after passing of order under S.16(1) of Sindh Rented Premises Ordinance, 1979---Validity---Constitutional petition was not competent in absence of any order passed under S.16(2) of Sindh Rented Premises Ordinance, 1979---High Court declined to interfere with the order passed by Rent Controller---Petition was dismissed in circumstances.

Habib Bank Limited v. Dr. Munawar Ali Siddqui 1991 SCMR 1185; Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan PLD 2005 Kar. 554; Mst. Fatima v. Mst. Hanifa 1986 CLC 1613; Muhammad Rafique v. Messrs Habib Bank Limited 1994 SCMR 1012; Faiz and sons v. Hakimsons (Impex) Private Ltd. 1999 SCMR 2771; Faiz acid Sons v. Hakimsons (Impex) Private Ltd. PLD 1997 Kara 238; Mst. Akhtar Jehan Begum v, Muhammad Azam Khan PLD 1983 SC 1; Syed Adil Hussain v. Mst. Majda 2000 CLC 1982; Badrul Haque Khan v. The Election Tribunal Dacca and others PLD 1963 SC 704; Muhammad Saeed v. Saratul Fatima and another PLD 1978 Lah. 1459 and Mehmood Ahmed v. State Life Corporation of Pakistan 1998 CLC 1987 ref.

Muhammad Riaz v. Mst. Begum Jan 1984 CLC 2970 fol.

Ghulam Ali for Petitioner.

Muhammad Sharif for Respondent No.1.

2007 C L C 1964

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

AFTAB HUSSAIN----Plaintiff

Versus

SOHAIL YOUSUF----Defendant

Suit No. 1473 of 2005, decided on 11th October, 2007.

(a) Damages---

----Suit for---Plea of suffering serious shock and mental torture by plaintiff on account of failure of defendant to fulfil his commitment, could not be substantiated by him---Mere assertion of plaintiff that on account of -such act of the defendant he had suffered serious shock, mental torture and agony could not be sufficient to grant the damages.

(b) Damages---

----Suit for---Court must determine proper damages keeping in view the nature of the wrong done and loss caused to such person.

Azizullah v. Javed Bajwa 2005 SCMR 1950 ref.

(c) Damages---

----Suit for---Damages, kinds of---Determination of - damages---Principles.

Damages are usually considered under two heads-viz, general or non-pecuniary loss or damages i.e. physical injury, pain and sufferings impaired capacity for the enjoyment of life or lesser capacity and special or pecuniary damages. that are actual incidental and direct expense Capable of calculation in terms of monetary value, may it been account of medical treatment, loss, in business profit earning or otherwise and the burden of proof in an action for damages either general or special is always on the plaintiff.

Dr. Prof. Haroon Ahmed v. Messrs British Airways PLD 2004 Kar. 439 ref.

(d) Damages---

----Suit for---Burden on the plaintiff to prove the damages sustained by him on account of default committed by the defendant towards fulfilment of his commitment---Unless the plaintiff specifically proves such damages through some tangible evidence he will not be entitled for any such decree by the Court.

Miss Arjumand Khan for Plaintiff.

Nemo for Defendant.

Date of hearing: 5th October, 2007.

2007 C L C 1

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD YOUSAF----Petitioner

Versus

HADAYAT ULLAH and 4 others----Respondents

Regular Second Appeal No.17 of 1995, decided on 11th October, 2006.

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

----Ss. 12 & 22---Punjab Pre-emption Act (IX of 1991), Ss.5, 6, 7 & 8---Superior pre-emption right of subsequent purchaser---Suit for specific performance of agreement to sell---Specific performance of agreement was a discretionary equitable relief---Plaintiff not ready and willing to perform his part of contract---Plaintiff filed suit for specific performance of agreement qua suit land against defendants---Defendants prior to institution of suit had, alienated land in favour of another defendant---Trial Court dismissed suit on grounds that plaintiff was not ready and willing to perform his part of agreement and equitable relief of specific performance was not to be granted to him and that subsequent purchaser being co-sharer in Khata had superior right of pre-emption, therefore, plaintiff was not entitled to decree for specific performance---Appeal filed by plaintiff was dismissed by Appellate Court---Plaintiff contended; that he was willing to perform his part of agreement; that he served notice upon defendants to perform agreement; that reasoning of Courts below as to superior pre-emption right of subsequent purchaser was devoid of any force as right of pre-emption under Punjab Pre-emption Act, 1991 was subject to making of Talbs which stage in the matter had not yet arrived and that the reason that plaintiff had joined with him partners in transaction was not to come in. the way of plaintiff to hold that he was not ready and willing to perform his part of agreement---Validity---Evidence was not led by plaintiff to prove that before target date he had approached defendants/sellers for finalization of transaction in his favour, nor it was established that before target date he had made any effort for purchase of stamp paper and scribing and preparation of sale deed and had contacted defendants in this regard---Legal notice was issued to plaintiff by defendants which specified date and place for payment of balance amount and execution and registration of sale deed but instead of doing the needful, plaintiff did not take steps for finalization of transaction---Defendants sent another legal notice to plaintiff for execution of sale deed in his favour but plaintiff replied that sale was to be executed in favour of his partners as well---In agreement to sell, it was nowhere mentioned that plaintiff could seek sale deed in favour of any of his partners or nominee---Specific performance being discretionary equitable relief, it was incumbent upon plaintiff to show his willingness and readiness but notices and replies thereto proved that plaintiff did not take positive step for finalization of transaction---Suit filed by plaintiff was though within time but no explanation was given by him as to why suit was filed with delay---Under S.22 of Specific Relief Act, 1877, jurisdiction to decree specific performance was discretionary and Court was not bound to grant such relief merely because it was lawful to do so---Subsequent vendee had superior right of pre-emption whereas plaintiff had no such right or qualification and reason that subsequent vendee's right of pre-emption was subject to Talbs did not in any way impede Courts to take into account such superior right of pre-emption while exercising discretion under S.22 of Specific Relief Act, 1877---Discretion in matters of specific performance of agreement was not to be arbitrarily or fancifully exercised; yet in such exercise Courts were not to lose sight of a significant fact that subsequent vendee had superior right of pre-emption, subject to Talbs, which was no more a predatory right, rather a right which was statutorily recognized and based upon injunctions of Islam---Under Provisions of Punjab Pre-emption Act, 1991, making Talbs as pre-requisite for valid claim of pre-emption had not brought' any change in rules about exercise of discretion which were to be kept in view by Courts in allowing or disallowing relief for specific performance---Appeal was dismissed.?

Nawab Meah Chowdhry v. Syed Ezad-ud-Din Ahmad and others PLD 1962 Dacca 655 and Abdul Aziz v. Fazal Karim and another 1989 SCMR 1456 ref.

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

----S. 22---Punjab Pre-emption Act (IX of 1991), S.13---Specific performance of agreement---Subsequent vendee's superior right of pre-emption---Effect---Under Provisions of Punjab Pre-emption Act, 1991, making Talbs as pre-requisite for valid claim of pre-emption had not brought any change in rules about exercise of discretion which were to be kept in view by Courts in allowing or disallowing relief for specific performance.?

Taki Ahmad Khan for Appellant.

Muhammad Nawaz for Respondents.

Date of hearing: 11th October, 2006.

2007 C L C 8

[Lahore]

Before Jawwad S. Khawaja, J

Ch. NAVEED HUSSAIN----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 17 others-Respondents

Civil Revision No.931 of 2004, heard on 14th February, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration. without claiming possession as consequential relief---Application for amendment in plaint---Scope--.-Plaintiff filed suit for declaration of his proprietary interest in shop which was owned by his deceased father---Defendants, who were plaintiff's deceased brother's legal heirs filed a separate suit claiming therein that deceased father of plaintiff, who was grandfather of defendants, was a Benami owner of disputed shop which actually belonged to father of defendants---Trial Court decreed the suit---On appeal thereagainst Appellate Court not only dismissed appeal but non-suited plaintiff on ground that he had sought simple declaration without claiming possession as consequential relief---Plaintiff along with civil revision filed application to amend prayer in his plaint to seek possession of his share in disputed shop and contended that he was entitled to seek amendment in plaint/prayer at any stage---Validity---Plaintiff was not to be' non-suited simply because he had not prayed for possession of disputed property through partition---Controversy between the parties essentially related to denial of plaintiff's interest by defendants and prayer was only consequential to determination of aforesaid controversy---Plaintiff's suit was allowed to be converted into a suit for possession through partition and he was allowed to file his amended plaint before Trial Court---Suit was remanded to Trial Court for proceeding in the matter with object of deciding the same as a partition suit.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

Muhammad Amin Lone for Petitioner.

Sh. Talib Hussain for Respondent No.1.

Sajid Mehmood Sheikh for contesting Respondents.

Date of hearing: 14th February, 2005.

2007 C L C 10

[Lahore]

Before Mian Saqib Nisar, J

SUI NORTHERN GAS PIPELINES LIMITED through Deputy Chief Law Officer (Authorised Attorney)----Appellant

Versus

Mst. GHAZALA BUTT and another----Respondents

First Appeal against Order Nos.122 and 116 of 2004, heard on 15th September, 2006.

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

----S. 17---Ejectment---Relationship of landlord and tenant, denial of---Tenant claimed that suit-land belonged to husband of land lady who being a employee of tenant company had rented out the suit property, however, the rent deed was got executed in the name of his wife---Record showed that husband had been declared owner of suit land by Courts below while the lady was declared only a Benamidar---Divorce having taken place between the couple, lady therefore, had lost her title to the suit property---No relationship of landlord and tenant existed between the parties, in circumstances.

Muhammad Sharif for Appellant.

Mian Zafar Iqbal Kalanauri for Respondents.

Date of hearing: 15th September, 2006.

2007 C L C 12

[Lahore]

Before Syed Asghar Haider, J

GHULAM ABBAS----Petitioner

Versus

NOOR HUSSAIN SHAH----Respondent

Civil Revision No.627 of 2006, decided on 11th September, 2006.

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

----S. 13---Pre-emption suit---Performance of Talbs---Appreciation of evidence---Star-witnesses produced by plaintiff were almost unanimous on performance of Talb-i-Muwathibat and their statements were not questioned in cross-examination----Facts narrated were similar and identical as minor discrepancy could not impact the preponderance of evidence produced in affirmative---Appellate judgment was based on correct appraisal of evidence and appellate findings qua the performance of Talbs were totally in consonance with the scheme of things as mandated by S.13 of the Punjab Pre-emption Act, 1991---No illegality, material irregularity, jurisdictional error, misreading or non-reading of evidence having been pointed out in the impugned judgment, interference was declined by High Court.

Khani Zaman v. Shah Hussain and others PLD 1998 SC 121 and Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCMR 1992 distinguished.

Amir Abdullah Khan Niazi for Petitioner.

Ch. Mubashar Nisar Khan for Respondent.

2007 C L C 14

[Lahore]

Before Maulvi Anwarul Haq, J

NAJABAT KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAYYAH and 2 others----Respondents

Writ Petition No.3776 of 2006, heard on 3rd October, 2006.

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

----S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte proceedings, setting aside of---Defendant's right to join subsequent proceedings---Record revealed that none of the parties appeared on the date fixed for pre-trial reconciliation proceedings and parties were ordered to appear in person---Husband, therefore, could not have been proceeded against ex parte when the wife herself was not present on the date---Continuous adjournments by Trial Court for recording ex parte evidence were without lawful authority as a defendant who had been proceeded against ex parte was not to be precluded from joining further proceedings.

Ahmad Raza Hashmi for Petitioner.

Kanwar M. Younis for Respondent No.'2.

Date of hearing: 3rd October, 2006.

2007 C L C 16

[Lahore]

Before Syed Hamid Ali Shah, J

SAEED AHMED SHAKIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.17164 of 2003, heard on 8th February, 2005.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Trial Court decreed suit allowing maintenance allowance to minor to the tune of Rs.4,000 per month---Appellate Court partly allowed appeal of petitioner against judgment of the Trial Court and reduced quantum of maintenance allowance from Rs.4,000, per month to Rs.3,000 per month---Constitutional petition filed against judgment and decrees of the both Courts below was disposed of by High Court and remanded case to the Trial Court to clarify as to whether petitioner had been sending remittance to respondent---Trial Court clarified the question of remittance that petitioner had been paying amount to the respondent---Petitioner had divorced the respondent and after divorced she was not entitled to any maintenance allowance---Payments made after the period of divorce, obviously were the payments towards the maintenance of the minor---Said amount was not paid to the divorced wife for any other purpose as relationship between the spouses had ceased---Such payments to divorced wife, were to be adjusted towards the maintenance allowance to the minor---Impugned decision of the Courts below were modified allowing the adjustment of the remittances by the petitioner towards maintenance allowance of the minor.

Tariq Masood and Muhammad Iqbal for Petitioner.

Nemo for Respondents Nos.1 and 2.

Shamsher Ahmad Usmani for Respondent No.3.

Date of hearing: 8th February, 2005.

2007 C L C 18

[Lahore]

Before Syed Jamshed Ali, J

ABDUL KARIM and 4 others----Petitioners

Versus

LAHORE CANTT. COOPERATIVE HOUSING SOCIETY LTD. through Secretary and 4 others----Respondents

Writ Petition No.16741 of 1999, decided on 2nd March, 2000.

Land Acquisition Act (I of 1894)---

---Ss. 4, 12, 16 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Making of award---Mutation of acquired land---Land in question was acquired for Society; award was announced and possession of said acquired land was delivered to the Society and on basis of said award mutation in respect of land was attested in favour of the Society---Petitioner challenged said mutation on the ground that notification issued under S.17(4) of Land Acquisition Act, 1894, having been set aside, land of petitioner would be deemed to have never been acquired and that mutation transferring disputed land in favour of Society was illegal---Validity---Disputed mutation was entered and attested on the basis of award which included land in dispute---Report/Roznamcha Waqiati, showed that possession was duly transferred to the Society and petitioners never challenged acquisition of disputed land---Disputed mutation only gave effect to the award after possession had been delivered to the Society---No exception could be taken to disputed mutation as long as acquisition proceedings in respect of disputed land remained intact---Notification under S.17(4) of Land Acquisition Act, 1894 would be deemed to have been set aside to the extent of those land owners who had challenged the same---Since land in dispute stood acquired for the Society and mutation was duly entered, no case was made out for interference.

Peoples Cooperative Housing Society Ltd., Lahore v. Collector, Lahore District and 4 others 1979 CLC 180 ref.

Ch. Muhammad Yasin and Muhammad Anzak Raja for Petitioners.

Tariq Masood for Respondents.

2007 C L C 20

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD AFZAL and 2 others----Petitioners

Versus

Mst. MARRAYAM BIBI----Respondent

Civil Revision No.1162 of 2006, decided on 15th September, 2006.

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

----S. 13---Pre-emption suit---Performance of Talb-i-Muwathibat---Pre­emption suit dismissed but decreed in appeal---Minor discrepancies. in evidence---Effect---Perusal of record showed that pre-emptor lady was illiterate woman living in a remote area and her witnesses were also uneducated---Minor discrepancies were, therefore, not fatal to the testimony of such witnesses particularly when considerable period had elapsed in recording of their statements---Witnesses were unanimous on the period of duration, time and place of making of Talb-i-Muwathibat and they remained unshaken in cross-examination---Conclusion arrived at by Appellate Court held, was, in consonance with the evidence led by parties.

Atiq-ur-Rehman through (real father) and another v. Muhammad Amin PLD 2006 SC 309; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Muhammad Sarwar and others v. Hakim Ali 2004 CLC 1679 and Muhammad Ilyas and 4 others v. Walayat Hussain 2006 YLR 1153 distinguished.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Zia Ullah Khan Niazi for Petitioners.

Mati Ullah Malik for Respondent.

2007 C L C 23

[Lahore]

Before Jawwad S. Khawaja, J

KASHIF ALI MUNAWAR and another----Appellants

Versus

ALI AHMAD----Respondent

S.A.O. No.106 of 2004, heard on 28th September, 2006.

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

----S. 13---Bona fide personal need of landlord---Tenant relying upon a document whereby landlord was not to demand rent until he repaid loan amount received by him from tenant---Denial of relationship of landlord and tenant---Effect---Said document represented a separate loan transaction creating distinct rights between parties arising therefrom and relationship of landlord and tenant and tenant's obligations arising as a result thereof remained unaffected---Ground of personal need had also stood established---Landlord was therefore, fully entitled to select shops most suitable for him and his son on personal ground.

Ahmad Awais for Appellants.

Ch. Muhammad Jahangir Wahla for Respondent.

Date of hearing: 28th September, 2006.

2007 C L C 25

[Lahore]

Before Sh. Azmat Saeed, J

Messrs HOMEWORTHY PANELS (PVT.) LIMITED, LAHORE through Chief Executive and 3 others----Applicants

Versus

Messrs PRECISION CASTING (PVT.) LIMITED, LAHORE through Chief Executive and 2 others----Respondents

F.A.O. No.118 of 2006, decided on 20th September, 2006.

Arbitration Act (X of 1940)---

----S. 34---Civil Procedure Code (V of 1908), S.104 & O.XLIII---Application under S.34, Arbitration Act, 1940---Order passed without application of judicial mind---Effect---Perusal of order revealed that none of the contentions raised by parties was considered or adjudicated upon by Court---No ground as available under the law for acceptance or rejection of application under S.34 of Arbitration Act, 1940 had been considered or applied to the facts and circumstances of the case---Real matter in controversy had not been dilated upon or decided, consequently impugned order was held to be not sustainable---Application under S.34 of Arbitration Act, 1940 would be deemed to be pending.

Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. PLD 1981 SCMR 129 ref.

Kh. Aamir Farooq for Appellants.

Syed Ikhtisar Ahmad for Respondents.

2007 C L C 27

[Lahore]

Before Mian Saqib Nisar, J

DAIM----Appellant

Versus

REHMAT ALI ----Respondent

Regular Second Appeal No.7 of 2001, heard on 4th September, 2006.

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

----Ss. 13 & 6---Pre-emption suit---Superior right of pre-emption--Performance of Talb-i-Muwathibat---Proof---Concurrent findings of Courts below based on appreciation of evidence---Plaintiff appeared through his attorney but presence of attorney at the time of Talb-i-Muwathibat was not proved on record ---Attorney did not state that informer had told plaintiff about the sale---Informer had not given any date of disclosure of sale in question---Superior right of pre-emption could not be established as Aks Shajrah placed on record did not show that land belonging to plaintiff was adjacent to the land sold---Plaintiff also failed to prove the existence of any common source of irrigation etc.---Punjab Pre-emption Act, 1991 did not cast a duty upon seller to inform the person who may be interested in pre-empting the sale hence argument that failure of defendant to inform the plaintiff of the sale had given the latter rights of pre-emption, had no force---Concurrent findings of Courts below that plaintiff had failed to prove Talb-i-Muwathibat, a sine qua non for the exercise of his right of pre-emption, was not contrary to law---No misreading or non-reading of evidence having been pointed out rather such concurrent findings, held, could not be interfered in second appeal.

Abdul Malik v. Muhammad Latif 1999 SCMR 717; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

Akbar Khan alias Saleem Mehmood Chehi v. Government of the Punjab 1999 SCMR 2713 distinguished.

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

---O. XLI, R.27 & S.100---Second appeal---Prayer for production of additional evidence refused---Validity---In absence of reason for non adducing that evidence before Trial Court and even at the first stage of appeal, a party to a litigation, cannot be allowed to fill up the lacuna of his case at the late stage i.e. in second appeal.

Ch. Muhammad Asif Ranjha for Appellant.

Rafique Javed Butt for Respondent.

Date of hearing: 4th September, 2006.

2007 C L C 31

[Lahore]

Before Syed Asghar Haider, J

CHIRAGH DIN----Petitioner

Versus

NAWAB DIN and 3 others----Respondents

Civil Revision No.1103 of 2000, heard on 15th September, 2006.

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

----S. 19---Specific Relief Act (I of 1877), S.42---Plaintiffs filed declaratory suit pleading that suit-land was obtained by their father from Co-operative Society and upon his death sale of suit-land in favour of their brother/defendant vide sale-deed, was fabricated---Issues were framed and were decided in favour of plaintiffs however suit was dismissed for limitation---Findings qua said issues were not challenged by defendant hence they had attained finality---Appellate Court correctly decreed the suit holding that pursuant to the direction of Commissioner concerned Co-operative Society was duty bound to ensure that property had devolved upon the legal heirs but Co-operative Society did not fulfil its obligations and violated law and procedure---Joint possession of plaintiffs and defendant was established on record and further section 19 of Colonization of Government Lands (Punjab) Act, 1912 also confirmed this position---Legal heirs could not be non-suited on question of limitation.

(b) Limitation---

----Legal heirs cannot be non-suited on question of limitation.

Hafiz Muhammad Khalid for Petitioner.

Muhammad Sharif Khokhar for Respondents.

Date of hearing: 15th September, 2006.

2007 C L C 34

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mian MUHAMMAD RASHID----Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and another----Respondents

Writ Petition No.5016 of 2006, decided on 27th September, 2006.

Educational institution---

----Re-evaluation of answer book---Candidate had sought re-evaluation of his B.A. Examination Paper "B" (Answer book) contending that two questions in said paper had not been correctly evaluated---No provision being in the University Statutes for re-evaluation of the answer book, candidate was rightly denied re-evaluation of his answer book---Candidate applied for rechecking of paper which had already been done.

Ch. Abdul Ghani for Petitioner.

Muhammad Qasim Khan, A.A.-G. for Respondent.

2007 C L C 35

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs ACE QUALITY (PVT.) LIMITED through Chief Executive----Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, MULTAN SADDAR through Nazim and 3 others----Respondents

Writ Petition No. 1522, 1516, 1941, 2601 and 1933 of 2005, heard on 6th June, 2005.

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

---Ss. 54(1)(g) & 192---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levying and collecting advertisement fee---Authorities were required to regulate affixing of Sign-Boards and advertisements by framing bye-laws under S.192 of Punjab Local Government Ordinance, 2001, but Authorities had levied the fee without framing said bye-laws---Constitutional petitions were disposed of with the direction that Authorities would remain restrained from imposing or collecting advertisement fee in question from petitioners otherwise than in accordance with law- Impugned demand notices were accordingly declared to be without lawful authority and were quashed.

Mian Muhammad Waseem for Petitioner.

Haji Muhammad Aslam Malik and Mahmood Ashraf Khan for Respondents.

Date of hearing: 6th June, 2005.

2007 C L C 36

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ

Mst. KHALIDA KHANAM through L.Rs.----Appellants

Versus

ZARAI TARAQIATI BANK OF PAKISTAN, KAHROR PAKKA BRANCH through Manager and another----Respondents

First Appeal from Order No.165 of 2004, heard on 26th June, 2006.

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

---S. 7(iv)---Suit valuation and payment of court-fee---Plaintiff's suit seeking declaration regarding a mutation was covered by S.7(iv)(c) of the Court Fees Act, 1870 and the plaint which was valued at Rs.200 was, held, to be in accordance with law.

Sewa v. Mst. Santi and others 1992 SCMR 1306 ref.

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

----S. 42---Specific Relief Act (I of 1877), S.39---Mutation---Section 39 of the Specific Relief Act, 1877, applicability of---Mutation is simply a record of an oral transaction reported to a Patwari and thereafter processed by the Revenue Officer---Mutation is not a document so if cancellation of a void and illegal mutation is prayed for through a declaratory suit, S.39 of Specific Relief Act, 1877 does not apply.

Mst. Parveen Akhtar v. Azhar Ali and 2 others 2002 CLC 1549 distinguished.

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

----S. 39---West Pakistan Land Revenue Act (XVII of 1967), S.42---Mutation not being a document, S.39 of Specific Relief Act, 1877 was not applicable.

Mian Ahmad Mahmood for Appellants.

Abdul Razzaq Raja for Respondents.

Date of hearing: 26th June, 2006.

2007 C L C 39

[Election Tribunal (Punjab)]

Before Justice Mian Hamid Farooq, Election Tribunal

Rana SHAUKAT MAHMOOD and another----Petitioners

Versus

Rana MUHAMMAD TAJAMMAL HUSSAIN and others----Respondents

Election Petitions Nos.28 and 221 of 2002, decided on 4th August, 2006.

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

----Arts. 117 & 120---Onus to prove---Principles---Plaintiff should succeed on the strength of his own case and cannot take advantage of weaknesses of his adversaries.

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

---S. 12(1)---Proposer and seconder---Qualification---Only qualification attached to proposer and seconder is that he/she must be elector of the constituency from where duly qualified person is contesting election---If a person is elector of that constituency, only in that case he can propose and second the name of any duly qualified person to be a member for that constituency.

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

---S. 68---Election Tribunal---Powers---If nomination of a returned candidate is invalid, the Election Tribunal can declare the election of such candidate to be void.

Asif Khan v. Returning Officer 2003 MLD 230; Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore and 10 others 2003 MLD 1089 and Sheikh Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484 ref.

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

---S. 12(1)---Use of word "may"---Mandatory or directory nature of the provision of law---Determination---Although word "may" has been used in S. 12 (1) of Representation of the People Act, 1976, yet examination of subsequent provisions of law shows that it entails penal consequences.

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

---Arts. 185(3) & 189---Leave granting order passed by Supreme Court---Scope---Order of Supreme Court, which neither decides a question of law nor is based upon a principle of law nor enunciates a principle of' law, such order although suspends the operation of orders' concerning to that petitioner, yet it does not fall within the scope of Art.189 of the Constitution---Leave granting order does not necessarily mean that appeal would ultimately be accepted and it cannot be ruled out that in final hearing, subsequently the appeal may be dismissed or leave granting order may be rescinded/withdrawn.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 rel.

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

----Arts. 185(3), 189 & 201---Leave granting order passed by Supreme Court---Binding effect on High Court---Principles---Order in question was leave granting order passed by Supreme Court and on the same subject there was a ruling of Full Bench of High Court---Question of law decided by Full Bench of High Court was the "decision" within the contemplation of Art.201 of the Constitution and was binding on all the Courts subordinate to that High Court.

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

---O. VI, R.7---Pleadings---Plea not raised in written statement---Effect---No person can be allowed to lead evidence on the pleas which were not raised in the written statement.

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

---Ss. 12(1), 14 (3)(b)(c) & 68 (1)(a)---Declaring election of returned candidate as void---Invalid nomination papers---Election of returned candidate was assailed on the ground that proposer and seconder of returned candidate were not from the constituency for which the candidate was to contest election---Validity---Nomination of such candidate was in violation of S.12(1) of Representation of the People Act, 1976, and was liable to be rejected under S.14(3)(b)(c) of the Representation of the People Act, 1976 as the same was invalid---Election Tribunal was empowered under S.68(1)(a) of Representation of People Act, 1976, to declare the election of such returned candidate to be void if it was satisfied that the nomination of the returned candidate was invalid---Nomination papers submitted by returned candidate suffering from grave legal infirmity, his nomination papers were invalid and against the provisions of Representation of the People Act, 1976---Election of returned candidate was declared to be null and void---Notification issued by Chief Election Commission was set aside---High Court directed the authorities to hold fresh elections' in the constituency according to law---Petition was allowed accordingly.

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

----S.68---Void election---Declaring second highest candidate as returned candidate---Doctrine of "throw away votes"---Notorious disqualification, principle of---Applicability---Election of returned candidate was declared void because his nomination papers were rejected---Candidate securing second highest votes contended that he be declared as returned candidate in view of the rule of "throw away votes"---Validity---Candidate securing second highest votes did not establish that before elections and at the time of polling it was known to the voters of the constituency that the nomination of returned candidate was invalid and his such disqualification was notorious---As the disqualification of the returned candidate was not notoriously known to the voters/electors of the constituency, therefore, rule of "throw away votes" laid down by Supreme Court in case titled Sh. Amjad Aziz v. Haroon Akhtar Khan reported as 2004 SCMR 1484, was not applicable---Election Tribunal declined to declare the candidate securing second highest votes as the returned candidate in circumstances.

Sheikh Amjad Aziz v. Haroon-Akhtar Khan and 10 others 2004 SCMR 1484 and Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 353 distinguished.

Ch. Bashir Ahmad for Petitioner.

Muhammad Amin Lone for Respondent No.1.

Rana Javed Anwar for Respondent No.7.

Respondents Nos.2 to 6 and 8 were proceeded ex parte vide order, dated 10-12-2002.

Date of hearing: 2nd August, 2006.

2007 C L C 58

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD HASSAN and 2 others----Petitioners

Versus

MUHAMMAD RAFIQUE and another----Respondents

Civil Revision No.872-D of 1998, heard on 27th May, 2004.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit filed by pre-emptor was concurrently decreed by the Trial Court and Appellate Court---Contradiction in testimony of pre-emptor with regard to source of information of sale in question, which was most relevant, had not been duly taken note of by both the Courts---Testimony of pre-emptor as his own witness in relation to Talb-i-Muwathibat, was not at all credible---No other evidence was available to prove requirement of Talb­-i-Muwathibat as set out in S.13 of Punjab Pre-emption Act, 1991---Both Courts below having committed illegality and material irregularity in exercise of their jurisdiction, impugned concurrent judgments, were set aside---Suit filed by pre-emptor, was dismissed, in circumstances.

Iftikhar Ullah Malik for Petitioners.

Ch. Inayat Ullah for Respondents.

Date of hearing: 27th May, 2004.

2007 C L C 60

[Lahore]

Before Mian Hamid Farooq, J

MASOOD SALAHUDDIN QURESHI----Petitioner

Versus

PUNJAB COOPERATIVES BOARD FOR LIQUIDATION, LAHORE through Chairman and 15 others----Respondents

Petition No.103-C of 2006, decided on 24th July, 2006.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Limitation Act (IX of 1908), S.5---Petition under S.11, Undesirable Cooperative Societies (Dissolution) Act, 1993---Limitation---Condonation of delay---Applicability of S.5, Limitation Act, 1908---Scope---Limitation period for filing a petition under S.11 of the Act is 60 days from date of decision of Judicial Officer---Provisions of the Act amply manifest that S.5 of Limitation Act, 1908 has not been made applicable to the proceedings under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---Petition filed after lapse of four months from passing of impugned order, was time-barred---Application for condonation of delay was, dismissed.

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

----S. 5---Applicability of S.5, Limitation Act, 1908 to a special law---Scope---Perusal of S.5 of Limitation Act, 1908 indicated that said section did not automatically apply to all enactments but its application could be extended to provisions of any other enactment---Application of S.5 to special laws was excluded by cl.(b) of S.29(2) of Limitation Act, 1908 unless special enactment contained an express provision extending thereto application of S.5 of the Act.

Waqar A. Sheikh for Petitioner.

Muhammad Ilyas Khan for PCBL.

2007 C L C 62

[Lahore]

Before Mian Saqib Nisar, J

SAROSH M. CHALLA and 2 others through General Attorney----Appellants

Versus

ABDUL RASHID----Respondent

First Appeal from Order No.260 of 2001, heard on 16th January, 2004.

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

----Ss. 17(2)(i)(iv) & 24---Ejectment of tenant on grounds of default in payment of rent and nuisance---Appeal to High Court---Ejectment application was dismissed by Rent Controller holding that neither default in payment of rent nor nuisance had been proved---Record had shown that tenant had been depositing rent with the Court with the permission of Rent Controller---When permission to deposit rent in the Court had been granted by Rent Controller, that was sufficient compliance of obligation of tender of rent, in terms of law---If under some misapprehension, tenant had deposited increased rent for certain period at enhanced rate, and thereafter resorted to the original rent, it would not mean that tenant had defaulted---Rent Controller had rightly decided that tenant had not committed default in payment of rent---Ground of nuisance had not been proved---Appeal against judgment of Rent Controller having no merits, was dismissed.

Nauman Qureshi for Appellants.

M. Irshad Chaudhry for Respondent.

Date of hearing: 16th January, 2004.

2007 C L C 70

[Lahore]

Before Jawwad S. Khawaja, J

ALTAF AHMAD----Appellant

Versus

KHALID UMAR----Respondent

Regular First Appeal No.873 of 2001, heard on 3rd October, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of promissory note---Suit was dismissed by the Trial Court on ground that adhesive stamps on pro note had not been cancelled/defaced---Observation of the Trial Court that stamps on pro note had not been cancelled, was correct---Since such promissory note on which case of plaintiff was based, was itself inadmissible in evidence, suit filed by plaintiff was rightly dismissed---Judgment of Court below, could not be interfered with in appeal.

Mian Sarfraz-ul-Hassan for Appellant.

Nemo for Respondent proceeding against ex parte.

Date of hearing: 3rd October, 2005.

2007 C L C 71

[Lahore]

Before Sh. Azmat Saeed, J

ASHIQ HUSSAIN and 5 others----Petitioners

Versus

ANJUMAN ISLAMIA, KAMALIA REGD. through Muhammad Amin and others----Respondents

Civil Revision No.990 of 1993, decided on 8th September, 2006.

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

----S. 115---Revision---Reappraisal of evidence---Concurrent findings of fact recorded by the Courts below---Judgment and decree passed by Trial Court in favour of plaintiffs was maintained by Lower Appellate Court---Defendants assailed concurrent judgments passed by two Courts below and sought re-appraisal of evidence by High Court in exercise of revisional jurisdiction under S.115 C.P.C.---Validity---Relying on documentary evidence along with oral evidence produced by the parties, Trial Court returned a finding of fact that the property in dispute occupied by defendants formed part of Jamia Masjid, which finding of fact was affirmed in appeal---Concurrent finding of fact was neither perverse nor arbitrary---Such finding of fact was not tainted by any misreading or non-reading of evidence---High Court declined to re-appraise the evidence on record as it was not possible in revisional jurisdiction of High Court---Revision was dismissed in circumstances.

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

----Art. 72---Documentary evidence---Reliance---Document relied upon by petitioners pertained to year, 1825, and was available on file as Mark-1---Validity---Document relied upon was not proved in evidence and did not form part of the evidence, therefore, could not be taken into account.

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

----S. 42---Limitation Act (IX of 1908), S.10---Civil Procedure Code (V of 1908), S.115---Islamic Law---Waqf---Declaration of title---Limitation---Plaintiffs sought declaration of title regarding the suit land on the ground that it was waqf in the name of Jamia Masjid---Suit was concurrently decreed by Trial Court and Appellate Court---Plea raised by defendants was that the suit filed by plaintiffs was time-barred---Validity---One of the accepted modes of waqf under Islamic Law is through immemorial use as such---Even in absence of express dedication suit land was being used from times immemorial for religious purpose i.e. a Mosque, such land would be deemed to be a waqf---In a suit for declaration with or without consequential relief, that a property was Waqf property, filed against a person vested therewith in trust as Matwalli or otherwise or against his legal representatives, question of limitation did not arise and such suit was not barred by any length of time---Such was the import of S.10 of Limitation Act, 1908, therefore, in the facts and circumstances of the case, the suit filed by plaintiffs was not barred by limitation---High Court declined to interfere in the concurrent judgments passed by the two Courts below---Revision was dismissed in circumstances.

Mohamaden Law by D.F. Mulla Edition 2006 and Muhammad Shah v. Fasih-ud-Din Ansar and others PLD 1957 SC (Ird.) 111 rel.

(d) Islamic law---

----Waqf---Determination---One of the accepted modes of waqf under Islamic law is through immemorial use as such.

Taffazal H. Rizvi for Petitioners.

Ch. Javed Rasul for Respondents.

Date of hearing: 21st July, 2006.

2007 C L C 76

[Lahore]

Before Mian Saqib Nisar, J

ABDUL SATTAR----Applicant

Versus

ATHAR NAEEM and others----Respondents

Civil Revision No.947 of 1996, decided on 21st October, 2003.

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

---Ss. 13 & 15---Civil Procedure Code (V of 1908), S.12(2)---Ejectment of tenant---Compromise between the parties---Application against alleged fraud and misrepresentation---Rent Controller passed ejectment order and tenant filed appeal against judgment of Rent Controller---Compromise was effected between the parties during pendency of appeal, according to which landlords on payment of Rs.65,000 to tenant, were entitled to seek possession---Tenant, subsequently moved an application under S.12(2), C.P.C. stating therein that agreed amount of Rs.65,000 had not been paid to him by landlords and order of his ejectment which was based upon compromise, was the result of fraud and misrepresentation---Said application was dismissed by the Court holding that no fraud had been practised upon tenant, while arriving to a compromise between parties through their statements---Validity---Court had rightly held that case did not fall within purview of S.12(2), C.P.C.---Findings of Court could not be interfered with by High Court in exercise of its revisional jurisdiction.

Hafiz Muhammad Yusuf for Petitioner.

M.A. Zafar for Respondents.

2007 C L C 77

[Lahore]

Before Sh. Hakim Ali, J

Sardar SHAFIQ HYDER KHAN LAGHARI----Petitioner

Versus

Syed TASNEEM NAWAZ GARDEZI----Respondent

Civil Revision No.692 of 2005/BWP, decided on 3rd April, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2(1)---Qanun-e-Shahadat (10 of 1984), Art.79---Negotiable Instruments Act (XXVI of 1881), S.13---Suit for recovery of loan based upon a negotiable instrument, the original of which was lost---Maintainability---Words "all suits upon" in O.XXXVII, R.2(1), C.F.C. did not indicate that a recovery suit based on any photocopy of admissible pro note was not entertainable---Rule did not say that where pro note/cheque/Hundi or any other kind of negotiable instrument in original form is not available, or has been destroyed, misplaced, damaged or lost, it would not be called suit having not been instituted on basis of negotiable instrument---Loss of an original pro note or inadmissibility of negotiable instrument was a matter of evidence hence could not be made a ground for rejection of plaint before recording evidence in the suit---If a negotiable instrument was lost, destroyed and misplaced suit shall retain its nature to have been based upon negotiable instrument but the procedure for proof of such a document would be different and was to be determined in accordance with Qanun-e-Shahadat, 1984 through the secondary evidence---Suit would remain founded on a pro note even if negotiable instrument invalid according to law, was inadmissible in evidence or has been executed or not according to law of the land or required proof through primary and secondary evidence---Where a negotiable instrument became inadmissible in evidence due to some reasons, the party could turn to its original consideration if that course was permitted by law in a given case.

Kamran Akhter v. Jawed Ahmad Khan 2005 CLC 797; Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124; and Bharpura v. Diwan Chand AIR 1940 Lah. 329 distinguished.

United Bank Ltd., Mianwali v. Muhammad Khan and another PLD 1988 Lah. 424 rel.

Muhammad Aslam Khan Dhukkar for Petitioner.

2007 C L C 81

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SARWAR and 2 others----Petitioners

Versus

MUHAMMAD ASLAM KHAN and 13 others---Respondents

Civil Revision No.142-D of 1998, heard on 6th May, 2004.

Islamic law---

----Inheritance---Consanguine brother would exclude sons of a full brother from inheritance because consanguine brother was a higher residuary.

Ch. Naseer Ahmad Sindhu for Petitioners.

Mian Nisar Ahmad for Respondents.

Date of hearing: 6th May, 2004

2007 C L C 82

[Lahore]

Before Mian Hamid Farooq, J

ARSHAD MAHMOOD----Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION, LAHORE through Chairman and 2 others----Respondents

Petition No.15-C of 2006, decided on 25th July, 2006.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Qanun-e-Shahadat (10 of 1984), Art.114---Petition against interim/interlocutory orders---Maintainability---Liquidation Board filed suits for passing awards against two defendants---Judicial Officer passed awards against one defendant/respondent ex parte while other defendant/ petitioner, who was present, was absolved from all liabilities--Application for setting aside ex parte proceedings was allowed, case remanded and awards were set aside through an interlocutory order which was not challenged by petitioner before higher forum instead he filed applications for rejection of plaint ---Validity---Grounds raised in application were available to petitioner at the time when order setting aside of awards was passed but petitioner did not challenge said order, hence it had attained finality and petitioner was estopped to impugned the same in petition after a period of 14 months---Each and every interim/interlocutory act or decision of Cooperative Board and Judicial Officer could not be called in question by filing petition under S.11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993.

Waqar A. Sheikh for Petitioner.

Ch. Safdar Mehmood, Counsel for P.C.B.L.

2007 C L C 85

[Lahore]

Before Syed Jamshed Ali, J

ZIA-UL-HAQ----Petition r

Versus

MANAGING DIRECTOR (POWERS) WAPDA, LAHORE and another----Respondents

Writ Petition No.10912 of 2003, decided on 1st June, 2004.

Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

---Rr. 3, 4 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner, a WAPDA employee---Grievance of petitioner was that his appeal against order of his compulsory retirement was not being decided by authorities---Petitioner earlier was removed from service, against which he had filed appeal before competent authority and penalty of removal from service was converted into compulsory retirement---Petitioner claimed that he had filed appeal against said order of competent authority before authorities, whereas position taken by authorities was that petitioner never filed any departmental representation and that second departmental appeal was not otherwise maintainable---Counsel for petitioner did not appear before High Court despite case was repeatedly called---Record did not show that appeal as claimed by petitioner, was filed---Even if it had been filed, second appeal was not competent under Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978---No case having been made out for issuance of direction in the nature of writ of mandamus prayed for, petition was dismissed.

Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 PLC (C.S.) 781 ref.

Nemo for Petitioner.

Omar Sharif for Respondents.

2007 C L C 86

[Lahore]

Before Syed Zahid Hussain, J

ABDUL RASHID and 2 others---Petitioners

Versus

Mst. KAUSAR PARVEEN---Respondent

Civil Revision No.2003 of 2005, heard on 1st November, 2006.

Civil Procedure Code (V of 1908)---

----O. IX, R.9 & S. 11---Res judicata, principle of---Main controversy competently brought before High Court in constitutional jurisdiction---Contention that though the order passed in constitutional jurisdiction was not assailed by petitioners the same should be ignored because filing of constitutional petition was a wrong step based on a mistaken advice of counsel, could not be countenanced as import and effect of that order could not be overlooked---Same plea was sought to be raised before Civil Court which had been previously decided in constitutional petition---Principle about non-challenge and finality of judgment was, fully attracted in the present case and precluded the petitioners to take such a plea and also the Civil Court to ignore and bypass the order passed by High Court which became final qua the parties.

Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Asif Jah Siddiqi v. Government of Sindh and others PLD 1983 SC 46 and Pir Bakhsh through L.Rs. and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 rel.

Ch. Muhammad Yaseen for Petitioners.

Muhammad Nazir Chaudhry for Respondent.

Date of hearing: 1st' November, 2006.

2007 C L C 89

[Lahore]

Before Umar Ata Bandial, J

NASIR HAMEED----Appellant

Versus

Major (Retd.) MUHAMMAD SAEED IKRAMULLAH and another----Respondents

First Appeal from Order No.182 of 2005, decided on 27th October, 2005.

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

---Ss. 17(8)(9) & 24---Default in depositing rent within prescribed period-Striking off defence---Rent for the month of February was to be deposited by tenant before 5th of March, but he deposited same on 7th March---Obligation to deposit rent for the month of February, ought to have been discharged at the latest by 4th of March, but the same had not been done in the case---Provisions of S.17(9) of Cantonments Rent Restriction Act, 1963 being mandatory, Rent Controller or High Court had no power to condone delay in question---Defence of tenant was rightly struck off by Rent Controller and tenant was rightly directed to hand over vacant possession of premises in question to landlord.

M.H. Mussadaq v. Muhammad Zafar Iqbal 2004 SCMR 1453; Saeed Ahmed Khan v. Mst. Jamila Khanum 1998 AC 531 and Saeed Ahmed Khan v. Mst. Jamila Khanum 1999 CLC 852 ref.

Muhammad Ramzan Ch. for Appellant.

Muhammad Aslam Zia for Respondents.

2007 C L C 91

[Lahore]

Before Mian Saqib Nisar, J

JALIL AHMAD SIDDIQUI----Appellant

Versus

ALI MUHAMMAD----Respondent

Regular First Appeal No.195 of 2000, heard on 24th February, 2004.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---After recording evidence of plaintiff, defendant was provided five opportunities to produce his evidence, including two opportunities on payment of costs, but he could neither pay the costs nor produce his evidence---Defence of defendant was closed and suit filed by plaintiff was decreed---Counsel for defendant had contended that three days prior to last date of hearing, father of defendant having died, he could not produce his evidence---No evidence had been produced on record with regard to death of father of defendant and defendant had not appended along with appeal, death certificate or any other relevant document---No justification existed, in circumstances, for adjournment on last date of hearing---On merits also there was no error in factual finding of Court below---Only because issue-wise findings had not been given, such omission would not make the judgment invalid when it was based on material placed on record---Impugned judgment could not be interfered with in appeal.

Tasawwar Hussain Qureshi for Appellant.

Syed Salman Haider Jafri for Respondent.

Date of hearing: 24th February, 2004.

2007 C L C 107

[Lahore]

Before Sh. Azmat Saeed, J

Ch. NAZIR AHMAD and 2 others----Petitioners

Versus

PROVINCE OF PUNJAB through District Officer (Revenue), Lahore and 5 others----Respondents

Writ Petitions Nos.2079, 5346, 2589, 2594, 8173, 3971 and 5875 of 2006, decided on 8th September, 2006.

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

----Art. 199---Constitutional petition---Vested right---Summary by Chief Minister---Plea raised by petitioners was that due to approval of summary by Chief Minister, they had a vested right over the land in question--- Validity--- Approval, by Chief Minister of Province, of a summary might not in every event have a binding effect and legal consequences---Petitioners could not claim any vested right regarding the land on the basis of approval of summary by Chief Minister.

(b) Good governance---

----Individual interest must give way to interest of community or a part thereof and a part of community must give way to the interest of entire community or public at large.

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

----Art. 3, 25, 37 & 38---Reasonable classification---Classes of society---Scope---Society in Pakistan is divided horizontally and vertically into various groups and classes with vastly unequal economic and social status and benefits---To treat unequal people equally is perhaps the worst form of discrimination---Always necessary to target specific deprived groups for providing economic and social benefits including housing---Framers of the Constitution were very keenly aware of such social and economic disparity and inequality as well as the necessity for the State to address the same to ensure social justice as is obvious from Arts.3, 37 and 38 of the Constitution.

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

----Art. 24---Protection of property rights---Depriving a person of his property---Principles---Any individual can be deprived of his property for the purposes of providing housing to a specified class of citizens and any law or act in such behalf does not offend against the fundamental right granted under Art.24 of the Constitution.

(e) Punjab Journalists Housing Foundation Act (XI of 2004)---

----Ss. 3 & 7---Land Acquisition Act (I of 1894), S.4---Scheme for the Management and Disposal of Available Urban Properties (1977), para. 30---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Journalists colony---Acquisition of land---Public purpose---Determination--`Petitioners were aggrieved of acquisition of land by authorities for establishing housing colony for journalists---Plea raised by petitioners was that acquiring of land for a specified segment of society was not covered under public purpose---Validity---Establishment of housing colony for the benefit of a specified segment of citizens did not offend against fundamental rights enshrined in the Constitution and it was also a public purpose and in public interest both in terms of Land Acquisition Act, 1894 as well as paragraph 30 of the Scheme for Management and Disposal of Available Urban Properties (1977) and it would require to be examined as to where the benefiting segment of citizens was located in the economic and social pyramid of society---Not necessary that such citizens be at the very bottom of social and economic strata---Business ventures motivated by commercial gains would also not be included in such exceptions---Overwhelming, majority of persons eligible for allotment of plots were working journalists who though performing a very vital and important function for the society were certainly not an affluent segment of the community---Entire exercise was not a commercial venture for the benefit of any particular individual developer---Usual safeguards against speculations had also been put into place---Nothing existed in Punjab Journalists Housing Foundation Act, 2004, nor the minutes of the meeting of Board of Directors of the Foundation which could persuade High Court to hold that the beneficiaries of the colony were not a segment of citizens of Pakistan deserving or requiring a housing colony for them, as such the venture did not appear to be a commercial in nature---Establishment of journalist colony by Foundation established under Punjab Journalists Housing Foundation Act, 2004, was in public interest and for public purpose---Requisite process in such behalf had been duly initiated and instituted by the authorities---High Court declined to interfere in the notification of acquisition issued by the authorities---Constitutional petition was dismissed in circumstances.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Mian Atta Ullah v. Lahore Development Authority Tribunal and 5 others 1996 CLC 1943; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652; Taj Mahal Hotel Ltd. and others v. Karachi Water and Sewerage Board and others 1997 SCMR 503; Messrs Sanghar Sugar Mills Ltd. v. Federation of Pakistan and others 1991 CLC 456; Central Government of Pakistan v. Sardar Fakhar-e-Alam and others 1985 CLC 2228; Central Government of Pakistan v. Sardar Fakhar-e-Alam and another 1986 SCMR 188; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Muhammad Akbar and others v. Commissioner Rawalpindi Division and others PLD 1976 Lah. 747; Fauji Foundation and others v. Shamimur Rchman PLD 1983 SC 457; Ajit Kumar Das v. Province of East Pakistan PLD 1958 Dacca 280; State of Bombay v. R.S. Nanji and others AIR 1956 SC 294 and Pakistan through Secretary Ministry of Defence and others v. Province of Punjab and others PLD 1975 SC 37 ref.

Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd., through the Secretary Fortress Stadium Lahore Cantt. and 2 others PLD 1983 Lah. 552; Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68; Bostan v. Land Acquisition Collector, Rawalpindi and 4 others PLD 2004 Lah. 47; Zafeer Gul and 19 others v. N.-W.F.P. through Secretary, Government of N.-W.F.P. Revenue Department and Senior Member, N.-W.F.P. Board of Revenue, Peshawar and others 2001 CLC 1853; Administrator, Municipal Committee, Kotli and another v. Muhammad Abdullah and 3 others 2001 YLR 3367; Mst. Nasreen Zohra v. Multan Development Authority through Director-General and another 1991 CLC 1001; R.L. Arora v. The State of Uttar Pradesh and others AIR 1962 SC 764; Anand Kumar and another v. State of M.P. and others AIR 1963 Madh. Pra. 256; Veeraraghavachariar and others v. The Secretary of State for India AIR 1925 Mad. 837; Pakistan through Ministry of Works, Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1960 SC (Pak.) 60 and Federation of Pakistan through G.M. Telegraph and Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others 1993 SCMR 1673 rel.

(f) Punjab Private Site Development Schemes (Regulations) Rules, 2005----

----R. 3(2)(g)-Development scheme---Pre-condition---While applying for sanction of a scheme, a detailed lay out and location of the scheme identifying the land forming part thereof must be made available by developer---For purposes of sanction 80% of land forming part of scheme must already vest in the developer with only 20% to be purchased or acquired subsequently.

(g) Punjab Private Site Development Schemes (Regulations) Rules, 2005---

----R. 2(2)(g)---Land Acquisition Act (I of 1894), Preamble---Word "acquire"---Connotation---Word "acquire" has been used in its literal, general and generic sense meaning to purchase and not necessarily acquire in terms of Land Acquisition Act, 1894.

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

----Ss. 5 & 5-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Compensation---Determination---Alternate remedy---Land of petitioners was acquired by authorities for establishing a journalist colony---Grievance of petitioners was that they would not be fairly compensated---Validity---Fair compensation could only be determined after factual inquiry requiring recording of evidence, which was not possible in exercise of Constitutional jurisdiction by High Court---Adequate alternative remedies were available under Land Acquisition Act, 1894, whereby grievance, if any, of such land owners could be redressed as and when occasion would arise---Constitutional Petition was dismissed in circumstances.

(i) Words and phrases---

----"Corrigendum"---Meaning.

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

----S. 21---Notification---Rectification and correction---Issuance of corrigendum---Scope.

M. Shahzad Shaukat for Petitioner.

Aftab Iqbal Ch. A.-G. Punjab and Malik Zafar Iqbal Awan, Addl. A.-G., Mian Qamar-uz-Zaman for L.D.A.

Shahid Azeem for City District Government.

Date of hearing: 28th July, 2006.

2007 C L C 124

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM RASOOL----Petitioner

Versus

JAVED AHMAD and others----Respondents

F.A.O. 46 of 2002 now Civil Revision No.326 of 2002, heard on 12th September, 2006.

Civil Procedure Code (V of 1908)---

----O. XLI, R.21 & S. 115---Pre-emption suit---Ex parte decision, setting aside of---Sufficient reasons---Failure of pre-emptor, a Government employee to get leave on the date fixed---Strike of lawyers---Non-filing of counter affidavit---Suit for possession through pre-emption was decreed in favour of pre-emptors by Trial Court---On the date fixed for hearing of appeal before lower Appellate Court, pre-emptors and their counsel failed to appear, resultantly appeal was decided in favour of vendee---Pre-emptors filed application under O.XLI, R.21 C.P.C. on the ground that one of them being government employee could not manage leave of his superiors to attend the Court and the other was sick, whereas their counsel did not appear because of strike / boycott---Application of pre-emptors was supported by affidavit and no counter affidavit was filed by vendee---Appellate Court accepted the application and set aside ex parte decree---Validity---Pre-emptors in whose absence appeal was decided ex parte had to explain their non-service or to. give sufficient reasons which prevented them from appearing when appeal was called on for hearing---Pre-emptors, in their application, had duly explained reasons, which prevented them from appearing before lower Appellate Court and those on account of which their counsel did not appear on their behalf---Such reasons were a sufficient cause as required by O.XLI, R.21 C.P.C.---Application of pre-emptors was supported by a detailed affidavit, specifically swearing regarding absence of each of them including their counsel but vendee while replying that application did not file any counter affidavit---In absence of any counter affidavit, facts sworn on affidavit by pre-emptors had to be accepted---Although order passed by lower Appellate Court was not well worded and did not encompass entire controversy, yet net result given through it was just/fair, which could not be termed arbitrary/fanciful on the basis of any canon of law known for administration of justice---Lower Appellate Court did not commit any illegality/irregularity in terms of S.115 C.P.C.---High Court in exercise of revisional jurisdiction, declined to interfere in the order passed by lower Appellate Court---Revision was dismissed in circumstances.

Municipal Corporation, Sialkot v. Muhammad Shafi 1990 ALD 235 and Ghulam Mustafa Shah v. Haji through Legal Heirs and others 1993 SCMR 256 rel.

Sh. Naveed Shahryar for Petitioner.

Syed Kaleem Ahmed Khurshid for Respondents Nos. 1 and 2.

Respondent Nos.3 and 4: Ex parte.

Date of hearing: 12th September, 2006.

2007 C L C 128

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ISMAIL----Petitioner

Versus

SUPERINTENDENT, DISTRICT JAIL, SHEIKHUPURA and 2 others----Respondents

Criminal Miscellaneous No.1035-H of 2006, decided on 20th September, 2006.

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

----S. 13(3)---Civil Procedure Code (V of 1908), Ss.51 & 151, O.XXI, R.29- Qanun-e-Shahadat (10 of 1984), Preamble---Criminal Procedure Code (V of 1898), S.491---Suit for maintenance allowance---Execution proceedings---Procedure---Exclusion of C.P.C. and Qanun-e-Shahadat, 1984 from proceedings under West Pakistan Family Courts Act, 1964---Scope---Habeas corpus petition---Maintainability---Plaintiff/respondent filed suit for maintenance allowance against defendant/petitioner which was decreed by Family Court and appeal there against was dismissed by lower Appellate Court---Plaintiff, thereafter, filed execution proceedings before executing Court and defendant filed objection petition which was dismissed by the Court and bailable warrants were issued against defendant---Defendant who had been released from judicial lock-up on undertaking to pay decretal amount in instalments, failed to honour his undertaking and filed an application under Order XXI, rule 29 read with S.151, C.P.C. for stay of proceedings which was dismissed by Court and he was again sent to judicial lock-up---Defendant's father filed habeas corpus petition before High Court under S.491 for production before the Court to be dealt with in accordance with law---Defendant contended that order passed by executing Court committing him to judicial lock up was not an order in the eye of law as prerequisites of S.51, C.P.C. were not complied with and that as aforesaid order did not specify period of detention of defendant, there was no lawful justification for his further detention---Validity---West Pakistan Family Courts Act, 1964 had provided a special procedure for decision of family matters and C.P.C. and Qanun-e-Shahadat, 1984 were not applicable to a case before Family Court---Reason for exclusion of provisions of C.P.C. and Qanun-e-Shahadat, 1984 was to provide to a spouse easy access to justice---Family Courts were special Tribunals which regulated and supervised the rights of parties under provisions of West Pakistan Family Courts Act, 1964---Execution of money decrees in family matters was governed by S.13(3) of West Pakistan Family Courts Act, 1964 whereby executing Court could summon judgment-debtor to pay maintenance allowance and on his refusal to pay the same, the Court was to proceed and adopt coercive measures---Defendant through petition filed under 5.491, Cr.P.C. was not to challenge proceedings of Executing Court which were regulated by West Pakistan Family Courts Act, 1964 wherein special procedure had been provided for recovery of decretal amount which included adopting of coercive measures against judgment-debtor---Petition was dismissed.

Muhammad Akram Javed for Petitioner.

2007 C L C 132

[Lahore]

Before Muhammad Sayeed Akhtar, J

ARSLAN AZIZ----Petitioner

Versus

BAHAUDDIN ZAKRIYA UNIVERSITY, MULTAN through Vice-Chancellor and another----Respondents

Writ Petition No.4748 of 2006, decided on 20th September, 2006.

Educational institution---

----Admission in B.B.A.(Hons), B.B.A.(I.T.)---Candidate who secured 80% marks in his `A' Level, appeared in entry test, but his result was not declared and he was informed that since the equivalence certificate was not appended by him, his result was not declared---Validity---No requirement existed in the Prospectus or in the application form for providing equivalence certificate from "IBCC"---Candidate, however had provided equivalence certificate to the authorities and had appended general certificate of education from the University of Cambridge with the admission form showing percentage secured by him---Counsel for the authorities was unable to make statement as to whether the candidate otherwise qualified for admission on merit in the University---Authorities were directed by High Court to admit candidate in the University, if he qualified on merit and fulfilled other requirements prescribed by the University.

Ch. Imran Khalid and Sh. Muhammad Sarfraz Hussain for Petitioner.

Muhammad Rafiq Rajwana and Muhammad Tariq Rajwana, Legal Advisor B.Z.U. for Respondents.

2007 C L C 134

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL HUSSAIN and another----Petitioners

Versus

ELECTION TRIBUNAL/SENIOR CIVIL JUDGE, LODHRAN and 5 others----Respondents

Writ Petition No.1147 of 2006, heard on 5th September, 2006.

(a) Punjab Local Government Election Rules, 2005---

----R. 38---Punjab Local Government Ordinance (XIII of 2001), S.164---Unofficial result, declaration of---Punjab Local Government Ordinance, 2001 and Punjab Local Government Elections Rules, 2005 did not cater for such result.

(b) Punjab Local Government Election Rules, 2005---

----Rr. 35(15), 36, 65, 75 & 77---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute regarding counting of votes---Rejection of petitioners' application made during recounting of votes by Election Tribunal stating that signatures of Presiding Officer on ballot-papers were tampered with---Tribunal declared election petitioners as returned candidates after recounting of votes without recording statement of Presiding Officer---Validity---Tribunal should have initiated an inquiry for effective adjudication of such dispute---Tribunal ought to have recorded statement of Presiding Officer particularly in absence of any allegation in election petition against him and objection to result prepared by him---According to results prepared by Presiding Officer and consolidated by Returning Officer or unofficial result, total number of votes came to 595, whereas according to recount made by Tribunal, total number of votes came to 590---Impugned judgment was silent as to what became of remaining five votes---High Court accepted constitutional petition, set aside impugned judgment after declaring same to be without lawful authority, resultantly election petition would be deemed to be pending before Tribunal for its decision afresh after examination of Presiding Officer and recording evidence of parties.

Malik Muhammad Rafiq Rajwana for Petitioners.

Mian Ahmad Mahmood for Respondents Nos.2 and 3.

Nazir Ahmad Presiding Officer and M. Shafiq Steno with records.

Date of hearing: 5th September, 2006.

2007 C L C 138

[Lahore]

Before Mian Saqib Nisar and Syed Asghar Haider, JJ

MUHAMMAD AKRAM----Appellant

Versus

Syed ALI RIAZ KIRMANI and 2 others---.Respondents

Regular First Appeal No.156 of 2006, heard on 21st September, 2006.

Civil Procedure Code (V of 1908)---

• O. VII, R.11---Rejection of plaint---Scope---Where the matter required factual investigation plaint should not be rejected without allowing the plaintiff opportunity to substantiate his case---Agreement to sell, specific performance of---Two defendants admitting the agreement to sell alleged that it was plaintiff who failed to perform his part of agreement while third defendant in an independent written statement categorically denied the execution of agreement in question and moved application for rejection of plaint---Trial Court rejected the plaint qua third defendant---Validity---Question whether third defendant had also entered into an agreement to sell and other defendants were acting on his behalf was a matter of factual enquiry which should have been decided on basis of evidence led by plaintiff and the Court should not have summarily rejected the plaint on account of non-disclosure of cause of action.

Afzal A. Haider for Appellant.

Sh. Azhar Salam for Respondents.

Date of hearing: 21st September, 2006.

2007 C L C 140

[Lahore]

Before Sh. Azmat Saeed, J

PERVAIZ MASOOD DAR----Appellant

Versus

RIFFAT MASOOD DAR----Respondent

First Appeal from Order No.248 of 2006, decided on 18th September, 2006.

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

----Ss. 17(2)(i), (4)(a)(i)(ii), (8), (9) & 24---Ejectment of tenant on grounds of default in payment of rent and bona fide personal need---Non­compliance of tentative rent order---Striking off defence---Appeal to High Court---Tenant having failed to deposit arrears of rent and future monthly rent according to direction of the Rent Controller, landlord filed application under S.17(9) of the Cantonments Rent Restriction Act, 1963 seeking striking off defence of tenant for such failure---Rent Controller vide impugned order struck off defence of tenant and ordered his ejectment from house in question---Validity---Tenant having not complied with tentative rent order, his defence had rightly been struck off---Tentative rent order was not illegal, arbitrary and capricious nor was based on any material extraneous to the record---Said order having not been complied with, order striking off defence and consequent order of ejectment being valid and according to law could not be interfered with in appeal.

Hafiz Sadiq for Appellant.

Waqar Arif Khan for Respondent.

2007 C L C 145

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD TAHIR----Petitioner

Versus

KHANAN----Respondent

Civil Revision No.59 of 2006, heard on 6th July, 2006.

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

----Ss. 5 & 24---Civil Procedure Code (V of 1908), S.38 & O.XX, R.14---Pre-emption decree----Execution of---Power of executing Court---Extent---Pre-emption suit decreed with cost---Court directed deposit of amount within time fixed by it---Pre-emption price was paid within time but failure to payment of cost resulted in the dismissal of suit by executing Court---Validity---Wording of pre-emption decree had clearly indicated that the dismissal of suit was only in the eventuality of the failure to pay the pre-emption money within two weeks and not the cost for which even no time had been fixed---Decree, therefore, had to be construed strictly and enforced---Duty of Trial Court was to comply with provisions of O.XX, R.14, C.P.C. and if there was any lapse on the part of the Court in drawing the proper decree,. no prejudice could be caused to plaintiff---Executing Court at the most could refuse to execute the decree but had no power to dismiss the suit---Dismissal of suit by executing Court therefore, was without jurisdiction.

Saadullah Khan and 2 others v. Sheikh Ghulam Qasim deceased through L.Rs. and others PLJ 2001 Pesh. 76 ref.

Inayat Ullah Khan Niazi for Petitioner.

Malik Zafar Iqbal for Respondent.

Date of hearing: 6th July, 2006.

2007 C L C 154

[Lahore]

Before Mian Saqib Nisar, J

ALLAH RAKHA through L.Rs.----Petitioners

Versus

NASIR KHAN and 4 others----Respondents

Civil Revision No.1266 of 2002, decided on 27th September, 2006.

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

----Art. 30---Admission by co-defendant---Effect---Admission or concession by a co-defendant was not binding upon the other co-defendant who had contested the matter.

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

----Arts. 17(2) & 79---Agreement to sell, execution of---Proof Art.17(2) read with Art.79 of the Qanun-e-Shahadat, 1984 makes it clear that a document creating financial liability must be attested by two witnesses and proved likewise---Plaintiff produced only one marginal witness who being illiterate was unable to identify the impugned document while the other marginal witness, without sufficient explanation, was not examined by plaintiff---Even the scribe had not been examined to prove the execution of agreement to sell which was not on a stamp paper but was on a plain paper---Plaintiff although appeared himself before Court but he was not signatory of the document---Requirements of provisions of Art.17(2) and Art.79 of Qanun-e-Shahadat, 1984 having not been complied with, interference was declined by High Court.

Malik Allah Yar for Petitioners.

Ms. Afshan Zareen for Respondents Nos.1 to 4.

Riaz Ahmad Bubak and Ch. Javed Akhtar Jajja for Respondent No.5.

2007 C L C 160

[Lahore]

Before Mian Saqib Nisar and Syed Asghar Haider, JJ

LAHORE CANTT. COOPERATIVE HOUSING SOCIETY LTD. through Secretary----Appellant

Versus

MUHAMMAD ANWAR and 11 others----Respondents

Regular First Appeal No.202 of 1992; heard on 18th September, 2006.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Specific Relief Act (I of 1877), S.42---Necessary party---Necessary party ought to have been impleaded as in its absence no effective decree could be passed---Court could direct plaintiff to have joined necessary party in the suit---Suit for declaration regarding land---Non-impleading of transferee of suit-land---Effect---All necessary parties to the suit should be joined, and in case they are omitted the suit is bad for non-joinder of necessary parties and no effective decree in such circumstances can be passed---Record showed that suit-land had been transferred to various persons by transferee even before the institution of suit---Court, therefore, while exercising its duty under provisions of 0.I, R.10, C.P.C. should have directed the plaintiff to have joined said transferee as a party, notwithstanding, any objection was raised by defendant or not particularly when the defendant had informed the Court that a part of suit property had been transferred to various allotees of the transferee who would mainly be affected on account of a decree passed in favour of plaintiff---Decree passed in absence of necessary party could not be sustained---Case was remanded for decision afresh.

Tariq Masood for Appellant.

Ch. Muhammad Hussain Naqshbandi, Yaqub Ali Ch. vice Mian Muhammad Siddique Kamyana for Respondents.

Date of hearing: 18th September, 2006.

2007 C L C 165

[Lahore]

Before Mian Saqib Nisar, J

BASHIR AHMAD----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY (LDA) through Director-General and 2 others----Respondents

Civil Revision No.37 of 2006, heard on 18th September, 2006.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Specific Relief Act (I of 1877), Ss.55 & 42---Amendment of pleadings, not bringing any substantial change in nature of suit, may be allowed at any stage of litigation---Suit for mandatory injunction filed by original allottee of suit land was dismissed---During pendency of appeal amendment sought just .to add word `declaration' before the words mandatory injunction was refused---Validity---Held, appellate Court should have allowed the amendment because such amendment if allowed, would not have entailed the recording of any further evidence for trial in the matter, but only would have corrected the form of the suit, as had been held by the Court itself, that in present form the suit was not properly framed---Application for amendment of plaint was, therefore, accepted by High Court.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Muhammad Afzal Khan for Petitioner.

Iftikhar Ahmad Mian for Respondent.

Date of hearing: 18th September, 2006.

2007 C L C 167

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. KHAIRAN BIBI and another----Petitioners

Versus

GHULAM HASSAN and 8 others----Respondents

Civil Revision No.190 of 1999, heard on 22nd July, 2006.

(a) Interpretation of documents---

----Terms and expressions in a document---Scope---Terms of document and intention of parties as to the character of document must be gathered from the terms of document as a whole and not from any isolated expression---Entire document is to be taken into consideration while interpreting a document.

Mst. Zebun Nisa v. Atta Shabir and others PLD 1966 Pesh. 147 and Saifuddin Kazi v. Moslim Ali Howalder and others PLD 1960 Dacca 555 rel.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), 5.115---Islamic law---"Gift" and "will"---Distinction---Interpretation of document---Dispute between the parties was with regard to attestation of mutation bearing words Tamleek-e-Warasat---Parties were legal heirs of deceased owner and plaintiffs asserted that the mutation was an attestation of Will having no legal sanctity---Plaintiffs claimed their share in the suit land---Trial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of plaintiffs---Plea raised by defendants was that it was a mutation of gift made by their father during his life time in their favour---Validity---Will takes effect after the death of a person while gift during the lifetime of donor---Suit land was transferred to defendants during the lifetime of owner and report in Roznamcha Waqiati reflected the intention of donor as to transfer of property through gift/Tamleek it was for such reason that it was mentioned specifically in the report that after Tamleek the donor had relinquished the property---Mere use of word " " (Will) did not make the transaction as Will---Word " '' " was used in isolation and was contrary to the intention of the donor---Courts below misread the document and had erred while holding it as Will---Report on Roznamcha Waqiati was clearly a transaction of gift---Gift in favour of a legal heir could validly be made and there was no prohibition---Predecessor-in-interest of parties did not gift the property in the imminent danger of death and could not be said to have made during Marz-ul-Maut----Judgments and decrees passed by both the Courts below were set aside as the Courts had committed material irregularity---Revision was allowed accordingly.

Biafo Industries v. Federation of Pakistan 2000 CLC 171 ref.

Noor Muhammad Khan and 3 others v. Habib Ullah Khan and 7 others PLD 1994 SC 650 rel.

(c) Islamic law---

----Hiba---Marz-ul-Maut---Proof---Mutation of gift attested in favour of donees was assailed on the ground that the donor was suffering from Marz-ul-Maut---Validity---Donor was personally present and got his statement recorded when report in Roznamcha Waqiati was prepared---Donor was also present before revenue officials at the time of attestation of mutation in favour of donees---Revenue officials found the donor mentally fit to make statement and then recorded his statement---Presence of deceased donor on both the occasions spoke about his health---Cause of death in death certificate was fever; it could not be said in such circumstances that the donor was suffering from a disease which was aggravated so much that he apprehended that his death was more imminent than the chance of living---Donor could not be considered to be suffering from Marz-ul-Maut---No evidence was available to prove that the donor was suffering from a disease which aggravated to an extent that he apprehended death and in such condition he had made the gift---Gift was not void in circumstances.

Mst. Kammon and others v. Allah Bakhsh and others NLR 1990 SD 515; Chiragh Bibi and others v. Karim Bakhsh and others NLR 1988 Civil 179 and Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

(d) Islamic law---

----"Gift" and "will"---Distinction illustrated.

Biafo Industreis v. Federation of Pakistan 2000 CLC 171 ref.

Noor Muhammad Khan and 3 others v. Habib Ullah Khan and 7 others PLD 1994 SC 650 rel.

Ch. Muhammad Anwar Waraich for Petitioners.

Sardar Mohabbat Ali Dogar for Respondents.

Date of hearing: 22nd July, 2005.

2007 C L C 172

[Lahore]

Before Syed Asghar Haider, J

RASHEEDA BEGUM----Petitioner

Versus

GHULAM AHMED and another----Respondents

Civil Revision No.461 of 2006, heard on 3rd October, 2006.

Civil Procedure Code (V of 1908)---

----O. VI, R.4---Execution of gift deed by mother in favour of sons---Mutation was challenged by donor's daughters---Order VI, R.4, C.P.C. mandated that plaintiff was bound to give the details of fraud etc. which were completely lacking in the present case---Evidence produced by plaintiff was sketchy and non-confidence inspiring---Defendants had fully established their claim through cogent, tangible and creditworthy evidence especially by evidence of revenue officials, Tehsildar, Patwari and Patidar, who affirmed the gift mutation, presence of deceased donor and her intention of making the gift---Collateral circumstances clearly proved that deceased lady owned an obligation to defendants for love, care and affection, they provided to her in her twilight years---Factor of rivalry between the parties was proved on record---Preponderance of evidence was in favour of defendants who had fully established their case---No material illegality, irregularity, jurisdictional error or misreading or non-reading of evidence was pointed out in concurrent findings of Courts below.

S.M. Zameer Zaidi for Petitioner.

Muhammad Atif Amin for Respondents.

Date of hearing: 3rd October, 2006.

2007 C L C 175

[Lahore]

Before Syed Zahid Hussain, J

Messrs ZAM ZAM WEAVING AND PROCESSING UNIT----Petitioner

Versus

SUI NORTHERN GAS PIPELINES and others----Respondents

Writ Petition No.8596 of 2006, decided on 2nd October, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Conduct of petitioner---Effect---Petitioner qua the same cause of action and controversy had already filed a suit wherein he filed application for grant of temporary injunction which was dismissed by the Trial Court and then by Appellate Court---Petitioner did not make mention of filing of said suit and passing of said dismissal orders---Counsel for petitioner has stated that he was not instructed by petitioner as to pendency of civil litigation etc.---Counsel for petitioner might not have knowledge, but petitioner was fully aware of the proceedings pending in Civil Court which were filed by him---Even withdrawal of those proceedings later on would not absolve petitioner as when he filed present petition before High Court, he suppressed and concealed the pendency of the same and orders passed by the Courts---Not only parallel proceedings before two forums for the same cause of action were unwarranted, but conduct of petitioner, would also disentitle him to any relief from the Court---Petition was dismissed with costs.

Mian Asif Mumtaz for Petitioner.

Timer Sharif for Respondents.

2007 C L C 177

[Lahore]

Before Sardar Muhammad Aslam, J

ABDUL MAJEED and others----Petitioners

Versus

LIAQAT HAYAT and 19 others----Respondents

Civil Revision No.541 of 2004, decided on 1st November, 2006.

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

----S. 52---Specific Relief Act (I of 1877), Ss.27(b) & 12---Suit for

specific performance of agreement to sell---Lis pendens, doctrine of---Applicability---Heavy burden lies on the subsequent purchaser to prove that he took reasonable care to ascertain that transferor had power to make transfer and he had acted in good faith---Subsequent purchaser having purchased land in dispute during pendency of civil suit for specific performance of agreement to sell is bound by the decree passed in the suit and cannot invoke the plea of bona fide purchaser for value of land without notice---Transfer of land during pendency of suit would be hit by the doctrine of lis pendens and would not be saved by S.41 of Transfer of Property Act, 1882.

Bellany v. Sabine (1857) 1 De-G and J. 566; Fateh Muhammad v. Mst. Maryam Bibi and another 1995 PSC 437; Munawar Hussain and others v. Messrs Nisar & Co. and others 1976 SCMR 385 and Muhammad Yousaf and others v. Muhammad Younas and others 1995 CLC 1780 rel.

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

---Ss. 27(b) & 12---Transfer of Property Act (IV of 1882), Ss.41 & 52---Suit for specific performance of agreement to sell---Bona fide purchaser without knowledge, for valuable consideration---Proof---Doctrine of lis pendens---Applicability---Plea of purchase from ostensible owner---During pendency of suit for specific performance of agreement to sell filed by respondents, suit-land was transferred in favour of petitioners, thus, they were arrayed as defendants---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit of respondents---Plea raised by petitioners was that they were bona fide purchasers for valuable consideration without notice hence they were protected under S.27(b) of Specific Relief Act, 1877, read with S.41 of Transfer of Property Act, 1882---Validity---Petitioners could not invoke principle of bona fide purchaser for consideration, on purchase of land during pendency of litigation, as rule of equity was against them---Such being insurmountable hurdle even if considered to be bona fide purchasers for consideration, petitioners would not be entitled to relief, as such rule of equity was not recognizable under S.52 of Transfer of Property Act, 1882---Mere a word of one of the petitioners that they had no knowledge of agreement to sell in favour of respondents could not defeat the suit---Pendency of suit in Court, presumably had put everyone on notice---Petitioners could not claim protection under S.41 of Transfer of Property Act, 1882, as they were fully aware of the fact that litigation was going on in respect of suit-land between vendor and respondents---Principle of lis pendens was clearly attracted as petitioners had purchased the land with full knowledge of agreement to sell in favour of respondents---Sale made in favour of petitioners during pendency of suit for specific performance was not sustainable in law---Even on dismissal of suit for specific performance, transfer made before expiry of limitation period of appeal was not made bona fide---Petitioners were not protected under S.41 of Transfer of Property Act, 1882, and the judgment passed by Appellate Court was unexceptionable---Revision was dismissed in circumstances.

Ijaz Baig and 16 others v. Irshad Baig and 2 others 2003 CLC 1805; Allah Ditta v. Abdul Ghafoor 1992 MLD 1301; ;Baisnab Das Mohanta v. Nani Gopal Das and others PLD 1963 Dacca 504; Irshad Ali v. Soof Khan and another 1987 MLD 498 and Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972 SC 25 ref.

Syed Kabir Mehmood for Petitioners.

Hafiz Khalil Ahmad and Malik Munsif Awan for Respondents.

Date of hearing: 13th October, 2006.

2007 C L C 188

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ASLAM----Petitioner

Versus

DISTRICT RETURNING OFFICER, SHEIKHUPURA and 6 others----Respondents

Writ Petition No.11927 of 2006, decided on 10th November, 2006.

Constitution of Pakistan (1973)-

----Art. 199---Punjab Local Government Elections Rules, 2005, Rr.12 & 14---Constitutional petition, withdrawal of---Petitioner/candidate in his constitutional petition had levelled serious allegations against respondent/ Returning Officer, but Returning Officer who appeared in the Court, rebuffed said allegations---Counsel for petitioner had submitted that he wanted to withdraw constitutional petition---Levelling false and wild allegations against innocent persons disregarding their status and position, not only was illegal, but also was a sin in accordance with Islam---Under Constitution, to malign judiciary was a serious offence---Request of counsel for petitioner for withdrawal of constitutional petition was declined and constitutional petition was dismissed with cost to be paid by the petitioner.

Ch. Binyameen Khalil for Petitioner.

Tariq Khursheed Khawaja, Civil Judge 1st Class/Respondent No.2.

2007 C L C 189

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD RAMZAN and 2 others----Petitioners

Versus

AMINA BIBI and others----Respondents

Civil Revision No.2065 of 2004, decided on 7th June, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction had been concurrently decreed by the Trial Court and Appellate Court---Validity---Impugned decrees being consistent with record, were unexceptionable---Counsel for petitioner was unable to advert to any jurisdictional error or other legal infirmity in the impugned judgments and decrees which could justify interference in them while' exercising revisional jurisdiction.

Rana Rashid Akram Khan for Petitioners.

Ch. Riasat Ali for Respondents.

Date of hearing: 7th June, 2006.

2007 C L C 191

[Lahore]

Before Muhammad Muzammal Khan, Mian Hamid Farooq and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD AKRAM KHAN and another----Petitioners

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and 4 others----Respondents

Writ Petition No.15034 of 2005, heard on 13th October, 2006.

Punjab Local Government Elections Rules, 2005---

----R. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-polling on certain Polling Stations---Presiding Officer could stop the Poll and inform the Returning Officer of his having done so, in case the poll at his Polling Station had been interrupted/obstructed for the reasons beyond his control and same could not be resumed during the polling hours or any ballot box used at the Polling Station was unlawfully removed or was accidentally/intentionally destroyed, lost, damaged or tampered with to such extent that result of the poll could not be ascertained---In absence of any interruption/obstruction in the poll or removal/damage of ballot boxes, re-poll could not have been ordered merely on the ground that vote turn up, at certain Polling Stations had been abnormal---Since the law applicable had not prescribed any average of turn up of votes, re-poll on that basis could not be justified---Re-poll at concerned Polling Station, being not covered by R.25 of Punjab Local Government Elections Rules, 2005, same could not have been ordered in circumstances.

S.M. Masud for Petitioners.

Ch. Muhammad Sadiq, Addl. A.-G. for Respondents Nos.1 to 3.

Maqbool Elahi Malik for Respondents Nos.4 and 5.

Date of hearing: 13th October, 2006.

2007 C L C 195

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ANWAR----Petitioner

Versus

SHAMIM AKHTAR and others----Respondents

Writ Petition No.10115 of 2005, decided on 9th September, 2005.

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

----S. 5, Sched.---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Suit for grant of maintenance allowance, Iddat expenses and return of dowry articles---Constitutional petition had been directed against judgment and decree passed by fudge, Family Court whereby maintenance allowance to minors and Iddat expenses to the wife was granted at the rate of Rs.500 per month and suit for return of dowry articles was also decreed for a sum of Rs.20,300---Maintenance allowance was too meagre to be commuted as in the present day, one could hardly live his life on an amount of Rs.500 per month---Same could not be termed as excessive, in circumstances---Legislature in its wisdom had not provided appeal against a decree where value of dowry articles and maintenance allowance was less than Rs.30,000 and Rs.1,000, respectively---Petitioner could not seek relief in constitutional petition by circumventing the relief not provided by statute in absence of any misreading or non-reading of evidence---Interference in exercise of constitutional jurisdiction was declined, in circumstances.

Muhammad Amir Khan Niazi for Petitioner.

2007 C L C 197

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

ZAFAR IQBAL----Appellant

Versus

SAEED HASSAN----Respondent

Regular First Appeal No.32 of 2004, heard on 1st November, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of pro note---Leave to appear and defend the suit granted subject to furnishing of security---Security was furnished twice, but later on surety appeared and made a statement that he be allowed to withdraw---Surety was allowed to withdraw and defendant was directed to furnish a fresh security but when third time surety seeking permission to withdraw was allowed by Court defendant was directed to furnish fresh security in a matter of hours---Defendant failed to do so and suit was decreed--Validity---Question whether a surety having once given an undertaking to the Court on terms of an order requiring furnishing of such security could be allowed to withdraw was not raised by any of the parties hence required no consideration---Surety was furnished but Trial Court without reference to any of the parties allowed the surety to withdraw having done so, it was incumbent upon Trial Court to give reasonable time to defendant to arrange and furnish fresh security in terms of the leave granting order---Record was apparent that case was adjourned on several occasions for recording evidence of defendant but same had not been produced---Case was remanded to Additional Session Judge, in view of conduct of defendant with direction to fix only one date for recording entire evidence after furnishing of fresh security by defendant and in case surety is not furnished the appeal would be deemed to have been dismissed.

Mian Shah Abbas for Appellant.

M.R. Anwar for Respondent.

Date of hearing: 1st November, 2006.

2007 C L C 200

[Lahore]

Before Ch. Ijaz Ahmed and Muhammad Khalid Alvi, JJ

MUHAMMAD AMIN----Appellant

Versus

NASIR MEHMOOD----Respondent

Regular First Appeal No.388 of 2004, decided on 14th February, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII & Rr.2, 3 & O.IX, R,13---Suit for recovery of amount on basis of cheque---Leave to appear and defend suit---Ex parte decree, setting aside of---Defendant did not appear before the Trial Court, despite case was repeatedly called and finally ex parte order was passed against defendant and case was adjourned for ex parte evidence of plaintiff---After recording ex parte evidence of plaintiff and witnesses produced by him in proof of his claim, case was adjourned for next date of hearing---Application filed by defendant for setting aside ex parte proceedings, was dismissed by the trial Court and impugned judgment and decree were passed---Defendant had failed to furnish sufficient ground for setting aside ex parte order---Parties were duty bound and obliged to be vigilant of their rights, but defendant himself was not vigilant---Defendant, in circumstances was not entitled to get the benefit of his own misdeed and negligence--Leave to appear and defend suit having not been granted to defendant, impugned judgment-and decree were in accordance with provisions of law---Proceedings initiated under O.XXXVII, C.P.C., which contained entire mechanism and procedure, had to be looked into within four corners of O.XXXVII, C.P.C.---Defendant having failed to bring on record special circumstances for setting aside ex parte order, application for setting aside same was dismissed by the Trial Court on the basis of which impugned ex parte judgment and decree had been passed by the Trial Court---In absence of any infirmity or illegality in the impugned judgment and decree of the Trial Court, appeal against impugned order and decree, was dismissed.

Messrs Ahmad Autos v. Allied Bank PLD 1990 SC 497 ref.

Faryad Ali Chaudhry for Appellant.

Zafar Iqbal Chohan for Respondent.

2007 C L C 209

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD ASGHAR----Petitioner

Versus

STANDARD INSURANCE COMPANY LIMITED through Managing Director, Standard Insurance Company Ltd. and 5 others----Respondents

Writ Petition No.7521 of 1995, heard on 1st November, 2006.

Contract Act (IX of 1872)---

----Ss. 2(b), (e) & 28---Civil Procedure Code (V of 1908), O.VII, R.10---Specific Relief Act (I of 1877), S.55---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for mandatory injunction---Question of jurisdiction---Clause in Insurance Policy specified territory for institution of suit---Effect---Terms and conditions spelled in Insurance Policy binding on parties in toto---Scope---Plaintiff/petitioner filed a suit for mandatory injunction against respondents before Civil Court at place "V"---One of the defendants/respondents raised preliminary objection with regard to jurisdiction of Civil Court at "V" on ground that under clause (21) of Fire Policy of Insurance Company it was agreed that in case of dispute, Civil Court at "K" was to have jurisdiction to adjudicate upon the matter---Respondent moved an application under Order VII, Rule, 10, C.P.C.---Plaintiff resisted application and Civil Court, "V", after hearing parties proceeded to dismiss application---Respondent filed revision petition against order of Civil Court which was accepted by District Court---Plaintiff contended that it was to be seen whether any specific assent was given by him to Insurance Policy/agreement; that assent had not been accepted or signed by plaintiff as such it was not binding upon him; that S.2(b)&(c) of Contract Act, 1872 signified that assent of parties was paramount and the same was obtained when it was accepted and signed; that said Insurance Policy could not be considered as an agreement between parties as same had not been signed by parties; that as only one respondent objected to jurisdiction of Court at "W., therefore, suit could be proceeded at "V" against other respondent; that if there was any clause in Insurance Policy putting restriction on jurisdiction of the Court, the same was in violation of S.28 of Contract Act, 1872, under which any agreement restraining a person from enforcing his right was void to that extent---Validity---Insurance Policy was issued by Insurance Company on certain terms and conditions with its own signatures and it does not necessarily have signatures of the other party---Plaintiff having filed suit against respondents based upon said Insurance Policy, had, naturally accepted terms and conditions of Insurance Policy before obtaining the same as was evident from plaint of suit for mandatory injunction---Plaintiff, on one hand, was invoking other terms and conditions stated in policy while, on the other hand, he refused .to accept a certain clause of Insurance Policy regarding institution of suit in Civil Court at "K"---Stand of petitioner, if accepted, then his whole case before Civil Court was to be affected and principle of estoppel was to be urged against him which would hamper his claim before Civil Court---Plaintiff had obtained policy of defendant company and accepted all terms and conditions in toto---District Court/Revisional Court had rightly decided matter in accordance with law---Constitutional petition was dismissed.

Messrs Kadir Motors (Regd) Rawalpindi v. Messrs National Motors Ltd. Karachi 1992 SCMR 1174 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393 rel.

Amir Ali Bhatti for Petitioner.

Ch. Shakil Ahmad Sindhu for Respondents.

Masood Sadiq for H.B.L.

Date of hearing: 1st November, 2006.

2007 C L C 216

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

DILSHAD AHMED KHAN----Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Director Estate Management-II, Islamabad----Respondent

Regular First Appeal No.28 of 2004, heard on 27th July, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Suit for declaration, permanent and mandatory injunction---Auction of plot---Cancellation of bid of auction---Authority auctioned suit plot and plaintiff was the highest bidder---Terms of auction showed that plaintiff had paid certain amount at the time of auction, whereas according to terms of auction, plaintiff was bound to deposit 25% of total consideration within 48 hours from the auction day, failing which bid was liable to be rejected and 10% of total amount of premium or the deposited amount, whichever was less, would stand forfeited in favour of Authority---Plaintiff having failed to deposit 25 % of total consideration within stipulated period of 48 hours according to terms of auction, his auction was cancelled---Contention of plaintiff was that he could not deposit amount according to terms of auction, because two days after auction of plot, one person filed suit against plaintiff as well as the Authority; and that interim injunction was issued by the civil court in that suit, whereby Authority was directed to refrain alienating suit plot in an illegal manner-Validity-Nowhere in restraining order passed by the civil court in the said suit, plaintiff was restrained from depositing the balance amount of 25 % of the total sale consideration as per terms of auction---Since appellant did not deposit 25% of sale consideration within stipulated period of 48 hours, highest bid offered by the plaintiff, was rightly rejected by the Authority and acceptance was not confirmed in favour of plaintiff---Giving the highest bid which was not accepted, no legal right to grant contract was created in favour of plaintiff---Plaintiff was also not entitled for any notice prior to rejection/cancellation of his bid because same was not accepted by the competent Authority---Trial Court, in circumstances had rightly dismissed the suit filed by plaintiff.

1993, MLD 1976; PLD 1995 Lah. 451; 2000 Law Notes 411; Munshi Muhammad's case 1971 SCMR 533; Rehmat Ali's case 1973 SCMR 342; Meraj Din's case 1970 SCMR 542; Ghulam Nabi and others v. Seth Muhammad Yaqoob PLD 1983 SC 344; 1994 SCMR 2268; PLD 1982 SC 590; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Muhammad Arif v. Mrs. Anwar Jehan 2000 SCMR 1960 and Mst. Husna Bano alias Mst. Bibi Hussain Bano and others v. Faiz Muhammad through L.Rs. and others 2002 SCMR 667 ref.

Abdur Rashid Awan for Appellant.

Arif Chaudhry for C.D.A.

Date of hearing: 27th July, 2006.

2007 C L C 234

[Lahore]

Before Maulvi Anwarul Haq, J

Mirza IRFAN BAIG----Appellant

Versus

MUBASHAR AHMAD BAJWA----Respondent

First Appeal from Order No.167 of 2006, heard on 15th November, 2006.

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

----S. 17(8)---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13(6) & 15(5)---Ejectment petition---Default in payment of rent-Denial of relationship of landlord and tenant---Tentative rent order, non-compliance of---Striking off defence---Tenant who had failed to comply with order of Rent Controller with regard to deposit of arrears of rent upto specified date and to tender future monthly rent of premises, set up plea of agreement to sell in respect of premises in dispute and his suit for specific performance against landlord was pending in civil court however it was not disputed that he had entered in the house as a tenant under landlord subject to conditions noted in rent agreement---Admittedly no such provision was set in agreement to sell, that relationship of landlord and tenant will be ceased to exist---Relationship in dispute never ceased to exist between parties---Rent Controller therefore was competent to pass order in terms of section 17(8) of Cantonments Rent Restriction Act, 1963---Tenant failing to show cause for non-compliance of tentative rent order passed by Rent Controller, ejectment petition, held was rightly allowed.

Umar Hayat Tahir for Appellant.

Rana Habib-ur-Rehman Khan for Respondent.

Date of hearing: 15th November, 2006.

2007 C L C 248

[Lahore]

Before Syed Asghar Haider, J

SPECIAL COMMUNICATION ORGANIZATION through Director-General, Rawalpindi----Appellant

Versus

Messrs IBELL (PVT.) LTD., LAHORE----Respondent

F.A.O. No.270 of 2006, heard on 21st September, 2006.

Arbitration Act (X of 1940)---

----Ss. 20, 31 & 39---Application for filing of arbitration agreement in the Court---Jurisdiction---Appeal against order---Appeal had been directed against order passed by Civil Judge, "L" whereby application made by respondent under S.20 of Arbitration Act, 1940 for filing of arbitration agreement was allowed---Agreement in question was executed between appellant and respondent at "R" and according to one of the clauses of said agreement arbitration proceedings were to be held at "I"---No dispute existed qua the holding of arbitration proceedings under the agreement and both parties concurred that venue for that purpose was "I"---Core dispute between the parties related to the question of exercise of jurisdiction by the Court---In contracts, jurisdiction normally, would, vest with the Court where agreement was executed---Present agreement having been executed at "R", jurisdiction would vest in the court at "R"---Proceedings were wrongly instituted before the Court at "L"---Allowing appeal impugned order passed by Civil Judge, "L", was set aside being without jurisdiction.

Rashid Ahmad v. The State PLD 1972 SC 271; Societe Generaled D Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad 2002 SCMR 1694; Sultan Ali v. Khushi Muhammad PLD 1983 SC 243; Muhammad Sadiq through his Legal Representatives v. Pakistan through Collector, Rawalpindi and 2 others 1988 CLC 123; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1681; Ravi Glass Mills Limited v. I.C.I. Pakistan Powergen Limited 2004 YLR 2503; Pakistan National Shipping Corporation, P.N.S.C. Building Karachi v. Samsung Co. Ltd. and 3 others 2001 CLC 1473; Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; Messrs Nalanda Ceramic and Industries Ltd. v. Messrs N.S. Choudhury & CO. (P.) Ltd. AIR 1977 SC 2142 and Food Corporation of India and another v. Greet Eastern Shipping Co. Ltd. AIR 1988 SC 1198 ref. .

Miss Aaliya Neelam for Appellant.

Shahzad Rabbani and Sohail Raza for Respondent.

Date of hearing: 21st September, 2006.

2007 C L C 257

[Lahore]

Before Syed Hamid Ali Shah, J

MUNAWAR HUSSAIN MALIK----Petitioner

Versus

SAGHIR AHMAD and 16 others----Respondents

Civil Revision No.1399 of 2005, decided on 30th September, 2006.

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

----S. 12---Civil Procedure Code (V of 1908), S.115, O.XI, R.14 & O.XII, R.8---Qanun-e-Shahadat (10 of 1984), Arts.76 & 77---Suit for specific performance of agreement to sell---Denial of execution of agreement by defendant alleging same to be forged---List of .reliance annexed with plaint mentioning original agreement to be in possession of defendant---Application by purchaser pendente lite seeking production of original agreement by plaintiff---Plaintiff admitting to be in possession of original agreement took stance that same would be produced at proper time---Non production of agreement by defendant in spite of service of notice upon him by plaintiff---Trial Court accepted plaintiff's application to produce photocopy of agreement as secondary evidence---Validity---Failure to produce original agreement would be fatal to plaintiff, who sought its performance---Plaintiff had not stated in plaint that original agreement, after execution, was delivered to defendant and was in his possession---Plaintiff could not be allowed to lead evidence that agreement was in possession of defendant---Vendee ordinarily keeps agreement after its execution---Plaintiff had admitted possession of agreement and undertook to produce same at proper time---Contents of list of reliance annexed with plaint being vague would not take precedence over such admission of plaintiff for being later in time---Plaintiff had not proved either loss of original agreement or possession thereof with defendant---Impugned order suffered from legal infirmities---High Court accepted revision petition and set aside impugned order in circumstances.

Emmanuele Grech v. Antonio Grech and others PLD 1952 PC 155; Sardar Bakhsh v. Mst. Maqsood Bibi PLD 1994 Lah. 452; Mutali v. Manzoora and another PLD 1994 Lah. 298; Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 SCMR 965 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

Muhammad Afzal v. Abdul Karim and others 1984 CLC 1406; S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149; Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Limited and 3 others 2006 SCMR 21 and Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 rel.

(b) Pleadings----

---Evidence could not be led beyond the scope of pleadings.

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

----Art. 76--Secondary evidence, leading of---Essential requirements stated.

Secondary evidence is an exception to general rule and its object is to meet the genuine hardship of a litigant only in the circumstances when better evidence is absent and cannot be adduced in normal circumstances. Loss of original document is an essential requirement for permission to lead secondary evidence.

Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237 and Sardar Bakhsh v. Mst. Maqsood Bibi PLD 1994 Lah. 452 rel.

Mian Zafar Iqbal Kalanauri for Petitioner.

Muhammad Khalid Lateef Khokhar for Respondents Nos.3 to 15.

Ch. Hameed-ud-Din for Respondents Nos. 1 and 2.

Date of hearing: 14th September, 2006.

2007 C L C 274

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Malik MUHAMMAD RAZAQ----Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 7 others----Respondents

Writ Petition No.10686 of 2006, decided on 14th November, 2006.

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

----Ss. 85 & 92---No-confidence/re-call motion---Summoning and holding meeting of Union Council---Limitation---Right of Nazim to address Union Council in his defence---Scope---Word "summon" as used in S.85(2) of Punjab Local Government Ordinance, 2001 would mean to call or order to appear or summon a meeting of Union Council and issue notice thereof within three days---Not necessary to hold actual meeting of Union Council within three days on receipt of notice referred to in S.85(1) of the Ordinance---Right of Nazim to address Union Council would be provided at the time of deliberations mentioned in S.85(3) of the Ordinance, but not at the time of secret balloting---Principles.

Muhammad Ramzan v. Government of the Punjab through Secretary, Local Government and Rural Development Department Lahore and others 2005 CLC 1069; PLD 1991 SC 1029; PLD 1990 Lah. 9; 2004 SCMR 1903; 2005 YLR 99 and 2004 YLR 1856 ref.

Rana Muhammad Zahid for Petitioner.

Tahir Munir Malik assisted by Ghazanfar Ali Gul and Malik Muhammad Rafiq for Respondents.

2007 C L C 277

[Lahore]

Before Maulvi Anwarul Haq, J

IMAM ALI----Petitioner

Versus

MUHAMMAD SIDDIQUE and 3 others----Respondents

Civil Revision No.2069 of 2000, heard on 30th October, 2006.

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

----Ss. 13-Suit for pre-emption---Nature of transaction, determination of---Plaintiff's case was that transaction in question, though given the colour of exchange, was in fact a sale---Suit was decreed but decree set aside in appeal---Validity---Respondent transferred his land to another respondent ostensibly in exchange for another land---Simultaneously with such transaction of exchange a sale-deed was executed by said other respondent in favour of his minor sons regarding the land allegedly given in exchange---Both exchange mutation and sale mutation were taken up and attested together---No explanation was on record for such conduct---Transaction of land by transferee respondent to another person, held, was a sale and not exchange.

Syed Shahbaz Hassan v. Syed Muhammad Hussain and others 1977 SCMR 197 ref.

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

---S. 13(3)---Talb-i-Ishhad---Notice not attested in the manner laid down by law---Effect---Pre-emptor in his cross-examination admitted that he obtained the thumb-impressions of witnesses on blank papers and thereafter notice was typed in absence of witnesses---Pre-emptor added that he did not at all know as to what was written in the notice---Allegation that pre-emptor went to house of vendee with consideration amount and vendee refused to accept same stood duly rebutted while testimony of pre-emptor itself established that no valid notice evidencing Talb-i-Ishhad was given---Making of Talb-i-Ishhad, held was not proved on record.

Hafiz Khalil Ahmad for Petitioner.

Saiful Malook for Respondents.

Date of hearing: 30th October, 2006.

2007 C L C 304

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameedur Rehman, JJ

Mian GHULAM YASIN and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 12 others----Respondents

Writ Petition No.5.582 of 2006, decided on 8th November, 2006.

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

----S. 152(1)(2)---Punjab Local Government Elections Rules, 2005, R.14(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim--Disqualification of Naib Nazim---Automatic disqualification of Naib Nazim---Candidates who opted to contest elections in panel as Nazim' andNaib Nazim' from the same Union Council, under law, could not stand or fall singly---Power of Chief Election Commissioner---Scope---Pendency of Constitutional petition not to debar Chief Election Commissioner from exercising his powers---Review jurisdiction---Scope---Petitioners jointly contested Local Bodies Election for seats of Nazim and Naib Nazim respectively, in panel, and were declared returned candidates---Respondents filed application before Chief Election Commissioner pleading therein that one of the petitioners was not qualified to contest election because he only possessed "Sanad of Dini Madrasa" which was not. equivalent to matriculation certificate---Election Tribunal, in the meanwhile, was constituted and respondents also instituted election petition on main ground that said petitioner was not matriculate, therefore, he was disqualified to' contest election on basis of "Dini Sanad"---During proceedings Election Tribunal directed Returning Officer to ensure safe production of record for purpose of recounting which order was challenged by petitioner through constitutional petition---Member of Election Commission, during pendency of constitutional petition, cancelled notification of said petitioner and ordered for holding of fresh election for the seat vacated by him---One of the respondents then filed review petition before the Member of Election Commission claiming that other petitioner also be deseated as both petitioners had jointly contested election in one panel---Member of Election Commission cancelled notification of both "Nazim" and "Naib Nazim"---Petitioners contended that during pendency of constitutional petition no parallel proceedings could be undertaken on the same subject matter by the Member of the Commission; that no power of review either under the Constitution or Punjab Local Government Ordinance, 2001, vested with Member Election Commission as under the law power of review was the creature of statute and could only be exercised when it was specifically conferred upon judicial forum---Respondents argued that since said petitioner was de-seated, therefore, his panel member (the other petitioner) stood automatically disqualified by operation of law and that Member Election Commission did not review his earlier order but had clarified/elaborated his earlier order---Validity---Under S.152(2) of Punjab Local Government Ordinance, 2001, Chief Election Commissioner was empowered to disqualify a person who was found guilty of violating and contravening the provision of S.152(1) of the Punjab Local Government Ordinance---Powers of Chief Election Commissioner under S.152(2) of the Ordinance, appeared to be independent of any other remedy or law provided for disqualification of any person---Mere pendency of election petition or constitutional petition did not debar Chief Election Commissioner to exercise his powers conferred by S.152(2) of the Ordinance, unless valid injunctive order was in field and operative---Mere filing of appeal against a decree or order would not operate as stay of proceedings unless Appellate Court specifically stayed proceedings or granted injunction---Controversy raised. and decided by Member of Election Commission was not the subject matter of petitioner's constitutional petition, therefore, it could not be argued that either the subject matter of constitutional petition and application before Member Election Commission were the same or that parallel proceedings were undertaken by Member Election Commission---Result of disqualification of the petitioner under proviso to Rule 14(3) of Punjab Local Government Elections Rules, 2005 was that the nomination of other petitioner was to automatically stand rejected and he was also disqualified without any fault on his part---Petitioners who opted to contest elections in panel as "Nazim" and "Naib Nazim" for the same Union Council, under law, could not stand or fall singly---Contention of petitioners that there was conscious omission of Member Election Commission not to pass any order against other petitioner, could not be accepted---Power of review was creature of statute and could only be exercised when it was conferred upon a Court or Tribunal--Right of review was a substantive right and not a matter of procedure and no Court/Tribunal possessed the inherent powers to review its decree or order unless such a power was expressly granted by statute--Neither the Constitution, nor Punjab Local Government Ordinance, 2001 nor Punjab Local Government Elections Rules, 2005, empowered Chief Election Commissioner/Member Election Commission to review its order---Application for modification/correction/review of order was filed by respondent yet the same was not decided as a review petition---Assuming that Member Election Commission had reviewed his order, even then his latest order could not be set aside on the grounds, that it would be against express provision of law and would perpetuate injustice---Jurisdiction was vested in Courts to dispense justice and not to perpetuate injustice---Election petition was dismissed.

?

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Muzaffar Ali v. Muhammad Shaft PLD 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muhammad Yousaf and another v. The Government of Pakistan through General Manager, Pak. Railway, Lahore and 5 others 1992 SCMR 1748 and Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, Karachi through President and 3 others 1999 SCMR 2353 rel.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

(b) Review---

----Scope---Power of review was creature of statute and could only be exercised when it was conferred upon a Court or Tribunal---Right of review was a substantive right and not a matter of procedure and no Court/Tribunal possessed the inherent powers to review its decree or order unless such a power was expressly granted by statute.?

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Muhammad Yousaf and another v. The Government of Pakistan through General Manager, Pak. Railway, Lahore and 5 others 1992 SCMR 1748 ref.

Ch. Abdul Sattar Goraya for Petitioners.

Muhammad Arif Alvi for Respondents Nos.3 and 4.

2007 C L C 312

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Mst. ZAHIDA BIBI----Petitioner

Versus

DISTRICT RETURNING OFFICER, KASUR and 2 others----Respondents

Writ Petition No.12107 of 2006, decided on 20th November, 2006.

Punjab Local Government Elections Rules, 2005---

----R. 12(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acceptance of nomination papers, after expiry of scheduled date, on ground of sickness---Validity---Sub-rule (5) of R.12 of Punjab Local Government Elections Rules, 2005 clearly manifests that it was not necessary for a candidate to present his nomination papers personally---Under this rule, if respondent candidate was sick, her proposer or seconder could have presented her nomination papers to the Returning Officer---District Returning Officer completely ignored provisions of law while accepting respondent's nomination papers after expiry of fixed date on ground of illness---Medical certificate relied upon by candidate had been proved forged and fake even the doctor who purportedly issued the certificate had disowned the document---Candidate approached District Returning Officer with sullied hands, hence deserved no discretionary relief---Person who approaches Court with unclean hands deserves no leniency and favour under constitutional jurisdiction.

Syed Tayyab Mehmood Jaferi for Petitioner.

Ch. Muhammad Din Ansari for Respondent No.3.

2007 C L C 330

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM SHABIR and others----Petitioners

Versus

ELAHI BAKHSH and others----Respondents

Civil Revision No.747 of 1992, heard on 8th November, 2006.

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

----S. 53---Once entry in Revenue Record was proved to be illegal, previous entry would be deem to stand---Plaintiff was owner of 119 share in erstwhile Khewat which subsequently was bifurcated into two Khewats---Name of plaintiff was omitted from one of Khewats resultantly there was a shortfall of land in his ownership--Such omission continued in latter Jamabandis till such time that consolidation took place and suit-land from which plaintiff was deprived of was included in Khata of defendant---Report prepared by Patwari Consolidation and statement of Circle Patwari was in accordance with record and fully supported the claim of plaintiff---Plaintiff's ownership in the erstwhile Khewat was admitted, however, only objection raised in written statement was that the mutation was fictitious---Once it was found that an entry had been unlawfully altered, it shall be deemed that old correct entry always continued---Courts ° below rightly held that since no denial was on record regarding actual ownership of plaintiff in the erstwhile Khewat, adjustment would be made accordingly after correcting entries.

Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338 ref.

Allah Wasaya Malik for Petitioners.

Rana Muzaffar Hussain for Respondents.

Date of hearing: 8th November, 2006.

2007 C L C 339

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mrs. KHALIDA AZHAR----Appellant

Versus

RUSTAM ALI BAKHSHI and others----Respondents

First Appeal from Order No.167 of 2006, heard on 2nd November, 2006.

(a) Registration Act (XVI of 1908)---

----Ss. 60 & 59---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S.52---Application for temporary injunction---Lis pendens, doctrine of--Certificate of registration---Presumption---Claim of plaintiff in respect of 1/5th property of her deceased father was disputed by defendants who were real brother of plaintiff alleging that suit-land had been gifted in their favour by plaintiff vide gift deed---Said gift deed had been registered by Sub-Registrar and bore endorsement/certificate of registration of Sub-Registrar---Effect---Provision of S.60, Registration Act, 1908 provided only that when a certificate containing word "registered" was endorsed by Registering Officer on the document, document was admissible for purpose of proving that same was duly registered in the manner provided by Registration Act, 1908 and facts mentioned in ,endorsement referred to in' S.59 of said Act occurred as mentioned therein---Certificate of registration endorsed on a document is a prima facie evidence that requirements of the Registration Act, 1908 have been complied with and it is for the party who challenges registration to prove any act or omission which would invalidate such registration---Registered document has sanctity attached to it---Plaintiff failed to produce sufficient and convincing evidence to cast aspersion on its genuineness---Prima facie the case was not made out, plaintiff's application for temporary injunction was dismissed---If subsequently plaintiff succeeded and suit property was alienated during pendency of litigation, said transaction would be hit by doctrine of lis pendens.

Muhammad Aslam v. Rehmat Ali 2000 MLD 1459; Mirza Muhammad Sharif v. Mst. Nawab Bibi 1993 SCMR 462; Lt. Muhammad Sohail Anjum Khan v. Abdur Rashid Khan 2003 MLD 1095 and PLD 2003 SC 676 rel.

Muhammad Ali v. Ahmad Bakhsh 2000 MLD 1447 ref.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Essentials---Three ingredients i.e. prima facie case, balance of convenience in favour of plaintiff and irreparable loss must exist for grant of interim injunction in favour of plaintiff.

Century Link Development Corporation (Pvt.) Ltd. v. Habib Bank PLD 2000 Kar. 269 and Muhammad Abid v. Nisar Ahmad 2000 SCMR 780 ref.

Dr. Azeem Azhar Raja, Special Attorney for Appellant.

Ch. M. Iqbal and M. Arbab Abbasi for Respondents.

Date of hearing: 2nd November, 2006.

2007 C L C 343

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

GHULAM MUSTAFA and another----Appellants

Versus

MUHAMMAD ASLAM----Respondent

Regular First Appeal No.158 of 2006, heard on 1st November, 2006.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Dismissal of suit for non-production of evidence---Record showed that plaintiffs' case was not adjourned on their request on the preceding date--Party being penalized under provisions of O.XVII, R.3, C.P.C. should have been required by Court to produce evidence or to do any other act for progress of suit but Court failed to do the same---Plaintiffs might have been given numerous opportunities of producing evidence and they might have failed but crucial date for applicability of provisions of O.XVII, R.3, C.P.C. was the date from which suit was lastly adjourned and in the present case on the pivotal date case was adjourned on account of death of some Advocate of Bar Association---Such adjournment held could not be attributed to plaintiffs---Since plaintiffs' suit was not adjourned on their request on the preceding date, penal provisions, invoked, were inapplicable---Appeal was accepted and case was remanded.

Kamal Hussain Naqvi for Appellants.

Imran Naveed Chaudhary for Respondent.

Date of hearing: 1st November, 2006.

2007 C L C 345

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Syed SHAHID MUSTAFA and another----Petitioners

Versus

ASIF ALI KHAN and 5 others----Respondents

Writ Petition No.12180 of 2006, decided on 14th November, 2006.

(a) Punjab Local Government Elections Ordinance (V of 2000)---

----S. 152(i)-Punjab Local Government Elections Rules, 2005, R.12(4) & Form XIX---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaration in Form XIX---Property in name of wife was not disclosed by candidate in declaration of assets filed along with the nomination papers---Candidate's application for seeking permission to incorporate property of his wife in his amended declaration Form No.XIX was allowed---Validity---Wife of candidate was living separately for 1-1/2 years with her parents due to differences between the spouses and, during separation, property in question was purchased by wife, on her own, however, candidate applied for amendment in declaration form, supported by his affidavit, contents of which were not rebutted---Amended declaration of assets was submitted with permission of the Returning Officer during the process of election and before the actual balloting hence no prejudice had been caused to the petitioners.

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

----S. 152(i)--Punjab Local Government Elections Rules, 2005, R.12(4) & Form XIX---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaration in Form XIX---Concealing of certain assets---Candidates who submitted amended declaration of assets with permission of Returning Officer at the time of submission of nomination papers, held he possessed assets which were consistent with his declaration of assets.

Hafiz Ansar-ul-Haq for Petitioners.

2007 C L C 348

[Lahore]

Before Muhammad Akhtar Shabbir, J

EXCEED (SMC PVT. LTD.) through President and Chief Executive----Petitioner

Versus

ZTAF ZHONGXING TELECOM PAKISTAN (PVT.) LTD. through Executive Director and another----Respondents

Civil Revision No.485 of 2006, decided on 3rd November, 2006.

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

----O. XXXIX, Rr.1, 2 & S.115---Civil revision, maintainability---Application for temporary injunction to restrain defendant from getting encashed the guarantee submitted by plaintiff was dismissed---Grant of ad-interim injunction was refused by Appellate Court while appeal against rejection of application for temporary injunction had not been finally adjudicated upon---Civil revision arising out of ad interim order was 'not maintainable for the order in question did not amount to a 'case decided' attracting the provisions of S.115, C.P.C.---Plaintiff failed to point out any irregularity or illegality in exercise of jurisdiction or violation of statutory provisions or principles of natural justice.

Ishtiaq Khan v. Administrator/Chairman, Town Committee Shahpur, District Sargodha and another 1998 MLD 615 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 rel.

(b) Words and phrases---

----Ad interim' andtemporary'---Distinction and meaning---Word ad interim is distinguishable from word temporary---Ad interim means for the meantime (to make the interim gap) while word temporary means for a certain fixed period.

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

----S. 115---Revisional jurisdiction under section 115, C.P.C. primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction---Discretionary order of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 rel.

Dr. Babar Awan for Petitioner.

Rizwan Niaz for Respondents.

2007 C L C 351

[Lahore]

Before Muhammad Muzammal Khan, J

RAZIA BIBI and 6 others----Petitioners

Versus

PROVINCE OF PUNJAB through Collector, Gujranwala and 3 others----Respondents

Civil Revision No.780 of 2005, decided on 22nd November, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration---Mortgage---Proof of creation---Onus to prove---Plaintiffs sought declaration that suit-land was never mortgaged by their predecessor to any muslim, non-muslim, government or predecessor of defendants---Defendants claimed that land in dispute was allotted to her husband on temporary basis and that land was already under mortgage---Suit-land was muslim owned property title of which was never transferred in favour of non-muslim though no proof of creation of mortgage was available in favour of non-muslim yet if such mortgage was ever granted, only mortgage rights were to vest in Federal Government to form part of compensation pool created under settlement laws---No evidence was available on record that mortgage rights of land in question ever became part of compensation pool or transferred to Ministry of Kashmir Affairs for onward allotment to defendants---Defendants never received any lagan from plaintiffs nor he did approach concerned court for this reason---Since plaintiff had specifically denied that suit-land was ever mortgaged by their predecessor to any muslim, non-muslim, government or husband of defendant, onus to prove creation of mortgage shifted on defendant who failed to discharge the same.

Mian Liaqat Ali for Petitioners.

Ch. Irshad Ullah Chatha for Respondents Nos.3 to 4.

Gohar Siddique on behalf of Ch. Muhammad Sadiq, Addl. A.-G. with Mazhar Iqbal Naib Tehsildar for Respondents.

2007 C L C 354

[Lahore]

Before Muhammad Akhtar Shabbir, J

BASHIR AHMED----Petitioner

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 2 others----Respondents

Writ Petition No.12174 of 2006, decided on 15th November, 2006.

(a) West Pakistan Land Revenue Rules, 1968---

---R. 17---Lambardar, appointment of---Rule of primogeniture, applicability---Such rule being contrary to injunctions of Islam was no more attracted to appointment of successor Lumbardar.

(b) West Pakistan Land Revenue Rules, 1968---

---R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of lambardar---Law provides that while appointing lambardar competent authority will take into consideration all matters referred in R.17 of the West Pakistan Land Revenue Rules, 1968---Executive District Officer (Revenue) in the present case, had observed that respondent was real son of deceased lambardar and was permanent resident of village concerned hence he was suitable candidate for the vacant post--Such finding was affirmed by Member, Board of Revenue---Concurrent findings of higher revenue hierarchy was in favour of respondent who had been working as Sarbrah lambardar during life time of his deceased father---Appointment of lambardar can only be interfered with by the High Court, in constitutional jurisdiction if there had been any jurisdictional error---Since no such error or legal infirmity had been pointed out appointment of respondent could not be set at naught---Selection of lamberdar being exclusive responsibility of Revenue Officer with the Board of Revenue, High Court in its constitutional jurisdiction would not sit as a Court of Appeal against judgments passed by such court or a special tribunal having the exclusive jurisdiction.

Fateh Masih v. Member, Board of Revenue, Punjab, Lahore 1996 SCMR 377; Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P. Peshawar (sic) PLD SC 531; Abdul Karim v. Member, Board of Revenue, Punjab and 2 others 1993 MLD 1628; Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139 and Subedar Muhammad Asghar v. Safia Begum PLD 1976 SC 435 rel.

Saleem Khan Chichi for Petitioner.

2007 C L C 357

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AMEER and another----Petitioners

Versus

Syed SHUJAT ALI TIRMIZI, ADDITIONAL DISTRICT AND SESSIONS JUDGE, KHUSHAB and 4 others----Respondents

Writ Petition No.3842 of 2006, heard on 23rd November, 2006.

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

----O. XIV, R.5---Issues, recasting of---Principles---When parties enter into trial of case with all awareness of controversy between them, framing or non-framing of issue loses importance.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 rel.

(b) Punjab Local Government Elections Rules, 2005---

----Rr. 35 & 71---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of ballot-papers---Recording of evidence---Respondents being unsuccessful, assailed the result of election before Election Tribunal---After recording of evidence, Election Tribunal directed for recount of ballot-papers, resultantly, respondents were declared as returned candidates---Validity---Besides lawful reasons which weighed with Election Tribunal in order of recount of ballot-papers, no doubt Presiding Officer of disputed polling station issued two different results, one was in Form XIII, wherein petitioners were shown to have secured 342 votes and respondents were mentioned to have 513 votes, whereas other result count was brought on file which showed votes of petitioners as 242 and those of respondents as 613---Presiding Officer of the polling station was examined as witness before Tribunal who categorically deposed that latter result for the office of Nazim/Naib Nazim was prepared by him and was under his signatures---Presiding Officer also stated that the later correctly reflected the result of disputed polling station---Such witness, though was cross-examined by petitioners in two lines but they did not confront their own result and opted to produce it at the time of closing their evidence, in the statement of their counsel---Correct conclusions were drawn by Election Tribunal without committing any error of law/facts, as there was sufficient material on record justifying recount of ballot-papers---Since there was sufficient evidence/material on record justifying recount of ballot papers, no case for interference in constitutional jurisdiction was made out---Even otherwise, a lawful decision within the ambit of conferred jurisdiction could not be substituted in constitutional petition---Petition was dismissed in circumstances.

Dr. M. Mohy-ud-Din Qazi for Petitioners.

Muhammad Ramzan Chaudhry for Respondents Nos.2 and 3.

Khawar Ikram Bhatti for Respondents Nos.4 and 5.

Date of hearing: 23rd November, 2006.

2007 C L C 362

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD ABDUL KARIM----Petitioner

Versus

ABDUL AZIZ and 9 others----Respondents

Civil Revision No.D-809 of 1998, heard on 5th October, 2006.

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

----S. 115---Revisional jurisdiction---Scope---Revisional jurisdiction of High Court is restricted and constricted---Such jurisdiction is not co-extensive with the powers of Trial Court and Appellate Court, which has to advert to all legal and factual controversies---Revisional court within the scheme and stance of S.115 C.P.C. has merely to see whether there was failure to exercise jurisdiction vested in Court; jurisdiction exercised which was not so vested and there was material illegality and irregularity.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 25---Specific Relief Act (I of 1877), S.21---Civil Procedure Code (V of 1908), S.115---Agreement of association---Jurisdiction of civil Court---Agreement not enforceable at law---Holder of Provisional Transfer Order of suit property entered into agreement to sell with plaintiff and also appointed attorney to complete the formalities for issuance of Permanent Transfer Deed---Attorney entered into an agreement of association with another person---Permanent Transfer Deed was issued in the name of that another person who further sold the property to defendants---Plaintiff assailed agreement of association before Settlement Authorities but remained unsuccessful---Trial Court, in suit for specific performance of agreement to sell, found that agreement to sell was proved but was not executable---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Acceptance of agreement of association by Settlement Authorities was valid and such transfer could not be interfered by Civil Court, as it had no power to assail the validity of such agreement---Court, when reached the conclusion that it had no jurisdiction, it could not pass any order except to return the plaint or dismiss the suit for want of jurisdiction, as the case might be---Judgment and decree of Lower Appellate Court was devoid of any illegality or legal infirmity---Plaintiff remained embroiled in litigation in Settlement and Civil Court hierarchy for around three decades without any tangible benefit---By twist of circumstances agreement executed in favour of plaintiff had become unenforceable at law---Plaintiff was comprehensively outwitted and elbowed out by execution of agreement of association---Plaintiff had option to sue for recovery of earnest money or damages but he did not deem it expedient to avail such remedy---Revision was dismissed' in circumstances.

Sardar Ali and others v. The State PLD 1967 SC 217; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Zafarul Hassan and others v. Muhammad Kalim and others 1993 SCMR 2028; Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lab. 441; Muhammad Younis and others v. Abdul Ghaffar and others 2004 SCMR 817; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Mst. Mukhtaran Bibi and others v. Ata Muhammad and another 1985 SCMR 1506; Mst. Fazal Bibi and others v. Settlement Commissioner and others PLD 1983 SC 163 and Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829 ref.

Petitioner in Person.

Shahzad Shaukat for Respondents Nos.3, 4 and 9.

Date of hearing: 5th October, 2006.

2007 C L C 368

[Election Tribunal]

Before Justice Syed Sakhi Hussain Bokhari, Election Tribunal

ASIF MANZOOR MOHAL----Petitioner

Versus

MUHAMMAD YAR MAMOONKA and 4 others----Respondents

Election Petition No.56 of 2002, heard on 17th November, 2006.

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

----Ss. 39, 54, 7(4), 70(a), 8(2)(1) & 68---Representation of the People (Conduct of Election) Rules 1977, R.26(2-9)---Election petition---Shifting of polling station to a place which was not duly notified---Non­compliance and violation of statutory provisions of Representation of the People Act, 1976 and Representation of the People (Conduct of Election) Rules, 1977---Effect---Petitioner vide constitutional petition challenged results of Provincial Assembly election, asserting therein that he obtained highest number 'of votes as compared with votes cast in favour of other candidates but Returning Officer in illegal and arbitrary manner with mala fide intention prepared result on the basis of wrong calculation of figures and declared respondent as returned candidate---Petitioner contended that in violation; of election Scheme, polling station was shifted to a place which was not duly notified, therefore, petitioner and voters of the area were not aware about shifting of polling station; that Returning Officer did not issue notice to contesting candidates particularly petitioner or his election agents for consolidation of results of the count of 109 polling stations furnished by Presiding Officers, hence, he violated provisions of S.39 of Representation of the People Act, 1976; that consolidated statement of result of count was prepared with mala fide intention and calculation of total number of votes polled in favour of respondent/returned candidate was incorrect as having been recorded in excess and that Returning Officer failed to open packets of ballot papers which were excluded from count in violation of S.39 of Representation of the People Act, 1976 read with Rule 26(2-9) of Representation of the People (Conduct of Election) Rules, 1977, therefore, election result had been materially affected---Respondent (returned candidate) contended that petitioner had not given full particulars of the case; that Returning Officer consolidated result correctly and Presiding Officer counted votes in accordance with law; that neither polling scheme was changed nor any new polling station was established; that Returning Officer, issued notices to all contesting candidates including petitioner for consolidations of result and that election petition was hit by' misjoinder or non-joinder of parties as Returning Officer and polling staff had not been made party---Validity---Under S.54 of Representation of the People Act, 1976, the contesting candidates were the only parties to election petition and according to law misjoinder or non-joinder of parties was not fatal---Election, as per statement of respondent election had not been conducted at polling station notified by District Returning Officer but at makeshift polling station abruptly established---Shifting so made in the venue of polling station was thus in utter violation and disregard of polling scheme as notified by District Returning Officer, therefore, it was not at all open to Returning Officer or election staff subordinate to him to shift polling station to any other place and this was quite clearly illegal and there could be no question of condoning the said illegality---Returning Officer was obliged to examine rejected ballot papers at the time of consolidating the result of the count---Returning Officer stated in examination-in-chief that he had not examined rejected votes at the time of consolidating result of count---Had illegality so committed not materially affected the result of election, it could have been easily ignored---Position in the present case was, however, totally different as total number of rejected votes stood at 1916, whereas, respondent was declared to be returned candidate by a margin of 1237 votes, therefore, it was a clear-cut case where result of election had been materially affected on account of illegality in process of election on the part of Returning Officer---Election Tribunal though could not render any decision against respondent in accordance with provisions contained in S.68 of Representation of the People Act, 1976; yet it was not possible to uphold election in view of mandate of S.70(a) of the Representation of the People Act, 1976, according to which Tribunal had not been left with any alternative except to declare election as a whole to be void, if it was satisfied that result of election had been materially affected---Petitioner had given details of corruption and illegal practice in his petition as well as evidence---Non-compliance and violation of statutory provisions of Representation of the People Act, 1976 and Representation of the People (Conduct of Election) Rules, 1977 had rendered the election as a whole to be void---Election in the concerned constituency was declared as a whole void---Election petition was accepted.

Dr. Muhammad Mohy-ud-Din.

Qazi for Petitioner.

Jahangir Akhtar Jhojha for Respondents.

Date of hearing: 17th November, 2006.

2007 C L C 374

[Lahore]

Before Sh. Azmat Saeed, J

AMER BAKHT AZAM through Attorney and 4 others----Petitioners

Versus

COOPERATIVE MODEL TOWN SOCIETY (1962) LTD. LAHORE and 4 others----Respondents

Writ Petition No.4006 of 2006, decided on 1st December, 2006.

(a) Co-operative Societies Act (VII of 1925)---

----S. 70-A---Punjab Local Government Ordinance (XIII of 2001), Ss.54-A & 1(2)---Punjab Disposal of Land by Development Authorities (Regulation) Act (XII of 1998), Preamble---Cantonments Act (II of 1924), Preamble---Cantonments Ordinance (CXXXVII of 2002), Preamble---Pakistan Environmental Protection Act (XXXIV of 1997), Ss.12, 2(xxv) & Preamble---Constitution of Pakistan (1973), Arts.199 & 19---Constitutional petition---Leasing out of land owned by Cooperative Housing Society for commercial purpose---Conversion of public amenity plot into commercial area---Plea of foreign investment by the society---Permission required from Town Municipal Administration--Environmental impact assessment to be obtained from concerned government agency---Proposed project to be undertaken after society amended its master plan in accordance with by-laws of the society---Held, foreign investment was, no doubt, to be encouraged but foreign investors were not above law and were to conform to laws of the land and were also to exhibit sensitivity to the rights and privileges of inhabitants of area---Distinction existed between growth and development and two concepts were not synonymous and all growth was to be measured against collateral damage accrued thereby and growth for the sake of growth was ideology of a cancer cell---Conversion of land of society for any other use required an amendment in master plan which admittedly had not been effected by society or its members---Decision allegedly arrived at in Special General Meeting dealt only with question of transfer of rights in property and not with change in master plan---Respondents had not placed any material on record to establish that in fact master plan of society had been changed or amended in accordance with law--No by-law of society had been pointed out which permitted or even envisaged conversion of public amenity plot (public garden) into a commercial area---No commercialisation policy permitting such conversion had been brought forward in this behalf---In other schemes which surrounded respondent society in all directions and were prepared and executed by the Development Authority or the Provincial Government, conversion of a public amenity plot for any other purpose was not only prohibited but was also a criminal offence under Disposal of Land by Development Authorities (Regulation) Act, 1998---Even prior to enforcement of Disposal of Land by Development Authorities (Regulation) Act, 1998, public parks and open spaces and other amenity plots could not be converted to be used for any other purpose and any action of an Authority or Government in this regard was to be illegal---Land in question was in control of the society which was under an obligation to plant, grow and maintain fruit garden at the site and it could not now turn around and take advantage of its own omission and failures---Master plan could not be amended through neglect---Punjab Local Government Ordinance of 2001, in view of its S.1(2) applied to whole of Province of Punjab other than areas notified as cantonments under Cantonments Act, 1924 or Cantonments Ordinance, 2002---Respondent society did not form part of Cantonment and was situated in Province of Punjab, hence, Punjab Local Government Ordinance, 2001 obviously applied to said area including land where proposed project was to be constructed---Section 54-A(d) Punjab Local Government Ordinance, 2001, made it clear that Town Municipal Administration concerned exercised power and control over land use and land development and Zoning by private and public sectors for any purpose including commerce, markets etc.---Proposed project envisaged dramatic and drastic change in land use which could only legally be possible after requisite sanction had been obtained from concerned Town Municipal Administration---Proposed enterprise prima facie appeared to be a "project" as defined by S.2(xxv) of Pakistan Environmental Protection Act, 1997 and no construction could commence until an initial environmental examination had been made and environmental impact assessment had been obtained from concerned government agency in term of S.12 of the said Act---Before proposed project could be undertaken the master plan of society required to be amended by society itself in accordance with its by-laws and Co-operative Societies Act, 1925 and rules framed thereunder and thereafter requisite permission and sanction required to be obtained from concerned Town Municipal Administration regarding change in the land use---Both sanctions were obviously justiciable separately under Co-operative Societies Act, 1925 and Punjab Local Government Ordinance, 2001 and also perhaps before courts including the High Court---Environmental impact assessment was to be obtained from concerned Government Agency specified under Pakistan Environmental Protection Act, 1997 which action too was justiciable---Contention of respondents that present constitutional petition was pre-mature was not without foundation---Master plan if and when amended and approval and sanction for change of land use was granted by concerned Town Municipal Administration, petitioners could always challenge the said decision at which point of time all objections of petitioners could be adjudicated upon in the fora vested with jurisdiction under the law to decide such matters---Petition decided accordingly.?

Ahmad Javed Shah v. Lahore Development authority 1996 CLC 748; Masih Ullah Khan and 3 others v. Lahore Development Authority through Director-General and 4 others 1994 MLD 603; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589 rel.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Nasim, U.C. Allah Bachayo Shore v. The Stale 2004 YLR 2077; Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another PLD 1996 Kar. 1; Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCMR 506; New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority, Karachi and 4 others 1999 SCMR 2883 ref.

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

----S. 70-A---Punjab Local Government Ordinance (XIII of 2001), S.54-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conversion of public amenity plot of residential society into commercial area---Power and control of Town Municipal Administration over land use and land development by public and private sectors---Scope and extent---Petitioners-residents of respondent-residential society challenged advertisement issued by President of' the respondent society whereby he invited expression of interest for a joint venture or on lease basis for establishment of an outlet for marketing of food and non-food items on prime commercial land of respondent society---Petitioner challenged the advertisement and decision taken by Special General Meeting of society as to proposed project---City District Government entered appearance on court's call and contended that the constitutional petition was pre-mature as no construction in furtherance of implementation of proposed project was legally possible without sanctions and approvals from Authorities under Punjab Local Government Ordinance, 2001; that proposed project envisaged a change in land use for which permission was to be obtained from Town Municipal Administration concerned in terms of S.54-A of Punjab Local Government Ordinance, 2001 and that as neither of the two events had yet taken place, therefore, constitutional petition was pre-mature---Respondent/President of the society contended that sanctions and permissions are required from Town Municipal Administration concerned but S.54-A of Punjab Local Government Ordinance, 2001, applied only to cases where land use had been determined by Town Municipal Administration and not by private co-operative society as the respondent-society was---Validity---Section 54-A of Punjab Local Government Ordinance, 2001, made it clear that Town Municipal Administration concerned exercised power and control over land use and land development and zoning by private and public sectors for any purpose including commerce, markets etc.---Proposed project envisaged a dramatic and drastic change in land use which could only legally be possible after requisite sanction had been obtained from concerned Town Municipal Administration. ?

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

----S. 1(2)---Cantonments Act (II of 1924), Preamble---Cantonments Ordinance (CXXXVII of 2002), Preamble---Section 1(2) of Punjab Local Government Ordinance, 2001---Scope and applicability---Punjab Local Government Ordinance, 2001, in view of its S.1(2) which is applicable to whole of' Province of Punjab other than areas notified as Cantonments under Cantonments Act, 1924 or Cantonments Ordinance, 2002 respondent housing society did not form part of Cantonment and was situated in Province of Punjab, hence, Punjab Local Government Ordinance, 2001 obviously applied to area of the society including land where proposed project was to be constructed.?

Abid Hassan Minto and Aftab Gull for Petitioners.

Dr. Khalid Ranjha, Iftikhar Ahmad Mian, Munir Ahmad Bhatti, Shahid Azeem, Waseem Sajjad, Ali Hassan Sajjad, Kh. M. Afzal and Malik Zafar Iqbal Awan, Addl. A.-G. for Respondents.

Date of hearing: 14th November, 2006.

2007 C L C 386

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. SAKINA BIBI KAUSAR----Applicant

Versus

Mst. ROBINA KAUSAR and 3 others----Respondents

Civil Revision No.109/D of 2002, decided on 28th June, 2006.

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

----O. X, R.2 & O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Better statement, recording of---Proper procedure---Plaintiff had challenged mutation of gift in respect of land of her father made in favour of defendant and had alleged that her father being an aged person, was permanent patient and was unable to walk around and even to speak, and for a long period was suffering from serious ailment and due to that mutation of gift in favour of defendant, was result of fraud and misrepresentation and that by so doing she had been deprived of property of her father---Father of plaintiff appeared before the court and recorded his better statement, wherein he had stated that he with his own consent had gifted away his landed property in favour of his daughter/defendant in lieu of her services rendered to him and on such statement of father of both plaintiff and defendant, suit, was concurrently dismissed by the Trial Court and Appellate Court below---Trial Court on said better statement had framed issue, but plaintiff was not provided an opportunity to establish her case with regard to ailment and disability of her father---Better statement under O.X, R.2, C.P.C. was not an evidence as it was not recorded in presence of plaintiff---Plaintiff was also not afforded an opportunity to cross-examine her father who gave better statement---Trial Court had deviated from normal and proper procedure prescribed in the Code of Civil Procedure and dismissed suit without taking into consideration provisions of O.VII, R.11, C.P.C., which had provided that where the plaint did not disclose cause of action, plaint was liable to be rejected and not dismissed---Impugned judgment and decree passed by both the courts below were set aside---Case was remanded to the Trial Court to decide same afresh, accordingly.

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

----O. X, R.2---Better statement recording of---Object---Procedure---Better statement under O.X, R.2, C.P.C. was recorded for the purpose of ascertaining the real matter in controversy; and if such material was not evidence per se, that was not to be used a means of trial; and the Court was not to hold mini trial, within a full-fledged trial---Court could examine the parties if the pleadings of the parties were warranting any clarity and for the purpose of getting the case of the parties properly on record or felt necessity to frame proper and legal issues if pleadings of the parties were ambiguous and evasive, etc.---Better statement under O.X, R.2, C.P.C. could be taken into consideration, but it could not fake the place of statement made on oath and it could not be given the status of an admission which could be conclusive---Power conferred by O.X, R.2, C.P,C. was intended to be used by the Court only when it would find it necessary' to obtain from a party information on any material question relating to the suit and ought not to be employed so as to supersede in Code of Civil Procedure.

Sher Singh and others v. Pirthi Singh and others AIR 1975 All. 259 ref.

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

----Arts. 132, .133 & 134---Evidence---Examination and cross-­examination---Statement of a party, unless substantiated by evidence of a party in witness box, could not be treated as evidence against opposite, party who had no opportunity to cross-examine, his opponent who made the statement---Party to a suit must give evidence as' a witnesses in respect of matters which were directly within his knowledge.

Manmohan Das and others v. Mt. Ramdei and another AIR 1931 PC 175 and Dogar Mal Amir Chand v. Pleader AIR 1930 Lah. 947 ref.

Javed Ahmed Bhatti for Petitioner.

Sardar Asmatullah Khan for Respondents.

Date of hearing: 28th June, 2006.

2007 C L C 390

[Lahore]

Before Muhammad Sayeed Akhtar, J

SALEEM IBRAHIM----Petitioner

Versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE, PUNJAB and others----Respondents

Writ Petition No.2533 of 2003, heard on 12th December, 2006.

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

----Ss. 135 & 147---Application for partition of joint property and application for affirmation of private partition---Contemporaneous pendency of both such applications---Powers of Revenue Officer---Scope---Private division would sever joint title and convert joint property into severalty---If Revenue Officer determined that there was a private partition between parties, then he would be required to affirm same and dismiss application under S.135, West Pakistan Land Revenue Act 1967---If Revenue Officer determined that no private partition was effected, then he would proceed on application under S.135 of West Pakistan Land Revenue Act, 1967, and in such case, question of proceeding under S.147 thereof would not arise---Principles.

Jamala v. Muhammada and others AIR 1938 Lah. 202 and Malik Muhammad Hassan and another v. Malik Karim Bakhsh and others 1939 (18) LLT 10 ref.

(b) Partition---

----Private division would sever joint title and convert joint property into severalty.

Ch. Muhammad Hussain Jahanian for petitioner.

Rana A.D. Kamran for Respondent No.8.

Ch. Saghir Ahmad for Respondents Nos.9 and 13.

Sh. Rafiq Ahmad Goreja for Respondent No.10.

Syed M. Arif Iqbal, D.D.O.(R), Chichawatni and Abdul Hamid Patwari Halqa.

Date of hearing: 12th December, 2006.

2007 C L C 414

[Lahore]

Before Abdul Shakoor Paracha and Sardar Muhammad Aslam, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED, ISLAMABAD and another----Appellants

Versus

RIZWAN AHMED BHATTI and 2 others----Respondents

Intra-Court Appeal No.123 of 2006, decided on 27th November, 2006.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan (1973), Art.199---Intra-court appeal---Maintainability---Ad interim injunction was passed by Single Judge in exercise of constitutional jurisdiction---Authorities assailed such in intra-court appeal---Validity---Order having not been passed by single Judge in exercise of its original civil jurisdiction under any statute or law but in exercise of jurisdiction under Art.199 of the Constitution, therefore, no appeal lay under S.3(1) & (2) of Law Reforms Ordinance, 1972, from the order being interlocutory and such order did not dispose of the entire case before the Court, because the case had already been fixed for hearing---Intra-court appeal was dismissed in limine.

Brother Steel Mills Limited and others v. Mian Ilyas Siraj and 14 others PLD 1996 SC 543 distinguished

Sunrize Textiles Limited and others v. Mashreq Bank PSC PLD 1996 Lah. l; Muhammad Ismail v. Secretary to Government of N.-W.P.P. Settlement/Rehabilitation Department, Peshawar and 7 others PLD 1988 Pesh. 19 and Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 rel.

S. Naeem Bukhari for Appellant.

2007 C L C 422

[Lahore]

Before Iqbal Hameedur Rahman, J

Mst. FARHANA JABEEN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.1857 of 2005, decided on 11th January, 2007.

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

----S. 5 & Sched.---Dissolution of marriage on ground of Khula---Right to recover dower---Where parties did not mutually agree for separation by way of `Khula', the Court could allow same in consideration of the lady giving up her right to recover dower which was unpaid and restoration of other benefits.

1991 MLD 1732 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---When petitioner had failed to show any illegality or irregularity in both judgments of the courts below, no justification existed for exercising constitutional jurisdiction by High Court.

Muhammad Ramzan Khalid Joyia for Petitioner.

Rana Khalid Mahmood for Respondents.

Date of hearing: 11th January, 2007.

2007 C L C 454

[Lahore]

Before Muhammad Sayeed Akhtar, J

AHMAD BAKHSH----Petitioner

Versus

GHULAM HUSSAIN and others----Respondents

Writ Petition No.1563 of 1988, heard on 29th November, 2006.

(a) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S. 3---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.14---Limitation Act (IX of 1908), S.19 & Art.148---Constitution of Pakistan (1973), Art.199---Constitutional petition---Redemption of mortgaged evacuee property---Limitation---Application for redemption made on 30-1-1960---Property mortgaged with evacuee owner on 22-11-1895---Renewal of mortgage on 20-12-1935 through oral mutation---Redemption of land by Assistant Rehabilitation Commissioner/Collector vide order, dated 29-5-1963---Recalling of redemption order by same officer vide order, dated 28-7-1964 on the ground that acknowledgment of renewal of mortgage was not in writing and signed by the mortgagee---Appeal against recalling order dismissed by Commissioner as time-barred---Validity---ARC/Collector had no jurisdiction to review his order, dated 29-5-1963---Order dated 28-7-1964 was void and nullity in eye of law, against which no limitation would run---Commissioner had erred in law while dismissing appeal as time-barred---Entry in Revenue Record would constitute valid acknowledgment in writing under S.19 of Limitation Act, 1908---Fresh period of limitation had accrued to petitioner from date of attestation of oral mutation---Entry in Jamabandi for year 1955-56 showed petitioner as mortgagor and Central Government as mortgagee---Period of 60 years had not elapsed, if counted from date of original mortgage dated 22-11-1895---Chief Settlement and Rehabilitation Commissioner, West Pakistan in Office Memo. No.1393-59/4144-R(P), dated 5-11-1958, and Press Note No.5494-66/5802, dated 31-3-1967 had informed local mortgagors to get their properties redeemed within one month---Such application was, thus, well within time on all scores---High Court accepted constitutional petition and declared impugned order to be without lawful authority and of no legal effect.

Samar Gul v. Central Government and others PLD 1986 SC 35; Ghulam Muhammad and 3 others v. Member Board of Revenue, Punjab, Lahore and 16 others PLD 2005 Lah. 119 and Allah Ditta and others v. Sardar Khan and others PLD 1997 Lah. 716 ref.

Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 SCMR 856; Samar Gut v. Central Government and others PLD 1986 SC 35; Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah. 71 and Muhammad Hussain and 2 others v. Custodian, Evacuee Property (J&K) and 13 others 1980 CLC 593 rel.

Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062; Karim Bakhsh and 4 others v. Riaz Hussain and another 1993 SCMR 1667; Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605; Qurban Ali and another v. Commissioner and another 2006 SCMR 1073; Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524; Muhammad Hanif through legal Heirs and 2 others v. Zulfiqar Ali and 56 others 1996 SCMR 1869 and Mir Zaman v. Mst. Sheda and 58 others 2000 SCMR 1699 distinguished.

(b) Review---

----Scope---Review is a substantive right and not a matter of procedure---Power of review emanates from a statute and would not be available unless conferred by law.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 rel.

(c) Limitation---

----No limitation would run against a void order.

Syed Muhammad Alam v. Syed Mehdi Hussain and 2 others PLD 1970 Lah. 6; Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 SCMR 856; Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division and 2 others PLD 1990 SC 692 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 rel.

(d) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3 & 10---Limitation Act (IX of 1908), S.19---Redemption/ Restitution of mortgaged land---Renewal of mortgage through oral mutation---Validity---Entry in Revenue Record would constitute valid acknowledgement in writing under S.19 of Limitation Act, 1908, resultantly fresh period of limitation would accrue to applicant.

Samar Gui v. Central Government and others PLD 1986 SC 35 rel.

Abdul Rashid Sheikh for Petitioner.

Mirza Manzoor Ahmed for Respondents Nos.1 to 4.

Syed Mohtasham-ul-Haq for Respondent No.5.

Date of hearing: 29th November, 2006.

2007 C L C 492

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HANIF----Petitioner

Versus

FARID AHMAD and 2 others----Respondents

Civil Revision No.1790 of 1999, heard on 6th December, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.11 & S.2---Order rejecting plaint to be treated as a decree---Plaintiff claimed declaration as owner in possession of the property in question and prayed for injunction to restrain defendants from interfering with his possession---Trial Court in order to determine the factual position appointed Local Commissioner who submitted report wherein plea of plaintiff was found correct but Trial Court did not care to read the report and proceeded to reject the plaint---Appeal was dismissed on a technical ground that in the memo of appeal it had not been written that appeal was being filed against the decree as well---Validity---Held, as per definition of decree given in section 2, C.P.C. an order rejecting a plaint is treated as a decree---Orders passed by Courts below, being wholly without jurisdiction case, therefore, was remanded by the High Court to Trial Court for decision in accordance with law.

Masood A. Malik for Petitioner.

Ch. Nawab Ali Meo for Respondents.

Date of hearing: 6th December, 2006.

2007 C L C 497

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD BASHIR and 4 others----Petitioners

Versus

WALIATI and 2 others----Respondents

Civil Revision No.1871/D of 1992, heard on 27th November, 2006.

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

----S. 119---Specific Relief Act (I of 1877), S.8---Suit for possession---Mutual exchange of 100 Kanals of land each by plaintiffs and defendants---Parties took possession of exchanged land and mutations were entered---Subsequently plaintiffs alleged that 10 Kanals of exchanged land was found less during consolidation process so they filed suit for possession claiming land of their own choice---Validity---No evidence was on record that exchanged land was less in area---Defendant's objection with regard to competency of suit found favour with the Court in review because section 119 of Transfer of Property Act, 1882 takes effect subject to agreement to the contrary---Perusal of record revealed that there was no contrary intention appearing from terms of transaction---In absence of an agreement to the contrary assuming that there was a shortfall depriving plaintiffs of a part of property received by them in exchange the plaintiffs could have claimed compensation or at their option restoration of their entire land to them i.e. rescission of the agreement of exchange but they were not entitled to claim possession of land of their own choice---Such claim was not warranted under any provision of law.

Haji Muhammad Shah v. Sher Khan and others PLD 1984 SC 294 distinguished.

Malik Noor Muhammad Awan for Petitioners.

Nemo for Respondents.

Date of hearing: 27th November, 2006.

2007 C L C 505

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD BASHIR----Petitioner

Versus

ZUBAIDA BEGUM and another----Respondents

Writ Petition No.18509 of 2005, decided on 7th December, 2006.

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

----S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Pre-trial conciliation proceedings after filing of written statement---Recording of plaintiff's statement at such stage on a date of which defendant had no notice---Family Court decreed suit by invoking provisions of S.10(4) of Family Courts Act, 1964---Validity---Family Court, in case of' failure of reconciliation between parties, was obliged to frame issues and record evidence, but being oblivious of such procedure, plaintiff's statement was recorded in absence of the defendant---No pre-trial hearing had been done and no effort for reconciliation had been made---Parties had married three decades ago, which had been dissolved without following the law---Family Court had awarded decree in an illegal exercise and unwarranted haste at the back of defendant---High Court accepted constitutional petition, declared impugned decree to be void and non-existent in eye of law, resultantly suit would be deemed pending before Family Court for its fresh decision in accordance with law.

Malik Abdul Wahid for Petitioner.

Mehr Atta-ur-Rehman for Respondent No.1.

2007 C L C 511

[Lahore]

Before Maulvi Anwarul Haq, J

PREMIER INSURANCE COMPANY PAKISTAN LTD. through Chairman and another----Petitioners

Versus

ANIS A. SHEIKH----Respondent

Civil Revision No.1564 of 2004, heard on 5th December, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.11(c)---Rejection of plaint---Conditions---Defendant, in the present case, moved application for rejection of plaint for deficiency in court-fee---Reply was filed and requisite court-fee was paid on the date when arguments were heard and the application of defendant was dismissed---Defendant, alleging contumacy on the part of plaintiff, demanded rejection of plaint and contended that by the time court-fee was affixed on the plaint limitation for filing of the suit had expired---Defendant's contention did not find favour with the court because record showed that court did not bother to perform the duties enjoined upon it under O.VII, R.11(c), C.P.C. and no order was passed directing the plaintiff to pay the court-fee---Held, in order to entail rejection of plaint under Order VII, Rule 11(c), C.P.C., two conditions must be satisfied, firstly, the court should have positively and specifically determined the amount of deficit court-fee which the plaintiff was required to pay/affix on the plaint and secondly, a reasonable time must be allowed to plaintiff to make up the deficiency in the amount of court-fee'---None of said two conditions having been complied with, plaint could not be rejected.

Mst. Walayat Khatoon v. Khalil Khan and others PLD 1979 SC 821 distinguished.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan PLD 1994 SC 688 ref.

Syed Riaz-ul-Hassan Gillani for Petitioner.

Syed Asad Haider for Respondent.

Date of hearing: 5th December, 2006.

2007 C L C 516

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ARIF HUSSAIN BUKHARI----Petitioner

Versus

CHIEF ELECTION COMMISSIONER through Election Commission of Pakistan and 5 others----Respondents

Writ Petition No.11698 of 2006, decided on 13th December, 2006.

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

----S. 85---Constitution of Pakistan (1973), Art.199---Constitutional petition---Second motion of recall before expiry of one year from withdrawal of first motion---Maintainability---Principles.

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

----S. 85---Qanun-e-Shahadat (10 of 1984), Art.90---Constitution of Pakistan (1973), Arts.150 & 199--Constitutional petition---Motion of recall against Nazim---Conduct of proceedings during period of Nazim was on leave---Validity---Record showed that Nazim was duly informed by Secretary and Naib Qasid of Union Council---Nazim had refused to receive agenda of meeting and declined to participate in meeting---Nazim was in knowledge of institution of motion of recall against him---Nazim had not been deprived of right to defend himself before session of Union Council---Presumption of genuineness was attached to official documents---Full faith and credit would be given to public acts and record under Art.150 of the Constitution---Constitutional petition filed by Nazim was dismissed in circumstances.

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

----S. 85---Motion of recall---Two sessions of Union Council would be called for such purpose, one for deliberation and other for secret balloting---Nazim would have right to address session of Union Council called for deliberation and not for secret balloting---Punjab Local Government Ordinance, 2001 was silent as to when or after how many days session of Union Council would be called for voting through secret ballot after holding of meeting for deliberation provided under S.85(3) thereof.

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

----Art. 199---Constitutional petition---Facts disputed by both parties or either of them---Effect---High Court under constitutional jurisdiction could not enter into further inquiry or gather further facts, which were disputed by both parties or either of them.

Azam Nazir Tarrar for Petitioner.

Dr. Muhammad Mohy-ud-Din Qazi for Respondent.

Muhammad Yousaf, Secretary UC No.273 City Faisalabad with Muhammad Yasin Naib Qasid.

2007 C L C 532

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD SHAUKAT and others----Petitioners

Versus

Haji GHULAM MUHAMMAD and Others--Respondents

Civil Revision No.147 of 2004, decided on 19th December, 2006.

Court Fees Act (VII of 1870)---

----Sched-I, Art.1, Sched-II, Art.17(vi)---Civil Procedure Code (V of 1908), S.115---Partition suit---Appeal decided in terms of award of arbitrators---Calculation and payment of court-fee on memorandum of appeal---Plaintiff filed suit for partition of property against his brother fixing value for purposes of court-fee and jurisdiction at Rs.24,000 and no court-fee was paid by plaintiff being exempted from payment of court-fee---During pendency of suit an agreement was arrived at between the parties for appointment of arbitrators for decision of the case through intervention of the court---Award delivered by arbitrators was made rule of the court and same was made part of decree of the court---Said decree was assailed by plaintiff by filing appeal before Appellate Court, maintainability of which was challenged on the ground that said appeal was filed without affixing proper court-fee---Objection petition was dismissed by the Appellate Court---Contention of defendant was that decree which was passed upon the award, having fixed value of share of property of plaintiff to the tune of Rs.6,00,000 and that amount was to be paid to him, appeal filed by plaintiff should have counted valuation of the court-fee at Rs.6,00,000 and ad valorem court-Pee was to be paid by him on appeal---Contention of the plaintiff was that in law court-Pee of Rs. 10 only was to be affixed on the partition suit and that was the proper court-fee to be affixed upon the memorandum of appeal as well because appeal was a continuation of proceedings of the suit---Validity---When suit for partition was filed, same could not be valued for the purposes of court-fee for more than Rs.10, which was fixed according to Art.17(vi) Sched.II of the Court Fees Act, 1870 as at that stage share of plaintiff in the property was not separated and valued, but subsequently when share of' plaintiff was specified and its value was fixed, then it would retch ad valorem court-fee according to valued share of plaintiff---Share of plaintiff in the property having been valued Rs.6,00,000, it was duty of plaintiff to value his appeal at Rs.6,00,000 and to fix court-fee ad valorem according to Art.1, Sched.I of Court Fees Act, 1870---Order of Appellate Court was set aside by the High Court and plaintiff was directed to value memorandum of appeal in accordance with value to the extent of his share of property which was Rs.6,00,000 and to pay ad valorem court-fee in accordance with that value.

Province of Balochistan v. Sardar Muhammad Usman Khan PLD 1987 Quetta 33; Gauri Shankar v. Anat Ram AIR 1926 Lah. 403; Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD 1962 (W.P.) Quetta 28 and AIR 1924 Lah. 325 rel.

Mian Ahmad Nadeem Arshad for Petitioners.

Syed Muhammad Akhtar Shah for Respondents.

2007 C L C 553

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KARAMTE BIBI----Petitioner

Versus

ASGHAR ALI and 3 others----Respondents

Civil Revision No.2024 and Writ Petition No.12966 of 2005, heard on 7th December, 2006.

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

----O. IX, R. 10---Non-appearance of one of the two plaintiffs---Suit was dismissed for non-prosecution to the extent of plaintiff who was absent---Validity---Order IX, R.10, C.P.C. provides that where there were more plaintiffs than one and one or more of them do not appear, court had discretion to proceed at the instance of plaintiff present in court---Record showed that plaintiff, in the present case, who was present in court along with her counsel insisted that suit should be proceeded in terms of O.IX, R.10, C.P.C. but Trial Court, without jurisdiction, dismissed the suit for non-prosecution---Order dismissing the suit for non-prosecution to the extent of said plaintiff was set aside by the High Court with observation that remaining evidence will be recorded after giving an opportunity to the plaintiffs to summon and produce the witnesses mentioned in the list if not recorded, which will be subject to payment of costs to the contesting defendants.

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

----O. XVII, R. 3---Non-production of evidence by plaintiffs---Evidence was closed, suit was dismissed---Appellate Court directed plaintiffs to appear before Trial Court along with entire evidence on the date fixed by former otherwise Trial Court would be justified in closing evidence---One of the two plaintiffs did not appear on the date specified by Appellate Court---Suit to the extent of absent plaintiff was dismissed for non-prosecution as well as for non-production of evidence meanwhile Court time was over and both parties agreed to adjournment---Plaintiffs, on the adjourned date, moved application for filing list of witnesses which was dismissed on ground that matter was governed by directions of Appellate Court---Validity---Directions of Appellate Court pertained to the date fixed by it but on the fixed date case stood adjourned and it was on the adjourned date that evidence was recorded---Such being so when plaintiffs had made out a good cause for non-filing of list of witnesses, Courts below had acted without jurisdiction iii refusing their prayer.

Qazi Muhammad Arshad Bhatti for Petitioner.

Nemo for Respondents.

Date of hearing: 7th December, 2006.

2007 C L C 559

[Lahore]

Before Muhammad Muzammal Khan, J

Syed TAYYAB HUSSAIN RIZVI and another----Petitioners

Versus

RETURNING OFFICER and 2 others----Respondents

Writ Petition No.391 of 2006, heard on 11th December, 2006.

(a) Punjab Local Government Elections Rules, 2005---

----Rr. 65, 66, 71 & 73---Civil Procedure Code (V of 1908), O.I, R.10 & O.VI, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impleading of left out contesting candidates, in election petition, prayer for---Powers of Election Tribunal---Scope---Election Tribunal would act as a Civil Court equipped with all powers available while trying a suit under C.P.C.---Election Tribunal had jurisdiction to allow impleadment of any of left out contesting candidates---Election Tribunal had jurisdiction to allow amendments necessary for ensuring fair/effective trial of election petition and for determination of real questions in controversy---Non-providing of penalty for non-compliance of R.66 of Punjab Local Government Elections Rules, 2005 would make such rule directory in nature---Left out contesting candidates, if not participated in elections, then their presence before Election Tribunal might not be necessary, but they being proper parties could be impleaded in array of respondents in election petition---Principles.

(b) Punjab Local Government Elections Rules, 2005---

---R.66---Rule 66 of Punjab Local Government Elections Rules, 2005 was directory in nature as no penalty was provided for its non-compliance.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Riaz Hussain Khan for Respondents.

Date of hearing: 11th December, 2006.

2007 C L C 572

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM AHMAD----Petitioner

Versus

TARIQ HUSSAIN and others----Respondents

Civil Revision No.1808 of 2000, decided on 3rd November, 2006.

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

----S. 42---Civil Procedure Code (V of 1908), S.11-Suit for declaration---Judgment of Supreme Court in earlier litigation inter parties on same subject-matter---Effect---Such judgment of Supreme Court could not be deviated in any circumstance---Trial Court could not reopen such matter---Act of Trial Court to entertain such suit would be coram non judice---Such suit would not be maintainable at law and evidence produced therein would be of no legal validity---Principles.

(b) Suit---

----Suit itself not maintainable at law---Evidence produced in an incompetent suit would be of no legal validity.

Ch. Pervaiz Iqbal Gondal for Petitioner.

Ch. Muhammad Nasrullah Warriach for Respondents Nos.1 to 4.

2007 C L C 579

[Lahore]

Before Mian Hamid Farooq, J

Mian ASHRAF HUSSAIN----Appellant

Versus

ASAD BASHIR BAJWA and 3 others----Respondents

S.A.O. No.60 of 2005, heard on 11th October, 2006.

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

----S. 13(6)---Words "before fifteenth day of each month"---Import---Law provides that Rent Controller before framing issues is empowered to pass order directing a tenant to deposit all the rent due from him and also to deposit monthly rent regularly till final decision of case before 15th day of each month---'Rent of each month' becomes due on 30th day of that month, thus, tenant is required under the law to deposit future monthly rent before '15th day of succeeding month'---Courts below, in the present case, proceeded on erroneous assumption of law that future monthly rent was to be deposited on '15th day of the same month' and non-suited tenants on ground that rent for the months of July and September, 2001, May, January and October, 2002 was deposited after '15th day of each month'---Impugned order was illegal and without jurisdiction, hence subsequent orders based on said order were held of no legal significance.

Muhammad Yusuf v. Muhammad Saghiruddin Qureshi 1987 CLC 76; Abdul Haq and another v. Syed Basharat Ali 1985 CLC 1429; Khawaja Asimuddin v. Iftikhar Banoo 1985 CLC 707; Mian Rehmat Ali v. Khadeja Hakim PLD 1967 Lah. 29; Syed Shin Gul v. Haji Abdul Majid PLD 1.968 Quetta 45; Nisar Ahmed and another v. Sharafullah PLD 1996 Kar. 136; State Life Insurance Corporation of Pakistan Karachi v. Messrs Siddique Tailors through Sole Proprietor, Karachi PLD 1993 Kar. 642 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 ref.

(b) Counsel and client---

----Even in eases where papers have been taken away by client, it is the duty of Advocate to appear on date of hearing till such time he withdraws his power or it is cancelled according to rules by the client.

?

Ex-Hay. Mirza Mushtaq Baig v. General Court Martial 1994 SCMR 1948 ref.

Jehangir A. Jhoja for Appellant. Sohail Shakoor for Respondent.

Date of hearing: 11th October, 2006.

2007 C L C 583

[Lahore]

Before Sh. Hakim Ali, J

PERVAIZ IQBAL----Petitioner

Versus

TEHSIL NAZIM and others----Respondents

Writ Petition No.3017 of 2006/BWP, decided on 19th December, 2006.

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

----S. 190---Punjab Local Government (Appeal) Rules, 2002---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate statutory remedy not availed by petitioner---Effect---Order of Municipal Authority for plying of buses from specific Bay by the petitioner---Petitioner had complained against discriminatory act on the part of Municipal Administration---Questions of alleged discrimination could be raised and could be taken note of by the Appellate Authority---No exceptional circumstances were shown in the case for which High Court must come to the rescue of petitioner and in the given circumstances must exercise its jurisdiction to declare the impugned order of Municipal Administration as illegal and unlawful ---Whether plying of all buses must be allowed from Bay No.11 or by Bay No.4, was a question falling in the domain of factual inquiry which should be got decided by petitioner from the Appellate Authority---Section 190 of the Punjab Local Government Ordinance, 2001, read with Punjab Local Government (Appeal) Rules, 2002, provided that petitioner had alternate, ' adequate and efficacious remedy before Appellate Authority of Municipal Administration and it not the sweet-will and discretion of the party to bypass the statutory remedies provided by law---If such practice was allowed and discretion was conferred upon a party as not to avail of statutory remedy and to file directly the constitutional petition in the High Court, provisions of alternate remedy prescribed by a statute would become a mere paper remedy finding its place only into statute books having no use in general practice and would also create choas and distrust upon the Authorities/Tribunals/Courts provided by law for availing of statutory remedies---Provision of statute would become a useless and unfruitful remedy while enhancing and increasing the work load of High Court---Party, before coming to High Court, by bypassing the statutory remedy, had to satisfy the court from the given circumstances that statutory remedy was not adequate, efficacious, speedy, proper and effective one---Such reasons were to be laid before the court due to which availing of that remedy was not necessary and approach of High Court was essential on the basis of such and such exceptional circumstances---Each and every case could not be allowed to be entertained as a matter of routine---Case being not of exceptional nature to be entertained, petitioner was directed to avail remedy of appeal before Appellate Authority concerned.

?

Raja Muhammad Ramzan and 21 others v. Union Council, Bajnial and another 1994 SCMR 1484; laved Iqbal Butt v. Tehsil Nazim/Tehsil Council, Daska and 2 others 2003 CLC 1030; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; The Fecto Cement Limited v. The Collector of Customs Appraisement and another 1994 MLD 1136; Pakistan Railways and another v. Muhammad Ilyas and 61 others 1994 CLC 795; Messrs Shahid Agency v. The Collector of Customs (Appraisement) and another 1989 CLC 1938; Messrs Kamran Industries v. The Collector of Customs (Exports) 11th Floor, Custom House, Karachi and 4 others PLD 1996 Kai' 68 and Government of Punjab through Minister for Revenue Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108 ref.

Ijaz Ahmad Chaudhry for Petitioner.

Ch. Muhammad Afzal Cheema for Respondents Nos.6, 7, 9 and 10.

2007 C L C 587

[Lahore]

Before Sh. Hakim Ali, J

SHABBIR HUSSAIN----Petitioner

Versus

T.M.A. and others----Respondents

Writ Petition No.2361 of 2006/BWP, decided on 13th November, 2006.

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

----Ss. 54(1)(g), (m) & 116---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of fee' on billboards---Jurisdiction of Tehsil Municipal Administration---Petitioner had contended that Tehsil Municipal Administration was not authorized to impose/levy or recover fee on billboards---Boards, which were attached with outer wall of an office/house, were called billboards---Under S.116 of Punjab Local Government Ordinance, 2001, Tehsil Municipal Administration had the power to levy the tax, fee which was specified in the Second Schedule appended to the said Ordinance; in Part-III of Second Schedule of Punjab Local Government Ordinance, 2001, taxes/fees which were levied by the Tehsil Council, were enumerated and Item No.6 of said Part-III had categorically provided that Tehsil Municipal Administration could charge and collect fee upon advertisement as the same fell within the domain and jurisdiction of Tehsil Council, but not through television and billboards---Tchsil Municipal Administration having no power to levy fee on billboards, notification to that extent was declared illegal.

Muhammad Ozair Chughtai for Petitioner.

Muhammad Ashraf Mohandara for Respondents Nos. 1 and 2.

2007 C L C 589

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. HALEEMAN and 4 others----Appellants

Versus

ABDUL SHAKOOR KHAN----Respondent

Regular Second Appeal No.28 of 1995, heard on 28th September, 2006.

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

----S. 119---Limitation Act (IX of 1908), Art.120---Specific Relief Act (I .of 1877), S.42---Civil Procedure. Code (V of 1908), 5.100---Suit for declaration and possession---Land transferred in exchange---Recovery of possession---Filing ' of suit---Period of limitation---Concurrent finding of facts by Courts below---Interference by High Court---Scope---Predecessor-in-interest of plaintiffs/appellants who made an exchange of his land measuring 473 Kanals with defendant/respondent for his land measuring 227 Kanals transferred the same in favour of the latter vide mutation dated 26-9-1973 but the latter (defendant) did not transfer his land in favour of the former (plaintiffs) rather he sold it to third persons for consideration of Rs.1,00,000 through registered sale deed dated 18-6-1981---Plaintiffs filed suit for declaration and possession challenging mutation dated 26-9-1973 and entries made in Revenue Record under said mutation---Defendant took specific plea to the effect that he had delivered possession of his land to representatives of predecessor-in-interest of plaintiffs and handed over Rs.90,000 as security till sanctioning of mutation in favour of plaintiff's predecessor-in-interest and thereafter with his consent he sold out land and after deducting Rs.90,000 from sale price made payment of Rs.10,000 to him---Trial Court dismissed suit filed by plaintiffs---Appeal filed thereagainst also met the same fate---Plaintiffs contended that suit had been competently filed within period of limitation and Art.120 of Limitation Act, 1908 was attracted to the suit filed by them and that plaintiffs were entitled for possession of land in exchange under S. 119 of Transfer of Property Act, 1882---Defendant argued that principle underlying S.119 of Transfer of Property Act, 1882 was not attracted to the case; that there was no evidence on record to establish that defendant had transferred property without consent of plaintiff's predecessor-in-­interest and that regular second appeal was not competent when there was concurrent finding of facts against plaintiffs--Validity- Predecessor of plaintiffs had died in 1987 and in his lifetime plaintiffs had not challenged entries of mutation dated 26-9-1973---Said mutation was challenged through suit for pre-emption which was contested both by plaintiff's predecessor and defendant and it was found by the court that transaction of property through mutation of sale was an exchange not a sale and suit as well as appeal was dismissed by Courts below and leave to appeal was dismissed by Supreme Court on 29-11-1989 and before that decision plaintiff's predecessor had died---Plaintiff's predecessor had not-challenged mutation dated 26-9-1973 nor made any claim in return of disputed property from defendant who had obtained possession of the same---Cause of action had accrued to plaintiffs on 26-9-1973 and suit could be filed within six years from said date under Art.120 of Limitation Act, 1908 but plaintiffs did not file suit just after death of their predecessor---Time for filing suit was six years whereas present suit was filed after period of about 14 years of sanctioning of mutation in dispute, hence both the courts below had rightly passed findings on question of limitation against plaintiffs---Section 119 of Transfer of Property Act, 1882, showed that a person could claim benefit under this section if there was any defect in title of other party was deprived of the thing or party of the thing received by him in exchange---Plaintiffs had not pointed out any defect in exchanged property of the defendant or in property of plaintiff's predecessor which he had transferred in exchange to defendant, therefore, provision of 5.119 of Transfer of Property Act, 1882 was not attracted to present case---Principle of S.119, Transfer of Property Act, 1882 could be applied only upto certain stage, namely so long as property was lying in hands of person whom it was given in exchange and if, however, said person had parted with that property further on in favour of third person then the case went out of mischief of said section---Property of defendant had been transferred in favour of a third person with consent of predecessor-in-:interest of plaintiffs---No evidence was available on record to establish fraud, collusion and mala fide on the part of defendant---Plaintiffs had not been able to point out any misreading or non-reading of evidence by both courts below which had given concurrent findings of fact against them---Concurrent findings of fact, recorded by two Courts below ordinarily would not be disturbed by High Court in second appeal but the same could be disturbed and reversed on ground that decision of courts below was based on misreading of evidence or that it was a result of perverse application of evidence or that conclusion was drawn after ignoring same piece of evidence on record---Appeal was dismissed.

Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Fazal Rahman v. Amir Haider and another 1986 SCMR 1814 and Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866 rel.

M.K. Ranganathan and another v. The Calcutta Tramways 'Co. Ltd. and others AIR 1956 Mad. 285; Jaharaddi Mandal v. Debnath Nath Chaudhry AIR 1916 Cal. 325 and Fazal Rahman v. Amir Haider and another 1986 SCMR 1814 ref.

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

----S. 100---Reappraisal of evidence on record in second appeal---Concurrent finding by courts below---Interference by High Court---Scope---Reappraisal of evidence on record by second appellate court was not permissible under S.100 of C.P.C. and concurrent findings could not be interfered with by High Court while exercising jurisdiction under S.100 of C.P.C. howsoever erroneous that finding might be, unless such finding had been arrived at by courts below either by misreading of evidence on record or by ignoring material piece of evidence on record or through perverse appreciation of evidence.

Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 rel.

Ijaz Ahmed Ansari for Appellants.

Ch. Ayyaz Muhammad Khan for Respondent.

Date of hearing: 28th September, 2006.

2007 C L C 596

[Lahore]

Before Muhammad Muzammal Khan, J

QADAR DAD----Petitioner

Versus

MUHAMMAD IQBAL and others----Respondents

Civil Revision No.1724 of 1998, heard on 7th December, 2006.

Punjab Pre-emption Act (IX of 1990---

--Ss. 5, 6 & 13---Suit for pre-emption---Making of Talbs---Suit for possession through pre-emption claiming that transaction of suit-land was sale, but was dubbed as an exchange transaction just to defeat pre-emptor's superior pre-emptive rights and that pre-emptor immediately exclaimed his intention of exercising his superior pre-emptive right and sent a registered notice of Talb-i-Ishhad within statutory period---Plea of defendants was that transaction of suit was not pre-emptible being that of exchange and denied performance of Talbs by pre-emptor in terms of law applicable---Trial Court decreed suit filed by pre-emptor, but in appeal suit was dismissed by the Appellate Court reversing judgment and decree of the Trial Court---Validity---Pre-emptor was under obligation to prove that transaction reflected in mutation, in fact was sale and not exchange, but he could not discharge said burden, whereas defendants by producing cogent and reliable evidence had proved that transaction in question was exchange and not sale---Suit filed by pre-emptor, in circumstances was not competent at law by virtue of S.5 of Punjab Pre-emption Act, 1991, whereunder only sale could be pre-empted---Even otherwise pre-emptor did not mention any specific date of gaining of knowledge of transaction in question and had also not proved issuance of notice of Talb-i-Ishhad, alleged to have been sent by him to defendants which was not only mandatory, but was the back-bone of the suit without which same could not have been decreed---Suit was rightly dismissed by Appellate Court, in circumstances---No case for interference of High Court, having been made out, petition being devoid of any merit, was dismissed.

Muhammad Irshad and 4 others v. Sardar Khan 1981 CLC 124; Ghulam Hussain through Legal Heirs v. Meraj Bibi 1995 MLD 435; Muhammad Ahsan and 5 others v. Doulat Khan and another 2002 CLC 66; Muhammad Amjad Khan v. Province of Punjab and others 2004 SCMR 1389 and Muhammad Bibi and 4 others v. Province of Punjab 2000 CLC 769 ref.

Sh. Naveed Shehryar for Petitioner.

Ch. Riyasat Ali for Respondents.

Date of hearing: 7th December, 2006.

2007 C L C 601

[Lahore]

Before Abdul Shakoor Paracha, J

Major (R) SHAKIL-UD-DIN AHMED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and another----Respondents

Writ Petition No.2211 to 2214 of 2006, decided on 28th November, 2006.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)--

----S. 21---Appeal against order of Rent Controller---Dismissal of appeal in limine---Jurisdiction of Appellate Court---Procedure---While exercising jurisdiction under S.21(7) of Islamabad Rent Restriction Ordinance, 2001 Appellate Court was not required to send for the record and it would depend on facts of each case that if Appellate Court felt it necessary, after perusing the 'record, it could give the parties an opportunity of being heard and decide the appeal which would mean that there were two categories of cases which would come before the Appellate Court; first category being where the facts were simple and were not disputed, the first appeal was generally dismissed in limine and examination of record of the Rent Controller was not necessary while second category of cases was that, if the facts were not simple or disputed first appeal was not generally dismissed in limine; in that case Appellate Court would send for record, provide an opportunity of being heard to the appellant; and in that case Appellate Authority would not dispose of appeal without first sending for record from the Rent Controller and hearing parties; and further if necessary making such further inquiry as it deemed fit---Duty to call for record in the first instance was imperative and in the latter case Appellate Authority could not dismiss the appeal in limine.

Abid Hussain v. Mst. Afsar Jehan Begum and others PLD 1973 SC 1; Haji Muhammad Aqil v. Ghulam Muhammad and another 2002 CLC 969 and Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali 1968 SCMR 828 ref.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 17(8)(9) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-compliance of tentative rent order---Striking off defence---Ejectment petition on ground of wilful default in payment of rent of premises---Rent Controller passed order directing tenant to deposit past rent of premises under S.17(8) of Islamabad Rent Restriction Ordinance, 2001---Tenant having failed to deposit rent in compliance of tentative rent order, defence of tenant was struck off---Validity---Order striking off defence of tenant for non-compliance of tentative order, being unexceptional, appeal against said order was rightly dismissed by Appellate Court---No ground to interfere in the well reasoned orders of both the courts below, having been made out, constitutional petition against order of Appellate Court, was dismissed.

Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328 ref.

Malik Qamar Afzal for Petitioner.

Muhammad Ilyas Sheikh and Tariq Khurshid for Respondents.

2007 C L C 606

[Lahore]

Before Iqbal Hameedur Rahman, J

Syed UMER FAROOQ----Petitioner

Versus

BAHAUDDIN ZIKRIYA UNIVERSITY and others----Respondents

Writ Petition No.6466 of 2006, decided on 24th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Prospectus of University of Bahauddin Zakariya Multan, Rr.3.7 & 5---Educational Institution---Admission in B.Sc. Engineering---Transfer of candidate from one Department to another---Petitioner/candidate on his Pre-Engineering qualification, applied for admission in B.Sc. Engineering 1st year class in the University---Preferences of petitioner were; firstly Electrical Engineering; secondly Mechanical Engineering; and thirdly Architecture Engineering---Petitioner, who was given admission in Architecture Engineering against reserved seat, thereafter applied for transfer to Mechanical Engineering in accordance with R.3.7 of Prospectus of University of Bahauddin Zakariya Multan against reserved, seat of employee's son---Chairman University College of Engineering and Technology Admission Committee also recommended application of petitioner for the transfer sought by the petitioner, but despite said recommendation, petitioner was denied the transfer on the erroneous plea that unfilled reserved seat had been ,converted into Self-Finance/Special charges seat---Said act of authorities was in violation of sub-rule (iv) of R.5 of Prospectus of University of Bahauddin Zakariya, Multan; under R.3.7 of Prospectus of University of Bahauddin Zakariya Multan petitioner was to be transferred to the higher preferential disciplines automatically---Seat was lying vacant in the Department of Mechanical Engineering and petitioner was to be considered automatically and transferred to department of Mechanical Engineering---Authorities could not deprive the petitioner of such right by converting the unfilled/vacant seat to that of Self-Finance/Special Admission Charges seat---Accepting constitutional petition, High. Court directed the authorities to transfer petitioner to Department of Mechanical Engineering accordingly.

Khurshid Ahmad Khan for Petitioner.

Ch. Zulfiqar Ahmad Sindhu for Respondents.

Date of hearing: 24th January, 2007.

2007 C L C 610

[Election Tribunal Punjab]

Before Syed Zahid Hussain, J

ASIF NAWAZ FATIANA---Petitioner

Versus

WALAYAT SHAH and others---Respondents

Civil Miscellaneous No.5 of 2006 in Election Petition No.13 of 2002, decided on 6th December, 2006.

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

----Ss. 52, 53, 54, 55, 56, 57, 58, 59, 61, 62(1), 63, 64 & 76---Representation of the People (Sixth Amendment) Ordinance (XVIII of 1985), Preamble---Civil Procedure Code (VI of 1908), S.151 & O.IX---Notification dated 17-3-1985 (Issued by Election Commission of Pakistan)---Election petition---Dismissal in default---Application under S.151, C.P.C. for restoration of election petition---Powers of Election Tribunal and applicability of provisions of C.P.C. to trial of election petition---Scope---Election petition was dismissed in default and petitioner filed application under S.151, C.P.C. for seeking restoration of the same on ground that he, was present in court room and had rushed to bring his counsel when the case was called and absence was neither intentional nor deliberate and that election petition might be decided on merits---Application was accompanied by affidavit of petitioner and his counsel---Respondent raised objection to competency of application for restoration on ground that there was no provision in Representation of the People Act, 1976 for restoration of election petition dismissed in default and that even an application under S.151, C.P.C. did not lie---Reply of respondent was also supported by his counter affidavit--- Petitioner argued that when there was no specific prohibition to adopt any procedure, then procedure prescribed by C.P.C. could be followed and that law favoured adjudication of matters on merits---Validity---Scope and ambit of powers of Election Tribunal was to be discovered from provisions of relevant law constituting the same---Distinction between "Court" and "Tribunal" was also not to be overlooked--Provisions of Representation of the People Act, 1976, in the present case, under which Election Tribunal functioned had to be given primacy---Under S.62 of Representation of the People Act, 1976, the procedure to be followed by Election Tribunal was the one which was "laid down by Election Commission"---Notification dated 17-3-1985 issued by Election Commission of Pakistan had prescribed procedure for trial of election petitions---No provision in Representation of the People Act, 1976, had enabled or empowered Election Tribunal to set aside order of dismissal in default or restore petition once it had been dismissed under S.76 of the Representation of the People Act, 1976---Section 64 of Representation of the People Act, 1976, provided that Election Tribunal was to have all powers of a civil court, trying a suit under C.P.C., yet some specific provisions had been made by legislature in its wisdom in Representation of the People Act, 1976---Section 76 of the Act, specifically empowered Election Tribunal to dismiss petition for default and this was despite the fact that O. IX of C.P.C. empowered civil court to dismiss a suit for default and take proceedings ex parte against absenting party and also to restore suit and set aside ex parte orders/decrees on showing sufficient cause---Enactment of S.76 of the Act, was thus clearly a conscious departure from procedure prescribed by C.P.C. otherwise there would have been no need to specifically empower Election Tribunal to dismiss a petition for default as envisaged by S.76 of the Act---Election Tribunal did not ipso facto become a civil court by virtue of provision of S.64 of the Act---Amendment made in subsection (1) of S.62 of the Act, vide Notification dated 17-3-1985 (laying down procedure for trial of election petitions) was also indicative of the same intention of legislature viz. that certain procedure was specifically laid down to be followed by Election Tribunal and some specific powers were also conferred on it---Election Tribunal had special status under the Act, which being creation of such special law was to exercise only such powers of that law---Election Tribunal while functioning under special law could not claim to have nor could exercise any power, inherent or otherwise, except to the extent conferred upon it by law---By empowering Election Tribunal to dismiss petition for default of appearance and in making no provision for its restoration, the intention had been made absolutely clear that order of Election Tribunal became final as there was no power of review even given to the Tribunal---By enacting special provisions in Representation of the People Act, 1976, in form of S.76 empowering Election Tribunal to dismiss a petition for default, the legislature had clearly expressed its intention that Election Tribunal had the power to dismiss petition for such default but no power was given to it to set aside or recall such an order---Power of review could only be exercised when so conferred by relevant statute and it did not inhere in Election Tribunal merely because of its existence---Special provisions were made in Representation of the People Act, 1976, so as to enhance powers of the Tribunal and in their presence the general procedure mentioned in C.P.C. was not to be applicable on strength of principle that express mention of one excluded the other---Mention of one (power to dismiss petition for default) and omission of provision for restoration was intentional and thus Will of law-maker was to be given effect--Election Tribunal was not empowered to either set aside or review its order---Application for restoration of election petition was not maintainable, hence, the same was dismissed.

?

PLD 1985 Central Statute 539; PLD 1985 Central' Statute 677; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Asif Nawaz Fatiana v. Walayaat Shah 2003 CLC 1896; Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another AIR 1961 Bombay 21; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 rel.

Khan Bahadur and others v. Mst. Salima and others PLD 1986 SC 150; Hudabia Textile Mills Ltd. and others v. Allied 'Bank of Pakistan Ltd. and others PLD 1987 SC 512; Emirates Bank International Ltd. Karachi v. Adamjee Industries Ltd. Karachi and 14. others 1993 CLC 489; Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Maqbool Rehman v. The State and others 2002 SCMR 1076; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Asif Nawaz Fatiana v. Walayat Shah 2003 CLC 1896; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 ref.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others .1999 SCMR 284 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 distinguished.

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

---S. 64---Civil Procedure Code (V of 1908), Preamble---Criminal Procedure Code (V of 1898), Ss.476, 480 & 482---Powers of Election Tribunal---Scope---Section 64 of Representation of the People Act, 1976, laid down that Tribunal was to have all powers of civil court trying a suit under C.P.C. and was to be deemed to be civil court within meaning of Ss.476, 480 & 482 of Cr.P.C.?

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

----S. 64---Election Tribunal--Nature---Election Tribunal was not a Court; it was a creature of statute---Election contest was not an action at law or a suit in equity but it was a purely statutory proceeding unknown to common law and the Court (Tribunal) possessed no common law power---Election Tribunal had only such powers as were conferred on it by statute, expressly or by necessary implication and it had none of inherent powers f an ordinary court.?

Brijmohan Lal v. Election Tribunal Allahabad and others AIR 1965 All. 450 and K. Kamaraja Nadar v. Kunju Thevar AIR 1958 SC 687 ref.

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

----S. 64--Civil Procedure Code (V of 1908), Ss.114 & 115, O.XLVII---Election petition---Procedure---Power of Election Tribunal---Applicability of provisions of C.P.C. on trial of election petition--Scope and extent---Power of Election Tribunal as civil court was mentioned in the context of S.64 of Representation of the People Act, 1976, and it was not discoverable from the provisions of the said Act, that Election Tribunal was vested with any power beyond the one vested in it by law---Had the whole of C.P.C. intended to be made applicable by legislature then remedy of review under S.114 read with Order XLVII C.P.C. and revision under S.115 of C.P.C. would also have been available, but it was not so--- Representation of the People Act, 1976, was a special law and adoption of provisions of C.P.C. by reference operated within that limited sphere only.?

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

---Ss. 63(a), 54 & 55(3)---Civil Procedure Code (V of 1908), O.VI, R.15---Verification of election petition---Applicability of provisions of C.P.C.---Scope---Verifications under provisions of C.P.C. were generally of directory nature---Omission to do so could be rectified subsequently during trial and even court could direct such rectification---Under election laws such verification on oath was mandatory because of being followed by penal consequences under S.63(a) of the Representation of the People Act, 1976, that made it mandatory for Tribunal to dismiss election petition if provisions of Ss.54 & 55 of the Act, had not been complied with.?

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 rel.

?

(f) Interpretation of statutes---

----Enabling Act is expressed in the maxim, "Expressio unis est exclusio alterius" which meant that express enactment shuts the door to further implication---Under the said principle enumeration of certain powers implied exclusion of all others not fairly incidental to those enumerated and that an affirmative description of cases in which certain powers might be exercised, implied a negative on the exercise of such powers in other cases---Rule applied even though there were no negative words excluding the things not mentioned.?

Understanding Statutes "Canons of Construction" 2nd Edn. p.274 by S.M. Zafar ref.

Hafiz Khalil Ahmed for Petitioner.

Ch. Muhammad Anwar Bhindar for Respondents.

2007 C L C 630

[Lahore]

Before Maulvi Anwarul Haq, J

SHOUKAT HAYAT----Petitioner

Versus

JUDGE, FAMILY COURT, FATEH JANG and another----Respondents

Writ Petition No.162 of 2007, decided on 25th January, 2007.

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

----S. 5, Sched. Ss.9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for restitution of conjugal rights---Petitioner husband filed a suit for restitution of conjugal rights, against his wife who filed written statement and by way of set off, claimed a decree for dissolution of marriage on ground of Khula---Marriage was dissolved and wife gave up her claim to dower and maintenance etc.---Petitioner had contended that since suit for dissolution of marriage already filed by wife was pending, a set off could not have been claimed by her---Validity---Contention of petitioner was repelled as provisions of S.9(1)(a) & S.10(4) of West Pakistan Family Courts Act, 1964 applied to claim of set off by a husband in a suit filed by wife for dissolution of marriage wherein it had been stated that set off could be claimed where no earlier suit for restitution of conjugal rights was pending---No such condition, however was laid down in S.9(1)(b) of West Pakistan Family Courts Act, 1964, which enabled wife to claim dissolution of marriage by way of set off in a suit for restitution of conjugal rights filed by husband---Proviso to S.9(1) of West Pakistan Family. Courts Act, 1964 provided that S.10(4) (Proviso of the Act would apply where a decree for dissolution of marriage was to be passed in such circumstances.

Mazhar Masood Khan for Petitioner.

2007 C L C 643

[Lahore]

Before Iqbal Hameedur Rahman, J

MUHAMMAD IQBAL----Petitioner

Versus

MUMTAZ ALI and others----Respondents

Writ Petitions Nos.5292 and 5293 of 2000, decided on 12th February, 2007.

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

---Ss. 2(c)(i), 13(2)(i)(iii), (3)(i)(ii) & 15--Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of default in payment of rent, impairing conditions and utility of premises and personal bona fide need---Relationship of landlord and tenant---Determination of---Petitioner had denied relationship of landlord and tenant between parties alleging that premises in question were owned by Central Government---Initial induction of petitioner as tenant in the premises in question was proved as respondents had proved execution of rent deed/agreement---Scribe of said document appeared and proved. the same---Marginal witnesses of the rent deed also proved its execution---Rent Controller and Appellate Court below had also found that premises in question were rented out by respondents to the petitioner---Petitioner, in circumstances, should first surrender the possession to respondents and then agitate matter in civil court---Appellate Court below, in circumstances had rightly dismissed appeal of petitioner against judgment of the Trial Court, holding that respondents had proved execution of rent- deed in respect of premises in question---No illegality or irregularity having been committed by Appellate Court below in passing impugned order, constitutional petition against said order was dismissed.

Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; PLD 1991 SC 242 and S.A. Waheed v. The Dayal Singh College Trust Society PLD 1955 Lah. 570 rel.

Sardar Altaf Hussain Khan for Petitioner.

Malik Sharif Ahmad for Respondent.

Date of hearing: 12th February, 2007.

2007 C L C 656

[Lahore]

Before Maulvi Anwarul Haq, J

RASHEED AHMED----Petitioner

Versus

Mst. SHAMSHAD BEGUM and 3 others----Respondents

Writ Petition No.1190 of 2005, decided on 24th January, 2007.

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

----Ss. 5, Sched. & 14(2)(c)--Limitation Act (IX of 1908), Art.120---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance---Past maintenance-Limit-Family Court awarded maintenance at the rate of Rs.1,000 per month each to minor daughters of petitioner with effect from the date of institution of the suit with 10% increase after every three years---Appellate Court while maintaining rate of maintenance, directed that maintenance would be paid with effect from six years prior to institution of the suit---Contention of petitioner was that as rate of maintenance was Rs.1,000 per child first appeal filed by respondents was not competent and that maintenance could have been granted only for three years prior to the date of institution of the suit---Validity---Article 120 of Limitation Act, 1908 being applicable to the suit for maintenance, Appellate Court below, had acted within its domain directing that maintenance would be paid with effect from six years prior to institution of the suit---Respondent having filed appeal, both in the matter of past maintenance as also for enhancement of rate of maintenance, same was not barred by law.

Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 rel.

Syed Masood Hussain for Petitioner.

Ms. Shaista Altaf for Respondents Nos.1 to 3.

2007 C L C 665

[Lahore]

Before Muhammad Muzammal Khan, J

NOOR HUSSAIN----Petitioner

Versus

MUTALLI KHAN----Respondent

Civil Revision No.817 of 2006, decided on 27th April, 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Delay in filing appeal---Condonation of delay---Suit for pre-emption had been dismissed by the Trial Court and appeal before Appellate Court; was returned on ground that valuation Get suit for purposes of jurisdiction of the Appellate Court was beyond its pecuniary jurisdiction---Subsequently on filing application for condonation of delay appeal filed before High Court was ultimately remitted to Appellate Court below---Plaintiff had diligently done everything within the limitation prescribed by law and no mala fide could be attributed to him in filing appeal before Appellate Court---Plaintiff and his counsel in fact were genuinely mislead by valuation of the suit for the purposes of jurisdiction of the court---No litigant should suffer for act/omission of the court and he having no intention to incorrect mentioning of valuation on the decree-sheet, could not be punished by throwing his appeal as barred by limitation---Controversy regarding condonation of delay, was correctly put to rest by Appellate Court, without committing any illegality/irregularity, amenable to revisional jurisdiction of High Court---Revision being devoid of any merit, was dismissed.

Hafiz Khalil Ahmad for Petitioner.

2007 C L C 680

[Lahore]

Before Maulvi Anwarul Haq, J

HUSSAIN SHAH----Petitioner

Versus

BANO BIBI and 9 others----Respondents

Civil Revision No.353/D of 1998, heard on 26th January, 2007.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.11---Suit for possession---Res judicata, principle of---Applicability---Scope---Suit for possession was concurrently dismissed by the Trial Court and Appellate Court on the ground of being barred by res judicata---None of the issues arising in the suit stood finally decided in earlier two suits between the parties---Courts below, in circumstances, had acted without jurisdiction while non-suiting petitioner---Concurrent judgments and decrees of the courts below, were set aside, with the result that suit would be deemed to be pending.

Agha Muhammad Ali Khan for Petitioner.

Malik Khalid Mazhar for Respondents.

Date of hearing: 26th January, 2007.

2007 C L C 696

[Lahore]

Before Maulvi Anwarul Haq, J

HAMID BAKHSH through L.Rs. and others----Appellants

Versus

HUSSAIN BAKHSH through L.Rs. and others----Respondents

R.S.A. No.13 of 1996, heard on 12th September, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Predecessor-in-interest of plaintiffs filed suit to the effect that property in dispute was a private Waqf which was administered by him as a Sajjada Nashin and Matwali who managed 'the shrine therein and sought declaration that he being Sajjada Nashin and Matwali of the shrine was entitled to remain in possession and control of the same to receive the income of the shrine and further prayed that defendants be restrained from interfering with his functions---Courts below concurrently had decreed the suit---Validity---Evidence on record had properly been read by Appellate Court below while modifying decree passed by the Trial Court---No question of law arose in the second appeal and counsel for defendants had failed to point out any misreading or non-reading of evidence on record---Matter of appointment to the office of Sajjada Nashin had been decided in favour of plaintiffs by both the courts below concurrently and Courts had held the plaintiffs to be entitled to receive income of the shrine---Second appeal was dismissed, in circumstances.

Ch. Abdul Hakim and Mian Habib-ur-Rehman Ansari for Appellants.

Mirza Aziz Akbar Baig for Respondents.

Date of hearing: 12th September, 2006.

2007 C L C 710

[Lahore]

Before Muhammad Muzammal Khan, J

AHMAD NAWAZ----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.2460 of 2006, decided on 12th December, 2006.

Specific Relief Act (1 of 1877)---

----Ss. 12 & 56(a)---Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.1, 2---Interim injunction, grant of---Judicial proceedings---Plaintiff claimed to have entered into agreement to sell with the owners of suit land, against whom defendant had sought decree for possession through pre-emption---Decree passed in favour of defendant in pre-emption suit was maintained upto Supreme Court---Suit filed by plaintiff was dismissed by Trial Court and Appellate Court declined to grant interim injunction---Validity---Plaintiff simply claimed agreement to sell from the owners which did not create any right, title or interest in the suit property---Suit of plaintiff, for specific performance had already been dismissed by Trial Court and judgment and decree of Trial Court was subject to scrutiny in appeal before Appellate Court---Plaintiff had no prima facie arguable case in his favour---Injunction sought could not be issued to obstruct lawful execution proceedings in view of the provisions of S.56 (a) of Specific Relief Act, 1877---Even otherwise if plaintiff was deprived of his claimed possession, he could have it back through process of court in case of his success in his suit for specific performance---No probability of any irreparable loss/injury to plaintiff, whereas the same would ensue to the benefit of defendant, who could not be deprived of usufruct of suit property, in spite of the fact that its entire price had already been deposited---Balance of convenience was also in favour of defendant and there was no chance of any inconvenience to plaintiff---Controversy was correctly put to rest by Appellate Court, without committing any error of law/facts---Order passed by Appellate Court was not tainted with any illegality, irregularity and the same was not amenable to interference under S.115 C.P.C.---High Court declined to interfere with the order passed by Appellate Court, whereby interim injunction was declined---Revision was dismissed in circumstances.

Muhammad Ramzan Wattoo for Petitioner.

2007 C L C 727

[Lahore]

Before Maulvi Anwarul Haq, J

SHAKEEL AZHAR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 3 others----Respondents

Writ Petition No.2161 of 2004, decided on 23rd January, 2007.

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

----S. 5 & Sehed.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Past maintenance---Entitlement of minor---Respondents were minor son and ex-wife of the petitioner---Ex-wife of petitioner in a suit was denied maintenance with reference to a decree granted to her on the basis of Khula, whereas minor child was granted maintenance for the last two years---Appeal of petitioner against judgment of the Trial Court having been dismissed by Appellate Court being not competent, petitioner filed constitutional petition---Petitioner had claimed that past maintenance could not be allowed to the minor---Validity---Minor, held, was rightly granted past maintenance in circumstances---Constitutional petition was dismissed.

Mst. Ghulam Fatima v. Sheikh Muhammad Bashir PLD 1958 (W.P.) 596 and Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543 rel.

Raja Asif Qayyum for Petitioner.

Raja Saghir-ur-Rehman for Respondents Nos.3 and 4.

2007 C L C 735

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. GEETI ARA and others----Petitioners

Versus

MEHRAJ DIN and others----Respondents

Civil Revision No.1147-D of 1992, decided on 29th September, 2005.

Punjab Pre-emption Act (I of 1913)---

----Ss. 7, 15, 16 & 21---Suit for pre-emption---Maintainability---Suit having concurrently been decreed by the Trial Court and. Appellate Court, defendants/vendees had assailed said concurrent judgments and decrees alleging that courts below had acted illegally and with material irregularity by treating the suit of pre-emptors under S.15 of Punjab Pre-emption Act, 1913---Contention of pre-emptors was that it was established on record that suit property in fact being urban immovable property at the time of sale, matter should have been decided in terms of S.16 of Punjab Pre-emption Act, 1913---Defendants had contended that courts below were bound to dismiss suit within the meaning of S.7 of Punjab Pre-emption Act, 1913 and that main pre-emptor having died during pendency of their suit, the right of pre-emption being not heritable, suit had abated and was liable to be dismissed as such---Defendants had tried to. refer to oral evidence in order to prove that suit property at the time of sale had assumed the nature of urban immovable property, but same was neither convincing nor confidence inspiring in order to set aside concurrent findings of two courts below---Under Islamic Law, in case of death of pre-emptor during pendency of suit, his right of pre-emption would be extinguished and suit filed by him could not be prosecuted further by the heirs of deceased pre-emptor, but present suit was not filed under Islamic Law, but was filed in terms of Punjab Pre-emption Act, 1913---Punjab Pre-emption Act, 1913 provided that right of pre-emption was heritable, whether based on proprietary qualifications or on relationship---Objection of defendants was overruled, being not legally sustainable---Findings of' two courts below were neither based on misreading nor on non-reading of evidence, nor same suffered from any jurisdictional defect, calling for interference of High Court.

Malik Ghulam Nabi and others v. Member (III), Board of Revenue and 5 others PLD 1990 SC 1043 and Allah Dad and others v. Hukam Dad and others PLD 1960 (W.P.) Lah. 900 rel.

Maqbool Elahi Malik for Petitioners.

Syed Murtaza Ali Zaidi for Respondents.

Date of hearing: 23rd September, 2005.

2007 C L C 746

[Lahore]

Before Iqbal Hameedur Rahman, J

MUHAMMAD RAMZAN----Petitioner

Versus

MULTAN DEVELOPMENT AUTHORITY----Respondent

Writ Petitions Nos.5833 of 1996, 1491 and 1290 of 1997, decided on 31st January, 2007.

Punjab Development of Cities Ordinance (XI of 1976)---

----S. 38---Punjab Acquisition of Land (Housing) Act (VIII of 1973), S.4---Punjab Acquisition of Land (Housing) Rules, 1973, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition-Acquisition of land of Kachi Abadi, for the purpose of establishing a colony---Rights of owners and inhabitants of land---Scope---Land of Kachi Abadi in question having been acquired for the purposes of establishing a colony, petitioners, who were owners and inhabitants of said Kachi Abadi, were given notices under S.38 of Punjab Development of Cities Ordinance, 1976 to vacate their houses within 24 hours, otherwise their houses would be demolished by the Authority and expenses accrued on that would be recovered from the petitioners---Petitioners had sought setting aside of said notices in their constitutional petition being illegal, void and without lawful authority---Contention of petitioners was that according to Scheme, one third of land in the shape of plots was given to the owners of land by the Authority on the payment of development charges of said area, but said rule was not adopted in the case---Validity---Before publication of notices under S.4 of Punjab Land Acquisition Act, 1973 Authority submitted terms and conditions, whereby it was assured that already existing Abadies would not be taken into proposed Scheme, but if same would be acquired, full compensation would be paid to the affectees---Authority which was bound to fulfil said terms, had failed to do so, because neither substituted plots were given to petitioners nor they were compensated---Petitioners were entitled to get equal land for their houses and costs of their existing structures because their houses were situated in that Scheme---Action of the Authority pertaining to acquiring the land of houses and not giving petitioners substituted equal plots for residence, was also discriminatory because some other inhabitants of said Scheme were given substituted land against their houses---High Court accepting constitutional petitions, set aside the impugned notices issued by Authority to petitioners.

Ch. Muhammad Sharif, Muhammad Arif Alvi and Malik Muhammad Jamshed Awan for Petitioners.

Muhammad Ameen Malik, Legal Advisor along with Muhammad Aslam Joyia, Clerk for Respondent.

Date of hearing: 31st January, 2007.

2007 C L C 751

[Lahore]

Before Muhammad Muzammal Khan, J

CHAND BAGH FOUNDATION through Authorized Representative----Appellant

Versus

Messrs REHMAN BROTHERS (PVT.) LTD. Through Chief Executive----Respondent

R.F.A. No.235 of 1999, heard on 28th November, 2006

(a) Arbitration Act (X of 1940)---

----Ss. 30, 33 & 39---Appeal---Maintainability---Appellant never opted to have the award set aside as it had not filed any objection under Ss.30 or 33 of Arbitration Act, 1940---Appellant's case had been that of modification which was also not allowed by Trial Court---Effect---Appeal was not maintainable in circumstances.

(b) Arbitration Act (X of 1940)---

----S. 39---Civil Procedure Code (V of 1908), S.115---Conversion of appeal into revision---Principles---Appeal can be converted into a revision by converting memorandum of appeal into a revision petition and vice versa.

Capital Development Authority Islamabad through Chairman v. Khuda Bakhsh and 5 others 1994 SCMR 771; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555; PLD 1984 Quetta 52; Ch. Muhammad Shafi and 8 others v. Settlement and Rehabilitation Commissioner, Lahore and 3 others PLD 1972 Lah. 187; Karam Khan and others v. Allah Bakhsh and others PLD 1995 Lah. 462; L. Charm Das v. L. Gur Saran Das Kapur AIR (32) 1945 All. 146; Sm. Blaika Devi another v. Kidar Nath Puri AIR 1956 All. 377 and Saravala Venkata Subbiah v. Kumara Ramiah AIR 1935 Mad. 184 rel.

(c) Arbitration Act (X of 1940)---

----Ss. 15, 30 & 33---Civil Procedure Code (V of 1908), S.115---Award---Modification---Award between parties was made rule of the Court---Petitioner sought modification of award but Trial Court dismissed such application---Validity---Award could not be set aside except on one or more of the grounds specified in S.30 of Arbitration Act, 1940, which included misconduct by arbitrator---Award having been announced after arbitration proceedings had become invalid or award had improperly been procured or the same was invalid---Parties wishing to have award annulled had to move the court under S.33 of Arbitration Act, 1940, after deposit of amount required to be paid under the award or furnishing security for the same to the satisfaction of court---None of such courses were adopted and instead application under S.15 of Arbitration Act, 1940, was moved for modification of award, which too was not followed by petitioner and was accordingly disposed of being not pressed---Arbitrators having not gone out of the scope of reference and having not misconducted themselves, the proceedings or decision/award could not be lightly interfered by the courts except within the scope provided by Ss.30, 33 and 39 of Arbitration Act, 1940---Court, in such cases, was to give every reasonable intendment in favour of award and to lean towards upholding it, rather vitiating it---Award was final and that was why it was not made subject to appeal by the Legislature---Trial Court did not commit any illegality/irregularity as envisaged by S.115, C.P.C. and controversy having been put to rest without committing any error of law/facts, no interference by High Court was called for---High Court declined to interfere in the award in exercise of its revisional jurisdiction---Revision was dismissed in circumstances.

(d) Arbitration Act (X of 1940)---

----Preamble---Arbitration has been defined to resolve differences through Judges appointed out of the choice of parties.

Mahboob Hussain Chaudhary for Appellants.

Ria Karim Qureshi for Respondents.

Date of hearing: 28th November, 2006.

2007 C L C 757

[Lahore]

Before Maulvi Anwarul Haq, J

HAZIR----Petitioner

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and others----Respondents

Writ Petition No.882 of 2000, heard on 17th January, 2007.

Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977---

----R. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Petitioner was tenant of respondents, subject to payment of 2/5th share of produce---Suit filed by respondents was decreed by Trial Court and petitioner was ejected from suit land---Appeal before Commissioner and revision before Board of Revenue, filed by petitioner were dismissed---Plea raised by petitioner was that he was co-owner in the suit land---Validity---Column of ownership, showed that petitioner was one of the co-owners but specific Khasra number was in Hisadari possession of respondents and petitioner was tenant under them subject to payment of produce---Such concept was wholly different from a tenant in possession, later purchasing share in the Khata--Possession of petitioner was not relatable to his holding any share in joint Khata but his possession was under respondents who were in Hisadari possession of specific Khasra number in joint Khata---Such entry in revenue record was not questioned by petitioner, rather was being relied upon by him---Petitioner by all means was tenant under respondents who were in Hisadari possession through him subject to the terms of tenancy---Petitioner had rightly been ordered to be ejected by the courts below---Constitutional petition was dismissed in circumstances.

Muhammad Nadar Khan and 2 others v. Jam Khair Muhammad 1989 CLC 1410 and Mithoo v. Member, Board of Revenue, Punjab, Lahore and 7 others PLD 1988 Lah. 277 distinguished.

PLD 1978 Punjab Statute 74 ref.

Mazhar Masood Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 17th January, 2007.

2007 C L C 760

[Lahore]

Before Syed Asghar Haider, J

ABDUL MOMIN through General Attorney----Petitioner

Versus

Mst. HALEEMA SAADIA and 2 others----Respondents

Writ Petition No.11481 of 2006, decided on 22nd January, 2007.

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

----S. 5---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Recovery of dowry---Principles of natural justice---Material irregularity---Suit for recovery of dowry articles was decreed by Family Court in favour of wife---Appellate Court non-suited the husband holding that appeal was incompetently filed and was thus not maintainable but thereafter it proceeded to appraise evidence of witnesses and non-suited him on merits also---Validity---Reasoning was contradictory, if appeal was not maintainable then Appellate Court could not have adjudicated same on merits by venturing to do so, committed material illegality, therefore, judgment was not sustainable---High Court in exercise of Constitutional jurisdiction, set aside the judgment and decree passed by Appellate Court and remanded the appeal to Appellate Court for decision afresh---Constitutional petition was allowed accordingly.

(b) Power of attorney---

----Defect in authority---Effect---Defect in authority of agent is a mere irregularity, which can be cured---Lapse thus, does not entail penalty as dismissal of appeal.

Shafique Metal Works and 5 others v. The Bank of Bahawalpur Ltd. Gujranwala PLD 1973 Note 33; Muhammad Khaliq v. Abdullah Khan and 4 others 1987 CLC 1366 and Lt.-Col. (Retd.) P.D. Braganza v. The Border Area Allotment Committee and another 1984 CLC 1479 rel.

Zafar Iqbal Chohan for Petitioner.

Saleem Khan Cheechi for Respondent No.1.

2007 C L C 762

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKBAR and 4 others----Petitioners

Versus

NAZIR AHMED and others----Respondents

Civil Revision No.68 of 2000, heard on 15th January, 2007.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration of title---Demarcation of land---Both the parties filed suits against each other claiming to be owners in possession of their land---Suit tiled by respondents was decreed and that of petitioners was dismissed by Trial Court--Judgment and decree passed by Trial Court was maintained by Appellate Court---Validity---Appellate Court had correctly concluded that original owner of basic Khasra number in question had sold land to several persons including respondents and delivered possession---In absence of any evidence that petitioners were dispossessed as alleged by them after possession had been delivered back to them by respondents, the conclusion that respondents, in fact, were delivered possession of the land which was in their possession by original owner was fully' supported on record---Held, notwithstanding different sales by original owner and carving out of several Khasra numbers, which all fell in same Khata, matter could only be resolved finally in a suit for partition to be filed by any of the recorded co-sharers---Revision was dismissed in circumstances.

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

----O. XX, Rr. 1, 2 & 3---Judgment and decree---Procedural defect---Effect---Infringement of procedure prescribed by O.XX, Rr.1, 2 and 3 C.P.C. merely constitutes an irregularity curable by consent or waiver and it affords no ground for reversal of decree based on the judgment irregularly pronounced, where the irregularity is waived by parties and does not affect merits of case.

Makhan Singh and others v. Wadawa Singh and others AIR 1934 Lah. 763 and Fort Gloster Jute Manufacturing Co. v. Chandra Kumar Das 1920 Cal. 597 rel.

Zaheer Ahmad Qadri for Petitioners.

Muhammad Akbar Butt for Respondents.

Date of hearing: 15th January, 2007.

2007 C L C 765

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD ASLAM and 4 others----Petitioners

Versus

SURKHARU KHAN----Respondent

Civil Revision No.2409 of 2006, heard on 24th January, 2007.

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

----O. XLI, R. 31---Judgment of Appellate Court---Contents---Mandatory requirement of law is that judgment should state points for determination, decision thereon and reasons for decision.

Malik Aman v. Safdar Ali 1987 CLC 1832; Mehrban v. Hamid Khan 1985 CLC 1780; Qamaruzzaman v. Khair Din and others PLD 1979 Note 117 and Haji Nazir Ahmad v. Municipal Corporation, Faisalabad 1985 CLC 1748 ref.

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

----S. 13---Civil Procedure Code (V of 1908), O.XLI, R.31 & S.115---Judgment of Lower Appellate Court---Non-appraisal of evidence---Suit for pre-emption was decreed by Trial Court, in favour of pre-emptor---Lower Appellate Court without appraising evidence available on record, only decided issue relating to making of Talb-i-Muwathibat and proving Talb-i-Ishhad and dismissed the appeal filed by vendees---Validity---First appeal being a substantive right, evidence tendered and arguments addressed should be meticulously attended to, appraised, deciphered and thereafter decided with reasons in accordance with law, as any departure made could compromise valuable rights of parties---Lower Appellate Court did not care to appraise or discuss evidence tendered or submissions made and decided the matter without convincing reasoning or application of judicial mind, therefore, on the bench mark set in O.XLI, R.31 C.P.C., judgment passed by Lower Appellate Court was not sustainable---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and remanded the appeal for decision afresh as ordained by O.XLI, R.31 C.P.C.---Revision was allowed accordingly.

Malik Aman v. Safdar Ali 1987 CLC 1832, Mehrban v. Hamid Khan 1985 CLC 1780 and Haji Nazir Ahmad v. Municipal Corporation, Faisalabad 1985 CLC 1748 rel.

Sh. Naveed Shaharyar for Petitioners.

Ch. Muhammad Hussain Maiken for Respondent.

Date of hearing: 24th January, 2007.

2007 C L C 768

[Lahore]

Before Sh. Azmat Saeed, J

AKBAR ALI and 18 others----Petitioners

Versus

MUKHTAR AHMAD and 14 others----Respondents

Writ Petitions Nos.15167, 15179 and 15180 of 2005, decided on 12th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Remand order---Dispute between parties was with regard to attestation of mutations of inheritance and was pending before Revenue authorities since long---Board of Revenue remanded the matter to appellate authority for decision afresh---Validity---Held, it was not appropriate to exercise Constitutional jurisdiction to interfere with an order of remand---Constitutional petition, which was directed against remand order, was not maintainable, as no final order had been passed, therefore, petition must fail---High Court directed the appellate authority to whom case was remanded, to expeditiously decide the matter---Constitutional petition was dismissed accordingly.

Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 and Anwar

Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 distinguished.

Mst. Kaniz Fatima and 3 others v. Member (Revenue) Board of Revenue Punjab Lahore and 5 others PLD 1973 Lah. 495; Jafar Hussain v. Member Judicial-IV, Board of Revenue Punjab, Lahore and 3 others 2004 MLD 2024; Ghulam Rasul and others v. Khuda Dad and others PLD 1986 Quetta 130; Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251; Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and others PLD 1963 Lah. 461 and Siraj Din through L.Rs. and 2 others v. Akbar Ali and others 2005 SCMR 921 fol.

Muhammad Shahzad Shaukat for Petitioners.

A.K. Dogar for Respondents.

Date of hearing: 19th September, 2006.

2007 C L C 773

[Lahore]

Before Muhammad Jehangir Arshad, J

DAHA BROTHERS FLYING COACH SERVICE, KHANEWAL through Manager----Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, KHANEWAL through Tehsil Nazim, Khanewal and others----Respondents

Writ Petition No.5080 of 2006, decided on 12th December, 2006.

Punjab Local Government Ordinance (XIII of 2000---

----S. 54(1)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitution petition---Leave of premises by Tehsil Municipal Administration for Wagon Stand---Report of Tax Branch recommending cancellation of lease for default in payment of rent by lessee---Cancellation of lease by Tehsil Nazim on basis of such report without hearing lessee and without conscious application of mind and without giving sufficient reasons in terms of S.24-A of General Clauses Act, 1897---Validity---Tehsil Nazim had passed impugned order by merely dittoing the report of Clerk from Tax Branch, which except complaining about default against lessee had said nothing---Impugned act of Tehsil Nazim was nothing, but a colourable exercise of jurisdiction resulting in colossal loss to lessee, who had not only been dispossessed from leased premises in a most illegal and unauthorized manner, but entire superstructure raised thereon had been demolished without any valid justification---High Court declared impugned order and entire proceedings conducted thereunder to be illegal with direction to Tehsil Nazim to pay from his pocket Rs.50,000 as compensatory costs to lessee.

Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore PLD 1964 SC 829; Fazal Dad and 2 others v. Member, Board of Revenue (Colonies) West Pakistan and another PLD 1977 Lah. 264; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Almas Ahmad Fiaz v. Secretary, Government of the Punjab Housing and Physical Planning Development, Lahore and others 2006 SCMR 783; Cooperative Employees' Union v. Secretary Cooperative Punjab, Lahore PLD 2006 Lah. 437; Yousaf Baig v. Tehsildar, Tehsil Sara-e-Alamgir, District Gujrat and another 2005 CLC 1490; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020 and The Postmaster-General Northern Punjab and (AJ&K) Rawalpindi v. Muhammad Bashir 1998 SCMR 2386 ref.

Malik Muhammad Latif Khokhar for Petitioner.

Mubashar Hassan Gill, Assistant Advocate-General and Rana Muhammad Asif Saeed for Respondent T.M.A.

2007 C L C 778

[Election Tribunal, Punjab]

Before Syed Zahid Hussain, J

Sahibzada MUHAMMAD NAZEER SULTAN----Petitioner

Versus

SAIMA AKHTAR BHARWANA and others----Respondents

Election Petition No.121 of 2002, decided on 3rd November, 2006.

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

----Ss. 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 29, 30, 39, 107, 70(a) & 67(d)---Representation of the People (Conduct of Election) Rules, 1977, R.26---National and Provincial Assemblies (Elections) Ordinance (XVII of 1970), S.37---Manual of Instructions (Issued by Election Commission of Pakistan) Paras.108-114---Constitution of Pakistan (1973), -Art.218---Election petition---Holding of elections---Challenge to---Non-compliance of statutory provisions---Counting of invalid ballot papers in favour of returned candidate---Valid ballot papers not counted in favour of unsuccessful candidate---Effect---Powers of Election Tribunal to declare election as a whole void---Duties of Returning Officer---Scope---Petitioner, vide election petition sought that election for respondent (returned candidate) be declared null and void and also that petitioner be declared as elected from the concerned constituency---Petitioner alleged that declaration of respondent as returned candidate was result of illegal and corrupt practices and non-compliance of statutory provisions by statutory officials---Petitioner sought production, inspection and examination of ballot papers, particularly those declared invalid and rejected and it was pleaded that since difference of votes was of 467 only, therefore, rejection of a large number of votes cast in favour of petitioner and those invalid votes counted in favour of respondent might determine the fate of poll which, according to petitioner, was materially affected by reason of failure of Presiding Officer/Returning Officer in performing their duties in accordance with law---Petitioner contended that during course of counting, it was observed that numerous ballot papers did not bear official seal and signatures of Presiding Officer; that despite objection the said ballot papers were counted in favour of respondent; that during course of counting there were many ballot papers whereupon intention of voter was obvious as stamp on more than half of portion thereof was within space containing the name and symbol of petitioner but said ballot papers were treated as invalid by Presiding Officer---Petitioner further argued that provisions of S.39(3) & (5) of Representation of the People Act, 1976 read with R.26 of Representation of the People (Conduct of Election) Rules, 1977 cast a duty upon Returning Officer to consolidate result on examination of excluded ballot papers and consequences for non-performance of such duty had been mentioned in S.70 of the Act and that it was imperative for Returning Officer to have acted in accordance with S.39 of the Act which was a mandatory provision, non-compliance whereof rendered the election void---Respondent contended that there was inconsistency in the stance of petitioner to the extent that firstly recount for entire votes was claimed but later on the same was confined only to invalid and rejected votes; and that even if Returning Officer did not observe the provisions of S.39 of the Act, that itself did not vitiate the election---Validity---Under' S.7(4) of the Representation of the People Act, 1976, observance and compliance of statutory provisions for conducting an election was inviolable duty of Returning Officer---Sections 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 29 & 30 of Representation of the People Act, 1976, go to show the pivotal position, role and importance of Returning Officer in arranging, holding, conducting and ensuring election to be held in accordance with law--Paragraphs- 108-114 of Manual of Instructions issued by Election Commission of Pakistan provided guidelines for officials conducting elections, highlighting the duty of Returning Officer to examine ballot papers excluded from count by Presiding Officer before consolidation of result---Under Manual of Instructions, Returning Officer was duty bound and was expected to examine each ballot paper so excluded from count by Presiding Officer and find out whether it had rightly been so done---Returning Officer was also empowered to undertake recount---Section 70 of the Representation of the People Act, 1976 had provided grounds whereby Election Tribunal could declare election as a whole void--Failure to provide amended Electoral Rolls to Presiding Dancers of various polling stations in the constituency till afternoon time on polling day by election authorities, attracted provisions of S.70 of the Act for declaring the election as a whole void---Non-issuance of postal ballots was held to be a ground under S.70(a) to have vitiated process of election as a whole---Under S.39 of the Act and R.26 of the Rules intendment of legislature was clear that before consolidating results of count, Returning Officer had to examine ballot papers excluded from count by Presiding Officers and to reach his own conclusion as to correctness of exclusion or otherwise---Not only in subsection (3) of S.39 of the Act the phraseology "the Returning Officer shall examine the ballot papers excluded from the count by Presiding Officer" lent support to the said view but the provisions of S.70(a) fortified such conclusion as the consequence of failure "to comply with provisions of the Act or rules" were clearly mentioned by law itself i.e. election to be rendered void as a whole---Contentions of respondent that since initially petitioner had claimed relief that election of respondent be declared null and void and petitioner be declared as elected from the concerned constituency, therefore, he could not ask for election to be declared void as a whole, and that no foundation had been laid by petitioner either in pleadings or in evidence, had no merits---On the date for consolidation of results before Returning Officer the application of petitioner came before him that number of valid votes cast in favour of petitioner had illegally been rejected and excluded from his count, whereas large number of votes were wrongly included in favour of respondent but such request of petitioner was turned down by rejecting his application on the same day which was "failure" as envisaged by Clause (a) of S.70 of Representation of the People Act, 1976 on the part of Returning Officer whose non-performance of duty and non-compliance of the provisions of the Act had given rise to present litigation and who, despite pointation by petitioner, failed to perform his duty---Petitioner, in the election petition, had taken specific pleas/grounds that election had been conducted in an illegal and unlawful manner in violation of mandatory provisions of Representation of the People Act, 1976---Returning Officer had admitted before Election Tribunal that he did not inspect or examine ballot papers excluded from count by Presiding Officer and also that he had not opened or de-sealed any of packets/bags, which were produced by Presiding Officer before him---Returning Officer failed to. conduct election in accordance with provisions of the Act and, Rules as envisaged by S.7(4) of Representation of the People Act, 1976---Lapses and violations were so serious which took issue out of the purview and scope of pleadings of the parties---Non-compliance of statutory provisions of law and violations were so flagrant, visible and obvious that provisions of S.70(a) of Representation of the People Act, 1976 fully got attracted to the lis---Clause (d) of S.67 of Representation of the People Act, 1976, had empowered Election Tribunal to declare election as a whole to be void and declare fresh election in the constituency---Overall appreciation of pleadings of parties, material/evidence on record and consideration of legal provisions in the context of settled principles persuaded Tribunal to be "satisfied" in terms of S.70(a) of Representation of the People Act, 1976 that non-compliance and violation of statutory provisions had rendered election void as a whole---Petitioners' contentions being weighty and substantiated election in the concerned constituency was declared void as a whole and fresh election was ordered to be held in accordance with law.

Manual of Instructions for the guidance of District Returning Officer, Returning Officer and Assistant Returning Officers; Miller v. Lakewood Hsg Co., 1932, the 125 Ohio Court 152; Interpretation of Statutes by N.S. Bindra Ninth Edition, p.935; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Morgan and others v. Simpson and another (1974) 3 All ER 722 and Syed Qurban Ali Shah v. Anis Ahmed Khan and 10 others 1993 CLC 849 rel.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others 1999 SCMR 1; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Halsbury's Laws of England Fourth Edition Vol.15 paragraph 940; Km. Shradha Devi v. Krishna Chandra Pant and others AIR 1982 SC 1569; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Hukam Singh v. Banwari Lal Bipra and others AIR 1965 All. 552; Syed Qurban Ali Shah v. Anis Ahmed Khan and 10 others 1993 CLC 849; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Jan Muhammad v. Collector Jacobabad and others PLD 1963 (W.P.) Kar. 433; Morgan and others v. Simpson and another (1974) 3 All ER 722; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Masood Textile Mills Ltd. through Ch. Muhammad Amin Director v. Ihsan-ul-Haq, Commissioner of Income-tax Companies Zone, Faisalabad and 6 others 2003 PTD 2653 and Messrs R.C.D. Ball Bearing Limited v. Sindh Employees Social Security Institution, Karachi PLD 1991 SC 308 ref.

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

----Ss. 33, 34, 35, 36, 38, 40, 39, 42, 46(1)(2), 52 & 70---Representation of the People (Conduct of Election) Rules, 1977, R.26, Form XVI---Constitution of Pakistan (1973), Art.225---Counting of ballot papers---Proceedings at close of poll---Procedure to be followed by Presiding Officer and Returning Officer---Duties of Presiding Officer and Returning Officer---Powers of Election Tribunal---Scope---Representation of the People Act, 1976 laid down a meticulous procedure and mechanism for undertaking and completing the count---On completion of count, Presiding Officer was supposed to send bags, the statement of count and ballot paper account prepared by him to Returning Officer together with all records---Before the consolidation of result took place, Returning Officer was expected to give notice to candidates and their election agents for such purpose and in their presence he was supposed to examine ballot papers excluded from the count by Presiding Officer---Rule 26 of Representation of the People (Conduct of Election) Rules, 1977, also empowered Presiding Officer to scrutinize the ballot papers meticulously and prepare and consolidate the . result in Form XVI; on completion of count, he was required to reseal bags as per S.40 of Representation of the People Act, 1976 and then required to intimate the result of the count to Election Commission for declaration of result as envisaged by S.42 of the Act---Scheme, intent and purpose of law was manifestly clear from Representation of the People Act, 1976 that Returning Officer held a vital position in conduct and holding of election in just and fair manner in accordance with law---Returning Officer had power to recount ballot papers under S.39(6) of the Act and Election Tribunal could order the opening of packets, production of records and inspection of counted ballot papers under S.46 of the Act---Returning Officer, in case of an allegation of misconduct, could undertake recount and Election Tribunal could order opening of packets, examination and inspection of ballot papers in order to find out whether statutory provisions were duly observed by statutory functionaries---Election Tribunal, while seized of election petition, was vested with power to order recount, which power, however, was to be exercised on the basis of some material prima facie establishing illegalities and irregularities in the count of polled votes---Party was not entitled to claim recount as a matter of course and it was to be shown that there had been improper reception, refusal or rejection of votes---Such power of Tribunal though quite extensive, yet it was to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the count.?

(c) Interpretation of statutes---

----Question as to whether a statutory provision/requirement was mandatory or directory, depended on its effect---If no substantial right depended on it and no injury could result from ignoring it, and purpose of legislature could be accomplished in a manner other than that prescribed and substantially the same results obtained, then the status (of provision) was generally to be regarded as-directory; but if not, it was to be mandatory---No rule of universal application existed for determination of question whether a provision in a statute was imperative or merely directory, the question in each case being one to be decided on a consideration of scope, object and nature of statutory provision---In determining whether provision of a statute was mandatory or directory, the end sought to be attained by the provision was always important to be considered and if the end could not be effectuated by holding the provision to be directory, it must, if it was consistent with language, he held to be mandatory---Use of expression "shall" was not considered decisive and question whether provision was mandatory or directory depended upon the intent of legislature and not upon the language in which the intent was clothed---Generally rules of procedure were to be regarded as mandatory and non-compliance with such a rule whether by a party or by Court, rendered the result of proceedings a nullity---Law provided certain manner for doing certain act and such provision was not directory but mandatory, manner prescribed by law was to be adhered to, deviation from course prescribed thereof, was to vitiate the action taken---Right to cast any kind of vote was, where given by statute, the duty to comply with the conditions laid down, was usually mandatory---Failure to comply, except in an immaterial respect, was to cause the vote to be void---Statute which was negative or prohibitory, even though it provided no penalty for non-compliance, or which contained peremptory and exclusive terms showed a legislative intent to make the provision mandatory---Court while construing a particular provision of law was obliged to get at and ascertain the legislative intent irrespective of phraseology used.?

Manual of Instructions for the guidance of District Returning Officers, Returning Officers and Assistant Returning Officers; Miller v. Lakewood Hsg. Co. 1932, the 125 Ohio Court 152; Interpretation of Statutes by N.S. Bindra Ninth Edition p.935; Understanding Statutes Canons of Construction by S.M. Zafar, 2nd Edition p.220; Francis Bennion in Statutory Interpretation 2nd Edition p.28 and Corpus Juris Secundum ref.

(d) National and Provincial Assemblies (Elections) Ordinance (XVII of 1970)---

----S. 37---Returning Officer under S.37 of the Ordinance, had to prepare a consolidated result of count and while doing so he had been authorized to include votes cast in favour of a contesting candidate which according to him were wrongly excluded by Presiding Officer, or vice versa---Under subsection (4) of S.37, National and Provincial Assemblies (Elections) Ordinance, 1970 Presiding Officer was required to show separately the ballot papers rejected by him---On declaration of result, Returning Officer had to submit to the Election Commission a report of election in prescribed form together with a copy of consolidated statement.?

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

(e) National and Provincial Assemblies (Elections) Rules, 1970---

----R. 25---Held, it was inconceivable that having regard to extraordinary importance of each single vote, the law-giver was to have, in utter disregard of this paramount consideration, either deprived the Election Tribunal of foundational jurisdiction of going into validity of votes cast in favour of a candidate, thus, investing the Returning Officer with unchallengeable authority to finally determine the question of validity or invalidity of votes so as to make his findings completely' sacrosanct or leave the matter to his discretion whose arbitrary exercise could not be interfered with.?

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

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

----S. 52---Election petition---Prayer for declaration as returned candidate---Subsequent plea for declaring election void as a whole---Effect and scope---Petitioner had prayed for his declaration as returned candidate and declaration of election void as a whole---Petitioner was not asking for more than what he had prayed-Petitioner was actually claiming lesser relief to which no legitimate exception could be taken---Election Tribunal or Court itself could alter the relief and declare election void as a whole and fresh election could be ordered.?

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 rel.

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

----S. 52---Election petition---Indulgence of Court sought on ground of being female candidate---Effect---Respondent while contesting election petition pointed out that she was the sole lady from Province of Punjab in National Assembly who had acquired that status after tough campaign and contest in election---Validity---Such aspect could have no relevance while deciding a lis between two contesting parties, as for due administration of justice and upholding the rule of law no such consideration could weigh or prevail.?

(h) Election--

----Right to cast any kind of vote was, where given by statute, the duty to comply with the conditions laid down, was usually mandatory---Failure to comply, except in an immaterial respect, was to cause the vote to be void.?

Asim Hafeez for Petitioner.

Imtiaz Rasheed Siddiqui for Respondent No.1 with Imran Anjum Alvi for Respondent.

Dates of hearing: 27th October, and 2nd November, 2006.

2007 C L C 811

[Lahore]

Before Mian Hamid Farooq, J

SAJJAD AHMED and another----Petitioners

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT/MEMBER BOARD OF REVENUE and 2 others----Respondents

Writ Petition No.1664 of 2006, heard on 6th December, 2006.

(a) Punjab Land Acquisition Rules, 1983---

----R. 14---Return of acquired land to owners---Government's right to claim refund of amount from owners at prevailing market price--Validity-Government had discretion to return or not the acquired land to owners, which was unutilized or abandoned---Government once exercised discretion to return land, then land would be returned to owners or their legal heirs on refunding amount paid as compensation at the time of acquisition less than 15% granted for compulsory acquisition-Government once decided to return land would have no further discretion to impose any condition and claim market price of land in lieu of its return---Any such condition, if imposed, would be unlawful---Principles.

Yaqoob Khan v. Government of Punjab and others 1986 SCMR 1224; Province of Punjab through Collector Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455; Bashir Ahmad Akhgar and another v. Collector Land Acquisition, Sadiqabad and 2 others 1992 MLD 2364; and Rana Abdul Qadir and 4 others v. Government of Pakistan Ministry of Defence, Defence Production Division, through Secretary Defence, Rawalpindi and 6 others 2005 CLC 1 distinguished.

(b) Approbate and reprobate---

----Party cannot be allowed to approbate and reprobate in the same breath, rather he would be bound by his previous stance.

Muhammad Tufail Alvi for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. along with Shafiq Ahmed, Deputy District Officer (General), Multan.

Date of hearing: 6th December, 2006.

2007 C L C 819

[Lahore]

Before Mian Saqib Nisar, J

HUMAYUN NASEER CHEEMA and 3 others----Appellants

Versus

MUHAMMAD SAEED AKHTAR and others----Respondents

Regular Second Appeal No.21 of 2001, heard on 10th November, 2006.

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

----S. 13---Notice of Talb-i-Ishhad, service of---Principles---Documents and material to which, the reference had been made by the plaintiff/pre­emptor and which could not be controverted by the vendee had established that the notice was given at the correct address---Plaintiff/pre-emptor, under S.13, Punjab Pre-emption Act, 1991 was only obliged to send a notice in the prescribed manner to the vendee, at his correct address and it was a matter of common knowledge that' acknowledgement due seldom reached the sender, therefore, if the notice was sent on the correct address of vendee by following the requirements of law, it shall be presumed to have been delivered to him---Plaintiff was under no obligation to examine the postman to prove that the notice of Talb-i-Ishhad had also been served upon the vendee---Plaintiff, in any case could not be non-suited on this account.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts.129(g) & 71---Civil Procedure Code (V of 1908), O.X---Making of Talb-i-Muwathibat by pre-emptor---Non-appearance of. three out of four pre-emptors---Presumption---Failure of pre-emptors to mention the date, time and the venue of making the Talbs in the plaint---Effect---Requirement of personal appearance by each of the pre-einptors---Principles---Making of Talbs is a special and personal act of the pre-emptor, which though can be delegated, but the right of pre-emption is dependent upon the valid making of Talbs---If there are two or more persons, who claim the right of pre-emption, each one of them, should make the demand unless one of them has also been authorized by the others to do so, and he makes the demand on their behalf also---Requirement of personal appearance shall only be. dispensed with, if the pre-emptor or the agent as the case may be, is prevented to appear for any cause beyond his control, which has to be established on the record---Suit of the plaintiffs/pre-emptors, except the one who appeared as witness, is liable to be dismissed for having failed to prove the Talb-i-Muwathibat on account of their non-appearance as the witnesses, and whereas qua all the plaintiffs, for the reason that time and venue of the Talb-i-Muwathibat as was required to be mentioned in the plaint had not been specified.

There is no specific provision either in the C.P.C. or the Qanun­e-Shahadat, 1984, requiring such personal appearance, except where the Court needs it under Order X, C.P.C. But at the same time, where a "fact" is required to be proved through oral evidence, such evidence must be direct and of the primary source. Article 71 of the Qanun-e-Shahadat, 1984, provides the instances of the direct oral evidence regarding the proof of a "fact" and it may not be misconstrued that the statements of witnesses do not fall within the purview of the said Article.

However, the foundation of such direct evidence in the case about the proof of the "fact" of Talb-i-Muwathibat, is the "person", who has made the Talb; it is he, who should appear enabling himself for the cross-examination of the other side. If the Talb has been made by the pre-emptor himself, he should come forward to be a witness and if it is by his authorized agent, the agent should appear and prove the fact, provided that if the pre-emptor/agent cannot personally appear for the reason beyond his control, same must be established on the record. The cardinal rule of the law of evidence is that the best available evidence should be brought before the Court. Under Islamic law also a person shall not be entitled to the right of pre-emption unless he has made Talb­i-Muwathibat and Talb-i-Ishhad. It is not necessary that such Talbs should be made by the pre-emptor in person. It is also sufficient, if it is made by the manager or a person previously authorized by the pre­emptor-to make the demand. A demand made by a father or a brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he has been previously authorized to make the demand. If there are two or more persons, who claim the right of pre-emption, each one of them, should make the demand unless one of them has also been authorized by the others to do so, and he makes the demand on their behalf also. Making of the Talbs is a special and a personal act of the pre-emptor, which though can be delegated, but the right of pre-emption is dependent upon the validly making of Talbs. The first Talb has to be made in a specific and particular manner as provided above and also to be proved in the same way e.g. if-the demand has not been made by the pre-emptor himself, rather by his previously authorized agent, it is such agent, who shall appear in person in proof of the Talb-i-Muwathibat. It should not be that the pre-emptor appears and not the agent because the statement of the pre-emptor in such a case, shall be hit by the rule of direct or the hearsay evidence. This shall also be true for the position vice versa. However, the requirement of the above personal appearance shall only be dispensed with, if the pre-emptor or the agent, as the case may be, is prevented to appear for any cause beyond his control which has to be established on the record.

In the present case, there are four pre-emptors/plaintiffs and due to their non-appearance, the three plaintiffs have failed to discharge the onus, if they have made Talb-i-Muwathibat, the statements of witnesses can only be used as a corroborative piece of evidence, but where the foundational evidence has not been led by them, the corroborative evidence has no much value.

Viewing the proposition from another legal angle, regarding the application of Article 129(g), Qanun-e-Shahadat, 1984 which enables the court to draw a presumption in the eventuality of withholding the best evidence; the non-appearance of a party as his own witness, ordinarily would discredit his case, but if there is other evidence, which absolutely proves his case, the non-appearance shall not be fatal and no adverse inference should be drawn against him. However, where the "fact" is in the personal knowledge of a party himself and he is the primary source to prove the "fact", if such party, without any sufficient cause, abstains from appearance in the Court, the requisite inference shall be drawn. However, it depends upon the facts and circumstances of each case and is not an inflexible rule. Considering the present case on the touchstone of Article 129(g) of the Qanun-e-Shahadat, 1984, it may be mentioned that according to the case of the plaintiffs, as set out in the plaint, all of them were present when they learnt about the sale and made Talb-i-Muwathibat; as per the statement of witness and the informer, when the sale was disclosed, all the plaintiffs simultaneously asserted the Talb-i-Muwathibat. All these facts were within the personal knowledge of the plaintiffs, therefore, they should have appeared personally to prove these, so that the defendants could have the opportunity to cross-examine them and to extract the inconsistency in these statements. Thus on account of the failure on the part of the three plaintiffs, the due inference of withholding the best evidence, should be drawn against them.

In the light of above, the suit of the plaintiffs, except the one who appeared as his witness, is liable to be dismissed for having failed to prove the Talb-i-Muwathibat on account of their non-appearance as the witnesses, and whereas qua all the plaintiffs, for the reasons that time and venue of the Talb-i-Muwathibat as was required to be mentioned in the plaint, has not been specified.

Mohammedan Law by D.F. Mulla 2006 section 236; Akbar Ali Khan v. Mukamil Shah and others 2005 SCMR 431; Abdul Hakeem v. Mst. Jannat Bibi 2005 SCMR 1228; Hakim Ali and others v. Ghulam Rasul and another 2004 YLR 1402; Muhammad Mansha v. Shamim Akhtar and 2 others 2004 YLR 1430; Akhtar Nawaz v. Muhammad Nazir and others 2005 YLR 77 and Muhammad Yousuf v. Muhammad Rafique and others PLD 2006 Lah. 39 fol.

Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

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

----Art. 129(g)---Presumption of existence of certain facts'---Withholding of best evidence---Non-appearance of a party as his own witness, ordinarily would discredit his case, but if there is other evidence, which absolutely proves his case, the non-appearance shall not be fatal and no adverse inference should be drawn against him---Where, however, thefact' is in the personal knowledge of a party himself and he is the primary source to prove the `fact', if such party, without any sufficient cause, abstains from appearance in the Court, the requisite inference shall be drawn which depends upon the facts and circumstances of each case and is not an inflexible rule.

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

----S. 13---Making of Talb-i-Muwathibat---Pre-emptor has to mention the date, time and the venue of making of Talbs in the plaint---Pre-emption suit is liable to be dismissed on failure of pre-emptor to follow such requirement.

Akbar Ali Khan v. Mukamil Shah and others 2005 SCMR 431; Abdul Hakeem v. Mst. Jannat Bibi 2005 SCMR 1228; Hakim Ali and others v. Ghulam Rasul and another 2004 YLR 1402; Muhammad Mansha v. Shamim Akhtar and 2 others 2004 YLR 1430; Akhtar Nawaz v. Muhammad Nazir and other 2005 YLR 77 and Muhammad Yousuf v. Muhammad Rafique and others PLD 2006 Lah. 39 fol.

Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Shahzad Shaukat for Appellants.

Syed Najam-ul-Hassan Kazmi for Respondents.

Date of hearing: 10th November, 2006.

2007 C L C 831

[Lahore]

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ

Col. JAVED IQBAL LODHI----Appellant

Versus

Lt.-Col. NADEEM AHMAR and another----Respondents

R.F.A. No.377 of 2004, heard on 12th December, 2006.

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

----S. 22---Contract Act (IX of 1872), S.2(b)---Civil Procedure Code (V of 1908), Ss.148, 151 & O.VII, R.11---Suit for specific performance of agreement to sell property---Defendant, during trial, had twice made an offer that if the plaintiff made the deposit of balance consideration he had no objection for the decree of the, suit---Such offer was firstly restricted for a period of one week only; plaintiff did not accept the offer or made the deposit and took up the plea that deposit could not be made because defendant had failed to discharge his liability regarding outstanding dues of the Housing Authority---Such offer was again repeated by the defendant and Court clearly directed in its order that in case the plaintiff by the next date failed to deposit the amount, his plaint shall be rejected---Such offer too was not accepted by the plaintiff and he did not comply with the order 'of the Court and moved an application seeking review of the order of the Court---Defendant by that time had moved an application for the dismissal of the plaintiff's suit for his failure to make the deposit---On both the occasions, the offers were time bound/ restricted; these were never made for an indefinite period of time and were never accepted by the plaintiff---Offers thus automatically stood withdrawn on the expiry of the time given by the defendant and in any case, the offer was never perfected through acceptance by the plaintiff, in terms of S.2(b) of the Contract Act, 1872 and therefore, never culminated into a binding contract between the parties, besides there was no offer when the defendant moved an application under S.151, C.P.C. for enforcing the consequences of the default on the part of the plaintiff in making the deposit within the time given in the second offer and in terms of the order of the Court---Defendant, thereafter had never given any consent for the extension/enlargement of the time, rather throughout had been insisting for the dismissal of the suit on account of plaintiff's failure to make deposit within time, still the Court on its own, had granted the extension to the plaintiff by exercising its powers under 5.148 or 151, C.P.C. and directed the plaintiff to deposit the arrears of consideration in the Court by the next date of hearing, failing which, the suit would be considered to have been dismissed---Plaintiff deposited the amount before the said date without raising any objection as earlier raised by him---Court dismissed the review application of the plaintiff and decreed the suit---Where one party had made an offer to the other for performance of an `act' within a particular period of time, and such act was not performed, the Court, without the consent of the party, making an offer, could not enlarge time while exercising its powers under S.148 or 151, C.P.C. and it was only with the consent of party offering, that time could be further granted---Validity---Present case was not covered by O.XII, R.6, C.P.C. or O.XV, R.1, C.P.C. and the plaintiff had never asked the Court to pass the decree in terms of the offer of the defendant, rather joined the issue about the liability qua the Housing Authority's dues---Court, in view of scheme of C.P.C. and in circumstances, should have permitted the defendant to exercise his right of contesting the matter by filing the written statement, rather than decreeing the suit of the plaintiff in the way it was done.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Mubarak Ahmad and 2 others v. Hassan Muhammad through Legal Heirs 2001 SCMR 1868; Assistant Commissioner and Land Acquisition Collector Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Ch. Javed Iqbal v. Mst. Zainab Bibi and 8 others 2005 CLC 197; Mehmood Arshad v. Ali Malik and 3 others 2005 YLR 2866; Syed Ahmad Shah and 2 others v. Muhammad Yar and 6 others 1974 SCMR 191; Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCMR 179; Malik Allah Dad and others v. Yasin and another 1990 SCMR 1638; Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105; Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005; Ghulam Murtaza and others v. Ghulam Jillani and others 2000 YLR 1798; Khan Muhammad v. Barkat Ali and another 1984 CLC 582; Saat Malook v. Rozi Khan 1979 SCMR 593; Sirajud Din Banjmin through his legal heirs and another v. Haji Abdul Latif and 4 others 1983 SCMR 836; Mushtaq and others v. Rabian Bibi and others 1985 SCMR 1719 and Synthetic Chemicals Company Ltd. (Judicial Miscellaneous No.40 of 1979) PLD 1988 Kar. 429 ref.

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

----Preamble---Scheme and scope of C.P.C., which is quite an exhaustive law, providing a comprehensive mechanism for the disposal of the lis from the time of its commencement, till its conclusion.

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

----S. 2(b)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell property---Offers by one party were time bound/restricted and were never made for an indefinite period of time and were never accepted by the other party---Offers thus, automatically stood withdrawn on the expiry of the time given by the party and in any case, the offer was never perfected through acceptance by the party, in terms of S.2(b), Contract Act, 1872 and therefore, it never culminated into a binding contract between the parties.

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

----S. 148---Enlargement of time---Powers of Court---Scope and extent---Time fixed by the Court with the consent of parties cannot be extended---Principles.

From the clear language of' the section 148, C.P.C. there is no room for ambiguity or doubt that the Court has the power to extend the time only "for the doing of any act prescribed or allowed by the Code". And if the act is not prescribed or allowed by the Code, the provisions of section 148, C.P.C. shall not be applicable. For the purposes of explaining, it may be mentioned that under section 149, C.P.C. for the making up of the deficiency in the payment of the court-fee, the Court has the discretion under section 148, C.P.C. to extend the time originally fixed for that purpose; likewise, the time fixed in terms of Order VI, Rule 18, C.P.C. for the purpose of filing the amended pleadings can be extended under the said section. There are some other instances where the Court may allow extension of time under section 148, for doing of the acts, which all are "prescribed or allowed by the Code"; such as:--

Order VIII, rule 9, Order IX, rule 9, Order XI, rules 9 and 17; Order XVII, rule 4, Order XVI rule 2, Order XXI rules 17 and 33, Order XXV, rule 1, Order XLI, rules 10, 19, 21, 22, 26, Order XLIII, rule 3 and Order XLVII, rule 7.

In all the above cases, even if the time originally fixed by the Court has elapsed, the Court obviously by adhering to the rules for the exercise of the discretion, may enlarge the time and there can be no cavil or the grouse about the authority of the Court in this behalf.

But if the time for the doing of any "act", which is not provided by the Code and has been fixed with the consent of the parties during the course of the trial or in the nature of the consent decree, such time for the performance of the "act" cannot be considered to be the one "prescribed or allowed by the Code" and, therefore, the Court shall have no power to extend the same under section 148, C.P.C. Even this cannot be done by invoking the provisions of section 151, C.P.C.; this shall also be true for the time which has been fixed by the Code or any other law for the performance of an act within a specified period of time. Because, the Court while exercising its discretionary power under section 148 has no authority and jurisdiction at all to override the command of the law.

The time fixed by the Court with the consent of the parties cannot be extended.

Where one party has made an offer to the other for the performance of an "act" within a particular period of time, and such act is not performed, the Court without the consent of the party, making an offer, cannot enlarge the time while exercising its power under section 148 or section 151 of the Civil Procedure Code. It is only with the consent of the party offering that the time can be further granted.

Saat Malook v. Rozi Khan 1979 SCMR 593; Sirajud Din Banjmin through his legal heirs and another v. Haji Abdul Latif and 4 others 1983 SCMR 836; Mushtaq and others v. Rabian Bibi and others 1985 SCMR 1719 and Synthetic Chemicals Company Ltd. (Judicial Miscellaneous No.40 of 1979) PLD 1988 Kar. 429 ref.

Ahmad Awais for Appellant.

Mian Zafar Iqbal Kalanauri for Respondents.

Date of hearing: 12th December, 2006.

2007 C L C 860

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameedur Rahman, JJ

Hafiz Mian MUHAMMAD RIAZ and another----Appellants

Versus

ELECTION TRIBUNAL FOR UNION COUNCIL NO.54 Usman Korea Tehsil and District Muzaffargarh and 6 others----Respondents

Intra-Court Appeal No.58 of 2006 in Writ Petition No.2047 of 2006, decided on 1st February, 2007.

Punjab Local Government Elections Rules, 2005---

----R. 65---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Appellants who filed Election petition challenging election of respondents, filed application stating therein that they would confine their claim only to the extent of re-counting of votes and would not press other grounds taken in their election petition---Election Tribunal having allowed said application of appellant, respondents had filed constitutional petition challenging said decision of Election Tribunal---High Court allowing said constitutional petition filed by respondents, directed that election petition would be decided by Election Tribunal in accordance with law---Appellants had filed Intra-Court appeal against said decision of High Court, contending that direction against interim order passed by Election Tribunal for recounting of votes, was incompetent and deserved to be dismissed on that ground---Validity---Held, it was not the case of respondents that order passed by Election Tribunal was either without jurisdiction or suffered from lack of jurisdiction or was passed in excess of jurisdiction---Said order was passed by the Election Tribunal with jurisdiction---Impugned order being interlocutory, same could not be challenged in constitutional petition, which deserved to be dismissed on that short ground---Impugned order was set aside in Intra-Court appeal and constitutional, petition by respondents stood dismissed on the ground of its incompetency.

Sheikh Iftikhar-ud-Din and another v. District Judge Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523; Sheila B. Charles v. Election Tribunal and another 1997 SCMR 941; Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867; Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699; Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West-1 and 12 others 1996 SCMR 605; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Liaquat Ali and another v. Election Tribunal, Sialkot and others 2003 SCMR 1313 and Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 2000 MLD 746 rel.

Sardar Manzoor Ahmed Khan for Appellants.

Muhammad Arif Alvi for Respondents Nos.4 and 5.

2007 C L C 872

[Lahore]

Before Syed Zahid Hussain, J

Syed IKHLAQUE HUSSAIN SHAH----Appellant

Versus

Sh. MUHAMMAD BASHIR and others----Respondents

Regular Second Appeal No.8 of 1983, decided on 23rd February, 2007.

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

----S. 9---Act of executive authority or Judicial Tribunal---Validity of such act, if alleged to be without jurisdiction, illegal and not binding on a party could be determined by civil court---Principles.

By virtue of section 9 of the Code of Civil Procedure, 1908, the civil courts are courts of general jurisdiction to try all suit in civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The question, whether the act of an executive authority or Judicial Tribunal is without jurisdiction, illegal and not binding on a party, being a matter of civil nature, is always to be decided by the civil court, except to the extent to which such jurisdiction may have been taken away.

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

----S. 25---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.25---Civil Procedure Code (V of 1908), S.9---Vires of orders or actions of Settlement Authorities under challenge before civil court---Bar of jurisdiction as contained in S.25 of Displaced Persons (Land Settlement) Act, 1958 and Displaced Persons (Compensation and Rehabilitation) Act, 1958 or finality attributed to such actions or orders would not operate---Principles.

If the very vires of orders and actions of the Settlement Authorities are in question, then the bar of jurisdiction as contained in section 25 of Displaced Persons (Land Settlement) Act, 1959 and Displaced Persons (Compensation and Rehabilitation) Act, 1958 or the finality attributed to the said actions or orders, do not operate. Where there are conflicting orders passed by the Settlement Authorities one on the land side and other on the urban side, there has to be a forum to resolve such controversy.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 4 & 25---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.4 & 25---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.9---Suit for declaration---. Evacuee "Banjir Qadim" land---Allotment of such land in plaintiff's favour in satisfaction of verified claim---Auction of such land as urban property in defendant's favour without cancelling its earlier allotment in plaintiff's favour---Dismissal of plaintiff revision petition by Settlement Commissioner as incompetent as evacuee laws had been repealed---Suit by plaintiff to declare such auction to be illegal, without jurisdiction and void---Maintainability---Allotment once made, unless cancelled, would, prima facie, hold the ground---Such conflict between orders of Settlement Authorities on land side and urban side would be resolved by civil court---Such suit could not be dismissed as non-maintainable on ground of lack of jurisdiction.

Abdul Saeed and others v. Ch. Muhammad Latif Khan and others 1983 CLC 2491; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others 1994 SCMR 150;. Sardar Muhammad v. Barkat Ali 1986 SCMR 770; Sh. Fazal-ur-Rehman v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others_ 1987 SCMR 1036 and Zafarul Hassan and others v. Muhammad Kalim and others 1993 SCMR 2028 ref.

Abdul Saeed and others v. Ch. Muhammad Latif Khan and others 1983 CLC 2491; Sh. Barkat Hussain v. Additional Settlement Commissioner and 16 others 1985 SCMR 446; Dalloomal through his L.Rs. v. Nasir Hussain and others 1989 SCMR 18 and Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671 rel.

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 4---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.4---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3---Evacuee property, allotment of---Validity---Such allotment once made, unless cancelled, would prima facie hold the ground.

Abdul Saeed and others v. Ch. Muhammad Latif Khan and others 1983 CLC 2491 and Sh. Barkat Hussain v. Additional Settlement Commissioner and 16 others 1985 SCMR 446 rel.

Sh. Zameer Hussain for Appellant.

Abdul Rasheed Awan for Respondents.

Date of hearing: 23rd February, 2007.

2007 C L C 898

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rahman, JJ

PAKISTAN RAILWAY through Chairman, Pakistan Railways, Islamabad and another----Appellants

Versus

MUHAMMAD YASEEN----Respondent

Intra-Court Appeal No.2 of 2007 in Writ Petition No.6534 of 2006 and Intra-Court Appeal No.3 of 2007 in Writ Petition No.6532 of 2006, decided on 7th February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Termination of vending licence---Vending licence of petitioners for installation of stall at Railway Station, having been terminated by authorities, petitioners filed, constitutional petition against such termination---High Court accepting constitutional petitions set aside orders terminating licences---Termination orders were challenged on the ground that before terminating vending licence, petitioners neither served any show-cause notice upon them nor obtained any explanation and the whole proceedings were conducted in an ex parte manner and in violation of principle of natural justice---Petitioners had also urged that the ground on which their licences had been terminated was not a part of the conditions of vending Licence---Authorities, no doubt could under clause of Vending Licence cancel licences, but authorities were obliged at least to issue notices to petitioners pointing out their unsatisfactory working or breach of any clause of agreement, but authorities had straightaway terminated licences, which was against principles of natural justice---Order passed by High Court in constitutional petitions, could not be upset in Intra-Court Appeal as same had been passed keeping in view the principles of settled law that any proposed action must be taken in a lawful manner and not arbitrarily---Principles of justice demanded that proper notice should have been served before taking any adverse action against a party---Impugned order, in fact had shown a beacon/light for all concerned not to proceed or act in an arbitrary manner---Impugned order having been passed after due appreciation of law and facts, same could not be interfered with in intra-court appeal.

Federation of Pakistan v. Public-at-Large PLD 1987 SC 304 rel.

Rao Muhammad Iqbal for Appellant.

2007 C L C 904

[Lahore]

Before Mian Hamid Farooq, J

KHUDA BAKHSH----Petitioner

Versus

MUHAMMAD RAMZAN----Respondent

Civil Revision No.56 of 2007, decided on 6th February, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & O.XLI, R.27-Suit for recovery of amount on basis of pro note---Application for production of additional evidence---Dismissal of---Trial Court framed issues and both parties produced their respective evidence---Plaintiff thereafter filed application seeking permission to produce three photographs of the parties, in additional evidence pleading that said photographs would show that defendant had received suit amount---Trial Court dismissed the application---Plaintiff had claimed that photographs sought to be produced in additional evidence being public documents could be produced in additional evidence in the interest of justice---Validity---Plaintiff neither mentioned about said photographs in his pleadings nor entered the same in the list of reliance---Unsuccessful party was not to be granted opportunity to fill up weaker parts of its case---Plea of plaintiff that said photographs could not be produced as those were stolen, could not be believed---If same were lost, plaintiff, at least, could have mentioned and relied upon in the list of-reliance and also could get fresh photographs from the negatives---Plaintiff could not demonstrate that photographs in question were part of public record---Could not be conceived that private photographs could be considered as a part of public record---Application filed by plaintiff for production of additional evidence, was rightly dismissed by the Trial Court in circumstances.

Iqbal Ahmad and others N. Khurshid Ahmad and others 1987 SCMR 744; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana PLD 2003 SC 849; Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 and Shtamand and others v. Zahir Shah and others 2005 SCMR 348 rel.

Mian Anwar Mubeen Ansari for Petitioner.

2007 C L C 937

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD ZAFAR YAB----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE----Respondent

Writ Petition No.6019 of 2004, decided on 28th February, 2007.

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

----Ss. 5, Sched & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Estoppel, principle of---Applicability---Suit for recovery of dowry articles---During trial of suit for dissolution of marriage filed by respondent against petitioner, petitioner made an offer that if respondent agreed not to file any suit for recovery of dowry articles against him, he would be ready to give Talaq to her---Said offer having been accepted by respondent, the Trial Court decreed suit of respondent on basis of said compromise---Respondent, thereafter filed a suit against petitioner for recovery of dowry articles, and Family Court vide judgment, decreed suit in respect of all the articles of dowry mentioned in the plaint, except golden ornaments---Both petitioner and respondent filed appeal against judgment of the Trial Court---Appellate Court consolidated both suits, accepted appeal filed by respondent and dismissed appeal filed by the petitioner---Validity---Petitioner had challenged impugned judgments and decrees of both the courts below---Statements of parties before the Family Court on basis of which suit for dissolution of marriage was decreed on basis of Khula, could not be deemed to be a contract or agreement, but it was a simple undertaking given by respondent in a competent court of law and thereafter her suit for dissolution of marriage was decreed---Respondent had reaped the benefit of undertaking/compromise/statement in the shape of obtaining a decree for dissolution of her marriage---Principle of estoppel, in circumstances would be fully attracted in the case---Respondent first made statement and reaped the benefit of the statement and after that instituted the suit for recovery of dowry articles violating her undertaking in a court of law, could not be justified---High Court, in exercise of its constitutional jurisdiction, set aside impugned judgments and decrees of the courts below---Suit for recovery of dowry articles, filed by respondent was not maintainable in view of her statement and decree of dissolution of marriage passed on basis of compromise of parties--Constitutional petition was accepted.

Malik Muhammad Usman Bhatti for Petitioner.

Rana Muhammad Shakeel for Respondent No.3.

2007 C L C 952

[Lahore]

Before Hasnat Ahmad Khan, J

MUNIR AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LODHRAN and 3 others----Respondents

Writ Petition No.294 of 2007, decided on 31st January, 2007.

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

---Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower---Wife in her suit for recovery of dower claimed that at the time of marriage, husband had agreed to give her four Kanals of land as dower---Husband in his written statement did not deny execution of said agreement in favour of wife, but had contended that she had relinquished her claim of dower through an agreement---Family Court after appreciating evidence on record, held that wife had proved her case against husband through documentary as well as oral evidence, while husband had failed to produce alleged agreement whereby she had allegedly waived her right of dower---Family Court, however came to the conclusion that as husband was not the owner of land in question, suit filed by wife could not be decreed to that extent---Family Court after getting said land evaluated through Patwari, decreed suit to the extent of Rs.1,00,000 in favour of wife---Said judgment and decree having been maintained by the Appellate Court, husband had filed constitutional petition against said concurrent judgments and decrees of the two courts below---Husband could not point out any misreading or non-reading of evidence on basis of which concurrent findings of two courts could be disturbed---Both impugned judgments had been passed on the basis of correct appreciation of evidence and neither any illegality had been pointed out in the said judgments nor any jurisdictional error had been referred to---Findings of fact of courts below could not be interfered with/upset by the High Court under its constitutional jurisdiction which could only be exercised if the courts below exceeded its jurisdiction or acted without its jurisdiction---High Court in its extraordinary jurisdiction could neither substitute findings of facts recorded by Judge Family Court nor could give its opinion regarding quality or adequacy of the evidence---Assessment and appraisal of evidence was the function of Family Court which was vested with exclusive jurisdiction in that regard---Constitutional, petition being without any merit, was dismissed, in circumstances.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Parveen Umar and others v. Sardar Hussain and others 2003 YLR 3097; Muhammad Ashiq v. Additional District Judge, Okara 2003 CLC 400 and Aqil Zaman v. Mst. Azad Bibi and others 2003 CLC 702 rel.

Athar Rehman Khan for Petitioner.

2007 C L C 955

[Lahore]

Before Syed Zahid Hussain, J

FAHEEM AHMAD----Appellant

Versus

MUHAMMAD SIDDIQUE----Respondent

First Appeal from Order No.173 of 2006, decided on 19th February, 2007.

Cantonments Rent Restriction Act (XI of 1963)--

----S. 17---Bona fide personal need of landlord---Sole dependency of the landlord was the business which he was running in the rented shop---When landlord himself is running his business at some rented premises he has every right to get the premises vacated for his own use and occupation.

Syed Muzammil Ullah Shah for Appellant.

Asif Taufeeque for Respondent.

Date of hearing: 19th February, 2007.

2007 C L C 957

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHID ASLAM and another----Petitioners

Versus

ELECTION TRIBUNAL WAZIRABAD TOWN AT HAFIZABAD/ADDITIONAL DISTRICT JUDGE and 7 others----Respondents

Writ Petition No.1555 of 2007, decided on 21st February, 2007.

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

---S. 152(1)(e)---Punjab Local Government Elections Rules, 2005, Rr.65, 76 & 77---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Academic qualification of candidate---Allegation against petitioner to have manoeuvred to obtain matriculation certificate of his namesake and used same while filing nomination papers---Evidence on record showed that both names had same parentage, but their dates of birth, schools and roll numbers differed from each other---Petitioner had failed in matriculation examination---Election Tribunal disqualified petition owing to bogus matriculation certificate and declared respondents as returned candidates---Validity---Election Tribunal was in a position to pass impugned order after recording evidence of parties, which exercise could not be undertaken in constitutional jurisdiction---High Court declined to interfere with impugned order and dismissed constitutional petition.

Muhammad Shahzad Shaukat for Petitioners.

2007 C L C 960

[Lahore]

Before Syed Asghar Haider, J

HAJI MUHAMMAD ----Petitioner

Versus

ALLAH YAR and another----Respondents

Civil Revision No.D-975 of 1996, decided on 28th June, 2006.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art.114---Pre-emption suit---Estoppel and waiver---Agreement of sale relating to suit-land contained signatures of pre-emptor and showed receipt of Rs.2,000 by him as commission for giving undertaking not to file suit for pre-emption pre-emptor admitted his signatures on such agreement---Validity---pre­emptor's knowledge about suit sale was clearly established by accepting his signatures on sale agreement---pre-emptor was instrumental in suit sale and had acted as Agent and received consideration of Rs.2,000 for his services---Such conduct of pre-emptor would tantamount to estoppel and waiver under Art.114 of Qanun-e-Shahadat, 1984, thus, he could not retract from his position now---Suit was dismissed in circumstances.

Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others PLD 2001 Lah. 194 and Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001 ref.

Syed Muhammad Hussain Shah Qadri for Petitioner.

Malik Javed Akhtar Wains for Respondents.

Date of hearing: 28th June, 2006.

2007 C L C 961

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HAYAT----Petitioner

Versus

SIKANDAR ABBAS----Respondent

Civil Revision No.515 of 2002, heard on 22nd December, 2006.

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

----S. 13---Right of pre-emption, exercise of---Exchange---Proof---Pre­emptor alleged that transfer of suit land through exchange was in fact sale---Trial Court dismissed the suit but Appellate Court decreed the same in favour of pre-emptor---Validity---Vendee appeared as witness to state that he gave his land in exchange of suit land and possession was also exchanged---Vendee was cross-examined at length but it was not even suggested to him that he had purchased the land and possession of respective lands were not exchanged---Nothing was available on record even remotely to suggest that transaction was not one of exchange but of sale for consideration---Trial Court had properly read the evidence while holding the transaction to be an exchange---Judgment and decree passed by Lower Appellate Court was set aside and that of Trial Court was restored in circumstances.

Bashir Ahmad v. Muhammad Luqman 1999 SCMR 378 ref.

Muhammad Aslam v. Muhammad Hayat 1999 SCMR 1346 distinguished.

Dost Muhammad Kahot for Petitioner.

Sh. Naveed Shehryar for Respondent.

Dates of hearing: 12th and 22nd December, 2006.

2007 C L C 969

[Lahore]

Before Muhammad Akhtar Shabbir, J

ALI HASSAN----Petitioner

Versus

SHER MUHAMMAD and another----Respondents

Civil Revision No.194 of 2004, heard on 6th March, 2007.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 10(3)---Report of Local Commissioner---Objections---Validity---Suit for declaration filed by the respondents---Trial Court appointed Local Commissioner for determination of question in dispute---Suit was decreed in favour of respondents after relying on the report of Local Commissioner---Record revealed that petitioner had raised objections to the report of the Local Commissioner in the Trial Court---Reply to such objections was also filed by the respondents---Local Commissioner was also examined by the Trial Court---Suit however was decreed in favour of respondents without disposing of objections filed by petitioner against report of Local Commissioner---Report of Local Commissioner, held, could not be relied upon without disposing of the objections to the report---Trial Court was obliged under O.XXVI, R.10(3), C.P.C. to decide objections to the report of Local Commissioner and while doing so, either it had to accept or reject the report---No such exercise was taken by the Trial or Appellate Court and an unconfirmed report of the Local Commissioner was relied upon---Judgment of the courts below, in circumstances, was set aside by High Court.

Muhammad Sharif v. Additional District Judge and others 1994 MLD 507; Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.) Limited 1991 MLD 1774 and Muhammad Yousaf alias Bala v. Khuda Dad and 11 others 2004 MLD 1107 ref.

Hafiz Khalil Ahmed for Petitioner.

Khan Imtiaz Ali Khan for Respondent No.1.

Mian Ghulam Rasool for Respondent No.2.

Date of hearing: 6th March, 2007.

2007 C L C 975

[Lahore]

Before Muhammad Akhtar Shabbir, J

SHAKIL AHMED----Petitioner

Versus

S.S.P. and others----Respondents

Civil Miscellaneous No.1152 of 2004 in Writ Petition No.2148 of 2002, decided on 11th January, 2007.

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

----S. 2(2)---Decree---Definition---Decree as defined in section 2(2) of Civil Procedure Code, 1908 means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final---Decree shall be deemed to include the rejection of a plaint (the determination of any question within section 144, C.P.C. and an order under Rules 60, 98, 99, 101 or 103 of O.XXI, C.P.C.) but shall not include any adjudication from which any appeal lies as an appeal from an order, or any order of dismissal for default---"Order" would mean the formal expression of any decision of a civil court which is not a decree---Term "order" ordinarily means a decision of a court or Judge made in writing and analogous to the term "decree"---Word order also means a judgment.

B. Surendra Narain Singh v. Raja Lal Bahadur Singh and others AIR 1933 All. 762 and Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974 SC 344 ref.

(b) Words and phrases---

---Disposal---Connotation---Disposal means to get rid of; to finish with---Word "disposal" would mean bringing to an end; getting rid of---Urdu meaning of word disposal is (ﺨﺗﻡﻜﺮﻨﺎﻨﻤﮢﺎﻨﺎ).

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

---S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Provisions of section 12(2), C.P.C.---Applicability---"Disposal" of a constitutional petition is not a judgment, decision or order therefore not covered within the ambit of section 12(2), C.P.C.

Faheem Ahmad Chaudhry for Applicant.

Basharatullah Khan for Petitioner.

2007 C L C 981

[Lahore]

Before Maulvi Anwarul Haq, J

SHEHBAZ KHAN and another----Petitioners

Versus

AHMED KHAN and 2 others----Respondents

Civil Revision No.372/D of 2000, heard on 22nd January, 2007.

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

----Art. 114---Civil Procedure Code (V of 1908), O.XX, R.14 & S.115---Revision---Attestation, estoppel by---Suit-land was owned by one of the petitioners who sold it to one of the respondents---Father of petitioners as well as respondents filed pre-emption suit which was decreed---Pre-emption money was deposited within stipulated time and said respondent had withdrawn the same---Land therefore, vested in father of petitioners in terms of O.XX, R.14(1)(b); C.P.C.---Neither said sale nor pre-emption decree was incorporated in revenue record with the result that said petitioner remained recorded as an owner---Taking advantage of said illegal entries said petitioner without lawful authority proceeded to sell same land to respondents/vendees vide mutations which were attested by yet another petitioner and brother of said petitioner---Vendees filed a declaratory suit claiming themselves as bona fide purchasers---Trial Court ordered refund of sale compensation whereas Appellate Court found the sale to be valid to the extent of petitioners' shares in the estate of their father who was a successful pre-emptor--Appellate finding was impugned by the other petitioner contending that mere fact that he attested the mutations would not constitute an estoppel to deprive him of his lawful rights in the suit-land---Admittedly the other petitioner had attested sale mutations as a Pattidar and signed said mutations when Tehsildar recorded his orders attesting the mutations---Held, although contention raised by the other petitioner was in line with the settled law but in the present case both brothers i.e. petitioners who committed fraud upon vendees and one petitioner attester of mutations in question were found standing hand in hand---Revision had been filed jointly by both the said brothers---Such fact by itself was sufficient to raise an inference that petitioners had been colluding with each other and that one petitioner was fully aware of the mis-deeds of other petitioner, hence he could not turn around and claim ignorance---Petition was dismissed accordingly.

Nazar Hussain Shah and 2 others v. Mst. Khurshid Bibi and others 2002 SCMR 49.and Ashiq Hussain and others v. Nisar Ali and others 1969 SCMR 341 ref.

Malik Shahzad Ahmad for Petitioners.

Khang Baig Janjua for Respondents.

Date of hearing: 22nd January, 2007.

2007 C L C 987

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. SAMEENA BIBI and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE/APPELLATE AUTHORITY, GUJRAT and 2 others----Respondents

Writ Petition No.11158 of 2006, decided on 28th February, 2007.

(a) Oaths Act (X of 1873)---

----S. 7---Civil Procedure Code (V of 1908), O.VI, R.15---Affidavit---Verification by reference to numbered paragraphs---Principles---What deponent verified of his own knowledge and as to what he affirmed upon information received, such requirement / verification relates to, pleadings, as per O.VI, R.15, C.P.C. but does not make obligatory for a deponent of affidavit to depose in such manner---Affidavits are sworn according to S.7 of Oaths Act, 1873, which does not create any such obligation.

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

----Ss. 5 & 17---Civil Procedure Code (V of 1908), O.IX, R.13---Ex parte decree, setting aside of---Principles---Provisions of Civil Procedure Code, 1908---Applicability---Suit for maintenance was decreed ex parte against father of minors---Appellate Court set aside the ex parte decree and remanded the case to Family Court for decision afresh---Validity---Though provisions of Civil Procedure Code, 1908, were excluded from applicability to proceedings before Family Court; by virtue of S.17 of West Pakistan Family Courts Act, 1964, yet general principles thereunder could be invoked for due administration of justice, where no procedure was provided in the West Pakistan Family Courts Act, 1964---Under the provisions of O.IX, R.13, C.P.C., ex parte decree against husband having knowledge of pendency of suit, could not be set aside in circumstances.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintenance of minor children---Return of gold ornaments--Suit was filed for recovery of maintenance allowance of minor children and for recovery of gold ornaments---Family Court passed ex parts decree against defendant awarding maintenance allowance at the rate of Rs.800 per month and 15 Tolas of gold ornaments---Appellate Court allowed the appeal, set aside ex parse decree and remanded the case to Family Court for decision afresh---Validity---Defendant did not deny paternity of his both minor children and under the enacted law, social/customary bonds and Islamic principles, he was under obligation to provide them maintenance allowance---Both the children had entered sensible ages and needed food, clothing, education, medical and transportation expenses for which awarded maintenance of Rs.800 per month was not excessive/exorbitant in such age of inflation and dearness, especially when defendant was working abroad in Middle East and had means to pay the maintenance---Defendant was putting up with his in-laws and had deserted the abode by snatching gold ornaments from plaintiff---No evidence was available on file to rebut such claim and Family Court within its allocated judicial discretion, determined claim which could not be interfered with in appeal---Judgment and decree passed by Appellate Court was set aside and that of Family Court was maintained---Petition was allowed accordingly.

Ch. Muhammad Rafique Warriach for Petitioners.

Shiraz Fiaz Bhatti for Respondent No.3.

2007 C L C 1009

[Lahore]

Before Maulvi Anwarul Haq, J

EYESHA SIDDIQUA and another----Petitioners

Versus

SHAFQAT HUSSAIN ARSHAD and 2 others----Respondents

Writ Petition No.2471 of 2003, heard on 18th January, 2007.

Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---West Pakistan Family Courts Act (XXXV of 1964), S.5---Limitation Act (IX of 1908), Arts.103 & 104---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dower amount, recovery of---Limitation---Notice of divorce to Chairman Arbitration Council---Delegated right of divorce given to wife was exercised by her but no notice was sent to Chairman Arbitration Council---Subsequently husband divorced his wife; sent notice to Chairman Arbitration Council and divorce became effective---Wife filed suit for recovery of dower amount, which was dismissed by Family Court being barred by limitation on the ground that divorce had already been effected when she had exercised her right---Appeal filed by wife was also dismissed by Appellate Court---Plea raised by wife in the constitutional petition was that divorce did not become effective, after her exercise of such right, as no notice to the Chairman was given by her---Validity---No notice was served in terms of S.7 read with S.8 of Muslim Family Laws Ordinance, 1961, and result was that prescribed period of ninety days never started running so as to make divorce effective at any time after exercise of such right by wife---Divorce pronounced by wife in exercise of her delegated right of divorce never took effect and divorce pronounced by husband did take effect on expiry of ninety days, when notice was delivered to Chairman Arbitration Council---Suit brought by wife was within the period of three years as prescribed in Arts.103 and 104 of Limitation Act, 1908---Judgments and decrees dismissing suit of wife for recovery of dower amount on the sole ground that the claim was barred by time, were declared to be without lawful authority and were set aside---Suit filed by wife for recovery of dower amount against husband was decreed by High Court in exercise of constitutional jurisdiction---Petition was allowed accordingly.

Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583; Malik Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518 and Allah Dad v. Mukhtar and Mst. Rashida Akhtar 1992 SCMR 1273 ref.

Muhammad Ilyas Sheikh for Petitioner.

M. Shoaib Shaheen for Respondent No.1.

Date of hearing: 18th January, 2007.

2007 C L C 1017(1)

[Lahore]

Before Mian Saqib Nisar, J

ABDUL MAJEED----Petitioner

Versus

Mst. SAKINA BIBI and another----Respondents

Writ Petition No.12695 of 2006, decided on 7th March, 2007.

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

----S. 9(5)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte proceedings against defendant, order of---Defendant's plea as to wrong noting of date of hearing---Validity---Such question of fact could not be resolved without enabling parties to produce evidence---High Court directed defendant to make proper application before Family Court, who would frame an issue and decide, after recording evidence, whether he had noted the date wrongly and was erroneously proceeded ex parte.

Ijaz Ahmad Khan for petitioner.

Saleem Anwar Khan for Respondent No.1.

2007 C L C 1020

[Lahore]

Before Maulvi Anwarul Haq, J

ASHIQ MUHAMMAD and 3 others----Petitioners

Versus

HABIB ULLAH----Respondent

Civil Revision No.1413-D of 1994, heard on 25th April, 2006.

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

----S. 6---Pre-emption suit---Pre-emptor claimed that land in Killa No.16/1 of Square No.164 belonged to him, which was adjacent to Killa No.15 of suit-land---Suit dismissed by trial Court was decreed by Appellate Court---Validity---Suit-land was sold from Killas Nos.7, 8 and 15 of Square No.164---Register Haqdaran Zamin for relevant years, showed that pre-emptor was co-sharer in land comprising of Killas Nos.16/1 and 16/2 of Square No.164---Aks Masavi prepared on Square basis showed Killas Nos.7 and 8 in same line, and in line below was Killa No.15 and in the next line below there were three Killas bearing No.16---Evidence on record did not show as to which of Killa No.16 belonged to pre-emptor---Register Haqdaran Zamin showed that Killa No.16 stood divided into Killa No.16/2 (Ghair Mutnkan Abadi) and Killa No.16/1 (Null Chahi)---Exact location of Killa No.16/1 was not decipherable in Aks Masavi---Question of superior right of pre-emption could not be decided on basis of such record without examining original record and Patwari---High Court accepted revision petition and set aside impugned judgment/decree with direction to Trial Court to decide such question after summoning original Revenue Record and Aks Masavi along with Patwari and allowing parties to question Patwari with reference to original record.

Mian M. Arshad Latif for Petitioners.

Javed Akhtar Wains for Respondent.

Date of hearing: 25th April, 2006.

2007 C L C 1025

[Lahore]

Before Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ

MUHAMMAD AFZAL----Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others----Respondents

Writ Petition No.424 of 2007, decided on 13th February, 2007.

Educational Institution---

----Examination---Petitioner had prayed that act of Authorities in denying petitioners appearance in forthcoming final year examination be declared to be illegal and mala fide and that petitioner be allowed to appear in final year examination---Plea of petitioner/candidate was that since in the earlier round of litigation, one of the candidates was allowed relief, despite the fact that he had nine failing subjects, whereas requirement under the Regulation was that only such candidate could be allowed to appear in the final year examination who carried eight papers of lower class, but petitioner was only carrying four failed papers of lower class---Petitioner prayed that he be given chance to appear in the final examination---Validity---Said other candidate was allowed relief on the ground that he had passed all the papers of the first year examination and he was found deserving for a chance to appear in the examination---High Court declared petitioner disentitled to appear in the final year examination for the reason that he failed in the first year's one paper and without clearing the said back log petitioner could not be helped merely because he was carrying four papers of lower class, which included a paper of first year---Under said Regulation, unless candidate cleared all the papers of first year, he could not be allowed to appear in the final year examination in terms of the Regulation, if petitioner was given such relief same would not only be violative of the Regulation, but would also amount to sitting over the earlier decision of the High Court.

Muhammad Amir Bhatti for Petitioner.

Muhammad Tariq Rajwana for Respondent University.

2007 C L C 1031

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM FATIMA and 11 others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Board of Revenue and 3 others----Respondents

Civil Revision No.291 of 1996, decided on 8th February, 2007.

Civil Procedure Code (V of 1908)---

----S. 11 & O. II, R.2---Res Judicata---Applicability---Predecessor of plaintiffs had lost his case regarding redemption of suit land in 1975---Plaintiffs in their suit for redemption did not deny that suit land had been mortgaged by their predecessor in 1900 with a non-Muslim evacuee but their claim was that on transfer of suit land in the name of Central Government, their right of redemption was acknowledged in terms of sections 13 and 19 of Limitation Act, 1908 hence mortgage was still subsisting and could have been redeemed---Evidence led by plaintiffs proved the continuous possession of plaintiffs over the suit-land---Copy of earlier plaint was not produced however copy of judgment passed in 1975 revealed that in the earlier suit by predecessor of plaintiffs it was held that mortgage stood extinguished by afflux of time as the same was not got redeemed within prescribed period of sixty years by the mortgagor---Plaint in the present suit was also based on the same mortgage, redemption of which was earlier found to have foreclosed---Copy of mutation relating to foreclosure of rights of plaintiffs was also produced by defendants and in presence of said document stance of plaintiffs could not be considered on their second suit---Record revealed that cause of action for redemption, as claimed by plaintiffs through present suit, had accrued to them at the time of institution of earlier suit but they ' opted not to pray for it and deliberately relinquished said part of their claim thus their subsequent suit was also barred by provisions of O.II, R.2, C.P.C.---Since matter in issue in both the suits was substantially the same between the same parties and the Trial Court was competent to try the first suit of plaintiffs provisions of S.11, C.P.C. were, therefore, rightly invoked by courts below.

Tikamdas and another v. Abdul Wali and others PLD 1968 SC 241; Samar Gul v. Central Government and others PLD 1986 SC 35; Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah. 71 and Allah Bakhsh v. Member, Board of Revenue and others 1988 MLD 922 distinguished.

Syed Nizam Shah v. Babu Abdullah and others 1991 SCMR 1149 and Amanul Mulk v. Mian Ghafoor-ur-Rehman and others 1997 SCMR 1796 ref.

Ch. Haider Bakhsh for Petitioners.

Shahid Mehmood Khan Khilji for Respondents.

2007 C L C 1040

[Lahore]

Before Maulvi Anwarul Haq, J

TAJ MUHAMMAD----Petitioner

Versus

MUHAMMAD ZAHOOR and others---Respondents

Civil Revision No.112 of 1999, heard on 15th January, 2007.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Impugning validity of judgment on plea of want of jurisdiction---Petitioner filed ejectment application against respondents in respect of house in question on ground that on death of its original owner its 1/4th share had devolved upon widow of deceased and residue went to father of petitioner as collateral---Petitioner had stated that at the time when Permanent Transfer Deed was issued to original owner, predecessor-in-interest of respondents was in occupation and he became a tenant, but he failed to pay rent of house---Respondents pleaded that father of petitioner had made a will in favour of their predecessor-in­-interest and on his death respondents had become owner of said house-Preliminary issue in said ejectment proceedings, was about the existence of relationship of landlord and tenant between the parties on which evidence was led---Rent Controller and Appellate Court concurrently accepted ejectment application holding that existence of relationship of landlord and tenant between parties was established and as tenant had not paid rent, order of his ejectment was correctly passed---Respondents filed application under S.12(2), C.P.C. alleging that both Rent Controller and Appellate Court had acted without jurisdiction---Said application was allowed by Additional District Judge, ejectment order passed in favour of petitioner was set aside, ejectment application was dismissed with direction to petitioner to get his title in respect of house in question determined by the civil court---Concurrent findings of Rent Controller and court of first appeal were that alleged 'will' had not been proved by respondents, but Additional District Judge in his impugned order had not even touched said findings---Nothing was before Rent Controller on basis of which he could have stayed the ejectment proceedings and had asked landlord/petitioner to get established his title before seeking ejectment---Findings recorded by Rent Controller were upheld by the court of first appeal holding that will claimed by respondents in their favour had not been proved---Ejectment order passed by Rent Controller and Appellate Court could not be said, in circumstances, to be suffering from lack of jurisdiction---Impugned order passed by Additional District Judge was set aside and application filed by respondents under S.12(2), C.P.C. was dismissed.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 rel.

Imtiaz Ahmad for Petitioner.

Syed Aftab Ahmad for Respondents Nos.1 and 2.

Nemo for other Respondents.

Date of hearing; 15th January, 2007.

2007 C L C 1047

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Rana ZULFIQAR----Petitioner

Versus

MARIYAM RAFIQUE----Respondent

Writ Petition No.9751 of 2005, heard on 7th February, 2007.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Divorce---Revocation---Limitation---Husband could revoke divorce before expiry of 90 days from the date when he delivered notice to the Chairman---Where the Chairman declared the divorce effective despite the fact that according to his own order, husband had withdrawn/revoked notice within the period of 90 days, order declaring divorce effective by the Chairman was illegal and liable to be set aside.

Abdul Salam Awan for Petitioner.

Ch. Majid Hussain for Respondent.

Date of hearing: 7th February, 2007.

2007 C L C 1055

[Lahore]

Before Sh. Azmat Saeed, J

UNIVERSITY OF HEALTH SCIENCES through Vice-Chancellor----Petitioner

Versus

Dr. AZEEMUDDIN ZAHID and another----Respondents

Writ Petition No.8388 of 2006, decided on 12th February, 2007.

University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

----S. 7---University of Health Sciences, Lahore Regulations, Regln. No.7(a) to (f)---Punjab Office of the Ombudsman Act (X of 1997), S.10(9)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for re-checking of marks on answer papers---Rejection of application by University---Complaint to Ombudsman---Direction of Ombudsman to University to produce answer-papers of petitioner to determine, whether conditions mentioned in Regln. No.7(a) to (f) of University of Health Sciences, Lahore Regulations, had been fulfilled---Validity---Powers exercisable by functionary of University could be exercised by Ombudsman in view of specific powers conferred upon him by virtue of S.10(9) of Punjab Office of the Ombudsman Act, 1997---Impugned order had been passed merely to ascertain that every question attempted had in fact been checked and marked, and there was no arithmetical error in tabulation of total marks---Ombudsman could examine answer papers for such limited purpose and strictly in accordance with law laid down by Supreme Court in a case reported as 1996 SCMR 676---Constitutional petition had been directed against an interlocutory order---High Court dismissed constitutional petition in circumstances.

Board of Intermediate and Secondary Education Lahore v. Saima Azad 1996 SCI1R 676 fol.

Asif Ismail for Petitioner.

Malik Zafar Iqbal Awan, Addl. A.-G. for Respondent.

2007 C L C 1062

[Lahore]

Before Jawwad S. Khawaja, J

BARI RICE MILLS LTD.---Appellant

Versus

PASSCO---Respondent

R.S.A, No.94 of 2006, decided on 26th February, 2007.

(a) Sale of Goods Act (III of 1930)---

----Ss. 15, 16 & 36---Term "as is where is"---Applicability---Scope---Wording employed in the contract, in the present case, clearly evidenced that the seller by adopting the term 'as is where is' only excluded from its obligations, the duty to put the agreed quantity of goods in a deliverable state---Term "as is where is" was applicable only to the stipulation in the contract as to delivery of the goods and it did not, in any 'manner, absolve the seller from its obligation to supply the agreed quality of goods---Only effect of the term "as is where is" used in the contract was to shift the burden of S.36(5), Sale of Goods Act, 1930 onto the purchaser---Meaning given to the term "as is where is" will have to be determined on the basis of the context in which the term is used; "as is where is" was not capable of one inflexible meaning---When the quality of goods to be supplied by the seller did not meet the description given in the contract, the purchaser could not be faulted for not lifting the goods which did not meet the description given in the contract and S.16(2) of the Sale of Goods Act, 1930 could not benefit the seller---Principles.

Thornett and Fehr v. Beers and Son [1919] 1 KB 486 distinguished.

Paramount Corporation, Karachi v. Haji Moosa Haji Oomar, Karachi PLD 1954 Sind 32; Messrs Fairland Export Syndicate v. Messrs Bengal Oil Mills Ltd., Karachi PLD 1970 Kar. 125 and United Bank Ltd. v. Messrs Al-Noor Enterprises and another 2006 CLC 822 ref.

(b) Contra Proferentum, Principle of---

----Applicability---Scope---Principle of contra proferentum can be resorted to if there is an ambiguity which makes the contract difficult to ascertain the intention of the contracting parties.

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

----S. 55---Sale of Goods Act (III of 1930), Ss.15, 16 & 36(2)---Contract of sale of goods by description was based on reciprocal promises---Time not essence of the contract---No evidence was available to show that time was of the essence of the contract---Admitted position was that the seller itself twice extended the time for lifting of the goods sold---Such circumstance, itself was sufficient to show that time was not of the essence of the contract---Buyer, under the contract, was only obliged to lift the goods if the goods met the description given in the contract and buyer had no responsibility for lifting the goods which did not meet the agreed description---Seller having failed to make the described goods available to the buyer for lifting, which was a condition of the contract and 'had to be performed by the seller before it could ask the buyer to fulfil its promise to lift the goods---Buyer's duty to take delivery of the goods, in circumstances, would not arise and it could not be held to be in breach of its obligation to lift the goods within the period specified in the contract.

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

----Ss. 21 & 56---Suit seeking specific performance of the contract with prayer for damages---Defendant failing to supply the goods as per description in the contract---Plaintiff had proved that it had to purchase the goods from the market in order to meet its commitments in relation to the export contracts with foreign importers which was done through oral testimony as well as documents which showed the purchases made by plaintiff from the open market---Document showed that plaintiff had to pay price for the goods so purchased which were 'higher than the prices agreed upon by the defendant---Plaintiff, as a result of such purchases, had to incur an additional expense of Rs.5,57,355---Evidence produced by the plaintiff was not controverted by the defendant through any evidence to the contrary---Defendant having committed breach of contract 'plaintiff was entitled to a sum of Rs.5,57,355 by way of damages.

Uzair Karamat Bhindhari and Mian Muhammad Kashif for Appellant.

Muhammad Akram Khawaja for Respondent.

Dates of hearing: 14th/15th February, 2007.

2007 C L C 1079

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASHRAF and others----Petitioners

Versus

LAHORE METROPOLITAN CORPORATION through Lord Mayor----Respondent

Civil Revision No.1065-D of 1992 and Writ Petition No.4750 of 1998, heard on 12th February, 2007.

(a) Municipal Administration Ordinance (X of 1960)---

----S. 2(f) & 3(38)---Specific Relief Act (I of 1877), S.54---Unauthorized construction---"Rent" and "fine"---Distinction---Words "rent" and "rented land"---Connotation---Plaintiffs had constructed temporary cabins (Khokhas) over a drain---Municipal authorities treated plaintiffs as occupants in illegal possession thereof and threatened to remove the unauthorized constructions---Suit for permanent injunction was filed by plaintiffs which was decreed in their favour by Trial Court but Appellate Court dismissed the same---Plea raised by plaintiffs was that they were in possession of the disputed place for the past 24 years and had been paying dues to municipal authorities---Validity---Rent was an amount lawfully payable in money or kind by a tenant or lessee for any land let separately for business / trade---Amount deposited through the receipts produced in evidence by plaintiffs would have been lawfully payable only when there had been creation of tenancy between the parties, which was never created, hence, such amounts could not be termed as "rent" paid and plaintiffs could not be declared to be tenants of Municipal Corporation---Plaintiffs failed to prove on record that they occupied the land under some lawful authority/permission of authorities---If plaintiffs would have deposited the amount towards "Teh Bazari Fee", they might have been considered as licensees but deposit made by them was not towards "Teh Bazari Fee" and was in the form of "Fine"---Decree for permanent injunction could not have been issued as the same involved implied declaration of plaintiffs being in possession as tenants---High Court in exercise of revisional jurisdiction declined to interfere in the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Fatal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 ref.

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

----O. XLI, R. 33---Appellate Court---Jurisdiction---Scope---Court of first appeal is not only court of facts but by virtue of provision of O.XLI, R.33, C.P.C., also enjoys the same jurisdiction as vested in the court of first instance.

Soofi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 rel.

Mian Hamid-ud-Din Kasuri and M. Iqbal Cheema for Petitioners.

Khawaja Muhammad Afzal and Muhammad Usman Arif for Respondent.

Date of hearing: 12th February, 2007.

2007 C L C 1089

[Lahore]

Before Muhammad Akhtar Shabbir and Maulvi Anwarul Haq, JJ

IQBAL AHMAD SABRI----Appellant

Versus

FAYYAZ AHMAD and another----Respondents

Regular First Appeals Nos.127 and 128 of 2005, heard on 18th January, 2007.

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

----Arts. 81 & 95---Power of attorney---Authenticity---Scope---Authenticity is not merely attestation but something more---Person authenticating has to assume himself of the identity of person, who has signed instrument as well as the fact of execution---Power of attorney bearing authentication of notary public or any authority mentioned in Art.95 of Qanun-e-Shahadat, 1984, is sufficient evidence of execution of instrument by the person, who appears to be the executant on face of it---Provision of Art.95 of Qanun-e-Shahadat, 1984, is mandatory and it is open to the court to presume that all necessary requirements for proper execution of power of attorney have been duly fulfilled---Where a purported power of attorney has actually been acted upon but does not qualify for presumption under Art.95 of Qanun-e-Shahadat, 1984, those who seek to rely upon it or are allegedly affected thereby may resort to due modes of its proof, which may include examination of its attesting witnesses---If donor of power or its executant himself/herself admits execution of power of attorney, none of such modes would be necessary---In such an event, principle underlying Art.81 of Qanun-e-Shahadat, 1984, would become applicable and admission of executant would be sufficient proof of execution as against himself or herself.

Wali Muhammad Chaudhry v. Jamaluddin Chaudhri AIR 1950 All. 534, Jugrej Singh and another v. Jaswant Singh AIR 1971 SC 761; Right Society v. Indian Morning Restaurant AIR 1939 Born. 347; ANZ Grindlays Bank Ltd. v. Saadi Cement Company Ltd. PLD 2001 Kar. 143 and Ziauddin Siddiqui's case 1990 CLC 645 rel.

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

----O. VIII, Rr. 3 & 5---Written statement---Denial---Not sufficient under O.VIII, R.3, C.P.C. for defendant in his statement to deny generally the grounds alleged by plaintiff---Defendant must deal specifically with each allegation of fact which he does not admit to be true, except damages---Every allegation of fact in plaint, if not denied specifically or by necessary implication or stated to be not admitted in pleadings, under O.VIII, R.5, C.P.C. it is taken to be admitted except as against a person under disability.

Inam Naqashband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314; National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. 1996 CLC 79; 1999 SCMR 2633 and 2003 SCMR 1864 rel.

(c) Specific Relief Act (1 of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.81 & 95---Agreement to sell---Proof---Principal and agent---Plaintiff entered into agreement to sell through general power of attorney of the owner and had received earnest money---Owner of suit property did not deny execution of the power of attorney but denied execution of sale-deed on the ground that he had not received earnest money from the attorney---Trial Court decreed the suit in favour of plaintiff---Validity---As per power conferred upon the attorney, he had received advance money through cheque which was in the hands of attorney and had not been encashed--Owner had neither denied the power of attorney nor agreement to sell---Admitted documents need not to be proved in accordance with the provisions of Qanun-e-Shahadat, 1984---Power of attorney executed in foreign country in the office of Vice-Consulate General of Pakistan need not be proved in accordance with Qanun-e-Shahadat, 1984---Presumption of genuineness was attached to such document under Art.95 of Qanun-e-Shahadat, 1984, which had not been denied specifically by the owner---Findings of Trial Court were affirmed by High Court in exercise of appellate jurisdiction---Appeal was dismissed in circumstances.

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

----Arts. 95 & 103---Registered document---Presumption---Power of attorney executed abroad---Effect---Oral evidence cannot be given preference over documentary evidence---Documentary evidence particularly registered document carries presumption of truth, which is covered within the provision of S.95 of Qanun-e-Shahadat, 1984---Evidence with regard to power of attorney executed outside Pakistan and person or witness holding such power of attorney even if not taken into consideration, then also documents on record which have been admitted by both the parties substantiate the case of party in whose favour those documents are.

Mst. Ghafooran Jan v. Muhammad Anwar Khan 2001 CLC 1332 and 1991 CLC 1950 rel.

Razzaq A. Mirza and Sardar M. Ashfaque for Appellant.

Sh. M. Khizar-ur-Rashid for Respondent.

Date of hearing: 18th January, 2007.

2007 C L C 1100

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

ABDUL SATTAR----Appellant

Versus

DISTRICT COORDINATION OFFICER, GUJRAT and 11 others----Respondents

I.C.A. No.230 in Writ Petition No.1784 of 2005, decided on 8th February, 2007.

(a) Punjab Agricultural Produce Markets (General Rules), 1979---

----R. 21---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3(2), Proviso---Intra-Court Appeal---Maintainability---Notice issued by Chairman Market Committee allotting one single plot against two applications was assailed in constitutional petition---Constitutional petition was dismissed on ground that an alternate remedy by way of appeal was available to petitioner/appellant---Impugned notice issued by Market Committee could have been challenged by appellant through appeal in terms of Rule 21 of Agricultural Produce Markets (General Rules), 1979--Admittedly said remedy was not availed by appellant---Existence of an adequate alternate remedy in shape of appeal to Assistant Commissioner was sufficient circumstance to deny relief in equitable jurisdiction---Intra-Court Appeal was not maintainable in view of bar in proviso to section 3(2) of Law Reforms Ordinance, 1972.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Intra-Court appeal--Competency of---Petition brought before High Court under Art.199 of the Constitution of Pakistan (1973) arising out of proceeding in which at least one appeal, one revision or one review provided---Intra-Court appeal against such application, held, not competent---Constitution of Pakistan (1973), Art.199.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of fact---High Court while exercising powers under Art.199 of the Constitution cannot entertain a controversy involving disputed questions of fact.

Ch. Tanveer Ahmed Hanjra for Appellant.

Zahid Farani Sh. and Ch. Farooq Haider for Respondents.

Hashim Sabir Raja, Asstt. A.-G. for Respondent.

Date of hearing: 8th February, 2007.

2007 C L C 1103

[Lahore]

Before Muhammad Muzammal Khan, J

ZULQARNAIN KHAN----Petitioner

Versus

GOVERNMENT OF PUNJAB, WELFARE DEPARTMENT through Additional Chief Secretary, Government of the Punjab, Lahore and 2 others----Respondents

Writ Petition No.14003 of 2005, decided on 9th February, 2007.

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

----Art. 199---Constitutional petition---Imposition of penal rent--Possession under restraint order---Possession under restraint order not unlawful---Petitioner, a retired civil servant continued possession over official accommodation under injunctive order passed by High Court in constitutional jurisdiction---Constitutional petition disposed of and vacant possession of premises was handed over to the Department as per direction of the Court---Department stopped pension of petitioner to charge penal rent for petitioner's alleged unlawful occupation during pendency of stay order---Validity---Petitioner was permitted by High Court to continue with possession of Government residence under a restraint order---Stay granted in favour of petitioner was not vacated at any stage during proceedings even constitutional petition was disposed of on petitioner's own concession to vacate premises within a period of 3 months---Possession of petitioner over official accommodation in his occupation never became unauthorized or illegal, Department, in circumstances, could not deduct/adjust any penal rent under its policy.

Sheikh Lutaf-ur-Rehman v. Government of the Punjab and others Writ Petition No.20833 of 1999 ref.

(b) Words and phrases---

----"Illegal" ---Meaning---Dictionary/literal meaning of illegal is unlawful.

Malik Saleem Chaudhary for Petitioner.

Ch. Muhammad Sadiq, Addl. A.-G. with Khadim Hussain S.O. Litigation Welfare Wing for Respondents.

2007 CLC 1106

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. PARVEEN BIBI----Petitioner

Versus

SHAHAN MASIH and 2 others----Respondents

Writ Petition No.902 of 2006, decided on 6th February, 2007.

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

----S. 13---Civil Procedure Code (V of 1908), O.XLI, R.27---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment petition---Denial of relationship of landlord and tenant between parties---Entries in Excise and Taxation register---Effect---Petitioner denying relationship of landlord and tenant, claimed possession of disputed house on basis of agreement to sell---Respondent sought permission to place certified copy of property survey report on record according to which petitioner had admitted before Survey Team of Property Tax Department that she was a tenant under respondent---Respondent's application for production of additional evidence was accepted by Appellate Court---Validity---Entries made in Excise and Taxation record did not prove ownership of rented premises or relationship of landlord and tenant between parties---Rent Controller had rightly found that respondent had failed to prove his case but Appellate Court reversed such findings in violation of settled principles---Impugned judgment was, therefore, set aside.

Gul Dad Khan v. Rahim Shah PLD 1978 Kar. 19; Phool Muhammad v. S. Hassan Arif Fatmi and 4 others 1981 CLC 1719; Abdur Rehman and others v. Abdul Qadir and others 1998 CLC 401; Karachi Transport Corporation through Secretary and others v. Mukhtar Begum and others 1998 SCMR 809; Muhammad Lehrasab Khan v. Mst. Aqeela-un-Nisa and 5 others 2001 SCMR 338 and Mst. Nek Bibi and 8 others v. Mst. Maryum Begum and 5 others 2003 MLD 702 ref.

Mst. Jehan Ara and others v. Dad Muhammad and others 1989 ALD 532(2) rel.

Pir S.A. Rashid for Petitioner.

Muhammad Younas Chaudhary for Respondent No.1.

Respondents Nos.2 and 3 are pro forma Respondents.

2007 C L C 1109

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZAMAN----Petitioner

Versus

FAUZIA BIBI and another----Respondents

Writ Petition No.15830 of 2003, heard on 25th January, 2007.

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

----S. 5---Provisional Constitution Order (I of 1981), Art.9---Family Court, authority to pass punitive orders---Procedure---Scope---Family Court although a forum of limited jurisdiction yet it had to regulate its own procedure as West Pakistan Family Courts Act, 1964 does not make provision for every conceivable eventuality and unforeseen circumstances---Party defaulting persistently and acting contumaciously, Family Court not denuded of authority to pass punitive action against such. party---West Pakistan Family Courts Act, 1964 enacted with object of expeditious disposal of disputes relating to family affairs---Strict applicability of Civil Procedure Code, 1908 to the proceedings before Family Court can be urged but adoption of general principles of procedure by Presiding Officer of such Court being a Rule of law, cannot be prohibited to advance the due administration of justice.

Bashir Ahmed v. Mst. Zubaida and another 1990 ALD 180; Maqsood Ahmad v. Judge, Family Court, Burewala and 5 others 2001 CLC 567; Muhammad Ashraf v. Nasreen Begum through legal heirs and 3 others PLD 1989 Lah. 69; Khalilur Rehman Bhutta v. Razia Naz and another 1984 CLC 890 and Shahzada Jawaid v. Mst. Sadia Rauf and another 2000 MLD 1301 ref.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O.VIII, Rr.1 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles and maintenance allowance---Striking off defence for non-filing of written statement---Validity---Family Court having opted to follow the procedure prescribed for trial of civil suit committed no error of law but this procedure as well limited period for filing of written statement to one month as per proviso to Rule 1 of O.VIII, C.P.C.---Impugned order revealed that Judge Family Court exhibited unnecessary haste at the cost of dispensation of justice by passing the order within a span of twenty days only---Family Court should have given defendant a fair opportunity to defend suit, another opportunity for filing the written statement would not only have served the ends of justice but would have also completed the period of one month, as given in the Procedure---Impugned order being tainted with patent illegalities was set aside by High Court directing Family Court to allow only one single final opportunity to defendant of filing his written statement with costs.

Ch. Irshad Ullah Chattha for Petitioner.

Respondent: Ex parte.

Date of hearing: 25th January, 2007.

2007 CLC 1113

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD MAQSOOD SABIR ANSARI----Petitioner

Versus

DISTRICT RETURNING OFFICER, KASUR and 3 others----Respondents

Writ Petition No.16703 of 2005, decided on 27th March, 2007.

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

----Ss. 2(xxvi) & 152---Term "peasant"---Scope---Candidate filed nomination papers for seat reserved for peasant---Returning Officer rejected nomination papers on the ground that candidate had concealed his assets and he was also an income taxpayer and was declared defaulter in matter of government dues---Order passed by Returning Officer was upheld by District Returning Officer---Candidate. did not utter a single word against findings of both the forums below---Effect---Candidate was not a "peasant" and thus was not qualified to contest election on a seat reserved for "peasant" in terms of provisions of S.152 read with S.2(xxvi) of Punjab Local Government Ordinance, 2001.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---No one should consider constitutional jurisdiction of High Court fragile to misuse or deviate from same to meet his own designs or suitability---Such jurisdiction is exercised only in favour of those who approach Court with clean hands and with genuine grievance.

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

----Ss. 2(xxvi) & 152(2)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Election dispute---Writ of quo warranto---Principle of estoppel---Applicability---Petitioner filed nomination papers for seat reserved for peasant---Returning Officer as well as District Returning Officer, concurrently rejected nomination papers of petitioner on the ground that he was not a peasant---High Court, in exercise of constitutional jurisdiction, allowed petitioner to contest election, result whereof was subject to decision of the constitutional petition---Petitioner was elected against the reserved seat and thereafter he was elected as Naib Zila Nazim---Plea raised by petitioner was that since one election petition was pending against him before Chief Election Commissioner, therefore, the present petition be also "referred there---Validity--Provision of S.152 (2)(b) of Punjab Local Government Ordinance, 2001, was applicable, when it was invoked bona fide---No law was made to be invoked for mala fide purposes and intention---Cognizance was taken by High Court prior to the election---Relief provided to petitioner was contingent upon his own undertaking--Petitioner was estopped to raise the plea that High Court should refer the matter to Chief Election Commissioner---Constitutional jurisdiction was invoked by, petitioner himself as at that time no other remedy was available to him---Constitutional jurisdiction of High Court suited the petitioner at that time, if such jurisdiction did not suit him later on, High Court could not be allowed to act according to the suitability and convenience of a person who approached High Court with sullen hands---Such was never the intention of founders of the Constitution---High Court declined the contention of petitioner---Petitioner was disqualified to hold public office to which he was incumbent---High Court was competent under Art. 199(1)(b)(ii) of the Constitution to require a person within its territorial jurisdiction, holding or purporting to hold a public office, to show under what authority of law he claimed to hold that office---High Court treated the constitutional petition as a writ of quo warranto, as such writ could be issued even against an elected person---Petitioner being not qualified to contest election, result of his election as a member and as a Naib Zila Nazim were declared void---High Court burdened the petitioner with heavy costs for misusing the judicial process and directed the authorities to fill the vacancies in accordance with law---Petition was dismissed accordingly.

PLD 2002 SC 184; Abdul Haleem v. Faiz-un-Nisa Bibi PLD 1969 Dacca 640; Fazlul Qadir Ch. v. Muhammad Abdul Haq PLD 1966 SC 486; Muhammad Sarfraz v. Sikandar Hayat PLD 2006 Lah. 56 and Dr. Amjad Mustafa v. Muhammad Fayyaz 2005 YLR 419 ref.

Akhtar Rehman v. Muhammad Latif Tahir PLD 1981 Lah. 48 and Muhammad Shafiq Raja v. Government of the Punjab 1991 CLC 617 rel.

(d) Practice and procedure---

----Rules under a statute and an Article of the Constitution are not considered at par.

Dr. Abdul Basit for Petitioner.

Muhammad Din Ansari for Respondent No.3.

2007 C L C 1123

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD TARIQ----Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others----Respondents

Writ Petitions Nos.4436, 4435, 4437, 4438, 4439, 4440 of 2006, decided on 20th March, 2007.

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

----S. 30(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Expression "after giving such person a reasonable opportunity of showing cause"---Connotation---Resumption of land---Principles of natural justice---Applicability---Petitioner purchased land in question from the allottee who had been granted proprietary rights---Board of Revenue subsequently, found allotment a result of fraud and misrepresentation, therefore, conveyance deed in favour of allottee was cancelled---Grievance of petitioner was that such action could not have been taken by Board of Revenue without providing him an opportunity of hearing---Validity---Words "show cause" meant to make clear or apparent, as by evidence, testimony, or reasoning to prove---Expression "after giving such person a reasonable opportunity of showing cause" was not idle or empty form, it contained a very solitary and substantial provision of law; as such the expression did not mean that only an opportunity was to be given for offering explanation against proposed action in S.30 (2) of Colonization of Government Lands (Punjab) Act, 1912---Adequate opportunity not only to offer explanation against proposed action but also to produce defence was to be given---Words "showing cause" in S.30 (2) of Colonization of Government Lands (Punjab) Act, 1912, did not imply that mere opportunity of submitting an explanation was enough which implied that adequate opportunity of leading evidence in support of contentions of person concerned and to controvert the contention raised against him must be given---Giving an opportunity of hearing should be granted to petitioner by Board of Revenue in the interest of justice---High Court remanded the matter to Board of Revenue to hear and decide the matter after giving full opportunity of hearing to petitioner in accordance with law---Petition was decided accordingly.

Muhammad Ihsan Khan v. The Province of West Pakistan PLD 1963 Lah. 295 and Government of the Punjab v. Dr. Ijaz Hassan Qureshi PLD 1985 SC 28 rel.

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

----O. V, R.20---Execution of notice---Substituted service---Publication in press---Mandatory requirement---Sending copy of newspaper under postal receipt is mandatory requirement of service through proclamation in daily newspaper---In absence of any such document showing that copy of newspaper was sent to the required person, it cannot be presumed that such person was ever served with any notice.

(c) Natural justice, principles of---

----Audi alteram partem---Scope---Principles of natural justice is not capable of any precise definition---Whether or not, the rule of natural justice has been violated in a particular case, must be determined in the light of rights violated---Principle of audi alteram partem means the principles of natural justice.

Ijlas Ahmad Siddiqi v. The Municipal Committee, Multan and another PLD 1967 Lah. 408 and The State of Madras v. Messrs Gannon Dunkerley & Co. (Madras) Ltd. AIR 1958 SC 573 rel.

Ch. Muhammad Ashraf Wahla for Petitioner.

Faisal Ali Qazi, Asstt. A.-G. for Respondent.

Shakir Hussain, Assistant, Board of Revenue.

Khalid Mehmood, Litigation Assistant on behalf of D.O.R. Toba Tek Singh.

2007 C L C 1131

[Lahore]

Before Syed Asghar Haider, J

ABDUL JABBAR----Petitioner

Versus

KALSOOM BIBI and another----Respondents

Writ Petition No.2838 of 2007, decided on 29th March, 2007.

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---Conflict of judgments---Suit for dissolution of marriage by wife -and for restitution of conjugal rights by husband tried by two separate courts---Former suit was decreed, in view of proviso to S.10(4) of the Act, against husband while the latter was decreed in his favour--Validity---Proviso to S.10(4) of Family Courts Act, 1964 has an overriding effect which states that no decision or judgment of any court or Tribunal shall be an impediment, therefore right granted for dissolution of marriage is absolute and contingent only upon restoration of haq mehr to the husband and nothing else---Family Court had rightly dissolved the marriage after restoring haq mehr to husband---Decree for dissolution of marriage was earlier in time therefore husband was bound to disclose said decree to Family Court trying the suit for restitution of conjugal rights but this was not done---Held, husband could not reap benefit of his own fault; even otherwise, in view of dissolution of marriage by Family Court, the decree of restitution of conjugal rights was legally ineffective.

Anwari Begum alias Khalida Anwar v. Additional District Judge Lyallpur and others 1988 CLC 1641 distinguished.

Q.M. Saleem for Petitioner.

2007 C L C 1133

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL WAHEED SHEIKH----Petitioner

Versus

Messrs PETAL ENGINEERING (PRIVATE) LIMITED through Chief Executive and another ----Respondents

Civil Revision No.2327 of 2006, heard on 2nd April, 2007.

Civil Procedure Code (V of 1908)---

----O.VII, R.2 & O.VI, R.11---Qanun-e-Shahadat (10 of 1984), Art.77---Suit for recovery---Leave to prove service of notice through secondary evidence was refused---Application for review dismissed---Validity---Provisions of O.VI, R.11, C.P.C. provided that there was no need to plead the notice in question as it was not a kind of notice which was a condition precedent under any statute for filing the suit---Trial Court ignored the very first exception provided to the general rule laid down in Art.77 of Qanun-e-Shahadat, 1984 as to when the document to be proved itself is a notice---Impugned orders suffering from jurisdictional defects fell within the mischief of S.115, C.P.C.---Civil revision accordingly was allowed.

Ch. Ishtiaq Ahmad for Petitioner.

Hafiz Muhammad Yousaf for Respondents.

Date of hearing: 2nd April, 2007.

2007 C L C 1135

[Lahore]

Before Muhammad Muzammal Khan, J

GHULAM RASOOL----Petitioner

Versus

REHMAN BAIG and another----Respondents

Writ Petition No.2814 of 2006, decided on 27th March, 2007.

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

----S. 13(6)---Order of deposit of future rent---Non-compliance of order---Effect---Non-compliance of such order leads to the only result that the defence of the tenant is struck off and he is directed to vacate the premises on rent with him.

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

----S. 13(6) [as added by West Pakistan Urban Rent Restriction Ordinance (XXX of 1960)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Final determination of rent---Order provisionally fixing the rent in event of dispute about its rate and deposit, would meet the result enumerated in S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Under the second part of said S.13(6), a statutory duty is cast on the Rent Controller to finally determine rent and to issue a direction that same be paid to the landlord subject to adjustment of the approximate amount, if deposited by the tenant---Order of Rent Controller requiring tenant to deposit future rent was not complied with in present case---Rent Controller, while accepting ejectment petition, found the landlord entitled to the arrears of rent from date of institution of ejectment petition, till vacation of the demised premises---Such finding was strictly in accordance with the law applicable---Tenant's application for dismissal of ejectment petition/recall of warrants of arrest issued against tenant by Executing Court, was rightly declined---No case for interference in constitutional jurisdiction of High Court, having been made out, petition was dismissed.

Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate 1974 SCMR 504 ref.

Mian Sajid Ali Shad for Petitioner.

Nemo for Respondent No.1.

2007 C L C 1138

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ASLAM----Petitioner

Versus

MUHAMMAD SHAFIQ and 13 others----Respondents

Writ Petition No.8610 of 2006, heard on 20th March, 2007.

Canal and Drainage Act (VIII of 1873)---

----S. 68---Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005, Rr.17 (a), 18 & 23 Constitution of Pakistan (1973), Art. 199---Constitutional petition---Distribution of water---Farmers Organization---Jurisdiction---Disputes among farmers---Canal Authorities, on application filed by petitioner, made amendment in existing Warabandi of irrigation water---President Farmers Organization took cognizance of the matter and set aside the order passed by Canal Authorities in exercise of his powers under Rr.18 and 23 of Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005---Plea raised by petitioner was that President Farmers Organization was not an appellate authority against an order passed by Authorities under S.68 of Canal and Drainage Act, 1873---Validity---Word "shall" was used in R.23 (1)(2) and (3) of Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005, which were mandatory in nature---Farmers Organization could not take cognizance of dispute directly without referring the matter by Khal Punchayat--Respondent was duty bound to approach Khal Punchayat for resolution of dispute, in the first instance, which would mediate the dispute between farmers for equitable distribution of canal water as per R.17 (a) of Punjab Irrigation and Drainage Authority (Pilot Farmers Organization) Rules, 2005---President Farmers Organization was not appellate authority regarding orders passed by canal authorities; case had not been referred by Khal Punchayat to Farmer Association; application under S.68 of Canal and Drainage Act 1873, was filed on 4-5-2005, whereas Punjab Irrigation and Drainage Authority Act (Pilot Farmers Organization) Rules, 2005 were enforced thereafter, therefore, Rules had no retrospective effect---Order passed by President Farmers Organization was passed illegally, without lawful authority and was of no legal effect---Petition was allowed accordingly.

Dr. Shahida Nasreen, Additional Medical Superintendent, Services Hospital, Lahore v. University of the Punjab through Vice-Chancellor, Lahore and 2 others PLD 1999 Lah. 207 rel.

Sh. Naveed Shaharyar for Petitioner.

Muhammad Jamil Bhatti of Respondents Nos.1 to 3.

Sajjad Ullah Malik for Respondents Nos.4 and 5.

Date of hearing: 20th March, 2007.

2007 C L C 1145

[Lahore]

Before Syed Hamid Ali Shah, J

ZAHEER AHMAD----Petitioner

Versus

Mst. NASIMAN BIBI alias NASIM BIBI and 3 others----Respondents

Writ Petition No.5219 of 2006, decided on 9th January, 2007.

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

----S. 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Legitimacy of child---Maintenance---Family Court as well as Appellate Court burdened the father with monthly maintenance of the minor child---Father denied maintenance on the ground that child was born on 7-11-2004, at a point of time when the spouse had been living in desertion since, 2-12-2003 and the child was born after 11 months and 5 days from desertion---Validity---Father was denying maintenance to the child, disowning him as his issue and accusing mother of the child of having given birth to an illegitimate child---Question of legitimacy of child had a far reaching impact, therefore, determination of such question should not be taken lightly---Allegation by husband, or his act of disowning child born out of wedlock, should not be given weight, without strict proof in such regard to the contrary---Paternity of child born out of lawful wedlock, had a presumption of truth in its favour---Simple denial would not take away status of legitimacy and according to Islamic Law, "child follows the bed"---Every presumption was made in favour of legitimacy of child and was presumed to be an issue of his parents without any acknowledgement or affirmation of parentage on the part of father---Courts had always leaned in favour of legitimacy of a child, in absence of any cogent evidence to the contrary---No proof on record was available to support the contention of father that child was illegitimate---Moreso, when father had not approached the court of competent jurisdiction for Li'an thus the child who was born in wedlock was a legitimate child and as such entitled to be maintained by father--Judgments and decrees passed by two Courts below were maintained---Petition was dismissed in circumstances.

Sections 146 and 149 of Majmooa-e-Qawaneen-a-Islam by Dr. Tanzeel-ur-Rehman; Mst. Hamida Begum v. Mst. Murad Begum andf others PLD 1975 SC 624; Nazir Fatima v: Ghulam Fatima and others 1987 CLC 2073; Bashir and others v. Ilam Din and others PLD 1988 SC 8; Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275; Muhammad Tallat v. Mst. Yasmin Zohra and another 1992 CLC 1180; Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lah. 575 and Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605. rel.

(b) Islamic Law---

----Legitimacy---Principles---Sunni school of thought---Child born after six months of marriage or within two years of dissolution of marriage would be presumed to be a legitimate child of his father---To dislodge such presumption one has to prove that the child was born within six months of marriage or more than two years after divorce.

Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others 1987 MLD 172; Maqbool Hussain v. Abdur Rehman and others PLD 1995, Pesh. 124 and Verse No.15, Surrah Ahqaf (Part XXVI) fol.

(c) Islamic Law---

----Legitimacy---Husband repudiating a child---Principles---Husband who wishes to repudiate the child, so born, can only do so by procedure of Li'an---Such husband swears before Qazi that child is illegitimate and fruit of adultery, in which case the Court passes a decree, not only of dissolving the marriage but also declaring the child illegitimate---Such husband has to disown the child immediately on the birth of child or on having knowledge of such birth---Strong and unimpeachable evidence is required to prove illegitimacy and one has to prove that child was born after a lapse of three consecutive periods of "Tohar" subsequent to death or divorce by husband, as "Iddat" comprises. of three .periods of "Tohar".

(d) Islamic Law---

---Divorce---Rights of women---Restraining women in order to tease them or enhance their agony is strictly prohibited in Islam.

Verse No.231 of Sura Al-Baqra (Part-II); Verse No.26 of Sura Al-Baqra (Part 2) and Verse No.231, Sura Al-Baqra Part 2 rel.

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

---Art. 199---Constitutional petition---New plea---Effect---Defendant is required to raise all points of law and fact in written statement---Ground/plea not raised before the courts below cannot be considered for the first time in constitutional petition.

Amir Shah v. Ziarat Gul 1998 SCMR 593 and Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 rel.

Rai Muhammad Tufail Khan Kharal for Petitioner.

Ch. Khalid Farooq Akbar for Respondents.

2007 C L C 1151

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD WAKIL KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others----Respondents

Writ Petition No.18765 of 2005, heard on 16th March, 2007.

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

----S. 13(6)---Arrears of rent---Relationship of landlord and tenant was disputed---Effect---If relationship of landlord and tenant is denied by tenant, no order for deposit of rent can be passed by Rent Controller till such time, the question of relationship is decided by him.

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

----S. 145(5)-"Tenant"-Scope---Appellate authority can only direct tenant to deposit rent---Word "tenant" used in S.15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, instead of "appellant" is not without significance---If intention of Legislature had been that order for deposit of rent can be passed, there was nothing to prevent Legislature from conveying its intention by using word "appellant" and not "tenant"---Unless, Appellate Authority comes to conclusion that appellant before it is a tenant, no order for deposit of rent can be passed by relying upon findings of Rent Controller which is under appeal before Appellate Authority.

(c) Appeal---

----Appeal is continuation of original cause---Once appeal is filed the entire matter stands reopened and finality of order under appeal disappears.

F.A. Khan v. The Government of Pakistan PLD 1-969 SC 520 rel.

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

----Ss. 13(6) & 15(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Dispute about relationship of landlord and tenant---Deposit of arrears of rent---Tenant denied such relationship but Rent Controller found him to be tenant and directed him to deposit arrears of rent--Tenant assailed order of Rent Controller and Appellate Court directed him to first deposit the arrears of rent---Plea raised by tenant was that Appellate Court, without first deciding question of relationship, could not have directed him to deposit arrears of rent---Validity---Such order directing tenant to deposit arrears of rent without giving any finding regarding relationship of landlord and tenant by Appellate Court was without lawful authority and against the spirit of S.15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959---High Court in exercise of constitutional jurisdiction, set aside the order and remanded the case to Appellate Court for deciding the appeal afresh---Petition was allowed accordingly.

Muhammad Siddique v. Fazal Hussain Qureshi and 2 others PLD 1996 Lah. 252; M. Imamuddin v. Mst. Suiriya Khanum through Legal Heirs PLD 1991 SC 317 and Muhammad Qayyum Qureshi v. Sheikh Iftikhar Ahmed and others 2001 CLR 104 rel.

Qamar Riaz Hussain Basra for Petitioner.

Ahmed Awais Khurram and Sardar Nazir Ahmed for Respondents Nos.3 and 4.

Respondents Nos.1 and 2 are pro forma respondents.

Date of hearing: 16th March, 2007.

2007 C L C 1156

[Lahore]

Before Syed Hamid Ali Shah, J

IQBAL AHMED KHAN and another----Petitioners

Versus

ASIF ALI KHAN and 8 others----Respondents

Writ Petition No.13235 of 2006, decided on 28th February, 2007.

(a) Administration of justice---

----Resolution of dispute---Special procedure---Scope---Party when persuades a court to adopt a procedure for resolution of dispute, such party is debarred from challenging its validity on the ground of non-compliance of prescribed procedure.

(b) Punjab Local Government Elections Rules, 2005---

---R. 36(6)---Recounting of votes---Written application---Specific prayer was made in application for comparison of result---District Returning Officer summoned the Presiding Officer of the polling station and then passed the order with the consent of parties---Effect---Provisions of R.36(6) of Punjab Local Government Elections Rules, 2005, were sufficiently complied with in circumstances.

(c) Punjab Local Government Elections Rules, 2005---

---Rr. 35(9) & 36(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Factual controversy---Recounting of ballot papers---Presiding Officer, instead of filing election result on Form-XIII, tiled the result on plain paper---Returning Officer with the consent of candidates recounted the votes and declared the respondents as returned candidates---Reason given by Presiding Officer for filing of result on plain paper was snatching of Form-XIII by agent of one of the candidates-Validity-Questions 'that Form-XIII with other material was snatched by agent of one candidate; that contents of Form-XIII of concerned Polling Station were not entered by Presiding Officer; that Presiding Officer was not in possession of prescribed Form-XIII and had sent statement of count on plain paper for such reason; that result was prepared by Presiding Officer to favour respondents were questions of fact and could not be determined in constitutional jurisdiction--Petitioners could agitate such controversial question of fact through filing election petition---High Court in exercise of constitutional jurisdiction declined to interfere with election result prepared by election authorities---Petition was dismissed in circumstances.

Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others 1999 SCMR 1123 ref.

Dr. A. Basit and Ch. Bashir Ahmad for Petitioners.

Azam Nazir Tarar for Respondents Nos.1 and 2.

Nemo for other Respondents.

2007 CLC 1160

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

Mst. SHAHIDA ADEEB and another----Appellants

Versus

NAUMAN EJAZ and another----Respondents

R.F.A. No.79; C.M.As. Nos.1106-C and 1107-C of 1999, heard on 11th January, 2007.

(a) Islamic law---

----Gift---Essential ingredients---For a valid gift, the essential ingredients are declaration of gift by donor; acceptance of gift, express or implied, by or on behalf of donee and delivery of possession of subject of gift by donor to donee---Writing is not essential to validity of a gift---It is immaterial that donor has also executed a deed of gift but the deed was not registered.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121 and Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194 ref.

(b) Islamic law---

----Hiba-bil-Iwaz---Gift of land in lieu of dower---Scope---Muslim husband executes a deed in favour of his wife whereby he granted immovable property to her in lieu of her dower---Even if possession of property given as gift is not delivered to wife, such transaction is valid as Hiba-bil-Iwaz.

Inayat Ullah v. Perveen Akhtar 1985 CLC 1454 rel.

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

----S. 8---Partition Act (IV of 1893), S.4---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 84---Islamic Law---Suit for partition and possession---Acknowledgement deed---Proof---Comparison of signatures by court---Enhancing of dower amount---Gift of property in lieu of dower---Deceased owner of suit property had two wives and plaintiffs were children from one wife, while the second wife was in possession of the suit property---Plaintiff sought partition of suit property, which was resisted by defendant on the ground that her dower amount was enhanced and suit property was gifted to her in lieu of dower---Suit was decreed by Trial Court in favour of plaintiffs---Validity---In case of Muslim woman, it was open to husband to fix dower amount at any time before or after marriage---Husband could further increase amount of dower at any time during the continuity of marriage---For purposes of increasing dower declaration by husband was sufficient---Marriage, in the present case, took place on 25-12-1986 and Rs.50,000 was fixed as prompt dower---Compromise was reduced into writing in presence of two witnesses but none of those witnesses was produced in Court---Defendant failed to prove that dower amount was enhanced from Rs.50,000 to 'Rs.15,00,000---High Court compared signatures of predecessor-in-­interest of parties, available on acknowledgement deed, with passport and was satisfied that signatures of deceased available on passport were not identical with that of deceased available on acknowledgement deed---No oral gift was made by deceased in favour of defendant nor acknowledgement deed was reduced into writing by deceased in favour of defendant---High Court in exercise of appellate jurisdiction maintained judgment and decree passed by Trial Court-Appeal was dismissed in circumstances.

Chan Pir v. Fakar Shah AIR 1940 Lah. 104; Mst. Roshan Ara v. Mst. Badri Kamala and 9 others 1989 SCMR 1981 and Mian Aziz A. Shaikh v. The Commissioner of Income Tax C.A. No.32 of 1980 rel.

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

----O. XLI, R.27---Qanun-e-Shahadat (10 of 1984), Ars.85 & 86---Additional evidence production of---Principles---Appellant sought permission of High Court to file certain documents bearing signatures of deceased including original passport, for comparison with document to be proved---Validity---High Court allowed production of original passport of predecessor-in-interest of parties, being public document for the purpose of comparison of his signatures with the available signatures on acknowledgement deed---Rest of the documents were not public documents and were required to be proved under the provisions of Qanun-e-Shahadat, 1984---Private documents were in the possession of appellant during the trial---Appellant did not assign any reason in the application for non-production of private documents before Trial Court---High Court did not require private documents, therefore, to the extent of producing documents except Passport, the application was dismissed.

Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 rel.

Abdul Rasheed Awan for Appellants.

Mehmood-ul-Hassan Awan for Respondents.

Date of hearing: 11th January, 2007.

2007 C L C 1168

[Lahore]

Before Mian Saqib Nisar, J

Rao MUHAMMAD MUBIN----Petitioner

Versus

DIVISIONAL CANAL OFFICER, IRRIGATION DEPARTMENT KHANWAH DIVISION, DEPALPUR and others----Respondents

Writ Petition No.1951 of 2006 and Civil Revision No.378 of 2004, heard on 21st February, 2007.

Canal and Drainage Act (VIII of 1973)---

----S. 68-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Water distribution---Entitlement---Change of Nakka (watercourse)---Water supply to petitioner's land prior to his purchase was from different Nakka through another square---Grievance of petitioner was that supply of water to his lands should be made through Nakka in dispute---Canal Authorities resolved the dispute under S.68-A of Canal and Drainage Act, 1973---Validity---Petitioner should use the land which was previously being used and if he on account of any change in level was deprived of original watercourse, he should apply to Canal Authorities for acquisition of land for establishment of new watercourse---Petitioner under no circumstances could ask to have the water supply through any of the land belonging to respondents---Neither the order passed by Canal Authorities could be set aside, which even otherwise had been challenged after a delay of eight years, nor petitioner could be given a right to use the land of respondents---Petition was dismissed in circumstances.

Shamas-ud-Din v. Province of Punjab .through Secretary, Irrigation and Power, Lahore and 3 others PLD 1992 Lah. 370 and Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCMR 613 fol.

Ch. Hameed-ud-Din for Petitioner.

Ch. Imdad Ali Khan and Ms. Seema Munawar, A.A.-G. for Respondents.

Date of hearing: 21st February, 2007.

2007 C L C 1176

[Karachi]

Before Anwar Zaheer Jamali, J

SHABBIR AHMED and 4 others----Applicants

Versus

PROVINCE OF SINDH through Deputy Commissioner, Hyderabad now Executive District Officer, Revenue, Hyderabad and 12 others----Respondents

Civil Revision Application No.S-10 of 2007, decided on 7th May, 2007.

Civil Procedure Code (V of 1908)---

----O. XVIII, R.18 & O.XXVI, R.9 & S.115---Appointment of Commissions for site inspection---Revision petition had been filed to impugned order passed by Appellate Court below whereby application for site inspection through Commission was dismissed---Submission of counsel for petitioners was that site inspection report would elucidate evidence already adduced by the parties in the suit and that would not cause any prejudice to the interest of either party---Appellate Court, without assigning any cogent reason, had turned down request of petitioners---Counsel for respondents had not contradicted submission of petitioners, but conceded that site inspection would enable the court to appreciate evidence adduced by the parties in a more appropriate and effective manner---Revision was allowed, impugned order was set aside and application for appointment of Commissioner, filed by petitioners was allowed as prayed for---Commissioner so appointed would inspect the site of properties in dispute and submit his report before Appellate Court within specified period and Appellate Court would dispose of appeal accordingly.

Muhammad Arshad Pathan for Applicants.

Masood A. Noorani, Addl. A.-G. Sindh along with Salamat Ali Memon Mukhtiarkar Matiari for Respondent No.3.

Irfan Ahmed Qureshi for Respondents Nos.5 to 13.

2007 C L C 1181

[Lahore]

Before Iqbal Hameedur Rahman, J

Messrs ZIA BROTHERS----Petitioner

Versus

SECRETARY OF PURCHASE COMMITTEE, FOR THE GIRL COMMUNITY MODEL SCHOOL ALIPUR----Respondent

Writ Petition No.5881 of 2006, heard on 16th April, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Contractual obligation---Enforcement of a term of contract---Maintainability of constitutional petition---Where enforcement of a term of contract was sought against the statutory Corporation or the Government, High Court could interfere in the matter---Delivery of items to be supplied by the petitioner and liability to make payment having been accepted by the department, it would not be fair to non-suit the petitioner merely on the ground that contractual obligation could not be enforced through a constitutional petition---Constitutional petition was accepted and the department was directed to make payment of the Bill to petitioner with compensational the rate of 14% per annum for depriving him of his due amount for a period over more than a decade.

Muhammad Javaid v. LESCO through Chief Executive and 5 others PLD 2007 Lah. 91; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisara Elahi and others 2005 SCMR 678; Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121; Messrs United International Associates through Managing Partner v. Province of the Punjab and another 1999 MLD 2745; Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Rah-ma Pipe General Mills (Pvt.) Ltd. v: Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 127 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 ref.

Abdul Rashid Sheikh for Petitioner.

Muhammad Qasim Khan, A.A.-G. and Miss Shama Zia Deputy Secretary, Education, Civil Secretariate, Punjab, Lahore for Respondent.

Date of hearing: 16th April, 2007.

2007 C L C 1188

[Karachi]

Before Faisal Arab, J

WALI MUHAMMAD and 5 others----Applicants

Versus

PROVINCE OF SINDH through D.C.O. Hyderabad and 10 others----Respondents

Civil Revision Application No.71 of 2006, decided on 11th May, 2007.

Civil Procedure Code (V of 1908)---

----S. 115---Revision petition---Petitioners' appeal was dismissed by Appellate Court on two technical grounds, firstly that defendant against whom decree was passed by the Trial Court, and who had not preferred appeal, were not arrayed as respondents, in appeal and secondly that official respondent who were defendants in the suit had not been made respondents in appeal---Dispute was purely between private parties, and official respondents were not necessary parties---Appellate Court did not give its decision on merits of the claim of respective parties and dismissed appeal only on technical grounds---Said technicalities could have been cured through amending the title of appeal subject to plea of limitation, if any---Impugned judgment was set aside and case was remanded to Appellate Court for decision of appeal on merits after amending title of memo of appeal.

Irfan Ahmed Qureshi for Applicants.

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

Aijaz Ali Hakro for Respondents Nos.6 to 11.

2007 CLC 1192

[Lahore]

Before Syed Zahid Hussain, J

Engineer JAMEEL AHMAD MALIK----Petitioner

Versus

SHAUKAT AZIZ and 6 others----Respondents

Election Petition No.2 of 2004, decided on 20th April, 2007.

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

----Ss. 52, 55, 62 & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Maintainability---Verification and attestation of election petition---Procedure---Failure of petitioner to comply with the provisions of Ss.54, 55 & 63, Representation of the People Act. 1976 and verification of the petition not in conformity with the provisions of S.55(3) of the Act read with O.VI, R.15, C.P.C.---Effect---Held, strict compliance of requirement of law was mandatory and deviation therefrom could not be afforded---Even small and trivial deviations from procedure and form prescribed by the election laws would result in dismissal of the election petition---When defects in the petition were so obvious and fatal, there would be no use of the trial on other issues and the petition was liable to be dismissed---Principles.

Jagan Nath v. Jaswant Singh and others AIR 1954 SC 210; Devi Prasad v. Chairman of the Court of Election Tribunal Gorakhpur and another AIR 1956 All. 19; M. Karunanidhi v. H.V. Handa and others AIR 1983 SC 558; Zafar Iqbal Jhagra's case 2000 SCMR 250; Muhammad Ashraf Rasool v. Ali Abbasi and 13 others 200'4 YLR 1742; Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner 2005 CLC 172; Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema and another 2005 CLC 1577; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Muhammad Saeed v. Tahir Malik and others 2005 CLC 1493; Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mir Mazar v. Azim PLD 1993 SC 332; Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lah. 149; Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2002 YLR 3148; S.M. Ayub v. Syed Yousaf Shah and 2 others PLD 1967 SC 486; Engineer Jarneel Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914; Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724; Muhammad Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132; Haji Mian Aziz-ur-Rehman Chan v. Mian Abbas Sharif and another 1994 MLD 2293; Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2116; Collector of Customs and another v. Saeed-ur-Rahman and others PLD 1989 SC 249; Syed Abdul Hameed v. Syed Boo Ali Shah Zaidi 1999 MLD 2989; Mithilesh Kumar Panday v. Baidyanath Yadav and others AIR 1984 SC 305; U.S. Sasidharan v. K. Karunakaran and another AIR 1990 SC 924; Badan. Yadav v. Shri Abdul Kadir and others AIR 1998 Born. 60; Badan Singh Raghuvanshi v. B. Rajgopal Naidu and another AIR 2000 M.P. 56; Jai Bhansingh Pawaiya v. Madhavrao and others AIR 2000 M.P. 111; Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and others AIR 2000 Born. 362; R.P. Moidutty v. P.T. Kunju Muhammad and another AIR 2000 SC 388; Sri T. Phungzathangh v. Sri Hangkhanitan (MLA) and others AIR 2001 Gauhati 52; Heera Singh Chouhan v. C.D. Dewal and others AIR 2005 Rajasthan 34; Muhammad Saud v. Tahir Malik and others 2005 CLC 1493; Muhammad Tariq Khan Swati v. Shujah Salam Khan and 7 others 2007 CLC 671; Malik Umar Aslam v. Sumera Malik C.A. No.1716 of 2003; Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460; Mahr Zafar Ahmed Haraj v. Dr.' Khawar Ali Shah 1988 CLC 1289; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CL 175; Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766 and Peter John Sahotra v. Returning Officer and others 1995 CLC 394 ref.

(b) Precedent---

----Whenever there is any uncertainty or obscurity about a legal position qua any particular proposition, the view expressed by a larger Bench prevails and when the Benches are of equal strength then the latest expression by the Bench holds the field.

Petitioner in person.

Waseem Sajjad, Ali Sajjad and Idress Ashraf for Respondent No.1.

Respondent No.5 in person.

Rest of the Respondents: Ex parte.

Dates of hearing: 23rd, 27th, 28th February (Rawalpindi) and 16th March, 2007 (Lahore).

2007 C L C 1215

[Karachi]

Before Sarmad Jalal Osmany and Sajjad Ali Shah, JJ

ARABIAN SEA ENTERPRISES LTD.----Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 3 others----Respondents

C.Ps. Nos.D-1401 of 2002, 537, 616 and 617 of 2003 and 1640 of 2005, decided on 11th May, 2007.

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----Ss. 3 & S---Government of Pakistan Circular No.1-129/99-I & V-IV, dated 2-8-1999---Government of Sindh Notification No.S.O.(Taxes)/E & T/3 (310) 2001 P T II, dated 26-6-2002---Constitution of Pakistan (1973), Art.199 and Federal Legislative List, Part II, Item No.3---Constitutional petition---Hotel---Determination of annual rental value of the Hotel property for the purposes of levy of property tax classifying the same as commercial property'-Contention of the petitioners/Hotels was that classification of the petitioners' property as an ordinary 'commercial property' instead ofindustrial' was void and of no legal effect in view of Government of Pakistan Circular No.1-129/99-I & V-IV, dated 2-8-1999 which had restored the status of tourism as an industry and such declaration by the Government of Pakistan was under the powers derived from Federal Legislative List, Part II, Item No.3 of the Constitution, therefore notification by Provincial Government could not have classified their property as commercial property for purpose of levy of property tax---Validity---Held, it might be true that in order to promote tourism the Federal Government had provided certain concessions to the tourism including hotels etc. to attract investors however, such concessions or the change of status was only for the purposes of providing specified concessions and incentives and it could not be said that it had changed the status of the property even for the purposes of assessment of property tax---Circular, whatever its nature might be, could not upset the provisions of a statute duly promulgated within the competence of' a Province---Principles---Constitutional petition was dismissed in circumstances.

Messrs Tures Hotel Limited v. Capital Development Authority 2006 SCMR 1738; Farough Ahmed Siddiqui v. The Province of Sindh PLD 1996 Kar. 267; Karachi Properties Investment Company (Pvt.) Limited v. Government of Sindh C.P. No.D-1893 of 2002 and Al-Ahram Buildings (Pvt.) Limited v. Income tax Appellate Tribunal 1993 SCMR 29 ref.

(b) Interpretation of Statutes---

----Circular, whatever its nature might be, could not upset the provisions of a Statute duly promulgated with competence.

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

----Art. 199---West Pakistan Urban Immovable Property Tax Act (V of 1958), S.10---Constitutional jurisdiction of High Court---Scope---Once a party opts to invoke the remedies provided for under the relevant Statute, he cannot, at his own sweet-will switch over to constitutional jurisdiction of the High Court in the mid of the proceedings in the absence of any compelling and justifiable reasons.

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

----Art. 122---West Pakistan Urban Immovable Property Tax Act (V of 1958), Ss.3 & 5---Levy of property tax---Expiry of the life time of an Ordinance---Effect---When an Ordinance was promulgated during the pendency of proceedings and had lapsed well before the proceedings were taken up for final adjudication and since assessment of property tax was a recurring process, it could not be held that parties to the proceedings had acquired any right or privilege .in perpetuity to be enforced accordingly.

Kazi Abdul Hameed Siddiqui for Petitioners (in Civil Petitions. Nos.D-1401 of 2002, D-537, 616 and 617 of 2003).

Naveed Ahmed for Petitioners (in Civil Petition No.1640 of 2005).

Ahmed Pirzada, Addl. A.-G. for Respondents Nos.1 to 3

Ms. Sofia Saeed Shah, Standing Counsel for Respondents Nos.4 and 5.

Date of hearing: 19th December, 2006.

2007 C L C 1237

[Karachi]

Before Mrs. Qaiser Iqbal, J

Master AGHA JAN AHMED and another----Plaintiffs

Versus

AMERICAN LIFE INSURANCE COMPANY PAKISTAN LIMITED through Secretary Trading----Defendant

Suit No.1353 of 2003, decided on 7th May, 2007.

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

----O. VII, R. 2---Insurance Ordinance (XXXIX of 2000), S.118---Criminal Procedure Code (V of 1898), S.174---Qanun-e-Shahadat (10 of 1984), Art.28---Suit for recovery of amount seeking decree towards the benefit accrued under the Insurance Polices and liquidated damages in terms of S.118, Insurance Ordinance, 2000---Insurance Company (defendant) raised preliminary issues that the death of the plaintiffs' father was solely based on suicide which was expressly covered by the terms of Insurance and only the premium was required to be paid---Entire case of the Insurance Company was based upon the testimony of interested witnesses as well as disposal report of the Magistrate under S.174, Cr.P.C. which could not be relied upon---Onus of proof rested upon the Insurance Company which was not discharged to arrive at specific conclusion that plaintiffs were not entitled to the benefits from Insurance Company---Criminal and civil cases were decided on the basis of their own strength---Finding of a criminal Court was not binding or even relevant for adjudicator of a civil suit which was to be decided on basis of preponderance of evidence---Art. 78, Qanun-e-Shahadat, 1984 provided that after the insured proved the factum of loss on account of the risk covered by the Insurance Policy the burden was on the Insurance 'Company to prove that the case was covered under the exceptions provided by the Insurance Policy or the condition on the point of the insured to disentitle the claim of beneficiary under the Insurance Policy---Claim of liquidated damages having not been pressed by the plaintiffs which otherwise could not be granted in peculiar facts and circumstances of the case as decree for the amount of insurance benefits was passed by High Court against the Insurance Company.

Scotish Union and National Insurance v. N. Roushan Jahan Begum AIR (32) 1946 Oudh 152; 65 I. A. 66; Northern India Insurance Co. Ltd. v. Kanhaya Lal AIR 1938 Lah. 561; Cleaver and others v. Mutual Reserve Fund Life Association From the Court of Peace CA 1891; Beresford v. Royal Insurance Co. Ltd. All England Law Reports 1936 page 602; Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 and Messrs Foremost Trading Company v. Messrs Caledonian Insurance Company Limited and 2 others PLD 1988 Kar. 131 ref.

(b) Penal Code (XLV of 1860)---

----Ss. 40, 84 & 325---Suicide is not an offence in Pakistan---Principles.

Scortish Union and National Insurance v. N. Roushan Jahan begum AIR (32) 1946 Oudh 152; 65 I.A. 66; Northern India Insurance Co. Ltd. v. Kanhaya Lal AIR .1938 Lah. 561; Cleaver and others v. Mutual Reserve Fund Life Association From the Court of Peace CA 1891; Beresford v. Royal Insurance Co. Ltd. All England law Reports 1936 page 602 and Ghulam Rasool v. Muhammad Waris Bismil 1995 SCMR 500 ref.

(c) Suicide---

----Not an offence in Pakistan---Principles.

Habibur Rehman and A. Qadir Khan for Plaintiffs.

Khalid Rehman for Defendant.

Date of hearing: 15th March, 2007.

2007 C L C 1247

[Karachi]

Before Sajjad Ali Shah, J

Mrs. RUKHSANA PARVEEN----Applicant

Versus

Syed SHABAHAT HUSSAIN NAQVI----Respondent

J.M. No.36 of 2005 and C.M.A. No.1903 of 2006 in Suit No.785 of 2004, decided on 30th October, 2006.

(a) Arbitration Act (X of 1940)----

----Ss. 41, 14(1), (2), 30 & 33---Civil Procedure Code (V of 1908), Ss.12(2) & 151---Limitation Act (IX of 1908), Art.178---Notice under S.14(1), Arbitration Act, 1940---Limitation---Dispute between decree holder and judgment debtor by consent and as per the terms of agreement, was referred to sole arbitrator through a joint application---Award pronounced was duly signed by the authorized representatives of the parties---Award directed the judgment debtor to pay a certain sum to the decree holder within nine months, however, the judgment debtor failed to pay the said amount within the period as provided in the award, therefore, the decree holder filed an application under S.14(2) of Arbitration Act, 1940 seeking directions against the Arbitrator to file the award in Court which was done and decree passed and the decree holder filed application for execution of the decree---Notice of the execution was served upon the judgment debtor on 12-4-2005, whereafter she filed an application under S.12(2) read with S.151, C.P.C. for setting aside the order, dated 24-11-2004, whereby the award was made rule of the Court and decree passed in consequence thereof---Objections were filed on the same date under S.30 read with S.33, Arbitration Act, 1940 for setting aside the award---Judgment debtor, in both such applications had totally denied the case of decree holder including the appointment of Arbitrator, the arbitration proceedings, receipt of notice from the High Court except in execution proceedings leading to filing of application under S.12(2), C.P.C. as well as objection to the award---Judgment debtor's contention was that application under S.14(2), Arbitration Act, 1940 was time barred for the simple reason that the award itself reflected that same was passed on 12-9-2003, whereas application under S.14(2) of the Act was presented in Court on 1-7-2004, after almost nine months, whereas Art.178, Limitation Act, 1908 provided limitation of 90 days from the receipt of notice of award---Validity---Notice/summons were duly received by the judgment debtor on 19-7-2004 of the application under S.41, Arbitration Act, 1940 as well as notice under S.14(2) of the said Acton 2-9-2004---Objections filed by the judgment debtor under S.30 read with S.33 of Arbitration Act, 1940 could not sustain being barred by more than seven unexplained months---Notices as required to be given by the Arbitrator under S.14(1) of the Act, unless given in writing in any form, would not commence the period of limitation for the purpose of Art.178, Limitation Act, 1908, consequently the application under S.14(2), Arbitration Act, 1940 filed by the decree holder before the High Court could not be ruled as time barred.

Mst. Nigar Bibi and others v. Salahuddin Khan PLD 1990 SC 76; Pakistan through General Manager Railways v. Messrs QMR Expert Consultants PLD 1990 SC 800; Muhammad Wasi Saigal v. Shaikh Rashid Ahmed 1988 CLC 267; Messrs Combined Enterprises v. WAPDA Lahore PLD 1988 SC 39; Government of Sindh v. Fazal Muhammad. PLD 1991 SC 197; Muhammad Yasin v. Shaikh Hanif Ahmed 1993 SCMR 437 and Muhammad Mushtaq Saigal v. Muhammad Wasi Saigal 2001 SCJ 96 ref.

Pakistan through General Manager Railways v. Messrs QMR Expert Consultants PLD 1990 SC 800 distinguished.

(b) Arbitration Act (X of 1940)---

----Ss. 30, 33 & 14(2)---Civil Procedure Code (V of 1908), S.12(2)---Decree passed in an award---Application under S.12(2), C.P.C.---Maintainability---Ss.30 & 33, Arbitration Act, 1940 refer to only award and not decree passed on the basis of award, there being no provision in Arbitration Act, 1940 for challenging such decree on the ground that the same has been obtained by misrepresentation and fraud---Applicability of S.12(2), C.P.C., therefore, has not been excluded.

Muhammad Yasin v. Shaikh Hanif Ahmed 1993 SCMR 437 and Messrs Combined Enterprises v. WAPDA Lahore PLD 1988 SC 39 ref.

(c) Arbitration Act (X of 1940)---

----S. 14(2)---Filing the award in Court---Issuance of notice to the parties---Procedure---Held, law envisaged issuance of notice to the parties after the award had been filed in Court but there was nothing even to infer the issuance of notice to the parties to the arbitration proceedings upon an application seeking direction against the arbitrator to tile award in Court.

Nazar Akbar for Applicant.

Shafaat Hussain for Respondent.

Umar Farooq Khan for Arbitrator.

2007 C L C 1261

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mst. SHEHAR BANO through her husband----Plaintiff

Versus

Mst. BADRUNNISA and 5 others----Defendants

Suit No.969 of 2005, decided on 7th May, 2007.

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

---Ss. 22, 12 & 54---Suit for specific performance of the contract, damages and injunction---Execution of sale agreement and receipt of earnest money were admitted---Defendant, at the time of agreement, had shown herself to be absolute owner, whereas property had devolved upon her and her five sons, another sale deed thus was required to be executed by the parties which was done---Defendants had failed to deliver photocopies of the title documents enabling the plaintiff to proceed with the registration of conveyance deed which in fact was the liability of defendants---Onus to prove that the plaintiff had breached the terms of the agreements did not stand discharged from the defendant's evidence---Agreements having merged, were sought by plaintiff to be acted upon---Parties thus were under obligation to fulfil its covenants---Defendants having not discharged their obligations, sale deed could not be finalized---Defendants thereafter, had breached the terms of the agreements the effect of which was that plaintiff's suit was maintainable.

(b) Specific, Relief Act (IV of 1877)---

----Ss. 22 & 12---Specific performance of agreement to sell---Relief of specific performance of a contract is discretionary in nature and is to be exercised judiciously, equitably and on well recognized judicial considerations as required by S.22 of the Specific Relief Act, 1877---Where facts and circumstances of the case lent support to the plaintiff's case that it was within the knowledge of defendant, that she was not the only surviving legal heir of her deceased husband, there was no justification on her part to execute sale agreement claiming to be sole owner of the property---However through a subsequent agreement the defendants (all the legal heirs of the deceased) had agreed to abide by the terms of the contract---Careful scrutiny of the evidence of the defendants in juxtaposition to the evidence of the plaintiff revealed that plea of defendants of breach of agreement by the plaintiff was not established and evidence- equitably made out the transaction of sale.

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

----Ss. 22 & 12-Suit for specific performance of agreement to sell---Exercise of jurisdiction by Court under S.22, Specific Relief Act, 1877---Nature and scope---Court declining to exercise discretion to grant specific performance of contract---Principles and considerations.

Section 22 of the Specific Relief Act, 1877 had given illustrations which are not exhaustive to demonstrate in which cases the Court may decline the exercise of power to grant of specific performance of a contract (i) where the circumstances, under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part and (ii) when the performance of the contract would involve some hardship to the defendant which he did not foresee when his non-performance of the contract would involve in such hardship on the plaintiff. In the present case, breach of the contract is attributed to the defendants, relief of specific performance being an equitable relief can only be refused if the equities in the case are against the plaintiff.

The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the contract of the plaintiff which entitles him to the grant of equitable relief for specific performance of contract, which. cannot be refused merely because it is lawful for the Court to refuse it. Court may properly exercise discretion to decree specific performance when the plaintiff has done substantial acts or suffered losses in consequences of a contract capable of a specific performance.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 ref.

(d) Specific Relief Act (1 of 1877)---

----Ss. 22 & 12---Suit for specific performance of agreement to sell---Time not essence of the contract---Plaintiff, in the present case was not guilty of misconduct as the defendant had categorically stated on oath that she was prepared to sell the property on the prevalent market rate to the plaintiff---Intention of the parties could be gathered from the terms of the contract and the facts and circumstances of the case---Mere stipulation of a specific time in the contract for its performance would not necessarily mean that time was of the essence of the contract---Contentions of the defendant that the contract stood cancelled for non-performance by the plaintiff of his part of contract within stipulated period was not tenable in circumstances.

Abdul Hamid v. Abbas Bhai alias Abdul Hussain Sodawaterwala PLD 1962 SC 1 ref.

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

---Ss. 22 & 12---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement to sell---Time essence of the contract---Requirements---Intention to make time essence of the contract must be expressed in unmistakable language or it may be inferred from what passed between the parties before but not after the contract is made.

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

---Ss. 22 & 12---Suit for specific agreement to sell and damages---Plaintiff who was a bona fide purchaser for valuable consideration, had failed to adduce cogent evidence to substantiate his claim for damages or any penalty, he was therefore, entitled to specific performance of the agreement only---Suit of plaintiff was decreed in circumstances.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 and Abdul Hamid v. Abbas Bhai alias Abdul Hussain Sodawaterwala PLD 1962 SC 1 ref.

Abdul Karim Siddiqui for Plaintiff.

Amjad Ali for Defendant.

2007 C L C 1271

[Karachi]

Before Mushir Alam, J

IMAMDAD----Applicant

Versus

MAQSOOD AHMED and 5 others----Respondents

Civil Revision Application No.1 of 2005, decided on 23rd April, 2007.

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

----O. IX, R.6(1)(a)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Powers of court to proceed ex parte---Scope and extent---Word `may' occurring in O.IX, R.6(1)(a), C.P.C.-Connotation.

Indeed Order IX Rule 6(1)(a), C.P.C. empowers a Court to proceed ex parte and pass the judgment and decree even without recording evidence. Use of word "may" in sub-rule 6(1)(a) indeed confers discretion on Court to pass decree without recording evidence. It would be anomalous to say that such power is to be exercised baldly and without application of mind. Such discretion must be exercised judiciously and fairly and not arbitrarily or in fanciful manner. A Court of law is not expected to shut its eyes and mechanically pass the judgment and decree invariably in favour of plaintiff. Such power also envelopes power to pass judgment and decree to dismiss the suit as well. The Plaintiff has to stand on his own legs to satisfy the conscience of the Court as to existence of any right, sufficiency or otherwise of evidence, bar of limitation or otherwise. In ex parte proceedings Courts are expected to be more conscious and not to mechanically pass the judgments and decrees in favour of plaintiffs.

Admittedly, in the present case, the Plaintiff claimed agreement of sale on the strength of purported power of attorney said to be executed in favour of defendant which power of attorney was not produced before the Trial Court. It was produced in the Appellate Court. The Appellate Court took judicial notice of the fact that signature of the purported attorney on the power of attorney, purported sale agreement and so also on the purported NIC did not tally. Therefore, the authority of the Defendant to enter into transaction on behalf of the other defendants was not established. Consequently, the appeal did not find favour with the Appellate Court.

High Court was also not convinced that signature in the NIC, Sale agreement and Power of Attorney were of one and the same person.

There being no jurisdictional error in the judgments and decrees recorded by Courts below, the revision was dismissed.

Korangi Feed Limited v. Muhammad Yousaf Omer 1987 MLD 868; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; 1999 SCMR 900 and PLD 1978 SC 89 ref.

(b) Discretion---

----Discretion must be exercised judiciously and fairly and not arbitrarily or in fanciful manner.

1999 SCMR 900 and PLD 1978 SC 89 ref. Kamaluddin Ahmed for Applicant.

Masood A. Noorani, Addl. A.-G. Sindh.

2007 C L C 1275

[Lahore]

Before Muhammad Jehangir Arshad and Hasnat Ahmad Khan, JJ

Mian MUHAMMAD AKHTAR and another----Appellants

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Chief Election Commissioner of Pakistan and 5 others----Respondents

I.C.A. No.26 of 2006 in Writ Petition No.5790 of 2005, head on 27th March, 2007.

Punjab Local Government Elections Rules, 2005---

----Rr. 36 & 65---Consolidation of result---Application seeking recounting of votes to the Chief Election Commissioner---Chief Election Commissioner could not issue any order/direction for recounting of ballot papers either without issuing notice to the other party, affording him opportunity of hearing or disclosing any reason and after the publication of result in the official gazette and after the establishment of Election Tribunals within the meaning of R.65, Punjab Local Government Elections Rules, 2005 and the law declared by Supreme Court in Ch. Nazir's case PLD 2002 SC 184---Such order of Chief Election Commissioner being without jurisdiction, was acted upon by the Returning Officer and even without any objection having been raised by the respondents, proceedings conducted by the Returning Officer and the request made by Returning Officer through District Returning Officer for re-polling of the particular Polling Station and its acceptance by the Chief Election Commissioner were also without jurisdiction and without lawful authority being based on a void foundation---Principles.

Ch. Nazir Ahmad v. Chief Election Commissioner and 4 others PLD 2002 SC 184; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; 2006 SCMR 496=2006 PLC (C.S.) 355; Ahmad Khan and another v. Election Commission of Pakistan, through Secretary, Islamabad and 8 others 2006 YLR 392; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 and PLD 1990 SC 1070 ref.

Mian Abbas Ahmad for Appellants.

Ch. Saghir Ahmad for Respondents Nos.1 and 2.

Muhammad Arif Alvi for Respondents Nos.5 and 6.

Date of hearing: 27th March, 2007.

2007 C L C 1282

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL WAHAB----Appellant

Versus

MUHAMMAD IQBAL and another----Respondents

Second Appeal No.32 of 2004 and C.M.A. No.1438 of 2005, decided on 28th March, 2007.

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

----Arts. 61 & 119---Suit for recovery .of money---Documents upon which plaintiff had relied in plaint were alleged by defendant to be forged, result of undue influence, coercion and harassment---Proof---Defendant himself did not enter witness-box---Defendant in support of such defence examined his attorney, who did not produce power of attorney in evidence---Such defence should have come from mouth of defendant himself, who was supposed to put himself in witness-box and specifically allege that his signatures were forged and manipulated---Mere assertion of defendant that too without supporting document that none of such documents had been executed by him, would not be believable---Defendant had not made complaint to any authority against plaintiff for alleged forgery, harassment, coercion and undue influence---Such defence pleas were contradictory to each other---Plaintiff had succeeded to establish his case---Defendant by non-appearing in witness-box had failed to establish such defence and payment of suit amount to plaintiff---Suit was decreed in circumstances.

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

----S. 100 & O.XLI, R.33---Two second appeals by both rival parties challenging judgment of Appellate Court on totally different points---Dismissal of one appeal would not bar High Court to decide other appeal contrary to its decision so delivered in earlier appeal---Principles.

Imran Ahmed for Appellant.

Muhammad Yaqoob Imran Ahmed for Respondents.

2007 C L C 1290

[Karachi]

Before Sabihuddin Ahmed, C.J. and Mrs. Yasmin Abbasey, J

KISHWAR IQBAL KHAN----Appellant

Versus

MUHAMMAD ALI ZAKI KHAN and others----Respondents

High Court Appeals Nos.239 and 255 of 2006, decided on 26th September, 2006.

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

----S. 54---Contract Act (IX of 1872), Ss.201 & 215---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a) & 79---Sale agreement regarding property jointly owned by agent and principal being brothers inter se---Sale of property by agent after revocation of his power of attorney by principal and service of notice thereof on him---Sale of property by agent in favour of his close relative for Rs.12,75,000 instead of price of Rs.32,00,000 offered by brokers---Validity---Personal benefit of agent was involved in such sale, but before entering into agreement, he had not taken approval or consent of principal---Attesting witnesses of agreement were friends of agent, who did not produce them in court to prove agreement---Agent had failed to discharge burden to prove agreement---Such agreement was a sham transaction invented by agent just to deprive principal of his lawful share in property---Suit filed by principal was decreed in circumstances.

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

----Arts. 17(2)(a) & 79---Provisions of Art.79 of Qanun-e-Shahadat, 1984 mandatory in nature---Party relying on a document required by law to be attested must prove same by producing attesting witnesses---Principles.

Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 and Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 rel.

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

----S. 215---Duty of agent to consult principal before entering into a transaction for his own benefit---Reasons stated.

Section 215 of Contract Act, 1872 specifies that if an agent intends to enter into any agreement for his own benefit, he is required to take the consent of his principal and such principal has a right to repudiate the said transaction, if it is proved that certain material facts were dishonestly concealed from him by the agent.

Relation between executor and executant of a power of attorney is of fiduciary nature and it is expected that act of holder of it will not be adverse to the interest of executant specially in the circumstances where the persons having interest in the property are his real brothers and are also residents of same city.

Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440; Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31 and 1987 SCMR 1009 rel.

Syed Saeeduddin Nasir for Appellant (in H.C.A. No.239 of 2006).

Noor Muhammad Dayo for Appellant (in H.C.A. No.255 of 2006).

Noor Muhammad Dayo for Respondent (in H.C.A. No.239 of 2006).

Respondent No.1 in person (in H.C.A. No.255 of 2006).

Respondent No.2 in person (in H.C.A. No.239 of 2006).

Date of hearing: 26th September, 2006.

2007 C L C 1296

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD BASHIR----Petitioner

Versus

ADDITIONAL SETTLEMENT COMMISSIONER AND NOTIFIED OFFICER, BAHAWALPUR and 5 others----Respondents

Writ Petitions Nos.546 and 1256 of 2000/BWP, head on 23rd January, 2007.

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

----S. 14(1-A)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Mukhbari application---Displaced Persons (Land Settlement) Act, 1958 having been repealed with effect from July, 1974, there was no provision left for moving Mukhbari application after that date.

Warrayam v. Settlement Commissioner (Land) Lahore and others 1996 SCMR 1949; Muhammad Boota and others v. Additional Deputy Commissioner (G) Additional Settlement Commissioner, Sahiwal and another 1991 SCMR 859; Abdul Aziz and others v. Malik Shahab Din and others 1990 SCMR 1610; Barkat Ali and others v. Syed Shahzad Nazir and others 1981 SCMR 693; Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214 and Ch. Sadiq Ali v. Imtiaz Ahmad Khan and others PLD 1980 SC 222 ref.

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

----S. 14(1-A)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Mukhbari application---Allotment of land to applicants---Validity---Auction of land in question 'made in favour of the petitioners, was not in accord with law and, therefore, it had not been confirmed, such orders were never challenged by the petitioners, even in the present constitutional petition, therefore, the orders (non-confirmation of auction) had attained finality---Petitioners had not been able to establish that the auction was held as per the rules and that on account of such situation, any vested right had been created in favour of the petitioners, which should be protected in the constitutional jurisdiction, resultantly, the claim of the petitioners that they were the auction purchasers of the property and should be declared as such, and the order impugned in the petitions be set aside on that account, had no merits and was rejected.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 14(1-A)---Mukhbari application---Rights of informer and the allottees of land in question---Scope and extent---Principles.

M.M. Bhatti for Petitioner.

Ch. Muhammad Abdullah for Respondents.

Date of hearing: 23rd January, 2007.

2007 C L C 1302

[Karachi]

Before Muhammad Afzal Soomro, J

In re: SHAHEEN SHAHLI HAQUE

S.M.A. No.78 of 2004 and C.M.A. No.221 of 2006, decided on 19th April, 2007.

Civil Procedure Code (V of 1908)---

----O. IX, R.13 & O.XX, R.13---Administration suit---Ex parte decree, setting aside of---Non-appearance of defendant in court for one year despite service on him through bailiff, registered A.D. post and courier service---Applicant had not given any plausible explanation for remaining slept over the matter for one year nor had explained in application as to how he came to know about passing of decree--Applicant' had not produced any documentary proof in support of his plea that family settlement had arrived at between parties---Application for setting aside ex parte decree was dismissed in circumstances.

Rukhsana Kausar and another v. Additional District Judge, Khanewal and 11 others 2000 CLC 385; Fateh Muhammad v. Arshad Afzal 1999 MLD 1481; Allah Nawaz Khan and 2 others v. Farida Fatima Khanum and 11 others 1999 MLD 2738 and Messrs Commercial Textile Printers v. Muhammad Yasin 2003 MLD 1772 ref.

M. Aslam Butt for Petitioner.

Shaikh Abdul Majid for Respondent No.2

2007 C L C 1309

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD HANIF through L.Rs.----Petitioner

Versus

PROVINCE OF PUNJAB through District Collector, Vehari and others----Respondents

Civil Revision No.181-D of 1996, decided on 26th March, 2007.

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

----S. 12---Limitation Act (IX of 1908), Art.113 & S.3---Suit for specific performance of agreement to sell---Defendants, in the present case, had not pressed the issue of limitation before the Trial Court---Such question could not be re-opened by the Appellate Court firstly because the question of limitation in the case was not a pure question of law but one of fact also and the decision of the same depended upon the existence as well as proof of certain facts before declaring the suit of plaintiff as time-barred; and secondly the suit filed by the plaintiff was also prima facie not barred by limitation within the meaning of Art.113 of Limitation Act, 1908.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement to sell---Limitation---Agreement in question specifically mentioned that sale-deed was to be completed after conferment of proprietary rights by the Provincial Government, meaning thereby, that the specific performance was based on happening of certain future event i.e. issuance of sale-deed by the Provincial Government---Suit, in circumstances, could be filed under Art.113, Limitation Act, 1908 and period of three years was to commence from the execution of sale-deed by the Provincial Government---Principles.

Mst. Bibi Khatoon and 7 others v. Abdul Jalil PLD 1978 SC 213 ref.

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

----O. XLI, R.22---Appellate Court could not reverse the findings recorded by the lower Court in the absence of any cross objection or appeal.

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

----Art. 79---Execution of a registered document duly endorsed by the Registrar on the back, raised a presumption of truth about genuineness of the executant of the said document---Said endorsement also carried a presumption of truth regarding passing of consideration under the document to its executant.

Pirla and others v. Noora and others PLD 1976 Lah. 6 ref.

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

----S. 12---Colonization of Government Lands (Punjab) Act (V of 1912), S.19---Suit for specific performance of agreement to sell land---Such suit, after the acquisition of proprietary rights was not only competent but the same could legally be decreed on the proof of agreement to sell.

Rajab Ali v. Mst. Aisha and others 1989 SCMR 135; Muhammad Iqbal and. others v. Mirza Muhammad Hussain and others PLD 1986 SC 70; Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCMR 145; 1994 SCMR 470; Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314; 2006 MLD 1201; Maulana Nuul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Muhammad Sharif and others v. Muhammad Shafi and others PLD 1956 Lah. 675 and Haider Ali and another v. Akbar Ali and another PLD 1973 Lah. 546 ref.

Syed Kabir Mehmood Shah for Petitioners.

Mian Shams-ul-Haq Ansari for Respondent No.9.

Dates of hearing: 22nd, 23rd, 26th February, 1st and 8th March, 2007.

2007 C L C 1324

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AWAIS and 4 others----Petitioners

Versus

MUHAMMAD JAVED IQBAL and 4 others----Respondents

Civil Revision No.740 of 2006, heard on 22nd February, 2007.

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

----S. 115 & O.XIII, Rr.3 & 6---Objection to production of document in evidence---Trial Court overruled such objection, but in revision filed thereagainst Revisional Court disallowed tendering of such document in evidence---Effect---Such order of Revisional Court would prevail---Such document along with part of oral testimony of witness relating to its execution could not be considered by court.

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

-----O. XIII, R.4 & O.XVI, R.6---Bank's statement of account produced in court on plaintiffs' application not opposed by defendant---Such statement of account marked exhibited in statement of plaintiff's counsel subject to objection---Defendant could not explain as to what was his objection to admission of such statement of account in evidence---Account relating to such statement of account was mentioned in the plaint and was not denied by defendant---Court read such statement of account in evidence.

Ali Akbar Qureshi for Petitioners.

M. Shahzad Shaukat for Respondent No.1.

Moiz Tariq for Respondents Nos.2 and 3.

Nemo for others.

Date of hearing; 22nd February, 2007.

2007 C L C 1330

[Lahore]

Before Justice Muhammad Jehangir Arshad, Election Tribunal

MEHDI ABBAS KHAN----Petitioner

Versus

Rana MUHAMMAD QASIM NOON and 5 others----Respondents

Election Petition No.6 of 2003, heard on 11th April, 2007.

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

----Ss. 39(6)(b) & 52---Constitution of Pakistan (1973), Art.225---Recounting or retabulation of votes---Scope---Returning Officer, after preparation of consolidated result on 12-10-2002 in Form XVII according to which petitioner obtained 25295 votes as against respondent who obtained 25135 votes, could not reopen the matter by placing reliance on the alleged direction of Election Commission of Pakistan issued on 19-10-2002, by construing the same as a direction for retabulation of result---Neither any direction for recounting/retabulation of votes was ever issued in the. present case either by the Election Commission of Pakistan or any Member of the Commission nor the direction issued by the Commission on 19-10-2002 requiring the Returning Officer "to call the concerned parties on 20-10-2002 at 3 p.m. and passing appropriate orders in accordance with law", could be construed as a direction either for recounting or retabulation of votes---Entire exercise by the Returning Officer, in circumstances, was liable to be struck down as after the preparation of consolidated result on 12-10-2002 the Returning Officer or even the Election Commission of' Pakistan were left with no authority to reopen the matter at all and further in absence of any express direction by the Election Commission of Pakistan in terms of S.39(6)(b) of the Representation of the People Act, 1976---Such question could only be determined by way of filing election petition---If the respondent was aggrieved of wrong tabulation or miscalculation, the only remedy available to him was to file election petition in terms of Art. 225 of the Constitution as well as S.52 of the Representation of the People Act, 1976---Principles---Notification declaring the respondent as returned candidate was. set aside being without lawful authority and coram non judice and by declaring the election of respondent as void---Consolidated result prepared and issued by the Returning Officer on 12-10-2002 was a legal and valid result and it was- the petitioner who should have been declared as returned candidate---Election petition was allowed accordingly.

Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others 2007 SCMR 330; Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Ch. Nazir Ahmad v. Chief Election Commissioner and 2 others PLD 2002 SC 184 ref.

Syed Safdar Imam Bukhari for Petitioner.

Muhammad Asghar Bhutta for private Respondents.

Ch. Saghir Ahmad Standing Counsel for Official Respondents.

Date of hearing: 11th April, 2007.

2007 C L C 1340

[Lahore]

Before Fazal-e-Miran Chauhan, J

ZAMEER AKRAM and 4, others----Petitioners

Versus

INAYAT----Respondent

Civil Revision No.32-D of 1998, heard on 16th April, 2007.

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

----O. XIII, R.4---Evidence---Documentary evidence---Once a document has been admitted in evidence without objection, its admissibility cannot be subsequently challenged.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 rel.

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

----S. 8---Transfer of Property Act (IV of 1882), S.118---Recovery of possession---Sale and exchange---Distinction---Payment of money. in lieu of land---Plaintiff and defendants mutually agreed to exchange their pieces of land---Plaintiff sought recovery of land owned by him which he had transferred to defendant in lieu of exchange as defendants did not perform their part of agreement and failed to transfer their land in exchange---Plea raised by defendants was that they had paid money to plaintiff instead of transfer of their land---Both the courts below had concurrently decided the case in favour of plaintiff---Validity--- Essential character of transaction of exchange was mutual transfer of ownership of property by two persons---If there was a transfer of ownership by one of the parties only and not by the other, such transfer was not exchange as there was no mutual transfer of ownership---There could be no exchange between the property and money as it amounted to sale, which was defined by S.54 of Transfer of Property Act, 1882---Plaintiff who mutated his agricultural land in the name of defendants but defendants were unable to transfer the agreed land, plaintiff was rightly held to be entitled to receive back his land by Trial Court as well as by Appellate Court---High Court declined to interfere with the judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Mst. Ghulam Zohran and another v. The Additional Chief Land Commissioner (Punjab), Lahore PLD 1977 Lah. 1038 and Mst. Marriyam Bibi v. Khan Muhammad through Legal Heirs and others 2004 YLR 288 fol.

Malik Maqsood Ahmed Awan for Petitioners.

Khan Muhammad Bajwa for Respondent.

Date of hearing: 16th April, 2007.

2007 C L C 1345

[Lahore]

Before Sh. Azmat Saeed, J

NASEER AHMAD SUMMA and another----Petitioners

Versus

TOWN NAZIM, GULBERG, LAHORE and 2others----Respondents

Writ Petition No.5580 and C.M.A. No.1471 of 2006, decided on 9th April, 2007.

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

----Ss. 54-A, 195 & Sched. VI---Erection of buildings---Grant of permission---Jurisdiction---No building can be erected or re-erected without previous sanction of Town Municipal Administration within the area of its jurisdiction---ivo exception has been created between public and private sectors nor has a Market Committee been excluded from operations of S.54-A read with Schedule VI of Punjab Local Government Ordinance, 2001.

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

----Ss. 54-A, 195 & Sched. VI---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss.3, 7 & 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Erection of buildings---Power to grant permission---Plea of public nuisance---Disputed question of tact---Petitioner being Market Committee intended to construct shops behind Fruit and Vegetable Market but Town Nazim objected to the construction on the ground that no permission was granted by him in that respect---Inhabitants of the area also objected to the construction on the plea of nuisance to public---Validity---No specific powers within the para meteria of S.54-A of Punjab Local Government Ordinance, 2001, were conferred upon Market Committee or any other authority---Market Committee failed to point out any provision in Punjab Agricultural Produce Markets Ordinance, 1978, which had conferred any authority upon the Committee to sanction erection or re-erection of buildings---No provision existed either in Punjab Agricultural Produce Markets Ordinance, 1978, or in Punjab Local Government Ordinance, 2001 to show that provisions of S.54-A of Punjab Local Government Ordinance, 2001, and Schedule VI thereof did not apply to area where a market had been established in terms of Punjab Agricultural Produce Markets Ordinance, 1978---Before the shops could be erected or re-erected by Market Committee requisite sanction, consent and permission must have been obtained in terms of S.54-A and Schedule VI of Punjab Local Government Ordinance, 2001---Causing of nuisance to inhabitants of locality was a matter which could not be adjudicated upon by High Court as not only disputed questions of fact were involved but also such inhabitants would have alternative remedy both under civil law as well as Criminal Procedure Code, 1898---Petition was dismissed in circumstances.

Sajid Mahmood for Petitioners.

Malik Zafar Iqbal Awan, Addl. A.-G. Punjab.

Hassan Makhdoom and Shahid Azeem for Respondents.

Malik Muhammad Jamil Awan for Applicants (in Civil Miscellaneous No.1471 of 2006).

Muhammad Ishtiaq, Town Officer.

2007 C L C 1349

[Lahore]

Before Muhammad Muzammal Khan, J

SADDAR HUSSAIN through L.Rs. and others----Appellants

Versus

DOST MUHAMMAD----Respondent

Regular Second Appeal No.65 of 1993, heard on 27th April, 2004.

Registration Act (XVI of 1908)---

----S. 47---Specific Relief Act (I of 1877), S.42---Time from which registered document would operate---Landlady entered into an agreement to sell her property to respondent by executing sale-deed---Landlady having failed to get sale-deed registered in favour of respondent, litigation started between parties and consequently sale-deed was registered--During pendency of litigation, landlady alienated same property in favour of appellants through an other registered sale-deed---Respondent filed suit for declaration to the effect that he was owner of the suit property and sale-deed subsequently executed by landlady and mutation based on said sale-deed in favour of appellants/subsequent vendees, were illegal---Appellants pleaded that they were bona fide purchasers of suit property for valuable consideration without notice; that their agreement to sell though was executed subsequent to sale-deed earlier executed by landlady in favour of respondent but having been registered prior to registration of sale-deed of respondent, transfer in their favour would have precedence over sale-deed in favour of respondent---Suit filed by respondent having concurrently been decreed in favour of respondent, appellants had filed second appeal---Section 17 of Registration Act, 1908 had provided that a registered document would operate from the time from which it would have commenced to operate or from the date it was executed and not from the date of its registration; it was the day of execution of registered sale-deed and not the date of its registration which would determine its effectiveness---Execution of sale-deed in respect of suit property in dispute in favour of respondent was .prior in time, same would have precedence over sale-deed of appellant which was subsequently executed in their favour---No case for interference having been made out, second appeal being devoid of any merits, was dismissed.

Jainullah and another v. Anu Mia and others PLD 1964 Dacca 12; Naseer Ahmad and another v. Asghar Ali 1992 SCMR 2300; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 and Fazal Karim through L.Rs. and others v. Muhammad Afzal through L.Rs. and others PLD 2003 SC 818 ref.

Izhar-ul-Haq for Appellants.

Ch. Ahmed Masood Gujjar for Respondent No.1.

Nemo for Respondents Nos.2(i-v)

Date of hearing: 27th April, 2007.

2007 C L C 1354

[Lahore]

Before Maulvi Anwarul Haq, J

WALI MUHAMMAD and others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/District Officer (Revenue) and others----Respondents

Civil Revision No.308 of 2003, heard on 9th February, 2007.

Punjab Tenancy Act (XVI of 1887)---

----S.114---Specific Relief Act (I of 1877), S.42---Suit for declaration of title---Occupancy tenant---Transfer of land---Plaintiffs being occupancy tenants became owner of the land after amendment of Punjab Tenancy Act, 1887---Suit-land was mortgaged with non-Muslim and upon conferment of ownership rights, the mortgage became extinguished for all purposes but authorities illegally transferred suit-land to defendants--Defendants claimed to be bona fide purchasers of the land from government---Trial Court as well as Appellate Court dismissed the suit and .appeal respectively, filed by plaintiffs--Validity---Rent being payable in cash, the matter was covered by S.114 (2)(c) of Punjab Tenancy Act, 1887, and mutation was attested after payment of cash compensation---Occupancy tenant acquiring land in accordance with provisions of S.114 (2) of Punjab Tenancy Act, 1887, would acquire it free from all encumbrances created in respect of that land by landlord---Mutation in favour of defendants was wrongly incorporated in Revenue Records in violation of clear provision of law---Mortgage itself was extinguished upon conferment of proprietary rights on plaintiffs---Both the Courts below had failed to read the relevant law and had acted without jurisdiction in refusing relief to plaintiffs to which they were otherwise entitled---Defendants were not bona fide transferees for value in view of the admitted factum of extinguishment of occupancy tenancy and conferment of proprietary rights upon plaintiffs by operation of law free from all encumbrances---Judgments and decrees passed by both the courts below were set aside and suit filed by plaintiffs was decreed in their favour---Revision was allowed accordingly.

1989 SCMR 780 ref.

Muhammad Farooq Qureshi Chishti for Petitioners.

Sh. Naveed Shehryar for Respondents.

Date of hearing: 9th February, 2007.

2007 C L C 1358

[Karachi]

Before Sarmad Jalal Osmany and Nadeem Azhar Siddiqui, JJ

MUHAMMAD TARIQ ABBASI and others----Petitioners

Versus

DEFENCE HOUSING AUTHORITY and others----Respondents

Constitutional Petition No.D-403 of 2005, decided on 13th March, 2007.

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

----Arts. 199 & 9---Pakistan Defence Officers Housing Authority Order (7 of 1980), Art.12---Constitutional petition---Aggrieved person---Scope---Locus standi---Concept---Construction of commercial complex in public park and development of beach---Definition of an `aggrieved person' who could approach the High Court in constitutional jurisdiction for enforcement of fundamental rights guaranteed under the Constitution, was wide---Right to enjoy a public park was a right to life as employed in Art.9 of the Constitution and hence the persons who reside in close proximity to the park had the locus standi/sufficient interest to move High Court in its constitutional jurisdiction impugning the construction of a commercial complex inside the park---Even a person who did not live within the vicinity of the park had the right to approach the High Court since park was a public recreation---Concept of locus standi did not mean that petitioner should have a right in strict juristic sense, it was enough if he disclosed that he had a personal interest in the performance of a legal duty, which, if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty of franchise---Person, in the case of public interest litigation, could invoke the constitutional jurisdiction of the superior Courts as pro bono publico but subject to showing that he was litigating firstly in the public interest against various public functionaries who had failed to perform their duties relating to the welfare of the public at large---Organization which was sensitive to environmental issues and had brought to the attention of High Court the development of the beach in the manner as proposed, which would allegedly deprive the residents of the city of their fundamental right of free access to the same, it could not be said that the said organization did not have sufficient interest in the matter or had no locus standi.

Aredesher Cowasjee v. K.B.C.A. 2007 YLR 2430 and Maulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 fol.

(b) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Arts. 5(1)(3)(4), 9(1) & 12---Sanction of Master Plan of Park and development of beach---Powers and jurisdiction of Executive Board and Governing Body of the Defence Housing Authority---Scope.

Ardeshir Cowasjee v. KBCA 1999 SCMR 2883 and Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 distinguished.

(c) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Art. 12---Pakistan Environmental Protection Act (XXXIV of 1997), Ss.12 & 13---Constitution of Pakistan (1973), Arts.199 & 9---Constitutional petition---Public purpose---Doctrine of public trust---Applicability---Contention of the petitioners was that proposed development of the beach by Defence Housing Authority would restrict the right of the residents of the city and visitors, to free access to the same and thus violative of their fundamental rights guaranteed under Art.9 of the Constitution---Validity---Right of free access of the public at large to Parks etc. is a fundamental right guaranteed under Art.9 of the Constitution as it can be equated to the right to life provided for therein---Such fundamental right to free access is extended to the beach and other coastal areas in the city---Beach is an established place of public recreation, since decades, so under section 12 of the Pakistan Defence Officers Housing Authority Order, 1980 all schemes, projects and works undertaken by or on behalf of the Housing Authority under the Defence Housing Authority Order 1980 shall be deemed to be for public purposes and Defence Housing Authority is bound to consider the public interest .while developing the beach---Doctrine of public trust is recognized all over the world which enjoins the State to preserve and protect the public interest in beaches, lakeshores etc.---Right of the public to free access to the beach is a recognized right and hence controls the commercial development of the same---Extension of public trust doctrine to natural resources viz. air, sea, water and forests, which being a gift of nature, should be made freely available to everyone irrespective of his status---High Court directed the Defence Housing Authority to develop the beach in a manner, which would allow free access for the public to the same as indeed it is bound to be so under S.12 of the Pakistan Defence Officers Housing. Authority Order, 1980---Proposed buildings/structures in .the area would conform to the regulations/bye-laws of the Cantonment Board and all the public areas viz., walkways etc. should be made available to the public at large free of cost---Defence Housing Authority will also obtain the relevant permission from the Environmental Protection Authority under the relevant law before launching the proposed development/project.

Ardeshir Cowasjee v. KBCA 1999 SCMR 2883; Shehla Zia and others v. WAPDA PLD 1994 SC 693; Sheri CBE v. Government of Sindh and others C.P. No.45~5 of 2005; Goa Foundation v. Diksha Holdings (Pvt.) Limited, decided by the High Court of Mumbai (Panaji Bench); Bittu Saigal and another v. Union of India, decided by the Supreme Court of India the Goa Foundation v. State of Goa decided by High Court of Mumbai (Panaji Bench); M.C. Mehta v. Kamal Nath, decided by the High Court of Punjab, Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board PLD 2004 Kar. 492; Hussain Bux v. Settlement Commissioner Rawalpindi PLD 1970 SC l ; Illinois Central R. Co. v. Illinois 146 USC 387 (1892); Releigh Avenue Beach Association v. Atlantis Beach Club (185 NJ 40), Glass v. Goeckel (703 N.W. 2d1); Breeden Pl Leydon v. Greenwich (257 Conn. 318); State v. Natural Resources Published in Volume 16, Duke Environmental Law; Khalil Ahmed v. Abdul Jabbar Khan 2005 SCMR 911; Aredeshir Cowasjee v. KBCA 2001 YLR 2430 and Sindh Institute of Urology and Transplantation v. Nestle Milkpak Limited 2005 CLC 424 ref.

Jawaid Ahmed Siddiqui for Petitioners.

Makhdoom Ali Khali and Anjum Ghani Khan for Respondents Nos.1 to 3.

Anwar Mansoor Khan and Shakeel Z. Lari for Respondent No.5.

Ms. Rizwana Ismail for Respondent No.7.

Faisal Siddiqui Amicus Curiae.

2007 C L C 1372

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. RASHIDA ABDUL REHMAN----Appellant

Versus

ZAHOOR HUSSAIN and 5others----Respondents

Regular Second Appeal No.84 of 2003, decided on 23rd February, 2007.

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

----Ss. 2(e) & 10---Agreement/contract---Connotation---Existence of written contract between parties not essential as contract could be inferred from conduct of parties---Voluntary promise not creating any legal obligation between parties would not amount to a contract---No contract would come into existence without intention of parties or by mere giving quotations in response to tender notice---Principles.

Under the Contract Act, 1872, an agreement is an act in ]aw, whereby two or more persons declare their consent as to any act or thing to be done or forborne by some or one of these persons for the use of the others or other of them through the process of writing. It is the essence of a contract that there should be an "aggregatio mentium" (the meeting of the minds of the contracting parties). Where the parties are in agreement as to the terms, it is not necessary that they should enter into a regular written contract. The existence of the contract can be inferred from their conduct. A contract is a consensual act, the parties being free to settle any terms they pleased. A contract creates legal obligations. A promise which is voluntary and by which the parties do not intend to create any legal obligation cannot amount to a contract. The mere fact that a person gave certain quotations in response to the tender notice, even granting that it was the lowest quotation, will not in any manner create an obligation on the person, who issued the tender notice and no contract comes into existence by that act.

The intention of the parties to a contract must be looked at to determine whether a contract has been executed or not. Where they did not intend to enter into a contract, there can be no contract. Therefore, inspite of the fact .that an agreement is embodied in a document, the parties can show even by oral evidence that when the document was signed, they intended that it should not operate as an agreement and, therefore, there is no contract at all.

(b) Contract---

----Tender notice---Mere giving quotations in response to Tender Notice would not create contract between parties---Principles.

The mere fact that a person gave certain quotations in response to the Tender Notice, even granting that it was the lowest quotation, will not; in any manner, create an obligation on the person, who issued the Tender Notice and no contract comes into existence by that act.

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

----S. 54---Contract Act (IX off 1872), S.2(e)---Sale of immovable property, contract of---Essential terms stated.

A contract for the sale of immovable property is a contract that a sale of such property shall take place on the terms settled between the parties. The essential terms of the sale of immovable property are (i) payment of the sale price of property or promise to pay the same by the purchaser to the seller; and (ii) the delivery of possession of the property sold by the seller to the purchaser. If these two essential terms of sale of the immovable property are, determinable in the agreement between the parties with certainty, it may constitute a valid agreement of sale between the parties.

The sale consideration of property is the essential term of the agreement and in the absence of essential terms of agreement of sale, no agreement/contract of sale can come into existence.

Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation PLD 1984 Kar. 233 and Shajar Ali Hati v. Esmail Sobhani 1985 CLC 342 rel.

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

----S. 12---Transfer of Property Act (IV of 1882), S.S4---Contract Act (IX of 1872), S.2(e)---Oral agreement of sale of immovable property---Specific performance of such agreement, suit for---Vendee based his claim on receipt showing payment of Rs.25,000 to vendor---Proof---No independent witness was alleged to be present at the time of bargain and execution of such receipt except vendee and his brother, whose statements were contradictory to each other regarding place of bargain---Such receipt was not signed by vendee or any independent witness---Receipt was silent as to essential terms and condition of sale agreement, exact amount of sale price and detail of property---Possession of property was not delivered to vendee---Vendor's brother had not read such receipt before recording his statement in court---Vendee had failed to produce sufficient and cogent evidence to prove transaction of sale and such receipt---Oral contract of sale between vendee and vendor was lacking essential ingredients of a valid agreement---Suit for specific performance on basis of such agreement could not be decreed---Suit was dismissed in circumstances.

Custodian of Enemy Property v. Hushang M. Dastur PLD 1977 Kar. 377 and Qazi Muhammad Saqib Khan v, Ghulam Abbas and 2 others 2003 MLD 131 rel.

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

----S. 12---Transfer of Property Act (IV of 1882), S.S4---Civil Procedure Code (V of 1908), O.VI, R.2 & O.VII, R.1(e)---Oral agreement of sale lacking ingredients of a valid agreement---Effect---Plaintiff had to plead facts regarding contract desired to be specifically enforced---Suit for specific performance on basis of such agreement could not be decreed.

Miss Gul-e-Rana v. Muhammad Mansoor Khan and 4 others 2000 CLC 1673 and Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111 rel.

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

----S. 41---Subsequent vendee alleging not to have knowledge of earlier contract of sale---Effect---Subsequent vendee would be deemed to have discharged burden, which would shift to other party.

Sh. Nazir Ahmad v. Haji Ghulam Hussain and others 1985 CLC 7 rel.

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

----S. 54---Oral agreement of sale, if not specifying terms and conditions of agreement, would not be valid in eye of law.

Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 rel.

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

----Art. 163---Oaths Act (X of 1873), S.9---Decision of case on basis of oath---Scope---When both parties had led evidence or evidence was available and could be produced, then resort to Art.163 of Qanun-e-Shahadat, 1984 could not be made---Principles.

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

----Art. 163---Oaths Act (X of 1873), S.9---Defendant's refusal to accept plaintiff's offer for decision of case on basis of oath made on the day of arguments---Effect---No adverse presumption would come against defendant for such refusal

Muhammad Sharif v. Bashir Ahmad 1987 CLC 2006; Shakirullah v. Hidayatullah and 3 others 1999 MLD 389 and Bashir Ahmad v. Muhammad Lugman 1999 SCMR 378 rel.

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

----S. 100---Second Appeal---Concurrent findings of fact by courts below---Validity---Such findings could always be disturbed by High Court in second appeal, where decision was result of perverse application of evidence or based on misreading of evidence or conclusions were drawn after ignoring vital piece of evidence on record.

Syed Khurshid Ahmed alias Wahid Hussain through General Attorney v. Rao Muhammad Akram 2000 CLC 825; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22 and Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 rel.

Asim Akram for Appellant.

Mobin Ahmed Siddiqui and Ch. Arshad Mehmood for Respondents.

Date of hearing: 23rd February, 2007.

2007 C L C 1391

[Lahore]

Before Maulvi Anwarul Haq, J

KARAMAT HUSSAIN and others----Petitioners

Versus

NATHO KHAN and others----Respondents

Civil Revisions Nos.244/D and 245 of 2000, heard on 1st February, 2007.

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

----Ss. 39 & 42---Specific Relief Act (I of 1877), S.42---Revenue record, correction of---Uncultivable land of Shamlat---Entitlement---Suit land was included in Shamlat Deh and plaintiffs claimed their entitlement to same on the ground of .being in cultivating possession---Revenue Authorities made correction. in Khasra Girdawari and entered the names of defendants in column of possession as they were the owners in Deh---Trial Court as well as Appellate Court decreed the suit and dismissed the appeal respectively---Validity---Uncultivable, common land had to be recorded in possession of owners, therefore, entries were lawfully corrected by Revenue Authorities---Once it was found that entries were unlawfully changed it would be deemed that old entries would continue---Lower Courts, on the face of evidence, acted without lawful authority while passing the judgments and decrees---High Court, in exercise of revisional jurisdiction, set aside the judgments and decrees passed by bout the Courts below and dismissed the suit riled by plaintiff---Revision was allowed in circumstances.

Misri through legal heirs and others v. Muhammad Sharif and others 1997 SCMR 338 and Gul Khan v. Said Hassan Shah and others PLD 1968 Pesh. 148 ref.

Raja Amir Akbar for Petitioners.

Manzoor Ahmad Rana for Respondents Nos.1-A to 1-F and 19.

Date of hearing: 1st February, 2007.

2007 C L C 1394

[Lahore]

Before Muhammad Muzammal Khan, J

BARKAT BIBI----Petitioner

Versus

MUHAMMAD SIDDIQUE and 16 others----Respondents

Civil Revision No.1164-D of 1998, heard on 2nd April, 2007.

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

----Ss. 19-A [as added by Colonization of Government Land (Punjab) Amendment) Act (III of 1951)] & 20---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.2-A---Succession to tenancy rights---Propositus died on 5-4-1940 leaving behind a married daughter and sons---Sanctioning of inheritance mutation in favour of sons to the exclusion of married daughter---Daughter claimed to have inherited her Sharai share in possessory rights held by propositus in suit-land---Validity---Section 19-A of Colonization of Government Lands (Punjab) Act, 1912 and Punjab Muslin Personal Law (Shariat) Application Act, 1948 came into force much later than the death of propositus,. which could not apply to past and closed transactions by giving retrospective effect---Section 20 of Colonization ,of Government Lands (Punjab) Act, 1912 was in force at the time of death of propositus, thus, succession of his tenancy would open as per terms mentioned therein---Petitioner being married at the time of death of propositus was not entitled to succeed him as per terms of S.20 of the said Act---Rule of customs acknowledged by S.20 of Colonization of Government Lands (Punjab) Act, 1912 was saved by Punjab Muslim Personal Law (Shariat) Application Act, 1948---Tenancy rights of propositus, according to S.20 of the Colonization of Government Lands (Punjab) Act, 1912, would devolve on his sons/male lineal descendants---Daughters' claim was rejected in circumstances.

Ghulam Dastgir and 6 others v. Hidayat and 2 others 1981 CLC 3 rel.

Jiwana v. Mst. Sahbi PLD 1954 Lah. 253 distinguished.

Muhammad Nazir Janjua for Petitioner.

Ms. Samina Bano for Respondents.

Date of hearing: 2nd April, 2007.

2007 C L C 1398

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ASGHAR DAR----Petitioner

Versus

TOWN MUNICIPAL ADMINISTRATION KHIALI SHAHPUR DISTRICT GUJRANWALA through Town Nazim and 3others----Respondents

Writ Petition No.2362 of 2007, decided on 9th April, 2007.

(a) Punjab Local Government. (Auctioning. of Collection of Rights) Rules, 2003---

----R. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Aggrieved person---Collection rights, auctioning of---Failure of petitioner to participate in such auction---Effect---Petitioner in terms of Art.199 of the Constitution could not claim himself to be an "aggrieved person"---High Court dismissed constitutional petition in circumstances.

(b) Auction---

----Sanctity and authenticity would be attached to Government acts, which were duly performed in accordance with law and rules---If such acts were upset only on the ground that somebody could offer more money, then such time-tested concept would be impaired aid faded away and would also frustrate the intent of law and rules on the subject.

Muhammad Arshad v. Secretary Local Government and Rural Development Department and others 2005 CLC 939 and Haji Faiz Muhammad v. Mines, Labour Welfare Commissioner and others 2007 MLD 423 rel.

Munib Iqbal for Petitioner.

Makhdoom Hassan Nawaz for Respondent No.2.

Iftikhar Ahmad Mian for Respondent No.4.

2007 C L C 1401

[Lahore]

Before Mian Saqib Nisar, J

HOUSE BUILDING FINANCE CORPORATION----Appellant

Versus

KARIM BAKHSH----Respondent

F.A.O. No.36 of 2001/BWP, decided on 24th January, 2007.

House Building Finance Corporation Act (XVIII of 1952)---

----S. 30---Application for delivery of possession and sale of mortgaged property---Appellant Corporation had brought application under S.30 of House Building Finance Corporation Act, 1952 for delivery of possession and sale of mortgaged property asserting that respondent had defaulted in the payment of monthly instalment despite issuance of legal notice---Appellant had alleged that ,on breach of terms and conditions of mortgage deed on the part of respondent, appellant had become entitled to recover entire amount of loan from respondent---Respondent had resisted application filed by appellant, stating. that he hart made certain payments to the Corporation, which had not been adjusted in the statement of accounts---Trial Court considering receipts produced by respondent, had come to the conclusion that some amount had been deposited by the respondent, which was not deducted from the total consideration and alter deducting same, granted a decree in favour of Corporation---Corporation could not prove that amount paid by respondent through receipts had been adjusted in the statement of accounts---In absence of any entry in the statement of accounts, Trial Court had rightly reduced suit amount to the extent it was paid by respondent---No exception could be taken to the findings of the Trial Court.

Shamshair Iqbal Chughtai for Appellant.

Respondent: Ex parte.

Date of hearing: 24th January, 2007.

2007 C L C 1409

[Karachi]

Before Amir Hani Muslim and Munib Ahmad Khan, JJ

NOOR ELLAHI---Appellant

Versus

Messrs TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and 4 others---Respondents

Admiralty Appeal No. 5 of 2007, decided on 9th June 2007.

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

----O. XXI, Rr.77 & 92---Admiralty jurisdiction of High Courts Ordinance (XLII of 1980), Ss.3 & 7---Sale notice/tender---Authority of Court in providing an opportunity to the contesting bidders towards improvement of the auction price on the ground that Court had to follow O.XXI, Rr.77 & 92, C.P.C.---Validity---Sale directed by Court through tender/sale notice was different in kind, as sale was never completed before official assignee/commissioner nor he had power to confirm as that only rested with the Court and that the balance of the purchase price was to be paid within 15 days from the date of confirmation by the Court and not before auction after completion of bids---Factual position, that balance was not paid before the official assignee/commissioner or that the bidder did not participate on the terms and conditions of tender/sale notice was not being denied---Sale notice, in circumstances had no match with O.XXI, R.77, C.P.C. hence no reference could be made to R.77 of O.XXI, C.P.C.---Principles.

PLD 1987 SC 512; AIR 1940 Madras 42; AIR 1960 Andra Pardesh 429; AIR 1930 Lah. 236 and 2005 CLD 1737 distinguished.

1981 SCMR 108 rel.

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

----O. XXI, Rr.92 & 77---Sale notice/tender---Authority of Court in providing an opportunity to the contesting bidders towards improvement of the auction price was challenged on the ground that Court .had to follow O.XXI, Rr.77 & 92, C.P.C.---When in court proceedings, through court 'any sale is conducted then the Court, acting as custodian of the goods/property, has to see and watch carefully the interest of the person whose goods/property has been sold in any manner and it becomes a duty of the court that maximum price of the goods/property be obtained, so the losses of the affected party, who normally is judgment-debtor, are to be minimized---Court, has to adjust its proceedings in such a way as to get maximum price for the goods/property---No restriction exists in such type of cases under the law upon. the court to restrain it from doing such exercise which can be peculiar in nature keeping in view the factual position in each and every case.

PLD 1987 SC 12; AIR 1940 Madras 42; AIR .1960 Andra Pardesh 429; AIR 1930 Lah. 236 and 2005 CLD 1737 distinguished.

1981 SCMR 108 rel.

Abul Inam for Appellant.

Samiuddin Sami for Respondent No. 1.

Khurram Rasheed and Siddidue Shehzad for Respondent No.2.

2007 C L C 1413

[Lahore]

Before Sh. Hakim Ali, J

Mst. KHALIDA RIFFAT----Applicant­

Versus

MAQSOOD ABBAS and others----Respondents

T.A. No.38/C of 2005/BWP, decided on 9th January, 2007.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of suit---Applicant who was a lady had prayed for direction for issuance- of an order directing the transfer of suit filed by respondent for recovery of damages pending in the court at place C' to the court at placeB'---Suit was sough to be transferred on the grounds that applicant lady was permanent resident of place "B", whereas suit had been filed at place "C"; that applicant being a diabetic patient and a blind lady, travelling to place C' would be difficult for her---Applicant, admittedly was a diabetic patient and a blind lady---Suit, in circumstances was transferred from the civil court at place "C" to the court at placeB', accordingly.

M. Shamshir Iqbal Chughtai for Applicant.

Syed Saleem-ud-Din Aftab for Respondent No. 1.

2007 C L C 1414

[Karachi]

Before Anwar Zaheer Jamali and Maqbool Baqar, JJ

ANJUM RASHID and others---Appellants

Versus

SHEHZAD and others---Respondents

H.C.As. Nos.67; 68, 69, 70, 71 and 670 of 2002, decided on 28th June, 2006.

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

----O. XXI, Rr.84, 85, 90 & S.12(2)---Ex parte money decree and sale---Such sale was set aside on an application under S.12(2), C.P.C.---Setting aside of sale; in circumstances, would not result in nullifying the impugned sale.

Al-Hassan Feeds and another v. United Bank Ltd. and 6 others 2004 CLD 275; Messrs Chawla International v. Habib Bank Limited 2003 CLD 956; Mian Abdul Khalid v. M. Abdul Jabber Khan and others PLD 1953 Lah. 147; Janak Raj v. Gurdial Singh and another AIR 1967 SC 608 and Chota Nagpur Banking Association v. C.T. M. Smith and another AIR (30) 1943 Pat. 325 ref.

(b) Company----

----Legal entity---Company is a separate entity distinct from its Directors and no shareholders/or Director of a company can be said to be the owner of any particular piece of a property in which the company has an interest---Such distinction has to be clearly observed between the company as a legal entity and its rights on the one hand and individual shareholders and their rights on the other---Such, it cannot be said that the property in question is owned by its shareholders or Directors.

Mohan Singh Oberoi v. Rai Bahadur Jodha Omal Kuthalla PLD 1961 SC G; The Eastern Federal Union Insurance Company v. State Life Insurance Corporation of Pakistan 1987 CLC 1408 and EBM Company Ltd. v. Domanion Bank AIR 1937 PC 279 ref.

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

----S. 50---Property owned by a wife and sons of a judgment-debtor, or for that matter by any other person cannot be said to be a, property of such person.

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

----O. XXXI, Rr.85 & 86---Money decree---Execution proceedings---Attachment and sale of property---Appellants in the present case, were tenants in respect of the property and the machinery installed therein, were evidently owned by them and there was absolutely no question of such machinery being attached or sold and of the appellants being dispossessed through execution proceedings and as such the orders of attachment and sale of the machinery in question and consequential dispossession of the appellants were absolutely illegal, without jurisdiction and void and was not even required to be set aside---Auction­ purchaser could not therefore seek to enforce any right in respect of either of the factory premises or the machinery in question on the basis of the impugned sale.

S. M. Jakati and another v. S.M. Borkar and others AIR 1959 SC 282 and Chengalraya Reddy and others v. Kollapuri Reddi AIR 1930 Mad. 12 ref.

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

----O. XXI, Rr.85 & 86---Default by auction-purchaser---Effect---Offer of purchase of property was accepted by the executing court---Auction­ purchaser having defaulted in complying with the provision of O.XXI, R.85, C.P.C., could not escape the consequence as envisaged by O.XXI, R.86, C.P.C. which required that in the event of default in depositing the full amount of purchase price within 15 days from the sale of the property, the Court may, after defraying the expenses of the sale, forfeit to the Government, the initial deposit and shall release the property and further that defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold---When the auction-purchaser defaulted in depositing the balance purchase price, as required by O.XXI, R.85, C.P.C. the sale stood completely wiped out and became a nullity and was not even required to be set aside---Fact that amount was deposited, within fifteen days of the letter from the Nasir/official Assignee would not wipe out the default, as it was the bounded duty of the auction-purchaser to make the deposit within fifteen days of the acceptance of his offer and no demand was required to be made in this regard---Court was not possessed of any power to enlarge the time fixed under the rules.

Al-Hassan Feeds and another v. United Bank Ltd. and 6 others 2004 CLD 275 and Messrs Chawla International v. Habib Bank Limited 2003 CLD 956 distinguished.

Kedar Nath Goenka v. Munshi Ram Narain Lal and others AIR 1935 Privy Council 139; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; Messrs Dawood Flour Mills and others v. National Bank of Pakistan 1999 MLD 3205; National Batik of Pakistan v. Messrs Nasir Industries and others 1982 CLC 388 and Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Ahmed and another AIR 1954 SC 349 ref.

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

----O. XXI, Rr.90, 85 & 86---Money decree---Execution proceedings---Attachment and sale of property---Default by auction-purchaser---Limitation---Attachment and sale of the properties was without jurisdiction and void ab initio and in consequence of the default committed by the auction-purchaser in depositing the balance price; the purported sale was rendered a nullity---Such attachment and/or salt way not even required to be set aside and thus no application. in that regard was required to be moved---Appellants in the present case, were not parties to the proceedings between judgment-debtors and the decree holder nor were they aware of the judgment/and decree, for enforcement whereof the execution proceedings were initiated by the decree-holder, or of any orders passed by the executing court till the date they were dispossessed by the official assignee, therefore, there was no question of their approaching the Executing Court, any time earlier than the date of their knowledge---Attachment and sale of the; property and order for hiking over possession of the property of appellants being void, the period of limitation available to the appellants was three years from the date of their dispossession.

Haji Hussain Haji Dawood and others v. M.Y. Kherati 2002 SCMR 343; National Electric Company of Pakistan v. Allied Bank of Pakistan Ltd. 1991 CLC 192; National Bank of Pakistan v. Nasir Industries 1982 CLC 388 and Chengalraya Reddy and others v. Kollapuri Reddi AIR 1930 Mad. 12 ref.

(g) Contempt of Court---

----Jurisdiction of courts to take action for contempt of their own authority---Scope---Execution proceedings of money decree---Attachment and sale of property---In the- present case possession of their respective tenements was reverted back to the appellants on the condition that they shall not remove the machinery therefrom, -and such restoration was subject to their furnishing security of Rs.50,000 each along with undertaking to the effect that they shall not remove any machinery from. the tenements---Attachment of sale in question being wholly without jurisdiction and even otherwise rendered void the appellants removed the machinery under a bona fide impression that the setting aside of judgment and decree had resulted in termination of the proceedings before the Executing Court and that all orders stood vacated including the one of restricting the appellants not to remove the machinery etc.---Held, forfeiture of entire security of appellants, in that behalf in circumstances, was too harsh---Jurisdiction of Superior Courts to take action for contempt of their own authority was to be jealously guarded but sparingly exercised and that where the conduct of a person, apparently defying orders of the court, left room for doubt with regard to his intention and belief and it was possible that he acted either mistakenly or on wrong but honest notions about his right, the benefit of doubt should ungrudgingly be given to him---High court modified the order of forfeiture of security to the extent of Rs.5,000 each with the direction that forfeiture shall be in favour of the Government and auction-purchaser was not entitled to the same in circumstances.

S.M. Yousaf v. S.K. Rahim and others PLD 1969 SC 77 ref.

Mansoorul Arfin for Appellants.

Mushtaq A. Memon for Respondents.

Dates of hearing: 12th, 19th, 25th, 27th, August, 2004, 22nd, 30th September, 2004, 1st, 4th, 18th, October, 2004, 6th, 13th, 20th, 28th, December, 2004 and 7th March, 2005.

2007 C L C 1433

[Lahore]

Before Muhammad Jehangir Arshad, J

ANJUM FIRDOUS----Appellant

Versus

ADDITIONAL DISTRICT JUDGE, and others----Respondents

Writ Petition No.2512 of 2000, decided on 21st March, 2005.

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

---S. 5, Sched & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower---Suit was dismissed, but Appellate Court partly allowed appeal against judgment of the Family Court holding that though the respondent was not owner of the house which was given in dower to the petitioner at the time of marriage, which earlier stood transferred in favour of mother of respondent, but respondent was bound to pay its price. and that contention of respondent that he had already paid cash amount to petitioner in lieu of price of said house as owner, was not established---Respondent having not challenged findings of Appellate Court qua the house in dispute, said finding which had attained finality was binding on respondent---Omission on part of Appellate Court by not determining the price of house equivalent to its value, could be termed as an accidental slip and same did not render judgment of Appellate Court, either redundant or ineffective---Illegality/ irregularity so committed by Appellate Court was cured/rectified by the High Court in constitutional jurisdiction, holding that; in view of admission by respondent regarding transfer of house in dispute to the petitioner in lieu of dower at the time of marriage, respondent could not be relieved of his liability to pay the price of disputed house, equivalent to its value---Constitutional petition was allowed and by modifying the impugned judgment of Appellate Court, it was declared that petitioner would be entitled to recover the price of house in dispute equivalent to its value from respondent to be determined by Executing Court during executing proceedings.

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

----Ss. 124 & 12S---Contract of indemnity---Person transferring property under a valid, contract also. impliedly would bind himself to indemnify the transferee of said property against any loss sustained by transferee due to some defective title and a right to indemnify existed in every contract irrespective of any express clause existing to that effect.

PLD 1994 SC 294 ref.

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

----Art. 199---Constitutional petition---Quashing of erroneous order---Tribunals should always decide the matters rightly and if the subordinate Tribunal made an error of law in passing the order, same would go outside the jurisdiction; and such an order being erroneous on point of law, could be quashed in constitutional jurisdiction of High Court.

Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; PLD 1997 SC 304 and Utility Stores Corporation v. Punjab Labour, Appellate Tribunal PLD 1987 SC 447 ref.

Shamshair Iqbal Chughtai for Petitioner.

Sardar Mehmood Iqbal Khakwani for Respondent No.4.

Date of hearing: 21st March, 2006.

2007 C L C 1445

[Lahore]

Before Maulvi Anwarul Haq, J

AASHTQ ALI CHAUDHRY and another----Petitioners

Versus

MEMBER (CIVIL) BORDER AREA COMMITTEE and another----Respondents

Writ Petition No. i27/R of 2006, heard on 5th June, 2007.

West Pakistan Border Areas Regulation, 1959 (MLR No.9) (Zone "B")---

----Regln. 9 & Sched. III Condition 11 [as added by West Pakistan Areas Regulation, 1959 (Punjab Amendment) Ordinance (III of 1981)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---State land in Border Area, allottee of---Transfer of land by allottee or his heir without obtaining prior "NOC" from GHQ (Army)---Cancellation of such transfer of Border Area Committee---Validity---Condition 11 added in Sched. III of West Pakistan Border Areas Regulation, 1959 through West Pakistan Border Areas Regulation, 1959 (Punjab Amendment) Ordinance, 1981 would not have retrospective effect---Purpose of Regulations, 1959 being satisfaction of Army Authorities about credentials of a person entering into such land through transfer by its allottee or his heir---Neither. anybody nor any criteria was provided in Regulation, 1959 to enable Border Area Committee to check alienation itself---High Court emphasized on Authority to adopt some measures to check such alienation itself---High Court dismissed constitutional petition with directions to petitioner, if so advised, to apply to competent authority for obtaining "NOC" for such transfer.

Rehmat Ali v. Border Area Committee and another 1998 CLC 112 ref.

Ch. Muhammad Anwar and Rai Wali Muhammad for Petitioners.

Amir Zahoor Chohan for Respondent.

Date of hearing: 5th June, 2007.

2007 C L C 1448

[Karachi]

Before Zia Perwez, J

NAUSHAD SHAMSUDDIN FANCY and another---Plaintiffs

Versus

NEW JUBILEE INSURANCE COMPANY LIMITED and others---Defendants

Suits Nos.572 of 1978 and 472 of 1993, decided on 7th August, 2003.

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

----Ss. 11, 42 & 55---Limitation Act (IX of 1908), S.10---Suit for declaration and mandatory injunction wish all accruing benefits with respect to shares of a company---Limitation---Entrustment of disputed shares to the business concern of the person who was to undertake arbitration proceedings to decide the ownership of shares amounted to creation of trust---Clause (a) of S.11, Specific Relief Act, 1877 & S.10, Limitation Act, 1908 envisaged that where a trust is created, no period of limitation would apply.

Deputy Custodian of Enemy Property v. Karachi Electric Supply Corporation PLD 1975 Kar.21 ref.

(b) Limitation Act (IX of 19(18)---

----S. 10 & Art.145---Specific Relict Act (I of 7877), Ss. 11, Illus. (a), 42 & 55---Suit for declaration and mandatory injunction with all accruing benefits with respect to shares of company---Limitation---Effect of provisions of S.10 and Art.145, Limitation Act, 1908---Where there was entrustment of disputed shares, S.10 and Art.145 of Limitation Act, 1908 would be attracted to the case---Under S.10, Limitation Act, 1908, no suit against a person, in whom the property had become vested in trust, shall be barred by any length of time---Question arose as to whether, in circumstances, a truss was created within meaning of S.10, Limitation Act, 1908 or such a trust could be termed as a "depository" as described in Art.145, Limitation Act. 1908---Significance of the word "trustee" as described in S.10, Limitation Act, 1908 and word "depository" as described in Art.145 of the said Act required consideration---Entrustment of disputed shares could be either termed as "entrustment" within the meaning of S.10, Limitation Act, 1908 read with S.11, Specific Relief Act, 1877 or it could also be termed as "depository" within the meaning of Art.145, Limitation Act, 1908; in case of former no period of limitation applied whereas in case of latter Art.145 attracted a period of 30 years.

Bibhutibhushan Datta v. Anadinath Datta ILR 61 Cal. 1933; Promotho Nath Mullick v. Prodymno Kumar Mullich 1921 CWN 772; Lala Gobind Prasad v. Chairman of Patna Municipality 6 CLJ 535; Kishtappa Chetty v. Lakshmi Amoral AIR 1923 Mad. 578; Deputy Custodian of Enemy Property v. Karachi Electric Supply Corporation PLD 1975 Kar.21 and ILR 62 Cal. 393 ref.

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

----S. 10 & Art.145---Specific Relief Act (I of 1877), Ss.11, 42 & 55---Suit for declaration and mandatory injunction with all accruing benefits with respect to shares of a company---"Deposit" and "depository"---Meaning---Rights and duties of "depository" stated.

The term "deposit" is borrowed from the civil law, and is a word of large and varied signification. In the technical legal sense a deposit is a naked bailment of goods, to be kept for the depositor without reward, and to be returned when he shall require it; and the term "depositum" a term used in the civil and common law, is given the same meaning. The term "deposit" is also used to denote the thing deposited.

A depository is the person receiving a deposit; and the term "special depository" has been held to menu merely a bailee whose possession is the possession of his principal.

A depository is bound to deliver the res to the depositor or his representative, or to his order, except where, as stated infra, delivery to a third person is authorised. Any delivery made pursuant to the terms of the deposit relieves the depository from further liability; but a misdelivery of the res or its decrease renders the depository liable therefor, unless he has a sufficient excuse for his failure for deliver properly.

Corpus Juris Secundum, Vo1.26A, at p.198 ref.

(d) Civil Procedure Code (V of 1808)---

----O. II, R.2 & O.VI---Specific Relief Act (I of 1877), Ss.11, 42 & 55---Suit for declaration and mandatory injunction with all accruing benefits with respect to shares of a company---Pleadings---One cannot be permitted to take one plea in the pleadings and then lead evidence to prove an assertion which is diametrically opposed to one's own pleading as this amounts to destroying the very cause of action on which the suit was based---Plaintiff having failed to lead evidence in support of his plea made in the plaint is not entitled to any relief---Principles.

Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 228; Ala­-ud-Din v. Mst. Farkhanda Akhtar PLD 1.953 Lah. 131; Binyameen and others v. Chaudhry Hakim and another 1996 SCMR. 336; Ghulam Mohayyuddin and others v. Sher Khan and others 1970 SCMR 1000 and Sughran Bibi v. Mst. Aziz Begum and others 1996 SCMR 137 ref.

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

----Ss. 11, 42 & 55---Suit for declaration and mandatory injunction with ail accruing benefits with respect to shares of a company---Transfer of shares on the basis of prior possession in one's name irrespective of his proving his title to the disputed shares---Validity, held, to seek transfer of the said shares, the person has to prow the legal source by which he acquired possession thereof which is required to be examined in context with evidence of the prior transaction of sale of disputed shares---Any subsequent transaction even though entered into for valid consideration after a prior similar transaction in favour of any person for lawful consideration, cannot be ignored---Mere fact that someone came into possession of the disputed shares would not confer title in his favour unless he established his own title to the disputed shares for lawful consideration.

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

----Ss. 11, 42 8c 55---Suit for declaration and mandatory injunction with all accruing benefits with respect to shares of a company---Dispute as to ownership/title of share by three claimants---Mere lodging of the disputed shares by one of such persons would not stop the Court to go into the question of title of disputed shares---Title to shares in the presence of cogent documentary evidence cannot pass to a person who merely holds its possession in respect of which there is a dispute---Any view to the contrary would render the law of ownership a nullity as any person who comes in custody of shares with blank transfer deeds and lodges them with the company for transfer would become owner of the shares irrespective of the fact whether he came in custody of the shares lawfully or not---In case of a controversy as to the lawful ownership, of the disputed shares, unless a claimant proves his right to the shares, he, by merely having possession of the disputed shares would not be declared transferee of such shares---Three persons admittedly in the present case, had ,claimed title to the disputed shares, therefore, unless the rival claims are properly adjudicated, no right to the disputed shares could be claimed by anyone---Disputed shares, admittedly were specifically sent to someone to be kept in trust until the dispute of ownership was resolved, therefore, one out of the three claimants could not claim any right in the disputed shares only because at some earlier stage he came in custody of the disputed shares.

(g) Qanun-e-Shahadat (10 of 1954)---

----Arts. 132 & 133---By not submitting himself for cross-examination the affidavit-in-evidence given loses its evidentiary value---If a party did not produce any Evidence in support of the contents of its written statement theta the averments contained in the written statement could not be treated as evidence.

Muhammad Noor Alam v. Zair Hussain and others 1988 MLD 1 122 ref.

(h) Administration of justice---

----In the absence of any rule or law on the subject, Court has to follow rules of justice.

(i) Electronic Transactions Ordinance (LI of 2002)---

----Ss. 12, 13, 14, 15 & 16---Scope and application of Ss.12, 13, 14, 15 & 16 of Electronic Transactions Ordinance, 2002.

(j) Specific Relief Act (X of 1877)---

----S. 11---Civil Procedure Code (V of 1908), O.II, R.2 & O.VI---Suit for declaration and mandatory injunction with all accruing benefits with respect to shares of a company---Inconsistent pleadings---Principles---Rival claims of the parties are examined and weighed and the claim of that party is accepted whose claim seems more probable than the other---Evidence of the defendant, in the present case, was more convincing and supported by admitted documents while plaintiff's. evidence was not only full of contradictions but was based on inconsistent pleadings which were not permissible in law---Defendant thus, had established that he was lawful purchaser of disputed shares and was entitled to their transfer in his name.

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

----O. II, R.2 & O.VI---Pleadings---Principles of debarring a party from deviating, from its pleadings has not to be flouted, the object of which is firstly, that all claims should be disclosed in the pleadings to enable the opposing party to rebut such claim through evidence, secondly, if a person makes one claim in his pleadings i.e. plaint or written statement and then attempts to establish a claim contrary to his own pleadings then it may be inferred that in case of shitting stand the plea is not based on truth---Wisdom leading the Legislature to enact the provisions of O.II, R.2, C.P.C. and O.VI, C.P.C. was to prevent a party from adding to or deviating froth the pleadings.

(l) Liability---

----Acknowledgment of liability is to be made by the person who has incurred such liability.

I.H. Zaidi for Plaintiff.

Anjum Ghani for Defendant No. 1.

Arshad Tayebaly for Defendant No.6.

Liaquat Merchant for Defendant No.7.

Faisal Arab for Defendant No.10.

Qadir H. Saeed for Defendant No.14.

Date of hearing: 28th January, 2002.

2007 C L C 1480

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZULFIQAR----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 2others----Respondents

Writ Petition No.10897 of 2004, decided on 11th June, 2007.

Land Acquisition Act (I of 1894)---

----S. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Price of acquired land assessed in award by Land Acquisition Collector---Refusal of Authority to give exempted plot to petitioner except at such price---Refusal of Authority to re-assess such price as directed by Ombudsman---Authority before High Court undertook to work out fresh price, but later on conveyed its decision to petitioner that such price assessed by Collector was justified---Validity---Authority had not complied with its undertaking and order of Ombudsman---High Court had adjudged earlier decisions of Authority with direction to work out fresh price, which exercise had been avoided illegally---Impugned decision of Authority was in clear conflict with consent order of High Court, thus, could not be allowed to be sustained---Authority as per its undertaking should have adopted legal modes of determining price of land including its location, potential and rate of lands in the vicinity---Simply saying price assessed by Collector was justified would not be compliance of consent order of High Court---High Court accepted constitutional petition and declared impugned decision to be void, resultantly matter of determination of price of land would be deemed to be pending before Authority, who would decide same afresh in. according with law.

Arif Chaudhary for Petitioner.

Mian Muzaffar Hussain for L.D.A.

2007 C L C 1492

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD RAFIQUE and another----Petitioners

Versus

DIRECTOR INSERVICE AGRICULTURE TRAINING INSTITUTE and another----Respondents

Writ Petition No.85 of 2007/BWP, decided on 2nd February, 2007.

Educational institution---

----Admission---"Notice of Admission" published in newspaper inviting' candidates to jour Diploma course of Field Assistant in Agriculture Department---Application for admission by petitioner having passed 'Matric in 3rd Division---Acceptance of application after scrutiny by Authority---Deposit of fees by petitioner and having attended classes for more than one' month---Cancellation of admission by Authority on the ground that petitioner possessing 3rd Division Matric Certificate was not eligible to be granted admissions according to rules---Validity---Petitioner having 3rd Division in Matric was not eligible to apply for such admission, but Authority having such knowledge had granted him admission and had not acted with vigilance---Petitioner had paid dues of Institution after selling some articles of his house to get admission---Petitioner had not committed any fraud, for which he could be removed afterwards---Cancellation of petitioner's admission at such stage was not legal in view of the rule of locus poenitentiae---High Court accepted constitutional petition and allowed petitioner to remain on the role of institution as student and continue his study with all consequential liabilities and benefits.

Imtiaz Ahmed Lone v. University of Engineering and Technology through Vice-Chancellor, Taxila and 2 others 2003 YLR 556 and Chairman, Selection Committee/Principal, King Edward medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 ref.

Nadeem Iqbal Chaudhry for Petitioners.

Ch. Shafi Muhammad Tariq, A.A.-G.

Manzoor Hussain, Deputy Director, Agriculture, IATI Rahimyar Khan.

2007 C L C 1495

[Lahore]

Before Maulvi Anwarul Haq, J

DILDAR HUSSAIN alias DILLAWAR HUSSAIN----Appellant

Versus

SHAHZADA ALAMGIR----Respondent

S.A.O. No.17 of 2007, heard on l5th June, 2007.

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

----Ss. 5-A & 13---Ejectment petition---Non-payment of rent at statutorily enhanced rate, ground of---Absence of notice demanding such rent Prom tenant---Validity---Ejectment could not be ordered .against tenant in absence of such notice.

National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Sh. Naseem-ud-Din and 4 others PLD 1997 SC 564 rel.

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

----Ss. 13(3)(ii)(6) & 15(5)---Bona fide personal need of landlord---Failure of tenant to deposit rent in court as per tentative rent orders passed by Rent Controller and Appellate Authority---Admission of landlord to be in possession of two shops---Application by tenant to Appellate Authority for additional enquiry that landlord had got vacated other shops and let out to others---Dismissal of appeal by Appellate Court without giving findings on such application in impugned order---Validity---Landlord had to explain his possession over shop in same urban area and his conduct, if he had got vacated a shop and then let same out---Appellate Authority while passing impugned order had acted against law in exercise of its jurisdiction---High Court set aside impugned order with direction to landlord to make an application to Appellate Authority to demonstrate any default committed by tenant in matter of compliance with such tentative rent orders, and after its decision, if Appellate Authority decided to proceed further, then he would decide appeal on merits after considering contents of tenant's application for additional enquiry and its reply and other evidence on record.

Nauman Qureshi for Appellant.

Mian Muhammad Abbas for Respondent.

Date of hearing: 15th June, 2007.

2007 C L C 1507

[Lahore]

Before Syed Hamid Ali Shah, J

SHAMAIL MASUD----Petitioner

Versus

Malik MANZOOR AHMAD and 4 others----Respondents

Civil Revision No.1607 of 2006, decided on 1st June, 2007.

(a) Arbitration Act (X of 1940)---

----Ss. 30, 32 & 33---Civil Procedure Code (V of 1908), S.12(2)---Decree based on award, can be competently assailed through filing a petition under S.12(2), C.P.C.---Non-filing of objections under Ss.30 & 33, Arbitration Act, 1940, or non-availing of other remedy creates no bar in that respect.

Muhammad Yasin v. Sh. Hanif Ahmad and others 1993 SCMR 437; Mrs. Anis Haider and 3 others v. Additional District Judge and 6 others 2003 CLC 462; Dr. Izhar Fatima v. Aftab Ahmad Khan and others NLR 1993 AC (Civil) 551 and Mst. Afroz Jahan v. Mst. Noor Jahan and others 1988 CLC 1318 rel.

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

----S.196---Counsel and client---Provisions of S.196, Contract Act, 1872 did not apply when counsel through whom the objections were filed had categorically stated that he was neither representing the party, nor had withdrawn objections on behalf of the said party.

(c) Counsel and client---

----Filing of objections jointly with another objector through a counsel, who is engaged by one of them, does not take away the right of other objector to pursue objections independently of his co-objector---Objections filed jointly through one counsel can be treated as filed by each objector independently.

(d) Counsel and client---

----Litigant is bound by an act or undertaking of his counsel when the counsel holds a valid authority to represent him.

(e) Counsel and client---

----Counsel cannot withdraw himself from litigation, unless he has express authorization in that regard---Statement of counsel is binding only when he is engaged and appointed by a person, through a document in writing, which is signed by such person.

Dilawar Khan v. Muhammad Siddique and 6 others 1993 MLD 1493 and Official Receiver Aligarh and others v. Hira Lal AIR 1935 All. 727 ref.

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

----O. XXIII, R.1---Withdrawal of objection, at the back of the party, through a person who had no valid authority and passing the preliminary decree on assumption that the objections stood withdrawn, leading to conclusion that decree was result of misrepresentation and suppression of available evidence and relevant material.

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

----S. 12(2)---Arbitration Act (X of 1940), Ss.30, 32 & 33---Scope and application of S.12(2), C.P.C.---Judgment and decree can be set aside under S.12(2), C.P.C., considering the factors which are envisaged in section itself that is to say fraud, misrepresentation and detect of jurisdiction---Withdrawal of objections through an unauthorised person and passing the preliminary decree suppressing the terms of arbitration award and by ignoring the material condition of withdrawal of objections, are the factors which establish that impugned decree (preliminary decree) was result of fraud and misrepresentation---Such preliminary decree, in circumstances, had no legal sanctity.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Limitation period prescribed for riling the application under S.12(2), C.P.C. is governed under Art.181, Limitation Act, 1908 which is three years---Period of limitation shall run either from the date of knowledge of fraud or from the date of decree, when right to apply accrues.

Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 rel.

Ahmad Waheed Khan for Petitioner.

Abdul Razzaq for Respondent No.1.

Ghulam Mustafa Shahzad for Respondent No.2.

Muhammad Tahir Chaudhry for Respondent No.3.

Syed Ali Hassan Gillani for Respondent No.4.

Kh. Saeed-uz-Zafar and M.M. Anwar Tarar for respondent No.5.

Date of hearing: 2nd March, 2007.

2007 C L C 1517

[Lahore]

Before Sh. Hakim Ali, J

Mst. SHEHNAZ AKHTAR----Petitioner

Versus

FIDA HUSSAIN and 2others----Respondents

Writ Petitions Nos.708 and 1050-F of 2006/BWP of 2006, decided on 6th February, 2007.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit by wife for recovery of dower, dowry articles and for grant of maintenance allowance against husband and her father---Jurisdiction of Family Court---Scope and extent---Necessary parties to suit---Dower amount fixed was prompt and settled as Rs.60,000 out of which plaintiff' was permitted to obtain the plot of five Marlas with one constructed room, transferred in her favour from father of husband on basis of an agreement, in lieu of dower amount of Rs.40,000 which for the remaining amount of Rs.20,000 tour Tolas gold ornaments were to be delivered, which were handed over to her---Question arose as to whether plaintiff could file suit against rather of bridegroom for completion of contract executed by' him for the payment of dower---Held, there was no bar or prohibition in the way of plaintiff in that regard, so as to impede the way of plaintiff from claiming the implementation-and completion of the agreement---Family Court, under S.5, West Pakistan Family Courts Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband only bridegroom/husband could be impleaded in the suit for recovery of dower and none else--If another person had stood surety or had guaranteed the payment of dower, he/she could lawfully be impleaded in the suit---Surety and guarantor to the dower were as much party and liable to pay dower as she bridegroom himself---Principles.

Muhammad Alam and another v. Shamas-un-Nisa and others NLR 1979 (Civil) 67; Master Majeed v. Mst. Mulmah and 2 others 1992 CLC 13; Maj. (Retd.) Ishtiaq Mahmood v. Mst. Zareen Gul and others 2002 CLC 1838; Mst. Manzoor Elahi v. Muhammad Nawaz and others 2002 MLD 988; Mst. Farhad v. Additional District Judge-II, Mardan and 2 others 2000 MLD 1638; Muhammad Afsar Khan v. Muhammad Rashid and 9 others PLD, 1986 Azad J&K 196; Muhammad Aslam v. Mst. Zainab Bibi and others 1990 CLC 934; Mst. Hajiran Bibi v. Abdul Khaliq. PLD .1981 Lah. 761; Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122; Rukhsana Tabassam v. Judge, Family Court and 2 others 1999 CLC 878; Altaf Hussain Shah v. Mst. Azra Bibi and 2 others PLD 2000 Lah. 236; Mst. Saiga v. Additional District Judge Rawalpindi and 2 others 2003 YLR 70 and Allauddin Arshad v. Mst. Neelofar Tareen and 2 others 1984 CLC 3369 ref.

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

----S. 5 &Sched.---Suit by wife for recovery of dower, dowry articles and for grant of maintenance against husband---Wife having not been paid the settled dower by husband, she could claim separate maintenance.

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

----S. 5 & Sched.---Suit by husband for restitution of conjugal rights against wife---Husband having not paid the dower and maintenance to wife, his suit for, restitution of conjugal rights could not be decreed.

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

----S. 5 & Sched.---Suit for claim of dowry articles by wife---List of dowry articles had not been proved by wife through any cogent evidence on the record, nor the plea of having taken away the dowry articles raised by husband had been proved through any independent evidence---High Court, in view of saving the parties from further remand and another round of litigation relied upon the statement of wife about the said articles and fixed the amount approximately only of those articles keeping in view the state of value, in the year 1996 and declared the plaintiff/wife entitled to recover that amount from the husband.

Muhammad Yasin Kukerya, for Petitioner.

Malik Muhammad Altaf Nawaz for Respondents.

Date of -hearing: 6th February, 2007.

2007 C L C 1526

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

Begum AFSAR SULTAN QAZALBASH and 4others----Applicants

Versus

Mian NISAR ILAHI and 2others----Respondents

Review Applications Nos.70 and 71 of 2005 in Writ Petitions Nos.2178 and 2179 of 2005, decided on 26th April, 2007.

Civil Procedure Code (V of 1908)---

----O. XLVII, R.1---Review of judgment---Scope---Scope of review was very limited---Applicant seeking review must show that an error or mistake was apparent on the face of record---Review was neither a substitute for a full-fledged appeal nor it was akin to re-hearing of the whole matter---Even if the view taken by the court was erroneous, it would not warrant review of decision which could only be exercised when an error or mistake was manifestly shown to float on the surface of record, which was so patent that, if allowed to "remain intact, would perpetuate illegality and gross injustice---Besides a patent error or mistake, applicant for review had to show discovery of new and important matter of evidence, which, after exercise of due diligence, was not within. his knowledge, or could not be produced at the time when the order was made---Review jurisdiction could not be invoked as a routine matter or to rehear a case which had already been decided---Conscious decision on a point of fact or law would not warrant review, rather the remedy of the aggrieved party lay. elsewhere---Counsel for applicant had not been able to show that any error or mistake was apparent on the face of record---Each bit of documents referred to by the counsel for the parties had been discussed, and rightly appreciated by the court---Categorical findings recorded after careful and conscious appreciation of all the pros and cons of the matter could not be re-opened with a view to reappraising the same and for taking a contrary view which otherwise did not suffer from misconstruction or misappreciation of documents and the law applicable to facts of the case---Counsel for applicant had also failed to point out any material irregularity in the order constituting judicial fallibility.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Abdul Ghaffar, Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 383 and Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110 rel.

A.K. Dogar for Applicants.

2007 C L C 1533

[Lahore]

Before Sh. Hakim Ali, J

Mst. GHULAM FATIMA and another----Petitioners

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.41-D of 1997/BWP, decided on 15th March, 2007.

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

---S. 22---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.22, 25 & 4---Evacuee Property----Treatment of the property was a pre requisite for bringing into the compass of jurisdiction of the Custodian and thereafter by Settlement Authorities, to deal with any land or property as an evacuee---If a property was not treated as an evacuee property before 1-1-1957, then that property could not be treated as an evacuee property thereafter---Allottees, in the present case, had failed to bring on record any evidence that property in question was ever treated by the Custodian/Settlement Authorities before 1-1-1957 as an evacuee property; revenue record 'had also .not supported that the property was ever treated as an evacuee property and entries in revenue record in the form of Jamabandis had clearly displayed that the land in dispute was considered and treated in the ownership of non-evacuee owner---Land in question having not been treated as evacuee property and having not been shown in special Jamabandis as such and having not been acquired into compensation pool, could not have been allotted to any refugee claimant or non claimant---Principles.

Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and Shamsul Haq Khan PLD 1962 SC 284; Samar Gul v Central Government and others PLD 1986 SC 35; Muhammad Hanif and another v. Ghulam Rasool through L.Rs. and others 2005 SCMR 1004; Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR- 829; Ghulam Muhammad and others v. Custodian Evacuee Property Punjab (West Pakistan) Lahore and another 1992 SCMR 120; Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441.; Khuda Bux Bhango v. Settlement Commissioner (Land) and others 1987 MLD 2350 and Abdul Khaliq Abdur Razzaq v. Kishan Chand and others PLD 1964 SC 74 ref.

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

----S. 22---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.22, 25 & 4---No order of treatment of the land in dispute as an evacuee was ever passed for its acquisition by custodian before 1-1-1957 or thereafter, the Settlement Authorities or the Central Government under Settlement Laws---Land in question had not gone into compensation pool, in that situation, in case of a property mortgaged with the evacuee, at the most mortgagee rights, could be deemed to have been transferred which rights could be presumed to have been obtained or devolved upon by the Central Government or the Settlement Authorities---Principles.

Samar Gul v. Central Government and others PLD 1986 SC 35 and Muhammad Hanif and another v. Ghulam Rasool through L.Rs. and others 2005 SCMR 1004 ref.

(c) Pakistan (Administration of Evacuee Property) Act (XII of 195)---

----S. 22---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.22, 25 & 4---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.17---Property of non-evacuee, mortgaged with an evacuee---Period of 60 years having already passed, Civil Court had jurisdiction to declare that the land in question had not remained a mortgaged property.

Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and Shamsul Haq Khan PLD 1962 SC 284 ref.

Ijaz Ahmad Ansari for Petitioners.

Maftooh-ur-Rahim for Respondents.

Date of hearing; 28th February, 2007.

2007 C L C 1542

[Lahore]

Before Maulvi Anwarul Haq and Syed Sakhi Hussain Bokhari, JJ

Rana ZULFIQAR----Petitioner

Versus

JUDICIAL OFFICER/LIQUIDATOR, PUNJAB COOPERATIVE BOARD FOR LIQUIDATION----Respondent

Writ Petition No.511 of 2007, decided on tithe June, 2007.

(a) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (I of 1993)---

----S. 11---Limitation Act (IX of 1908), Ss.5 & 29(2)(b)---Application to Cooperatives Judge under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1993---Delay, condonation of---Provision of S.5 of Limitation Act, 1908 would not apply to such application.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Ordinance (I of 1993)---

----S. 11 [as amended by Punjab Undesirable Cooperative Societies (Dissolution) (Amendment) Ordinance (LIII of 1999)]---Provisional Constitution Order (I of 1999), Art.5-A(1)---Constitution of Pakistan (1973), Art.270-AA---Application to Cooperatives Judge under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1993---Period of limitation for such application prescribed under S.2 of Punjab Undesirable Cooperative Societies (Dissolution) (Amendment) Ordinance, 1999---Validity---Amending Ordinance, 1999 was promulgated on 9-10-1999, Proclamation of Emergency was issued on 14-10-1999, Art.270-AA of the Constitution protected Provisional Constitution Order, 1999, Art.5-A of which saved Ordinances issued before 14-10-1999---Provision of Amending Ordinance, 1999 prescribing limitation for such application, thus, stood validated.

Sh. Khurshid Iqbal for Petitioner.

2007 C L C 1544

[Lahore]

Before Sh. Hakim Ali, J

BASHIR AHMAD----Petitioner

Versus

Meer ASLAM JAN----Respondent

Civil Revision No.670 of 2004/BWP, decided on 7th February, 2007.

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

----O. VII, R.10 & O.XXXVII, Rr.2 & 3---Conciliation Courts Ordinance (XLIV of 1961), S.6 & Sched. Part I, section B---Suit for recovery of Rs.16,500 on basis of pro note and its receipt---Return of plaint---Defendant, after closure of his right to produce evidence raised objection before Additional District Judge that only the Conciliation Court had jurisdiction to try such suit---Validity---Such suit was exclusively triable by Conciliation Court in view of provision of S.6(1) read with section-B (Civil Cases) of Part-I Sched. to Conciliation Courts Ordinance, 1961---Defendant was not debarred from raising such .objection at such stage---Absence of objection or delayed objection would not grant to court jurisdiction, which was not vested in it---Additional District-Judge could not assume jurisdiction in such suit---Proceedings conducted without jurisdiction would be nullity in eye of law---High Court set aside impugned order and directed for return of plaint to plaintiff for its presentation before competent court.

(b) Jurisdiction---

----Court not having jurisdiction---Absence of objection or delayed objection or consent of parties could not confer jurisdiction upon Court---Proceedings conducted without jurisdiction would be nullity in eye of law---Principles.

If a Court has got no jurisdiction, the objection having not been raised, it cannot be granted jurisdiction or even the consent of the parties cannot confer same upon it.

Proceedings conducted without jurisdiction are nullity in the eye of law and cannot be held sacrosanct. It cannot be held legally justified on the score of raising it through delayed application.

A. R. Aurangzeb for Petitioner.

M. Abdul Aleem Qureshi for Respondent.

2007 C L C 1547

[Lahore]

Before Maulvi Anwarul Haq, J

Haji CHIRAGH DIN----Petitioner

Versus

MUHAMMAD RAFI through L.Rs.----Respondents

Civil Revision No.1681 of 2001 and S.A.O. No.26 of 2004, heard on 27th April, 2007.

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

----S. 13(2)(i)---Ejectment petition---Default in payment of rent---Denial of relationship of landlord and tenant on basis of agreement of sale---Validity---Agreement did not contain any clause to the effect that tenant would be absolved of his liability to pay rent or -that nature of his possession would be changed from that of a tenant to one under agreement---Tenant was liable to pay rent to landlord---Ejectment petition was accepted in circumstances.

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

----S. 13---Specific Relief Act (I of 1877), S.12---Ejectment petition---Denial of relationship of landlord and tenants on basis of agreement of sale---Suit for specific performance of agreement by tenant, pendency of---Effect---Rent Controller would not be bound to stay ejectment proceedings "due to such dispute of title between parties.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 rel.

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

----S. 12---Specific performance of agreement of sale, suit for---Execution of agreement by defendant, denial of---Plea of defendant was that his thumb-impressions were obtained on some papers on the pretext that rent note had to be executed in duplicate---Proof---Attesting witnesses of agreement examined in court were brother and maternal-uncle of plaintiff---Stamp-paper of agreement was purchased by third person---Receipt of earnest money and execution of agreement was denied by defendant in examination-in-chief---Defendant during cross-­examination was neither confronted with agreement nor was there its mention---Suit was dismissed in circumstances.

Nasarullah Khan Babar for Petitioner.

Muhammad Yaqoob Chaudhry for Respondents.

Date of hearing: 27th April, 2007.

2007 C L C 1553

[Lahore]

Before Sh. Hakim Ali, J

Malik ZAMURRAD HUSSAIN----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Local Government and Rural Development Department, Punjab, Lahore and others----Respondents

Writ Petition No.311 of 2007/BWP, decided on 27th March, 2007.

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

----S. 85(2)---Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003, R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Recall of Union Nazim---Stages for ousting a Union Nazim---First step was the summoning of session of union council within three days from the receipt of application for recall motion, wherein deliberations upon that recall motion had to be made by the session of the union council; after the deliberations, the result of it in the shape of resolution with regard to recall motion, if positive i.e. passed with single majority of members of union council, it had to be forwarded and conveyed with copy of the record to the Election Authority, with prayer of conduct of secret balloting, upon which the Chief Election Commissioner had to arrange and manage the session of the union council for secret ballot voting upon the recall motion---Secret ballot voting was the second step, wherein that session -of union council was to decide by two-third .majority of members, as to whether to remove the Union Nazim or not, in case of failure at this step, consequences provided were to follow also---Validity of first step having been challenged in the constitutional petition, petition was competent.

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

----S. 85(2)(7)---Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003, R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recall of Union Nazim---Procedure---Nazim/petitioner having not been served in accordance with law before holding of session of the union council concerned, he was deprived of valuable right of addressing the session to permit him to produce his defence in that session---Proceedings at the first step of first session of union council, passing resolution to request for appointment of a representative of the Chief Election Commissioner for conduct of voting through secret ballot, upon recall motion were declared to be illegal and unlawful by the High Court and were set aside---Principles.

Sardar Mahmood Iqbal Khakwani for Petitioner.

Bilal Ahmad Qazi for Respondents Nos.2.to 4.

Nemo for Respondents Nos.1 and 5 to 6.

Date of hearing: 20th March, 2007.

2007 C L C 1563

[Lahore]

Before Maulvi Anwarul Haq, J

GUL MUHAMMAD and another---Petitioners

Versus

MUHAMMAD LATIF----Respondent

Civil Revision No.304 of 2007, heard on 16th April, 2007.

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

----Ss. 6(c) & 13---Right of pre-emption, exercise of---Shafi Jar---Judgment at variance---Suit filed by pre-emptor was dismissed by Trial Court on the ground that neither he had any superior right of pre-emption nor he performed Talbs---Judgment and decree passed by Trial Court was set aside by Appellate Court and the suit was decreed in favour of pre-emptor---Validity---Revenue Record showed that the land owned by pre-emptor and the land purchased by vendee were adjacent to each other---Appellate Court correctly found that pre-emptor had superior right of pre-emption being Shafi Jar---Pre-emptor had duly pleaded date, time and place of making of first Talb and further he had stated the names of informer as well as the witnesses in the plaint itself---High Court did not find any ground for interference with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Ateeq-ur-Rehman through his real father) and another v. Muhammad Amin PLD 2006 SC 309 distinguished.

Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Faiz Muhammad Bilal for Petitioners.

Malik Ejaz Hussain Gorcha for Respondent.

Date of hearing: 16th April, 2007.

2007 C L C 1565

[Lahore]

Before Sh. Hakim Ali, J

MAUJ ALI----Petitioner

Versus

GHULAM SARWAR and another----Respondents

Civil Revision No.202 of 2007/BWP, decided on 16th April, 2007.

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

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of agreement of sale---Plaintiff in suit also challenged sale-deed executed by vendor in favour of second defendant---Vendor ­defendant alleging suit agreernent to be fake and fictitious denied receipt of sale amount and delivery of possession of property to plaintiff---Application for temporary injunction to maintain status quo---Validity---No independent documentary proof existed on record regarding payment of alleged sale amount and delivery of possession under suit agreement---Second defendant having purchased property through registered deed could not be restrained from exercising his right of ownership---Plaintiff, after getting decree in suit, would become entitled to get possession of property after execution of sale-deed in his favour---Such application was dismissed in circumstances.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of agreement of sale---Temporary injunction to maintain status quo and to restrain inclusion of strangers to avoid multiplicity of litigation, grant of---Scope---Rule of lis pendens could not be used as a tool and bar for refusal to grant such injunction, however each case has to be examined and dealt with in accordance with its own given facts and circumstances---Granting of such injunction would be justified in a case, where execution of agreement- was admitted, but dispute between parties related to fulfilment of its terms and conditions---Where agreement was dubious, its execution was denied and there was no cogent proof of payment of sale amount, then refusal of such injunction would be the rule---Principles.

The rule of lis pendens cannot be used as a tool and bar for refusal to grant temporary injunction, but it is also a correct principle that each case has to be examined and deal with in accordance with its own given facts and. circumstances. Generally, where the execution of agreement to sell is admitted and dispute has arisen with regard to fulfilment of its terms and conditions, in such an event, temporary `injunction to maintain status quo, to restrain inclusion of strangers or to avoid the multiplicity of litigation is issued by the Courts. But where alleged agreement is a dubious document on its own face, the execution of which is denied by the alleged executant, there is no other supportive or corroborative evidence, and there is no cogent proof of payment of consideration, then in such-like cases, usually refusal of issuance of interim injunction becomes the rule of the day. Because it would be a great injustice to restrain a lawful owner to exercise his lawful rights of ownership, and to grant benefit to a blackmailer, cheater, impostor, impersonator or defaulter, who, after obtaining an injunction may prolong and protract the litigation and thereby gain its beneficial repercussions. In such case temporary injunction cannot be granted to such a person.

Nadeem Iqbal Chaudhry for Petitioner.

2007 C L C 1572

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD IDREES and 2 others----Petitioners

Versus

MUNAWAR ALI----Respondent

Civil Revision No.586 of 2006, decided on 15th December, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Claiming that a bargain had been entered info for sale of land and that plaintiffs had paid amount as earnest money; that in terms of alleged agreement to sell it was allegedly agreed that balance consideration would be paid at the time of consummation of transaction, but defendant had failed to execute sale-deed according to terms of agreement---Defendant denied execution of agreement to sell and all alleged transactions sued, upon---One of the two alleged marginal witnesses, did not appear as witness and no explanation .whatsoever had been furnished by the plaintiffs in that regard---One of the plaintiffs had also not entered the witness-box to support his claim---Notary Public who allegedly attested the document, also did not appear---Scribe of alleged agreement of sale, did not know the parties---Material contradictions were available in the statements of prosecution witnesses regarding time and place of transaction and the payment of .alleged consideration---Trial Court, in circumstances, returned the finding that plaintiffs were unable to prove execution of the agreement, which finding was affirmed in appeal---Validity---Concurrent and consistent finding of fact by the two courts below were on record---Counsel for plaintiffs had been unable to point out any misreading and non-reading of evidence---No exception, in circumstances could be taken to the impugned concurrent judgments and decrees of the courts below, which did not suffer from misapplication of law or material defect in the exercise of jurisdiction.

M.M. Alam Chaudhri for Petitioners.

Ahmed Yar Chawal for Respondent.

2007 C L C 1578

[Lahore]

Before Muhammad Muzammal Khan, J

MATLOOB AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2others----Respondents

Writ Petition No.2344.of 2006, decided on 13th June, 2007.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Welfare of minor---Determination---Minor girl was living with her mother---Father did not pay maintenance allowance to the minor fixed by court about six years back and filed application for her custody---Guardian Judge as well the Appellate Court concurrently declined to give custody of minor girl to her father---Validity---Father never cared to look after the affairs of his own minor daughter who, at the time of divorce to her mother was a student of 8th class, instead father solemnized his own second marriage; it would be prejudicial to welfare of the minor to hand over her custody to father for her bringing up by step-mother, in preference to her real mother---Father was an army personnel and remained under constant transfers, from one place to another and in .his absence there would be hone to look after the growing girl, who could not be left at the mercy of other wives---Father had neglected the minor since her birth and had voluntarily allowed his divorced wife (mother of minor) to take along with her to the house of her parents, where minor started putting up with maternal relations---Father could not even recognize his daughter and in such circumstances to deprive the minor of her environments with which she had developed attachment, would negatively reflect on her personality---High Court in exercise of Constitutional jurisdiction declined to interfere with the judgments passed by two Courts below---Petition was dismissed in circumstances.

Mst. Firdaus Iqbal v. Shafat and others 2000 SCMR 838 fol.

Ali Akbar v. Kaniz Maryam PLD 1956 Lah. 484 distinguished.

Q.M.. Saleem for Petitioner.

Muhammad Zubair Khalid Chaudhary for Respondents.

2007 C L C 1580

[Lahore]

Before Sh. Abdul Rashid, J

MUHAMMAD HANAF----Petitioner

Versus

DISTRICT OFFICER (REVENUE), FAISALABAD and others----Respondent

I.C.A. No.206 of 2006 in Writ Petition No.2305 and C.Ms. Nos.3141, 3235, 3493 and 3632 of 2005, decided on 25th May, 2006.

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

----Ss. 3 & 22---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaring property as non-evacuee---Plea of fraud---Claim of petitioner was that land in dispute which was owned by a non-Muslim, was sold by said non-Muslim to his deceased father through sale-deed before partition mi 18-7-1947, but owing to communal disturbance said non-Muslim migrated to India and sale-deed in question could not be registered---Predecessor-in-interest, despite his best efforts having failed to have land mutated in his name in relevant Revenue Record, had recourse to the court of Custodian and sought declaration by moving application under S.22 of Pakistan (Administration of Evacuee Property) Act, 1957 that land in dispute was non-evacuee and that he was owner thereof through sale---Deputy Custodian concluded that sale-deed relied upon by predecessor-in-interest was a genuine document and declared that land in dispute was non-evacuee which was sold to predecessor-in-interest of petitioner---Custodian confirmed findings of Deputy Custodian and directed authorities to make correction of record in accordance with the prayer made by petitioner---Authorities, instead of complying with said orders filed application under S.12(2), C.P.C. before civil court to have judgments and decrees passed in favour of the petitioner by Custodian and then by .civil court to have said judgments and decrees set aside on ground of collusiveness etc.---Said application was accepted and decree passed in favour of petitioner was set aside ex parte by civil court despite knowledge that matter was sub judice before High Court---Validity---Order of Deputy Custodian as upheld by Custodian was based on a detailed inquiry---Said decision was not to be hampered by consideration, which could be relevant in proceedings before the civil court---Said order which was passed in 1959, had remained operative till now and had never been challenged anywhere at any time by anyone, despite the fact that it had been continuously brought to the notice of authorities .for implementation---Authorities could not be allowed to challenge swine after lapse of more than 40 years, when property in dispute had never been treated as an evacuee before 1-1-1957, same could not be treated as evacuee after that date in view of S.3 of Pakistan (Administration of Evacuee Property) Act, 1957---Mere inclusion of said property in notification, would not render it evacuee when the Custodian had specifically declared it non-evacuee which had been declared to have been sold to petitioner's predecessor-in-interest---Orders of Deputy Custodian and Custodian relied upon by petitioner were valid and above suspicion and had to be given effect to.

PLD 1987 SC (AJ&K) 65 and PLD 1995 SC 66 ref.

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

----S. 39---Mutation---Mutation was neither a document of title nor it created nor extinguished title, nor it was primarily intended for fiscal purposes for collection of land revenue---Such proceedings were not judicial proceedings wherein rights or title in property were determined---No decree of ownership could be awarded on the basis of oral sale where it was registrable.

Sajjad Rafi and Kh. Saeed-uz-Zafar for Petitioner.

S.M. Masud, Raja Muhammad Anwar, Syed Aal-e-Ahmad and Najeeb Faisal Addl. A.-G: for Respondents.

Date of hearing: 25th May, 2006.

2007 C L C 1592

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD SALEEM and others---Petitioners

Versus

MARRYAM BIBI and 11 others---Respondents

Civil Revisions Nos.2528, 2565 and Writ Petition No.18370 of 2005, decided on 28th June, 2007.

(a) Interpretation of document---

----Sale-deed---Document itself has to be accepted true and correct by its express and clear words which are to be given their apparent meaning---Addition, substraction, modification are not to be supplied to any document when the words used in the document are clear in their meanings and terms and no ambiguity is found in them---Meaning of plain words are not to be stretched in such a way so as to bring into them the properties which are not included therein by its plain wordings---Words in the document (sale-deed) actually displaying rights of easement attached to the property having been sold cannot be interpreted in such a manner so as to include another different and separate property in it---Illustration.

(b) Contract---

----Principle of mutuality---Applicability---Scope.

So far as the principle of mutuality of contract is concerned, it would suffice to say that it is not necessary that in all cases, a document must contain the signature of the other party. If any party has accepted the contract by getting a document executed in his favour, paying the full or part amount under it, obtaining the possession of the property concerned and receiving the document of title or creating a right to or in the property settled, then the contract cannot be deemed to suffer with the rule/principle of lack of mutuality. If any party to the contract does any act with regard to any part of the contract which is visible and material by performing it and that act leads to irresistible conclusion that the party has accepted it, the contract would be considered complete and there will be no question of lack of mutuality of contract.

It is not necessary for the validity of an agreement, that it must contain the signature of the other party, if the other party is shown to have performed the desired, express or implied condition, act or has done any other thing which can display that the other party has accepted the agreement by his act, or conduct or through the fulfilment of condition like payment of consideration, acceptance of delivery of possession etc. in the performance of agreement, then that agreement would be' considered to be a contract having been entered into by the other party with his consent. Mere failure to put signatures of the other party, upon that agreement would not invalidate the agreement or make it ineffective.

When the vendor and vendee state in agreement that such a contract (agreement to sell) was entered into between them, then no objection of lack of mutuality can be raised by a third party, particularly, when the possession of the property sold was obtained by the vendee under the agreement. The admission of vendor having executed the agreement, received thee amount and delivered the possession of property in dispute, were sufficient to prove the execution of the contract.

Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 281; Rehmat Ali and others v. Faqir Muhammad (deceased) through legal representatives and others 2005 YLR 301 and Malik Hashim Din and others v. Bashir Ahmad 1992 CLC 754 distinguished.

Messrs Jamul Jute Baling and Co. Dacca v. Messrs M. Sarkiess and Sons Dacca PLD 1971 SC 784; Vouwang Raja Challaphroo Chwdhury v. Banga Behary Sen AIR 1916 Calcutta 771 and The State of Bihar v. Bengal Chemical and pharmaceutical Works Ltd. AIR 1954 Patna 14 ref.

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

----S. 115---Revision---Objection on a question of fact not earlier raised in the suit and no issue having been framed on that point---Validity---Question of fact was necessarily to be raised in the pleadings as it had required evidence on the point in the shape of proving or disproving same---Such question could not be considered in revision to have not been correctly and competently raised by the petitioner.

Malik Noor Muhammad Awan for Petitioners.

Ch. Irshad Ullah Chatty for Respondents.

2007 C L C 1602

[Lahore]

Before Ch. Ijaz Ahmed, J

ABDUL QAYYUM ARIF----Petitioner

Versus

AGHA GUL and 2others----Respondents

Civil Revision No.248 of 2002, decided on 23rd May, 2006.

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

----Ss. 51, 54 & O.XXI, Rr.31(2), 32, 37, 40, 53, 56---Execution of decree---Modes---Duty of Executing Court---Executing Court could adopt any mode to execute decree as provided by the C.P.C.; in addition to the mode prescribed by S.51, C.P.C., Civil Procedure Code had further provided modes for execution of decree as was evident from S.54, C.P.C., which was "Partition of Estate"; under O.XXI, R.31(2), C.P.C. award of compensation, under O.XXI, R.32, enforcement of decree for restitution of conjugal rights etc., under O.XXI, R.53, C.P.C. attachment of decree, under O.XXI, R.56, C.P.C. delivery of attached property, etc.---Decree could be executed simultaneously against both the person and the property of judgment-debtor---Executing Court was to provide assistance to decree-holder in execution of his decree and it should offer him all possible and reasonable facilities for realizing the decretal amount in as much short a time as possible---Decree-holder was to prove that judgment-debtor had means to satisfy the decree in view of provision of S.51, C.P.C.---If judgment-debtor did not appear or did not lead any evidence that would not absolve the decree-holder from his duty and obligation of leading evidence as prescribed under O.XXI, R.40, C.P.C. to satisfy the court about the existence of such ground, it was also duty of the Court to record reasons in writing of such satisfaction---Inspite of proviso to S.51 read with O.XXI, R.40, C.P.C. the court had discretion to order for arrest of judgment-debtor---Decree-holder had a right to avail both remedies, i.e. attachment of property of judgment-debtor and also his arrest.

Mohsin Ali v. National Bank of Pakistan 1987 CLC 1419; Mono Mohan v. Upendra Mohan Pal and others AIR 1935 Cal. 127; Jugal Kishore and others v. Pahlad Rai and others AIR 1939 Pat. 22; Syed Muhammad Hussain v. Cooperative Society AIR 1943 Lah. 166; Venkappa and others v. Lakshmi Kant Rao AIR .1956 Hyderabad 7; Mharaj Bahadur Singh v. Mafiz-ud-Din Chaudhry and another AIR 1936 Cal. 238; Mono Mohan Upends Mohan Pat and others AIR 1956 Mad. 580; Jolly G. Varghese v. Bank of Cochin AIR 1980 SC 470 and Kunchumerra Rawther Ali v. Mathai Thomas AIR 1982 Kerala 10 rel.

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

----S. 115---Revisonal jurisdiction---Scope---Revisional jurisdiction was discretionary in character---He who seeks equity, must come with clean hands.

Aleem Baig Chughtai for Petitioner.

M. Zafar Chaudhry for Respondent No.1.

Ch. Tanveer Akhtar for Respondents Nos.2 and 3.

Date of hearing: 23rd May, 2002.

2007 C L C 1612

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. MUNIRA BIBI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2 others----Respondents

Writ Petition No.2400 of 2004, heard on 26th June, 2007.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Both Guardian Judge and the Appellate Court concurrently dismissed application of mother of minors under S.25 of Guardians and Wards Act, 1890 for custody of minors---Courts had appointed respondent brother of deceased father of minors as their guardian---Petitioner had challenged the concurrent judgments of courts below---Petitioner, who was mother of minors had claimed that it was in the welfare of minors that minors should live with her---Case of respondent, who was brother of deceased father of minors, .was that petitioner was of bad character who along with others killed her husband and that she had no source of income---Petitioner had failed to produce any worthwhile evidence in support of her claim for custody of minors---Petitioner lady had no source of income, .whereas respondent (uncle) was a teacher and he was looking after the minors and they were getting education---Petitioner allegedly was living with corrupt persons---Respondent (uncle) had deposed that he could look after the minors in better manner and that minors did not want to meet petitioner who had no house---Trial Court had rightly observed that it was in the welfare of minors that they should remain with respondent (uncle)---Trial Court, in circumstances, had rightly dismissed application of petitioner for custody of minors and Appellate Court had rightly' upheld said judgment---In absence of any illegality or infirmity in the impugned judgment, same could not be interfered with in constitutional jurisdiction of High Court--Paramount consideration, in determining the question of custody of minor, being welfare of minor; it was in the welfare of minors that they should remain with their paternal-uncle/respondent.

Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.

Tahir Mahmood Khokhar for Petitioner.

Muhammad Tariq Awan for Respondents.

Date of hearing: 26th June, 2007.

2007 C L C 1616

[Lahore]

Before Jawwad S. Khawaja, J

Mst. ISHRAT ALIA----Petitioner

Versus

MUHAMMAD ASHRAF through L.Rs.----Respondents

Civil Revision No.812 of 2006, decided on 18th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Suit for declaration and cancellation of power-of-­attorney---Suit sought declaration of title and also prayed for cancellation of power-of-attorney allegedly executed by plaintiff and an exchange deed executed by the attorney in favour of defendant---Plaintiff alleged in the plaint that she had agreed to sell suit-land to another person and had also delivered possession to him and that subsequently attorney and the person in favour of whom the alleged exchange deed was executed, fabricated power-of-attorney and entered into fraudulent exchange as recorded in the exchange-deed---Alleged attorney of plaintiff having died, his legal representatives in their written statement did not challenge right of plaintiff to the decree prayed for by her---Both courts below non-suited the plaintiff on the short ground that-the person to whom, she had agreed to sell property should have filed suit for specific performance---No outstanding dispute existed between said person and the alleged attorney of the plaintiff---Plaintiff was entitled to cancellation of Power-of-Attorney and exchange-deed; her suit to that extent was decreed---Relief sought by plaintiff seeking specific performance had already been withdrawn by her through a statement made before Appellate Court---Revision was allowed and suit of plaintiff was decreed---Power-of-Attorney and exchange-deed were ordered to be cancelled.

Malik Noor Muhammad Awan for Petitioner.

Arshad Malik Awan for Respondent No.3.

L.Rs. of Respondents Nos.1 and 2: Ex parte.

Date of hearing: 18th October, 2006.

2007 C L C 1621

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ARSHAD----petitioner

Versus

RAFI AHMAD and 5others----Respondents

Civil Revision No.218 of, 2007, heard on 27th June, 2007.

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

----S. 24---West Pakistan General Clauses Act (VI of 1956), Ss.8 & 9---Pre-emption suit---Zar-e-Soem, deposit of---Computation of thirty days---Suit was filed by plaintiff' on 26-10-2001, it was put up before Trial Court on 27-10-2001 when order was passed for deposit of Zar-e-Soem, within thirty days and amount of Zar-e~Soem was deposited by pre-emptor on 26-11-2001---Trial Court and Appellate Court concurrently dismissed the suit on the ground that Zar-e-Soem was deposited beyond thirty days of institution of plaint---Plea raised by pre-emptor was that it was the direction of Trial Court which had to be complied with and he could not have been penalized for doing so---Validity---Held, it was mandatory for the court to require the pre-emptor to deposit 1/3 of the sale price of the property in cash within a period to be fixed by the court---First proviso to S.24 of Punjab Pre-emption Act, 1991, prohibited the court from extending period beyond thirty days of filing of suit---Where pre-emptor failed to make deposit within period fixed by court, penalty was prescribed by S.24(2) of Punjab Pre-emption Act, 1991---Penalty prescribed was not for violation of any statutory provision but for non-compliance of orders of court to be passed in accordance with S.24 of Punjab Pre-emption Act, 1991---Date of institution of suit i.e. 26-10-2001, had to be excluded---Day of the order for deposit of Zar-e-Soem was also liable to be excluded---After exclusion of date of institution, the deposit was to be made within thirty days i.e. 27-10-2001 to 30-10-2001 equal to tour days and 1-11-2001 to 26-11-2001 equal to twenty six days, total thirty days---Deposit of Zar-e-Soem was both in accord with the order of Trial Court as also with the statutory provision---Judgments and decrees passed by two courts below were set aside and the case was remanded to Trial Court for decision on merits---Revision was allowed in circumstances.

Fazal Elahi v. Noor Ahmed and 2 others PLD 2006 Lah. 318; Raja v. Tanvir Riaz and others 2006 CLC 1455; Syed Mushtaq Hussain Shah v. Jewan and 4 others 2007 MLD 1062; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720 and Muhammad Yousaf and 3 others v. Zafarullah and another 1992 SCMR 117 ref.

Mirza Aamer Baig for Petitioner.

Ch. Sadaqat Ali and Muhammad Siddique Bajwa for Respondents.

Date of hearing: 27th June, 2007.

2007 C L C 1626

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AFZAL through L.Rs.----Appellants

Versus

MUHAMMAD DIN----Respondent

Regular Second Appeal No.33 of 2006, decided on 20th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 31, 32 & 33---Rectification of sale-deed---Patent ambiguity existed in sale-deed in question---Said sale-deed purported to convey 77 Kanals, 16 Marlas from appellant to respondent---Area comprised in three Khatas---Relevant. Khata which was the basis of controversy had a total area of 894 Kanals, 14 Marlas---Contention of appellant was that at the time of execution of disputed sale-deed he was owner of 4128/71576 share in said Khata equivalent to 76 Kanals, 7 Marlas in the Khata---Appellant purported to convey 1527/71576 share which was equivalent to 13 Kanals, 2 Marlas---Equivalence, worked out between the undivided share of appellant in the Khata and the area of 76 Kanals, 7 Marlas, mentioned in .the sale-deed in question did not tally---Ambiguity in the sale-decd sought to be rectified, had arisen because in fraction 1527/71576 the numerator had been given in Marlas, while the denominator represented the total number of shares in Khata---Sale-deed in question, itself needed to be examined with the object of removing the patent ambiguity for which respondent had sought rectification---Fraction 1527/71576 being erroneous, it would, in circumstances, be unsafe to rely on same with the object of determining the area actually intended to be sold---Area in Kanals and Marlas, had unambiguously been mentioned in the sale-deed in question---Total area sold was 77 Kanals, 16 Marlas and that figure round mentioned at the head of said document/sale­deed---Ambiguity in the sale-deed in question had to be resolved by holding that appellant intended to convey 76 Kanals, 7 Marlas from relevant Khata rather than the fraction 1527/71576 which was the result of error---Courts below had also examined the record while resolving the ambiguity in the sale-deed in favour of respondent---No reason existed to interfere in the impugned decrees concurrently passed by the Courts below.

Muhammad Shahzad Shaukat for Appellants.

Ch. Riasat Ali assisted by Muhammad Sarwar Sabir for Respondent.

Date of hearing: 20th October, 2006.

2007 C L C 1635

[Election 'Tribunal Punjab]

Before Syed Zahid Hussain, J

Ch. MUHAMMAD SABOOR KISANA----Petitioner

Versus

MUHAMMAD AJMAL CHEEMA and 7others----Respondents

Election Petition No.85 of 2002, decided on 15th June, 2007.

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

----Ss. 57, 68 & 99(1)(cc)---Conduct of General Elections Order (Chief Executive's Order' No.7 of 2002), Art.8-A---University Grants Commission Act (XXIII of 1974), S.13---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Constitution of Pakistan (1973), Art.225---National/Provincial Assembly, election of---Educational qualification of candidate---Election petition challenging. Equivalence Certificate granted to a candidate by. University Grants Commission/Higher Education Commission regarding degree from foreign university---Jurisdiction of Election Tribunal---Scope---Candidate possessing bachelor's degree or equivalent thereto could be elected or chosen as Member of Assembly---Election Tribunal while trying and hearing election petition could deal with all disputes relating to and concerning election---Tribunal had power to satisfy itself whether candidate was qualified or not for being elected as Member of Assembly---Principles.

Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others PLD 2003 Lah. 213; Abdul Sattar Lalika v. Ch. Sajjad Ahmed and another 2003 MLD 459; Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan and 6 others PLD 1998 Lah. 461; Akhlaq Hussain and' others v. The Federation of Pakistan and others 1989 MLD 3548; Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182; Maulana Abdullah v. Returning Officer and others 2003 SCMR 195 and Syed Abdul Latif Shah v. Ali Muhammad Khan and others 2004, MLD 36 ref.

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

----Ss. 57, 68 & 99(1)(cc)---Conduct of General Elections Order (Chief Executive's Order No.7 of 2002), Art.8-A---University Grants Commission Act (XXIII of 1974), S.13---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Constitution of Pakistan (1973), Art.225---National/Provincial Assembly, election of---Educational qualification of candidate---Election petition raising issue of genuineness, legality or validity of a degree or Equivalence Certificate granted to a candidate by University Grants Commission/Higher Education Commission regarding degree from foreign University---Jurisdiction of Election Tribunal---Scope---Such issue could be raised before and tried by Election Tribunal---Principles.

Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others PLD 2003 Lah. 213; Abdul Sattar Lalika v. Ch. Sajjad Ahmad and another 2003 MLD 459; Maulana Abdullah v. Returning Officer and others 2003. SCMR 195; Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858; Naqeeb Ullah Khan v. Malik Imran Khan and 6 others PLD 2006 Pesh. 21 and Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994 rel.

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

----Ss. 57, 68 & 99(1)(cc)---Conduct of General Elections Order (Chief Executive's Order No.7 of 2002), Art.8-A---University Grants Commission Ordinance Act (XXIII of 1974), S.13---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Election petition raising issue of genuineness of a foreign degree and Equivalence Certificate regarding thereto issued by University Grants Commission/ Higher Education Commission on candidate's application on same date without reference to Equivalence Committee---Petitioner while abandoning such plea wanted to make submissions as to legal effect of such documents---Effect---No bar on a party to abandon a plea and bank upon an alternative ground or plea---Party could not be stopped or precluded from adopting such a course---Plea sought to be advanced could not be termed as inconsistent or self-destructive, thus, was permissible.

(d) Plea---

----No bar on a party to a lis to abandon a plea and bank upon an alternative ground or plea, which is not inconsistent or contradictory---Party cannot be stopped or precluded from adopting such course---Party can ask for a lesser relief than the one claimed in the case.

(e) University Grants Commission Act (XXIII of 1974)---

----S. 13---Higher Education Commission Ordinance (LIII of 2002), S.10(1)(o)---Equivalence Certificate granted by University Grants Commission/Higher Education Commission, regarding a foreign degree---Validity---Dispute as to such equivalence could be resolved by Equivalence Committee set up by Commission---Determination so made by such Committee would have statutory backing and binding force.

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

----O. VII, R.7---Relief---Party can ask for a lesser relief than the one claimed in the case.

Dr. M. Mohyud Din Qazi for Petitioner.

Dr. A. Basit and Rana Nasrullah Khan for Respondents.

2007 C L C 1647

[Lahore]

Before Jawwad S. Khawaja, J

WAZIR AHMAD----Petitioner

Versus

MUHAMMAD HUSSAIN KHAN and others----Respondents

Civil Revision No.905 of 2006, decided on 9th October, 2006.

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

----S. 26---Civil Procedure Code (V of 1908), S.20---Jurisdiction of civil court---Petitioner shad impugned appellate order whereby decree of the Trial Court had been set aside and the matter had been remanded to the Trial Court for decision afresh---Plea of petitioner was that dispute which had been raised by respondent had assailed consolidation proceedings which had attained finality through the hierarchy of Revenue Courts right upto Board of Revenue which went in favour of petitioner while dismissing a revision petition filed by respondent---Petitioner had argued that the very jurisdiction of the civil courts was barred by S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960---Trial Court, after regular trial, found that it had no jurisdiction in the matter---Respondent was not in a position to controvert submissions, of petitioner---Question as to whether or not civil court had jurisdiction in the matter, had to be decided by Appellate Court; but no such decision had been made, despite issue in that respect was framed---Impugned remand order was set aside---Appeal filed by respondent would stand restored and would be decided afresh and parties would appear before Appellate Court.

Shahid Mehmood Khan Khilji for Petitioners.

Mian Humayoon Aslam for Respondent No. 1.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for Respondent No.2.

Date of hearing: 9th October, 2006.

2007 C L C 1657

[Lahore]

Before Sardar Muhammad Aslam, J

ASIF NASRULLAH KHAN (MINOR) and 2 others----Petitioners

Versus

HAYAT KHATOON and 2 others----Respondents

Civil Revision No.1888 of 2005 and Writ Petition No.1404 of 2006, heard on 13th June, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Court Fees Act (VII of 1870), Ss.4, 6, 12 & 28---Civil Procedure Code (V of 1908), S.149---Declaration of title---Principal and attorney, relationship---Deficiency and recovery of court-fee---Principles---Plaintiff an illiterate and Pardahnashin lady, was owner of suit property and her attorney transferred the suit-land to his own minor son without any specific permission from her, which mutation was assailed by plaintiff---Trial Court decreed the suit in favour of plaintiff and directed her to affix court-fee within thirty days---Judgment and decree passed by Trial Court was maintained by Appellate. Court---Plea raised by defendant was that plaintiff did not affix court-fee within the period prescribed by Trial Court therefore, decree was liable to be set aside---Validity---General attorney transferred land in favour of his own minor son without adverting to the principal to seek her permission---Such sale was in utter violation of law and courts below had rightly struck down the same---No consequence was provided in the judgment and decree for failure of plaintiff to supply court-fee stamp within stipulated period of time---Matter in regard to recovery of court-fee was between litigant and the exchequer---No prejudice was caused to defendant more particularly when amount for supply of court-fee was deposited---Delay in supply of court-fee stamp was neither wilful nor contumacious and in absence of any condition and consequence did not frustrate decree in a case of such nature---Substantial justice had been done and landed property of illiterate woman was transferred by her attorney to his own minor son---Supply of court-fee stamp was made by illiterate Pardahnashin woman within a short span of time, when informed by her counsel---Court Fees Act, 1870 was not to be interpreted strictly to arm litigant with weapon of technicalities against opponent to frustrate recovery of revenue for benefit of State---Concurrent judgments and decrees of both the courts below did not call for any interference in absence of any misreading or non-reading---Revision was dismissed in circumstances.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983 ref.

Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289; Abdul Quddoos v. Mst. Shabana Parveen and another 1990 MLD 68; Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782; Muhammad Arif v. Additional. District and Sessions Judge, Kasur and 2 others 2001 CLC 192; Noor Khan v, Khan Muhammad 2002 CLC 402; Syed Fazar Hussain and others v. Shaban and others PLD 2004 Lah. 577 and Rahim Khan through Legal Heirs v. Habib Khan and another 2004 CLC 1044 distinguished.

Fida Muhammad v. Peer Muhammad Khan deceased through Legal Heirs PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 fol.

Malik Noor Muhammad Awan for Petitioners.

Saif-ul-Haq Ziay for Respondents.

Date of hearing: 13th June, 2007.

2007 C L C 1671

[Lahore]

Before Hasnat Ahmad Khan, J

Sh. ABDUL KARIM----Petitioner

Versus

ATTA MANSOOR and another----Respondents

Writ Petition No.7144 of 2007, decided on 20th July, 2007.

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

----S. 5, Sched, & S.17---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower and dowry articles---Application for rejection of plaint---Maintainability---Defendant during pendency of suit, instead of filing written statement, submitted application under O.VII, R.11, C.P.C. for rejection of plaint---Contentions of defendants was that plaint did not disclose any cause of action and prima facie did not hold ground---Validity---Plaint had clearly disclosed that cause of action, had arisen in favour of one of the defendants---For the right decision of application under O.VII, R.11, C.P.C., normally assertions/averments contained in the plaint, were to be seen and unless proved otherwise, were to be presumed to be correct---Even otherwise, provisions of C.P.C. were not applicable before Judge Family Court which functioned under West Pakistan Family Courts Act, 1964---Section 17 of West Pakistan Family Courts Act, 1964, had specifically barred application of provisions of C.P.C., except Ss.10 & 11 of C.P.C.---Judge Family Court would function as a Tribunal and the wisdom of legislators to oust provisions of C.P.C., was to provide speedy mechanism to decide matrimonial disputes---Application under O.VII, R.11, C.P.C. filed by defendants was not maintainable---In absence of any procedural irregularity in the impugned order, constitutional petition having no merits, was dismissed.

Prince Aziz-ur-Rashid Abbasi v. Begum Katherine Abbasi and 4 others 2005 MLD 1940; Ghulam Murtaza v. Additional District Judge (II), D.G. Khan and 2, others 1999, CLC 81; Mirza Allah Ditta alias Mirza Javed Akhtar v. Amna Bibi and 2 others 2005 CLC 1478; Khan Muhammad v. Khizar Hayat and others 2005 MLD 67 and Muhammad Naveed v. Deputy District Officer (Revenue) and 4 others 2005 PLC (C.S.) 129 ref.

Sh. Muhammad Babur Riaz for Petitioner.

2007 C L C 1679

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD MASHOOQ and another----Petitioners

Versus

REHMAT ALI alias ISHAQ and 14 others----Respondents

Civil Revision No.691 of 2006, decided on 22nd September, 2006.

Specific Relief Act (I of 1877)---

----Ss. 18 & 42---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Plaintiff in suit for declaration had claimed that he had not made any gift of suit-land in favour of his three sons and his said three sons had fraudulently obtained a gift mutation purporting to record a gift of 195 Kanals, 8 Marlas in their favour---Sons of plaintiff filed a conceding written statement---Suit was resisted by a party who asserted that they were bona fide purchaser of suit-land vide duly sanctioned mutation---Said party were in cultivating possession of suit-land since date of the mutation---Trial Court dismissed the suit for declaration, but Appellate Court reversed judgment of the Trial Court---Validity---Contention of the party that they had acquired vested title in respect of suit-land as bona fide purchasers for valuable consideration without notice of any defect in the title of three sons of plaintiff, was well-founded---Even if three sons of plaintiff had committed any fraud on his father/plaintiff, relief by way of declaration, which was discretionary, could not have been granted as plaintiff could have a remedy by way of damages against his sons, but the title acquired by the said party was protected under provisions of S.41 of Transfer of Property Act, 1882---Original owner/plaintiff who owned 195 Kanals and 8 Marlas had died during pendency of litigation---Even if there was any defect in the gift allegedly made by plaintiff in favour of his three sons, said sons had acquired undisputed title to 117 Kanals of land as legal heirs of deceased---Sale made by said three sons in favour of petitioners which was in respect of 64 Kanals, was well within the area of their entitlement as legal heirs of deceased---Appellate judgment and decree were set aside and that of the Trial Court, stood restored.

Malik Mushtaq Ahmad Nonari for Petitioners.

Ghulam Nabi Bhatti for Respondents Nos.1 to 3.

Sardar M. Arshad Dogar for Respondents Nos.14 and 15.

Remaining Respondents: Ex part.

Date of hearing: 22nd September, 2006.

2007 C L C 1687

[Lahore]

Before Syed Zahid Hussain and Sardar Muhammad Aslam, JJ

NELOFER SAMEERA JAMSHAID QURESHI----Appellant

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE, through Chairman and another----Respondents

Intra-Court Appeal No.623 in Writ Petition No.21029 of 1996, decided on 29th June, 2007.

(a) Calendar of Board of Intermediate and Secondary Education, Lahore---

----R. 5.9 & proviso---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Answer book, loss of---Candidate being dissatisfied with the result sought re-checking of her paper but she was informed that her answer book had been lost---Board gave two options to the candidate either to accept the marks already awarded to her or to re-appear in that paper---Plea raised by candidate .was that keeping in view the marks obtained by her in other papers, she be awarded average marks in the missing paper---Validity---Decision of Board, to offer a choice to candidates to either appear in missing papers or accept the marks awarded was arbitrary and whimsical---Board was custodian of record and in case of loss of answer book of a candidate, responsibility had rested on the Board---No attribution could be made to the candidate for loss occasioned by negligence of the Board---It was fundamental right of candidate to appear in examination, culminating into its correct evaluation and announcement of result---Utmost responsibility of Board was to keep answer books secure and safe, for re-checking---Loss of answer book by sheer negligence of Board should not work adversely to a candidate---Overall ability could be adjudged from the marks obtained in other papers, it was disadvantageous to the candidates and had negated policy of meritocracy and fairness---Board could not punish a candidate for the fault of its own employee---High Court set aside the judgment passed by Single Judge of High Court and directed the Board to issue revised certificate to candidate after grant of average, marks in the paper concerned---Appeal was allowed accordingly.

Rana Muhammad Ajmal v. Board of Intermediate and Secondary Education, Lahore and another 1984 CLC 378 and Rana Muhammad Ajmal v. Board of Intermediate and Secondary Education, Lahore and another 1984 CLC 3316 ref.

(b) Interpretation of statutes---

----Proviso---Scope---Proviso is subordinate to main clause and cannot travel beyond the scope of main enactment, nor it can be imported by implication in the main enactment.

Sharjeel Akram Sheikh for Appellant.

Sh. Shahid Waheed for Respondents.

Date of hearing; 12th June; 2007.

2007 C L C 1700

[Lahore]

Before Muhammad Muzammal Khan, J

Malik ABDUL WAHID, Ex-Senator, Senate of Pakistan through Muhammad Tariq Khan----Petitioner

Versus

GOVERNMENT OF PAKISTAN through General Manager, Pakistan Railways, Lahore and another----Respondents

Civil Revision No.2059 of 1998, heard on 22nd June, 2007.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Sale of Goods Act (III of 1930), S.57---Civil Procedure Code (V of 1908), S.115---Specific performance, refusal of---Breach of contract---Remedy---Compensation in terms of damages---Plaintiff was to remove ashes/refuse of workshop against amount settled between the parties---Plaintiff deposited the amount in advance but defendant did not let the plaintiff' remove complete material and rescinded the contract---Suit for declaration filed by plaintiff was decreed in his favour by Trial Court but Appellate Court allowed the appeal and dismissed the suit---Validity---Breach committed by defendant could have been relieved by compensation in form of money, specific performance was correctly declined by Appellate Court---Plaintiff should have filed suit for recovery of damages suffered by him on account of alleged unilateral unauthorized cancellation of contract by defendant in terms of S.57 of Sales of Goods Act, 1930---Plaintiff did not opt to sue for damages under S.57 of Sales of Goods Act, 1930 and had not detailed in the plaint the damages allegedly sustained by him---Appellate Court rightly ordered return of price of unlifted quantity of ashes/refuse of workshop---Controversy was correctly put to rest by Appellate Court without committing any error of law/facts or illegality/irregularity in terms of S.115 C.P.C.---High Court declined to interfere with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Imtiaz Ahmad Chaudhary and .Muhammad Gul Zaman for Petitioner.

Ch. Shahid Saeed and Umer Sharif for Respondents Nos.1 and 2.

Date of hearing: 22nd June, 2007.

2007 C L C 1704

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Ch. ZAHID HLISSAIN KAMBOH, Member (General) Union Council No.102 Shah Kamal, Lahore and another----Petitioners

Versus

TOWN COUNCIL SAMANABAD through Town Nazim Samanabad, Lahore and 4others----Respondents

Writ Petition No.3381 of 2007,'decided on 20th June, 2007.

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

----Ss. 89, 89-A & 92---Provisions of Ss.89, 89-A & 92 of Punjab Local Government Ordinance, 2001---Distinction---Section 89 of Punjab Local Government Ordinance, 2001 relates to conduct of business of Union Council performable through decisions taken by a resolution passed by simple majority of its total membership---Section 92 of the Ordinance relates to "Motion" of recall of election of Naib Nazim, which is not routine function of Union Council---Object of S.92 of the Ordinance is to empower members to remove Naib Nazim on his losing confidence of majority---Section 89-A of the Ordinance deals with resolution finally passed by Union, Council, which, if found to be against the interest of people of public policy, can be set aside on a motion initiated only by Tehsil Municipal Administration and passed by simple majority of its total membership---Motion of recall under S.92 involves two stages; first stage is that when motion is moved, notices are issued to members, Union Session is summoned and then members deliberate upon motion; and second stage is that when members on being satisfied refer matter to Chief Election Commissioner to appoint Returning Officer---Desire of members at such second stage is obtained through secret ballots on motion,' which, if approved by 2/3 majority of votes of its total membership, then Naib Nazim would cease to hold office forthwith and Chief Election Commissioner would issue notification regarding result of approval of motion---Section 89-A has no nexus with S.92 of the Ordinance---Principles.

Advanced Law Lexicon Vol. IV p.4107 by Justice Chandrachud; Oxford Advance Learners Dictionary, p.995 and Advance Law Lexicon Vol.I, p.133 ref.

(b) Words and phrases---

--"Resolution"---Meaning.

Advanced Law Lexicon Vol. IV p.4107 by Justice Chandrachud ref.

(c) Words and phrases---

----"Motion"---Meaning.

Oxford Advance Learners Dictionary, p.995 ref.

(d) Words and phrases---

----"Administrative business"---Meaning.

Advance Law Lexicon Vol.I, p.133 by Justice Chandrachud ref.

(e) Words and phrases---

----"Business"---Meaning.

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

----Ss. 89-A & 92---Constitution of Pakistan (1973), Art.199---Constitutional petition---Motion for recall of Naib Nazim---Reference of motion to Chief Election Commission after deliberation and approval of majority members in Session of Union Council---Nomination of Returning Officer by Commissioner to conduct proceedings of motion through secret ballot---Fixation of date by Returning Officer for voting on motion---Notification of Town Municipal Administration issued on application of Naib Nazim setting aside deliberations of Union Council to consider recall motion---Validity---Proceedings under S.89-A of Punjab Local Government Ordinance, 2001 could be commenced on a motion initiated only by Tehsil Municipal Administration and none else---Recall motion was only deliberated upon by members and had never reached to second/final stage contemplated under S.92(4) of the Ordinance, which might be equated with a resolution envisaged under S.89-A thereof---Town Municipal Administration had no authority under S.89-A of the Ordinance, to set aside or upset proceedings taken under S.92 thereof---Impugned notification was unlawful for being against provisions of S.89-A of Punjab Local Government Ordinance, 2001---High Court set aside impugned notification after declaring same to be without lawful authority and of no legal effect.

Zafar Iqbal Chohan for Petitioners.

Hamid Mahmood Malik for Respondents Nos.1 and 2.

Naseer Ahmad Bhutta for Respondent No.3.

2007 C L C 1712

[Lahore]

Before Iqbal Hameedur Rahman, J

MUHAMMAD RIZWAN YOUSUF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and another----Respondents

Writ Petition No.1470 of 2005, decided on 18th June, 2007.

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

----S.5, Sched. & S.10(4)---Suit for dissolution of marriage on ground of Khula---Dower mentioned in Nikahnama was Rs.500, but in its Column 13, plot of land given to plaintiff as dower on the day of Nikah through registered sale-deed by defendant's father was not mentioned---Defendant claimed return of plot from plaintiff---Family Court decreed suit with condition that plaintiff would return plot to defendant---Appellate Court upheld decree, but set aside such condition as plot for not finding mention in Column 13 of Nikahnama, could not be considered as dower---Validity---Plaintiff in her memo of appeal had admitted that plot was given to her as dower in place of defendant by his father---Family Court had rightly decreed suit with such condition---High Court accepted appeal, set aside impugned judgment and restored judgment of Family Court.

Karim Ullah v. Shabana and 2 others PLD 2003 Pesh. 146 and Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another 2006 SCMR 100 ref.

Muhammad Suleman Bhatti of Petitioner.

Javed Majeed Ansari for Respondents.

2007 C L C 1715

[Lahore]

Before Hasnat Ahmad Khan, J

Rao MUHAMMAD SAEED----Petitioner

Versus

ELECTION TRIBUNAL DUNIYAPUR CAMP AT VEHARI and 5 others----Respondents

Writ Petition No.2613 of 2007, decided on 23rd May, 2007.

(a) Punjab Local Government Elections Rules, 2005---

----Rr. 67(3) & 72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-verification of election petition and its annexures---Order of Election Tribunal overruling such objection at preliminary stage not challenged further---Constitutional petition against final decision of Tribunal raising such objection---Validity---Such order had been passed more than a year ago---High Court refused to allow petitioner to challenge said order.

(b) Punjab Local Government Elections Rules, 2005---

----Rr. 67(3) & 72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-verification of election petition and its annexures---Effect---Use of word "may" in R.72 of Punjab Local Government Elections Rules, 2005 made such provision to be discretionary and not mandatory---Election Tribunal not duty bound to dismiss election petition on such technical ground.

Abdul Nasir and another v. Election Tribunal Toba Tek Singh and others 2004 SCMR 602; Muhammad Zafarullah Khan and another v. Ehsan Ullah Khan and 2 others 2006 CLC 718 and Zulfiqar Hussain and another v. Mirza Haq Nawaz and 7 others 2004 CLC 1331 fol.

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

----S. 54---Agreement to sell land---Effect---Vendor would be deemed to be owner of land, unless same was finally transferred and disposed of by him.

Rao Jamshaid Ali Khan for Petitioner.

2007 C L C 1720

[Lahore]

Before Muhammad Jehangir Arshad, J

NADIR MANZOOR DUGGAL ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI and 4others----Respondents

Writ Petition No.1836 of 2007, heard on 5th June, 2007.

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

----S. 24(2)---Limitation Act (IX of 1908), S.4---General Clauses Act (X of 1897), S.10--Deposit of 1/3rd sale price of property---Suit filed on 29-7-2006---Order of Court directing pre-emptor to deposit such money till 20-9-2006---Deposit of such money by pre-emptor on 28-8-2006 instead of 27-8-2006 being Sunday---Validity---Court could take judicial notice of the tact as to whether 27-8-2006 was Sunday or not---Vendee did not dispute such fact---When certain thing was to be done or act was to be performed on a day which was public holiday; then such thing could be done or such act could be performed on the next day to public holiday---Court had fixed date as 20-9-2006 for such deposit---Had pre-emptor deposited such amount on 20-9-2006, then same would have been sufficient compliance of court's order as an act of court would not prejudice any party---Deposit of such amount on 28-8-2006 was a lawful compliance of S.24 of Punjab Pre-emption Act, 1991---Suit could not be dismissed on the ground of non-deposit of such amount on 27-8-2006.

Nur Muhammad v. Sachul PLD 1957 Kar. 843 and Maqsood Ahmad and others v. Member, Board of Revenue, Punjab, Lahore and others 2007 SCMR 399 rel.

Raja v. Tanvir Riaz and others 2006 CLC 1455 distinguished.

(b) Interpretation of statutes---

----Headnote of a specific provision of law would not cover its provision.

(c) Precedent---

----Headnote of judgment published in law report could not change basic spirit of such judgment passed on its own legal and factual plane.

Rana A.D. Kamran for Petitioner.

Ch. Abdul Ghafoor for Respondents Nos.3 to 5.

Date of hearing: 5th June, 2007.

2007 C L C 1724

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM FAIZ and 8 others----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), MANDI BAHAUDDIN and 6 others----Respondents

Writ Petitions Nos.4474 and 5480 of 2007, decided on 29th June, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 4, 9, 17 & 18---Punjab Land Acquisition Rules, 1983, Rr.3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Notification for---Notification issued by Authority for acquisition of land in question owned by petitioners for public purpose, was challenged by petitioners alleging that acquisition in question did not involve any public purpose; that funds for payment of compensation to land owners or for intended construction of hospital, were not available and that malice .was apparent from the fact that Authority undertook acquisition proceedings at the back of the owners---Petitioners had raised numerous multiple objections to the proceedings allegedly taken for acquisition of their private property and also attacked the award delivered by Land Acquisition Collector---Objections of petitioners had no force---Land in question was needed by authorities to construct/establish District Headquarter Hospital, which was need of every body and for that purpose, emergent powers should have been instantly invoked---City in question was declared District in July 1993 and same was being run for the last 14 years without any independent District Headquarter Hospital---No room existed to assume that acquisition in question was in any manner tainted with any ulterior motive or malice---Acquisition of land for construction of hospital was need of area and had been made in the best interest of the public---Land Acquisition Collector had already announced the Award and if petitioners were not satisfied with the compensation fixed therein, they could have resorted to filing of Reference under S.18 of Land Acquisition Act, 1894 and in presence of said adequate remedy, award could not be challenged before the High Court under its constitutional jurisdiction---No case for interference of the High Court having been made out, constitutional petitions being devoid of any merit, were dismissed.

Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178 ref.

Syed Zafar Ali for Petitioners.

Ch. Muhammad Sadiq, Addl. A.-G. Punjab with Khalil Mehmood Sheikh, E.D.O. (Revenue) Mandi Baha-ud-Din and Muhammad Aitzaz, D.D.O. (Revenue) Mandi Baha-ud-Din for Respondents.

2007 C L C 1729

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD RAFIQ and others----Appellants

Versus

UMAR DIN and others----Respondents

Regular Second Appeal No.145 of 1988, decided on 7th May, 2007.

Punjab Pre-emption Act (I of 1913)---

----S. 28---Decree obtained by pre-emptor in violation of S.28 of Punjab

Pre-emption Act, 1913 during pendency of rival pre-emptor's suit---Validity---Suit of pre-emptor for non-impleading therein rival pre-emptor would not be thrown out as being collusive or non-maintainable---Such decree would neither be a valid decree nor be binding on rival pre­emptor---Court, on coming to know of such decree, besides impleadmg pre-emptor as party in rival pre-emptor's suit, must requisition file of pre-emptor's suit and initiate therein proceedings in terms of S.28 of Punjab Pre-emption Act, 1913 and then decide legality or otherwise of such decree---Rival pre-emptor in presence of such decree would still have to prove his superior right in his suit as against pre-emptor and vendee---Principles.

Keshri Kmnar Singh v. Ran Swaroop Singh and others AIR 1942 Oudh 19 ref.

Zahoor Alam and others v. Fazal Hussain and others 1991 SCMR 763; Mahmood Khan v. Khan Muhammad and 5 others PLD 1973 Lah. 806 and Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W.P.) BJ 1 rel.

Iqbal Abid Chaudhry for Appellants.

Javed Akhtar Vains for Respondent No.1.

Ch. Abdul Ghani for Respondents Nos.2 and 3.

Dates of hearing: 16th and 23rd April, 2007.

2007 C L C 1737

[Lahore]

Before Syed Hamid Ali Shah, J

ANJUM ZAHOOR SALEEMI and another----Petitioners

Versus

ELECTION TRIBUNAL FOR FAISALABAD DISTRICT AT GOJRA and 3 others----Respondents

Writ Petition No.370 of 2007, decided on 29th June, 2007.

Punjab Local Government Elections Rules, 2005---

----Rr. 32(2) & 35(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Recounting of votes could not be claimed by an unsuccessful candidate as a matter of right nor such request was required under law to be allowed with an object to fish out the error in recounting---Recounting of ballot, could be ordered when a case in that respect was made out---Returning Officer or the Election Tribunal, when felt satisfied that the controversy through evidence on the available record could not be decided, a recourse to recounting was made---Wide difference between two counts, in rejection of valid votes and count of invalid votes, justified the Election Tribunal to order recounting---Election Tribunal decided to re-count, after thorough appraising the evidence of the parties and illegalities committed in course of recounting of votes---Such conclusion which was neither perverse nor illegal and. was rather according to the settled law, did not call for interference by the High Court in exercise of its constitutional jurisdiction.

Ch. Fateh Jang v. Punjab Election Commission and others 1996 CLC 1574; Ghulam Hussain and another v. Attiq-ur-Rehman Awan and 5 others PLJ 2007 Lah. 340; Pervaiz Bashir Warriach and another v. Election Tribunal/District and Sessions Judge, Mandi Baha-ud-Din and 4 others 2006 CLC 1407; Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West-I and 12 others 1996 SCMR 605; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 and Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178 rel.

Azam Nazeer Tarar for Petitioners.

Ch. Fawad Hussain and Muhammad Asif Ismail for Respondents Nos.2 and 3.

2007 C L C 1794

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

NATIONAL HIGHWAY AUTHORITY through Chairman----Petitioner

Versus

NASRULLAH KHAN CHATTAH, SECRETARY, BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB, LAHORE and 3others----Respondents

Writ Petitions Nos.989, 65, 1134, 1214, 1622, 2419, 3415 of 2005, 1929 of 2003 and 7000 of 2006, decided on 9th July, 2007.

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

----Ss. 4 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit land forming part of Grand Trunk Road was alienated by Communication and Works Department in favour of petitioner/National Highways Authority unconditionally and free of cost---After conferment of right of way to the Highway Authority mutations in respect of suit land were reviewed by Secretary Board of Revenue and mutations earlier attested in favour of Highway Authority were cancelled without notice to the petitioner---Lease of part of suit land by Highway Authority was also assailed---Validity---Legal title of land in dispute vested with the Secretary (Colonies), Government of Punjab, by virtue of S.4 of the Colonization of Government Lands (Punjab) Act, 1912---Such land could be granted to any person by the Board of Revenue, subject to approval of the Government, within the contemplation of S.10 of the Colonization of Government Lands (Punjab) Act, 1912---Rules of Business and West Pakistan Highways Ordinance,. 1959 provided that administration of Highway Authority vested with Communication and Works Department and Secretary C&W had administrative control of such land but its legal title vested in Colony Department of Provincial Government---Review of mutation had to be conducted in an open assembly after notice to the parties and after hearing them but such exercise had not been undertaken in the present case---Cancellation of mutations was primarily the function assigned to the Revenue Officer .but such exercise had been undertaken by Secretary Board of Revenue depriving the affected party of right of appeal and revisions in the hierarchy of Board of Revenue---Constitutional petitions were allowed, .orders cancelling mutations being violative of principles of natural justice were set aside and case was remanded to be decided after hearing the parties.

Fuel Auto Supply Company and 5 others v. Federation of Pakistan 2005 MLD 1844; Rimpa Limited and others v. Karachi Metropolitan Corporation 2004 CLC 1797; Sahmas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477; Zahida Sattar v. Federation of Pakistan PLD 2002 SC 48; Collector of Customs, Custom House, Lahore and 3 others v. Messrs S.M. Ahmad and Company (Pvt.) Limited, Islamabad 1999 SCMR 138; Pakistan International Airlines Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128; Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Abdul Haque Indhar and others v. Province of Sindh through. Secretary Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907; Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan Islamabad v. The General Public PLD 1988 SC 645; Miss Rukhsana Soomro v. Board of Intermediate and Secondary Education, Larkana, Sindh and others 2000 MLD 145; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others 2004 CLC 1104; Muhammad Saleem-II, Stenographer, Establishment Division, Islamabad v. Federation of Pakistan through Secretary .Establishment Division, Islamabad. and others 1998 SCMR 747; Messrs Mehraj Floor Mills and others v. Provincial Government and others 2001 SCMR 1806; Muhammad Suleman v. Additional Deputy Commissioner (General). Lahore Cantt. PLD 2000 Lah. 262; Khadim Hussain v. Deputy Commissioner Hafizabad and others 2000 MLD 577 and Gulzar Ahmad Khan and 2 others, v. Deputy Commissioner, Hafizabad and others 2000 CLC. 1746 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Questions of fact which require recording of evidence and examination of record are not to be interfered by High Court while exercising its .constitutional jurisdiction.

Raja Muhammad Akram, Jahanzeb Khan Bharwana and Syyed Nayyer Abbas Rizvi assisted by Asim Khan, Director (Legal) and Rana M. Tariq, Asstt. Director (Legal) N.H.A. for Petitioner.

Ch. Rizwan Mushtaq, A.A.-G. for Respondents.

Zafar Iqbal Kalanuri for Respondent No.3.

Date of hearing; 15th February, 2007.

2007 C L C 1801

[Lahore]

Before Sh. Hakim Ali and Sardar Muhammad Aslam, JJ

RASHEED AHMAD and 2 others----Appellants

Versus

ADDITIONAL COMMISSIONER (REV.) NOTIFIED OFFICER GUJRANWALA DIVISION, GUJRANWALA and others----Respondents

Intra-Court Appeal No.77 of 2005, decided on 28th June, 2007.

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

----S. 41---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11---Allotment of land---Cancellation---Right of vendee---Respondents/vendees purchased allotted land through a registered sale deed---Allotment to the extent of 1124 units was cancelled by Settlement Authorities on ground that same was allotted in excess of entitlement---Sale in favour of respondents by their vendor who secured suit land through fraudulent and bogus claim would not confer better title to respondents---Respondents would sink or survive with their vendor and would not be protected under S.41 of Transfer of Property Act.

Hakim Ali and 2 others v. Ghulam Muhammad and 2 others 1995 SCMR 459; Inayat Ullah v. Additional Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner Gujranwala and 21 others 1991 MLD 2549; Muhammad Shafiq Khan and others v. Settlement Commissioner (Land) and others 1992 CLC 372; Abdul Sattar through Legal Heirs and others v. Muhammad Shafiq Khan and others 1994 SCMR 2021 and Talib Hussain and others v. Member, Board of revenue and others 2003 SCMR 549 ref.

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

----S. 2(2)---Pending case---Unutilized produce index units---Claimants, who had not succeeded in getting evacuee agricultural land confirmed/satisfied in their favour in terms of Ss.10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 when the evacuee laws/regulations were repealed, their cases could not be deemed to be pending for the reason that Produce Index Units possessed by them had not been adjusted---With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government which may seek its disposal in accordance with provision of S.3 of the Act.

Muhammad Ramzan and others v. Member (Revenue)/C.S.S. and others 1997 SCMR 1635; Member, Board of Revenue Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others 1993 SCMR 732 and Ali Muhammad through Legal representatives and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 ref.

S.M. Tayyab for Appellant.

Ch. Naeem Masood, A. A.-G. for Respondent No.1.

Ch. Muhammad Akbar for Respondent No.2.

Date of hearing: 30th May, 2007:

2007 C L C 1806

[Lahore]

Before Fazal-e-Miran Chauhan, J

Hafiz IJAZ-UL-HAQ and 5 others----Petitioners

Versus

VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and 6others----Respondents

Writ Petition No.4976 of 2007, decided on 27th June, 2007.

Educational Institution

----Admission to educational institution---Undertaking given by the student and his parents/guardian that the student shall not "indulge in politics" failing which, he shall not be allowed admission and if, after admission, he violates the same, he shall be expelled without further notice---Violation of such undertaking by the student---In the present case, students upon violation of said undertaking, were expelled from University without any show-cause notice---Petitioners were given an opportunity of personal hearing on their written request to Vice-Chancellor of the University which was pending adjudication---Constitutional petition filed by petitioners being not maintainable was dismissed---High Court observed that petitioners would appear before the Disciplinary Committee, which could decide their representations in accordance with law and if aggrieved by the decision of Disciplinary Committee, petitioners might approach the Supreme Court.

M. Ismail Qureshi and others v. M. Awais Qasim, Secretary, General, Islami Jamiat Tulba, Pak and 3 others 1993 SCMR 1781; Shah Alam Khan v. Agricultural University, Peshawar PLD 1993 SC 297 and Nadim Khan v. The Board of Intermediate and Secondary .Education, Peshawar PLD 1993 SC 397 ref.

Sajid Mehmood for Petitioners.

Raja Muhammad Arif for Respondents.

2007 C L C 1814

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

ZAHID RAHMAN----Appellant

Versus

MUHAMMAD ALI ASGHAR RANA----Respondent

Regular First Appeal No.43 of 2005, heard on 29th March, 2007.

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

----S. 12---Decree for specific performance of agreement to sell---Power of court---Such decree cannot be granted only because it was lawful to do so.

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

----S. 12---Contract Act (IX of 1872), Ss.48 & 55---Qanun-e-Shahadat (10 of 1984), Arts.102 & 103---Specific performance of agreement to sell---Exclusion of oral by documentary evidence---Time as of the essence of contract---Deposit of balance consideration amount in court---Effect---Plaintiff in his suit sought specific performance of agreement to sell on the ground that defendant was not ready to perform his part of contract as despite repeated calls, he did not deposit development charges within due date, resultantly suit plot was not available for transfer on the due date---Trial Court decreed the suit in favour of plaintiff---Plea raised by defendant was that plaintiff failed to pay balance consideration amount according to the terms of agreement as time was of .the essence of the contract and he failed to prove his readiness and willingness to perform his part of contract---Validity---Evidence available on record showed that defendant was ready for transfer of plot but plaintiff had shown lack of interest---Plaintiffs tender of balance consideration, on court's direction, did not prove that vendee was willing to perform his contractual obligations throughout, as silence of plaintiff for three months spoke otherwise---Plaintiff failed to prepare stamped conveyance and tender the same to seller (defendant) for execution and registration---Buyer (plaintiff) was duty bound to prepare conveyance and tender the same to seller (defendant) for execution and registration---No efforts were made to verify from record of Housing Society about payment of development charges---Statement of defendant regarding deposit of partial development charges remained unrebutted---Plaintiff (vendee) failed to prove that he was ready and willing to perform his contractual obligation as vendee, at the time of performance of the agreement---Such fact alone disentitled the plaintiff to claim specific performance of agreement---Judgment and decree passed by Trial Court was set aside and suit filed by plaintiff was dismissed---Appeal was allowed in circumstances.

Muzaffar Javed v. Haji Noor Bakhsh and others 2002 MLD 1474; Muhammad Abbas v. Murad Bibi 2002 YLR 3018; Mst. Nawab Bibi and another v. Major (Retd.) Irshad Muhammad Khan Lodhi 1987 SCMR 39$; Mst. Amina Bibi v. Muddasar Aziz PLD 2003 SC 430; Umar Farooq v. Province of Sindh 1989 CLC 760; Abdul Aziz and others v. Abdur Rehman and others 1994 SCMR 111; Razia Sultana. Bano v. Muhammad Sharif 1993 SCMR 804; .Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCMR 584; Sher Muhammad deceased through legal heirs and others v. Ghulam Muhammad and 3 others 2004 CLC 1212; Mst. Ghulam Jannat (deceased) through her legal representatives and another v. Allah Ditta 2003 YLR 981; Kaniz Fatima and another v. Sh. Muhammad Sohail and 7 others 2003 CLC 923; Muhammad Rafique and others v. Mst. Bashiran Bibi and others 1998 CLC 265 and Muhammad Boota v. Murad Ali 1992 CLC 932 ref.

(c) Interpretation of document---

----Eventualities, which are not covered by agreement, should be read into it by examining the conduct of parties.

Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; Dr. Amir Ali Malik v. Messrs Transpak Corporation Ltd. 2002 CLC 129; Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718 and Sandoz Ltd. and another v. Federation of Pakistan and others 1995 SCMR 1431 ref.

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

----S. 55---Time as essence of contract---Determining factors---Court while determining the factum as to whether the time was of essence of contract, has to examine the contract, its terms, penalty and conduct or acquiescence of the parties---Factum of inflation and increase in price of property are the factors which court is required to take notice of.

Mst. Shaheen Kousar v. Shakeel Ahmad 2005 YLR 1347 rel.

Mehmood A. Sheikh and Miss Sidra Fatima. Sheikh for Appellant.

Shazib Saeed for Respondent.

Date of hearing: 29th March, 2007.

2007 C L C 1825

[Lahore]

Before Syed Asghar Haider, J

Mst. AAMNA BIBI and 2 others----Petitioners

Versus

ALI SHER and 2 others----Respondents

Civil Revision No.2317 of 2006, heard on 9th July, 2007.

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

----S. 42---Civil Procedure Code (V of 1908), S.9---Suit for declaration---Matter of inheritance of refugee right holder being subject-matter of suit---Parties litigated for 20 years, and matter was adjudicated and decided by Trial Court, Appellate Court and High Court twice by remanding case for its decision on merits---Objection as to jurisdiction of civil court raised by defendant before High Court in revision that proper forum for redressal of such dispute was Settlement Authorities, but not the civil court---Validity---Defendant had not raised such objection in all such tiers, but had fully participated in proceedings and contested them---Such objection was overruled having been raised at a late stage.

Muhammad Saleem and others v. Sardar Ali and others 2004 SCMR 1640; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and Mst. Salma Bibi v. Ali Sher and others 1994 CLC 2189 ref.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Attestation of two inheritance mutations---Plaintiff in suit challenged one mutation, but did not challenge other mutation---Matter remained pending in different courts for about 20 years, but plaintiff did not amend plaint to include therein other mutation---Courts below decreed suit after finding plaintiff to be entitled to inheritance in suit mutation---Plaintiff in revision before High Court claimed benefit of estate of deceased subject-matter of other mutation---Validity---Plaintiff in revision proceedings could not call in question other mutation---Impugned judgment was in complete consonance and harmony with pleadings of parties and evidence tendered---High Court dismissed revision petition in circumstances.

Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Muhammad Boota and 48 others v. Allah Ditta and 14 others 1998 SCMR 2764; Siraj Din through L.Rs. and 2 others v. Akbar Ali and others 2005 SCMR 921 and. Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Jari Ullah Khan for Petitioners.

S.M. Masud for Respondents.

Date of hearing: 9th July, 2007.

2007 C L C 1840

[Lahore]

Before Syed Asghar Haider, J

Mst. NOORAN BIBI---Petitioner

Versus

RAJAB ALI and 3 others---Respondents

Civil Revision No.2455 of 2006, heard on 2nd July, 2007.

(a) Islamic Law---

----Inheritance---Fiqa Jaffria---Childless widow would not be entitled to inheritance in agricultural land left by her deceased husband, except 1/4th share in the benefit accruing therefrom.

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

----S. 115---Revision---Varied judgments of court below---Effect---Reappraisal of entire evidence tendered by parties would be essential in such case.

Mst. Latifan Bibi and others v. Muhammad Bashir and others 2006 CLC 1076; Mst. Rashidan Bibi (deceased) through Legal Heirs v. Mst. Jantay Bibi and others 2005 CLC 1733; Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270; Government of N-W.F.P. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833; Sarwar Khan v. Mir Ali and 10 others 1980 CLC 110; Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820; Province of Punjab through Collector, District Gujrat and 2 others v. Muhammad Bashir and another 1997 MLD 806; Messrs Jugotekstil Impex 61001, Lubuana Yugoslavia v.. Messrs Shams Textile Mills Ltd. 1990 MLD 857; Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Haji Muhammad v. Jehan Khan and 3 others 1995 SCMR 197; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Mst. Sharifan Bibi through Special Attorney and another v. Allah Rakha and others 2006 CLC 1750; Naheed Ahmad v. Asif Riaz and 3 others PLD 1996 Lah. 702; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Atiq-ur-Rehman through (real father) and another v. Muhammad Amin PLD 2006 SC 309; Fateh Sher and others v. Muhammad Hayat and others PLD 2005 Lah. 578; Muhammad Boota and 48 others v. Allah Ditta and 14 others 1998 SCMR 2764; Mst. Hajran through Mst. Umatul Hafeez v. Abdul Aziz and another 1996 SCMR 138 and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 ref.

(c) Islamic Law---

----Zakat, payability of---Fiqa Jaffria, followers of---Such followers stand exempted from provisions of Zakat and Usher Ordinance, 1980 thus, they cannot hold office of Chairman thereunder.

(d) Islamic Law---

----Shia sect, proof of---Mentioning of a person as Information Secretary of Anjuman-e-Imamia would conclusively establish that he was Shia.

(e) Islamic Law---

----Inheritance---Shia sect of deceased, proof of---Contest between widow, brothers and sisters of deceased---Deceased married a Sunni wife (now widow)---Deceased's sisters and one of his brother married into Sunni families---Initial inheritance mutation of deceased was got recorded by one of his brothers in accordance with Sunni Fiqah---Held preponderance of evidence established that deceased was a Sunni.

Zafar Iqbal Klason for Petitioner.

Rao Munawar Khan for Respondents.

Date of hearing: 2nd July, 2007.

2007 C L C 1858

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ADMINISTRATOR, MUNICIPAL COMMITTEE, SAHIWAL----Petitioner

Versus

MEMBER COLONIES, BOARD OF REVENUE, PUNJAB, LAHORE and 2 others----Respondents

Writ Petitions Nos.6547, 6399 and 6670 of 2000, heard on 5th July, 2004.

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

----Ss. 19(2) & 30(2)---West Pakistan Board of Revenue Act (XI of 1957), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---State land located in the heart of city and possessed by Municipal Committee since long---Sale of such land to respondent by using political influence without applying therefor to District Collector and publication of advertisement after relaxation of ban imposed on sale of State land through private treaty---Cancellation of such sale by Board of Revenue after hearing all parties---Governor referred to Member, Board of Revenue respondent's application made after one year and seven months of passing of cancellation order---Board of Revenue treated such application as review petition and restored such sale without issuing notice to Government or Municipal Committee or petitioner---Validity---Impugned order was hit by principle of audi alteram partem---No reason was disclosed for- condonation of delay. nor was such application supported by affidavit of respondent---Review petition being barred by time was not maintainable, thus, impugned order was not sustainable in eye of law---High Court set aside impugned order while observing that if such land was intended to be sold, then same shall be sold through open auction after due advertisement and allowing petitioner and respondent to participate in such auction---Principles.

PLD 1976 Kar. 1219; PLD 1977 Lah. 307; PLD 1997 Lah. 676; PLD 1974 Kar. 375; 1994 MLD 603 and 1993 SCMR 1960 ref.

Ch. Muhammad Rafique, Syed Muhammad Ali Gilani and Muhammad Iqbal Abid Chaudhry for Petitioners.

Mian Muhammad Siddiq Katnyana and Ch. Muhammad Hafeez Ahmad for Private Respondent.

Date of hearing: 5th July, 2004.

2007 C L C 1865

[Lahore]

Before Syed Asghar Haider and Maulvi Anwarul Haq, JJ

Mst. SAKINA BEGUM and 21 others----Appellants

Versus

KHALID MUSTAFA and 11 others----Respondents

Intro-Court Appeal No.42 of 2006, heard on 5th September, 2007.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Civil Procedure Code (V of 1908), S.12 (2) read with O.IX, R.13---Ex parte judgment passed in constitutional petition---Miscellaneous application purportedly filed under S.12(2) C.P.C. read with O.XLI, R.21. C.P.C. for setting aside ex parte judgment was dismissed for the reason that since intro-court appeal was filed against judgment and same having been dismissed, application under S.12(2) C.P.C. could be competently filed only before said appellate forum---Intra-court appeal---Competency---Record showed that infra-court appeal. was dismissed on a short ground that appellants had no locus standi to file the same whereas merits of impugned judgment were not referred to at all---Doctrine of merger, in circumstances, would not be applicable and an application under S.12(2), C.P.C. was competent before the original Court---Civil miscellaneous, to all intents and. purposes, being an application for setting aside an ex parte judgment prayer for a rehearing on the grounds stated therein within the meaning of O.IX, R.13, C. P. C. was applicable to constitutional proceedings and said application was accordingly to be treated as such---Contention that order having been passed in a miscellaneous application, could not be said to have been passed in exercise of original jurisdiction and as such intra-­court appeal was not competent, vas 'repelled as the impugned order had been passed by the Single Judge in exercise of the .jurisdiction vesting under Art.199 of the Constitution---Such was also not an interim order. as the said application for grant of said substantive prayer stood decided finally---hits-court appeal was therefore competent.

Maqsood Ahmed Siddiqui v. Nisar Ahmed and others 2003 SCMR 1522 and Amin-ud-Din Khan v. Water and Power Development Authority and others 2004 CLC 382 distinguished.

Muhammad Asif Bhltti for Appellants.

A.R. Shaukat for Respondents.

Date of hearing: 5th September, 2007.

2007 C L C 1868

[Lahore]

Before Muhammad Sair Ali, J

Mian MUHAMMAD IKRAM ULLAH SHAFAQ----Appellant

Versus

Mst. BUSHRA KHANAM and another----Respondents

Regular Second Appeal No.141 of 2004, heard on 23rd May, 2007.

Specific Relief Act (1 of 1877)---

----S. 12---Specific performance of agreement to sell---Plaintiff pleading an oral agreement alleged that sale price was increased by defendant when orally agreed terms were incorporated into a written agreement---Defendant denied the oral agreement and persisted on a written agreement---Defendant asserted that plaintiff had refused to accept or sign the document instead kept the same with him for a period of three years without challenge---Defendant claimed that earnest money was returned to plaintiff through his. brother by a cheque written in name of plaintiff---Plaintiff relied upon the receipt of earnest money which was neither proved by its alleged marginal witnesses nor it contained full particulars and terms and conditions of sale agreement executed between the parties---Plaintiff's failure to produce his brother, a best witness on the subject, raised an adverse inference against plaintiff---Courts below finding the oral agreement not proved dismissed the suit---Objection to non-framing of issue about return of earnest money was raised for the first time in second appeal without explaining plaintiff's failure to raise such issue before trial Court or in first appeal---Matter of the refund of earnest money was not the main disputed question to require a separate issue for adjudication of the suit---Plaintiff, who had refused to own, execute/sign the agreement and to acknowledge sale price stipulated therein, had no right to the alternate plea that if oral agreement was not proved Courts below should have decreed the suit on basis of written agreement.

Arshad Nazir Mirza for Appellant.

Aamar Raza A. Khan for Respondents.

Date of hearing: 23rd May, 2007.

JUDGMNET

MUHAMMAD SAIR ALI, J.--- Pleading an oral agreement for sale of the property (1 Kanal, 0 Marla, 9 Sarsahi) i.e. 1126/B Peoples Colony No.2 Faisalabad, at a sale consideration of Rs.10,00,000 and payment of Rs.100,000 as earnest money, the appellant claimed decree for specific performance against the respondents through his suit dated 28-7-1992. It was also pleaded that offer and acceptance of the agreement completed on 28-9-1989 i.e. two years and 11 months before the suit (28-7-1992) and Rs.1,00,000 were paid as the earnest money through receipt dated 13-8-1989 (Exh.P.1). And that the parties also agreed to incorporate the above orally agreed terms into a written agreement on the requisite stamp paper. And that the stamp paper was purchased on 28-9-1989 by respondent No.1 who wrote and signed the written terms thereupon as Iqrarnama for the sale (Exh.P.2). But the sale consideration entered therein was Rs. 15,30,000 and not-the orally agreed sale price of Rs.10,00,000. And that on refusal of the respondents to make the sale on the orally agreed terms, the snit by the appellant was filed to seek the enforcement of the alleged oral agreement at the purported sale price of Rs.10,00,000.

1. The respondents jointly submitted their written statement on 2-12-1992 denying the oral agreement at the sale price of Rs.10,00,000 but admitting receipt of Rs.100,000 as the earnest money through Exh.P.1 but on the basis of terms written in Exh.P.2 for the sale of the suit property at Rs.15,30,000 and not at Rs.10,00,000. The respondents as the defendants also asserted that as the appellant plaintiff refused to accept, make and sign Exh.P.2, no agreement between the parties for the sale of the suit property was made. And that the respondent therefore returned the earnest money of Rs.1,00,000 through cheque dated 18-2-1990. And that no agreement came into existence to vest in the appellant a right or cause to seek a decree.

2. Following issues were framed by the learned trial Judge`.---

"(1) Whether there was no contract executed between the parties? OPD

(2) Whether the plaintiff's suit is not maintainable? OPD

(3) Whether the plaintiff is estopped by his words and conduct to file the present suit'? OPD

(4) Whether the plaintiff' has no cause of action? OPD

(5) Whether the agreement-to-sell dated 28-9-1989 was executed between the parties'? OPP

(6) Whether the plaintiff has paid arty earnest money to the defendants? OPP

(7) If issue No.6 proved in positive, whether the plaintiff is entitled for the decree of specific performance of the contract after the payment of the amount to the defendants`? If so, its effect'? OPP

(8) Relief."

1. The appellant produced P. W.1 to P. W.3 as his evidence and appeared as P.W.4. Exh.P.1, Exh.P.2, Mark "A" and Mark "B" were also produced by him. The respondents produced D.W.1 to D.W.4 while respondent No.2 appeared as D.W.5 being the attorney of respondent No.1 i.e. his wife. Exh.D.1 to Exh.D.4 were produced as the documentary evidence.

2. The learned trial Judge decided Issues Nos.1 to 4 against the respondents. Issues Nos.5 to 6 and 7 were decided against the appellant plaintiff. The suit was accordingly dismissed through judgment and decree dated 26-10-1995.

3. Against the above judgment and decree, R.F.A. No.56 of 1996 was filed before this Court. It was admitted for the regular hearing on 29-1-1996. On enhancement of the pecuniary jurisdiction of the learned District Judge through Civil Courts (Amendment) Ordinance, 2002, the first appeal was sent through order dated 3-3-2003 to be heard by the learned District Judge.

The appeal was heard by the learned Additional District Judge Faisalabad who through his judgment and decree dated 1-6-2004 dismissed the same thereby upholding the judgment and decree dated 26-10-1995 of the learned trial Judge. Hence the present second appeal.

1. The learned counsel for the appellant contended that both the parties admitted transaction of sale and existence of agreement between them but the only dispute was whether the agreed sale price was Rs.10,00,000 as asserted by the appellant or Rs.1S,30,000 as claimed by the respondents. Further that both the Courts held that the oral agreement was not proved but the written agreement (Exh.P.2) was proved, wherefor the learned Courts below should have decreed the suit its favour of the appellant at Rs.15,30,000 on rejection of the appellant's price of Rs.10,00,000. Also that the learned Courts below erred at law by holding that the earnest money of Rs.1,00,000 was returned by the respondents to the appellant in order to rescind the agreement for which no issue was framed by the learned trial Judge.

Contrarily the learned counsel for the respondents contended that the receipt for earnest money dated 13-8-1989 (Exh.P.1) neither mentioned the names of the parties nor the sale consideration, to be a proof for the alleged oral agreement to sell at the purported price of Rs.10,00,000. Further that the document dated 28-9-1989 (Exh.P.2) was admitted to have been received by the appellant as sent by the respondents for execution/signatures by the appellant to become the agreement to sell at the sale price of Rs.15,30,000 with the balance of Rs.14,3U,000 payable by 29-11-1989 for the sale-deed. Arad that the appellant neither executed nor signed this agreement but instead kept the same in his possession from 28-9-1989 till production in evidence by him as Exh.P.2 in 1995. And that upon non-execution of this agreement by the appellant, the earnest money of Rs. 1,00,000 was sent back to the appellant through his brother by a cheque (Exh.P.4) written in the name of the appellant. And that the appellant was a tenant of the respondents in the suit property and ejectment orders against him became final on the Honourable Supreme Court's girder dated 25-3-i998 directing him to vacate the, suit property by 25-7-1998. Also that the appellant neither filed a suit nor took any proceedings or gave any legal notice to the respondents to avoid or reject the terms of Exh.P.2. And also that he neither took steps to purchase the stamp paper for the alleged sale deed nor did he appear before the Registrar etc. for completion thereof. It was emphatically contended that the specific performance being a discretionary relief cannot be allowed to the appellant in view of his fraudulent conduct.

1. Heard.

2. Through their pleading and depositions, the parties admitted agreeing at the sale/purchase of the suit property and exchanging the earnest money of Rs.1,00,000 per receipt i.e. Exh.P.1. They differed at the most fundamental term/condition qua the sale price.

3. The appellant as the plaintiff pleaded and persisted on an oral agreement alleging sale price at Rs.10,00,000. The respondents as the defendants denied this oral agreement. They asserted terms of the transaction as incorporated in the document dated 28-9-1989 (Exh.P.2) stipulating sale consideration of Rs.15,30,000. In para. 4 of the plaint, the appellant expressly admitted receipt of this agreement as subscribed upon the stamp paper .dated 28-9-1989 but denied the sale price of Rs.1S,30,000 as was therein recorded. The appellant thus denied Exh.P.2 to be the agreement between the parties. He neither completed this agreement nor signed it. Instead he kept the same with him for a period of about three years without challenge. He neither took proceedings to revoke/cancel this document nor did he file a suit to avoid it. It was in his plaint dated 28-7-1992 that the appellant objected for the first time to the amount of sale consideration recorded in Exh.P.2 which was produced by him on 30-1-1995 in his evidence as Exh.P.1. Though received in September, 1989, the appellant denied to own, execute and sign Exh. P.2 as per. his plaint wherein he alleged and sought enforcement of his oral agreement with Rs.10,00,000 as the purported sale price. This plea was concurrently rejected by the learned Courts below on thorough analysis, appreciation and evaluation of evidence and record. The learned subordinate Courts instead accepted the case of the respondents on Exh. P.2 and return of the earnest money of Rs. 1,00,000 by the respondents to the appellant, by a cheque (Exh.R.4) through the appellant's brother who being the best witness on the subject was not produced by the appellant. Thus the presumption of adversity against him.

4. The learned Additional District Judge Faisalabad in the impugned judgment dated 1-6-2004 confirmed the findings of the learned Civil Judge by recording that:---

"Perusal of the record reveals that the only controversy between the parties at the initial stage was sale money of the suit property. As per version 'of the appellant, it was fixed at Rs.10,00,000 and as per respondents, it was Rs.1S,30,000. The appellant in order to grove his case examined three witnesses and he also appeared as P.W.4. The appellant examined Rizwan Safi as P.W.1 who is marginal witness of receipt Exh.P.1 but the receipt Exh.P.1 does not disclose the name of the parties of the agreement and the sale price of the suit property is not there which is the bone of contention between the parties., P.W.2 Fazal Ellahi states that Exh. P.1 was written in his presence but he is not a marginal witness of the document Exh.P.1. Similar is the position of the P.W.3. As main emphasis of the appellant is on the receipt Exh.P.1 but this receipt has neither been fully proved by its alleged marginal witnesses nor it contains the full particulars and terms and conditions of the sale agreement executed between the parties whereas the sale agreement Exh.P.2 bears the sale price of Rs.15,30 000.

On the other hand, the respondents by oral as well as documentary evidence has proved that sale price even at the time of execution of receipt Exh.P.1 was fixed at Rs.1S,30,000 and not as Rs.10 000 00 and that the earnest money of Rs. one lac was returned to the real brother of the appellant namely S.M. Iqbal Advocate as is proved from the documents Exh.D.1.2. The appellant did not examine S.M. Iqbal Advocate to disown the receipt of Rs.1,00,000 from the respondents and this presumption also goes against the appellant. The possession of the suit property is also admittedly with the respondents which they have got through ejectment petition."

1. The learned counsel for the appellant has not been able to show any misreading or non-reading of evidence by the learned Courts below in .recording the above findings of fact. The decision of the learned subordinate Courts is neither contrary to the law nor have the learned Courts failed .to determine the material issues. A vain endeavour was made by the appellant's counsel to contend that an essential issue on the return of the earnest money was not framed by the learned trial Court and non-framing of issue led to mistrial. This ground was raised for the first time in this second appeal without explaining the appellant's failure to claim such an issue at the trial stage or in the first appeal

Even otherwise return or refund of the earnest money was not the main litigated question to require a separate issue for adjudication of the suit. The parties to the suit were neither ambiguous nor unmindful of the collateralneous of this controversy qua the main issues. Both the parties led their evidence on refund/return of the earnest money and the learned Courts accordingly and adequately ruled thereupon. Wherefor this Court believes that no independent issue thereto was needed and the impugned judgments and decrees do not suffer from any legal, tactual or procedural error to deserve appellate intervention of this Court.

2007 C L C 1874

[Lahore]

Before Maulvi Anwarul Haq, J

KHUSHI MUHAMMAD through L.Rs.----Petitioner

Versus

Mst. NAZIRA BIBI and 4 others----Respondents

Civil Revision No.2521 of 2006, heard on 4th September, 2007.

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

----Art. 163---Decision of a case on basis of oath---Offer and acceptance made in heat of passion---Duty of Court---Plaintiff filed suit for declaration that gift mutation in respect of suit land recorded in favour of his wife/defendant was illegal and void---Defendant during her lengthy cross-examination made offer to decide the matter on statement on oath by the plaintiff---Immediately after said offer statement of defendant was recorded to the effect that if plaintiff stated on oath on Holy Qur'an that he had not gifted suit land to defendant, the suit be decreed otherwise it be dismissed---Offer was accepted, oath was taken and suit was decreed on the same day---Validity---Trial Court acted too promptly and did not follow the guidelines laid down by Supreme Court in Muhammad Ali's case reported as PLD 1990 SC 84---Courts, keeping in view the said judgment should have refrained from recording such offer and acceptance speedily for the reason that party may, in the heat of passion, make such an offer, or accept such one, which otherwise, in a state of cool deliberation, he would not do.

Mukhtar Ahmed Khan v. Mushtaq Ahmad 1998 SCMR 2049; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Attiqullah v. Kafaytullah 1981 SCMR 162; Ahmad Khan and others v. Jewan PLD 2002 SC 655 and Muhammad Ali v. Maj. Muhammad Aslam and others PLD 1990 SC 841 ref.

Sh. Naveed Sheharyar for Petitioner.

Malik Amjad Pervaiz and Zahid Aslam for Respondent No.1.

Tahir Munir Malik, A.A.-G.

Date of hearing: 4th September; 2007.

2007 C L C 1877

[Lahore]

Before Sh. Hakim Ali, J

Mst. PARVEEN----Petitioner

Versus

JEHANA and 7 others----Respondents

Writ Petition No.17298 of 2004, decided on 25th June, 2007.

(a) Arbitration Act (X of 1940)---

----S. 14---Civil Procedure Code (V of 1908), S.12(2)---Limitation Act (IX of 1908), Art.158---Application under S.12(2), C.P.C. against decree which had made the award, a rule of Court---Application was allowed .and case was remanded. to trial Court to decide the petition under S.14 of Arbitration Act, 1949 afresh in accordance with law---After remand order objections against award having been filed beyond a period of thirty days were clearly time barred---Article 158 of Limitation Act, 1908 provided that petitioner was bound to file objection petition against award within a period of thirty days from the date of service of notice of filing of award, or at least from the date of having notice of filing of award or gaining the. knowledge that .award had been filed---Contention that application filed by petitioner which had not contained the reference to S.12(2), C.P.C. could have been considered and treated by Court to be an objection petition against the disputed award, was repelled---Contents of said application clearly showed that it was tiled against the judgment and decree which had made the award a rule of Court and it was not against the validity and soundness of award or for its setting aside---Said application did not mention the date when petitioner had obtained knowledge of the filing of award by arbitrator or tiling of it in Court---To get exemption from a period of limitation or for its condonation, the party who claims such exemption/condonation should mention and explain the date of knowledge when it was obtained by him, if service was not effected upon him or he was prevented due to any other sufficient cause to apply within prescribed period of limitation---If said application purportedly filed under S.12(2), C.P.C. presumed to have been filed against the award, even then it was barred by limitation because of lack of necessary details and particulars in the application---Objection petition filed against award after more than one month was barred by limitation---Award was made rule of court.

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

----S. 11---Agreement with minor---Contract/agreement with a minor can be held void if it is executed against the interest of minor, but if agreement/contract has been made by any person for the interest of minor and minor is going to obtain airy benefit from it, then it is the discretion/sweet-will of the minor to accept or reject it when he becomes major.

Superintending Engineer Communication and. Works Highway Circle, Kohat v. Faiz Muhammad & Co. Akhora Khattak PLD 1996 SC 797; Messrs Sharif Corporation Ltd. v. Government of Pakistan through Director-General of Defence Purchase, Ministry of Defence Karachi PLD 1994 Kar. 127 and Airports Development Agency Ltd. v. Messrs M.Y. Corporation and others PLD 2001 Kar. 158 ref.

Ch. Ghulam Hussain for Petitioner.

Aman Ullah Malik for Respondents.

2007 C L C 1884

[Lahore]

Before Muhammad Khalil Alvi, J

Rana MUHAMMAD SAGHEER----Petitioner

Versus

Rana INAYAT KHAN through General Attorney----Respondent

Civil Revision No.2171/D of 2000, heard on 10th September, 2007.

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

----Art. 17(2)---Agreement to sell---Attestation by witnesses, a requirement of law---Agreement to sell involving further obligations, if reduced to writing, is required by Article 17 of Qannn-e-Shahadat 1984 to be attested by two witnesses---Non-attestation by witnesses makes the document inadmissible in evidence.

2002 MLD 1002 and 1998 SCMR 760 distinguished.

Ijaz Ahmed Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 10th September, 2007.

2007 C L C 1885

[Lahore]

Before Syed Hamid Ali Shah, J

FATEH MUHAMMAD through L.Rs. and others----Appellants

Versus

FIDA HUSSAIN SHAH through L.Rs.----Respondents

Regular Second Appeal No.224 of 1975, decided on 9th July, 2007.

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

----Art.129(g)---Where a party does not appear as his own witness, the Court may draw an adverse inference against him.

Feroz Khan v. Mst. Waziran Bibi 1987 SCMR 1647 ref.

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

----O. XIII, R.4---Qanun-e-Shahadat (10 of 1984), Arts.2(1) & 113---Document admitted in evidence and brought on record---Effect---Contents of such document could be read and given effect to by Court even in the absence of a plea by a party to such effect.

Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1316 ref.

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

----S. 42---Civil Procedure Code (V of 1908), O.VIII, R.5, O.XII, R.6, O.XV, R.1---Mortgage or sale---Plaintiff sought declaration to the effect that suit-land was purchased by him against consideration and to avoid threat of pre-emption it was given the shape of mortgage---Entries in Revenue Records reflected the transaction to be a mortgage---Earlier, in a suit for pre-emption the original vendor of suit-land had admitted in his written statement that transaction in question was a sale and not mortgage---Courts below relied upon such admission and decreed the suit in favour of plaintiff---Contention that admission was relevant only in the proceedings in which such admission was made and could not be used in subsequent suit, was repelled as the decree was not passed solely on the basis of admission made in earlier suit---Defendant also had not denied contents of plaint in specific terms which under R.5 of O.VIII, C.P.C. was taken to be admitted and Court had to pass judgment on strength of such admission---Question of sale was not required to be determined and judgment was to be pronounced as per O.XV; R:1, C.P.C., in circumstances---Even application for redemption filed by predecessor of defendant in 1944 had been dismissed by Assistant Collector on ground that transaction of land in dispute was traced as sale---Such findings having not been assailed in any higher forum had got finality and could not be agitated again.

Muqarrab Hussain (deceased) through his Legal Representative and another v. Pirzada Muhammad Rafique (deceased) through his Legal Representative 2001 YLR 1103; Ahmad Khan v. Malik Fazal Dad deceased represented by Legal Heirs 1983 CLC 74 and Naseer Ahmad and another v. Asghar Ali 1992 SCMR 2300 ref.

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

----O. VIII, R.1---Written statement would lose all its force as an authentic piece of evidence and cannot be acted upon or treated as substantive evidence when defendant does not make himself available for cross-examination.

Bakhat Bedar v. Naik Muhammad 2004 MLD 341 ref.

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

----O. XIV, R.1(6) & O.XV, R.1---Qanun-e-Shahadat (10 of 1984), Arts.31 & 113---Admission through written statement---Effect---Once admission is made in written statement, no issue is required to be framed nor any further proof is required.

Muhammad Rafiq and others v. Muhammad Ali 2004 SCMR 704 ref.

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

----Ss. 100 & 101---Plea which was not raised before Trial Court as well as before First Appellate Court, cannot be raised in second appeal---No interference at the stage of second appeal is permissible, merely on ground that on the basis of available evidence, another view is possible.

Asghar Ali for Appellant No. 1.

Mian Muhammad Nawaz for Appellant No.2.

Zafar Abbas Khan for Respondents.

Date of hearing: 27th June, 2007.

2007 C L C 1896

[Lahore]

Before Syed Hamid Ali Shah, J

NASEER TARIQ----Petitioner

Versus

ABDUL LATIF and 3 others----Respondents

Civil Revision No.2004 of 1991, heard on 20th July, 2007.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings---Concurrent findings of courts, can be modified and reversed if the swine are either based on no evidence or inadmissible evidence, or the same are capricious and conjectural.

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

----S. 42---Suit for declaration---Special power of attorney, execution of---Proof---Plaintiff denying the execution of special power of attorney; and sale on basis of said document sought declaration to the effect that he was the owner of disputed shop and had not sold it to anyone---Alleged special attorney, marginal witnesses thereof and scribe of the document all falsified the claim of plaintiff without their testimony being shaken in cross-examination---Defendant by cogent, credible, confidence-inspiring and well-corroborated oral and documentary evidence had successfully proved the execution of special power of attorney and execution of sale-deed on basis of such document---Paltry amount mentioned in the sale-deed was intended to avoid expenses likely to incur on registration of document hence had no material impact on the validity of sale-deed---Plaintiff under law, could himself execute the sale-deed in question, to appoint a special attorney---Loss of original power of attorney had been duly proved---Statement of Registry Moharrar having not been subjected to cross-examination though did not constitute evidence yet factum of execution of power of attorney stood proved through other evidence available on record.

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

----Art. 133(2)---Statement which is not subjected to cross-examination, does not constitute evidence.

Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599; Muhammad Irshad v. Aleemuddin and others 2001 MLD 1840; Abdul Hamid v. Malik Karam Dad, P.C.S., Election Tribunal, Rawalpindi and 2 others PLD 1966 (W.P.) Lah. 16; Muhammad Shafi and others v. The State PLD 1967 SC 167; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Mst. Kaniz Fatima v. Ghulam Mustafa 1994 MLD 174 and Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671 ref.

Mian Nisar Ahmad for Petitioner.

Ch. Khurshid Ahmad for Respondents.

Date of hearing: 20th July, 2007.

2007 C L C 1926

[Lahore]

Before Nasim Sikandar and Iqbal Hameed-ur-Rehman, JJ

SADIA SAMAR and 9 others----Petitioners

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor, Quaid-e-Azam, Campus, Lahore and 4 others----Respondents

Writ Petitions Nos.7316 and 7317 of 2007, decided on 30th August, 2007.

Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition---Educational institution---,Admission policy---Discrimination---University initiated various programmes of studies---Petitioners got admission on basis of three plus two years scheme i.e. three years for B.Sc (Honours) and two years for M.Sc. (Honour)---Syndicate of the University with permission of Higher Education Commission changed the policy to four years B.Sc. and two years M.Sc. (Honours) Programme---Petitioners passed their B.Sc. examination under the amended policy alit sought admission in M.Sc. (Honours) but they were refused on the ground of their Failure in National Testing Service test which, according to the new policy, was a prerequisite for-admission in M.Sc. (Honours)---Petitioners were entitled to be promoted to M.Sc. (Honours) Classes without being required to qualify the N.T.S. test in view of earlier scheme---Other students, who were batch mates of petitioners and were given admission under the same policy, after passing their B.Sc. examination, were promoted to M.Sc. (Honours) without qualifying/appearing in the N.T.S. test---Validity---University was not following a unified policy with regard to the admission and discriminatory treatment was being meted out to he petitioners in violation of their constitutional right---University was, therefore, directed by High Court to allow the petitioners to be promoted to M.Sc. (Honours) on basis of same policy under which they were given admission.

Malik Abdul Wahid for Petitioners.

Raja Muhammad Arif for Respondents.

Date of hearing: 27th August, 2007.

2007 C L C 143

[Peshawar]

Before Talaat Qayyum Qureshi, J

SHAHD MENA----Petitioner

Versus

GUL SADA KHAN and 2 others----Respondents

Civil Revision No.95 of 2006, decided on 13th October, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff had sought declaration to the effect that she was owner of suit-land and that mutation of said land attested in favour of defendant was based on fraud; and same being illegal was ineffective upon her rights---Concurrent dismissal of suit---Plaintiff, in revision, had alleged that she was illiterate, ignorant, Pardanasheen lady and defendant had fraudulently transferred her entire share in the property in dispute in his name---Claim of defendant was that sale mutation of property in dispute was attested in his favour and that he had paid sale consideration to plaintiff and that plaintiff was fully aware of sale transaction---Sale transaction had been admitted by plaintiff herself in her statement when she was examined as witness---Plaintiff's own witness had also admitted in his statement that in his presence three ladies including plaintiff had affixed their thumb impressions on the mutation through which land in dispute was transferred in the name of defendant---Said evidence had shown that plaintiff had not only knowledge of sale transaction, but was also fully aware of the fact that defendant had constructed his house on the suit property more than 10 years back from the date of filing of the suit---Courts below had rightly appreciated evidence available on record---In absence of any misreading/non-reading of evidence or illegality or any material irregularity, or any jurisdictional error or defect in impugned concurrent findings recorded by the Courts of competent jurisdiction, same could not be interfered with by High Court in exercise of its revisional jurisdiction.

2005 SCMR 1832; PLD 1959 (W.P.) Lah. 295; KLR 1985 Civil Cases 84 and 2001 CLC 810 rel.

Amanullah Khan Khattak for Petitioner.

M. Qasim Khattak for Respondents.

2007 C L C 184

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

DEPUTY ACCOUNTANT-GENERAL OF PAKISTAN REVENUES NORTHERN AREAS----Appellant

Versus

Dr. SHAHBUDDIN, RADIOLOGIST, D.H.Q. HOSPITAL GILGIT----Respondent

C.A. No.7 of 2006, decided on 5th September, 2006.

Civil Procedure Code (V of 1908)---

----O. XXVII, R. 8(2), O.I, R.3 read with S.79---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit against public officer---Joining of party---Employee of Health Department---Sanction of four advance increments by competent Authority---Department refused to include increments in pay slip of petitioner---Constitutional petition against department, without impleading Government as party, was granted---Validity---Undisputedly the department was a functionary to the Federal Government and refusal on the part of department to include four advance increments in pay slip of petitioner was an action done in. its official capacity---Petition was filed against Deputy Accountant General Pakistan Revenue, no application was made by Government pleader vide O.XXVII, R.8(2), C.P.C. it was therefore seemingly clear that petition proceeded as if it was a petition between private parties---Federal Government was a necessary party in circumstances but it was condemned unheard---While taking an action against Federal Government or Provincial Government due regard was to be given to provisions of section 79, C.P.C. but this was not done---Court below exercised jurisdiction illegally in granting constitutional petition against department in its official capacity and wherein Pakistan was not impleaded as party---Court always enjoyed vast power to add or strike a party at any stage of proceedings on application by a party or otherwise---Case therefore was remanded for decision afresh after impleading necessary parties under law.

Ehsan Ali for Petitioner.

Malik Shafqat Wali for Respondent.

2007 C L C 203

[Northern Areas Chief Court]

Before Muzaffar Ali, J

MUHAMMAD HANIF----Petitioner

Versus

ELECTION COMMISSIONER and 3 others----Respondents

Civil Revision No. 1 of 2006, decided on 15th March 2006.

(a) Election---

----Election Tribunal, having been constituted, election authorities had ceased to have jurisdiction to pass any order, corrigendum or any notification after completion of election process and after notification of results---Such power vests in Election Tribunal to adjudicate upon pre or post elections disputes arising out of elections between contesting candidates or against election authorities for violation of election laws, etc.

Punjab Local Election Authority Lahore v. Malik Muhammad Aslam and others 1982 SCMR 1086 distinguished.

(b) Void order---

---Such kind of order being always void and without jurisdiction required to be set aside, without caring, how correct it might be on factual grounds---No party could claim a right on basis of a void order.

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

---O. VIII, R.6---Decree in favour of defendant---Validity---No decree in favour of a defendant can be passed even by civil court except in money suits that too when defendant filed a set off or counter claim---Suit or appeal, in, other cases, may be dismissed but no specific decree in favour of defendant may be passed.

Johar Ali for Petitioner.

Amjad Hussain and Munir Ahmad for Respondent No.4.

Date of hearing: 14th March, 2006.

2007 C L C 213

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

TAJ MUHAMMAD and others----Petitioners

Versus

Pirzada KHALID MANSOOR and others----Respondents

Civil Revision Petition No.288 of 2004, decided on 28th October, 2005.

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

----S. 12(2)---Exclusion of time in legal proceedings---Benefit of subsection (2) of S.12 of Limitation Act, 1908, dealing with exclusion of time, was available only in cases where there was an appeal, an application for leave to appeal or an application for a review of judgment---Section 12(2), had nowhere mentioned revision applications---Omission of the words 'revision applications' in the subsection, was not accident---Subsection (2) of S.12 of Limitation Act, 1908 had restricted its application to merely two kinds of applications, namely an application for leave to appeal and an application for review of judgment and benefit of said subsection, was not attracted to revision application.

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

----Ss. 5, 12, 14 & 29---Civil Procedure Code (V of 1908), S.115---Limitation---Delay, condonation of---Revision petition---Limitation---In judicial system, law of limitation had got its own significance relating to period prescribed for instituting proceedings---Limitation Act, 1908, contained in its fold remedial provisions like Ss.5, 12 & 14, which empowered Court to enlarge the period of limitation in peculiar circumstances of each case, provided those provisions had been specifically made applicable on the proceedings and in the absence of its application, the Court on its own, would not be competent to make applicable the provisions of those sections---Civil Procedure Code, 1908, contained various provisions where S.5 of Limitation Act, 1908, had been expressly made applicable to condone the delay in filing proceedings, if sufficient cause existed in favour of the party who sought condonation of delay, but said section, had not been made applicable on revision under S.115, C.P.C.---Petitioner in the present case, though had filed application for condonation of delay, but the ground for delay taken in his application was not appealable to the mind---Revision petition filed beyond prescribed period of limitation, was not maintainable, in circumstances.

Muhammad Inayat and 5 others v. Mst. Nisar Fatima PLD 1994 SC 120; Muhammad Inayat and others v. Fateh Muhammad and others PLD 2004 SC 778; Furqan Ahmad Khan v. Abdur Rehman and others 1997 SCMR 422 and Mst. Gohar Taja v. Sajid and others 2003 YLR 1994 ref.

Ahmad Ali Khan for Petitioner.

2007 C L C 228

[Peshawar]

Before Tariq Parvez Khan, C.J

Mst. FARHANA YASMEEN----Applicant

Versus

ATIF AZIZ----Respondent

T.A. No.55 of 2006, decided on 18th December, 2006.

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

----S. 25-A---West Pakistan Family Courts Rules, 1965, R.6---Transfer of family suit---Applicant/wife's suits for dissolution of marriage, maintenance, dower and return of dowry articles were pending in Family Count at place 'K', whereas suit filed by her husband for restitution of conjugal right against her was pending in the Court at place 'N'---Applicant had prayed that suit filed by her husband for restitution of conjugal right in the Court at place 'N' be transferred to Court at place 'K' where her suits were pending---Validity---Court under proviso to R.6 of West Pakistan Family Courts Rules, 1965, was to consider the inconvenience of wife involved in the suit---Husband, though presently was residing at place 'N', but was permanently resident of place 'K'--Distance between place 'K' and 'N' was more than 150 Km. and applicant was to travel the distance which was journey of 2 to 4 hours---Marriage of parties was solemnized at place 'K'; in view of inconvenience of applicant, suit filed by husband at place 'N' stood transferred to the Court at place 'K' where suits of applicant (wife) were pending adjudication.

2005 YLR 795 rel.

M. Qasim Khan Khattak for Applicant.

Akbar Ali for Respondent.

Date of hearing: 18th December, 2006.

2007 C L C 231

[Northern Areas Chief Court]

Before Raja Jalaluddin, Chairman and Muzaffar Ali Judge/Member

EFFECTEES OF JUGLOTE HYDEL PROJECT through their representatives----Petitioners

Versus

COLLECTOR/DEPUTY COMMISSIONER, DISTRICT GILGIT----Respondent

Writ Petition No.21 of 2001, decided on 16th June, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Award---Invalid service of notice---Application for reference---Limitation---Record established that service of notice under S.12(2), C.P.C. was not made personally on petitioners but on their representatives, even signatures of representatives were not obtained by (so-called) process server as the official status of said process server was unknown---Held, notice had although been issued, but had not been duly served, in accordance with law, on petitioners or their agents---Case of petitioners therefore fell within the ambit of six months period of limitation as provided in section 18 Land Acquisition Act, 18947-Objection petition being within time was wrongly rejected as barred by limitation.

Jaffar Shah and Ehsan Ali for Petitioners.

Ali Nazar and A.-G. for Respondent.

Date of hearing: 16th June, 2005.

2007 C L C 237

[Northern Areas Chief Court]

Before Muzaffar Ali, J

AHALIAN SILI-HARANG through Representatives----Petitioners

Versus

HUSSAIN PANA and another----Respondents

Civil Revision No.27 of 2005, decided on 17th March, 2006.

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Scope---Granting relief not prayed for---Exercise of jurisdiction with material irregularity---Water Channel---Right to irrigation of lands---Perpetual injunctions to restrain defendants from interference was allowed---Plaintiffs though had not sought possession of land in question but Trial Court directed to Tehsildar to hand over the possession to plaintiffs---Appellate Court rightly held the directives of Trial Court to be of no legal consequence but at the same time it erred in law by dismissing appeal in the operative part of impugned judgment---Once Appellate Court had held that directives were without legal sanction and of no legal consequence then it ought to have allowed the appeal partially by setting the said direction aside.

Khanjar Baig for Petitioners.

Shahabuddin and Taimour for Respondents.

Date of hearing: 17th March, 2006.

2007 C L C 240

[Northern Areas Chief Court]

Before Muzaffar Ali, J

GHULAB KHAN----Petitioner

Versus

COLLECTOR/DEPUTY COMMISSIONER DISTRICT GILGIT and 3 others----Respondents

Writ Petition No.10 of 2003, decided on 24th August, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 11 & 18---Acquisition of land---Application for Reference---Collector (Deputy Commissioner) sent the application to Assistant Commissioner for comments and after receiving report from Assistant Commissioner dismissed application being time-barred---Validity---Under Land Acquisition Act, 1894, Collector was neither empowered to delegate his powers to any of subordinates nor the Assistant Commissioner stood anywhere in the Act---Collector committed illegality by sending the application to the Assistant Commissioner for comments/report---Case was remanded for decision afresh.

Ehsan Ali for Petitioner.

A.-G. for Respondent No.1.

Muhammad Riaz for Respondents Nos.2 to 4.

Date of hearing: 24th August, 2005.

2007 C L C 246

[Peshawar]

Before Said Maroof Khan, J

Haji MUHAMMAD AFZAL----Petitioner

Versus

MUHAMMAD ZAHID----Respondent

Civil Revision No.16 of 2004, decided on 22nd November, 2006.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Proof---Talb-e-Muwathibat was not at all performed according to the requirements of law---Date, time and place of performance of "Talb-e-Muwathibat" and acquiring knowledge about sale transaction had to be specified in the plaint; because without such disclosure, it would be difficult to determine as to whether "Talb-e-Muwathibat" was in fact made by pre-emptor soon after getting the knowledge of sale in the same sitting where he acquired the knowledge of the transaction---Pre-emptor having not made 'Talb-e-Muwathibat' according to law and evidence produced by him, had also not established the performance of Talbs in accordance with provisions of S.13 of North-West Frontier Province Pre-emption Act, 1987, Appellate Court below thus, had rightly dismissed the suit for pre­emption---Impugned judgment was not suffering from any illegality or material irregularity calling for interference by the High Court.

Malik Muhammad Jehangir Awan for Petitioner.

Ahmad Ali Khan for Respondent.

Date of hearing: 22nd November, 2006.

2007 C L C 253

[Northern Areas Chief Court]

Before Muzaffar Ali, J

Mst. HAJIRA BI through L.Rs.----Appellants

Versus

GHULAM MUHAMMAD and 6 others----Respondents

C.S.A. No.3 of 2005, decided on 21st September, 2005.

Civil Procedure Code (V of 1908)---

----O. VI, R.17 & S.152---Amendment of plaint---Maxim---Nemo debts bis vexari pro eadem causa---Applicability---Plaintiff filed application for amendment in plaint---Trial Court while allowing application inserted a clerical mistake in the order which however, was not pointed out by plaintiff---Plaintiff stated in appeal that he had no objection if appeal was accepted resultantly appeal was allowed and case was remanded to, Trial Court where plaintiff requested for rehearing of application under O.VI, R.17, C.P.C. pleading that earlier amendment granting order had a clerical mistake---Request of plaintiff was disagreed by Courts below---Validity---Order having a clerical mistake, could be corrected by invoking S.152, C.P.C. but plaintiff failed to adopt the proper course--Instead he agitated the application which had been disposed of without caring the principle of law that no one can be vexed twice for the cause which has been disposed of and has got finality.

Wazir Shakeel Ahmad for Appellants.

Shaukat Ali for Respondents.

Date of hearing: 21st September, 2005.

2007 C L C 264

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

GOVERNMENT OF PAKISTAN through Ministry of Defence; Islamabad and another----Petitioners

Versus

COLLECTOR LAND ACQUISITION, GILGIT and another----Respondents

C.P.L.A. No.6 of 2006, decided on 7th June, 2006.

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

----Ss. 50(2) & 18---Reference---Appeal by local authority against judgment and decree, made in reference---Competency---Acquisition of land for benefit of Military Estate (Local Authority)---Award made by Collector not disputed by parties---Affectee who was not paid compensation for years initiated for compound interest through supplementary award which was granted by competent- authority---Beneficiary (Military Estate) joining the Government filed objection petition which was-referred to Referee Court---Reference and appeal were dismissed---Validity---Section 50(2) of Land Acquisition Act, 1894 restricted right of reference by or on behalf of any Local Authority or Company against an award---Legislature had given right to local authority or company concerned for whose benefit land was acquired by the Government only to appear and adduce evidence before the competent authority for the purpose of determining amount of compensation---Such authority or company has neither right to ask for a reference under S.18, nor on a parity of reasoning a right to prefer an appeal against ,decision made upon a reference under S.18---Local Authority and Federal Government, held, did not possess any locus standi to file appeal under S.50(2) of the Act.

Pir Khan through L. Rs. v. Military Estate Officer at Abbottabad and others PLD 1987 case No.485 ref.

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

----Ss. 34 & 28---Award of compound interest, jurisdiction of Collector---Scope---Collector is not only competent to allow suit interest rather he is bound under law to compensate the affectce owner in shape of awarding compound interest if after taking possession of acquired land Local Authority or company concerned fails to pay compensation.

2007 C L C 326

[Peshawar]

Before Ejaz Afzal Khan and Said Maroof Khan, JJ

NASAR KHAN and 16 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE-I, LAKKI MARWAT and 76 others----Respondents

Writ Petition No.105 of 2004, decided on 1st June, 2006.

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

----Art. 199---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.12(2) & O.IX, R.13---Suit for declaration---Plea of collusion and fraud---Predecessor in interest of respondent instituted suit for declaration against predecessors of petitioners to the effect, that; he had matured his title to the suit-land by prescription for having remained in its possession for period of more than sixty years and that entries in the revenue record were to be corrected in his favour---All predecessors of petitioners, having remained absent, were placed ex pane and suit was decreed by the Trial Court---After about thirty two years, predecessors of petitioner, submitted application under S.12(2), C.P.C. for setting aside judgment and decree passed by the Trial Court on the ground that summons were not served upon them and that decree obtained by predecessors of respondent was result of collusion and fraud---Said application was concurrently dismissed by the Trial Court and Appellate Court below and petitioners had filed constitutional petition challenging concurrent judgments of the Courts below---Validity---Claim of predecessor of respondent in the suit was bona fide---Trial Court was not misled by any of his acts or omission---Decree was passed in his favour on consideration of documentary evidence available on record and allegation of fraud and collusion against him, was not established on record---If petitioners were aggrieved from ex parte decree, they should have filed an application under O.IX, R.13, C.P.C., but instead they had filed application under S.12(2), C.P.C., which was not maintainable; because non-service of summons or improper service, could not be considered to be valid ground for filing application under S.12(2), C.P.C.---Said application which had been filed after 32 years of passing of decree, otherwise was hopelessly time-barred and was rightly dismissed as such---Concurrent findings recorded by two Courts below, could not be interfered with in exercise of constitutional jurisdiction, particularly when no misreading or non-reading of evidence or illegality in the impugned judgments, had been pointed- out by counsel for petitioners.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

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

----S. 12(2)---Non-service of summons or improper service, could not be considered to be valid ground for filing application under S.12(2), C.P.C.

Saleemullah Khan Ranazai for Petitioners.

Rustam Khan Kundi for Respondents.

Date of hearing: 24th May, 2006.

2007 C L C 401

[Peshawar]

Before Dost Muhammad Khan, J

NAWAB KHAN and others----Petitioners

Versus

RABIA NASEER----Respondent

Civil Revision No.1531 of 2005(M) with C.M. No.1363 of 2005(N), decided on 27th June, 2006.

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

----O. VIII, R.10 & O.VII, R.11---Object of O.VIII, C.P.C.---Petition under O.VII, R.11, C.P.C. could be treated as written statement---Failure to file written statement---Striking off defence---Validity---Defence was struck off under O.VIII, R. 10, C.P.C. because of failure of defendants to submit their written statement---Trial Court as well as court of appeal had ignored that in application filed by the defendants under O.VII, R.11, C.P.C., important questions of law were raised and in the interest of justice, the Trial Court, could competently treat same as a written statement---No ,doubt under O.VIII, C.P.C. certain conditions were provided which had to be fulfilled while filing written statement, but the object behind the same was that defendant like the plaintiff, would fairly disclose and place its case/defence before the court in clear terms so that opposite party should know the defence; and that proper issues were framed for recording pro and contra evidence thereon so that the trial sailed smoothly and within the prescribed parameters---Court was not denuded of its authority to treat even a miscellaneous application as a written statement if it raised important questions of law or of facts which could be reduced into issues---Trial Court, in the present case, was not only competent, but under obligation to have treated petition under O.VII, R.11, C.P.C. as a written statement---Both courts below had ignored the salutary principle of justice as well as of law on the subject and in that way had exercised jurisdiction in the manner causing miscarriage of justice---Impugned judgments and decrees were set aside and case was remanded to the Trial Court with the direction that application of the defendants filed under O.VII, R.11, C.P.C. be treated as a written statement.

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

----Preamble---Object of Civil Procedure Code---Code of Civil Procedure was primarily meant for streamlining and channelizing the smooth administration of justice---Technicalities contained in the various provisions of C.P.C. were enacted with the said object and compliance therewith was mandatory in case some vested right accrued to the opposite party due to the negligent and wilful omission of the party at fault or compliance with the same became essential for securing the ends of justice or on the ground of public policy---Provisions of C.P.C. were not to be used as thwarting/checking devices by stifling the process of justice itself.

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

Amir Hussain for Petitioners.

Nemo for Respondent.

Date of hearing: 27th June, 2006.

2007 C L C 409

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, Judges

SHAH ALAM----Petitioner

Versus

ASADULLAH and another----Respondents

Revision Petition No.57 of 2002, decided on 17th August, 2006.

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

----S. 115 & O.XVI, R.1---Revision---Conversion of revision into writ petition---Application under O.XVI, Rule 1, C.P.C. refused by 'Trial Court---Revision dismissed by first appellate court---Second revision petition before Chief Court---Competency---Second revision petition was not competent for the reason that District Judge had concurrent jurisdiction with Chief Court under section 115, C.P.C. to entertain revision petition, subject to pecuniary jurisdiction of District Court---Petitioner had already exhausted revisional jurisdiction of District Court hence second revision before High Court was not maintainable---Only way out, however, was to convert the revision into a writ petition---Conversion of proceeding of one kind into another lay within the discretion of Court---If Chief Court was satisfied that circumstances of the case justified conversion of second revision into writ petition, there was no legal bar against such conversion.

1992 CLC 232; PLD 1982 Lah. 690; 1988 CLC 387; 1986 CLC 1813; 1983 CLC 2098; 1991 SCMR 1135; 1970 SCMR 44; PLD 1972 Lah. 187; 1991 SCMR 1135; 1994 SCMR 771; 1991 CLCN 1991 page 101; P.1979 N 45; PLD 1978 Lah. 723 and PLD 1982 SC 234 ref.

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

----O. XVI, R. I & S.115---Revision---Summoning and attendance of witnesses---Petitioner/plaintiff had undertaken to produce his evidence on his own responsibility but was otherwise unable to compel witnesses to attend---Subsequently application of petitioner for issuance of summons to witnesses through Court, being barred by proviso to O.XVI, R.1, C.P.C. was refused---Validity---Application under Order XVI, Rule 1, C.P.C., submitted before court, at a belated stage, may be refused if it apparently seems to be mala fide, frivolous or vexatious and no good cause had been given in it, otherwise application might be granted even though petitioner had initially undertaken to produce witnesses on his own---Facts of the case showed that petitioner had initially taken responsibility to produce his witnesses and after getting several adjournments, in that regard, had moved application to issue summons by court to the witnesses with contention that witnesses had refused him to attend the court at his instance---Admittedly witnesses were well known Ulmas having very high status in the society and it seemed impossible for petitioner to force then to attend the court---Cause shown by petitioner in the application under O.XVI, R.1, C.P.C. seemed to be a good cause hence application was neither vexatious nor mala fide---Courts below failed to grant the application under Order XVI Rule 1, C.P.C. in accordance with settled law, therefore, impugned judgments and decrees were set aside by the Chief Court and case was remanded.

1994 MLD 779; PLD 1973 SC 45; 1980 SCMR 557 and 1994 CLC 1920 ref.

Muhammad Shafi for Petitioner.

Shafqat Wali for Respondents.

Date of hearing: 17th August, 2006.

2007 C L C 419

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHERZADA and others----Petitioners

Versus

MIR MUHAMMAD and another----Respondents

Civil Revision No.937 of 2005, decided on 10th November, 2006.

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---Plaintiffs who claimed to be owners in possession of suit property which they had inherited from original owner, had to prove their case from their own evidence and they could not be benefited from the weaknesses in the defendant's ease---Plaintiffs had produced five witnesses in support of their claim, but evidence led by them was discrepant and insufficient to lead to conclusion that they were actually successors-in-interest of original owner of suit property---Both Courts below disbelieved the version of plaintiffs for valid and sound reasons, which were not open to legitimate exception---Plaintiffs could not point out any misreading or non-reading of evidence by the courts below---Mere assertion of plaintiff that impugned judgments and decrees suffered from acute misreading and non-reading of evidence, without any positive attempt to substantiate same, was of no consequence---Concurrent finding of fact recorded by two courts below, could not be upset by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless two Courts below while recording the finding of fact had either misread the evidence or ignored any material piece of evidence on record or the finding of fact recorded by the two courts below was perverse to the evidence on record; it only lay on the ground of error of law or error in procedure, which could have affected the decision of the case upon merits.

Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 rel.

Safeerullah Khan for Petitioners.

Shamoon Ahmad Bajwa for Respondents.

Date of hearing: 10th November, 2006.

2007 C L C 424

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SAID ALEEM JAN----Petitioner

Versus

PESCO (WAPDA) through Chairman and others----Respondents

Civil Revision No.1462 of 2005, decided on 24th November, 2006.

Electricity Act (IX of 1910)---

----Ss. 24 & 26---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.XLI, R.31---Suit for declaration---Payment of amount in excess of electricity consumed and disconnection of electricity supply from the premises---Plaintiff/consumer instituted suit against defendant company for a declaration to the effect that defendant had no justification to call upon plaintiff to pay amount in excess of the electricity consumed; Or disconnect the electricity supply from his premises and that defendant was bound to send revised and correct electricity bill to the plaintiff after deducting excess amount---Plaintiff also prayed for recovery of amount as damages---Trial Court decreed suit, but Appellate Court set aside judgment and decree passed by the Trial Court---Validity---Judgment rendered by the Trial Court, was not maintainable, because as compared to judgment of Appellate Court, it suffered from grave legal errors, which had been rectified by Appellate Court by reversing findings of the Trial Court and substituting its own findings, which were supported by the reasons---Impugned judgment, was neither contrary to the evidence on record nor in violation of principles of administration of justice---Record showed that on a number of occasions, plaintiff was caught red handed stealing the electricity through hooks and direct connection from the main pole---Appellate Court had given its findings on all the points of controversy and no prejudice seemed to have been caused to plaintiff---Giving issue-wise findings by Appellate Court, was not the requirement of law as under O.XLI, R,31, C.P.C., Appellate Court was to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned---In absence of any infirmity in the impugned judgment, same could not be interfered with by High Court in exercise of its revisional jurisdiction.

Umer Din v. Ghazanfar and 2 others 1991 SCMR 1868 and Mst. Husan Bano v. Faiz Muhammad and another 2000 CLC 709 ref.

Asadullah Jan for Petitioner.

Naveed Akhtar for Respondents.

Date of hearing: 24th November, 2006.

2007 C L C 441

[Northern Areas Chief Court]

Before Muzaffar Ali, J

DILSHAD ALI and others----Appellants

Versus

AHMED KHAN and another----Respondents

CC.C.S.A. 21 of 2002, decided on 17th,July, 2005.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17 & O.XIII, R.2---Amendment of pleadings sought on basis of subsequent development in respect of subject-matter of suit---Respondent, during pendency of appeal, without complying the procedure laid down in O.XIII, R.2, C.P.C. produced documentary evidence which was placed by District Judge on the file in violation of law-Appellant filed application for amendment in plaint to meet the new situation and to challenge authenticity of said documentary evidence---Application of plaintiff was declined on ground that it had been moved at a very late stage and its grant would amount to introduction of new cause---Validity---Delay alone in seeking amendment of the plaint was no ground to refuse amendment application---Amendment in pleadings could be sought at any stage of the proceedings and the expression "at any stage of proceedings" used in O.VI, R.17, C.P.C. had to be liberally construed---Amendment in pleadings could be ordered .even up to the stage of Supreme Court---Courts were further required in law to allow all such amendments that might be necessary for the purpose of determining the real question in controversy---If any development took place during pendency of proceedings, court would not overlook such development and that too when it was material for the purposes of deciding controversy between parties---Reasonings of District Judge dismissing the amendment applications being not in accordance with law, were not sustainable---Chief Court accepted appeal with costs directing appellant to file proposed amended plaint before District Judge within specified time.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Mst. Mumtaz Begum and 8 others v. Province of Sindh 2004 CLC 697 ref.

Syed Tahir Ali Shah for Appellants.

Muhammad Issa for Respondents.

Date of hearing: 17th July, 2005.

2007 C L C 446

[Peshawar]

Before Dost Muhammad Khan, J

SHARAFAT KHAN and others----Petitioners

Versus

AMIR ALI and others----Respondents

Civil Revision No.619 of 2003, decided on 12th January, 2007.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration and permanent injunction---Suit had concurrently been dismissed by the courts below---Claim of defendants was that they were owners of suit-land which they had inherited from their forefather; and that alleged sale-deed from them in favour of plaintiffs was wrong and ineffective upon their rights---Validity---Plaintiffs under the sale-deed were in possession of suit-land since long without any break---Possession of plaintiffs had been established because of reports of two local commissioners---Possession under law by itself would speak in favour of ownership and even if it was under an unregistered deed, same would serve as a strong valid defence---Concurrent findings of two, courts below on question of facts and law, were not susceptible to any interference, within limited revisional jurisdiction of High Court.

Kanwal Nain's case PLD 1983 SC 53 rel.

Fida Gul Khan for Petitioners.

Muhammad Shahabuddin Khan for Respondents.

Date of hearing; 12th January, 2007.

2007 C L C 489

[Peshawar]

Before Salim Khan, J

Syed ZAHID BUKHARI----Petitioner

Versus

SIKANDAR SHAH----Respondent

Civil Revision No.850 and C.M. No.907 of 2006, decided on 18th August, 2006.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit for pre-emption was concurrently decreed by the Courts below---Validity---Defendant had admitted that plaintiff had superior right of pre-emption--Statement of Patwari Halqa regarding market value of suit-land on basis of average of sale consideration, was sufficient evidence according to which market value of the suit property was Rs.1,11,805.52---Defendant did not produce any other reliable evidence regarding any other amount---Counsel for defendant had contended that suit property was purchased by him for construction of Mosque, but said contention had not been proved by any cogent evidence---Date, time and name of informer was mentioned in the notice of Talb-e-Muwathibat as well, though it was not necessary to give other details of Talb-e-Muwathibat, except its declaration on a certain day or date from which period upto sending of notice could be counted---Notice in question was proved to have been sent by the counsel for the plaintiff who was his duly authorized agent and it was not necessary that plaintiff must personally send the notice---Concurrent judgments and decrees were maintained in circumstances.

H. Subhanullah for Petitioner.

Nemo for Respondent.

Date of hearing: 18th August, 2006.

2007 C L C 494

[Peshawar]

Before Salim Khan, J

SAHIBZADA and others----Petitioners

Versus

ABDUL LATIF and others----Respondents

Civil Revision No.753 and C.M. No.833 of 2006, decided on 18th August, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs filed suit for declaration to the effect that father of defendant gave 1/4th share of land to father of plaintiff's as owner for improving remaining land, which was improved and they built houses oh suit-land---Plaintiffs also challenged mutation in favour of one defendant by other two defendants---Both Courts below had dismissed suit---Validity---Circumstances of the case had shown that suit-land was given to predecessor of plaintiffs on lease for improving same, but he did not improve the land---Ownership of 1/4th of the suit property was never transferred to the father of plaintiffs and he was a mere tenant-at-will, but he did not fully comply the instructions except to construct rooms on the land, within the terms of the tenancy---Father of the plaintiff was found to have- constructed rooms and improved the land---Plaintiffs claimed adverse title against defendants, but they could not prove their title to the suit property---No defect was found in the impugned judgments and decrees of original court and Appellate Court---Revision was dismissed, in circumstances.

Shakil Ahmad for Petitioners.

Nemo for Respondents.

Date of hearing: 18th August, 2006.

2007 C L C 500

[Peshawar]

Before Muhammad Raza Khan, J

FIRDOS SHAH----Applicant

Versus

Mst. MEMOONA BIBI----Respondent

Civil Revision No.23 of 2003, decided on 12th December, 2006.

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

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Predecessor of plaintiffs executed power-of-attorney in favour of his brother, predecessor of defendants for purpose of management and disposal of his property---Predecessor of defendants by exercise of power of attorney, transferred property of his brother to his own wife in lieu of her dower vide registered deed---Plaintiffs being legal representatives of deceased owner of property, instituted suit for declaration to the effect that they were owners of property belonging to their predecessor and that registered transfer deed in respect of said property by defendants was wrong, fraudulent and illegal and was ineffective on their rights---Plaintiffs also prayed for perpetual injunction---Suit was concurrently decreed by the Trial Court and Appellate Court---Validity---Both Courts below had properly appreciated evidence and rightly applied law and particularly judgment of Appellate Court, was comprehensive and speaking one---Findings of the Courts below, could not be interfered with in revision by High Court.

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

----Ss. 188, 214 & 215---Power of attorney---Scope---Execution of power-of-attorney, neither would amount to be divesting the principal of the authority over the subject-matter nor would it amount to absolute right of the attorney over the property as its owner--Attorney had to act as an agent of principal and he had to account for all the transactions and it was not sufficient to prove that attorney had the authority to enter into a transaction, but in addition thereto, he was duty bound to explain that he had rendered true accounts of the transaction to the principal---If the attorney entered into a bargain of sale, he received the consideration on behalf of the principal, which had to be refunded to him and in case of an exchange, he had to explain the true value of the property received and that given in exchange---Transaction of lease and mortgage, should also be for the benefit of the principal---Attorney had to take the principal in confidence before converting the property of the principal on the force of the power-of-attorney into personal or for the benefit of his near relatives---If the property of the principal was transferred against petty amount and there was no proof that said amount was ever transferred by the attorney to the principal the transaction would suffer from inherent defect of being contrary to law and authority of the attorney.

Muhammad Youths Khan Tanoli for Petitioner.

Muhammad Asif Khan and Shujat Ali for Respondent.

Date of hearing: 12th December, 2006.

2007 C L C 507

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SIRANJAM KHAN----Petitioner

Versus

AQAL DIN and others----Respondents

Civil Revision No.419 of 2005, decided on 30th November, 2006.

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

----S. 42---Suit for declaration---Suit for declaration to the effect that plaintiff had become owner of suit-land by prescription i.e. mortgagee in possession for more than 60 years and no subsisting mortgage existed; and that entries in the Revenue Record, contrary to it were illegal, void and ineffective on the rights of the plaintiff---Suit-land was mortgaged with a non-muslim and out of total mortgaged property, share to the extent of 1/2 and later on 1/6 share was redeemed vide mutations, whereas remaining property to the extent of 1/3 share, still stood mortgaged with non-muslim mortgagee at the time of partition of Sub-Continent---Land in question was subsequently transferred in the name of Central Government and later on sale of mortgage rights were transferred to plaintiff through auction---Plaintiff had to prove his case from his own evidence and could not benefit from witnesses in defendant's case---Whoever desired any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserted, must prove that those facts existed---Plaintiff had not been able to prove by cogent and independent evidence his claim---Trial Court as well as Appellate Court below, adverting to .every aspect of the case, rightly decided the issue agitated and rendered reasoned judgments which were not open to exception---Both courts below had given exhaustive judgments after due appraisal of evidence on the file and after iscussing all the pros and cons of the case---Conclusion of fact arrived at concurrently by both the courts below, was not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence had been pointed out---Court below having rightly resolved controversy involved on the basis of the evidence on record such concurrent findings of fact recorded by the courts of competent jurisdiction, could not be differed from and unsettled.

Zarif Khan and others v. Muhammad and others PLD 1983 Pesh. 58; Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524; Kata Mir and others v. Mst. Sho Begum and others 2003 SCMR 589; Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92; Samar Gul v. Central Government and others PLD 1986 SC 35 and Faqir Gul and others v. Abdur Rehman and others 1999 CLC 346 rel.

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

---S. 115---Revisional jurisdiction---Scope of S.115, C.P.C. being limited, High Court could not interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two courts below, unless it found misreading and non-reading of evidence therein.

Haji Muhammad Zahir Shah for Petitioner.

Lal Jan Khattak for Respondents.

Date of hearing: 2nd October, 2006.

2007 C L C 513

[Peshawar]

Before Muhammad Raza Khan, J

NOOR RAHMAN----Petitioner

Versus

NATIONAL BOOK FOUNDATION and others----Respondents

Civil Revision No.451 of 1999, decided on 21st November, 2006.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession---Plaintiff was successful bidder of shop in question which he had obtained through public auction and possession was delivered to him after deposit of entire amount due from him to the Cantonment Board---Plaintiff was using shop in question and was paying dues to Cantonment Board, but defendant (Government department) by misusing powers forcefully took possession of said shop by breaking open the locks and damaging personal belongings of plaintiff---Said action of defendant was without due process of law, which amounted to highhandedness and misuse of authority of the functionaries of State against a citizen and his property---Suit for possession filed by plaintiff for possession of shop and recovery of rent having been paid by plaintiff to Cantonment Board, was decreed by the Trial Court, but claim of plaintiff for market rent and demand for recovery of damages, was dismissed---Appellate court, however reversed the findings of the trial court and decree of Rs. One lac was passed against defendant, whereas remaining plea of plaintiff with regard to enhanced rent was declined by appellate court---Validity---Damage of Rs.one lac, would not be sufficient compensation to plaintiff---Rent paid by plaintiff to Cantonment Board as a result of being a successful bidder and after paying a considerable amount of premium was certainly not the market rent, but was less than market value---Rent that had been decreed in favour of plaintiff was not the prevailing market rent---Sufficient evidence was available on record indicating rent up to Rs.9,000 p.m., but since plaintiff himself claimed rent at the rate of Rs.4,000 p.m., with effect from dale of his forceful dispossession, amount over and above said claim could not be allowed---Findings of both courts with regard to determination of payable rent was modified by High Court and plaintiff was held entitled to a sum of Rs.4,000 p.m. as rent of shop with effect from date of dispossession till its vacation.

Muhammad Alam for Petitioner.

Syed Asif Shah for Respondent and Muqarab Khan for D.C.O., Mardan.

Date of hearing: 21st November, 2006.

2007 C L C 525

[Chief Court Northern Areas]

Before Muzaffar Ali, J

SADIQ and 4 others----Appellants

Versus

MUHAMMAD HUSSAIN and 2 others----Respondents

Civil 1st Appeal No.2 of 2005, decided on 13th May, 2006.

Land Acquisition Act (I of 1894)---

---- Ss. 18, 30 & 53---Civil Procedure Code (V of 1908), O.XXIII, R.1 & O.I, R.10---Withdrawal of petition by petitioner---Power of Court to decline application for withdrawal---Transposition of parties---Petitioners challenged the award and claimed that they being the owners of land acquired, were entitled to compensation under impugned award---Claim was decreed and petitioners showing extra vigilance received compensation amount from Collector before lapse of statutory period of limitation of appeal against the decree---Decree was reversed later on and petitioners contested first and second rounds of appeals without disclosing the fact of receiving compensation amount---When petition under Ss.18 & 30 of Land Acquisition Act, 1894 was fixed for final arguments petitioners sought permission for unconditional withdrawal of petition which was refused---Validity---Though under O.XXIII, R.1, C.P.C. a plaintiff, petitioner or an appellant has the right to withdraw the suit, petition or an appeal, if he is not seeking permission to file the same afresh but court of law has power to disallow mala fide application filed with ulterior motives as in the present case---Record revealed that petitioners received compensation amount prior to the final disposal of dispute of entitlement of parties to the compensation amount---Such fraudulent and mala fide conduct of petitioners called the court to disallow withdrawal of application---Chief Court invoking powers under O.1, R.10, C.P.C. transposed the respondents to the original petition under Ss.18 & 30, Land Acquisition Act, 1894 as petitioners and petitioners as respondents for the purpose of relief in petition---Contention that such transposition of parties in a reference was not within the ambit of power of Chief Court had no force because section 53 of Land Acquisition Act, 1894 did not exclude the application of C.P.C. to the proceedings before the Referee Court unless any provision of C.P.C. would be inconsistent with provisions of Laud Acquisition Act, 1894---Case was remanded to Referee Court for adjudication on merits.

PLD 1988 Kar. 560 rel.

1963 Kr. LJ 724 ref.

Ghulam Haider for Appellants.

Ghulam Nabi for Respondents.

Date of hearing: 12th May, 2006.

2007 C L C 542

[Peshawar]

Before Talaat Qayyum Qureshi, J

Mian BAHADUR SHAH----Petitioner

Versus

SAID AFZAL-Respondent

Civil Revision No.253 of 2004, decided on 1st December, 2006.

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

----Ss. 13 & 17---Civil Procedure Code (V of 1908), S.115---Execution of ejectment order---Objection to-Ejectment order passed by Rent Controller having been upheld up to Supreme Court, petitioner filed execution petition in executing court---Respondent, during pendency of execution proceedings, filed objection petition, which was dismissed by executing court, but Appellate Court, on appeal set aside the order of executing court---Respondent, against whom ejectment order was finally passed, was liable to hand over vacant possession to petitioner as per his statement given before Supreme Court, but instead of doing the needful, respondent handed over possession of suit premises to the objector; which act of respondent was not only illegal, but was also contemptuous as it was against statement given by him before Supreme Court---Objection petition on the face of it was based on mala fide and was collusive which was rightly dismissed by executing court, but Appellate Court had failed to appreciate the position---Revision petition was allowed and impugned order/judgment passed by Appellate Court, was set aside---Order passed by executing court was restored.

1995 SCMR 726; 2003 SCMR 1416; 1986 SCMR 1638; 1986 MLD 2997; 1999 CLC 374; 1991 MLD 1216; 2001 MLD 1621; 2003 CLC 10; 1990 MLD 2217 and 2003 SCMR 181 rel.

Gul Sadbar for Petitioner.

M. Ijaz Khan and Zia-ur-Rehman for Respondent.

Date of hearing: 1st December, 2006.

2007 C L C 549

[Chief Court Northern Areas]

Before Muzaffar Ali, J

MIR NABI----Petitioner

Versus

TARIQ WALI and 2 others----Respondents

Civil Revision No.14 of 2005, decided on 6th December, 2005.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr.1 & 2---Production of documentary evidence---Pre­emption suit---Contention that suit-land being within the Municipal area was exempted from pre-emption, was repelled without framing any issue

in this regard---Application for production of some public documents was dismissed holding that documents under application were meant to challenge the maintainability of suit whereas suit had been declared as to be maintainable by the Court already---Validity---Public documents which were not in possession of person who wanted to produce the same at a belated stage, could not be disallowed merely because documents related to a point which had been decided already by the court---Material issues were yet to he proved and court ought to have given its findings on such issues after scrutinizing the evidence relied upon by parties to suit---Court below, therefore, committed material irregularity of jurisdiction by concluding before final disposal of suit that production of documents under application might be a useless and futile practice---Point of maintainability of the suit as decided by Trial Court though not challenged through an appeal or revision, had not attained finality and such finding could have been agitated before next higher forum after final decision in suit by Trial Court---Civil Judge himself might have reviewed his interim findings at the time of final decision of suit, if better or more authentic documentary/oral evidence was produced---Chief Court accepted application under O.XIII, Rr.1 & 2, C.P.C. and case was remitted to Trial Court to proceed with the suit in accordance with law.

PLJ 2003 SC 82.5 ref.

Ali Nazar for Petitioner.

Sher Madad for Respondents.

Date of hearing: 6th December, 2005.

2007 C L C 556

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD ZAHIR----Appellant

Versus

Mst. HUSSAN ZARI----Respondent

F.A.O. No.46 61 2005, decided on 6th July, 2006.

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

----Ss. 7, 17(9) & 24---Application for determination of fair rent---Non­compliance of tentative rent order---Striking off defence---Rent Controller passed order directing tenant to deposit monthly rent at rate of Rs.1,150 by the 5th of each month---Tenant having failed to deposit rent according to said order on 5th of the month, Rent Controller struck off defence of tenant and directed him to put landlady in possession of the shop in question within fifteen days---Tenant had not been able to bring on record to show that default in payment of rent according to tentative rent order, was unavoidable, unintentional and beyond his control---Subsection (9) of S.17 of Cantonments Rent Restriction Act, 1963, provided that if tenant would fail to deposit amount of rent before specified date, or, as the case may be before 5th of the month, his defence would be struck off---Said provisions of law were mandatory in nature and even one day's delay in making the deposit would be `default' within the meaning of Cantonments Rent Restriction Act, 1963 and Rent Controller had no power to extend such time and condone the delay ---Appeal against judgment of Rent Controller, was dismissed with direction to vacate shop in question within one month.

S.M. Younas Rizvi through L.Rs. v. Afzal Qureshi 1996 CLC 368 and Misbahullah Khan v. Mst. Mamoona Taskeenuddin 1995 SCMR 287 rel.

Abdul Qadir Khattak for Appellants.

Muhammad Alam for Respondent.

Date of hearing: 16th June, 2006.

2007 C L C 561

[Court of Appeals Northern Areas]

Before Justice Qazi Ehsanullah Qureshi, Chairman, Justices Altaf Hussain and Syed Tahir Ali Shah, Members

MUHAMMAD SHARIF----Appellant

Versus

AFTAB HAIDER and 12 others ----Respondents

Civil Appeal No.22 of 2006, decided on 5th September, 2006.

Northern Areas Court of Appeals (Establishment) Order, 1999---

----Art. 9---Election for NALC's scat---Close of poll---Petitioner was the highest scorer according to initial results prepared by Presiding Officer---Such result was not officially declared by Returning Officer instead he opted to record ballot papers with the result that 619 votes polled in favour of petitioner were excluded on plea that no official mark (Codal mark) was affixed on the back of ballot papers by concerned Polling Officers, resultantly, respondent was declared as returned candidate vide notification---Petitioner filed election petition before Election Tribunal contending that 619 voters of five Polling Stations were deprived of their right to elect representatives of their own choice and that candidate as well as voters could not be made to suffer because of any mistake or irregularity on the part of polling staff---Appellant, another contesting candidate also filed an election petition wherein whole of election was impugned---During proceedings of election petition respondent submitted his resignation which was accepted by competent authority---Election Tribunal thereafter declared petitioner as returned candidate being runner up for the seat of NALC---Tribunal's judgment was impugned before Chief Court---Appeal to the extent of declaration of petitioner as returned candidate was dismissed and to the extent of dismissal of appellant's election petition by Election Tribunal was accepted hence leave to appeal---Appeal against Chief Court judgment having been filed almost after lapse of one year was time-barred---Codal mark on the back of ballot papers was neither incorporated in the law nor in Northern Areas Council Election Rules, 1975---Condition of codal mark did exist under S.33, Northern Areas Council Election Order, 1975---Requirement so given in section 33(1) with regard to codal mark was only applicable to local government elections and never appeared in Council Election---Official mark required for the purpose was very much available on the back of ballot papers in question---Appellant failed to convince that official stamp and codal mark both were mandatory to be affixed on ballot papers---So far as the instruction in Hand Book of Polling Staff was concerned it could not override the law and legislation made by competent body---Provision of consolidation of result did not permit Returning Officer to recount and exclude ballot papers in the manner he had done which was in violation of law and Rules---Returning Officer when appeared before court stated that he was untrained and that he just obeyed the orders of District Returning Officer while excluding the votes under dispute which showed that he had not applied his mind judiciously therefore Election authorities were very much responsible for mishandling the process of election from start to end---Authorities were directed to appoint trained staff well-versed with election process/rules/procedure and law, in future---Election petition filed by the petitioner which was pending disposal was ordered to continue for decision after recording of evidence etc. and affording of opportunities to both the parties as directed by the Chief Court.

PLD 1980 Lah. 311 and PLD 1968 Kar. 397 Distinguished.

PLD 1966 Kar. 436; PLD 1971 Lah. 737 and PLD 1986 SC 178 ref.

Mirza Ali for Appellant.

Muhammad Issa assisted by Sharif Ahmed for Respondent No.1.

Advocate-General for Respondents Nos.2 to 9.

2007 C L C 671

[Election Tribunal, N.-W.F.P.]

Before Justice Hamid Farooq Durrani, Election Tribunal

MUHAMMAD TARIQ KHAN SWATI----Petitioner

Versus

SHUJAH SALAM KHAN and 7 others----Respondents

Election Petition No.148 of 2002, decided on 28th November, 2006.

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

----Ss. 52, 55(3), 63 & 83---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition-Dismissal of---Verification of pleading---Election petition though was signed by petitioner and one of his counsel, but it did not bear the requisite verification in terms of R.15 of O.VI, C.P.C.---Person signing the verification did not mention the place of signing the same---Petitioner did not file a list of witnesses including the gist of their respective statements at the time of filing of the petition---Annexures filed with the petition, were also not verified as required by the provisions of S.55(3) of Representation of the People Act, 1976---Petitioner also remained at loss in not impleading Election Commission/Member Election Commission as a respondent though all the grounds taken in the petition related directly to the delimitation carried out by Election Commission---Petition, as a whole, did not depict any cause of action against respondents therein---Provisions, as contained in S.55 of Representation of the People Act, 1976, had not been complied with in totality---Grounds in Election Petition, did not divulge any extensive corrupt or illegal practice or illegal acts against any of the respondents including the returned candidate nor same indicated that the result of election was materially affected by reason of the failure of any person to comply with the provisions of Representation of the People Act, 1976 or the Rules---Said grounds, in circumstances were inadequate to warrant the declaring of impugned election void as a whole---Where non-compliance of certain provisions of law was followed by express penal consequences, said provisions were mandatory in nature---No choice would be available for the Tribunal except to dismiss the petition as non-compliance of the provision of S.55 of Representation of the People Act, 1976 would entail dismissal of Election Petition as a natural corollary, under S.63 of the Act---Election petition suffering from infirmities and defects attracting its failure, was dismissed.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; PLJ 1975 Pesh. 144; 1991 CLC 175; 1997 CLC 1132/1724; 1998 CLC 83; PLD 1971 SC 61/71; PLD 2002 Pesh. 34/50; PLD 1967 SC 486; 1995 CLC 156; 1991 CLC 175; 1994 MLD 2293; S.M. Ayub's case PLD 1967 SC 486 and Maulana Noor-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

(b) Interpretation of statutes---

----Mandatory provision of law---Determination---Where non-compliance of certain provision of law was followed by express penal consequences said provision was mandatory in nature.

Abdul Latif for Petitioner.

Syed Sajjad Shah for Respondents.

Date of hearing: 13th November, 2006.

2007 C L C 714

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHAH WAZIR KHAN----Petitioner

Versus

TAHOORUL ISLAM and others----Respondents

Civil Revision No.352 of 2005, decided on 20th November, 2006.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Trial Court dismissed suit holding that plaintiff had not been able to substantiate his claim by producing cogent and convincing evidence---Appellate Court, however, set aside judgment and decree passed by the Trial Court and decreed suit as prayed for by the plaintiff---Validity---Sufficient material was available on record to substantiate claim of plaintiff which had not been properly appreciated by the Trial Court and was put on the shelf without any justification---Suit land was `Shamilat-e-Deh' and plaintiff and one of the defendants were co-owners---Other defendant, in circumstances had no justification to construct water channel in dispute without consent and permission of plaintiff---Judgment of the Trial Court which had rightly been upset by the Appellate Court, could not be restored as defendant had not been able to show that reasoning given by the Trial Court on the basis of evidence on record were well founded and were weighty than that of the court of appeal; and that the court of appeal without considering the material, recorded impugned judgment in a mechanical manner without application of independent judicious mind, which had resulted in failure of justice---Judgment of the Trial Court which suffered from grave legal error, was rightly rectified by Appellate Court below by substituting its own findings.

Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325 and Mst. Bhag Bhari and others v. Mst. Ghagan and another PLD 1954 Lah. 356 rel.

Lal Jan Khattak for Petitioner.

Shakeel Azam Awan for Respondent No. 1.

Date of hearing: 20th November, 2006.

2007 C L C 743

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Mst. PARVEEN BIBI----Petitioner

Versus

RAEES KHAN----Respondent

Civil Revision No.1398 of 2005, decided on 1st December, 2006.

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

----S. 115 & O. VII, R.2---Suit for recovery of amount---Suit having concurrently been decreed by the Trial Court and Appellate Court, defendant had filed revision against said concurrent judgments---Concurrent findings of facts recorded by the courts below were based on correct appreciation of evidence, which hardly called for interference of High Court in its revisional jurisdiction---Both Courts below had given exhaustive judgment after due appraisal of evidence on record and after discussing all the pros and cons of the case---No legal defect was found in impugned judgments which were in harmony with the evidence on record---Conclusion of fact arrived at concurrently by the lower courts, was not open to challenge in revision, particularly when no specific misreading or non-reading of evidence had been pointed out---Evidence on record had been properly appreciated and no prejudice seemed to have been caused to defendant---Appellate Court was alive to the legal situation and issue involved had been dealt with and decided in a careful manner---Appellate Court had given its finding on all the points of controversy---Revision against judgments of Courts below being bereft of merits, was dismissed, in circumstances.

Haji Sheikh Habibullah and others v. Messrs Muhammad Amin and another PLD 1965 (W.P.) Kar. 445; Muhammad Sharif Khan v. Mst. Ismat Bi and 4 others PLD .1982 SC (AJ&K) 76 and Mst. Sabira Begum v. Hakim Muhammad Akhtar and another 1993 MLD 955 rel.

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

----O. XLI, R.31---Judgment of appellate Court---Giving issuewise findings by the Appellate Court, was not the requirement of law as under O.XLI, R.31, C.P.C. appellate court was to state the points for determination, give its decision thereon and reason for said decision.

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

----S. 115---Revisional jurisdiction---Scope---Scope of S.115, C.P.C., being limited, High Court could not interfere in its revisional jurisdiction with the concurrent findings on a question of fact, rendered by the two courts below, unless it found misreading and non-reading of evidence therein.

Naqeebullah Khattak for Petitioner.

Hassan U.K. Afridi for Respondents.

Date of hearing: 13th October, 2006.

2007 C L C 829

[Peshawar]

Before Salim Khan, J

Mian SAID GHANI----Petitioner

Versus

TOOTI MIAN and others----Respondents

Civil Revision No.1347 of 2006, decided on 28th February, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 24(1)(5)---Suit for pre-emption---Non-deposit of 1/3rd of Zar-e-Shufa---Effect---Suit was concurrently dismissed by the Trial Court and Appellate Court on the ground that plaintiff had not deposited 1/3rd of "'Ragm-e-Zar-e-Shufa" within specified period---Plaintiff contended that he could not deposit said amount as words, `Asal-Zar-e-Shufa' were used in original order which had confused plaintiff and that act of the court should not prejudice the parties---Plaintiff had further contended that it was mandatory for the court to fix probable value of the suit property as the amount mentioned in the sale deed and in the plaint was different, and that order of dismissal of the suit without fixing the probable value was void ab initio---Validity---Counsel for plaintiff was duty bound to have informed plaintiff about the order to deposit 1/3rd of actual pre-emption amount---Plaintiff by himself was also present on date when order to deposit 1/3rd was passed---Plaintiff and his counsel were responsible to ascertain about the order of deposit of pre-emption amount---Nothing was on record to show that plaintiff or his counsel had ever requested the court to clarify said order of deposit or to request to issue an independent clear order if said order was not clear to plaintiff---Failure to deposit 1/3rd of pre-emption amount and making excuses for the same, were no good grounds.

1994 MLD 319 and 2000 CLC 1815 ref.

Mian Iqbal Hussain for Petitioner.

Nemo for Respondents.

Date of hearing: 28th February, 2007.

2007 C L C 857

[Peshawar]

Before Talaat Qayum Qureshi, J

Raja SULTAN ERAJ ZAMAN----Appellant

Versus

MILITARY ESTATE OFFICER, HAZARA CIRCLE ABBOTTABAD and 2 others----Respondents

Regular First Appeal No.26 of 2003, decided on 9th March, 2007.

Land Acquisition Act (I of 1894)---

---Ss. 18 & 23---Civil Procedure Code (V of 1908), O.XXVI, R.9---Acquisition of land---Compensation, determination of---Appointment of Commission to determine market value of acquired land---Land on main road side had lot of potential in terms of commercial as well as residential value---Two one year averages of sale of identical land lying on record and amount of compensation given in award were different from each other-Ascertainment of real market value of acquired land had become necessary in such case---Appointment of Local Commission was necessary to collect right opinion with regard to market value of acquired land after recording statements of independent persons including property dealers---After ascertainment of real market value, compensation of acquired land should have been fixed more than market price---High Court, remanded case to Referee Court with direction to ascertain market value of acquired land by using prescribed modes and then fix proper compensation.

Khalid Rehman Qureshi for Appellant.

Sardar Ghulam Mustafa for Respondent No.1.

Syed Amjad Ali Shah for Respondent No.2.

Date of hearing: 9th March, 2007.

2007 C L C 894

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

FAZAL HANAN----Plaintiff

Versus

MUKARAM JAN and others----Defendants

Civil Revision No.959 of 2005, decided on 2nd March, 2007.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of courts below could not be called in question through a revision petition, unless it was shown that the courts below either had no jurisdiction or failed to exercise jurisdiction vested in them or had committed some illegality and material irregularity, resulting in gross injustice while deciding the suit and the appeal---Fact that a different view of the evidence could be taken by the Courts below, was no ground for setting aside such findings in exercise of its revisional jurisdiction by the High court, unless said findings were shown to be perverse--Courts below while passing impugned judgments and decrees took account of every bit of evidence placed before them and were not shown to have overlooked any part of the record from their judicious consideration---Impugned judgments and decrees of the courts below could not be interfered with in revisional jurisdiction of High Court.

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

----S. 115---Revisional jurisdiction---Nature and scope---Revisional jurisdiction of High Court, was restricted and constructed---Such jurisdiction was not co-extensive with the powers of the Trial Court and Appellate Court which had to advert to all legal and factual controversies---Revisional court within the scheme and stance of S.115, C.P.C. had merely to sec whether there was failure to exercise jurisdiction vested in the court, or jurisdiction was exercised which was not so vested and there was no material illegality and irregularity.

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

----O. XXVI, Rr.1, 9 & S.115---Local Commissioner, appointment of---Scope---Discretion lay with the court, whether to appoint a Local Commissioner or not---Court was not bound to appoint Local Commissioner in cases where controversy could be resolved by producing. evidence of the parties, then spot inspection through Local Commission was not permissible---Court itself had to decide necessity of local investigation---Appointment of Local Commissioner was the prerogative of the court and local investigation through Local Commissioner could not be a substitute of legal evidence---Where both courts below had not thought it necessary to appoint a Local Commissioner, such orders were not open to legitimate exception in revision---Local Commissioner could not be appointed to fill in the lacuna---Petitioner could not seek appointment of Local Commissioner for his own convenience when he was not in a position to prove his plea through evidence.

Kishwar Bano and 2 others v. Metropolitan Corporation, Lahore through Administrator and another 2003 CLC 397 ref.

(d) Administration of justice---

----Plaintiff, in order to succeed had to stand on his own legs, it was for him to prove his case and he could not be benefited by the weaknesses, if any, of his adversary.

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

---S. 115---Revisional jurisdiction---Scope---Findings of the courts below were neither based on misreading or non-reading of evidence nor same suffered from any jurisdictional defect warranting interference by High Court in its revisional jurisdictions--Revision being bereft of substance, same was dismissed.

Said Tahar for Plaintiff.

Shamoon Ahmad Bajwa for Defendants.

Date of hearing: 2nd March, 2007.

2007 C L C 966

[Peshawar]

Before Salik Khan, J

NOSHAD MUHAMMAD----Petitioner

Versus

SADIQ HUSSAIN SHAH----Respondent

Civil Revision No.87 of 2004, decided on 9th April, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption---Trial Court dismissed suit by pre-emptor, but Appellate Court decreed the same---Pre-emptor who could not prove to be co-sharer in the suit property, had no right of pre-emption---Such legal position was not properly appreciated by two courts below---Merely to be a co-sharer in "Shamilaat" on the basis of previous ownership in Khasra number, would not give any right in respect of such Khasra number, which could entitle him to any right of ownership regarding said Khasra number--Pre-emptor, who was not owner in the suit Khasra number at the time of sale in question, having no right of pre-emption, decree granted in his favour by Appellate Court was the result of misreading of evidence---Impugned judgment and decree passed in favour of pre-emptor by Appellate Court, were set aside and suit was dismissed.

1997 CLC 809; 1987 CLC 101; 1980 SCMR 692; 2002 SCMR 235; 2006 CLC 1926; 2000 CLC 252 and 1999 SCMR 724 rel.

S. Sajad Hussain Shah and Qazi Jawad Ehsanullah Qureshi for Petitioner.

Nisar Hussain Khan for Respondent.

Date of hearing: 9th April, 2007.

2007 C L C 984

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

DIRECTOR-GENERAL FWO, RAWALPINDI CANTT and 4 others----Petitioners

Versus

SHOUKAT ALI and 8 others----Respondents

C.A. No.31 of 2006, decided on 28th November, 2006.

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

----Arts. 87, 117 & 118---Civil Procedure Code (V of 1908), O.VI, R.15---Suit for damages---Certified copies of documents---Burden of proof---Onus---Trial Court dismissed suit---First Appellate Court decreed the suit---Validity---Onus to prove issues regarding limitation and cause of action always lies on plaintiff but in the present case onus probandi was wrongly placed upon the defendant that is why no convincing evidence on either side was brought on record---Issue of limitation being an issue of mixed question of law and facts, could not have been decided unless sufficient material was available on the file---Copies of public documents produced by plaintiff having been attested by Magistrate 1st Class who apparently did not have the custody of original documents nor had the authority to attest the same, did not fulfil the qualifications enumerated in Article 87 of Qanun-e-Shahadat, 1984---Such documents hence were not admissible in evidence---Even verification of plaint was not proper and in conformability of O.VI, R.15, C.P.C.---Courts below failed to appreciate the points involved and to adopt proper procedure nor counsel for parties assisted the courts below properly---Case in circumstances was remanded to Civil Judge for de novo trial.

Malik Shafqat Wali for Petitioners.

Muhammad Issa for Respondents.

Date of hearing: 7th November, 2006.

2007 C L C 991

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NOOR ALI----Petitioner

Versus

Mst. FOLADAI and others----Respondents

Civil Revision No.1328 of 2006, decided on 16th January, 2007.

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

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), S.115 --Suit for declaration, permanent injunction and possession---Suit having concurrently been dismissed by the courts below, plaintiff had filed revision against said concurrent judgments and decrees---Validity---Plaintiff had to prove his case from his own evidence and could not benefit from the weaknesses of defendant's case---Whoever desired any court to give judgment as to any legal right or liability dependant on the existence of facts, which he asserted, must prove that those facts existed---Both courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect was in concurrent judgments which were in consonance with the evidence on the file---Judgments of courts below were neither tainted with any illegality or irregularity, nor were fanciful or arbitrary---In absence of any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect, concurrent judgments and decrees of the courts below, could not be interfered with by the High Court, in exercise of its revisional jurisdiction---Trial Court, in the present case, had exercised jurisdiction which was upheld by the Appellate Court below---High Court would seldom interfere in such matters, unless and until discretion was exercised arbitrarily.

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

----S. 115---Revisional jurisdiction---Exercise of---High Court had very limited jurisdiction to interfere in concurrent findings of the Courts below while exercising jurisdiction under S.115, C.P.C. unless and until judgments of the courts below were result of misreading or non-reading of evidence or decision of the case was in violation of parameters prescribed by the Superior Courts.

Abdul Latif Afridi for Petitioner.

2007 C L C 1013

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

H. SARFARAZ and others----Petitioners

Versus

ABDUL MANAN and others----Respondents

Civil Revision No.225 of 2002, decided on 13th October, 2006.

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

----S. 115---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Courts below concurrently decreed suit---Reasoning recorded by the courts were in consonance with the evidence on record and no prejudice seemed to have been caused to the petitioners---Counsel for petitioners had failed to point out any illegality by way of misreading and non-reading of evidence by the courts below---Trial Court as well as Appellate Court, had elaborately discussed every aspect of the case in detail, leaving no room for further consideration---Trial Court had taken pains to appraise evidence on record in a correct manner and neither misread nor omitted from consideration any material piece of evidence---Conclusions drawn by the Trial Court from the evidence/material on record were fully justified in the circumstance of the case and Appellate Court had valid reasons to affirm the same---Revision petition against concurrent judgments and decrees of the court below, was dismissed, in circumstances.

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

----S. 115---Revisional jurisdiction---Scope---Process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under S.115, C.P.C., was neither permissible nor warranted by law---Interference with a finding of fact of the courts below by the High Court in exercise of its revisional jurisdiction under S.115, C.P.C. could only be justified, if such finding was the result of perverse appreciation of evidence on record---Wrong or erroneous conclusion on a question of fact by the courts below, was not open to interference by the High Court in exercise of its jurisdiction under S.115, C.P.C.---High Court while examining a concurrent finding of fact recorded by the courts below in exercise of revisional jurisdiction under S.115, C.P.C., had to attend to the reasons given by them in support of such finding and misreading, non-reading or perverse application of evidence had to be discovered in their reasoning to justify interference in exercise of its revisional jurisdiction.

M. Ismail Khalil for Petitioners.

Sheikh Wazir Muhammad for Respondents.

Date of hearing: 13th October, 2006.

2007 C L C 1017(2)

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SAJJAD AHMAD----Petitioner

Versus

CANON HOW THOMAS----Respondent

Civil Revision No.614 of 2006, decided on 8th February, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Temporary injunction, grant of---Applicant along with suit for permanent injunction, had also filed application for grant of temporary injunction---Trial Court allowed said application and status quo was ordered to be maintained till final disposal of the case---Appellate Court, however set aside order of the Trial Court and status quo maintained by the Trial Court was withdrawn---Validity---Well known principles for grant or refusal of temporary injunction were; firstly, whether a prima facie good case had been made out; secondly whether balance of convenience lay in favour of grant of injunction; and thirdly, whether applicant would suffer irreparable loss, if injunction was refused---Applicant, in the present case, had been running the college canteen for the last 36 years without any complaint from any quarter; had been regularly paying rent without any default and shown to have invested substantial amount on running the canteen---Trial Court had given valid and cogent reasons for accepting the application and granting temporary injunction---Appellate Court, in circumstances, had no jurisdiction to take contrary view, accept appeal and reverse the order of the Trial Court---Appellate Court had not resorted to mandatory provisions of O.XXXIX, Rr.1 & 2, C.P.C. and dealt with the matter in a mechanical manner without application of judicial mind---Impugned order passed by Appellate Court was set aside by High Court and order passed by the Trial Court was restored.

Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Diamond Food Industries Limited v. Joseph Wolf Gmbh & Co. and another 2004 CLD 343 and United Bank Limited through Attorneys v. Messrs Aziz Tanneries (Pvt.) Ltd. through Chief Executive/Managing Director and 9 others 2004 CLD 1715 rel.

Tariq Javed for Petitioner.

Abdul Latif Afridi for Respondent.

Date of hearing: 16th January, 2007.

2007 C L C 1023

[Northern Areas Chief Court]

Before Sahib Khan, J

SAEED-UR-REHAJMAN ----Petitioner

Versus

NATIONAL BANK OF PAKISTAN MAIN BRANCH GILGIT through Manager----Respondent

Civil Revision No.16 of 2006, decided on 15th December, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2 & S.115---Suit for recovery of amount on basis of promissory note---Leave to defend suit was, unconditionally allowed and defendant was required to submit written statement---Date fixed for filing of written statement was adjourned by the Reader of Court as Judge was busy in other cases---On the date fixed defendant made a request for adjournment which was refused---Defendant was debarred by Trial Court to file petition for leave to defend suit and claim of plaintiff was decreed---Revision to Chief Court---Maintainability---Under law once Trial Court had allowed the defendant to defend and also granted time for filing of written statement then it could not have recalled the order allowing leave, without request of the parties or any notice to the affected party---Order of Trial Court was passed on no material and ex facie appeared to be reversed therefore Chief Court had jurisdiction under S.115, C.P.C. and revision was maintainable.

1992 SCMR 719; 1990 CLC 301 and 1989 CLC 2212 ref.

Atiq-ur-Rehman for petitioner.

Muhammad Hussain for Respondent.

2007 C L C 1028

[Peshawar]

Before Salim Khan, J

MANZOOR AHMAD and another----Petitioners

Versus

KHAN MUHAMMAD and 35 others--Respondents

Civil Revision No.24 of 2007, decided on 25th January, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Specific Relief Act (I of 1877), S.8---Suit for possession---Additional evidence---Production of---Suit was dismissed by the Trial Court---Plaintiffs during pendency of appeal, filed application for referring one of the plaintiffs and five defendants to Medical Board for DNA Test to ascertain whether said plaintiff was the son of deceased owner of the property in dispute---Appellate Court found that application filed by plaintiffs for referring said persons to Medical Board for DNA Test, amounted to request for additional evidence, but neither plaintiffs had made such request to the original court nor there was any reason or substantial cause to allow their said application---Appellate Court had further found that, if said application was allowed that would amount to fill up lacunae left by them in their case---Validity---Appellate Court had come to correct conclusion in the light of law as contained in O.XLI, R.27, C.P.C.---Application for additional evidence, like the request for DNA test, was not submitted to the original court from whose decree the appeal was preferred; and Appellate Court did not require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause---Appellate ,Court was of the view that DNA test was not needed---Permission for production of such evidence could be granted only when Appellate Court had sufficient reasons to require it---Sufficient evidence being available on record for the pronouncement of judgment by Appellate Court and no other substantial cause being available for requiring the recording of additional evidence, it was the duty of the parties to prove their cases and a court of law was not expected to favour one or the other party by allowing the production of additional evidence in order to fill up a lacuna.

Shakeel Azam Awan for Petitioners.

Nemo for Respondents.

Date of hearing: 25th January, 2007.

2007 C L C 1035

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

MUHAMMAD HANIF----Appellant

Versus

ELECTION COMMISSIONER N.As. and others----Respondents

C.A. No.14 of 2006, decided on 29th May, 2006.

(a) Northern Areas Local Government Election Rules, 1979---

----R. 48---Election petition would lie only against a declaration made under Rule 48 of Northern Areas Local Government Election Rules, 1979 and not against a Notification.

(b) Northern Areas Local Government Election Rules, 1979---

----R. 55(2)---Election petition---Limitation---Provisions of Rule 55(2) of Northern Areas Local Government Election Rules, 1979 provided that petitioner should file his election petition within 30 days of the declaration made under the umbrella of Rule 48 of the Rules---Petitioner, in the present case, had filed his election petition before Election Tribunal after 46 days from the date of declaration of result---Election Rules having not recognized application of any provision of the Limitation Act, 1908, petition on the face of it was barred by the time scheduled by Rule 55(2) of Northern Areas Local Government Elections Rules, 1979.

(c) Northern Areas Local Government Election Rules, 1979---

---Rr. 48 & 55---Corrigendum after declaration---Withdrawal of election .petition on basis of corrigendum issued by Election Commissioner---Validity---Issuance of corrigendum by Election Commissioner after the declaration of election result and when matter was sub judice before Election Tribunal, was not warranted by law---Election Tribunal had no jurisdiction to allow withdrawal of petition on basis of such corrigendum.

(d) Northern Areas Local Government Election Rules, 1979---

----Rr. 48 & 55---Decree in election petition---Validity---Law does not recognize passing a decree in an election petition; it is sufficient to declare a petitioner as returned candidate if Tribunal comes to such conclusion or dismiss petition otherwise---Respondent is never granted a decree except in matters of set offs and compromises.

2007 C L C 1043

[Peshawar]

Before- Ijaz-ul-Hassan Khan, J

JAVED AHMAD and another----Petitioners

Versus

Malik SAID AMIR KHAN----Respondent

Civil Revision No.1287 of 2005, decided on 24th January, 2007.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.115---Suit for pre­emption---Trial Court dismissed suit filed by pre-emptor, holding that evidence produced by pre-emptor was discrepant and contradictory and requirement of `Talbs' had not been fulfilled---Appellate Court accepting appeal set aside judgment and decree of the Trial Court and decreed the suit --Validity---Pre-emptor, in the plaint as well as in his statement, had fully established his case and proved making of Talb-i-Muwathibat and Talb-i-Ishhad---Both witnesses produced by pre-emptor had testified the assertion of the pre-emptor and had demonstrated complete unanimity on all important facts of the case---Though said witnesses were subjected to lengthy and searching cross-examination, but nothing could be elicited from them to shake their credibility---Counsel for vendee despite his best efforts, could not point out any portion of the evidence, which had either been misread or non-read by Appellate Court---Contradictions and omissions highlighted by vendee were inconsequential and did not cause dent in pre-emptor's case---No good ground was thus available to hold that Talb-i-Muwathibat was not performed in accordance with law---Impugned judgment was neither contrary to the evidence on record nor in violation of the principles of administration of justice---Said judgment of Appellate Court not suffering from any infirmity or jurisdictional defect within the contemplation of S.115, C.P.C., was not amenable to the interference by High Court in its revisional jurisdiction.

Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179; Karachi Metropolitan Corporation and another v: Paheel Ghyas and 3 others 1995 MLD 141; Messrs Shafco International v. Chairman, Pakistan Telecommunication Corporation, Islamabad and 4 others 1995 MLD 146; Muhammad Ayub v. Mst. Nasim Akhtar and 7 others 2003 MLD 1349; Muhammad Ismail v. Maqbool Ahmad and 8 others 2001 CLC 252; Messrs Syed Tasnim Hussain Naqvi v. Federation of Pakistan through Secretary/Chairman, Railway Board, Islamabad and 10 others 2001 CLC 256 and Muhammad Mubarik Ali v. Muhammad Abdullah 2002 MLD 1073 rel.

(b) Evidence---

----Appreciation of evidence---Standard for appraisal of evidence in civil cases was different from that applied in criminal cases as both laws had laid down different standards of proof.

Atlas Khan Dagai for Petitioner.

Tasleem Hussain for Respondent.

Date of hearing; 22nd January, 2007.

2007 C L C 1050

[Northern Areas Chief Court]

Before Sahib Khan, J

MANZOOR HUSSAIN----Petitioner

Versus

SHAHID ALI and 11 others----Respondents

Civil Miscellaneous No.36 of 2006, decided on 13th November, 2006.

(a) Northern Areas Local Government Election Rules, 1979---

----Rr. 51(1) & 58(4)---Civil Procedure Code (V of 1908), Ss.3 & 115---Revisional jurisdiction of Chief Court---Scope---Election Tribunal constituted under Art.52 of Northern Areas Council Election Order, 1979, a Court of special jurisdiction and not a Civil Court of general jurisdiction subordinate to Chief Court---Orders passed by such a Special Court cannot be assailed before Chief Court in revision under S.115, C.P.C.---Mere fact that Election Tribunal is presided over by a person who is or has been District Judge or an Additional District Judge does not 'automatically mean that orders passed by such a Judge being subordinate to High Court in terms of S.3, C.P.C. become revisable by the Chief Court---Court which is inferior in rank to the High Court is treated as subordinate to High Court only if it had been declared subordinate to High Court by a statutory provision---Since no such provision existed in the Rules providing that Election Tribunal was subordinate to Chief Court nor any remedy against orders passed by Election Tribunal was available in shape of appeal, Chief Court could not exercise its revisional jurisdiction in the matter.

1981 C LC 516 and PLD 1970 Lah. 641 ref

(b) Northern Areas Local Government Election Rules 1979---

----Civil Procedure Code (V of 1908), Preamble---Election petition, transfer of---Powers of Chief Court---Scope---Chief Court lacks jurisdiction, under Northern Areas Local Government Election Rules, 1979 and Code of Civil Procedure, 1908, for transfer of Election petition from one tribunal to any other Tribunal.

Muhammad Issa for Petitioner.

Amjad Hussain for Respondents.

Date of hearing: 30th September, 2006.

2007 C L C 1058

[Northern Areas Chief Court]

Before Sahib Khan, J

GHULAM HUSSAIN----Petitioner

Versus

SHER ALAM KHAN and another----Respondents

Revision Petition No.9 of 2005, decided on 5th September, 2005.

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

----O. XXXIX, Rr.1 & 2---Injunction---Two courts below on basis of report of Local Commissioner made after spot inspection concurrently found that petitioners were not in possession of property in question---Reports of Revenue field staff and legal actions taken by local police further disclosed that petitioners successfully or otherwise attempted to get the possession of suit property for which he had obtained status quo---Injunction, by its nature, is a preventive remedy for purpose of preserving the status quo of the matter of suit pending the determination of suit; it must not create totally a new state of things nor it should be used for restoring status quo ante---No sufficient material was available on record for maintaining status quo or granting injunction---Petitioner had failed to prove the basic three ingredients i.e. prima facie case, balance of convenience and irreparable loss, for granting/seeking injunction/status quo---Two courts below rightly declined the injunction application in circumstances.

1993 MLD 1078; 1984 CLC 3413; 1999 MLD 2583 and 1992 CLC 498 distinguished.

PLD 1982 Quetta 134 and 1981 CLC 251 ref. 1989 CLC 2098 and 1994 CLC 146 rel.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction---Essentials---Party seeking injunction is required to prove that he has a good prima facie case, balance of convenience lies in his favour and in case injunction is not granted, he will suffer irreparable loss.

Johar Ali for Petitioner.

Amjad Ali for Respondent No.1.

Date of hearing: 30th August, 2005.

2007 C L C 1075

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SAID GHANI----Petitioner

Versus

Mst. BIBI AMAN----Respondent

Civil Revision No.1586 of 2004, decided on 30th March, 2007.

(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 plaintiff was that she was legally wedded wife of defendant who has transferred suit property her favour in lieu of dower, but subsequently defendant sold suit property to without consent and permission of plaintiff---Suit having concurrently been decreed by the Trial Court and Appellate Court, in favour of plaintiff, defendant/vendee had filed revision against such concurrent judgments and decrees---Trial Court as well as Appellate Court adverted to every aspect of the case, rightly decided issues agitated and rendered reasonable judgments, which were not amenable to the revisional jurisdiction of High Court---Both courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons---No legal defect existed in the concurrent judgments, which were in consonance with the evidence on the file---No specific misreading or non-reading of evidence had been pointed out---Material on record established that at the time of marriage defendant had transferred suit property in the name of plaintiff in consideration of dower, but subsequently he sold the same without consent and permission of his wife/plaintiff---`Mehar Nama' in question had satisfactorily been proved through deposition of petition writer and marginal witnesses-In absence of any misreading or non-reading of evidence on record, concurrent judgments and decrees of the courts below which were in consonance with record and also in accordance with law on the subject could not be interfered with in revision.

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

----O. XX, R.5---Recording of finding issue-wise---Provision of O.XX, R.5, C.P.C. whereby court was to state its decision on each issue, was applicable to the original court which heard a civil suit---Requirement of recording finding issue-wise was not mandatory for the Appellate Court it was sufficient for Appellate Court to deal with all issues as were material for disposal of the controversy excepting those abandoned by appellant---Appellate Court recording its findings on the points raised before it, without discussing the issues separately, could not be said to have committed any illegality or error---Even otherwise law regarding framing of issues was firmly settled to the effect that where parties entered into trial of the case with all awareness of controversy between them, its framing or non-framing would lose importance.

Umer Din v. Ghazanfar and 2 others 1991 SCMR 1868 and Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 ref.

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

----O. XLI & R.25---Remand of case by Appellate and revisional Courts---Appellate and revisional courts, were always empowered to remand case in terms of O.XLI, R.25, C.P.C., but that discretionary power was used only in exceptional situation and if the parties had led evidence with regard to the particular point and the Court of first instance by giving specific finding on said point decided the same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of the jurisdiction.

Qazi Muhammad Jamil for Petitioner.

Yousaf Khan Yousafzai for Respondent.

Date of hearing: 5th March, 2007.

2007 C L C 1085

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NAZIR AHMAD----Petitioner

Versus

MUHAMMAD PARVAIZ----Respondent

Civil Revision No.1571 of 2004, decided on 14th February, 2007.

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

----O. VII, R.2 O.XLI, R.31 & S.115---Suit for recovery of amount---Plaintiff filed suit for recovery of amount of salary for the last three years against defendant---Trial Court dismissed suit, but Appellate Court partly allowed suit and defendant had filed revision against judgment and decree of Appellate Court---Appellate Court had adverted to every aspect of the case and had rightly decided relevant issues and rendered a reasonable judgment, which was not open to legitimate exception---Counsel for defendant had not been able to prove that impugned judgment was outcome of misreading or non-reading of evidence or suffered from illegality or material irregularity---Appellate Court had given exhaustive judgment after appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect appeared in the impugned judgment which was in consonance with evidence on the file---Nothing could be pointed out effectively and convincingly which could persuade to disagree with findings of the Appellate Court on the issues in question---Appellate Court scanned the entire evidence in true perspective and findings of the court could not be termed either perverse or arbitrary and same were immune from further scrutiny in revision petition---Impugned judgment had been recorded in consonance with the requirements of O.XLI, R.31, C.P.C. and no prejudice seemed to have been caused to defendant---Defendant could neither point out as to which issue was not properly framed nor could point out any material portion of evidence, which was allegedly was overlooked or misread by court below---Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been ignored by the courts below---Revision against judgment and decree of Appellate Court below, was dismissed, in circumstances.

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

----O. XLI, Rr.25 & 27---Remand of case and production of further evidence--'Appellate and revisional Courts were always empowered to remand case in terms of O.XLI, R.25, C.P.C., but that discretionary power was to be used in exceptional situation---If parties had led evidence with regard to the particular point and the court of first instance by giving specific finding on the said point; decided same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of jurisdiction---Powers under O.XLI, R.27, C.P.C. were to be exercised only if the court would consider that it would not be able to pronounce judgment without further evidence---Said provision could not be used for the benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Power to order remand, was no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental---Party could not be allowed to adduce evidence to do away with the weakness that existed in its case.

Ashiq Ali v. Zameer Fatma PLD 2004 SC' 10 ref.

Hidayatullah Khan for Petitioner.

Ziaur Rehman and Aman Khan for Respondent.

Date of hearing: 21st December, 2006.

2007 C L C 1174

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MALIL WASIL----Petitioner

Versus

MUMTAZ-UR-REHMAN and others----Respondents

Civil Revision No.174 of 2005, decided on 30th April, 2007.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Suit for damages for malicious, institution of suit---Maintainability---Rejection of plaint---Plaintiff had instituted suit for damages on the ground that in another suit, defendants in their written statement had levelled certain baseless and frivolous allegations against him, due to which his reputation was badly affected---Said written statement had indicated no such allegations existed which could affect the reputation of plaintiff---Even otherwise no suit for recovery of damages was generally maintainable for malicious institution of civil suit, because on defeat of a civil suit, law had provided for compensation to successful party by awarding costs/special costs to hum---Courts below, had rightly rejected plaint of plaintiff---Revision against concurrent findings of facts of courts below, was dismissed.

Haji Muhammad Shafi v. Mst. Hamidan Bibi 1990 MLD 597 ref.

Fazl-e-Haq Kohidamani for Petitioner.

Shakeel Azam Awan for Respondents Nos.2, 3 and 4 on pre-admission notice.

2007 C L C 1178

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

WAKEEL KHAN and another----Petitioners

Versus

AFSAR KHAN and others----Respondents

Civil Revision No.1319 of 2006 with Civil Miscellaneous No.1298 of 2006, decided on 23rd April, 2007.

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

----S. 115 & O.XLI, R.31---Revision---Scope---Trial Court as well as Appellate Court adverted to every aspect of the case, rightly decided the issues agitated and rendered reasonable judgment, which was not amenable to the revisional jurisdiction of High Court---Both Courts below had given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons---No legal defect appeared in judgments of the courts below which were in consonance with the evidence on the file---Conclusion of fact arrived concurrently by both the courts below was not open to challenge in civil revision, particularly when no specific misreading and non-reading of evidence had been pointed out---Appellate Court was alive to the situation and issues involved had been dealt with and decided by the Appellate Court in careful mam1er---Appellate Court had given its findings on all the points of controversy and no prejudice seemed to have been caused to petitioners---So far as question of giving issue-wise findings by the Appellate Court was concerned, same was not the requirement of law under O.XLI, R.31, C.P.C. and was sufficient for the Appellate Court to deal with all the issues as were material for disposal of the controversy excepting those abandoned by appellant---Appellate Court recording its findings on the points raised before it, without discussing the issues separately could not be said to have committed any illegality or error---Even otherwise law regarding framing of issues was firmly settled to the effect that where parties entered into trial of the case with all awareness of controversy between them, its framing or non-framing issues would lose importance---Findings recorded by the Trial Court and affirmed by Appellate Court, were not only in consonance with the record of the case, but same were also in accordance with the law on the subject---In absence of' any misreading of evidence on record, revision petition filed against concurrent judgment and decrees of the court below, was dismissed.

Fatal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2'others 1993 SCMR 2018 ref.

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

----O. XLI, R.25---Remand of case by Appellate Court---Appellate and revisional Courts were always empowered to remand case in terms of O.XLI, R.25, C.P.C., but that discretionary power was used only in exceptional situation and if the parties had led evidence with regard to the particular point and the court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, remand of the case in appeal or revision was not proper exercise of the jurisdiction.

M. Farooq Shah for Petitioners.

2007 CLC 1189

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

CHAIRMAN, WAPDA and others----Appellants

Versus

FAZAL MALIK----Respondent

Regular First Appeal No.149 of 2003, decided on 2nd February, 2007.

Land Acquisition Act (I of 1894)---

---Ss. 4, 18, 23 & 54---Acquisition of land---Compensation, determination of---While determining the amount of compensation court was to consider evidence brought on record by the parties and Land Acquisition Collector while determining compensation of acquired land had also to consider potential and future prospective of land in addition to one year average---While determining the value of land acquired by the Government and the price which willing purchaser would give to the willing seller, only the past sale should not be taken into account, but the value of the land with all its potentiality should also be determined along with other facts---Classification or nature of land could be taken as relevant consideration, but not as an absolute one---Area could be Banjar' orBarani', but its market value could be tremendously high, because of its location, neighborhood, potentiality or other benefits---Assessment of compensation payable for land acquired must take into account several factors, including the nature of land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land had been put and impact of such use on the land acquired---Referee court in the present case had adverted to every aspect of the case, rightly decided issue agitated before it and rendered a reasoned judgment which could not be successfully challenged---Nothing could be pointed out effectively and convincingly which could persuade High Court to disagree with the findings of Acquisition Judge based on a due appreciation of law and facts---In absence of any valid justification to take a different view of the matter than what had been taken by Referee Court, appeal having been found bereft of substance, stood dismissed.

Muhammad Sharif v. Land Acquisition Collector and others 2004 CLC 1048 ref.

Fida Gul for Appellants.

Muhammad Adam Khan for Respondent.

Date of hearing: 2nd February. 2007.

2007 C L C 1211

[Northern Areas Chief Court]

Before Muzaffar Ali, J

GHULAM HASSAN and another----Appellants

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Northern Areas Gilgit and 4 others----Respondents

C.S.A. No.3 of 2005, decided on 14th June, 2006.

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

----Ss. 4, 5-A, 9, 18 & 49---Civil Procedure Code (V of 1908), S.9---Land acquisition---Award by Land Acquisition Collector made without complying with mandatory provisions of Land Acquisition Act, 1894,---Suit for declaring such award to be void and without jurisdiction---Trial Court decreed suit, but Appellate Court observed that civil court lacked jurisdiction to entertain such suit with direction to plaintiff to avail remedy under Land Acquisition Act, 1894---Validity---Cases falling within ambit of Ss.5-A, 18 & 49 of Land Acquisition Act, 1894 impliedly barred jurisdiction of civil court to entertain suits---Where jurisdiction of civil court was expressly barred, even there civil court would have jurisdiction to try cases especially where provisions. of Land Acquisition Act, 1894, had not been complied with or Special Forums or Tribunal had not followed procedure provided by Special Act or had acted mala fide---Chief Court accepted appeal, set aside impugned judgment and restored that of Trial Court.

2001 SCMR 398; 1998 CLC 27; PLD 1963 SC 671; 1999 CLC 422 and 2003 CLC 422 rel.

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

----S. 9---Section 9, C.P.C. is based on principle of law "ubi jus ibi remedium" (where there is right there is remedy).

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

----S. 9---Land Acquisition Act (I of 1894), Preamble---Jurisdiction of civil Court, if expressly barred, it would still have jurisdiction to entertain suits in certain matters---Principles.

Where jurisdiction of civil court has been barred expressly, even then civil court would have jurisdiction to try case, where provisions of the Land Acquisition Act, 1894 have not been complied with or the special Forum or Tribunal has not followed the procedure provided by the special Act or has acted mala fide.

2001 SCMR 398; 1998 CLC' 27; PLD 1963 SC 671; 1999 CLC 422 and 2003 CLC 422 rel.

Ghulam Haider for Appellants.

Advocate-General for Respondents Nos.1 and 2.

Sardar A.E.E. rep. for Respondents Nos.3 and 4.

Date of hearing: 14th June, 2006.

2007 C L C 1225

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

TARIQ JAVED----Appellant

Versus

Khawaja MUHAMMAD ADIL YOUNIS----Respondent

F.A.O. No.38 of 2005, decided on 2nd March, 2007.

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

---Preamble, Ss.2(g)(j), 17 & 24---Ejectment application---Relationship of landlord and tenant between parties---Jurisdiction of Rent Controller---Ejectment application was dismissed by the Rent Controller holding that existence of relationship of landlord and tenant between the parties had not been proved---Jurisdiction of Rent Controller under Cantonments Rent Restriction Act, 1963, was contingent on existence of relationship of landlord and tenant between the parties and the property subject matter of proceedings, should be a building, residential or non-residential, rented land or scheduled building situated in an urban area---Rent Controller did not enjoy status of a civil court of general jurisdiction; he was nevertheless, entitled to determine the question of the relationship of landlord and tenant---Rent Controller had jurisdiction to decide questions relating to existence of facts upon which jurisdiction could be exercised---Rent Controller was a special Tribunal having restrictive jurisdiction and as soon as it was proved beyond any shadow of doubt on record that no such relationship existed between the parties to the proceedings, his jurisdiction over the matter in question would come to an end and he could not assume jurisdiction under Cantonments Rent Restriction Act, 1963---Question of existence of relationship of landlord and tenant between the. parties was one which had a direct bearing on the question of Rent Controller's jurisdiction---Question of tenancy carried certain advantages and must be proved by evidence of a very high order and it could not be proved by mere oral evidence---Appellant/landlord had produced rent deed, marginal witnesses of deed and examined witnesses who had collected rent from respondent/ tenant---Onus to prove the factum of mortgage, was heavily placed on tenant, but he had failed to discharge same as nothing had been brought on record to dislodge the claim of landlord---Impugned order passed by Rent Controller was set aside and tenant was directed to vacate possession within specified period.

Manzoor Hussain and 2 others v. Abdul Aziz and 2 others 2000 YLR 2634; Mian Muhammad Saleem v. Zafar Riaz 2000 MLD 296; Amanat Hussain Khan v. Mrs. Asma Masood 2004 YLR 2514; Shakeel Ahmad v. Mushtaq Ahmad 2000 YLR 992; 1983 SCMR 1064 and PLD 1974 Kar. 19 rel.

Naveed Maqsood for Appellant.

Respondent: Ex parte.

Date of hearing: 12th February, 2007.

2007 C L C 1233

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

Mst. YASMIN----Petitioner

Versus

Mst. HAFFAS BIBI and 4 others----Respondents

Writ Petition No.20 of 2006, decided on 11th April, 2007.

Northern Areas Local Government Election Rules and Order, 1979---

----R. 57(2)---Civil Procedure Code (V of 1908), O.II, R.2(1) & O.XXIII, R.1---Election petition, withdrawal of---Scope---Procedure for Withdrawal of election petition being different from that provided in C.P.C. for withdrawal of suit, election petition could not be withdrawn without permission of Election Tribunal---Order of Tribunal allowing withdrawal of election petition without following procedure as laid down in R.57(2) of Northern Areas Local Government Election Rules and Order, 1979 would be without jurisdiction---Mandatory pre-requisites for allowing withdrawal of election petition stated.

The procedure for entertaining a withdrawal application in election petition is much different than that of procedure given in C.P.C. for unconditional withdrawal of the suits. Under Order XXIII, read with Order II, rule 2, sub-rule (2) of C.P.C. a plaintiff can withdraw his suit or can relinquish any portion of his claim without seeking any permission from the court, but he becomes debarred from instituting fresh suit on the same subject or cause of action or the portion of the claim, unless sought permission of the court. The procedure as provided in Rule 57(2) purports that (a) the leave of the Tribunal is required to withdraw the election petition, even if the petitioner has no desire to file fresh petition, (b) where an application for leave to withdraw is submitted, the Tribunal is required to issue notice thereof to the other parties, even if their attendance has been procured to contest the election petition, (c) the Tribunal, before granting leave to withdraw the election petition, shall satisfy itself about any bargaining or agreement which might cause the withdrawal, and if it appears so to the Tribunal the Tribunal shall not grant leave to withdraw the election petition, (d) the Tribunal may impose costs if the same is allowed, (e) the Tribunal has to issue notice of allowing or disallowing of withdrawal on the other parties and (f) within fourteen days next following the notice, any person who might himself have been a petitioner may apply to the Tribunal for leave to be substituted as a petitioner and (g) the person may be so substituted on such terms as the Tribunal may decide and may continue the proceedings, but subject to the compliance of the person with the provisions of the Rules as to security of costs.

In the present case, Election Tribunal had not complied with the above mandatory pre-requisite of sub-rule (2) of Rule 57 and had acted as provided by Civil Procedure Code, 1908 while deciding the application for withdrawal of the election petition, forgetting the fact that he acts as Election Tribunal under special law relating to election disputes and going through the election laws was incumbent upon him, but failed, therefore, impugned order is without jurisdiction and nullity in the eyes of law.

Mst. Zubeda Bibi wife of Ali Jan v. Election Commissioner, N.As. Gilgit and others, dated 4-5-2006 rel.

Amjad Hussain for Petitioner.

Muhammad Issa for Respondent No.1.

Advocate-General for Respondents Nos.2 and 3.

2007 C L C 1245

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

COLLECTOR LAND ACQUISITION SKARDU and 2 another----Appellants

Versus

GHULAM MUHAMMAD and 19 others----Respondents

C.F.A. No.7 of 2005, decided on 31st October, 2006.

Administration of justice---

----Justice between parties cannot be done, unless judicial officers are well versed with relevant laws and facts of each case---Duty of Judicial Officer highlighted.

The Judicial Officers should not forget their delicate judicial responsibilities while they sit to determine legal rights and liabilities of litigant public. The Judges are supposed to be well versed of relevant law and facts of each case, otherwise justice cannot be dispensed with or delivered. The inevitable or uncurable technical or factual errors of lower courts may cause falling of the litigants from top to bottom for addressing the same, if the lower courts do not perform their duties with full care and prudence, the parties may suffer from inordinate delay in final disposal of the disputes and it creates a sense of dissatisfaction and hopelessness over the judicial system in the country, therefore, the Judicial Officers must be conscious of this fact.

Advocate-General for Appellants.

Ghulam Haider for Respondents.

Date of hearing: 31st October, 2006.

2007 C L C 1257

[Northern Areas Chief Court]

Before Muzaffar Ali, J

ALI NAQI and 10 others----Appellants

Versus

ALL RESIDENTS OF KHARPITO MOUZA MAYORDO TEHSIL AND SUB-DIVISION KHARMANG through L.Rs.----Respondents

C.F.A. No.8 of 2005, decided on 12th May, 2006.

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

----S. 107(2), O.VII, R.1.0 & O.XLI, R.33---Limitation Act (IX of 1908), Ss.5 & 14---First appeal---District Judge lacking pecuniary jurisdiction to entertain appeal--Disposal of appeal as withdrawn by District Judge as per request of appellant's counsel---Filing of appeal in Chief Court after lapse of three months---Validity---Provisions of O.VII, R.10, C.P.C. applicable to suits and plaints would apply to appeal for being continuation of original cause/suit---Appellate Court had power under S.107(2), C.P.C., to return such appeal under O.VII, R.10, C.P.C., for its presentation before court having pecuniary jurisdiction to entertain same---Neither appellant's counsel was acquainted with nor had District Judge acted upon relevant law---Time consumed in court of District Judge could not be condoned under, law---Chief Court rejected application for condonation of delay and dismissed appeal as time-barred.

(b) Malicious prosecution---

----Damages, suit for---Pre-condition for filing such suit---Declaration of malicious prosecution by Judge or Magistrate in his judgment would be a pre-condition for filing a suit on basis of malicious prosecution.

Ghulam Haider for Appellants.

Ghulam Nabi for Respondents.

Date of hearing: 12th May, 2006.

2007 C L C 1268

[Northern Areas Chief Court]

Before Muzaffar Ali, J

AMANULLAH----Appellant

Versus

NATIONAL BANK OF PAKISTAN, GILGIT through Manager, N.B.P. Gilgit Main Branch----Respondent

C.F.A. No.7 of 2006, decided on 9th June, 2006.

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

----O. XXXVII, Rr.2 & 3--Discretionary jurisdiction under O.XXXVII, Rr.2 & 3, C.P.C.---Courts must exercise such jurisdiction judiciously.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount---Leave to defend suit granted subject to deposit of outstanding amount in court---Validity---Loan was secured by mortgage-deed---Value of mortgaged property was more than suit amount---No promissory note except mortgage-deed had been placed on record---Loan transaction between parties was entirely based on mortgage deed, if so, Trial Court would first determine, whether suit fell within ambit of O.XXXVII, C.P.C. or not---Chief Court set aside impugned order and allowed defendant to defend suit unconditionally.

1988 MLD 1310 rel.

Ehsan Ali for Appellant.

Muhammad Hussain Shehzad for Respondent.

2007 C L C 1288

[Northern Areas Chief Court]

Before Jalal-ud-Din, Chairman and Muzaffar Ali, J

MUHAMMAD YOUSUF----Appellant

Versus

COLLECTOR LAND ACQUISITION, DISTRICT SKARDU and 6 others----Respondents

C.F.A. No.2 of 2004, decided on 15th June, 2006.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to Court---Court not competent to reject reference on point of limitation---Principles.

The Referee Court has no jurisdiction to judge the competency of the reference on the point of limitation. The' Collector has powers to refuse reference to the court, if it is found that objections have been filed beyond time prescribed under proviso to section 18 of the Land Acquisition Act, 1894. Powers of Referee Court under the Land Acquisition Act, 1894 are limited to determination of (a) measurement of land, (b) amount of compensation and (c) persons entitled to compensation and its apportionment.

PLD 1965 Kar. 573; 1984 KLR (Revenue Cases) 150; PLD 1965 Kar. 413; PLD 1962 Lah. 292 and PLD 1972 Pesh. 197 rel.

Wazir Shakeel Ahmad for Appellant.

Advocate-General for the Respondents.

2007 C L C 1306

[Northern Areas Chief Court]

Before Muzaffar Ali, J

ALI and another----Petitioners

Versus

RUSTAM ALI and.2 others----Respondents

Civil Revision No.7 of 2002, decided on 17th June, 2006.

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

----Arts. 17(2)(a), 79 & 100---Gift deed executed in year 1335 Hijri i.e. more than thirty years ago---Evidentiary value---Presumption of truth would be attached to contents of such deed and for its proving, there would be no need to produce any marginal witness.

Muhammad Issa for Petitioners.

Shakeel Ahmad for Respondents.

Date of hearing: 17th June, 2006.

2007 C L C 1385

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD IDREES and others----Petitioners

Versus

AMIR SAID and others----Respondents

Civil Revision No.881 of 2006, decided on 14th May, 2007.

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

----S. 115---Revision---Scope of S.115, C.P.C. is limited, and as such, High Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact, rendered by the Courts below, unless it finds misreading and non-reading of evidence therein.

Muhammad Saleem Shah and 80 others v. Aziz-ur-Rehinan Shah and 43 others PLD 2002 SC 280 ref.

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

----S. 54---Specific Relief Act (I of 1877), S.11---Suit for possession and mesne profits---Revenue Record---Presumption---Strong presumption of truth is attached to the Revenue Record in terms of S.54, West Pakistan Land Revenue Act, 1967, for the rebuttal of which strong and cogent evidence is required---Mere assertion that defendants remained in possession of suit-land for enjoying its usufruct in lieu of performance of duty of Imamat in the village mosque, without payment of any rent, without a positive attempt on their part to substantiate the same, was of no consequence.

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

----O. VI, R.1 &.O.XIV, R.1---Specific Relies' Act (I of 1877), S.11---Suit for possession and mesne profit---Plea of defendants as Serai. Khor' of land suit had not been taken in the written statement---Defendants had moved application before the trial Court as well as before the appellate Court, seeking amendment in the written statement, so as to include the said plea in the written statement and applications were rejected for valid reasons---Court, however, had not prevented the parties from leading evidence at the trial with regard to the question ofSerai'---Non-framing of specific issue in such circumstances was inconsequential---If the issues were not framed but allegations made in the plaint were challenged in the written statement and court had allowed evidence to be led, then a decision rendered without framing of` issues was not illegal.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 fol.

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

----O. XLI, R.31---Appellate Court having given its findings on all points of controversy and no prejudice seemed to have been caused to the defendants, giving of issue-wise finding by the appellate Court was not the requirement of O.XLI, R.31, C.P.C.

Umer Din v. Ghazanfar and 2 others 1991 SCMR 1868 ref.

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

----O. XLI, R.25---Powers under R.25, O.XLI, C.P.C. are discretionary and, as such, where, despite absence of an issue on a particular point, the parties had led evidence with regard to it, or where the lower court had given a finding on the point despite the absence of a correct issue respecting it or where though no specific issue was raised, the matter was decided without objection or where despite absence of an issue, the parties had understood each other's case or where the entire evidence was available on record or where the appellate court could itself come to a decision on the point, remand under O.XLI, R.25 would not be ordered.

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

----S. 115---Revision---Interference by High Court---Scope anal extent.

Both the courts below had given exhaustive judgments after due appraisal of evidence on the file and after adjudging the matters from all angles. There appeared to be no legal defect in their judgments, which were in consonance with the evidence on the file. Conclusion of facts arrived at concurrently by both the lower courts was not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence had been pointed out.

There was a concurrent finding of facts against the petitioners and the High Court in exercise of its revisional jurisdiction would not interfere in the concurrent findings of the Courts below. Petitioners had not been able to point out that impugned judgments and decrees of the courts below being opposed to evidence on the file and the law applicable were not sustainable. Petitioners could not point out any illegality or jurisdictional defect in the impugned judgments and decrees and failed to persuade the court to interfere with the same. The civil revision having been found destitute of substance, was dismissed.

Muhammad Zahoor Qureshi for Petitioners.

Haji Muhammad Zahir Shah for Respondents.

Date of hearing: 7th May, 2007.

2007 C L C 1403

[Northern Areas Court of Appeals]

Before Justice Qazi Ehsanullah Qureshi, Chairman Justices Altaf Hussain and Syed Tahir Ali Shah, Members

Mst. FAUZIA BEGUM----Petitioner

Versus

AMIN SADDRUDDIN JAMAL GONJI----Respondent

C.P.L.A. No.4 of 2007, decided on 15th June, 2007.

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

----Ss. 17 & 25---Custody of minor son aged 2 years---Father having nationality of Canada, while mother living in a village of District Gilgit---Minor living with mother since his birth---Father's claim for custody of minor son after divorcing his mother---Validity---Mother's love and affection for and .her commitment to her child could not be matched with any other relation---Lap of real mother would be God's own cradle for a child---Removing child at such tender age from mother would tantamount to height of cruelty---Not proved on record that atmosphere of mother, where minor was living .was detrimental to minor's future or career or mother could not take care of minor or his. welfare in view of financial strangulation---Father, since birth of son had neither visited him nor paid any maintenance---Father was trying to take away his son from mother, which after her divorce was the only hope and charm in her life---If father applied again for custody of minor after his having reached to age of seven (7) years, .then court would decide such application on the choice of minor as to where he wanted to reside (with mother or father)---Application for custody of minor filed by father was dismissed with observations that Father could see and meet his son once in a month at residence of minor, while education and maintenance of minor son would be the responsibility of father.

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

----Ss. 17 & 25---Custody of minor child, entitlement to---Essential considerations---Prime consideration before court would be betterment of minor, but not claims/wishes of contending parties and attaining target age of minor prescribed under his Personal Law---Principles.

The prime consideration before the court would be the interest of the minor and to see whether in so tender age a minor can be snatched from the mother; and whether an infant can survive comfortably without mother.

No doubt according to Fiqa Jafaria the target age is prescribed, but there is no such provision available under section 25 of the Guardians and Wards Act, 1890, nor it is .given to understand anywhere that guardianship case shall be decided on the basis of the views expressed by different schools of thought. The Court has to determine the custody of minor notwithstanding the rights of father or mother, but betterment of the minor.

Attaining the target age of minor is neither absolute nor settled law. While settling the matter of custody, the supreme consideration is the convenience and well-being of the minor, rather than claims and wishes of the contenders. No doubt, wish of the minor can also be kept in view by the courts, provided the minor is grown up enough to form an intelligent opinion. Each case has to be decided on its own merits. Custody of the minor son could be refused in cases where the age proved to be more than seven years.

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

----Ss. 17 & 25---Custody of minor son---Poverty of mother---Not a valid ground to deprive mother from such custody---Father responsible to maintain minor son.

Syed Jaffar Shah for Petitioner.

Mir Ghulam Sarwar and Muhammad Issa for Respondent.

Date of hearing: 15th June, 2007.

2007 C L C 1438

[Northern Areas Chief Court]

Before Justice Raja Jalal-ud-Din, Chairman and Justice Sahib Khan, Member

MUHAMMAD HASSAN QURESHI and others----Appellants

Versus

MUHAMMAD SHARIF through L.Rs. and others----Respondents

C.F.A. Nos.21 and 22 of 2000, decided on 8th June, 2006.

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

----S. 58(c)---Sale' ormortgage'---Nature of transaction, determination of---Suit for redemption---Plaint averred that suit property was mortgaged in favour of defendant through registered deed dated 10-6-1981 against consideration but defendant, without any notice to plaintiff, transferred suit property to another person vide Iqrarnama dated 12-8-1986---Defendants denying the mortgage, claimed that transaction in question was a sale with condition of repurchase by plaintiff within a period of 5 years from the date of sale and that plaintiff had railed . to avail the same within stipulated period therefore, sale transaction became absolute and final---Plaintiff, besides documentary evidence, proved his case by adducing marginal witness of the document in dispute---Defendant produced no evidence ht rebuttal except the statement of person to whom property was transferred which could not be relied upon for the reason that he was neither a party to the transaction and execution of document in question nor impugned transaction had taken place in his presence---Statement of transferee of the property in circumstances, was no more than hearsay evidence---Failure of defendant to examine himself or produce any oral/documentary evidence in support of his defence led to admission of facts given by the plaintiff---Although, a registered deed produced by defendant and transferee reflected that a loan was payable by son of plaintiff to defendant however, impugned document revealed that the disputed property owned by plaintiff had been mortgaged with defendant for nothing---Clauses of impugned agreement abundantly showed that it did not pass a valid title to the transferee as required by S.54 of Transfer of Property Act, 1882---Under the law such. a person gets only a right to compel the other party to execute the sale-deed in respect of the property unless and until such a sale-deed is actually brought into existence by the act of parties or under a decree of a court---Party who had entered into such contract cannot be said to have acquired an ownership over the property---Conditions of repurchase and prohibition of improvements over disputed property for indefinite period by defendant were embodied in document in question---Such a document; held could not be treated as an absolute transaction of sale but it was a mortgage by conditional sale provided under S.58(c) of Transfer of Property Act, 1882---Clause of conditional sale was contained in the varied document by which the mortgage was created---Such condition, being a clog on equity of redemption. and repugnant to law was invalid---Defendant having no title or ownership over disputed property, subsequent transactions were therefore, declared ab initio void---Trial Court was justified in decreeing the suit subject to payment of mortgaged amount, hence judgment and decree of Trial Court was upheld by Chief Court.

PLD 1971 Lah. 77; PLD 1959 (AJ&K) 73; PLD 1971 Pesh. 28 and PLD 1983 SC (AJ&K) 63 ref.

Mir Ghulam Sarwar for Appellants.

Shaifqat Wali for Respondent No.1.

Muhammad Issa for Respondent No.2.

Date of hearing: 25th May, 2005.

2007 C L C 1483

[Northern Areas Court of Appeals]

Before Justice Qazi Ehsanullah Qureshi, Chairman, Altaf Hussain, Member-I and Syed Tahir Ali Shah, Member-II

MANZOOR HUSSAIN----Petitioner

Versus

SHAHID ALI and 11 others----Respondents

C.P.L.As. Nos.44 and 46 of 2006, decided on 24th April, 2007.

Per Justice Qazi Ehsanullah Qureshi, Chairman, Syed Tahir Ali Shah, Member-II, agreeing.---

(a) Northern Areas Local Government Elections Rules 1979---

----Rr. 37, 44, 46 & 55---Election petition---Wrong exclusion of valid votes from counting, allegation of---Election Tribunal ordered for re-checking and re-counting of votes, whereafter re-polling would follow under its supervision---Validity---Election Tribunal should have first found out and ascertained legality and justification of votes excluded---Opinion regarding fresh polls expressed by Election Tribunal was premature, which, if necessitated, should have been expressed after recounting---Impugned order was violative of fundamental rights i.e. no man could be deprived of his precious right of vote and elect a person of his choice---Election Tribunal by directing re-polling under its supervision had exceeded its jurisdiction and assumed powers of Election Authority---Election Commission had exclusive jurisdiction to give election schedule and supervise election process---Impugned order amounted to final judgment, and as such was not legal.

Muhammad Sharif v. Aftab Haider and others Civil Appeal No.22 of 2006 (2007 CLC 561) rel.

(b) Administration of justice---

----Judges are supposed to deliver justice strictly under the law of the land.

(c) Northern Areas Council Legal Framework Order, 1994---

----Art. 19-A---Northern Areas Local Government Elections Rules, 1979, R.55---Revision petition against order of Election Tribunal---Not maintainable--Chief Court had no jurisdiction to entertain such revision---Chief Court in order to correct gross .illegality or an order passed by Election Tribunal without jurisdiction, could convert revision into constitution petition---Principles.

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

----Ss. 96 & 115---Constitution of Pakistan (1973), Art.199---Appeal convertible into revision and vice versa---Revision convertible into writ---Principles.

Revision can be converted into appeal and appeal can be treated as revision. Similarly revision can be converted into writ in the larger interest of justice, so that no one shall be ousted to seek justice and deprived of his valuable rights merely because of technicalities.

(e) Administration of justice---

----One wrong could not make two wrongs correct---Something illegal and without jurisdiction could not be repeated as such---No departure could be made from procedure and rules sanctioned by law.

(f) Precedent---

----Conflicting judgments by two Single Benches of same court---Propriety would demand resolution of such conflict by larger Bench---Principles.

Two conflicting judgments of same court by two single Benches something exceptionable propriety demands that if a Single Judge of one court differs with the opinion of other single Bench of the same court, then matter shall be referred to Chairman/Chief Justice for constitution of larger Bench, and the decision of majority in this respect would prevail.

Per Altaf Hussain, J. (Minority view)---

Muhammad Issa for Petitioner.

Mir Ghulam Sarwar for Respondent No. 1.

Advocate-General for Respondents Nos.2 and 3.

Nemo for Respondent No.4.

Date of hearing: 26th March, 2007.

2007 C L C 1587

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

PROVINCIAL GOVERNMENT NORTHERN AREAS through Secretary, KANA Division Islamabad and 5 others----Appellants

Versus

SAFAR KHAN and 8 others----Respondents

C.P.L.A. No.39 of 2006, decided on 23rd May, 2007.

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

----S. 12---Civil Procedure Code (V of 1908), S.9---Award of compensation on acquisition of land---Refusal of payment of compensation amount by the authorities concerned---Jurisdiction---Such matter pertains to the domain of ordinary Courts as Land Acquisition Judge, under the Land Acquisition Act, 1894 is not competent to grant such relief.

The wisdom behind the conferment of jurisdiction to ordinary Civil Court by the Legislature is that the Land Acquisition Act, 1894 has created a special jurisdiction and provided a special remedy for persons aggrieved of anything done in exercise of that jurisdiction. General rule is that once jurisdiction conferred upon a special forum for investigation of a particular matter such jurisdiction is exclusive and being of exclusive nature the Special Tribunal has alone to exercise such jurisdiction excluding ordinary forum. However, when the relief claimed does not find place in the machinery of such special exclusive jurisdiction, recourse is to be had to the normal Courts for relief not provided in the special Act.

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

----S. 9---Land Acquisition Act (I of 1894), preamble---General jurisdiction of Civil Court---When a special Act provides no remedy for particular circumstances appearing in its domain the general jurisdiction of normal Civil Court cannot be disputed.

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

----S. 12---Power of Collector after passing the award---Scope---Collector where once passes the award he becomes functus officio and is not competent to cancel same---No provision for cancellation of award by Acquisition Collector is available in the Land Acquisition Act, 1894.

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

----Arts. 117 & 118---Issue regarding fabrication and. forgery of award---Burden of proof---Onus of proving fake and bogus preparation of award is on the party who asserts the same.

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

----O. XLI, R.27---Additional evidence in appeal---Requirements---Order XLI, R.27, C.P.C. provides that additional evidence can be allowed only where Trial Court has improperly refused to admit the evidence which ought to have been admitted, or the Appellate Court required such document or witness and cannot pronounce judgment without such additional evidence or Appellate Court requires such evidence for any other substantial cause---Parties, otherwise are not entitled to produce additional evidence in the Appellate Court, which otherwise is able to pronounce judgment.

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

----O. XVI, R.14---Court witness---Powers of Court to summon a witness are discretionary but such discretion will not be exercised by the Court to fill in the gaps or to remedy the omissions by examining such witness.

Advocate-General for Petitioners.

Mir Ghulam Sarwar for Respondents.

2007 C L C 1609

[Northern Areas Court of Appeals]

Before Justice Qazi Ehsanullah Qureshi, Chairman Justice Altaf Hussain and Syed Tahir Ali Shah, Members

HASSAN SHAH and 4 others----Petitioners

Versus

SETTLEMENT OFFICER, GILGIT and 7 others----Respondents

C.P. L. A. No.1 of 2007, heard on 4th July, 2007.

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

----S. 9---Declaration of title and challenging the validity of a document on basis of fraud/misrepresentation etc.---Jurisdiction---Civil Court alone had jurisdiction to adjudicate such matters.

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

----O. VII, R. 10---Return of plaint for presentation to proper Court---Procedure---Incumbent on the Trial Court to go through the entire plaint rather than to take it in piecemeal to bereft the Court of its jurisdiction---Proper and legal course for Trial Court is to formulate a preliminary issue regarding jurisdiction, even though not raised in the defence and decide same after giving a fair and full opportunity of hearing to the parries rather than to take the issue suo motu in a slipshod manner.

Muhammad Issa and Mirza Ali for Petitioners.

Advocate-General for Respondent No.1.

Mir Ghulam Sarwar for Respondents Nos.2 to 8.

Date of hearing: 4th July, 2007.

2007 C L C 1618

[Northern Areas Chief Court]

Before Jalal-ud-Din, Chairman and Sahib Khan, J

GHULAM MUHAMMAD and 52 others----Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Northern Areas Gilgit and 2others----Respondents

Writ petition No.15 of 2005, decided on 4th April, 2007.

Land Acquisition Act (I of 1894)---

----S. 18---Award of compensation on acquisition of land---Landowners filed reference before Collector for enhancement of compensation and compound interest---Collector's refusal to make reference to the referee court---Validity---Under the relevant provisions of Land Acquisition Act, 1894 Collector was under obligation to provide an opportunity to parties of being heard instead of condemning them unheard---Collector being a reference court was either to dismiss reference petition for limitation or to make reference to Referee Court but he failed to follow the .procedure---Collector was legally bound to decide the matter in a manner provided and accepted ~ by principles of natural justice and equity---Impugned order being not a speaking order could not be accepted to be judicial one for adjudication of precious rights of litigant public by a judicial authority functioning under a special law---Collector was required to adjudicate the Reference petition on merits alter hearing parties and stating reasons for his order---Order accordingly.

Shafqat Wali for Petitioners.

Advocate-General for Respondents.

Date of hearings 28th March, 2007.

2007 C L C 1629

[Northern Areas Chief Court]

Before Sahib Khan, J

MUHAMMAD ALI----Appellant

Versus

HASSAN----Respondent

C.S.A. No.8 of 2002, decided on 27th April, 2007.

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

----Arts. 124 & 90---Specific Relief Act (I of 1877), S.42---Suit for declaration---Inheritance of a person not heard of for seven years---Owner of suit-land was real brother of maternal-grandmother of plaintiff and had not been heard of since 1947---Plaintiff, through a declaratory suit claimed the inheritance Prom ancestral property---Suit was decreed by Trial Court but First Appellate Court non-suited plaintiff on ground of limitation---Validity---Sole heirship and pedigree as given by plaintiff in his plaint was admitted by defendant who was cousin of deceased owner---Plea of adverse possession could not be raised by defendant as he was a co-heir of disputed property---Controversy was with regard to proof of actual date and time of death of the owner of property---Person not heard of for seven years presumption was that he was dead but further presumption about the time of his death could not be raised---Onus of proving that he died al particular time was on person asserting the same---Contention that father of unheard owner being a predeceased son had no property to be devolved on his son was falsified by copy of inheritance mutation of person unheard---Said mutation had not been challenged by defendant and his oral evidence was of no value on race of such documentary evidence---Certified copy of mutation being a public document was admissible in evidence without further proof as to its contents---Plaintiff, according to Islamic law was entitled to ownership of 1/2 share of suit property as he had stepped into the shoes of deceased and became co-sharer of joint property---Parties being co-sharers, limitation would not run against co-sharer---Appellate Findings having based upon erroneous understanding and application of law was set aside by Chief Court.

PLD 1987 SC 1; 2001 SCMR 1036; 2004 SCMR 414; PLD 2005 Lah. 578; 1986 CLC 770; 2005 MLD 364; PLD 1988 SC 682; PLD 1978 Lah. 245; Muhammad Sarwar and others v. Fazal Ahmed and others PLD 1987 SC 1 and PLD 1987 Pesh. 6 ref.

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

----Art. 124---Burden of proof---Person not heard for seven years---Presumption was that he was dead but further presumption about time of his death could not be raised---Question was not merely of death of person but was of his death at particular time---Onus of proving that he died at particular time shifted on person asserting the same.

PLD 1968 Pesh. 172 ref.

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

----O. XLI, R.2---Any ground of objection not raised in the memo of appeal cannot be allowed to be raised before the Appellate Court except by leave of such Court---Such ground must have been raised in the Court below.

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

----Art. 99---Public document, admissibility of---Mutation---Certified copy of mutation is admissible in evidence without further proof as to its contents.

1983 CLC 414 ref.

(e) Co-sharer---

----Suit by co-sharer/co-heir---Limitation---When parties are co-heirs, then limitation will not run against co-heir.

2004 SCMR 392 ref.

Ghulam Nabi for Appellant.

Muhammad Issa and Shakeel Ahmed for Respondent.

Date of hearing; 27th April, 2007.

2007 C L C 1648

[Northern Areas Court of Appeal]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

PROVINCIAL COOPERATIVE BANK, GILGIT through General Manager----Appellant

Versus

MUHAMMAD SHARIF through L.Rs.----Respondents

Civil Appeal No.34 of 2006, decided on 29th May, 2007.

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

----S. 58(c)---Mortgage by conditional sale---Test to determine.

In order to determine that' a document is a mortgage by conditional sale following tests, though not exhaustive, should be applied:--

(1) the existence of a debt;

(2) the period of repayment, short period being indicative of a sale and long of a mortgage;

(3) the continuance of the grantor in possession indicates a mortgage;

(4) a stipulation for interest on repayment indicates a mortgage;

(5) a price below the true value indicates a mortgage;

(6) a contemporaneous deed stipulated for re-conveyance indicates a mortgage;

(7) purchase of stamp and .payment of registration costs by transferee is indicative of a sale.

Muhammad Issa for Petitioners.

Malik Shafqat Ali for Respondent No. 1.

2007 C L C 1654

[Peshawar]

Before Salim Khan, J

Mst. NARGIS----Petitioner

Versus

MIRAN BAKHSH and others----Respondents

Civil Revision No.266 of 2006, decided on 6th July, 2007.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Art.72---Declaration and recovery of possession---Rent deed---Proof---Non-production of rent deed---Relationship of landlord and tenant---Civil court, jurisdiction of---Plaintiffs assailed rent deed executed in favour of defendant being fake, fictitious and collusive---Trial Court decreed the suit in favour of plaintiffs and judgment was maintained by Appellate Court---Plea raised by defendant was that attorney of the owner of suit property entered into agreement with her, regarding tenancy and civil court had no jurisdiction as the matter related to ejectment of tenant and regarding rent deed---Validity---Original rent deed was never produced by defendant at the time of recording of evidence and the same was not proved---Defendant failed to prove that any relationship of landlord was either claimed or admitted between the parties---Case was not of landlord against a tenant but by the owners against trespasser and thus civil court had the jurisdiction---High Court declined to interfere with the judgments and decrees passed by two courts below.

Abdul Zakir Tareen for Petitioner.

Saadullah Khan for Respondents.

Date of hearing: 6th July, 2007.

2007 C L C 1661

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ABDUS SHAKOOR----Petitioner

Versus

MUHAMMAD ZAFAR ULLAH KHAN and others----Respondents

Civil Revision No.1238 of' 2005, decided on 9th February, 2007.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.10(2)---Partition Act (IV of 1893), S.2---Partition of property---Report of Local Commissioner---Scope---Relying on report of Local Commissioner, Trial Court passed final decree, which was maintained by Appellate Court---Plea raised by petitioner in revision was that suit house was not partitionable, courts below did not appreciate evidence on record in its true perspective and a defective report of Local Commissioner was considered and made basis of their judgments---Validity---Report under O.XXVI, R.10(2) C.P.C. of Local Commissioner, to whom commission was issued by court was to be treated as evidence in the suit, although it was not binding on the court, which could arrive at its own conclusion on the basis of evidence on record---Report was confirmed for valid reasons, not open to legitimate exception and it was not safe for a court to act as an expert and to override elaborate report of a Commissioner whose integrity and carefulness were unquestioned, whose careful and laborious execution of task was proved by his report and who had not blindly adopted assertion of either party---Local Commissioner visited the spot in compliance with the order of court in presence of parties/their representatives and submitted a detailed and comprehensive report, adverting to all aspects of the case---Findings of Trial Court affirmed by Appellate Court were unexceptionable and did not call for interference of High Court.

M.S.H. Qureshi for Petitioner.

Mian Mohibullah Kakakhel for Respondents.

Date of hearing: 18th January, 2007.

2007 C L C 1664

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

SECRETARY DEFENCE GOVERNMENT OF PAKISTAN, RAWALPINDI and 3others----Appellants

Versus

ANJUMAN-E-AHL-E-SUNNAT BALTISTAN through Syed Tahir Ali Shah and another----Respondents

C.F.A. No.6 of 2005, decided on 26th April, 2007.

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

----S. 14---Civil Procedure Code (V of 1908), O.VII, R.10---Return of memo. of appeal by Appellate Court for lack of pecuniary jurisdiction and for presentation to proper forum---Delay in filing appeal before proper Court---Condonation---Scope of S.14, Limitation Act, 1908 was restricted to the cases where time actually spent before wrong forum in good faith---Incumbent on appellant to present memo. of appeal before proper Court as and when it was returned to them but appellants retained the returned memo. with them for seventy-six days---Besides such considerable delay appellants changed and amended the original memo. presented before Appellate Court---Such amended and fresh drafted memo. could not amount to be a returned memo. for the purpose of S.14, Limitation Act, 1908 rather it would be treated as fresh appeal and limitation will run as provided for filing of fresh appeal---Delay in filing appeal could not be condoned in circumstances---Appeal being time-barred was not maintainable.

2000 CLC 1290; PLD 1995 Pesh. 86 and 1982 CLC 214 ref.

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

----O. VI, R.7---Parties cannot be allowed to depart from their pleadings.

Ghulam Abbas Chopa and Waqar Ahmad for Appellants.

Muhammad Nazir for Respondents.

Date of hearing: 25th April, 2007.

2007 C L C 1668

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ABDUS SHAKOOR----Petitioner

Versus

MUHAMMAD ZAFAR ULLAH KHAN and 4others----Respondents

Review Petition No.10 with C.Ms. Nos.9 and 20 of 2007 in Civil Revision Petition No.1238 of 2005, decided on 9th July, 2007.

Civil Procedure Code (V of 1908)---

----S. 114---Partition Act (IV of 1893), S.2---Review of judgment---Scope---High Court in exercise of revisional jurisdiction maintained concurrent judgments of two courts below whereby suit property was finally partitioned---Contentions of petitioner were that provisions of S.2 of Partition Act, 1893, and statement of Local Commissioner were not taken into consideration---Validity---Exercise of review jurisdiction did not mean re-hearing of matter and as finality was attached to the order, a decision, even though it was erroneous per se, would not be a ground to justify its review---In keeping with the limits of review jurisdiction, it 'was futile to re-consider submissions which converge merits of the decision---Before an error could be a ground for review, it was necessary that it must be one which was apparent on the face of record---Error must be so manifest and so clear that no court could permit such error to remain on the record---It might be an error of fact or of law but it must be an error which was self-evident and floating on the surface and did not require any elaborate discussion or process of ratiocination---If court had taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order could not be obtained on the grounds that court took an erroneous view or that another view on reconsideration was possible---Review also could not be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced---Contentions of petitioner, in the present case, were nothing but reiteration of the same grounds, which were .urged at the hearing of revision petition but were rejected by High Court after consideration---High Court did not allow to raise the contentions again in review proceedings in the garb of proceedings for review---Petitioner could not obtain re-hearing of his revision petition---Review petition was dismissed in circumstances.

Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. And another PLD 1997 SC 865 ref.

Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 fol.

M.S.H. Qureshi for Petitioner.

Mian Mohibullah Kakakhel for Respondents.

Date of hearing: 9th July, 2005.

2007 C L C 1673

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD AYUB----Petitioner

Versus

IFTIKHAR AHMAD QURESHI, RETURNING OFFICER, FOR SENATE ELECTIONS 2006 FATA and 9others----Respondents

Election Petition No.1 of 2006, decided on 9th July, 2007.

Senate (Election) Act (LI of 1975)---

----Ss. 34 & 47---Constitution of Pakistan (1973), Art.62(c)---Election of Senate---Age---Determination---Principles---Entries in educational certificates and national identity card---Scope---Petitioner assailed election of respondent on the ground that at the time of filing of nomination papers he was less than thirty years of age---Petitioner produced an official of NADRA who stated that respondent had used redundant National Identification. Card to conceal his genuine age---Respondent produced his father as his witness and also produced decree passed by court of competent jurisdiction declaring correct age of respondent, which decree had attained finality---Validity---Neither entry in educational certificates nor in identity card was conclusive-evidence of date of birth---Official produced by petitioner himself admitted that date of birth mentioned in his record was not conclusive evidence of actual date of birth---Effect---When Authority itself did not claim correctness of date of birth recorded in identity card, then Election Tribunal was left with the only evidence which was that of the father of respondent, who had narrated not only date of birth of respondent but also dates of birth of his other children---Held, since at the tune of filing of nomination papers, respondent was not less than thirty years of age, he was qualified to contest election and did not suffer disqualification in terms of Art.62 of the Constitution and Senate (Election). Act, 1975---Petition was dismissed in circumstances.

Bakhtawar and others v. Amin and others 1980 SCMR 89; Sarli Gul v. Fayyaz Ahmed and others PLD 2004 SC 485; Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962; Mst. Razia Khatoon through legal heirs v. Dr. Roshan H. Nanji and another 1991 SCMR 840; Tehmash Khan and another v. Gohar Ali and 13 others PLD 2004 Pesh. 202; Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Zulfiqar Ali v. Haji Kamal Hussain and 27 others 1995. CLC 1383; Naheed Usmani v. Mst. Anwari Begum 1991 CLC 1774; Master Muhammad Yaseen v. Moeenuddin 1990 CLC 703; Nath Roy and others v. Jyotish Chandra Acharya Chowdhury AIR 1941 Cal. 41; Muhammad Nawaz Khan v. The Collector District Gujranwala and another PLD 1960 (W.P.) Lah. 1123 and Haji Khizar Hayat v. Sarfraz Khan and another PLD 1968 Lah. 381 ref.

Atique Rehman v. Haji Khan Afzal and others 2007 SCMR 507 rel.

Malik Qamer Afzal for Petitioner.

Qazi Muhammad Anwar for Respondent No.2.

Iltaf Ahmad for Respondent No.3.

Date of hearing: 2nd July, 2007.

2007 C L C 1741

[Northern Areas Chief Court]

Before Muzaffar Ali, J

YOUSUF ALI----Petitioner

Versus

ALI GOHAR----Respondent

Civil Revision No.65 of 2006, decided on 8th June, 2007.

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

----S. 47---Jurisdiction of executing court---Suit for declaration and perpetual injunction in respect of a water-mill---Reference to. arbitration---Award submitted before Trial Court with verdict that parties had joint ownership of water-mill and they were entitled to utilize the same by turn for a period of one year each---Trial Court without applying .its judicial mind did not make the whole award as rule of the Court and simply decreed the suit as prayed for perpetual .injunction---Such decree had not been challenged either through review petition or in appeal, hence same got finality---Respondent considering himself a decree-holder filed an execution petition which was allowed by executing court in terms of award---Validity---Only a decree-holder was entitled under law to invoke the jurisdiction of executing court---Decree under execution had revealed that .respondent was not a decree-holder nor decree had been passed in his favour---Arbitrators, no doubt, had determined his right in water-mill but it was the decree which could have been executed by executing court and not the award---Once a decree was passed it had to be executed in its terms and it was not open to executing court to go behind the same or determine the liability of parties---Proper course; of law for the executing court to address the grievance of respondent, in circumstances, was to treat the execution application as a suit under section 47(2), C.P.C.

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

----S. 47---Jurisdiction of executing court---Section 47, C.P.C. purports that, the matter as to the execution, satisfaction and discharge of the decree falls within the domain of the executing court and it is not open to the executing court go behind the decree and re-determine the liabilities and rights of parties and once the decree is passed, it has to be executed in its terms and executing court .has no jurisdiction to modify, alter or interpret the decree in accordance with his own wisdom.

2001 SCMR 396; 2001 SCMR 405; PLD 2003 SC (AJ&K) 14 1994 SCMR 22; 1990 MLD 1189 and 1986 CLC 2927 ref.

Johar Ali for Petitioner.

Munir Ahmed for Respondent.

Date of order: 8th June, 2002

2007 C L C 1754

[Northern Areas Chief Court]

Before Muzaffar Ali, J

WAZIR MUHAMMAD ALI----Appellant

Versus

MUHAMMAD and 2 others----Respondents

First Appeal No.(sic), decided on 6th July, 2007.

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

----S. 115---Revision---Conversion of appeal into revision---Appeal by a party who had no right of appeal under the relevant law---Such appeal could be converted into revision if issue involved some legal points or procedural technicality.

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

----Ss. 114 & 115 read with S.151---Limitation Act (IX of 1908), Art.181---Review petition dismissed for non-prosecution---Application for restoration---Limitation---Civil Procedure Code, 1908 did not provide any .specific provision for restoration of a review or a revision petition dismissed for default, nor any provision of the Code or of Limitation Act, 1908, had fixed any period of limitation for its restoration---In absence of an express provision in the Code, Courts are empowered to exercise their inherent jurisdiction under S.151, C.P.C. to meet .the ends of justice---Once S.151, C.P.C. is applied for such restoration then residuary Art.181, Limitation Act, 1908 would apply which provided three years of limitation.

PLD 1981 SC 513; PLD 2000 SC 820; 1971 SCMR 740; PLD-1992 Lah. 250; PLD 1992 Kar. 329; PLD 1982 Lah. 192; 1992 CLC 1394; 1983 CLC 335 and 1990 CLC 1936 ref.

Muhammad Ali for Appellant.

Akhon Muhammad Ali for Respondents.

Date of hearing: 6th July, 2007.

2007 C L C 1767

[Northern Areas Chief Court]

Before Muzaffar Ali, J

SHAKOOR ALI and another----Petitioners

Versus

ZEENAT SHAH----Respondent

Civil Revisions No.14 of 1999, 5 of 2004 and 21 of 2005, decided on 26th June, 2007.

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

----S. 115---Revisional jurisdiction---Scope---Jurisdiction under S.115 C.P.C. is discretionary in nature---High Court in exercise of said jurisdiction can only interfere if subordinate Courts have failed to exercise their jurisdiction or exceeded their jurisdiction or have committed any material irregularity or illegality---Revisional jurisdiction cannot be exercised to interfere even when the impugned finding are erroneous or wrong, either on a question of law or facts, unless the findings involve a matter of jurisdiction---Arriving at any other conclusion on fresh assessment and appreciation of evidence is of no avail.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Both courts below had concurrently found that plaintiffs had failed to prove filing of the suit within limitation---Contention that father of plaintiffs had succeeded to get back the possession of suit land in 1972 but in the same year defendant dispossessed -the plaintiff forcibly, had no force as one of the witnesses had conceded that defendant was continuously in possession of suit land and was never dispossessed by plaintiffs---Plea that plaintiffs had also filed suit before Ullma Board, which failed to decide the matter till its abolition in the year 1975 hence cause of action against defendant arose in the year 1975, was repelled as plaintiffs had failed to place any copy of plaint, they had submitted before said Board---Ullma Board was empowered to act as civil court by the Government and when the Boards were abolished then all the record and pending matters were remitted to the civil courts established in Gilgit---Plaintiffs even failed to .prove that gift deed executed by stepfather of defendant in his favour in respect of suit land .was the result of .fraud and collusion---Concurrent findings of courts below not suffering from any misreading or non-reading of evidence could not be interfered with in revisional jurisdiction by High Court.

Mir Ghulam Sarwar for Petitioners.

Muhammad Issa for Respondent.

Date of hearing: 26th June, 2007.

2007 C L C 1787

[Peshawar]

Before Said Maroof Khan, J

ALLAH DEWAYA and others----Petitioners

Versus

MUHAMMAD HUSSAIN through L.Rs. and others----Respondents

Civil Revision No.53 of 2006, decided on 15th June, 2007.

Muslim Family Laws Ordinance (VIII of 1961)----

----S. 4---Succession---Inheritance mutation, in respect of landed property of deceased owner was sanctioned in favour of his two sons and two daughters/petitioners---Respondents who were sons of pre-deceased daughter of deceased original owner and were deprived of inheritance of deceased, instituted a declaratory suit challenging the validity, of said mutation and claimed, 1/7th share in the said property----Suit was contested by the petitioners on the ground that mother of respondents having died prior to the death of her father/original owner, respondents being her legal heirs were not entitled to any share out of estate of the deceased owner---Trial 'Court decreed the suit in favour of respondents/legal heirs of deceased daughter of original owner and appeal against judgment of the Trial Court had also been dismissed by the Appellate Court---Counsel for the petitioners had contended that S.4 of Muslim Family Laws Ordinance, 1961 under, which respondents i.e. legal heirs of deceased daughters of original owner had claimed share in the property of deceased original owner, having been declared violative of Injunctions of Islam by the Federal Shariat Courts, respondents could not inherit any share out of disputed property; and that the Courts below had .wrongly and illegally declared thementitled to inheritance of deceased---Validity---Contention was repelled, because since appeal against the judgment of the Shariat Court was pending adjudication in the Supreme Court, in view of Art.203-D of the Constitution, decision of Federal Shariat Court would stand suspended till disposal of appeal by the Supreme Court---Even otherwise verdict given by Federal Shariat Court was not applicable to the case because provisions of S.4 of Muslim Family Laws Ordinance, 1961, had been held repugnant to injunction of Islam subsequent to opening of succession in respect of the property of the deceased---Respondents being legal heirs of deceased were entitled to get their due share out of property of deceased original owner---- Concurrent findings of the Courts below not suffering from any illegality or irregularity, would not call for interference by the High Court in revision.

Allah Rakha and others PLD 2000 FSC 1 and PLD 2003 SC 475 ref.

Muhammad Yousaf Khan for Petitioners.

Muhammad Iqbal Ghuncha for Respondents.

Date of hearing; 15th June, 2007.

2007 C L C 1855

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. LAL BAHA----Petitioner

Versus

Mst. ZELLE HUMA AHMAD and 27 others----Respondents

Writ Petition No.885 of 2007, decided on 17th July, 2007.

North-West Frontier Province Local Government Elections Rules, 2005---

----Rr. 35 & 71---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-counting of votes---Proceedings before Election Tribunal---Record had resealed that petitioner was not served in accordance with the requirements of law---Substituted service through proclamation in the newspapers though was resorted to, but nothing in writing had been brought on record to show as to why the normal modes of service were leaped over---Recount done at the back of petitioner was left intact, while the ex parte proceedings, for quite tenable reasons, had been set aside---No canon of law would justify such course---Entire proceedings including the recount was to be made de novo, once the Election Tribunal looked at the ex parte proceedings with reservation---Election Tribunal going wrong in law, went outside its jurisdiction, conferred on it---Order passed by the Tribunal could not be maintained---Structure based on a defective order could not sustain itself and had to collapse together with the order---Impugned orders were set aside and case was sent back to Election Tribunal for decision afresh in accordance with law after making the recount in the presence of the petitioner.

Pearlman v. Governors of Harrow school (1978) 3 WLR 736 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

Khalid Mahmood for Petitioner.

Shakeel Ahmad for Respondents.

Date of hearing: 17th July, 2007.

2007 C L C 1574

[Quetta]

Before Muhammad Nadir Khan and Mehta Kailash Nath Kohli, JJ

ABDUL LATIF----Petitioner

Versus

PROVINCE OF BALOCHISTAN through Secretary; Home and Tribal Affairs, Quetta and another----Respondents

C.P. No.213 of 2004, decided on 7th June, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Aggrieved person---Orders which were passed on the basis of universal principles, were applicable to all parts of the country, unless same were repugnant to any provision of statute or fundamental rights and as such could not be interfered with---Petitioner, who had no personal interest' in the matter, could not be treated as aggrieved person---Discretion could not be exercised to allow favouring people to remain backward in the area---Constitutional petition was dismissed.

Shah Muhammad Jatoi for Petitioner.

Abdul Nadir Kasi for Respondents Nos.1 and 2.

Date of hearing: 4th June, 2007.

2007 C L C 1831

[Quetta]

Before Amanullah Khan Yasinzai, C.J. and Ahmed Khan Lashari, J

PERVAIZ AKHTAR MALIK----Petitioner

Versus

Mst. QAISER NARGIS and another----Respondents

Constitutional Petition No.752 of 2001, decided on 28th July, 2003.

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

----Ss. 5, Sched. & 14---West Pakistan Family Courts Rules, 1965, R.6---Guardians and Wards Act (VIII of 1890), S.9---Constitution of Pakistan (1973), Art.199---Suit for dissolution of marriage, maintenance, dower and application for appointment of guardian of minor---Territorial jurisdiction---Determination of---Territorial jurisdiction of the Court in suits for dissolution of marriage, maintenance, or dower, was to be determined by the cause of action where wholly or in part it arose or where the parties ordinarily resided or the court within. the local limits of which the wife ordinarily resided as provided by R.6 of West Pakistan Family Courts Rules, 1965---Jurisdiction- of the court for appointment of guardian of minor was to be assessed by S.9 of the Guardians and Wards Act, 1890, which had provided that: the court within the jurisdiction of which minor ordinarily resided, would have jurisdiction to proceed with the matter---In resolving the question as to which court had jurisdiction to entertain the application afresh for determining the,: residence of minor, the balance of convenience and interest of the minor, would also be kept in view---Children in the present case were residing and being educated at Karachi with the petitioner for more than 3 years---District Judge in Karachi, in circumstances had jurisdiction to entertain the application and the suit.

Muhammad Ashfaq Butt for Appellant.

Raja Rab Nawaz for Respondents.

Date of hearing: 22nd July, 2003.

2007 C L C 281

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Mst. KOUSAR BEGUM and another----Appellants

Versus

MATLOOB HUSSAIN SHAH and 2 others----Respondents

Civil Appeals Nos.16 of 2005, 81 of 2004, decided on 23rd November, 2006.

(a) Azad Jammu & Kashmir Family Courts Procedure Rules, 1998---

----R. 3(1)---Azad Jammu and Kashmir Family Courts Act, 1993, S.5, Sched, and Ss.7 & 22---Civil Procedure Code (V of 1908), O.VI, Rr.14 & 15---Suits for recovery of dower, dowry, maintenance and restitution of conjugal rights---Non-signing and non-verification of plaints---Effect---Appeal to Shariat Court---Suits were consolidated and issues were framed in the light of pleadings of parties---When case was at the stage of final arguments, defendants filed an application for dismissal of suits on the ground that the plaints had neither been signed nor been verified by plaintiffs---Court below dismissed suits on the ground that plaints were found unsigned and unverified as required by R.3(1) of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998---Validity---Cursory survey of relevant provision of R.3(1) of Azad Jammu and Kashmir Family Courts Procedure Rules 1998, had shown that by using the word ''shall" it had been made incumbent upon a plaintiff to sign and verify his/her plaint, but it transpired from the careful perusal of said Rule that no penalty had been provided for non-compliance of said Rule---Such direction, in circumstances had to be interpreted as directory and not mandatory---Normal rule of construction was that when statute did not provide for consequences of failure to comply with the direction contained in it, such direction was to be interpreted as directory and not mandatory---Impugned orders were set aside with the direction that Family Court after affording an opportunity of hearing to parties, would proceed further in accordance with law.

Mst. Shaukat Faroze v. District Judge, Bahawalpur and another PLD 1974 BJ 4; PLD 1987 Kar. 926; Andleeb Sahir Butt v. Family Judge Bagh and another 1996 SCR 281 Sabir Hussain's case 1997 MLD 2962 and Saeeduddin v. IIIrd Senior Civil Judge (East) Karachi and another PLD 1992 Kar. 302 ref.

(b) Interpretation of statutes---

----Directory or mandatory provision---Rule---Normal rule of construction was that when statute did not provide for consequences of failure to comply with the direction contained in it, such direction was to be interpreted as directly and not mandatory---Statute must be read as a whole and one provision could not be interpreted in isolation of other---Provision of a section/statute or rule, must be read as a whole and to be interpreted in a manner to harmonize its various sections and subsection while determining its nature.

PLD 1978' Kar. 926; Saeeduddin v. IIIrd Senior Civil Judge (East) Karachi and another PLD 1992 Kar. 302; Mst. Shaukat Faroze v. District Judge, Bahawalpur and another PLD 1974 BJ 4; Maj. Shujail Ali v. Mst. Surraya Begum PLD 1978 (SC) AJK 118; Andleeb Sahir Butt v. Family Judge Bagh and another 1996 SCR 281; Fouji Sugar Mills v. Province of Punjab 1996 CLC 592 and The State v. Zahid Nadeem and another 1996 MLD 506 ref.

Muhammad Asif Kayani for Appellant (in Civil Appeal No.16 of 2005).

Sardar Khan for Respondents (in Civil Appeal No.16 of 2005).

Sardar Khan for Appellant (in Civil Appeal No.81 of 2004).

Sardar Nazar Muhammad Khan for Respondent (in Civil Appeal No.81 of 2004).

2007 C L C 448

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

RAFIQUE HUSSAIN and another----Appellants

Versus

ZAREENA BIBI and 4 others----Respondents Civil

Appeal No.25 of 2006, decided on 13th December, 2006.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

---Ss. 13 & 14---Execution of decree---Application for---Dismissal of application for non-prosecution---Restoration of application---Appeal---Maintainability---Application for execution of decree by respondents was dismissed for non-prosecution and Family Court on application of respondents, restored said dismissed application---Appellants had challenged restoration order in appeal contending that Family Court was not empowered to restore any application dismissed for want of prosecution; and that respondents had failed to prove any sufficient cause for their absence---Respondents had submitted that impugned order being an interlocutory order, appeal filed by appellant was not maintainable---Validity---Undoubtedly orders for restoration of files dismissed for want of prosecutions, were interlocutory orders because said orders did not finally dispose of dispute between parties---Under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993, appeal could be filed by aggrieved party against a decision or a decree passed by a Family Court---No provision, in circumstances was enacted to challenge the interlocutory matters by way of appeal or a revision petition, because Azad Jammu and Kashmir Family Court Act, 1993 was promulgated and Family Courts were established for expeditious settlement and disposal of disputes relating to marriage, family affairs and for matters connected therewith---Appeal, in circumstances was not maintainable against the interlocutory order---Respondents had proved sufficient cause for their absence as on account of heavy rains and land sliding they could not approach the Court at relevant time---One of the respondents was a lady and others were her minor children; she was pursuing execution proceedings and her counsel who was also a lady, could not appear before the court because of her illness---Application was rightly restored by the Family Court, in circumstances.

Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510; Mst. Shanaz Bibi and 2 others v. Munawar Din 2005 SCR 409; Muhammad Ramzan v. Rukhsana Kousar and another 2006 SCR 104; Mst. Zarina Begum v. Nisar Hussain and another 1996 SCR 82 and Azeez Din and another v. Qadir Buksh and 2 others PLD 1987 Lah. 119 ref.

(b) Administration of justice---

----In absence of any express provision of law, the court while invoking its inherent powers, could adopt any suitable procedure nearer to the principles of Justice.

(c) Words and Phrases

-----Suit, defined and explained.

Rubina Fazal's case 2005 SCR 37 and Zareena Begum v. Nisar Hussain and another 1996 SCR 82 ref.

Abdul Latif for Appellants.

Mrs. Balqees Rasheed Minhas for Respondents.

2007 C L C 575

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

AFTAB AHMED BUTT----Appellant

Versus

BABRA RAHEEM----Respondent

Civil Appeal No.42 of 2005, decided on 22nd December, 2006.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

---Ss. 5, Sched. & 10---Azad Jammu and Kashmir Shariat Courts Ordinance, 1982, Ss.6 & 11---Suit for recovery of dower amount and dowry---Written statement---Not an admission---Plaintiff had contended that defendant had admitted the claim---Validity---Written statements by defendant did not come within the purview of admission of the claim; as defendant had categorically averred in his written statement that in case plaintiff returned his ornaments, then he would be ready to pay her dower and also return her dowry, otherwise after deduction of the price of ornaments, remaining amount or jewellery could be given to her---Conditional written statement thus could not he described as admission, in circumstances---Court was to strike issues in the light of pleadings of the parties and thereafter to proceed in accordance with law, but court fell in grave error while recording a brief and sketchy order in a hasty manner, which could not be maintained---Court had also ignored preliminary objections raised by defendant in his written statement to the effect that in absence of the signatures of the plaintiff and her counsel upon the plaint, on the Schedule of witnesses and non-availability of the signatures of the Advocates of plaintiff on Vakalatnama, suit was not maintainable; on that account it was also a fit case where the court should have framed the issues and fixed a date for evidence---Court, in circumstances had failed to follow the mandatory provisions of Azad Jammu and Kashmir Family Courts Act, 1993---Decisions and decrees of courts below were set aside and cases were remanded to be decided afresh after framing necessary issues, accordingly.

PLD 1978 SC (AJ&K) 37; 1999 YLR 2310; 2004 PCr.LJ 433 and 1999 PLC (C.S.) 624 rel.

Syed Mujahid Hussain Naqvi for Appellant.

Pervaiz Akhtar Niazi for Respondent.

2007 C L C 686

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

Mst. NAZISH KAZMI and others----Appellants

Versus

Syed SHUJAAT HUSSAIN KAZMI and others----Respondents

Sh. Appeals Nos.8, 9, 10 and 11 of 2006, decided on 23rd January, 2007.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

---Ss. 5, Sched. & 10(4)---Suit for dissolution of marriage and recovery of dower--Trial Court after recording evidence of both parties, decreed suits of plaintiff-wife for dissolution of marriage on basis of Khula and for recovery of dower to the tune of half of the dower--Cross suit by husband for restitution of conjugal rights was dismissed---Judgment and decree of the Trial Court had been impugned by husband mainly on two points; firstly that Trial Court failed to frame issues after submission of his written statement and, in circumstances had violated mandatory provisions of law; secondly that Trial Court had failed to appreciate the fact that, if the divorce took place on the initiation of wife without consummation, she was bound to pay whole amount of Khula, instead of the half one---Validity---Held, regarding first point relating to failure of framing issues, under provisions of S.10(4) of Azad Jammu and Kashmir Family Courts Act, 1993, framing of issues no doubt had been made obligatory after filing written statement, but at the same time, since no consequence had been provided for not framing issues, requirement of framing issues was not obligatory---Requirement in context of the provisions, seemed to be directory in nature and not mandatory---Parties were alive to the case, they produced their evidence upon their respective claims and no one objected with regard to the time and stage of framing the issues---Trial Court, in circumstances had rightly passed impugned judgment and there appeared no illegality or irregularity, whatsoever---Regarding point of full amount of dower in consideration of Khula, Nikah Nama had shown that dower amounting to Rs.1,50,000 was fixed as prompt dower and rest was fixed as deferred---Prompt dower was paid in the shape of half part of house while rest being deferred was kept pending---Evidence produced on record had shown that relations of spouses were severely strained and had gone to the stage that they were not only unable to pass a happy life as being husband and wife, but also live together within the limits ordained by Allah---Trial Court, in circumstances had rightly decreed suit filed by plaintiff on basis of Khula---Marriage which was not consummated, wife was entitled to half of the dower---Decree of Khula granted to wife for recovery of dower to the tune of half of dower, was perfectly in accordance with Islamic Law---Trial Court having not committed any misreading or non-reading of evidence, judgment and decree passed by it could not be interfered with.

PLD 1974 BJ 4 and 2005 CLD 875 rel.

Mushtaq Ahmed Janjua for Appellant.

Kh. Aslam Habib for respondent.

2007 C L C 972

[Shariat Court (AJ&K)]

Before Sardar Muhammad Ashraf Khan, J

Mst. YASMIN AKHTAR----Appellant

Versus

ABDUL MATEEN ZAHID----Respondent

Sh. Appeals Nos.22 to 25 of 2005, decided on 13th February, 2007.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S.5 & Sched.---Azad Jammu and Kashmir Shariat Courts Ordinance, 1982, Ss.6 & 11---Civil Procedure Code (V of 1908), O.XX, R.5---Suit for dissolution of marriage, recovery of dower and dowry and restitution of conjugal rights---Appeal to Shariat Court---Wife filed suits for dissolution of marriage, recovery of dower and dowry against the husband, whereas husband had filed suit for restitution of conjugal rights against the wife---Trial Court consolidated all the suits and after recording evidence of parties, dismissed suits filed by wife with regard to dissolution of marriage, recovery of dowry etc., but decreed suit for restitution of conjugal rights filed by husband---Wife, in proof of her claim had produced six witnesses and she also appeared herself as witness, but Trial Court had only discussed two witnesses and totally blacked out remaining four---Husband also produced six witnesses and he himself appeared as his witness, but Trial Court also relied upon two witnesses and remaining four had not been discussed---Trial Court, in circumstances had failed to apply its judicial mind and had tried to get rid of the case---While deciding controversial points in issue between parties, evidence produced must be taken into consideration---Evidence adduced must correctly be appreciated and thereafter the Court should have formed its opinion with regard to point in issue---Trial Court had not only failed to `appreciate' evidence but evidence had totally been ignored---Judgment must be self speaking, narrating points in issue and correct appreciation of evidence, but Trial Court had not only ignored said principle, but also failed to appreciate whole evidence produced by the parties---Trial Court, in circumstances having committed a grave illegality by non-reading and misreading of evidence, same could not be treated to be a judgment in the eye of law---Impugned judgment of the Trial Court was set aside with direction that the Trial Court would decide case afresh accordingly.

Lakhi Zaman for Appellant.

Raja Muhammad Perviz for Respondent.

2007 C L C 404

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J

KHADAM HUSSAIN----Appellant

Versus

MUHAMMAD AZAM SATI----Respondent

Civil Appeal No.28 of 2006, decided on 24th November, 2006.

(On appeal from the judgment and decree of the High Court, dated 13-2-2006 in Civil Appeal No.156 of 2005).

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

----O. III, Rr.1, 2 & 4---Counsel and client---Power of attorney---If a civil suit was brought or defended by an attorney on behalf of plaintiff or defendant, the recitals made in power-of-attorney were to be looked into and construed very strictly---Attorney could do and perform only such acts and actions, which had specifically been provided in the document/power-of-attorney itself---Any jumping over or jumping out would be an illegality and the person for whom the attorney had acted would not be bound by that action.

Gultaj Begum v. Lal Hussain PLD 1980 SC (AJ&K) 60 ref.

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

----S. 12---Azad Jammu and Kashmir. Interim Constitution Act (VIII of 1974), S.42---Suit for specific performance of agreement---Decision on basis of oath---Principle of approbate and reprobate---Applicability---Appeal to Supreme Court---Suit having been decreed by the Trial Court, appeal was filed against the same---Counsel for appellant, during pendency of appeal, offered that if respondent took oath on Holy Qur'an that he had purchased suit land after paying consideration amount, he would not press his appeal---Respondent after accepting said offer stated on oath that he had purchased suit land as had been stated by him in the suit---High Court/Appellate Court on basis of such statement of respondent, dismissed appeal---Appellant filed appeal before Supreme Court against judgment of High Court---Validity---Decision of a case on basis of oath had more force as compared to any other form of decision---Once the offer had been accepted by the parties they could not wriggle out from such accepted offer as same would be an agreement of binding force---Principle of approbate and reprobate would be applicable in the case with full force.

Muhammad Mazhar v. Arshad Mehmood PLD 2005 Lah. 304 ref.

Mushtaq Ahmad Janjua and Muhammad Azam Khan, Advocate for Appellant.

Sardar Muhammad Azam Khan, Advocate for the Respondent.

Date of hearing: 21st November, 2006.

2007 C L C 474

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

SUGHRAN BIBI----Appellant

Versus

AKHTAR HUSSAIN----Respondent

Civil Appeal No.62 of 2006, decided on 19th December, 2006.

(On appeal from the judgment of the Shariat Court, dated 11-6-2005 in Civil Appeal No.9 of 2004).

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

----Ss. 17 & 25---Custody of minor---Persons entitled to get custody of minor---Welfare of minor---Principles---In presence of the parents claiming the custody of child, grandfather or other legal guardians, could not be considered for handing over the custody to them under any law including Islamic Law and Guardians and Wards Act, 1890---Rule that welfare of the minor, would be presumed with person who was entitled , to the custody under Islamic Law, was not absolute and matter of custody would always remain subject to the welfare of the minor--Guidelines provided by Islamic Law were not absolute in nature and while appointing a guardian of the person of a minor, her (minor's) choice could not be overlooked---Paramount consideration which had to weigh with the court was welfare of the minor which also included not only her well-being, but also had to be determined keeping in view the surroundings in and outside the house where her father or mother lived---Despite disqualification incurred by the mother, she could be handed over the custody of her minor child if welfare of the minor so warranted---Prime consideration for appointment of guardian was the welfare of the minor which must weigh with the court irrespective of the provisions of Personal Law---Conduct of the father or mother must also be considered and choice of minor could not be taken lightly and must be given weight. Shafique-ur-Rehman v. Mst. Fazeelat Begum 1995 SCR 136. overruled.

Mst. Hurbai v. Usman PLD 1963 Kar. 888; Zahoor Ahmed v. Mst. Rukhsana Kausar and 4 others 2000 SCMR 707; Irshad Begum v. Mirza Muhammad Haleem and another 2003 YLR 3245; Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547; Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299; Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR 744; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 604; Mst. Fazeelat Begum v. Public in General and another PLJ 1994 AJ&K 33; Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265; Bashir Bibi v. Ghulam Rasool and 2 others 2004 SCR 561; Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 204; Tassadiq Hussain Shah v. Mst. Surraya Begum 1980 CLC 1802; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 ref.

Shafique-ur-Rehman v. Mst. Fazeelat Begum 1995 SCR 136 overruled.

Mir Khalid Mehmood, Advocate for Appellant.

Ch. Muhammad Afzal, Advocate for Respondent.

2007 C L C 1771

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhary, C. J. and Khawaja Shahad Ahmed, J

Syed SHUJHAT HUSSAIN KAZMI----Appellant

Versus

Mst. NAZISH KAZMI----Respondent

Civil Appeal No.34 of 2007, decided on 15th August, 2007.

(On appeal from the judgment and decree of Shariat Court, dated 23-1-2007 in Shariat Appeals Nos.8, 9, 10 and 11 of 2006).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.-42---Appeal to Supreme Court---Supreme Court was regulated by law and rules made thereunder---More than a dozen witnesses had been produced in the case by the parties, in support of their respective contentions---Supreme Court could not accept the set of statement of witnesses favouring the appellant's contention and reject .that part of statement which supported the respondent---Findings recorded on the points of facts were accepted as correct, particularly when no case of misreading or non-reading of evidence had been pressed into service before the Supreme Court or brought on record.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.17---Suits for dissolution of marriage, dower and restitution of conjugal rights---Civil Procedure Code, 1908---Applicability to proceedings before Family Court---Code of Civil Procedure, 1908 had provided the procedure for conduct of civil cases, which did not in any way affect the inherent powers of the Family Court for doing. complete justice between the parties and for making just decision---Only one exception was available to that principle, namely that if any deviation from procedure causing injustice to party was apprehended, the provisions must be applied strictly---In the present case no specific provision had been referred to persuade the court to recall the judgment and decree passed by the Family Court and concurred by the First Appellate Court---Appeal was dismissed.

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

---O. XIV, R.1---Framing, reframing or non-framing of issues---Any flaw and fault on the part of the Trial Court in framing or reframing issues, would not render the judgment subject to reversal---Where the parties were alive to the disputed points, reframing or non-framing of issues, would be immaterial.

Mst. Shaukat Feroze v. The District Judge, Bahawalpur and another PLD 1974 BJ 4 and Jawad Liaqat and 5 others v. Dr. Zafar Iqbal 2001 YLR 161 rel.

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

----O. VI, R. 17---Amendment of pleadings---Party was at liberty to apply for amendment of the pleadings in the Trial Court and even before the Supreme Court at any time, but amendment applications could neither be entertained nor allowed to deprive the other party in whom aright had come to vest on account of negligence or indolence of the applicant---Amendment applications and other application for dismissal of the suit, could not be filed to keep hanging other party for indefinite period, particularly when in the set of circumstances of the case the time was running fast.

(e) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5 & Sched. S.12(2)---Dissolution of marriage on basis of Khula---Scope---Wife was entitled to dissolution of marriage on ground of Khula when in view of the circumstances of the relation between the spouses, the wife had reached a point of no return aid had developed dislike and hatred for her husband and the court was of the opinion that the parties could not observe the limits ordained by God---Only condition was that wife had to pay to the husband full consideration she had received from her husband at the time of marriage, as the court would determine---Court must contemplate in such a case that once alike eventuality occurred or arose, it must rush to conclude the trial so that the wife could opt for her future course as she liked and the court should not prolong the proceedings till a point of time .when even a favourable decree could become useless and futile for the wife---Provision of subsection (2) of S.12 of Azad Jammu and Kashmir Family Court Act, 1993, had clearly provided that Family Court should finally decide case within a period of four months from the date of presentation of the plaint---While conducting the proceedings under a particular law or enactment, the purpose of Act was to be given priority and it could not be defeated by resorting to sheer technicalities---Cases involving family matters including dissolution of marriage must be decided within the period provided by the Act and technicalities must be avoided as far as possible and any delaying tactics be discouraged.

Mst. Naqeeba Begum v. Abdul Khaliq 2001 YLR 161; Zohra Bi v. Muhammad Saleem and others 2005 SCR 82; Tanveer Hussain v. Nani sultana and 4 others 2006 SCR 238; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 Lah. 566; Nisar Ahmed v. The State 1982 PCr.LJ 1287; Province of Punjab through Secretary, Housing and Physical Planning .Department Government of Punjab, Lahore v. Additional Commissioner (Rev.) and 6 others 2001 MLD 729 and Habib Bank Limited v. Messrs Qayyum Spinning Limited and others 2001 MLD 1351 ref.

(f) Interpretation of statutes---

----Purpose of enactment could not be bypassed, flouted or otherwise defeated by resorting to technicalities and the purpose/intent must be the prime consideration---Basic and .fundamental rule of interpretation of statutes was that the court should ascertain the intention and the purpose of the Legislature; because it was the essence of the statute---Legislative purpose was the reason, why a particular enactment was passed by the Legislature.

Kh. Muhammad Aslam Habib, Advocate for Appellant.

Muhammad Yaqoob Khan Mughal, Advocate for Respondent.

Date of hearing: 1st June, 2007.