CLC 2008 Judgments

2008 C L C 312

[Board of Revenue, Punjab]

Before Syed Muhammad Hamid, Member (Judicial-II)

MANZOOR HUSSAIN----Petitioner

Versus

CHOLISTAN DEVELOPMENT AUTHORITY, BAHAWALPUR through Managing Director/Vice-Chairman and others----Respondents

R.O.R. No.658 of 2005, decided on 17th July, 2007.

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

----S. 7---West Pakistan Land Revenue Act (XVII of 1967), S.164---Revision---Allotment of land---Dispossession of allottees---Authority directed petitioners to cultivate land in question and promised to accommodate them when allotment of land would open---Petitioners, on such assurance developed said land, cultivated it and regularly paid Abiana to the Authority---Subsequently when troops of army came in the land petitioners were dispossessed, despite the order of High Court as well as stay order issued by the civil court in favour of petitioners---Authority having failed to redress the grievances of the petitioners, they approached High Court, which ordered that application already filed by the petitioners for allotment be considered in accordance with law---Authority was required to examine the record of petitioners and then decide the matter---Once petitioners were allowed to cultivate the barren land in dispute, they could not have been ejected from said land which was developed by them---No doubt the possession of the petitioners over the land in dispute was illegal, but their longstanding possession over said land could not be overlooked---Accepting revision, impugned orders were set aside, with direction to the Authority to look into the matter, consider the claim of petitioners, scrutinize the record and after hearing them should decide the case.

Petitioner in person.

Saif-ul-Haq Ziay for Petitioners.

Zahid . Hussain Khan, Legal Advisor Cholistan Development Authority, Bahawalpur.

Muhammad Akmal, Litigation Clerk, C.D.A. Bahawalpur.

2008 C L C 589

[Board of Revenue Punjab]

Before Zafar Iqbal, Member (Judicial-I)

FAIZULLA H----Petitioner

Versus

MUHAMMAD GUL----Respondent

R.O.R. No.217 of 2007, decided on 20th August, 2007.

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

---Ss. 163 & 164---Revision against impugned order passed by the Executive District Officer (Revenue), whereby he accepted the review petition---Executive District Officer (Revenue) while passing order did not give any cogent reason to accept claim of review petitioner---Impugned orders of the lower forums were set aside and case was remanded to District Officer (Revenue) for passing a speaking order after listening to the parties.

Saif-ul-Haq Ziay for Petitioner.

Ameer Umar Farooq Nathoka for Respondent.

2008 C L C 940

[Board of Revenue Punjab]

Before Inam-ul-Haq, Member (Judicial-VII)

AKHTAR MAHMOOD----Petitioner

Versus

MUHAMMAD ASLAM----Respondent

R.O.R. No.1275 of 2007, decided on 18th March, 2008.

Punjab Tenancy Act (XVI of 1887)---

----Ss. 5 & 84---Possession over land as tenant at will with consent of the owner---Petitioner or his predecessor had been continuously in possession of land in dispute since 1940-41 up-till 1988-89 it was recorded that petitioner was enjoying the possession as "tenant at will" and thereafter the capacity in which petitioner possessed said land was not recorded---Petitioner was in possession of land in dispute with the consent of the respondent/owner and was paying revenue at the same rate at which it was to be paid by the owner---Respondent/owner was obliged to pay the land revenue, but in the present case occupant was doing so at the same rate due to his relationship with the owner---Possession of petitioner on land in dispute being legal, ejectment of petitioner by the court below after declaring him illegal occupant, was absolutely wrong---Impugned orders were set aside---Possession of land in dispute by the respondent owner, was illegal which would be restored to the petitioner.

Noor Muhammad Awan and Muhammad Irshad Chaudhry for Petitioner.

Muhammad Arif Gondal for Respondent and Muhammad Shahid Aslann son of Muhammad Aslam, Respondent in person.

2008 C L C 206

[Election Tribunal Punjab]

Before Syed Zahid Hussain, J

Ch. MUHAMMAD SABOOR KISANA----Petitioner

Versus

MUHAMMAD AJMAL CHEEMA and others----Respondents

Election Petition No.85 of 2002, decided on 6th July, 2007.

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

----S. 99(1)(cc)---Conduct of General Elections Order (Chief Executive's Order No.7 of 2002), Art.8A---Educational qualification of candidate for election of National/Provincial Assembly---Competent forum to determine---Higher Education Commission is the competent forum for the determination of equivalence of certificates, degrees, qualifications etc., which has constituted Equivalence and Accreditation Committee for such purposes---Article 8A of the Conduct of General Elections Order, 2002 and S.99(1)(cc) of the Representation of the People Act, 1976 not only envisages the vesting of such a power and function in the Commission but also accords due relevance to the findings/views of the Higher Education Commission---In the present case, the Committee comprising six Professors had come to the conclusion that the degree in question was recognized as equivalent to Bachelor's degree involving 14 years of education from Pakistan, there thus, remained no further scope for Election Tribunal to probe or question the decision of such a high powered Committee.

Ch. Muhammad Saboor Kisana v. Muhammad Ajmal Cheema 2007 CLC 1635 ref.

Dr. M. Mohy-ud-Din Qazi and Mubeen-ud-Din Qazi for Petitioner.

Dr. A. Basit, Zafar Iqbal Chaudhry, Dy. Attorney-General, Pakistan with Malik Anwar Mukhtar, Legal Advisor Higher Education Commission and Muhammad Javed Khan, Director-General, Higher Education Commission, Islamabad for Respondents.

Dates of hearing: 29th May, 1st, 5th, 6th, 8th, 11th, 12th, 15th June, 2nd and 6th July, 2007.

2008 C L C 240

[Election Tribunal Punjab]

Before Syed Zahid Hussain and Fazal-a-Miran Chauhan, Election Tribunal

SIKANDAR HAYAT KHAN BOSAN----Appellant

Versus

Syed YOUSAF RAZA GILLANI and another----Respondents

Election Appeals Nos.70-A and 46-A of 2007, heard on 12th December, 2007.

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

----Ss. 14(5) & 99---Criminal Procedure Code (V of 1898), S.430---Constitution of Pakistan (1973), Art.63---Acceptation of nomination papers---Appeal against---Both appellant and respondent filed nomination papers in respect of elections scheduled to be held on 8-1-2008---During the course of scrutiny of nomination papers, appellant raised objection against respondent that Accountability Court had convicted and sentenced him for being defaulter and that he had concealed that fact---Validity---Conviction and sentence in question awarded to respondent by the Accountability Court, had been challenged in two appeals, which. were awaiting decision of the High Court---Matter of guilt or innocence of respondent was sub judice and in terms of S.430, Cr.P.C. decision of the High Court would be the final determination of his guilt or otherwise---Respondent for the time being, could not be considered a convict within the meaning of Art.63(h) of Constitution and clause (r) of subsection (1)(a) of S.99 of Representation of the People Act, 1976---Pendency of appeal was always considered to be continuation of the trial---Even otherwise, conviction and sentence awarded to respondent had been suspended by a Division Bench of High Court and. said order of suspension was not challenged by the prosecution---Impugned order did not suffer from any illegality or irregularity nor same was without jurisdiction.

2006 YLR 48 ref.

Dr. Khalid Ranjha for Appellants (in E.A. No.70-A of 2007).

Shaukat Ali Merh for Appellants (in E.A. No.46-A of 2007).

Muhammad Shahid Baig and Waqar A. Sheikh for Respondents (in E.A. No.70-A of 2007).

Waqar A. Sheikh for Respondent (in E.A. No.46-A of 2007).

Asad Bilal, Inspector, Income Tax Department, Multan Zone.

Date of hearing: 12th December, 2007.

2008 C L C 304

[Election Tribunal, Punjab]

Before Syed Zahid Hussain and Fazal-a-Miran Chauhan, JJ, Election Tribunal

JAWAD HUSSAIN MANJ----Petitioner

Versus

RETURNING OFFICER and another----Respondents

E.As. Nos.119-A, 190-A, 176-A and 196-R of 2007, heard on 12th December, 2007:

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

----Ss. 158 (as amended) & 162---Representation of the People Act (LXXXV of 1976), Ss.2(viii) (xxvi) (xxvii), 11, 12, 14, 15 & 16---Dual membership--- Import and content of S.158, Punjab Local Government Ordinance, 2001---Nazim or Naib Nazim may file nomination papers for Provincial/National Assembly without resigning but will have to resign from the office of Nazim or Naib-Nazim before the expiry of date of withdrawal of candidature and under S.162, Punjab Local Government Ordinance, 2001, the said resignation is deemed to be accepted and effective forthwith---Principles---Terms. "contest", "contest election", "contesting candidate", "a validly nominated candidate", "returned candidate" and "withdrawal day"---Definitions.

The comparison of phraseology of section 158 of Punjab Local Government Ordinance, 2001, amended and unamended, shows that the holder of an elective office could contest election for any other political office but he had to resign "before filing of his nomination papers for election to the new office". The phrase "before filing his nomination papers", however, has been done away with by the Legislature in the amended provision. According to the provision now existing, a Nazim or Naib Nazim "may contest election for any other political office after resigning from the office of Nazim or, as the case may be, Naib Nazim". The condition of resignation before filing of nomination papers has now lost its relevance or importance. It is a significant change and omission in law, aimed at to enable him to file nominations without resignation. According to the amended provision, the resignation can be tendered at any time before "contest" of the election. In this context, the words "contest election" have assumed somewhat greater importance. No precise definition of the said phrase is available. In order to find out the import of the phrase "contest election", some provisions of the relevant law i.e. the Representation of the People Act, 1976 will have to be kept in view. According to definition clauses mentioned in section 2 of the Representation of the People Act, 1976, a "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature (clause viii). A "validly nominated candidate" as per clause (xxvi) means a candidate whose nomination has been accepted. Another clause relevant in the context is clause (xxvii), which defines "withdrawal day" to mean "a day appointed under section 11 on or before which candidature may be withdrawn". It may be mentioned that Chapter IV deals with conduct of elections. Section 11 of the Representation of the People Act, 1976 which falls in the said Chapter concerns the announcement of date of elections and schedule of events. Once the said schedule is announced, the stage of filing of nomination papers begins. Section 12 of the Representation of the People Act, 1976 deals with that stage under which the Returning Officer is charged with certain duties and then scrutiny of nomination papers takes place under section 14 of the Representation of the People Act, 1976. On conclusion of that stage i.e. acceptance/rejection of nomination papers, a list of validly nominated candidates is to be published by the Returning Officer under section 15 of the Representation of the People Act, 1976. A validly nominated candidate can avail the chance to withdraw his candidature before the withdrawal date as per section 16 of the Representation of the People Act, 1976. According to subsection (4) thereof, the Returning Officer is to prepare and publish the list of "contesting candidates". This appears to be the stage when a real "contest" of the election inter se the validly nominated candidates is contemplated by law.?

The candidates, who survive the date of the withdrawal of the candidature, are the contesting candidates.?

A returned candidate is one who has been elected and a contesting candidate is one who has not withdrawn his candidature.?

The stage of withdrawal is of significance and importance in the context of contest of election. Therefore, the schedule of election issued by the Election Commission of Pakistan vide notification needs to be kept in view.?

That contest of election in practical terms begins from the expiry of date of withdrawal of candidature. Before that, withdrawal is permissible to a candidate on any date. Once that date is over and final list of candidates is published, a stage of competition reaches as is spelt from the definition of "contest". It is, thus, evident that a Nazim or Naib Nazim may file nomination papers without resigning but will have to resign from the office of Nazim or Naib Nazim before the expiry of date of withdrawal of candidature. The underlying idea appears to be that during the contest of election, the Nazim or Naib Nazim, as the case may be, may not influence the voters of the constituency in view of their position and office held by them. Till that day he gets a chance to make a choice to continue as Nazim or Naib Nazim or to go for contest for any other political office. Thus, the fate of nomination papers filed by Nazims or Naib Nazims is determinable by keeping in view the provisions of section 158 of Punjab Local Government Ordinance, 2001.?

As per section 162 of Punjab Local Government Ordinance, 2001, the said resignation is deemed "to be accepted and effective forthwith".?

There was no condition now under section 158 of Punjab Local Government Ordinance, 2001, to resign before filing of nomination papers. The Nazim or Naib Nazim could file nomination papers but will have to tender resignation before the expiry of date of withdrawal of candidature.

In case the candidate does not resign from office of Nazim, Union Council by or before the last date of withdrawal of candidature, his nomination papers will stand rejected and his name will not be included in the final list of the candidates.?

There was no condition now under section 158 of Punjab Local Government Ordinance, 2001, to resign before filing of nomination papers. The Nazim or Naib Nazim could file nomination papers but will have to tender resignation before the expiry of date of withdrawal of candidature. In case the candidate does not resign from office of Nazim Halqa by or before the last date of withdrawal of candidature, his nomination papers will stand rejected and his name will not be included in the final list of the candidates.?

No valid objection could be raised to the filing of nomination papers by the candidate, who, however, could enter the contest of election only after resigning from the office of Nazim, Union Council before the last date of withdrawal of candidature. His nomination papers will stand accepted with the proviso that if he does not resign from the office of Nazim, Union Council by or before withdrawal of candidature, his nomination papers will stand rejected and his name will not be published in the final list of candidates.??

Muhammad Shahzad Shaukat and Muhammad Asif Ismail for Appellant (in E.A. No.190-A of 2007).

Muhammad Saeed Ansari for Appellant (in E.A. No.176-A of 2007).

Mazhar Nasim for Appellant (in E.A. No.196-R of 2007).

Aamir Rehman, Addl. A.-G., Punjab for Respondents.

Kh. Saeed-uz-Zafar for Respondent No.2 (in E.A. No.119-A of 2007).

Nemo for Respondent No.1 (in E.A. No.190-A of 20007).

Nemo for Respondent No.2 (in E.A. No.176-A of 2007).

Nemo for Respondent No.2 (in E.A. No.196-R of 2007).

Date of hearing: 12th December, 2007.

2008 C L C 316

[Election Tribunal, Punjab]

Before Syed Shabbar Raza Rizvi and Syed Hamid Ali Shah, JJ, Election Tribunal

Rana SALMAN MAHMOOD KHAN---Appellant

Versus

RETURNING OFFICER and another----Respondents

Election Appeals Nos.22/R, 23/R, 24/R, 37-A, 38-A, 77-R, 134-R and 74-R of 2007, heard on 10th December, 2007.

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

----S. 158 (as amended)---Representation of the People Act (LXXXV of 1976), Ss.2(vii)(xxvi)(xxvii), 12, 14, 15 & 16---Conduct of General Elections Order (C.E's. No.7 of 2002), Preamble---Dual membership---Not necessary that a Union Nazim or Naib Nazim must resign before filing his nomination papers to become qualified to contest any election under the Conduct of General Elections Order, 2002 or under Representation of the People Act, 1976---Nazim or Naib Nazim may resign from office of Nazim/Naib Nazim to contest election for any other political office after filing nomination papers but before a list of validly nominated candidates is published---Principles.

Malik Muhammad Aslam for Appellant.

Sardar Zafar Iqbal Tareen for Respondent No.2.

Date of hearing: 10th December, 2007.

2008 C L C 324

[Election Tribunal, Punjab]

Before Syed Zahid Hussain and Fazal-a-Miran Chauhan, JJ, Election Tribunal

Ch. MEHDI HASSAN BHATTI----Appellant

Versus

RETURNING OFFICER, NA-102, HAFIZABAD and 10 others----Respondents

Election Petition No.4/R of 2007, heard on 5th December, 2007.

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

----Ss. 14, 12, 3 & 99(cc)---Representation of the People (Conduct of Elections) Rules, 1977, Rr.3, 4 & 5---Scrutiny of nomination papers---Ambit of power and jurisdiction of Returning Officer vested by law elaborated---Despite the fact that a summary inquiry is envisaged by S.14(3) of the Representation of the People Act, 1976, the Returning Officer can, for his satisfaction, adopt the course of sending for the record or documents and. reject the nomination papers if, on satisfaction, he comes to the conclusion that the candidate was not qualified to be an elected member---Graduation being one of the qualifications under S.99(cc), Representation of the People Act, 1976 for being elected and chosen as a member of Assembly, a candidate has to show that he possesses a bachelor's degree or any degree recognized as equivalent thereto by the Higher Education Commission---Dispute of the nature that the degree sought to be produced by the candidate was genuine or not, could be resolved by summoning the record from the University concerned---Mere fact that the candidate had contested election in the past and he was allowed to take part therein through the orders passed by the then Tribunal, or that the order of the Tribunal was not interfered with in writ jurisdiction by the High Court or that the remedy of election petition could be availed after the election, does not in any way estop either any objector to raise objection to his qualification or preclude the Returning Officer to make scrutiny under S.14, Representation of the People Act, 1976---Principle of res judicata in the scheme of the law and nature of the proceedings and orders passed by the Returning Officers or the Tribunal is not invokable as is usually pressed into service in normal civil suits---Returning Officer is obliged to scrutinize the papers for each election, when nomination papers are filed as mandated by S.14 of the Act read with Chapter II (Rr.3 to 5) of the Representation of the People (Conduct of Elections) Rules, 1977---Principles.

An important and vital duty to be performed by the Returning Officer in the process of election, is the "Scrutiny" of the nomination papers. It is he, who is obliged to determine the eligibility/candidature of the persons qualified or disqualified to contest the election. Under section 12 only a duly qualified person can be proposed/seconded for the constituency. Subsection (2) of section 12 of the Representation of the People Act, 1976, calls upon the candidate to make certain declarations on solemn affirmation including the statement "specifying his educational qualifications" (clause (e) thereof) which necessarily implies that at the time of scrutiny to be made by the Returning Officer, the correctness and authenticity of such declaration is to be undertaken by the Returning Officer, even when no objection is raised by an elector. He can act "of his own motion" in making such "scrutiny" in view of provisions of subsection (3') of section 14, to satisfy himself about the qualification of a candidate. For that matter he can even "require any agency or authority to produce any document or record". Such a power vests in him since the introduction of clause (la) to the proviso to section 3 of the Representation of the People Act, 1976 vide Ordinance No.XXXVI of 2002 w.e.f. 31-7-2002. There thus, remains no obscurity or doubt that despite the fact that a summary inquiry is envisaged by subsection (3) thereof, the Returning Officer can, for his own satisfaction, adopt the course of sending for the record or documents and reject the nomination papers if, on his satisfaction, he comes to the conclusion that the candidate was not qualified to be elected as Member. Since graduation, is one of the qualifications under section 99(cc) of the Representation of the People Act, 1976 for being elected and chosen as a Member of Assembly, a candidate has, beyond any shadow of doubt, to show that he possesses a bachelor's degree or any degree recognized as equivalent thereto by the University Grants Commission (now the Higher Education Commission). A dispute of such a nature that the degree sought to be produced by the candidate was genuine or not, could be resolved by summoning the record from the university concerned: The mere fact that the candidate had contested election in the past and he was allowed to take part therein through the orders passed by the then Tribunal, or that the order of the Tribunal was not interfered with in writ jurisdiction or that the remedy of election petition could be availed after the election, does not in any way estop either any objector to raise objection to his qualification or preclude the Returning Officer to make scrutiny under section 14 of the Representation of the People Act, 1976. The principle of res judicata in the scheme of the law and the nature of the proceedings and orders passed by the Returning Officers or the Tribunal is not invokable as is usually pressed into service in normal trial of civil suits. For each election, when nominations are filed, the Returning Officer is obliged to scrutinize the papers as is mandated by law i.e. section 14 of the Representation of the People Act, 1976 read with chapter-11 (Rr.3 to 5) of the Representation of the People (Conduct of Elections) Rules, 1977. With the passage of time the law may have undergone changes or circumstances may be different, entailing fresh scrutiny each time the nominations are filed. In the present case, the issue of qualification of the candidate or his degree being genuine or not was never finally determined either by the Election Tribunal of 2002, or in the election petition, which was dismissed not on merits but on the basis of compromise between the parties therein. None of the present objectors were party in those proceedings.?

The duplicate certificate produced by the candidate, purported to have been signed and issued by the Controller of Examinations, is not a genuine document, as the signatures or issuance thereof have emphatically been denied by the Controller of Examinations who had appeared before the Tribunal. The question of issuance of any degree to candidate, thus, hardly arises. Neither before the Returning Officer nor before the Tribunal the original of the alleged degree was produced.?

In view of the overwhelming and unimpeachable material against the candidate about his claim of being graduate, no infirmity with the order passed by the Returning Officer was found which was upheld by the Tribunal.?

Ali Akbar Qureshi for Appellant.

Malik Muhammad Nawaz for Respondent No.2.

Mushtaq Ahmed Mohal for Respondents Nos.3 and 7.

Syed Iftikhar Hussain Shah, Dy. Attorney-General for Pakistan.

Muhammad Arif Raja, Legal Advisor for University of the Punjab, Lahore.

Professor Muhammad Taqi Zahid Butt, Controller of Examination, University of the Punjab, Lahore.

Muhammad Ralf Nawaz, Deputy Controller (Certificates), University of the Punjab, Lahore.

Date of hearing: 5th December, 2007.

2008 C L C 336

[Election Tribunal, Punjab]

Before Syed Zahid Hussain and Fazal-a-Miran Chauhan, JJ, Election Tribunal

MUHAMMAD NASEER KHAN----Appellant

Versus

MUHAMMAD RIAZ CHOPRA, Returning Officer, and 2 others----Respondents

Election Appeal No.13-R of 2007, heard on 7th December, 2007.

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

----S. 14---Educational qualification of candidate---To keep a candidate out of contest from the election was not justified in presence of the repeated certification of his bachelor's degree by the Higher Education Commission when, on the basis of same qualifications and similar circumstances, he had been elected in the election in the past and allegations which were made, remained unsubstantiated---Nomination papers of the candidate, in view of stance of the Higher Education Commission, had wrongly and illegally been rejected---Such order of the Returning Officer was thus, unsustainable and was set aside by the Tribunal.

Saif-ul-Malook for Appellant.

Syed Iftikhar Hussain Shah, Dy. A.-G. for Pakistan.

Ch. Rizvan Amjad, Standing Counsel for Pakistan with Muhammad Ishaq, Assistant Director, Higher Education Commission, Lahore.

Shahid Hameed Dar with Respondent No.2 in person.

Waqar Mushtaq Ahmed for Respondent No.3.

Date of hearing: 7th December, 2007.

2008 C L C 341

[Election Tribunal, Punjab]

Before Syed Zahid Hussain and Fazal-a-Miran Chauhan, JJ, Election Tribunal

Dr. SHAUKAT ILAHI----Appellant

Versus

Ch. MUBASHAR HUSSAIN and another----Respondents

Election Appeal No.194-A of 2007, heard on 11th December, 2007.

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

---Ss. 12, 13, 14(3)(c) & 14(5A)---Nomination for election---Qualification of candidate-Determination-Procedure-Returning Officer, under S.14(3)(c) of Representation of the People Act, 1976, while conducting summary enquiry is obliged to satisfy as to whether any provision of S.12 or S.13 of the Act has been complied with by the candidate or candidate has submitted any false or incorrect declaration or statement in any material particular and in making such scrutiny he may require any agency or authority to produce any document or record---Section 14(5A) of the Representation of the People Act, 1976 empowers the Election Tribunal to act of its own motion to reject the nomination papers of the candidate who is a defaulter or suffers from any disqualification.

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

----Ss. 12, 13, 14(3)(c) & 14(5A)---Representation of the People (Conduct of Elections) Rules, 1977, R.5(6)---Constitution of Pakistan (1973), Arts.62(f) & 63(1)(q)(r)---Nomination for election--Qualification of candidate---Allegations against the candidates were that they were involved in cooperative scandal and had been signatory and surety to plea bargain agreement for the payment of a sum of Rs.200 million and guaranteed its payment as per schedule mentioned in the said agreement---Execution of such agreement was not denied by the candidates nor it could be as letter/certificate on the subject issued by the Punjab Cooperative Board for Liquidation itself stated that the case was settled as a plea bargain and the candidates stood guarantors in that agreement---Certificate issued by the Punjab Cooperative Board for Liquidation also showed that at present Rs.65.60 million were outstanding, for the repayment of which amount the candidates were guarantors---Nomination papers filed by the candidates mentioned no reference to the said plea bargain agreement nor about the pendency of any constitutional petition, although a solemn declaration was expected from the candidates as per provisions of S.12, Representation of the People Act, 1976 and even para.3 of the nomination papers, thus, a very material disclosure was sought to be suppressed and concealed---Effect---Held, liability of a surety/guarantor under the law was co-extensive with that of the principal debtor---Returning Officer and Appellate Tribunal as per S.14(5A) of the Representation of the People Act, 1976, were duty bound to, reject the nomination papers of a candidate who was a defaulter of loan, taxes, government dues, utility charges etc.---No one could reap fruits of his deceitful means and retain ill-gotten gains, moreover, breachers of contracts had never been encouraged in any Society what to say of Islamic Republic---Qur'an has ordained to fulfil all obligations---Returning Officer, in circumstances, acted erroneously and failed to perform his duty in accepting the nomination papers of the candidates---Order passed by the Returning Officer, accepting nomination papers was accordingly set aside by Election Tribunal with direction to Returning Officer to make necessary correction as envisaged by R.5(6) of the Representation of the People (Conduct of Elections) Rules, 1977.

Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72; Muhammad Hussain v. Saleem Jan and others PLD 1995 Pesh. 98; Ghazanfar Ali Gul v. Ch. Tajammal Hussain and others 1997 CLC 1628; Dilawar Mahmood v. Babu Muhammad Munir and another 1994 MLD 415; Khawaja Muhammad Daud Sulaimani v. Election Tribunal and others PLD 2003 Lah. 106; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462 and Holy Qur'an 5:1 ref.

Ch. Mushtaq Ahmed Khan for Appellant.

Mubeen-ud-Din Qazi and Syed Najaf Hussain Shah for Respondents (in both appeals).

Raja Muhammad Arif, Legal Advisor Punjab University along with Rashid Hussain, Incharge Litigation Cell, Punjab University for Respondent.

Date of hearing: 11th December, 2007.

2008 C L C 407

[Election Tribunal Sindh]

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

HAJI KHAN BHATTI----Appellant

Versus

RETURNING OFFICER N.A.211----Respondent

Election Appeals Nos.8 to 10 of 2007, decided on 13th December, 2007.

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

----Ss. 12 & 14(5)---Constitution of Pakistan (1973), Art.63(1)(a)---Membership of Parliament---Disqualification---Candidate serving in Pakistan Telecommunication Limited---Nomination papers of candidate were rejected by Returning Officer on the ground that employer was a Corporation in which Government had 26% shares---Plea raised by candidate was that Government did not have controlling share in the Corporation, therefore, he could not be disqualified---Validity---Candidates of two categories could be disqualified under Art.63(1)(a) of the Constitution, namely candidate who was in service of any statutory body or any body which was owned or controlled by Government; or in which Government had a controlling share or interest---Government having no control and controlling shares or interest in the Corporation, mere fact that it was a statutory body wherein Government had 26% shares could not entail disqualification---Order passed by Returning Officer was set aside and case was remanded to him for accepting his nomination papers---Appeal was allowed accordingly.

Ghulam Rasool v. Muhammad Hayat PLD 1984 SC 385 and Sabiruddin v. Mushtaq Hussain Bhatti PLD 1993 SC 412 rel.

(b) Words and phrases---

----"Or"---Applicability---Word "or" is used generally to give choice or alternative.

Muhammad Anwar Tariq for Appellant.

Agha Zafir Ali, Asstt. A.-G., Sindh for Respondent.

Dates of hearing: 8th and 10th December, 2007.

2008 C L C 457

[Election Tribunal Sindh]

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

FAHAD MALIK----Appellants

Versus

Mir MUMTAZ HUSSAIN JAKHRANI and another----Respondents

Election Appeal No.58 of 2007, decided on 14th December, 2007.

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

----Ss. 12(2)(f) & 14---Conduct of General Elections Order (7 of 2002), Art.8(d)(1)(g)---Disqualification---Details of properties and amount of land revenue---Misdeclaration---Scope---Candidate was allegedly guilty of misdeclaration in his nomination papers by giving incorrect amount of land revenue and not mentioning area of land owned by him---Objections raised by appellant were rejected by Returning Officer---Validity---Requirement of law was that in terms of S.12(2)(f) of Representation of the People Act, 1976, candidate had to give statement of his assets and liabilities and those of his spouse and dependants on prescribed Form on preceding 30 days of June---Law did not provide that exact measurement of property was to be given and did not prescribe that a candidate was . disqualified to contest election, if he held certain area, as such it might be a bona fide error on the part of candidate and the same could be allowed to be remedied under S.14(3)(d)(ii) of Representation of the People Act, 1976---Law having not provided any limit of payment of land revenue for contesting election, any error or difference in payment of land revenue did not amount to concealment of material particulars which could .entail disqualification---Non-mentioning of details of properties and difference in payment of land revenue and giving incorrect figures in nomination papers did not amount to false/incorrect statement in material particulars---Nomination papers of candidate were rightly accepted by Returning Officer and there was no illegality or infirmity in the order---Appeal was dismissed accordingly.

Rao Tariq Mehmood v. Election Tribunal, Punjab, Lahore PLD 2003 Lah. 169; Umar Ayub Khan v. Returning Officer NA-19, N.-W.F.P., District Haripur/Additional District and Sessions Judge, Haripur 2003 MLD 222 and Illahi Bux Soomro v. Ijaz Hussain Jakhrani 2004 CLC 1060 ref.

Mrs. Sofia Saeed Shah and M.G. Bhutto for Appellant.

Abid S. Zuberi for Respondent No. 1.

Agha Zafir Ali, Asst. A.-G., Sindh for Respondent No.2.

Date of hearing: 12th December, 2007.

2008 C L C 23

[High Court (AJ&K)]

Before Rafiullah Sultani, J

KHADIM HUSSAIN SHAH----Petitioner

Versus

CHAIRMAN LOCAL GOVERNMENT BOARD/MINISTER FOR LOCAL GOVERNMENT AND RURAL DEVELOPMENT, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others----Respondents

Writ Petition No.388 of 2006, decided on 12th May, 2007.

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

----S. 44---Writ jurisdiction---Scope---Question of fact which required recording of evidence and examination of record could not be gone into by the High Court in exercise of writ jurisdiction---Writ did not lie to enforce a contract---Contract was not law and contractual liability could not be enforced through a writ---Jurisdiction in writ petition was attracted only if it was based on violation of any law.

1997 SCR 336; 1997 SCR 379; PLD 1992 (AJ&K) 22; 1992 SCMR 43; 1999 MLD 33; 1997 SCR 336; Muhammad Rasham Khan v. Chairman, Inspection Team and 3 others 1990 CLC 1355 and 1990 PSC 1014 ref.

Sardar M.R. Khan for Petitioner.

Sardar Mansoor Pervaiz Khan and Sardar Imtiaz Ahmed Khan for Non-Petitioners.

2008 C L C 47

[High Court (AJK)]

Before Sardar Muhammad Nawaz Khan, CJ

Mst. SHAHIDA PERVEEN----Appellant

Versus

NAMATULLAH KHAN and 2 others----Respondents

Civil Appeal No.1 of 2006, decided on April, 2007.

Succession Act (XXXTX of 1925)---

----S. 373---Application for issuance of succession certificate---Proceedings before the court dealing with the succession certificates were summary in nature---Court was competent to issue succession certificate in favour of a person who, prima facie, was entitled to have succession certificate in his favour---Any contestant for succession certificate if raised some intricate question of law and facts, he was at liberty to get same resolved through a regular suit before civil court---Object, intent and purpose of S.373 of Succession Act, 1925 was to deal with the application for succession certificate summarily and as provided in subsection (3) of S.373 of the, said Act, the court was competent to leave any intricate question arising before him for resolution of any right claimed by a legal heir.

2002 SCMR 1544; 1999 MLD 148 and 1999 MLD 2738 rel.

1985 CLC 2211; 2006 CLC 1093; PLD 2003 Quetta 53; PLD 1993 Pesh. 200; PLD 1989 Kar. 350; 1990 CLC 500; 2001 CLC 1323; CLC 2005 78; PLD 2005 Lah. 641 and 2004 CLC 1060 ref.

Sardar Khan for Appellant.

Syed Habib Hussain Shah for Respondents.

2008 C L C 61

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD SADDIQUE and 10 others----Appellants

Versus

RAJ BEGUM and 39 others----Respondents

Civil Appeal No.84 of 2004, decided on 3rd August, 2007.

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

----S. 12(2)---Exclusion of time consumed in preparation and obtaining copy of order---Time consumed 'in preparation of copy should be excluded---Party was entitled as of right to exclude the period spent in obtaining copies of order.

(b) Pleadings---

---Evidence could not be led beyond the pleadings of parties.

Raja Muhammad Saeed Khan v. Sardar Khanizaman 2005 SCR 271 ref.

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

---Ss. 39 & 52---Entries recorded in Jamabandi-" -Presumption of truth---Entries recorded in Jamabandi would carry statutory presumption of truth---Jamabandis prepared from 1962 Bikrami till institution of the suit, which were not rebutted, would get presumption of truth.

1999 SCR 439 ref.

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

---S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.39, 44 & 53---Limitation Act (IX of 1908), S. 3 & Art. 120---Suit for declaration---Correction of entries of revenue record---Limitation---Section 3 of Limitation Act, 1908, provided that court was bound to reject the plaint barred by time, even if the point of limitation had not been raised in the pleadings---In the present case, point of limitation was specifically pleaded and issue was also framed on this point---Respondent filed suit after a period of more than 60 years, which was barred by time---Principle that there was no limitation in inheritance cases was not applicable in the case because it was suit for declaration for correction of entries of revenue record.

PLD 1971 SC 376; 2000 'SCR 328=2001 MLD 212; 2003 CLC 456; 2005 MLD 153; PLD 1983 SC (AJK) 25; PLD 1984 SC 208 and 1999 YLR 1123 ref.

1992 CLC 382 arid 2001 MLD 212=2000 SCR 328 rel.

Malik Muhammad Yousaf Khan for Appellants.

Malik Muhammad Saleem for Respondents.

2008 C L C 110

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

NIGHAT REAZ----Petitioner

Versus

RENT CONTROLLER, MUZAFFARABAD and 2 others----Respondents

Writ Petition NO.396 of 2007, decided on 12th November, 2007.

(a) Azad Jammu and Kashmir Rent Restriction Act, 1986---

----S. 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44-Writ petition---Ejectment proceedings-Interim of order passed by Rent Controller---Writ Petition impugning validity such order---Not maintainable---Principles.

An interim order passed by a Special Tribunal cannot be allowed to be challenged in writ jurisdiction, because only a final order passed by the Rent Controller is appealable. Where the law itself has not given a right of appeal against certain orders, then same cannot be challenged in any other forum to gain similar object, which has been barred by the statute itself.

Zar Farosh v. Sikandar Aziz and 5 others PLD 1997 Pesh. 64 and Syed Saghir Ahmed Naqvi's case 1996 SCMR 1165 rel.

(b) Azad Jammu and Kashmir Rent Restriction Act, 1986---

----S. 14---Civil Procedure Code (V of 1908), O.I, R.10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 46----Writ petition---Ejectment proceedings--Interim order of Rent Controller refusing to implead non-applicant as, party to such proceedings---Writ petition challenging validity of such order---Maintainability---Right of appeal under Azad Jammu and Kashmir Rent Restriction Act, 1986 was conferred only on a party to ejectment application---Non-applicant was no more party to such proceedings for purposes of ejectment application or appeal---Writ petition was maintainable.

Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52 rel.

(c) Azad Jammu and Kashmir Rent Restriction Act, 1986---

----S. 14---Civil Procedure Code (V of 1908), O.I, R.10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 46---Writ petition---Ejectment proceedings---Non-applicant claiming to have inherited share in demised premises prayed for impleading herself and her daughters as party to proceedings---Order of Rent Controller rejecting such prayer of non-applicant---Validity---Both applicant and non-applicant were claiming title to demised premises on basis of their respective pleas---Rent Controller should have either impleaded non-applicant as party and decide ejectment petition on basis of prima facie title to demised premises or directed parties to get their title resolved by civil court---Rent Controller should deprived non-applicant and her daughters to defend their case and title to demised premises---Deliberate attempt had been made to deprive non-applicant and her daughters from inheritance, which was a "Zulm" (cruelty)---Rent Controller by passing impugned order had become a party to such cruelty---Writ petition was maintainable as non-applicant was no more party to ejectment proceedings for purposes of ejectment petition or appeal---Impugned order could not be left without rectification---High Court set aside impugned order and directed tenant to deposit rent with Rent Controller till final decision of ejectment petition---Principles.

Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52; Dur Muhammad Piraeha v. Judge, Special Court Banking and others 1982 CLC 1625; Rehmatullah v. Ali Muhammad 1983 SCMR 1064 and Mir Salah-ud-Din v. Qazi Zaheer-ud-Din 1984 PSC 127 rel.

(d) Islamic Law---

----Inheritance, opening of---Inheritance of Muslim owner would open immediately after his death without any intervention and attestation of mutation in favour of any of his heirs.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Raja Akhlaq Hussain Kiani for Petitioner.

Muhammad Idrees Mughal and Ashfaque Hussain Kiani for Respondents.

2008 C L C 131

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD SHARIF KHAN----Appellant

Versus

MUHAMMAD AZIZ KHAN and another----Respondents

Civil Appeal No.59 of 2004, decided on 6th August, 2007.

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

----S. 122---Specific Relief Act (I of 1877), S.42---Gift---Essentials of a' valid gift---Exception---Three essentials of gift are declaration by donor; acceptance, express or implied by donee or on his behalf; and delivery of possession which must be satisfied for making a valid gift---In the case of a gift by father to his son, delivery of possession was as much necessary as in any other case---Law recognized the only exception which was in cases of gifts made in favour of minor children---Objection that plaintiffs could not institute during the life time of their father, was no more available because of death of the father of the plaintiffs during pendency of the suit.

PLD 1987 Lah. 654; 2004 YLR 512; 2003 CLC 301; 2003 MLD 67; 1997 MLD 2867; 2001 CLC 1115; PLD 2007 Lah. 83; AIR 1922 Lah. 295; AIR 1927 Bom. 384 and AIR 1926 Mad. 6 ref.

Sardar Muhammad Ejaz Khan for Appellant.

Sardar Muhammad Suleman Khan for Respondents.

2008 C L C 145

[High Court (AJ&K)]

Before Rafiullah Sultani, J

ALI AKBAR----Petitioner

Versus

MUHAMMAD ASLAM KHAN and 10 others----Respondents

Civil Revision No.52 of 2007, decided on 28th September, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction---Competency---Rejection of plaint---Agreement of sale' andsale-deed'---Distinction---Plaintiffs had claimed that they were owners of suit land on the basis of compromise deed executed between their father and defendant---Application filed by one of the defendants under O.VII, R.11, C.P.C. for dismissal of suit, having been rejected by the Trial Court---Validity---Every person having legal character or any right to any property, could institute a suit against a person who was denying his right about his title---In the present case plaintiffs were seeking declaration that they were owners of the property in dispute due to Jirga which was convened between their father and defendant, and father of the plaintiff was claiming ownership through mortgage-deed which was not accepted by the Supreme Court---Plaintiff; in the third round of litigation were claiming ownership through Jirga, but Jirga could not create any title in their favour---Jirga or Punchayat, even if it was an agreement to sell, same would create no title or interest about suit land in favour of the plaintiff---Possession of plaintiff as tenant under law could not be converted into possession as vendees under agreement to sell---Much difference existed between agreement of sale and sale-deed---Agreement to sell property would require a promise to do something for compliance of certain acts in future and further steps should be taken, whereas in the case of sale-deed entire transaction had to be completed---Suit for declaration, in the present case was incompetent and under provisions of O.VII, R.11, C.P.C. same, was barred---Court should, in such a case, reject the plaint under clause (d) of O.VII, R.11, C.P.C.---Impugned judgment of the Trial Court was set aside, in circumstances.

PLD 1967 Dacca 190 ref.

Sardar Pervaiz Akhtar for Petitioners.

Kh. Muhammad Naseem for non-Petitioner.

2008 C L C 152

[High Court (AJ&K)]

Before Muhammad Younas Tahir, J

MUHAMMAD SALEEM KHAN----Petitioner

Versus

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

Writ Petition No.33 of 2004, decided on 2nd October, 2007.

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

----Ss. 163 & 164---Civil Procedure Code (V of 1908), S.151---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Sanction of government land as Teh Zamini'---Khalsa land was sanctioned in favour of the petitioner asTeh Zamini' through notification---Respondent filed a review petition against such notification, which was ultimately dismissed and matter between the parties was finally concluded up to the Supreme Court---Despite said finality Collector sanctioned mutation in respect of land in dispute in favour of the respondent---Petitioner challenged said orders in appeal before the Revenue Commissioner, who dismissed the same---Petitioner further filed appeal/revision before the Board of Revenue, which was also dismissed on technical ground---Validity---Matter between the parties having been finally concluded up to the Supreme Court, same had become a past and closed transaction, which could not be. reinvestigated and reopened by the Revenue Courts on an application in the garb of correction of the record---Collector had not heard the petitioner nor obtained the prior sanction from the Commissioner as envisaged by S.163 of West Pakistan Land' Revenue Act, 1967---Whole proceedings taken by the Revenue Authorities, were clear-cut abuse of process of the court and were liable to be quashed in exercise of inherent jurisdiction of High Court---Even section 151 of Code of Civil Procedure had conferred jurisdiction and had granted powers to High Court to do so---Accepting writ petition, impugned orders were quashed.

PLD 1963 W.P. (Rev.) 106; 1980 SCMR 952; 1999 MLD 1549; 1992 SCR 149 and 2002 PLC (C.S.) 1282 rel.

Rab Nawaz's case PLD 1984 Lah. 242; Haji Noorwar Jan's case PLD 1991 SC 531; Muhammad Sharif's case 1994 CLC 2034 and Tariq Mahmood Mirza's case 2004 YLR 2921 ref.

Syed Nazir Hussain Shah Kazmi and Sardar M.R. Khan for Petitioner.

Raja Muhammad Hanif Khan for Respondents.

2008 C L C 300

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

MUHAMMAD IRSHAD KHAN----Petitioner

Versus

MUHAMMAD TARIQ BAIG and 2 others----Respondents

Civil Appeal No.162 of 2005, decided on 14th December, 2007.

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

----Civil Procedure Code (V of 1908), Ss.148 & 151---Powers of Appellate Court to extend the time for deposit of decretal amount---Scope---Appellate Court was competent to extend the time for deposit of decretal amount irrespective of the fact that the time mentioned in pre-emption decree for the purpose had expired-Fixation of the time f a deposit of decretal amount or its extension by the Appellate Court was discretionary matter and it had got nothing to do with those. cases where law provided a time for certain purpose---Fixation of time for deposit of decretal amount in a pre-emption case was a discretionary power available to a court under S.151, C.P.C. and such power was always exercised to meet the ends of justice---Court, while exercising that power had to keep in mind the facts and circumstances of each case and if it reached the conclusion that it was just to enlarge the time, it should act favourably---When the court had become functus officio, the position would be different, in such eventuality discretion to enlarge the time would shift to the next higher forum i.e., the Appellate Court.

Muhammad Nawaz and others' case 1995 SCMR 105 rel.

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

----Ss. 6 & 14---Suit for pre-emption---Both courts below were unanimous on the point' of sale and market price of the suit-land---Such was a question of fact which had to be resolved concurrently, and called for no interference unless misreading or non-reading of evidence was found to have been committed---Entire evidence on either side was found to have been considered and appreciated in its true perspective---Courts below, having done so, reached a correct conclusion which needed no interference in appeal by the High Court---Appeal being without any merits, was dismissed.

Sardar Noor Akbar for Appellant.

Sardar Khan for Respondents.

2008 C L C 332

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, C. J. and Muhammad Younis Tahir, J

MUHAMMAD MUKHTAR KHAN and 2 others----Appellants

Versus

MUHAMMAD SADIQ and 9 others----Respondents

Civil Appeal No.72 of 2004, decided on 14th December, 2007.

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

----Ss. 6, 14, 20 & 20-A---Suit for pre-emption---Doctrine of sinker---Applicability---Suit for pre-emption was dismissed by Trial Court, but on appeal, Appellate Court reversed the findings of the Trial Court and decreed the suit---Validity---Vendees had purchased a piece of land during pendency of pre-emption suit just to become co-sharers in the property wherein pre-emptors were sharers at the time of sale-deed, but vendees were not so as they were strangers for the purpose of pre-emption and had improved their status during pendency of pre-emption suit---Vendees were hit by the amendment in S.20 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)---Attempt, of transfer, in favour of vendees could not help them for the purpose of pre-emption as they were on the same level with the pre-emptor at the time of sale deed and no more---One of the vendees was found to have associated the said vendees, being strangers for the purpose of pre-emption twice; one at the time of sale deed and for the second time when he transferred a piece of land in their favour during pendency of suit---Said vendee was found having joined deliberately the other strangers with him, he was deemed to have sunk down to the level of his associates and could not be entitled to resist pre-emption suit even qua his own share---Appeal against judgment and decree of the Appellate Court, was dismissed in circumstances.

Muhammad Hussain's case 2003 CLC 1073 and Mst. Fateh Bibi's case PLD 1971 Lah. 171 rel.

Sardar Noor Akbar Khan for Appellants.

Sardar Abdul Khaliq for Respondents.

2008 C L C 357

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ and Muhammad Younas Tahir, J

KHADIM HUSSAIN and another----Appellants

Versus

Raja ALTAF HUSSAIN KHAN and 2 others----Respondents

Civil Appeal No.70 of 2005, decided on 14th December, 2007.

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

---Ss. 6 & 14---Suit for pre-emption---Superior right of pre-emption---Suit for pre-emption based on the ground of contiguity was decreed by the Trial Court, but Appellate Court reversed findings of the Trial Court and dismissed the suit---Contention of vendees was that suit land under pre-emption could not be decreed in favour of pre-emptors as their own land was not contiguous to other survey numbers mentioned in the sale-deed except one survey number---Validity---Vendor had, sold out suit land measuring 7 Kanals, 14 Marlas as his share in the joint estate total measuring 68 Kanals, 18 Marlas---Transfer of land measuring 7 Kanals, 14 Marlas comprising one survey number was a valid transfer---When, a co-sharer in a. joint property would transfer his share in the joint property and hand over a specific field number in his possession through family partition, such transfer was a valid transfer---Vendee in such a sale would step into the shoes of vendor and would become co-sharer with other co-sharers---When a pre-emptor would pre-empt such property and succeed in his suit for pre-emption, he was to be put in the same position as that of vendee and he would occupy the same position with other co-owners as that of vendee and would become co-sharer in the property in same position under which the original vendor was placed at the time of execution of sale-deed---When survey number in question measuring 7 Kanals, 14 Marlas was in possession of vendor at the time of sale-deed and was handed over to vendees, pre-emptors would occupy the position of vendees in case they succeeded in pre-emption suit---Pre­emptors, in case of decree in their favour, would have nothing to do with other survey numbers mentioned in the sale-deed under pre-emption---Property of pre-emptors was found to be contiguous to the property sold to the vendees---Pre-emptors had superior right of pre-emption as against vendees---Suit by the pre-emptors had rightly been allowed by the Trial Court---Judgment and decree passed by Appellate Court below, were set aside in circumstances and those passed by the Trial Court were upheld by the High Court.

Qalandar Khan's case PLD 1956 Pesh. 1; Ghulam Mohi-ud-Din's case PLD 1957 Pesh. 36; Zaheer Khan's case PLD 1959 Pesh. 148 and Mustafa Khan's case PLD 1978 SC (AJ&K) 75 ref.

Raja Muhammad Younas Khan for Appellants.

Sardar Khan for Respondents.

2008 C L C 366

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

ABDULLAH.KHAN and others----Petitioners

Versus

CUSTODIAN EVACUEE PROPERTY (AJ&K) and 2 others----Respondents

Writ Petitions Nos.10 of 1993 and 24 of 1995, decided on 14th December, 2007.

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

----Ss. 18-A, 18-B & 43(6)---Review by Custodian of Evacuee Property---Scope---Power of review available to the Custodian under Ss.18-A & 18-B of Pakistan (Administration of Evacuee Property) Act, 1957 could be exercised only at the time of grant of proprietary rights, but not later on---Such powers were available regardless of time limit--Provisions of S.43(6) of Pakistan (Administration of Evacuee Property) Act, 1957, dealt with the general powers of the Custodian, whereas the, powers available under Ss.18-A & 18-B of the Act, were restricted to be exercised at the time of grant of proprietary rights--Provisions of S.43(6) of Pakistan (Administration of Evacuee Property) Act, 1957, had wisely been kept on statute book so that the Custodian could review his earlier order or even orders of his predecessors, if justice and law would so demand---Powers under S.43(6) were regardless of time limit.

Sardar Ali's case 1992 CLC 1861; Zaffar Iqbal's case 1998 CLC 286; Manzoor Ahmed's case 2001 PLC (C.S.) 50; Muhammad Najeeb's case 1999 YLR 2310; Khawaja Ghulam Qadir's case 2002 SCR 183; Muhammad Iqbal and others v. Custodian 1996 SCR 359; Abdul Aziz's case 1998 SCR 204 and Mrs. Doreen Barkat Ram v. Custodian PLD 1962 Lah. 424 rel.

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

----S. 43(6)---Power of review by the Custodian of Evacuee Property---Scope---Custodian was competent under S.43(6) of Pakistan (Administration of Evacuee Property) Act, 1957, to review his earlier order or orders of his predecessors or subordinates provided his order on review would not contravene any law of the land---If the earlier orders of the Custodian or his predecessors were against the law and justice, the Custodian was competent to review them---If the Custodian reached the conclusion that earlier order passed by him or his predecessor or subordinates was required to be reversed in order to meet the ends of justice; and his review order would not offend any law of the land, he was fully competent to review such order regardless of time limit.

Sardar Ali and others v. Kararnat Ali Khan and others 1992 CLC 1861 ref.

(c) Interpretation of statutes---

----Rules under a statute were made always subservient to Act and not against it---Where the Act itself provided a limitation or allowed a cause to be decided on merits, regardless of time, the Rules could not provide otherwise.

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

---S. 43(6)---Power of review by the Custodian of Evacuee Property---Scope---Powers provided under S.43(6) of Pakistan (Administration of Evacuee Property) Act, 1957, were exercisable at any time---Pakistan (Administration of Evacuee Property) Rules, 1950 could not provide otherwise---Said Rules, in fact had provided limitation for those matters for which the Act, was silent---When Pakistan (Administration of Evacuee Property) Act, 1957 under its S.43(6) had allowed the Custodian to exercise his powers of review regardless of time limit, Rules, made under the said Act could not provide otherwise.

Sardar Abdul Hameed Khan for Petitioners.

Syed Habib Hussain Shah and Sardar M.A. Khaliq for Respondents.

2008 C L C 412

[High Court (AJ&K)]

Before Rafiullah Sultani and Muhammad Younas Tahir, JJ

ZULQARNAIN and 7 others----Petitioners

Versus

CUSTODIAN EVACUEE PROPERTY, AJ&K, MUZAFFARABAD and 73 others----Respondents

Civil Revision No.164 of 2006, decided on 18th January, 2008.

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

----S. 14---Scope and application of S.14, Limitation Act, 1908---Computation of period of limitation---Exclusion of time---Benefit of S.14 of Limitation Act, 1908 would be available to a party who was diligently and with good faith prosecuting his case in a wrong forum---Conditions to attract benefit of S.14 were that the plaintiff had been prosecuting another civil proceedings against defendant; that he had been prosecuting it with due diligence; that proceedings were founded upon the same cause of action; that it was prosecuted in good faith; that it did not bear fruit because that court was unable to entertain it due to the defect of jurisdiction or other cause of alike nature and that both the proceedings were in a court---Section 14 of Limitation Act, 1908 dealt with the time spent in suits and not in appeals in wrong forum.

Masood Ahmed and others v. United Bank Limited and others 1992 SCR 98; Abdul Ghanni v. Ghulam Sarwar PLD 1997(sic) SC 102 and PLD 1970 Lah. 6 rel.

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

----S. 43-A---Limitation Act (IX of 1908), S.14---Revision petition---Limitation---When the Custodian of Evacuee Property declared any property to be non-evacuee the only remedy available to a party was to file a revision petition before High Court within prescribed time limit, but such needful was not done by the petitioners---No plausible explanation had been shown in the revision petition as well as in the application under S.14 of the Limitation Act, 1908 as to why petitioners had filed the revision petition with delay---No reasonable grounds had been given by the petitioners for exclusion of time in the application---Petitioners were supposed to file revision petition before High Court under the relevant provisions of law immediately, but needful was not done by them---Gross negligence was committed by the petitioners themselves, by not availing proper remedy within reasonable time---Case of petitioners was not that of good faith, but was of gross negligence---Revision petition was declared time-barred and was dismissed.

Haji Muhammad Afzal for Petitioners.

Ch. Muhammad Taj for Respondents.

2008 C L C 632

[High Court (AJ&K)]

Before Rafiullah Sultani, J

Kh. ZAHOOR AHMED----Petitioner

Versus

Mst. PERVEEN BIBI and 12 others----Respondents

Civil Appeal No.161 of 2005, decided on 29th February, 2008.

Civil Procedure Code (V of 1908)---

----O. XVIII, R.18 & O. III, Rr. 1, 2---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Stamp Act (II of 1899), S.2(21)---Suit for declaration, permanent injunction and cancellation of sale-deed---Trial Court recorded statements of one of the plaintiffs and brother of defendant for spot inspection and to decide the suit---Trial Judge in the light of said statements, visited the spot and recorded statements of witnesses of the plaintiffs only and decreed suit in favour of plaintiff---Appeal filed by defendant against judgment and decree of the Trial Judge was dismissed by the Appellate Court---Brother of defendant who had no power of attorney from the defendant had no right to get his statement recorded on behalf of defendant for spot inspection and decide the case---Brother of defendant was also not party in the suit---Trial Judge had committed illegality to make local inspection on statement of that person who was stranger as he was not authorized to do such act on behalf of defendant---When counsel for defendant was present before the Trial Judge, why his statement was not recorded by the Trial Judge---No legal value was attached to statement of brother of defendant---Court could make local inspection only for the purpose of understanding the controversy and the evidence or for its proper appreciation---Local inspection could not be allowed to replace the legal evidence and a judgment could not be based merely on the result of local inspection unless the parties agreed to adopt such a way---Trial Judge had recorded the statements of five witnesses including one of the plaintiffs at the time of spot inspection, but opportunity of cross-examination was not provided to defendant or his counsel---Statements recorded during course of inspection, had no evidentiary value, in circumstances---Course adopted by the Trial Judge was not legal and his judgment which was based on the impression of the local inspection, was illegal---Judgments and decrees of both courts below were set aside and case was remanded to Senior Civil Judge to decide same in a legal manner.

Kh. Muhammad Naseem for Appellant.

Kh. Shoukat Ganai for Respondents.

2008 C L C 1009

[High Court (AJ&K)]

Before Rafiullah Sultani, J

Sardar MUHAMMAD IRSHAD KHAN----Appellant

Versus

MUHAMMAD AKRAM and 5 others----Respondents

Civil Appeal No.27 of 2006, decided on 14th April, 2008.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Appeal against original judgment and decree---Procedure---Appeal was filed before High Court without filing the copy of decree-sheet along therewith-Appellant had neither pleaded in the contents of appeal nor he had given reasons for non-filing decree sheet nor he had moved any application for condonation of delay---Simply an application was on the file in which it had been pleaded that decree sheet was not prepared and that after preparation of decree sheet, it would be accompanied along with the appeal---Said application was not stamped and not supported by any affidavit---Verification of the reader of the Court about preparation of decree was also filed with application---Validity---Appeal presented without copy of decree, was not a valid appeal---Appeal which was filed with a copy of judgment alone and without copy of decree could not be deemed to have been validly presented---Memorandum of appeal in the High Court must be accompanied by three documents; copies of the judgment and decree appealed from and copy of the judgment of the court of first instance---Court could dispense with the copy of judgment of either the Trial Court or the Appellate Court, so far as the copy of decree appealed from was concerned, the court had no power to dispense with the copy of decree for the reason that an appeal was basically preferred against a decree and not against a judgment, unless the judgment itself amounted to a decree---Appeal was dismissed on sole point of non-filing of copy of decree sheet along with appeal.

Sardar Muhammad Ishaque for Appellant.

Malik Nazir Ahmed Zia for Respondents.

2008 C L C 1061

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

Syeda MARIA GILLANI----Petitioner

Versus

NOMINATION BOARD OF AZAD JAMMU AND KASHMIR through Secretary, Muzaffarabad, and 4 others----Respondents

Writ Petition No.564 of 2007, decided on 18th April, 2008.

(a) Educational Institution---

----Admission/nomination against reserved seats for AJ & K nationals in Medical College in Pakistan---Petitioner in response to advertisement, filed application for her nomination against the seat of M.B.,B.S for Leepa Valley in a Medical College in Pakistan--Respondent who also hailed from Leepa Valley, also applied for the same seat---Both contestants appeared in the entry tests conducted by the Provincial Governments and qualified the sane---Petitioner credited 817 out of 1100 marks in F.Sc. and secured 62.45 marks in the entry test conducted by N.-W.F.P. Government and 69.00 marks in the entry test in Punjab---Respondent credited 806 out of 1100, marks in F. Sc. and secured 60.67 marks in the entry test conducted by N.-W.F.P. Government and 69.64 marks in the entry test conducted by the Government of Punjab---Case of petitioner was that she stood first for the purpose of nomination against the reserved seat, while aggregating the marks from both the entry tests against reserved seat, she got higher marks as compared to the respondent---Procedure for nomination according to petitioner as laid down by the apex Court of AJ&K was that merit should be considered in aggregate manner in two Provinces and while doing so, the topper in aggregate position should be nominated---Marks obtained by petitioner in the entry test in N.-W.F.P., were 62.45, whereas in Punjab she secured 69.00; her aggregate marks were 131.45---Respondent obtained 60.67 marks in the test in N.-W.F.P. and 69.64 in the entry test conducted in Punjab; her aggregate marks were 130.31, which had shown that petitioner's aggregate marks were more than that of respondent, but respondent was ahead to the petitioner in the entry test conducted in Punjab, whereas the petitioner was ahead to respondent in the test conducted by N.-W.F.P.---Nomination as per Supreme Court decision was qualified with the passing of entry test both in Punjab and N.-W.F.P. and a candidate would be nominated in view of best of two entry tests formula and not on the basis of aggregate formula---Ground taken by the petitioner for her nomination with regard to admission policy of Medical College in N.-W.F.P. and her marks in N.-W.F.P. entry test was not tenable in the light of judgment of Supreme Court---Writ petition was dismissed in circumstances.

Ambreen Zeb's case 2003 YLR 3130 rel.

Suleman Ejaz Ahmed's case Civil Appeal No.37 of 2001; Sheeraz Ahmed Bhatti's case 2004 YLR 1644 and Sidra Batool's case Civil Appeal No.43 of 2005, decided on 14-7-2005 ref.

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

----S.44---Notification issued by Government ran counter to the dictum of Supreme Court---Dictum of Supreme Court would prevail being law of the land under the Constitution which was binding on executive as well as judicial functionaries.?

Kh. Attaullah Chuck for Petitioner.

Raja Gul Majeed, A.-G. and Sardar Shahid Hameed Khan for Respondents.

2008 C L C 1328

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD AYUB KHAN and 15 others----Appellants

Versus

MUHAMMAD SHARIF KHAN and 2 others----Respondents

Civil Appeal No.92 of 2007, decided on 31st January, 2008.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151---Suit for possession---Temporary injunction, grant of---Plaintiff filed suit on the ground that he was owner of suit land through mutation and he sought relief of possession to the extent of his share in the suit land---Plaintiff, along with suit, filed application for temporary injunction under O.XXXIX, Rr.1, 2, C.P.C., against defendant which application was dismissed by the Trial Court, but Appellate Court set aside judgment of the Trial Court, which order had been challenged by the defendant in second appeal---Validity---Parties were co-sharers and suit for partition was also pending between the parties---Houses of defendants were already constructed on the suit land which were destroyed due to earthquake---Defendants wanted to re-construct their houses on the same places and did not want to raise new construction---Plaintiff did not want to raise construction on new vacant place of the suit-land---Defendants were ready to give undertaking to remove the construction in case, suit filed by the plaintiff was decreed---Provisions of O.XXXIX, Rr.1, 2, C.P.C. though did not provide such ground, but the court was competent to consider the ground of undertaking while exercising its powers under S.151, C.P.C. if the circumstances of the case so required---Fair play required that defendants be allowed to raise construction at their own risk---Defendants were directed by High Court to file undertaking to remove the construction without claiming any compensation if suit filed by the plaintiff was decreed.

1989 SCMR 130; 1999 CLC 598; Margub Siddiqui v. Hamid Ahmed Khan and 2 others 1994 SCMR 519; 1999 CLC 964; PLD 1995 SC 462 and 2000 YLR 2.898 ref.

Kh. Muhammad Naseem for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.

2008 C L C 1340

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

ASHFAQ AHMED and 6 others----Appellants

Versus

Ch. MAQBOOL RAZA and 4 others----Respondents

Civil Appeal No.103 of 2007, decided on 13th May, 2008.

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

----S. 31---Contingent contract---Test to determine contract as contingent' orabsolute'--Test to determine as to whether a contract was contingent' orabsolute', was that if there was mere stipulation in the agreement to sell that the sale deed would be executed after obtaining permission from any public functionary, then such a condition was not collateral to the contract and the contract could not be construed as a contingent' contract because the condition was forming the part of the consideration; however, where vendor was not in possession of the absolute title and execution of the sale-deed depended upon the grant of proprietary rights by the Government, then such a contract could be declared asconditional' or `contingent'.

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

----S. 12---Contract Act (IX of 1872), S.20-Suit for specific performance of agreement to sell---Applicability of S.20, Contract Act, 1872---Scope---Absolute contract---Enforceability---Execution of agreement between the parties was dependant upon the condition that the vendor would execute the sale-deed after obtaining the proprietary rights---If the proprietary rights had not been granted to vendor by the government for failure to deposit the sale price or for any other reason, only in that eventuality it could be said to be frustrated and its execution had become impossible---During the pendency of the suit for specific performance of the contract vendor had acquired proprietary rights vide Notification---Contract, in circumstances was absolute and had become enforceable---Findings of the court below that parties were under some mistake and the contract was liable to be ignored under S.20 of Contract Act, 1872, could not be approved because S.20 was not attracted in the case---Section 20 of Contract Act, 1872 would come into play only when both the parties to an agreement were under a mistake as to a matter of fact essential to the agreement---Only in that case the agreement would become void---Transferee during pendency of the suit could not be regarded as a necessary party and decree passed against the transferor could be executed without impleading such transferee a party to the proceedings---Where a title was acquired during pendency of the proceedings the specific performance of contract executed in respect of the said property could not be avoided nor after the execution of the contract its executant could come with volta face that he was not competent to enter into a contract.

Shivshankareppa Mahadevappa Parakanhatti v. Shivappa Parappa Kapati and others AIR 1943 Barn. 27; Gouri Dutt Maharaj v. Sukur Muhammad and others AIR 1948 PC 147; Muhammad Mubeen v. Messrs Long Life Builders and others PLD 2006 Kar. 278; Muhammad Amin v. Muhammad Yunus 1994 SCR 162; Muhammad Sharif v. Muhammad Ilyas and 23 others 2000 MLD 1633; The Pan Islamic Steamship Co. Ltd. v. Messrs General Imports and Exports Ltd. PLD 1959 Kar.750; Muhammad Amin v. Muhammad Hameed and 2 others 2001 MLD 525; AJK Government and 4 others v. Messrs Spintex Limited 1998 PTD 3200; Ch. Abdul Karim and 5 others v. Raja Muhammad Nisar and others 1999 PLC (C.S.) 624; Faqir Muhammad and others v. Abdul Momin and others PLD 2003 SC 594; Sher Muhammad (deceased) through Legal heirs v. Ghulam Muhammad and others 2004 CLC 1217; Ravi Glass Mills Ltd. v. I.C.I. Pakistan Powergen Ltd. 2004 YLR 2503; Salim Ullah Faridi and 8 others v. Amjad Sharif Qazi and 7 others 2003 YLR 1112; Humayun Mirza v. Mrs. Shahida A. Rajput and another PLD 2007 Lah. 449; Sh. Muhammad Shafi and 2 others v. Sheikh Ala-ud-Din and others PLD 2005 SC 455; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Mst. Amina (deceased) through legal heirs and others v. Mst. Jameela Begum and 3 others 2006 YLR 870; Ghulam Muhammad and 20 others v. Mst. Bagh Bhari and 11 others 1994 SCMR 1610; Walayat Khan and another v. Muhammad Razzaq and others Civil Appeal No.89 of 1998; Mrs. Chandanee Widya Vati madden v. Dr. C.L. Katial and others AIR 1964 SC 978; Muhammad Sama Mondal's case PLD 1963 Dacca 816; Tribhuban Parkash Nayyar v. The Union of India AIR 1970 SC 540; Abdul Karim v. Kala Khan and another PLD 1987 AJ&K 139; Raja Muhammad Gul v. Muhammad Ashraf and 6 others 2000 YLR 1805; Amanullah's case 2003 MLD 1142; Muhammad Hussain's case PLD 1995 Pesh. 98 and Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 ref.

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

----S. 11 & O.VII, Rr.11, 13---Rejection of plaint---Res judicata, principle of---Applicability---Where a plaint was rejected under R.11 of Order VII, C.P.C. on any ground enumerated under said rules, a fresh plaint on the same cause of action, was not barred under R.13 of O.VII, C.P.C. which provided that rejection of the plaint on any of the grounds hereinbefore mentioned, would not, of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action---Rejection of plaint could not operate res judicata because same was not a decision on merits.

Abdul Majeed Malik, Muhammad Azam Khan and Ch. Reaz Alam for Appellants.

Muhammad Reaz Tabassum for Respondents.

2008 C L C 1570

[High Court (AJ&K)]

Before Rafiullah Sultani, J

Mst. KHALIDA----Appellant

Versus

Raja MUHAMMAD KHURSHID KHAN and 9 others----Respondents

Civil Appeal No.291 of 2006, decided on 8th July, 2008.

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

----O. VII, R.6---Limitation Act (IX of 1908), S.3---Plaintiff having not pleaded any ground under O.VII, R.6, C.P.C. for exemption from law of limitation in the suit, Court was bound to act suo motu and reject the time barred suit under: S.3, Limitation Act (IX of 1908).

Muhammad Buta and another v. Habib Ahmed and others Pld 1985 SC 153 ref.

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

----S. 14---Plaintiff having not moved any application for condonation of delay under S.14 of the Limitation Act, 1908, plaintiff's suit being time-barred was liable to be dismissed.

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

----S. 42---Suit for declaration---Maintainability---When it is established that plaintiff has no legal right regarding disputed property then he/she has no locus standi to file a suit---Plaintiff can seek declaration only if he is entitled to some legal character or any right as to any property, otherwise, the court will refuse to give any declaration under S.42, Specific Relief Act, 1877.

(d) Past and closed transaction---

----The finding which has attained finality by the lapse of time or on account of conduct of the parties cannot be re-opened as that finding became past and closed transaction.

Once the relief is refused by all the courts and the same is confirmed by the Supreme Court, it was not open to again re-agitate the matter which stood closed by the Supreme Court.

(e) Judgment---

----Merger, theory of---Applicability---Scope.

According to theory of merger, when a court passes a judgment, decree or order and in appeal the Appellate Court affirms, reverses, varies or modifies the said judgment, decree or order, the said judgment, decree or order of lower court merges into judgment, decree or order of Appellate Court. Under this theory, judgment of High Court passed in appeal would stand merged into judgment of Supreme Court when Supreme Court, on appeal to it modifies judgment of High Court: In such case, it would be the Supreme Court which passed the final judgment and not the High Court.

1993 SCR 3331; 2001 MLD 762; 2006 CLC 1038; 1997MLD 2921; 2003 SCR 28; 2000 MLD 1618; Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190; University of AJ&K Muzaffarabad and 6 others v. Engineer Muhammad Khalid 2004 SCR 84; Muhammad Azam v. Toqeer Ahmed decided on 8-3-2006; Malik Muhammad Din v. Babu Fazal Karim and others PLD 1968 Lah. 544 and Land Acquisition Collector and others v. Said Muhammad and others 1997 CLC 1839 ref.

Ch. Muhammad Riaz Alam for Appellant.

Raja Niaz Ahmed Khan and Muhammad Farooq Minhas for Respondents.

2008 C L C 1530

[Islamabad]

Before Syed Qalb-i-Hassan, J

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman----Petitioner

Versus

COMMISSIONER, C.D.A., ISLAMABAD and 2 others----Respondents

Writ Petitions Nos.1511, 3074 and 3076 of 2003, decided on 3rd June, 2008.

Capital Development Authority Ordinance (XXIII of 1960)---

----S. 36(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Review proceedings---Dispute regarding acquisition of land was finally decided by Supreme Court and direction was issued to the authorities to pay compensation to affectees---Authorities had paid compensation to some of the affectees, when all of a sudden Deputy Commissioner, Capital Development Authority, initiated suo motu review proceedings under S. 36 (3) of Capital Development Authority Ordinance, 1960, and excluded the names of certain landowners---Respondent/Commissioner Capital Development Authority, allowed appeal filed by aggrieved landowners and set aside the order passed under suo motu powers by Deputy Commissioner---Validity---After receiving the reports, Deputy Commissioner, a functionary under Capital Development Authority Ordinance, 1960, himself visited the site and inspected existence of houses and structures and thereafter according to the policy of Capital Development Authority, affectees opted to remove Malba of buildings subject to deduction of 15% of the value of houses---After the observations of Supreme Court, Authorities had acted with mala fide intention to further delay legitimate payment of compensation which was not justified on any legal or moral ground---When the awards were adjudged valid and proper by Supreme Court, the Deputy Commissioner, Capital Development Authority was not empowered to exclude names of affectees from the award while exercising powers of suo motu review---High Court in exercise of Constitutional jurisdiction, declined to interfere with the order passed by respondent/ Commissioner Capital Development Authority---Petition was dismissed in circumstances.

Barrister Masroor Shah and M.A. Siddiqui for Petitioner.

Muhammad Ramzan for Respondent No.1.

Ashfaq Ali Raja for private Respondents.

Date of hearing: 3rd June, 2008.

2008 C L C 1666

[Islamabad]

Before Syed Qalb-i-Hassan, J

MUHAMMAD TAJ----Petitioner

Versus

MUHAMMAD YOUNIS KHILJI and another----Respondents

Writ Petition No.677 of 2008, decided on 6th August, 2008.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17(8)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Determination---Rent Controller, after going through pleadings of parties, passed tentative rent order for deposit of arrears of rent and future rent---Plea raised by tenant was that as he had denied relationship of landlord and tenant between the parties, therefore, Rent Controller should have framed preliminary issue and provided opportunity to adduce evidence---Validity---If any party had denied relationship of landlord and tenant, Rent Controller had to resolve the controversy before passing any tentative order for deposit of rent---Tenant had admitted in written reply, that he had entered premises as tenant and there was no agreement between the parties that tenancy had ceased and obligation of tenant to pay rent to landlord had been put to an end by way of any agreement or any other documentary evidence---Landlord, on the contrary had placed on record return of income tax and survey of business in which tenant himself had admitted to be in possession as tenant of the landlord---Tenant failed to produce any prima facie evidence in support of his assertions that he was not tenant of the landlord---High Court declined to interfere with the order passed by Rent Controller as the same was legal and justified---Constitutional Petition was dismissed in circumstances.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 17(8) & 21(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Order passed by Rent Controller for deposit of tentative rent was assailed by tenant before High Court in appeal---Validity---Any appeal against interlocutory orders of Rent Controller which had not disposed of the entire case before it, was specifically barred under S.21(2) of Islamabad Rent Restriction Ordinance, 2001---Intention of legislature could be 'gathered from the provisions of S.21(2) of Islamabad Rent Restriction Ordinance, 2001, that same was to avoid delay in disposal of cases by Rent Controller, a specific bar had been imposed to challenge interlocutory orders passed by Rent Controller---Tenant could not be allowed to circumvent the legislative intent by filing Constitutional petition against interim order---Constitutional Petition was dismissed in circumstances.

Muhammad Shafi v. Rent Controller 1995 CLC 639, Messrs Silver Stone (Pvt.) Ltd. v. Rent Controller 1995 MLD 851 and Muhammad Saeed v. Mst. Sirat Fatima PLD 1978 Lahore 1459 rel.

Raja Inaam Amin Minhas for Petitioner.

Mian Abdul Razzaq for Respondent No.1.

2008 C L C 7

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs NAJMA SUGAR MILLS (PVT.) LTD. through Chief Executive---Appellant

Versus

SALEEM KHAN and 2 others---Respondents

J.M. No.20 of 2004 in Suit No.1180 of 2002, decided on 18th October, 2007.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.V, Rr.10, 12 & 13---Companies Ordinance (XLVII of 1984), S.40(3)---Decree, setting aside of---Misrepresentation---Service of process---Proof---Change of name of company---Effect---Decree passed against applicant-company was sought to be set aside on the ground that process was not served on it as it had changed its address and name---Validity---Summonses sent to applicant-company were received by its officials putting seal of the company---Applicant did not specifically deny that officials of the company, who received summonses, were not in its employment---In absence of such specific denial it could not be presumed that no summons was served upon applicant---Protection under S.40(3) of Companies Ordinance, 1984, to such legal proceedings were provided which had been continued or commenced against the company by its former name---Applicant ­company failed to demonstrate any fraud or misrepresentation in service of summonses upon applicant and thus decree was not set aside--Application was dismissed in circumstances.

Ch. A. Rasheed for Applicant.

Amjad Ali Sahito for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 24th September, 2007.

2008 C L C 18

[Karachi]

Before Nadeem Azhar Siddiqi, J

IJAZ H. RANA----Plaintiff

Versus

K.L.M. ROYAL DUTCH AIRLINES through Ranju Selvadurai and another----Defendants

Suit No.645 of 1998, decided on 24th September, 2007.

(a) Damages---

----Suit for damage by ex-employee of an Airline Company---Plaintiff alleged his resignation from service to be under duress---Proof---Relations between plaintiff and defendant being that of master and servant were regulated by service contract---Service contract provided for termination of service by giving to plaintiff one month notice or one month pay in lieu thereof---Plaintiff, after tendering resignation had received all his dues and additional amount as ex-gratia and given receipt for full and final settlement of his dues---Plaintiff in presence of documentary evidence could not rely upon oral evidence---Conduct of plaintiff in receiving such amounts without any objection and reservation and issuing receipt therefor and enjoying other retiring benefits and remaining silent for more than six months was sufficient to show that he had tendered resignation voluntarily paid to plaintiff as ex-gratia and accepted by him without any objection, protest and reservations could not be termed as mala fide on the part of defendant---Termination of plaintiff was simpliciter without any stigma---Defendant had not committed any breach of service contract---Plaintiff had no cause of action---Suit was dismissed in circumstances.

Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 rel.

(b) Master and servant---

----Promotion---Employee has no vested right for promotion.

(c) Master and servant---

----Servant cannot impose himself upon master.

Munawar Hussain for Plaintiff.

Abdus Samad for Defendants.

Date of hearing: 16th August, 2007.

2008 C L C 27

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD MOHIUDDIN----Petitioner

Versus

SINDH PRIVATIZATION COMMISSION and another----Respondents

J.M. No.Nil of 2006, decided on 28th September, 2007.

(a) Sindh Privatization Commission Ordinance (XXV of 2001)---

----Ss. 3, 27 & 28---Auction of land by Privatization Commission---Judicial miscellaneous application by bidder before High Court seeking transfer of such land in his favour by Commission---Maintainability---Sindh. Privatization Commission Ordinance, 2001 had not created any Special Court---High Court by virtue of S.28 of Sindh Privatization Commission Ordinance, 2001 while exercising civil jurisdiction would follow procedure as nearly as possibly as provided in C.P.C., and having regard to facts of case could follow summary procedure as provided in O.XXXVII, C.P.C.---Procedure of filing regular suit could not be dispensed with on account of applicability of C.P.C.---Such judicial miscellaneous application was not maintainable---Principles.

Section 27 of the Sindh Privatization Commission Ordinance, 2001 provides that High Court should exercise exclusive civil and criminal jurisdiction. Section 28 of the Ordinance provides that in exercising of civil jurisdiction the High Court shall follow the procedure as nearly as possible, as provided in the Civil Procedure Code, 1908 and in its discretion., having regard to the facts of the case shall follow the summary procedure as nearly as possible provided under Order XXXVII, C.P.C. Since the Civil Procedure Code is made applicable the procedure for filing of regular suit cannot be dispensed with. Order IV, rule 1, C.P.C. provides that every suit shall be instituted by presenting the plaint to the court or such officer, as it appoints in this behalf. Rule 2 of Order IV, C.P.C. provided that every plaint shall comply with the rules contained in Orders VI and VII, C.P.C. so far as they are applicable. The procedure for filing regular suit is also confirmed by application of Order XXXVII, C.P.C, which also provides for filing of suit. So far as the filing of application under section 12(2), C.P.C. is concerned; the law itself provides for filing of application. So far as various applications under Arbitration Act, 1940 are concerned, section 20 thereof provided for filing of application and section 33 thereof also speaks about filing of application to contest arbitration agreement or award. Section 32 of the Arbitration Act, 1940 bars the filing of suit for contesting arbitration agreement or award.

No Special Court has been created under the Sindh Privatization Commission Ordinance, 2001.

High Court, returned judicial miscellaneous application to the petitioner for presenting/filing it before the competent court' in accordance with law.

United Bank Limited v. Messrs J. Tylor & Co. Limited 2002 CLD 917 and Sheikh Fazal Rehman & Sons Limited v. Ghee Corporation of Pakistan 2003 CLC 1823 ref.

(b) Sindh Privatization Commission Ordinance (XXV of 2001)---

----Ss. 3, 27 & 28---Court Fees Act (VII of 1870), S.17 & First Sched. Art.1, Sr. No.1---Auction of five different lots of lands by Privatization Commission---Suit by plaintiff seeking transfer of such lands in his favour by Commission---Court-fee, leviability of---Plaintiff had made five different offers for five different lots of lands---Every bid was a distinct transaction---Court-fee would be payable on basis of valuation of subject of suit---Maximum court-fee of Rs.15,000 would be payable on such suit.

Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation 1993 SCMR 683 fol.

M.G. Dastagir for Petitioner.

Zafar Ahmed Khan for Respondent No.1.

Ch. Muhammad Rafiq Rajorvi, Addl. A.-G., Sindh for Respondent No.2.

2008 C L C 34

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. SADIA MUHAMMAD ZAHOOR and another----Plaintiffs

Versus

BOARD OF REVENUE through Secretary (RS&EP) and 7 others----Respondents

Suit No.1095 of 2003 and C.M.A. No.7425 of 2007, decided on 27th September, 2007.

Civil Procedure Code (V of 1908)---

----O. XIII, Rr.1 & 2---Documentary evidence, production of---Scope---Photocopies of documents annexed with plaint and/or filed in court in compliance of its order passed at the time of framing of issues---Effect---Original of such documents could be produced in evidence without formal permission of court---Documents not available on record could not be produced in evidence except with permission of court---Such permission could be granted only on showing good cause to the satisfaction of court and recording reasons therefor---Purpose of O.XIII, Rr.1 & 2, C.P.C. was to avoid possibility of presenting by parties forged, fabricated and manoevured documents at late stage and that they must be aware of documentary evidence and, might not be taken by surprise---Principles.

Mst. Rukhsana Bibi v. Muhammad Ansar 2006 YLR 666; Umar Hayat v. Additional District Judge and others 2004 SCMR 1367; Messrs Al-Abram Builders (Pvt.) Limited v. Pakistan Defence Officers Housing Authority 2003 CLD 1497; Javed Rafat Khan v. Messrs Shabbir Tiles and Ceramics Limited PLD 2005 Karachi 1; Mrs. Uzma Aziz v. Mst. Maryam (Dorislions) and others PLD 2006 Kar. 58; Anwar Ahmad v. Mst. Nafisa Bano 2005 SCMR 152 and Rab Nawaz and others v. Muhammad Amir and another 999 SCMR 951 ref.

Kh. Shamsul Islam for Plaintiffs.

Ahmed Pirzada, Addl. A.-G. for Defendants Nos.1, 4, 6 and 8.

Abid S. Zuberi for Defendant No.5.

2008 C L C 41

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed AIJAZ HUSSAIN----Plaintiff

Versus

Syed ABDUL AZEEM----Defendant

Suit No.942 of 2005, decided on 24th October, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & S.34---Negotiable Instruments Act (XXVI of 1881), Ss.79 & 80---Suit for recovery of loan amount on basis of dishonoured cheque---Non-appearance of defendant in court despite service of summons of suit upon him---Failure of defendant to obtain leave to defend suit---Placing on record original cheque by plaintiff along with memorandum issued by Bank for return of cheque issued by defendant---Factum of dishonouring of cheque going unchallenged and un-rebutted---Effect---Allegation in plaint would be deemed to be admitted by defendant and plaintiff would be entitled to decree---Suit was based on negotiable instrument, (which would be presumed to have been issued against consideration---Defendant had not come forward to rebut such presumption---High Court decreed the suit with interest @ 6% per annum in accordance with Ss.79 & 80 of Negotiable Instruments Act, 1881 from date of dishonouring of cheque till date of suit and at the same rate from date of suit till date of decree, and interest @ 10% per annum from date of decree till date of payment of decretal amount in accordance with S.34, C.P.C. along with costs of suit.

Wajahat Abbas for Plaintiff.

Nemo for Defendant.

Date of hearing: 11th October, 2007.

2008 C L C 55

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mrs. SHAMIM BARLAS----Plaintiff

Versus

AL-HABIB COOPERATIVE HOUSING SOCIETY through Secretary and another----Defendants

Suit No.424 of 2006, decided on 11th October, 2007.

(a) Torts---

----Liability in torts---Scope---Personal action dies with the person and death extinguishes the liability in tort.

Government of Punjab and another v. Mst. Kamina and others 1990 CLC 404 ref.

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

----O. XXII, R. 4---Tort---Damages, suit for---Death of defendant---Impleading of legal heirs---Suit for recovery of damages was filed against defendants and one of them died during pendency of suit--Plaintiff filed application in Trial Court for impleading legal heirs of deceased defendant as party to proceedings---Validity---Claim against deceased defendant was purely based upon illegal lease of plot in favour of other defendant which was restored to plaintiff in arbitration proceedings---Plaintiff failed to show that estate of deceased was benefited by its illegal lease---Plaintiff could not maintain suit for damages against legal heirs of deceased defendant as death of defendant extinguished liability in tort and had brought end to cause of action---Application was dismissed in circumstances.

Mrs. Itrat Zahida and others v, President A.B.L. and others 2006 SCMR 1287; Mst. Salma Bibi v. Muhammad Nawaz and others 2000 SCMR 1051 and Rahim Tahir v. Ahmed Jan and others PLD 2007 SC 423 distinguished.

Government of Punjab and another v. Mst. Kamina and others 1990 CLC 404 and Mercantile Cooperative Bank Ltd. v. Messrs Habib & Co. and others PLD 1967 Kar. 755 ref.

Abdul Rauf Khan for Plaintiff.

Nemo for Defendants.

2008 C L C 75

[Karachi]

Before Nadeem Azhar Siddiqi, J

SALAHUDDIN---Applicant

Versus

Mst. ZOHRA BEGUM and 6 others----Respondents

Judicial Miscellaneous No.8 of 2004, decided on 4th October, 2007.

(a) Words and phrases---

----"Conceal"---Meaning and connotation.

Legal terms and phrases by M. Ilyas Khan ref.

(b) Words and phrases---

----"Concealment"---Meaning.

Legal terms and phrases by M. Ilyas Khan ref.

(c) Words and phrases---

----"Fraud"---Meaning---Acts or omissions of a party to contract falling within ambit of "fraud" detailed.

Legal terms and phrases by M. Ilyas Khan ref.

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

----S. 12(2), O.XXIII, R.3 & O.XXXIL R.7(1-A)---Compromise decree obtained by concealing from court pendency of applicant's suit for specific performance of sale agreement and order of status quo passed therein---Application under S.12(2), C.P.C. for setting aside of such compromise decree---Validity---Second respondent, through compromise decree had surrendered suit property owned by her husband in favour of first respondent without notice of Nazir appointed as guardian ad litem of minor-defendants and without completing procedure laid down under O.XXXII, R.7(1-A), C.P.C.---Compromise decree had been obtained without protecting interest of minor-defendants, who had been deprived of valuable property owned by their father---Leave of court was necessary before entering into compromise---Compromise decree had been passed while order of status quo passed in applicant's suit was operating---Compromise decree had been obtained by concealing material facts from court---Concealment of facts was fraud, which by itself would be sufficient for setting aside judgment---Party having concealed facts from court could not be given premium thereof--Compromise decree was set aside in circumstances.

Allied Bank of Pakistan Ltd. v. Messrs Tawakkal Garment Industries Ltd. and others 2002 CLD 689 and International Multi Leasing Company v. Capital assets Leasing Corporation Limited and another 2004 CLD 1 ref.

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

----S. 12(2)---Setting aside of judgment on ground of fraud---Scope---Concealment of facts was fraud, which by itself would be sufficient for setting' aside judgment---Party having concealed facts from court could not be given premium therefore.

M. Hassan Akbar for Applicant.

Mushtaq A. Memon for Respondent No.1.

Ms. Shahana for Kh. Naveed Ahmed for Respondent No.2.

Nazir of the Court as guardian ad litem for Respondents Nos.3 to 6.

Nemo for Respondent No.7.

Date of hearing: 8th August, 2007.

2008 C L C 87

[Karachi]

Before Azizullah M. Memon, J

SHAHID MEHBOOB----Appellant

Versus

MUHAMMAD ISMAIL----Respondent

F.R.A. No.13 of 2006, decided on 19th March, 2007.

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

----S. 17---Specific Relief Act (I of 1877), S.12---Ejectment of tenant---Specific performance of agreement to sell---Pendency of civil suit--Landlord sought recovery of premises on the ground of bona fide personal need for his son and default in payment of monthly rent---Tenant denied relationship of landlord and tenant and claimed to be in possession of premises as part performance of agreement to sell--- Rent Controller allowed ejectment application and eviction order was passed against tenant---Validity---Tenant could not deny title of ownership of landlord who put him into possession of demised premises as its tenant---Until and unless such tenant had got decree from competent civil court, finally determining him to be entitled to decree of specific performance of contract for demised premises, he could not deny status of landlord in disputed premises---As and when such decree was passed in favour of tenant, he would then be allowed to apply for possession of disputed premises---Ejectment application could not be taken to be not maintainable simply for the reason that suit for specific performance of contract was pending trial before competent civil court---Rent Controller had rightly allowed ejectment application filed by landlord---High Court in exercise of appellate jurisdiction maintained eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

1984 CLC 71; 1988 CLC 402; 1980 CLC 1442; PLD 1980 SC 298; 2000 YLR 2392; PLD 1969 Dhaka 214; 2001 CLC 1029 and 2000 CLC 184 ref.

Allah Yar and others v. Additional District Judge and others 1984 SCMR 741; Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 and Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 fol.

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

----S. 2(e)---Word "family"---Connotation---Contention was that married and independent son was not included in definition of "family" under S.2 (e) of Cantonments Rent Restriction Act, 1963---Validity---There was nothing in S.2(e) of Cantonments Rent Restriction Act, 1963, that children for whom a landlord sought ejectment of tenant from a premises should be dependent upon landlord/parent---Even if a son of landlord was earning of his own and not dependent upon his father/landlord, such son was also entitled to have premises vacated from tenant for his personal use on such application having been made by his father---Ejectment application was maintainable on such plea.

Doctor Khalid Masood and another v. Mst. Khurshid Begum 2001 SCMR 550 and Abdul Rauf and others v. Mst. Sheeri Hassan PLD 2001 SC 31 rel.

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

----S. 17---Ejectment of tenant---Security deposit by tenant---Arrears of rent, adjustment against---Scope---Security deposit made by tenant with landlord for premises is meant only for the purpose of proper maintenance and safety of premises itself---Such amount cannot necessarily be taken to have been deposited for the purpose of adjustment towards arrears of monthly rent of such premises, if tenant fails to pay the same to landlord.

Mirza Abdul Aziz Beg v. Mushtaq Ahmed Shaikh 1980 SCMR 834 rel.

Abdul Muqtadir Khan for Appellant.

Shahid Iqbal for Respondent.

Date of hearing: 16th March, 2007.

2008 C L C 107

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed ZAHEERUL HASSAN JEELANI CHANDPURI----Plaintiff

Versus

GOVERNMENT OF SINDH through Secretary, Local Self-Government, Sindh and 6 others----Defendants

Suit No.341 of 1993, decided on 29th November, 2007.

(a) Tort--

----Personal action dies with the person and the effect is that the death extinguishes the liability in tort.

Government of Punjab and others v. Mst. Kamina and others 1990 CLC 404 ref.

(b) Tort---

---Maxim, ----Maxim, "actio personalis moritur cum persona"---Interpretation.

The meaning of this maxim is that a personal action dies with the person, the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or the wrongdoer brings an end to the cause of action and the right to sue or be sued for, gets extinguished. But this is subject to a qualification viz. where a tortfeasor's estate is benefited by the wrong-done, an action would be against the representatives of a wrongdoer. The essence of the maxim applies to an action brought for damages for a personal wrong.

Government of Punjab and others v. Mst. Kamina and others

1990 CLC 404 ref.

(c) Tort---

----Definition---Suit for damages on account of alleged defamation would not survive death of plaintiff and would abate.

Abdul Majeed Sama v. The Asbestos Cement Industries Limited 1996 MLD 803 ref.

Nemo for Plaintiff.

Muhammad Ahmed Pirzada, Addl. A.-G. Sindh for Defendants Nos. 1 to 4.

Qaiser Jamil for Defendant No.5.

2008 C L C 120

[Karachi]

Before Khilji Arif Hussain, J

Messrs AL-PAK GHEE MILLS through Managing Partner----Plaintiff

Versus

Messrs ZEESHAN TRADERS through Proprietor--Respondent

Civil Suit No.1411 of 2004, decided on 26th January, 2007.

(a) Decree---

----Ex parte decree---Duty of Court---Scope---While passing ex-parte decree, it is the duty of court to see whether plaintiff is entitled to relief asked for and if so to what extent.

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

----Ss. 12 & 42---Contract Act (IX of 1872), S.73---Breach of agreement---Recovery of damages---Scope---Suit for specific performance, declaration and recovery of damages was filed by plaintiff on the ground that defendant had revoked the agreement and did not take delivery of the goods---Validity---Agreement between the parties was a revocable agreement with an advance notice of three months---If plaintiff was entitled to damages, he could claim damages from the date when defendant refused to perform his part of obligation for three months and not for 22 months as claimed by plaintiff---Damages in commercial contracts in terms of S.73 of Contract Act, 1877, could be granted only to the extent of actual losses suffered by parties due to breach of contract---Plaintiff was not entitled for mental torture, physical agony etc. as such damages could be granted in an action under tort---Suit was decreed accordingly.

Law of Contract Eighth Edition by W.T. Major and "Law on Tort" Eighth Edition by J.A. Jolowics ref.

Nisar A. Mujahid for Plaintiff.

Nemo for Defendant.

Date of hearing: 7th December, 2006.

2008 C L C 127

[Karachi]

Before Khawaja Naveed Ahmed, J

In the matter of: GRANT OF LETTER OF ADMINISTRATION

S.M.A. No.140 of 2006 and C.M.A. No.538 of 2007, decided on 19th November, 2007.

Succession Act (XXXIX of 1925)---

----S. 278---Letter of administration, grant of---Application had been filed by an Advocate on behalf of legal heirs of deceased, praying that letter of administration be issued to the heirs of deceased without furnishing surety but on furnishing their personal bond---All the legal heirs were adults and house in question was of their mother and one of the legal heirs was residing therein---Application was allowed and Nazir of the court was directed to issue the letter of administration in terms already ordered by the court upon execution of personal bonds by the legal heirs and no surety was needed to be insisted upon.

Mst. Razia Khatoon's case 1996 MLD 873 rel.

S.M. Kazim for Petitioner.

2008 C L C 130

[Karachi]

Before Gulzar Ahmed, J

Dr. Syed HASSAN ALI through Attorney----Plaintiff

Versus

IMAMIA DARUL UFTA AND SHARIAT BOARD EDARAE TABLEAGUE ULOOM MUHAMMAD AND ALE MUHAMMAD TRUST Registered through Chairman and 2 others----Defendants

Suit No.1471 and C.M.As. Nos.8779 and 8670 of 2006, decided on 9th April, 2007.

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

----S. 5 & Schedule---Suit for dissolution of marriage---Plaintiff had filed a Tasdiqnama issued by the Nazim Union Council declaring-Talaq given by the plaintiff to the daughter of defendant to have become effective---Counsel for defendants made statement that in view of certificate issued by the Union Council, defendants would not press their case and they would accept the dissolution of marriage between the plaintiff and daughter of defendant---Plaintiff's counsel being satisfied with such statement of defendant's counsel, did not press the suit---Suit was dismissed as withdrawn.

Syed Muhammad Kazim for Plaintiff.

Syed Hasan Jafri for Defendants Nos. 1 to 3.

2008 C L C 169

[Karachi]

Before Munib Ahmad Khan, J

FEROZ AHMED KHAN----Plaintiff

Versus

FASIULLAH SHEIKH and others----Defendants

Suit No.132 of 2003, decided on 3rd March, 2006.

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

----Art. 17(b)---Competence and number of witnesses---Court can reach conclusion on the basis of other evidence as the circumstances of the case may warrant.

AIR 1946 Sindh 117; AIR 1956 MD 25 and PLD 1983 SC (AJ&K) 63 ref.

Muhammad Amin Lakhani for Plaintiff.

B.M. Bangash for Defendants.

Date of hearing: 2nd February, 2006.

2008 C L C 222

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

KARACHI WATCH----Petitioner

Versus

IMRAN FASIHI and another---Respondents

Constitutional Petition No.1319 of 2003.

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

----Preamble---Constitution of Pakistan (1973), Arts.199 & 264---General Clauses Act (X of 1897), S.6---Constitutional petition---Repeal of enactment---Effect---Respondent had applied for regularization of the building in question during the life time of Sindh Buildings Control Ordinance, 1979 which later on was repealed---Effect---Any right/ privilege/obligation or liability acquired or incurred under a repealed enactment, would survive notwithstanding its repeal---Direction was issued to the Authority to decide respondent's regularization application in accordance with law within specified time.

Jannat-ul-Haq v. Abbas Khan 2001 SCMR 1073 rel.

Khaliq Ahmed for Respondent No. 1.

Anwar Ali Shah for Respondent No.2.

Ahmed Pirzada, Addl. A.-G.

Saleem Sammo, Amicus Curiae.

2008 C L C 228

[Karachi]

Before Khilji Arif Hussain, J

ZAKARIA GHANI and others-Plaintiffs

Versus

N. D. F. C.----Defendant

Suit No.1092 of 1988, decided on 27th April, 2007.

Contract Act (IX of 1872)----

----S. 73---Breach of contract---Suit for recovery of damages---Non-­production of evidence by plaintiff to the effect that he, on account of any act and deed of defendant, had suffered claimed loss---Effect---Plaintiff would not be entitled for alleged claim of damages.

A.H. Mirza for Plaintiffs.

Nemo for Defendant.

Date of hearing: 6th March, 2007.

2008 C L C 236

[Karachi]

Before Khilji Arif Hussain, J

SAIF NADEEM KAWASAKI LTD. and another----Plaintiffs

Versus

AMERICAN EXPRESS BANK LTD.----Defendant

Suit No.579 of 1994, decided on 27th April, 2007.

Limitation Act (IX of 1908)---

----Art. 120---Suit for recovery of damages for loss occasioned to plaintiff by negligence and misrepresentation of defendant---Limitation---Shares of company pledged with defendant-Bank---Plaintiff alleged to have purchased such shares on being induced and misled by defendant-Bank regarding profitability thereof---Agreement for purchase of such shares was finalized on 8-6-1984 but defendant-Bank did not inform plaintiff that Customs Authority had sealed Factory of the company on 28-4-1987 for demand of customs duty---Customs Authority on 8-10-1987 issued notice to plaintiff demanding customs duties evaded by company---Plaintiff in suit filed on 9-2-1994 claimed damages from defendant-Bank for such negligence and misrepresentation---Plea of defendant-Bank was that suit was time-barred---Validity---Company through agreement had given warranty to hold plaintiff harmless and indemnified against any claim/liability in excess of disclosures therein---Defendant-Bank was not party to agreement between plaintiff and company---Cause of action for filing suit accrued to plaintiff, if any, against defendant firstly on 23-4-1987 when plaintiff agreed to purchase shares, and finally on 9-6-1987 when plaintiff came to know that factory had been sealed by Customs Authority---Suit filed on 9-2-1994 (i.e. after seven years of accrual of final cause of action) was dismissed for being time-barred.

Habib-ur-Rehman for Plaintiffs.

Kazim Hassan for Defendant.

2008 C L C 348

[Karachi]

Before Sajjad Ali Shah, J

Malik MUHAMMAD JAWAID----Plaintiff

Versus

PROVINCE OF SINDH and others----Defendants

Suit No.69 of 2006, decided on 26th June, 2007.

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

---Ss. 105 & 108---Lessee of immovable property---Determination of status---Required proof stated.

In order to claim the status of a lessee over an immovable property, a claimant has not only to show a transfer of a right to enjoy such property in consideration of a price or promise, but also has to show an exclusive possession over such property, as the lessee under section 108 of the Transfer of Property Act, 1882 is entitled to be put in possession of such property and the lessor parts with his right to enjoy such property during the course of lease.

Abdullah Bhai v. Ahmed Din PLD 1964 SC 106 and Messrs Sign Source v. Messrs Road Trip Advertisers 2005 CLC 1982 ref.

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

----S. 60(b)-Work of permanent character executed on property by licensee by incurring expenses---Licence, revocation of---Scope---Licence could not be revoked at will under S.60(b) of Easements Act, 1882, where licensee, acting upon licence, executed such work for his own use, but not for use and occupation of grantor for a price paid or promised---Illustration.

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

----Ss. 12 & 21---Easements Act (V of 1882), Ss.52, 63 & 54---Suit by licensee for specific performance of license---Scope---Licence to do something in or upon immovable property was revocable subject to a reasonable notice in terms of S.63 of Easements Act, 1882---In case of eviction from property before having fully enjoyed right granted under licence, licensee would be entitled to compensation under S.64 of Act, 1882---Such suit, thus, would be barred under S.21 of Specific Relief Act, 1877.

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

----Ss. 12, 21(d), 42, 52(f) & 56---Easements Act (V of 1882), S.60---Civil Procedure Code (V of 1908), O.VII, R.11---Irrevocable licence---Suit by licensee for declaration or permanent injunction or specific performance of licence---Rejection of plaint in such suit---Scope---Licence, though revocable under S.60 of Easements Act, 1882, but made irrevocable by special contract between parties, would become irrevocable---Bar contained in Ss.21, 42 & 56 of Specific Relief Act, 1877 would not apply to such licence, thus, plaint could not be rejected on such score---Principles.

Messrs Pakistan Construction Limited v. Asif H. Kazi and another 1986 SCMR 820 ref.

M.A. Nasir v. Chairman Pakistan Eastern Railway PLD 1965 SC 83 rel.

Sami Ahmed for Plaintiff.

Anwar Mansoor Khan for Defendant No.2.

Abrar Hassan and Abdul Karim Khan for Defendant No.3.

Khalil-ur-Rehman for Defendants Nos.5 and 6.

2008 C L C 362

[Karachi]

Before Mrs. Yasmeen Abbasey, J

FARKHUNDA JAWAID----Petitioner

Versus

IIND ADDITIONAL DISTRICT JUDGE and others----Respondents

C.P. No.1018 of 2002, decided on 13th November, 2007.

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

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlady---Landlady sought ejectment of tenant from the premises in question on ground of her personal bona fide need---Statement of landlady on oath was consistent with her ejectment application---Ground urged by landlady had not been shaken or rebutted by the tenant---Pleas taken by the tenant were absolutely beyond the record---Even otherwise if landlady possessed more than one house, it was her choice in which she would like to live along with her family and it was matter within her prerogative and discretion and not for the Rent Controller or for the tenant to determine which premises was suitable, to the landlady.

Mst. Noorunissa v. Qamurl Huda 1988 CLC 1833; Syed Muhammad Ali v. Mst. Aisha 1984 CLC 2332; 1980 SCMR 1772; 1996 SCMR 1178; 2000 SCMR 1292 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Zahid Farooq Mazari for Petitioner.

Shahab Sarki for Respondents.

Date of hearing: 29th October, 2007.

2008 C L C 373

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

IQBAL HUSSAIN----Petitioner

Versus

PROVINCE OF SINDH through Secretary for Housing and Town planning Government of Sindh, Karachi and others----Respondents

Constitutional Petition No.D-1255 of 2004, decided on 2nd June, 2006.

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

----Ss. 44, 45, & 124---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of plot---Petitioner had sought directions to put him in physical possession of plot which was allotted to him on direction of the Prime Minister---Counsel for Authority had contended that the plots in residential scheme were to be allotted in accordance with the provisions of Sindh Local Government Ordinance, 1979---Validity---Admittedly no such scheme or statement of conditions existed under which any quota had been allocated to the Chief Minister or the Prime Minister for allotment---Public functionaries, how high they might be, were bound to act within the parameters of law---Duty of holder of political office was not to give any false hope---Purported order to allot plot in question to petitioner was passed in the year 1984, but he filed constitutional petition after lapse of more than two decades which suffered from laches---Constitutional petition was dismissed in circumstances.

Agha Fakhruddin v. Muhammad Paryal and others PLD 1989 SC 16; Agha Saifuddin and another v. Dr. Muhammad Ashfaq Piracha and another 1986 CLC 1819 and Abdul Haq v. Government of Sindh 2000 SCMR 907 ref.

Mustafa Lakhani for Petitioner.

Manzoor Ahmed for C.D.G.K.

Abbas Ali, A.A.-G. along with Abdul Majeed Section Officer, Local Government, Department.

2008 C L C 387

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD RAFIQUE----Petitioner

Versus

MUHAMMAD RAFIQUE and others----Respondents

Constitutional Petition No.S-216 and C.M.A. No.1625 of 2007, decided on 10th January, 2008.

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

----S. 16(1)(2)-Ejectment proceedings---Tentative rent order---Order containing direction to tenant to deposit arrears of rent for three years and future rent @ Rs.200 per month on or before specified date---Non­compliance of such order by tenant---Plea of tenant that quantum of arrears of rent was not mentioned in such order; that hp had deposited rent in Court, thus, there was no default in compliance of such order---Validity---Rate of rent was specified in such order, thus, calculation of arrears for three years was not a difficult task---Rent deposited by tenant in the Court was @ Rs.70 and in the account of some other landlord---Defence of tenant was struck off in circumstances.

Dr. Aftab Ahmed Khan v. Zaib-un-Nisa 1998 SCMR 2085 and Mst. Khalida Begum v. Amtul Baqi 1998 CLC 306 distinguished.

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

----S. 16(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Tentative rent order, non-compliance of---Order of Rent Controller striking off defence of tenant upheld by Appellate Authority---Non-compliance of tentative rent order was a question of fact---Both Courts below had decided such question in affirmative---Such question of fact could not be questioned, determined or upset in constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Abid Hussain for Petitioner.

Iftikhar Javaid Qazi for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2008 C L C 392

[Karachi]

Before Nadeem Azhar Siddiqi, J

PRECISION ENGINEERING COMPLEX LTD. through General Manager----Plaintiff

Versus

MIDDLE EAST MARKETING SERVICES LTD. through Farouk Abdeen and another----Defendants

Suit No.792 of 2003i decided on 22nd January, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.IX, R.6---Declaration of title---Ex parte proceedings---Duty of court---Defendants were proceeded ex parte in suit for declaration of title and recovery of money---Effect---Defendants though had not filed any written statement yet plaintiff could only succeed on the basis of merits of its case and not on the basis of weaknesses of other side---Fad that suit had proceeded ex parte against defendants did not give any right to plaintiff to ask for a decree without proving its case--Plaintiff failed to prove that defendants had received any commission in violation of law or by practising fraud and had also failed to prove that plaintiff had sustained any loss due to the acts of defendants---Suit was dismissed in circumstances.

Tafasul Hussain Rizvi for Plaintiff.

Defendant No.1 absent.

Dates of hearing: 27th September and 25th October, 2007.

2008 C L C 398

[Karachi]

Before Nadeem Azhar Siddiqi, J

ASAD PATHAN and 4 others----Applicants

Versus

SHAUKAT ALI and 6 others----Respondents

C.M.As. Nos.5345 and 6696 of 2004 in Suit No.1315 of 2000, decided on 29th November, 2007.

Civil Procedure Code (V of 1908)---

----Ss. 10 & 151---Res sub judice, principle of---Applicability---Test---Stay of proceedings---Consolidation of suits-Two suits were pending, one was filed by applicant for specific performance of agreement and permanent injunction while other was filed by respondents for declaration, possession and recovery of mesne profits---Applicant sought stay of suit filed by respondents---Validity---Object of provision of S.10, C.P.C. was to prevent courts of concurrent jurisdiction from simultaneously adjudicating and proceeding with trial of .two suits in which matter in issue was directly and substantially the same between the parties in respect of same cause of action for the same subject-matter and for the same relief---Other object of S.10, C.P.C. was to avoid conflict of opinion of two courts---One test of applicability of S.10, C.P.C. was to see whether on final decision being reached in previous suit, such decision would operate as resjudicata in subsequent suit---Subject-matters of both the suits were same with the exception of few parties, remaining parties were also same---Causes of action were different as well as reliefs claimed in both suits were also different---If suit filed by applicant was decreed, there would be no need to proceed with subsequent suit but if suit of applicant was dismissed, the suit filed by respondents would have to be proceeded on merits---Instead of staying the suit filed by respondents and to avoid conflict of opinion, High Court consolidated both the suits to proceed together---Application was dismissed in circumstances.

Habib Bank Ltd. v. Ali Mohtram Naqvi PLD 1987 Kar. 102 and Attock Oil Company v. Ghaith Rashad Pharaon and others 1996 CLC 1657 ref.

Plaintiffs absent.

M.G. Dastagir for Defendant No.3.

Nemo for other Defendants.

2008 C L C 401

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

Messrs RABIA RANA and others---Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

C.P. No.632 of 1990, decided on 19th August, 2004.

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

----Ss. 4 & 11---Acquisition of land for local authority or company---Landowner's right to get compensation---Scope---Owner would not be required to recover compensation from beneficiary of acquired land as agent of Provincial Government would be required to pay compensation to owner---Principles.

The Land Acquisition Act, 1894 only allows the Provincial Government to acquire land for a public purpose or for a company upon payment of compensation to the owner. The Collector acts as agent of Provincial Government while making his award under section 11, Land Acquisition Act, 1894 and is required to pay the compensation determined by him subject to a decision on a reference under section 18 of the Act and an appeal under section 54. This becomes evident from reading of sections 39, 40 and 50, which provide that when land is acquired at the costs of any fund controlled or managed by a local authority or a company, charges of and incidental to such acquisition are to be defrayed from such fund or by the company and in the latter case, a company must enter into an agreement with the Government undertaking to pay such costs. It does not say that the owner is required to recover compensation from the beneficiary.

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

----Ss. 18 & 54---Acquisition of land for local authority or company--- Right of such local authority or company to prefer reference or appeal---Scope---Land acquisition was a matter between Provincial Government and landowners, thus, such company or local authority had no right to prefer reference or appeal.

Iftikhar Hussain Shah v. Pakistan 1991 SCMR 2193 rel.

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

----Ss. 11 & 31(3)---Land acquisition---Determination of compensation, proceedings for, pendency of---Granting of other land in lieu of monetary compensation---Scope---Once award in terms of money compensation was made, then Government would cease to have jurisdiction to grant other land under S.31(3) of Land Acquisition Act, 1894---Granting of land during pendency of such proceedings would practically nullify acquisition proceedings---Principles.

Mirza Muhammad Hussain Beg and others v. The Government of West Pakistan and others PLD 1961 (W.P.) Lah. 696 rel.

Muhammad Saleem Samo for Petitioners.

Ahmad Pirzada, Addl. A.-G. for Respondents.

Date of hearing: 18th August, 2004.

2008 C L C 418

[Karachi]

Before Nadeem Azhar Siddiqi, J

ANWER HUSSAIN SURYA----Plaintiff

Versus

SUMAIR BUILDERS through Partners--Defendant

Suit No.141 of 2007, decided on 29th January, 2008.

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

----S. 54---Suit for permanent injunction---Maintainability---Conditions---Suit for permanent and mandatory injunction is not maintainable unless plaintiff shows some right, title and interest in suit property.

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

----S. 21(c)---Agreement not enforceable---Uncertain terms of agreement---Plaint did not disclose sale consideration nor amount paid by plaintiff to defendants---Effect---In absence of specific terms, contract capable of specific performance was not concluded---Such agreement was not enforceable under S.21(c) of Specific Relief Act, 1877.

Shajar Ali Doti v. Esmail Sobani 1987 CLC 2307 rel.

(c) Damages---

----Suit for recovery of damages---Maintainability---Unless right in subject-matter of suit is established, merely claiming damages is not sufficient to maintain the suit.

Muhammad Aslam v. Karachi Development Authority 2004 CLC 308 rel.

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

---Ss. 12, 21(c), 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Specific performance of oral agreement to sell---Rejection of plaint---Oral agreement---Contract not enforceable in law---Plaintiff sought specific performance of agreement to sell but failed to file any document to show that at any point of time he had entered into any agreement with defendants with regard to suit plots---Plaintiff also failed to file any receipt to show that in consonance of oral agreement any amount was paid to defendants with regard to suit plots---Plaint was also silent with regard to terms and conditions of alleged oral agreement between plaintiff and defendants---Plaintiff also had not asked for any declaration with regard to his right, title and interest in suit plots and possession had been sought without asking for specific performance of alleged oral agreement---Effect---Plaintiff failed to show that there was any agreement between him and defendants and due to breach of such contract he had suffered mental torture---Suit filed by plaintiff was not maintainable as it did not disclose cause of action against defendants and was also barred under S.21(c) of Specific Relief Act, 1877---Plaint was rejected in circumstances.

Nemo for Plaintiff.

Noman Jamali for Defendants.

2008 C L C 426

[Karachi]

Before Nadeem Azhar Siddiqi, J

AWARD IN DISPUTE BETWEEN MRS. SUNBLE ZAREEN KHAN AND D.C.A.S. (ADMN.) and 2 others: In the matter of

Suit No.543 of 2007, decided on 17th January, 2008.

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

----S. 17---Award---Powers of court---Scope---Court cannot act as appellate Court, its jurisdiction is supervisory in nature---Court, while examining validity of award, cannot undertake reappraisal of evidence recorded by Arbitrator in order to discover error or infirmity in award---Error or infirmity in award must appear on the face of the award and should be discovered by reading the award itself---When dispute is referred to Arbitrator it becomes duty of court to give every reasonable intendment in favour of award and lean towards holding same rather than vitiating it.

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

----Ss. 17 & 30---Award---Objections---Arbitrator filed award in the court and plaintiff objected to the same on the ground that it was manoeuvred document, passed ex parte and submissions of plaintiff were not considered---Validity---Arbitrator was Judge of all matters arising in dispute and it was not proper for the court to proceed to scrutinize the award in order only to discover error for the purpose of setting aside the same---Plaintiff failed' to point out any perversity or illegality in award and had also failed to establish any misconduct on the part of Arbitrator---Arbitrator based his findings in view of terms of agreement of licence executed between parties---While directing plaintiff to vacate premises, Arbitrator did not commit any error and there was no illegality, infirmity or perversity in the award---Objections filed by plaintiff were set aside---Award was made rule of the court.

Nemo for Plaintiff.

Muhammad Asif Khudai for Defendants.

2008 C L C 431

[Karachi]

Before Arshad Noor Khan, J

QAMAR ZAMAN----Petitioner

Versus

IIND ADDITIONAL DISTRICT JUDGE, KARACHI and another----Respondents

Constitutional Petition No.S-578 of 2002, decided on 21st January, 2008.

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

----Ss. 10(3), 15(2)(ii)(vii) & 18---Default in payment of rent---Denial of relationship of landlord and tenant for want of proper notice regarding change of ownership---Tenant's plea was that he was inducted in property by previous owner, on whose refusal to receive rent, same was being deposited in court---Validity---Such refusal of previous owner would show that by that time, he had ceased to be owner of property, for which such notice had been served on tenant---Despite such refusal of previous owner, tenant did not pay, rent to present landlord, but started depositing in court in ,previous owner's name---Tenant after receipt of such notice should have acknowledged present landlord as landlord of property or had deposited rent in the court---If such notice was defective, then tenant could have sought clarification from landlord, but he was not bound to deposit rent in previous owner's name, who had refused to receive the same---Tenant in application under S.10(3) of Sindh Rented Premises Ordinance, 1979 had acknowledged present landlord as his landlord, but even then rent had not been tendered to him voluntarily--- Default in payment of rent in such circumstances could not be treated as technical in nature---Ejectment petition was accepted in circumstances.

Muhammad Hayat v. Sh. Bashir Ahmed and others 1988 SCMR 193; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa 2001 SCMR 338; Nisar Ahmed Khan v. Noor Khan 1990 SCMR 544 and Reckitt & Colman of Pakistan Ltd. v. Saifuddin G. Lotia 2000 SCMR 1924 ref

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Tenant's plea was that landlord owned other properties---Effect---No restriction could be imposed on whim, wish and choice of landlord to select property suitable for running of his business---Principles.

It is whim, wish and choice of the landlord to seek eviction of the tenant on the ground of personal bona fide use of the premises, which is suitable to run his business and no restriction can be imposed on his whim, wish and choice to select the property, which is suitable for running of his business.

Allies Book Corporation through L.Rs. v. Sultan Ahmed and others 2006 SCMR 152 and 1991 SCMR 1029 ref.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlord's demand for enhancement of rent---Effect---Such demand would not reflect on landlord's bona fide personal use of premises---Principles.

Nisar Ahmed Khan v. Noor Muhammad Khan 1990 SCMR 544 ref.

Neel Keshav for Petitioner.

S.M. Haider-for Respondent No.2.

Nemo for Respondent No.1.

Date of hearing: 21st January, 2008.

2008 C L C 441

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mrs. NUSRAT KHAN----Plaintiff

Versus

ALI AKBAR MANGI and another----Defendants

Suit No.69 and C.M.A. No.859 of 2007, decided on 17th January, 2008.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of suit---Condition precedent---Valuation of suit---Suit pending in subordinate court was transferred and fixed before High Court---Plaintiff amended the plaint and value of suit was enhanced from Rs.49,000 to Rs.70 million after transfer of suit---Applicant sought re-transfer of the suit to civil court---Validity---High Court was invested with power to withdraw any suit pending in any court subordinate to it and to try or dispose of the same---General power of transfer and withdrawal was not subject to valuation of the suit---Only condition for transfer was that suit was pending before a court subordinate to High Court---Once the case was transferred to High Court it was discretion of the High Court try and dispose of the same itself or to transfer the same to some other court subordinate to it or to transfer the same to the court from which the same was transferred---Jurisdiction of High Court to try a suit was not subject to valuation of suit---Suit could not be re-transferred on the ground that value of suit was below the jurisdiction of High Court---High Court declined to re-transfer the case to civil court---Application was dismissed in circumstances.

Khawaja Shams-ul-Islam for Plaintiff.

Shakeel Ahmed for Defendant No.1.

2008 C L C 444

[Karachi]

Before Nadeem Azhar Siddiqi, J

LAKHANI TEXTILE INTERNATIONAL through Partner----Plaintiff

Versus

Messrs SOUTHERN AGENCIES (PVT.) LTD.----Defendant

Suit No.643 of 2004, decided on 28th January, 2008.

Partnership Act (IX of 1932)---

----S. 69---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Registration of firm---Onus to prove---Unregistered partnership firm filed suit for recovery of amount---Plea raised by defendant was that the suit was barred under S.69 of Partnership Act, 1932-Validity-Enforcement of right arising out of a contract by an unregistered firm against third party was barred under S.69 of Partnership Act, 1932---Effect of non-registration was that any firm which was not registered would be unable to enforce its claim against third party in civil court---Provision of S.69 of Partnership Act, 1932 was mandatory and registration of firm was a condition precedent to the exercise of right to institute the suit---Onus to prove that plaintiff's. firm was registered was upon plaintiff and without production of registration certificate plaintiff could not claim that firm was registered---Suit filed by plaintiff firm was hit by provisions of S.69 of Partnership Act, 1932---Plaint was rejected in circumstances.

Nemo for Plaintiff.

Mansoor A. Sheikh for Defendant.

2008 C L C 446

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD QASIM----Petitioner

Versus

VITH ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI CENTRAL and 2 others----Respondents

Constitutional Petition No.182 of 2006, decided on 21st January, 2008.

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

----Art. 133---Averments contained in examination-in-chief/affidavit-in-­evidence, if not rebutted in cross-examination, would be deemed to have been accepted by opposite party---Principles.

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

----Ss. 2(i) & 15(2)(ii)---Electricity and conservancy charges, non-payment of---Effect---Non-payment of such charges either to landlord or directly to concerned department would tantamount to wilful default in payment of rent on the part of tenant.

Badruddin v. Muhammad Yousuf 1994 SCMR 1900 and Abdul Ghaffar v. Amtul Saeeda 1999 SCMR 28 rel.

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

----S. 15(2)(ii)---Bona fide personal need of landlord---Landlord's plea in ejectment petition and affidavit-in-evidence was that he was running business in a rented shop; that disputed shop was suitable for his business---Proof---Tenant while cross-examining landlord did not controvert his such plea---Running of business by landlord in a rented shop was, thus, fully established---Landlord was entitled to eviction of tenant in circumstances.

(d) Appeal (Civil)---

----Appellant could not add, alter or delete any party from proceedings as per his whim and wish.

Muhammad Shahid Qadeer for Petitioner.

Nemo of Respondents.

Date of hearing: 21st October, 2008.

2008 C L C 464

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD TAHIR-----Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings----Defendant

Civil Suit No.1473 and C.M.A. No.10075 of 2007, decided on 6th February, 2008.

Courts Fees Act (VII of 1870)---

----S. 13---Civil Procedure Code (V of 1908), O.XXIII, R.1---Court-fee paid on plaint, refund of---Application for withdrawal of suit after issuance of summons to defendant and passing of stay order therein---Acceptance of withdrawal application without serving its notice upon defendant---Application for refund of court-fee resisted by defendant after receipt of notice thereof---Validity---Prayer in refund application was justified---High Court accepted refund application and directed its office to issue necessary certificate in favour of plaintiff.

Sheikh Riazuddin v. Aqeelur Rehman and 4 others PLD 1993 SC 76 ref.

Shah Nawaz Awan for Plaintiff.

Muhammad Iqbal Memon for Defendant/K.B.C.A.

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

2008 C L C 466

[Karachi]

Before Nadeem Azhar Siddiqi, J

S. ASIF ALI----Plaintiff

Versus

Haji GAHNO KHAN JATOI and 2 others----Defendants

Suit No. Nil of 2007, decided on 29th January, 2008.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.2---Withdrawal of suit with permission to file fresh suit on same cause of action---Principles---Plaintiff sought withdrawal of suit on the ground of its being defective for want of proper prayer and proper and necessary parties---Validity---Court, if satisfied that suit would fail by reason of some formal defects or there were other sufficient grounds for allowing plaintiff to institute fresh suit for the subject-matter of the suit, permission under O.XXIII, R.2, C.P.C. could be granted to plaintiff to withdraw the suit with liberty to institute a fresh suit---Plaint, in the present case, suffered from formal defect and suit would fail for want of necessary and proper parties and prayers, therefore, High Court allowed plaintiff to withdraw the suit with permission to file fresh suit---Application was allowed in circumstances.

Zakir Hussain Khaskheli for Plaintiff.

Muhammad Ahmed Pirzada, Addl. A.-G. Sindh for Defendants.

2008 C L C 470

[Karachi]

Before Sabihuddin Ahmed and Zia Pervez, JJ

CITY SCHOOL (PVT.) LTD.----Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY----Respondent

C.P. No.D-11 of 2004 and C.P. No.1243 of 2003, decided on 20th January, 2004.

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

---Ss. 6(3), 7-A & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Summary eviction of tenant---Petitioner who was tenant in respect of house in question, was running a school therein---Notice was issued to petitioner by the Authority, whereby petitioner was required to vacate house in question at the risk of summary eviction, remove unauthorized structure at the risk of demolition under S.7-A of Sindh Buildings Control Ordinance, 1979---Counsel for the Authority had conceded that power to cause summary eviction or demolish the building did not vest in the Authority and had explained that impugned notice was served in Standard Form and that concerned officer omitted to score out the provisions which were not applicable and Authority, was only interested in prosecuting petitioner for alleged violation of provisions of S.6(3) of Sindh Buildings Control Ordinance, 1979 in exercise of powers available under S.19 of said Ordinance---Held, if in view of the said undertaking, prosecution was eventually undertaken, petitioner would always have an opportunity to take up all defences available in law including the powers available under S.19 of the Ordinance---Counsel for petitioner having not pressed the petition, same was disposed of accordingly.

Khalid Javed for Petitioners.

Shahid Jameeluddin for Respondent.

2008 C L C 484

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. TAHIRA PARVEEN and 3 others----Appellants

Versus

Mst. SABA JAMIL and 3 others----Respondents

H.C.A. No.99 of 2007, decided on 6th February, 2008.

(a) High Court (Lahore) Rules and Orders---

----Vol. V. Chap.4-H, R.3---Opinion recorded before delivery of judgment---Non-availability of one Judge of the Bench---Division Bench of High Court dismissed the appeal by short order and detailed judgment was yet to be recorded when one of the two Judges ceased to be Judge of the High Court---Effect---Matter was placed before Chief Justice by reference who allowed the other Judge of the Bench to deliver the judgment.

Ghulam Hussain v. The State PLD 1981 Kar. 711 and Office Reference, dated 28-4-1981 PLD 1982 Kar. 250 fol.

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

----S. 4---Civil Procedure Code (V of 1908), O.XX, R.13---Specific Relief Act (I of 1877), S.42---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Partition and administration of property---Declaration of title---Appellants claimed that their predecessor-in-interest had independent right in the suit property and deceased owner had relinquished his share in favour of their predecessor-in-interest---Validity---Purpose of suit for administration and partition was to decide whether property belonged to deceased or not and without deciding the same, it was not possible for court to administer and partition the property, thus, scope of such suit was limited---Question of title to property claimed by any heir in his own independent right could not be determined in such proceedings---Object was to determine estate of deceased at the time of his death---Property stood yin the name of deceased owner, at the time of his death and appellants failed to prove that the same was relinquished in favour of their predecessor-in­-interest by deceased owner in his lifetime---Preliminary decree as well as decree in the suit was properly passed by Single Judge of the High Court and appellants failed to point out any defect in the judgment and decree---Intra-court appeal was dismissed in circumstances.

Syed Mohsin Raza Bukhari and others v. Syed Azra Zenab Bukhari 1993 CLC 31; Muhammad Younus Qureshi and others v. Mrs. Feroz Qureshi and others 1982 CLC 976; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Asghar Ali v. Mrs. Zohrabi and another 2000 MLD 122 rel.

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

---Art. 46---Affidavit-in-evidence---Death of deponent---After filing of affidavit-in-evidence, deponent did not appear in witness-box and was not cross-examined---Plea raised by party relying on the affidavit was that such statement was protected under Art.46 of Qanun-e-Shahadat, 1984---Validity---Non-appearance of witness after filing of affidavit-in-evidence till her death was not covered by any of the eight conditions of Art.46 of Qanun-e-Shahadat, 1984.

S. Ansar Hussain for Appellants.

Yawar Faruqui for Respondents.

Date of hearing: 4th October, 2007.

2008 C L C 498

[Karachi]

Before Nadeem Azhar Siddiqi, J

PORT QASIM AUTHORITY through Secretary PQA; Karachi----Plaintiff

Versus

Mrs. YASMIN ABDULLAH----Defendant

Suit No. Nil of 2004, decided on 4th February, 2008.

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

-----S. 12(1)-Limitation--Computation---Day on which order was passed is to be excluded and time would start running from next date.

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

----O. IX, R.4---Suit dismissed for non-prosecution---Restoration---Sufficient cause---Neither counsel for plaintiff nor plaintiff himself appeared before the court, resultantly, suit was dismissed for non-­prosecution---Plea raised by plaintiff was that due to illness, his counsel did not attend the case and he was under impression that matter was being properly prosecuted---Plaintiff further raised the plea that his non-appearance and that of his counsel was the result of circumstances beyond their control---Plaintiff also contended that suit was dismissed before issuance of summons to defendant and it could be restored without hearing the defendant---Validity---Cause shown by plaintiff was reasonable and in view of showing sufficient cause, High Court re-called the dismissal order---Plaint was restored in circumstances.

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

----O. VII, R.1(e)---Limitation Act (IX of 1908), Art.110---Suit for recovery of arrears of rent---Limitation---Date when cause of action arose---Objection raised by the office was that the suit was barred by limitation---Plea raised by plaintiff was that from the date mentioned in plaint, when cause of action had arisen,' suit was filed within limitation of three years---Validity---Office objection had to be seen in terms of contents of the plaint---Cause of action in the plaint had been pleaded as having accrued on 8-5-2001, and according to Art.110 of Limitation Act, 1908, a suit for recovery of arrears of rent could be filed within three years when the arrears had become due---Suit filed on 26-4-2004 was within limitation---Objection was overruled in circumstances.

Umar Hayat Sandhu for Plaintiff.

2008 C L C 504

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs BISMILLAH TEXTILE LTD.----Appellant

Versus

HABIB BANK LIMITED and 55 others----Respondents

High Court Appeal No.90 of 2007, decided on 6th February, 2008.

(a) High Court (Lahore) Rules and Orders---

----Vol. V. Ch.4-H, R.3---Decision of case by short order signed by Division Bench---Detailed reasons recorded later on by one Member of Division Bench could not be signed by its other Member as he, by that time, ceased to be a Judge of High Court---Available Member of Division Bench with permission of Chief Justice recorded reasons in support of short order and delivered judgment in the case.

Ghulam Hussain v. The State PLD 1981 Kar. 711 and Office Reference, dated 28-4-1981 PLD 1982 Kar. 250 rel.

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

----O. III, R.1 & O.XXIX, R.1---Appeal by Corporation---Board Resolution authorized "A" to deal with legal matters regarding property subject' matter of appeal---Vakalatnama of counsel was supported by special power of attorney executed by Chief Executive of the Corporation---Appeal was competently filed.

(c) Appeal (Civil)---

----Appeal filed under wrong provision of law---Effect---If court had jurisdiction to hear appeal, then such defect could be ignored and appeal could be considered on merits.

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

----O. XXI, Rr.61 & 66---Transfer of Property Act (IV of 1882), S.55(1)(g)---West Pakistan Urban Immovable Property Tax Act (V of 1958), S.16(4)---Execution proceedings---Sale of property in public auction by court on "as is where is" basis after advertising the same---Property tax and utility bills outstanding against property prior to its auction-Auction, purchaser's liability to pay such taxes and bills---Scope---Purchaser would not be bound to pay such taxes and bills, unless there was mention in advertisement of sale of property that same was being sold with all liabilities---Term "as is where is" would refer only to physical attributes of property sold and would not relate to its liabilities, dues and taxes---Liability of utility bills would be that of consumer---Consumer was judgment-debtor and not property---Merely providing utility services at property would not create any charge over property unless so declared by law---In absence of contract to contrary, seller/judgment-debtor would be liable to pay all public charges in respect of property sold---Between purchaser and seller/judgment-debtor, there was no contract that purchaser would be liable to pay dues and taxes over property sold---Property tax would have priority over claim of seller/judgment-debtor, which would be paid from sale proceeds of property---Purchaser would not be liable to pay any dues over property upto date on which its sale in his favour was made absolute by Court---High Court issued sale certificate to purchaser free from all liabilities in, circumstances.

Ghulam Hussain v. The State PLD 1981 Kar. 711 and Office Reference, dated 28-4-1981 PLD 1982 Kar. 250 fol.

Mir Amjad Ali v. The Official Assignee, High Court of Sindh Karachi and others 2001 CLC 671; National Bank of Pakistan v. Zarak Textile Mills Ltd. 2007 YLR 2772; Messrs Industrial Development Bank of Pakistan v. Messrs Maida Limited and others 1994 SCMR 2248; Shahid Hussain Malik v. Habib Bank Limited 2006 CLD 766/; United Bank Limited v. Messrs Al-Noor Enterprises and another 2006 CLC 822 and Black's Law Dictionary Sixth Edition rel.

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

----O. XXI, R.66---Auction of property on "as is where is basis---Auction purchaser's liability to pay accrued and unpaid taxes of property sold---Scope stated.

Term "as is where is" basis is only referable to physical attributes of the property sold and does riot relate to liabilities, dues and taxes.

The phrase "as is where is" only reflects the present status, condition, position, place and location of the property, and it cannot be interpreted to include liability, charge or encumbrances attached to the property, unless it is specifically provided in the agreement or in the proclamation of sale/advertisement of sale of property. It is also requirement of Order XXI, R.66, C.P.C. that any encumbrance to which the property is liable should be specified fairly and accurately.

Encumbrance includes the accrued and unpaid taxes.

Mir Amjad Ali v. The Official Assignee, High Court of Sindh, Karachi and others 2001 CLC 671; Shahid Hussain Malik v. Habib Bank Limited 2006 CLC 766 and Black's Law Dictionary Sixth Edition ref.

(f) Words and phrases---

----"As is where is"---Connotation.

Black's Law Dictionary Sixth Edition ref.

(g) Words and phrases---

----"Encumbrance"---Connotation.

Black's Law Dictionary Sixth Edition ref.

Muhammad Saleem Mangrio for Appellant.

Shakeel Pervaz for Respondent No.1.

Respondents Nos.2 to 56 are called absent.

Date of hearing: 4th October, 2007.

2008 C L C 517

[Karachi]

Before Arshad Noor Khan, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Petitioner

Versus

HABIB SAFE DEPOSIT VAULT (PVT.) LTD. and 2 others----Respondents

Constitutional Petition No.S-275 of 2005, decided on 11th February, 2008.

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

---S. 8---Application for fixation of fair rent---Proof---Lease agreements relied upon by landlord not related to buildings situated in surroundings of demised premises---Non-examination of any witness from Excise and Taxation Department regarding market value of demised premises for fixation of its annual rental value---Effect---Production of lease agreements by landlord executed by him in favour of other tenants---Validity---Rent exorbitantly agreed between landlord and other tenants with mutual consent at their own whim and wish, would not mean that-such rent was market value of property for purpose of fixation of fair rent---Market value of property could be proved by leading evidence from Excise and Taxation Department having authority to fix such value---Fixation of annual rent by landlord for other tenements in building in possession of tenant would not mean that such annual rent was fixed for premises in possession of tenant---Application was dismissed in circumstances.

2001 SCMR 1103 and Abdul Ghaffar v. Noor Jehan Malik 1987 CLC 2182 ref.

Muhammad Sharif v. Muhammad Afzal Sohail MD 1981 SC 246 rel.

Mian Mushtaq Ahmed for Petitioner.

Muhammad Hamid Hussain for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2008 C L C 524

[Karachi]

Before Agha Rafiq Ahmed Khan, J

SULLEMAN and others----Applicants

Versus

ALLAN JOKHIO through L.Rs.----Respondents

Civil Revisions Applications Nos.92 and 93 of 2007, decided on 28th January, 2008.

Civil Procedure Code (V of 1908)---

----O. XLI, R.31---Judgment of Appellate Court deciding appeal without framing specific points---Validity---All issues had been .shown in judgment and Appellate Court had discussed evidence recorded thereon---Appellate Court had not committed any material irregularity---Judgment of Appellate Court could not be set aside solely on such ground.

Suresh J. Jethanand for the Applicants.

Basharat Ahmed Jatt for Respondents.

2008 C L C 533

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

MUHAMMAD IQBAL----Petitioner

Versus

TOWN NAZIM, NORTH NAZIMABAD, KARACHI and others-Respondents

Constitution Petition No.D-225 of 2006, decided on 31st August, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioner had contended that he had completed the entire work, but bills were not paid by authorities---Authorities were claiming heavy damages on account of his alleged sub-standard work---Authorities had denied the allegation made in the petition and stated that petitioner was not entitled to any relief---Quality of work was also disputed,--Points involved in the petition required resolution of factual controversy as to the quality of work and as such entitlement of petitioner could not be resolved in constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Khalid Javed for Petitioner.

Fazal-ur-Rehman for Respondents Nos.1 and 2.

Manzoor Ahmad for D.C.O.

2008 C L C 538

[Karachi]

Before Amir Hani Muslim and Maqbool Baqar, JJ

ZULFIQAR ALI SULEHRIA----Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller----Respondent

Constitutional Petition No.D-400 of 2006 and Miscellaneous Nos.1530, 1531 and 1532 of 2006, decided on 31st March, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Construction of building according to approved plan---Approval to construct fourth floor---Withdrawal of approval---Petitioner had claimed that at the time when the approval for said floor was sought, requisite documents of structural design and other details were fully furnished to the Authority by the petitioner---Petitioner had alleged that when construction of the floor was going on, officials of the Authority sealed the premises without any prior notice on the ground that approval of the floor was withdrawn---Petitioner had contended that he was neither served with any show-cause notice nor was heard and impugned action of sealing besides the withdrawal of approval of the floor by the Authority, was without lawful authority---Petitioner also undertook to file further documents as petition had been filed in haste due to element of urgency---Validity---Held, petitioner could file all such documents and Authority was restrained from taking any demolition action against the petitioner's construction on the said floor and petitioner would also not raise any further construction on the said floor.

Jamil Ahmed Virk for Petitioner.

2008 C L C 542

[Karachi]

Before Mushir Alam and Munib Ahmad Khan, JJ

MUHAMMAD USMAN and others----Petitioners

Versus

PROVINCE OF SINDH through Member, Board of Revenue Land Utilization Department, and others----Respondents

Constitution Petition No.D-380 and C.M.A. No.1840 of 2004, decided on 17th August, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Title of the petitioner as well as genuineness of documents on the basis of which the petitioners were claiming the title in respect of property in question, were very much disputed, which could not be decided in constitutional petition---Constitutional petition was dismissed.

Muhammad Ali Abbasi for Petitioner.

Abdul Khalil, Manzoor Ahmed Advocates and Abbas Ali, Addl. A.-G, for Respondents.

2008 C L C 546

[Karachi]

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

MUHAMMAD JUNAID and others----Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Local Government and Town Planning Development Department and others----Respondents

Constitutional Petition No.D-1068 of 2001, decided on 21st January, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Grievance of the petitioner was that despite approved building plan having been filed by him, Authorities were not passing any order and no objection certificate was not being issued to him---Contention of counsel for Authorities was that there was no question of giving any N.O.C. as the space was temporarily allowed to be occupied and in fact, it was over a Nala and subsequently said permission was cancelled---Counsel for petitioner though had disputed contention of counsel for the Authorities, but he had stated that he would be satisfied if a direction was given to the Authorities to dispose of his application in the `affirmative' or 'negative'-Counsel for Authorities undertook that an appropriate order would be passed by the competent authority on such application within three weeks---Constitutional petition was disposed of accordingly.

Abrar Hassan for Petitioners.

Manzoor Ahmed for Respondents Nos.2 and 3.

2008 C L C 551

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

Mst. SHAMIM AKHTAR----Petitioner

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department Board of Revenue, Karachi and others----Respondents

Constitutional Petition No.D-1427 of 2005, decided on 1st June, 2006.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition-of land---Dispute regarding title to land. in question was between the petitioner and the private respondents, whereas official respondents had nothing to do with claim of title---Compensation of acquired land in dispute could be claimed by successful-party who would succeed in securing title of the property in question ultimately---Acquiring agency,, under the Land Acquisition Act, 1894, was liable to pay the interest on the amount of compensation withheld from date of acquisition till it was paid---Petitioner having succeeded, Acquiring Authority would be liable to pay compensation to petitioner.

Abid S. Zuberi and Asghar Naseem Faruqui for Petitioner.

Manzoor Ahmed for Respondents Nos.1 to 6.

Muhammad Sarfraz Sulheri for Respondent No.2.

Noor Muhammad Davo for Respondent No.9.

Ahmed Pirzada, A.A.-G. along with Rasheed Qureshi, Mukhtiarkar Korangi Town, Karachi.

2008 C L C 554

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

Messrs SHAKOO (PVT.) LIMITED----Petitioner

Versus

PROJECT DIRECTOR N.H.A. NORTHERN BYPASS GOVERNMENT OF PAKISTAN, KARACHI and others----Respondents

Constitutional Petition No.D-512 of 2003, decided on 22nd April, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Counsel for authorities had stated that no action in respect of the property of the petitioner had been taken, and in any event even if some part of his property was acquired for the purpose of the road, same could only be acquired upon payment of compensation in accordance with requirement of Land Acquisition Act 1894---Counsel for petitioner being satisfied with undertaking of counsel for authorities, petition was dismissed having not been pressed subject to said undertaking.

M.H. Samdani for Petitioner.

Manzoor Ahmed for Respondents Nos.3 and 4.

Nadeem Azhar on Court Notice.

2008 C L C 558

[Karachi]

Before Sabihuddin Ahmad and Muhammad Afzal Soomro, JJ

MUHAMMAD SHAFT BUTT and others----Petitioners

Versus

PROVINCE OF SINDH, through Secretary, Local Government Department, Government of Sindh and others----Respondents

Constitutional Petition No.D-1256 of 2003, decided on 13th May, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 10---Constitution of Pakistan (1973) Art.199---Constitutional petition--- Acquisition of land--- Nothing was available to indicate that property of petitioner was acquired by authorities for the purpose of construction of public purpose--- Nazir of the court had reported that it was located at some distance from the land being acquired---Petitioner's property was not being acquired, however, if it was decided to acquire the same, that would be done only in accordance with law and on payment of appropriate compensation to the petitioner ---Counsel for the petitioner being satisfied, petition was disposed of accordingly.

Kalim Hassan Siddiqui for Petitioner.

Manzoor Ahmed for Respondent.

2008 C L C 562

[Karachi]

Before Zia Perwez, J

Messrs RECTO INTERNATIONAL through Partner----Applicant

Versus

Messrs PAKISTAN TELECOMMUNICATION COMPANY LTD. through Director Telegraph and another----Respondents

R.A. No.128 of 2006, decided on 28th March, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of contract---Application for interim order-Applicant had sought interim order for performing services under contract awarded to applicant for a period of one year for transportation of goods of the defendants by restraining the defendants from awarding the contract to any other contractor---Validity---Defendants were public functionaries and in the usual course of business they awarded contract along with others to, the applicant for one year, which period had expired---Declaration sought to be obtained, was misconceived being hit by provisions of S.42 of Specific Relief Act, 1877---Even otherwise, after expiry of the period of contract, no restraining order was called for as the contract had expired with afflux of time; and fresh tenders had already been invited for awarding contract wherein all contractors qualified on merit, could participate---Period of execution of contract having already expired, application seeking extension of contract in the suit for declaration and injunction, had been rightly dismissed by the Trial Court and Appellate Court.

Nemo for Applicant.

Jamil Ahmed Virk for Respondents.

2008 C L C 572

[Karachi]

Before Munib Ahmad Khan, J

CITY DISTRICT GOVERNMENT, KARACHI----Plaintiff

Versus

Messrs IFTIKHAR AND TAHA PROJECT MANAGEMENT AND CONSTRUCTION COMPANY----Defendant

Suit No. Nil of 2006, decided on 25th July, 2006.

Contract Act (IX of 1872)---

----S. 37---Arbitration Act (X of 1940), S.22---Suit for performance of contract---Appointment of arbitrator---Counsel for plaintiff had stated that no arbitration clause existed in any of the documents relating to the alleged dispute between plaintiff and defendant; that alleged dispute was to be settled in accordance with the contract and that dispute, if any between the principal and the contractor, was to be decided by the competent Authority who, in the case, was Nazim of the City District---Counsel had further contended that contrary to the contract agreement, matter had been referred to arbitrator fraudulently with the collusion and connivance of the contractor and some of the unscrupulous officials against whom departmental action was in the offing and that an application before the Arbitrator had been made for stoppage of arbitration proceedings as such proceedings had already been questioned---Validity---Contention of the plaintiff needed consideration---Proceedings before Arbitrator were suspended till next date by the High Court.

Qazi Khalid Ali for Plaintiff.

2008 C L C 579

[Karachi]

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

Shaikh ARIF-UL-REHMAN----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

C.P. No.111 of 2007, decided on 28th September, 2007.

Cooperative Societies Act (VII of 1925)---

----S. 17(b)---Constitution of. Pakistan (1973), Art.199---Constitutional petition----Withdrawal of permission to contest elections to the membership of the Managing Committee of the Co-operative Society---High Court earlier had directed holding of the elections in the Society within three months, which could not have been given effect to; High Court in the said earlier order had restrained fresh allotments---No fresh allotment of plot was made, but certain transfers of duly allotted plots did take place and transferees acquired membership rights under S.17(b) of Co-operative Societies Act, 1925---Validity---Held, to protect interests of all persons having acquired membership rights, it was directed that list of all such persons who were entitled to vote under the bye-laws of the society, would be prepared within two weeks; and the electoral process would commence immediately thereafter so as to ensure that elections were completed within three months; High Court further ordered that petitioner would be entitled to contest elections---Such order was passed with the consent of the parties.

Shaukat Ali Shaikh for Petitioner.

Qazi Khalid Ali, A.A.-G.

2008 C L C 583

[Karachi]

Before Ali Sain Dino Metlo, J

Messrs ABDULLAH (PVT.) LTD.----Petitioner

Versus

Miss SADAF MUNAWAR and another----Respondents

C.P. No.S-103 of 2007, decided on 22nd March, 2007.

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

----S. 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Execution of orders---Jurisdiction of Rent Controller---Rent Controller's jurisdiction under S.22 of Sindh Rented Premises Ordinance, 1979 was limited only to the extent of questions relating to execution, discharge or satisfaction of the orders---Rent Controller could not assume the power of a civil court to determine intricate questions of the title, coming purely within the jurisdiction of a civil court---No exception could be taken to the impugned orders of the Rent Controller as well as of the Appellate Authority.

Jan Muhammad v. Saiyeda Khatoon and 5 others 1996 MLD 1845 ref.

Shafaat Hussain for Petitioner.

Date of hearing: 22nd March, 2007.

2008 C L C 596

[Karachi]

Before Munib Ahmad Khan, J

CONFERENCE AND EXHIBITION MANAGEMENT SERVICES (PVT.) LTD.----Plaintiff

Versus

PEGASUS CONSULTANCY (PVT.) LTD. and others----Defendants

Suit No.1056 of 2005, heard on 28th September, 2007.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Declaration of title and permanent injunction---Right to hold exhibition---Plaintiff company entered into an agreement with authorities for holding a trade exhibition in April, 2008, under its trade mark IGATEX---Authorities, without any notice, changed booking of plaintiff's exhibition and all dates and places reserved for IGATEX and converted them to MEGATEX---Validity---Held, it was the plaintiff on whose instructions booking for exhibition of 2008 was made by authorities in trade name IGATEX, therefore, plaintiff was entitled to that booking and plaintiff could not have any exception to that---Ownership in respect of IGATEX by plaintiff and its utilization in past years was admitted by authorities in the agreement of booking and in terms of the agreement authorities acted and got booking for plaintiff for specific dates outcome of which could only be claimed for plaintiff and none else---Plaintiff was entitled to organize the event in April, 2008, in the name of "IGATEX PAKISTAN 2008"---Booking made for plaintiff and accepted by defendant should remain unchanged as its renaming by authorities to MEGATEX was nothing but mala fide and at least amounted to passing off which was not permitted by law---Part played by authorities in the dispute was full of doubt for the reason that being an organizer of exhibition it could not show its ignorance into the working of plaintiff, who had already held 5 exhibitions in the past under its name---Authorities should not have allowed the defendant for renaming the show from IGATEX to MEGATEX without any inquiry from plaintiff or at least should have intimated it for the proposed change---Suit was decreed in circumstances.

2001 SCMR 967; 2002 CLD 706; PLD 1956 (W.P.) Lah. 900 and AIR 1971 Cal. 129 ref.

Arshad Tayebaly for Plaintiff.

Shaiq Usmani for Defendant No.2.

Date of hearing: 28th September, 2007.

2008 C L C 606

[Karachi]

Before Mushir Alam and Mrs. Yasmin Abbasey, JJ

Khawaja MUHAMMAD RAFI and 7 others----Petitioners

Versus

NAUMAN and 3 others----Respondents

Constitutional Petition No.D-1647 of 2005, decided on 8th March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Laches---Petitioners had impugned the regularization of apartment building that was effected on 7-12-2004---First complaint of alleged unauthorized construction was made on 8-1-2005---Petitioners slept throughout the period of construction and when the building had been completed in all respects, the regularization for ground plus two floors only for the residential purpose had been approved and possession had been handed over---Counsel for the petitioners had not been able to explain the laches and delay in approaching the court---High Court declined to interfere in exercise of constitutional jurisdiction.

Muhammad Iqbal Khanzada, Muhammad Ikram Siddiqui, Manzoor Ahmed, Dilawar Hussain and Sarwar Khan, A.A.-G.

2008 C L C 610

[Karachi]

Before Arshad Noor Khan, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Petitioner

Versus

Messrs AHMED & BROTHERS and 2 others----Respondents

Constitutional Petition No.7 and C.M.A. No.76 of 2008, decided on 25th February, 2008.

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

---Ss. 8 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fixation of fair rent---Factors to be considered---Rent Controller, on application of landlord, filed under S.8 of Sindh Rented Premises Ordinance, 1979 for fixation of fair rent, fixed rent at 100% above the rent paid by the tenant---Being aggrieved and dissatisfied with order passed by the Rent Controller landlord filed appeal and Appellate Court allowing appeal fixed rent at the rate of Rs.10 per sq. ft. per month---Landlord still feeling aggrieved and dissatisfied with said fixation had filed constitutional petition with the prayer to enhance rent to the tune of Rs.16 per sq. ft. per month---Validity---Factors to be taken into consideration for determining fair rent of the premises under S.8 of Sindh Rented Premises Ordinance, 1979 were; that the rent of similar premises situated in the similar surroundings in the adjoining locality; rise in cost of construction and repair charges; annual value of the premises, if any, on which property tax was levied; and imposition of new taxes---All or anyone of said four conditions must exist or co-exist with each other so as to fix the fair rent of the premises for which landlord was under obligation to adduce cogent, convincing and independent evidence to prove that rent of premises in possession of his tenant was less than rent of similar premises situated in the adjoining vicinity of his premises---Landlord, in the present case could not produce any document to show that the premises situated in the same vicinity where shop in possession of tenant was situated, bore rent claimed by landlord---Documentary evidence produced by landlord related to other tenements situated in different areas of the city---Landlord had also not examined any witness from Excise and Taxation Department in respect of its contention regarding market value of the premises for fixation of annual rental value of shop in question---Appellate Court, while modifying the judgment passed by the Rent Controller, had taken into consideration all the relevant factors for the purpose of fixation of fair rent and landlord had completely failed to point out any illegality or irregularity in the judgment passed by the Appellate Court so as to declare it as illegal, inoperative and ultra vires of the Constitution---Constitutional petition was dismissed.

Rizwan Ahmed Dodani for Petitioner.

Nemo for Respondents.

2008 C L C 618

[Karachi]

Before Nadeem Azhar Siddiqi, J

SAJJAD ASLAM GONDAL----Plaintiff

Versus

Messrs GONDAL TEXTILE through Chief Executive Officer/Proprietor and another----Respondents

Suit No. Nil and C.M.As. Nos.1681 to 1684 of 2008, decided on 3rd March, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.4---Promissory note---Essential ingredients---Suit for recovery of amount on basis of promissory note---Plaintiff had claimed that document on basis of which suit had been filed was a promissory note and on basis of it suit could be filed---Office had raised objection that suit was not covered under the Negotiable Instruments Act, 1881---Essential ingredients of the promissory note were that same was in writing; there could be an unconditional undertaking to pay the amount; there should be a certain sum of money and that the payment should be made at a fixed or determinable future time on demand---Documents revealed that all said essential ingredients were lacking in the document; said document thus, could not be equated with a promissory note---Office objection was upheld and counsel for plaintiff was required to file amended title of the suit correcting the provision of law and after submission of amended title, office could register suit.

Minhaj Farooqui for Plaintiff.

2008 C L C 622

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD IBRAHIM----Petitioner

Versus

AKHTAR IQBAL----Respondent

IInd Appeal No.59 in C.M.A. No.3217 of 2006, decided on 3rd March, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Rejection of plaint---Essentials---Limitation---Suit for cancellation of registered sale-deed, declaration and permanent injunction---Rejection of plaint---Trial Court rejected plaint holding that same having been filed after expiry of prescribed period of three years, was hit by the provision of limitation, but Appellate Court, setting aside rejection order passed by the Trial Court remanded case to the Trial Court for adjudication of the same on merits after recording the evidence of the parties---Validity---For the purpose of rejection of the plaint, the court had to consider averments contained in the plaint and if the contents of such averments did not disclose the cause of action; or where relief claimed was under-valued and the plaintiff on being required by the court to correct the valuation within time to be fixed by the court the plaintiff, failed to do so; or where relief claimed was properly valued, but the plaint had wrongly been typed on insufficient stamps and plaintiff on being required by the court to supply the required stamp paper within the time to be fixed by the court had failed to do so; and where the suit appeared from the statement in the plaint to be barred by any law, the plaint could be rejected---Averments contained in the plaint, had disclosed sufficient cause of action against defendant to file suit---Defendant nowhere sought the rejection of plaint on the ground of its being barred by any law of limitation---Trial Court rejected plaint on the ground that plaintiff filed suit for cancellation of sale-deed after a span of three years---Said findings of the Trial Court were contrary to the application filed by the defendant---Even the existence or non-existence of cause of action to the plaintiff or plaint being barred by limitation, were mixed questions of law and facts, which required evidence to be led by the parties and after appraisal of said evidence on that aspect of the matter---Appellate Court had rightly observed that evidence was necessary to be recorded by the Trial Court in pro and contra to their respective claims and by non-recording the evidence substantial justice could not be done---Defendant had failed to point out any illegality on the face of judgment passed by the Appellate Court---Appeal was dismissed.

Elis D. Silva v. Salahuddin 1984 CLC 1120 ref.

Chaudhry Rasheed Ahmed for Appellant.

Fasih-ul-Zaman Abbasi for Respondent.

2008 C L C 631

[Karachi]

Before Munib Ahmad Khan and Farrukh Zia G. Shaikh, JJ

Dr. Hafiz BABAR KHAN through Attorney----Petitioner

Versus

PAKISTAN through Secretary, Works and Rehabilitation Division, Islamabad and 9 others----Respondents

C.P. No.432 of 2006, decided on 20th February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Clearing plot from the encroachers---Grievance of the petitioner was that the order of the Governor be set aside and plot of petitioner be handed over to him after getting same cleared from all the encroachers---Authority had stated that it was not the owner of said plot nor it had ever allotted the same to petitioner---Impugned order was proper as Authority, could not order to provide the alternate plot as it was not the owner of said plot---High Court observed that petitioner could approach the Society which had allotted the plot to him, which could take further action for removal of the encroachments in accordance with law---Constitutional petition was dismissed.

Muhammad Ikram Siddiqui for Petitioner.

Fareed A. Dayo Addl. A.-G.

Manzoor Ahmed for City District Government.

2008 C L C 637

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Messrs SHAFIQ TEXTILE MILLS LTD. through Director----Petitioner

Versus

PROVINCE OF SINDH through Secretary, Local Bodies and 21 others----Respondents

Miscellaneous Nos.932 to 934 and 3448 of 2007 in Constitutional Petition No.D-1834 of 2006, decided on 22nd May, 2007.

Sindh Katchi Abadi Act (II of 1987)---

----S. 19(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Encroachment on plot---Petitioner had impugned the encroachment on his plot on the ground that Katcha/Pacca shops had been raised and/or constructed by unauthorized occupants on the road, which originally was of 40 feet wide, but had been reduced from 40 feet to 20 feet---Conduct of officers of department was most deplorable in that respect as it was officers of the department who allowed such encroachment upon the road; and once the entire road was encroached, said officers declared it as Katchi Abadi and had also issued leases to some of the encroachers and no action had been taken against said officers---Validity---Held, roads, if encroached upon by the unauthorized occupants, could not be declared as Katchi Abadi by abusing the authority under the Sindh Katchi Abadi Act, 1987 as section 19(4) of said Act had clearly restricted such powers of the public authority---Officers, who were responsible for allowing the encroachments and declaring the road as Katchi Abadi and subsequently allowing to lease them had to be subjected to departmental proceedings.

Raza Hashmi, Hassan Sabir and Muhammad Ikram Siddiqui for Petitioner.

Manzoor Ahmed, E.D.O. (Law), along with Abdul Malik District Officer (Enforcement), Muhammad Nasir, Additional, D.O. (AEC), K.D.A. Wing, Majid Siddique, D.D.O. (AEC), K.D.A. Wing, Syed Nishat Ali, Additional D.O. (N.K.T.), MPGO, C.D.G.K., Muhammad Sarwar Khan, Addl. A.-G. Sindh and Ahmed Ali Pirzada, Assist. A.-G. Sindh.

Dilawar Hussain for K.B.C.A.

Muhammad Shafiq Qureshi for private Respondents.

Muhammad Jamil for Respondent No.3.

2008 C L C 642

[Karachi]

Before Mushir Alam and Arshad Siraj, JJ

Messrs ASCO INTERNATIONAL (PVT.) LTD.

through Manager----Petitioner

versus

GOVERNMENT OF SINDH through Secretary, Industries, and 3 others----Respondents

Constitutional Petition No.1D-584 of 2003, decided on 11th October, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Unauthorized construction, demolition of---Grievance of petitioner was that unauthorized construction was being raised by respondent against approved building plan over the compulsory open space---Alleged unauthorized construction was prima facie established by inspection carried out under the orders of the High Court---No rules and regulations or bye-laws were shown to the court under which power had been conferred on the Authority to regularize unauthorized construction---Impugned illegal and unauthorized construction being raised by the respondent on plot in question was ordered to be attached---No reason was available to keep petition pending indefinitely when respondent had not seriously contested the same and conduct of the regulating Authority was also indifferent---Prima facie no material was on record to show that Authority had any power or jurisdiction to compound any violation of the building plan--Subsequent permission being without lawful authority, was not sustainable, in eye of law---Order accordingly.

Muhammad Ikram Siddiqui for Petitioner.

Nemo for Respondents.

Date of hearing: 10th October, 2007.

2008 C L C 645

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Athar Saeed, JJ

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer, through Authorized Officer District (HRM), C.D.G.K. and 3 others----Appellants

Versus

FAQIR MUHAMMAD----Respondent

High Court Appeal No.87 of 2006, decided on 26th May, 2006.

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

----O. XII, R.6---Judgment on admissions---Principle---Suit can be decreed on admissions at any stage of proceedings---Not necessary that issues be framed before such request is made to court---Admission must be clear, unambiguous, unqualified and unequivocal, failing which it would be incumbent upon the court to frame issues and decide the case.

Shaikh Mehmood Ahmed v. Dr. Ghait Pharaon 1987 CLC 2131; H. Gharibullah v. Mumtaz Begum 1990 CLC 1609; Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Company 1996 SCMR 696 and Qatar Airways v. Genyis International (Pvt.) Ltd. 2001 MLD 1615 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XII, R.6---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Admissions---Scope---Possession of plot allotted to plaintiff could not be given due to illegal encroachments---Provincial Ombudsman directed the authorities to allot alternate plot to the plaintiff---Authorities had admitted the averments made in the plaint in suit filed by plaintiff, but only inability was shown for the grant of alternate plot because of imposition of ban by government--High Court (Single Judge), in the light of admission made by authorities, decreed the suit in favour of plaintiff---Validity---Admission made by authorities was subject to the ban, which controversy should have been decided by Single Judge, although it might be only a legal one---Single Judge had merely observed that ban in question would not apply as it was independent of the issues involved in the suit---Only issue in the suit was whether the rights acquired by plaintiff in respect of plot in question as far back as in year, 1965 could be postponed/affected by virtue of ban---Division Bench of High Court set aside the judgment passed by Single Judge and remanded the case for decision afresh on the issue framed---Intra-court appeal was allowed accordingly.

Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Anjuman Tajran v. Chief Administrator Auqaf 2001 CLC 136; Nathu Singh v. Chuttan and others AIR 1999 Lah. 830; Ghulam Muhammad v. Bank of Bahawalpur 1971 SCMR 148 and Sultan Wasi Jan v. Sultan Saeed Jan 1983 SCMR 1265 ref.

Manzoor Ahmed for Appellants.

Khalid Javed Khan for Respondent.

2008 C L C 654

[Karachi]

Before Arshad Noor Khan, J

YAQOOB AHMED----Petitioner

Versus

Mst. SHAISTA and 2 others----Respondents

Constitutional Petition No.S-555 and C.M.A. No.3566 of 2007, decided on 25th February, 2008.

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

----S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Both the Trial. Court and Appellate Court having given the custody of minors to the mother, father of minors had challenged said concurrent judgments in constitutional petition---Validity---Prime consideration for determination of custody of minors being their welfare, the court had to consider the same before handing over their custody to their mother or father---For the purpose of consideration of the welfare of the minors, evidence available on record was to be considered by the court---Father of the minors was residing in a rented house in a joint family system; he was running electric shop used to remain outside the house in connection with his work and his parents were not surviving and he was residing with his two married brothers, which had shown that at his house no one was available to look after the minors properly as they could be looked after and maintained by real mother of the minors---Said evidence on record had shown that welfare of the minors lay with their mother who being natural guardian, could maintain her minors with love and affection in comparison to the others---Maintenance of the minors was the bounden and primary duty of the father of the minors till the age of his majority in the case of his son and till the marriage in case of daughter---Non-availability of funds or paucity of the mother to maintain her minor children, in circumstances could not be treated as disqualification of mother to refuse her the custody of her children---Consent of minors to reside with father, was of not much significance while determining the facts of their welfare---Consent of minor was only to be considered, if the minor was old enough to form his preference, but in the present case age of minor girl was not more than 10 years, whereas minor boy was not more than 8 years---Both were not old enough so as to give any preference to their consent---Mere assumption and presumption that education of minors would be disturbed, custody of minors could not be refused to their mother---Judgments passed by the courts below did not suffer from any illegality so as to declare them as ultra vires the Constitution---Constitutional petition was dismissed, in circumstances.

Sughra Bibi v. Akhtar Hussain 2007 CLC 474 rel.

Raja Aftab Ahmed Khan for Petitioner.

Respondent No.1 in person.

2008 C L C 667

[Karachi]

Before Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MARVI MEDICAL CENTRE ASSOCIATION through President----Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through City Nazim/Caretaker, Karachi and 3 others----Respondents

Constitutional Petition No.D-811 of 2005, decided on 28th April, 2006.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of plot---Powers of Chief Minister---On Chief Minister's order, amenity plot was allotted to petitioner for construction of hospital but the allotment was cancelled by the authorities---Plea raised by petitioner was that under the provision of S.3 of Sindh Urban State Land (Cancellation of Allotments, Conversion and Exchanges) Ordinance, 2001, allotment of amenity plot could not be cancelled---Validity---Chief Minister, in law, had no authority to allot any plot to petitioner---Exercise of jurisdiction under Art.199 of the Constitution was discretionary and it had to be exercised in favour of cause of justice and for good public order---Cancellation of amenity plot under Sindh Urban State Land (Cancellation of Allotments, Conversion and Exchanges) Ordinance, 2001, though could not be made but as the allotment and consequential lease of 99 years of amenity plot in favour of petitioner was itself contrary to law, therefore, High Court declined to overstretch the discretion to perpetuate the illegality and refused to interfere with the cancellation order passed by the authorities---Constitutional petition was dismissed in circumstances.

Muhammad Alamgir Ahmad v. Multan Development Authority 2004 CLC 964; Sindh Peoples Welfare Trust (REG) v. The Government of Sindh and others Constitutional Petition No.D-1461 of 1997; Sobho Mal v. Karachi Development Authority and others and Al-Shafeeq Housing Society Constitutional Petition No.D-1141 1999 and Hyderabad v. Pakistan Medical Association, Karachi PLD 1992 SC 143 ref.

Muhammad Mustafa Hussain for Petitioner.

Manzoor Ahmad for Respondents Nos.1 and 4.

Anwar Manzoor Khan, Advocate-General Sindh along with Muhammad Sarwar Khan, Addl. A.-G., Sindh for Respondents Nos.2 and 3.

Date of hearing: 28th April, 2006.

2008 C L C 673

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

MUHAMMAD JAMSHED---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Coordination Officer, Karachi and 2 others----Respondents

Constitutional Petition No.D-516 of 2000, decided on 1st February, 2007.

Sindh Public Property (Removal of Encroachment) Act (V of 1975)---

----Ss. 2(c) & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Encroachment upon public property---Petitioner had impugned the action of authorities as regards issuance of notice under Sindh Public Property (Removal of Encroachment) Act, 1975---Petitioner had stated that lease having been executed in his favour, Sindh Public Property (Removal of Encroachment) Act, 1975 was not applicable---Inquiry into the question of encroachment on public property was held according to which petitioner had encroached upon the public property; that alleged execution of lease deed in favour of the petitioner, was illegal and without jurisdiction---Record showed that the Sindh Katchi Abadi Authority had no jurisdiction to execute lease in respect of an area not falling within its territorial jurisdiction---Claim of the petitioner as raised in the petition, thus, could not be entertained---Petitioner could seek any remedy as could be available including the right of appeal provided under Sindh Public Property (Removal of Encroachment) Act, 1975---Constitutional petition was dismissed.

Chaudhry Abdul Rashid for Petitioner.

Syed Jamil Ahmed for Respondents Nos. 1 and 2.

Hafeez-ur-Rehman Kardar for Respondent No.3.

2008 C L C 677

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

GHULAM NABI SHAIKH----Appellant

Versus

PAKISTAN EMPLOYEES' COOPERATIVE HOUSING SOCIETY, P.E.C.H.S., KARACHI and 4 others----Respondents

High Court Appeal No.263 and C.M.A. No.2202 of 2007.

Civil Procedure Code (V of 1908)---

----O. IX, R. 8--- Specific Relief Act (I of 1877), Ss.12, 42 & 54---Law Reforms Ordinance (XII of 1972), S.3--- High Court appeal-Suit for. declaration , permanent injunction, possession and damages---Plaintiff's side was closed due to non-appearance of plaintiff and his witnesses for cross-examination and matter was adjourned for defendant's evidence---Application moved by the plaintiff for recalling order of closing his side, was granted with a caution that no more adjournment would be allowed in the matter and case was adjourned---On adjourned date of hearing plaintiff and his witnesses were stuck up in traffic and could not appear in the court in time and application of plaintiff for adjournment was rejected and suit was dismissed for non-prosecution---Upon appraisal of the record it appeared that impugned order was not in conformity with law as law favoured adjudication on merits---On relevant date traffic was blocked due to V.I.P. movement in respect of which plaintiff had produced evidence, but said proof was disbelieved---Valuable rights of the parties being involved, matter should be decided on the basis of evidence produced by the parties---Appeal was allowed and impugned order was set aside---Case was remanded to the Trial Court with direction to record the evidence of the parties within stipulated period.

Ajab Khan v. Karimi Industries and others PLD 1980 Pesh. 259; Themas Dass v. State of Punjab PLD 1970 Quetta 79; Muhammad Ramzan v. Mst. Allah Wasai and 3 others 2006 MLD 1577 and Amanullah Khan and 5 others v. Mst. Hayat Bibi and 4 others 2406 CLC 1546 rel.

Mirza Sarfaraz Ahmed for Appellant.

Muhammad Ali Hakro for Respondents Nos.1 and 2.

2008 C L C 683

[Karachi]

Before Khalid Ali Z. Qazi, J

Messrs HINA HOUSING PROJECT (PVT.) LTD. through Authorized Representative----Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department and 4 others----Respondents

Suit No.1108 and C.M.As. Nos.7112 and 7113 of 2005, decided on 29th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 54 & 42---Civil Procedure Code (V of 1908), S.151 & O.XXXIX, Rr.1, 27--Karachi Port Trust Act (VI of 1886), S.3 & Sched. A---Qanun-e-Shahadat (10 of 1984), Art.129(e)-Suit for declaration and injunction---State land in possession of plaintiff as lessee of Provincial Government---Karachi Port Trust (KPT) as defendant claimed to be owner of suit-land for same falling within its limits---Demolition of boundary walls of suit-land by KPT---Application for temporary injunction and reconstruction of demolished walls---Validity---Presumption could be raised that official acts had been performed regularly---Pleas raised by parties would require deeper appreciation of evidence, which could be properly thrashed out at time of trial---Tentative assessment of material on record would show that plaintiff had a prima facie case---Balance of convenience was in favour of plaintiff---No irreparable loss would be caused to defendant, if injunction was granted, as loss,, if any, could be compensated in shape of damages---Application for interim injunction was accepted and plaintiff was allowed to reconstruct boundary walls to the extent of six feet height at his own cost.

Muhammad Zahid Shah v. Province of Sindh and others Suit No.843 of 2004 ref.

Abid S. Zuberi for Plaintiff.

Ahmed Pirzada, A.A.-G. for Defendants Nos.1, 7, 8 and 9.

Salman Hamid for Defendants Nos.2 and 3.

Ms. Shamim Akhter for C.D.G.K.

2008 C L C 697

[Karachi]

Before Mrs. Yasmin Abbasey and Mehmood Alam Rizvi, JJ

IMRAN AHMED KHAN----Petitioner

Versus

PAKISTAN through Secretary, Ministry of Defence and another----Respondents

C.P. No.D-1766 of 2006, decided on 31st December, 2007.

(a) Interpretation of statutes---

----Statutory provision being open to more than one interpretation---Effect---Court would choose that interpretation, which represented true intention of legislator as essence of law would lie in its spirit and not in its letters----Principles.

When a statutory provision is open to more than one interpretation, then the court has to choose that interpretation which represents the true intention of legislator. The essence of the law lies in the spirit, not in its letters for the letter is significant only as being the external manifestation of the intention that underlies it.

United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990 rel.

(b) Pakistan International Airlines Corporation (Service and Discipline) Regulations, 1985---

----Regln. 4---Civil Servants Act (LXXI of 1973), S.2(a)---Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order (6 of 2001), Arts.3 & 4---Employee of Pakistan International Airlines Corporation---Termination of service of employee on abolition of post due to reorganization of Corporation---Non-issuance of show-cause notice to such employee---Validity---Corporation did not have statutory rules and regulations---Such employee even though not being a civil servant would have right of having a show-cause notice and hearing---Relationship between Corporation and its employee would be that of master and servant--Corporation was empowered to terminate service of its employee on abolition of post due to its re-organization---Principles.

Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. Md. Serajul Haque 1970 SCMR 398 and Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 rel.

(c) Maxim---

----"Audi alteram partem"---Applicability---Scope---Maxim would be applicable to all judicial and non-judicial proceedings and would be read into every statute, even if right of hearing was not expressly provided therein.

(d) Natural justice, principles of---

----Conflict between a basic natural right born out of natural justice and a provision of law either general or special---Effect---Such natural right should prevail.

(e) Res judicata, principles of---

----Every issue should be once' fairly tried and concluded for ever between parties---Decision would be res judicata regardless of fact whether same was correct or incorrect---Remedy of appeal would be available to a party considering such decision to be incorrect.

(f) Estoppel---

----Waiving of right to challenge an order would amount to estoppel by conduct.

(g) Pakistan International Airlines Corporation (Service and Discipline) Regulations, 1985---

----Regln. 4---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Employee of Pakistan International Airlines Corporation---Appeal before service Tribunal---Reinstatement in service by Service Tribunal after accepting employee's appeal----Operation of impugned judgment suspended by Supreme Court in petition for leave to appeal filed by Corporation---Abatement of all pending service appeals on basis of judgment of Supreme Court subsequently passed in Muhammad Mubeen­-ul-Salam's case reported as PLD 2006 SC 602---Impugned judgment of Service Tribunal not further challenged by Corporation---effect---Impugned judgment of Service Tribunal reinstating employee in service would hold field.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Pakistan International Airlines Corporation v. Nair Jamal Malik and others 2001 SCMR 934; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD. Serajul Eaque 1970 SCMR 398; National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others 1975 PLC 1; Annosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah. 568; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan and others 2000 SCMR 928; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214; Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434; Iftikhar Mubeen Arshee v. Deputy Commissioner/Chairman, Board of Governors, Kasur Public School and others 2004 PLC (C.S.) 1232; Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244; Dr. Mrs. Noushaba Syed v. Chairman, Pakistan International Airlines Corporation, Karachi and others 2004 PLC (C.S.) 480 and Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313 ref.

Dr. Muhammad Farough Naseem for Petitioner.

Shahid Anwar Bajwa for Respondent No.2.

Dates of hearing: 26th and 27th November, 2007.

2008 C L C 717

[Karachi]

Before Faisal Arab, J

KARACHI ELECTRIC SUPPLY CORPORATION LTD.----Plaintiff

Versus

Messrs NOOR IRON AND STEEL INDUSTRIES LTD.----Defendants

Suit No.370 of 1984, decided on 20th January, 2006.

Electricity Act (IX of 1910)---

----S. 54---Suit for recovery of amount---Submission of defendant was that pursuant to the decision of the Electric Inspector he had made payment through a pay-order dated 17-12-1987---Counsel for plaintiff on the other hand had stated that said pay-order appeared to be of 17-12-1983---Counsel for defendant had claimed that pay-order dated 17-12-1987, contained the exact amount which was determined by the Electric Inspector vide his decision---No further proceedings after the decision of the Electric Inspector was taken by the plaintiff and without contesting before Electric Inspector pressed the suit, which was filed prior to the decision of Electric Inspector---Division Bench of High Court, having specifically referred the matter to the Electric Inspector for decision and decision had been given; and as claimed by the defendant, payment pursuant to the decision, had been made, suit had become infructuous which however, would not prejudice right of the plaintiff to question its claim that pay - order was dated 17-12-1983.

Muhammad Ikram Siddiqui for Plaintiff.

Riaz A. Waheed for Defendant.

2008 C L C 721

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

BASHIRUDDIN QURESHI----Appellant

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings and 2 others----Respondents

High Court Appeal No.253 of 2005, decided on 31st January, 2007.

Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court appeal---Encroachment on amenity plot---Record showed that encroachment had been made by the appellant---Authorities were directed not to regularize the area, which was originally part of any amenity park or other amenity purposes, however, looking to the undertaking given by appellant, Authorities were directed to ensure that in case any area in excess was found in possession of the appellant, same would be restored without any further delay---Counsel for Authorities had undertaken that such direction of the High Court would be communicated to the Authorities for removal of the entire encroachment and illegal/unauthorized construction made beyond the plot limits---Compliance report was directed to be submitted within two weeks.

Muhammad Ikram Siddiqui for Appellant.

Manzoor Ahmed for C.D.G.K.

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

Saifuddin for Respondent No.3.

2008 C L C 726

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs AYAZ BUILDERS through Attorney----Plaintiff

Versus

BOARD OF TRUSTEES OF THE KARACHI PORT TRUST and another----Defendants

Suit No.338 of 2006, decided on 3rd March, 2008.

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

----S. 20---Application for filing of ,arbitration agreement in Court---Dispute already referred by applicant in terms of contract to Engineer for his decision---Filing of such application by applicant without awaiting decision of Engineer---Maintainability---Arbitration proceedings in terms of contract could not be commenced, unless Engineer gave his decision or failed to give his decision---Parties had agreed to a mechanism of resolution of their dispute, which they could not bypass by initiating legal proceedings---Applicant could not take advantage of his own wrong and avoid proceedings in terms of contract---Applicant, after decision of Engineer, might avail remedy available to him under contract---Present application being premature was not maintainable.

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

----Ss. 126 & 17---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2-Bank guarantee, encashment of---Injunction, grant of---Scope---Mere irretrievable injustice without a prima facie case of established fraud would be of no consequence in restraining encashment of bank guarantee.

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

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

----S. 126---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Mobilization advance guarantee, encashment of---Injunction, grant of---Scope---Courts would be reluctant to grant an interim injunction restraining Bank from honouring its contractual obligations under unconditional guarantees.

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

----S. 126---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Performance bank guarantee, encashment of---Injunction, grant of---Scope---Court might grant stay order, where refusal to grant same would perpetuate fraud, which should be apparent from material on record---Other reason for stay of bank guarantee in exceptional cases would be "injustice"---Encashment of such guarantee by employer without payment of pending bills of contractor would amount to double jeopardy as same would cause him injustice also.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. 2003 CLD 309; Board of Intermediate and Secondary Education, Multan v. Fine Star & Company, Engineers and Contractors 1993 SCMR 530; Pakistan Development Corporation (Pvt.) Ltd. v. Ministry of Defence, Government of Pakistan PLD 1995 Kar. 286; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation 1993 CLC 1926; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation 1989 .SCMR 379; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Multilines' case PLD 1995 SC 423 ref.

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

----Ss. 126 & 17---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Bank guarantee, encashment, of---Injunction, grant of---Scope---Mere allegation of fraud and blackmailing, would not be sufficient to stay encashment of a bank guarantee.

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

----Ss. 126 & 17---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Mobilization advance guarantee, encashment of---Injunction, grant of---Scope---Mere encashment of entire amount under such guarantee would not amount to fraud---Encashment of such guarantee could be stayed on ground of injustice to plaintiff.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works ltd. PLD 2003 SC 191 ref.

Bilal A. Khawaja along with Ghulam Hussain for Plaintiff.

Salman Talibuddin for Defendant No.1.

Nemo for Defendant No.2.

Date of hearing: 29th November, 2007.

2008 C L C 737

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

Messrs DECENT MARBLE through Registered Attorney----Appellant

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 5 others----Respondents

High Court Appeal No.174 of 2006, decided on 31st October, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Interim injunction, grant of---Contention of counsel for appellant was that number of authentic documents of title were placed on record by the appellant to show that actual area of two plots allotted to appellant was 2833.33 sq. yards; and that in such circumstances injunction application moved by the appellant should have been allowed to the extent of said area, but for no valid reason, Single Judge of the High Court had partly allowed such application to the extent of 200 sq. yards of said plots---Considering the material placed on record by the appellant, it had succeeded to make out a prima facie case for grant of injunction in its favour to the extent of 2833.33 sq. yards in respect of plots in question---Appeal was allowed.

Azizuddin Qureshi for Appellant.

Manzoor Ahmed for Respondents Nos.2 and 3.

Nemo for Respondent No.1.

2008 C L C 741

[Karachi]

Before Khawaja Naveed Ahmed, J

ZAFRAIN IQBAL----Petitioner

Versus

THE STATE----Respondent

C.M.A. No. Nil of 2007 and C.M.As. Nos.811 to 767 of 2007, decided on 4th January, 2008.

(a) Succession Act (XXXIX of 1925)---

----Ss. 278, 283, 286 & 295---Civil Procedure Code (V of 1908), O.XL, R.1---Petition for grant of Letter of Administration---Receiver, appointment of---Requirements---Petitioner, who was widow of deceased owner of property in question, had filed the petition for grant of Letter of Administration with regard to property left by the deceased---Deceased had left behind three legal heirs namely, petitioner widow, a minor son and his mother aged about 70 years old---No dispute existed about their being the legal heirs of deceased---Petitioner widow had claimed that she being the real mother of minor son of deceased whom she was looking after for the last ten years after the death of her husband and having no interest adverse to that of the minor, was entitled to grant of Letter of Administration---Mother of deceased aged 70 years old, however objected to the claim of petitioner alleging that deceased was not the owner of the property in question as he, in his lifetime, through declaration of oral gift had gifted said property to his father and that donee father of deceased had gifted said property to objector/mother of deceased, his two daughters and two sons---No copy of said oral gift had been filed with the objections to the main petition of grant of Letter of Administration filed by the petitioner---Alleged declaration of oral gift of the property in question by deceased in the name of his father and subsequent gifts, had become strongly doubtful as signature of deceased on said declaration of oral gift differed from his routine signatures subscribed on Power of Attorney, which was' duly attested by the Magistrate---Genuineness or otherwise of alleged declaration of oral gift required proper adjudication for which S.295 of the Succession Act, 1925 would be applicable---Petitioner widow thus, had made out a strong prima facie case---Deputy Registrar (Judicial) of the High Court was appointed receiver of the property in question in order to protect the same and interest of petitioner widow and minor son of the deceased---Application of objector/mother of deceased, was converted into civil suit with direction to the parties to file their further pleadings within specified period and lead evidence according to law in order to enable the court to determine the issue for decision of the main petition.

(b) Succession Act (XXXIX of 1925)---

----S. 278---Civil Procedure Code (V of 1908), O.XXXII, R.3---Guardian and Wards Act (VIII of 1890), S.17---Petition for Letter of Administration---Appointment of guardian ad litem---Application for---Limitation---Conduct of applicant/mother of minor (widow), had shown that during last ten years, she was looking after the minor without any financial assistance from grandmother or paternal uncle of minor---Applicant mother had taken divorce from her second husband and she was single parent of the minor---Applicant had stated that minor son of deceased owner of the property in question had many years at his disposal to apply for Letter of Administration and delay in applying for Letter of Administration was not material---Applicant being real mother of the minor, was a fit person to be appointed as guardian ad litem of minor---Application filed by applicant under O.XXXII, R.3 C.P.C., was granted as prayed for.

Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Moinuddin Paracha v. Sirajuddin Paracha 1993 CLC 1606; Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54; Ghazala Zakir v. Muhammad Khurshid and 7 others PLD 1989 Kar. 350; Aftab Ahmad Mufti and others v. Mst. Seems alias Zarina 1988 CLC 1567; Basant Ram v. Dasondhimal and others AIR 1929 Lah. 497 and T. Krishnaswamy Chetty v. Thangayelu Chetty and others AIR 1955 Mad. 430 rel.

Aziz A. Munshi for Petitioner.

Mirza Waqar Hussain for Objector.

2008 C L C 783

[Karachi]

Before Abdur Rehman Faruq Pirzada and Farrukh Zia G. Shaikh, JJ

TUFAIL AHMED and another----Petitioners

Versus

ABDUL QADIR and 5 others----Respondents

Constitutional Petition No.D-242 of 2006, decided on 17th March, 2008.

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

----S. 152(2)(e)---Sindh Local Government Elections Rules, 2005, Rr.65, 66, 70 & 72---Constitution of Pakistan (1973), Art.199---Election petition---Maintainability---Qualification of candidate--- Determination---Parties to election petitions---Scope---Although Election Tribunal concluded that returned candidates did not possess required educational qualification, yet the petition was dismissed on the ground that all candidates were not made party to election petition---Plea raised by petitioners was that the candidates who were not made party to the petition were only covering candidates and they . did not even cast votes in their own favour---Validity---Respondents were in possession of degree "Sanad-ul-Faraz" which was obtained from a Madrasah, which was not a recognized institution under the provisions of S.152 of Sindh Local Government Ordinance, 2001---Respondents did not study the subjects English, Urdu and Pakistan Studies in the Madrasah, while obtaining degree of "Sanad-ul-Faraz"---While making interpretation of provisions of law, spirit of law had to lie given prime importance and it was to be seen as to whether other candidates were the real candidates and secondly as to whether any material difference could be made, even if they were joined as respondents in the petition---When respondents, were disqualified from contesting elections, then by merely throwing out petition on technical grounds would give way to perpetuation of illegality, in the sense that respondents would be allowed to occupy seats---High Court declared that respondents were disqualified to contest for the posts of Nazim and Naib Nazim, so they were disqualified to hold the posts----Judgment passed by Election Tribunal was set aside---High Court directed the authorities to hold fresh elections for the posts---Constitutional Petition was allowed accordingly.

Sanaullah Khan and another v. District Returning Officer Mianwali and others Civil Petition No.1569/L and Muhammad Ashique v. Additional District Judge, Vehari/Election Tribunal Khanewal Camp at Vehari and others 2005 MLD 1577 rel.

Inayatullah Morio for Petitioners.

Shivandas Harjani for Respondents Nos. 1 and 2.

Mushtaq Ahmed Korejo, Standing Counsel.

2008 C L C 798

[Karachi]

Before Nadeem Azhar Siddiqi, J

AL-ABDULLAH CONSTRUCTORS (PVT.) LTD.----Plaintiff

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chief Engineer----Defendant

Suit No.801 of 2006, decided on 3rd March, 2008.

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

----S. 30---Award, setting aside of---Ground of obtaining of award in collusion with Arbitrator---Validity---Such allegation, without any substantial proof would not be sufficient to set aside award.

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

----Ss. 14, 15, 16, 17 & 30---Application for making an award rule of Court---Powers of court---Scope---Court in such matter would not act as an Appellate Court, its jurisdiction being supervisory in nature---While determining validity of award, court could not undertake reappraisal of evidence/material considered by Arbitrator in order to discover error or infirmity in award---Court could remit award to Arbitrator, where award did not state reason or where illegality/error in award could be discovered by its mere reading---Where no misconduct was found on the part` of Arbitrator and award did not suffer from any illegality and infirmity, then court would be bound to give reasonable intendment in favour of award and lean towards holding same valid rather than to vitiate same.

Munir Ahmed Khan v. Sameullah Khan and others 1986 CLC 2655; Malik Umer Hayat Tiwana v. Malikani Sahibzadi Tiwana NLR 1979 Civil 75; Pakistan through General Manager Pakistan Railway v. QMR Export Consultants PLD 1990 SC 800; Pakistan through Secretary to Government of Pakistan Railway v. Messrs Registan Alloy and Steel Limited 2002 CLD 61; Province of Punjab v. Sh. Fazalur Hussain 2003 CLC 1780; Hussain Textile Mills Limited v. Dader Sons Limited PLD 1973 Kar. 413; Messrs Ibad & Co. v. Government of Sindh PLD 1981 Kar. 326; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903 and Karachi Transport Corporation v. Tamirat Limited PLD 1992 SC 479 ref.

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

----S. 30---Award, setting aside of---Powers of Court---Scope---Arbitrator was Judge of all matters arising in dispute---Not proper for court to scrutinize award only for discovering an error for purpose of setting aside same.

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

----S. 30---Award, setting aside of---Ground of insufficiency of evidence or possibility of court to reach at a different conclusion from Arbitrator---Validity---Award on such ground could not be set aside---Principles.

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

----S. 13---Proceedings before Arbitrator---Insistence of parties upon strict compliance of Qanun-e-Shahadat, 1984 or procedural law by Arbitrator---Validity---Nature of proceedings before Arbitrator being in nature of proceedings before a domestic Tribunal such compliance could not be insisted upon---Party failing to avail opportunity provided for production of evidence could not blame any other person and in such case Arbitrator could base his findings on material available on record.

Bilal A. Khawaja for Plaintiff.

Samiuddin Sami for Defendant.

2008 C L C 809

[Karachi]

Before Khalid Ali Z. Qazi, J

MEHMOODA BEGUM and others----Plaintiffs

Versus

PAKISTAN DEFENCE OFFICERS' COOPERATIVE HOUSING SOCIETY LTD. and another----Defendants

Suit No. Nil of 2005, decided on 8th March, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Arts.185(3) & 199---Limitation Act (IX of 1908), Arts.14 & 91---Suit for declaration---Notice of cancellation of plot challenged by petitioner in constitutional petition---Dismissal of such petition---Validity---Filing of suit by plaintiff after six years of service of such notice and dismissal of his constitutional petition on same cause of action by High Court and Supreme Court---Effect---All issues involved in suit were dealt with by Supreme Court in its order refusing to grant leave to appeal against order of High Court dismissing plaintiff's constitutional petition---Suit was dismissed for being barred by res judicata and limitation.

PLD 1966 Kar. 31; 2005 SCMR 511; 2003 SCMR 1284; 1999 SCMR 2289; 1999 SCMR 705; 1997 SCMR 281; 1985 SCMR 464; PLD 1969 Dacca 9230; 1961 AIR 1457; AIR 1978 SC 1283; AIR 1989 SC 1764; AIR 1923 Mad. 514; Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46; Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi PLD 2005 Kar. 188; Yousuf Ali's case PLD 1958 SC 104; Home Secretary to the Government of West Pakistan v. Jan Muhammad and another PLD 1969 SC 333; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; 1971 SCMR 4447; 1974 SCMR 230 and PLD 1982 SC 146 ref.

Kunwar Mukhtair Ahmed for Plaintiff.

Khalid Javed for Defendants.

2008 C L C 821

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

Shaikh KAMRAN SALIM and another----Appellants

Versus

PRIME COMMERCIAL BANK LTD. and 8 others----Respondents

First Appeal No.34 of 2007, decided on 20th February, 2008.

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

----Art. 40---Karachi Building and Town Planning Regulations, 1979, Preamble---Land sanctioned by authority for amenity of general public---Effect---Such land could not be utilized for any other purpose nor same could be auctioned to any one---Principles.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 19---Execution of decree---Auction of property---Property mortgaged with bank not owned by borrower, could not be sold.

Khawaja Shamsul Islam for Appellants.

Abbas Ali, Addl. A.-G.; Sindh.

Muhammad Mujahid for Respondent No.1.

Mrs. Sofia Saeed Shah for Respondent No.7.

2008 C L C 829

[Karachi]

Before Kh. Naveed Ahmed, J

MUSHTAQ ALI JATOI----Plaintiff

Versus

GUL MUHAMMAD alias WARYO and 5 others----Defendants

Suit No.985, C.M.As. No.6942, 7924 and 7317 of 2007, decided on 13th March, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---National Highway Authority Act (XI of 1991), Ss.2(j)(k), 9 & 10(2)(xiii)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Filling and CNG Station, installation of---Dispute between Provincial Government and National Highway Authority regarding ownership of land, over which such station was to be installed by plaintiff as lessee of Government---Application for interim injunction to restrain Authority from dispossessing plaintiff from suit-land---Validity---Question to be decided was, whether suit-land belonged to government or Authority---Plaintiff had completed all formalities for installation of such station on suit-land---Application for interim injunction to restrain National Highway Authority was accepted and plaintiff was allowed to construct such station and run same at his own risk as to costs and consequences subject to final decision of the suit.

Fuel Auto Supply Company v. Federation of Pakistan 2005 MLD 1844 ref.

Mirza Sarfraz Ahmed and Abid S. Zuberi for Plaintiff.

Ikram Ahmed Ansari for Defendant No.2.

Sarwar Muhammad Khan and Nisar A. Majahid for National Highway Authority.

Ahmed Pirzada, A.A.-G.

2008 C L C 836

[Karachi]

Before Nadeem Azhar Siddiqi, J

ZAHID HABIB and another----Decree-holders

Versus

FEDERATION OF PAKISTAN through the Secretary Revenue Division/Chairman, Central Board of Revenue, Islamabad and 2 others----Judgment-Debtors

Execution No.41 of 2007, decided on 14th February, 2008.

Civil Procedure Code (V of 1908)---

----S.47 & O.XXI, R.10---Execution of decree---Application for---Counsel for judgment-debtors had placed on record the photocopy of the order passed on application for execution and submitted that directions contained in the judgment and decree had been fully complied with and that execution had served its purposes---Validity---Question whether the order was passed rightly or wrongly, could not be undergone in the execution application and order in that respect could only be assailed before other forums provided under the relevant law---Execution application was disposed of in above terms---Decree-holder was at liberty to assail order in question in accordance with law---Counsel for judgment debtors submitted that he did not want to press application, same was dismissed.

Khalid Jawed Khan for Decree-holders.

S. Tariq Ali, Federal Counsel for Judgment-debtor No.1.

S. Mohsin Imam for Judgment-debtors Nos.2 and 3.

2008 C L C 843

[Karachi]

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

ALI MUHAMMAD----Appellant

Versus

IQBAL KHAWAJA----Respondent

Election Appeal No.48 of 2007, decided on 7th December, 2007.

Representation of the People Act (LXXXV of 1976)-

----Ss. 14(1) & 67(3)---Rejection of nomination papers---Nomination papers filed by candidate were rejected on the ground that at the time of scrutiny seconder of the candidate was not present---Validity---Presence of the proposer and seconder at the time of scrutiny was not mandatory and the rejection of the nomination papers, on the ground of absence of seconder, was not warranted under the law---Returning officer was directed to accept nomination of the candidate.

Shoaib Bukhari, Nawab Mirza, A. Iqbal Qadri, Saifullah and Zafar Ahmed Khan for Appellant.

Agha Zafir, Asstt. A.-G.

Alta-ur-Rehman, Assistant Erection Commissioner.

2008 C L C 846

[Karachi]

Before Syed Pir Ali Shah and Munib Ahmad Khan, JJ

HIRA JAWED and 5 others----Appellants

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Petroleum and

Natural Sources and 8 others----Respondents

High Court Appeal No.170 and C.M.A. No.1648 of 2007, decided on 9th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Law Reforms Ordinance (XII of 1972), S.3---Intra-­court appeal---Ad interim injunction---Undertaking of defendant---Plaintiffs assailed construction of gas station by defendant in a residential area on many grounds and .sought restraining order against defendant---High Court, in view of the undertaking given by defendant, did not restrain defendant from construction of gas station but directed him not to operate the gas station till final decision by court---Validity---Order passed by Single Judge was balanced order as the defendant also undertook that in case decision of court was otherwise, he would dismantle and demolish the construction etc. made by him for the purpose of gas station---Rights and interests of plaintiffs were totally secured and there was no fault or illegality in the order passed by Single Judge of the High Court, which order was passed in order to accommodate and safeguard interest of both the parties---Division Bench of High Court declined to interfere in the order passed by Single Judge---Appeal was dismissed in circumstances.

1995 SCMR 753 rel.

Muhammad Zahid Khan for Appellants.

Sarwar Khan, A.A.-G.

Iqbal Memon for K.B.C.A.

Munawar Hussain for Respondent No.8.

2008 C L C 852

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed ASHRAF AGHA----Applicant

Versus

MUHAMMAD SARWAR EJAZ----Respondent

Execution Application No.26 of 2004, decided 19th March, 2008.

Civil Procedure Code (V of 1908)---

----S. 39 & O.XXI, R.6---Execution of decree by another court---Transfer of decree---Scope---Judgment debtor was resident of place "R" and had no property within the jurisdiction of executing court at place "K", which had passed the decree---Effect---No purpose would be served by keeping execution pending in the court which had passed the decree---Executing Court transferred the decree to District Judge at place "R" who could transfer the same to the court having jurisdiction for execution in accordance with law---Application was allowed accordingly.

Nasir Maqsood for Decree-holder/Applicant.

Nemo for Judgment-debtor/Respondent.

2008 C L C 858

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. REHANA HAFIZ through Attorney----Applicant

Versus

Mst. SIKANDAR HAYAT BALOCH and 10 others----Respondents

C.M.As. Nos.5874 of 2006 and 1547 of 2008 in Suit No.228 of 2005, decided on 19th March, 2008.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 & S.151---Necessary parties---No cause of action---Deletion of name---Applicant sought deletion of his name from plaint on the ground that he had paid the share of plaintiff in the suit property who had executed sale deed in his favour---Plea raised by applicant was that plaintiff did not have any cause of action either against applicant or against his property---Validity---Plaintiff had received her share in the property and had executed a registered document in favour of applicant during the pendency of suit---Plaintiff was left with no right and interest in the property and had no cause of action against applicant---High Court struck off the name of applicant from the array of defendants and property of applicant was deleted from the plaint---Application was allowed in circumstances.

Syed Masroor Ahmed Alvi for Plaintiff.

Muhammad Safdar for Defendants Nos.1 to 6.

Makhdoom Ali Khan for Defendant No.9.

2008 C L C 864

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

Mrs. ZAINAB SOHAIL----Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 2 others----Respondents

Constitutional Petition No.D-257 of 2004, decided on 29th April, 2004.

Constitution of Pakistan (1973)---

----Arts. 23 & 199---Constitutional petition---Lease of land for a term of 99 years---Allottee of land in question on registered lease for a term of 99 years, subsequently transferred through a registered sale-deed to a transferee who gifted away said land to petitioner through a registered gift-deed---When petitioner donee approached the Authority for seeking mutation of plot in her favour, she was required to submit a large number of documents including original Allotment Order, payment receipts and pension book of original allottee in whose favour allotment was made more than 30 years ago---Validity---Petitioner was only bound by the terms of registered lease-deed upon which plot had been transferred to her predecessor-in-interest and none of the required documents or any condition requiring permission from General Headquarters was stipulated---No law or provision of contract containing such a condition for transfer having been referred to---Impugned conditions were declared to be without lawful authority and of no legal effect---Authority was directed to effect mutation subject to payment of all legal dues.

Arshad Mohsin for Petitioner.

Manzoor Ahmed for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Nadeem Azhar Siddiqi, Dy. A.-G. on Court notice.

Date of hearing: 29th April, 2004.

2008 C L C 869

[Karachi]

Before Dr. Rana Muhammad Shamim, J

RIZWAN and another----Petitioners

Versus

MUHAMMAD RAFIQ and 2 others----Respondents

Constitutional Petition No.S-787 of 2002, decided on 6th February, 2008.

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

----S. 15---Ejectment of tenant---Default in payment of monthly rent---Proof---After refusal to accept monthly rent by landlords, tenant was compelled to send rent for relevant months through money order but the same was also refused---Effect---Landlords, in circumstances, failed to prove plea of default in payment of monthly rent.

Jahangir Rustam Kakalia v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241; Mehdi Nisar Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 13 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846 rel.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Proving of one plea---Effect---Ejectment petition was filed by landlords on the grounds of bona fide personal need and default in monthly rent---Eviction order passed by Rent Controller was set aside by Appellate Court---Plea raised by landlords was that their families were residing with their parents and they required the premises for their own personal use---Validity---Landlords succeeded to prove their case in respect of personal bona fide need but failed to prove default in payment of monthly rent---High Court, in exercise of constitutional jurisdiction under Art.199 of the Constitution, set aside the order passed by Appellate Court and restored that of Rent Controller---Constitutional petition was allowed in circumstances.

Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Bhaledino v. Din Muhammad 1986 CLC 395; Muhammad Shafi v. Mst. Samina Kausar 1999 .MLD 2098; Chaudhry Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja PLD 1994 Lah. 252; Dr. Abdul Hafeez v. Province of Punjab and others PLD 1991 SC 165; Nazar Hussain v. Ali Akbar 1995 CLC 452 and Abdul Sattar v. Allah Diya 1996 CLC 1016 ref.

Mrs. Kausar Amin for Petitioners.

Muhammad Sadiq for Respondents.

2008 C L C 877

[Karachi]

Before Dr. Rana Muhammad Shamim, J

TARIQ OMER----Appellant

Versus

Brig. (Retd.) JAVED HUSSAIN through Attorney----Respondent

First Rent Appeal No.19 of 2007 and C.M.As. Nos.83 of 2008 2487 of 2007, decided on 23rd January, 2008.

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

----S. 24---Appeal---Maintainability---Ejectment petition was filed in the name of landlord through his attorney but in appeal filed by tenant only the name of attorney was mentioned and name of landlord was not mentioned---Effect---Appeal in the name of attorney only was not filed against proper party and the same was not maintainable in circumstances.

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

----S. 17--Ejectment of tenant---Bona fide personal need of landlord---Default in payment of monthly rent---Proof---Non-payment of rent through money order---Tenant sent rent of August, September and October, 2006 to landlord through cross cheque in the month of November, 2006, in spite of the fact that tenant appeared before Rent Controller on 27-9-2006 and sought adjournment but did not pay rent to landlord---Rent Controller accepted the ejectment petition and passed eviction order---Validity---Rent for relevant three months sent by tenant was received by landlord on 12-11-2006, hence tenant wilfully committed default in payment of monthly rent---Tenant did not tender monthly rent through money order on avoidance of landlord---Validity---If the landlord had refused or avoided receipt of monthly rent, the tenant had to tender monthly rent through money order, which tenant failed to do---Tenant was duty bound to pay rent to landlord and it was not the duty of landlord to go to tenant to receive rent---Present was not a case of misreading, non-reading or mis-appreciation of evidence and eviction order passed by Rent Controller was in consonance with material brought on record and no interference was warranted---Appeal was dismissed in circumstances.

Chaudhry Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja PLD 1994 Lah. 252; Dr. Abdul Hafeez v. Province of Punjab and others PLD 1991 SC 165; Jahangir Rustam Kakalia v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241; Mehdi Nisar Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 13; Shaikh Anjum Iqbal v. Sher Afgan 2005 SCMR 1200 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846 ref.

Iqbal Haider for Appellant.

Qamar Abbas for Respondent No.1.

2008 C L C 891

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

ABDUL SATTAR----Petitioner

Versus

DEPUTY DISTRICT OFFICER, LAND REVENUE DEPARTMENT and 2 others----Respondents

Constitutional Petition No.D-164 of 2004, decided on 3rd March, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Transfer of Government land---Petitioner had contended that despite his payment of amount demanded as development charges and land rent, no transfer of land had been effected in his favour-Validity-Public duties were required to be performed without unreasonable delay and authorities should convey their reason/decision to the petitioner for such delay---Authority was directed that in case the matter had not been decided so far, same should be decided after hearing the petitioner within stipulated period.

Muhammad Younus for Petitioner.

Manzoor Ahmed for Respondent.

2008 C L C 916

[Karachi]

Before Nadeem Azhar Siddiqi, J

AL-TARIQ CONSTRUCTORS (PVT.) LTD.----Plaintiff

Versus

Messrs I. PURI TERMINAL LIMITED through Chief Executive----Defendant

Suit No.1333 of 2003, decided on 26th March, 2008.

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

----S. 20---Application for appointment of Arbitrator---Construction contract containing an arbitration clause---Non-payment of final bill by defendant despite completion of work by plaintiff---Plea of defendant that plaintiff's claim was time-barred and that he had no cause of action to file such application---Validity---Question of limitation was mixed question of law and fact---Arbitrator could determine actual date of accrual of cause of action---Question whether cause of action arose on day of invoice or refusal to pay, was a factual dispute, which could be dealt with by Arbitrator---Not proper for court, while dealing with such application, to consider question of limitation and/or go into factual controversies as raised by defendant---Contents of the application and counter-affidavit filed by defendant showed that dispute existed between parties, which must be resolved by way of arbitration as agreed by parties---Court accepted such application and appointed Arbitrator to resolve dispute between parties and give his award.

Basu Dorabji Marker and 2 others v. Mushtaq and 6 others NLR 1981 UC 381 and Imandin v. Thal Development Authority PLD 1972 SC 123 rel.

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

----S. 20---Application for appointment of Arbitrator---Essentials---Existence of a contract between parties to refer dispute to arbitration and prima facie existence of dispute between them would be sufficient to refer matter to Arbitrator.

Bilal A. Khawaja for Plaintiff.

Nemo for Defendant.

2008 C L C 921

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ZUBAIR----Appellant

Versus

MANSOOR ALI through Attorney and 6 others----Respondents

IInd Civil Appeal No.15 of 2005, decided on 28th January, 2008.

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

----Ss. 27(b) & 42---Civil Procedure Code (V of 1908), S.100---Second appeal---Scope---Concurrent findings of facts by the courts below---Suit filed by plaintiff was defended on the ground of his bona fide purchase for valuable consideration without knowledge of previous agreement---Both the courts below decided the matter in favour of plaintiff and against defendant---Validity---Concurrent findings recorded by the courts below could not be interfered with by High Court while exercising jurisdiction under S.100, C.P.C. howsoever erroneous such finding might be unless the finding had been held right by the courts below either by misreading of evidence on record or by ignoring a material piece of evidence on record or through perverse appreciation of evidence---High Court declined to interfere in the judgments passed by two courts below, as the same did not call for any interference---Second appeal was dismissed in circumstances.

PLD 1975 Lah. 619; 1976 SCMR 489; 1992 CLC 1809; 1996 CLC 1027; 1984 CLC 2248; 1999 MLD 2117; PLD 1981 SC (AJ&K) 79; 2001 CLC 252; Haji Sultan Ahmed through Legal heirs v. Naeem Raza and 6 others 1996 SCMR 1729; Fazal Rahman v. Amir Haider and others 1986 SCMR 1814; Muhammad Yakoob v. Muhammad Ishaque 1980 CLC 2057 and Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 ref.

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

----S. 202---Irrevocable power of attorney---Scope---rower of attorney should be strictly construed---In absence of any evidence that attorney entrusted property forming subject matter of agency, by violating any clause in power of attorney there would be no bar to revocation of agency.

Ilyas Akhtar and 2 others v. Khan Zaman and another 2001 MLD 1617 and Messrs Farooq and Company v. Federation of Pakistan and 3 others 1996 CLC 2030 rel.

(c) Pleadings---

----Intentions of plaintiff are to be gathered from the plaint.

1994 MLD 481 and PLD 1959 Kar. 360 rel.

Syed Ansar Hussain for Appellant.

Abdul Muqtadir Khan for Respondent No.1.

Arif Khan for Respondents Nos.2 the 5.

2008 C L C 934

[Karachi]

Before Munib Ahmad Khan and Syed Pir Ali Shah, JJ

NAVAID HUSSAIN and 3 others----Appellants

Versus

GHULAM ABBAS KARJATWALA and others----Respondents

High Court Appeal No.178 and C.M.A. No.1695 of 2007, decided on 9th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Ad-interim injunction---Undertaking of defendant---Plaintiff assailed construction of gas station by defendant in residential area---During pendency of stay application, defendant undertook that he would not operate upon the gas station till final decision by the Court---If the decision of the case would be against him, the defendant also undertook to dismantle and demolish the construction etc. made by him for the purpose of gas station---High Court, in the light of undertaking of defendant, allowed the defendant to continue with his construction---Validity---Rights and interests of plaintiff were totally secured and his apprehensions were over---No fault or illegality existed in the order which was passed to accommodate and safeguard the interest of both the parties---High Court declined to interfere with the order passed by Single Judge of High Court---High Court Appeal was dismissed in circumstances.

Mst. Sardar Begum Faruqui v. Rashida Khatoon 1990 CLC 83; Suleman Mala v. K.B.C.A. and 3 others 1990 CLC 448 and 1995 SCMR 753 ref.

Jawad Sarwana for Appellant.

Sarwar Khan, A.A.-G.

Iqbal Memon for K.B.C.A.

Munawar Hussain for Respondent No.8.

2008 C L C 943

[Karachi]

Before Ali Sain Dino Metlo, J

MUSLIM EDUCATIONAL SOCIETY (REGISTERED) through President----Applicant

Versus

MADINA MASJID through Secretary, Intezamia Committee----Respondent

R.A. No.131 of 2006, decided on 10th April, 2008.

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

----O. XXIII, Rr. 1 & 2---Withdrawal of suit with permission to file fresh suit---Limitation, computation of---Plaintiff, in a suit filed with permission granted under O.XXIII, R.1 (2) C.P.C., is bound by law of limitation in the same manner as if the first suit had not been instituted---Withdrawal of previous suit with permission to institute fresh suit cannot have the effect of extending period of limitation---Permission saves fresh suit only from bar contained in O.XXIII, R.1 (3) C.P.C. according to which on an unconditional withdrawal a plaintiff is precluded from instituting fresh suit on the same cause of action---Permission does not save fresh suit from bar of limitation.

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

---Ss. 8 & 42---Limitation Act (IX of 1908), S.28---Civil Procedure Code (V of 1908), O.XXIII, R.1---Filing of fresh suit on same cause of action---Concurrent findings of facts by the courts below---Adverse possession---Plaintiff claimed that suit property had been in illegal possession of defendant since 1-12-1968----Suit filed by plaintiff in year 1979, was withdrawn on 18-10-2000, with permission to file fresh suit on same cause of action---Plaintiff filed fresh suit on 8-5-2002, but it was rejected/dismissed by Trial Court being barred by limitation---Order passed by Trial Court was maintained by Appellate Court---Validity---Suit filed by plaintiff in year, 1979, being within 12 years of defendant's illegal occupation, was within tine---After withdrawal of first suit, the second suit was filed in year, 2002, i.e. after 33 years of defendant's illegal occupation and was, therefore, time-barred---On 31-8-1991, i.e. on the date of enforcement of decision of Supreme Court in case titled Maqbool Ahmed v. Hakoomat-e-Pakistan, reported as 1991 SCMR 2063, which was after more than 22 years of defendant's illegal occupation, plaintiff's alleged right of ownership having already extinguished under the provisions of S.28 of Limitation Act, 1908, was no more in existence and the decision of Supreme Court did not have the effect of reviewing a non-existent right---High Court in exercise of revisional jurisdiction declined to interfere with concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Maqbool Ahmed v. Hakoomat-e-Pakistan 1991. SCMR 2063; AIR 1940 Cal. 115 and AIR 1957 All. 740 rel.

Abdul Latif Shakoor for Applicant.

Javed Mussarat for Respondent.

Date of hearing: 1st February, 2008.

2008 C L C 946

[Karachi]

Before Khalid Ali Z. Qazi, J

AHMED JAMIL ANSARI----Plaintiff

Versus

Messrs AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.) LIMITED----Defendant

Suit No.920 of 2007' and C.M.A. No.4 of 2008, decided on 8th April, 2008.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Plaintiff sought amendment in title of suit, replacing a prayer clause and substituting certain words---Effect---Power to grant amendment, being procedural was to he used for the purpose of dispensation of complete justice---Court should not hesitate in allowing amendment to cure formal defects, which were bona fide and had occurred due to mistake of fact or misapprehension---Proposed amendment such as amendment or addition in title of suit as "suit for damages" deleting one prayer clause, addition of another clause, substituting word "was" instead of "is" and substituting two paragraphs of plaint without enhancing in cause of action did not involve any drastic change in suit to seek relief---While deciding case, it was the duty of Court to take into consideration facts and circumstances of case even subsequent event which might have come into existence after institution of plaint---To do substantial justice an amendment was necessary for the purpose of determining real matter in controversy---High Court permitted plaintiff to file amended memo of plaint and defendant was at liberty to file amended written statement---Application was allowed accordingly.

PLD 1985 SC 345 and AIR (34) 1947 PC 173 rel.

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

----O. VI, R. 17---Amendment of plaint---Stage---Amendment of plaint can he allowed at any stage, even by first and second Appellate Court or in revision or even in appeal before Supreme Court.

2003 SCMR 379 rel.

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

----O. VI, R. 17---Amendment of plaint---Principles---Amendment of plaint should be liberally allowed where it is asked for before filing of written statement.

1974 SCMR 181 rel.

Kamal Azfar and Sardar Zulqarnain for Plaintiff.

Munib Akhter for Defendants.

2008 C L C 960

[Karachi]

Before Arshad Noor Khan, J

GHULAM MUHAMMAD----Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Revenue and 6 others----Defendants

Suit No.400 and C.M.A. No.3090 of 2004, decided on 31st March, 2008.

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

----Ss. 42 & 54---Declaration and injunction, suit for---Maintainability---Principles---Plaintiff is required to establish his legal character to maintain suit for declaration-and injunction.

(b) Adverse possession---

----Concept---Scope---Rule of adverse possession is based on the principle of "Might is Right"---Use of might or force results in usurpation, ravishing, rapacity and destruction---Concept of adverse possession is adverse to principles of justice, equity and good conscience---Plea of adverse ,possession is a plea which is raised to deprive a legitimate owner from his lawful right over his property.

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

----Ss. 42 & 54---Limitation Act (IX of 1908), S.28 [omitted by S.2 of Limitation (Amendment) Act (II of 1995)]---Declaration of title---Adverse possession---Scope---Plaintiff claimed to be in possession of government land for more than thirty years and sought declaration of title on the basis of adverse possession---Validity---After declaring S.28 of Limitation Act, 1908, repugnant to injunctions of Islam by Supreme Court, the same ceased to have effect---No decree could be passed on the ground of adverse possession after the target date viz. 31-8-1991, fixed by Federal Shariat Court and promulgation of Limitation (Amendment) Act, 1995---Plea raised by plaintiff to have decree on the basis of adverse possession was no more available to him to protect illegal and hostile possession over government land---Plaint was rejected in circumstances.

Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063; 1996 MLD 1216 and Zainab Bibi v. Muhammad Sharif 2004 YLR 1395 ref.

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

----S. 42---Sindh Katchi Abadi Act (II of 1987)---Sindh Katchi Abadis Authority (Regularisation, Improvement and Development) Regulations, 1993---Suit for declaration---Direction to authorities---Scope---Land in question was owned by government and was a Katchi Abadi---Plaintiff claimed to be in possession of suit-land and filed suit under S.42 of Specific Relief Act, 1877---Plaintiff had sought issuance of direction to authorities to follow procedure envisaged in Sindh Katchi Abadi Act, 1987, and Sindh Katchi Abadis Authority (Regularisation, Improvement and Development) Regulations, 1993---Validity---Prayer made by plaintiff in his plaint was against S.42 of Specific Relief Act, 1877, and without any lawful status or character over the property in dispute---Claim of plaintiff could not be acceded to or decreed in circumstances.

Nemo for Plaintiff.

Tahawwar Ali Khan for Defendants Nos.2 and 3.

2008 C L C 965

[Karachi]

Before Dr. Qammaruddin Bohra, J

Messrs KLB-E-HYDER AND COMPANY (PVT.) LTD. through Chief Executive---Plaintiff

Versus

NATIONAL BANK OF PAKISTAN through President and 3 others---Respondents

Suit No.B-50 of 2001, decided on 27th March, 2008.

(a) State Bank of Pakistan Circular No.F.E.5 of 1997--

---Circulars of State Bank of Pakistan have to be applied as a law and as these have binding' effect like other provisions of law, since circulars are issued, under the authority and the same must be treated as having the force of law.

2002 CLD 542 rel.

(b) Damages---

---Types of damages---Scope---Damages are usually considered under two heads viz. general or non-pecuniary loss or damages that is physical injury, pain and suffering, impaired capacity for enjoyment of life or lessened capacity and special or pecuniary damages that are actual, incidental and direct expense, capable of calculation in terms of monetary value, may it be on account of medical treatment, loss in business profit earning or otherwise---In an action for damages either general or special, burden to prove is always on plaintiff---In absence of authentic, oral and documentary supporting evidence, mere statement of party is not sufficient to establish amount of damages allegedly suffered by him---Person claiming special damages must prove each item of his loss on the basis of evidence---Where a person claims special damages then it is incumbent upon him to show as to under which head of account and how such damages have been sustained---In absence of such proof, special damages cannot be allowed.

1992 CLC 1561 rel.

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

----O. XXIX, R. 1---Tort---Mental torture---Corporation---Scope---Private limited company cannot sue for damages of its feelings like mental torture.

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

----Arts. 132 & 133---Failure to cross-examine---Effect---Mere not

cross-examining on material facts does, not ipso facto constitute establishment of the fact---Party proving a fact has to stand on its own legs and .not on the weakness of other side---Without discharging burden of proof of any specified fact, the other side cannot be presumed to have admitted the fact.

2000 CLC 215 and 1991 SCMR 2300 rel.

(e) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)----

----S. 9(1) & (2)---Civil Procedure Code (V of 1908), O.XXIX, R.1---Banking suit---Maintainability---Statement of accounts---Customer company filed suit against banking company without appending statement of accounts and without any resolution of board of directors Effect---Suit was filed before High Court in its original Banking jurisdiction wherein Bank filed leave to defend application which was granted and the suit proceeded as Banking suit---Plaintiff, in such suit was required under S.9(1) and (2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, to append with plaint a statement of account---Only concession available to customer was that such statement of account was not required to be certified in the manner prescribed under Bankers Books Evidence Act, 1891---Plaintiff having failed to file statement of accounts as required, the suit was liable to be dismissed---Plaintiff being a private limited company filed the suit without any Company's Board Resolution---Suit was dismissed in circumstances.

(f) Tort---

--Damage-Corporation-Mental torture---Private limited company cannot sue for damages of its feelings like mental torture.

Saalim Salam Ansari for Plaintiff.

Zubair Qureshi and Muhammad Rehan Qureshi for Respondents.

Date of hearing: 15th January, 2008.

JUDMGENT

DR. QAMMARUDDIN BOHRA, J.---The plaintiff an exporter of rice has filed present suit against the defendants for declaration for permanent injunction, damages and recovery of Rs.601.00 million.

1. Initially, suit was filed against the National Bank of Pakistan through its President and Manager and State Bank of Pakistan through its Governor and Federation of Pakistan through its Secretary Finance. Subsequently, suit against defendants Nos.3 and 4 dropped as per Court order dated 29-4-2007.

2. Brief facts forming background of this litigation are that the plaintiff is a registered company under Company Law and its registers, office at Suit No.11-14.A.K. Chamber West Wharf Road Karachi. The plaintiff's company is dealing in export of rice and remained a. leading Exporter of rice in Pakistan from the year 1995' to 1996. The plaintiff exported about 70,000 million tons of Basmati Rice to Islamic Republic of Iran. It is the case of plaintiff that he maintained the accounts with defendant No.2 and negotiated all letters of credit through the said Branch. It is further case of the plaintiff that he made thirteen (13) shipments to Islamic Republic of Iran and one shipment to Uganda all against advance payments and was given T.T. rate. As per Exchange Control Regulations if payments are made to Exporter from the funds of opening Bank. T.T. rate should be given being no involvement of negotiating banks funds. The details are given in the plaint. The Letters of Credit were negotiated under ACU(ECU) arrangement between the two countries Pakistan and Islamic Republic of Iran till December 1995. The rate made under this agreement was in local currencies in Pak Rupees and Iranian Tomans. From January, 1996 the arrangement was changed to US $. The exports were made only against Letters of Credit of Bank Millat Iran under ACU A/C maintained by National Bank of Pakistan, Karachi. As per ACU mechanism T.T. buying rate is applicable, if negotiating Bank is maintaining account of opening Bank. The negotiating Bank shall pay the exporters with T.T. buying rate, by debiting the opening Bank A/C with them and if they do not maintain the account of opening Bank they should claim the re-imbursement from opening bank and on receipt of reimbursement shall pay the T.T. buying rate as per FE Circular 5, resultantly Bank is bound to pay T.T. buying rate when re-imbursement is received under ACU arrangements as no funds of negotiating Bank are involved. According to the plaintiff his case was covered in paragraph one FE Circular No.5, likewise according to F.E. Circular No.83, which covers general exports, if no funds of negotiating banks are involved T.T. buying rate be given to exporter. In O.D. buying rate the negotiating Bank charge the interest for 14 days for the funds provided to exporters and claim funds (re-imbursement) from opening Bank after making the payment from their own funds hence interest. In T.T. buying rate no such deduction can be made being no involvement of negotiating Bank's fund. It is further case of the plaintiff that suddenly on 17th September, 1996 the exchange wing of defendant No.1 vide letter No.FEW/BTR/ACU/3988 advised their branch the defendant No.2 maintaining the account of plaintiff to recover from him the paid excess amount being the difference of T.T. buying rate and O.D. buying rate w.e.f. 1st January 1996 as prior to this arrangement were in local currency. On 22-2-1997 vide letter No.CST/FBP/ACU/97 the defendant No.2 served a notice on plaintiff for recovery of Rs.701,778 (Rupees seven lacs one thousand and seven hundred and seventy eight only). To the surprising of the plaintiff, he was served with another letter No.CST/EXP97/433 dated: 26-7-1997 from defendant No.2 directing him to deposit Rs.27,25,125 (Rupees twenty seven lack twenty five thousand, one hundred twenty five only) which was inclusive of the period when transactions were made in local currencies. According to the plaintiff, this was the serious conspiracy against plaintiff who were exporting rice to I.R. Iran worth US $20/25 million per annum till 1996 with full satisfaction of importers and always got appreciation certificates against their supplies. They (defendant No.2) also marked lien on plaintiff FC a/c, whereas out of 13 said shipments, 4 shipments were made by the sister concern Messrs Ali Associates of plaintiff as the L/C was in their name. For this injustice on the part of National Bank (defendant No.2) the plaintiff appealed to State Bank of Pakistan vide plaintiff's letter dated 13-8-1997 and 19th September, 1997 to stop National Bank of Pakistan for this illegal and unjust action. The State Bank of Pakistan immediately took action vide their letter dated 27-2-1997 and asked for detailed report from National Bank of Pakistan. The State Bank of Pakistan again sent two letters to National Bank of Pakistan on 30-9-1997 and 25-11-1997 to expedite the report without further loss of time. Since then till December 1998 neither National Bank of Pakistan submitted report to State Bank of Pakistan nor requested to plaintiff to make the said payment. The plaintiff was satisfied that the matter is resolved for ever and issue is settled on intervention of State Bank of Pakistan. On 19th December 1998 after lapse of one year the plaintiff wrote the letter to National Bank of Pakistan to confirm the closure of issue so that the lien on plaintiff's foreign currency is removed which they did in very beginning but no reply was received till 27th February 1999. Again on 27-2-1999 the plaintiff reminded them for the same action but they did not reply till June, 1999. On 7th and 10th June 1999 the plaintiff received a short recovery notice from Campbell Street Branch of National Bank of Pakistan (defendant No.2) requesting the plaintiff to deposit Rs.27,25,125 only plus Rs.19,05,476 being mark-up for the period. The plaintiff immediately replied them explaining the whole position vide plaintiff's letter dated 11-6-1999, with copy to the State Bank of Pakistan, that it is quite unjustified and National Bank of Pakistan must remove the lien and withdraw the so-called recovery notice of demand. The defendant No.3 State Bank of Pakistan took immediate action and advised National Bank of Pakistan (defendant No.2) to confirm the removal of lien on foreign currency and also stop the recovery of differential amount T.T. buying rate and O.D. buying rate. Surprisingly again the same authority of defendant No.3 issue a letter on 25-8-1999 which they had referred to National Bank of Pakistan and advised the plaintiff that the plaintiff's request cannot be acceded to. In fact the plaintiffs were shocked on receipt of the said letter and the Chief Executive of plaintiff approached personally the Executive Director of State Bank of Pakistan (defendant No.3) and delivered letter dated 20-8-1999 to reconsider the case in light of fact and figure but all in vain. Lastly it came to the notice of plaintiff that Branch Manager of defendant No.2 had criminally fabricated the documents by changing the dates of receipts of export proceeds to misguide the State Bank of Pakistan, that is why State Bank of Pakistan issued the letter contrary to their earlier letter. It is further stated that the claim of exchange rate difference between O.D. buying and T.T. buying .rates .by defendant No.2 is 'illegal unlawful and mala fide as exports were made to Iran under ACU account and funds of bank were not involved and plaintiff was correctly credited with T.T. buying rate which was in accordance to F.E. Circular of State Bank of Pakistan. Furthermore the National Bank of Pakistan had given in writing to the plaintiff to give T.T. buying rate against all A.C.U. L/Cs.

3. According to the plaintiff, regarding one shipment to Uganda, the plaintiff received Fax No.002256-41-241969 dated 16-7-1997 from Messrs MNT Importers and Distributors of General Merchandise Compala, Uganda for supply of rice (15% broken) for equivalent to US$ 90,000 and the plaintiff vide fax message dated 21-7-1997 regretted the supply required (15% broken) rice as it was not available and informed them to wait till next crop which will start after three months. Plaintiff received fax dated 22-7-1997 from their sister concern Messrs AMC General Traders informing the plaintiff that they have already dispatched the cheque of US $80,000 and requested him to clear the cheque and after receiving the money help them and make shipment of items including wheat, floor, bread sugar or any kind of rice so that he may make some profit in the months. The plaintiff after receiving cheque No.014028 deposited the said cheque/demand draft of US $80,000 with defendant No.2 and defendant No.2 sent the cheque for collection. On 1st August, 1997 defendant No.2 confirmed the realization of the cheque but credited the said amount on 13-8-1997 in Local currency in A/C No.860-1. The plaintiff has a sister concern namely Messrs Five Star International dealing the exports of commodities including rice. The plaintiff vide letter No.KH/786-110/143/114/97 dated 6-8-1997 asked the defendant No.2 to credit the net proceeds of realized amount of US $80,000 equivalent in Pak. Rupees in A/C No.860-1 maintained in the name of five Star International as the exports were to be made by that sister concern. The plaintiff after receiving the amount in Pak. Rupees as advance amount for exporting rice or any other commodities and after confirmation of realization of net proceeds of the Cheque in favour of plaintiff by defendant No.2 on 1-8-1997 and after issuance of the proceeds realization Certificate dated 13-8-1997 the plaintiff exported superior long grain Basmati rice 2% broken to importer Messrs MNT importer and 'distributor the shipment was made on 15-8-1997 and was received by importer on 23-9-1997. After receiving the goods the importer vanished and disappeared. The defendant No.2 had dispatched documents directly to the importer instead of through banking channel as per banking practice. The defendant No.2 vide letter dated 18-4-1998 informed the plaintiff that cheque was forged/counterfeit instrument and further they have made lien on US$ Account of the plaintiff which was deposited under NDR PIII Scheme, on appeal of Prime Minister Islamic Republic of Pakistan. The plaintiff faxed importer to immediately resolve' the problem but no reply was received from them through the fax was received by them. The plaintiff sent copy of Fax through courier service to locate their office but Courier also failed to locate their office. The plaintiff at its request was granted Running Finance facility of Rs:10 million against deposit of foreign currency in A/C No.007117-6 which had expired in 1999 when there was debit balance of Rs.30399, and the plaintiff vide letter dated 10-9-1999 and 27-9-1999 had informed the defendant No.2 that the company would not avail the facility till finalization of export contracts with the foreign buyers and therefore, no debit should be raised against the account without prior permission of company/plaintiff. The defendant No.2 had debited, plaintiff's account No.007117-6 with' Rs.27,255,125 being difference of TT rate and O.D. rate on 29-12-1999 of subsequently debited Markup of either amounts on that amounts and also debited amount equivalent to US$ 80,000 being Rs.4,11,2000 on 29-12-1999 of subsequent debit of Mark and other amount on that amount. The defendant No.2 also encashed US$ Account N.D.R. PIII Scheme of US$ 315000 at premature stage without permission of plaintiff, though no further debit entry was to be made in a closed account as period of finance facility had expired in account No.007117-6. The said deduction/debit in plaintiff's account is illegal against the provisions of law and rules and has been effected only to suppress the negligence and faults of defendant No.2. The advance payment was received on 13-8-1997, as permit realization Certificate issued by defendant No.2 an according to Exchange control regulations the export proceeds should be realized within 120 days of shipment whereas in this case the proceeds were realized before shipment and after 270 days of shipment false issue has been raised because of fault of defendants Nos.1 and 2, they did not obtain the credit report of importer being unknown African importer as required under regulation of State Bank of Pakistan. They misdeclared on export form having obtained and satisfied. They dispatched the shipping documents directly to importer instead of through Banking Channel as per practice. The plaintiff wrote various letter's to defendants Nos.1, 2 and 3 regarding the said illegality and illegal demand and lot of correspondence took place but they turned deaf ears. The plaintiff made complaint before Wafaqi Mohtasib (Ombudsman) for the maladministration of the Agencies i.e. defendants Nos.1 to 3 and the acting Ombudsman vide order dated 5-4-2000 declared the same as white collar fraud and held that the appropriate forum for handling such cases is Banking Court and advised the Complainant/plaintiff to approach the Court of competent authority for redressal of his grievance. The defendants Nos.1, 2 and 3 admitted that on 18-9-1997 after expiring of 42 days National Bank of Pakistan received telex from American Express Bank New York through their OBD/Head Office that the said draft was returned with remarks "altered amount" and National Bank of Pakistan Head Office had immediately replied on 19-9-1997 to them that payment had already been effected on the basis of their Karachi office advice dated 8-8-1997, therefore, National Bank of Pakistan A/c should not be debited accordingly. On 9-4-1998 after lapse of 9 months the American Express Bank, New York debited National Bank of Pakistan A/c with them and returned the cheque with the remarks that the cheque is forged/ counterfeit instrument. The respondent No.3 filed a complaint under sections 12(1) and 23B(4) of Foreign Exchange Act 1947 being FER case No.45/99 before Court of Muhammad Bari Director of adjudication Foreign Exchange Adjudication Court State Bank of Pakistan Karachi. The evidence was led and the Court vide order dated 31-7-2000 vacated the show cause issued to plaintiff for failure to repatriate sale proceeds of shipment to Uganda within stipulated period of four months from date of shipment. The Court also declared it to be international white collar fraud. The plaintiff approached defendant No.4 but he was neither heard nor any action was taken by defendant No.4. Due to all extreme and coercive actions and illegal and unlawful acts of defendants the export business of plaintiff was ruined and came to stand still as plaintiff had to refuse and return L.Cs. valuing millions of foreign Exchange during the above mentioned period due to lack of Banking Service and facilities on the ground of dispute raised by the defendants. The defendant No.1 not only created illegal and unlawful hurdles in the smooth export business of plaintiff but also started cheap publicity through their henchmen and favourite exporters that the plaintiff is not able to export rice as he has been penalized and huge amount is outstanding against him, which caused alarm in the minds of rice suppliers to the plaintiff and they stopped credit business with the plaintiff, which resulted huge losses to the plaintiff. The entire business of rice exports of plaintiff has been destroyed and all contracts and orders have been cancelled by the foreign buyers, and plaintiff suffered huge financial losses. According to the plaintiff he had to undergo mental torture and harassment due to illegal acts of defendants and litigation. The plaintiff has suffered huge financial losses and therefore, claimed the following amount by way of damages:---

(a) Loss of exports of US $ 25 Millions per annum. The plaintiff suffered loss of Rs.300 Millions estimated upon shipment and calculated @ 7%.

(b) Loss of goods in the local as well as foreign market and prompt service record being Rs. 10 Million.

(c) Mental Torture Rs.300 Millions

(d) Litigation Cost Rs.01 Million.

Total damages claimed Rs.611 Millions.

1. The plaintiff served the defendants with legal notice dated 6-6-2000 and 28-11-2000 but the defendants neglected the same. The plaintiff accordingly filed the present suit with following prayer:

(a) To declare that the amount of Rs.27,25,125 charged as difference of TT buying rate and O.D. buying rate debited on 29-12-1999 and amounts subsequent Markup and others in the account No.007117-6 of the plaintiff is illegal, unlawful and without any lawful authority.

(b) To declare that the amount of Rs.41,12,000 charged as equivalent, value to US$ 80,000 and debited on 29-12-1999 and subsequent Mark-up and other amount in the account No.007117-6 of the plaintiff is illegal unlawful and without lawful authority.

(c) To declare that premature encashment on 15-5-2000 of foreign currency deposit NDRP III of US$ 31,5000 deposited vide receipt No.754265 dated 15-4-1997 by the plaintiff is illegal unlawful and without any lawful authority said deposit continues up to 14-4-2002.

(d) To declare that Running Finance facility in A/c No.007117-6 was never got renewed by plaintiff and entries after the expiry of finance period are illegal and against Banking laws.

(e) To direct the defendants to reverse the debit entries and restore the foreign currency under deposit NDRP III at its original position and return from 29-12-1999 till date and continue paying return.

(f) To pass a decree of Rs.611 Million as damages against the defendants in favour of plaintiff, for the loss suffered in business and agencies of mental torture and harassment suffered by the plaintiff, who had to incur for litigation he had to face on account of illegal actions of defendants.

(g) Any other relief this Honourable Courts deems fit and proper.

1. The defendants contested the above suit by filing their leave to defend applications which were allowed by consent vide order dated 25-8-2003 and the defendants filed the written statement. The defendant raised preliminary objections as regards maintainability of the suit. The case of the defendants as contained in the said written statement is 'as follows:--

--------sic----------

1. It is averred in the written statement that all 13 shipments were made against the letters of credit issued by the Bank Millat-e-Iran and shipments were effected by the exporters. The defendant bank never received any advance payment. It is further averred in the written statement that plaintiff has filed a false and frivolous letter before the State Bank of Pakistan in order to obtain a letter for charging TT buying rate instead of O.D. buying rate. It was averred that plaintiff has not produced any document in support of their contention of any advance payment to the defendant bank. The export under advance payments and against letters of credits are quite different mode of shipments, in case of export against advance payment proceeds are received before the shipments and credited to the account of the Exporter whereas exports against letters of credit, proceeds are received after shipment moreso after negotiation of export documents, as such, two different rates are applicable to the exports against advance payments which is TT rate and on the other hand exports against letter of credits, in which documents are drawn and the exporter asked for negotiations to the negotiating bank, then the O.D. buying rate is applicable to the exporters. It is further averred that the thirteen shipments the documents were drawn under letters of credit, and on the instructions of the exporters, the documents negotiated and proceeds were credited in the respective accounts maintained by the plaintiff with the defendant bank and the plaintiff was entitled for O.D. buying rate as per State Bank of Pakistan Foreign Exchange Circular No.83 of 1893. It is further asserted by the defendant in the written statement that the defendant bank has to pay to the plaintiff O.D. buying rate applicable to the letter of credits in any circumstances except the payments which are received in advance. The O.D. buying rate is applicable in all the letters of credits whatsoever, whereas TT buying rate is applicable only against advance payments received by the Exporter through the bank. According to the defendant, the Circular No.5 of 1997, dated 18-3-1997 was not applicable in the instant case as the plaintiff's case pertains to the years 1994 to 1996. It was pointed out by the Senior Auditor during the course of audit in the year 1996 that wrong TT buying rate had been allowed to the plaintiff after negotiations of export documents instead of O.D. buying rate applicable as per Circular No.83 of 1993 of State Bank of Pakistan. After the discovery of this mistake, the Senior Auditor had instructed defendant No.2 to mark lien against foreign currency deposit account and the plaintiff may not be allowed to withdraw the same unless and until the amounts are recovered from the plaintiff, whereafter the plaintiff were repeatedly requested orally as well as through letters for the adjustment of the excess amount paid to them towards the T.T. rate instead of O.D. buying rate but they did not pay any attention to this and avoided/neglected the adjustment of the excess amount paid by the defendant No.2 bank inadvertently. It is not disputed that four shipments were made by the sister concern as the letters of credit were in the name of sister concern as such, the proceeds were credited to its sister concern account. When the correct position was explained to the State Bank of Pakistan they declined to accept their complaint in respect of T.T. buying rate and asked the defendant No.2 to charge the same at the O.D. buying rate which were accordingly charged and the plaintiff was repeatedly asked to adjust the excess amount received by them towards TT buying rate as well as through its sister concern. The defendant-Bank has rightly issued letters to the plaintiff whereby the amounts were demanded. The plaintiff's letter in reply thereto was quite unjustified, as such, the defendant-Bank did not remove the lien marked according to instructions of the senior Auditor of the defendant-Bank. After receipt of correct explanation of the defendant-Bank in respect of the exports made by the plaintiff under the letters of Credit, State Bank of Pakistan had rightly refused vide its letter dated 25-8-1999 in terms of foreign exchange circular of SBP, as the payments were received by the defendant bank after negotiation of documents. The defendant denied that the Branch Manager/defendant No.2 had criminally fabricated the documents by changing the dates of the receipts of shipment documents and export proceeds to misguide the State Bank of Pakistan. The State Bank of Pakistan has rightly declined its request in respect of T.T. buying rates. The defendant bank has rightly claimed the difference of O.D. buying and T.T. buying rates. The plaintiff had deposited cheque in its FC deposited account No.72 for US $ 80, with the defendant bank without assigning and showing the purpose of its receipt from abroad. The plaintiff was also maintaining current account in Pak rupees with the defendant-Bank. The cheque of US $ 80,000 was received in the name of the plaintiff i.e. Kalb-e-Hyder & Company (Pvt.) Limited and on presentation in clearing through American Express Bank, the proceeds were credited to the foreign currency account No.72 accordingly and thereafter at the request of the plaintiff vide its letter dated 6-8-1997 transfer the entire amount of US $ 80,000 equivalent to Pak rupees to the account of sister concern bearing No.860-1 of Messrs Five Star International in order to export the cargo by them to Mambasa through the sister concern and accordingly Pak rupees were transferred as advance in its sister concern account 860-1 on 13-8-1997. However, the plaintiff did not ship the goods, whereas the shipment was made by its sister concern Messrs Five Star International, Karachi under the proprietorship of Mr. Mazhar Hussain, who is also Chief Executive of Kalb-e-Hyder & Co. (Pvt.) Ltd., against the cheque of US$ 80,000 which was later on dishonoured and the same was returned by the collecting bank to the defendant bank being forged/counterfeit instrument. The American Express Bank, debited the account of the defendant-Bank for US$ 80,000 of forged/counterfeit cheque deposited by the plaintiff with the defendant-Bank. According to the defendant the plaintiff was in connivance with the importer and it was in the knowledge that the said cheque of US$ 80,000 is a forged/counterfeit instrument, as such, after the presentation and credit of the proceeds to the foreign currency account No.72, the plaintiff exported rice according to his own choice without any consent and involvement of the defendant/bank which has completed in a very short span of time i.e. one and a half day and completed the shipment on 15-8-1997 which was not possible in normal dealing of exports and instructed the defendant to dispatch the shipment documents to the consignee through courier service vide its letter dated 13-8-1997. According to the defendant, the plaintiff itself due to connivance with the importer has been trying to stimulate the defendant bank from each and every corner for achieving its evil designs. It is further averred in the written statement that the defendant bank informed the plaintiff that the draft was forged/counterfeit instrument, as such, a lien was made on US$ account of the plaintiff. The plaintiff also obtained running finance facility of Rs.10.0 million against the deposit under NDRP-III Scheme. It is alleged by defendant that plaintiff deliberately and knowingly has tried to indulge the defendant bank under heavy losses on one pretext or the other. According to the defendant the plaintiff was also aware that the importer after issuance of the draft of US$ 80,000 had disappeared and was not available even otherwise the plaintiff asked the defendant-Bank to dispatch the shipment documents directly to the Importer at Uganda. It is further stated that plaintiff was granted a running finance facility of Rs.10.0 million against NDRP-III Scheme and according to the sanction amount which the plaintiff was utilizing time to time. The amount of forged/counterfeit cheque as well as the amount of difference of TT buying rate and O.D. buying rate was payable by the plaintiff, as such, in order to save its skin, instructed the bank not to debit the running finance account. According to the defendant, the defendant-Bank repeatedly requested the plaintiff to adjust the above amounts, when the plaintiff failed to adjust the same, the defendant bank had no alternate except to debit the said amounts which the defendant bank adjusted according to law and banking practice, as such, the allegations of the plaintiff are baseless and without any footings. The defendant had also denied that defendant bank encashed US $ NDRP III Scheme of US$ 315,000 at premature stage without permission of the plaintiff as alleged or at all. According to them, repeatedly letters and notices were sent to the plaintiff in respect of encashment of US$ account for adjustment of the outstanding liabilities of the plaintiff but the plaintiff failed to fulfil the demand of the defendant-Bank, as such, the same was encashed and amounts were credited to its account and remaining amount was sent to the plaintiff through Draft No.110006 dated 11-9-2000 US$ 106,176.73 of defendant bank, but the same was refused by the plaintiff. After refusal by the plaintiff the said draft was cancelled and the amount was kept in the sundry account of the defendant No.2/bank which is still lying with the defendant-Bank and the same can be withdrawn by the plaintiff any time without any hitch and hurdle. It is further case of defendant that except forged/counterfeit US$ 80,000 draft, no any advance payment was received towards the 13 shipments made to Islamic Republic of Iran. The said US$ draft, according to defendant, was returned being forged/ counterfeit instrument, which was against the shipment documents sent to the Importer at the request of the plaintiff. According to the defendant, the draft was firstly returned with the remarks "altered amount", thereafter they declared the same cheque being forged/ counterfeit and debited the defendant-Bank account at New York. According to them, the American Express Bank, New York, debited NBP Account and the same was returned with the remarks mentioned above. According to the defendant, the Adjudication Court also declared it to be international white collar fraud, as well as the same was also declared by the Ombudsman as white collar fraud. It is averred by the defendants that due to return of cheque of US$ 80,000 and non-cooperation of the plaintiff on flimsy grounds, the plaintiff itself stopped the business. According to the defendants, the defendant No.2/Bank always tried to explain the plaintiff the difficulties of the bank and after the return of US$ 80,000.00 cheque but, the plaintiff never cooperated and did not solve the problem of the bank, as such, the bank was compelled to adjust the outstanding liabilities according to rule from its account. According to the defendants, the plaintiff had not sustained any loss in export business as they had already admitted vide its letter No.KH/786-110/137/95/99 dated 10-9-1999 that no export contracts/orders were finalized with the foreign buyers, hence could not avail finance facility which was granted by the defendant No.2/Bank. According to the defendants, it was a case of arranged shipment against a bogus contract, moreover, against a forged/counterfeit instrument, therefore, the export proceeds could not be repatriated. According to the defendants, the outstanding amounts were correctly debited to plaintiff's account from the proceeds of NDRP-III, which was under lien for the purposes and, when the plaintiff despite all efforts, letters/reminders and due notices, by the defendant No.2/Bank failed, then the defendants had no alternate except to adjust the outstanding liabilities from its accounts as per authorization under the law. Prayer for the dismissal of suit with special costs.

2. On 25-8-2003 following consent issues were framed in view of the above pleadings of the parties:--

(1) Whether the defendant is entitled to charge from the plaintiff T.T. rates or O.D. rates on the transaction does by the plaintiff with the Iranian counterparts?

(2) Whether the cheque of US$ 80,000 was cleared by the National Bank whereafter shipment was effected by the plaintiff to Uganda?

(3) Whether the plaintiff has clouded with the foreign importers (Uganda) at the cost of the defendant?

(4) Whether National Bank could encash the plaintiffs NDRP Certificates to recover amount in connection with another transaction.

(5) Damages.

(6) Relief.

1. After framing of the issues the evidence of both the parties were recorded.

2. I have gone through the written arguments of Mr. Saalim Salam Ansari Advocate for the plaintiff and Mr. Zubair Qureshi Advocate for defendants Nos.1 and 2 National Bank of Pakistan and also perused the record of the case.

3. Before we discuss the issues framed above, it is pertinent to mention that the defendants Nos.1 and 2 have taken a specific plea in their written statement that the suit as framed is not maintainable under the law but at the time of framing the issues the said plea is not pleaded and by consent this issue was framed.

Issue No.1

1. On this issue the learned counsel for the plaintiff contended that the plaintiff has succeeded to establish his claim through recording his evidence as well as documents produced by the plaintiff, which are exhibited and mostly of them issued by the defendant and State Bank of Pakistan. He further drawn the attention of this Court on the evidence of Bank Manager and another witness of the defendant who came from American Express Bank. By referring the evidence and documents learned counsel contended in cases where documents presented are not negotiated for any valid reasons but payment is made to the exporter after receipt of funds from the opening/reimbursing bank then conversion will invariably made at the T.T. clean buying rate instead of O.D. buying rate his contention in this regard is that the instant case no funds of bank are involved therefore, the exporter/plaintiff should have been given T.T. rate (i.e. no markup should be charge) and if funds of negotiating bank are involved by paying first exporter from own funds at the time of negotiating and then claim reimbursement from abroad then O.D. rate paid to the exporter (which is less because mark-up for 15 days) to come from abroad.

2. According to him in this case no funds of negotiating banks (the defendants) were involved. The plaintiffs were paid the proceeds already available with defendant by debiting the account of importer bank Messrs Millat Bank, Tehran. Accordingly, T.T. rate given to the plaintiff as per L.Cs. reimbursement clause of Exhs.5/12, 5/14, 5/18 and 5/21.

3. He further contended that after about one year when shipments were completed and cases were closed mark up for 15 days was claimed on all thirteen (13) shipments by giving O.D. rate and also mark up over mark was charged which is violation of the State Bank of Pakistan's Circulars 13 arid, 32 of 1984, the circular of the State Bank of Pakistan are binding on the banks operating in Pakistan in view of sections 25 and 33-P of Banking Companies Ordinance, 1962.

He referred as under:--

(a) Letter of National Bank of Pakistan Branch dated 18-6-1996 to their Head Office (N.B.P.) confirming that there is no involvement of National Bank of Pakistan funds in the plaintiff's case Exh.5/69-B.

(b) L.Cs. were opened under U.C.P.-500 which says that negotiations means (providing funds) which were not provided on presentation of documents as per L.C. terms, but were provided on receipt from abroad.

(c) The plaintiff were issued Annexure "A" (format annexed to the circular) will also be used for claiming refunds of the import fee) against all the 13 shipments which is only issued when proceeds are realized into Pakistan. In case where proceeds are to be realized later after negotiation then "annexure-B" (Format where export has been made) is supposed to be issued which is quite different from "annexure-A" as per State Bank F.E. Circular 64 dated 25th August 1993.

(d) Further contended that the dates of realization of proceeds into Pakistan and the dates of its reporting to State Bank of Pakistan are specifically mentioned in the Annexure "A" issued by the defendant. "Negotiation date" and "proceed realization date" both are same (Column No.5 and column-9), hence no Capitals of National Bank of Pakistan were involved.

(e) L/Cs reimbursement clause is also self-explanatory, which allow reimbursement by debiting bank Millat Tehran account only, with the defendant.

(f) The Export Promotion Bureau of Pakistan (EPB) in its letter to defendant (Exh.5/69) had explained the position of the plaintiff, which was not rebutted.

1. According to the learned counsel the bank (defendant) did not provide any funds to the plaintiff, hence no negotiations took place under the terms of UCP-506. The credit was given to the plaintiff after getting instructions/funds from Bank Millar, Tehran, using "delay tactics", so much so that in one shipment defendant although issued the credit advice to the plaintiff in time on 29-2-1996 (Exh.5/51) but criminally, credit of PKR 120 Million was not provided into plaintiff's accounts resulting cheques issued to local Rice suppliers worth Rs.120 Millions were "dishonoured".

2. Further the learned counsel in light of the above contended that the defendant (bank) is entitled to charge from the plaintiff T.T. rates and not O.D. rates on the transaction done by the plaintiff with the Iranian Counterpart.

3. On the other hand the learned counsel for the defendant contended that initial burden to prove this issue lies on the plaintiff and he referred the evidence of the plaintiff as under:--

As per understanding between the members of ACU exporters' banks as well as importers' bank has to establish account in each country from where remittance can be transferred by debiting their accounts. The defendant's-Bank have an account with Bank Millat Iran, Tehran, likewise Bank Millat Iran has account with the defendants' bank. In case letters of credit are allowed then amount can be debited from the account of Bank Millat Iran by debiting their accounts from the accounts maintained by the bank with the defendant's-Bank. I have filed the details of export undertaken by the plaintiff under ACU. I produce 13 shipments under four letters of credit with enclosures. The said letters of credit have been established by the importer with defendant's-Banks. I produce Exhs.5/12 to 5/24. There are two types of conversions one is known as O.D. conversion rate and other is T.T. buying, OD rate is paid by the bank to the exporters, when the bank pays the amount has been paid by exporters' bank form its own reservation and claims the fund, from importers' bank later which normally come after 15 days so exporters' bank charges the interest for 15 days and the TT rate is charged when the other bank's funds are available at the time of negotiation or it is received by the exporters' bank by debiting accounts of importers' bank with them".

1. The learned counsel for defendants referring the above piece of evidence of plaintiff contended that no document was produced by the plaintiff to show and prove the ACU mechanism, whereby TT buying rates are allegedly applicable on the export between ACU member countries enjoyable by exporters irrespective of Bank involvement. His further contention is that the plaintiff distorted from its pleading as under para.5 of the plaint, the plaintiff alleged that his case covers under State Bank of Pakistan, F.E. Circular No.5 of 1997, however, same was never produced by the plaintiff.

2. According to the learned counsel for the defendant the plaintiff's case does not fall within the ambit of State Bank of Pakistan, FE Circular No.5 of 1997 dated 20-3-1997 as the same is not applicable having no retrospective effects. The transactions were made during the year 1995-96 and as such clean TT buying rate cannot be charged in any case for the transactions made prior to the Circular. The plaintiff's case fall within the purview of State Bank of Pakistan, FE Circular No.83/93 dated 30-12-1993, which is Exh.D/1. The State Bank of Pakistan FE Circular No.83/93 has been annexed with the plaint as Annexure "C" as well as FE Circular No.5 of 1997 dated 20-3-1997 as Annexure "C/1".

3. Both Circulars for appreciation of the contention of the parties counsel are reproduced as under:

F.E. Circular No.83 of 1993 dated 30th December 1993

"Under the existing rules Authorized Dealers are required to convert inward remittances on account of exports at the T.T. Clean buying rate where documents are sent on collection basis or where advance payment is received. In cases where the documents are drawn under a letter of credit, conversion is required to be made at the O.D. buying rate. The rationale is that under letters of credits, negotiating banks are required to make immediate payment upon negotiation of documents while the payments from the opening/ reimbursing banks are received subsequently. The exporters have, however, complained that the Authorized Dealers are making payment even in the case of documents presented against the letters of credit after receipt of funds from the opening/reimbursing banks at the O.D. buying rate instead of making up-front payments. It is, therefore, advised that in cases where documents presented under letters of credit are not negotiated for any valid reason but payment is made to the exporter after receipt of funds from the opening/reimbursing bank, conversion will invariably be made at the T.T. clean buying rate instead of O.D. buying rate. The Authorized Dealers will, however, be free to recover from the customers their service charges and postages".

F.E. Circular No.5 of 1997 dated 20th March, 1997

"The present different Authorized Dealers have adopted different methods for making payments to the exporters in Pakistan exporting goods to the buyers in the ACU member countries. It has since been decided that in future, uniform method will be followed by all the Authorized Dealers which is given hereunder:--

(I) Where the negotiating bank maintains the ACU Dollar account of L/C-opening bank, it will debit the relative ACU Dollar account, will take that U.S. Dollar amount in its normal US$ Nostro account, will pay rupee equivalent to the exports at the Authorized Dealers' T.T. clean buying rate the prevailing on the date of payment and will report the transaction to the State Bank of Pakistan on Schedule A/1 or A/2 as the case may be.

(II) Where the negotiating bank does not maintain the ACU Dollar account of the L/C-opening bank, it will negotiate the documents and lodge claim with the reimbursing bank which in turn will debit the ACU Dollar account of the L/C-opening bank, deliver the amount involved in U.S. Dollar to the negotiating bank which will take the relative amount in its normal U.S. $ Nostro account, will pay rupee equivalent to the exports at the Authorized Dealer' T.T. clean buying rate obtaining on the date of payment and will report the transaction to State Bank of Pakistan on Schedule A/1 or A/2 as the case may be".

1. The perusal of the above circulars, the Circular No.F.E. 5 of 1997 where whole case of the plaintiff depends shows the date 20-3-1997 and it does not have any retrospective effects, whereas admittedly the transactions of the plaintiff are during the year 1995-96, whereas the F.E. Circular No.83/93 dated 30-12-1993, which is an early circular, hence, applicable on the transactions during the year 1995-96 clearly speaks that:

"In case where the documents are drawn under a letter of credit conversion is required to be made at the OD buying rate, negotiating banks are required to make immediate payment upon negotiation of documents while the payments from the opening/reimbursing bank are receiving subsequently".

1. It is a matter of fact under ACU Mechanism arrangements were made for the bank to bank facilitation and exporters have nothing to do with it and they are bound under the Circulars issued by the State Bank of Pakistan time to time. It is rightly argued by the learned counsel for the defendant that being a financial institution are bound to implement and enforce the Circulars issued by the State Bank of Pakistan from time to time is dealing and treating with their customers like the plaintiff. Even otherwise the State Bank of Pakistan Circulars are binding and having the force of law and are required to be implemented as a provision of the law. The plaintiff cannot claim any thing for the Bank to Bank transaction or any other arrangement.

2. It is also admitted position that plaintiff before coming to this Court have also moved the State Bank of Pakistan that he is entitled for T.T. buying rate as per Circular No.F.E.5 of 1997 dated 20-3-1997. It is admitted by the plaintiff's witness in the cross-examination:

"It is correct to suggest that exporter has nothing to do with the Bank to Bank transaction…………It is also correct to suggest that while not accepting my representation State Bank of Pakistan gave the reason that payments were made on negotiation of document".

1. It is also come in the evidence that according to the State Bank of Pakistan letter Exh.5/32, has not accepted the plea of the plaintiff to treat the case under Circular No.5 of 1997.

2. Initially the plaintiff's own case based on the touch stone of the State Bank of Pakistan Circular No.F.E.5 of 1997. However, during course of evidence a divergent plea has been taken by the plaintiff in his examination-in-chief as:

"The said letters of credit have been established by the importer with the defendant's Bank: I produce Exhs.5/12 to 5/24. There are two types of conversions one is known as OD conversion rate and other is TT buying rate OD rate is paid by the bank to the exporters, when the bank pays the amount has been paid by exporters' bank from its own reservation and claims the fund from importers' bank later which normally come after 15 days and the TT rate is charged when the other bank's funds are available at the time of negotiation or it is received by the exporters' bank by debiting accounts of importers' bank with them".

1. It is well-settled principle of law that Circulars of State Bank of Pakistan have to apply as a law and have binding effect like other provisions of law as Circulars have been issued under the authority and same must be treated as having the force of law. Reliance placed on a DB authority of Karachi reported .as 2002 CLD 542 relevant pages 544 and 547.

2. The learned counsel contended that the defendant No.2 inadvertently charge TT buying rates which on pointation of Senior Auditor of the defendant/Bank were required to be corrected and amount of difference to be collected from the plaintiff. The plaintiff was served with a letter, which is Exh.5/25 on record and was directed to pay outstanding amount due and payable by him in ordinary Banking business, however, the plaintiff himself initiate different proceedings against the defendants such as filing of complaint before State Bank of Pakistan decision of which has been produced as Exh.5/32. Despite State' Bank of Pakistan, the plaintiff on his own accord take up the matter to different agencies like Wafaqi Mohtasib whose decision is available as Exh.5/47 and Federation of Chamber of Commerce and Industry to militate and defame the defendants goodwill in the market.

3. The perusal of Exh.5/32, the letter of State Bank of Pakistan bearing No.5726/FEP.1(51)/99 dated 25th August, 1999 clearly shows by referring letter of plaintiff dated 14th June, 1999 on the subject "Negotiation of Export Documents under CU arrangement-accounts Messrs Kalb-e-Haider and Co. (Pvt.) Ltd. and its sister concerns" .and they were advised that they have requested to treat their case in terms of F.E. Circular No.5/1997 cannot be acceded to as payments in your case were made on negotiation of documents.

4. The Exh.5/47, which is a decision of Wafaqi Mohtasib (Ombudsman)'s Secretariat Regional Office Karachi, the proceedings were initiated, on complaint of plaintiff against the National Bank of Pakistan and during the proceedings Mr. Raees Ahmed, Foreign Exchange Officer, State Bank of Pakistan was invited specifically to enlighten the Investigating Officer about the position of rule on the issue in at para. 4 of the order of Ombudsman which shows:--

"This followed a heated discussion about the position of the proceed, whether the proceeds were actually received by National Bank of Pakistan as per ACU Mechanism or not. The complainant pointed out that the account of his clients was being maintained with National Bank of Pakistan Head Office and they had consented for debiting their account but the officials of NBP purposely debited the account of their H.O. in order to apply O.D. rates" and then in the, end of para. 6, it is clearly mentioned "Export Transactions in the cage under reference pertain to the period between 1994-96, as such, does not fall within the purview of F.E. Circular No.5 of 1997 as the instructions contained therein did not have retrospective effect" and in the end it has been mentioned that "No mal-administration is involved in this case".

1. In light of the above discussion of the evidence and the documents produced by the parties clearly established that the charge of O.D. rate is not for the reasons that upon negotiation of documents, the payment has to make immediately by the negotiating Bank, and has been given 15 days markup in terms of charging of higher rate as O.D. buying rate. In terms of State Bank of Pakistan Circular No.83/93, the export was made on the basis of letters of credit, the defendants were supposed to charge O.D. buying rate irrespective of the terms and conditions of letter of credit. The discussion further clears that in terms of Circular No.83/93 of State Bank of Pakistan where the documents are drawn under Letter of Credit, conversion is required to be made as the On buying rate as the Banks are required to make immediate payment upon negotiation of documents.

2. In the instant case the 13 shipments were made on the basis of four letters of credit. It is settled principle that negotiation is deemed to be completed on realization of funds. In this regard the defendants' witness namely laved Haider deposed in his cross-examination. "Under UCP-500 the negotiation is deemed to be completed on realization of funds. We reimburse ourselves by debiting the accounts of Tehran Millat Bank who were L/C opening Bank". As per the State Bank of Pakistan, Exchange Control Department's Circular No.35/ECP-II(13)B-81, which is Exh.7/19 on record clearly mentioned therein that:

"Documents drawn under letter of Credit" O.D. rates are applicable against Exports". This position also admitted by the plaintiff in his cross-examination that:--

"I see Circular No.83 dated 30-12-1993 issued by the State Bank of Pakistan and say that whatever stated in the said Circular is correct. I see Circular 35 issued by the State Bank of Pakistan and I say that the same has been issued by State Bank of Pakistan in respect of the document drawn under the letter of Credit."

1. Therefore, the circulars of State Bank of Pakistan are un­rebutted and unchallenged admitted by the plaintiff as such the documents drawn under Letters of Credit, the O.D. rates are applicable.

2. Under ACU arrangement funds could be realized from the opening Bank at the time of negotiation of documents but the exporters have nothing to do with it. The said arrangements were for the Bank to bank transactions without any concession for the Customers of the member Bank. The plaintiff's account was credited with the export proceeds on completion of negotiation of documents which include realization of funds as per Circular No.83/93. The plaintiff cannot claim TT buying rate for the export proceeds which were credited in the plaintiff's foreign currency account. In view of above, it is proved that the defendants are entitled to charge OD rates from the plaintiff. Hence, this issue is decided accordingly.

Issue No.2

1. On this issue the learned counsel for the plaintiff argued that the cheque of D.D. was received as "advance payment" from a "quite unknown party" which was deposited with defendant for clearance and referred their letter dated 17-8-1998, which is exhibited 5/35 on record as well as letter of defendant, which is exhibited 5/69. He further contended that the defendant has accepted during cross-examination before the State Bank of Pakistan's adjudication court that cheque/D.D. No.014028, was deposited by plaintiff with defendant to send it for clearance (collection) and after scrutiny it was also found genuine and was not altered/forged or counterfeit. He further contended that the shipment was made to Uganda on 15-8-1997, Bill of Lading is the Exh.5/37. The shipment was effected in the name of plaintiff's sister concern Messrs Five Star International against same cheque/D.D. of U.S. Dollar 80,000. Shipment was received in Uganda on 23-9-1997. The defendants were accordingly informed in writing before shipment that goods will be shipped by Messrs Five Star International as per letter dated 6th August, 1997.

2. His further contention is that there is no restriction by the State Bank of Pakistan that against "advance payments" a sister concern cannot ship the goods, when signatory of both the concerns is same. The shipment was made against Form-E No.NBP-248765, which was issued by defendant to plaintiff confirming receipt of advance payment and also confirming their satisfaction about the credentials of importers. He further contended that the plaintiff routed the shipping documents through banking channel instead of sending directly, being importers "Quite unknown" to them, although plaintiff had received the funds in advance. The shipment was received by importers on 23-9-1997.

3. He further contended that the defendant wilfully misdeclared on Form "E" No.NBP-248765 (Exh.5/36) that they are satisfied with credential of importers. In fact, they did not make any enquiry about credential of importers which is must in all export cases as per exchange control manual of State Bank of Pakistan. If they could have made the enquiry, the shipment should not have been done to such a fraudulent company. He also contended that the custom does not allow any shipment until and unless satisfactory credentials are obtained by the Bank irrespective of fact whether shipment is against advance payment or otherwise.

4. He further contended that during cross-examination of defendant he admitted that they have not made such enquiry. The plaintiff made the shipment only after getting the defendant confirmation of receipt of payment against D.D. No.014028 as advance payment and also confirmation of defendant being satisfied about the credentials of importers and lastly contended that the adjudicating Court of State Bank of Pakistan had decided this case in favour of the plaintiff and neither the complainant (State Bank of Pakistan) nor the defendant filed any appeal against the order of adjudicating Court, which is Exh.5/48 on record. As such the cheque of US $ 80,000 was cleared by the National Bank of Pakistan whereafter shipment was effected to Uganda.

5. On the other hand the learned counsel for the defendants on this issue referred the evidence of his witness namely Javaid Haider who categorically ,states in his affidavit-in-evidence that plaintiff had deposited a cheque in its FC Account No.72 for US $ 80,000 for collection purpose without assigning/showing purpose of receipt from abroad and he pointed out para.14 page 4 of affidavit-in-evidence of Javaid Haider as Exh.7. He further contended that during proceedings before Director of Adjudication in FER case No.45 of 1999 (Exh.5/48) it was established that the amount of cheque was accordingly credited through FC Account No.72 of the plaintiff on 7-8-1997, thereafter as per instruction of the plaintiff, the entire amount of US $ 80,000 equal to Pak Rupees were transferred to the account of sister concern bearing Account No.860-1 of Messrs Five Star International Karachi on 13-8-1997.

6. He further contended that the said cheque was routed through Messrs American Express Ltd., Karachi, which was later on dishonoured and the same was returned by the collecting Bank to the defendant No.2/Bank being forged and counterfeit instrument. The copy of letter dated 18-9-1997 received from American Express Bank that the said draft had been returned unpaid with the remarks "Altered Amount" sent to the plaintiff. The learned counsel further contended that the plaintiff in order to save himself dispatch the consignment of counterfeit cheque through its sister concern Messrs Five Star International, which clearly shows mala fide on the part of the plaintiff.

7. His further contention is that American Express Bank according to the Bank to Bank agreement debited US$ 80,000 in the account of defendant No.2/NBP/vide Exh.7/9. The learned counsel for the defendant further contended that the plaintiff refused to pay back the counterfeit/forged cheque amount as such the outstanding amount was adjusted from the under lien NDRP-III and the balance amount was paid to them but refused and the same was paid through the order of this Court dated 25-8-2003 and in this regard he referred the plaintiff's cross-examination, which is as under:--

"I say that at the time of depositing the DD with the defendant-Bank I have not informed the defendant-Bank in writing that the amount in question pertains to advance in respect of consignment to be exported".

1. He further referred the evidence of plaintiff wherein the plaintiff admitted that:--

"I see letter dated 26-7-1997 (Exh.5/25) it is correct to suggest that by this letter the defendant-Bank has asked for adjustment of difference amount between TT & OD rate". It is correct to suggest that the defendant-Bank time and again repeatedly asked for adjustment of difference between TT and OD rates, but plaintiff did' not adjust the same".

1. He further admitted that:

"we have not filed any case against the party who has issued DD of US $ 80,000 because proceeds realization certificate was issued by the Bank".

1. According to the defendant's counsel the above shows that the plaintiff has intentionally manipulated forged cheque and exported the consignment through its sister concerned. The plaintiff has also admitted that: --

"It is correct to suggest that entire consignment was exported through one shipment".

1. The above-referred evidence clearly shows that the consignment was .exported by the sister concern and not by the plaintiff-Company despite the knowledge of the counterfeit/ forged cheque arranged by the plaintiff.

2. In the above connection the defendants in support of their contention that counterfeit cheque and debit of $ 80,000 in the Account of N.B.P., the defendant/Bank called the witness of America Express Bank namely Babar Kaleem as D.W.2 (Exh.6), who has deposed in Examination-in-Chief as under:--

"The amount is shown was credited in the National Bank Accounts. I produced the same as Exh. No.6/1. After the amount was debited in the National Bank Accounts, New York Branch on 9th of April, 1998, we received a Debit Advice, Original Cheque and copy of an affidavit of CAJA DE MURCIA, Avda, Juan Carlos I, s/n-Department to Defendant Extranjero, 30100 Espinardo (MURCIA-SPAIN). We received the original of Exh. No.6/1 and an "Affidavit of Material Alteration" sworn by Officer of the Bank, New York duly sworn on 20-2-1998. The reasons for return of the Bank Draft is mentioned in the Debit Advice, which I produce the copy of Exh. No.6/3. On the reverse of Exh. No.6/3 reason mentioned is `forged/counterfeited instrument".

1. The witness further stated that:--

"It is the general practice and strictly followed in USA where a wrong credit or debit entries are made, then on furnishing a `Legal Affidavit' Bank has to make good the loss or restore the amount. I produce the Summary of instructions which we are required to follow as exhibit No.6/5 which provides the manner in the Banks are required to act in cases where cheques are either stolen, materialy altered or counterfeited".

1. The contention of the plaintiff regarding FER case No.45 of 1999 which was filed by the State Bank of Pakistan against one Mazhar Hussain Mossvi, Proprietor of Messrs Five Star International Karachi and not against the plaintiff whereby the complainant alleged that Mazhar Hussain Mossvi, Proprietor of Messrs Five Star International Karachi exported Rice to Mambasa valuing US $ 79,988.00 on or about 15-8-1997 as declared on "E" Form No.NBP/248765. He failed to repatriate sale proceeds of the above shipment within the stipulated period of four months from the date of shipment as per undertaking given by him which is contravention of FE Rules 1952 (Exh.5/48). However, the said complaint of State Bank of Pakistan was disposed of by order dated 13-7-2000 by declaring International white-collar crime.

2. The learned counsel for the defendant argue that the defendant did not misdeclared on Form "E" No.248765 Exh.5/36 about the credential of importers. As the export was made against the advance payment so there was no necessity to make such enquiry. The plaintiff falsely and with mala fide intention alleged that before sending shipment documents bankers are required to verify credibility of importer. The learned counsel further argue that the cheque was discovered as counterfeit/forged, the defendants wrote to the plaintiff for adjustment of amount of counterfeit/forged cheque but the plaintiff failed to pay any amount in respect of the counterfeit cheque and the same was recovered under the State Bank of Pakistan Circular No.SBP/FE Circular No.2 of 1997 (Exhs.7/10 and 7/13).

3. The evidence shows that the defendants after finalization of case bearing No.SBP/FER No.45 of 1999 recovered the outstanding, amount from the plaintiff and released the remaining amount to the plaintiff who refused to receive the same. However, the same amount was given by the defendants-Bank to the plaintiff admittedly through order of this Court.

4. In the light of the above discussion it is clearly proved that the shipment was effected to Uganda after clearance of counterfeit/forged cheque. Issue accordingly answered.

Issue No.3

1. On this issue the learned counsel for the plaintiff argued that the Importers were "Quite Unknown" to' the plaintiff, which is evident from the letter dated 17-8-1998 of plaintiff addressed to State Bank of Pakistan. The learned counsel for the plaintiff further argued that the State Bank of Pakistan have put no restriction whatsoever that a sister concern cannot ship the goods against "Advance Payment" when the signatory of both the Concern is also the same. The plaintiff had received the proceeds through Banking channel still they routed the shipping documents through defendant, as importer were quite unknown to them.

2. The learned counsel referred the evidence of (D.W.1), who was from the American Express Bank and who in cross-examination admitted that D.D. N.014028 was paid on first presentation and no objection was raised whatsoever by the drawee bank (Bank of New York). The witness further confirmed that no claim has been lodged against them by the defendant against the debit of cheque/D. D. amount when more than seven (7) months the funds remained in defendants account, therefore, American Bank did not file any claim against the Bank of New York.

3. The learned counsel for the plaintiff further referred the evidence of the witness and argued that this witness has accepted during cross-examination that according to Exchange Control Regulations of Pakistan the funds must be realized from abroad within four months of shipment. Whereas, in the instant case proceeds had been in defendant account for more than seven months of its shipment. The said witness has also confirmed that D.D. which was altered/forged/counterfeit was of different number i.e. 013714 and, it was said to have been altered/forged/counterfeit in total i.e. number, name, address and amount. The amount was altered from US$ 685 to US$ 80,000 in figures and words.

4. The learned counsel also referred order of adjudicating Court at page 217 and contended that the same is also in favour of the plaintiff which has not been challenged by any party. The concluding para of above said order, which is reproduced as under:

"However, the D.D. in question was declared altered/ forged in New York after 42 days when the deal of business was completed. It appears to be an international white collar fraud. I am, therefore, convinced to give benefit of doubt to the alleged Accused viz Mazhar Hussain Mossvi, Proprietor of Messrs Five Star International, Karachi and vacate the Show-Cause Notice dated 28-10-1999 issued to him."

1. Lastly learned counsel for the plaintiff contended that in light of the above the plaintiff cannot be said clouded with the foreign importers (Uganda) at the cost of the defendants.

2. On the other hand the learned counsel for the defendant argued that admittedly the plaintiff deposited Cheque/DD No.014028 dated 10-6-1997 (Exh.7/6) without assigning any reason and he referred the evidence of, the plaintiff's witness namely Syed Mazhar Hussain particularly cross-examination. The learned counsel further argued that the plaintiff through their letter dated 6-8-1997 asked the defendants to credit the net proceeds of Cheque equal to Pak Rupees in the account of their sister concern namely Messrs Five Star International having account in Pak Rupees being Account No.860-1, which was accordingly credited. However, the shipment was effected by Messrs Five Star International and not by the plaintiff.

3. He further contended that it is interesting to note that the above said consignment was exported within a short period of one day which is Exh.5/36, which is Form-E dated 9-8-1997, (Exh.5/37) bill of lading dated 15-8-1997 as (Exh.5/38), revised advice dated 13-8-1997. He further argued that on 21-8-1997 Messrs Five Star International address the defendant No.2 for dispatch of shipping documents to the importers by courier service and same is available as Exh.7/12, which has not been denied or put any suggestion during cross-examination to the defendant's witness, as such, the same is unrebutted and unchallenged. This also prove mala fides of the plaintiff in respect of Export against a counterfeit and manipulated cheque to the foreign importers.

4. In light of the' above contention of the parties advocate, let see the evidence of plaintiff's witness namely Syed Mazhar Hussain who candidly admitted in his cross-examination:

"the DD received by me was in the name of plaintiff-Company voluntarily says that the DD was handed over to the defendant-Bank for collection purpose."

1. Te above witness in this cross-examination at page 2 further deposed that:--

"I say that at the time of depositing the DD with the defendant/Bank, I have not- informed the defendant/Bank in writing that the amount in question pertains to advance in respect of consignment to be exported. I see form-E and say that the same was endorsed to us."

Similarly, the plaintiff's witness further admitted that:--

"It is correct to suggest that Five Star International had exported Rice to Uganda against the Cheque."

1. This very witness at page No.3 .in his cross-examination further deposed that:--

"It is incorrect to suggest that the plaintiff has intentionally manipulated forged cheque and exported the consignment immediately. It is incorrect to suggest that we have exported the consignment within one day's time. Voluntarily says that we had exported the consignment 7 days after receipt of the remittance". It is correct to suggest that the entire consignment was exported through one shipment. It is incorrect to suggest that we had sent the consignment immediately as it came to our knowledge that the DD has been dishonoured."

1. In light of above evidence it clear that the plaintiff have admitted that their company Five Star International exported Rice against the cheque and he said cheque against whom the payment was paid by the defendants, which later on proved to be forged/counterfeit'. The case of plaintiff is that the importers 'were unknown to them then whey on 21-8-1997 wrote a letter to the defendant No.2 to dispatch of shipping documents to the importers by courier service and this letter is (Exh.7/12) on record, which has not disputed by the plaintiff and in the said letter the address of the importers is also given.

2. It is also admitted fact that the shipments were made by the plaintiff after receiving the proceeds of DD deposited by them with defendant-Bank and the said DD was found later on to be forged and counterfeit, therefore, the plaintiff cannot be said that they are not clouded with the foreign importers/Uganda, accordingly issue is answered in affirmative.

Issue No.4

1. On this issue the contention of the learned counsel for the plaintiff is that the bank could not encash the plaintiff's NDRP certificate for recovering the amount in connection with another transactions.

2. In support of above contention he argued that FDR of US$ 315000.00 were fixed deposit for five years under NDRP-III Scheme with Ministry of Finance, Government of Pakistan through SBP. Fixed Deposit Receipt (FDR) was given to defendant to keep under lien against the Running Finance Limit of PKR 10 million. He also draws in this regard the attention of this Court on a letter written by the plaintiff to defendant giving specific authority of encashment of F.D.R. (Exh.5/76). He also draws the attention on agreed Terms and Conditions of plaintiff with defendant (Exh.5/77) and according to him the above two exhibits clearly shows that encashment can be made only against Running Finance. The defendant-had no authority to encash the F.D.R. before 2 years of its maturity and had no authority to encash against disputed amounts which had no link with Running Finance account and the encashment in this case is also against the established Banking practice and it could have been only encashed after 5 years when F.D.R. value on maturity was double of the amount of defendant's so-called claim, hence no risk of defendant in any case was involved and he lastly argued that however, if the' plaintiff (depositor) requests for encashment before five (5) years, only then it can be encashed and he referred the evidence of defendant's Manager Mr. Javaid Haider who admitted during the cross-examination that they themselves had debited the plaintiff's account.

3. On the other hand the learned counsel for the defendant by referring the case of plaintiff argued that they were running Finance Account bearing No.007117-6, which was debited on 29-12-1999 and so also plaintiff's US $ account NDRP-III Scheme of US$ 315000.00 was encashed without permission of the plaintiff by debiting the amount in running finance account. He also referred the contention of defendants by referring para.18 of written statement that defendants categorically stated that the plaintiff was granted a running finance facility of Rs.10 million against NDRP-III Scheme as well as the same was secured for other transactions being under lien. It is admitted fact that the plaintiff was served letters, notices for encashment of US $ account for adjustment of outstanding liabilities.

4. The learned counsel referred the examination-in-chief of the plaintiff where the plaintiff produced the authority letter Exh.5/76, which clearly mentioned that a lien has been created in respect of NDRP-III Scheme against running finance availed by the plaintiff, as such it is crystal clear that in respect of outstanding liabilities in running finance facility the plaintiff created security of NDRP-III Scheme and this fact is admitted by the plaintiff in his evidence. The learned counsel further argued that the amount was debited in running finance account in terms of State Bank of Pakistan Circular No. SBP/FE Cir-2/97 that in case of outstanding balance in the said facility the lien on deposit NDRP-III was encashed and as such no illegality has been committed by the defendants. He also referred Exh.7/13, which is the letter through which the plaintiff was informed and requested to adjust outstanding liabilities otherwise the same shall be recovered/adjusted in due course of time.

5. The above said letter has not been denied by the plaintiff as such the defendant acted in the process of law for adjustment of outstanding liabilities due and payable by the plaintiff and in this regard the learned counsel placed reliance in 2002 CLD 495.

6. In light of the above contention let see the evidence of plaintiff whereby he admitted that "I see term deposit receipt dated 15-4-1997 and it is correct to suggest that a lien has been recorded in respect of the said receipt against running finance. I produce receipt as Exh.5/74.

7. The plaintiff has further admitted that "It is correct to suggest that on the receipt it is not mentioned that the lien hay been created in respect of running finance (last page of cross-examination dated 14-10-2003).

8. The Exh.7/13, which is letter of defendants addressed to the plaintiff Chief Executive whereby they were requested to clear up to date outstanding liabilities along with up-to-date mark up and other charges within seven days from the receipt of the letter otherwise as per instruction of their Head Office they will have no alternate except to encash securities (under our lien) and adjust the same accordingly, and the amount of interest paid on NDRP-III will be recovered/adjusted in terms of SBP/FE Cir.No.2/97, which will be adjusted in due course of time.

9. In light of the letter the plaintiff cannot say that the defendants have encashed the security arbitrarily. There is another letter from the defendant to the plaintiff Exh. 7/14, which is also in respect of "Removal of our lien on finalization of case under FER 45/99 Regarding repatriation of outstanding Export Proceeds under Form E No.248765 for US $ 79988 to account five Star International".

10. It is also not denied that defendant after encashment of security adjusted the outstanding liabilities in the account of plaintiff and for balance amount they issued demand draft, which is Exh.7/15 on record and the said demand draft, which was accepted by the plaintiff then under the order of High Court of Sindh the demand draft was received by the plaintiff's representative.

11. In light of the above discussion the defendants National Bank of Pakistan were justified to encash the plaintiff's NDRP certificate to recover the amount as it was lying as lien with them as the plaintiff has failed to pay/adjust the liabilities in respect of proceeds of counterfeit cheque and difference of DD and TT buying rates, which were debited in the account of plaintiff. This issue is accordingly answered.

Issue No.5

1. On this issue learned counsel for the plaintiff argued that the plaintiff is victim of the serious conspiracy and mala fide actions of the defendants most probably under the influence of Rice Exporters/Competitors, resulting plaintiff's doing "Zero" business since 1997 whereas before that plaintiff was in top tens of the Rice Exporters of Pakistan with Rupees one billion turnover per annum and he referred the Annexures "R/21" and "R/23" of the Replication filed by the plaintiff and also income tax paid challans, before 1997 and after 1997. He further argued that besides the plaintiff losses to the tune of PKR 75 Millions per annum and our country have also suffered US dollars 25 million per annum being loss of valuable foreign exchange plus loss of income tax in, Millions of Pak Rupees per annum and the country has lost the potential Irani Buyer.

2. The learned counsel further argued that in pursuant of appreciation certificates issued by the National Bank of Pakistan and importers (Exh.5/69) the plaintiff's credibility is proved in local as well as abroad hence entitled for damages as claimed, as the business/profit and image of the plaintiff has been damaged/smashed by the defendants. He further contended that the claim of the damages has been narrated in last paragraph of examination-in-chief of the plaintiff's witness, which was not crashed/questioned/objected and/or rebutted through cross-examination and in pursuance of Articles 132 and 133 of Qanun-e-Shahadat Order, 1984 placed reliance on PLD 1995 Kar. 388, PLD 2004 Peshawar 104. He further argued that against one shipment, payment was credited in plaintiff's account on 3-3-1996 instead of on 29-2-1996 as per credit advice issued by the defendants as well as the cheque of about PKR 120 Millions were dishonoured and created bad reputation and damaged the credibility of the plaintiff and the plaintiff is entitled for damages as claimed and he lastly contended that the plaintiff's witness who has deposed in examination--in-chief about the illegal act of the defendants the plaintiff's good-will badly affected in Iran and the letters of credit were also returned and unutilized.

3. On the other hand the learned counsel for the defendants referred paca.28 of plaint that the plaintiff has given details for financial losses and claimed following amounts by way of damages:

(a) Loss of export of US $ 25 Million per annum. The plaintiff suffered loss of Rs.300 Million estimated upon shipment and calculated at 7% profit.

(b) Loss of goodwill in the local as well as foreign market and' prompt service record being Rs.10 Million.

(c) Mental torture Rs.300 Million.

(d) Litigation cost Rs.1 Million.

1. He further argued that admittedly the plaintiff is a Registered Private Limited Company, registered under the Companies Ordinance having an independent character and status than that the natural person being artificial and juristic person, therefore, the plaintiff cannot claim for mental torture. He further argued that it is a settled principle of law that claim in tort particularly damages for mental torture could be claimed by only natural person and not by the artificial person like the plaintiff. He further argued that the plaintiff did not bother to bring on record any resolution of company whereby some authorization have been extended to one Mr. Mazhar Mossvi to present, sign and verify the plaint and get the evidence in the instant case. It is a crystal clear principle of law that the liability of Directors is limited and a company cannot claim damages for mental torture for one or each Director of the Company or even of its Chief Executive.

2. Learned counsel further contended that the plaintiff miserably failed to prove any loss of business attributed to the defendants act. The plaintiff is a Registered Private Limited Company for the purpose of export and dealing only for the export of the rice. It is a common principle of export business that the same is based upon export orders from the international market and the plaintiff failed to prove that any export order has been recalled or the plaintiff quotations for the international supply have been rejected by the foreign buyers due to the reason that their credibility has been shaken by the defendants as alleged and he referred para.12 of the plaint.

3. He further argued that the plaintiff claims loss of business on the basis of presumption and conjectures which, cannot be granted. According to him the plaintiff either innocent enough to deal in international market or withheld with obvious reasons the necessary evidence in order to prove the damages for loss of business and he referred letter of plaintiff addressed to the bank not to debit any amount in its Running Finance facility until and unless finalization of export orders. The plaintiff never informed the defendants of having any export order. He further argued that the plaintiff produced the documents as Exhs.5/52 to 5/55, 5/1 to 5/11 and Exh.5/69 but none of these Exhibits show any loss in the export business. Income tax deduction in export business would not become basic of establishing loss of business as tax deduction is possible only when the goods have been shipped after fulfilling export orders.

4. He further referred the letter of plaintiff dated 17-1-1996 addressed to the defendant, which is Exh.5/53 on record, whereby he requested the defendants to treat the L.C/C No.63404/74202121 for US$ 6480000.00 as cancelled for the reason that the same was not extended by the foreign buyers without assigning any reasons. The learned counsel further argued that it is pertinent to note that the said L/C was cancelled during the period when the plaintiff has no dispute in any way with the defendants. According to learned counsel it is settled principle of international trade that in case the L/C. is not extended by the opening Bank reasons are required to be given in writing which the plaintiff withheld with obvious reason, therefore, under Article 129(g) of Qanun­e-Shahadat Order, 1984, the presumption stood against the plaintiff as "if the evidence which could be and is not produced it would go against the person who hold it".

5. The learned counsel further argued that the plaintiff being a Registered Private Limited Company is bound to maintain and keep all the registers of accounts books to maintain and furnish balance sheet duly prepared by the authorized auditor but the plaintiff deliberately with obvious reasons withheld the auditors report and balance sheet along with the, plaint to show the losses and he referred the examination-in-­chief in the above respect.

6. The learned counsel further argued that the plaintiff in para. 27 of the plaint make some scandalous allegations against the defendants but failed to prove anyone of them. The plaintiff for his own accord move against the name and reputation of the defendants through different modes which are available and the same are nothing to do with the banking transaction. The damages for loss of goodwill and name could be claimed against the person who is responsible for the communication of the same to the public. The defendants not on a single point of time made complaint against the plaintiff but it was the plaintiff who himself initiate and become source of communication with different agencies on false and frivolous grounds.

7. The learned counsel lastly argued that the plaintiff has not suffered any loss in the business as alleged and is not entitled to grant of prayer.

8. In light of above contention of the parties' advocates in order to see whether the plaintiff has suffered the financial losses and entitled for damages details of which already given in the above foregoing paragraph.

9. Damages are usually considered under two heads viz. general or non-pecuniary loss or damages, that is physical injury, pain and suffering, impaired capacity for the enjoyment of life or lessened capacity and special or pecuniary damages that are actual, incidental and direct expense, capable of calculation in terms of monetary value may it be on account of medical treatment, loss in business profit earning or otherwise, in an action for damages either general or special, burden to prove is always on the plaintiff. In absence of authentic oral and documentary supporting evidence, mere statement of party is not sufficient to establish amount of damages allegedly suffered by him. A person claiming special damages must prove each item of his loss on the basis of evidence. Where a person claims special damages then it is incumbent upon him to show as to under which head of account and how such damages have been sustained. In absence of such proof, special damages cannot be allowed. Reliance is placed on authority of 1992 CLC 1561 (Kar.) relevant page 1566(B). Even otherwise it is held by superior Courts that a Private Limited Company cannot sue for damages of its feelings like mental torture.

10. The contention of plaintiff is that he suffere3 loss and not receiving the export order of International market but he failed miserably to prove any loss of business attributed to the defendants act. On the contrary the plaintiff mentioned in para.12 of the plaint as under: ---

"That regarding one shipment to Uganda, the plaintiff received Fax No.00256-41-241969 dated 16-7-1997 from Messrs MNT Importers and Distributors of General Merchandise Kampala, Uganda for supply of rice (15% broken) for equivalent to US $ 90,000 and the plaintiff vide fax message dated 21-7-1997 regretted the supply required (15% broken) rice as it was not available and informed them to wait till next crop which will start after three months".

1. The contention of plaintiff regarding not receiving the order of the export of Rice due to that he suffered the loss, is based on the presumption otherwise no such evidence is brought on record and it is established principle that damages for loss of business could be claimed only for the business in hand and not the business in smoke or even in pipeline. To this regard the plaintiff also wrote a letter which is dated 17-11-1996 for cancellation of the letter of credits to the defendants, which is Exh.5/53 wherein mentioned that the letter of credit for US $ 6480000.00 as cancelled for the reason that the same was not extended by the foreign buyers without assigning any reasons and it has been rightly argued by the learned counsel for the defendant that the said L.Cs. was cancelled during the period when the plaintiff has no dispute in any way with the defendant.

2. The plaintiff being Regi3tered Private Limited Company is bound to maintain and keep all the registers of accounts, books to maintain and furnish balance sheet duly prepared by the authorized auditor and admittedly such books or balance sheet prepared by the authorized auditor has not been brought on record for establishing the all claims of the damages due to the transaction in question with the bank. In this regard the plaintiff's witness himself in cross-examination admitted that:--

"I see statement, which I have filed to show my damages and it is correct to suggest that the same does not bear my signature or the signature of any auditor or chartered accountant. It is correct to suggest that I have not given details in the balance sheets of the companies about which I have mentioned in the statement. It is correct to suggest that I have not produced any balance sheet along with the said statement."

1. In order to establish the damages the plaintiff has not produced a single document in evidence showing any expenses incurred to the tune of Rs.10 million for litigation charges. The plaintiff did not file any balance sheet being a registered company showing the expenses incurred during all the financial years or to show the losses in the business in all those years and as such the plaintiff's claim in respect of damages is wholly baseless.

2. The contention of the plaintiff is that he produced Income Tax Return and appreciation certificates of which no cross-examination is conducted, therefore, the same is be taken against the defendant in respect of the damages, It is settled principle of law that mere not cross-examining on material facts does not ipso facto constitute the establishment of the fact. The plaintiff is supposed to stand on his own legs and not on the weakness of other side. Without the discharging the burden of proof of any specified fact, the other side could not be presumed to have admitted the facts. Omission to cross-examine a witness on specific point which, however, was rebutted by making suggestions and denying the same in evidence by the defendant. Over all impression of entire evidence was that omission pointed out by the plaintiff would not amount to acceptance of his pleas. Same principle has been time and again got assent by this Court so also by the apex Courts. Reliance place in following judgment:--

(1) 2000 CLC 215 (2) 1991 SCMR 2300.

1. In light of the above discussion and findings on the Issues Nos. 1 to 4 the plaintiff is - not entitled for the damages claim. This issue accordingly answered.

Issue No.6

2008 C L C 1005

[Karachi]

Before Khalid Ali Z. Qazi, J

AYAZ MAHMOOD SETHI through Attorney----Decree-holder

Versus

ISLAMIC ESTATE AND BUILDERS LIMITED and another----Judgment-debtors

Execution Application No.88 of 2006, decided on 17th April, 2008.

Civil Procedure Code (V of 1908)---

----S. 47, O.XXI, Rr.10, 23-A & 34---Application for execution of decree---Objection to---Judgment-debtor had filed objection to execution proceedings---Filing of suit by the judgment-debtor against Government, had no bearing on execution proceedings which were independent and had no nexus with the issues involved in the suit---Suit was decreed on 10-3-1988 and filing of objections by the judgment-debtor at such a belated stage was an effort to linger on the matter and frustrate the execution proceedings in order to deprive decree-holder from suit plot---High Court appeal filed by the judgment-debtor against the judgment and decree had already been dismissed by a Division Bench of High Court and no further remedy by approaching the Supreme Court had been availed by the judgment-debtor---Execution application was allowed as prayed, by the High Court.

Izhar Alam Farooqui for Decree-holder.

Khalilur Rehman for Judgment-debtors.

2008 C L C 1016

[Karachi]

Before Khawaja Naveed Ahmed, J

Major INAYATULLAH through Lawful Attorney----Appellant

Versus

Major (Retd) MUHAMMAD NAZIR and 2 others----Respondents

Second Appeal No.14 of 2007, decided on 10th April, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.17(2), 117 & 120---Sale agreement---Onus to prove---Concurrent findings of facts by the courts below---Plaintiff claimed to be the owner of suit plot and alleged that defendant had fraudulently got transfer the suit plot to himself---Conversely defendant contended that plaintiff received complete sale consideration and executed transfer documents---Trial Court as well as Appellate Court dismissed the suit and appeal respectively, filed by plaintiff---Plea raised by plaintiff was that sale agreement was not attested by two witnesses and could not be relied upon by the courts below---Validity---Plaintiff had failed to prove his allegation against defendant through evidence, so much so that the main witness of plaintiff in his evidence affirmed the stand taken by defendant---Judgments of the courts below were neither based on misreading of evidence nor were fanciful---Sale agreement was not a financial document and as such provisions of Art.17(2) of Qanun-e-Shahadat, 1984, were not attracted---High Court, in exercise of appellate jurisdiction under S.100, C.P.C. declined to interfere with the concurrent judgments and decrees passed by two courts below---Second appeal was dismissed in circumstances.

Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Qamaruddin v. Province of Sindh 2002 CLC 825; Shakil Ahmad v. Hamid Hassan PLD 1968 Kar. 365; Muhammad Yaqoob v. Naseer Hussain PLD 1995 Lah. 395; Anwar Begum v. Muhammad Siddique 1991 MLD 1182; Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089; Iftikhar v. Khadim Hussain PLD 2002 SC 607; Rabia Bibi v. Alam Bibi PLD 1987 (AJ&K) 79; Municipal Committee, Bannu v. Munawar Khan PLD 1982 Pesh. 61; Alamdar Hussain v. Nazir Hussain 2004 SCMR 595; Lal Khan v. Iftikhar Ahmad PLD 2004 SC 894; Muhammad Sharif v. Cantonment Board 1994 MLD 2442; Umar Din v. Ghazanfar Ali 1991 SCMR 1816; Muhammad Sharif v. Mst. Sardaran Bibi 2002 MLD 1002; Muhammad Shafiq Hussain v. Samir Manzoor Khokhar 2003 CLC 1652; Abdul Sattar v. Bashir Ahmed 2004 CLC 370; Muhammad Feroze v. Muhammad Jamaat Ali 2006 SCMR 1304; Muhammad Khan v. Rasul Bibi PLD 2003 SC 676; Muhammad Anwar v. Muhamri ad Siddiq Hashim PLD 1992 SC 838; Qamarun Nishan v. Muhammad timer 1996 CLC 1019; Masroor Ali Khan v. Sarfraz Ahmed 2004 YLR 1928; Imam Din v. Abdul Habib Khan 1988 CLC 224; Federation of Pakistan v. Jamaluddin 1996 SCMR 727; 1989 SCMR 37; Abdul Rahim Sethi, v. Federation of Pakistan 20002 SCMR 1197; Emirates Airlines v. Haroon Ahmed PLD 2006 Kar. 126; Tahir Saeed Effendi v. Chairman, Securities and Exchange Commission of Pakistan 2007 YLR 122 and Zeba v. Member-III, Board of Revenue 1986 CLC 233 ref.

Ali Sher Habibani for Appellant.

Mushtaq Ahmed Memon for Respondent No.1.

2008 C L C 1043

[Karachi]

Before Arshad Noor Khan, J

IMRAN KHAN and 4 others----Plaintiffs

Versus

AFTAB KHAN and 2 others----Defendants

Suit No.545 of 2002, decided on 30th April, 2008.

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

----Art. 133---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Claim of the plaintiff remained uncontroverted by defendant---Evidence led by the plaintiff as well as the plaint having remained uncontroverted in affidavit-in-evidence of defendant, as such, same tantamount to acceptance of whole claim of the plaintiff by defendant in view of Art.133, Qanun-e-Shahadat, 1984---Assertion made by the witness in examination-in-chief not controverted in cross-examination or where the fact stated by one party remained unchallenged in cross-examination, the same amounted to admission on the part of the other party.

Mst. Farooq Bibi v. Abdul Khaliq 1999 CLC 1358; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1990 CLC 671 and Muhammad Akhtar v. Manna and others 2001 SCMR 1700 ref.

Zain Jatoi for Plaintiffs.

Zahid Marghoob for Defendant No. 1.

Date of hearing: 15th April, 2008.

2008 C L C 1057

[Karachi]

Before Khalid Ali Z. Qazi, J

JAVEDAN CEMENT LIMITED through Chief Operating Officer----Plaintiff

Versus

PROVINCE OF SINDH through Member, Land Utilization Department, Board of Revenue and 3 others----Respondents

Suit No. Nil of 2007, decided on 5th May, 2008.

Civil Procedure Code (V of 1908)---

----O. XXIX, R.1---Signing and verification of pleadings---Suit by or against corporation/company---Non-signing of plaint by person authorized is only an irregularity and not an illegality so as to non-suit the plaintiff---Such omission can be rectified at any time---Rule 1 of O.XXIX, C.P.C. provides that in suits by or against company/corporation pleadings may be signed and verified on behalf of corporation/company by the Secretary or by any Director or other principal officer of the corporation, who is able to depose to the facts of the case---Suit in the name of company may be signed and verified by its Manager.

1982 CLC 1276 and 1988 CLC 1381 fol.

PLD 1960 Lah. 1179; 1992 CLC 1480; 2001 AC 507; 1994 SCMR 826; 2003 SCMR 83 and 1982 CLC 1276 ref.

Nisar A. Mujahid for Plaintiff.

Ahmed Pirzada,. A.A.-G. Sindh for Defendants Nos. 1 to 7.

Khalil-ur-Rehman for Defendants Nos.11 and 12.

Nemo for other Defendants.

2008 C L C 1071

[Karachi]

Before Arshad Noor Khan, J

KHUDA BUX through L.Rs.----Petitioners

Versus

MUHAMMAD IQBAL and 2 others----Respondents

Constitutional Petition No.240 of 2005, decided on 30th April, 2008.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.133---Ejectment of tenant was sought on the ground of bona fide personal need of landlord and allegation of impairing the value and utility of property by the tenant---Assertion made by witness in examination-in-chief having not been controverted or challenged in cross-examination, would be deemed to have been accepted by the opposite party, in view of Art.133, Qanun-e-Shahadat, 1984.

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

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord and allegation of impairing the utility and value of premises by tenant---Shop in possession of the tenant admittedly was rented out to tenant in the year 1980 for manufacturing the sweets, as such the intention of landlord was to rent out the shop for the purpose of preparing the sweets by the tenant and for such purpose, naturally sui gas burners were to be used by the tenant---Apart from the said use of burners, no evidence had been brought on record to prove the major impairment of utility and value of the shop in question---Sufficient evidence, in circumstances, was not available on record to grant the ejectment of the tenant on that score and findings of the lower Court were reversed by the High Court---Constitutional petition by the tenant was dismissed in circumstances.

Mehmood Hassan for Petitioners.

Badrul Alam for Respondent No.1.

2008 C L C 1081

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Mst. SADIA MATEEN----Petitioner

Versus

JAMIYAT PUNJABI SAUDAGARAN-E-DELHI and others----Respondents

Constitutional Petitions Nos.130 to 132 of 2007, decided on 3rd March, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional' petition---Fair rent, fixation of---Factors to be considered by the Rent Controller---For determining the fair rent, it is the duty of Rent Controller to see the rent of similar premises situated in similar circumstances in same or adjoining locality; the rise in cost of construction and repair charges; the imposition of taxes and the annual value of the premises as enumerated in S.8, Sindh Rented Premises Ordinance, 1979 and for that purpose appraisal of evidence was required---Where the orders passed by the courts below fixing fair rent were not found to be wholly perverse, arbitrary, based on misreading of evidence and resulting in absolute miscarriage of justice, High Court declined to interfere with the same in exercise of its constitutional jurisdiction under Art.199 of the Constitution.

Tanveer Ahmed for Petitioner.

Zahid Hussain for Respondent.

2008 C L C 1087

[Karachi]

Before Agha Rafiq Ahmed Khan, J

Mst. FAUZIA IRFAN----Petitioner

Versus

Mst. SABEEHA ISHRAT and 2 others----Respondents

Constitutional Petition No.S-473 of 2007, decided on 1st April, 2008.

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

----Ss. 15(2)(ii)(vii), 16(1)(2) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and personal bona fide need---Non-compliance of tentative rent order---Striking off defence---Tenant filed written statement and also filed application under S.16(1) of Sindh Rented Premises Ordinance, 1979---Rent Controller accepting said application passed tentative rent order directing tenant to deposit arrears of rent and also future rent---Tenant having failed to deposit the arrears, according to tentative rent order, landlord filed application under S.16(2) before Rent Controller for striking off defence of tenant for non-compliance of tentative rent order, which was allowed and defence of tentative rent order was struck off---Validity---Under S.16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller had to make summary enquiry and pass tentative order directing the tenant to deposit arrears of rent as well as future rent---Tenant had failed to comply with tentative rent order, no illegality or irregularity was found in both the, orders---Impugned orders were not passed without jurisdiction---Order passed by the Rent Controller being tentative in nature no evidence was required to be recorded for deciding the pleas taken by the tenant---In absence of any ground to interfere with the orders of the courts below in exercise of constitutional jurisdiction, petition was dismissed.

Sathi M. Ishaque for Petitioner.

2008 C L C 1094

[Karachi]

Before Khalid Ali Z. Qazi, J

AMIR HAMEED and another----Plaintiffs

Versus

Messrs ALLOO AND MINOCHER DINSHAW CHARITABLE TRUST through Trustee and 2 others----Defendants

Suit No. Nil of 2006, decided on 9th April, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Filing of suit---Maintainability---Office objection---Scope---At the time of filing of the suit, office had raised ten different objections which included locus standi of plaintiff to file the suit, cause of action, fixation of court-fee etc.---Effect---Important questions were raised in the plaint having far reaching consequences in their nature and impact on community as a whole---All contentions required deeper appreciation of evidence which could properly be thrashed out at the time of trial---High Court directed the office to assign number of the suit---Office objections were overruled accordingly.

Faizuddin for Plaintiffs.

Zafar Iqbal Dutt for Defendants Nos.2 and 3, Ahmed Pirzada, A.A.-G., Iqbal Memon for K.B.C.A. Thawar Ali Khan for C.D.G.K. for Defendants.

2008 C L C 1129

[Karachi]

Before Nadeem Azhar Siddiqi, J

IBRAHEEM KHAN and 2 others---Plaintiffs

Versus

ABUL MOHSIN and 4 others----Defend

Suit No. Nil of 2007, decided on 10th March, 2008.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration, permanent injunction and damages---Plea of fraud and misrepresentation---Main prayer of the plaintiffs was for declaration to the effect that mortgage deed executed by defendant in favour of the Bank on basis of unregistered power of attorney was illegal and void---Plaintiffs had claimed that the power of attorney executed by plaintiffs, in favour of defendant was cancelled and the mortgage deed was executed after cancellation of said power of attorney---Plaintiffs had also filed application under S.12(2), C.P.C. before Banking Court for setting aside judgment in earlier suit filed by Bank and plaintiffs and other defendants on the plea that property was mortgaged in collusion with the staff of the Bank---Plaintiffs by the present suit had indirectly challenged the mortgage deed as well as the judgment passed by Banking Court in suit filed by Bank---Plaintiffs in their, suit could not challenge the mortgage deed as well the decree passed by the Banking Court as no court other than a Banking Court could exercise any jurisdiction with respect to any matter to which jurisdiction of a Banking Court extended under Financial Institutions (Recovery of Finances) Ordinance, 2001---Loan was obtained in the name of the plaintiffs by using the power of attorney executed by them, execution of which had not been disputed by the plaintiffs---Application already filed by plaintiffs under S.12(2), C.P.C. was pending before the Banking Court and in that proceedings question that whether the power of attorney was cancelled and thereafter loan was obtained, could be thrashed out---Judgment and decree could not be challenged by way of separate suit and could only be challenged by filing application under S.12(2), C.P.C.---Plaint was returned to the plaintiffs and in case the Banking Court found that said court had no jurisdiction to entertain application under S.12(2), C.P.C., plaintiffs could file a suit in the High Court.

Muhammad Nawaid Qureshi for Plaintiffs.

2008 C L C 1319

[Karachi]

Before Arshad Noor Khan, J

ARSHAD SALEEM----Applicant

Versus

CIVIL AVIATION AUTHORITY through Airport Manager, Karachi and another----Respondents

Judicial Miscellaneous No.30 of 2007 in Suit No.879 of 2003 and Execution No.46 of 2007, decided on 5th May, 2008.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.V, R.10-A---Application under S.12(2), C.P.C. praying for recalling of the judgment and decree recorded in the suit, on the ground that the decree had been obtained by misrepresentation and fraud by the decree-holder---Validity--..Neither address of the applicant was wrongly mentioned in the main suit, as alleged, nor the decree-holder concealed any material fact against the applicants in obtaining decree so as to say that decree-holder had committed misrepresentation and fraud in obtaining such decree nor the applicant had alleged any specific illustration of misrepresentation and fraud statedly committed by the decree-holder in obtaining decree in the main suit---Applicant was properly served and he himself chose to remain absent from the proceedings, as such the decree-holder could not be held responsible for any illegal act in obtaining the decree---Principles---Application under S.12(2), C.P.C. was dismissed in circumstances.

Nasir Hussain Jaffery for Applicant.

Sanaullah Qamar for Respondent No.1.

2008 C L C 1334

[Karachi]

Before Nadeem Azhar Siddiqi, J

IQBAL PAREKH and 4 others----Plaintiffs

Versus

KARACHI BUILDING CONTROL AUTHORITY (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.), Karachi and 4 others----Defendants

Suit No.525 of 2004, decided on 8th May, 2008.

Civil Procedure Code (V of 1908)---

----O. XVI, R.1---Non-filing of list of witnesses by a party within seven days of framing of issues---Effect---Such party could not ask for issuance of summons to a witness except with permission of court, but would have right to produce witness in court on his own---When witness had come to court voluntarily for recording his evidence and was present there, then court could not refuse to examine him---Principles.

Ahmed Khan v. Naseer Ahmed and 3 others 1999 SCMR 803 ref.

Mst. Mussarat Bibi v. Tariq Muhammad Tariq 1999 SCMR 799 and Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495 rel.

Nemo for Plaintiffs.

Muhammad Iqbal Memon for Defendant No.1.

Muhammad Ahmed Pirzada, Addl. A.-G., Sindh for Defendant No.3.

Haider Imam Rizvi for Defendants Nos.4 and 5.

Nemo for Defendant No.2.

Date of hearing: 5th May, 2008.

2008 C L C 1358

[Karachi]

Before Azizullah M. Memon, Actg. C.J. and Khalid Ali Z. Qazi, J

FEROZUDDIN RIAZ----Petitioner

Versus

PROVINCE OF SINDH through Secretary/Member Government of Sindh Board of Revenue (Land Utilization) Department, Karachi and 7 others----Respondents

Constitutional Petition No.306 Miscellaneous No.1159 of 2007 and Miscellaneous No.231 of 2008, decided on 23rd May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had claimed that he having purchased the land in dispute from its previous owner, he was entitled to remain in possession of the same; and that respondents were legally duty bound to provide cover to his said possession---Respondents had disputed the claim of ownership of the petitioner over the said land---Validity---Wherever disputed facts were involved in the case, constitutional petition under Art. 199 of the Constitution, could not be entertained as inquiry was not permitted to be carried out to resolve such disputed questions of fact---Constitutional petition was dismissed.

Atiqur Rehman Massan for Petitioner.

Ghulam Rasool Mangi for Intervenor.

Mushtaq Ahmed Abbasi, Asstt. A.-G.

2008 C L C 1366

[Karachi]

Before Nadeem Azhar Siddiqi, J

Dr. Syed HASSAN ALI through Attorney----Plaintiff

Versus

Mst. TAZEEN ZAHRA and another----Defendants

Suit No.1165 of 2006, decided on 15th May, 2008.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, permanent injunction, possession and damages---Main prayer of the plaintiff was in respect of a plot---Since plaintiff was claiming right in the property, said suit could not be summarily dismissed---Question whether the plaintiff was rightly or wrongly claiming the right in the property, could also not be adjudicated without providing opportunity to the parties to lead evidence in support of their respective claims---Order accordingly.

S. Muhammad Kazim for Plaintiff.

Nasir Abbas for Defendant No.2.

Nemo for Defendant No.1.

2008 C L C 1373

[Karachi]

Before Arshad Noor Khan, J

PRECIOUS INDUSTRIAL PARK (PRIVATE) LIMITED through Director and duly constituted Attorney----Applicant

Versus

PROVINCE OF SINDH and 4 others----Respondents

C.M.As. Nos.6522 and 6523 in Suit No.870 of 2008, decided on 30th June, 2008.

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

----Ss. 24 & 10(2)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54-Suit for declaration and injunction with application under O.XXXIX, Rr.1 & 2, C.P.C.---Allotment of government land to the plaintiff under S.10(2) of the Colonization of Government Lands (Punjab) Act, 1912---Plaintiff as per its admission apprehended that the authorities will resume the land which showed that the suit had been filed by the plaintiff merely on the basis of surmises and conjectures and so far no action had been initiated by the authorities to resume the said land, as such the suit seemed to have been based on assumption, presumption, and apprehension---Assumption or presumption, howsoever strong might be, could not be the basis for filing the suit before the Court, nor the Court could entertain such suit which was purely based on surmises and conjectures---Record did not show that subsequent act based on the minutes of the Scrutiny Committee bound the authorities not to take any action against the plaintiff; no restriction or clog could be put on the powers of the government, not to take lawful action in the allotment of land, if grave illegalities were apparent in the process of allotment of government land in view of S.24, Colonization of Government Lands (Punjab) Act, 1912---All such circumstances, therefore, did not constitute a very good prima facie case in favour of plaintiff nor the plaintiff would suffer irreparable loss, in case the injunction was refused---Injunction was refused in circumstances.

1999 CLC 1173; 1976 SCMR 393 and 1990 MLD 2230 distinguished.

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

----O. VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 54---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.24 & 10(2)---Suit for declaration and injunction---Rejection of plaint---Allotment of government land to the plaintiff---Admission of the plaintiff that defendants/authorities had not issued any notice for cancellation of the allotment of land and the plaintiff apprehended that the allotment would be resumed by the authorities clearly showed that the plaintiff had filed suit on the basis of assumption, apprehension, presumption, surmises and conjectures---Apprehension and presumption, how strong might be, Court could not accept the same to maintain the suit---Suit of the plaintiff was, therefore, not maintainable on this score and being premature, the plaint was rejected.

M. Naimur Rehman for Plaintiff.

Munir-ur-Rehman for Defendant No.2.

Nemo for remaining Defendants.

2008 C L C 1398

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD ASHRAF and another----Plaintiffs

Versus

Mst. KOKAB BENAZIR FATIMA and 2 others----Respondents

Civil suit No.455 of 2007, decided on 30th June, 2008.

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

----O. VII, R.11---Rejection of plaint---Principles---Held, for the purpose of rejection of plaint, the Court has to look into the averments contained in the plaint and its supporting documents and if from the contents of the plaint, it appears that the suit is to be barred by any law or the plaintiff has no cause of action to file the suit or the proper court fee has not been paid, in spite of direction from the Court, the Court can reject the plaint under O.VII, R.II, C.P.C.

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

----Ss. 12, 25 & 54---Civil Procedure Code (V of 1908), O. VII, R.II---Suit for specific performance of agreement, perpetual injunction and special damages---Rejection of plaint---Assertions of the plaintiffs in the plaint itself showed that at the time of execution of alleged sale agreement, the plaintiff himself was not sure that the suit property was clear and defendant was invested with all the lawful powers to convey the suit property to him---Plaintiff, himself having committed mistake by failing to make it clear as to whether the defendant was invested with the powers to convey the suit property to him or not, he himself was to be blamed and no one else---Defendant, in the present case, was not competent to execute agreement regarding shares of other defendants in the suit property nor he was invested with any power by other defendants to act on their behalf and dispose of their shares in the suit property--Suit in circumstances could not succeed---Application for rejection of plaint under O.VII, R.II, C.P.C. was allowed and plaint was rejected.

Muhammad Sohrab Khan v. Mumtaz Begum PLD 2005 Kar. 280 fol.

1992 CLC 1036; 1994 MLD 874; 2005 CLC 671; 2004 CLC 1339; 2004 SCMR 826; PLD 1987 Kar. 676; 1987 MLD 669; 2000 YLR 2606; 2005 CLC 848; 1998 CLC 563; 1997 CLC 742; 2003 CLD 1185; 2003 YLR 943 and PLD 1993 Lah. 183 distinguished.

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

----S. 25---Agreement to sell---Seller must be in knowledge that he possesses good title to dispose of the property and unless the title of the property devolves on him or he has been invested with specific powers by the real owner to convey the said property, he cannot dispose of the same---Principles.

Section 25 of the Specific Relief Act postulates that a contract for the sale or letting off property whether movable or immovable, cannot be specifically enforced in favour of a vendor or lessor, who knowing himself not to have any title to the property, has contracted to sell or let the same to other or that though he entered into the contract believing that he had a good title to the property cannot, at the time fixed by the parties or by the Court for the completion of. the sale or letting give the purchaser or lessee a title free from reasonable doubt, or who, previous to entering into the contract, has made a settlement though not founded on any valuable consideration, of the subject matter of the contract.

The scope of section 25 of the Specific Relief Act is very narrow which provides that the seller must be in knowledge that he possesses good title to dispose of the property and unless the title of the property devolves on him or he has been invested with specific powers to convey the said property, he cannot dispose of the property without proper title of the property in question.

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

----S. 55---Specific Relief Act (I of 1877), Ss.12, 25 & 54---Suit for specific performance of agreement to sell, perpetual injunction and damages---Defendant, in the present case, being one of the legal heirs of the deceased owner of property was the shareholder and was not an undisputed and absolute owner of the suit property to convey the same to any other person nor, as per the circumstances, he possessed any power to act on behalf of other legal heirs of the deceased to dispose of the same to any other person---Defendant in present case, had entered into a sale agreement---Such sale agreement was voidable at the option of the other legal heirs in views of S.55, Contract Act, 1872---Other legal heirs having denied the execution of any power of attorney in favour of the defendant, nor the said power of attorney being in existence, the sale agreement was void so far as the rights of other legal heirs were concerned in the suit property.

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

---Ss. 12, 25 & 54---Suit for specific performance of agreement to sell property, perpetual injunction and damages---Plaintiff, himself, at the time of alleged execution of agreement, did not go through the power-of-­attorney allegedly executed by the other defendants in favour of the defendant, as such it could not be said that the single defendant was competent to execute the sale agreement---Execution of sale agreement by said single defendant in favour of the plaintiff was a personal act of the defendant for which remaining defendants could not be held responsible, and, in case, any harm had been caused to the plaintiff, single defendant solely could be held responsible for that, and not the remaining defendants---Claim of damages by the plaintiff carried no weight nor could he be awarded decree finally against the remaining defendants in circumstances.

1992 CLC 1036; 1994 MLD 874; 2005 CLC 671; 2004 CLC 1339; 2004 SCMR 826; PLD 1987 Kar. 676; 1987 MLD 669; 2000 YLR 2606; 2005 CLC 848; 1998 CLC 563; 1997 CLC 742; 2003 CLD 1185; 2003 YLR 943 and PLD 1993 Lah. 183 distinguished.

Abdul Wajid Wyne for Plaintiff.

S.M. Gharib Nawaz Daccawala for Defendant No.1.

2008 C L C 1415

[Karachi]

Before Bin Yamin, J

NAZAR HUSSAIN and another---Petitioners

Versus

1ST ADDITIONAL DISTRICT JUDGE, KARACHI (EAST) and 2 others---Respondents

Constitutional Petition No.S-86 of 2008, decided on 30th May, 2008.

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

----Art. 199---Constitutional petition---Non-reading and misreading of evidence---Scope---Merely saying that orders suffer from non-reading and misreading of evidence on record is not sufficient to create a ground for setting aside the order of lower courts.

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

----Ss. 15 & 16(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Striking of defence---Order for deposit of arrears of rent having not been complied with by tenants, Rent Controller, in exercise of jurisdiction under S.16(2) of Sindh Rented Premises Ordinance, 1979, struck off defence of tenants---Validity---Person, who did not obey order of court, had no right to remain present before the court and to contest the matter--When tenants failed to comply with the order, there was every justification with Rent Controller to strike off their defence and no exception could be taken to such order of Rent .Controller---Order passed by Lower Appellate Court was also in accordance with law---High Court, in exercise of constitutional jurisdiction, declined to interfere in the orders passed by both the courts below---Petition was dismissed in circumstances.

Ghulam Asghar Abbasi for Petitioners.

Muhammad Arshad Tariq for Respondent No.3.

2008 C L C 1430

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

Malik PERVEZ JADOON----Appellant

Versus

MUHAMMAD YAQOOB and 4 others----Respondents

H.C.A. No.101 of 2006, decided on 6th February, 2007.

Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court appeal---Main grievance of appellant was regarding the observations of the Single Judge contained in the impugned order which, according to the appellant, were being misinterpreted and misapplied by respondent for dislodging the appellant from the land in his possession without waiting for the decision of his pending claim for regularization of his possession---Validity---Grievance of the appellant as regards the impugned order would be redressed, if his appeal was disposed of with the observation that respondents would act strictly in accordance with law for removal of encroachment, if any made by the appellant without being influenced by the direction/observations contained in the impugned order---Leaving aside such action, appellant as well as respondents could pursue their respective claims in respect of disputed piece of land before the concerned Authorities or to follow any other legal course available with them in that regard.

M.M. Aqil Awan for Appellant.

Anwar Muhammad Siddiqui for Respondents Nos. 1 and 2.

Raja Sikandar Khan Yasir for Respondent No.3.

2008 C L C 1440

[Karachi]

Before Mushir Alam and Mrs. Yasmin Abbasey, JJ

RAUF TEXTILE AND PRINTING MILLS (PVT.) LTD.----Petitioner

Versus

GOVERNMENT OF SINDH and 2 others----Respondents

Constitutional Petition No.D-152, decided on 15th March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Conservancy charges, collection of--- Petitioner in its constitutional petition had impugned action of authorities for collecting the conservancy charges contending that no sewerage line was provided and petitioner was compelled to pay conservancy charges---Authorities, while denying the allegations made in the petition, had stated that services were utilized by the petitioner for disposal of their liquid waste through water drain and solid waste and that liquid waste of the petitioner, was being discharged through storm water drain (Nala)---Validity---Only grievance that could be entertained was non-maintenance of the drain as reported by the Nazir of the Court in his report after spot inspection---Unless the civic responsibility was shared by the person for whose benefit drains or other facilities were developed by the civic agencies, it would not be possible for them to develop and maintain such facilities---Since the drain admittedly was being used by the petitioner, grievance of petitioner as alleged in the petition was not worthy of consideration---Authorities, in circumstances were directed to ensure that the drain as noted by the Nazir of the court was properly maintained.

Mian Mushtaq Ahmed for Petitioner.

Manzoor Ahmed for Respondents.

Sarwar Khan, A.A.-G.

2008 C L C 1445

[Karachi]

Before Muneeb Ahmed Khan and Khawaja Naveed Ahmed, JJ

ASIF FAROOQ----Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through City Nazim and another----Respondents

Constitutional Petition No.D-1435, Miscellaneous Nos.6677, 6678 and 5249 of 2007, decided on 21st February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Demolition of construction---Explanation given by the official ordering such demolition was that he had ordered the same on the instructions of high-ups and had not initiated the action on his own---Validity---Held, explanation had no force, official should have scrutinized the matter and considered the claim of the occupant of the plot before demolition and should have also verified as to whether the lease deed as claimed was executed by the City District Government through its official or not---High Court observed that in such a situation he should be careful in future and directed to deposit the cost imposed on him with the Nazir of the Court---Allowing the constitutional petition, High Court further observed that huge plot of 510 square yards had been allotted in Katchi Abadi, which was contrary to the very policy of the Government as allotment of smaller plots would have been more appropriate to accommodate more people and that too in a planned way.

Naveed Ahmed Khan for Petitioner.

Zafar Ahmed along with Abdul Malik Khan, D.O. (Revenue) and Amjad Hussain, D.D.O. Land Revenue for Respondents.

2008 C L C 1448

[Karachi]

Before Muhammad Moosa K. Leghari, J

Syed BAQAR RAZA----Petitioner

Versus

Mst. SHAHINDA BAQAR and 2 others----Respondents

Constitutional Petition No.315 of 2005, decided on 26th April, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Counsel of petitioner, on the day of hearing had left a chit that he was busy before a Division Bench---Matter was called thrice since morning, and upto 1.20 p.m. counsel of the petitioner had failed to appear---Contention of the respondent was that because of interim orders passed in favour of the petitioner, his counsel was avoiding to appear---Previous diaries revealed that the matter was adjourned on the request of the counsel of the petitioner---High Court, in circumstances, recalled the interim order passed in the matter.

Ms. Kousar Amin for Jamil Ahmed Virk for Petitioner.

Ms. Talat Aslam for Respondent.

2008 C L C 1451

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmeen Abbasey, JJ

MUHAMMAD IQBAL and 19 others----Petitioners

Versus

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

Constitutional Petition No.D-300 of 2007, decided on 26th April, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Objection with regard to quantum of Award---Petitioners/land owners, had alleged that they were not issued notices before passing of the award---Land Acquisition Officer present in the court had conceded that notices were not issued to the petitioners---Petitioners, however were satisfied if their objections in regard to quantum of award be heard and disposed of by the Land Acquisition Officer in accordance with the law---Land Acquisition Officer present in the court had stated that he had no objection and let the petitioners appear before him in his office and file their objections in regard to the market value to their properties individually---Land Acquisition Officer had further stated that petitioners or their representatives would be heard and award would be given in terms of Land Acquisition Act, 1894 after hearing them---Petition was disposed of with the direction that unless a fresh award was passed by the Land Acquisition Officer, no adverse action would be taken against the petitioners.

Islam Hussain for Petitioners.

Ahmed Pirzada, Addl. A.-G.

Manzoor Ahmad along with Safdar Hussain Land Acquisition Officer for respondents.

2008 C L C 1455

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmeen Abbasey, JJ

Mrs. SURAIYA MUNIR and another----Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and another----Respondents

Constitutional Petition No. D-716 of 2007, decided on 12th April, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Counsel for City District Government had stated that the petition had been filed by the petitioners on mere apprehension and no such decision had been taken by the City District Government to demolish the huts of the petitioners and that in case, decision of that nature was taken then in that eventuality, City Government would take action after complying with due process of law and notice to the petitioners---Counsel for petitioners was satisfied with the said statement of the counsel for the City District Government and did not press the petition---Petition was disposed of accordingly.

Muhammad Shahid for Petitioners.

Manzoor Ahmed for C.D.G.K.

Abdul Jabbar Lakho, Addl. A.-G.

2008 C L C 1462

[Karachi]

Before Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, J

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad----Petitioner

Versus

GENERAL TRADERS AND AMMUNITION MANUFACTURERS LTD. through Chief Executive----Respondent

High Court Appeal No.45 and C.M.A. No.333 of 2008, decided on 3rd June, 2008.

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

----O. XXXIX, Rr.1 & 2---Grant or refusal of injunction/stay application---Three ingredients/essentials were to be considered---Plaintiff not necessarily must have a strong, good prima facie case, but its being an arguable case would be sufficient---Every case is to be decided on its own merits---Injunction/stay application was allowed by the Court after providing opportunity of hearing to the parties.

Islamic Republic of Pakistan through Secretary Establishment Division Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508, Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Ltd. and another PLD 1993 Kar. 190 and Firozuddin Ahmed v. Trading Corporation of Pakistan Ltd. 1987 MLD 124 distinguished.

(b) Discretion---

----Authority has to exercise discretion reasonably, fairly, justly and free from discrimination, and mala fide---Public functionaries have to exercise discretionary powers in accordance with law and it cannot depend on their sole will/pick and choose---Discretion must be exercised judiciously and not arbitrarily.

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

----S. 9---Suit against official order---When official order is challenged, civil court is court of ultimate jurisdiction---Even if jurisdiction is barred, civil court can see illegality, and mala fide committed by any forum, tribunal or authority.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 ref.

Sofia Saeed Shah, Standing Counsel.

Khalid Javed for Respondent.

2008 C L C 1468

[Karachi]

Before Ghulam Dastagir A. Shahani, J

NAVEED RAZA----Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Cantonment Lands and Building Department, Government of Pakistan, Islamabad and 3 others----Respondents

Suit No.352 and C.M.A. No.1839 of 2008, decided on 26th April, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42, 55 & 39---Application under O.XXXIX, Rr.1 & 2, C.P.C. in a suit for permanent injunction, declaration and cancellation with prayer by plaintiff to restrain the defendants, as well as their representatives and agents, not to demolish the existing structure raised on a specified plot, nor act/implement the directions issued by the Cantonment Board for removal of structure, in any way, till decision of the suit---Every case was to be decided on its own merits, and plaintiff had to prove his own case and could not be benefited on the weakness of the other side, if any---Three essentials/ingredients were to be considered for grant of injunction and it was not necessary, that plaintiff must have a strong, good prima facie case but an arguable case was sufficient---Plaintiff, in the present case, admittedly had built the structure by spending huge amount, though same may be without approval of building plan by the concerned authorities---Cantonment Board (defendants) had also admitted the existing structure and construction raised by the plaintiff,' which was said to have been made in the year 2004---Plaintiff was ready and willing to pay usual fees in respect of regularization plus fine, if any---Copy of plan had also been submitted to the Cantonment Board for approval---Plaintiff had alleged mala fide against the defendants that construction of other surrounding buildings was subsequently regularized by the defendants, and all such facts required framing of issues and evidence and the matter will take sufficient time, and by virtue of time, entire situation might be changed and create a fresh cause of action and the purpose of filing the present suit may become infructuous, as clear directions had been issued for demolition of the structure within a prescribed period---Local Commissioner had reported that property in question was situated on 10 x 15 feet wide street and in front of the said property there existed another building on the right side of which was a road measuring 10 x 15 feet and there existed a residential bungalow and the property in question was surrounded by a boundary wall etc. and structure available on the site was old one hence adverse action was to be taken after demolition of existing structure, before deciding genuineness of application, available on record---Held, in circumstances, plaintiff was entitled to the relief as he had a good prima facie case and it would be inconvenient for him, and he would suffer greatly in case of refusal of injunction, against the defendants, as merits and demerits of the case were, to be considered subsequently, therefore, for the time being, during pendency of the suit, in order to maintain same position, it would be justified, to grant injunction application accordingly.

Muhammad Nadeem Qureshi for Plaintiff.

Ashraf Ali Butt for Defendants Nos.2 to 4.

2008 C L C 1472

[Karachi]

Before Muhammad Afzal Soomro, CJ

Mst. SHABINA MANSOOR----Plaintiff

Versus

MERRY LAND BUILDERS AND DEVELOPERS----Defendant

Suit No.1438 of 2007, decided on 21st April, 2008.

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

----S. 9---Jurisdiction of civil court---When Court having no jurisdiction proceeded with the matter, the entire proceedings would be illegal and without jurisdiction---Provision of S.9, C.P.C. vested jurisdiction in the civil court to try all the cases of civil nature, except those where its jurisdiction was ousted by any statute expressly or impliedly---Civil court was a court of ultimate jurisdiction and in cases where no other remedy was provided for, civil court would be the forum where relief could be sought for---Civil Court had the ultimate jurisdiction to examine the legality and illegality in the orders passed by concerned authorities.

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

----O. VII, R.11 & O.XXXIX, R.4---Karachi Building and Town Planning Regulations, 2002, Regln.5-2-26---Rejection of plaint---Application for---Plaintiff in the case, though had filed complaint against defendant under Karachi Building and Town Planning Regulations, 2002, but did not wait for decision of the competent authorities and came to the High Court without exhausting remedy provided to him by law---Application of the defendant filed, by him under Order VII, R.11, C.P.C. was allowed and plaint was rejected for want of jurisdiction as provided under Rgln. 5-2-26 of the Karachi Building and Town Planning Regulations, 2002---Status quo granted under O. XXXIX, R.4, C.P.C. stood vacated, in circumstances.

Altaf Hussain for Plaintiff.

M. Imran Butt for Defendant.

2008 C L C 1476

[Karachi]

Before Khawaja Naveed Ahmed, J

Surgeon MUNAWAR ALI----Plaintiff

Versus

HEALTH VISION and others----Defendants

Suit No.1357 of 2007, heard on 18th April, 2008.

Arbitration Act (X of 1940)---

----S. 34---Reference of dispute to arbitrator---Stay of proceedings, application for---Word "arbitration" or "arbitrator" had not been used in the agreement arrived at between the parties and instead word "umpire" had been used, which had totally different meanings---Agreement, which was subject matter of the case, had already been terminated by one party; in such circumstances, when agreement itself was a disputed document, its arbitration clause had no sanctity and could not be invoked---One party had argued to the extent that in the document called agreement nowhere word "agreement" or arbitrator had been used---Word "arbitrator" had also not been used in application under section 34 of the Arbitration Act, 1940 which being not maintainable, was dismissed.

1990 CLC 47; PLD 1983 SC 344; 2003 YLR 1109; 1997 CLC 1177; 1993 MLD 993; 1992 MLD 2245 and 1970 SCMR 234 ref.

Faisal Kamal for Plaintiff.

K.B. Bhutto for Defendant No.1.

2008 C L C 1485

[Karachi]

Before Ali Sain Dino Metlo, J

Messrs EASTERN AUTO MOBILE (PVT.) LTD.----Petitioner

Versus

Messrs PAKISTAN NATIONAL SHIPPING CORPORATION through Secretary/Manager and 2 others----Respondents

Constitutional Petition No.S-98 of 2007, decided on 13th March, 2008.

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

---Ss. 8, 9 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Increase in rent---Principle---Earlier fair rent was fixed by High Court and it was agreed between both the parties that either increase in rent would be by mutual consent or under the provisions of S.9 of Sindh Rented Premises Ordinance, 1979---Landlord sought ejectment of tenant on the ground that it had failed to pay rent with increase of 10% per annum---Ejectment order was concurrently passed against tenant by Rent Controller and Lower Appellate Court---Validity---Rent could be fixed either by agreement between parties i.e. landlord and tenant or by Rent Controller---Party whether landlord or tenant, could not unilaterally increase or decrease the rent---Any party could approach Rent Controller at any time for determination of fair rent and Rent Controller taking into consideration the factors mentioned in S.8 of Sindh Rented Premises Ordinance, 1979, would be free to fix the rent which might be equal to or more or even less than existing rent---Restrictions provided under S.9 of Sindh Rented Premises Ordinance, 1979, regarding increase of rent after fixation of fair rent did not mean that after expiry of three years there would be automatic 10% per annum increase in the rate of rent---Rent Controller could or could not increase rent and he might increase it by less than 10% or might even decrease the same---Neither earlier order passed by High Court directed tenant again to increase the rent by 10% per annum nor the law required it to do so---Two forums below had wrongly ordered ejectment of tenant, which were set aside---Petition was allowed in circumstances.

Yousuf Moulvi for Petitioner.

Waqar Muhammad Khan Lodhi for Respondent.

Date of hearing: 13th March, 2008.

2008 C L C 1499

[Karachi]

Before Ali Sain Dino Metlo, J

AZEEMUDDIN----Petitioner

Versus

Mst. ATTIQA BEGUM through Attorney and 2 others----Respondents

Constitutional Petition No.S-361 of 2007, decided on 27th May, 2008.

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

----S. 10---Payment of rent---Modes---Payment through banking channel---Validity---Keeping in view convenience of landlords, law provides for payment directly to them but at the same time, it visualizing possible difficulties of tenants it does not make it mandatory---Non-­mention of consequences and use of words "as far as may be" clearly shows that provision of law in S.10(2) of Sindh Rented Premises Ordinance, 1979, is directory and not mandatory---Use of word "may" in S.10(3) of Sindh Rented Premises Ordinance, 1979, also shows that refusal or avoidance to receive rent is not an essential condition for sending rent by postal money order or depositing, it with Rent Controller---It is also not necessary that before depositing rent with Rent Controller, it should be sent by postal money order---Modes are independent, and neither of the two modes is dependent upon the other---One may opt for any mode without first trying the other---Two modes are also not exhaustive and they do not exclude other modes of payment i.e. payment through banking channel cannot be treated as illegal.

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

---Ss. 10 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Avoidance to receive rent---Deposit of rent with Rent Controller---On avoidance of landlady to receive monthly rent, tenant started depositing the same with Rent Controller---Landlady sought ejectment of tenant on the ground of default in payment of monthly rent---Rent Controller and Lower Appellate Court concurrently passed eviction order against tenant---Plea raised by tenant was that landlady avoided to receive rent as she demanded increased rent, therefore, rent was regularly being deposited with Rent Controller---Validity---Refusal of landlady to receive rent directly was not the only justification for opting the other modes---Avoidance was also a justification which could be inferred from the conduct of landlady---Conduct of landlady in abruptly demanding rent at exorbitantly high rate of Rs.5000 in place of agreed rate of Rs.605 per month was sufficient to infer her avoidance to receive rent at agreed rate---There was no question of non-payment of rent as tenant was regularly depositing the same with Rent Controller in the name of landlady well within time---As more than two years before filing of ejectment case, tenant had been depositing the rent with Rent Controller and the same was within the knowledge of landlady, therefore, tenant could not be ejected on the ground of technical default---Rent Controller and Lower Appellate Court failed to decide the matter according to law, therefore, High Court, in exercise of Constitutional jurisdiction, set aside the eviction orders passed by both the forums below---Petition was allowed in circumstances.

R.F. Virjee for Petitioner.

Badar Munir for Respondent.

Date of hearing: 27th May, 2008.

2008 C L C 1524

[Karachi]

Before Azizullah M. Memon and Khawaja Naveed Ahmed, JJ

Miss SUGHRA BATOOL----Petitioner

Versus

DOW UNIVERSITY OF HEALTH SCIENCES through Registrar----Respondent

Constitutional Petition No.D-2093 and Miscellaneous No.7729 of 2007, decided on 17th January, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Educational Institution---Admission in University of Health and Sciences---Counsel for petitioner, while arguing the matter drawn attention of the High Court to a reported case (1992 CLC 2222) pertaining to admission policy---Contention raised by counsel for the petitioner required consideration in the light of judgment cited by him---Petition was admitted to regular hearing and till pendency and final decision of the petition, the authorities were directed to grant provisional admission to the petitioner at her own risk.

Abdul Qadir Shaikh v. Registrar, N.E.D. University 1992 CLC 2222 ref.

Mehmood Hassan for Petitioner.

Afaq A. Saeed along with Dr. Shaikh Nadeem Ahmed, Assistant Registrar for Respondent.

2008 C L C 1578

[Karachi]

Before Mushir Alam, J

AL-HAMD EDIBLE OIL INDUSTRIES (PVT.) LIMITED through Chief Executive----Plaintiffs

Versus

Syed WASEEM HYDER----Defendant

Suit No.1347 of 2004, decided on 24th September, 2007.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of promissory note and dishonored cheques---Plaintiffs claimed that they extended loan to defendant and on presentation all the cheques were dishonoured---Suit was not contested by the defendant on merits---Plaintiffs, in circumstances were entitled to recover the amount covered by the promissory note and the cheques---Suit was decreed accordingly.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 84---Non-presentation of cheque---Effect---Unless a cheque was presented for payment within a reasonable time of its issue, no right to recover the amount would accrue.

Muhammad Tasnim for Plaintiffs.

Nemo for Defendant.

Date of hearing: 24th September, 2007.

2008 C L C 1585

[Karachi]

Before Anwar Zaheer Jamali, J

Mrs. SOFIA SHABNAM----Plaintiff

Versus

ABDUL REHMAN and 2 others----Defendants

Suits Nos.446 and 114 of 2001, decided on 30th April, 2007.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---Civil Procedure Code (V of 1908), O.XXIII, R.3---Suit for declaration, permanent injunction, cancellation and possession---Attorney of the plaintiff, pending suit, had sought unconditional withdrawal of suit---Counsel for defendant having no objection, suit was dismissed as withdrawn.

Iftikhar Javed Qazi for Plaintiff.

K.A. Wahab for Defendants.

2008 C L C 1592

[Karachi]

Before Mushir Alam, J

AFTAB KHALIL and 5 others----Plaintiffs

Versus

SHAUKAT HUSSAIN----Defendant

Suit No.1483 of 1998, decided on 7th May, 2003.

Arbitration Act (X of 1940)---

----S. 34---Scope and application of S.34, Arbitration Act, 1940---Once a party enters into a bargain to refer a dispute to the arbitration then unless it is shown that the defendants are not ready and willing to abide by such terms the court generally enforces such bargain.

Messrs Uzin Export and Import Enterprises for Foreign Trade v. Messrs M. Iftikhar and Company Limited 1993 SCMR 866 and Director, Housing, A.G.'s Branch, Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988 ref.

Maganlal Jhawar and others v. Messrs M.R. Khan & Co. PLD 1968 Dacca 361; State Bank of Pakistan, Karachi v. Messrs Naqson and 2 others PLD 1970 Kar. 490; Messrs Hafiz Abdul Aziz Yousufani v. Messrs Haji Ali Muhammad Abdullah & Co. PLD 1967 Kar. '698 and Jamshed Alam Khan v. Haq Nawaz and another PLD 1973 Kar. 31 distinguished.

Muhammad Ikram Siddiqui for Plaintiffs.

M.G. Dastgir for Defendant.

2008 C L C 1598

[Karachi]

Before Ali Sain Dino Metlo, J

Haji ABDUL GHANI----Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and 2 others----Respondents

Constitutional Petition No.S-405 of 2004, decided on 5th May, 2008.

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

----S. 10(2)(3)-Words "as far as may be" occurring in S.10(2), Sindh Rented Premises Ordinance, 1979---Significance---Non-mention of consequences and use of words "as far as may be" clearly shows that S.10(2) is directory and not mandatory---Use of words "may" in S.10(3) of the Ordinance shows that refusal or avoidance to receive rent is not essential condition for sending the rent by postal money order or depositing the same with the Rent Controller---Refusal of landlord to receive rent directly is not the only justification for adopting other modes of tendering the same---Avoidance is also a justification and one may infer avoidance from the conduct of a landlord---Principles.

According to subsection (2) of section 10 of the Sindh Rented Premises Ordinance, 1979, the rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing and subsection (3) provides that where the landlord has refused or avoided to accept the rent it may be sent to him by postal money order or deposited with the Controller within whose jurisdiction the premises is situated.

The use of words "as far as may be" in subsection (2) is not without significance. There can be situations in which it may be very difficult to pay rent directly to a landlord as for example where he is residing at a far-off place within or outside the country. Keeping in view the convenience of landlords, the law provides for the payment of rent directly to them but at the same time, it, visualizing the possible difficulties of tenants, does not make it mandatory. Non-mention of consequences and use of words "as far as may be" clearly shows that the provision is directory and not mandatory. The use of word "may" in subsection (3) also shows that refusal or avoidance to receive rent is not an essential condition for sending the rent by postal money order or depositing it with the Controller.

Refusal of landlord to receive rent directly is not the only justification for adopting other modes of tendering it. Avoidance is also a justification and one may infer avoidance from the conduct of a landlord.

In the present case, the fact that the landlord had filed ejectment cases against most of his tenants without properly verifying facts and grounds regarding every tenant, showing his intense urge to get the building vacated, is sufficient to infer his avoidance to receive rent. Otherwise, there seems no reason for the tenant, who had been making payment of rent of many months in lump sum in advance, to deposit the same with the Controller.

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

----S. 15(2)(ii), proviso [as added by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]---Ejectment on ground of default---Scope---Tenant who has actually not paid or deposited the rent, not to talk of the tenant who has been regularly depositing rent with the Rent Controller, cannot be ejected on the ground of default, provided the period of non-payment does not exceed six months and he had not made default on any previous occasion and admits his liability on the first day of hearing and pays the rent within the period fixed by the Rent Controller for such purpose---Where, however, the tenant had been paying rent much in advance and there was no allegation that he had committed default in the payment of rent on any previous occasion, tenant could not be ejected merely on account of depositing rent with the Rent Controller instead of paying it directly to the landlord.

2001 SCMR 1140 distinguished.

Shafaat Hussain for Petitioner.

Nemo for Respondent.

2008 C L C 1607

[Karachi]

Before Mrs. Qaiser Iqbal and Khawaja Naveed Ahmed, JJ

NAVEED ZAHEER----Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Ministry of Interior Affairs and 2 others----Respondents

Constitutional Petition No.D-1198 of 2008, decided on 29th July, 2008.

Exit from Pakistan Control Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name of petitioner on the Exit Control List---Ground of placement of the name of the petitioner on the list were not divulged---Petitioner was not served with a show-cause notice, he was bound to be heard before passing any order by the Federal Government for prohibiting him to leave Pakistan, unless it was considered in the public interest not to specify the ground---No inquiry having been conducted by the competent authority and no reason having been assigned by the authorities for placing the name of petitioner on the Exit Control List nor any notice or intimation having been served upon him, placement of the name of the petitioner on the Exit Control List was not justified and tantamount to restrict rights of his liberty.

Ashfaq Yousuf Tola v. Federation of Pakistan PLD 2006 Kar. 193; Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lah. 617 and Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177 ref.

Balal A. Khawaja for Petitioner.

Imran Ahmed D.A.-G. for the State.

2008 C L C 1618

[Karachi]

Before Munib Ahmed Khan, J

TRADESMEN INTERNATIONAL (PVT.) LTD.---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary and another---Defendants

Suit No.469 of 2004, decided on 4th August, 2008.

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

----S. 28---Restrain of legal proceedings---Scope---Either of the party to agreement, is prohibited under S.28 of Contract Act, 1872, from restricting other from taking matter to the ordinary tribunals but it does not provide any restriction in respect of consensus between the parties to refer the matter to arbitration or to take up their dispute in a particular Court or tribunal exclusive to other Courts even if they have jurisdiction.

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

----O. VII, R. 10, Ss.19 & 20---Contract Act (IX of 1872), S.28---Return of plaint---Territorial jurisdiction---Determination---Contention of defendant was that according to a specific clause in agreement between the parties, dispute between the parties could only be entertained by Courts at place "L" having the exclusive jurisdiction, therefore, suit filed at place "K" should have been returned to plaintiff-Validity--Such clause in the agreement did not restrict either of the party to take up the matter to the Court or ordinary tribunals while according to Ss.19 and 20, C.P.C. the suit could be filed at place where the cause of action had arisen or the defendant voluntarily resided or carried on business--By virtue of this clause in agreement, only venue of jurisdiction had been chosen but no restriction in respect of legal remedy was imposed nor there was any limitation in such respect from S.28 of Contract Act, 1872---Jurisdiction could be stretched to either place at "K" or "L" keeping in view the contention of plaintiff but sanctity of agreement had restricted both the parties to avail remedy at place "L" by virtue of its clause---High Court directed the office to return the plaint to plaintiff---Application was allowed accordingly.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd. Karachi and 3 others 1992 SCMR 1174; Tahir Tariq Textile Mills (Pvt.) Ltd. and others v. National Development Finance Corporation through its Chairman 2003 CLD 1546; Maqsood Ali Khan v. National Bank of Pakistan 2003 PLC (CS) 226; Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. and others 2003 CLC 416 and 2003 CLD 1546 rel.

Chokkahnga Pillay v. Velayudha Mudaliar and others 1925 Mad. 117 distinguished.

(c) Interpretation of document---

----Reservations and restrictions imposed in agreement---Scope---When parties enter into an agreement with certain reservations and restrictions, keeping in view for and against prospects and that is not restricted by law, then policy of law requires that spirit of the intention of parties is to be considered as sacrosanct until there is specific legal restriction---Intention of parties should not be killed through technicalities.

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

----Preamble---Object and scope---Law of contract has been promulgated with the spirit that there should be some statutory legal lines between which contracting parties should act and their obligation to each other should not be violated.

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

----S. 37---Parties to contract---Obligations---Parties of contract as well as their representatives are bound under S.37 of Contract Act, 1872, to complete the contract in agreed terms.

Commissioner of Income-Tax v. Messrs Siemen A.G. 1991 PTD 488 and Hafeezullah Khan v. Al-Haj Chaudhri Barkat Ali PLD 1998 Kar. 274 rel.

Nemo for Defendant No.1.

Muhammad Akram Khawaja and Qazi Abdul Hameed for Defendant No.2.

2008 C L C 1629

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD GHAZI QURESHI----Appellant

Versus

MUHAMMAD MUDASIR----Respondent

First Rent Appeal No.2 and C.M.A. No.322 of 2007, decided on 12th March, 2008.

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

----Ss. 17(2)(1) & 24---Ejectment of tenant---Default in payment of rent---Tenement in question was situated at a commercial place and criminal litigation was also initiated by landlord against the tenant---Only one month's default in payment of rent was alleged against the tenant---Tenement was a business place and it would be in the fitness of things, if the tenant enjoyed peaceful possession of the property so that he could promote his business---Tenant and landlord both were young men and appeared to be educated---Appellate Court had given them a suggestion that court would grant sufficient time to the tenant to vacate the premises, to which the landlord as well as the tenant had agreed---By consent, it was ordered by High Court that tenant would handover vacant, peaceful physical possession of the premises to the landlord after expiry of two years; in case of failure of tenant to hand over the vacant, peaceful physical possession of tenement to the landlord, after expiry of said two years, Rent Controller would issue a writ of possession without notice with police aid and order of breaking open the locks.

Shahida Nasreen for Appellant.

Iftikhar Javaid Qazi for Respondent.

2008 C L C 1637

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

Mst. ISHRAT JEHAN and another----Appellants

Versus

MUHAMMAD ZAKIR HUSSAIN----Respondent

H.C.A. No.318 of 2005, decided on 15th January, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R.5---Attachment before judgment---Court had power to attach the property in favour of plaintiff and the jurisdiction of the court to attach the property of defendant would be effective only when the court had power to grant the relief---In any event, if the plaintiff would succeed in the designs to procure judgment in the terms of the decree sought in his suit, defendant would be liable to protect the right of the plaintiff---Pending disposal of the suit defendant would either deposit the title documents of property as a security with the Nazir of the court or would furnish bank guarantee within one month.

Sami Ahsan for Appellants.

Intikhab Ahmad for Respondent.

2008 C L C 1659

[Karachi]

Before Khawaja Naveed Ahmed, J

EJAZ AHMED----Applicant

Versus

RIAZ AHMED and another----Respondents

Revision Application No.9 and C.M.A. No.105 of 2008, decided on 11th March, 2008.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 10---Execution of decree---Suit had concurrently been decreed in favour of respondents by the courts below---Validity---Matter between the parties was amicably resolved and according to agreement arrived at between the parties the decree-holders were to transfer the house in the names of all the legal heirs of deceased and in return one of the decree-holders would get a plot of 100 square yards in the industrial area and that would be within the factory of judgment-debtor---Agreed plot of 100 square yards being near the factory premises of judgment-debtor, there was imminent apprehension that dispute would continue between the two real brothers upon running the factory; it had been amicably resolved that judgment-debtor would purchase the plot of 100 square yards of equal value as that of his plot in the same vicinity and would give it to one of the decree-holders and parties agreed to that proposal---By consent of parties, High Court ordered that judgment-debtor would purchase plot of 100 square yards of the value equal to that of his plot in the same vicinity, where his factory was located and would give it to decree-holder on ownership basis---Failure of judgment-debtor to purchase, transfer and hand over the plot of 100 square yards within the specified period, it would be open for the respondent to pursue the execution application.

Liaquat Ali Hamid for Applicant.

S. Abid Shirazi for Respondent No.1.

Respondent No.1 in person.

2008 C L C 1

[Lahore]

Before Mian Hamid Farooq, J

Rana ABDUL RASHEED----Petitioner

Versus

IQBAL HUSSAIN----Respondent

Civil Revision No.908 of 2005, decided on 17th October, 2007.

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

----S. 13---Right of pre-emption---Talb-e-Muwathibat---Non-mentioning of time, date, place and name of informer in plaint---Effect---Suit and appeal filed by pre-emptor were concurrently dismissed by Trial Court and Appellate Court on the ground that pre-emptor failed to prove Talb­-e-Muwathibat in accordance with law-Validity-Was mandatory for pre-emptor to mention in plaint the date, place and time of performance of Talb-e-Muwathibat---Pre-emptor having not mentioned time and place of performance of Talb-e-Muwathibat in plaint, High Court declined to interfere with concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 ref.

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

----O. VI, R. 2 & O. VIII, R. 2---Punjab Pre-emption Act (IX of 1991), S.13---Maxim: secundum allegata et probata---Applicability---Pleadings---Improving of case in evidence---Effect---Pre-emption suit was concurrently dismissed by Trial Court as well as by Appellate Court on the ground that pre-emptor did not state time and place of performance of Talb-e-Muwathibat in plaint---Plea raised by pre-emptor was that he improved his case in his evidence-Validity-Plaintiff could not subsequently improve his case in evidence as a litigant had to first plead facts and pleas in pleadings and then to prove the same through evidence---No party was allowed under law to improve his case from what was originally set up in his pleadings---Principle of secundum allegata et probata was applicable as it meant that a fact had to be alleged by party before it was allowed to be proved---No party was allowed to lead evidence in respect of plea which was not taken in pleadings and even if evidence was led, the same could not be considered as evidence in the case---Findings rendered and conclusions arrived at by both the courts were not only in accordance with the record of the case but also in consonance with the law on subject---No misreading or non-reading had either been urged or pointed out by pre-emptor---Both the courts below, while deciding the matter, did not commit any illegality or material irregularity---High Court, in exercise of revisional jurisdiction, declined to interfere with judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Pakistan v. Abdul Ghani PLD 1964 SC 68; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Cooperative Bank Ltd. Jaranwala and others 1968 SCMR 804; Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Qabil Shah and others v. Shaday PLD 1992 Pesh. 144; Muslim Commercial Bank Limited v. Syed Ahmad Sated Kirmani 1991 CLC 140; Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 and Karim Bakhsh v. Gul Rehman 1990 CLC 1200 rel.

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

----S. 115---Revision---Reappraisal of evidence---Principle---When findings of facts are concurrent, High Court in exercise of revisional jurisdiction is not required to reappraise evidence on record.

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

----S. 115---Revision---Findings of fact or law---Interference by High Court---Principle---Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of facts, based on evidence are not liable to be interfered in exercise of jurisdiction under S.115, C.P.C.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000. SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Zafar Iqbal Chauhan for Petitioner.

Nemo for Respondent.

2008 C L C 37

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Messrs THAL INTERNATIONAL AIRWAVES (PVT.) LTD. through Chief Executive----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman and 5 others-Respondents

Writ Petition No.4571 of 2006; decided on 8th October, 2007.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----Ss. 19 & 30---Pakistan Electronic Media Regulatory Authority Rules, Rr.9, 27 & 42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Licence to operate FM Radio Station, grant of---Non-commencement of broadcast operation by petitioner within prescribed period---Cancellation of licence for such failure of petitioner---Validity---Petitioner had applied to Telecommunication Authority for allocation of frequency after six months of expiry of prescribed period---Petitioner was not in a financial position to become operational within prescribed period---Pakistan Electronic Media Regulatory Authority, had not committed any illegality in passing impugned order---Petitioner having failed to perform its obligation according to law, was not entitled to discretionary relief under Art.199 of the Constitution---High Court dismissed constitutional petition in circumstances.

Nadira Kaiser and others v. Chairman, Karachi Cantonment Board and another 2004 CLC 1872 rel.

Malik Waqar Haider Awan for Petitioner.

Muhammad Zargham Ullah for Respondents.

2008 C L C 69

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD RAFIQUE and others----Petitioners

Versus

GHULAM MURTAZA through L.Rs.----Respondent

Civil Revision No.1527 of 1995, decided on 10th October, 2007.

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

----Ss. 115, 96 & O.XLI, R.22---Appeal against judgment and decree of Trial Court dismissing suit---Non-filing of appeal or cross-objection by defendant against findings recorded against him by Trial Court---Revision petition against partial acceptance of appeal by Appellate Court---Validity---Appellate Court had maintained such findings on ground of non-filing of cross-objections by defendant---Defendant by his act and of omission had not only acknowledged and admitted such findings, but had relinquished his right to challenge such findings in revision petition---High Court dismissed revision petition while maintaining such findings.

Maqsood Ali Butt v. Muhammad Bashir and another 1993 CLC 1361 ref.

(b) Adverse possession---

----Plea of ownership in possession and adverse possession---Taking both such pleas in alternative---Effect---Both such pleas were contradictory to each other and self-destructive.

Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

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

---Ss. 115 & 96---Revision petition against judgment of Appellate Court---Scope---Such judgment, if not contrary to evidence on record or violative of principles of administration of justice, would ordinarily be preferred.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal heirs and 5 others 1999 CLC 313 and Aasa v. Ibrahim 2000 CLC 500 rel.

Ghulam Hussain Malik for Petitioners.

Nemo for Respondent.

Date of hearing: 10th October, 2007.

2008 C L C 81

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ZILA NAZIM, KASUR----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and 3 others----Respondents

Writ Petition No.8000 of 2007, decided on 26th September, 2007.

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

---Ss. 111(4) & 112(8)---Provisions of Ss.111(4) & 112(8) of Punjab Local Government Ordinance, 2001---Scope---Such provisions were mandatory in nature---Without having financial independence and sovereignty, no institution of Local Government or Federal/Provincial Government could function---To approve a budget or to have budgetary powers would reflect sovereignty of an institution.

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

---Ss. 42, 111(4), 112(8) &' 132---District Government and Tehsil Municipal Administration (Budget) Rules, 2003, Rr.57, 58(3) & 59---Constitution of Pakistan (1973), Art.199---Constitutional petition---Annual Budget of Zila Council, approval of---Naib Nazim, though removed from his office by decision of High Court, presided over Budget Meeting, .which, on objection being raised by members, was presided over by senior member of council---Approval of budget by majority of Council---Letter by Nazim addressed to District Coordination Officer requesting him to incorporate amendments in current development Budget Books as per proceedings of Council and submit same for authentication to Nazim---Placing of budget by District Coordination Officer, before Provincial Local Government Commission---Demands of grant rejecting by Nazim submitted by same Naib Nazim in subsequent meeting of Council --Validity---After approval of Budget by Council, subsequent meeting on same subject could not have legally taken place---Functions of Provincial Local Government Commission as given in S.132 of the Ordinance, being of general nature would not include to decide issues relating to Annual Budget---To approve a budget or to have budgetary powers would reflect sovereignty of an institution---Whole scheme of Punjab Local Government Ordinance, 2001 was based on devolution of powers including financial powers from Provincial Government to District Government---Budget could not be placed before the Commission---Impugned action of authority impinged upon such idea or ran counter to the whole philosophy of the Punjab Local Government Ordinance, 2001---High Court declared budget approved by Council valid, while setting aside proceedings of such subsequent meeting of Council, and also declared proceedings pending before such Commission as unlawful, and directed District Coordination Officer to place budget before Nazim for authentication.

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

--Preamble-Word "decentralize" as used in Preamble of the Punjab Local Government Ordinance, 2001---Meaning.

"Decentralize" means conferment by the Government under Punjab Local Government Ordinance, 2001 of its administrative and financial authority for the management of specified offices of the Provincial Government on the Local Government.

Dr. A. Basit assisted by Rana Muhammad Arif for Petitioner Khurshid Anwar Bhinder, Additional A.-G.

Mubeen-ud-Din Qazi for Respondent.

Tahir Hussain Shah, Deputy Secretary L.G. & C.D.

2008 C L C 102

[Lahore]

Before Syed Asghar Haider, J

TARIQ MAHMOOD----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Joint Secretary, Ministry of Minorities (Minorities Affairs Division) Islamabad and 3 others Respondents

Writ Petition No.7131 of 2007, decided on 14th November, 2007.

(a) Interpretation of statutes---

----Subordinate delegated legislation is not retrospective in operation unless a power to this effect is incorporated.

Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. AIR 1956 All. 35 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has ample powers under Art. 199 of the Constitution, to direct any person performing functions in connection with the affairs of Federation, Province or a Local Authority to refrain from doing anything which he is not permitted by law to do, or to do anything by law he is required to do.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

---S. 17---Scheme for Lease of Evacuee Trust Agricultural Land, 1975, Ss.18 & 18(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease rights on extension basis---Scope---Lease rights in favour of father of respondent lapsed in year, 1992, and land in question was put to repeated auctions---In year, 1994, after insertion of S.18 (a) in Scheme for Lease of Evacuee. Trust Agricultural Land, 1975, respondent was granted lease rights - by the authorities holding him entitled under the newly-inserted section in the Scheme---Validity---Lease rights granted to father of respondent were governed by S.18 of Scheme for Lease of Evacuee Trust Agricultural Land, 1975, and not by S.18(a) of the Scheme---Order passed by the authorities holding respondent entitled to lease was illegal and not tenable in law---Authorities did not exercise jurisdiction as required by law, therefore, such order could be interfered with by High Court under Art.199(a)(i) of the Constitution---High. Court set aside order of allotment of land in question passed by authorities in favour of respondent---Petition was allowed in circumstances.

Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana PLD 1976 SC 410; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 13 t3 and Safdar Javed and another v. Lahore Development Authority through Director-General and 3 others 2005 CLC 1584 distinguished.

Ch. Muhammad Jehangir Wala for Petitioner.

Rana Muhammad Nasim Sabir for Respondent No.2.

Rao Muhammad Jamil for Respondents Nos.3 and 4.

Aslam Zar Standing Counsel.

Date of hearing; 30th October, 2007.

2008 C L C 128

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AKRAM----Petitioner

Versus

Syed ZAHEER-UL-HASSAN RIZVI----Respondent

Civil Revision No.2047 of 2007, decided on 19th November, 2007.

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

----Ss. 6 & 17---Suit for pre-emption---Superior right of pre-emption---Pre-emptor was required to be equipped with the superior right of pre-emption right from the date of sale up to the date of decree---Said rule had received statutory recognition in the form of S.17 of Punjab Pre-emption Act, 1991.

Syed Kazim Bukhari for Petitioner.

2008 C L C 136

[Lahore]

Before Fazal-e-Miran Chauhan, J

ASMAT ULLAH BUTT----Petitioner

Versus

KAMRAN JAVAID and 2 others----Respondents

Writ Petition No.7413 of 2007, decided on 5th November, 2007.

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

----S. 13(2)(1)---Default in payment of rent---Plea of non-handing over possession of whole property to tenant raised in written reply to ejectment petition-Issue on such plea neither framed nor demanded by tenant to be framed-Effect-Rent Controller was not bound to give any finding on such plea.

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

----S. 13(3)---Bona fide personal need of landlord---Non-mentioning in ejectment petition details of other properties owned and occupied by landlord in same urban area---Validity---Such facts were not required to be mentioned in ejectment petition---Landlord would be required to plead that premises in occupation of tenant was needed by him for his own use and that he did not occupy any other property in same urban area---Suitability of landlord should be preferred over that of tenant---Various ingredients of bona fide personal need being matter of evidence might be proved at the time of leading evidence---Landlord was not obliged under law to mention details of every property owned and occupied by him---Non-mentioning of such details would not be fatal to ejectment petition---Prerogative of landlord to select any of his properties for his own use---Rent Controller or Appellate Authority could not insist that landlord should occupy some other property.

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

----S. 13(3)---Bona fide personal need of landlord---Scope---Suitability of landlord should be preferred and not that of tenant.

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

----S. 13---Ejectment petition---Bona fide personal need of landlord---Acceptance of ejectment petition by Rent Controller without deciding application of WAPDA and Excise and Taxation Department to be made party to proceedings---Validity---Such pending application would have no bearing on ejectment petition---Non-impleading of such applicants would not adversely affect case regarding relationship of landlord and tenant---Function of Rent Controller was to decide dispute between landlord and tenant and nothing beyond that---Provisions of C.P.C. would not apply to ejectment proceedings---Rent Controller being a Tribunal could adopt any method/procedure to decide application pending before him---Such pending application, if not decided, would not be fatal to ejectment petition.

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

----S. 13---Civil Procedure Code (V of 1908), Preamble---Ejectment proceedings---Civil Procedure Code, 1908 would not apply to such proceedings---Rent Controller being a Tribunal could proceed and adopt any method or procedure to decide application pending before him.

Mrs. Firdous Butt for Petitioner.

Nauman Qureshi for Respondent No. 1.

Respondents Nos.2 and 3 are pro forma respondents.

Date of hearing: 18th October, 2007.

2008 C L C 149

[Lahore]

Before Maulvi Anwarul Haq, J

KHALIL AHMAD----Petitioner

Versus

Mst. SABIRAN BIBI and 13 others----Respondents

Writ Petition No.11038 of 2007, decided on 14th November, 2007.

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

----S. 42---Mutation of sale---Evidentiary value---Mutation by itself not a document of title or its evidence---When mutation was questioned, then party would have to prove transaction of sale.

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

----Ss. 12 & 27(b)---Civil Procedure Code (V of 1908), O.I, R.10---Suit for specific performance of sale agreement---Agreement by first defendant to sell property to plaintiff---Transfer of property by first defendant in favour of second defendants----Suit by plaintiff against defendants---Application by intervener under O.I. R.10, C.P.C. to implead him as party in suit for defendants having sold to him property---Validity---Sale pleaded by intervener was of a date prior to institution of suit, which matter would be governed by S.27(b) of Specific Relief Act, 1877---Intervener was a necessary party to suit in view of facts pleaded by hire and plaintiff---Application was accepted in circumstances.

Province of the Punjab through Secretary, Sports Government of the Punjab and another v. Messrs Qavi Engineering (Pvt.) Ltd. through Director and 2 others 2007 MLD 89 ref.

Mian Muhammad Abbas for Petitioner.

2008 C L C 159

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM FARID----Petitioner

Versus

MUHAMMAD SIDDIQUE and 5 others----Respondents

Writ Petition No.11054 of 2007, decided on 14th November, 2007.

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

----Ss. 5 & 30---Sale through deed registered in execution of decree for specific performance of sale agreement---Pre-emption suit---Limitation---Prescribed period of four months would not start from date of such decree or commencement of execution proceedings, but would start from date of registration of sale-deed---Where' possession of property was proved to be delivered prior to registration of sale-deed, then limitation would start from date of delivery of possession.

Mst. Maqsood Mai v. Abdul Rashid and others PLD 2006 SC 306 rel.

Sh. Masood Akhtar for Petitioner.

2008 C L C 161

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD NAWAZ----Petitioner

Versus

Mst. ALLAH WASAI alias SWAI----Respondent

Civil Revision No.1882 of 2007, decided on 1st November, 2007.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [as inserted by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), w.e.f. 1-8-1983]---Succession---Last male owner died in year 1939---Mutation of inheritance sanctioned in favour of widow as limited owner---Re-marriage by widow and sanctioning of mutation in favour of daughter of deceased---Suit by male collateral in year 2000 claiming to be entitled to entire property left by deceased---Decree of Trial Court affirmed by Appellate Court to the extent of 1/8th share each in favour of widow and daughter and to the extent of 3/8th share in favour of collateral---Validity---Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 w.e.f. 1-8-1983 had abolished all customary rights and declared Shariat as rule of inheritance---Suit, appeal etc., pending on 1-8-1983 seeking enforcement of custom as a rule of inheritance stood abated forthwith---Courts below by deciding inheritance of deceased under Muslim Law had not committed any illegality or irregularity---High Court dismissed revision petition in circumstances.

Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 rel.

Hafiz Khalil Ahmad for Petitioner.

2008 C L C 164

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AZAM and 5 others----Petitioners

Versus

Mst. AZRA BEGUM and 4 others----Respondents

Civil Revision No.1903 of 2006, heard on 1st November, 2007.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application under S.12(2), C.P.C. for setting aside of judgment---Limitation---Impugned judgment was passed in the year 2004---Application under S.12(2), C.P.C. was filed in 2006---Period for filing of such application being three years, application was within, time.

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

---S. 12(2) & O. VII R.11---Application under S.12(2), C.P.C.---Rejection of such application under O.VII, R.11, C.P.C.---Essential considerations---Court could look into documents other than such application itself, provided those were authentic.

S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 rel.

Malik Noor Muhammad Awan for Petitioner.

Malik Asif Taufique Awan for Respondents.

Date of hearing: 1st November. 2007.

2008 C L C 167

[Lahore]

Before Muhammad Muzammal Khan, J

Rana MUHAMMAD AZEEM----Petitioner

Versus

Rana ABAD ALI and another----Respondents

Writ Petition No.7872 of 2007, decided on 22nd November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Cancellation of licence to ply coaches---Petitioner was a transporter and was plying his coaches and was depositing amount with authorities as fee for the track/bay allocated to him---Licence of petitioner was cancelled---No notice of any kind was issued to the petitioner earlier to cancellation of his licence---Impugned order did not depict that petitioner was called upon to explain his position or he was heard at. the time of taking of complained action---Impugned order was not only sketchy, but also lacked reasoning in itself---Vested right had accrued to petitioner when competent Authority had granted him licence to ply his coaches---Complained action was not only violative of mandatory provisions of law, but was also contrary to the principles of natural justice---Impugned order was declared to be void and non-existent in the eye of law.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Messrs Murree Brewery Company Limited v. Director-General, Excise and Taxation and 3 others 1991 MLD 267 and Gul Muhammad and 8 others v. Buxal and 2 others 1991 CLC 229 ref.

M. Shams Iqbal Rana for Petitioner.

Mian Subah Sadiq Wattoo for Respondents.

2008 C L C 175

[Lahore]

Before Muhammad Jehangir Arshad, J

SYED AHMED through Special Attorney----Appellant

Versus

Syed MUZAFFAR HUSSAIN through L.Rs.----Respondents

Regular Second Appeal No.57 of 2002, decided on 26th October, 2007.

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

----S. 2---Valid agreement---Pre-conditions---For constitution of valid agreement there must be at least two persons i.e. promisee and promisor who agree with their free consent for a lawful object and legal consideration.

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

----S. 2(a)(b)(c)---Valid agreement---Scope---In absence of offer and acceptance, the same cannot ripe into an agreement.

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

----S. 12---Contract Act (IX of 1872), S.2(a)(b)(c)---Civil Procedure Code (V of 1908), O.XLI, R.33---Valid agreement---Proof---Moulding of relief---Plaintiff claimed that defendants entered into agreement to sell the suit property and had received earnest money---No agreement to sell was signed by defendants and plaintiff had only relied upon receipt of earnest money---Suit and appeal filed by plaintiff were dismissed by Trial Court and Appellate Court---Plea raised by plaintiff was that receipt was a proof of payment of earnest money with regard to agreement between the parties---Validity---Receipt neither fulfilled the requirements of agreement as defined in S.2(a)(b)(c) of Contract Act, 1872, nor stood the test of settled law---Receipt could at the most be construed as an understanding which could not be construed equivalent to a contract---Receipt could not be held to be an agreement within the contemplation of S.2 of Contract Act, 1872, therefore, no suit for specific performance could either be filed by plaintiff nor the same was maintainable---Plaintiff had proved payment of money to defendants, therefore, High Court, in exercise of power conferred upon it under O.XLI, R.33, C.P.C., converted the relief for specific performance into one as suit for return of amount---Judgments of two courts below dismissing the suit for specific performance of agreement and dismissing appeal by Lower Appellate Court were upheld---After converting suit into one for return of money the suit was decreed in favour of plaintiff.

Ghulam Zohra and 8 others v. Nazar Hussain through Legal Heirs 2007 SCMR 1117; 1990 CLC 1877; 1995 CLC 327; Alexander Brogden and others v. The Directors & C, of the Metropolitan Railway Company 2 AC 666 year 1877; Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28; Mehran Sugar Mills Limited v. Sindh Sugar Corporation Limited through Chairman and 2 others 1995 CLC 707; Major (Reid.) Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515; Fazal Rahman v. Amir Haider and others 1986 SCMR 1814; Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777; 1992 MLD 2515; 2002 MLD 1901; PLD 1981 Kar. 170 and 2003 YLR 1866 ref.

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

----Preamble---General principles of law in vogue in England cannot override statutory provisions of Contract Act, 1872.

Rana Muhammad Sarwar for Appellant.

Ch. Javed Rasool and Mian Muhammad Athar for Respondents.

Dates of hearing: 19th, 24th September, 1st and 2nd October, 2007.

2008 C L C 187

[Lahore]

Before Muhammad Muzammal Khan, J

Mrs. YAWAR AZHAR WAHEED through L.Rs.----Petitioners

Versus

KHALID HUSSAIN and 5 others----Respondents

Civil Revisions Nos.420 and 430 of 2006, heard on 24th October, 2007.

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

----S. 181(2)---Cantonments Rent Restriction Act (XI of 1963), S.14---Transfer of Property Act (IV of 1882), Ss.10 & 11---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Approved Housing Scheme in Cantonment---Transfer of residential plot in such scheme by Cantonment Board in favour of original allottee through sale-deed containing restriction on its use for commercial purposes---Transfer of such plot to defendant by original allottee through sale-deed waving such restriction placed on its use without getting sanction from Cantonment Board---Sanctioning of mutation and site plan by Cantonment Board for construction of private school on such plot by defendant---Plaintiff being resident of such Housing Scheme prayed in her suit to restrain defendant from raising commercial building on such plot---Validity---Bylaw (No.27) restricted Cantonment Board to approve any site plan in violation of an approved Housing Scheme---Section 14 of Cantonments Rent Restriction Act, 1963 restricted conversion of residential building into commercial building or vice versa except with permission in writing of Controller of Rents---Residential plot/building could not be converted into commercial building without observing prescribed legal formalities or getting permission from concerned authorities/courts---Sanctioning of mutation or site plan in violation of Bylaws would not inject legality into unauthorized action---Original allottee being a private vendee could not change Bylaws or remove clog himself on his use of such plot---Sections 10 and 11 of Transfer of Property Act, 1882 related to conditions/ limitations absolutely restraining transferee from parting with or disposing of his interest in property i.e. use of plot for residential purposes---Restrictions as envisaged in Ss.10 & 11 of Cantonments Act, 1924 were not imposed on rights of original allottee---Clog created regarding conversion of use of such plot could not be adjudged by invoking provisions of Ss.10 & 11 of the Act---Original allottee could legally transfer only the interest held by him in such plot, but none else---Original allottee could not license plaintiff to utilize suit plot for any other purpose for which he himself was under disability---Restriction contained in sale-deed in favour of original allottee would continue and plaintiff as transferee would abide by them---Sanctioning of mutation or site plan in violation of Bylaws would not create any right contrary to sale-deed in favour of original allottee---Opening of school in residential area would not only cause a public nuisance, but would bring a personal injury in form of discomfort to residents of locality---Suit was decreed in circumstances---Principles.

Lahore Grammar School (Pvt.) Ltd. and another v. Mst. Hameeda Begum and another PLD 1996 Lah. 442; Prof. Doctor Asghar Alla-ud-Din and 3 others v. Lahore Lyceum School, Multan through Principal and 2 others 1999 CLC 66; PLD 2007 Lah. 485; Abdul Hafiz and another v. Muzaffar Karim PLD 1973 Kar. 253; Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631; Arif and another v. Jaffar Public School through Principal/ Administrator and 8 others 2002 MLD 1410; Mst. Aqila Begum and another v. Pakistan Employees Cooperative- Housing Society, Ltd. and others PLD 2004 Kar. 1; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; Writ Petition No.1709 of 2007 and Islam-ud-Din and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

(b) Practice and procedure---

----Two or more wrongs could not make one right---Illustration.

Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 ref.

Mujeeb-ur-Rehman Kiani for Petitioners.

Abdul Rashid Awan for Respondents Nos.1 to 5.

Mirza Viqas Rauf for Respondent No.6.

Date of hearing: 24th October, 2007.

2008 C L C 197

[Lahore]

Before Mian Hamid Farooq, J

MALKA and 4 others----Petitioners

Versus

SULTAN and another----Respondents

Civil Revision No.1092 of 2002, heard on 17th October, 2007.

Civil Procedure Code (V of 1908)---

---S. 48 & O.XXI, Rr.10 & 11---Limitation Act (IX of 1908), S.12(2) & Art.181---Execution of decree, application for---Limitation---Execution application filed after 3 years, 4 months and 22 days of passing of decree---Decree-holder claimed exclusion of time consumed in obtaining certified copy of decree sought to be executed---Validity---Execution application was not one of the applications visualized in S.12(2) of Limitation Act, 1908---Decree-holder was not entitled to exclusion of time so consumed---First execution application would be governed by residue Art.181 of Limitation Act, 1908, while subsequent applications would be governed by S.48, C.P.C. prescribing period of six (6) years therefor---If no execution application was filed within period prescribed by Art.181 of Limitation Act, 1908, then first execution application filed after expiry of three (3) years would be barred by time, and in such case, decree-holder could not avail benefit of extended period provided by S.48, C.P.C.---Execution application was dismissed for being barred by time---Principles.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759 rel.

Faiz Muhammad Bilal for Petitioners.

Nemo for Respondent.

Date of hearing: 17th October, 2007.

2008 C L C 200

[Lahore]

Before Muhammad Muzammal Khan, J

NOOR AVENUE COOPERATIVE HOUSING SOCIETY, HANJARWAL, LAHORE through President---Petitioner

Versus

LAHORE DEVELOPMENT ATUHORITY through Director-General, L.D.A., Lahore and 3 others----Respondents

Writ Petition No.146 of 1993, heard on 28th September, 2007.

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

----S. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Land acquisition---Compensation awarded not acceptable to landowner---Non-filing of reference by landowner under S.18 of Land Acquisition Act, 1894---Landowner, after losing case before civil court could not challenge acquisition proceedings at belated stage---Constitutional petition was dismissed in circumstances.

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

---S. 4---Corrigendum notification regarding left out small part of land not included in original notification---Validity---Such corrigendum notification being in continuation of original notification could not be challenged separately.

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

----Art. 199---Civil Procedure Code (V of 1908), S.9---Constitutional petition during pendency of civil suit---Not maintainable---Principles.

Law regarding competency of constitutional petition pending civil suit is firmly settled to the effect that it will not be maintainable to pre-empt the jurisdiction of a competent forum of to sit in appeal against the decision rendered by civil court in collateral proceedings.

Haji Dosa Limited and others v. The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another 1986 CLC .1193; Brig. Shahibdad Khan v. Secretary, Colonies, Board of Revenue, Government of the Punjab, Lahore and 5 others PLD 2000 Lah. 244; Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238 ref.

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

---O. IX, Rr.8 & 9---Constitution of Pakistan (1973), Art.199---Dismissal of suit for non-prosecution---Non-filing of application for restoration of suit---Effect---Fresh suit or constitutional petition would be barred under O.IX, R.9, C.P.C.

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

---O. IX, Rr.8 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Dismissal of suit for non-­prosecution---Application for restoration of suit---Order of Trial Court dismissing such application upheld by Appellate Court---Constitutional petition, if filed thereunder, could not proceed.

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

----Ss. 4 & 18---Punjab Acquisition of Land (Housing) Act (VIII of 1973), Ss.4 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Notification of land acquisition---Disputed factual question regarding non-fulfillment of conditions precedent for issuance of such notification---Such questions could only be decided by civil court---Question as to whether acquisition was for public purpose or not could be determined by civil court---Constitutional petition was dismissed for being not maintainable.

(g) Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Notification of land acquisition for Housing Society---Validity---Public purpose---Laying of Housing Scheme by Housing Society for utility/use of public-at-large as compared to some individual; would be a "public purpose" within meaning of S.4 of Punjab Acquisition of Land (Housing) Act, 1973---Requirements of law were sufficiently met after having published such notification in official Gazette and affixed its copies at conspicuous place at land acquired----Collector had already announced award and taken possession of land, which vested in Housing Society absolutely---No case made out for interference in constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Malik Amjid Parvaiz for Petitioner.

Mian Muzaffar Hussain for L.D.A. Riaz Hussain for Respondents.

Date of hearing: 28th September, 2007.

2008 C L C 224

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HUSSAIN and 5 others----Petitioners

Versus

GHULAM QASIM and 7 others----Respondents

Civil Revisions Nos.1573, 1563 to 1565 of 2006, decided on 23rd November, 2007.

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

----S. 42---Civil Procedure Code (V of 1908), O.II, R.2 & O.XXIII, R.1---Suit for declaration----Inheritance, claim of---Plaintiffs being children of pre-deceased daughter having inherited 1/4th share in estate of her father---Plea of defendant that earlier suit filed by plaintiffs was withdrawn on receipt of compensation for their share, thus, fresh suit was barred by O.II, R.2, C.P.C.---Denial of plaintiffs to have filed earlier suit---Proof---Onus was upon defendant to have proved such fact, but no such attempt was made by him---Record of earlier suit had not been summoned---Counsel, who withdrew earlier suit, had not been produced as witness---Plaintiff when appeared as witness had not been confronted with plaint in earlier suit---Factum of filing suit earlier and its withdrawal by plaintiffs on receipt of compensation for their share had not been proved---Suit was decreed in circumstances.

Aziz Ahmad and others v. Mst. Hajran Bibi and another 1987 SCMR 527; Muhammad Aslam v. Muhammad Tufail and 2 others 1995 CLC 1061 and Ghulam Nabi and others v. Seth Muhammad Yaqub PLD 1983 SC 344 ref.

(b) Inheritance---

---Question of limitation would not arise in matter of inheritance.

Zia Ullah Khan Niazi for Petitioner.

M. Saleem Akhtar for Respondents.

Dates of hearing: 21st, 22nd and 23rd November, 2007.

2008 C L C 232

[Lahore]

Before Maulvi Anwarul Haq, J

SHER and another----Petitioners

Versus

BHAI KHAN and another----Respondents

Civil Revision No.1845 of 2005, heard on 29th November, 2007.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Appeal, form of---Impugned judgment/decree were passed on 8-11-2004---Appeal was filed on 24-12-2004 without certified copies of judgment/decree, which were not supplied to appellant till then, for which he had applied to Copy Branch on 10-11-2004---Appellate Court after preliminary hearing admitted appeal for regular hearing without such copies and summoned record from Trial Court---Such copies were prepared and delivered to appellant on 3-1-2005---Application by respondent filed on 4-3-2005 seeking dismissal of appeal for not accompanying with such copies---Appellant's application accompanied with such copies explaining delay in its non-filing in time---Order of Appellate Court accepting appellant's application condoning such delay---Validity---Appellate Court had started hearing of appeal after receiving record from Trial Court----Provisions of O.XLI, R.1, C.P.C. were directory---High Court dismissed revision petition filed by respondent.

Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others 2005 SCMR 931; Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252 and Sherian and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

Mst. Safia Begum v. Taj Din and 2 others 1993 SCMR 882 and Baseer Ahmed Siddiqui v. Shama Afroz 1988 SCMR 892 fol.

Mian Muzaffar Hussain for Petitioners.

Zahid Hussain Khan for Respondents.

Date of hearing: 29th November, 2007.

2008 C L C 245

[Lahore]

Before Maulvi Anwarul Haq, J

MUREED ALI----Petitioner

Versus

Mst. MALOOKAN BIBI and 7 others----Respondents

Civil Revision No.1366 of 2002, heard on 1st November, 2007.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.32---Suit of specific performance of sale agreement---Sale of defendant's land during her minority by her mother---Defendant on attaining majority did not ratify sale of her land by her mother, but agreed to sell same to defendant and appointed him as her Attorney authorizing him to file suit for setting aside sale during her minority---Suit filed by plaintiff as General Attorney pursuant to such agreement was later on withdrawn by defendant---Sale of land by defendant to subsequent vendee---Plea of subsequent vendee in suit filed by plaintiff wag that agreement with plaintiff was contingent upon success in defendant-vendor's suit for setting aside sale during her minority, which contingency had never occurred, thus, question of performance of agreement would not arise---Validity---Defendant-vendor had withdrawn her suit on asking of plaintiff, who had identified her before Court---Performance of agreement was dependant upon success in suit, which was to be filed pursuant to such agreement between plaintiff and defendant-vendor, which had never happened---Suit was dismissed in circumstances.

Muhammad Ibrahim for Petitioner.

Muhammad Iqbal Khokhar for Respondents Nos.3 to 6.

Nemo for others.

Date of hearing: 1st November, 2007.

2008 C L C 248

[Lahore]

Before Syed Hamid Ali Shah, J

FIRDOUS BEGUM and 6 others----Petitioners

Versus

Mst. SALAMAT BIBI and another----Respondents

Civil Revision No.1429 of 2007, decided on 10th October, 2007.

Partition Act (IV of 1893)---

----Ss. 2 & 3---Civil Procedure Code (V of 1908), O.XX, R.18(2)---Partition suit---Scope and applicability of Ss.2 & 3, Partition Act, 1893---Preliminary decree declaring rights of parties interested in joint property---Property indivisible between share-holders as per report of Local Commission---Order of Trial Court to auction property without providing opportunity to shareholders to apply for leave to buy property---Validity---Partition decree consisted of preliminary decree and final decree---Once preliminary decree was passed, then provisions of S.2 of Partition Act, 1893 would not apply and Court would have to pass final decree and resort to provision of S.3 thereof and in case of failure of any shareholder to apply for leave to buy share, then property would be liable to be auctioned---Once property was found to be indivisible, then Court for effecting partition would have to follow procedure laid down in Partition Act, 1893 after providing opportunity to shareholders to apply for leave to buy property---Shareholder would have right to request Court for sale of property before passing decree for partition---Object of S.3 of Partition Act, 1893 was to prevent property to fall into hands of third party, if same could be done in a reasonable manner---High Court set aside impugned order in circumstances---Principles.

In the present case, the parties had not disputed the report of Local Commission, which speaks of the fact that the property is indivisible. In case a property is indivisible between the shareholders, then the procedure laid down in Partition Act, 1893 for effecting partition is to be followed. The Court has to provide the shareholders an opportunity to apply for leave to buy the property. An order for valuation of shares is required under section .3 of the Partition Act, 1893 to be passed and price of shares is to be ascertained. Trial Court in the present case had proceeded to auction the property without giving necessary and proper directions. The object of section 3 of Partition Act, 1893 is to prevent the property to fall into the hands of third party, if that can be done in reasonable manner.

The conditions precedent for applicability of provisions of section 2 of Partition Act, 1893 are that there must be finding that the division of the property cannot reasonably or conveniently be made; that sale of the property and distribution of the proceeds would be more beneficial to all the shareholders; and that there must be a request for directing the sale of the property and a distribution of the proceeds. The right has been conferred upon the shareholders to request the Court for sale of the property before the decree for partition. According to section 2 of Partition Act, 1893, request for sale can be made, where a decree for partition has been made. Legislature has consciously used the phrase "where a decree for partition might have been made". Sale, according to provisions of section 2, pertains to the cases, where decree might have been made. Provisions of section 2 is not applicable to the case, where the decree has been passed. Partition decree consists of two decrees namely the preliminary decree and final decree. Once the preliminary decree is passed, the provisions of section 2 of Partition Act, 1893 will not apply and the Court will have to pass final decree. The Court, in such circumstances, will resort to the provisions of section 3 and in case of failure of any shareholder to apply for leave to buy the share; the property is liable to be auctioned.

Impugned order suffered from legal infirmity and could not sustain, thus, it was set aside.

Mst. Ilahi Noor and 4 others v. Muhammad Din PLD 1977 SC 634 and Mirza Adam Khan v. Muhammad Sultan PLD 1995 SC 9 ref.

Mian Zulfiqar Ali for Petitioners.

Malik Noor Muhammad Awan for Respondents.

2008 C L C 252

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD BASHIR----Petitioner

Versus

MUHAMMAD RAMZAN and another----Respondents

Civil Revision No.1571 of 2007, decided on 2nd November, 2007.

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

----Ss. 5 & 13---Civil Procedure Code (V of 1908), O.XVII, R.3---Pre­emption suit---Dismissal of suit for non-production of evidence by plaintiff on adjourned date granted at his request---Validity---Defendant or his counsel had not objected to adjournment prayed by plaintiff on earlier dates of hearing---Prior to taking impugned action, Trial Court had not required plaintiff to appear himself in witness box or produce documentary evidence in his possession---Plaintiff had examined one witness and produced in evidence postal receipts and acknowledgement due receipts---Plaintiff had appended with plaint certain documents---Showing his superior right of pre-emption and dispatch of notice of Talb-e-Ishhad, but Trial Court had not considered same while passing impugned judgment---Adjournment granted in routine would not invite provisions of O.XVII, R.3, C.P.C.---High Court accepted revision petition, set aside impugned judgment/decree and granted one single opportunity to plaintiff for producing his entire evidence on the date to be fixed by Trial Court subject to payment of costs of Rs.5,000 and in case of his failure to do so, impugned judgment would revive automatically.

Syed Tasleem Ahmed Shah v. Sajawal Khan and others 1985 SCMR 585 rel.

Ch. Dost Muhammad Kahoot for Petitioner.

Allah Wasaya Malik for Respondents.

2008 C L C 258

[Lahore]

Before Muhammad Khalid Alvi, J

Mst. AZIM BIBI----Petitioner

Versus

RASHIDA BEGUM and others----Respondents

Civil Revision No.2094 of 2000, heard on 29th October, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration---Sale Deed by plaintiff in favour of defendant was alleged to be fraudulent---Plaintiff's plea was that defendant, on pretext of getting her mother treated had taken them to hospital, where he got their thumb impressions on some papers, which later on proved to be disputed Sale Deed---Validity---Plaintiff did not claim herself to be a "Parda" observing lady nor she claimed that she had no independent advice of any male member of her family---Alleged plea of fraud was totally destroyed by plaintiff by deposing that she never put any thumb impression on any document---Complete onus of proving execution, contents and registration of Sale Deed in such circumstances could not be shifted to defendant as very basis of alleged fraud could not be discharged by plaintiff herself---Defendant had proved payment of sale consideration before Registrar by producing witnesses of bargain and Sale Deed---Suit was dismissed in circumstances.

1998 SCMR 1354 and PLD 1998 Pesh. 11 ref.

Nisar Ahmed Baig for Petitioner.

Naveed Shaheryar Sheikh for Respondents.

Date of hearing: 29th October, 2007.

2008 C L C 261

[Lahore]

Before Muhammad Jehangir Arshad, J

TAHIR MAHMOOD----Appellant

Versus

FAQIR MUHAMMAD through L.Rs.----Respondents

Regular Second Appeal No.59 of 2007, decided on 25th October, 2097.

Specific Relief Act (I of 1877)---

----S. 8---Transfer of Property Act (IV of 1882), S.68---Civil Procedure Code (V of 1908), O.VIII, Rr.6 & 7---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for recovery of possession of land---Defendant's pleas were that plaintiff was not owner of suit land; that plaintiff had mortgaged suit land with undertaking to return mortgage money to defendant on getting back from him its possession; that he was entitled to costs of improvements carried on suit-land---Validity---Defendant for having denied plaintiff's ownership could not claim from him return of alleged mortgage money---Defendant in written statement had neither claimed set off nor given particulars of alleged improvement carried on suit-­land---In absence of such claim or particulars, defendant could not seek relief for return of any amount or payment of costs of improvements---Defendant had not filed suit for return of alleged amount---Alleged mortgage deed placed on record without its formal proof would not constitute a mortgage deed---Plaintiff's suit was decreed in circumstances.

Nawab Saeedullah Khan for Appellant.

Ishfaq Qayum Cheema for Respondents.

2008 C L C 268

[Lahore]

Before Syed Asghar Haider, J

ABDUL MAJID----Petitioner

Versus

GHULAM HUSSAIN----Respondent

Civil Revision No.192 of 2007, decided on 2nd November, 2007.

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

----S. 54---Oral sale---Proof---Such transaction would be evaluated, weighed and carefully looked into to determine its validity/authenticity or otherwise---Imperative upon plaintiff to produce best possible evidence in such context.

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

----S. 12---Transfer of Property Act (IV of 1882), S.54---Suit for specific performance of oral sale agreement---Proof---Out of three persons named. in plaint having witnessed transaction of sale, plaintiff examined one witness, which created doubt about the authenticity of transaction---Second witness produced by plaintiff was having parentage different from that of witness named in plaint---Testimony of such second witness was irrelevant and of no legal value---No independent evidence existed on record to establish oral transaction or passing of any consideration---Suit was dismissed in circumstances.

Muhammad Sharif Chohan for Petitioner.

Ch. Shafqat Ali Sulehria for Respondent.

2008 C L C 271

[Lahore]

Before Mian Hamid Farooq, J

GHULAM ABBAS----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SARGODHA through Chairman and 4 others----Respondents

Civil Revision No.2648 of 2005, decided on 1st November, 2007.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Board of Intermediate and Secondary Education (Sargodha) Ordinance (VII of 1968), S.29---Civil Procedure Code (V of 1908), S.9 & O.VII, R.11(d)---Suit for declaration---Cancellation of plaintiff's Matriculation and Intermediate Certificates by Board alleged to be with mala fide intention and without affording him opportunity of hearing---Rejection of plaint by Trial Court for want of jurisdiction---Validity---Plaintiff in plaint had specifically pleaded mala fide on the part of Board and non-providing him opportunity of hearing before canceling his certificates---Board could not be allowed to exercise omnipotent powers not amenable to judicial review under garb of S.29 of West Pakistan Board of Intermediate and Secondary Education (Sargodha) Ordinance, 1968---Such embargo on rights of citizens was violative of their fundamental rights enshrined in the Constitution---Despite bar of jurisdiction, Civil Court would still have jurisdiction to try plaintiffs suit to examine impugned action of Board, whether same was in accordance with law or illegal or mala fide and against principles of natural justice---Plaint did disclose cause of action---High Court set aside impugned judgment, resultantly suit would be deemed to be pending before civil Court for its decision after recording evidence of parties---Principles.

Board of Intermediate and Secondary Education, Sargodha and another v. Muhammad Rafique PLD 1991 SC 231; Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue Punjab and others PLD 1991 SC 691; Board of Intermediate and Secondary Education, Lahore and others v. Ch. Anjum Pervaiz and another 1989 CLC 64; Amjad Yasin v. University of Engineering and Technology through Vice Chancellor and 3 others 1991 SCMR 2640 and Mst. Jameela Kausar v. Board of Intermediate and Secondary Education and others 2003 SCMR 153 ref.

Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838; Muhammad Rafiq v. The Board of Intermediate & Secondary Education and others 1983 SCMR 1024 and Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 rel.

Rai Muhammad Panah Bhatti for Petitioner.

Dr. M. Mohy-ud-Din for Respondents Nos.1 to 3.

Syed Nayyar Abbas Rizvi, A.A.-G. for Respondents Nos.4 and 5.

2008 C L C 276

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ILYAS- --Petitioner

Versus

MANAZAR ALI and 40 others----Respondents

Civil Revision No.1313 of 2007, heard on 22nd November, 2007.

Civil Procedure Code (V of 1908)---

----O. VIII, R.10---Failure to file written statement---Striking off defence---Amended plaint to which written statement was to be filed was presented and on the very date it was presented, defence of defendant was struck off---Defendant had rightly contended that there was no occasion for the Trial amt. to have asked for written statement on a plaint which had not been filed before it---Defendant could have been called upon to file the written statement only when the plaint had been filed and entertained by the court---Order closing right of defence of defendant, was set aside.

Petitioner in person.

Respondents: Ex parte.

Date of hearing: 22nd November, 2007.

2008 C L C 278

[Lahore]

Before Mian Hamid Farooq, J

ANWAR ALI and 7 others----Petitioners

Versus

GOVERNMENT OF THE PUNJAB through District Officer Revenue, Jhang and 10 others----Respondents

Writ Petition No.18292 of 2004, decided on 18th September, 2007.

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

----S. 164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Member Board of Revenue did not render any findings on the basis of which he jumped to the conclusion that petitioner's revision petition deserved to be rejected---Impugned order was sketchy, slipshod and devoid of reasons---Said order being not at all a speaking order, could not be called a "judicial order" within the parameters setup by law---Tenor of impugned order amply manifested non-application of judicial mind---`Judicial order', must be speaking order manifesting by itself that the court had applied its judicial mind to the issues and points of controversy involved in the causes---Impugned order being not a speaking order was devoid of reasons, and thus, was not sustainable in law, which was set aside and petitioner's revision petition would be deemed to be pending before Member Board of Revenue who would decide the matter afresh after rendering findings on all issues involved in the case.

Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others PLD 1959 SC (Pak.) 272; Gouranga Mohan Sikdar v. The Controller Import and Export and 2 others PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others 1984 SCMR 1014 ref.

Syed Faiz-ul-Hassan and Taki Ahmed Khan for Petitioners.

Syed Nayyar Abbas Rizvi, A.A.-G. for Respondents Nos.1, 2, 10 and 11 along with Muhammad Younis, Naib Tehsildar.

Khuram Khan for Respondent No.3.

Hamid Ali Mirza for Respondents Nos.4 to 9.

2008 C L C 280

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHARIF and 3 others----Petitioners

Versus

MASJID AHAL-E-SUNAT WALJAMAT, MOUZA JASSOWALI TEHSIL PASRUR through Ghulam Muhammad and another----Respondents

Civil Revision No.1829 of 2006, heard on 5th December, 2007.

Civil Procedure Code (V of 1908)---

----S. 104(1)(i), O. XXXIX, R.2(3) & O.XLIII, R.1(r)---Disobedience of injunctive order---Effect---Injunction order passed under O.XXXIX, R.2, C.P.C. in favour of respondent, was not challenged by the petitioners in any manner---Appeal was provided for against said order under S.104(1)(i), read with O.XLIII, R.1(r), C.P.C., but no such appeal was filed by the petitioners---Said order, in circumstances had attained finality---No allegation was levelled that the court had no jurisdiction to issue the temporary injunction; in view of the unchallenged findings that the injunction had been disobeyed, the court had the jurisdiction to take cognizance of the same and to order restoration of possession taken in violation of the injunctive order---Mere fact that the injunction was later vacated by the Court or that the suit itself was dismissed subsequently, would not wipe off the disobedience/contempt committed by the petitioner.

Altaf-ur-Rehman for Petitioners.

Ch. Javed Akhtar Jajja for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 5th December, 2007.

2008 C L C 283

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD BAKHSH through L.Rs. and others----Petitioners

Versus

FARAZA----Respondent

Civil Revision No.1256 of 1988, heard on 5th November, 2007.

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

----S. 39---Transfer of Property Act (IV of 1882), S.118---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff who claimed his possession qua the suit land, instituted the suit for declaration to the effect that he was owner in possession of suit land and that mutation of exchange in respect of suit land in favour of defendant was illegal and ineffective qua the rights of the plaintiff with a prayer of permanent injunction---Defendant claimed the ownership of suit land on the basis of exchange and statement to that effect was recorded by the Revenue Officer---Validity---Plaintiff had succeeded in proving that he was owner in possession of the suit land and the impugned mutation of exchange was of no effect---Mere fact that mutation of exchange was upheld in the hierarchy of Revenue authorities, was no ground to non-suit the plaintiff---Suit was rightly decreed and appeal preferred against the said judgment and decree was justifiably dismissed---No misreading or non-reading of evidence was pointed out---No illegally or material irregularity was shown to have been committed by the court below---Findings of the court below were unexceptionable.

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

----S. 2(2)-West Pakistan Land Revenue Act (XVII of 1967), S.39---Decree and mutation---Mutation was no match to a decree of civil court---Mutation was merely for fiscal purposes and was not a document of title---Mutation could not equate or compete with decree---Decree was a final adjudication of the controversy---Decree would hold the field, until it was set aside by the higher forum or was annulled in a petition under S.12(2), C.P.C.

Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 SCMR 619; Muhammad Ameen v. Sardar Ali PLD 2006 SC 318 and Muhammad and 19 others v. Muhammad Hayat and 8 others 2006 CLC 907 ref.

Allah Wasaya Malik for Petitioners.

Abdul Wahid Chaudhry for Respondent.

Date of hearing: 5th November, 2007.

2008 C L C 287

[Lahore]

Before Maulvi Anwarul Haq, J

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

Versus

MUHAMMAD RAMZAN----Respondent

Regular First appeal No.245 of 1999, heard on 29th November, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Application for grant of leave to defend suit---Leave to defend suit was granted subject to deposit of suit amount with Deputy Registrar of the Court which amount was to be invested in a profit bearing scheme---Amount had been deposited and invested accordingly in a profit bearing scheme---Condition thus stood complied with as said amount was deposited and invested as ordered by the High Court---Impugned judgment and decree of the Trial Court was set aside with the result that suit would be deemed to be pending in the Trial Court to whom the record along with a copy of said judgment would be remitted which would decide the suit in accordance with law.

Khalid Aseer Chaudhry for Appellants.

Respondent: Ex parte.

Date of hearing: 29th November, 2007.

2008 C L C 288

[Lahore]

Before Mian Saqib Nisar, J

MUKHTAR AHMAD and 7 others----Petitioners

Versus

MAIRAJ DIN and another----Respondents

Civil Revision No.2320 of 2001, heard on 11th October, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Maintainability---Scope---Mutation in respect of suit land earlier was sanctioned in favour of respondent under a decree---Petitioners challenged entitlement of respondent in respect of land in dispute---Agreement was arrived at between the parties, whereby respondent acknowledged that he was not entitled to land in dispute and mutation thereof---Respondent agreed that in case a suit was brought against him, he would concede the claim of petitioners---Petitioners instituted the suit against respondent on the basis of the agreement between the parties according to which a conceding written statement was to be filed by respondent---Said suit, however, was contested by respondent alleging that he never entered into the alleged agreement and that he did not file any conceding written statement---Courts below despite holding that agreement was executed by respondent and that he did file conceding written statement, dismissed suit filed by petitioners holding that instead of suit for declaration, petitioner should have brought the suit for specific performance---Validity---Execution of agreement between parties and conceding written statement filed by respondent were duly proved by the petitioners when the rights of the petitioners under the agreement were denied by the respondent---Case squarely fell within the purview of S.42 of Specific Relief Act, 1877---View formed by the courts below that petitioners should have filed the suit for the specific performance was absolutely misconceived---Impugned judgments and decrees were set aside and suit filed by the petitioners against respondent stood decreed as prayed for.

Taqi Ahmed Khan for Petitioners.

Ch. Muhammad Yaqub Sidhu for Respondents.

Date of hearing: 11th October, 2007.

2008 C L C 293

[Lahore]

Before Maulvi Anwarul Haq, J

SAADULLAH and 6 others----Petitioners

Versus

MUHAMMAD SARWAR through L.Rs. ----Respondents

C.M. No.223 of 2004 in Civil Revision No.1108 of 2001, decided on 28th November, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Last male owner of suit land died issueless and defendant who was son of brother of deceased, had claimed that deceased in his life time sold out suit land to him for consideration---Plaintiffs who were also successors of other brothers of deceased, denied claim of defendants alleging that deceased had not sold out suit land to him and vendor had not appeared before Tehsildar---Validity---Impugned mutation of land in dispute was entered with reference to report of Roznamcha Waqiati and Tehsildar attested same on identification of vendor by Lamberdars---Certified copy of the Roznamcha was produced by the defendant and was admitted in evidence without any objection---Widow of vendor, while fully supporting the sale of land in question by her husband/vendor in favour of his nephew i.e. defendant, made a statement against her own interest as she was to inherit 1/4th share in estate in question---Widow made the statement not only admitting the sale and delivery of possession of suit land in favour of defendant, but had also stated that consideration amount was also paid by defendant to her husband/vendor---Case for interference with impugned judgments and decrees in the light of said evidence on record under S.115, C.P.C. having not been made out, revision against said judgments and decrees, was dismissed.

Sh. Fazal Elahi Shahid for Petitioners.

2008 C L C 295

[Lahore]

Before Mian Hamid Farooq, J

WAPDA through Chairman, WAPDA House, Lahore and another----Petitioners

Versus

SHAH MUHAMMAD through L.Rs.----Respondents

Civil Revision No.1391 of 2007, decided on 28th November, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Both the courts below, after adverting to every aspect of the case and in view of the evidence on record, had decided the matter and defendants had not been able to make out any case for interference in the two concurrent. judgments---Even no misreading and non-reading of the evidence on record had been pointed out by the counsel for defendants---Both the judgments were not only in accordance with the record of the case, but the same were also in consonance with the law on the subject---Concurrent findings of facts, based on evidence, were not liable to be interfered in the exercise of jurisdiction under S.115, C.P.C.---Revision petition being devoid of merits stood dismissed.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through L.Rs. and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Dr. Muhammad Irtiaz Awan for Petitioners.

Muhammad Anwar Bhatti for Respondents.

2008 C L C 297

[Lahore]

Before Syed Zahid Hussain, J

ABDUS SATTAR CHUGHTAI MALIK, ADVOCATE----Petitioner

Versus

PAKISTAN BAR COUNCIL and others----Respondents

Writ Petition No.10590 of 2006, decided on 6th October, 2006.

(a) Supreme Court Bar Association of Pakistan Rules, 1989---

----Rr. 8, 9 & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Vires of amendment of R.9(a) of Supreme Court Bar Association of Pakistan Rules, 1989---Petitioner, an Advocate of Supreme Court had assailed amendment of R.9(a) of Supreme Court Bar Association of Pakistan Rules, 1989 in respect of reduction of the tenure qua the Supreme Court Bar Association from two years to one year approved by the Association and had prayed that such reduction of tenure be declared without lawful authority---Validity---Besides the objection as to the locus standi of the petitioner who was neither an office-bearer nor member of the Executive Committee of the Association, it was worth noting that none of the incumbent office-bearers or members of the Executive Committee had felt aggrieved of said amendment in the Rules---Membership of Association was 1580 who hailed from all over the country and only the petitioner had sought to assail the existing position---Not only number of elections had taken place thereafter, even the petitioner might have participated by casting his vote---Acceptability of such amendment of Rules was manifest from the fact that except the petitioner no one else had assailed the same---Terms could not be sought to be extended merely on the assumption that the successor would not be in a position to complete the agenda or carry out the developmental activity.

(b) Constitution of Pakistan (973)---

----Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction could not be exercised merely on assumptions.

Petitioner in person.

Ali Akbar Qureshi, Secretary SCBA of Pakistan with Irfan Khaleel Qureshi.

Zaka-ur-Rehman, Vice-President (Punjab) SCBA of Pakistan.

2008 C L C 383

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

Mehar AZIZ AHMAD----Appellant

Versus

Sheikh JAVED AKHTAR----Respondent

Regular First Appeal No.536 of 2005, heard on 3rd December, 2007.

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

----O. XXXVII, R.2---Dismissal of suit for recovery of amount on basis of negotiable instrument---Plaintiff's contention in appeal was that plea raised by defendant in application for leave to defend suit and in his written statement were contradictory to each other---Validity---Plaintiff had not raised such objection before Trial Court---Written statement was read and considered by Appellate Court in circumstances.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of dishonoured cheques---Garden leased out by plaintiff in defendant's favour---Dishonouring of cheque issued by defendant as part payment of lease money---Plea of defendant that he had paid amount of cheque to plaintiff; and that plaintiff used to purchase fuel from defendant's Petrol Pump, thus, amount due to each other had been adjusted upon rendition of accounts---Proof---Burden to prove such plea was upon defendant---Defendant had not produced sale records of his Petrol Pump---Statement of defendant as witness was that cheques were issued as a guarantee, which were returnable to him after payment of amount thereof to plaintiff---Defendant did not depose as to why he had not demanded back cheques after making alleged payments to plaintiff---Defendant neither remembered dates of alleged payments nor produced its proof---Defendant did not give even a single suggestion to plaintiff during his cross-examination that he had been paid amount of cheque in manner stated by defendant---Bank's Officer had corroborated plaintiff's statement regarding presentation and dishonouring of cheque---Nothing was on record to show that amount of cheques had been paid to plaintiff---Suit was decreed in circumstances.

Waqar Anjum for Appellant.

Malik Amjad Pervaiz for Respondent.

Date of hearing: 3rd December, 2007.

2008 C L C 405

[Lahore]

Before Sh. Hakim Ali, J

SADIQ HUSSAIN and others----Petitioners

Versus

HOUSE BUILDING FINANCE CORPORATION, BAHAWALPUR and others----Respondents

Civil Revision No.566 of 2004/BWP, decided on 23rd November, 2006.

Civil Procedure Code (V of 1908)---

----S. 12(2)---House Building Finance Corporation Act (XVIII of 1952), S.30---Judgment and decree challenged on ground of fraud and misrepresentation---House was mortgaged with House Building Finance Corporation---Respondent had failed to pay mortgage money, Corporation filed petition under S.30 of House Building Finance Corporation Act, 1952, which was decreed---Petitioners had filed application that said decree was passed on the basis of misrepresentation and fraud---Petitioners claimed that they had purchased said house through registered sale-deed; and that at the relevant time no entry of registered mortgage deed was found in the Revenue Record---Petitioners had failed to bring out the misrepresentation or nature of the fraud having been committed while passing impugned decree---Effect---Registered deed had got the presumption of correctness while Revenue Record had got no such presumption---If the entries had not been made in the Revenue Record, it would not be considered that registered assignment deed and its effectiveness would be evaporated---Petitioners who were purchasing the property had to be careful, cautious and had to examine the record of Registration Office before purchasing the property---Decree passed against the property could not be held to be void or result of misrepresentation or fraud in circumstances.

Shafiq Ahmad Malik for Petitioners.

M. Shamshir Iqbal Chughtai for Respondent No.1.

Date of hearing: 23rd November, 2006.

2008 C L C 429

[Lahore]

Before Syed Asghar Haider, J

Malik MUHAMMAD ASLAM----Petitioner

Versus

Sh. MUHAMMAD AMJAD and 2 others----Respondents

Civil Revision No.318 of 2007, decided on 10th January, 2008.

Stamp Act (II of 1899)---

---- Ss. 33, 35 & 38---Arbitration Act (X of 1940), Ss.16 & 17---Application for making award rule of court---Respondent filed application for making award rule of court---Petitioner raised objection that award was insufficiently stamped---Record proved that respondent was twice granted opportunity to make good the deficiency in the stamp duty required to be affixed on the award, but direction to that effect was not complied with---Reason given for non-compliance of said direction before the Trial Court was not convincing and application for making award rule of court was rejected by the Trial Court---Appellate Court proceeded to condone that omission without proper judicial application of mind and without taking into account the contumacious attitude of respondent who had twice ignored a clear direction of the Trial Court---Appellate Court also did not care to peruse and examine Ss.35 & 38 of Stamp Act, 1899 wherein it had been clearly stipulated that an insufficiently stamped document was inadmissible in evidence---Appellate Court below, which had failed to examine mandatory provisions as contained in Ss.35 & 38 of Stamp Act, 1899, had committed a material illegality--Impugned judgment and decree passed by Appellate Court below were set aside and proceedings were remitted to the court below to re-consider the relevant law on the subject.

Ch. Muhammad Aslam Zia for Petitioner.

Muhammad Sarwar Awan for Respondent No. 1.

2008 C L C 439

[Lahore]

Before Sardar Muhammad Aslam, J

DISTRICT EDUCATION OFFICER, SIALKOT and 3 others----Petitioners

Versus

DARUL ALOOM SHAHABIA through Administrator----Respondent

Civil Revision No.1133 of 1995, decided on 31st January, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration was concurrently decreed by the courts below---Plaintiff had failed to prove title to the suit property and both courts below had misconstrued and misread the evidence---Allowing `revision, impugned judgments and decrees passed by the courts below were set aside and case was remitted to the Trial Court to provide chance to plaintiff to produce further evidence in proof of his title, if any, along with providing a chance of rebuttal to defendants and to decide case afresh in accordance with law.

Ch. Muhammad Suleman, Addl. A.-G. for Petitioners.

Respondent: Ex parte.

2008 C L C 443

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

FAHMEEDA AKHTAR and 5 others----Appellants

Versus

SMALL BUSINESS FINANCE CORPORATION through Regional Manager and 2 others----Respondents

Intra-Court Appeal No.1104 of 1999 in Writ petition No.6049 of 1991, decided on 16th January, 2008.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court Appeal---Contention of counsel for appellants was that respondents were taking steps to recover amount of loan as arrears of land revenue from the appellants for which their late predecessor-in-­interest had stood guarantee---Single Judge in the first instance had observed that no material steps had yet been taken to use coercive machinery; further, while advising the appellants, as they so insisted, to get the liability determined from the proper forum; respondents were directed to act strictly in accordance with law---Impugned judgment had caused no grievance whatsoever to appellants---Intra-Court appeal, was dismissed, in circumstances.

Hasham Ahmad for Appellant.

2008 C L C 451

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

MUHAMMAD WAHEED ASGHAR BHATTI and 10 others----Petitioners

Versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor and 2 others----Respondents

Writ Petition No.1886 of 2006, decided on 7th February, 2007.

Educational institution---

----Candidates appeared in 3rd Professional M.B.,B.S. Examination, 2005 and were provisionally promoted to final M.B.,B.S. class, however they were declared failed in 3rd Professional Annual Examination 2005 . and could not qualify in the 3rd Supplementary Examination and were detained---Case of authorities was that petitioners were detained in 4th year M.B.,B.S. classes as they failed after availing annual and supplementary chances to get through 3rd Professional Examination---Regulations of the University of Health Sciences, Pakistan Medical and Dental Council and Colleges Prospectus, had amply manifested that a candidate, who passed in one or more subjects, but failed in the Annual Examination would provisionally be allowed to join the next higher class, but such. candidate would have to pass in failed subject in the Supplementary Examination failing which candidate would be detained in that class, and that no candidate could be promoted to the-higher class unless, he passed all the subjects of the previous class---Petitioners who failed even after availing two opportunities, could not be promoted and allowed to continue with their studies in the final year---Action of the authorities by detaining petitioners in 3rd Professional (4th M.B.,B.S. class) was in accordance with the rules/regulations of University of Health Sciences Pakistan Medical Dental Council and Colleges Prospectus---Petitioners thus, were not entitled to relief asked by them and discretionary constitutional jurisdiction could not be exercised in their favour---Constitution of Pakistan (1973), Art.199.

Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421 and Rashid Nawaz and 7 others v. University of the Punjab through Vice-Chancellor, Lahore and 3 others PLD 2007 Lah. 78 rel.

Muhammad Amin Bhatti for Petitioners.

Muhammad Asif Ismail for Respondents Nos. 1 and 3.

Muhammad Qasim, Litigation Officer, on behalf of Principal Nishtar Medical College.

2008 C L C 461

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DIN----Appellant

Versus

MUHAMMAD ALAM----Respondent

Regular Second Appeal No.13 of 2003, heard on 14th January, 2008.

Contract Act (IX of 1872)---

----S. 55---Transfer of Property Act (IV of 1882), S.54---Sale of immovable property---Agreement to sell---Time as essence of contract---In case of agreement to transfer immovable property, the time was not normally the essence of the contract; however, where one or the other party would take such a, plea, then not only the wordings of the agreement, but attending circumstances were also to be considered to determine as to whether the parties intended time to be of the essence of the contract.

Hafiz Khalil Ahmad for Appellant.

Ch. Riaz Ahmad for Respondent.

Date of hearing: 14th January, 2008.

2008 C L C 467

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

KHAN-MUHAMMAD and 6 others----Petitioners

Versus

FEDERAL LAND COMMISSION through Senior Member, Islamabad and 6 others----Respondents

Writ Petitions Nos.9258 of 2001 and 431 of 2003, heard on 23rd January, 2008.

Land Reforms Act (II of 1977)---

----S. 3---Punjab Land Reforms Rules, 1972, R.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Resumption of land---Cut-off date---Effect---Respondents were owners of land in question and Federal Land Commission found their holdings within the ceiling of 8000 Produce Index Units---Petitioners being tenants of land in question filed review application which was allowed and order of Federal Land Commission was reviewed but subsequently same was restored by appellate Authority---Validity---Held, it was a matter of record that till 23-3-1990, no decisive steps were taken in the matter and no land was resumed---No occasion arose for self-executory provisions of M.L.R. 115 or Land Reforms Act, 1977, to come into play---Review application itself was filed almost ten years after the cut off date laid down by Supreme Court---Orders impugned before Senior Member Federal Land Commission were wholly without jurisdiction---Chief Land Commissioner had observed that petitioners had no locus standi to file review application, who supported and upheld the order of Deputy Land Commissioner with reference to R.12(3) of Punjab Land Reforms Rules, 1972---Power of review under proviso to R.12(3) of Punjab Land Reforms Rules, 1972, had come to an end on 30-4-1975 and ceased to be effective more than 25 years before passing review order---High Court in exercise of constitutional jurisdiction declined to interfere with the order passed by Federal Land Commission---Petition was dismissed in circumstances.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 fol.

Mehr Nasir Hussain for Petitioners.

Ch. Rizwan Mushtaq, A.A.-G. for Respondents Nos. 1 to 4.

Ch. Khurshid Ahmad for Respondents Nos.5 to 7.

Date of hearing: 23rd January, 2008.

2008 C L C 472

[Lahore]

Before Maulvi Anwarul Haq, J

IQBAL HUSSAIN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others----Respondents

Writ Petition No.3436 of 2007, heard on 24th January, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Constitution of Pakistan (1973), Arts.199 & 212(1)---Constitutional petition---Damages, recovery of---Rejection of plaint---Plaintiff was a government employee and claimed recovery of damages from defendants on the ground of tortuous acts committed by them---Initially government having also been arrayed as defendant, therefore, Trial Court, in view of the provisions of Art.212(1) of the Constitution, rejected the plaint, which order was maintained by lower Appellate Court---Validity---Suit did not present a dispute between employer or employee---No relief was claimed against Federal Government in original plaint and in any case government had been deleted as defendant---Upon proving the contents of plaint, plaintiff would be entitled to relief---Order of lower Appellate Court was declared without lawful authority, illegal and' was set aside---Suit filed by plaintiff was deemed to be pending in Trial Court---High Court directed the Trial Court to requisition the record, summon the parties and proceed further to decide the suit in accordance with law---Petition was allowed accordingly.

Federal Ministry of Railways and others v. Zafarullah Khan 1988 PLC (C.S.) 602 dissented.

Petitioner in person.

Ch. Jamshaid Sadiq for Respondent No.2.

Nemo for other Respondents.

Date of hearing: 24th January, 2008.

2008 C L C 479

[Lahore]

Before Maulvi Anwarul Haq, J

TARIQ MEHMOOD ANJAM----Appellant

Versus

ALLAH DITTA through Mukhtar-e-Aam----Respondent

First Appeal from Order No.246 of 2007, decided on 25th January, 2008.

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

----S. 24---Pre-emption suit---Zar-e-Soem deposit of---Trial Court, instead of determining the amount to ix deposited as Zar-e-Soem, directed pre-emptor to deposit 1/3rd of the sale consideration, within thirty days---Vendee contended that sale consideration was Rs.37,50,000 whereas pre-emptor had deposited 1/3rd of Rs.7,50,000---Trial Court dismissed the suit but lower Appellate Court directed the pre-emptor to deposit Zar-e-Soem according to Rs.37,50,000 and remanded the suit for trial in accordance with law---Validity---Primarily, it was duty of Trial Court to pass correct order under S.24 of Punjab Pre-emption Act, 1991---Lower Appellate Court had rightly pointed out that Trial Court ought to have specified the amount which was to be deposited particularly when office had reported that 1/3rd had come to Rs.12,50,000--High Court did not find any error of law or fact in the order passed by lower Appellate Court---Appeal was dismissed in circumstances.

Qamar Riaz Hussain Basra for Appellant.

2008 C L C 514

[Lahore]

Before Muhammad Khalid Alvi, J

UZMA JAMSHID----Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice-Chancellor, Multan and 2 others----Respondents

Writ Petitions Nos.5546 and 4388 of 2007, decided on 27th November, 2007.

Bahauddin Zakariya University, Multan Act (III of 1975)---

----Ss. 16(3), 28(2)(a), 32(2) & 33---Constitution of Pakistan (1973). Art.199--- Constitutional petition--- Educational Institution--Examination---Increase in pass marks--Powers of Vice-Chancellor---Petitioners who were admitted in the Faculty of LL. M., took examination, but were declared failed on the ground that they could not get 60% marks in one paper each---Contention of petitioners was that under Regulation 15(vi)(a) that candidate should get at least 50% marks in each .paper and as petitioners qualified on the touchstone of the Regulations, were required to be declared as pass---Vice-Chancellor vide order amended the relevant Regulation which was approved by the Syndicate and was notified accordingly---According to said notification existing pass marks and aggregate percentage was revised as 60% pass marks in each paper---Vice-Chancellor no doubt had the power in, emergent cases under S.16(3) of Bahauddin Zakariya University, Multan Act 1975, to pass any order called for in the circumstances of the case, but, he was required to refer the matter to Authority concerned which in the ordinary course of system and under the law required to take that action---Action taken by the Vice-Chancellor was an amendment in the existing Regulation---Under 5.33 of Bahauddin Zakariya University, Multan, Act 1975, procedure to amend a Regulation was the same which was required for creation of a Regulation---Process of bringing about the amendment in the Regulation was not followed by the respondents---Notification in question indicated that proposal for impugned/disputed amendment in the Regulation was made by the Vice-Chancellor on the recommendation of the Principal of University Law College, who, in his capacity, figured nowhere to make such a recommendation---Amendment brought in Regulation, 15(vi)(a) whereby pass marks had been changed from 50% to 60% was without any lawful authority and of no legal effect---University was directed to declare the result of the petitioners on the basis of original text of the Regulation.

Ch. Saghir Ahmad for Petitioners.

Ch. Zulfiqar Ali Sindhu, Legal Advisor, BZU.

Waqar Ahmad Qureshi, Controller of Examinations, BZU, Multan.

Sh. Muhammad Saleem, Principal, University Gillani Law College, Multan.

Rana Mehmood Mubashir, Dealing Person Law (Examinations) BZU, Multan.

2008 C L C 529

[Lahore]

Before Zafar Iqbal Chaudhry, J

Haji ABDUL SATTAR and 5 others----Petitioners

Versus

PAKISTAN RAILWAYS through Chairman and 3 others----Respondents

Writ Petition No.5860 of 2006, heard on 30th January, 2008.

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

----S. 105---Railway Commercial Manual, 1935, Para.1152---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease of land---Railway land which was lying vacant was leased out to respondent for cultivation purposes through an open public auction--Divisional Superintendent, Pakistan Railways, by its letter confirmed the auction in favour of the respondent---Petitioners had challenged said lease alleging that auction in favour of respondent was made in an illegal manner---Validity---Constitutional petition challenging lease in favour of respondent filed by petitioners after about 1-1/2 years of auction of lease was hit by the principle of laches---Even otherwise petitioners, who were not owners of the property, had no locus standi to file petition against lease of land in dispute for cultivation purposes made in favour of respondent---Contention that if disputed land was used for agricultural purpose, it would create hazard for the public, was repelled as nobody else from the town had come forward to agitate the same---Land in dispute, in circumstance was rightly leased out to respondent.

Rafique Ahmad Malik for Petitioners.

Rao Muhammad Iqbal for Respondents Nos.1 to 3.

Mahr Ahmad Raza for Respondent No.3.

Date of hearing: 30th January, 2008.

2008 C L C 534

[Lahore]

Before Mazhar Hussain Minhas, J

KARAMAT ALI----Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and another----Respondents

Writ Petition No.4353 of 2002, decided on 28th January, 2008.

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

----Ss. 92, 161 & 164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land through sale---Cancellation of allotment---Authority, on application of petitioner for allotment of land in dispute to him and after obtaining report from the concerned Revenue staff, AC/Collector, ordered sale of land to the petitioner---Petitioner deposited sale price upon which mutation for transfer of proprietary rights was entered by Patwari in favour of petitioner---Subsequently Member Board of Revenue cancelled allotment of petitioner after obtaining report of Halqa Patwari from the name of the petitioner and ordered its fresh allotment after inviting applications---Validity---Land in dispute had been alienated to the petitioner after observing all the legal formalities, amount as assessed by the Revenue Department had been duly deposited, by the petitioner/allottee in the treasury after which mutation had been entered---Possession of land in dispute at the relevant time was also with the petitioner---Member Board of Revenue, in circumstances was not competent to order cancellation of allotment of the petitioner on the basis of any subsequent report obtained from the Halqa Patwari---Impugned order being not sustainable was set aside.

Ilam Din v. Muhammad Din PLD 1964 SC 842; Ghulam Hussain v. Fateh Muhammad and 9 others 1987 SCMR 1115 and Din Muhammad v. M.B.R. and others 1992 ALD 582(1) ref.

Malik Muhammad Tariq Rajwana for Petitioner.

Athar Rehman Khan for Respondent No.2.

2008 C L C 540

[Lahore]

Before Muhammad Khalid Alvi, J

SAJJAD HUSSAIN----Petitioner

Versus

OIL AND GAS DEVELOPMENT COMPANY through Chief Executive, Islamabad and 4 others----Respondents

Writ Petition No.6088 of 2007, decided on 28th January, 2008.

West Pakistan Requisitioning of Stage Carriages (Temporary Powers) Ordinance (XIII of 1970)---

---Ss. 3, 4, 13 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Requisitioning of vehicle---Vehicle owned by petitioner was on lease with respondents was seized for the purpose of general elections---Counsel for petitioner had contended that it was imperative for the Authority to give a notice of right of hearing before seizing his vehicle and that he was being deprived of the use of vehicle and also the lease money by the respondents---Law Officer on the other hand had contended that a right of appeal having been provided under S.4 of the West Pakistan Requisitioning of Stage Carriages (Temporary Powers) Ordinance, 1970, constitutional petition filed by petitioner was not maintainable---Validity---Section 3 of West Pakistan Requisitioning of Stage Carriages (Temporary Powers) Ordinance, 1970, authorized Authority D.O.(R) to take control of a motor vehicle if needed for any public purpose, condition precedent however was that a prior notice had to be given to the owner and right of audience was also to be provided to him---No such notice having been given to the petitioner who was owner of the vehicle, taking possession of the vehicle without notice was inherently illegal and without lawful authority---Authorities were bound to pay lease money for the relevant period to the petitioner and were entitled to claim compensation from the Election Commission in accordance with law---Despite there being a right of appeal provided in the statute, since the order was inherently defective on account of non-issuance of notice, constitutional petition could be directly entertained without directing petitioner to approach the alternative forum.

Khalid Ibn-e-Aziz for Petitioner.

Mian Abbas Ahmad, Addl. A.-G.

Muhammad Fazil Faizi and Faiz Karim Representatives of O.G.D.C.

2008 C L C 543

[Lahore]

Before Nasim Sikandar, J

MUNAWAR ALI----Appellant

Versus

AAMER NAVEED----Respondent

First Appeal from Order No.3 of 2004, decided on 25th January, 2008.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.6, 13, O.XXXVII Rr.2, 3 & O.XLIII, R.1(d)---Suit for recovery of amount on basis of pro note---Ex parte judgment and decree, setting aside of---Defendants' application for setting aside ex parte order, was dismissed by the Trial Court and appeal against order was moved---Validity---Held, impugned order could not be interfered with in appeal for the reasons that appellant had deliberately avoided his date of knowledge of ex parte judgment and decree that there was- no occasion mentioned as to how and when appellant was put to an inquiry qua the judgment and decree passed against him that impugned order had given all details of the attempts made to ensure service of appellant; that on exercising of the three modes; personal service, service through affixation and service through publication, it was not possible that appellant remained ignorant of the pending proceedings against him; that Trial Court had rightly considered the postal certificate of dispatch of proclamation in newspaper to be a factor weighing heavily against appellant qua his request for setting aside ex parte decree and that though it was correct that the courts had always leaned towards adjudication of lis on merits, but it was equally correct that a party to the proceedings could not be allowed to circumvent the process of justice by avoiding appearance before the court and to stand by to watch the proceedings.

Malik Mumtaz Ahmad and others v. Mst. Umtul Habib and others PLD 1955 FC 178 and Wall and others v. Manak Ali and others PLD 1965 SC 651 rel.

Hassan Ahmad Khan Kanwar for Appellant.

Nemo for Respondent.

Date of hearing: 8th October, 2007.

2008 C L C 547

[Lahore]

Before Syed Sajjad Hussain Shah, J

JEHANGIR KHAN JADOON----Petitioner

Versus

GULNIGAR MANZOOR and another----Respondents

Writ Petition No.1793 of 2007, decided on 14th January, 2008.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17(7)---Denial of relationship of landlord and tenant---Tentative rent order---Where the relationship of landlord and tenant was denied, Rent Controller was bound to treat such objection as a preliminary one and to tentatively determine that question in the light of the material brought on record by the parties or such material which the parties might produce.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary; S&GAD, Karachi and another 1996 SCMR 1165 rel.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 17 & 21---Constitution of Pakistan (1973), Art.199---Constitutional. petition---Tentative rent order---Petitioner/tenant had challenged tentative rent order passed by the Rent Controller whereby petitioner was directed to pay monthly rent upto specified date---Counsel for the landlady had raised preliminary objection that impugned order was interlocutory in nature and Rent Controller was competent to change and ;codify it finally; and on that basis said order was not open for decision in constitutional jurisdiction of High Court---Validity---Objection of landlady had force---Impugned order was tentative in nature and had to be merged in the final order, which would be appealable under S.21 of Islamabad Rent Restriction Ordinance, 2001---Petitioner had to wait for it to question same before Appellate Court---Impugned order, being provisional in nature, was not assailable in constitutional jurisdiction of the High Court.

Muhammad Saeed v. Mst. Saratual Fatima PLD 1978 Lah. 1459; Mian Manzar Bashir v. M.A. Asghar PLD 1978 SC 185; Mst. Bashir Begum v. Syed Ijaz Hussain PLD 1995 Lah. 392; Syed Abbas Ali Shah v. Syed Farhat Ali Shah and others 1984 CLC 881 and Syed Saghir Ahmed Naqvi v. Province of Sindh and others 1996 SCMR 1165 ref.

Petitioner Jahangir Khan Jadoon, Advocate in person.

Muhammad Rashid Qamar for Respondents.

2008 C L C 555

[Lahore]

Before Maulvi Anwarul Haq, J

MUZAFFAR HUSSAIN NASIR----Petitioner

Versus

ABDUL WAHID through L.Rs. and others----Respondents

Civil Revision No.526 of 2000, heard on 21st January, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff had alleged that defendant on basis of power-of-attorney obtained from him fraudulently sold house of plaintiff in favour of his wife vide registered sale-deed and wife of the defendant further sold the house to present petitioner/vendee vide registered sale-deed---Plaintiff sought declaration that said sale deeds were without lawful authority---Plaintiff who was employed with defendant, was a blind and illiterate man and he had given power-of-­attorney to defendant only for pursuing the case in the High Court pending between plaintiff and other residents of the house in question---Plaintiff had never authorized the defendant to sell his house---Original power-of-attorney was not produced and plaintiff was never confronted with the same---Plaintiff was not told that attorney had agreed to sell the house to defendant and had received amount by way of consideration---No evidence, whatsoever, was led to the effect that plaintiff had executed the power-of-attorney containing the power to alienate; and that power­-of-attorney was read over to plaintiff and he thumb marked the same after understanding its contents---No reason was forthcoming as to why the agreement to sell and the receipts which were alleged to have been executed by the plaintiff were not produced and proved---Case was of no evidence and no plea was raised to the effect that defendant consulted plaintiff before proceeding to transfer his property to his wife---Where an attorney intended to transfer the property of his principal to his close relative, he had to consult him---Appellate Court below, had rightly decreed the suit---No ground having been made out for interference with impugned judgment and decree, revision filed against the same, was dismissed.

Syed Ijaz Qutab for Petitioner.

Abdul Rauf Farooqi for Respondents.

Date of hearing: 21st January, 2008.

2008 C L C 559

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. GULSHAN PARVEEN----Petitioner

Versus

MUHAMMAD TAYYAB----Respondent

Civil Revision No.651 of 2005, decided on 16th November, 2005.

Suits Valuation Act (VII of 1887)---

----S. 11---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declaration and possession---Objection to value of the suit for purposes of court-fee and jurisdiction---Suit was decreed by the Trial Court, but Appellate Court set aside the judgment and decree of the Trial Court on the ground that Trial Court being a Civil Judge-III class, had no pecuniary jurisdiction to try and decide the suit the value whereof was Rs.6/7 Lacs---Case was referred for entrustment to a Civil Judge Ist class for fresh decision---Plaintiff had contended that no objection was taken to the jurisdiction of the Civil Judge-III class 'in the prescribed manner---No objection was taken by ' the defendant in the written statement to the pecuniary jurisdiction of the court in the Court of Civil Judge 1st class to which case was entrusted---Neither in the first appeal nor in the second appeal any objection was taken to the pecuniary jurisdiction of the Trial Court---No objection was taken at any stage in the Trial Court to the jurisdiction of the Civil Judge-III class and secondly no finding was recorded by the court of first appeal that there had been a failure of justice on merits of the case because of said defect---Impugned order passed by Appellate Court was without lawful authority and same could not be sustained---Impugned order was set aside with direction that District Judge would requisition the record and would decide appeal on its own merits.

Rana Meraj Khalid for Petitioner.

Tariq Muhammad Iqbal for Respondent.

Date of hearing: 16th November, 2005.

2008 C L C 580

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD WARIS----Petitioner

Versus

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

Writ Petition No.10543 of 2007, decided on 29th October, 2007.

Civil Procedure Code (V of 1908)---

----O. VIII, Rr.1 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Written statement---Availing of eight adjournments by defendant including a last opportunity granted 'subject to payment of costs of Rs.200 with a note of warning that in case of non-filing of written statement on next date, his defence would be closed---Closure of defendant's right to submit written statement on such next date---Validity---Trial Court had shown extraordinary indulgence and leniency to defendant by providing him eight opportunities within a span of 7 months and 20 days for filing written statement---Conduct of defendant showed that he was reluctant to file written statement and had disobeyed various orders of Trial Court---Trial Court had proceeded in right direction in passing impugned order---High Court dismissed constitutional petition in circumstances.

Nusrat Ali v. Judge, Family Court and others 2006 MLD 420 ref.

Naseem Ullah Khan Niazi for Petitioner.

2008 C L C 585

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD IRFAN----Petitioner

Versus

JUDGE, FAMILY COURT, SARGODHA and 2 others----Respondents

Writ Petition No.601 of 2008, decided on 25th January, 2008.

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

----S. 5, Sched. & S.10---Suit for maintenance of minor---Interim maintenance granted from date of suit---Effect---Proceedings of suit would take effect from its institution---Retrospection could be relatable to period preceding date of institution of suit and not to period starting with its commencement---Such interim maintenance could not be termed as past maintenance.

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

----S. 5, Sched. & S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope---Suit for maintenance of minor---Interim maintenance granted by Family Court---Plea of petitioner that keeping in view his financial resources, rate of interim maintenance was exorbitant---Validity---Such question involving factual inquiry could not be sorted out in constitutional jurisdiction---High Court dismissed constitutional petition in circumstances.

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

----S. 5, Sched., Ss.10 & 14---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Maintainability---Suit for maintenance of minor---Order of Family Court granting interim maintenance to minor---Impugned order was an interlocutory order, which had no effect of being a final order---Interlocutory order, unless bears characteristics and effect of a final order, could not be subjected to judicial scrutiny in proceedings under Art.199 of the Constitution---High Court dismissed constitutional petition in circumstances.

Naseemullah Khan Niazi for Petitioner.

2008 C L C 587

[Lahore]

Before Syed Asghar Haider, J

A.BDUL HAQ SHAHID----Petitioner

Versus

DISTRICT JUDGE, TOBA TEK SINGH and 2 others----Respondents

Writ Petition No.6337 of 2007, heard on 15th January, 2008.

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

----S. 5, Sched. & S.10, Proviso---Suit for dissolution of marriage---Entries in Nikahnama showing dower given to wife---Conciliation efforts, failure of---Effect---Mandatory upon Family Court in such case to dissolve marriage upon restoration of dower to husband---Principles.

Muhammad Asif Kainth for Petitioner.

Ch. Jamshaid Ahmad for Respondents.

Date of hearing: 15th January, 2008.

2008 C L C 590

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD USMAN----Petitioner

Versus

SHABANA NAUREEN and 3 others----Respondents

Writ Petition No.11749 of 2007, decided on 22nd January, 2008.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O.XVIII, R.8---Qanun-e-Shahadat (10 of 1984), Art. 129 (e)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reappraisal of evidence---Principles---Jactitation of marriage---Concurrent findings of facts by the courts below---Recording of evidence by reader of court---Proof---Plaintiff filed suit for jactitation of her marriage on the ground that she was abducted and forced into Nikah with defendant---Family Court and lower Appellate Court respectively decreed the suit in favour of plaintiff and dismissed the appeal of defendant---Plea raised by defendant was that evidence was recorded by reader and not the judge himself---Validity---Disputed Nikahnama was on file and a complaint had also been filed by plaintiff wherein she made a statement affirming her marriage---Evidence tendered was minutely dissected and perused concurrently by both the courts below---Plaintiff stated in categorical terms that Nikah was not performed with her free will---Reappraisal of evidence or de novo inquiry into a factual controversy could not be undertaken in constitutional jurisdiction especially when no specific illegality had been pointed out, therefore, findings were unexceptionable---Lower Appellate Court while dismissing appeal had rightly held that handwriting being adverted to as that of the Reader was not substantiated by any material evidence---Presumption of truth was attached to judicial proceedings and the same had been signed by Family Court---Matter did not fall within the mischief of O.XVIII, R.8, C.P.C.---High Court declined to interfere with concurrent judgments and decrees passed by both the courts below---Constitutional petition was dismissed in circumstances.

Ch. Anees-ur-Rehman for Petitioner.

Naseem Ullah Khan Niazi for Respondent No.1.

2008 C L C 593

[Lahore]

Before Muhammad Muzammal Khan and Khurshid Anwar Bhinder, JJ

ZAFAR ABBAS ADIL----Petitioner

Versus

CHIEF ELECTION COMMISSIONER, ELECTION COMMISS1ON OF PAKISTAN, ISLAMABAD and 21 others----Respondents

Writ Petition No.1573 of 2008, decided on 26th February, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in exercise of its jurisdiction under Art.199 of the Constitution, can neither enter into factual controversies nor decide disputed questions of fact.

Muhammad Ali and another v. Government of Sindh through Chief Secretary and 2 others 1986 CLC 1123; Umar Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572 and Secretary to the Government of Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 rel.

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

----S. 39(6)(a) & (b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election dispute---Factual controversy---Recounting of ballot-papers---Satisfaction of Returning Officer---Petitioner was not satisfied with the election result and sought recounting of ballot-papers---Validity---Returning Officer being not satisfied to hold recounting, therefore, under S.39(6)(a) of Representation of the People Act, 1976, he had rightly dismissed the application of petitioner for recounting---Petitioner did not approach Election Commission, therefore, no direction for recounting of ballot-papers was passed by the Election Commission and provision of S.39(6)(b) of Representation of the People Act, 1976 was not attracted---Petition was dismissed in limine.

Mian Muhammad Hanif Tahir for Petitioner.

2008 C L C 603

[Lahore]

Before Syed Asghar Haider, J

Messrs PRIME ENGINEERING WORKS, LAHORE through Partner---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Cooperative Department Lahore and 3 others----Respondents

Writ Petition No. 7480 of 2007, decided on 1st January, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Sale of State land for Rs.17,00,00,000 alleged by petitioner to be much less than market price and he offered thereof price of Rs.51,00,00,000---Validity---Petitioner, while arguing petition reduced his offer to Rs.21,00,00,000, which fact indicated that he wanted to delay sale proceedings---Whether value of property was Rs.21,00,00,000 or Rs.17,00,00,000 was a pure question of fact, which could not be decided in constitutional jurisdiction---High Court dismissed petition in circumstances.

Syed Ikhtisar Ahmad for Petitioner.

Malik Zafar Iqbal Awan, A.A.-G.

Javed Iqbal for Respondent No.2.

Ms. Sidra Fatima Sheikh for Respondent No.4.

2008 C L C 605

[Lahore]

Before Khurshid Anwar Bhinder, J

ORANGZEB----Petitioner

Versus

JUDGE FAMILY COURT, HAROONABAD DISTRICT BAHAWALNAGAR and another----Respondents

Writ Petition No.26 of 2008, decided on 11th January, 2008.

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

----S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of suit for restitution of conjugal rights by Family Court---District Judge dismissed the appeal against order of the Family Court holding that appeal was not maintainable---Validity---Section 14, West Pakistan Family Courts Act, 1964 provides a right of appeal to the aggrieved party---First appeal being a valuable right, it is the legal obligation of the First Appellate Court to apply its judicial mind to the evidence produced instead of mechanically upholding the findings of the Trial Court---Constitutional petition against order of First Appellate Court was accepted by High Court setting aside the order of District Judge and appeal filed against finding of Trial Court shall be deemed to be pending before the District Judge.

Mirza Muhammad Nadeem Asif for Petitioner.

2008 C L C 607

[Lahore]

Before Khurshid Anwar Bhinder, J

SAQIB MAZHAR----Petitioner

Versus

JUDGE, FAMILY COURT, WAZIRABAD and another----Respondents

Writ Petition No.986 of 2008, decided on 4th February, 2008.

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

----Ss. 5 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Suit by. wife for dissolution of marriage and recovery of gold ornaments---Husband filed application assailing territorial jurisdiction, which was dismissed by Family Court---Validity---Where under S.14(3) of West Pakistan Family Courts Act, 1964, Legislature had specifically prohibited filing of appeal against interim order and if Constitutional petition was allowed to be filed against such order, it would tantamount to defeating and diverting the intent of Legislature---Petitioner had adequate remedy available to him by challenging order in appeal which he could file against ultimate order/judgment if passed against him---High Court declined to entertain the petition being hit by Art.199(1) of the Constitution---Petition was dismissed in circumstances.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165 ref.

Arshad Qayyum for Petitioner.

2008 C L C 616

[Lahore]

Before Syed Asghar Haider, J

AL-TECH ENGINEERS AND MANUFACTURERS through Proprietor----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Cooperative Department, Lahore and 3 others----Respondents

Writ Petition No.7578 of 2007, decided on 1st February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Auction of State land for Rs.17,39,00,000 alleged by petitioner to be much less than its market price causing loss to public exchequer and he offered price of Rs.51,00,00,000 therefor---Validity---Petitioner while arguing petition reduced his offer to Rs.21,00,00,000, which fact indicated that he wanted to delay sale proceedings---Whether value of property was Rs.21,00,00,000 or Rs.17,00,00,000 was a pure question of fact, which could not be decided in constitutional jurisdiction---High Court dismissed petition in circumstances.

Malik Amjad Pervez for Petitioner.

Malik Zafar Iqbal Awan, A.A.-G. Javed Iqbal for Respondent No.2.

Ms. Sidra Fatima Sheikh for Respondent No.4.

2008 C L C 619

[Lahore]

Before Saghir Ahmad, J

BASHIR AHMED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAHIMYAR KHAN and 3 others----Respondents

Writ Petition No.60 of 2008/BWP, decided on 21st January, 2008.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of contract---Impleading of parties---During the trial, parties reached a compromise and in terms of compromise, after deletion of Province of Punjab and Commissioner from array of defendants, suit was decreed---During execution proceedings, defendant resiled from said compromise, whereupon, on an application under S.12(2) C.P.C., suit was restored for its decision afresh---Plaintiffs after that moved an application under O.I, R.10 C.P.C. before the Trial Court with the prayer to implead Province of Punjab and the Commissioner as defendants in the suit---Trial Court allowed said application and revision filed by defendant against order of the Trial Court having been dismissed by Appellate Court, defendant had filed constitutional petition against said order contending that after deletion of Province of Punjab and the Commissioner from the array of defendants in terms of statement of counsel for plaintiffs, they could not ask for their subsequent impleadment as they were estopped by their words---Earlier, plaintiff had made statement for deletion of Province of Punjab and the Commissioner from the array of defendants only in furtherance of the compromise entered between the parties, which compromise was no more there and said order had already been set aside---After restoration of the suit for its decision afresh on merits, principle of estoppel would not apply---Trial Court, in circumstances, had rightly allowed application of plaintiffs, permitting addition of Province of Punjab and the Commissioner as party, which order was rightly affirmed by the Appellate Court in exercise of its revisional jurisdiction.

Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56 ref.

Raja Muhammad Suhail Iftikhar for Petitioner.

2008 C L C 628

[Lahore]

Before Muhammad Muzammal Khan, J

PAKISTAN TELECOMMUNICATION MOBILE LTD.----Petitioner

Versus

FURQAAN HAYAT KHAN and others----Respondents

Civil Revision No.1414 of 2007, decided on 29th June, 2007.

Civil Procedure Code (V of 1898)---

----S. 115---Limitation Act (IX of 1908), Ss.5 & 29(2)---Revision---Limitation---Delay, condonation of---Revision petition was barred by limitation as same was filed with a delay of one day and petitioner moved application under S.5 of Limitation Act, 1908, praying condonation of delay---Period of limitation for filing revision had been prescribed by S.115 C.P.C. itself which was a special enactment---Section 29(2) of Limitation Act, 1908 had envisaged that where period of limitation was differently provided by any special/local law, provisions contained in Ss.4, 9, 18 & 22 of said Act would apply and remaining provisions of said Act would not be applicable---Where limitation was provided by any special enactment, other than Limitation Act, 1908, section 5 of Limitation Act was not applicable for condonation of delay, occasioned in filing such Hs---Revision petition being barred by limitation, was dismissed.

Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286; Islamic Republic of Pakistan through Secretary Ministry of Defence and others v. Masood Enterprises 2001 YLR 327; Messrs Awan Construction Company Government Contractors (as then were) through Mahmood-ul-Alvi and another v. United Bank Limited through Manager 2005 CLD 1500; Shujaat Hussain v. Muhammad Habib and another 2003 SCMR 170 and Muhammad Bashir and another v. Province of the Punjab and others 2003 SCMR 83 ref.

Jawad Hassan for Petitioner.

2008 C L C 640

[Lahore]

Before Khurshid Anwar Bhinder, J

FAISAL NASEEM and another----Petitioners

Versus

GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT PUNJAB through Secretary and 13 others----Respondents

Writ Petitions Nos.106 and 122/BWP of 2008, decided on 1st February, 2008.

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

----S. 85---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recall of Union Nazim---Grievance of petitioners was that procedure adopted in the recall motion by respondent was against the norms of justice as enunciated in S.85(7) of the Punjab Local Government Ordinance, 2001, which provided that prior notice was to be given to the petitioners before deliberations of the recall motion and a right of audience should also have been given to the petitioners to defend themselves before the House---Respondent in the present case had proved, in the court with an evidence in the shape of original receipts that the . notices were served upon the Nazim and Naib Nazim for the purposes of initiating proceedings of recall motions---Mandatory requirement of law having duly been fulfilled and no illegality had been committed by respondent, petitioners were not entitled to any relief in the constitutional petition---Even otherwise factual controversy had been raised by the petitioners in the constitutional petition, which exercise could not be undertaken in those proceedings---Disputed questions of fact could not be gone into in constitutional petition---Writ was only to be issued where record itself would show that Authority concerned failed to discharge its duty---On that score alone constitutional petitions were liable to be dismissed.

Muhammad Iqbal v. Fazal Muhammad 1989 SCMR 1602 and The Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569 rel.

Ijaz Ahmad Chaudhry for Petitioners.

Shafi Muhammad Tariq, A.A.-G. for Respondents.

Nadeem Iqbal Chaudhry for Respondents Nos.6 and 9.

2008 C L C 644

[Lahore]

Before Syed Hamid Ali Shah, J

Messrs NISHAN ENGINEERING (PVT.) LIMITED through Director----Petitioner

Versus

BAHA-UD-DIN ZAKARIAYA UNIVERSITY through Vice-Chancellor, Multan and 2 others----Respondents

Writ Petition No.525 of 2008, decided on 22nd February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had conceded that petition had been invoked in respect of contractual obligation which involved factual controversy---Petitioner, however had submitted that if he was blacklisted or coercive' measures were taken against him, tit would suffer irreparable loss, he submitted that if the coercive action against him was stayed, till the date, he could approach civil court, which was alternate remedy, he would not press the petition---High Court allowed the petitioner to institute suit within six weeks, failing which authorities could initiate coercive measures.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 rel.

Sardar Muhammad Sarfraz Dogar for Petitioner.

2008 C L C 650

[Lahore]

Before Syed Asghar Haider, J

Mst. HUMERA SAJID----Petitioner

Versus

MUQARRAB KHAN PUNI and another----Respondents

Civil Revision No.838 of 2007, decided on 20th February, 2008.

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

----S. 2(c)---Word "landlord"---Scope---Word "landlord" as contained in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959, is very wide and encompasses any person who has a right to receive rent and is not restricted only to a person, who is owner of the property---Definition of word "landlord" is further expanded to include beneficiary, guardian, receiver, executor, administrator or any other person; it even includes a tenant who sublets the property and also includes every person who derives title from landlord---Definition of word "landlord" as contained in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959, has to be interpreted in a very wide sense and use of word "include" enlarges its scope further.

Malik Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others PLD 1976 SC 1233; Usmania glass sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Shah Mardan Shah and 3 others v. Chief Land Commissioner, Sindh and 2 others PLD 1974 Kar. 375 and Commissioner of Income Tax/Sales Tax v. Lever Brothers (Pakistan) Limited 1986 PTD 29 rel.

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

----Ss. 2(c) & 13---Civil Procedure Code (V of 1908), O.XXI, Rr.10 & 16---Ejectment of tenant---Execution of eviction order---New owner of premises---Locus standi---After passing of eviction order, owner of the premises sold it to another person---Execution petition, instead of being filed by new owner, was filed by the pervious owner---Tenant filed objection against execution petition on the ground that the pervious owner had no locus standi to file the same but both the courts below concurrently dismissed the objection---Validity---Definition of landlord encompassed "every person from time to time deriving title under "landlord" included a person who had purchased the property---Definition was in fact not to put embargo upon landlord's unfettered right to sell property during any legal proceedings and it was not repulsive to the rule of natural justice and equity---New owner had a locus standi and cause to continue with execution proceedings in the name of previous owner---High Court declined to interfere with the orders passed by both the courts below as those were unexceptionable---Revision was dismissed in circumstances.

Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163; Syed Iftikhar-ud-Din Haider Gardezi and 9 others v. Central Bank of India Ltd. Lahore and 2 others 1996 SCMR 669; Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 and Muhammad Saleem Ullah and another v. Additional District Judge, Gujranwala and others 2003 YLR 998 ref.

Anwar Sultana Malik v. Rent Controller/Civil Judge First Class and 2 others 1999 MLD 3360 rel.

Mushtaq Mehdi Akhtar for Appellant.

Malik Amjad Pervez for Respondents.

Date of hearing: 8th February, 2008.

2008 C L C 662

[Lahore]

Before Syed Hamid Ali Shah, J

Syeda FIZZA ABBAS----Petitioner

Versus

GOVERNMENT COLLEGE UNIVERSITY, LAHORE through Vice-Chancellor and 4 others----Respondents

Writ Petition No.11143 of 2007, decided on 10th March, 2008.

Government College University Lahore Ordinance (XLVIII of 2002)---

----Ss. 23(2)(vii) & 27(2)---Government College University Examination Regulations, Reg1n.10.6---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Merit list---Determination---Awarding of gold medal---Grievance of petitioner was that she had topped the list of successful candidates and instead of her gold medal was awarded to respondent---Validity---Gold medal was awarded under Regln.10.6 of Government College University Examination Regulations, to a student who had topped the list of successful candidates---First position was determined according to the University. Examination Regulations, by total score obtained in semesters I, II, III and IV (final examinations)---Petitioner had topped the list of successful candidates and on the basis of total score obtained by her in all semesters, she had secured first position---Petitioner was declared entitled to gold medal, having topped the list of successful .candidates---Act of University ignoring petitioner for gold medal and awarding same to respondent was declared without lawful authority and of no legal effect---High Court directed University authorities to award gold medal to petitioner who was eligible and entitled for the same under the relevant Regulations---Petition was allowed accordingly.

Shujauddin v. Pakistan Coast Guards, Karachi and 3 others PLD 1978 Kar. 1110 ref.

Dr. Irfan Masood Sheikh for Petitioner.

Shakil-ur-Rehman for Respondents.

2008 C L C 674

[Lahore]

Before Muhammad Muzammal Khan, J

WARIS BAIG----Appellant

Versus

YOUNIS and 2 others----Respondents

F.A.O. No.253 of 2007, heard on 22nd February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Principles---Grievance of plaintiff was that in presence of his lease, authorities could not lease out suit property to new lessee---Validity---Plaintiff was not in possession of suit property and new lessee had raised certain constructions and was in actual physical possession---In absence of any extension of lease in favour of plaintiff or his possession over suit property, he had no arguable case in his favour---Plaintiff would not suffer any irreparable loss/injury in case of non-issuance of injunction as construction raised by new lessee would be at her own cost/risk---Balance of convenience was also in favour of new lessee as her right to remain in possession of the property was supported by authorities whereas in case of issuance of injunction in favour of plaintiff, the left out party/lessee was bound to suffer inconvenience---Controversy was rightly put to rest by Trial Court without committing any error of law/facts---High Court declined to interfere with the order passed by Trial Court---Appeal was dismissed in circumstances.

Ch. Fawad Hussain for Appellant.

Nadeemuddin Malik and Muhammad Hasnat Qasmi for Respondents.

Date of hearing: 22nd February, 2008.

2008 C L C 680

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs MALIK COAL CORPORATION (REGD.) through Partner----Appellant

Versus

MUHAMMAD IJAZ and another----Respondents

Regular Second Appeals Nos.85 and 36 of 2003, heard on 22nd February, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Concurrent findings of facts by the Courts below---Plaintiff claimed that defendants entered into agreement to sell their land, received earnest money but refused to transfer the same---Defendants asserted that in fact agreement was executed as security of price of coal which defendants purchased from plaintiff---To prove their version, defendants produced another agreement of purchase of coal---Both the courts below concurrently dismissed the suit and appeal filed by plaintiff---Validity---Upon reading of two agreements it was clear that the real intention of the parties was to secure price of coal that was delivered to defendant by plaintiff---Defendants had categorically said in written statement that they had paid price of coal and plaintiff in its examination-in-chief did not at all state that amount had not been paid by defendants---Plaintiff, in his cross-examination could not tell weight of coal supplied and could not refer to any document in such behalf---Defendants when appeared as witness they deposed in absolute accord with their written statement---Defendants categorically stated that they had made payment in accordance with the agreement and it was not every suggested that they had not made payment as stated in the agreement---High Court not finding any question of law involved in the case dismissed the appeal.

Ch. Inayat Ullah and Ahsan Tayyab for Appellants.

Sh. Shahid Waheed for Respondents.

Date of hearing: 22nd February, 2008.

2008 C L C 695

[Lahore]

Before Muhammad Khalid Alvi, J

AYESHA IQBAL----Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others----Respondents

Writ Petition No.456 of 2008, decided on 22nd February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Examination---Petitioner was not allowed to sit in the final examination as she was declared to be deficient in lectures---Petitioner had referred two cases in which two candidates in the same session with the petitioner, who were also deficient in lectures, were allowed to sit in the examination---General principle of law, though was that every body was supposed to know relevant law and rules applicable to his case, but in the case of students, some relaxation could be granted to some of them---Teachers, at lest were required to intimate the others in the same set of circumstances to seek relief, if it was available under the law---Petitioner was never called upon by the concerned Authorities to make an application for the relief which was being considered for the others---High Court directed that let the petitioner, in circumstances make an application to Departmental Examination Committee where her case would be considered, keeping in view the principle of equality and would be treated as at par with the case of other two candidates---If the petitioner was found to be eligible to the relaxation, some special measures would be taken for her examination---Petitioner, in the meanwhile would continue her study in the Second Semester.

Pir Masood-ul-Hassan Chishti for the Petitioner.

Malik Muhammad Tariq Rajwana along with Naveed Ahmad Chaudhry Incharge Examination, Department of English, BZU, Multan.

2008 C L C 713

[Lahore]

Before Khurshid Anwar Bhinder, J

NABI BAKHSH and others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/D.C.O. and others----Respondents

Civil Revision No.21-D of 2008/BWP, decided on 21st January, 2008.

(a) Canal and Drainage Act (VIII of 1873)---

----S. 20---Specific Relief Act (I of 1877), S.42---Suit for declaration to the effect that orders passed by authorities about alteration of impugned outlet, were illegal, against law and facts, without notice, without lawful authority, void, ineffective qua the rights of the plaintiffs and were liable to be cancelled---Suit had concurrently been dismissed by the courts below---Validity---Trial Court, after taking into consideration evidence adduced by, the plaintiffs had dismissed suit and appeal filed by plaintiffs against judgment of the Trial Court was also dismissed by the Appellate Court---Record keeper, who appeared as witness had stated that the Patwari had served notice under S.20 of Canal and Drainage Act, 1873 upon shareholders of outlet, but plaintiffs despite having an opportunity, did not cross-examine the witnesses---Statements of said witnesses, in circumstances were admitted by the plaintiffs---Both courts below had exhaustively dealt with the issues involved in the case, had rightly appreciated the documentary as well oral evidence produced by the parties and reached the proper conclusions, which were not open to exception---Conclusions arrived at by both the courts below were not only in accordance with the record of the case, but were also in consonance with the law on the subject---Concurrent findings of fact recorded by both the courts below, based on proper appreciation of evidence, oral and documentary, could not be interfered with by the High Court in exercise of its revisional jurisdiction, when no case of misreading and non-reading of evidence had been trade out, nor any legal infirmity had been pointed out or any illegal exercise of jurisdiction, failure of exercise of jurisdiction by both the courts below had been attributed.

Muhammad Rafique v. Aamer Shahzad and others 1999 YI.R 610; Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

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

----S. 115---Revisional jurisdiction---Scope---Findings on questions of fact or law recorded by the courts of competent jurisdiction, could not be interfered with in exercise of revisional jurisdiction, unless those findings suffered from jurisdictional defect, illegality or material irregularity.

Mumtaz Ahmad Aamir for Petitioners.

2008 C L C 720

[Lahore]

Before Saif-ur-Rehman, J

MUJTABA HASSAN----Petitioner

Versus

VICE-CHANCELLOR, BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN and 4 others----Respondents

Writ Petition No.131 of 2008, decided on 26th February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Migration---Petitioner had urged that he being a student of University of Arid Agriculture, Rawalpindi, had applied for his migration to University College of Agriculture Baha-ud-Din Zakariya University Multan, but his migration was refused vide impugned order---Validity---Migration was regulated by the relevant rules of the institution to which the migration was required---Petitioner had no cogent answer to the question as to which of the rights of the petitioner had been infringed or which rule or the law had been violated, when his request for migration was declined by the authorities; except that if the seat was available, petitioner was entitled to migration, because he had right to get education at the place of his choice---No illegality having been pointed out in the impugned order, constitutional petition was dismissed.

Tahir Mahmood for Petitioner.

2008 C L C 722

[Lahore]

Before Syed Hamid Ali Shah, J

Messrs JAVED NAZIR BROTHERS (PVT.) LTD.----Petitioner

Versus

AL-BARAK ISLAMIC BANK and others----Respondents

C.O.S. No.30 of 2004 and C.M. No.226-B of 2007, decided on 4th March, 2008.

Civil Procedure Code (V of 1908)---

----O. XIII-Production of documents in evidence---Procedure---List of documents---Object and scope---Object of procedure provided in O.XIII C.P.C. is to prevent fraud and not to penalize a party, which produces documents at a late stage---Court in the course of recording evidence, while permitting or refusing to permit documents, is to consider as to that whether there existed good grounds for failure to enter documents in the list; that was there any doubt, as to genuineness of the documents sought to be produced; that would the other side be prejudiced because it had no timely notice of the documents and that had the other side been deprived of opportunity to rebut the evidence---Documents genuineness of which was beyond doubt and which were not listed or were produced at a late stage, ought not to be left out of evidence---Bar was not absolute and public documents could be admitted even at late stage.

Flt. Lt. (Retd.) Mumtaz Khan v. Mst. Ammtul Batool 1984 CLC 3462; (Smt.) Manorma Srivastava and another v. (Smt.) Saroj Srivastava KLR 1991 CC 160; Muslim Commercial Bank Limited v. M.M. Traders and others 1996 CLC 833; Province of Punjab through Collector v. Rana Hakim Ali and another 2003 MLD 67; Mst. Saffiya Bibi v. Fazal Din and 2 others 2000 YLR 2678 and Muhammad Hanif v. Muhammad Shafique 2000 YLR 2962 ref.

Rana Muhammad Sarwar and Abdul Hameed for Plaintiff/ Applicant.

Kh. Muhammad Saeed, Vice Counsel for Defendant/Respondent No.2.

2008 C L C 738

[Lahore]

Before Maulvi Anwarul Haq and Zafar Iqbal Chaudhry, JJ

Makhdoom GHULAM ALI SHAH----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 4 others----Respondents

Writ Petitions Nos.2152 and 2157 of 2008, decided on 11th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Representation of the People Act (LXXXV of 1976), Ss.14 & 99---Constitutional petition---Writ of quo warranto---Issuance of---Disqualification of candidate---One of the petitioners, who was an Advocate and was a voter of respective constituency, had alleged that respondent, who had been returned as a member from the said constituency was not qualified to contest said election as he did not possess the requisite educational qualification and the Sanad relied upon by him was bogus, apart from being not meeting the criteria laid down by the Higher Education Commission---Other petitioner who was also a voter of respective constituency had questioned election of returned candidate alleging that B.A. degree of returned candidate was bogus and so was the case. with Intermediate as well the Secondary School Certificate---Common feature of said two constitutional petitions was that all material appended with the petitions was supplied to petitioners by defeated candidates---Person having information, though need not at all be aggrieved person, but High Court was not to issue particularly a writ of quo warranto as a matter of course and the bona fides of a relator could be tested---One of the grounds recognized for refusing issuance of such a writ was that the relator was acting as an instrument of someone else---Both petitions were dismissed, in circumstances.

Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328 and Federation of Pakistan v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 rel.

Talaat Farooq Sheikh for petitioner (in Writ Petition No.2152 of 2008).

Shahid Zaheer Syed for Petitioner (in Writ Petition No.2157 of 2008).

2008 C L C 751

[Lahore]

Before Hafiz Tariq Nasim, J

ABDUL MAJEED and another----Petitioners

Versus

MUHAMMAD AMIN----Respondent

Civil Revision No.1998 of 2007, heard on 29th February, 2008.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Revisional jurisdiction---Scope---Revision petition had been filed against judgment and decree passed by the Appellate Court whereby judgment of the Trial Court was confirmed---Concurrent findings of both courts below were based on the record available with both the courts and the evidence adduced by both the parties---Interference in said concurrent findings would not be justified in any manner.

Ijaz Anwar for Petitioners.

Moeen Ahmad Siddiqui for Respondent.

Date of hearing: 29th February, 2007.

2008 C L C 753

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

MUHAMMAD MUSA and 7 others----Petitioners

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD and 6 others----Respondents

Writ Petition No.1751 of 2004, heard on 28th January, 2008.

Land Reforms Regulation, 1972 [M.L.R. 115]---

----Para. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land---Petitioners were cultivating land of someone since Kharif, 1971 located in District---Said land was surrendered upon promulgation of M.L.R. 115 and thereafter petitioners were cultivating said land as tenants of the Provincial Government--Said land, however, could not be allotted to petitioners under the provisions of said M.L.R. 115---Land in question was allotted to respondents in lieu of land which was resumed from them---Contention of petitioners was that although land was not allotted to them, but since.. they were cultivating said land, same could not have been transferred to the respondents in lieu of the land illegally resumed from them---No land was allotted to the petitioners---Federal Land Commission, directed that since land taken from the respondents had been allotted to the tenants, they should not be disturbed and the land at District (Land in question) belonging to the Commission was to be given to the respondents in lieu of said land---Petitioners had no locus standi even to file constitutional petition---Impugned judgment being based on record, petition against said judgment was dismissed.

Ranjha and others v. Mst. Zahraj Begum and others 2004 SCMR 734 ref.

Nazir Bhutta and Raja Ghulam Hassan Khan for Petitioners.

Rizwan Mushtaq for Respondents.

Date of hearing: 28th January, 2008.

2008 C L C 755

[Lahore]

Before Iqbal Hameedur Rehman, J

BUSHRA AFZAL----Petitioner

Versus

VICE-CHANCELLOR, BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN and 3 others----Respondents

Writ Petition No.4954 of 2007, decided on 25th October, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Admission in college---Petitioner/candidate in her petition had sought a direction to be given to the authorities for admitting her in the University---Application by candidate for admission was received by the Authority, but her name was not included in the list of successful candidates and it was alleged that Secretary Admission Committee had asked the petitioner at the time of preparing merit list that entry test result card issued by the University, had been misplaced by the Committee and petitioner was advised that if she would submit an application for placing on record the entry test result card, she would be adjusted in the second list because she was eligible for getting admission---Petitioner had not attached the result of the entry test with her admission form and after scrutiny of the admission form, same could not have been accepted---Admission form being incomplete, same could not be entertained---Authorities, however were still prepared to accommodate petitioner on self-finance scheme as all the seats had been filled up---Constitutional petition was dismissed in circumstances.

Muhammad Aamir Khan for Petitioner.

Ch. Zulfiqar Ali Sindhu for Respondents.

2008 C L C 757

[Lahore]

Before Syed Hamid Ali Shah and Mazhar Hussain Minhas, JJ

SHAHZAM IMRAN KHAN----Petitioner

Versus

CHIEF ELECTION COMMISSION, ISLAMABAD and 12 others----Respondents

Writ Petitions Nos.638 and 639 of 2008, decided on 27th February, 2008.

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

---Ss. 14 & 64---Constitution of Pakistan (1973), Art.199---Constitutional petition---Failure of petitioner to file appeal against acceptance of nomination papers of respondent---Constitutional petition had been filed by the petitioner against acceptance of nomination papers of respondent, despite remedy to file appeal before Election Tribunal was available to him---Failure of petitioner to file appeal to the Election Tribunal was fatal firstly, because candidature of respondent was not a secret matter. secondly objection to nomination and appeal against acceptance to nomination paper was commonly known to every one, especially to those who were interested in the nomination of a candidate; thirdly, the process of election, like scrutiny of nomination, had to be completed within a time frame; fourthly, remedy of appeal before the Election Tribunal was more adequate and convenient and lastly the Representation of the People Act, 1976 had provided a procedure in that respect---Interference in constitutional jurisdiction in present case would render the whole process of scrutiny and nomination of a candidate, as an exercise in futility---Constitutional petition, was dismissed, in circumstances.

Nawabzada Iftikhar Ahmad Babar v. Chief Election Commission, Islamabad, Pakistan Writ petition No.607 of 2008 fol.

Malik Waqar Haider Awan for petitioner.

Mian Abbas Ahmad, Addl. A.-G. on Court's call.

2008 C L C 759

[Lahore]

Before Syed Asghar Haider, J

LAHORE BEVERAGE COMPANY (PVT.) LIMITED through Chief Executive ----Petitioner

Versus

MUHAMMAD JAVED SHAFI and 2 others----Respondents

Civil Revision No.848 of 2007, decided on 28th January, 2008.

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

----O. VII, R.11(d)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.7(4) & 15(11)---Specific Relief Act (I of 1877), Ss.12 & 54---Suit for specific performance of sale agreement and permanent injunction regarding property mortgaged with Bank---Application for rejection of plaint for want of jurisdiction---Validity---Subject-matter of the suit was a property mortgaged with bank---Jurisdiction of ordinary court to try such matter stood ousted by provision of S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 being a special law---Special law, whenever enacted, would take precedence over general law---Decree obtained by Bank against applicant was under execution---Disputes relating to mortgaged property would be tried exclusively by Banking Cowl and jurisdiction of civil court in such context was barred---Plaint was rejected in circumstances.

(b) Interpretation of statutes---

----Special law, whenever enacted, would take precedence over general law.

Ms. Sidra Fatima Sheikh for Petitioner.

Nemo for Respondents.

2008 C L C 762

[Lahore]

Before Syed Hamid Ali Shah and Mazhar Hussain Minhas, JJ

Malik AKHTAR HUSSAIN BHUTTA----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN----Respondent

Writ Petition No.631 of 2008, decided on 27th February, 2008.

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

----S. 39(6)---Representation of the People (Conduct of Election) Rules, 1977, R.26---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election dispute---Recounting of ballot papers---Satisfaction of Returning Officer---Scope---Petitioner being unsuccessful assailed election on the ground that rejected votes were not properly counted by Returning Officer which changed the result of election---Returning Officer as well as Election Commission refused to recount ballot ­papers---Validity---Recounting of ballot papers, according to S.39 (6) of Representation of the People Act, 1976, upon request of a candidate could be allowed only when Returning Officer was satisfied with the request or the challenge was reasonable---Returning Officer, while passing order, was not satisfied with the grounds for such action and was right in holding that grounds raised for recounting required evidence to be recorded---Petitioner failed to prove that different results were prepared by Presiding Officer and consolidated statement of count prepared by Returning Officer had given rise to suspicion---Returning Officer had the authority to reject ballot papers according to R.26 of Representation of the People (Conduct of Election) Rules, 1977---Controversy between the parties was factual in nature and determination thereof could be through regular petition before Election Tribunal constituted under Representation of the People Act, 1976---Constitutional petition was dismissed in circumstances.

Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others C.Ps. Nos.2 to 5 of 2008 ref.

Peer Haider Zaman Qureshi v. Chief Election Commissioner and others Writ petition No.612 of 2008 rel.

Muhammad Arif Alvi for Petitioner.

Mian Abbas Ahmad, Addl. A.-G. on Court's call.

Rana Asif Saeed Khan for Respondent No.4.

2008 C L C 766

[Lahore]

Before Hafiz Tariq Nasim, J

MUHAMMAD IKRAM----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and 3 others----Respondents

Writ Petition No.11553 of 2006, decided on 22nd February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Statutory bodies were amenable to the constitutional jurisdiction---Constitution was the supreme law and provisions of Art.199 of the Constitution could be invoked against a "person"---No clog or bar existed in Art.199, which could restrain the High Court to exercise its jurisdiction under Art.199 of the Constitution---Article 199 was the fundamental provision enunciating the jurisdiction of the High Court and it was mandatory upon the High Court to confine itself within its jurisdiction as provided in the Article---Plain reading of Article 199, contemplated that writ by the employees or by any aggrieved party against any statutory body irrespective of their rules whether statutory or non-statutory, the High Court could assume and exercise its jurisdiction and no lacuna or other technicalities, should come in the way of providing efficacious and speedy justice; because if technicalities of law were allowed to prevail over those who were subject to the law, the end of justice would become impossible to meet---Article 199 of the Constitution conferred jurisdiction upon the High Court to intervene and give directions on the application of "any aggrieved party" as laid down in its paragraph (a) of clause (1) and also as provided in paragraph (c) of clause (1)---Such was a right ensured to every person under the Constitution.

Nafees Ahmad v. Pakistan 2000 PSC 50; University of the Punjab, Lahore v. Ch. Sardar Ali 1992 SCMR 1093; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468; Abdul Hafeez Abbasi and others v. Managing Director of Pakistan International Airlines Corporation and others 2002 SCMR 1034; Muhammad Musntaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S.) 1300; Muhammad Ashraf v. Director-General, Multan Development Authority, Multan and another 2000 PLC (C.S.) 796; Rizwan Akhtar v. University of the Punjab through Vice-Chancellor, Quaid-e-Azam Campus, Lahore and 4 others 2003 PLC (C.S.) 1508; Sultan Mir and 18 others v. Umar Khan and 10 others 1992 SCMR 1206; PLD 1997 SC 823; PLD 2003 SC 724; PLD 2001 SC 531 and 2005 SCMR 605 ref.

Malik Noor Muhammad Awan for Petitioner.

Dr. M. Mohy-ud-Din Qazi for Respondents.

Naeem Masood, Asstt. A.-G. Punjab.

2008 C L C 775

[Lahore]

Before Zubda-tul-Hussain, J

GHULAM RASOOL----Petitioner

Versus

SENIOR CIVIL JUDGE WITH THE POWERS OF JUDGE FAMILY COURT, FAISALABAD and 4 others----Respondents

Writ Petition No.1702 of 2008, decided on 3rd March, 2008.

(a) Interpretation of statutes---

----Law has always to be interpreted in a manner so as to give a logical and reasonable meaning to it and also to advance the cause and object of relevant legislation.

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

----S. 14(2)---Appeal---Maintainability---Quantum of maintenance allowance---Scope---Law relating to grant of maintenance allowance is in essence aimed at welfare of persons entitled to get maintenance---Any interpretation which is likely to put a clog on such right would run counter to the spirit of the law and, thus must be turned down---If a right of appeal against insufficiency of quantum of maintenance allowance is curbed on the strength of S.14 (2) of west Pakistan Family Courts Act, 1964, it would be inhuman, unreasonable and against all norms of logic and law---Only sense that S.14 (2) of West Pakistan Family Courts Act, 1964, makes in true perspective of law is that bar provided therein is against judgment debtor and not against decree holder agitating against insufficiency of maintenance allowance decreed by court.

Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 and Saeed Alia v. Syed Ghulam Mursalin Naqvi 2004 MLD 306 rel.

(c) West Pakistan Relief of Indebtedness Ordinance (XV of 1960)---

----S. 11---Instalments of debt---Principle---Where provisions of S.11 of West Pakistan Relief of Indebtedness Ordinance, 1960 are attracted, the court is not bound to get consent of decree-holder to direct payment by instalments---Once court comes to conclusion that case of judgment-debtor is that of a "debtor" within the meaning of the Ordinance, it is well within its domain to exercise powers available to it under S.11 of West Pakistan Relief of Indebtedness Ordinance, 1960, without any clog of any contract or other law for the time being in force.

(d) West Pakistan Relief of Indebtedness Ordinance (XV of 1960)---

---Ss. 2(c), 5 & 11---West Pakistan Family Courts Act (XXXV of 1964), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of maintenance allowance---Husband was arrested in execution of decree passed by Family Court for recovery of maintenance allowance and was sent to civil prison, who was released on his undertaking to pay the amount through instalments---After release from civil prison, husband requested Family Court to defer recovery of maintenance for sometime, which he would pay as and when he was able to make the payment but the request was disallowed by executing court----Plea raised by husband was that he could not have been arrested for default in execution of decree as protection under the provisions of West Pakistan Relief of Indebtedness Ordinance, 1960, was available to him---Validity---Plea of husband with reference to Ss.5 & 11 of West Pakistan Relief of Indebtedness Ordinance, 1960, presupposed that husband was a "debtor" under S.2 of the Ordinance, whereas such presumption was not in-built or irrebuttable, nor was it based on admitted facts---Position of husband as "Debtor' depended upon determination of question of fact---Such point was not even raised before the executing court, which if raised the court could have dealt with and decided same in accordance with law---Such factual inquiry could not be undertaken in the proceedings of constitutional petition---High Court declined to interfere with the order passed by executing court---Constitutional petition was dismissed in circumstances.

Mian Muhammad Nawaz for Petitioner.

2008 C L C 780

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD SHAFIQUE----Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT, GOVERNMENT OF PUNJAB, LAHORE and 5 others----Respondents

Writ Petition No.2554 of 2007/BWP, decided on 29th January, 2008.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Locus standi to file---Competency---Petitioner, who was a contractor working with Government department on contract basis, had challenged eligibility of respondents to be appointed against the posts of Civil Engineer and Sub-Engineer, respectively on the ground that they were not qualified to be appointed on said posts under Punjab Local Government Service (Tehsil Town Municipal Administration Cadre) Rules, 2005 framed on 30-7-2005---Objections raised by the petitioner were rebutted by the authorities contending that rules referred by petitioner were not applicable in the case of respondents, but only rules framed under Punjab Local Council Service (Appointment and ,Conditions of Service) Rules, 1983 wereapplicable as rules referred by the petitioner were promulgated long after appointment of the respondents---Petitioner who was a private contractor working with the department cm contract basis, was not an "aggrieved person" to file constitutional petition and had no locus standi in the matter agitated in the petition---Petitioner had nowhere mentioned in his petition that any of his rights was infringed---Constitutional petition, otherwise being based on mala fide intention of petitioner, was liable to be dismissed.

Jamshad Akhtar Khokhar for Petitioner.

Tariq Shafi, A.A.-G. for Respondents Nos.1, 2 and 4.

Malik Muhammad Aslam for Respondent No.3.

Hafiz Muhammad Abdul Qayyum for Respondents Nso.5 and 6.

2008 C L C 790

[Lahore]

Before Ali Akbar Qureshi, J

ALLAH DITTA----Petitioner

Versus

AMINA BIBI----Respondent

Civil Revision No.2027 of 2007, decided on 29th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Declaration of title---Pardahnashin, illiterate lady---Concurrent findings of facts by the courts below---Plaintiff being illiterate Pardahnashin lady, assailed disputed Hiba of suit land on the ground that it was a result of fraud and misrepresentation---Defendant failed to produce any male member of plaintiff family who was present at the time of alleged transaction of gift---Defendant also failed to prove offer of gift, its acceptance and delivery of possession---Trial Court and Lower Appellate Court concurrently decreed the suit in favour of plaintiff lady---Validity---Defendant having neither produced, nor summoned any witness to prove prerequisites and fulfilment of gift in question, gift was not proved in circumstances---Consistent and concurrent findings of both the courts below were based on independent application of judicial mind and fair evaluation and appreciation of entire evidence---Not an iota of evidence was highlighted by defendant even so much as to presume that judgments passed by two courts below suffered from any perversity, misreading and non-reading of evidence--Conclusion drawn by the courts below were based on sound reasons and were in conformity with the law laid down by superior courts to deal with and cater for such like eventualities---Judgments and decrees passed by both the courts below being free from any jurisdictional defect and illegality were not open to any exception and interference by High Court in exercise of its revisional jurisdiction---High Court declined to interfere with the judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

NLR 1990 Civil 699; PLD 1991 SC 466; 1992 CLC 235; 2007 SCMR 466 and 2007 SCMR 1446 ref.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

Noor Muhammad Awan for Petitioner.

2008 C L C 795

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD YAR and another----Petitioners

Versus

ALLAH DITTA and others----Respondents

Civil Revision No.341-D of 1995/BWP, decided on 20th February, 2007.

Specific Relief Act (I of 1877)---

----S. 12---Colonization of Government Lands (Punjab) Act (V of 1912), S.19---Specific performance of agreement to sell---Proof of ownership---Plaintiffs claimed that deceased father of defendants executed agreement to sell in their favour regarding his land which was later on exchanged by defendants with the land owned by Provincial Government---Trial Court dismissed the suit but Lower Appellate Court allowed the appeal and decreed the suit in favour of plaintiffs---Validity---Land in dispute was in the ownership of Provincial Government and deceased father defendants could not sell the same without permission of the authorities under S.19 of Colonization of Government Lands (Punjab) Act, 1912---Land in dispute was neither in the ownership of defendants nor the defendants were holding any right with regard to same---Lower Appellate Court. granted decree of the land which was owned by Provincial Government and no contract was entered into by plaintiffs and the government---Land in dispute was not vesting at that time in favour of defendants, therefore, it could not be sold away by them---Plaintiffs failed to file suit with regard to land owned by defendants, which was obtained by defendants in exchange---No proof was available to the effect that agreement to sell was executed and amount of Rs.5000/- was paid to defendants---Plaintiffs failed to implead all legal heirs of deceased owner of the suit land---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed accordingly.

Gulzar Ahmad Khan for Petitioners.

Ch. Manzoor Ahmad for Respondents.

Date of hearing: 20th February, 2007.

2008 C L C 806

[Lahore]

Before Sh. Hakim Ali, JJ

SHAFQAT ALI----Petitioner

Versus

NIGHAT PERVEEN and others----Respondents

Writ Petition No.223 of 2004/BWP, decided on 13th April, 2004.

West Pakistan Family Courts Act (XXXV of 1969)---

----S.5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles was resisted by defendants on the ground that no receipt of purchase of alleged dowry articles was proved through the production of any witness to it---Correctness of version of plaintiff with regard to dowry articles was found from the statement which was got recorded by her during the trial---Lady had deposed minor details of all the articles of dowry granted/delivered to her in cross-examination---Mere non-mentioning of the value in some paras. of the plaint would not affect the case of the plaintiff because she had clearly mentioned in one of the paras. of the plaint not only the nature of dowry articles delivered to her, but the value thereof with grand total as well---Even in such cases, the exact and strict technical compliance was not required---Appreciation of the Trial Court with regard to the evidence brought on record, was not of such a nature so as to call for interference by the High Court in the exercise of its extraordinary jurisdiction---Provisions of Qanun-e-Shahadat, 1984, being not applicable to the proceedings to be conducted by the Family Court, their rigours and technicalities had to be evaluated and appreciated as a prudent man would assess and reach a conclusion---Impugned judgment passed by the Trial Court, needed no interference.

Muhammad Sharif v. Nawab Din and another PLD 1957 (W.P.) Lah. 283 and S.D.O. (E) WAPDA and others v. Mian Hidayatullah 1995 CLC 739 ref.

Faisal Sajjad Khitchi for Petitioner.

Syed Mubashar Hassan Gillani for Respondents.

Date of hearing: 13th April, 2004.

2008 C L C 819

[Lahore]

Before Umar Ata Bandial, J

HOUSE BUILDING FINANCE CORPORATION----Appellant

Versus

FAYYAZ AHMAD KHAN and another----Respondents

F.A.O. No.18 of 1997/BWP, decided on 28th May, 2007.

House Building Finance Corporation Act (XVIII of 1952)---

----Ss. 29 & 30---Civil Procedure Code (V of 1908), S.96---Additional amount in respect of rental share due to appellant corporation---Claim for---Application filed under S.30 of House Building Finance Corporation Act, 1952 by the Corporation was decreed to the extent of only principal amount of finance advanced to respondent---Claim of Corporation was that an additional amount should also have been decreed in respect of rental share due to Corporation on its investment made in the immovable, property of respondent---Court below had arrived at the conclusion that Corporation was in default of its obligation in providing agreed amount of finance to the respondent---Being in breach of its own obligation, Corporation was not at liberty to enforce the agreement against the respondent---Principal amount, however had been decreed against the respondent---Contractual arrangement with respondent as provided on record did not contain any power of Corporation to prematurely terminate the financial agreement---Court below had rightly disallowed rental share/mark-up because Corporation could not justify its entitlement, notwithstanding default in meeting its obligation under the financial agreement with the respondent---No grounds to interfere with the impugned order by the courts below having been disclosed, same was affirmed---Counsel for respondent acknowledged respondent's obligation to pay the principal amount forthwith and undertook to discharge the same within one month.

M. Shamshir Iqbal Chughtai for Appellant.

Nazar Hussain Aslam and Sardar Muhammad Iqbal for Respondents.

2008 C L C 825

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AKHTAR----Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and another----Respondents

Writ Petition No.19478 of 2005, heard on 30th March, 2007.

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

----Ss.10 & 30---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of State land under Grow More Food Scheme---Grant of proprietary rights---After allotment of land in question and issuance of the proprietary rights in favour of the petitioner, he had put in hard labour and invested colossal amount to bring the land under plough---On the application of a rival person, petitioner allottee could not be deprived of his properties, which had already come out of the ambit of the Revenue functionaries---Board of Revenue was competent to cancel the allotment of land provided the tenant had acquired the land by means of fraud or misrepresentation; or was not eligible to have such rights for any reason---Case of the petitioner did not fall within the ambit of provisions of S.30(1)(b) of Colonization of Government Lands (Punjab) Act, 1912---Provisions of S.12(2) C.P.C. were not attracted to the case---No case for interference under S.30(1)(b) of Colonization of Government Lands (Punjab) Act, 1912 having been made out, constitutional petition was accepted as prayed for and impugned order passed by the Senior Member Board of Revenue was declared to have been passed illegally, without lawful authority and of no legal effect.

Province of Punjab through District Collector, Vehari v. Ghulam Muhammad 1994 SCMR 975 ref.

M.A. Ghaffar-ul-Haq for Petitioner.

A.A.-G. for Respondents.

Date of hearing: 30th March, 2007.

2008 C L C 833

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HANIF and others-Petitioners

Versus

MUHAMMAD RAFIQ and others----Respondents

Civil Revision No.1428 of 1992, heard on 7th March, 2008.

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

----S. 10---Allotment of land in "Jori Scheme"---Land in dispute was allotted to predecessor-in-interest of respondents and one other and after death of predecessor-in-interest of respondents a dispute arose as petitioner had claimed that land in dispute was allotted to him---Suit filed by respondents had concurrently been decreed by the Trial Court and Appellate Court and respondents were held owners of land and that petitioner had got nothing to do with the suit-land---In absence of any ground for interference with the concurrent findings recorded by the courts below which were fully supported by the record, revision against said concurrent findings, was dismissed.

Mian Shah Abbas for Petitioners.

Nemo for Respondents.

Date of hearing: 7th March, 2008.

2008 C L C 838

[Lahore]

Before Maulvi Anwarul Haq, J

Sh. MUHAMMAD ASHRAF----Petitioner

Versus

MUNICIPAL COMMITTEE, KAMALIA through Chairman, Kamalia and 3 others----Respondents

Civil Revision No.1332 of 1999, heard on 4th April, 2002.

Specific Relief Act (I of 1877)---

----Ss. 9 & 54---Suit for possession and declaration---Claim of plaintiff was that he was in occupation of plot in dispute from 1969 and he had raised construction thereon--Plaintiff had alleged that predecessor-in-­interest of defendants who got ownership certificate in respect of said plot in his name fraudulently, had tried to interfere with his possession---Plaintiff had sought a decree for possession on the ground that since he had been in possession of plot in dispute and had raised construction thereon, it was he who was entitled to be granted its ownership certificate---Defendant, in his written statement, denied claim of plaintiff---Both the Trial Court and Appellate Court had concurrently dismissed the suit---Validity---Important issue in the case was issue which was to the effect as to whether "Sanad Malikana" issued in favour of defendant was result of fraud, and collusion and thus ineffective upon the rights of plaintiff---Defendant did not put in appearance in the court and instead his special attorney appeared as witness of defendant---Said attorney admitted claim of plaintiff in his statement with regard to possession of plot and construction raised by the plaintiff thereon Record had proved that plaintiff, who was in possession of plot in dispute, was dispossessed by defendant---Impugned judgments and decrees, could not have been passed dismissing the suit filed by the plaintiff for the reason that all contentions of the plaintiff stood proved-High Court, in exercise of its revisional jurisdiction, reversed the findings recorded by two courts below on the issue and decided said issue in affirmative---Another issue which dealt with the question of dispossession of the plaintiff, had deliberately been avoided to be answered by both the courts below---Both courts below had failed to read evidence on record---Speaking orders were passed which were based on evidence holding that plaintiff, who had been in possession of plot in dispute, was dispossessed and possession was ordered to be restituted---Both impugned judgments and decrees were set aside and suit filed by the plaintiff was decreed as prayed for.

Nemo for Petitioner.

Muzaffar Ayub Senior Clerk, M.C. Kamalia, respondent No.1.

Nemo for respondents Nos.2 to 4.

Date of hearing; 4th April, 2002.

2008 C L C 844

[Lahore]

Before Maulvi Anwarul Haq, J

GUL BEGUM----Applicant

Versus

MUHAMMAD RIAZ and another----Respondents

C.M. 3/C of 2007 in Civil Revision No.1454 of 1998, decided on 14th March, 2008.

Civil Procedure code (V of 1908)---

----S. 12(2)---Application against allegation of fraud---Applicants who claimed to be successors of vendees of land of respondent, had alleged that a fraud had been played upon them-Land had been purchased during the pendency of revision and neither any allegation of collusion nor same was coming forth on the record as revision was contested and decided after hearing all concerned---No ground was made out within the meaning of S.12(2) C.P.C. for interference with judgment and decree---No defect on merits had also been pointed out--Application was accordingly dismissed.

C.M. Sarwar for Applicants.

Manzoor Hussain for Respondent No.1.

Sardar M. Arif Khan for Respondent No.3.

2008 C L C 850

[Lahore]

Before Syed Asghar Haider, J

Rana ZAHID SAEED----Petitioner

Versus

JUDGE, FAMILY COURT, SAHIWAL and another----Respondents

Writ Petition No.2448 of 2006, decided on 20th June, 2006.

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

----S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Territorial jurisdiction of the court---Return of plaint---Defendant in his written statement objected to the jurisdiction of the court and moved application for return of plaint on the ground that plaintiff being resident of "L", Family Court at "S" had no territorial jurisdiction to entertain the suit---Validity---West Pakistan Family Courts Act, 1964 and Rules framed thereunder were special laws--.-Rule 6 of West Pakistan Family Courts Rules, 1965 provided that the court normally would have jurisdiction where the cause of action wholly or in part had arisen or where the parties resided or last resided together, however, an exception was available to that rule---Proviso to R.6 of West Pakistan Family Courts Rules, 1965, provided that in suits for dissolution of marriage or dower, the jurisdiction would also vest with a court where the wife ordinarily resided---Intention of the Legislature was to facilitate things for the wife and off-set her handicap of travelling etc.---Option of filing such suits vested with the wife and the court was bound to take her convenience into account; it would thus, be in fairness of things to permit the wife to choose the court of her convenience subject to the limitation imposed by law---No illegality in the impugned order, having been found constitutional petition having no merits was dismissed.

Waseem Mumtaz for Petitioner.

Ch. Muhammad Anwar-ul-Haq for Respondent No.2.

2008 C L C 854

[Lahore]

Before Maulvi Anwarul Haq, J

NASIR FAHEEM-UD-DIN and others----Petitioners

Versus

CHARLES PHILIPS MILLS and others----Respondents

Writ Petition No.9530 of 1998, decided on 25th March, 2008.

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

----S. 4---Property as evacuee property, treatment of---Scope---Such treatment had to be made by Custodian of Evacuee Property before prescribed date i.e. 1-1-1957 through an overt act.

Mst. Hajiran Sughra v. The District Judge and Settlement Commissioner, Hyderabad and others 1969 SCMR 686 and Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 1993 Lah. 441 ref.

Rashid Masud Gongohi for Petitioners.

Nemo for Respondent No.1/L.Rs.

Khalid Aziz Malik for Respondent No.2.

Date of hearing: 5th March, 2008.

2008 C L C 860

[Lahore]

Before Ali Akbar Qureshi, J

Malik ABDUL AHAD----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A. and 4 others----Respondents

Writ Petition No.25204 of 2005, heard on 19th March, 2008.

Lahore Development Authority Act (XXX of 1975)---

----Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Commercialization fee, payment of---Demand of surcharge by Review Committee of Lahore Development Authority a long time after assessment and payment of such fee alleging same to be assessed incorrectly at relevant time---Validity---Authority did not have power to review its earlier decision---Review Committee had unilaterally reviewed such matter and issued impugned notice of demand---Proceedings of such Review Committee were coram non judice and without jurisdiction---High Court set aside impugned notice of demand for having been issued without lawful authority.

Col. (R) Syed Mukhtar Hussain v. Chairman Federal Land Commission, Islamabad and 3 others 2004 CLC 1019 ref.

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

Mian Nisar Ahmad for Petitioner.

Ch. Rashid Ahmad for L.D.A.

Date of hearing: 19th March, 2008.

2008 C L C 866

[Lahore]

Before Ali Akbar Qureshi, J

WAQAR MUSTAFA and 2 others----Petitioners

Versus

Ch. MUHAMMAD ASHRAF MEHMOOD and 2 others-Respondents

Writ Petition No.6162 of 2006, decided 18th March, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.148---Constitution of Pakistan (1973), Art.199---Constitutional petition---Specific performance of agreement to sell---Enlargement of time---Non-deposit of decretal amount---Suit filed by plaintiff was decreed in his favour and Trial Court directed him to deposit balance consideration amount within one month---On the., second last day of the period granted by Trial Court, plaintiff sought correction of description of property in the judgment and decree and also sought extension in time for deposit of balance amount--Trial Court allowed correction but did not extend time for deposit of balance amount, but Appellate Court, in exercise of revisional jurisdiction extended time by ten days---Validity---By not depositing remaining amount, as ordered by Trial Court, defendants had accrued valuable right in the property in question---Appellate Court wrongly exercised jurisdiction by extending time to deposit remaining amount---In the matter of specific performance of contracts/agreements only the intention of parties was to be seen, whereas plaintiff had proved himself otherwise and not in accordance with requirements of law---High Court in exercise of its constitutional jurisdiction set aside the order passed by Appellate Court and restored that of trial Court---Constitutional petition was allowed in circumstances.

Muhammad Iqbal Ghaznvi and Malik Amjad Pervaiz for Petitioners.

Mian Muhammad Yasin for Respondents.

2008 C L C 874

[Lahore]

Before Nasim Sikandar, J

Mrs. REHANA BIBI----Petitioner

Versus

MUHAMMAD IJAZ and another----Respondents

Writ Petition No.1919 of 2005, decided on 19th March, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition--Suit for grant of maintenance allowance along with Haq Mehr---Constitutional petition, could not be entertained for the reasons; that firstly no jurisdictional defect against impugned orders of the courts below had been brought home and secondly no further appeal was provided against a judgment and decree of the first appellate forum in suits for maintenance allowance, custody of the minor children, recovery of dowry articles and restitution of conjugal rights and the law clearly contemplated termination of those proceedings---Such intention of law could not be defeated by entertaining and ruling upon contentious issues between the parties in exercise of constitutional jurisdiction.

Ch. Naseer Ahmad Tahir for Petitioner.

Ajmal Kamal Mirza for Respondents.

2008 C L C 875

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD RIAZ----Petitioner

Versus

Mst. RUKHSANA NAHEED----Respondent

Writ Petition No.7697 of 2004, decided on 26th January, 2005.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance allowance---Plaintiff, who was married with defendant about 2-1/2 years back, lived in the house of defendant only for one year and she thereafter was living in the house of her parents for the last 1-1/2 years, but defendant failed to pay the plaintiff maintenance allowance---Plaintiff filed suit for recovery of maintenance allowance from the date she was living with her parents at the rate of Rs.3,000 per month---Trial Court allowed her maintenance allowance at the rate of Rs.2,000 per month only for the period of "Iddat"---Appeal filed by plaintiff against judgment of the Trial Court was allowed by the Appellate Court below and awarded plaintiff maintenance allowance from the date she was living with her parents---Validity---Appellate Court having decided appeal after appraisal of entire material available on record, same was just and proper---In absence of any illegality or infirmity in the impugned judgment, same could not be set aside---Defendant being earning about Rs.30,000 per month, maintenance allowance at the rate of Rs.2,000 per month, was reasonable and same was not excessive.

Muhammad Ameer Khan Niazi for Petitioner.

2008 C L C 887

[Lahore]

Before Syed Hamid Ali Shah, J

GHULAM QADIR----Petitioner

Versus

MUHAMMAD YOUNAS and 5 others----Respondents

Civil Revision No.1000 of 2006, heard on 24th January, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---"Benami" transaction---Defendant claimed that land in question was purchased by him in open auction---Plaintiffs, on the other hand had claimed that their deceased father was real owner of the suit property which was purchased in the name of defendant as "Benamidar"---Plaintiffs instituted suit for declaration and permanent injunction---Trial Court dismissed suit, whereas appellate court decreed the suit---Validity---Trial Court while passing impugned decree, discussed four essentials of a 'Benami' transaction, namely; source of income; holding/ custody of title deeds and other documents; possession of disputed property; and lastly motive for Benami Transaction and observed that plaint was silent with regard to necessity or motive of purchase of suit-land in the name of Benamidar---Trial Court found the admission of plaintiffs that defendant was a business partner of their predecessor and that defendant had purchased various properties and had independent source of income---Trial Court had further observed that documents of title and possession remained with defendant; and then found that purchase of land in dispute in open auction, was not a Benami Transaction---Plaintiffs had failed to mention in the plaint any reason or motive for the purchase of land in open auction in the name of defendant---Appellate Court below imported a proposition in its judgment, which was neither urged before the Trial Court nor was pleaded in the pleadings and validated a transaction, which had defeated the provisions of law and was against the public policy---Judgment and decree of the Trial Court was well-reasoned, which reflected that it had been passed with proper and correct appreciation of evidence and law, whereas impugned judgment of the Appellate Court suffered from legal infirmity---Impugned judgment and decree of Appellate Court, were set aside maintaining the judgment and decree of the Trial Court.

Ashfaq Qayum Cheema for Petitioner.

Respondents Ex parte vide order, dated 1-6-2007.

Date of hearing: 24th January, 2008.

2008 C L C 896

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD AFZAL----Petitioner

Versus

AYUB NAWAZ, TAXATION OFFICER, MUNICIPAL COMMITTEE, RAHIMYAR KHAN and others----Respondents

Writ Petition No.2387 of 1995, decided on 26th June, 2006.

Punjab Local Government Ordinance (VI of 1979)---

----Ss. 73, 137 & Second Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of tax on dangerous and offensive trade---Authority of Local Council---Scope---Petitioner had challenged notice issued by Authority calling upon him to pay amount as a tax on dangerous and offensive trade---Contention of petitioner was that under S.137 of Punjab Local Government Ordinance, 1979, Local Council was empowered to levy tax enumerated in the Second Schedule of the Ordinance; that according to Part III of Second Schedule, the leviable taxes of Urban Local Council were detailed in the said part of the Schedule and disputed dangerous and offensive trade tax was not listed therein; that Local Council had no authority to claim any such tax---Urban Local Council, according to Part III of Second Schedule of Punjab Local Government Ordinance, 1979 was competent to levy taxes mentioned in said part and claim No.16 of said part did not relate exclusively to dangerous and offensive trade; it was general item relating to all general items, trades etc.---Under S.73 of the Punjab Local Government Ordinance, 1979 Local Council could regulate the dangerous and offensive articles and trades by means of issuance of licence putting restrictions on their movement, keeping, quantity, quality control etc., but certainly no tax was provided for such a dangerous or offensive trade---Tax being a compulsory levy, had to be construed very strictly---Merely by implication or commonality of certain words a citizen could not be burdened with tax---Impugned notice was declared illegal and without lawful authority, in circumstances.

Muhammad Arshad Mughal for Petitioner.

Ch. Muhammad Ashraf Mohandra for Respondents.

Date of hearing: 26th June, 2006.

2008 C L C 1003

[Lahore]

Before Syed Asghar Haider, J

PAKISTAN RAILWAYS through Chairman, Railway Board, Railways Headquarter, Lahore and 2 others----Appellants

Versus

Messrs CALTEX OIL (PAKISTAN) LTD., KARACHI and 2 others----Respondents

Regular Second Appeal No.148 of 2006, heard on 6th February, 2008.

Civil Procedure Code (V of 1908)---

----S. 34 & O.VII, R.2---Suit for recovery of amount---Award of interest on principal amount---Powers of the court to award interest---Trial Court decreed suit with costs, but without awarding interest on principal amount, but Appellate Court exercising suo motu jurisdiction inflicted interest on the defendant at the rate of 15% for the period of 24 years and 9 months---No specific issue was framed qua the grant of interest---Validity---Appellate Court was not empowered under law to exercise the jurisdiction qua interest and award the relief not claimed---Impugned judgment of the Appellate Court to the extent of allowing interest on the principal amount, was illegal---Appeal was partly allowed, impugned judgment and decree to the extent of award of 15% per annum interest for 24 years and 9 months, was set aside---Rest of the judgment of the Appellate Court was maintained.

Umar Sharif for Appellants.

Respondent No.1: Ex parte.

Tafazzul H. Rizvi for Respondents Nos.2 and 3.

Date of hearing: 6th February, 2008.

2008 C L C 1013

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD SIDDIQ and another----Petitioners

Versus

AMBREEN and another----Respondents

Civil Revision No.65 of 2007, decided on 7th April, 2008.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 10, 23-A, 43, 54 ---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Suit for maintenance---Execution of decree---Attachment of property---Suit for maintenance having been decreed, respondent/decree-holder filed application for execution of decree and made a prayer for attachment of the property of the petitioners---Objection petition filed by the petitioners was allowed and execution petition filed .by decree-holder against petitioners was dismissed by the Executing Court, but Appellate Court reversed the order of the Executing Court---Petitioners had filed revision against order of the Appellate Court below---Validity---Petitioners being neither judgment-debtors nor decree-holders had any cause against them---One of the petitioners being the brother of judgment-debtor was not bound under the law to satisfy the decree---Petitioner who was father of judgment-debtor was an ailing and old man over eighty years of age---No document was on record to prove that disputed articles/property sought to be attached, were the property of judgment-debtor--Said points were appreciated and attended to by the Executing Court and dismissed execution application on the ground that no material was on record to substantiate that assets in question belonged to judgment-debtor and not to the petitioners--Order passed by Executing Court was in consonance with the spirit of law, while order/judgment of the Appellate Court was not in consonance with legal dictates---Impugned order passed by the Appellate Court was set aside and order passed by the Trial/Executing Court was restored.

Mrs. Sakina Chaudhry for Petitioners.

Mian Maqsood Ahmad for Respondents.

2008 C L C 1055

[Lahore]

Before Hafiz Tariq Nasim, J

MUHAMMAD KHAN----Petitioner

Versus

MUHAMMAD ASLAM through Legal Heirs and 7 others----Respondents

Civil Revision No.1887 of 2002, decided on 11th April, 2008.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Civil Procedure ode (V of 1908), S.115---Suit for specific performance of agreement and for perpetual injunction---Revision petition---Case of plaintiff was that defendants agreed to sell land in question to him for consideration, they had received earnest money and had agreed that remaining sale consideration would be paid at the time of attestation of mutation of sale-deed---Plaintiff alleged that defendant, sold out suit-land for consideration in favour of another defendant despite the fact that they were bound to transfer suit-land to petitioner---Trial Court dismissed suit holding that payment of alleged advance money was not paid by plaintiff to defendants and that no proof was available that one defendant was competent to act on behalf of defendants---Said finding of the Trial Court was confirmed by the Appellate Court holding that neither any oral agreement of sale of the property in dispute was proved nor payment of earnest money was established---Concurrent findings recorded by the courts below could not be interfered with by the High Court in exercise of its revisional jurisdiction as powers of the High Court under S.115, C.P.C. were limited in scope---High Court could not interfere in exercise of powers under S.115, C.P.C., even if findings of the courts below were erroneous.

Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 rel.

Arshad Mahmood for Petitioner.

Zahid Hussain Khan for Respondents.

2008 C L C 1078

[Lahore]

Before Hafiz Tariq Nasim, J

Mst. MURADAN BIBI----Petitioner

Versus

NAZIR AHMED and 7 others----Respondents

Civil Revision No.1186 of 1996, heard on 24th March, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Suit for declaration by plaintiff was concurrently dismissed by the Trial Court and Appellate Court being barred by time---Evidence on record had fully established that suit was barred by time---Concurrent judgments of the two courts of competent jurisdiction based on evidence on record, could not be interfered with by the High Court in exercise of its revisional jurisdiction in absence of any illegality in said concurrent judgments.

Aurangzeb v. Muhammad Jaffar and another 2007 SCMR 236; Muhammad Zafarullah v. Muhammad Arif and others 2007 SCMR 589; Hakim-ud-Din v. Faiz Bakhsh and others 2007 SCMR 870 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 ref.

Khan Muhammad Bajwa for Petitioner.

Wali Muhammad Buttar for Respondents Nos. 1 and 2.

Kh. Basil Waheed for Respondents Nos.3, 5 and 6.

Taki Ahmad Khan for Respondents Nos.7 and 8.

Date of hearing: 24th March, 2008.

2008 C L C 1085

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD SADIQ and another----Petitioners

Versus

MUHAMMAD HUSSAIN----Respondent

Civil Revision .No.2101-D of 1999, heard on 5th March, 2008.

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

---Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff filed suit for pre-emption claiming superior right to pre-emption on the ground of being co-sharer, participator in the easement and also being owner of adjoining land---Plaintiff also claimed that as soon as he got the knowledge of impugned sale, he made Talb-i-Muwathibat in the same meeting and thereafter a notice was served to fulfil the requirement of Talb-i-Ishhad---Suit having concurrently been dismissed by the Trial Court and Appellate Court, plaintiffs had filed revision against said concurrent judgment---Plaintiff could not point out any jurisdictional defect, misreading and non-reading of evidence allegedly committed by the courts below---Plaintiff had failed to prove his claim of superior right of pre-emption---Particulars and details of dates, time and place of receiving information about sale and making Talb-i-Muwathibat and also names of the witnesses in whose presence such Talb was made, had not been disclosed---Even otherwise, the concurrent findings recorded by the courts below, attending to all the evidence, oral as well as documentary, could not be interfered with by High Court while exercising the revisional jurisdiction.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 ref.

Abdul Majeed-I for Petitioners.

Respondent proceeded ex parte.

Date of hearing: 5th March, 2008.

2008 C L C 1090

[Lahore]

Before Syed Hamid Ali Shah and Muhammad Khalid Alvi, JJ

Nawabzada IFTIKHAR AHMAD KHAN BABAR----Petitioner

Versus

CHIEF ELECTION COMMISSION, ISLAMABAD and 5 others----Respondents

Writ Petition No.607 of 2008, decided on 26th February, 2008.

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

----Ss. 14, 52 & 99(cc)---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Writ of quo-warranto, maintainability---Election of National Assembly---Non-filing of appeal against acceptance of nomination papers of respondent not having acquired educational qualification---Voter had right to bring factum of disqualification of respondent by supplying information or material before Election Tribunal, which could call upon respondent to show cause, why his nomination be not rejected---Election Tribunal, if satisfied that respondent suffered from any disqualification, could reject his nomination papers---Petitioner had not availed remedy of appeal before Election Tribunal, which was fatal to his case and same would not be open to exception in constitutional petition at belated stage---Candidature of respondent was not a secret matter, as it was open to every one and question of his scrutiny was widely publicized---Process of election like scrutiny of nomination papers had to be completed within a time frame---Remedy of appeal before Tribunal was more adequate and convenient, if judged with reference to time, speed and convenience of obtaining relief in constitutional petition---Interference through constitutional jurisdiction would render whole process of scrutiny and nomination of a candidate as an exercise in futility---Elections had been held and formal notification was close on heels, in such circumstances whole process of election could not be set at naught---Election of respondent could be called in question only through an election petition---Notification of respondent had not been issued, thus, he was not holding a public office---Respondent could assume public office only when he was notified and he could act as Member National Assembly only when there was a notification---On basis of consolidation of results by Returning Officer, respondent could not be said to be holding a public office---Respondent, unless notified as a returned candidate, could not profess or claim to be a returned candidate---High Court dismissed constitutional petition and held writ of issuance of quo warranto to be non-maintainable and premature.

Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Law Lexicon and Stroud's Judicial Dictionary ref.

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

-- S. 14----Appeal against acceptance or rejection of nomination papers---Such appeal, if not decided within target date, would abate.

(c) Words and phrases---

----"Purporting"---Meaning.

Law Lexicon and Stroud's Judicial Dictionary ref.

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

----S. 14----Constitution of Pakistan (1973), Art.199---Constitutional .petition---Writ of quo-warranto, maintainability---Election of National Assembly---Respondent was declared to be successful on basis of consolidation of results by Returning Officer---Notification of respondent was not issued, thus, he was not holding a public office---Respondent could assume public office only when he was notified and he could act as Member, National Assembly only when there was a notification---Respondent, until and unless notified as a returned candidate, could not profess or claim to be a returned candidate---Writ of quo-warranto was premature and non-maintainable.

Law Lexicon and Stroud's Judicial Dictionary ref.

M.A. Hayat Haraj for Petitioner.

Mian Muhammad Abbas, Addl. A.-G. on Court's call.

2008 C L C 1102

[Lahore]

Before Ali Akbar Qureshi, J

ALLAH YAR and 22 others----Petitioners

Versus

MAHLA through L.Rs. and others----Respondents

Civil Revision No.96-D of 1998, decided on 18th March, 2008.

Limitation Act (IX of 1908)----

----Art. 148---Redemption of mortgage---Limitation---Suit filed by plaintiffs was decreed in their favour and mortgage was redeemed---Appellate Court commuted period of limitation from the date of mortgage and dismissed the suit being barred by limitation---Validity---Limitation was to be started under Art.148 of Limitation Act, 1908, when right of redemption or re-possession of the property accrued---Property was mortgaged way back in years 1920 and 1921, whereas suit for redemption was filed on 21-3-1991, which, on the face of it, was well within time---High Court, in exercise of revisional jurisdiction set aside the judgment and decree passed by Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

1984 CLC 309 rel.

M. Farooq Qureshi Chishti for Petitioners.

Muhammad Hanif Malik for Respondents.

2008 C L C 1106

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MULAZAM ABBAS KHAN and another----Petitioners

Versus

MUDASSAR HUSSAIN KHAN and 2 others----Respondents

Writ Petition No.11369 of 2007, decided 4th April, 2008.

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

----Ss. 14, 152 & 163---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election dispute---Throw away votes, doctrine of---Disqualification notorious in constituency---Proof---Election petition was allowed on the ground that returned candidates for the seat of Naib Nazim was not a matriculate, resultantly election petitioners were declared returned candidates---Validity---Merely judging whether one of the returned candidates was disqualified or not was not enough for Election Tribunal; it was equally important to Judge whether disqualification of one of the returned candidates was notorious in the constituency at the time of polling---Such being the basic point was not attended to by Election Tribunal in the case---High Court, in exercise of constitutional jurisdiction, declared election of the whole union council as void---High Court directed Election Commission to conduct fresh election for the seat of Nazim and Naib Nazim as required under law---Constitutional petition was allowed accordingly.

PLD 2003 Lah. 138; PLD 2006 SC 78; Ch. Aftab Ahmad and another v. Naveed-ur-Rehman PLD 2004 SC 526; Syed Saeed Hassan v. Piyar Ali and 7 others PLD 1976 SC 6 and Bristol South East Parliamentary Election (1961) 3 All ER 354 ref.

Aish Bahadur Rana for Petitioners.

Ch. Muhammad Amin Javed for Respondents.

2008 C L C 1111

[Lahore]

Before Maulvi Anwarul Haq, Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

Rais MUNIR AHMED----Petitioner

Versus

RETURNING OFFICER/ADDITIONAL DISTRICT AND SESSIONS JUDGE, SADIQABAD and 4 others----Respondents

Writ Petition No.12058 of 2007, heard on 8th February, 2008.

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

---Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed facts---High Court was debarred from holding detailed enquiry into disputed facts.

(b) Conduct of General Elections Order (7 of 2002)---

---Art. 4-Conduct of General Elections Order, 2002 applicable to elections held in year 2002 and in future also---Principles.

(c) Conduct of General Elections Order (7 of 2002)---

----Art. 8-A---Representation of the People Act (LXXXV of 1976), S.99(cc)---Elections for Parliament and Provincial Assembly--Educational qualifications for contesting candidate---Scope---Candidate must not only have passed B.A. Examination, but must possess Bachelor's -degree---No one could be treated as a graduate without possessing a Bachelor's degree---Burden of proof to qualify for contesting election would heavily and mainly lay on the candidate, but such burden would not be so heavy on objector denying such qualification---Principles.

New International Webster's Comprehensive Dictionary of the English Language; Ballentine's Law Dictionary and Oxford English Dictionary ref.

(d) Words and phrases---

----"Graduate"-Meaning.

New International Webster's Comprehensive Dictionary of the English Language; Ballentine's Law Dictionary and Oxford English Dictionary ref.

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

----S. 99(cc)---Conduct of General Elections Order (7 of 2002), Art. 8-A---Election of National Assembly---Educational qualification of candidate-Nomination papers, filing of---Reliance of candidate on result card of B.A. Examination---Validity---Record of Bahawalpur University showed that while submitting Admission Form, candidate had relied on Diploma issued by American School of International Academics and Equivalence Certificate issued by Punjab University, on which he was issued roll number provisionally, but was asked to provide Equivalence Certificate from Inter-Board Committee of Chairman (I.B.C.C.)---Candidate was not issued B.A. degree by Bahawalpur University for his failure to provide Equivalence Certificate from I.B.C.C:, though he had passed B.A. Examination five years ago---Punjab University was not competent to issue Equivalence Certificate to candidate, thus, same could not be treated as valid certificate---Candidate not possessing B.A. degree was not qualified to contest election and allowing him to contest election would amount to disfranchise whole constituency---If candidate was allowed to contest, then votes cast in his favour would tantamount to throwing away and wasting of same---Nomination papers of candidates were rejected in circumstances.

Nawabzada Mir Balach Khan Marri through Attorney v. Mir Mohabat Khan Marri and 4 others PLD 2003 Quetta 42; Tanvir Ashraf v. Ch. Riasat Ali and 5 others 2004 YLR 659; Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184; Najaf Abbas Sial v. Kh. Hassan Wali Khan, Additional and District. Judge/Returning Officer PP-83, Jhang and another 2003 CLC 1068 and Mst. Arshad Bibi (deceased) through Mst. Fatima and others v. Maula Bakhsh (deceased) through Mst, Ghulam Safoor and others 2003 SCMR 318 ref.

Sh. Muhammad Akram for Petitioner.

Shehzad Shaukat and Muhammad Bashir Mian, Syed Nayyar Abbas Rizvi, A.A.-G. with Saeed Ahmad Baloch Stenographer, Islamia University and Muhammad Idrees Representative of American School of International Academics for Respondents.

Date of hearing: 8th February, 2008.

2008 C L C 1120

[Lahore]

Before Umar Ata Bandial, J

DILSHAD NABI RIAZ and 7 others----Petitioners

Versus

DISTRICT NAZIM, DISTRICT RAHIMYAR KHAN and 3 others----Respondents

Writ Petition No.1615 of 1996, decided on 28th May, 2007.

Constitution of Pakistan (1973)---

----Arts. 199, 23 & 24---Constitutional petition---Cancellation of allotment of plot---Petitioners acquired proprietary rights in the plots in question after having paid their price in full and having obtained possession thereof---Depriving the petitioners of said rights in plots in dispute was permissible under the Constitution subject to payment of compensation in accordance with law---Impugned action of authorities lacked said attribute by allowing refund of a price charged 14 years earlier and not a contemporary value thereof;' in any event the deprivation of proprietary rights must be attended at least by prior notice and opportunity of defence which was not given to the petitioners---Such defects had gone to the root of the matter disclosing patent illegality for which the constitutional jurisdiction under Art.199 of the Constitution would constitute the appropriate remedy---Impugned action of authorities was declared to be without lawful authority and of no legal effect.

Haji Khan Wali and others v. Director-General CD&MK, Peshawar 2005 YLR 3102 rel.

Bashir Ahmad Ch. for Petitioner.

Muhammad Ashraf Mohandra for Respondent No.2.

Mumtaz Mustafa for Respondents Nos.1 and 3.

2008 C L C 1122

[Lahore]

Before Maulvi Anwarul Haq and Zafar Iqbal Chaudhry, JJ

Malik UMAR ASLAM AWAN----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, through Secretary and 5 others----Respondents

Writ Petition No.1687 of 2008, heard on 6th March, 2008.

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

----Ss. 38, 39 & 103-AA---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Allegation of commission of illegalities by Returning Officer while consolidating results---Application for recount of polled votes due to discrepancies found in statement of count in Form XIV and statement prepared by Returning Officer---Dismissal of application by Returning Officer and Election Commission of Pakistan---Validity---Election Commission had no jurisdiction to direct a count or examination of rejected/invalid votes---Question as to whether alleged illegality or violation was grave had nexus with its effect on result of election---Determination of matter of such discrepancy had been left to Election Commission subject to recording of satisfaction within bounds of S.103-AA of Representation of the People Act, 1976---Results of elections had been notified---Election Tribunal had already been constituted---High Court directed petitioner to approach the Election Tribunal in circumstances.

Muhammad Ayub v. Election Commission of Pakistan, Islamabad and 7 others PLD 1991 Quetta 51; Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 and Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 ref.

Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713 rel.

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

----Arts. 199 & 225---Election matter---Constitutional jurisdiction of High Court---Scope---Primarily High Court would not interfere in such matter in view of provisions of Art.225 of the Constitution.

Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713 ref.

Jehanzeb Khan Bharwana and Imtiaz Rashid Siddiqui for Petitioner.

Dr. Z. Babar Awan for Respondent No.4.

Nemo for other Respondents.

Date of hearing: 6th March, 2008.

2008 C L C 1126

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD RAFIQ----Petitioner

Versus

MUHAMMAD AZEEM SHAKIR and 2 others----Respondents

Revision Petition No.1515 of 2006, decided on 19th March, 2008.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talb---Trial Court decreed suit, but Appellate Court dismissed the same---Appellate Court decided vital issue relating to Talbs' provided under S.13 of Punjab Pre-emption Act, 1991 after scanning entire evidence available on the file---Pre-emptor, at the time of filing the suit, would mention the time, date, place, name of informer and witnesses in' whose presence the jumping demand Talb-i-Muwathibat was made, whereas contents of the plaint filed by the plaintiff, were silent on that point viz; who was the informer, and who told plaintiff regarding the sale of suit property---Plaintiff, in circumstances had failed to fulfil the requirement of Talb---Even otherwise judgment passed by the Appellate Court was elaborate .and there was no reason to interfere with the findings recorded on issue regarding making of Talbs---Plaintiff having failed to prove the requirement ofTalbs', suit was rightly dismissed.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 ref.

Malik Zahur-ul-Haq Khokhar for Petitioner.

Imran Raza Khan for Respondent No.1.

2008 C L C 1132

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs AHMAD TRADERS through Sole Proprietor----Petitioner

Versus

FRONTIER WORKS ORGANIZATION (F. W.O.) HEADQUARTERS, RAWALPINDI through Director-General and another - Respondents

Writ Petition No.73 of 2007, heard on 17th April, 2008.

Constitution of Pakistan (1973)---

----Arts. 18 & 199---Constitutional petition---Right to conduct any lawful trade or business---Petitioner was black-listed and that too in a manner that he could not do business with any concerned department---Said order had been passed without any show-cause notice or opportunity of hearing---Constitution guaranteed the right of a citizen to conduct any lawful trade or business; subject to regulations of said trade or business---Right being so guaranteed under Art.18 of the Constitution, same could not be taken away by black-listing the petitioner otherwise than in accordance with law---Minimum requirement was a notice clearly stating the allegations which could under the applicable law or rule be a ground for black-listing and then a fair opportunity of hearing---No rule or regulation in accordance with which petitioner had been black-listed, had been shown---Impugned order which had been passed without any such proceedings and having no backing of law or rule was declared to be void and without lawful authority and was set aside.

Khalid Saif Ullah Khan for Petitioner.

Hifz-ur-Rehman for Respondent No. 1.

Date of hearing: 17th April, 2008.

2008 C L C 1309

[Lahore]

Before Fazal-e-Miran Chauhan, J

ABDUL HAMEED----Petitioner

Versus

PUNJAB BAR COUNCIL, LAHORE through Chairman and another----Respondents

Writ Petition No.990 of 2008, decided on 14th March, 2008.

(a) Punjab Legal Practitioners and Bar Councils Rules, 1974---

----Rr. 5.1 & 5.2-Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss.26 & 56(k)---Restraint on enrollment of fresh Advocate of above 35 years age on 30-6-2007---Validity---Such restraint imposed by R.5.1 as added on 12-12-2006 in Punjab Legal Practitioners and Bar Councils Rules, 1974 would not apply to a person, who intimated Punjab Bar council till 30-6-2007 regarding joining his senior for apprenticeship---By virtue of S.56(k) of West Pakistan Legal Practitioners and Bar Councils Act, 1973, Punjab Bar Council was competent to frame rules to provide for conditions, subject to which a person might be admitted as an Advocate or Advocate of High Court---Bar Council had not acted in excess of its power while framing Rr.5.1 & 5.2, but had acted with lawful authority---Purpose of imposing such restraint would be to garage in future huge influx of lawyers through proper care---Principle.

(b) Words and phrases---

----"Ultra vires"---Connotation.

The term "ultra vires" simply means beyond power or lack of power. The act is said to be ultra vires, when it is in excess of the power of the person or authority doing it. The essence of doctrine of ultra vires is that the act is done in excess of the powers possessed by the person or body in law. This doctrine proceeds on the basis that the person or body has limited powers to frame rules.

Dr. H.S. Rikhy and others v. The New Delhi Municipal Committee AIR 1962 SC 554; Anand Prakash and another v. Assistant Registrar Cooperative Societies and others AIR 1986 All. 22 and P. Janardhana Shetty and another v. The Union of India by Secretary to the Government of India, Ministry of Home Affairs, New Delhi and others AIR 1970 Mysore 171 ref.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Faisal Ali Qazi, Assistant Advocate-General.

Muhammad Iqbal Mohal and Ch. Imran Masood, behalf of Punjab Bar Council.

2008 C L C 1317

[Lahore]

Before Hafiz Tariq Nasim, J

MUHAMMAD YOUSAF----Petitioner

Versus

Mst. SAFIA BIBI and another----Respondents

Writ Petitions Nos.3208 and 3209 of 2007, heard on l4the April, 2008.

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

----Ss. 17 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Welfare of minor---Both petitioner/father of minor and respondent/mother of minor filed respective applications for custody of minor girl---Guardian Judge dismissed application of respondent/mother and allowed that of petitioner/father, but Appellate Court below on filing appeal, reversed judgment of Guardian Judge---Judgment passed by Appellate Court below confirmed and found respondent/mother of minor entitled to get the custody of minor, holding that minor was about 10 years of age and was not getting education in any school under the custody of petitioner/father; that petitioner/father was spending most of his time away from the house for earning his livelihood, and his mother who was residing with him was aged about 75 years and could not look after the minor girl; that according to Islamic law, mother was entitled to the custody of her female child until she would obtain puberty; that respondent/mother of minor had not contracted second marriage and no evidence was available that she was leading an immoral life---Petitioner was directed to hand over the custody of minor to respondent mother---Held, welfare of minor was that minor to remain with her mother and she was entitled to custody of the minor girl in circumstances, constitutional petitions were dismissed.

Sh. Khurshid Iqbal for Petitioner.

Faiz-ul-Hassan for Respondent.

Date of hearing: 14th April, 2008.

JUDGEMENT

HAFIZ TARIQ NASIM, J.--- Through this single judgment I also propose to decide Writ Petition No.3209 of 2007 along with this petition, as common questions of facts and law involve.

1. These writ petitions are filed against the judgment dated 13-2-2007 passed by the learned Additional District Judge, Chiniot, in Civil Appeals Nos.60/13 of 2006 and 61/13 of 2006. Two applications, one by Mst. Safia Bibi respondent and the other by Muhammad Yousaf petitioner were filed for custody of their minor daughter Samina Kausar in the Court of Guardian Judge, Chiniot, who dismissed the application of the respondent and allowed that of the petitioner vide order dated 13-7-2006 holding:---

"The above circumstances are helpful to conclude that the respondent is the most appropriate guardian for the minor at this stage, who is the only person to fulfil all sorts of needs of his minor daughter and whom the minor herself has preferred. Therefore, the custody of the minor is declared to be handed over to the respondent; his application for this purpose is hereby allowed whereas that of the petitioner is hereby dismissed."

1. Aggrieved by this order of the learned Guardian Judge dated 13-7-2006 the respondent filed two appeals before the learned Additional District Judge, Chiniot, who accepted the same and reversed the judgment of the learned Guardian Judge.

2. The learned counsel for the petitioner submits that the judgment passed by the learned Guardian Judge was strictly in accordance with law whereas the judgment of the learned Additional District Judge is against the dictates of law and virtually the welfare of the minor was not taken into consideration while accepting the appeals of Mst. Safia Bibi. On the other hand, the learned counsel for the respondent has supported the judgment of the learned Additional District Judge.

3. Arguments heard. Available record perused.

4. After hearing both the parties and perusal of record, I have reached to the following conclusions:-

(i) Mst. Samina Kausar minor is about 10 years of age and she is not getting education in any school under the custody of her father i.e. the petitioner.

(ii) The petitioner Muhammad Yousaf spends most of his time away from the house for earning his livelihood whereas his mother who is residing with him is aged about 75 years and she could not look after the minor girl.

(iii) According to section 352 of the Mohammedan Law, the mother is entitled to the custody of her female child until she attains puberty.

2008 C L C 1324

[Lahore]

Before M. Javed Buttar, J

Dr. SALEEM H. MALIK----Petitioner

Versus

Messrs BUILD MASTER through General Manager----Respondent

Civil Revision No.587-D of 1999, heard on 27th February, 2003.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Plaintiff was a firm carrying a business of contractors, engineers and builders and an agreement was arrived at between plaintiff firm and defendant for construction of two storeyed house of defendant which work along with additional work was completed by plaintiff---Defendant paid certain amount to plaintiff, but balance amount having not been paid by defendant, plaintiff filed suit for its recovery---Said suit having concurrently been decreed by the Trial Court and Appellate Court, defendant had filed revision against the same---Defendant did not deny execution of agreement between the parties---Defendant, in the written statement, did not deny details of work undertaken by the plaintiff as given in the plaint---Plaintiff's offer was accepted by defendant---Nothing was on record showing that work was not done by plaintiff in accordance with the specification and terms and conditions of the agreement---No defect was ever found or pointed out in the work completed/undertaken by the plaintiff---Plaintiff undertook extra work as per desire of defendant for which extra rate was claimed by plaintiff---Concurrent findings of fact recorded by the Courts below did not suffer from any illegality, misreading or non-reading of evidence and no material irregularity had been pointed out---Plaintiff had fully proved his case through his oral assertion as well as through documentary evidence, which had established that defendant had not paid disputed amount to plaintiff---Defendant had failed to make out any case for interference by the High Court in exercise of its revisional jurisdiction.

Muzammal Akhtar Shabbir for Petitioner.

Nemo for Respondent.

Date of hearing: 27th February, 2003.

2008 C L C 1337

[Lahore]

Before Ali Akbar Qureshi, J

TABASSUM KHURSHID----Petitioner

Versus

SARDAR ABID IQBAL and another----Respondents

Writ Petition No.344 of 2008, decided on 30th April, 2008.

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

----S. 5 & Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage and for recovery of dower amount---Family Court decreed the suit for dissolution of marriage, but dismissed claim of plaintiff to the extent of her dower amount---Plaintiff no where had claimed the dissolution of marriage on the basis of Khula', but she had mentioned different instances of cruelty and bad behaviour of defendant/husband---From the statement recorded before the Trial Court, it could not be presumed that plaintiff had claimed dissolution of marriage on the basis ofKhula'---Right of Khula' could only be exercised if the same was stated in clear words, whereas in the present case nowhere such sentence was used nor the word ofKhula' was mentioned---Plaintiff could not be deprived of her valuable right of dower amount on that score---Decree for dissolution of marriage passed by the Trial Court in favour of plaintiff was maintained and condition as placed by the Family Court to forego the claim of dower amount was declared to be without lawful authority and of no legal effect.

Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531; Mukhtar Ahmed v. Ansa Naheed and 2 others PLD 2002 SC 273 and Mst. Saiqa v. Additional District Judge and others 2003 YLR 70 ref.

Miss Arjumand Rafiq for Petitioner.

Raja Muhammad Ikram Minhas for Respondent.

2008 C L C 1360

[Lahore]

Before Hafiz Tariq Nasim, J

Haji KHALID USMAN----Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB, AGRICULTURE DEPARTMENT, LAHORE and 3 others----Respondents

Writ Petition No.7699 of 2006, decided on 14th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Arbitration proceedings---Aggrieved person could invoke jurisdiction of the High Court under Art.199 of the Constitution, if he had no alternate remedy---Arbitration laws were unambiguous in terms and if some dispute arose in any controversy, the only course was to approach the civil court for resolving the controversy and not to rush to the High Court invoking the provision of Art.199 of the Constitution.

A. Karim Malik for Petitioner.

Naeem Masood, Asstt. A.-G. for Respondents Nos.1 to 3.

Shoaib Zafar for Respondent No.4.

Date of hearing: 28th April, 2008.

2008 C L C 1368

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

WASA----Appellant

Versus

INAYATULLAH and others----Respondents

Regular First Appeals Nos.456 and 457 of 2006, decided on 2nd April, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Lahore Development Authority Act (XXX of 1975), S.48---Appeal, competency of---Land belonging to the respondents/land owners, was acquired and compensation of acquired land was announced---Feeling aggrieved respondents filed references to Referee Court under S.18 of Land Acquisition Act, 1894, which were decided by Lahore Development Authority Tribunal and compensation payable was increased, against which Authority filed appeals .under S.54 of Land Acquisition Act, 1894---Respondent raised preliminary objection that appeals were not maintainable against judgment of the Tribunal as said Tribunal was constituted under Ss.58 & 60 of Town Improvement Act, 1922 (since repealed), and that under sub-clause (a) of S.59 of said Act an appeal provided under S.54 of Land Acquisition Act, 1894 was not available against decision of the Tribunal---Validity---Acquisition in question was initiated and conducted under provisions of Lahore Development Authority Act, 1975, read with provisions of Town Improvement Act, 1922---Appeal had been filed against the judgments of the said Tribunal---Subsection 3(ii) of S.48 of Lahore Development Authority Act, 1975 had provided in an unambiguous term that provisions of Ss.58 to 60 of (repealed) Town Improvement Act, 1922 would continue to- apply in respect of acquisition made under Land Acquisition Act, 1894---Application of S.54 of Land Acquisition Act, 1894, stood-absolutely excluded---Appeals filed by respondent Authority under S.54 of Land Acquisition Act, 1894, were thus incompetent---In absence of any ground for interference with impugned judgments, appeals were dismissed.

Secretary of State v. Hindustan Cooperative Insurance Society Ltd. AIR 1931 PC 149; Mangat Rai and others v. Jullunder Improvement Trust and others AIR 1964 Pb. 455; Barmashel Oil Storage and Distributing Co. of India v. Municipal Committee, Jubbulpore AIR 1949 Nag. 148 and Laxmanrao alias Baburao Shridharraro Deshmukh v. Collector of Nagpur District AIR 1945 Nag. 146 ref.

Nayyar Iqbal Ghaury for Appellant.

Ch. Mushtaq Masood for Respondents.

Date of hearing: 2nd April, 2007.

2008 C L C 1381

[Lahore]

Before Kazim Ali Malik and Saif-ur-Rehman, JJ

SEHRISH ZAINAB----Appellant

Versus

CHAIRMAN, SELECTION COMMITTEE, PRINCIPAL, KING EDWARD MEDICAL UNIVERSITY, LAHORE and 2 others----Respondents

Intra-Court Appeal No.32 of 2008 in Writ Petition No.933 of 2008, heard on 21st April, 2008.

Educational Institution---

----Admission in Medical College---Appellant and another candidate applied for admission in any Medical College in the Punjab against reserved seat for under developed district of D.G. Khan---Principal of the College provisionally selected appellant for admission against said reserved seat---Other candidate, who was not selected for said reserved seat, called in question the legality and correctness of admission of appellant mainly on the ground that appellant was not eligible for admission---Admission of appellant was cancelled and said other candidate was accommodated against said reserved seat vacated by the appellant---Appellant filed constitutional petition against cancellation of her admission on the ground that valuable legal rights had accrued in her favour after her admission against the reserved seat---Constitutional petition filed by appellant having been dismissed she filed intra-court appeal---Validity---Criterion for eligible candidates against reserved seats of under developed District was that they should have a domicile of the same District area and must have completed his/her school and Higher Secondary Education from the same District area---Appellant passed her Secondary School Examination (Matric) from Quetta, whereas said other candidate completed her school and Higher Secondary Education from D.G. Khan District-Said other candidate, in circumstances, was eligible for admission against the under-developed District of D.G. Khan--Appellant, who was not equipped and possessed with prescribed qualification, was not eligible for said admission in the light of criteria laid down by the authorities---Mere fact that appellant succeeded to get admission against the reserved seat over and above the criteria through back door, would not mean that she had earned some legal rights in her favour---Impugned order of cancellation of admission of appellant, was not open to any exception on legal and factual ground.

M. Sohail Iqbal Bhatti for Appellant.

Nemo for Respondents.

Date of hearing: 21st April, 2008.

2008 C L C 1406

[Lahore]

Before Hafiz Tariq Nasim, J

MEHMOOD AHMAD---Petitioner

Versus

FAKHAR-UZ-ZAMAN and 3 others---Respondents

Civil Revision No.1619 of 2007, decided on 27th May, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Litigation was amongst father and sons---Plaintiff, who was father of defendants, filed suit for declaration and permanent injunction alleging that one of his sons had defrauded him and deprived him from his agricultural land on the basis of alleged oral gift---Claim of said defendant was that plaintiff, who was owner of property in question gifted same to defendants through mutations on the basis of oral gift---Suit filed by the plaintiff having concurrently been dismissed by the Trial Court and Appellate Court---Certified copies of the disputed mutations and Khasra Girdawari had revealed that defendants were in possession of the property in dispute and their names had also been incorporated in the Jamabandi---Fact of attestation of mutation on the basis of oral gift was not disputed as plaintiff had admitted in the plaint as well as in his statement that he attested the mutations in favour of defendants with his free consent---Plaintiff, however, contended that said mutations were attested only to facilitate the defendants to obtain loan from the Bank on the basis of property so transferred in their names and he had taken a stance that fraud had been committed on him---Validity---Said stance of plaintiff could not be accepted because from his statement and that of his witness, it could be inferred that a family dispute was between the plaintiff and one defendant---Concurrent findings recorded by the courts below which were well reasoned, could not be interfered with, particularly when there was a very limited scope for interference by the High Court in exercise of its revisional jurisdiction under S.115, C.P.C.

Ch. Shahid Saeed for Petitioner.

Bashir Ahmed Bhatti for Respondent.

Date of hearing: 7th May, 2008.

2008 C L C 1422

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Tariq Shamim, JJ

Chaudhry UMAR JAVED----Petitioner

Versus

INTESAR HUSSAIN and others----Respondents

Writ Petitions Nos.11871, 11872, 11920 and 11984 of 2007, decided on 19th December, 2007.

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

----S. 99(1)(F)---Conduct of General Election Order (7 of 2002), Art.8-A---Constitution of Pakistan (1973), Art.62(d)(F), 63(a) & 199---Constitutional petition---Disqualification of candidate---Nomination papers submitted by respondent for candidature for the seats of Provincial and National Assembly, had been accepted by Returning Officer despite objection raised by the petitioner as to respondent's disqualification due to his lacking required educational qualification---Appeal filed by the petitioner against acceptance of Nomination papers of respondent having been dismissed by Election Tribunal, petitioner had filed constitutional petition against order of Election Tribunal---Validity---Respondent appeared in B.A. Annual Examination in the year 2002 and having been involved in a case of unfair means, was disqualified for a period of three years, he was, in circumstances not eligible to appear in any examination earlier than .year 2005---Respondent, however managed to appear in First Annual Examination 2003 by adopting deceitful means as he changed the spelling of his name---Fraud and forgery committed by the respondent was patent on the face of the record, which did not need any inquiry and investigation---Respondent, by no stretch of imagination, could be termed as sagacious, righteous, non-profligate, honest and ameen as provided in Art.62(1) of the Constitution, as well as S.99(1)(F) of Representation of the People Act, 1976 and could not be allowed to contest election---Even otherwise, the degree procured by respondent on the basis of examination in the year 2003, had since been cancelled by the University---Accepting petition filed by the petitioner, order of the Election Tribunal was set aside by High Court and it was declared that respondent was not qualified to contest the election due to lack of educational qualification etc., as provided in terms of S.99(1)(F) of Representation of the People Act, 1976.

Intisar Hussain v. Akhtar Hussain and 4 others 2003 SCMR 204 and Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 rel.

Saif-ul-Malook, Abid Saqi and Ch. Fawad Hussain for Petitioner.

Muhammad Shah Gul and Nazir Ahmad Ghani for Respondent No.1.

Muhammad Arif Raja, Legal Advisor University of the Punjab, Lahore with Abdul Rehman, Administrative Officer.

2008 C L C 1437

[Lahore]

Before Muhammad Khalid Alvi, J

SAEED AHMAD----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), MULTAN and 5 others----Respondents

Writ Petition No.1437 of 2008, heard on 30th May, 2008.

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

---Ss. 121, 122 & 132---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease of property---Property in dispute was a Nazool' land and was in the use of Town Municipal Administration, for the last 60 years---Shopping market was in existence at the land since 1982, which was demolished and was to be reconstructed for which the lease was given to the petitioner, as approved by the Local Council---Petitioner started work of construction; in the meanwhile, impugned letter was issued by Authorities directing him to stop construction at the spot---Validity---Property in dispute wasNazool' and was being used by Town Municipal Administration since 1948 for different purposes---Under subsection (2) of S.121 of the Punjab Local Government Ordinance, 2001, the properties of the Government in possession of Local Councils established under the Punjab Local Government Ordinance, 1979 would pass on to the present Local Government---Under subsection (4) of S.121 of Punjab Local Government Ordinance, 2001, if the government wanted to re-allocate some property,' then it was mandatory that it should have obtained prior consent of Local Government concerned---If site in dispute was required to be re-allocated for establishment of a Degree College, then instead of going into controversy with Town Municipal Administration, it should have sought consent of the Municipal Administration for the purpose for which it was being planned---Under S.122 of the Punjab Local Government Ordinance, 2001 the government could transfer "Nazool" and "Auqaf" lands or other government properties for administration to the Local Government, but would retain lien of the same---Disputed question with regard to exactitude of the measurement of the site, was not required by the High Court to be resolved, because the decision was being taken on legal premises---Impugned order whereby construction at the site was stopped, was declared to be illegal and without lawful authority, in circumstances.

Muhammad Amir Bhatti for Petitioner.

Malik Muhammad Ramzan Khalid, Addl. A.-G. Punjab, Abdul Salam Alvi for Respondent No.5 and Zia Ullah Khan D.O.R. (Multan)

.

Date of hearing: 30th May, 2008.

2008 C L C 1443

[Lahore]

Before Mazhar Hussain Minhas, J

MASOOD AHMED----Petitioner

Versus

JOINT SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF MINORITIES (MINORITIES AFFAIRS DIVISION) and 3 others----Respondents

Writ Petition No.4560 of 2006, decided on 4th June, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had assailed order passed by Authority whereby his revision petition against dismissal of his appeal was dismissed---Petitioner had contended that his counsel had died and lie personally appeared before Authority on the date of hearing and made request for adjournment to engage his counsel, but his request was not acceded to and the revision was decided without hearing arguments of the petitioner---Petitioner had placed on record copy of death certificate issued by Secretary, Union Council concerned; in view of said certificate, the petitioner was certainly not represented by his counsel---Impugned order showed that attendance of counsel for the petitioner was marked, but neither name of counsel was mentioned nor his power of attorney was available on the file; it could not be held, in circumstances that petitioner was duly represented by a counsel before the Authority at the time of hearing of his revision petition; it was indefeasible right of a party that he should be given fair opportunity of hearing, which could not be normally possible in the absence of his counsel---Proper legal assistance being not available to petitioner at the time of hearing of the revision petition, he was deemed to have' been condemned unheard---Allowing constitutional petition, impugned order was set aside and revision was remanded to the Authority for its decision afresh after affording proper opportunity of hearing to the parties.

Malik Muhammad Tariq Rajwana for Petitioner.

Malik Muhammad Jaffar Kamboh for Respondents Nos.2 and 3.

Amin-ud-Din Khan for Respondent No.4.

2008 C L C 1446

[Lahore]

Before Jawwad S. Khawaja, J

Mst. KHALIDA PERVEEN and 6 others----Petitioners

Versus

MUHAMMAD MAQSOOD through L.Rs. and 2 others----Respondents

Civil Revision No.924-D of 1998, decided on 29th June; 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreements to sell---Trial Court dismissed the suit but Appellate Court below reversed judgment and decree passed by the Trial Court and decreed the suit---Validity---Counsel for defendants was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgment, which would justify interference therein while exercising revisional jurisdiction---Impugned appellate decree being unexceptionable, and consistent with the record, could not be interfered with.

Amjad Iqbal Sindhu for Petitioner.

M. Tahir Naeem for Respondent.

Date of hearing: 29th June, 2006.

2008 C L C 1449

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

AWAIS JAVAID----Petitioner

Versus

PRINCIPAL, PUNJAB MEDICAL COLLEGE, FAISALABAD and 3 others----Respondents

Writ Petition No.7800 of 2008, decided on 30th June, 2008.

Educational Institution---

----Right to seek admission in an educational institution and to continue studies therein is always subject to the Rules of discipline framed by the institution, and as such, a student who intends to pursue his studies in the institution is bound by such Rules---Rule of passing an examination in four attempts did not infringe upon right of a student to pursue his studies in the institution, on the contrary, it ensured arrest of falling standard of education in the institutions and was not arbitrary and unreasonable---Contention that student having got admission on self-financing basis, could avail as many chances as he chose was frivolous as Rules/Regulations are applicable to all manners of students---Constitution of Pakistan (1973), Arts.199 & 22.

Ali Yousuf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others 2000 SCMR 1222 and Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 rel.

Abdul Sadiq Chaudhry for Petitioner.

2008 C L C 1452

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ASLAM and 6 others----Appellants

Versus

MUHAMMAD MAQBOOL and 6 others----Respondents

Regular Second Appeal No.29 of 1982 and C.M. No.315-C of 2008, decided on 2nd May, 2008.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 5(2)---Constitution of Pakistan (1973), Art. 185(2)(d)(e)---Application for stay of execution of decree---Appeal to Supreme Court and High Court---Fixation of jurisdictional value---Supreme Court had divided the forum of appeal up to the level of High Court on the one hand and for the purposes of Supreme Court on the other hand---For the purposes of appeals up to the level of High Court the jurisdictional value fixed in the plaint, was the criteria to determine the forum of appeal, but for the purposes of appeal before the Supreme Court as a matter of right, provisions of Art.185(2)(d)&(e) of the Constitution, were the determining factors---Jurisdictional value of the suit would become irrelevant when the question of maintainability of an appeal before the Supreme Court was to be examined---Only thing which was to be checked was, as to what was the actual market value of the property in dispute at the time of institution of the suit and at the time of appeal before the Supreme Court---In the present case, the price of the land in dispute at the time of filing the suit and also at the time of hearing of the appeal was Rs.80,000---Appeal as a matter of right was competent in the High Court, in circumstances.

PLD 1985 SC 393 and 2003 SCMR 875 ref.

Syed Muhammad Ali Gillani for Appellants.

Malik Sharif Ahmad and Chaudhry Abdul Sattar Goraya for Respondents.

Mian Abbas Ahmad, Addl. A.-G.

Muhammad Ameer Bhatti.

2008 C L C 1456

[Lahore]

Before Mazhar Hussain Minhas, J

MUHAMMAD BASHIR----Petitioner

Versus

Haji MUHAMMAD RAMZAN----Respondent

Civil Revision No.783 of 1995, decided on 16th April, 2008.

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

----Ss. 6 & 13--Suit for pre-emption---Plaintiff filed suit claiming his superior right of pre-emption on basis of being Shafi-i-Sharik',Shafi-i-Jar' and `Shafi-i-Khalit'---Defendant contested the suit on the ground that suit-land had been alienated to him through a gift and it was not sale transaction and that suit filed by plaintiff was not maintainable---Trial Court dismissed suit, but on filing appeal by the plaintiff, Appellate Court set aside judgment and decree of Trial Court-Validity--Pre­emption right could be defeated by any legal means or device---Plaintiff had not brought on record any evidence. to prove that suit property had been sold to defendant and its price had been paid to the vendor thereof--Defendant, on the other hand had stated that suit property was gifted to him through mutation---Besides his own statement, defendant examined attesting witness of the mutation, who had supported the case of dependant that suit property was alienated by way of gift and that no price was paid---In view of evidence on the record, plaintiff had failed to discharge the onus to prove that the impugned transaction was sale and not gift---Suit, in circumstances had rightly been dismissed by the Trial Court and impugned judgment and decree passed by the Appellate Court were not maintainable in law---Judgment and decree passed by the Appellate Court were set aside and judgment and decree passed by the Trial Court were upheld.

Haji Noor Muhammad through Legal Heirs v. Abdul Ghani and 2 others 2000 SCMR 329; Muhammad Azam and 11 others v. Muhammad Nawaz and 8 others 2005 CLC 1593; Sher Azam v. Fazle Azim Shah 1972 SCMR 649 and Raja Muhammad Siddique v. Abdul Rehman 1997 CLC 1819 ref.

(b) Islamic law--

----Gift---Law did not require a person to alienate his property through gift only to his relatives, he could gift property even to a stranger.

Muhammad Naveed Hashmi for Petitioner.

Noor Ahmed Khan for Respondent.

Date of hearing: 24th March, 2008.

2008 C L C 1460

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL GHAFFAR----Petitioner

Versus

KHALID PERVAIZ and 5 others----Respondents

Civil Revision No.1950 of 2007, heard on 16th June, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for declaration---After framing issues, case was adjourned for recording evidence of plaintiffs---Plaintiffs failed to produce evidence despite several adjournments---Evidence of plaintiffs was closed and suit was dismissed by the Trial Court---Appellate Court below, however, set aside judgment and decree passed by the Trial Court and remanded case--Validity-Plaintiffs did not state any reason for their failure to produce evidence despite many adjournments granted to them for that purpose---Trial Court, in circumstances, had rightly dismissed suit filed by the plaintiff for their failure to produce evidence---High Court set aside order of Appellate Court---Judgment and decree of the Trial Court dismissing the suit stood restored, in circumstances.

Ch. Ali Muhammad for Petitioner.

Mian Liaqat Javed for Respondents Nos.2 to 4.

Date of hearing: 16th June, 2008.

2008 C L C 1466

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD ASHRAF and 7 others----Petitioners

Versus

MUHAMMAD WARIS and 2 others----Respondents

Civil Revision No.1481 of 2005, decided on 20th May, 2008.

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), S.5---Specific Relief Act (I of 1877), S.12---Suit-for specific performance of agreement---Revision petition---Limitation---Suit for specific performance of agreement filed by the plaintiffs, was decreed by the Trial Court and appeal filed by defendants against the same having been dismissed by the Appellate Court defendants had filed revision against said concurrent judgment and decree of the courts below---Revision against impugned judgment and decree of the Appellate Court below filed after one year of said judgment and decree, was patently time barred and counsel for defendants had failed to explain said inordinate delay in filing revision within 90 days---Section 5 of Limitation Act, 1908, being not applicable in revision, delay could not be condoned---Counsel for defendants being unable to point out any illegality, irregularity, misreading and non-reading of record warranting interference of High Court in its revisional jurisdiction, concurrent findings of fact could not be interfered with by the High Court.

1975 SCMR 304; 2006 SCMR 676; 2001 SCMR 286 and 2002 MLD 1531 rel.

C.M. Sarwar for Petitioners.

Syed Kaleem Ahmad Khurshid for Respondents.

2008 C L C 1474

[Lahore]

Before Syed Asghar Haider and Khalil Ahmad, JJ

MARKET COMMITTEE, DIJKOT ROAD, FAISALABAD through Administrator and another----Appellants

Versus

ABDUL JABBAR----Respondent

Intra-Court Appeal No.311 of 2007 in Writ Petition No.8811 of 2003, decided on 16th June, 2008.

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

---Ss. 19 & 36---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Charging entry fee or cycle stand fee---Appellant had called in question order passed by the Single Judge of High Court whereby the act of Market Committee in charging entry fee or cycle stand fee had been declared to be ultra vires and without lawful authority---Validity---Provisions of Punjab Agricultural Produce Markets Ordinance, 1978 or bye-laws of the Market Committee made or adopted under S.36 of the Ordinance, did not permit charging of entry fee or cycle fee---Market Committee was authorized to levy any fee under section 19 of Punjab Agricultural Produce Markets Ordinance, 1978 only if the bye-laws of the Committee had been so amended to provide for levy ' of such fee---Executive direction or permission to Market Committee could not, by itself, assume the status of bye-laws---Appellant could not go beyond their bye-laws which did not provide for charging such kind of fee---Impugned judgment being not open to any exception, intra-Court appeal was dismissed.

PLD 1989 Lah. 363 ref.

Shoaib Zafar for Appellants.

2008 C L C 1489

[Lahore]

Before Maulvi Anwarul Haq, J

ALTAF HUSSAIN SAJID----Appellant

Versus

MUHAMMAD ARIF----Respondent

F.A.O. No.41 of 2008, heard on 2nd July, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), S.4---Stamp Act (II of 1899), S.2(5)(b) & (20)---Suit for recovery of amount on basis of Promissory Note (pro note) signed by witnesses---Maintainability---Such document signed by defendant (its maker) contained unconditional undertaking to pay certain amount to plaintiff or to his order---Such document fulfilled all conditions prescribed by S.2(20) of Stamp Act, 1899 read with S.4 of Negotiable Instruments Act, 1881---Such document was not a "bond" within meaning of S.2(5)(b) of Stamp Act, 1899--Mere signing of such document by witnesses would not change its nature or lose its significance as negotiable instrument within meaning of O.XXXVII, C.P.C.---Suit was maintainable on basis of such document---Principles.

Muhammad Ashiq v. Rana Tariq Mahmood 2006 CLD 865 ref.

Muhammad Zafar v. Dr. Jehan Ara Ahmad 2002 CLD 257 fol.

Abdul Rauf v. Farooq Ahmed and another PLD 2007 Lah. 114 not fol.

Qazi Zia Zahid for Appellant.

Respondent: Ex parte.

Date of hearing: 2nd July, 2008.

2008 C L C 1496

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD YOUSAF VIRK----Petitioner

Versus

TEHSIL ADMINISTRATION, SHEIKHUPURA through Nazim and 2 others----Respondents

Civil Revision No.245 of 2008, decided on 3rd July, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Relief beyond prayer---Plaintiff sought interim injunction for restraining defendants from construction of sewerage drain till decision of the suit---Trial Court declined to grant interim injunction but Appellate Court not only restrained the defendants from construction but also directed them to construct the same as desired by plaintiff--Validity---Appellate Court was authorized under law only to adjudicate appeal emanating from the order on application under O.XXXIX, Rr.1 and 2 C.P.C. and to confine itself to prayer made therein but it lost track of the prayer and went to issue a direction which was illegal and without jurisdiction---Appellate Court was vested with no authority to order redesigning of drain and issue direction for collection of payment/expenditure etc.---Order passed by Appellate Court was not only bad in law but was patently illegal and without jurisdiction and was not tenable---Order passed by Trial Court was well reasoned and had taken into account the parameters required to grant injunctive relief and same was in consonance with law---High Court, in exercise of revisional jurisdiction, set aside the order passed by Lower Appellate Court and restored that of Trial Court, in circumstances.

Mirza Nasr Hussain Shahid for Petitioner.

Respondent No.1 ex parte.

Mian Shehbaz Ali for Respondents Nos.2 and 3.

2008 C L C 1504

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHRAF----Appellant

Versus

ARSHAD PARVAIZ----Respondent

F.A.O. No.61 of 2007, heard on 23rd June, 2008.

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

----S. 17---Bona fide personal need of landlord---Acceptance of ejectment petition by Rent Controller---Plea of tenant that his ejectment could not be claimed by appellant, who in his evidence had admitted not to be owner of disputed house---Validity---Ejectment petition disclosed that disputed house owned by appellant was let out to tenant on the terms contained in rent agreement, which fact had been admitted by tenant---Appellant in cross-examination admitted that he was paying taxes in respect of disputed house, but receipts, thereof were in the name of its old owner---Appellant in cross-examination stated that he had incorrectly stated in ejectment petition that he was owner of disputed house, but he further stated that he was its actual owner, while in papers name of its old owner continued---Tenant in his affidavit-in-evidence filed after three months of cross-examination of appellant admitted that disputed house was let out to him by appellant under a written agreement, and that appellant was its owner---Period of tenancy had expired---Appellant was not in possession of any other house owned by him suitable for his needs---High Court dismissed appeal in circumstances.

Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig 1990 MLD 1009 distinguished.

Mahmood-ul-Hassan Awan for Appellant.

Muhammad Irshad Rana for Respondent.

Date of hearing: 23rd June, 2008.

2008 C L C 1511

[Lahore]

Before Syed Asghar Haider, J

FARRUKH MUNIR and 2 others----Petitioners

Versus

PAKISTAN HOUSING AUTHORITY through authorized attorney----Respondent

Civil Revision No.841 of 2008, decided on 2nd July, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitution of Pakistan (1973), Art.199 --Constitutional petition---Suit for permanent injunction---Application for grant of interim injunction---Defendant lodged a scheme for construction of apartments in a project and plaintiffs purchased apartments in the said project---Claim of plaintiffs was that project as advertised, was subject to a master plan which included parks, and other amenities and defendant was bound to adhere to same in its letter and spirit and could not deviate, but defendant did not adhere to that plan---Plaintiff alleged that defendants indulged into acts of omission and commission; converted area reserved for park into a building---Plaintiff claimed that ingredients for grant of injunction were in their favour---Trial Court granted injunctive relief as prayed for by the plaintiffs, but Appellate Court below having reversed orders of the Trial Court, plaintiffs had filed constitutional petition---Both parties were holding different view points qua the dispute regarding master plan, site plan---Matter needed to be appraised by evidence and required detailed inquiry, where both parties should have opportunity to prove their respective stances by leading evidence---Injunctive relief, was discretionary and was dependant upon three ingredients; prima facie case; balance of convenience; and irreparable loss---In the present case, if construction of apartments in Scheme was stopped, it was bound to cause more inconvenience to prospective buyers who had made payments and in case of delay would suffer inconvenience---Balance of convenience thus lay in favour of defendant and not in favour of plaintiffs---No chance of any irreparable loss was to the plaintiffs as they had already been allocated apartments and in case of deviation by the defendant in the site plan, they would be liable for the consequences and amenable to legal action in accordance with law---Ingredients for grant of injunction, did not favour the plaintiffs, in circumstances---Impugned judgment of the Appellate Court below, was unexceptionable, in circumstances--Constitutional petition was dismissed.

Zahoor Ali Nasir Tagha for Petitioner.

Ahmar Bilal Sufi and Imran Ahmad Malik for Respondent.

Syed Iftikhar Hussain Shah, Dy. Attorney-General on Court's call.

2008 C L C 1513

[Lahore]

Before Syed Qalb-i-Hassan, J

MUHAMMAD AZAD----Petitioner

Versus

Malik ZAHOOR----Respondent

Civil Revision No.605 of 2006, decided on 5th May, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & 3---Suit for recovery of amount on basis of cheque---Application for leave to appear and defend suit---Granting leave subject to furnishing a Bank guarantee---Trial Court accepted application and defendant was allowed to appear and defend suit subject to furnishing of Bank guarantee equivalent to the claim of plaintiff---Defendant had challenged condition imposed in impugned order---Grant of conditional or non-conditional leave having direct nexus with plausibility of defence, ultimate success or failure in the suit, was no consideration for refusal or grant of leave, rather, consideration was that the grounds taken in the application for grant of permission to defend the suit, were plausible and defendant had arguable case---On the face of uri­rebutted assertion of the plaintiff and supported by the documents executed by the defendant from time to time acknowledging his liability to amount claimed against him---Defendant had already received a considerable amount through an agreement to sell---When possession of the land was still with him along with the possession of house handed over to him through Jirga (agreement), which was also leased out by him on account of demarcation of land, which had not been done by any default of either party, it could not be said that the conditions of Jirga (agreement) had not been fulfilled---Exercise of discretion by the Trial Court in granting leave to appear and defend the suit on condition of furnishing Bank guarantee, did not suffer from any infirmity, in the circumstances of the case.

Mian Rafique Segal and others v. Bank of Credit and Commerce International (Overseas) Limited and others PLD 1996 SC 749 rel.

Qausain Faisal Mufti for Petitioner.

Miss Robina Shaheen for Respondent.

Date of hearing: 18th April, 2008.

2008 C L C 1518

[Lahore]

Before Sayed Zahid Hussain, CJ

GUL NAWAZ----Applicant

Versus

Rai MUHAMMAD RIAZ and 3 others----Respondents

Transfer Application No.189/C of 2008, decided on 2nd July, 2008.

Civil Procedure Code (V of 1908)---

----Ss. 24 & 151--Transfer of suit---Application for--Application against the Presiding officer seized of the matter---Applicant having incurred apprehension that he was not likely to have a fair and even handed treatment, case was transferred to Senior Civil Judge---Such order, however, would not be construed, in any manner, reflecting upon the integrity and honesty of the Presiding Officer from whom the case was being transferred.

Muhammad Qamar-uz-Zaman for Applicant.

Ch. M. Masood Jahangir for Respondent No.1.

Shoaib Zafar for Respondents Nos.2 to 4.

2008 C L C 1519

[Lahore]

Before Ali Akbar Qureshi, J

MIAN KHAN----Petitioner

Versus

Mst. KHATOON----Respondent

Civil Revision No.1109 of 2003, decided on 9th July, 2008.

(a) Islamic law---

----Inheritance---Limitation---Embargo of limitation shall not be available and attracted and totally inapplicable in the matters of inheritance.

PLD 1990 SC 1 fol.

Sadar Din v. Allah Rakha 1984 CLC 1258; Mst. Zeba and 12 others v. Member-III, Board of Revenue Balochistan and 2 others 1986 CLC 233; Nasir Abbas v. Manzoor Haider Shah PLD. 1989 SC 568; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447 and Arshad Khan v. Mst. Rehsam Jan and others 2005 SCMR 1859 ref.

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

----S. 115---Revision---Scope---Re-examination and reappraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn on question of fact was erroneous---Revisional power of the High Court was exercised for correcting an error committed by subordinate Courts, and mere erroneous decision would not call for interference unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice---Petitioner, in the present case, had failed to point out any illegality, ambiguity, perversity, irregularity or an iota of evidence purportedly misconstrued by the courts below, rather judgments and decrees of both the courts below had been passed with lawful authority and jurisdiction and were unambiguous and unexceptionable---Revision was dismissed in circumstances.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994' SC 291; Abdul Qayuum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 ref.

Nusrat Javed Bajwa for Petitioner.

Saif-ul-Malook for Respondent.

2008 C L C 1526

[Lahore]

Before Ali Akbar Qureshi, J

Rana MUHAMMAD AKRAM JAVAID----Petitioner

Versus

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

Writ Petition No.7895 of 2008, decided on 1st July, 2008.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance and return of dowry articles---Family Court on the basis of statement of wife, decreed suit for dissolution of marriage---Recovery of dowry articles worth Rs.5,015,500 as claimed by wife was decreed for Rs.300,000---Wife was also held to be entitled to collect maintenance allowance from the date of filing the suit until the completion of Iddat period Rs.800 p.m.---Appellate Court, however held the wife to be entitled to recovery of the dowry articles in addition to eight Tola gold ornaments from the husband and only to that extent judgment and decree passed by the Family Court was modified by the Appellate Court---No illegality, perversity, ambiguity, irregularity or jurisdictional defect was found in the impugned judgments and decrees of the courts below so as to warrant interference by High Court in exercise of its constitutional jurisdiction.

Shoaib Zafar for Petitioner.

2008 C L C 1528

[Lahore]

Before Khalil Ahmad, J

ABDUL GHAFOOR----Petitioner

Versus

Mst. MANAZRAAN BIBI and 10 others----Respondents

Civil Revision No.388 of 2007, decided on 23rd June, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O.1, R.10---Suit for specific performance of agreement---Temporary injunction, application for---Plaintiff also filed an application under O.XXXIX, Rr.1 & 2, C.P.C. for grant of temporary injunction, which was concurrently dismissed by the Trial Court and Appellate Court---Plaintiff earlier filed identical suit on the same cause of action, but plaint in said suit was rejected by the Trial Court as plaintiff failed to submit amended plaint impleading Federal Government which was necessary party---Said order of rejection of plaint was upheld in appeal by Appellate Court and also by the High Court in revision---Plaintiff could not prove that present suit was filed on new cause of action---Property in question remained in the ownership of Federal Government---Trial Court as well as Appellate Court, had rightly declined the grant of temporary injunction to the plaintiff---Counsel for plaintiff being unable to point out any illegality in the impugned orders warranting interference by the High Court in its revisional jurisdiction, orders of both Courts below were upheld and revision petition being devoid of any force, was dismissed.

Zafar Iqbal Chohan for Petitioner.

2008 C L C 1541

[Lahore]

Before Kh. Farooq Saeed, J

NIAZ ABBAS----Petitioner

Versus

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

Writ Petition No.8202 of 2008, decided on 4th July, 2008.

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

----S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition--Appeal under S.14, West Pakistan Family Courts Act, 1964---Scope---Interpretation of S.14, West Pakistan Family Courts Act, 1964---Abridgement (impediment on appeal) applies to the judgment-debtor and not to the decree-holder---Principles---High Court, however, observed that family matters were not decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of the technicalities, since the right of appeal was a vested right and in the case of decree-holder who had already been given a small amount i.e. upto maximum Rs.30,000 or less, the right of appeal from the said poor lady could not be relinquished.

Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784; Mst. Atia Wahab and another v. Munir Ahmed and 2 others 2003 YLR 870; Bennion "Statute Law" 3rd Edition pages 97 and 98; A.G. of Canada v. Hallet and Carey Ltd. 1952 AC 427 and Hassan and others v. Chaudhary Tahir Saeed and others PLD 2005 Lah. 97 ref.

(b) Interpretation of Statutes---

----Enactment has the legal meaning taken to be intended by the legislature---Every statute is to be expounded according to its manifest and expressed intention.

Bennion "Statute Law" 3rd Edition pages 97 and 98 and A.G. of Canada v. Hallet and Carey Ltd. 1952 AC 427 ref.

Syed Faiz-ul-Hassan for Petitioner.

2008 C L C 1546

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD ALTAF HUSSAIN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.8475 of 2006, decided on 11th July, 2008.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Appeal, maintainability of---Plaintiff/divorced wife pf defendant, filed suit for past and future maintenance for herself as well as for the three children at the rate of Rs.2,000 p.m. for each---Suit to the extent of plaintiff and her eldest son was dismissed on the ground that plaintiff had been divorced by the defendant, while eldest son had attained age of majority and was not dependant upon the parents for his maintenance---Claim of plaintiff (wife) for maintenance in favour of other two children was allowed at the rate of Rs.800 p.m. for each of them---Appeal filed by the defendant (husband) against judgment of the Family Court was dismissed while the one filed by the plaintiff was partly allowed only to the extent that yearly increase of Rs.100, would be incorporated in the monthly allowance allowed to the minor children---Appeal filed by the defendant/judgment­-debtor was barred under S.14(2) of the West Pakistan Family Courts Act, 1964, for the simple reason that the rate of maintenance allowance was less than Rs.1,000 p.m.---Said bar, however was not operative against plaintiff/decree-holder---Bar against appeal where the maintenance allowance was not more than Rs.1,000 p.m., was not without logic as it intended to put an end to the matter of meagre maintenance allowance and also to save the claimants from rigours of litigation, who were already hard pressed for meeting the basic needs---Bar could only be exercised to serve the ends of justice or to avert the illegalities or material irregularities causing grave injustice---Appeal of plaintiff/decree-holder was rightly allowed and constitutional petition filed by defendant/judgment-debtor against judgment of Appellate Court below was not maintainable because no illegality or material irregularity was found in impugned judgment nor it suffered from any jurisdictional defect.

Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 and Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 rel.

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

----Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction, could neither be invoked as a substitute for the right of appeal nor to make the law redundant.

Irfan Mehmood Rangha for Petitioner.

2008 C L C 1554

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD RAFIQUE----Petitioner

Versus

FAZAL AHMAD----Respondent

Civil Revision No.2238 of 2000, decided on 1st July, 2008.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court, on the pleadings of the parties, framed issues and after recording evidence of the parties, decreed the suit filed by the plaintiff---On filing appeal by the defendants, Appellate Court below accepting appeal set aside judgment and decree passed by the Trial Court---Time, date and place where sale came to the knowledge of the plaintiff having not been mentioned by the plaintiff in his plaint, suit was liable to be dismissed---Appellate Court below had rightly set aside judgment and decree of the Trial Court and dismissed the suit.

Sardar Muhammad Ramzan for Petitioner.

Sh. Naveed Shahryar for Respondents.

2008 C L C 1559

[Lahore]

Before Khalil Ahmad, J

KHALID TANVEER BHATTI----Appellant

Versus

Mirza MUHAMMAD ASHRAF and another----Respondents

Regular Second Appeal No.105 of 2007, decided on 27th June, 2008.

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

----Ss. 24, 6 & 13---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for pre-emption---Rejection of plaint---Sale price of suit-land admittedly was Rs.76,50,000 and according to law plaintiff was to deposit Rs.25,50,000 as 1/3 of sale price, but he had deposited Rs.7,34,000---Defendants/vendees filed application for rejection of plaint under O.VII, R.11, C.P.C., which was correctly accepted by the Trial Court and Appellate Court below since the plaintiff had not complied with mandatory provisions of law---Zar-e-Soam/1/3rd as per S.24 of Punjab Pre-emption Act, 1991, was to be deposited within the time prescribed by the court not exceeding 30 days and under subsection (2) of S.24 of said Act, the suit on account of non-deposit of Zar-e-Soam, was to be dismissed---Plaint, in circumstances was rightly rejected concurrently by the courts below---Counsel for the plaintiff being unable to point out any illegality or any substantial defect or error in the impugned orders of both the courts below warranting interference by the High Court, appeal was dismissed.

Ch. Abdul Majeed for Appellant.

Malik Abdul Wahid for Respondents.

2008 C L C 1566

[Lahore]

Before Sh. Hakim Ali, J

TALIB HUSSAIN----Petitioner

Versus

JUDGE, FAMILY Court, TEHSIL KHAIRPUR TAMEWALI and another-Respondents

Writ Petition No.4265 of 2004/BWP, decided on 16th February, 2005.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition-Maintainability-Suit for recovery of dowry--Ex parte decree---Setting aside of---Suit was decreed ex parte and application for setting aside ex parte decree filed after about 3 years of judgment and decree of the Trial Court during execution proceedings was dismissed---Judgment-debtor had not adduced any reason as to why he was not present when his application for setting aside ex parte decree was dismissed---Without giving any reason, judgment-debtor, who had invoked the extraordinary jurisdiction of the High Court, could not get any relief from the High Court as the decree which was passed three years before was in field and was not set aside---No application for setting aside ex parte proceedings having been filed, constitutional petition, filed straightaway against impugned order, was not competent.

Syed Mubashar Hassan Gillani for Petitioner.

Qamar Hameed Hashmi for Respondent No.2.

2008 C L C 1580

[Lahore]

Before Khalil Ahmad, J

Mian IRFAN LATIF through Special Attorney----Petitioner

Versus

NAZIM/CHAIRMAN UNION COUNCIL NO.100, ICHHRA, LAHORE and another----Respondents

Writ Petition No.18529 of 2005, heard on 20th June, 2008.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7---S.R.O.1086(K)/61 dated 8-11-1961---Constitution of Pakistan (1973), Art.199---Constitutional petition---Divorce---Both the parties being permanent residents of U.K. and as such vide Notification S.R.O.1086(K)/61 dated 8-11-1961 the functions of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961 were to be performed by an appointed officer of the Pakistan Mission in U.K.

Talib Haider Rizvi for Petitioner.

Rasaal Hassan Syed for Respondents.

Date of hearing: 20th June, 2008.

2008 C L C 1583

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHRAF----Petitioner

Versus

Mst. SAFIA BIBI----Respondent

Civil Revision No.674 of 2005, heard on 27th July, 2005.

Civil Procedure Code (V of 1908)---

---Ss. 51, 115 & O.XXI, R.40---Execution of decree---Detention of judgment-debtor---Detention of a judgment-debtor could be ordered in accordance with S.51 read with O.XXI, R.40, C.P.C.---Condition precedent for passing detention order was a finding to be recorded by the court to the effect that it was satisfied that any of the circumstances mentioned in sub-clauses (a)(i)(ii) to the Proviso to S.51, C.P.C. read with explanation thereto, existed---No such finding having been recorded by the Trial Court, impugned order whereby petitioner/judgment-debtor was sent to civil prison, was set aside---Executing Court would strictly proceed in accordance with said provisions of law, if the decree-holder wanted judgment-debtor to be detained.

Ch. Muhammad Anwarul Haq for Petitioner.

Syed Israr Bokhari for Respondent.

Date of hearing: 27th July, 2005.

2008 C L C 1586

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SIDDIQUE and 2 others----Petitioners

Versus

KAREEM BAKHSH and another----Respondents

Civil Revisions Nos.32-D and 65-D of 2008, heard on 16th May, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.20---Suit for declaration---Suit having been decreed, said decree was separately assailed by the defendants and through their respective separate appeals---Neither defendants impleaded necessary party in their appeal as respondent nor said respondent impleaded defendant in his appeal---Plaintiff/decree-holder filed application before Appellate Court seeking dismissal of respective appeals on the ground of non-impleading of necessary parties, which application was allowed and both appeals were dismissed through separate judgments---Validity---In the present case, the interested parties. were the plaintiff on the one hand and defendants on the other hand---No clash of interest existed between the defendants---Defendants filed appeals impleading the plaintiff alone as respondent in their respective appeals---Both the set of defendants did not implead each other in their respective appeals, but they being before the court, it would have been merely hyper-technical objection that they had not impleaded each. other in their respective appeals---When all the necessary parties were before the court then whether an application was made or not, Appellate Court should have exercised its powers under R.20 of O.XLI, C.P.C. and passed a formal order to both the appellants before it to implead the left-out parties---Judgments and decree passed by the Appellate Court in both the revisions, were set aside and case was remanded to the Appellate Court where defendants would file amended memo of parties by impleading the left-out parties and appeals would be decided thereafter on their respective merit.

1973 SCMR 420; 2007 YLR 3206 and 1998 CLC 1857 ref.

Muhammad Ameer Bhatti for Petitioners.

Mian M. Jamal for Respondent No.1.

Khalid Iqbal Choudhry for Respondent No.2.

Date of hearing: 16th May, 2008.

2008 C L C 1588

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD YAQOOB and another----Petitioners

Versus

GHULAM MUHAMMAD through L.Rs. and 12 others----Respondents

Civil Revision No.928/D of 2006, heard on 22nd April, 2008.

Specific Relief Act (I of 1877)---

----S. 9---Civil Procedure Code (V of 1908), S.12(2)---Suit for possession---Predecessor in interest of respondent who acquired interest and title in the disputed land under pre-emption decree, having died, was succeeded by his legal heirs/respondents, who were put in physical possession of the suit-land through execution proceedings---Petitioners, who allegedly purchased an undivided share in the disputed joint Khewat, dispossessed the pre-emptors/respondents from land in dispute--Suit for recovery of possession filed by the respondents under S.9 of the Specific Relief Act, 1877, was decreed in favour of respondents/pre-emptors up to the Supreme Court---After final termination of the first round of litigation up to the apex Court, petitioners made an application for temporary injunction in the main petition under S.12(2), C.P.C., which was dismissed by the Trial Court and Appellate Court below---Validity---After having lost case and cause up to the apex Court, there was no occasion for the petitioners to re-agitate the same matter before the civil court---Petitioners could not be allowed to nullify the judgments passed in the first round of litigation up to the apex Court--Decree for restoration of possession under S.9 of the Specific Relief Act, 1877, in favour of respondents having attained finality, respondents were entitled for restoration of possession of the disputed land and the petitioners could not retain their possession, which had been adjudged and determined as illegal and unauthorized---Petitioners had adopted a device to nullify the judgments of the court and that of the apex Court passed in favour of the respondents in the first round of the litigation---Said misconduct of the petitioners, must be deprecated and dealt with iron hands---Revision was dismissed imposing special costs of Rs. twenty-five thousands upon the petitioners.

Muhammad Tariq Nadeem for Petitioners.

Mukhtar Ahmad Chaudhry for Respondents Nos.1-A to 1-M.

Date of hearing: 22nd April, 2008.

2008 C L C 1591

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MUMTAZ and another----Petitioners

Versus

NASAR AHMAD and 4 others----Respondents

Civil Revision No.927 of 2004, decided on 11th October, 2004.

Canal and Drainage Act (VIII of 1873)---

----S. 68--Civil' Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Right of nakal---Application for grant of temporary injunction---Plaintiffs in their suit had questioned orders passed by Sub-Divisional and Divisional Canal Officers on the ground that said orders had deprived the plaintiffs of the right of nakal---Plaintiffs had also filed an application for grant of temporary injunction restraining the defendants from implementing said orders---Suit and application had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Record had shown that the Wara (turn) as also the irrigation time remained intact---Fresh Waras had been prepared in order to enable the defendants to irrigate their land located in different squares from the same source---Prima facie no prejudice had been caused to the plaintiffs by the impugned orders---Petitions were dismissed in circumstances.

Malik Javed Akhtar Wains for Petitioners.

2008 C L C 1595

[Lahore]

Before Hafiz Tariq Nasim, J

TAHIRA BATOOL----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and another----Respondents

Writ Petition No.5124 of 2008, decided on 27th June, 2008.

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

----S. 17---Constitution of Pakistan (1973), Art.199--Constitutional petition---Custody of minor---Held, it would be harsh to hand over the custody of the minor son to the father leaving him at the mercy of step-mother in presence of real mother, who otherwise was maintaining her child properly.

Mst. Razia Bibi v. Riaz Ahmad 2004 SCMR 821 fol.

Haji Shahzad Ahmad Cheema for Petitioner.

Khalid Mian for Respondent No.2.

2008 C L C 1602

[Lahore]

Before Ali Akbar Qureshi, J

WAPDA through Chairman and another----Petitioners

Versus

MUHAMMAD ANWAR----Respondent

Civil Revision No.118 of 2008, decided on 9th July, 2008.

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Controversy involved' in the case was the installation of transformer at the spot which could not be decided without technical assistance---Neither any technical person was appointed as Local Commission nor any evidence to that effect was produced by both the parties---Report of Local Commission, a non-technical person, who even did not appear in the witness box, could hardly be relied upon or made basis to resolve the controversy---Trial Court, instead of recording the evidence of the parties, elected to decide the cases on merits and also recorded issue-wise findings relying upon the report of the Local Commission---Validity--Held, in such-like situation issue-wise findings could be recorded by any court where no evidence had been recorded---Trial Court, while recording the issue-wise findings, had only referred to the report made by the Local Commission without calling for the evidence of the parties particularly the petitioner's side or any expert in the relevant field---Trial Court was under legal obligation to see the factual controversy involved in the matter---Findings of the Appellate Court were also the result of jurisdictional defect and material irregularity---Judgments impugned in circumstances were not sustainable---High Court, in circumstances, remitted the case to the Trial Court for fresh decision after recording the evidence of the parties---Revision was allowed accordingly.

Kaniz Bibi v. Muhammad Ashraf and another 2008 YLR 159; Mst. Rasool Bibi through legal heirs v. Additional District Judge; Sialkot and another PLD 2006 Lahore 181; .Muhammad Ameen v. Sardar Ali PLD 2006 SC 318; Noor Hussain and others v. Mst. Hussain Bibi and others 2007 SCMR 378; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; The State through Force Commander; Anti-Narcotics Force, Quetta v. Abdul Qahir PLD 2002 SC 321; Abdul Shakoor and others v. Haroon and others 2008 SCMR 896; Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others 1981 CLC 364; Bildar Khan v. Faridoon Khan and others PLD 2003 Peshawar 23; Muhammad Khan v. Nazir Ahmed 2003 SCMR 1911 and Barkat Masih v. Barkat Bibi and 3 others 1999 YLR 1215 ref.

Tahir Mahmood Khokhar for Petitioners.

Ras Tariq Chaudhry for Respondent.

2008 C L C 1609

[Lahore]

Before Ali Akbar Qureshi, J

JAFFAR HUSSAIN----Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 75 others----Respondents

Writ Petition No.4130 of 2008, decided on 23rd July, 2008.

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

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Member, Board of Revenue, in the present case, had dismissed the review petition on the grounds that pleader/advocate had filed the review petition without lawful authority; that review petition as well as Wakalatnama did not bear the signatures of the parties; that non-signing of Wakalatnama as well as pleadings were violative of provision of C.P.C. as well as S.24, Legal Practitioners and Bar Councils Act, 1973 and that no advocate could appear or act for any person in any court unless appointed by such person for a written statement---Validity---Held, such defects were curable and could be cured and rectified if objected to by the other side---Such types of defects could be cured at any stage of the case by summoning the petitioner or providing a reasonable opportunity to the counsel---No such exercise having been undertaken by the Board of Revenue, High Court accepted the constitutional petition and remanded the case to the Board of Revenue for getting the defects cured and rectified if so required, after providing an opportunity to the petitioner--Principles.

Liaqat Hayat and 5 others v. Muhammad Sarwar alias Feroz Ali and 2 others 1985 SCMR 1386 and Chairman P.M.D.C. and another v. Khiyal Nawaz Thattak 1990 MLD 2203 fol.

Syed Ijaz Qutab for Petitioner.

Raja Ghulam Hassan Khan for Respondents.

2008 C L C 1612

[Lahore]

Before Syed Asghar Haider, J

WASEEM IQBAL----Petitioner

Versus

TANVEER AHMAD----Respondent

Civil Revision No.831 of 2008, decided on 31st July, 2008.

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

----O. XXXVII, Rr. 1 & 2---Recovery of money---Negotiable instrument---Summary procedure---Object and scope---Summary procedure for trial of suits have been contemplated by provisions of O.XXXVII C.P.C.---Such procedure normally applies to commercial transactions and can be filed on the basis of bill of exchange, Hundi, promissory note and cheque etc.---Purpose of O.XXXVII, C.P.C. is to ensure decision of dispute on one hand and to limit right of defence of delinquent defendant to defend, suit unless he obtains leave of the court by showing good cause---Such being a special procedure, therefore, every provision enacted is required to be adhered to and strictly followed.

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

----O. XXXVII, Rr.1 & 2, Form 4, Appendix "B" to Schedule & S.115---Recovery of money---Ordinary notice, issuance of---Application for leave to defend the suit---Limitation---Application filed by defendant was dismissed by Trial Court being barred by limitation---Plea raised by defendant was that summonses in Form 4 to Appendix "B" of C.P.C. were not issued and he was summoned through ordinary notice, therefore, application for leave to defend could not be dismissed---Validity---To ensure effective service of defendant, law had made it incumbent and mandatory that summons be issued in Form 4 of Appendix "B", of C.P.C.---Though the suit was filed under the provisions of O.XXXVII, C.P.C. but summons/notice issued was not in Form IV of Appendix "B", therefore, the suit lost its nature and character and was thus required to be tried as a normal suit---Bar of filing of application to obtain leave to defend the suit was wrongly applied---Filing of application being not a requirement, therefore, dismissing the same on the ground of limitation was improper---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court and directed the Trial Court to proceed in accordance with the procedure devised for ordinary civil suits, itself or by a Court of competent jurisdiction---Revision was allowed accordingly.

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 and Zubair Muhammad v. United Bank Limited 2004 CLC 112 rel.

Atta-ul-Mohsin Lak for Petitioner.

Ms. Gulzar Butt for Respondent.

Date of hearing: 14th July; 2008.

2008 C L C 1627

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD KHAN and 2 others----Petitioners

Versus

AZHAR HUSSAIN SHAH and 9 others----Respondents

Civil Revision No.200 of 2006, decided on 1st April, 2008.

Specific Relief Act (I of 1877)---

---S. 8---Suit for possession---Claim of the plaintiff was that suit-land was owned by him and that defendant had encroached upon some of his land as per demarcation report of Revenue Officer---Decree for possession was prayed for by the plaintiff---Both the Trial Court and Appellate Court had concurrently decreed suit---Validity---Defendant, in his written statement, had admitted the title of the plaintiff, but had alleged that demarcation report was illegal---Register Haqdaran Zamin showed that plaintiff was the owner of suit-land and defendant was in possession of certain land as tenant---Any construction raised by the encroacher upon the land admittedly owned by the plaintiff, could not at all give rise to the assumption that land was urban---Demarcation report was fully supported by unchallenged Revenue Record---In absence of any misreading of evidence on record, concurrent judgments and decrees of the courts below could not be interfered with in revision.

Razzaq A. Mirza for Petitioners.

Muhammad Ilyas Sheikh for Respondents.

Date of hearing: 1st April, 2008.

2008 C L C 1635

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD AFZAL----Petitioner

Versus

Mst. MUSARRAT BEGUM----Respondent

Civil Revision No.651 of 2008, decided on 25th June, 2008.

Specific Relief Act (I of 1877)---

----S. 10---Recovery of possession without declaration---Plaintiff sought recovery of possession without declaration, on the ground that she inherited the suit property---Trial Court decreed the suit in favour of plaintiff---Lower Appellate Court also confirmed the judgment and decree of the Trial Court---Plea raised by defendant was that suit for possession without seeking declaration was not maintainable---Validity---Held, suit for possession without seeking declaration was not maintainable---High Court, in exercise of revisional jurisdiction, set aside the concurrent judgments and decrees passed by both the courts below---Revision was dismissed in circumstances.

Muhammad Aslam v. Mst. Feroz and others PLD 2001 SC 213 ref.

Syed Iqbal Hussain Shah Gillani, for Petitioner.

Shakeel Ahmad Bhatti for Respondents.

2008 C L C 1639

[Lahore]

Before Maulvi Anwarul Haq, J

SAIF-UR-REHMAN----Petitioner

Versus

SARFRAZ AHMAD----Respondent

Civil Revision No.998 of 2008, heard on 8th August, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, Rr.5 & 6---Attachment before judgment---Interim attachment order---Plaintiff filed suit for recovery of money and also sought attachment of properties before judgment---Trial Court, on refusal of service, passed attachment order---Validity---Although Trial Court had to call upon the defendant to furnish security or to show cause as to why security be not furnished but the further provision was that in the interregnum a conditional interim order of attachment could be passed---High Court directed the Trial Court to decide the matter in accordance with O.XXXVIII, Rr.5 & 6, C.P.C.---Conditional interim attachment order passed by Trial Court was maintained---Revision was disposed of accordingly.

Zaheer-ud-Din Babar for Petitioner.

Malik Amjad Pervaiz for Respondent.

Date of hearing: 8th August. 2008.

2008 C L C 1646

[Lahore]

Before Khalil Ahmad, J

ANJUMAN JAMIYA CHIRAGIYA (REGD.) through Master Ali Nawaz----Petitioner

Versus

ISRAN BAHAR SHAH and 13 others----Respondents

Civil Revision No.2278 of 2003, decided on 15th July, 2008.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 115 & O.I, R.10---Arbitration Act (X of 1940), S.17---Decree, setting aside of---Award---Rule of the Court---Necessary parties---Petitioner was a registered Anjuman managing the affairs of Madrisa and Masjid---Dispute regarding management of Madrisa and Masjid was decided through Arbitrators and award was made rule of the Court---Office-bearers of the petitioner assailed the award before Trial Court and Lower Appellate Court but remained unsuccessful---Later on decree making award rule of the Court was sought to be set aside under S.12(2), C.P.C. by the same office-bearers in the name of petitioner, which application was dismissed by Trial Court and the order was maintained by Lower Appellate Court---Plea raised by petitioner was that it was a necessary party but was not made party during arbitration proceedings---Validity---Issue with regard to non-joinder of necessary party had already been decided by the Courts below and therefore, petitioner was not an aggrieved party and had no locus standi to file revision petition---Petitioner was unable to point out any illegality or irregularity in the order passed by Lower Appellate Court---High Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

Ch. Muhammad Arshad Ramay for Petitioner.

Hafiz Abdur Rehman Ansari for Respondents.

2008 C L C 1653

[Lahore]

Before Rana Zahid Mahmood, J

MUHAMMAD NAWAZ and another----Petitioners

Versus

DISTRICT AND SESSIONS JUDGE, SIALKOT and 15 others----Respondents

Writ Petition No.4608 of 2000, heard on 22nd July, 2008.

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

----Arts. 76 & 87---Constitution of Pakistan (1973), Art.199---Constitutional petition---Documentary evidence---Attested copies of, public record---Plaintiff claimed to be the owner of suit property and alleged that hiba of suit property was a result of fraud---Plaintiff contended that at the time of mutation of hiba, he was posted at far-off place in Army and as a proof thereof, he produced attested copies of certificates issued by his Commanding Officer with regard to leaves---Defendants raised objection to admitting such attested copies in evidence but Trial Court as well as Lower Appellate Court overruled the objection---Validity---Plaintiff had right to obtain copy of record in question, as presence of plaintiff was in issue at relevant time of execution of hiba mutation who took up the plea in. the suit that being employed in Army and posted at far off area, he as not present for making hiba mutation in favour of defendants---Plaintiff could obtain the certificate in question and could produce the same in Trial Court---Documents were rightly tendered in evidence and exhibited by Trial Court by rejecting the objection raised by defendants---Lower Appellate Court had rightly dismissed revision filed by defendants maintaining the order passed by Trial Court---High Court declined to interfere in the order passed by both the Courts below---Petition was dismissed in circumstances.

Dr. Muhammad Akmal Saleemi for Petitioner.

Farooq Qureshi (Chisti) for Respondent.

Date of hearing: 22nd July, 2008.

2008 C L C 1657

[Lahore]

Before Zubda-tul-Hussain, J

SAJID MAHMOOD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and others----Respondents

Writ Petition No.2119 of 2008, decided on 12th August, 2008.

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

----Ss. 5, Sched. & 14(2)---Maintenance allowance---Appeal---Bar on right of appeal---Scope---Bar on the right of appeal with reference to the amount of maintenance allowance is in fact against the judgment-debtor and not the decree-holder---Intent, purpose and spirit of S.14(2), West Pakistan Family Courts Act, 1964 is to protect the rights of the deserted wives or the minor children deprived of maintenance allowance---Insufficiency of maintenance allowance, can therefore, validly be challenged by them, if need be.

Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 and Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 rel.

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

----S. 14(2)---Intent, purpose and spirit of S.14(2), West Pakistan Family Courts Act, 1964.

Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 and Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784 rel.

Ch. Sajjad Amjad Khan for Petitioner.

2008 C L C 1670

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD YAR and 9 others----Petitioners

Versus

SARDAR ALI and 8 others----Respondents

Writ Petition No.3411 of 2000, heard on 29th July, 2008.

Punjab Pre-emption Act (I of 1913)---

----S. 21---West Pakistan Board of Revenue Act (XI of 1957), S.7---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revision before Board of Revenue---Limitation---Condonation of delay---Void order---Appeal before Additional Commissioner Revenue filed by vendees was consigned to record room on 31-8-1986, without giving any finding---Vendees had thought that the appeal had been consigned to record room because Additional Commissioner Revenue was of the view that pre-emptor had no right of pre-emption, therefore, they were the owner's of the suit-­land---Vendees preferred revision against the order of Additional Commissioner Revenue, before Board of Revenue, on 28-1-1995 which revision was dismissed---Validity---Though there was sufficiently long delay in filing of revision by vendees before Board of Revenue but such delay on account of such confusing and ambiguous order could have been condoned if Board of Revenue had attended the application of vendees for condonation of delay---Order which was against the law should not have been allowed to remain intact on technical grounds---Question of limitation although was a technical point but it also created rights in favour of other side as well, therefore, it should not be lightly ignored---Both the parties were not sure in view of the order passed by Revenue Authorities, therefore, such delay in circumstances was not fatal---Orders passed by Board of Revenue and Additional Commissioner Revenue was declared to be without lawful authority---Appeal filed by vendees before Additional Commissioner Revenue which was consigned to record room would be deemed to be pending before the competent forum---Petition was allowed accordingly.

Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062; Muhammad Azhar Khan and another v. Assistant Commissioner/Collector, Toba Tek Singh and others 2006 SCMR 778; Messrs Nida-e-Millat, Lahore v. Commissioner of Income Tax Zone-I, Lahore 2008 SCMR 284 and Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Sh. Naveed Shaharyar for Petitioners.

Muhammad Nasrullah Waraich for Respondent No.1.

Rafey Ahmed Khan, A.A.-G.

Date of hearing: 29th July, 2008.

2008 C L C 1674

[Lahore]

Before Hafiz Tariq Nasim, J

Rana TAJ MUHAMMAD----Petitioner

Versus

FAQIR MUHAMMAD and others----Respondents

Civil Revision No.1721 of 2000, decided on 30th April, 2008.

Punjab pre-emption Act (I of 1913)---

----S. 21---Civil Procedure Code (V of 1908), S.115--Superior right of pre-emption---Concurrent findings of facts by two Courts below--Revisional jurisdiction of High Court---Scope---Misreading/non-reading of evidence---Suit filed by pre-emptors was concurrently decreed in their favour by Trial Court and lower Appellate Court---Plea raised by vendee was that material piece of evidence was ignored by both the Courts below---Validity---Concurrent findings of the Courts below were not sacrosanct and the High Court could reverse the same if some material, illegality, irregularity, non-reading/misreading of evidence was found---Scope---Vendee has established that he was also a co-sharer in the estate, so the claim of the pre 'emptors' preferential right on the basis of ownership in the estate and non-existence of the vendee's right as owner in the estate was erroneous---Such misreading/non-reading rather misinterpretation of valid piece of evidence available on record was sufficient ground for setting aside the judgment and decrees of both the Courts below---High Court, in exercise of revisional jurisdiction, set aside the concurrent judgments and decrees passed by both the Courts.

Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 and Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714 rel.

Nazir Ahmad Kamboh for Petitioner.

Taqi Ahmad Khan for Respondents.

Date of hearing: 30th April, 2008.

2008 C L C 1678

[Lahore]

Before Ali Akbar Qureshi, J

GHULAM RABANI through Ghulam Sarwar----Petitioner

Versus

SULTAN and 4 others----Respondents

Civil Revision No.164 of 2008, decided on 9th July, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Suit filed by the plaintiff was dismissed on the ground of his failure to affix required court-fee on the plaint---Appeal filed by the plaintiff against judgment of the Trial Court was admitted by the Appellate Court below with direction to affix required court-fee on plaint and memo. of appeal, within ten days otherwise his appeal would be treated as dismissed---Plaintiff having failed to comply with order of the Appellate Court without any cogent reason, his appeal was dismissed by the Appellate Court---Plaintiff filed revision against judgment of the Appellate Court and that too without affixing .required court-fee---Effect---Plaintiff was very much aware of the order of the Appellate Court with regard to time given by the Appellate Court to affix the court-fee, but he deliberately and wilfully did not comply with the order and did not affix the required court-fee on the plaint as well as on the revision petition---Revision being not maintainable was dismissed, in circumstances.

Ghulam Hassan through representatives v. Mst. Kaniz Begum and others 2007 YLR 1454; Kishwar Iqbal Khan through Attorney v. Muhammad Ali Zaki Khan and others 2006 CLC 1287; Haji Mitha Khan v. Mst. Nafees Begum and 2 others 1995 CLC 896 and Mubarak Ahmad and 2 others v. Hussain Muhammad through Legal Heirs 2001 SCMR 1868 ref.

Ghulam Hussain Malik for Petitioner.

Taqi Ahmad Khan for Respondents.

2008 C L C 1681

[Lahore]

Before Hafiz Tariq Nasim, J

Khawaja GHULAM MUHAMMAD through L.Rs. and others----Appellants

Versus

MUHAMMAD ISMAIL through L.Rs. and others----Respondents

Regular Second Appeal No.27 and Civil Revision No.493-D of 2000, decided on 15th July, 2008.

Specific Relief Act (I of1877)---

----S. 12---Civil Procedure Code (V of 1908), S.100---Suit for specific performance of contract---Plaintiff filed suit for specific performance of contract against defendant, whereas defendant filed suit for possession through partition against plaintiff---Both suits were consolidated, and suit for specific performance of contract filed by the plaintiff was dismissed, whereas the counter-suit filed by the defendant for possession through partition was decreed by the Trial Court---Appellate Court, however, set aside consolidated judgment and decree passed by the Trial Court and dismissed suit filed by defendant for partition and decreed suit filed by the plaintiff for specific performance of contract---Validity---Appellate Court practically had answered all the questions in explicit manner and had minutely attended to the contentions of the parties---Appellate Court while examining the case from all angles recorded certain reasons for setting aside the judgment and decree passed by the Trial Court---Findings recorded by the Appellate Court were neither evasive nor the outcome of any misreading/non-reading of evidence, but were based on available record and were strictly in accordance with law---Findings of the Appellate Court could not be interfered with by the High Court in second appeal.

Mirza Hafeez-ur-Rehman for Appellants.

M. Iqbal and Ch. Muhammad Rashid for Respondents.

Date of hearing: 27th June, 2008.

2008 C L C 1685

[Lahore]

Before Khalil Ahmad, J

GHULAM ABBAS ---Petitioner

Versus

MUHAMMAD HAYAT and others----Respondents

Civil Revision No.2538 of 2000, decided on 13th June, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Decree passed by the Trial Court in favour of plaintiff had been upheld in appeal by the Appellate Court---Validity---Defendant was unable to point out any illegality or material irregularity misreading or non-reading of evidence available on record warranting interference by the High Court in its revisional jurisdiction---Revision petition being devoid of any force, was dismissed.

Malik Noor Muhammad Awan for Petitioner.

Nemo for Respondents.

2008 C L C 1687

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD SULEMAN through L.Rs. and others----Petitioners

Versus

ABDUL REHMAN through L.Rs. and others--Respondents

Civil Revision No.1614 of 1998, heard on 30th May, 2008.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Deceased, who owned land, died issueless in India before partition---Widow of deceased, owner after partition, filed claim in respect of land left by her deceased husband in India, which was accepted and widow of deceased was allotted land in respect of which she obtained proprietary rights along with the possession---Widow of deceased was declared full owner of suit property on ground that she was Shia by faith---Plaintiffs who claimed to be collectoral of deceased owner, had asserted that deceased owner of property and her widow were not Shia by faith, but were Sunni and that plaintiffs being collateral of deceased were entitled to the legacy of deceased---Suit filed by the plaintiff had concurrently been dismissed by the courts below---Validity---Plaintiffs, who claimed that deceased and his widow were Shia by faith, which claim was denied, were supposed to prove their claim by way of independent, impartial and confidence inspiring evidence, but they badly failed to discharge their responsibility in that respect---Faith of any Muslim could only be determined by what he professed during his life time and that could only be proved after his death by producing any close relative of the said person---Both courts below had dealt with the issue after appreciating the evidence available on the file and finally concluded that plaintiffs had failed to prove their case in any manner---Both courts below had not committed any jurisdictional defect, material irregularity, misreading and non-reading of evidence---Revisional jurisdiction could not be exercised in favour of the plaintiffs.

Shahzado Shah through Legal Heirs and another v. Mst. Sardaro and 4 others 2004 SCMR 1783; Amir Ali v. Gul Shaker and 10 others PLD 1985 Kar. 365; Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Mst. Nur Jehan Begum through legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Mst. Latifa Bibi and 8 other v. Muhammad Bashir and 10 others 2006 CLC 1076 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 ref.

(b) Islamic law---

----Faith---Determination---Principles.

The faith of, a person has to be determined either by what he professed during his life time or by what he confessed verbally or otherwise in his daily course of life or by conduct that is to say by performance of his religious rites in a particular manner. In the event these elements are silent, his faith can be determined:--

(i) by birth i.e. faith of his parents;

(ii) by family i.e. faith of his brother, sister or kiths and kins;

(iii) by nationality i.e. faith of majority of a country of which he was national.

The faith of any Muslim can only be determined by what he professed during his life time and that can only be proved after his death by producing any close relative of the said person.

Mst. Latifa Bibi and 8 others v. Muhammad Bashir and 10 others 2006 CLC 1076 fol.

Taqi Ahmad Khan for Petitioners.

Muhammad Ahmad for Respondents.

Date of hearing: 30th May, 2008.

2008 C L C 1693

[Lahore]

Before Khalil Ahmad, J

INAYAT BIBI and another----Petitioners

Versus

SHAHAB DIN through L.Rs. and others----Respondents

Civil Revision No.2448 of 2000, heard on 1st July, 2008.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession against illegal dispossession---Suit for possession on the ground that plaintiff had been dispossessed by defendant illegally from plot in question---Suit was decreed by the Trial Court and appeal filed against judgment and decree of the Trial Court was withdrawn by the counsel for defendant---Statement of plaintiff with regard to his claim in respect of plot in dispute was corroborated by the witnesses produced by the plaintiff and demarcation of land, which was produced by the Tehsildar on the order of civil court---Document produced by the defendant, itself proved that property occupied by the defendant, was in fact owned by the plaintiff---Counsel for defendant was unable to point out any illegality or material irregularity, misreading or non-reading of record warranting interference by the High Court in its revisional jurisdiction---Revision petition being devoid of any force was dismissed.

Muhammad Azeem Malik for Petitioner.

Riaz Ahmad Kasuri for Respondent.

Date of hearing: 1st July, 2008.

2008 C L C 1695

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MISRI and others----Appellants

Versus

YOUSAF through L.Rs. and others----Respondents

Regular Second Appeal No.92 of 1990, heard on 16th July, 2008.

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

----S. 42---Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), S.2---Civil Procedure Code (V of 1908), S.100---Suit for declaration---Last male owner of the suit land who was husband of widow, died in India before partition and suit land was mutated in favour of the widow of last male owner---After partition widow of last male owner, migrated to Pakistan and filed claim in respect of said land---Widow who had inherited 1/4th share, transferred the whole land to defendant---Plaintiffs claimed that they were entitled to 3/4th share of suit land as residue would come to them and filed suit for declaration in that respect---Trial Court dismissed the suit but Appellate Court decreed the same---Validity---Widow of deceased was treated as a limited owner by operation of law i.e. S.2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was entitled to 1/4th share in suit land---Widow having admitted to have alienated land to defendant, alienation to the extent of 1/4th share would remain intact in favour of said defendant---Residue 3/4 would vest in the plaintiffs being legal heirs of deceased.

Nathe Khan v. Mst. Rahmat Bibi and others PLD 1961 (W.P.) BJ 96 ref.

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

----Art. 75---Documentary evidence---Document could not have been relied upon without providing an opportunity to opposite party to rebut the same.

M. Zafar Chaudhry for Appellants.

Amjad Pervaiz Malik for Respondents.

Date of hearing: 16th July, 2008.

2008 C L C 1700

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD IBRAHIM and 8 others----Petitioners

Versus

SHAHAB DIN and 2 others----Respondents

Civil Revision No.732 of 2008, decided on 28th July, 2008.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Plaintiffs filed suit for declaration stating therein that they were entitled to the inheritance of their grand father and that they were ignored and deprived of their inheritance at the time of sanctioning the mutation---Trial Court dismissed the suit, but Appellate Court having decreed the suit, defendants had filed revision against judgment and decree passed by the Appellate Court-Validity-Plaintiffs were undeniably legal heirs of deceased and they could not be non-suited on the ground of limitation as in the matter of inheritance no limitation would run as regards the merit of the case---One of the defendants who was also one of the beneficiaries of the mutation, had admitted in his written' statement that plaintiffs being legal heirs, were entitled to the inheritance of deceased---Record had proved that the plaintiffs were the legal heirs of deceased---Appellate Court had thus, rightly concluded after appreciating, evaluating and scanning all the evidence available on the file that the plaintiffs were minors at the time of sanctioning the mutation impugned herein, and that they had been condemned unheard---Even otherwise, leaving all the technicalities, if involved in the matter, once a Muslim was proved and declared the legal heir of the deceased, he was entitled to inherit from the legacy left by the deceased---Counsel for defendants could not point out any jurisdictional defect, legal infirmity, material irregularity, misreading or non-reading of evidence with the findings recorded by the Appellate Court below---Well reasoned findings recorded by the Appellate Court below, could not be interfered with in revision.

(b) Islamic law---

----Inheritance---Once a Muslim was proved and declared the legal heir of the deceased, he was entitled to inherit from the legacy left by the deceased.

Ch. Dost Muhammad Kahoot for Petitioners.

Mubeen Ahmad Siddiqui for Respondents Nos.2 and 3.

Ch. Wali Muhammad for Respondent No.1.

2008 C L C 1704

[Lahore]

Before Maulvi Anwarul Haq, J

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

Versus

Sheikh MUHAMMAD BASHIR and others----Respondents

Regular Second Appeal No.163 of 1985 and C.M.A. No.1 of 1999, heard on 18th July, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Plaintiff claimed that suit land described in the plaint was owned by the defendant who agreed to sell the same to the plaintiff for consideration vide agreement to sell---Plaintiff had alleged that entire amount of consideration was received by the defendant vide receipt, but defendant had refused to perform his part of the contract---Trial Court decreed suit filed by the plaintiff, but Appellate Court below dismissed suit of the plaintiff---Agreement to sell and receipt of amount of consideration had been admitted in the pleadings and also in evidence and there was no evidence to show that document/sale agreement was executed with an intention other than the one disclosed in said document---Appellate Court below, in circumstances, had acted against law while dismissing the suit, which was not barred by time---No date having been fixed for performance of agreement, the period of limitation was to commence from the date of refusal which was one month prior to the institution of the suit, which accordingly was filed within time prescribed by law--Judgment and decree passed by the Appellate Court below, was set aside and that of the Trial Court was restored.

Hamid Ali Mirza for Appellants.

Nadeem Shahzad Hashmi for Respondents.

Syed Samar Hussain Shah for Applicant (in C.M. No.1 of 1999).

Date of hearing: 18th July, 2008.

2008 C L C 1715

[Lahore]

Before Mazhar Hussain Minhas, J

TARIQ ALI----Petitioner

Versus

Mst. FOZIA PARVEEN and 2 others----Respondents

Writ Petition No.5996 of 2007, decided on 12th March, 2008.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowary articles and maintenance allowance--Family Court and Appellate Court having concurrently decreed the suit defendant had filed constitutional petition against such concurrent judgments and decrees of the courts below---Complete detail of said articles had been given in the plaint and witness produced by her also described each and every item of said list---Version of the plaintiff about dowry was fully proved from the evidence of record---Effect---Courts below had rightly decreed suit filed by the plaintiff--No illegality or material irregularity was found in impugned judgments and decrees passed by the courts below warranting interference of High Court.

Muhammad Ashfaq for Petitioner.

Tariq Muhammad Iqbal Chaudhry for Respondent No.1.

Date of hearing: 12th March, 2008.

2008 C L C 1718

[Lahore]

Before Hafiz Tariq Nasim, J

BASHIR AHMAD and others----Petitioners

Versus

NUSRAT BEGUM and others----Respondents

Civil Revision No.77 of 2006, decided on 16th June, 2008.

Partition Act (IV of 1893)---

----Ss. 2 & 4---Civil Procedure Code (V of 1908), S.115---Suit for possession through partition---Revisional jurisdiction---Scope---Non­-framing of issue---Effect---Suit had been filed for possession through partition on the ground of being legal heirs of the owner of the properties---Trial Court passed preliminary decree in the suit and lower Appellate Court also confirmed the judgment and decree of the Trial Court---Plea raised was that Trial Court failed to frame a very important issue regarding the construction raised by the defendant upon the suit property---Validity---Defendant could file an application before the Trial Court or even before the lower Appellate Court for the amendment of or/adding of issues but admittedly this was not done and for the first time this objection was raised which could not be entertained particularly in the revision---Court declined to interfere in the controversy in exercise of revisional powers, which otherwise were very limited under the law---Revision petition was dismissed in circumstances.

Mushtaq Ahmad v. Abdul Haq 2008 YLR 904 rel.

Province of East Pakistan v. Hassan Askari PLD 1971 SC 82 and Ghulam Muhammad v. Muhammad Ramzan 2007 MLD 1769 ref.

M. Baleegh-uz-Zaman for Petitioner.

Ch. Irshad Ullah Chatta for Respondents.

2008 C L C 1720

[Lahore]

Before Saghir Ahmad, J

MUHAMMAD ASHRAF and others----Petitioners

Versus

NASEEM AKHTAR and 4 others----Respondents

Civil Revision No.35-D of 2007, decided on 19th February, 2008.

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

----S. 42---Suit for declaration---Plaintiffs had sought declaration to the effect that they were owners in possession of suit property being legal heirs of its deceased owner; and defendants had no concern whatsoever with the same and that alleged Tamleek Nama in favour of defendants being forged, fictitious, based on fraud and collusion was liable to be cancelled and that alleged power-of-attorney, and mutation were also illegal, and had no effect on their rights---Defendants resisted suit on the ground that suit land was gifted away to them vide registered gift-deed by their predecessor-in-interest which had a legal sanctity---Marginal witness of alleged gift-deed, had admitted during his cross-examination that he was not present when Tamleek/gift deed was executed by the predecessor-in-interest of the parties; and that he also did not know as to who was in possession of the disputed property at that time---To prove a valid gift, it was duty of the defendants to have proved the three pre-requisites of valid gift i.e. offer, acceptance and delivery of possession---No cogent evidence was available on the record of said factors---Courts below in circumstances had rightly decreed suit filed by the plaintiffs---Findings of the two courts below were in accordance with the evidence produced by the parties and it had rightly been held that defendants had failed to prove the execution of valid Tamleek in their favour---In absence of any misreading or non-reading of evidence of two courts below their findings not suffering from any jurisdictional defect, could not be interfered with by the High Court in revision.

Khalil-ur-Rehman v. Taj Din and another 2006 SCMR 1132; Mohsin Khan and 3 others v. Ahmad Ali and 2 others PLD 2004 Lah. 1; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Fateh Sher and others v. Muhammad Hayat and others PLD 2005 Lah. 578; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 and Muhammad Sarwar and 3 others v. Jahangir Ahmad and 5 others 2002 CLC 1865 ref.

(b) Limitation---

----Limitation would not apply to enforce a right of inheritance and. no limitation would run against a co-sharer.

Mohsin Khan and 3 others v. Ahmad Ali and 2 others PLD 2004 Lah. 1; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Fateh Sher and others v. Muhammad Hayat and others PLD 2005 Lah. 578; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 and Khalil-ur-Rehman v. Taj Din and another 2006 SCMR 1132 ref.

Ch. Naseer Ahmad for Petitioners.

Nemo for Respondents.

Date of hearing: 19th February, 2008.

2008 C L C 1724

[Lahore]

Before Ali Akbar Qureshi, J

Sheikh MUHAMMAD FEROZE----Appellant

Versus

Sheikh ALLAH LOK----Respondent

S.A.O. No.140 of 2007, heard on 23rd July, 2008.

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

----Ss. 13 & 15---Second appeal---Bona fide personal need of landlord---Concurrent findings of fact by two courts below---Scope---Eviction order passed by Rent Controller was maintained by lower Appellate Court---Validity---Landlord had successfully proved his case and tenant could not point out any jurisdictional defect, legal infirmity, material irregularity, misreading or non-reading of evidence by the courts below while concurrently, unambiguously and conclusively determining crucial issues objectively with judicial application of law and mind---Even if findings concurrently recorded by the courts below on fact were erroneous, same should not be interfered with unless those were result of jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence---High Court declined to interfere in concurrent findings of both the courts below and maintained the eviction order passed by Rent Controller---Second appeal was dismissed in circumstances.

Manochar v. Mst. Sarwar Sultana and another 1989 CLC 2417; Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242; Dr. Shaukat Bokhari v. Shabih Fatima 1986 MLD 1803; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; Habib­-ur-Rehman v. Faqir Muhammad PLD 1983 Lah. 425; Abdul Majid v. Anwar Ali 1983 CLC 2511; Fida Hussain v. Noor Muhammad Bana 1985 CLC 3014; Muhammad Hussain and others v. Muhammad Shafi 1991 CLC 303 and Muhammad Ayub v. Sh. Zafrullah 1999 UC 553 ref.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel.

Muhammad Amin Sheikh for Appellant.

Basharat Ullah for Respondent.

Date of hearing: 23rd July, 2008.

2008 C L C 1730

[Lahore]

Before Rana Zahid Mahmood, J

SHAHIQ KHAN----Petitioner

Versus

HOME SECRETARY, GOVERNMENT OF PUNJAB and 5 others----Respondents

Civil Revision No.1302 of 2007, heard on 14th July, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Concurrent findings of fact by two courts below---Ownership, proof of---Evidence---Car in question was detained by police on the allegation of its being a stolen vehicle---Plaintiff claimed to be owner of that car on the ground that he was bona fide purchaser of the same---Validity---Evidence of various kinds was available which one could produce before a court of law to show his claim for a particular entitlement---Plaintiff relied upon oral as well as documentary evidence---Oral evidence should have been direct whereas documentary evidence should have been original documents in the first instance and in the second the secondary---Claim of plaintiff on corroboration of purchase from a particular person was lacking---Documentary evidence was also secondary and was of no worth in law whereas it was proved on record that vehicle in question was with cut and welded chassis and engine had been replaced---Report of Forensic Science Laboratory about tampered, cut and welded chassis of car was also available on record---Identity card of the seller of car was also found bogus, fake and forged, while motor company had reported that car in question was never manufactured by it---Both the courts below had rightly non-suited the plaintiff who failed to prove his entitlement and right to the vehicle---High Court declined to take any exception to concurrent findings of two courts below---Revision was dismissed in circumstances.

Bashir Ahmad Shaheen for Petitioner.

Muhammad Nawaz Bajwa, Asstt. A.-G. along with Muhammad Rafique Inspector for Respondents.

Date of hearing: 14th July, 2008.

2008 C L C 1734

[Lahore]

Before Khalil Ahmad, J

DOST MUHAMMAD----Petitioner

Versus

REHMAT ALI----Respondent

Civil Revision No.219 of 2004, heard on 14th July, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and permanent injunction---Laches---Suit had been filed by the plaintiff for declaration and permanent injunction on the ground that mutation in favour of the defendant was false and against the facts and law---Trial Court decreed the suit in favour of the plaintiff---Lower Appellate Court accepted the appeal and set aside the judgment and decree of the Trial Court---Plea raised was that the judgment and decree passed by lower Appellate Court was against the law and facts---Validity---Entry of mutation had been challenged after more than eight decades, thus, the suit was barred by time---Counsel for the plaintiff' was unable to point out any illegality, irregularity or substantial error in the judgment of the Lower Appellate Court warranting interference by High Court in its revisional jurisdiction---Petition was dismissed in circumstances.

2003 SCMR 362 and Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 ref.

Muhammad Yousaf Khan for Petitioner.

Syed Muhammad Javed Rizvi for Respondent.

Date of hearing: 14th July, 2008.

2008 C L C 220

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

MUHAMMAD NAZEEM and another---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary and 2 others----Respondents

Writ Petition No.8 of 2006, decided on 20th September, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 3(c), 4, 11, 18 & 23---Northern Areas Council Legal Frame Work (Amendment) Order, 1999, S.19-A---Writ petition---Acquisition of land---Determination of compensation---Respondents acquired land belonging to the petitioners and petitioners being dissatisfied from the award, filed objection petition under S.18 of Land Acquisition Act, 1894, which was dismissed as time-barred---Order dismissing objection petition, was sketchy, hasty and unheard---Impugned order had not been passed after hearing the parties, while it was incumbent upon public functionaries to hear the parties when they sit to determine the statutory rights of the parties---Impugned order was empty of reasons, while the Collector performing his powers as quasi judicial Officer, was bound to assign reasons to his orders---Said order was liable to be set aside under principles of natural justice---Section 18 of Land Acquisition Act, 1894 provided three types of limitation periods, running from different dates for different reasons, but impugned order being sketchy, did not disclose any reason and such order was liable to be dismissed on that point also---Matter was remitted to the Collector to adjudicate the issue afresh in accordance with law.

Sharif Ahmed for Petitioners.

Advocate-General for Respondents.

2008 C L C 255

[Northern Areas Chief Court]

Before Muzaffar Ali and Sahib Khan, JJ

GHULAM ABBAS and 20 others----Petitioners

Versus

DEPUTY COMMISSIONER/COLLECTOR, DISTRICT, GILGIT and 4 others----Respondents

Writ Petition No.24 of 2005, decided on 13th September, 2007.

Land Acquisition Act (I of 1894)---

---Ss. 4, 11 & 34---Northern Areas Council Legal Frame Work (Amendment) Order, 1999, S.19-A---Writ petition---Acquisition of land---Award of compensation---Claim for 8% compound interest over amount of award---Petitioners whose land was acquired claimed 8% compound interest over the amount fixed in the award of compensation---Petitioners had founded their claim on the ground that their land was taken into possession by the authorities in the year 1999 without making the award, but on their protest amount was fixed in award on 31-5-2004 and was paid to them thereafter---Validity---Section 34 of Land Acquisition Act, 1894 dealing with payment of interest, being mandatory in its nature, its operation could not be avoided by any means or pretext---Section 34 of Land Acquisition Act, 1894 penalized the Collector for his deviation from said mandatory provisions of law as it fixed obligation upon Collector to include compound interest in the award; whenever Collector or the acquiring agency would take possession of land prior to making of the award and its payment to the owners---By not awarding compound interest on delayed payment, attitude of the Collector was deplorable and was liable to be taken a serious note of the same---Chief Court informed the Provincial Government to look into the matter---Section 18 of Land Acquisition Act, 1894 being not impediment in the way of writ jurisdiction petitioners were entitled to get 8% compound interest from the time of taking possession of the lands till the day of payment of the compensation amount to the petitioners---Authorities were directed by the Chief Court to pay the same to petitioners.

Government of Pakistan v. Collector, Land Acquisition/Settlement Officer 2006 CLC 1641 ref.

Haji Mirza Ali for Petitioners.

Advocate-General for Respondents.

2008 C L C 264

[Northern Areas Chief Court]

Before Raja Jalal-ud-Din and Muzaffar Ali, JJ

FIDA MUHAMMAD NASHAD----Appellant

Versus

WAZIR SHAKEEL AHMED and another----Respondents

E.A. No.1 of 2007, decided on 12th September, 2007.

Northern Areas Council (Election) Order, 1975---

---Ss. 56, 58 & 61(3)---Appellant having been declared returned candidate by the Election Authorities, respondent/unreturned candidate challenged said declaration through election petition before Election Tribunal---Election Tribunal framed eleven issues and when case was fixed for evidence, unreturned candidate submitted application with request that the matter on legal issues be decided by abandoning his right to adduce evidence before the Election Tribunal, which was accepted---Validity---Perusal of issues framed by the Election Tribunal, it transpired that the Tribunal had failed to frame issues properly and with diligence---Record had also revealed that the Tribunal had ignored a pure issue of law to be included in the impugned order---In view of said legal lacks, the Tribunal, reframed the pure issues of law which required no evidence to lead and which went to the root of the case and the matter could be finally disposed of on the same---Election Commission, in the case was either necessary or proper party to be arrayed in the list of respondents, but had not been included as respondent and that legal infirmity needed to be addressed---Impugned order of the Election Tribunal was maintained with the direction to dispose of election petition on the issues as reframed by the Chief Court--Election Commission could also be impleaded as party in the election petition under law.

Ghulam Abbas Chopa for Petitioner.

Shoukat Ali, Javed Iqbal and Munir Ahmed for Respondents.

2008 C L C 521

[Northern Areas Chief Court]

Before Muzaffar Ali, J

PROVINCIAL GOVERNMENT through Chief Secretary, Northern Areas and 2 others---Petitioners

Versus

AKBER FLOUR MILLS through Managing Director----Respondent

Civil Miscellaneous No.124 of 2007 in Civil Revision No.51 of 2007, decided on 2nd February; 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Temporary injunction, grant of---Plaintiff filed suit for declaration cum consequential relief to restore the original approved daily wheat quota i.e. 250 bags---Plaint was accompanied with an application for interim injunction under O.XXXIX, Rr.1 & 2 C.P.C. for issuance of 250 bags wheat of 100 Kg. per day or 200 bags of wheat per day pending disposal of the suit---Trial Court heard said application ex parte and granted same as prayed for and temporary injunction was granted to plaintiff which was maintained by the Appellate Court--Validity---Impugned order passed by the Trial Court and affirmed by the Appellate Court, being unheard, was hit by principle of "Audi Alteram Partem" and also was in violation of O.XXXIX, R.3(b) C.P.C.---Trial Court had created an ante-status quo situation through impugned order while the averments of the plaint itself transpired the fact that plaintiff had acted upon the orders by receiving reduced quota of wheat and at the time of institution of the suit, plaintiff was receiving fixed quota of wheat---Appellate Court below had also ignored said infirmities of law committed by the Trial Court---Both concurrent orders were liable to be set aside---Allowing revision, impugned orders were set aside, but status quo prevailing at the institution of the suit was maintained pending disposal of suit.

Assistant Advocate-General for Petitioner No.1.

Muhammad Hussain for Petitioners Nos.2 and 3.

Messrs Muhammad Issa and Latif Shah for Applicants (in C.M. No.124 of 2007).

Malik Shafqat Wall for Respondent.

Date of hearing: 24th January, 2008.

2008 C L C 1385

[Northern Areas Chief Court]

Before Raja Jalal-ud-Din, C. J. and Muzaffar Ali, J

CHIEF ENGINEER, N.A. P.W.D. GILGIT and 4 others----Petitioners

Versus

Late SHAHEEN KHAN, CONTRACTOR through Legal Representatives and others----Respondents

Civil Miscellaneous No.102 of 2007, decided on 30th April, 2008.

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

----S. 12(2)---Challenging judgment and decree on plea of fraud, collusion and misrepresentation--- Scope ---Section 12(2), C.P.C. provides a remedy to a person affected by a decree obtained by fraud, misrepresentation or a decree was challengeable for want of jurisdiction and the plaintiff was precluded by rules from instituting a further suit in respect of any particular cause of action---Provisions of S.12(2), C.P.C. inspired one's judicial mind with the interpretation that the remedy under said section was confined to three points that the plaintiff must, to prove that the judgment, order or the decree had been obtained by fraud, misrepresentation or validity of the same was challengeable for want of jurisdiction---Petitioner was obliged to prove that the fraud or misrepresentation had been committed by the opposite party in connection with the proceedings---Petitioner under S.12(2), C.P.C. must plead and prove that fraud or misrepresentation committed against him was out of his knowledge or sight and was concealed from him by the party himself or in collusion with any person or persons, so as to prevent the affected person to place his case before the court during course of proceedings in defence, otherwise a person could not be allowed to reopen the past and closed transaction in that regard.

1983 SCMR 1064; 1995 CLC 1200; 1993 MLD 1555; 1994 CLC 2112; 2003 SCMR 1050; 2001 SCMR 1062 and 2005 SCMR 900 rel.

(b) Words and phrases---

----`Fraud' and 'misrepresentation'-Defined and explained.

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

----S. 12(2) & O. VII, R.2---Suit for recovery of amount---Plea of fraud and misrepresentation---All grounds taken in petition under S.12(2), C.P.C. related to the matters allegedly having taken place prior to the institution of the suit or proceedings and same could be taken in the written statement as defence; and the defendants had ample opportunity to make the ground as basis of their defence---Grounds taken by the petitioner, apparently seemed to be related to the transaction between the parties---Petitioners in a way wanted to reopen the matter which had been finally disposed of---Counsel for petitioners, during course of arguments, raised the points that one of respondents in collusion with other respondents concealed the facts from the petitioners, as such the petitioners failed to place the grounds before the court of law at the time of submission of written statement---Such plea was not sufficient to attract the mind of a person of common prudence for the reason that said respondents were employees of the petitioner/department, enjoyed very responsible posts, some of them had been sent to pension honourably; and some were enjoying their services in the department---Counsel for petitioners, during course of arguments, levelled all the allegations of fraud and misrepresentation against one respondent and stated that wrongs had been done by him for his personal gain, but said respondent was not the plaintiff in the suit and no decree had been passed in his favour---Application under S.12(2), C.P.C. was dismissed in circumstances.

Amjad Hussain for Petitioners Nos.1 to 3.

Advocate-General for Petitioners Nos.4 and 5.

Muhammad Issa, Shafqat Wali and Sharif Ahmed for Respondents Nos.1 to 11.

Respondent No.13 in Person.

Date of hearing: 30th April, 2008.

2008 C L C 1409

[Northern Areas Chief Court]

Before Muzaffar Ali, J

PASHA and 5 others---Petitioners

Versus

ABDUL WALI KHAN and 4 others---Respondents

Civil Revision No.55 of 2007, decided on 7th April, 2008.

Civil Procedure Code (V of 1908)---

---O.VII, R.11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Defendants, during trial of suit, filed application under O.VII, R.11, C.P.C. praying rejection of plaint---Trial Court rejected plaint, but Appellate Court set aside such rejection order---Validity---Impugned order passed by the Appellate Court suffered from no legal infirmity, which could demand interference of Chief Court in exercise of its revisional jurisdiction for the reasons that counsel for defendants had failed to point out; that the suit did not disclose any cause of action; that relief claimed in the plaint was under-valued; that court-fee on full value had not been paid or; that the plaint appeared, on face of it, to be barred by any law---Cause of action in Order VII, R.11, C.P.C. would mean, the bundle of facts or claims which had been alleged in the plaint; and to ascertain cause of action, only the facts stated in the plaint were to be looked into, to determine whether such facts constituted a cause of action, if proved by plaintiff---In the present case, the plaintiffs had made a bundle of claims which required to be proved by the plaintiffs and under law they should have been given sufficient opportunity to prove those claims---Allegations in the case could only be decided after framing of issues and after giving full chance to prove and rebut the same by the parties, while the Trial Court had already framed issues in the case, it was better, to let the parties to prove and rebut the same through evidence---Impugned order was maintained and suit was remitted to the Trial Court for disposal on merits, with direction to dispose of the suit in a short possible time.

Akhlaq Hussain for Petitioner.

Amjad Hussain for Respondents.

2008 C L C 1426

[Northern Areas Chief Court]

Before Muzaffar Ali, J

Raja ALI SHAH and 6 others----Petitioners

Versus

MUHAMMAD ALI KHAN and 10 others----Respondents

Civil Revision No.5 of 2002, decided on 22nd August, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for declaration---Claim of plaintiffs was that suit land owned by their father was under physical possession of defendants as tenants who used to pay lagan to the father of plaintiffs---Plaintiffs had alleged that because of cordial relations, their father attorned the lagan to father of defendants, but father of defendants fraudulently got mutated the disputed land in his name and got mutation attested in his name in absence of father of plaintiffs and without the knowledge of their father---Both the Trial Court and Appellate Court below had concurrently dismissed suit---Validity---Plaintiffs despite being owners of suit land which was huge and valuable landed property, remained mum and inactive for decades, while defendants and their forefathers did all the legal arrangements to substantiate their title over the suit-land---Despite the fact that defendants were not in actual possession of suit-land, their forefathers received the lagan from the tenants of suit-land, while under law, receiving of lagan was considered to be a token of ownership, if not proved otherwise---Agreement deed, on which both the courts below had based the impugned judgments, which the plaintiffs had challenged being fraudulent and forged document, its execution had not been denied to be of more than 30 years old---Plaintiff had badly failed to prove any fraud or forgery in execution of said document, while burden of proof of alleged fraud and forgery lay on them---Since the age of said document had not been rebutted or disputed, courts below had rightly relied upon said document to be true under Art.100 of Qanun-e-Shahadat, 1984---Some pro forma defendants who had ambiguously admitted the contention of plaintiffs in their written statement, had not appeared before the court as witnesses for recording their statements---Said pro forma defendants having not been subjected to the cross-examination, their version in their written statements, could not be relied upon under law---In absence of any irregularity in concurrent findings of the courts below, same could not be interfered with in revisional jurisdiction of High Court.

Ghulam Nabi for Petitioners.

Muhammad Issa for Respondents.

2008 C L C 1561

[Northern Areas Chief Court]

Before Muzaffar Ali, J

RUSTAM ALI----Appellant

Versus

ALI MUHAMMAD and others----Respondents

C.S.A. No.20 of 1998, decided on 11th June, 2008.

Specific Relief Act (I of 1877)---

----Ss. 9 & 42---Limitation Act (IX of 1908), S.9 & Art.142---Civil Procedure Code (V of 1908), Ss.100 & 115---Suit for possession and declaration---Limitation--- Plaintiff claimed declaration-cum-possession of the disputed land contending that same was. gifted to him by its owner and that defendants had forcibly dispossessed him from the land---Defendants denied claim of the plaintiff and they claimed that they had been in possession of suit-land as donees by owner thereof---Defendant denied any gift in favour of the plaintiff by owner and also claimed suit filed by the plaintiff to be barred by time and under the law---Suit was concurrently dismissed by the Trial Court and Appellate Court below--Gift deed produced by the plaintiff had no date or year of execution on it, while the gift deed produced by the defendants possessed the date and year of its execution---Plaintiff claimed that gift-deed in his favour was executed round about in the year 1963---Gift deed in favour of defendants was proved to have been executed in 1950; it was, in circumstances apparent that gift deed in favour of defendants was executed first---Version of plaintiff that gift deed in his favour was executed first was discarded and under law the second gift in presence of the first gift was invalid---Plaintiff had alleged that he was dispossessed by defendants forcibly while he was enjoying same as donee---Article 142 of Limitation Act, 1908, which provided 12 years period of limitation, was applicable in the case and plaintiff was bound to bring the suit within 12 years from the date of his alleged dispossession from the disputed land, but the plaintiff and his witnesses had failed to prove that---Suit otherwise being barred by time, was liable to be dismissed on the ground of limitation--- Value of suit-land fixed in the plaint being less than that of the value required under law to entertain second appeal, said appeal was not competent; however to ascertain some important legal issues involved in the case, said appeal was converted into revision and was disposed of in exercise of revisional jurisdiction---Revision petition was dismissed by maintaining the concurrent findings of both the Courts below.

PLD 1972 SC 123; 1980 CLC 921; 1996 CLC 348 and 1983 CLC 888 rel.

Muhammad Isa and Muhammad Shafi for Appellant.

Manzoor Ahmad for Respondents.

Date of hearing: 3rd June, 2008

2008 C L C 32

[Northern Areas Court of Appeals]

Before Ehsanullah Qureshi, Chairman and Altaf Hussain, Member

RESIDENTS. OFYARKHOR THALAY through L.Rs.----Appellants

Versus

RESIDENTS OF CHUDU'THALAY through L.Rs.----Respondents

C.A. No.47 of 2006, decided on 2nd November, 2007.

Preliminary Order---

----Preliminary order in pending proceedings---Preliminary order in pending proceedings could not be challenged unless it would affect the case materially or otherwise would amount to finality or jolting the merit of the case to a great extent; or due to interlocutory order the suit/appeal could become infructuous---Court, in circumstances would be conscious enough and would always avoid to interfere in the like cases, so that the purpose of litigation could not be frustrated.

1981-CLC 364; 1999 YLR 1215 and 2003 SCMR 1911 rel.

Malik Shafqat Wali for Appellants.

Muhammad Issa for Respondents.

2008 C L C 52

[Northern Areas Chief Court]

Before Sahib Khan, J

GHULAM HAIDER, DEPUTY SUPERINTENDENT CUSTOMS----Petitioner

Versus

ASSISTANT COLLECTOR CUSTOMS and another----Respondents

Civil Revision No.11 of 2007, decided on 31st August, 2007.

Civil Procedure Code (V of 1908)---

---Ss. 94 & 151---Release of salary and arrears---Petitioner, a civil servant, challenged his premature posting order. through a civil suit which was pending adjudication---Petitioner moved an application under Ss.94/151, C.P.C, seeking release of his pay and arrears thereof---Order of competent authority through which pay of petitioner had been stopped was passed about four years before filing of the suit-Petitioner on record was not performing his duties on one pretext or the other---Order for payment of salary, in circumstances would not only be illogical but prima facie illegal---Petitioner, if succeeds in his suit, will be entitled for all sorts of emoluments admissible to trim for such period but In case of his failure in the suit, order of payment would create legal complications---Application under Ss.94/151, C.P.C. was, held, not justified.

PLD 1999 SC 530 ref.

Javed Ahmed for Petitioner.

Haji Mirza Ali for Respondents.

Date of hearing: 13th August, 2007.

2008 C L C 65

[Northern Areas Chief Court]

Before Sahib Khan, J

Mst. SHAMSHAD BEGUM and another----Appellants

Versus

AMAN ALI----Respondents

C.S.A. No.9 of 2006, decided on 28th August, 2007.

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

----Art. 181---Scope of Art.181, Limitation Act, 1908---Article 181, Limitation Act, 1908 is a residuary Article and contemplates to meet a position where no period of limitation is prescribed in the Schedule of the Limitation Act, 1908, or under S.48 of C.P.C., or for setting aside an ex parte decree, or order found ab initio void for lack of jurisdiction of the Court passing decree/order.

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

----O. IX, R.9---Limitation Act (IX of 1908), Art.163---Civil suit---Dismissal in default---Restoration---Limitation---Period for submission of application for restoration of suit would be governed by Art.163, Limitation Act, 1908, which provides a period of 30 days from the date of dismissal of suit---Appellant's application under O.IX, R.9, C.P.C. having been filed after 75 days was badly time-barred--Principle that law favours adjudication on merits was not attracted in view of the negligent attitude of appellant who failed to appear on the adjourned date of hearing and filed restoration application after stipulated time without invoking relevant provisions of Limitation Act, 1908---Whoever sleeps over his right is not entitled to relief, beyond period prescribed by law as the Limitation Act, 1908 extinguishes the remedy and not the right---Condonation of delay was sought at the appellate stage on the pretext of blockade of the Highway but no documentary proof was produced as required by law---Party who seeks condonation of delay in instituting proceedings under S.5 of Limitation Act, 1908 is bound to offer plausible explanation constituting sufficient cause in approaching the Court, explaining the delay of each day which is sought to be condoned but this was not done---Appeal was dismissed accordingly.

Mir Nawaz for Appellants.

Johar Ali for Respondent.

Date of hearing; 28th August, 2007.

2008 C L C 10

[Peshawar]

Before Ejaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

FARIDULLAH KHAN----Petitioner

Versus

PROVINCE OF N.-W.F.P., through Chief Secretary, Government of N.-W.F.P., Peshawar and 5 others----Respondents

Writ Petition No.664 with Civil Miscellaneous Nos.39 and 390 of 2006, decided on 13th November, 2007.

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

----Art. 199---Constitutional petition---Notification of removal of Tehsil Nazim---Sport Complex in question was inaugurated by M.P.A.---Chief Minister who himself wanted to inaugurate said sport complex directed D.C.O. to remove' the plaque bearing the name of M.P.A.; which was removed---People of the area protested against said removal of plaque and they under the leadership of petitioner, (Tehsil Nazim) not only took out a procession, but also made an effort to reaffix the plaque, which culminated in an action against petitioner---Commission of two members constituted by the Chief Minister submitted its report and Chief Minister in the light of said report, first suspended the petitioner and finally issued notification of his removal---Validity---Petitioner could not be held guilty of misconduct, when the directive of Chief Minister restraining him from reaffixing the plaque was never communicated to him---Violation of the directive of Chief Minister could not be said to have been proved against petitioner, when its communication to petitioner had not been established on record---Finding of the Enquiry Commission which was based on no evidence, could not be maintained---Very condition for the conferment of jurisdiction on the Tribunal or any other forum exercising judicial or quasi judicial authority was that it should decide a lis before it according to law---Essential requirement of law was that its finding be based on proper appraisal of evidence---Finding would not deserve any other fate, but quashment, when it was based on misreading or non-reading of evidence, erroneous assumption of law and facts or on no evidence---High Court accepting constitutional petition, set aside entire proceedings including impugned orders and reinstated the petitioner.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338;; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1988 SCMR 2514 and Mst. Ulfat Shaheen v. Akram Khan and 2 others 2006 CLC 51 ref.

(b) Administration of justice---

----Finding of the Enquiry Commission which was based on no evidence, could not be maintained---Very condition for the conferment of jurisdiction on the Tribunal or any other forum exercising judicial or quasi judicial authority was that it should decide a lis before it according to law---Essential requirement of law was that its finding be based on proper appraisal of evidence---Finding would not deserve any other fate, but quashment, when it was based on misreading or non-reading of evidence, erroneous assumption of law and facts or on no evidence.?

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338;; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1988 SCMR 2514 and Mst. Ulfat Shaheen v. Akram Khan and 2 others 2006 CLC 51 ref.

Qazi Muhammad Anwar and Muhammad Arif Khan for Petitioner.

Arb Muhammad Usman, A.A.-G. for Government of N.-W.F.P.

Date of hearing: 14th November, 2006, 24th January and 25th October, 2007.

2008 C L C 43

[Peshawar]

Before Talaat Qayum Qureshi, J

MUQADAR and others----Petitioners

Versus

Mst. ROSHAH and others----Respondents

Civil Revision No.318 of 2002, decided on 26th October, 2007.

(a) Islamic Law---

----Inheritance---Classes of heirs: Three classes of heirs are sharers; residuaries; and distant kindred---Sharers' are those who are entitled to a prescribed share of inheritanceresiduaries' are those who would take no prescribed share, but would succeed to the "residue" after the claims of the sharers are satisfied and `distant kindred' are those relations by blood who are neither sharers nor residuaries---Widow of deceased, being sharer, would be entitled to 1/8 share, while daughter of deceased being sharer, would be entitled to 1/2 share, which would come to 3/24 and 12/24 respectively in the entire estate of deceased---Remaining claimants being collateral, would be entitled to remaining 9/24 shares.

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

----O. XX, R.18---West Pakistan Land Revenue Act (XVII of 1967), S.172(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, perpetual injunction and possession through partition---Suit having concurrently been decreed by the courts below---Validity---Suit­land being agricultural, . jurisdiction for its partition vested in the Revenue Court in view of the law that jurisdiction of the Civil Courts to grant decree for possession, was barred by the provisions of S.172(2) of West Pakistan Land Revenue Act, 1967---Said jurisdiction vesting in Revenue Courts, no such decree for actual possession could be granted, however, decree for symbolic possession could be passed---Right of partition for entitlement of shares of parties could be determined and a preliminary decree for partition could be passed, but so far, as its actual possession was concerned, decree was to be sent to the Collector under O.XX, R.18, C.P.C.-Symbolic possession was given to the plaintiffs, but for actual possession the decree would be sent to the Collector under O.XX, R.18, C.P.C. who had the jurisdiction to do the needful.

Abdul Sattar Khan for Petitioners.

Malik Ahmad Jan for Respondents.

Date of hearing: 18th October, 2007.

2008 C L C 58

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

LAND ACQUISITION COLLECTOR, ISLAMABAD-PESHAWAR MOTORWAY PROJECT, NATIONAL HIGHWAY AUTHORITY and another----Appellants

Versus

FAQIR MUHAMMAD and others----Respondents

Regular First Appeal No.15 of 2004, decided on 29th October, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Reference to Referee Court---Appeal---Landowners dissatisfied with amount of compensation of acquired land as determined by Land Acquisition Collector, got matter referred to Referee Court, which enhanced compensation as determined by Land Acquisition Collector and the Authority had filed appeal against judgment of Referee Court---Validity---While determining the amount of compensation of acquired land, court was to consider evidence brought on the record by the parties---Potential and future prospects of such land, in addition to one year average, should also be considered---While determining the value of the land acquired by the Government, only the past sales should not be taken into account, but the value of the land with its potentiality should also be determined by examining other factors---Assessment of the. compensation payable for land acquired, must take into account several factors, including the nature of the 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 the impact of such use on the land acquired---Referee Court had adverted to every aspect of the case and had rightly decided the same and rendered a reasoned judgment which could not be challenged---Findings of the Referee Court based on a due appreciation of law and facts, could not be interfered with in appeal, in circumstances.

Muhammad Sharif v. Land Acquisition Collector and others 2004 CLC 1048 ref.

Sikandar Rashid for Appellants.

Muhammad Fahim Wali for Respondents.

Date of hearing; 29th October, 2007

2008 C L C 395

[Peshawar]

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

MUHAMMAD SIRAJ KHAN----Petitioner

Versus

MUHAMMAD JAVED and 3 others----Respondents

Writ Petition No.2056 of 2007, decided on 16th January, 2008.

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

----Ss. 14, 62 & 67---Conduct of General Elections Order (7 of 2002), Art.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ineligibility of candidate to contest election---Election Tribunal declared petitioner ineligible to contest election---Main ground for declaring petitioner as ineligible was that Bachelor Degree annexed by him with his nomination papers being bogus and fictitious, he was not competent to contest the election---Controller and Deputy Controller of Examinations of University concerned, were summoned in order to verify the correctness of degree---Notification regarding B.A., B.Sc. Annual Examination, degree relied upon by the petitioner was of another candidate and not of the petitioner---Degree produced by petitioner in order to qualify himself as candidate for election was forged and fictitious---Petitioner, in circumstances was not qualified to be a candidate on the basis of said bogus degree either under Conduct of General Elections Order, 2002 or Representation of the People Act, 1976.

Petitioner in person.

Respondents Nos. 1 and 2 in person.

Pir Liaqat Ali Shah, Advocate-General, N.-W.F.P. on notice.

Date of hearing: 16th January, 2008.

2008 C L C 421

[Peshawar]

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

HABIB ULLAH KUNDI----Petitioner

Versus

Malik GULISTAN----Respondent

Writ Petition No.2052 of 2007 with Civil Miscellaneous No.3 of 2008, decided on 15th January, 2008.

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

----Ss. 14, 62 & 67---Conduct of General Elections Order (7 of 2002), Art.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Nomination papers, rejection of---Disqualification of candidate---Returning Officer accepted nomination papers of candidate/petitioner rejecting objections of respondents, but on filing appeal, against order of the Returning Officer, Election Tribunal rejected nomination papers of the petitioner holding that petitioner, who was not in possession of valid degree equivalent to B.A. from a recognized University/Institution, was not qualified to contest election---Validity---Petitioner was a bona fide student of `Al-Khair University' (AJK) and had passed the examination requisite for awarding of "Bachelor Degree" (Bachelor of Information Technology)---Petitioner though was not in possession of said B.A. degree at the time of scrutiny of his nomination papers by the Returning Officer, but authenticated documents relied upon by the petitioner which were duly verified, had shown that petitioner had passed required examination and he was accordingly issued D.M.C. regarding semesters---Returning Officer, on the basis of said documents, accepted nomination papers of petitioner---Petitioner having complied with the mandatory educational qualification required by law in order to qualify for contesting general election, findings of the Election Tribunal were set aside.

2007 MLD 146; PLD 2006 Lah. 198 and PLD 2003 Lah. 106 rel.

Asmat Ullah, Special Attorney for Petitioner.

Zafar Baig Attorney for Respondent No.1, Pir Liaqat Ali Shah A.-G. along with Shafiq Ahmed, Provincial Election Commissioner, M. Hussain Deputy Controller Al-Khair University.

Date of hearing: 15th January, 2008.

2008 C L C 476

[Peshawar]

Before Muhammad Alam Khan, J

Mst. NUSRAT BEGUM----Petitioner

Versus

MUHAMMAD IQBAL KHAN and 10 others----Respondents

Civil Revision No.1453 of 2007, decided on 28th January, 2008.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for possession, declaration and permanent injunction---Temporary injunction, grant of---Essential requirements---Petitioner had also annexed with plaint an application for grant of temporary injunction under O.XXXIX, Rr.1 & 2, C.P.C. praying therein that respondents be restrained to raised construction on the suit property and also to prohibit them from alienating said property---Claim of petitioner was that she being co-sharer, and property in question having not been partitioned she was entitled to temporary injunction---Trial Court refused to grant injunction as prayed for by the petitioner on the ground that though plaintiff being a co-share had a prima facie case but for grant of temporary injunction all the three principles namely prima facie case, irreparable loss and balance of convenience, must co-exist to entitle her for grant of requisite injunction---Appellate Court below upheld findings of the Trial Court---Validity---Main object of injunction was to restrain a party from wrong doing in future to a person and not to disturb the status quo ante, prevailing before the institution of the suit; whereas tower in dispute had already been completed and was functioning---When an act had already been done and completed no injunction would ensue in the case---In temporary injunction existence of prima facie case was not the only requirement, but the other two essentials, must also co-exist in order to warrant the issuance of temporary injunction, whereas in the present case, petitioner lacked said two requisites, i.e. balance of convenience and irreparable loss---Courts below, in circumstances, had rightly dismissed application of petitioner for grant of temporary injunction---Prayer of petitioner for keeping the status quo intact, was altogether ignored by the two courts below---Respondents were not within their right to transfer the suit property during pendency of the suit---Petitioner was entitled at least to that relief, which was granted accordingly---With that modification revision petition was dismissed.

Salahuddin Khan and 3 others v. Sultan-i-Room and 3 others PLD 1973 Pesh. p.95 Note No.72; Mst. Sughra Bai v. Mst. Rabia 1982 CLC 344(a); Messrs Sui Northern Gas Pipeline Company Limited v. Messrs Pakistan Cement Industries PLD 1968 Lah. 876(d) and Zakia Khatoon v. Roomi Enterprises 1995 SCMR 753 ref.

Petitioner in person.

2008 C L C 481

[Peshawar]

Before Muhammad Alam Khan, J

FARID----Petitioner

Versus

MUHAMMAD KHURSHID and 14 others----Respondents

Civil Revision No.1273 of 2007, decided on 31st January, 2008.

Civil Procedure Code (V of 1908)---

----S. 115, O. V, Rr. 16, 18, 19 & O.IX, R.13---Specific Relief Act (I of 1877), S.42--- Suit for declaration---Ex parte judgment and decree, setting aside of---Substituted service---Trial Court issued summons against defendants and finally made a proclamation in the newspaper and after recording ex parte evidence granted plaintiff an ex parte decree---Application filed by defendants for setting aside ex parte decree was dismissed by the Trial Court; but Appellate Court set aside ex parte decree and original suit was restored and was remitted to civil court for decision on merits---Validity---Record had revealed that summonses were issued against defendants and over leaves the summonses was a note of bailiff that defendants could not be traced at the given address---Trial Court was duty bound to have asked for filing of fresh addresses of defendants, but instead the court ordered proclamation in the newspapers which procedure was bad in law when the Process Server had not reported either the avoidance or refusal of service by defendants---Defendants had not been properly served---Order of Appellate Court being perfectly sound, just, equitable and in consonance with established principles of administration of justice, called for no interference, and thus was maintained, but with a little modification that cost of Rs.3,000 was imposed on defendants.

Pervez Muhammad Khan v. Mrs. A.N. Kishwar and others 1991 CLC Note No.296 at p.226; Zafrul Haq v. Waris Khan and others PLD 1979 Lah. 793; Ghulam Rasool and others v. Mst. Noondan and others PLD 1994 Lah. 274 and Zulfiqar v. Muhammad Jan 2002 CLC 932 rel.

Petitioner in Person.

Mashal, Clerk of Lal Jan Khattak for Petitioner.

2008 C L C 500

[Peshawar]

Before Muhammad Alam Khan, J

SALTANANT KHAN----Petitioner

Versus

Mst. FATRANI and 17 others----Respondents

Civil Revision No.1295 of 2007, decided on 24th January, 2008.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XLI, R.23---Suit for declaration---Remand of case by the Appellate Court---Trial Court decreed suit filed by the petitioner---On filing appeal by respondent against judgment and decree of the Trial Court, Appellate Court remanded the case with directions to give opportunity to the parties to lead evidence---When judgment and decree passed by the Trial Court, were 'set aside by the Appellate Court and case was remanded with certain observations or directions, the Trial Court was duty bound to honour the said observations and directions of the Appellate Court and decide the lis accordingly---Trial Court, however, ignored observation of the Appellate Court---Remand order had revealed that additional issue framed by the Appellate Court was essential for arriving at a just conclusion qua the rights of the parties---No alternative except to remand the case existed so that the parties should have sufficient time to lead evidence and to properly determine the rights of the parties strictly in accordance with the facts established on the record---Order of the Appellate Court remanding the case was strictly in accordance with law, justice and equity and called for no interference.

S. Sardar Hussain for Petitioner.

Nemo for Respondents.

Date of hearing: 24th January, 2008.

2008 C L C 659

[Peshawar]

Before Muhammad Alam Khan and Shah-ji-Rahman, JJ

Maulana ABDUL MALIK WAZIR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 13 others----Respondents

Writ Petition No.211 of 2008, decided on 7th March, 2008.

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

----Ss. 52 & 57---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Repolling at polling stations---Petitioner/candidate, had challenged the validity and legality of order of Election Commission whereby an order was passed for re-polling of two polling stations---Statements of votes were compiled and prepared with respect to said two polling stations on hand written Form-XIV, instead of the form prescribed by law---Further allegation by the petitioner was that according to the result, he was unofficially declared returned candidate, however contesting candidate raised an objection that the result had been compiled on hand written form instead of prescribed Form-XIV---Factual controversy of forging result on simple paper being involved in the case, an alternate and efficacious remedy was available to the petitioner for the redressal of his grievance by filing an election petition before the Election Tribunal, constituted under S.57 of the Representation of the People Act, 1976---Jurisdiction of High Court was excluded under S.52 of the Representation of the People Act, 1976 read with Art.225 of the Constitution---Constitutional petition was dismissed and interim order issued withholding the result of re-polling of said two polling stations, was vacated.

Election Commission of Pakistan through Secretary v. Javed Hashmi PLD 1989 SC 396 ref.

Barrister Masood Kausar and Kamran Murtaza for Petitioner.

Salahuddin Khan, Dy. Attorney-General for Respondents Nos.1 to 3 along with Respondent No.3 in person and Sharifullah, Assistant Election Commissioner, on behalf of Respondents Nos.1 and 2.

Respondents Nos.6, 7 and 8 in person.

Qazi Muhammad Anwar for Respondent No.9.

2008 C L C 793

[Peshawar]

Before Muhammad Alam Khan, J

NOOR-UD-DIN and another----Petitioners

Versus

MUHAMMAD DIN KHAN----Respondent

Civil Revision No.977 of 2007, decided on 20th March, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Suit for declaration and permanent injunction---Application for grant of ad interim injunction---Plaintiff along with plaint filed application for grant of ad interim injunction, which was granted by the Trial Court and maintained by Appellate Court---Validity--- Ad interim injunction granted to plaintiff under provision of O.XXXIX, R.2(b) C.P.C. had its natural life for six months, unless and until it was extended and that too for reasons to be recorded---Ad interim injunction granted to plaintiff neither had been extended nor any request was made for its extension---Ad interim injunction granted by the Trial Court, in circumstances had automatically expired after lapse of six months---No ad interim injunction was subsisting, revision petition filed by defendant had become infructuous and was disposed of accordingly.

Syed Muhammad Shah Jehan Shah and 22 others v. Fazal-ur-Rehman and 45 others 1996 CLC 1572 and Gul Haider v. Dr. Asad Zia 2003 YLR 913 ref.

Petitioner in person.

Respondent in person.

2008 C L C 803

[Peshawar]

Before Muhammad Alam Khan, J

Maj. RIFAT NAWAZ and 5 others----Petitioners

Versus

Mst. TAHIRA and 2 others----Respondents

Civil Revision No.1425 and Civil Miscellaneous No.1290 of 2007, decided on 18th March, 2008.

Partition Act (IV of 1893)---

----S. 2---Suit for partition---Suit for partition of house concurrently having been decreed by the Trial Court and Appellate Court, defendant had assailed said concurrent findings in revision before the High Court---Plea of defendant was that house in question belonged to his father and that he having not given said house in dower to the plaintiff, she was not entitled to the decree through partition---Question involved in the case was whether a father could give dower in favour of his daughter-in-law on the eve of marriage of his son---Held that father-in-law could give a dower of movable as well as immovable property on the eve of his son's marriage particularly when Nikahnama contained the stipulation regarding the dower with full particular in shape of boundaries of the said house---Said Nikahnama had also been thumb impressed by the father of defendant---Document in question had been fully proved in the record of the case---Two courts below had appreciated the evidence on record and after "scanning the same had passed the decree in favour of plaintiff---No misreading or non-reading of evidence had been pointed out--Judgments and decrees of the Trial Court as well as that of Appellate Court below were strictly in accordance with the established principle of appreciation of evidence, which called for no interference.

Mst. Mehr Bhari and 6 others v. Mst. Bhag Bhari and 2 others 1987 CLC 1588 and Mst. Bibi Lal Bibi v. Mir Baluch Khan and another PLD 1962 (W.P.) Quetta 28 ref.

Maj. Rifat Nawaz along with brother Khan Nawaz in person.

Mst. Tahira along with her brother Abdul Wadood in person on pre-admission notice.

Date of hearing; 18th March, 2008.

2008 C L C 892

[Peshawar]

Before Muhammad Alam Khan, J

TEHSIL MUNICIPAL ADMINISTRATOR (ADMINISTRATON DISTRICT COUNCIL MARDAN) and another----Petitioners

Versus

YAQOOB SHAH and 14 others----Respondents

Regular First Appeal No.89 of 2006, decided on 20th March, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4, 9, 11, 18, 23 & 54---Acquisition of land---Determination of amount of compensation---Points to be considered---Reference to Referee Court---Land having been acquired by authorities, Land Acquisition Collector gave award of compensation of acquired land--Landowners being aggrieved of said award, filed Reference to Referee Court under S.18 of Land Acquisition Act, 1894 and Referee Court answered the Reference in positive and enhanced amount of compensation---Authorities had filed appeal against . said enhancement---Validity---Referee Court enhanced amount of compensation taking into consideration best location and potential value of acquired land---Owners of the acquired land should be paid compensation and not the price because difference existed between compensation and price and while assessing the compensation, one year's average was not the sole criterion---Location, potential value and fitness for Abadi of acquired land should also be taken into consideration--Price of a willing purchaser and willing seller should be, paid to the expropriated land-owners---Judgment and decree of the Referee Court was strictly in accordance with law and in consonance with evidence available on record, which called for no interference.

Murad Khan through his widow and 13 others v. Land Acquisition Collector Peshawar and another 1999 SCMR 1647; Province of Punjab through Collector Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Government of N.-W.F.P. and others v. Mst. Jamshed Bibi and another PLD 1997 Pesh. 19 and Ghulam Ahmad v. -Government and others 2003 CLC 1383 ref.

Faizur Rehman Prosecutor, T.M.A. Mardan for Appellant.

Fazalur Rehman General Attorney for Respondent.

Date of hearing: 20th March, 2008.

2008 C L C 905

[Peshawar]

Before Hamid Farooq Durrani and Syed Musaddiq Hussain Gilani, JJ

Miss KOMAL NAZIR QAZI----Petitioner

Versus

KHYBER MEDICAL UNIVERSITY, JOINT ADMISSION COMMITTEE through

Chairman and 8 others----Respondents

Writ Petitions Nos.1948, 336, 1960 and 1965 of 2007, decided on 28th February, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Admission in Medical/Dental Colleges---Petitioner claimed her admission in Medical/Dental Colleges against quota reserved for N.-W.F.P. backward area---Petitioner, who applied for admission in 1st Professional M.B.,B.S. in Medical College, cleared Entry Test and was able to achieve target for purpose of admission, but she was treated as an 'out' candidate; it was considered that petitioner was not qualified for admission against any of the seats reserved for backward areas of N.-W.F.P. as she did not obtain requisite education from her respective backward area---Authorities contended that the spirit of policy regarding the reserved seats for backward areas was to accommodate the socially and economically disadvantaged sections of people---Petitioner having obtained education from a place outside the District/Agency of respective backward area, could not be considered at par with those who received education from within the backward area or concerned District in case of non-availability of requisite educational facility in the backward area---Petitioner was declared disentitled to have preference over the other candidates, who had studied from institutions lying within the backward area or Tehsil/District within which respective backward area was situated---When seat in B.D.S. at Dental College was lying vacant due to non-availability of other eligible candidate from backward area, in the peculiar circumstances of the case, petitioner would be considered for admission against the said seat as she was a domicile holder of one of said backward areas.

Arif Shah v. Secretary to Government of N.-W.F.P. 2001 SCMR 1161 and Chairman Joint Admission Committee, Khyber Medical College v. Raza Hassan and others 1999 SCMR 965 rel.

Rashidul Haq Qazi for Petitioner.

Taskeenuddin Khattak, L.O. along with Shamshad Khan, Superintendent and Niaz Ali, Senior Clerk, Student Affairs Section, Ubaidullah Anwar, A.A.-G. for Respondent No.3.

Syed Zafar Ali for Respondent No.8 and Respondent No.9 in person.

Date of hearing: 6th February, 2008.

2008 C L C 930

[Peshawar]

Before Hamid Farooq Durrani and Syed Yahya Zahid Gilani, JJ

ARBAB FAZAL RAUF and another----Petitioners

Versus

ARBAB SAJJAD and 6 others----Respondents

Writ Petition No.180 of 2008, decided on 20th March, 2008.

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

----O. XXXIX, Rr.1, 2, O.XLIII, R.1(r) & S.115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order refusing temporary injunction---Revision, incompetency of---Temporary injunction prayed for by respondents was declined by the civil court, but order of civil court was set aside by Appellate Court in exercise of its revisional jurisdiction---Order refusing temporary injunction was appealable under O.XLIII, R.1(r) C.P.C., but instead of appeal, revision petition was preferred---Validity---Revision was not competent when appeal lay---Request of counsel for respondents that impugned order could be treated as if passed in appeal, was not tenable because it would set wrong trends and create legal complexities in future due to amalgamation' of two different jurisdictions, specifically and purposefully segregated in law---Impugned order was patently illegal and void ab initio on that score, which was set aside by the High Court in exercise of its constitutional jurisdiction.

Abdul Ghani v. Mst. Shaheen 2007 SCMR 834; PLD 1995 SC 426; 2006 MLD 435 and 1994 MLD 550 rel.

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

----O. XXXIX, Rr.1 & 2---Grant of temporary injunction---Ingredients---Three ingredients i.e., prima facie case, balance of convenience and irreparable loss, must co-exist for grant of temporary injunction---Even if a prima facie case was available to a party, temporary injunction could not be claimed as a matter of right and the court had to take into consideration other factors like balance of convenience, irreparable loss, conduct of parties, nature of suit, the time likely to be absorbed in it etc.

Messrs Sui Northern Gas v. Messrs Pakistan Cement Industries PLD 1968 Lah. 876 ref.

Naveed Maqsood for Petitioner.

Mian Mohibullah Kaka Khel for Respondent.

Date of hearing: 20th March, 2008.

2008 C L C 1000

[Peshawar]

Before Muhammad Alam Khan, J

ABIDA KALSOOM----Appellant

Versus

CHAIRMAN WAPDA, LAHORE and 6 others----Respondents

Regular First Appeal No.4 of 2006, decided on 25th April, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Civil Procedure Code (V of 1908), O.VII, R.1---Acquisition of land---Determination-of amount of compensation---Reference to Referee Court---Rejection of reference---Appeal---Dissatisfied with determination of amount of compensation by Acquisition Collector, appellant filed reference for sending same to Referee Court for enhancement of amount of compensation---Said Reference was rejected on ground of being time-barred---Validity---Once a matter was referred to the Civil Court by the Collector, then Referee Court was bereft of jurisdiction to determine the question of limitation---Accepting appeal, impugned judgment and decree of the Trial Court/Referee Court was set aside by High Court and Reference was sent back to District Judge either to decide same himself or to entrust it to Additional District Judge.

Mumrez Khan and 16 others v. Federal Government through Collector and 4 others PLD 2004 Pesh. 106; Government of West Pakistan (Now Government of N.-W.F.P.) through Collector Peshawar v. Arbab Haji Ahmad Ali Jan and others PLD 1981 SC 516 "E"; Government of West Pakistan (Now Government of N.-W.F.P.) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109; Shah Wazir Khan and others v. Abdur Razaq and others PLD 2004 Pesh. 109 and The Collector Mardan and 2 others v. Mst. Taj Bibi and 14 others PLD 1972 Pesh. 197 ref.

Abdul Hakeem Khan Kundi for Appellant.

Minhajuddin Alvi for Respondents.

Date of hearing: 25th April, 2008.

2008 C L C 1411

[Peshawar]

Before Muhammad Alam Khan, J

AZIZ-UR-REHMAN----Petitioner

Versus

Maulana MUHAMMAD ZAHIR SHAH and 11 others----Respondents

Civil Revision No.299 of 2005, decided on 10th June, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S.92---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint---Applicability of S.92, C.P.C.---Scope---Defendant filed written statement along with an application for rejection of plaint under O.VII, R.11, C.P.C.---Trial Court after hearing the counsel for the parties, came to the conclusion that as the plaintiff had filed the suit with respect to a pubic land/public charity, the sanction of the Advocate General, as envisaged under S.92, C.P.C. having not been sought, the suit was barred by law, and invoking the provisions of Order VII, R.11, C.P.C. rejected the plaint by impugned order---Said order of the Trial Court had been confirmed by the Appellate Court---Validity---Once it was proved on the record that the property, subject matter of litigation was either a public trust or public charity, prior permission of the Advocate General must be obtained for institution of the suit, but the question in the present case was as to when the plaint was filed; and written statement was submitted by the defendant, Trial Court was bound to have framed proper issues and afforded opportunity to the parties to lead pro and contra evidence; and pursuant to that, if it was proved on the record that the property, subject matter of the litigation was either public trust or any charitable institution, then the bar under S.92, C.P.C. would be attracted; and the suit would be liable to be dismissed; but if from the evidence on record it was discernible, that it was a private trust; then the provisions of S.92, C.P.C. would not be applicable because, when a person claimed a property in his private capacity; and nowhere the public trust or charity was alleged in the plaint; then the bar contained under S.92, C.P.C. would not be applicable---Orders of the two courts below being contrary to law and justice, were liable to be set aside---Impugned judgment and decrees of the courts below were set aside and the matter was remanded to the Trial Court with direction to frame proper issues in the case and give the parties an opportunity to lead evidence and thereafter decide the case on merits.

Kathiawar Cooperative Housing Society Limited through General Secretary v. Macca Masjid Trust through Secretary and 9 others 2000 CLC 1182 and Miskeen v. Additional District Judge, Mansehra and 32 others 2003 SCMR 121 rel.

Muhammad Waheed Anjum for Petitioner.

Gauhar Zaman Kundi for Respondents.

Date of hearing: 26th May, 2008.

2008 C L C 1419

[Peshawar]

Before Muhammad Alam Khan, J

FARID ULLAH KHAN----Petitioner

Versus

JAMSHED AHMAD----Respondent

Civil Revision No.203 of 2007, decided on 9th June, 2008.

Civil Procedure Code (V of 1908)---

----O. IX, R.4 & O. VII, R. 2---Suit for recovery of amount---Dismissal of suit in default of appearance of plaintiff---Application for restoration of suit---Having been dismissed by the Trial Court for default of appearance, plaintiff filed application for setting aside such order---Said application having been dismissed by the Trial Court for non-prosecution, plaintiff again submitted an application for restoration of the same, which was also dismissed by the Trial Court---Appeal filed by the plaintiff against order of the Trial Court had been dismissed by the Appellate Court---Validity---Trial Court had rejected both applications of the plaintiff summarily without affording an opportunity of hearing to the parties---When disputed questions of facts were involved, then it was the bounden duty of the courts to afford an opportunity to the parties to lead pro and contra evidence in the shape of proof and disproof but same had not been done in the case---Impugned orders of the courts below were set aside and case was remanded to the Trial Court with direction to afford opportunity to the parties to lead evidence in the shape of proof and disproof on the application for restoration of the suit which would be deemed to be pending and pass appropriate orders on that application as well as on subsequent application.

Hassan Din and another v. Jalal din and 2 others 1992 CLC 33 rel.

Ghulam Hur Khan Baloch for Petitioner.

Abdul Qayyum Qureshi for Respondent on pre-admission notice.

2008 C L C 1433

[Peshawar]

Before Muhammad Alam Khan, J

Mst. JAMILA BEGUM and 4 others----Petitioners

Versus

DEPUTY SETTLEMENT COMMISSIONER, REHABILITATION, D.I. KHAN and 5 others----Respondents

Civil Revision No.271 of 2007 with Civil Miscellaneous No.120 of 2007, decided on 16th May, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Suit had concurrently been dismissed by the Trial Court and Appellate Court below---Claim of plaintiffs was that they being legal representatives of deceased allottee of suit property were owners in possession of said property and that defendant/Central Government had no concern with the same---Material contradictions were found between the testimony of plaintiff and documentary evidence brought on record---Since some of the issues framed by the Trial Court were interconnected and interlinked, collective discussion thereon by the Trial Court was not illegal as objected to by the plaintiffs---When issues were interlinked and the same were discussed separately or jointly, would make no difference, unless prejudice was caused to the parties---On legal premises, the suit of the plaintiff had rightly been dismissed by the court below, because claim in favour of predecessors of the plaintiff was unsatisfied and had not been confirmed and no proper allotment had been made in favour of the predecessors-in-interest of the plaintiffs, who had never remained in possession of the land in dispute---Plaintiffs and their predecessors-in-interest kept mum for sufficiently long time and filed declaratory suit after long time and that too without first approaching the functionaries created under repealed law---Two courts below had recorded concurrent findings of fact against plaintiffs resorting to the well-established principles of application of evidence, which could not be disturbed by the High Court in its revisional jurisdiction under S.115, C.P.C.

Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806 and Member (S&R/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 rel.

Muhammad Ayaz Khan Qasuria for Petitioners.

2008 C L C 1481

[Peshawar]

Before Muhammad Alam Khan, J

Haji FARID ULLAH KHAN and another----Petitioners

Versus

Sardar INAYAT ULLAH KHAN and 13 others----Respondents

Civil Revision No.346 with C.M. No.163 of 2007, decided on 12th February, 2008.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Grant of temporary injunction---Vacation of injunction---Trial Court summoned the defendant and after considering the material available on record, granted temporary injunction, prohibiting defendants from raising construction on the suit premises or changing its nature---Appellate Court, however, had vacated said injunction order---Validity---For the issuance of temporary injunction, existence of a prima facie case was not the only criterion unless other two ingredients, i.e. balance of convenience and irreparable loss, co­existed---Defendants had filed affidavits in the shape of an undertaking that they were raising construction at their own risk and cost; and in case the land was found to be owned by the plaintiffs, they would claim no improvement for the same---Filing of said affidavits in the shape of undertaking, had sufficiently protected the rights of the plaintiffs and in case the suit premises was found to be in the ownership of the plaintiffs, defendants would not be entitled to the costs of improvement; and they would hand over the peaceful possession along with constructed Abadi to the plaintiffs-Order of the Appellate Court below was perfectly sound, judicious and strictly in accordance with law which called for no interference.

Zakiya Khatoon v. Roomi Enterprises 1995 SCMR 753 and Haji

Shah Jehan Khan v. Aurangzeb Khan and another PLD 1995 SC 462 ref.

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

----O. III, R.4---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.41---Counsel and client---Appointment of counsel---Professional misconduct---When a counsel was engaged in a lis, it was his duty to appear and conduct the case and assist the court on behalf of his client in order to secure justice for him---Under the provisions of Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder, Canons of Conduct had been prescribed for Advocates and any violation of those Canons, would amount to professional misconduct.

Haji Faridullah Khan Petitioner No.1 in person.

Malik Muhammad Bashir for petitioners absent in spite of service.

2008 C L C 1492

[Peshawar]

Before Muhammad Alam Khan, J

AKBAR NAWAZ SHAH----Petitioner

Versus

MUHAMMAD SALEH SHAH and 5 others----Respondents

Civil Revision Petition No.138 of 2007, decided on 12th February, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration-Plaintiff brought a suit for declaration to the effect that he and defendants were the owners in possession of land and that the entries in the name of deceased predecessor of defendants, were wrong, illegal and ineffective on the right of the plaintiff and pro forma defendants---Trial Court considering the data available on record decreed the suit of the plaintiff, but Appellate Court dismissed the suit of plaintiff---Validity---Share of the plaintiff, whose share was intact, challenged a mutation which had been entered and attested on behalf of predecessor of defendants-One of the defendants who was co-sharer had never brought any suit on the basis of impugned mutation nor he had appeared before the court to record his statement to own the said mutation---Said defendant had never opted to be transposed to the panel of the plaintiffs in order to base his claim on the said mutation---Share of plaintiff was intact and aggrieved person, said defendant was required to have come forward and base his claim on the mutation and seek declaration of his title---Appellate Court had rightly scanned the evidence on record and no misreading or non-reading of evidence had been pointed out on the record of the case---Said defendant, if was aggrieved from any wrong entry in the revenue record pursuant to the impugned mutation adversely 'affecting his rights, he would be at liberty to challenge the same.

Akbar Nawaz Shah petitioner in person.

2008 C L C 1507

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD MUSHTAQ----Petitioner

Versus

Mst, ABIDA NASREEN----Respondent

Civil Revision No.178 of 2007, decided on 20th May, 2008.

Civil Procedure Code (V of 1908)---

--- O. VII, R. 11---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declaration and possession---Rejection of plaint---Principles---On filing suit by the plaintiff, defendant submitted detailed written statement along with application for rejection of plaint under O.VII, R.11, C.P.C.---Trial Court, after calling for replication from the plaintiff and hearing counsel for parties, rejected plaint vide impugned order---Appellate Court having concurred with the findings of the court below, petitioner had challenged the same in revision---Trial Court called 'for written statement out of which contentious issues had been framed which had to be decided by the Trial Court after recording of pro and contra evidence---Disputed questions of facts being involved, the Trial Court was not justified to summarily non-suit the plaintiff by rejecting his plaint, especially when a similar prayer had been turned down by the Court---Trial Court and the Appellate Court below too, had fallen into an error in maintaining the same order---Once issues were framed and the court entered upon recording of evidence, the matter had to be taken to its logical end and resort should not be made to the summary provisions of law as contained in the Code of Civil Procedure---Trial Court, after framing of the issues, ought to have recorded the evidence and decided the matter on merits---For the rejection of plaint, same must be shown to be barred under some provisions of law---Court must, at that stage, had only to see the averments made in the plaint and same had to be accepted on its face value, to be correct---If the defendant agitated that even after the trial the plaintiff was to fail that fact too, could not be taken into consideration because that was not a ground for rejection of plaint---Impugned orders of the courts below were set aside and case was sent back to the Trial court for decision on merits after affording the parties an opportunity to lead evidence in support of their respective contentions.

Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others 1993 MLD 2464 and Ghulam Dastagir and others v. Mst. Marian and others 1993 MLD 1005 ref.

Rustam Khan Kundi and Fazl-ur-Rehman Baloch for Petitioner.

S. Mastan Ali Zaidi for Respondent.

2008 C L C 1549

[Peshawar]

Before Muhammad Alam Khan, J

Haji MUHAMMAD IQBAL KHAN and 3 others----Petitioners

Versus

GUL BADSHAH----Respondent

Civil Revisions Nos.255 and 256 of 2007, decided on 16th June, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6, 13 & 20---Suit for pre-emption---Trial Court after hearing the counsel for parties and considering data available on record came to the conclusion that both pre-emptor and vendees had got equal rights of pre-emption being co-sharers---Trial Court fixing the market value of suit land as mentioned in the registered. deed, passed decree in favour of pre-emptor and vendees in equal shares, giving 1/2 share to the pre-emptor and 1/2 share to vendees---Appellate court below, however found that the parties being co-sharers falling in the same category were equally entitled; and that distribution of property would be as per capita basis, pre-emptor being one who would get 1/5 share while vendees being four in number would get 4/5 share equally on ,proportionate sale consideration---Pre-emptor as well as vendees, at the time of sale of suit property were-co-sharers and two courts below had rightly reached at findings with respect to the equal rights of both the parties as co-sharers---Pre-emptor had proved on record by producing overwhelming evidence the performance of `Talb-e-Muwathibat' and sending notice of Talb-e-Ishhad in time---Particulars of date, time and place regarding acquiring knowledge of impugned sale, had duly been proved on the record---Record had established that the sale was through sale-deed and sale consideration had been paid to the vendor before the Sub-Registrar which was fixed in good faith and actually paid to the vendor---Sale consideration fixed by the Trial Court and upheld by the Appellate Court, was in accordance with law---In the present case, there being one pre-emptor and four vendees, distribution of suit property among the pre-emptor and vendees would be on per capita basis---Appellate Court below, in circumstances, had rightly modified the judgment and decree of the Trial Court with respect to the apportionment of the pre-empted land as on per capita basis---Pre-emptor would get 1/5 share and four vendees would get 4/5 shares on proportionate sale consideration---No misreading or non-reading of evidence had been pointed out by the counsel for the parties in the impugned judgment and decrees of the courts below, which were based on established principles of appreciations of evidence---Revision was dismissed.

Abdul Hakeem and others v. Khalid Wazir 2004 SCMR 1770; Muntazim and another v. Haji Aslam Khan 1980 SCMR 284; Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299; Abdul Hakeem and others v. Khalid Wazir 2003 SCMR 1501; Haqnawaz and another v. Bashir Ahmad and 2 others 2006 YLR 3024; Muhammad Hayat v. Faiz Ali and another 2002 MLD 938 and Abdul Latif v. Shoukat Ali and 2 other 2006 MLD 735 ref.

Sheikh Iftikhar-ul-Haq for Petitioner.

Faridullah Khan Kundi for Gul Badshah (Petitioner in Civil Revision No.256 of 2007).

2008 C L C 1556

[Peshawar]

Before Zia-ud-Din Khattak, J

MALIK MIRZA----Petitioner

Versus

MATLOOB AHMAD and 3 others----Respondents

Civil Revision No.104 and C.M. No.91 of 2008, decided on 4th-July, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 31 & 32---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for pre-emption---Limitation---Rejection of plaint--Vendee/defendant, instead of filing a written statement submitted an application for rejection of plaint under Order VII, R.11, C.P.C. on the ground that suit was barred by limitation having been filed beyond prescribed period of 120 days---Both Trial Court and Appellate Court below having rejected plaint, plaintiff had filed revision against concurrent judgments of the courts below---Contention of plaintiff was that when a sale-deed was registered, but the Registrar concerned did not give public notice in respect of such registration as envisaged by S.32 of North-West Frontier Province Pre-emption Act, 1987, then the period was to be computed from the date of knowledge of the pre-emptor and not from the date of registration of the sale-deed as provided by S.31 of said Act---Provision with regard to issuance of public notice by the Registrar contained in S.32 of North-West Frontier Province Pre-emption Act, 1987, had no nexus with the period of limitation prescribed by S.31 of said Act for filing a pre-emption suit arising from a registered sale-deed---In a case of a sale effected through a registered sale-deed the period of 120 days would be computed from the date of registration of the sale-deed---Contention that if the Registrar failed to issue public notice as envisaged under S.32 of the North-West Frontier Province Pre-emption Act, 1987, the period of limitation was to be computed from the date of knowledge by the pre-emptor, was misconceived, as such a provision was neither contained in S.31 of said Act nor could be read into it in view of settled law that courts could not supply "casus omissus"---Impugned judgment of Appellate Court below, was upheld and revision petition was dismissed.

Maulana Noor-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

Muhammad Waheed Anjum for Petitioner.

2008 C L C 1568

[Peshawar]

Before Muhammad Alam Khan, J

DISTRICT COLLECTOR, BANNU and 4 others----Petitioners

Versus

MUHAMMAD SUBHAN and 3 others----Respondents

Civil Revision No.91 and Civil Miscellaneous No.77 of 2008, decided on 20th June, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, R.1, 2---Suit for injunction---Plaintiffs along with suit for grant of permanent injunction also prayed for issuance of temporary injunction against defendants to restrain them from interfering with suit shop in any manner---Trial Court ordered maintenance of status quo till six months or disposal of the suit, whichever was earlier---Temporary injunction unless and until it was extended and that too for the reasons to be recorded and same communicated to the High Court---Record indicated that neither the said order had been extended nor the plaintiffs had made any request for its further extension---Ad interim injunction granted by the Trial Court stood automatically expired after the lapse of six months and factually there was no order in the field to be impugned by defendants---When there was no subsisting order of ad interim injunction, revision petition had become infructuous and stood dismissed.

Syed Muhammad Shah Jehan Shah and 22 others v. Fazal-ur-Rehman and 45 others 1996 CLC 1572 and Gul Haider v. Dr. Asad Zia 2003 YLR 913 rel.

Sanaullah Shamim, D.A.-G. for Petitioner.

2008 C L C 1626

[Peshawar]

Before Shahji Rahman Khan and Zia-ud--Din Khattak, JJ

MUHAMMAD HUSSAIN----Petitioner

Versus

ZAHIR SHAH and 2 others----Respondents

Writ Petition No.932 and C.M. No.1087 of 2008, decided on 29th July, 2008.

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

----Ss. 13(2)(i), (3)(ii) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need---Ejectment order passed by the Rent Controller against tenant, was upheld by appellate authority---Subject-matter related to Provincially Administered Tribal Area, where second appeal under S.15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 (un-amended) was permissible for want of extension of West Pakistan Urban Rent Restriction Ordinance, 1979 in terms of Art.247 of the Constitution---Tenant, despite availability of adequate and efficacious remedy by way of second appeal, opted to challenge the order of the first appellate authority through constitutional petition, which, ex facie, was not permissible---Request for counsel of the tenant that the constitutional petition may be treated as second appeal, was declined for the reason that the second appeal even if brought would have been time-barred; and that the concurrent findings of Rent Controller and appellate authority ordering ejectment of tenant from the shop on ground of personal requirement, were not open to interference---Appellate authority had decided the appeal in accordance with law and evidence available on record, no case was made out.

Muhammad Aman Khan for Petitioner.

2008 C L C 124

[Quetta]

Before Akhtar Zaman Malghani, J

MUHAMMAD RAMZAN and another----Petitioners

Versus

Mst. JAN BIBI and another----Respondents

Civil Revision No.342 of 2006, decided on 2nd November, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXII, R.15---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction having been concurrently decreed by the Trial Court and Appellate Court---Validity---Counsel for the defendants had conceded that the concurrent findings of fact, were not amenable to revisional jurisdiction, but had contended that one of the plaintiffs was an insane person and the suit without next friend could not have been instituted as provided under O.XXXII, R.15, C.P.C.---No such objection was taken by the defendants in their written statements filed before the Trial Court, though it was stated that one of the plaintiffs was dumb---Provisions of O.XXXII, R.15, C.P.C. were not applicable to a person who was dumb---Plaintiffs could not be non-suited on said technical ground by disturbing concurrent findings of fact, particularly when no objection with regard to maintainability of suit was taken either before the Trial Court or appellate forum.

PLD 1994 Lah. 706; 1994 MLD 377 and 1971 SCMR 548 ref.

Muhammad Ewaz Zehri for Petitioners.

Respondents in person.

Date of hearing: 21st September, 2007.

2008 C L C 339

[Quetta]

Before Akhtar Zaman Malghani, J

ABDUL MALIK----Petitioner

Versus

HABIB BANK LTD. through President, Habib Bank, Karachi and 3 others----Respondents

C.P. No.226 of 2007, decided on 26th December, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, if satisfied that no other adequate remedy was provided by law, on the application of an aggrieved person, could make an order directing a person performing within territorial jurisdiction of the court functions in connection with the affairs of the Federation; a Province or Local Authority, to refrain from doing anything; he was not permitted by law to do or to do anything he was required by law to do; or declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the Federation, a Province or Local Authority, had been done or taken without lawful authority and was of no legal effect---Bank, after its privatization, was being run by a private party and had no concern with the affairs of Federation or a Province, which was condition precedent qua maintainability of constitutional petition, constitutional petition against said Bank being not maintainable, was dismissed.

PLD 1966 SC 445 and 2005 MLD 1798 ref.

Manzoor Ahmed Rehmani for Petitioner.

Shoukat A. Choudhary for Respondents.

Date of hearing: 4th December, 2007.

2008 C L C 493

[Quetta]

Before Amanullah Khan Yasinzai, C. J. and Akhtar Zaman Malghani, J

Mir MUHAMMAD JUMMA KHAN KUBDANI and others----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN----Respondent

Constitutional Petition No.322 of 2007, decided on 20th November, 2007.

Balochistan Local Government Ordinance (XVIII of 2001)---

----Ss. 7, 11, 12 & 197---West Pakistan Land Revenue Act (XVII of 1967), S.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Vires of Notifications---Petitioners were elected as Nazim and Naib Nazim of Tehsil Council---Government, in exercise of powers conferred under S.6 of West Pakistan Land Revenue Act, 1967, created new Tehsil and Sub-Tehsil vide a Notification---Said Notifications were followed by another Notification purported to have been issued in exercise of powers conferred under S.197 of Balochistan Local Government Ordinance, 2001 declaring petitioners Nazim and Tehsil Naib Nazim of newly created Tehsil instead of Nazim and Naib Nazim of the original Tehsil for which they were elected-Petitioners had called in question all said Notifications---Validity---Notification issued under S.6 of West Pakistan Land Revenue Act, 1967 whereby new Tehsil and sub-Tehsil were created, could not be called in question by. invoking constitutional petition as counsel for petitioners had failed to show any mala fide action in shat regard except agitating that new Tehsils were created to deprive the petitioners from the seats of Nazim and Naib Nazim of original Tehsil to which they were legally elected, which contentions were not tenable---Notification issued under S.197 of Balochistan Local Government Ordinance, 2001, however, was declared to be void, illegal and without lawful authority and petitioners would continue to hold their respective offices till the next Local Government Elections and Notifications issued under the Local Government Ordinance, 2001 altering/changing the boundaries of Local Government, original Tehsil would come into force on announcement of next Local Government elections and not before that.

PLD 2005 SC 797 ref.

Kamran Murtaza for Petitioners.

Salahuddin Mengal, A.-G., Abdullah Baloch and Riaz Ahmed for Respondents.

Date of hearing: 3rd October, 2007.

2008 C L C 322

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

Mst. ZUBAIDA KHANUM----Appellant

Versus

JAHANZEB KHAN----Respondent

Civil Appeal No.23 of 2005, decided on 10th December, 2007.

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

----Ss. 17 & 25---Azad Jammu and Kashmir Family Courts Act (XI of 1983), S.5, Sched. & S.14---Guardianship---Welfare of minor---While deciding the question of guardianship and custody of minor, the paramount consideration would be welfare of the minor---Provisions of personal law to which a minor was subject, should be guideline for entitlement to the custody which was further subject to two limitations viz. provisions of S.25 of the Guardians and Wards Act, 1890 and welfare of the minor---If consideration of welfare of minor or the conclusion arrived at in consequence of the guideline in S.25, Guardians and Wards Act, 1890 would make it impossible to follow the guidelines of personal law then the same could be abandoned and steps most conducive to the welfare of minor should be taken---If the consideration of personal law was not inconsistent then it should be followed---While appreciating the welfare of the minor, it had to be seen that the welfare would include moral, spiritual and material well-being and a court would have regard to the age, sex and religion of the minor; the character and capacity of the proposed guardian, his nearness of kin to the minor and preference of the minor, if he or she was intelligent enough to make it---Father being a natural' guardian was responsible for the maintenance of minor, but while deciding the question of custody, the mother must be preferred because of her warmth of affection---In the present case appeal had been directed by the mother of a minor daughter against judgment of the Family Court whereby custody of one daughter was given to appellant/mother while the father/respondent was held entitled to the custody of other daughter---Respondent/father did not file any application claiming the custody of daughter---No justification, in circumstances existed to hold that father, who neither claimed the custody nor was able to look after the minor himself, was entitled to the custody---Impugned order was amended in appeal and appellant (mother) was also held entitled to the custody of daughter given by the Family Court in custody of father/respondent.

Sardar Shoukat Hayat Khan for Appellant.

Sardar Nazar Muhammad Khan for Respondent.

2008 C L C 564

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Syed ABDUL QAYYUM SHAH----Appellant

Versus

Mst. TANVEER ANDLEEB and 3 others----Respondents

Civil Appeal No.106 of 2006, decided on 6th February, 2008.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Suit for dissolution of marriage by wife against her husband on ground of cruelty, mental torture, non-payment of maintenance allowance and on ground of 'Khula', was decreed by the Family Court, whereas suit for restitution of conjugal right filed by husband against wife was dismissed---Validity---Contention of wife was that she was ousted from the house of her husband in March, 2004 and thereafter defendant did not provide her maintenance allowance---Suit having been filed on 3rd February 2005, the ground for decree of dissolution of marriage for non-providing of maintenance allowance for a period of two years was not available to her---Wife had also failed to prove, the factum of cruelty by convincing evidence; however, evidence on record had proved that spouses could not live together within the prescribed limits ordained by Almighty Allah and their relations were strained beyond repair---Wife had developed aversion and hatred against her husband and in no circumstances she was willing to live with him, in such state of affairs, it was better to annul the hateful union rather to compel wife to go back to her husband to lead an unhappy life---Husband had failed to prove as to whether he had given any jewelry, gift or other things to, his plaintiff wife---Family Court fixed the consideration of 'Khula', the dower received by plaintiff wife at the time of marriage ceremony---Impugned decision, did not suffer from any glaring defect or legal, infirmity and the dower money was an appropriate consideration for grant of 'Khula'---Appeal was dismissed, in circumstances.

1985 CLC 2509; 1992 SCR 62 and Safdar Hussain Shah v. Mst. Nisa Fitima 1992 CLC 39 ref.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5 & Sched.---Suit for dissolution of marriage on ground of 'Khula'---'Surah-Al-Baqrah' verse No.229 of the Holy Quran was the base and origin of legality of 'Khula'---Limits prescribed by Almighty Allah in said verse, would mean the direction to lead a happy life---Before dissolving the marriage on ground of 'Khula', the court must satisfy its conscience that every apprehension existed that spouses would not lead a happy life within the limits ordained by Almighty Allah and that wife wanted separation from her husband and she had to pay the consideration---If all such conditions were fulfilled, then no option was left for the court, except to annul the marriage and grant 'Khula' in favour of the wife.

Safdar Hussain Shah v. Mst. Nisa Fatima 1992 CLC (AJK) 39; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 79; Mukhtar Ahmad v. Mst. Um-e-Kalsoom and another PLD 1975 Lah. 805; Mst. Naqeeba Begum v. Abdul Khaliq 2004 YLR 1719; Jamila Bibi v. Abdur Rasheed and 3 others 2005 SCR 82 and 1992 SCR 62 ref.

Mian Sultan Mahmood for Appellant.

Muhammad Riaz Alam for Respondents.

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2008 C L C 952

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Raja TAHIR BASHIR----Appellant

Versus

Mst. GULSHEEDA BIBI and 7 others-Respondents

Civil Appeal No.40 of 2007, decided on 9th April, 2008.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Dissolution of marriage on ground of Khula---Appeal to Shariat Court---Plaintiff filed suit for dissolution of marriage against defendant husband on ground of Khula, alleging that her husband was a cruel person who had made her life miserable by cruelty and ill-treatment; therefore she had developed hatred against him and that she could not live with him within the limits ordained by the Almighty Allah---Plaintiff further contended that she would not even want to see his face and she would prefer to die rather to live with him---All witnesses had supported the allegation of improper behaviour of defendant husband against plaintiff and separation of the spouses---Plaintiff had categorically stated before the court below that she had developed severe hatred against defendant and she could not live with him within the limits ordained by Almighty God---Before invoking power to annul marriage on ground of Khula, court must satisfy its conscience whether the spouses could live a life of love, affection, trust and harmony and if not, then it was better to break the hateful union---Wife, in the present case, was so adamant that she had expressed her hatred by deposing that she would prefer death instead of living with defendant---Islam did not force a woman to live sinful life; that was why right of Khula had been bestowed upon her by the Dictates of Holy Qur'an--Wife was not obliged to prove the fault of the husband, rather if it appeared from the record that relations of the spouses were strained beyond repair on account of fault of either party, whereupon wife had developed severe hatred against her husband, it was always advisable to dissolve the marriage---Marriage was rightly dissolved by the Family Court on ground of Khula, in circumstances---Husband had admitted that land, given by him to plaintiff wife in lieu of dower, was in his possession---Golden ornaments given to her at the time of marriage were sufficient consideration for grant of Khula as ordered by the Family Court.

Lal Muhammad's case PLD 1986 Quetta 185; Rehmatullah's case 1989 CLC 3; 1992 CLC 937; PLD 1995 Lah. 19; 2005 SCR 82; Syed Abdul Qayyum Shah v. Mst. Tanveer Andleeb and 3 others 2008 CLC 564; 1999 MLD 1679; Mst. Majeed Begum v. Muhammad Akram PLD 1984 (AJ&K) 36 and Mukhdoom Hussain v. Mst. Habib Begum and others 1993 SCR 330 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Suit for maintenance---Entitlement of wife to maintenance---If wife wilfully refused to live with her husband then she was not entitled to receive maintenance from him, but when there were sufficient grounds for refusal to live with husband, wife could claim maintenance without going back .to her husband---Defendant/husband, .having not paid the dower to plaintiff/wife, she was justified to live separately and entitled to claim maintenance---Family Court was justified to record order of maintenance allowance in favour of plaintiff and her minor girl.

Lal Muhammad's case PLD 1986 Quetta 185 and Rehmatullah's case, 1989 CLC 3 ref.

Syed Mushtaq Hussain Gillani for Appellant.

Muzaffar Hussain Mughal for Respondents.

2008 C L C 1391

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

ZULEKHA BIBI and 5 others----Appellants

Versus

ALI UMMAR----Respondent

Civil Appeal No.7 of 2005, decided on 3rd June, 2008.

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

----Ss. 7, 39, 47 & 48---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.21---Appointment of guardian---Removal of guardian, application for---Appeal to Shariat Court---Guardian Judge appointed respondent as guardian of person and property of minors---Application was moved- for removal of guardian on the ground that respondent had abused her trust and did not take proper care of the minors and it was further alleged that respondent had ill-treated the minors---Guardian Judge dismissed application for removal of guardian---Validity---Provisions of S.39 of Guardians and Wards Act, 1890 had to be followed which prescribed the grounds for removal of the guardian, whereas S.47 of said Act had defined appealable orders---Appeal could be presented to the Shariat Court only against order of removal of guardian under S.47 Clause (g) of Guardians and Wards Act, 1890, but no appeal had been provided by said Act when the court refused to remove a guardian---Guardian Judge having refused to remove the guardian, appeal was not tenable under the Guardians and Wards Act and was liable to be dismissed on that score alone---Even otherwise impugned order having attained finality under S.48 of the Guardians and Wards Act, 1890, could not be contested by the appellants.

Irshad begum's case 2003 YLR 3245; Mst. Robeena Fazil's case 2005 SCR 37; Mst. Zakia Khatoon's case 1998 SCR 140; Mst. Azra Bi's case 2002 MLD 1213 and Bashir Bibi's case 2005 YLR 547 ref.

AIR 1921 Pat. 166(2); AIR 1925 Oudh 260 and AIR 1948 All. 296 rel.

Syed Riaz Hussain Naqvi for Appellants.

Karamdad Khan for Respondent.

2008 C L C 1363

[Supreme Appellate Court Northern Areas]

Present: Altaf Hussain and Syed Tahir Ali Shah, JJ

SHAKOOR ALI and another----Petitioners/Appellants

Versus

ZEENAT SHAH----Respondent

C.P.L.A. No.12 of 2007, decided on 23rd April, 2008.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Northern Areas Council Legal Framework Order, 1994, Art.19-A---Petition for leave to appeal---Suit for declaration and possession---Trial Court, Appellate Court and then revisional Court had concurrently dismissed suit on the ground of limitation and for the reason that plaintiff had failed to prove his claim in the plaint---Validity---Plaintiff was duty bound to prove his claim within time---Findings arrived at by the Courts below on the specific point did not expose any misreading and non-reading of the evidence brought on record---Supreme Appellate Court, in the normal circumstances, was reluctant to interfere in concurrent findings of facts, unless some. glaring and apparent drawbacks were brought to its notice regarding any misreading or non-reading of the evidence which were overlooked by the subordinate courts---In absence of any misreading or non-reading of evidence, concurrent findings of forums below could not be interfered with---Petition for leave to appeal was dismissed by the Supreme Appellate Court in circumstances.

Malik Shafqat Wali for Petitioners/Appellants.

Muhammad Issa for Respondent.

Date of hearing: 23rd April, 2008.

2008 C L C 1708

[Supreme Appellate Court Northern Areas]

Before Qazi Ehsanullah Qureshi, CJ

HABIB-UR-REHMAN----Petitioner

Versus

SHAH DORAN----Respondent

C.P.L.A. No.9 of 2008, decided on 30th June, 2008.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.6(1)(a) & 13---Northern Areas Council Legal Framework Order, 1994, S.19-A---Non-appearance of defendant---Ex parte decree--Setting aside of---Application for---On date fixed for filing amended written statement neither defendant had appeared nor any written statement was submitted by him---Suit was decreed ex parte--Application filed by the defendant for setting aside ex parte decree having concurrently, been dismissed by the courts below, applicant filed revision before the Chief Court, which also having been dismissed, defendant had filed petition for leave to appeal---Validity---Equity and justice demanded that when an applicant would take plea regarding his absence and disappearance, court was under bounden duty to give complete opportunity to him to substantiate his plea as to why he failed to appear on the date fixed---Applicant, in circumstances must have been provided sufficient opportunity to adduce oral or documentary evidence, in order to convince and satisfy the court to his stance taken, whether the absence was wilful, intentional or due to unavoidable circumstances, beyond his control---Party would not be ousted mere on technical anomalies--Case had to be looked into from every angle within the four corners of law---Strictly in the large interest of dispensation of justice, deciding the case simply after hearing the arguments of the parties, was not a legal and justifiable approach, party who took the stand, must be provided with an opportunity to prove his case through solid evidence--If commonly question could not be resolved and the court was unable to settle the case, the solid and cogent material was to be required---In the case, the record indicated that the applicant for setting aside ex parte decree was decided by the Trial Court after hearing the argument on both sides and no opportunity was given to defendant/petitioner to prove as to why he remained absent for so long time; secondly whether he was really in the down country; if so, why he left the proceedings un-attended evidence to convince and satisfy the court---Accepting petition, ex parte decree was set aside and case was remanded to Trial Court for deciding the application for setting aside the decree after providing the opportunity of evidence to both the parties.

2001 CLC 1977; 2001 CLC 1976; PLD 1985 Kar. 691; PLD 1981 SC 21; PLD 1986 Pesh. 81; PLD 2002 Quetta 76; PLD 2002 Lah. 190; 1998 CLC 283; PLD 1981 Lah. 508; 1987 SCMR 733; 1993 SCMR 1949; 1991 MLD 975; 1994 CLC 2264; 1.984 CLC 732; 1998 CLC 824 and PLD 1975 SC 678 ref.

Muhammad Issa for Petitioner.

Ehsan Ali for Respondent.

Date of hearing; 28th May, 2008.

2008 C L C 898

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhary, C.J. and Khawaja Shahad Ahmed, J

Ch. MUHAMMAD ARIF----Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 2 others----Respondents

Civil Appeal No.61 of 2007, decided on 1st April, 2008.

(On appeal from the judgment of the Service Tribunal, dated 3-4-2007, in Service Appeal No.119 of 2007).

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

----Ss. 42(11)(12) & 44(2)(a)(1)---Appeal to Supreme Court---Writ of mandamus---Appellant working as Prosecuting Deputy Superintendent of Police was promoted to the post of Assistant Inspector General of Police on current charge basis---Promotion of appellant was ordered against the post which had to fall vacant on account of retirement of one who was working on said post---Notification of promotion of appellant, however was cancelled on the very next day on the ground that earlier notification in respect of promotion of appellant was to be issued by the Secretary Services and General Administration Department whereas same was issued from the office of Home Secretary---Validity---Record had revealed that order cancelling notification of promotion of appellant was issued without information to or approval of the Prime Minister, which could only be ordered by him, on a note filed by the subordinate functionaries---When the Prime Minister was apprised of the facts, he ordered restoration of order of promotion of appellant which amounted to cancellation of order/notification whereby promotion of appellant was cancelled---When the subordinate functionaries did not act according to the direction of Prime Minister, appellant filed writ petition which was accepted directing official functionaries to implement the order of the Prime Minister, but neither order of the Prime Minister nor the direction of the High Court was followed, executed or implemented, despite appellant continuously pursued the subordinate functionaries of the Government in this behalf---Writ of mandamus was a writ of very high nature and was used where there was no other remedy and redressal to a person or corporation commanding performance of some legal duty of a public nature---Mandamus enforces some private rights when withheld by a Public Officer and non-compliance was a contempt of court---In the present case attempt had been made to avoid implementation of the order of the High Court by procrastination for years together---Judgment recorded by the High Court had to be implemented in letter and spirit and a relief granted to the party could not be denied by procrastinating its implementation---Such was negligence of official functionaries for which appellant could not be penalized---Impugned notification was declared as illegal and ultra vires.

Jameela Pir Bukhsh and others v. Appellate Authority and others 2003 SCMR 1524; The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh (14 MIA 605=17 WR 459=19 BLRPC 294=2 Suth. PCJ 575=3 Sar. PCJ 117 ref.

Ashfaque Hussain Kiani, Advocate for Appellant.

Respondents: ex parte.

Date of hearing: 15th November, 2007.

2008 C L C 1616

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, CJ

RAB NAWAZ----Petitioner

Versus

GHULAM HUSSAIN and 9 others ----Respondents

C.P.L.A. No.110 of 2006, decided on 24th November, 2006.

(On appeal from the judgment of the High Court, dated 27-4-2006 in Civil Appeals Nos.77 and 98 of 2003).

Specific Relief Act (I of 1877)---

----S. 12---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42(12)---Suit for specific performance of contract---Alleged agreement arrived at between parties had shown that it was not agreement to sell but was a mortgage deed---Concurrent findings of both the courts below were also to the effect that said document was not an agreement to sell, but a mortgage deed---Document in question showed that the land in dispute was mortgaged through it---Once a mortgage was always a mortgage-Nothing was mentioned in that document, on the basis of which it could be said that it was an agreement to sell---Both courts below had rightly interpreted said document and rightly dismissed the suit and appeal filed by the petitioner---Neither any other legal point was raised by the counsel for the petitioner nor any point regarding misreading or non-reading of evidence was pointed out---Petition for leave to appeal was dismissed.

Muhammad Yunus Tahir for Petitioner.

Ch. Jehandad Khan for Respondents.

2008 C L C 1631

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, CJ

Sardar MUHAMMAD RAFIQUE KHAN----Petitioner

Versus

AZAD GOVERNMENT and 7 others----Respondents

Civil Miscellaneous No.1 of 2006, decided on 6th September, 2006.

(Application for restoration of P.L.A. No.17 of 2005 dismissed in default of appearance by this Court on 20-12-2005).

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

----S. 42(3)---Petition for leave to appeal---Dismissal of petition in default of appearance---Restoration of petition---Conditions---Petition for leave to appeal was dismissed by the Supreme Court in default of appearance on the date of hearing---Petitioner had not disclosed any cause of his absence before the court on date of hearing---Even if the presence of counsel for the petitioner was excused. on the ground of illness, no reason was available to excuse the absence of petitioner before the court---No justification existed to restore the petition for leave to appeal as no sufficient cause had been disclosed and proved on the side of the petitioner for its restoration---Petition dismissed in default of appearance could not be restored by the court in routine, but could be restored, if a cause beyond the control of a party was disclosed in the application moved for its restoration-No such cause having been shown in the application for restoration of petition, application for restoration of petition for leave to appeal, was rightly dismissed.

M. Tabassum Aftab Alvi for Petitioner.

Respondent No.8 in person.

2008 C L C 1641

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C. J. and Khawaja Shahad Ahmad, J

TANVEER HUSSAIN----Appellant

Versus

NANI SULTANA and 4 others----Respondents

Civil Appeal No.60 of 2005, decided on 27th November, 2006.

(On appeal from the judgment and decree of the Shariat Court, dated 13-4-2005 in Civil Appeal No.37 of 2004).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5 & Sched.---Suit for dissolution of marriage on ground of Khula---Plaintiff had claimed dissolution' of marriage, alternatively on the ground of Khula---Plaintiff had deposed that she hated the defendant and alleged that her mother had been murdered by him---F.I.R. was lodged by the plaintiff and after the trial of the case, defendant had been convicted by the Trial Court---Plaintiff had stated that she could not maintain the limits ordained by the Almighty God and she requested that her marriage be dissolved on the basis of Khula---Validity---Basic object and purpose of the marriage was the creation of perfect and happy life and such a life could only be created, if there would be a mutual love and affection, but in the present case the relations between both the parties were so strained that there was no chance of reconciliation and it could safely be said that the parties were unable to maintain the limits ordained by the Almighty God, especially so when the mother of plaintiff had been murdered by the defendant and the plaintiff had been twice attacked by the defendant---Atmosphere of love could not be created, in such circumstances---Entire circumstances of the case had revealed that rift between the parties was much serious and there was no chance of reconciliation at all---Both courts below had rightly dissolved the marriage on the basis of Khula.

Saleem Akhtar v. Judge Family Court 1999 MLD 1679 and Muhammad Yousaf v. Mst. Kaisar Jan 1984 CLC 1465 ref.

Mian Sultan Mahmood for Appellant.

Muhammad Azam Khan for Respondents.

Date of hearing: 21st November, 2006.

2008 C L C 1648

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J

Chaudhry ALI MUHAMMAD CHACHA----Appellant

Versus

AZAD GOVERNMENT and 4 others----Respondents

Civil Appeal No.4 of 2006, decided on 5th January, 2007.

(On appeal from the judgment of the High Court dated 21-11-2005 in Writ Petition No.83 of 2005).

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

----Ss. 42 & 44--Writ petition---"Aggrieved person"---Aggrieved person would not mean that he should have a strict juristic right; it was sufficient, if he would successfully establish that he had an existing right to assail the order which was illegal and which had adversely affected his rights whatever they could be or he should establish that he had some interest in the cause---For proving himself as an aggrieved person, it was not necessary that said person should have a strict juristic right, but if his interests were liable to be jeopardized or he had some interest in the matter in dispute then he could be termed as an aggrieved person---Where a person voluntarily constructed an building or raised a project while spending crores of rupees for the welfare of public at large; and after constructing building or raising project handed over it to the government and subsequently the government destroyed such project or made some changes in project due to which basic aim and object of the project was frustrated then he would be the real person, who would suffer and be termed as an "aggrieved person"---In the present case the notification were issued in 1997 whereby 100 Kanals of land was reserved and notified for the Girls College---Building was completed in the year 2000 and handed over to the government--After five years of running the college the government had reduced the land measuring 50 Kanals from the notification issued in the year 1997; it was enjoined upon the government at least to hear the appellant before reducing the land because appellant had spent his days and nights and spent huge amount for construction of the college building for the benefit of public at large---Action of the government was not justified---Impugned judgment of the High Court was set aside.

Ajaib Hussain and another v. Muhammad Fazil and 5 others 1980 CLC 198; Muhammad Islam v. Abdul Rashid and others 1993 SCR 38; Umar Din Kiani v. Azad Government and others 1995 SCR 166; Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another 1995 SCR 332 and Raja Abdul Majid and 24 others v. Syed Abdul Latif Shah and 4 others 2000 PLC (C.S.) 161 ref.

M. Reaz Alam for Appellant No.1.

Sardar Abdur Razik, Addl. A.-G. for Respondents.

Date of hearing: 15th December, 2006.

2008 C L C 1662

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J

TAHIR MAHMOOD KHAN and 13 others---Appellants

Versus

AZAD GOVERNMENT and 3 others----Respondents

Civil Appeal No.29 of 2005, decided on 21st November, 2006.

Limitation Act (IX of 1908)---

---Ss. 3 & 28---Laches, doctrine of---Application ---In applying principles of laches, it was not only the delay which had to be considered, but it was in fact the unexplained delay which had been considered fatal to attract mischief of laches----If no satisfactory explanation was furnished by the party the principle of laches could definitely be pressed into service and the party who slept over his/her right had to suffer, in that case even a delay of only few days could be fatal---Application of doctrine of laches could only be resorted to where in the estimation of the court it would be unjust to allow the remedy

either because of the conduct of the party which amounted to waiver or by his conduct and negligence he had put the other party in a situation of disadvantage---Was not the time only which had to be considered to attract the principle of laches, it was only absence of reasonable explanation which attracted application of laches---If the party was denied remedy due to procrastination by the subordinate courts or Tribunals, the superior courts could not out suit a party simply because the matter was pending for decades.

Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1985 SC (AJ&K) 93; Nazar Hussain and 4 others v. Mst. Azmat Bibi and 9 others 2004 PCr.LJ 880; Mahboob Khan v. Fazal Elahi 1995 PCr.LJ 1778; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan 1995 MLD 1350; Abdul Qayyum Khan v. The State PLD 1968 Pesh. 6; Syed Kazim Raza v. Government of Sindh and others PLD 1976 Kar. 119; Amanullah Khan v. Muhammad Hassan PLD 1994 Pesh. 211; Khan Muhammad Qureshi v. Karachi Port Trust PLD 1994 Kar. 140 and Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 ref.

Ch. Muhammad Ibrahim Zia for Appellants.

Raja Mumtaz Hussain Kiani, Addl. A.-G. and M. Noorullah Qureshi for Respondents.

Date of hearing: 31st October, 2006.

2008 C L C 1737

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C. J. and Khawaja Shahad Ahmed, J

KHALID HUSSAIN and 3 others----Appellants

Versus

Haji MUHAMMAD RAFIQUE and another----Respondents

Civil Appeal No.41 of 2006, decided on 18th March, 2008.

(On appeal from the judgment and decree of the High Court, dated 28-2-2006, in Civil Appeal No.5 of 2005).

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

---- Ss. 53-A & 54---Specific Relief Act (I of 1877), S.12---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(ii)---Appeal to Supreme Court---Suit for specific performance of agreement to sell was dismissed by the Trial Court, but Appellate Court below accepting appeal against judgment of the Trial Court, decreed suit---Validity---Suit-land was a part of Shamlat Deh which had not been partitioned---Plaintiff in circumstances could not claim more that what defendant possessed---Courts could not extend the benefit of S.53-A of the Transfer of Property Act, 1882 to a party in respect of Shamlat land which had not been partitioned---Share in Shamlat Deh could not be transferred without permission of the concerned Revenue Authorities and the possession could not be regulated unless the share of a property stood determined through partition by metes and bounds---Shamlat Deh land could not be alienated through affidavit, agreement to sell or through a compromise-decree nor could a declaration be made in respect of an owner for share in Shamlat Deh by the civil court---Transfer of Shamlat Deh through affidavit and agreement to sell, were not attended to by the High Court and the Trial Court---Trial Court had rightly dismissed the suit filed by the plaintiff by holding that transfer through affidavit could not be considered as a sale-deed in view of the codal provisions laid down in S.54 of the Transfer of Property Act, 1882, read with restriction imposed by the provisions of Shamlat Deh Act, 1966---High Court was also not justified in holding that plaintiff was entitled to benefit as visualized by S.53-A of the Transfer of Property Act, 1882---Section 53-A of Transfer of Property Act, 1882 though would protect the right of a transferee, to the extent of possession, but some of the essential conditions were that; there should be an agreement in writing; transferor had violated the terms of agreement to sell; possession of the land should be with transferee and the agreement to sell had not been frustrated.

Ghulam Sarwar and another v. The State PLD 1984 SC (AJ&K) 181; Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K) 15; Muhammad Bashir v. Haji Muhammad Siddique and 5 others PLD 1998 SC (AJ&K) 36; Mahmood Akhtar Kiani v. AJ&K Government and 3 others 1998 SCR 310 and Walayat Khan v. Abdul Khaliq and 15 others 2006 SCR 92 ref.

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

----S. 9---Specific Relief Act (I of 1877), S.12---Jurisdiction of civil court---Practice and procedure---Ordinarily the courts could not travel beyond the pleadings of the parties and enter into the controversy of jurisdiction of a civil court to hear a cause brought before it as S.9, C.P.C. conferred jurisdiction on civil courts to have exclusive jurisdiction in respect of civil matters, unless jurisdiction was barred expressly or by necessary implication---Civil courts were bound to dive deep into the matter and be careful while deciding such-like cases in which the parties by compromise, evasive denials and through unregistered deeds and documents attempted to get declaration of title or ownership through a judgment or decree of the civil court to the detriment of other owners or parties having a legal right or claim---Courts should avoid to grant a declaration in respect of possession of crown-land and Shamlat Deh without first determining the title of the owner to transfer and the exclusive possession.

Ch. Munsif Dad for Appellants.

Raja Hassan Akhtar for Respondents.

Date of hearing: 10th May, 2007.