CLC 2009 Judgments - Pakistan Legal Archive

Courts in this Volume

Election Tribunal Nwfp
Election Tribunal Punjab
Election Tribunal Sindh
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Northern Areas Chief Court
Peshawar High Court
Punjab Election Tribunal
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Supreme Court Azad Kashmir

Election Tribunal Nwfp

CLC 2009 ELECTION TRIBUNAL NWFP 1337 #

2009 C L C 1337

[N.-W.F.P. Election Tribunal]

Before Zia-ud-Din Khattak, Election Tribunal

Dr. GUL KARIM KHAN----Petitioner

Versus

JAWAD HUSSAIN and others----Respondents

Election Petition No.162 of 2008, decided on 24th November, 2008.

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

----Ss. 54, 55, 62 & 63---Election petition---Election petition was filed by the petitioner/unreturned candidate against respondent returned candidate alleging that election of respondent had been procured by corrupt and illegal practice and in violation of relevant provisions of election law---Respondent raised two preliminary objections as to the maintainability of election petition; that election petition was not signed and verified as required under subsection (3) of S.55 of Representation of the People Act, 1976 and that the document and list of witnesses were not supplied to the respondent as required by Notification, dated 16-3-1985---Consequences of non-verification had been mentioned under S.63 of Representation of the People Act, 1976, whereby election petition would be dismissed for such defect---Law itself having taken care of situation i.e. dismissal of the petition for non-verification in terms of the law, said requirement had to be regarded as of mandatory nature---Petition filed by the petitioner was not in conformity with the requirement of S.55(3) of Representation of the People Act, 1976 and non-compliance thereof had to be visited a penalty envisaged in S.63 of said Act---Petition was liable to be dismissed for that reason---Non-supply of required documents and list of witnesses was taken care of by clause (1) of Notification issued by the Election Commission of Pakistan dated 16-3-1985 which was a mandatory provision and obliged the petitioner to supply documents etc. desired to be produced by him and also attach acknowledgment receipt from the respondent; indicating that he had received not only the petition, but also the documents etc. attached thereto; and a petition which was not accompanied by those documents, would not be maintained---Failure on the part of petitioner to supply documents and the affidavits of the witnesses as desired to be produced by him, would certainly cause incurable prejudice to the defence of the respondent---Clause (1) of the Notification was not of general policy, but conferred valuable right and privilege on the respondent to know the documents relied upon by the petitioner, name of the witnesses he intended to produce and the substance of their evidence before he was called upon to file written statement---Election petition was dismissed by Election Tribunal under S.63 of Representation of the People Act, 1976.

Peter John Sahotra v. Returning Officer 1995 CLC 394; Engineer Iqbal Zafar Jhagra's case 2000 SCMR 250 and Syed Iftikhar Hussain Gillani's case 1997 CLC 1724 ref.

Muhammad Ajmal Khan and Malik Hameed Khan Afridi for Petitioner.

Abdul Aziz Kundi for Respondent No.1.

Date of hearing: 24th November, 2008.

Election Tribunal Punjab

CLC 2009 ELECTION TRIBUNAL PUNJAB 1302 #

2009 C L C 1302

[Punjab Election Tribunal]

Before Syed Asghar Haider, Election Tribunal

Lala SHAKEEL-UR-REHMAN----Petitioner

Versus

Dr. MUHAMMAD ASHRAF CHOHAN and 10 others---Respondents

C.M. No.1 of 2008 in Election Petition No.189 of 2008, decided on 17th July, 2009.

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

---Ss. 55(3) & 63-Civil Procedure (I of 1908), O.VI, R.15---Oaths Act (X of 1873), Ss.4 & 7---Election petition---Non-verification and non-attestation of election petition and its annexures as ordained by O.VI, R.15, C.P.C.---Short affidavit appended to election petition being general, vague and not in harmony with paragraphs and contents of election petition---Validity---Requirements of S.55(3) of Representation of the People Act, 1976 being mandatory must be fulfilled in letter and spirit---Verification was required to be made on oath or solemn affirmation before a person authorized to administer oath---Had affidavit been in form contemplated by O.VI, R.15, C.P.C., then same could be considered---Non-fulfilment of such requirements was fatal to cause of petitioner---Election petition was dismissed in circumstances.

Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Dost Muhammad Rahimoon v. Abdur Razzak Rahimoon and 4 others 2009 CLC 795; Imam Ali Samejo v. Ghulam Hyder Samejo and 11 others 2009 CLC 771; Engineer Jameel Ahmad Malik v. Shaukat Aziz and 6 others 2007 CLC 1192; Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others 2005 CLC 172; Muhammad Ashraf Rasool v. Ali Abbas and 13 others 2004 YLR 1742; Tariq Mahmood Bajwa v. Muhammad Afzal Sahi and others 1994 CLC 1366; Asadulah v. Asghar Ali and another 1995 CLC 150; Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and others AIR 2000 Born. 362; Jaganv Nath v. Jaswant Singh and others AIR 1954 SC 210; Peter John Sahotra v. Returning Officer and others 1995 CLC 394; S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486; Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570; Hafiz Abdur Rauf Jan v. Bashir Bilour and 6 others 2004 MLD 244; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175; Haji Amanullah Khan v. Sahibzada Tariqullah and 2 others 1995 CLC 158 and Syed Niamat Shah v. Sabir Shah 1988 CLC 1906 ref.

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 rel.

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

----Ss. 53, 55(3) & 63---Election petition---Non-compliance in terms of S.55(3) of Representation of the People Act, 1976---Petitioner while attributing such fault to Election Commission contended that election petition was required to be filed in office of Commission, which after getting corrected any fault therein was bound to forward same to Tribunal for adjudication---Validity---Non-adherence to provisions of Ss.54 & 55 of Representation of the People Act, 1976 was fatal to trial of election petition---Tribunal alone had power under S.63 of the Act to dismiss election petition for non-compliance of provisions of Ss.54 & 55 thereof.

----Ss. 55(3) & 63---Civil Procedure Code (V of 1908), O.VI; R.15---Election petition---Non-adherence to provisions of S.55(3) of Representation of the People Act, 1976---Plea of petitioner that provisions. of S.53(3) of Representation of the People Act, 1976 being enabling had to be read along with provision of O.VI, R.15, C.P.C., thus, such defect was not fatal and was condonable---Validity---Provision of O.VI, R.15, C.P.C., being procedural, while Ss.53(3) & 63 of the Act being substantive provision and part of a special statute, which had to be construed and adhered to strictly, Election Tribunal had no authority to condone such lapse, if any, which deviation had to be visited with a penalty---Plea of petitioner was repelled in circumstances.

(d) Administration of justice---

----Legal question could be raised .at any stage of proceedings.

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

----Ss. 54, 55(3) & 63---Civil Procedure (V of 1908), O.VI, R.15---Oaths Act (X of 1873), Ss.4 & 7---Election petition---Non-adherence to provisions of Ss.54 & 55 of Representation of the People Act, 1976---Plea of petitioner that respondent could not be permitted to raise such objection, which he had not raised in written statement---Validity---Election Tribunal itself was bound to look into maintainability of election petition and determine whether same was in consonance with requirements of Ss.54 & 55 of Representation of the People Act, 1976, if not then could take penal action under S.63 thereof---Legal question could be raised at any stage of proceedings---Present proceedings were at initial stage, thus, filing of such application had not caused prejudice to rights of parties---Filing of such application, though not barred, but was irrelevant and immaterial for such purpose.

Ashtar Ausaf Ali, Muzaffar Ahmad Mirza and Ms. Samia Khalid for Applicant/Respondent No.1.

Tallat Farooq Sheikh for the Petitioner.

CLC 2009 ELECTION TRIBUNAL PUNJAB 1469 #

2009 C L C 1469

[Punjab Election Tribunal]

Before Ijaz Ahmed Chaudhry, Election Tribunal

Rai IJAZ AHMAD KHAN----Petitioner

Versus

Ch. MUHAMMAD BARJEES TAHIR and 6 others----Respondents

Election Petition No.238 of 2008, decided on 20th July, 2009.

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

----Ss. 55(3) & 63---Election petition---Petitioner/unreturned candidate, being aggrieved of result of election filed election petition on various grounds including malpractices---Maintainability of said election petition was objected by the returned candidate on the ground that petition did not bear any verification at all and a separate affidavit had also not been filed by the petitioner---Counsel for the petitioner had remotely admitted that defect, but had only submitted that the petitioner should not be technically knocked out as the law favoured the disposal of cases on merits---Validity---Representation of the People Act, 1976, was a special law, Election Tribunal could not travel beyond the provisions thereof---Election petition not having been filed in compliance with the provisions of S.55(3) of Representation of the People Act, 1976, not accompanied by an affidavit would be liable to be dismissed under S.63 of the said Act as the requirements of Ss.55(3) & 63 of the Act were mandatory in nature---In the context of election laws, verification of election petition was not merely a formality and as such could not be cured later on by allowing amendment---Section 63 of Representation of the People Act, 1976, had left no option to the Election Tribunal to allow any such amendment and its absence would entail in dismissal of the election petition---Preliminary objection taken by returned candidate had prevailed as it was a case of sheer non-compliance of an imperative provisions of law and its consequence was nothing but dismissal of election petition.

Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Bashir Ahmad Bhandbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570; Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCMR 250; Sardar Zada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 and Malik Omar Aslam v. Sumaira Malik and another PLD 2007 SC 362 ref.

Faisal Maqsood Khan for Petitioner.

Peer Kaleem Khurshid Ahmad and Aftab Ahmad Virk for Respondent.

Election Tribunal Sindh

CLC 2009 ELECTION TRIBUNAL SINDH 771 #

2009 C L C 771

[Election Tribunal Sindh]

Before Justice Nadeem Azhar Siddiqi, Election Tribunal

IMAM ALI SAMEJO-Petitioner

Versus

GHULAM HYDER SAMEJO and 11 others----Respondents

C.M.A. No.91 of 2008 and Election Petition No.51 of 2008, decided on 21st February, 2009.

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

----Ss. 54, 55 & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Dismissal of petition during trial---Non-compliance of mandatory provisions of law---Verification of annexure---Procedure---Officials party to election petition---Respondent sought dismissal of election petition during its pendency on the ground that petitioner did not comply with the provisions of Ss.54 & 55 of Representation of the People Act, 1976, which were mandatory in nature---Validity---In view of O.VI, R.15, C.P.C. read with S.55(3) of Representation of the People Act, 1976, petitioner should have signed each and every document annexed by him with his petition on oath or solemn affirmation at the foot and also have stated the date and place at which it was signed---Duty had been cast upon Election Tribunal under S.63 of Representation of the People Act, 1976, to dismiss an election petition if provisions of Ss.54 & 55 of Representation of the People Act, 1976, had not been complied with---Law had nowhere mandated that officials against whom allegation of corruption was made would also be joined as respondent to election petition---Such officials were rightly not made party to election petition---Petitioner having failed to comply with provisions of law his petition was rightly dismissed.

Muhammad Ibrahim v. Muhammad Asif Sardar 1986 CLC 2050; Mian Nazir Ahmed v. Haji Irfan Ahmed and others 1993 CLC 1096; Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289; Mrs. Syeda Zahida Zaidi v. Hafiz Muhammad Taqi and others 1986 CLC 2066 and Sardar Khalid Nawaz v. Mian Manzoor Ahmed Wattoo 1987 CLC 1167 ref.

(b) Interpretation of statutes---

----Nothing can be read into a statute.

Raza Hashmi and Hassan Sabir for Petitioner.

Suresh Kumar for Respondent No.1.

Nemo for other Respondents.

CLC 2009 ELECTION TRIBUNAL SINDH 795 #

2009 C L C 795

[Election Tribunal Sindh]

Before Justice Nadeem Azhar Siddiqi, Election Tribunal

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD IQBAL and 3 others----Appellants

Versus

MUHAMMAD BOOTA and 32 others----Respondents

Civil Appeal No.175 of 2005, decided on 23rd July, 2008.

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

----Art. 100---Specific Relief Act (I of 1877), S.42---Suit for declaration---Presumption of truth regarding document of 30 years old---Plaintiffs had claimed that suit land fell in their sole ownership and occupation of their forefathers by way of private partition and alleged that they were in possession of suit land as owners and that entries of Revenue Record as owners in the name of defendant be declared illegal and liable to he corrected in favour of plaintiffs---Both the Trial Court and Appellate Court had dismissed the suit for want of evidence---Validity---Plaintiffs filed documents which were thirty years old---Said documents though were not registered documents, but they carried presumption of truth as Article 100 of Qanun-e-Shahadat, 1984 was applicable in the case as said documents were produced from proper custody in evidence---Said documents had been written on stamp papers in `Dogra Regime', containing no forgery in their recital---Document in question appeared to be genuine, there should have been no hesitation for the court to presume the said document as genuine document being 30 years old---Evidence produced by the defendants, was not supporting their claim and same could not inspire confidence---Impugned judgments concurrently passed by the courts below, were set aside and decree in favour of plaintiff was granted as prayed for in original suit.

2001 MLD 493; Muhammad Durwaish v. Haji Muhammad Hussain alias Haji, Gul and 7 others 1999 CLC 106; Muhammad Hanif and 16 others v. Muhammad Latif Khan and 10 others 2001 MLD 493 and Wazir Muhammad and 2 others v. Ali Muhammad and others PLD 1982 SC (AJ&K) 37 ref.

Abdul Latif Datt and Abdul Qayyum Ansari for Appellants.

Ch. Riaz Alam for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 502 #

2009 C L C 502

[High Court (AJ&K)]

Before Muhammad Younas Tahir, J

WAHEED AHMED and another----Appellants

Versus

MUHAMMAD SIDDIQUE and 17 others----Respondents

Civil Appeal No.244/A of 2008, decided on 23rd September, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.96, O. XXXIX, Rr. 1 & 2---Suit for declaration and perpetual injunction---Grant of status quo---Vacation of status quo---Appeal to High Court---Plaintiffs along with the plaint had moved an application for ad interim relief which was granted by the Trial Court, but same was vacated vide impugned judgment against which plaintiffs had filed appeal---Plot in dispute was in possession of last transferee who, after getting the permission from the relevant Authority constructed three storeyed building over the same---Trial Court recorded that external work of the building had been completed and only internal work/finishing was left---Agreement to sell, did not bestow the ownership or declaratory decree could not be granted on the basis of agreement to sell; however, in the present case, factual position was altogether different, only right of allotment was transferred on the basis of agreement to sell in favour of purchaser---Prima facie relevant Authority had the power to transfer the right of allotment on the basis of agreement to sell or through affidavit, because when the property was allotted by the Authority, its ownership also vested with that Authority---In the present case, proprietary rights had never been given to the allottees or transferees---Plea of the plaintiffs that agreement to sell had been revoked by their predecessor-in-interest, was a question of fact, which could only be resolved after recording the evidence which would be decided by the Trial Court in the suit at proper stage---Since the plot in dispute was in the possession of transferee, his peaceful possession could not be disturbed---Trial Court had rightly observed that temporary injunction stood vacated, if the undertaking was furnished by the transferee that he would not claim any compensation in case the suit of the plaintiff was decreed.

2001 CLC 1502; PLD 2006 SC (AJ&K) 19=2006 CLC 1872; 2005 SCR 3'68 and Kh. Taufique Qadir v. Qazi Khalil-ur-Rehman and others 2001 YLR 3263 ref.

Muhammad Reaz Alam for Appellants.

M.Y. Arvi for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 526 #

2009 C L C 526

[High Court (AJ&K)]

Before Rafiullah Sultani, J

MUHAMMAD RASHEED----Petitioner

Versus

MUHAMMAD SALEEM----Respondent

Civil Revision No.19 of 2007, decided on 30th September, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Penal Code (XLV of 1860), S.180---Suit for specific performance of agreement---Refusal of witness to sign his recorded statement---Case was fixed for the evidence of the plaintiff and Notary Public appeared before the court as witness and got recorded his statement regarding attestation of agreement in question---After recording his statement said witness refused to sign on his recorded statement due to the reason that he was not summoned by the court and that he was brought before the court by the plaintiff---Trial Court, after denial of witness to sign his statement, signed the said recorded statement of witness and merely wrote a note regarding refusal of witness in order-sheet on the recorded statement---Held, it was incumbent upon the court to order the witness to sign on his recorded statement and if he disobeyed the order of the court then the court was to adopt the procedure according to law, which had not been adopted by the Trial Court---Witness was legally bound to sign on his deposition and the Trial Curt was legally competent to order the witness to sign because the statement made by the witness had been read over to him and he had admitted it to be correct and signed by the court---On refusal to sign it, the witness would be guilty of offence under S.180, P.P.C.---Validity of the statement of witness was not doubted in any way because it had been signed by the court---Impugned order was set aside and the Trial Court was directed to summon the witness and order him to sign on his statement and in case of refusal, the court would exercise powers vested in the Court by law.

Ch. Abdus Sallam for Petitioner.

Raja Imtiaz Ahmed for Respondent.

CLC 2009 HIGH COURT AZAD KASHMIR 741 #

2009 C L C 741

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

REHMAT JAN and 9 others----Appellants

Versus

COLLECTOR LAND ACQUISITION, MANGLA DAM RAISING PROJECT CIRCLE MIRPUR----Respondent

Civil Appeals Nos. 92 and 163 of 2007, decided on 25th March, 2007.

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

----Ss. 4, 9, 11, 18, 23, 25(2), 45 & 54---Acquisition of land---Determination of compensation---Enhancement of compensation---Advocates of respondent/ Authorities, raised objection that appellants/ landowners, having not filed any objections or made any claim in pursuance of notice issued to them under S.9 of Land Acquisition Act, 1894, enhancement in compensation by the Referee Judge was violative of subsection (2) of S.25 of the Act---Validity---Objection had no substance in the light of record---No doubt under S.25(2) of Land Acquisition Act, 1894 an applicant who had refused to make a claim or had omitted without sufficient reason to make such a claim, then the amount awarded by the court would not exceed the amount awarded by the Collector, but that principle would be attracted only when it was proved that notice was served on the claimant strictly in accordance with the special procedure laid down in S.45 of Land Acquisition Act, 1894---After the service, if objections were not filed or claim was not made before the Collector, then bar contained in subsection (2) of S.25 of Land Acquisition Act, 1894 could be raised, otherwise the Referee Judge was not debarred from enhancing the compensation-Section 25(2) of the Land Acquisition Act, 1894 being of penal nature, in order to attract the same, not only the mandatory procedure relating to the service of notice visualized by S.45 of the Act, had to be complied with but due service was also, to be proved by the court.

Sushila Devi and another v. State of Bihar and others AIR 1963 Patna 469 and Land Acquisition, Collector-V, Tarbela Dam Resettlement Organization, WAPDA Ghazi District Abbottabad and others v. Mubaras Khan and 25 others 1983 CLC 1879 ref.

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

----Ss. 4 & 18---Acquisition of land---Determination of compensation---Reference to Referee Judge---Nature of reference proceedings---"Ground"---Connotation---Grounds on which objections to award were taken---Reference proceedings were of civil nature and were to be filed before the civil court---Position of the parties under S.18 of Land Acquisition Act, 1894, was akin to a plaintiff and defendant---Whatever was required to allege by a plaintiff for proving a cause of action or a defendant in order to prove his defence, must be pleaded because the parties had to lead their evidence in support of the pleaded facts and not in vacuum---Assuming for the sake of arguments that provisions of the Civil Procedure Code were not applicable stricto senso to the inquiry to be conducted by the Referee Judge under S.18(2) of Land Acquisition Act, 1894, even then it was obligatory for an interested person to state the grounds on which objections to the award were taken---Term "grounds" had been significantly used in S.18 of Land Acquisition Act, 1894 by the Legislature---Word "ground" explained.

Corpus Juris Secundum Vol. 38 at page 1084; Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 (AJ&K) 33 and C.R.M.A. Firm v. Special Collector of Pegu AIR 1930 Rang. 346 ref.

----S. 18---Reference to Referee Judge---Conditions to be fulfilled---While making application to the Collector for making the references, there must be an application made in writing to the Collector; the Collector could make a reference only on the motion of a person interested or claiming to be interested; he could not act suo motu; application must be made by any person interested in the subject-matter of the Reference; a person not interested could not make the application; person interested who made the application for the reference must not have accepted the award of the Collector, either directly or indirectly, either expressly or impliedly; application of the person interested, who had not accepted the award, must require the Collector to refer the matter mentioned in application for the determination of the Court; reference sought to be made by the applicant must embody objections relating to all or any of the matters; the measurement of the land; the amount of the compensation; persons to whom it was payable; apportionment of the compensation among the persons interested and application must be made within the period of limitation prescribed by proviso to S.18 of Land Acquisition Act, 1894.

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

----Ss. 11 & 23---Determination of market value of acquired land---Guidelines for determination of market value and assessment of compensation, detailed---While determining the market value of the acquired land, the Collector had not only to consider the present potential value of the land sought to be acquired, but also to consider its future possible use.

Fazal-ur-Rehman and others v. General Manager S.I.D.B. and another PLD 1986 SC 158; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652 and Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16 ref.

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

----Ss. 4, 9 & 18---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Non-appearance of landowners as witness in support of their reference---Effect---Advocates of respondents/Authorities had contended that none of the claimant/landowners whose land was acquired having appeared as witness in support of their reference, same was liable to be dismissed---Validity---Contention was devoid of any force as, no doubt in some cases personal appearance of the party was must to dispel the suspicions attaching to his case; but when there was sufficient evidence on the record non-appearance of the party, was not always fatal.

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

---Ss. 4, 11, 18, 23 & 54---Acquisition of land--Determination of compensation---Reference to Referee Court---Sake-deeds in respect of land adjacent to acquired land which showed higher price, had not been considered by the Collector and Referee Judge while determining market value of acquired land---Referee Judge and Collector fell in error in not appreciating said sales---Potential value and location of acquired land, compensation awarded by the Collector and enhanced by the Referee Judge, was not fair and proper; and was derogatory to the settled principles of law---Market value of the acquired land was determined by the High Court irrespective of its kind---Appellants/landowners were entitled to the same besides 15% compulsory charges already awarded to them by the Collector.

Muhammad Bashir v. Haji Muhammad Siddique ands ethers PLD 1998 SC (AJ&K) 36; Collector, Land Acquisition Peshawar and others v. Rokhan and others PLD 1995 Pesh. 78; Gobardhan Mahto v. State of Bihar AIR 1979 SC 1246; The State of Maharashtra v. Shantabai and another AIR 1980 Bombay 36; State of Bihar v. Jehal Mahto and others AIR 1964 Patna 207; Ch. Muhammad Sharif v. Afsar Textile Mills Limited and another 1985 SCMR 1181; Pakistan through Secretary Ministry of Defence Rawalpindi and another v. Nizakat Shah and 7 others 1987 CLC 1844 and Farruk Saeed Khan v. Anis-ur-Rehman Bhatti 2006 CLC 440 ref.

Ch. Muhammad Taj for Appellants.

Haji Muhammad Afzal and Mirza Zaidullah Khan for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 763 #

2009 C L C 763

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

NEELUM VALLEY DEVELOPMENT BOARD through Chairman and another----Appellants

Versus

MUHAMMAD SADDIQUE and another----Respondents

Civil Appeal No.136 of 2008, decided on 9th March, 2009.

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

----O. VII, Rr. 2, 11, O.IX, R.13, Ss.12(2) & 151---Suit for recovery of amount---Ex parte decree---Rejection of plaint---Defendants did not appear despite service and they were proceeded ex parte---Trial Court recorded ex parte evidence and decreed the suit of the plaintiffs---Defendants challenged said ex parte judgment and decree through a regular suit on the ground of fraud and deception and filed written statement and prayed for rejection of the plaint on the ground that a regular suit for setting aside an ex parte judgment and decree being not competent under S.12(2), C.P.C. the plaint was liable to be rejected under R.11, Order VII, C.P.C.---Said suit was also resisted on the ground of limitation---Plaintiffs filed another application for treating the suit as an application under S.12(2), C.P.C. and on alternative they requested that the suit could be treated as application under S.151, C.P.C.---Trial Court after hearing the parties on that application, declined the conversion of the proceedings as were requested and rejected the plaint under O.VII, R.11, C.P.C.---Validity---Court had inherent jurisdiction to convert one kind of proceedings into another and a party alleged to have obtained the decree or judgment from the court, playing fraud and deception, should not be allowed to reap the fruits of its fraud because fraud vitiated the most solemn proceedings--Appeal was accepted and application filed on behalf of the defendants/appellants herein, for treating the suit as an application under S.12(2), C.P.C. was granted---Trial Court was directed to proceed in the matter in accordance with law.

Noorulamin another v. Muhammad Hashim and 27 others 1992 SCMR 1744; Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others PLD 1983 Pesh. 87; Mst. Gul Fatima v. Husna and others 2002 YLR 1651; Ghulam Sarwar's case 1987 SCMR 1440 and Mst. Arfa Arif v. Kulsoom Naqvi PLD 2000 Kar. 31 rel.

(b) Administration of justice---

----Rules of procedure---Applicability---Scope---All the Rules of procedure were meant for dispensation of justice and to preserve the valuable rights of the parties to a suit---Courts were duty bound to apply them for the same purpose, otherwise the litigants had to suffer a lot and very purpose of law would also be frustrated---Courts had also inherent jurisdiction to convert one kind of proceedings into another; and a party alleged to have obtained the decree or judgment from the Court, playing fraud and deception, should not be allowed to reap the fruits of its fraud, because fraud would vitiate the most solemn proceedings.

Abdul Aziz Mughal for Appellants.

Mir Sharafat Hussain for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 785 #

2009 C L C 785

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

Raja MUHAMMAD BASHIR----Appellant

Versus

SHAUKAT HABIB and 5 others----Respondents

Civil Appeal No.214 of 2005, decided on 13th March, 2009.

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

----Ss. 42 & 39---Civil Procedure Code (V of 1908), Ss.12(2) & O.XXIII & R.3---Suit for declaration and cancellation of sale-deed---Challenging judgment and decree on allegation of fraud and misrepresentation---Declaratory suit was filed seeking cancellation of sale-deed regarding property in dispute---During pendency of suit, parties entered into compromise, they recorded their statements, however before decree could be passed on the basis of compromise deed, defendant submitted application in the Trial Court alleging that fraud had been committed on him---Defendant sought relief that compromise deed be annulled and no decree be passed on the basis of the same---Trial Court framed issue on the basis of said application and plaintiffs feeling aggrieved by the order of the Trial Court, filed in appeal before the Appellate Court, which was dismissed---Finally Supreme Court accepted appeal of the plaintiffs observing that after recording a compromise, Trial Court was bound to pass a decree in view of compromise as envisaged under O.XXIII, R.3, C.P.C.---While controversy was pending in the Supreme Court, defendant filed declaratory suit with prayer for possession of suit land---Trial Court rejected plaint in view of S.12(2), C.P.C.---Validity---Case of the plaintiffs was that the amendment in S.12, C.P.C. was effective retrospectively and the Trial Court had committed no illegality while rejecting plaint of the defendant---Amendment in S.12, C.P.C. providing a remedy to challenge a decree or order passed on the basis of fraud and misrepresentation, had no retrospective effect; and it would apply from the date of its coming into force---Suits filed before the date of amendment or date of adaption in Azad Kashmir were not hit by that amendment---When the suit was pending before the Trial Court prior to amendment, it could even be treated as application under S.12(2), C.P.C. in order to meet the ends of justice and it was unjustified under the law to throw the plaint/case of defendant out of the court on the basis of a technicality---Procedure while entertaining an application under S.12(2), C.P.C. was the same as provided for trial of suit---Rejection of suit merely on the basis that the word "plaint" had been mentioned in plea of application, was in no way justified under law nor it was in the interest of justice to reject the plaint---Applicant's suit was competent to be decided on its merits---Impugned judgment and decree was set aside and case was remanded to be decided on merits.

Fateh Muhammad's case 1981 CLC 1130; Adnan Afzal's case PLD 1969 SC 187; 1981 CLC 1248 and 1992 SCMR 1744 ref.

(b) Administration of justice---

----All laws, rules and regulations, were meant for the advancement of justice and not to suppress the remedy---Courts always leaned in favour of adjudication on merits, rather than resorting to technicality.

Muhammad Yaqoob Khan Mughal for Appellant.

Sardar Karam Dad Khan for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 803 #

2009 C L C 803

[High Court (AJ&K)]

Before Rafiullah Sultani, J

TARIQ MIR----Petitioner

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 6 others----Respondents

Writ Petition No. 1 56 of 2006, decided on 29th January, 2009.

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

----S. 44---Writ petition---Contractual rights---Contract was executed by the department without inviting tenders and calling application from the aspirants and mode which was adopted to award the contract had not. been recognized in the eye of law---Said contract was executed by the functionary of the department one day after his transfer---Validity---Said functionary was not legally authorized to enter into the contract with private person and had no power to make any contract without permission of higher officials of his department; and he was not granted any permission to make such contract---Contract executed was illegal and any type of further proceedings by officials of the department to legalize the contract, had no legal sanctity in the eye of law---Objection that writ petition could not lie regarding contractual rights, was. not maintainable because High Court, in exercise of its constitutional jurisdiction had power to examine the validity of the order in respect to grant a contract and could strike down the same on the basis of mala fide, unfairness and lack of transparency provided that challenge was promptly made and question of fact was not involved-No question of fact was involved in the case and the petitioner had not filed writ petition to enforce a contract---Writ could lie, if the act was without lawful authority and law had been violated which ingredients were available in the present case---Mala fide conduct of the department was apparent on the record and it could not be said that petitioner was not aggrieved person in the eye of law---Writ petition was accepted and the agreement entered by the department and its approval were contrary to law and having no legal force and were cancelled by High Court, in circumstances.

PLD 2006 Kar. 629; PLD 1999 Lah. 313; PLD 1962 SC 108; 1995 CLC 1662; Messrs Airport Support Services v. The Airport Manager Quaid-i-Azam International Airport, Karachi 1998 SCMR 2228; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Nawab Khan v. Azad Government and 6 others 1999 CLC 559; Ch. Muhammad Mahmood v. Aurangzeb and 6 others 1997 CLC 1708; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Haji Muhammad Ashraf and another v. Development Authority Muzaffarabad, through its Chairman and another 1995 CLC 596 ref.

Sardar Muhammad Jamil Sadiq for Petitioner.

Ch. Muhammad Riaz Tabassum for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 923 #

2009 C L C 923

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal and Rafi Ullah Sultani, JJ

Syed SARFRAZ IHUSSAIN NAQVI----Petitioner

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 6 others----Respondents

Writ Petition No.372 of 2007, decided on 13th May, 2008.

(a) Azad Jammu and Kashmir Red Crescent Branch (Extension of .Jurisdiction, Scope and Functions) (Amendment) Ordinance (XV of 2007)---

----Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.31, 41 & 44---Vires of legislation---Power of Council and the Assembly to make laws---Power of the President to promulgate the Ordinance---Petitioner had called in question the vires of (Azad Jammu and Kashmir Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) (Amendment) Ordinance, 2007 for having been promulgated without Legislative competence and in violation of subsection (1), clauses (a), (b), (c) of S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Contention of counsel for the petitioner that neither the Legislative Assembly nor the Council or the President had the power to legislate in order to assume the control of Pakistan Red Crescent Society, AJ&K Branch, because same stood excluded from their Legislative competence in view of clauses (a)(d) of subsection (3) of S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was repelled being devoid of any force---Under S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974, both the Council and the Assembly were vested with the power to enact law in respect of the matters enumerated in clauses (a), (b) & (c) of subsection (1) of S.31 of the Interim Constitution Act, 1974---Under subsection (2) of S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974, Council was vested with the exclusive power to enact law with respect to all the matters enumerated in the Council Legislative List, set out in the Third Schedule---When Assembly was not in session, law could be enacted through promulgation of an Ordinance by the President, if he was satisfied that circumstances existed which had rendered it necessary to take immediate action in that behalf---Petition was dismissed, in circumstances.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Lt.-Gen. (Retd.) Jamshaid Gulzar Chariman F.P.S.C., Islamabad and 4 others v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Pak Secretariat Islamabad and 2 others 2006 YLR 425; Ch. Muhammad Yusuf v. The State and 4 others 2002 CLC 1130; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Ch. Shabbir Hussain v. Registrar Lahore High Court, Lahore PLD 2004 SC 191; Muzaffar Hussain v. The Superintendent of Police District Sialkot 2002 PLC (C.S.) 442 and Ch. Muhammad Yousuf and others v. Azad Govt. through Chief Secretary Muzaffarabad and others PLD 2001 HC(AJ&K) 60 ref.

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

----Ss. 31, 41 & 44---Powers of the Council, Assembly and the President to make law and to promulgate Ordinance---Restriction on---Powers of the Council, Assembly as well as of the President under S.41 of Azad Jammu and Kashmir Interim Constitution Act, 1974, were not unlimited, rather were subject to the restrictions embodied in subsection (3) of S.31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Under subsection (3) of said Interim Act, 1974, both the Council and Legislative Assembly could not legislate for the matters enumerated in clauses (a) to (d) of said subsection (3) thereof---Council or Assembly were constitutionally barred from enacting any law repugnant to the teaching and requirements of Islam as set out in the Holy Quran and Sunnah, as was commanded under S.31(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974; beyond that no restriction could be placed on the Legislative power of the Council or the Assembly to enact in their constitutionally allotted sphere.

----S. 2---Azad Jammu and Kashmir Red Crescent Branch (Extension of Jurisdiction, Scope and Functions) (Amendment) Ordinance (XV of 2007), S.2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Powers of the Legislative Assembly and Council---Delegation of powers to functionaries of Pakistan Red Crescent Society functioning in Pakistan---Legislative Assembly and the Azad Jammu and Kashmir Council could not delegate their powers or functions to the functionaries of the Pakistan Red Crescent Society, functioning in Pakistan---Lacuna in Act XV of 2001 stood cured by promulgation of Ordinance XV of 2007, vires of which had been called in question by the petitioner---Amendment in Act XV of 2001 by Ordinance XV of 2007 was not ultra vires of Constitution, rather it was necessary, because while extending the jurisdiction, scope and functions of the Pakistan Red Crescent Society through Act XV of 2001, the functionaries, functioning in Pakistan were also allowed to function in Azad Jammu and Kashmir which was not permissible under Constitutional Act.

Jabeer Hotel's case 2001 PLC (C.S.) 11; 2001 YLR 1687; Chairman WAPDA v. Jamil Ahmed 1993 SCMR 346 and Zia Ullah Khan Niazi's case 2004 PLC (C.S.) 180 ref.

(d) Legislation---

----Attribution of mala fide to Legislation---Mala fide could not be attributed to the Legislature and that too in absence of any strong proof.

Ch. Muhammad Yousaf v. The State and 4 others 2002 CLC 1130 ref.

Ashfaq Hussain Kiani for Petitioner assisted by Miss Aamira Batool for Petitioner.

Raja Gul Majeed Khan, Advocate-General and M. Tabbassum Aftab Alvi for Respondents.

CLC 2009 HIGH COURT AZAD KASHMIR 1045 #

2009 C L C 1045

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

[Islamabad]

Before Muhammad Munir Peracha, J

LIAQAT ALI----Appellant

Versus

ZARAFAT ALI through Special Attorney and 2 others----Respondents

F.A.O. No.85 of 2007, decided on 13th November, 2008.

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

----O. VIII, R.10, O.XLIII, R.1(b) & S.115---Failure to file written statement---Order of Trial Court striking off defence of defendant and fixing case for ex parse evidence of plaintiff---Appeal against such order---Maintainability---No judgment had been passed against defendant---Appeal was not competent---High Court treated appeal as revision petition in circumstances.

Kiran Arif Mian v. Kinza Khalid PLD 2008 Isl. 11 fol.

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

----O. VIII, Rr.1, 9 & 10---Written statement, failure to file---Effect---Provision of O.VIII, R.10, C.P.C. could be invoked only when Trial Court through a speaking order had required defendant to file written statement, but he failed to do so---When Trial Court never required defendant to file written statement, but he, despite availing adjournments, did not file same in court, then provision of O.VIII, R.10, C.P.C. could not be invoked against him---Principles.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; Muhammad Younas v. Muhammad Iqbal and 11 others 2004 CLC 1198; The Secretary; Board of Revenue Punjab; Lahore and another v. Khalid Ahmed Khan 1991 SCMR 2527; WAK Orient Power and Light Ltd. v. Westinghouse Electric Corporation and others 2002 SCMR 1954; Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others 2002 CLC 1085; Muhammad Waris v. Addl. District Judge and 2 others 2008 CLC 580; Wak Orient Power and Light Limited v. Westinghouse Electric Corporation and others 2002 SCMR 1954; Col.(Retd.) Ayub Ali Rana v. Dr. Carlites Pune and another PLD 2002 SC 630; Messrs Allied Group Ventures Ltd. v. Quality Vision (Pvt.) Limited and others PLD 2002 Lahore 274; Manager; Forest Operation Malakand Circle v. Muhammad Zaman and others PLD 1992 Peshawar 173; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22; Muhammad Munshi v. Shahamand 1981 CLC 1184; Addl. Chief Engineer Army; Okara Cantt. v. Messrs Nasim Co. (Pvt.) Ltd. 1991 CLC 1476; Azad Hussain v. Haji Muhammad Hussain 1994 CLC 1817; Muhammad Salim v. Abdul Shakoor 1994 CLC 1911; Muhammad Fayyaz Butt v. Metropolitan Corporation Ltd.; Lahore 1997 CLC 55 and Lahore Development Authority v. Haji Abdul Qadoos 2004 MLD 923 ref.

1987 SCMR 1370 rel.

----O. VIII, R.1 [as amended in Punjab]---Non-filing of written statement by defendant despite having availed 4/5 opportunities---Effect---Defendant was not entitled to more than two adjournments for filing written statement---Defendant was not permitted to file written statement in circumstances.

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

----O. VIII, Rr.1, 2 & 6---Qanun-e-Shahadat (10 of 1984), Arts.31 & 133---Written statement, non-filing of---Effect---Non-filing of written statement by defendant would not amount to his admission of facts stated in plaint---Defendant, in absence of written statement, could not lead evidence either to prove facts not arising out of plaint or to claim set off against plaintiff---Defendant, in absence of written statement, could cross-examine plaintiff's witnesses and lead evidence to disprove facts stated in plaint.

Muhammad Asad Rajpoot for Appellant.

Shehzad Shaukat and Mian Ishtiaq Hussain for Respondents.

Date of hearing: 28th October, 2008.

CLC 2009 ISLAMABAD 507 #

2009 C L C 507

[Islamabad]

Before Raja Saeed Akram Khan, J

SAJID SOHAIL----Petitioner

Versus

VICE-CHANCELLOR, QUAID-E-AZAM UNIVERSITY, ISLAMABAD-Respondent

Writ Petition No.23 of 2008, decided on 14th March, 2008.

Quaid-i-Azam University Act (XXVIII of 1973)---

----Ss. 22(r), 13(3) & 34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Termination of service---Petitioner was appointed as Registrar in the University in pursuance of the decision made by the Syndicate, who was the competent authority---Services of the petitioner were terminated by the Vice-Chancellor of the University, without assigning any reason---Validity---No power was vested in the Vice-Chancellor through S.13(3) of Quaid-i-Azam University Act, 1973 for termination of services of a person who fell in category-1 of the Statute, whose appointing authority was Syndicate---Appointment of the petitioner was made in pursuance of the order of the Syndicate which was only competent authority---High Court observed that instead of adopting proper course to place the matter before the competent authority, Vice-Chancellor himself tried to exercise powers of the competent authority---Question of probation and regularization, would not arise where the powers had not been rightly exercised---Order passed by the Vice-Chancellor was set aside declaring same to be illegal, without lawful authority---Vice-Chancellor was directed to place the matter before the Syndicate within specified period.

1993 SCMR 17 (95); 1994 SCMR 1140; 1997 SCMR 190; 1973 PLD 236; PLD 1976 S,C 208; 1999 SCMR 2744/2189; 1991 SCMR 2330; 2007 SCMR 152; 2007 SCMR 1091; 2007 SCMR 1759; 1999 SCMR 1072; 2001 SCMR 209; 2001 SCMR 777; 2001 SCMR 149; 2002 SCMR 1632; PLD 2002 Kar. 131; 1994 PLD 1048(sic); 2007 SCMR 1759 and 2007 SCMR 1091; 2001 SCMR 125; 1999 SCMR 95; 2003 SCMR 1493; 1990 SCMR 1404; PLD 1974 SC 146; 2003 PLC (C.S.) 255; 2001 SCMR 125; 2005 SCMR 1650; 2002 SCMR 1632 and 2001 SCMR 209 ref.

Ch. Afrasiab Khan for Petitioner.

Barrister M. Shonib Razzaq for Respondent.

CLC 2009 ISLAMABAD 522 #

2009 C L C 522

[Islamabad]

Before Sardar Muhammad Aslam, C.J.

Commander (R.) M. KHALIL ----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law Government of Pakistan, Islamabad and 3 others----Respondents

Writ Petition No.2276 of 2001, heard on 23rd December, 2008.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of plot by Development Authority---Conversion charges for the use of plot for some other purpose---Allegation of discrimination in charges by the Development Authority---Contention of the petitioner was that findings of Wafaqi Mohtasib could not have been set-at-naught in representation through a mechanical order by the President of Pakistan, deficient of reasons in its support---Target date for payment of conversion charges was 12-11-1997 when Wafaqi Mohtasib, in its finding, allowed change of use of plot to educational purpose---No criteria was available with the Development Authority on the target date, calling for payment of conversion charges at a particular rate---No rule or regulation was available on the subject till the framing of Land Disposal Regulations, 2005---Validity---Development Authority being a public functionary, could not fix the rate at its own discretion in an arbitrary manner---Granting conversion charges at the rate of Rs.38 per sq yard to a government department and refusing the same to the petitioner/citizen was a clear discrimination to the citizen qua the government department---Citizen and Government were to be treated at par---No discrimination was permissible in law---Conclusion of the Wafaqi Mohtasib performing duty in a quasi judicial manner could not be. set-at-naught in representation by the President of Pakistan through a mechanical order, deficient of reasons in its support---High Court allowed the constitutional petition, order of the President was set aside and Development Authority was directed to take conversion charges at the rate of Rs.38/- per. Sq Yard and allow the petitioner to use the plot for educational purpose.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, .Islamabad v. Muhammad Tariq Prizada and others, 1999 SCMR 2189 fol.

Raja M. Afsar for Petitioner.

Barrister Masroor Shah for Respondent No.4.

CLC 2009 ISLAMABAD 542 #

2009 C L C 542

[Islamabad]

Before Sardar Muhammad Aslam, CJ

Mst. GULZAR BIBI and 2 others----Petitioners

Versus

CHIEF COMMISSIONER, I.C.T. and 19 others----Respondents

Writ Petition No.1717 of 2006, decided on 26th January, 2009.

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

----Ss. 45 & 172---Record of rights, correction of---Jurisdiction of Revenue Court---Scope---Revenue Court could direct correction of an entry in revenue or settlement record either new or old and long standing, if not supported by any decree, order or judgment of Court and varied in violation of S.45 of West Pakistan Land Revenue Act, 1967.

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

----Ss. 45 & 172---Constitution of Pakistan (1973), Art.199---Constitutional petition---Entries in revenue record being result of interpolation, fraud and not backed by any order of Court or Revenue Officer---Order of District Collector for correction of such entries upheld by Commissioner, but set aside by Commissioner in revisional jurisdiction directing parties to seek remedy from Civil Court---Validity---Such concurrent orders were not amenable to revisional jurisdiction in absence of any mistake apparent on face of record---Original revenue record clearly indicated interpolation and its tampering with---Beneficiaries of such record were contesting respondents, whose names had been entered against some Khewats for first time, while their shares in some Khewats had been increased without acquisition of any title document---No judgment or order or proof regarding acquisition of ownership was available with respondents in support of entries made in their favour---Such entries made in disregard to provision of S.45 of West Pakistan Land Revenue Act, 1967 by practising fraud could be corrected as and when brought to notice of Revenue Officer---Driving parties to civil litigation which was spread over decades would not be in interest of justice---In the present case no complicated question of fact calling for evidence was involved---Commissioner had closed his eyes to factual position and went for technical knock out---High Court set aside impugned order and restored orders passed by District Collector and Commissioner.

Fateh Muhammad v. Maula Bakhsh PLD 1966 W.P.(Rev.) 80 ; Ch. Fateh Khan v. Mst. Shehzad Begum PLD 1967 W.P. (Rev.)9; Dilmir and others v. Member, Board of Revenue, Punjab, Lahore and 9 others PLD 1991 Lah. 314; Muhammad Tufail v. Member (Colonies), Board of Revenue and others 1992 SCMR 1334; Iqbal Khan through Legal Heirs and 2 others v. Muhammad Ilyas and 5 others 1998 CLC 1216; Memorandum No.583-85 468/Lahore, Board of Revenue, Punjab, Lahore, Muhammad Abdullah and 5 others v. Shehzad Hussain and 8 others 2002 YLR 2249; Himat alias Allah Deya v. Rehmat 2004 YLR 2992; Mst. Gulpari alias Gulbaro v. Zarin Khan and others PLD 1994 Peshawar 249; Muhammad Ishaq, v. Member (R.) Board of Revenue; Punjab, Lahore and 18 others; 1994 MLD 2254; Anjum Mahmood and 5 others v. Rizwan Ahmad and 7 others 2006 CLC 876; Mst. Surrayia Bano v. Mst. Nazia Bano and others 1996 CLC 1690; Chowdhury Tanvir Ahmad Siddiky v. The Province of East Pakistan and others PLD 1968 SC 185 and Nemat Ali and another v. Malik Habib Ullah and others 2004 SCMR 604 ref.

Dr. G.S. Khan for petitioner No.1.

Raja Anwar-ul-Haq for Petitioner No.2.

Shamshadullah Cheema for Petitioner No.3.

Raja M. Aleem Khan Abbasi, Standing counsel.

Raja Inam Amin Minhas for Respondents Nos.1 to 3.

Ch. Afrasiab Khan for Respondents Nos.6 to 20.

Syed Abdul Aziz Shah, Advocate.

Syed Wajid Ali Gillani, Advocate.

Abdul Zahoor, Naib Tehsildar, Islamabad.

Zakir Patwari Revenue Estate, Jhangi Syedan, Islamabad.

Date of hearing: 19th December, 2008.

Karachi High Court Sindh

CLC 2009 KARACHI HIGH COURT SINDH 12 #

2009 C L C 12

[Karachi]

Before Khilji Arif Hussain and Bin Yamin, JJ

KARACHI TRANSPORT CORPORATION through Chairman and 2 others----Appellants

Versus

SHOUKAT HAYAT and 4 others----Respondents

H.C.A. No.297 of 2002, decided on 10th October, 2008.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Fatal accident---Suit for recovery of compensation---Plaintiffs, who were legal heirs of deceased who died in accident, filed suit for recovery of amount of compensation against defendant---Case of the plaintiffs was that bus owned by defendant while being driven by his driver in a rash and negligent manner crushed predecessor of the plaintiffs aged about 39 years and at the time of death was earning Rs.2408 per month---Plaintiffs by producing eye-witness had proved that accident was caused due to rash and negligent driving of the driver, which was owned by defendant---Another person had taken over assets and liabilities of owner of the bus in the year 1997, whereas accident took place in the year 1988---Plaintiffs in circumstances had filed suit much before the assets and liabilities were taken over by the said person---No clause existed in the agreement, whereby assets and liabilities were taken over by the other person to the effect that he had not taken over any liability and/or that he was not answerable for the liability of defendant (owner of the bus) prior to date of taking over all his assets---In absence of such plea in written statement and document on record said person could not avoid liability of defendant---Defendant had failed to point out any evidence on record contrary to findings recorded by the Single Judge about the average income of the deceased to call for any interference---Appeal was dismissed.

Punjab Road Transport Corporation v. Zahida Afzal and others 2004 SCMR 207; .Iftikhar Hussain v. Karachi Electric Supply Corporation PLD 1957 Kar. 552; Bakhtawar Sheikh v. Karachi Transport Corporation 2004 MLD 528 and Karachi Electric Supply Corporation v. Aisha Kanwal and others 2006 MLD 697 ref.

Adnan Karim, A.A.-G. for Appellants.

Nasir Maqsood for Respondents.

Date of hearing: 15th September, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 21 #

2009 C L C 21

[Karachi]

Before Munib Ahmed Khan and Syed Pir Ali Shah, JJ

Mrs. SHAHIDA ZOHRA----Petitioner

Versus

PROVINCIAL GOVERNMENT OF SINDH through Secretary (LU) Board of Revenue, Sindh and 4 others----Respondents

C.P.No.D-2059 of 2007, decided on 26th August 2008.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotted land---Petitioner had claimed land in dispute on the ground that said land was purchased by her from vendor vide registered sale-deed, while the vendor had purchased said land from its previous owner---Proper sale-deed was duly registered between the petitioner and vendor and Form-II was also issued from time to time In the name of vendor and said previous owner at the relevant time---Counsel for respondent had contended that land in dispute was cancelled and that said cancellation order passed by the Deputy Commissioner still stood intact---When registered sale-deed and Form-II, duly issued from time to time were available with the Mukhtiarkar then how Form-II had been issued and why the petitioner was not intimated on first occasion---When there was a registered sale-deed and Form-II duly stamped by Taluka Mukhtiarkar, case of the petitioner was to be ascertained by the Member Board of Revenue, as to whether her case fell within the purview of cancellation order or not and if the petitioner had acquired the plot in dispute legally and properly, then she would not be affected by the cancellation order---Constitutional petition was disposed of accordingly.

Muhammad Sarfraz Sulehry for Petitioner.

Muhammad Ahmad Pirzada for Member (LU), Board of Revenue along with Manzoor Ali, Mukhtiarkar, Mirpur Sakro, District Thatta.

Miran Muhammad Shah, A.A.-G.

CLC 2009 KARACHI HIGH COURT SINDH 27 #

2009 C L C 27

[Karachi]

Before Nadeem Azhar Siddiqi, J

ECOTEC C.N.G. (PVT.) LTD.----Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY and another----Defendants

C.M.A. No.4250 of 2007 in Suit No.903 of 1997, decided on 18th August, 2008.

Civil Procedure Code (V of 1908)---

----S. 152---Correction in the order---Scope---Plaintiff had prayed for correction in the order by which the suit was decreed against one defendant and dismissed against the other---Plea raised was that the other defendant was a pro forma party and the main relief was sought against the first defendant---Validity---By invoking S.152, C.P.C. clerical or arithmetical mistakes in a judgment, decree or order or error arising therein from any accidental slip or omission could be corrected by the Court---Provisions of S.152, C.P.C. were confined to the correction of the types or errors mentioned therein and that where the order is deliberate and represented the intention of the Court, it could not be said to be mistaken---Order for dismissal of suit against first defendant was passed at the request of the plaintiff and there appeared to be no error and mistake in dismissing the suit against said defendant---High Court dismissed the application in circumstances.

Arif Khan for Plaintiff.

Masood Khan Ghori for Defendant No.2.

CLC 2009 KARACHI HIGH COURT SINDH 32 #

2009 C L C 32

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABRAR ARMED----Plaintiff

Versus

Sheikh ZAHOOR AHMED----Defendant

Suit No.1642 of 2001, decided on 26th August, 2008.

Civil Procedure Code (V of 1908)---

----S. 20 & O.XXXVII, R.1---Recovery of money---Dishonoured cheque---Territorial jurisdiction---Place of cause of action---After filing written statement, defendant neither appeared before the court nor produced any evidence in support of his averments made in written statement---One of the objections raised by defendant in his written statement was with regard to territorial jurisdiction of the Trial Court---Contention of defendant was that as transaction took place at place "M", therefore, suit at place "K" was not maintainable---Plaintiff produced original cheque and its memorandum in support of his claim---Validity---Suit was based on negotiable instrument and presumption was that the same was against consideration and defendant did not come forward to rebut the presumption---Plaintiff as well as contents of affidavit-in-evidence had gone unrebutted and unchallenged---Though defendant had filed written statement but the same could not be considered as defendant did not lead any evidence---In absence of any evidence pleas relied upon by defendant in his written statement could not be considered---As the cheque was dishonoured at place "K" and the cause of action had accrued at place "K" therefore, according to S.20 C.P.C. suit could be filed where defendant resided or cause of action had arisen---Suit was decreed accordingly.

Aminuddin Ansari for Plaintiff.

Nemo for Defendant.

Date of hearing: 8th August, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 39 #

2009 C L C 39

[Karachi]

Before Mrs. Qaiser Iqbal, J

Dr. KHUSRO KAMAL ZIA----Plaintiff

Versus

Dr. ZEHRA----Defendant

Suit No.154 of 2007, decided on 12the February, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Arts.91 & 120---Suit for declaration---Limitation---Suit was objected to on the ground of limitation---Objection was that suit was barred under Art.91 of Limitation Act, 1908 as same was filed after lapse of three years---Said objection was resisted by the plaintiff on the ground that documents pertaining to the suit property having been sought to be declared as Benamidar, Art.120 of Limitation Act, 1908 would be applicable in the case---Validity---Limitation being a mixed question of law and fact, required evidence---Objection was ruled out by High Court subject to all just exceptions and case was directed to be admitted for hearing the objection.

Nazir Ahmed Serang v. Benoya Bhusan Saha PLD 1957 Dacca 575 and Abdul Rashid Velmi v. Habib-ur-Rehman and 2 others 1995 MLD 397 ref.

Syed Ehsan Raza for Plaintiff.

CLC 2009 KARACHI HIGH COURT SINDH 42 #

2009 C L C 42

[Karachi]

Before Nadeem Azhar Siddiqi, J

SIKANDAR ABDUL KARIM----Plaintiff

Versus

Mst. QAMAR JAHAN and 11 others----Defendants

Suit No.966 of 2007, decided on 17th September, 2008.

Civil Procedure Code (V of 1908)---

----O. XL, R.1---Receiver, appointment of---Principles---Rule 1 of O.XL, C.P.C. authorized the court to appoint a receiver wherever it appeared to be just and convenient to do so---Under said provision of law appointment of receiver had been left to the discretion of the court---principles for appointment of receiver were that discretion should be used sparingly and should be exercised to safeguard the interest of all the parties as well as property which was subject-matter of the litigation and possession of person bona fide in occupation of property should not be disturbed---Before passing order under R.I of O.XL, C.P.C., the applicant had to make out a prima facie case that he owned the property in question or had a substantial interest in the same which required probation and preservation pending final determination of the rights of the parties in the suit---Receiver could not be appointed because of expected waste, unless some proof of waste and mismanagement of the property or apprehension of irreparable loss and injury was available---Mere allegation in that respect in the application was not sufficient to pass such harsh order to deprive the bona fide occupant from the possession of the property---Where no case for appointment of receiver was made out, frivolous application moved by the applicant in that respect just to waste the precious time of the court, was dismissed with costs.

1999 SCMR 2215 ref.

Abid Feroz for Plaintiff.

Kauser Amin for Defendants Nos.1 to 5.

Abdul Kareem Siddiqui for Defendants Nos.6 and 7.

Khizer Asker Zaidi, Asstt. A.-G. for Defendants Nos.9 and 11.

Nemo for Defendant No.8.

CLC 2009 KARACHI HIGH COURT SINDH 56 #

2009 C L C 56

[Karachi]

Before Khilji Arif Hussain and Bin Yamin, JJ

Mst. SALMA AFTAB----Appellant

Versus

Shaikh MUHAMMAD TUFAIL and 5 others----Respondents

High Court Appeal No.175 of 2007, decided on 9th September, 2008.

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

----S. 5---Authority of arbitrator, assailing of---Principle---Authority of arbitrator, once appointed can be revoked on an application filed by aggrieved party under S.5 of Arbitration Act, 1940, or by an appeal against order of appointment of arbitrator, if arbitrator has been appointed by court in suit---Objection to appointment of arbitrator cannot be entertained at the time of appeal.

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

----Ss. 33 & 37---Limitation Act (IX of 1908), S.5---Filing of objection---Condonation of delay--Scope---In appropriate cases, when sufficient cause is made out, the principle of S.5 of Limitation Act, 1908, can be attracted and delay in filing the same can be condoned.

Thal Development Authority v. Nisar Ahmed Qureshi PLD 1962 Lah. 830 and Messrs Valika Woollen Mills Ltd. v. D.P. (Army) Karachi 1984 CLC 2515 dissented from.

----Ss.5 & 33---Limitation Act (IX of 1908), S.5---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Arbitration---Object and scope---Filing of objections---Limitation---Condonation of delay---Misunderstanding of law---Mistake of advocate---Appellant did not file objections within a period of thirty days as provided in law and sought condonation of delay on the ground that her advocate had misunderstood the law---Advocate of appellant in affidavit stated that he in good faith waited till the service of notice held good, to file application under S.33 of Arbitration Act, 1940, though the same had been drawn by him many days before the date of filing---Validity---Such reason given for condonation of delay could not be termed as sufficient reason to condone the delay---Objection to set aside the award ought to have been filed within thirty days from the date of service or the date on which information of filing of award was received by party intended to file objection/application to set aside an award---Arbitration was a settlement of controversies by one or more persons, known as arbitrators appointed by parties with an object to curtail period of litigation---Application under S.5 of Limitation Act, 1908, to see whether there was sufficient cause for condonation of delay, the very object for which dispute was referred for arbitration, must be kept in mind--If due to any omission or negligence on the part of anyone same was not filed in time, the delay could be condoned only if sufficient cause was given for not filing objection in time, explaining each day---High Court declined to condone the delay in filing of appeal---Intra-court appeal was dismissed in limine.

Haji Amir Bux v. Sono Khan PLD 1979 Kar. 45; Suba Khan v. Nazar Muhammad and another PLD 1981 Lah. 620 and Allay Wasay and another v. Muhammad Shakir PLD 1958 (W.P.) Lah. 959 ref.

Syed Shoa-un-Nabi for Appellant.

Muhammad Saleem Mangrio for Respondent.

Masood Noorani, Addl. A.-G. Sindh.

CLC 2009 KARACHI HIGH COURT SINDH 67 #

2009 C L C 67

[Karachi]

Before Nadeem Azhar Siddiqi, J

SANESRA STAR SCREEN INDUSTRIES through Partner----Plaintiff

Versus

JAMIA MASJID EID GAH through Secretary-General Trustee and another ----Defendants

Suit No.1217 of 2003 and C.M.As. Nos.2476 of 2004 and 1650 of 2007, decided on 16th September, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Rejecting of plaint---Res-judicata, principle of---Applicability---Plea raised by defendant was that earlier a suit between same parties on same cause of action was decided and the judgment had attained finality, therefore, suit was liable to be rejected---Validity---Doctrine of resjudicata was of universal application and based on principle that public policy demanded that one cause should not be tried for second time between same parties and there must be an end to litigation---Court was prohibited under S.11 C.P.C. from trying any suit or issue in which matter directly and substantially in former suit between same parties or between parties under whom they or any of them claimed, litigated under same title in Court of competent jurisdiction to try such subsequent suit or suit in which such issue had been subsequently raised and had been heard and finally decided by such competent Court---As the suit was filed with same prayer on same subject-matter and against same parties and since judgment passed in earlier suit was never assailed, it attained finality and subsequent suit was hit by principle of res judicata---High Court rejected the plaint under O.VII, R.11 C.P.C.---Application was allowed in circumstances.

K.A. Wahab for Plaintiff.

Nazar Akber for Defendant No.1.

Muqeem Alam for Defendant No.2.

CLC 2009 KARACHI HIGH COURT SINDH 76 #

2009 C L C 76

[Karachi]

Before Mrs. Yasmin Abbasey and Bin Yamin, JJ

Justice (Retired) Professor ABDUL WAHEED SIDDIQUI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law, Parliamentary affairs and Human Rights, Islamabad and 2 others----Respondents

C.P. No.D-1201 of 2008, decided on 1st July, 2008.

Constitution of Pakistan (1973)---

----Arts. 199 & 205---High Court Judges (Leave, Pension and Privileges) Order (P.O. 3 of 1997), Preamble, Para.14---High Court Judges (Pensionary Benefits) Order (P.O. 8 of 2007), Preamble---Constitutional petition---Judge of Federal Shariat Court---Retirement benefits---Petitioner was a retired Judge of Federal Shariat Court and sought implementation of judgment passed by Supreme Court whereby he was entitled to benefits after retirement---Validity---By notification dated 26-12-1996, petitioner was appointed as Judge of Federal Shariat Court for three years and took his oath on 30-12-1996---If period was counted from 30-12-1996, three years expired on 29-12-1999, thus "Charge Relinquishing Report" of 29-12-1999, was not before the time of service notified on 26-12-1996; as such it was a formal "Relinquishing Report" which was normally prepared while handing over the charge on transfer or retirement---Petitioner, in view of the judgment passed by Supreme Court, was entitled for all his retirement benefits from the date of his retirement as Judge of Federal Shariat Court---Petition was allowed in circumstances.

2009 C L C 108

[Karachi]

Before Sajjad Ali Shah, J

NETWORK LEASING CORPORATION LIMITED----Plaintiff

Versus

NSA-CTI CONSORTIUM and 2 others----Defendants

C.M.A. NO.3618 of 2008 in Suit No.1291 of 2007, decided on 2nd September, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Award of contract by plaintiff for construction of building to defendant under an agreement---Application under O.XXXIX, Rr.1 & 2, C.P.C. restraining the plaintiffs from raising construction on their project subject matter of the suit and a further direction to the Nazir to take over the project---Contentions of the defendants were that work of construction was stopped when a notice was issued. by the Housing Authority and the defendants kept on asking the plaintiff to remove the objections so that the work of construction could start, however the plaintiffs, instead of removing the objections of the Housing Authority, had itself started work of construction with the sole motive of usurping Rs.60,00,000 extra amount spent by the defendants; that unless the construction was stopped, it would not be possible to ascertain the extent of construction raised by the defendants to support its claim of spending Rs.60,00,000 besides the amount received from the plaintiffs and that suit for recovery had been filed mala fide against the defendants---Validity---Held, record reflected that in compliance of order of the court project in question was inspected by an Architect and a detailed report had been placed on record which clearly spelled out the extent of construction at the relevant time, the payment made and also the amount outstanding against the defendants---Apprehension of the defendants that in case the plaintiffs were allowed to carry on the construction, it would not be possible to ascertain as to what extent the defendants had carried out the work of construction, was misconceived, in circumstances; even otherwise since there was no suit for counter claim by the defendants against the plaintiffs for the recovery of any amount, therefore, restraining the plaintiffs from carrying on work of construction of its own project would not serve the ends of justice and would be without cause or purpose.

Jam Asif Mehmood for Plaintiff.

Ms. Sofia Saeed Shah for Defendants.

CLC 2009 KARACHI HIGH COURT SINDH 113 #

2009 C L C 113

[Karachi]

Before Salman Ansari, J

IFTIKHAR AHMED JATT----Appellant

Versus

MUHAMMAD JAVED and another----Respondents

Miscellaneous Appeal No.64, C.M.A. No. 3066 and S.M.A. No.107 of 2008, decided on 7th October, 2008.

Succession Act (XXXIX of 1925)---

----S. 372---Succession certificate, grant of---Appeal to High Court--Appellant, employer of the deceased had approached the High Court as he had received directions from the Commissioner Workmen's Compensation Authority under the Payment of Wages Act for depositing an amount of Rs.200,000 payable as death compensation along with legal dues of deceased, within specified period---Employer/appellant had submitted memorandum of compliance of the order of High Court which had shown that a cheque for Rs.200,000 had been deposited with the Nazir of the High Court---Cheque was ordered by High Court to be forwarded to the court of District Judge who had granted the petition for grant of succession certificate to the respondent---Nazir of the High Court was directed to deposit the cheque of Rs.200,000 submitted before the Nazir of District Court for distributing the same to legal heirs of deceased accordingly.

Ms. Faiza Zia for Appellant.

Nemo for the Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 119 #

2009 C L C 119

[Karachi]

Before Munib Ahmad Khan and Syed Pir Ali Shah, JJ

BAHADUR YAR JANG FOUNDATION (PVT.) LTD. through Chairman----Petitioner

Versus

GOVERNMENT OF SINDH through Minister for Cooperation and another----Respondents

C.P. No.D-36 and M.A. NO.158 of 2008, decided on 13th August, 2008.

(a) Approbation and reprobation---

----Party cannot be allowed to blow hot and cold in same breath as it would amount to approbation and reprobation.

(b) Judgment per incuriam---

----Nature---Judgment per incuriam can be only in which information in respect to previous decision along with proper legal assistance has been provided.

Ahmed Yousuf Ali Rizvi and others v. Munawar Ali Butt and others PLD 2000 Kar. 333; Karachi Cooperative Housing Societies Union Ltd. V. Government of Sindh and others 1990 MLD 389; Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 and Ardeshir Cowasjee and others v. Karachi Building Control Authority (K.M.C.), Karachi 1999 SCMR 2883 ref.

H.A. Rehmani for Petitioner.

Hafiz Syed Rafiuddin Second Officer, on behalf of Respondent No.1.

Khawaja Shamsul Islam for Respondent No.2.

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

CLC 2009 KARACHI HIGH COURT SINDH 125 #

2009 C L C 125

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

LAL MUHAMMAD and others----Petitioners

Versus

SUPERINTENDENT (WATCH AND WARD), KARACHI PORT TRUST and Others-Respondents

C.P. No.D-1588 of 2005, decided on 6th February, 2007.

Karachi Port Security Force Ordinance (LXXXIV of 2002)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Invitation of bids for car rental services during currency of licenses of the petitioners---Case of the petitioners, who. being Taxi Drivers, were operating in the Port area, was that during currency of their licenses, authorities had invited bids for car rental services which was termed by the petitioners as illegal and mala fide action on the part of the authorities---Claim of the petitioners was that as they had been plying taxis within the Port area since ages, Port authorities had no jurisdiction to invite tender to ply taxi nor had any authority to award the contract---Contention of the counsel for Port Trust was that taxies plied by the petitioners were very old and unhygienic; besides, petitioner's taxies not having radio or wireless connectivity, safety and security of the crew and passengers could not be secured and that safety of foreign crew was of prime importance---Counsel had further contended that International Code for the security of ships and of port facilities as adopted by International Maritime Security Organization to which Pakistan was also signatory, had made it obligatory on the member State to improve its port facilities---High Court directed that let the tender be invited afresh and petitioners would be at liberty to participate and compete in the tender---Petitioners were given five months time to upgrade their taxies, provide their mobile telephone number to the authorities for constant connectivity---Till the fresh tenders were called and contract was awarded and executed, petitioners could be issued licence/permit to ply taxies in accordance with Karachi Port Trust's Rules and Regulations.

Mrs. Salima Nasiruddin for Petitioners.

M. Sarfraz Sulehry for Respondent No.3.

Date of hearing: 6th February, 2007.

CLC 2009 KARACHI HIGH COURT SINDH 131 #

2009 C L C 131

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL KHALIQ SHAIKH----Plaintiff

Versus

SEEMA MASOOD and 5 others----Respondents

C.M.As. Nos.1950 of 2007, 2178 of 2008 in Suit No.95 of 2005, decided on 13th October, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), S.3---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for partition, administration, accounts and mesne profit---Application for rejection of plaint under O.VII, R.II, C.P.C.---Scope---Plaintiff and defendants as legal heirs had mutated their names in the record of Housing Society on 12-11-1995---One defendant was in possession of the suit property whereas the plaintiff and other defendants were entitled to their share by way of partition of property administration and compensation claimed for---Defendant had contended that suit land was in his possession from the last 22 years to the exclusion of plaintiff and other defendants---Validity---Suit land being joint, there was no question of exclusion of plaintiff and other defendants as they were co-sharers and possession of one co-sharer was for the benefit of all the other co-sharers and a co-sharer was deemed to be in possession through his other co-sharers---Even if the mutation was effected in 1995, the suit was filed on 3-1-2003 within 9 years---Mutation did not confer any right in the property, at the best it was an arrangement made on the fiscal side for ensuring the correctness of the record for that purpose---Contention of adverse possession and limitation were repelled in circumstances---When a right of co-heir was involved in a suit for administration, the heir in possession of the property left by 'deceased original owner had to be deemed to be always having remained in possession of the property being a co-sharer and claim of co-sharers could not be held to be barred by limitation or adverse possession--Order VII, R.II, C.P.C. was not attracted to the facts and circumstances of the present case.

Mst. Shah Sultana and others v. Abdul Khaliq and others 1987 SCMR 1791; Mumber and others v. Ajaz Hussain and others 2007 SCMR 533; Elijan Bewa v. Abdul Samad and others PLD 1867 Dacca 682; Khutijan Edhi v. Zulmat Khan and others 1968 Dacca 172; Bibi Raziqan v. Najeeb Khan and another AIR 1958 Pat. 530; Mst. Ghazala Zakir v. Muhammad Khurshid 1997 CLC 167; PLD 1977 Kar. 993; Asghar Ali v. Mst. Zohrabi and another 2001 MLD 122; Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Ghulam Ali and others v. Ghulam Sarwar PLD 1990 SC 1; Anwar Muhammad v. Sharif Deen 1983 SCM 626.; Tahir Ikramullah and 23 others v. Mst. Zubaida Khanum and others 2002 MLD 334; Mst. Omai and others v. Hakeem Khan and others 1970 SCMR 499; Waris Khan and 18 others v. Col Hamyun Shah and 41 others PLD 1994 SC 336; Mst. Roshan Akhtar v. Muhammad Boota and 4 others 2000 SCMR 1845 and Muhammad Khan and 3 others v. Khan Bibi and 3 others PLD 1985 Quetta 105 ref.

Shaikh Abdul Aziz for Plaintiff.

Muhammad Iqbal Kazi for Defendant No.1.

Abid S. Zuberi and Umer Lakhani for Defendants Nos.3, 5 and 6.

CLC 2009 KARACHI HIGH COURT SINDH 143 #

2009 C L C 143

[Karachi]

Before Munib Ahmed Khan, Mrs. Qaiser Iqbal and Dr. Rana Muhammad Shamim, JJ

SADDAR COOPERATIVE MARKET LTD. through Honorary Secretary----Petitioner

Versus

PROVINCE OF SINDH, DEPARTMENT OF COOPERATION and 3 others----Respondents

C.P. Nos.D-499, 1036 and 1770 of 2007 decided on 6th October, 2008.

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

----S. 43---Inquiry by Registrar---Scope---Provisions of S.43 of Cooperative Societies Act, 1925, can be divided in two types of inquires; one to be held by Registrar of his own motion for which no criteria or condition has been provided, while in respect of inquiry not on suo motu basis but otherwise for which criteria has been provided in S.43(2)(a)(b)(c) of Cooperative Societies Act, 1925.

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

----S. 43---Constitution of Pakistan (1973), Art.199---Constitutional petition---Inquiry by Registrar---Notice of inquiry, requirement of---Principles of natural justice---Applicability---Notices issued by Registrar were assailed by petitioners on the ground of non-compliance of provisions of S.43 (2) of Cooperative Societies Act, 1925---Validity---Power vested in and exercised by Registrar under S.43 (1) of Cooperative Societies Act, 1925, was independent of subsequent subsection (2) of S.43---Was not necessary that Registrar, even after receipt of information in respect of. allegations against a Society, should wait for receipt of information in a particular way---Notice issued under S.43 (1) of Cooperative Societies Act, 1925, was issued validly, as it fulfilled rules of natural justice which demanded that a person, proceeded against, should have provided material at the time when he had been heard so that person could be in a position to rebut the allegations---Was not necessary for Registrar to issue proper show cause notice or give details of allegations but after receipt of complaint or information, he could give gist of allegations to the society at the time of hearing and thereafter might decide the issue involved in the case---High Court declined to interfere with the notices issued to petitioners under S.43 (1) of Cooperative Societies Act, 1925 by Registrar---Constitutional petition was disposed of accordingly.

Karachi Administration Employees Cooperative Housing Ltd. v. Government of Sindh and another 2004 YLR 1070 distinguished.

Pir Illahi Bukhsh Cooperative Housing Society Ltd., Karachi v. Registrar Cooperative Societies, Karachi and others 1968 SCMR 423; Muzaffar Ali Shah and others v. Registrar, Cooperative Societies, Karachi and another PLD 1968 Kar. 422 and Muhammad Naseem Khan and another v. Government of N.-W.F.P. through Secretary, Department of Cooperative Peshawar and 24 others 1990 CLC 1693 ref.

I.H. Zaidi for Petitioners (in C.Ps. Nos.D-499, D-1036 and D-1770 of 2007).

Abdul Fateh Malik, Addl. A.-G. Sindh for Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 149 #

2009 C L C 149

[Karachi]

Before Khilji Arif Hussain and Bin Yamin, JJ

Messrs MARKETING SERVICES INC. through President----Petitioner

Versus

Messrs JULLUNDHUR (PVT.). LTD.----Respondent

High Court Appeal No.446 of 2006, decided on 10th October, 2008.

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

----R. 195---Civil Procedure Code (V of 1908), O.XXVI, R.5---Issuance of commission---Examination of witness---Principles---Duty of Court---Scope---Issuance of commission for examination of witness on interrogatories without any restriction whether witness resides within local limits of the jurisdiction of court or resides outside Pakistan---When an application is made under R.195 of Sindh Chief Court Rules (O.S.), and opposite party objects for issuance of commission, then court has to decide whether examination of witness to facts and issues raised are relevant in case and party applying for commission satisfies the Court that he has no control over the witness or personal appearance of witness is not possible and further that defendant will not be prevented by issuing commission from putting his case fairly before the court then court can issue commission to examine witness on interrogatories.

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

----O.XXVI, R.5---Sindh Chief Court Rules (O.S.), R.195---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Local commission, appointment of---Recording of evidence---Plaintiff company incorporated abroad filed suit through its attorney, a Pakistani national, residing within the local limits of Trial Court who was authorized to give evidence---Application was filed by plaintiff to appoint local commission for recording of evidence of its chief executive officer, who was residing abroad---Validity---Plaintiff himself appointed its attorney to file suit, verify plaint, swear an oath, file affidavit, counter affidavit and give evidence on behalf of plaintiff, therefore, plaintiff could not ask for examination of person residing abroad---In application filed by plaintiff for examination of its chief executive officer interrogatories and failed to give any cogent reason as to why examination of its chief executive officer was necessary in the suit---Validity---Court in appropriate cases, where it was not convenient for witness to appear in court and give evidence, if sufficient cause was shown, could order for examination of witness on commission through interrogatories---Such commission, to examine parties to proceedings or their witnesses, could not be made as a matter of right--Court had the discretion to decide whether sufficient cause had been shown for non-appearance of any person as witness and to examine. him on commission---In affidavit which was sworn by attorney of plaintiff who himself authorized to give evidence did not disclose any reason as to why its chief executive officer be examined on oath on interrogatories---Division Bench of High Court declined to interfere with the order passed by Single Judge of High Court---Intra court appeal was dismissed in circumstances.

International Credit and Investment Company (Overseas) Ltd. Attock Oil Company Ltd. and another PLD 1997 Lah.480, PLD 1988 Lah. 294; PLD 1988 Lah. 495; Akbar Ali Khan v. Herbert Francisi AIR 1925 Pat.125; Fariduddin Ahmed v. Abdul Wahab AIR 1926 Pat. 277 and Nadin v. Basset. 25 Ch. Div.21 ref.

R.F. Virjee for Appellant.

Tasawar Ali Hashmi for Respondent.

CLC 2009 KARACHI HIGH COURT SINDH 159 #

2009 C L C 159

[Karachi]

Before Mrs. Qaiser Iqbal, J

MEHRAN SUGAR MILLS LIMITED----Appellant

Versus

MARKET COMMITTEE through Authorized Officer----Respondent

Second Appeal No.12 and C.M.A. No.1301 of 2007, decided on 13th October, 2008.

Civil Procedure Code (V of 1908)---

----S. 100---Agricultural Produce Markets Act (V of 1939), Ss.3 & 19---Limitation Act (IX of 1908), S.19---Second appeal---Scope---Nonpayment of fee/levy by appellant---Legal issue which was raised before the Trial Court, if had not been adhered to in terms of the position emerging from the relevant statute, concurrent findings could be interfered with as factual controversy was not in issue---Issue of limitation, in the present case, was not fully appreciated in terms of law as there seemed to be no qualified statement on behalf of the appellant in the other lis arising out of the Notification issued under S.3, Agricultural Produce Markets Act, 1939 by the respondent/Market Committee for imposition/levy of fee---Such factum could not be overlooked at the stage of second appeal as the same was going to determine the liability of the appellant arising out of non-performance of their duty for payment of fee under the purported notifications issued by the Market Committee---Impugned judgment in circumstances, required interference in second appeal, which was modified by High Court accordingly.

Al Noor Fertilizer Industries Limited v. Province of Sindh and others 2008 YLR 1299; Pakistan Flour Mills Association v. Government of Sindh and others 2003 SCMR 162; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 and Mst. Haleeman and 4 others v. Abdul Shakoor Khan 2007 CLC 589 ref.

Khalid Mahmood Siddiqu for Appellant.

Ansari Abdul Latif for Respondent.

CLC 2009 KARACHI HIGH COURT SINDH 166 #

2009 C L C 166

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

WAPDA through Project Director Construction of Drainage Tube-wells----Appellant

Versus

DEPUTY DISTRICT OFFICER (REVENUE)/LAND ACQUISITION OFFICER and 7 others----Respondents

First Appeals Nos.19 to 45 of 2007, decided on 24th September, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18, 23, 50(2) & 54---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Appellant/ WAPDA acquired land of respondents/landowners and respective award with regard to amount of acquired land was passed by Land Acquisition Officer---Appellant/acquiring Authority being dissatisfied with said award, filed reference to Referee Court on the ground that Land Acquisition Officer had not followed the calculation and procedure of assessment of land---Validity---Under provisions of S.50(2) of Land Acquisition Act, 1894, beneficiary of acquired land was not competent to directly file a reference concerning any award having been passed by Land Acquisition Officer for acquiring lands of private respondents---Appellant, in circumstances, was not competent to file any reference, nor was competent to file appeal---Since the references made before the Referee Court were themselves not maintainable under the law, subsequent appeals against impugned judgments would also be treated as not maintainable under law---If the foundation stone for a judicial or quasi-judicial functionary to exercise its powers/authority was determined in negative, the whole edifice, built on such defective proceedings was bound to crumble down---Appeal was dismissed.

PLD 2008 SC 400; Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan and others PLD 1995 SC 418; Pir Khan v. Military Estate Officer and others PLD 1987 SC 485; Pakistan Steel Mills Corporation Ltd. v. Deputy Commissioner (East) Karachi and others 1989 SCMR 812; Behram Khan's case 1988 SCMR 1160; B.P. Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another PLD 2008 SC 400; Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through Legal Heirs and another 1996 CLC 2002; Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance Revenue and Economic Affairs Islamabad PLD 2005 SC 842 and Pervez Iqbal v. Muhammad Hanif 1979 SCMR 367 ref.

Muhammad Idrees Naqshbandi for Appellant.

Hakim Ali Siddiqui for Respondents Nos.2 to 8.

CLC 2009 KARACHI HIGH COURT SINDH 177 #

2009 C L C 177

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD YAKOOB----Petitioner

Versus

Mst. ZAIBUNNISA and 2 others----Respondents

C.P. No.S-404 and C.M.A. No.2971 of 2008, decided on 24th September, 2008.

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

----Ss. 15 & 16(2)---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Condonation of delay---Sufficient cause---Tenant failed to comply with tentative rent order thus his defence was struck off and eviction order was passed by Rent Controller--Appeal filed by tenant was dismissed by Appellate Court, as it was barred by limitation---Validity---Principle of justice and fair play could not help those who were extraordinarily negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remained in deep slumber, as each and every day was to be explained---Tenant had to establish that it was not possible for him to appear and was beyond his control to appear within a due course of time for a particular purpose and to show as to what was the `sufficient cause' or reason due to which he failed to appear before competent Court of law within a particular time---In case of non-compliance, negligence on the part of tenant could not be shifted to the other side---Tenant was not vigilant in respect of his claim and he had to suffer and nobody else could be blamed in such respect---Each and every case was to be decided on its own merits and even one day's delay could not be condoned---Tenant could not invoke constitutional jurisdiction of High Court as no illegality or violation of law was pointed out by him---Order of eviction passed by two courts below being proper and legal, did not require any interference and were maintained by High Court---Petition was dismissed in circumstances.

Muhammad Raz Khan v. Government of N.-W.F.P and another PLD 1997 SC 397 and Muhammad Raz Khan v. Government of N.-W.F.P and another PLD 1997 S.0 397 ref.

Noor Hussain v. Muhammad Salim 1985 SCMR 893 rel.

Shamshad Ali Qureshi for Petitioner.

CLC 2009 KARACHI HIGH COURT SINDH 200 #

2009 C L C 200

[Karachi]

Before Munib Ahmed Khan and Syed Peer Ali Shah, JJ

ZONAL LABOUR UNION LAKHRA through Zonal Chairman and 2 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power and 6 others----Respondents

Constitutional Petition No.D-441 of 2007, decided on 28th February, 2008.

Privatization Commission Ordinance (LII of 2000)---

----Ss. 2(i), 5, 22 to 26 & 42---Constitution of Pakistan (1973), Arts.199, 9, 18, 153 & 154---Constitutional petition--Privatization or lease of employer-company---Privatization or non-privatization was the main issue in the constitutional petition---Petitioner/trade union had urged that the company had been privatized contrary to the provisions of Privatization Commission Ordinance, 2000, and that privatization program was contrary to the provisions of Arts.9, 18 & 154 of the Constitution and also not transparent---Plea of employer-company, however, was that the company had not been privatized, but had been leased out for a specific period on the terms and conditions mentioned in the lease documents---Letters and documents produced on record had shown that company was leased out for a specific period of 20 years and clause of the said lease deed showed that the benefit of the workers in respect of salaries, wages, social and retirement benefits and all actuarial liabilities of the employees for the lease period had been guaranteed by the lessee---Arrangement through the lease was not a privatization under the Privatization Commission Ordinance, 2000, but a lease for a specific period on certain terms and conditions---Terms of lease, could give open impression that it was not only in the interest of the company, but also the employees, public and the country as well as lessee---Lessee had not been given right to terminate the employment of existing employees---When it had been established that the company had not been privatized, any observation on its effect by the relevant Articles of the Constitution as well as provisions of Privatization Law, was not warranted.

Steel Mills case PLD 2006 SC 697 ref.

Abdul Mujeeb Pirzada for Petitioners.

Malik M. Qayum, Attorney-General along with Rizwan Ahmed Siddiqui, D.A.-G. for Respondents Nos.1 and 6.

Shahid Hamid for Respondents Nos.2 to 5.

Yawar Farooqui for Respondent No.7.

Dates of hearing: 23rd, 28th and 29th January, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 215 #

2009 C L C 215

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD SALEEM----Appellant

Versus

Mrs. SANJIDA KIDWAI----Respondent

F.R.A. No.17 of 2007, decided on 22nd October, 2008.

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

----S. 17---Ejectment of tenant---Bona fide personal need of landlady---Choice of premises-Principles---Rent Controller allowed ejectment application filed by landlady and passed eviction order against tenant---Plea raised by tenant was that another house was available with landlady for her residence---Validity---Landlady had prerogative to choose property for her personal use, which would include use for her husband, thus High Court declined to take any exception to findings of Rent Controller---Landlady was judge of suitability of premises for her requirement and tenant could not have option to choose which premises would be suitable for her---Landlady had no other residential premises in Pakistan required for her personal bona fide use which was a fundamental right and could not be snatched from her---Tenant failed to prove his case and could not point out any illegality, material irregularity, misreading or non-reading of evidence, requiring interference by High Court at appeal stage---High Court in exercise of appellate jurisdiction declined to interfere with eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Muhammad Roshan Khan v. Ishtiaq Ali 1995 CLC 702; Mrs. Nadira Farooqui v. District and Sessions Judge, , Karachi South and another 1987 MLD 616; Raja Shahbaz Khan v. Muhammad Fazal Kiani 1988 CLC 811; Director, Industries, Government of N.-W.F.P. Peshawar v. Messrs Nowshera Engineering Company Limited and 4 others 2002 SCMR 1747; Dr. Tariq Nawaz and another v. Government of Pakistan and another 2000 SCMR 1956; Ghulam Mustafa Ansari and 48 others v. Government of Punjab and others 2004 SCMR 1903; Late Mahboob Sahri through Legal Representatives v. Mst. Zubeda Begum 1999 MLD 2070; Hap. Abdul Majid through Legal Heirs v. Khawaja Kamaluddin 1994 MLD 958; Amjad Khan v. Mst. Mariam 1993 CLC 175 and Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja PLD 1994 252 ref.

Iftikhar Javed Qazi for Appellant.

Respondent in person.

Date of hearing: 9th October, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 235 #

2009 C L C 235

[Karachi]

Before Arshad Noor Khan, J

Choudhry KHALID SAEED----Plaintiff

Versus

GOVERNMENT OF PAKISTAN through Secretary and another----Defendants

Suit No.412 and C.M.A. No.2592 of 2006, decided on 3rd November, 2008.

Specific Relief Act (I of 1877)---

----S. 42--Abandoned Properties (Taking Over and Management) Act (XX of 1975), Ss.2(a) & 11---Limitation Act (IX of 1908), Art.120---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Auction of abandoned property by Government on "as is where is" basis---Acceptance of plaintiff's bid on 27-9-1999---Nonpayment of 75% of bid money by plaintiff due to pendency of suit against government by an encroacher of suit plot---Plaintiff's suit filed on 7-4-2006 for declaring him as successful bidder of suit plot---Defendant's plea in written statement was that plaintiff through his letters had sought refund of paid amount, thus, suit was not maintainable---Validity---Plaintiff had participated in auction on "as is where is" basis, thus, he had knowledge about suit property occupied by encroacher---Title of suit property had never been in dispute, thus, plaintiff was not justified to stop payment of remaining bid money---Such letters admitted by plaintiff reflected his mind not to pay remaining bid money---Such act and conduct of plaintiff by addressing letters to defendant for refund of amount had disqualified him to maintain suit, which could not be decreed in his favour---Right to sue government having accrued to plaintiff when his bid was accepted, thus, suit was barred by time---Plaint in such suit was rejected under O.VII, R.11, C.P.C.

S. M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan through Legal Heirs 2002. SCMR 338 and Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1620 rel.

Irfan Hassan for Plaintiff.

S. Tariq Ali, Standing Counsel for Defendants.

CLC 2009 KARACHI HIGH COURT SINDH 262 #

2009 C L C 262

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mrs. SAFIA SIDDIQ----Appellant

Versus

Haji FAZAL-UR-REHMAN and 2 others----Respondents

IInd Appeal No.36 of 2006, decided on 7th November, 2008.

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

----S. 149---Non-payment of court-fee on appeal or suit due to poverty or ignorance or inability to pay full court-fee at the time of its filing, would not be a ground for seeking indulgence of Court under S.149, C.P.C.

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

----S. 149---Appeal filed without court-fee---Filing of application along with appeal for extension of time to pay court-fee---Dismissal of appeal in default of appearance---Restoration of appeal after six months and acceptance of such application by Court and payment of court-fee by appellant on same day---Validity---Appeal had remained dormant for a period of six months until same was restored to its original number---Appellant was guilty of contumacious conduct based upon negligence and mala fides---No reason existed to show indulgence to appellant after expiry of period of limitation---Condonation of delay to pay court-fee after expiry of period of limitation would tantamount to destroy provision of Limitation Act, 1908---Appellant was bound to pay court-fee on appeal within limitation provided under law---Appellate Court had condoned delay recklessly and exercised discretion without applying mind to provisions of Limitation Act, 1908---High Court set aside impugned judgment in circumstances.

Muhammad Siddiq Khan v. Abdul Shakoor Khan PLD 1984 SC 289; Muhammad Boota v. Farzand Ali 1980 CLC 1124 and Executive Engineer v. Muhammad Nawaz Khan and Company PLD 1994 SC (AJ&K) 32 ref.

State Life Insurance Corporation of Pakistan v. Messrs Zainab Khatoon and 5 others 1997 PLC 489; Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; H. Feldman v. Province of East Bengal PLD 1970 Kar. 295 and Almas Ahmad Faiz v. Secretary, Government of Punjab Housing and Physical Planning Development Lahore 2006 SCMR 783 rel.

----S. 149---Limitation Act (IX of 1908), Preamble---Condonation of delay to pay court-fee after expiry of period of limitation---Validity---Such condonation would tantamount to destroy provisions of Limitation Act, 1908---Principles.

Muhammad Siddiq Khan v. Abdul Shakoor Khan PLD 1984 SC 289; Muhammad Boota v. Farzand Ali 1980 CLC 1124 and Executive Engineer v. Muhammad Nawaz Khan and Company PLD 1994 SC (AJ&K) 32 ref.

Siddiq Mirza for Appellant.

Khalid Mehmood for Respondent No.2.

CLC 2009 KARACHI HIGH COURT SINDH 272 #

2009 C L C 272

[Karachi]

Before Ghulam Dastagir A. Shahani, J

GHULAM HUSSAIN through L.Rs. ----Petitioners

Versus

COURT OF VTH ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and another----Respondents

Constitutional Petition No.S-202 of 2008, decided on 29th October, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Findings of fact---High Court can interfere with decision of Court or Tribunal if findings of facts not properly recorded by appellate forum and sufficient material existing to show misreading of evidence by court below but not in each case---High Court can also interfere in appropriate cases, where there is sufficient reason and necessary order was without lawful authority or was of no legal effect or judgment passed by appellate court was suffering from any illegality or material irregularity.

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

----S. 15---Constitution of Pakistan (1973), Art.199--Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Choice of landlord---Principles---Landlord had a prerogative choice for property of his personal use and no exception could be taken to such findings of courts below---Landlord was judge of suitability of premises for his requirement and tenant had no option to choose which premises would be suitable for landlord---Landlord, in the present case, had no other property and required the premises for his personal bona fide use, which was his right and therefore, need of landlord for personal use of the premises was bona fide and not mala fide---Even it was not necessary for landlord to disclose nature of business intended to be conducted by him therein---High Court declined to interfere with eviction order passed by two courts below---Petition was allowed accordingly.

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Proof---Eviction order passed by Rent Controller against tenant on the ground of default in payment of monthly rent was maintained by Lower Appellate Court---Validity---Statement of landlord on oath was sufficient that no rent was paid to him and by saying so burden was shifted to tenant to prove payment of rent by positive evidence---Duty of tenant was to obtain a valid receipt of payment of rent---Even deposit of rent in court would be improper and invalid if no attempt was made by tenant to offer or tender rent through money order and deposit of rent after filing of rent application---Tenant had to prove his bona fide that he had tendered rent to landlord before filing of rent application---Even otherwise if notice had been sent through registered acknowledgement due on a proper address shown on an envelope, presumption could be taken to have been served on the addressee---Tenant did not offer or tender nor on the refusal of landlord rent was being deposited in the name of landlord---Only denial of notice was not sufficient after filing of rent application---Tenant could not deny or say that he had no knowledge in respect of ownership---Tenant had committed wilful default in payment of rent, as things were to be done in accordance with law, otherwise same might not be done---Tenant failed to point out any illegality or material irregularity, misreading and non-reading of evidence which required indulgence by High Court---Orders passed by two courts below were maintained by High Court being proper, legal and in accordance to law---Petition was dismissed in circumstances.

Shafiqur Rehman v. Saeed Ahmed W91 MLD 1393; Mst. Zulekha Bai v. Muhammad Yaqoob 1989 MLD 2882; Daniyal Pervaiz v. VIIth Additional District Judge, Karachi and 2 others 2006 MLD 1135; Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972; Mahboob Elahi v. Muhammad Zaman 1983 SCMR 37; Muhammad Yousuf and another v. Muhammad Ebrahim Khandwani PLD 1991 Kar. 226; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Allah Bakhsh v. Member (Colonies), Board of Revenue Punjab and another 1983 CLC 2281; S. Abdul Khaliq Shah, Halwa Sohan Merchant and another v: District Judge, Karachi East and others 20004 MLD 13; Muhammad Sharif and another v. Muhammad Afzal Sohail PLD 1981 SC 246; Mehboob Saghri v. Mst. Zubeda Begum 1999 MLD 2070; Haji Abdul Majeed v. Khawaja Kamaluddin 1994 MLD 958; Amjad Khan v. Mst. Karim 1993 CLC 175; Muhammad Raza v. Ishtiaq Ali 1995 NLR 486; Ms. Nadira Farooqi v. District and Sessions Judge, Karachi South and another 1987 MLD 616; Raja Shahbaz Khan v. Muhammad Kiyani 1988 CLC 811; 1990 SCMR 1070; 2001 CLC 690; Naseem Begum v. Mrs. Raeesa Khatoon and 2 others 1997 MLD 1030; Syed Abut Hussain v. Mst. Majda 2000 CLC 1982; Arshad Khan v. Mrs. Fauzia Nasir 2005 CLC 787 and Abdul Rasheed v. Hanifur Rahman 1994 MLD 955 ref.

Raja Basantani for Petitioners.

Nasir Hussain Jafri for Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 299 #

2009 C L C 299

[Karachi]

Before Khalid Ali Z. Qazi, J

Messrs AL-AHMED (PVT.) LTD.----Applicant

Versus

ANJUMAN FALAH-O-BEHBOOD, HAZARA MUGHAL GOTH and others----Respondents

Judicial Miscellaneous No.9 of 2008, Execution No.56 of 2007 in Suit No.1738 of 1999, decided on 24th November, 2008.

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

----S. 12(2)---Terms "fraud" and "misrepresentation"---Difference between both the words is one of intent but both term are more or less synonymous.

K.J. Aiyar's Judicial dictionary, 13th Edition 2001 at page 430; Webster's Third New International Dictionary; Black Law Dictionary; Oxford Dictionary, Black Law Dictionary VIth Volume 1990 Edition page 1001 and Muhammad Yaqoob Ali v. Mohsin Ali and another 1999 CLC 1173 rel.

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

----S. 12(2)---Setting aside of decree---Fraud and misrepresentation---Proof---Plaintiff had full knowledge of order passed by High Court in another suit but he concealed that order and obtained ex parte decree against applicant---Validity---When any order, judgment or decree was obtained by fraud, misrepresentation or such order, judgment or decree was passed by a court having no jurisdiction, any person aggrieved by it had inherent right to challenge the same and get it recalled as aggrieved persons could not be left without any remedy---After incorporation of section 12(2), C.P.C. no other recourse was left with aggrieved person but to make application under S.12(2), C.P.C.---Nothing was available on record to indicate that plaintiff had filed application under S.24, C.P.C. as directed by court for transfer of that other suit which was ordered to be tagged with the present suit, thus, ex parte order and decree were based on misrepresentation---Applicant had established ingredients of S.12(2), C.P.C. and the judgment was neither passed on merits nor all material available on record was considered---High Court set aside the judgment and decree passed against applicant---Application was allowed in circumstances.

Nasir Jafri for Applicants.

Khawaja Shamsul Islam for Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 324 #

2009 C L C 324

[Karachi]

Before Khalid Ali Z. Qazi, J

CHUTTAL KHAN CHACHAR----Plaintiff

Versus

Mst. SHAHIDA RANI and another----Defendants

Suits Nos.1666 and 243 of 2000, decided on 28th November, 2008.

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

----S. 39---Limitation Act (IX of 1908), Art.91---Cancellation of document---Limitation---Plaintiff filed suit on 14-12-2000, for cancellation of sale-deed executed on 14-9-1995 in favour of defendant on the ground of Benami transaction---Validity---Limitation of three years was provided under Art.91 of Limitation Act, 1908, for filing of suit to cancel or set aside the instrument not otherwise provided for---Limitation was to run, when the fact entitling plaintiff to have instrument cancelled or set aside had become known to him---Instrument was executed on 14-9-1995, therefore, period of limitation in respect of suit property started running from the date of execution of document and had expired on 13-9-1998, thus suit filed on 14-12-2000, was time barred---Plaint was dismissed in circumstances.

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

----S. 42---Benami transaction---Proof---Determining factors.

For determining question whether a transaction is a Benami transaction or not, inter alia, the following factors are to be taken into consideration:

(i) Source of consideration;

(ii) From whose custody original title deed and other documents come in evidence;

(iii) Who was in possession of suit property; and

(iv) Motive of Benami transactions.

Abdul Majeed's case 2005 SCMR 577 and Muhammad Sajjad Hussain's case 1991 SCMR 703 rel.

----S. 42---Benami transaction---Proof---Plaintiff claimed to be the actual owner of suit property and defendant was mere a Benamidar---Validity---Plaintiff did not plead or claim anywhere expressly that at the time of purchase of suit property in the name of defendant there was a clear agreement or understanding between them that suit property was owned by him and defendant was simply a Benamidar---In absence of proof of such agreement/understanding plaintiff could not judicially be recognized Benami owner of suit property even if the same was purchased from his funds in the name of defendant---Registered sale deed in favour of defendant was not proved to be Benami---Most important title document coming from the possession of defendant was sale deed registered on 14-9-1995---Possession of sale deed and possession of property for four years had some evidentiary value---Sale deed was executed before marriage between parties and there was no reason for plaintiff to hand over title documents to defendant if transaction was Benami---Plaintiff failed to prove transaction as Benami in favour of defendant---Suit was dismissed in circumstances.

Halima v. Muhammad Kassam 1999 MLD 2934; Muhammad Siddiq v. T.J. Ebrahim & Co. 2001 SCMR 1333; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146; Syed Ansar Hussain and 2 others v. Khawaja Muhammad Kaleem and 4 others 2006 CLC 732; Kaleem Hyder Zaidi v. Mehmooda Begum and 4 others 2006 YLR 599 and Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal and others PLD 2004 Kar. 17 rel.

Plaintiff called absent.

Mehmood A.H. Baloch for Plaintiff (in Suit No.243 of 2000) for Defendant No.1.

Defendant No.2 called absent.

Date of hearing: 22nd October, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 348 #

2009 C L C 348

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD UMAR----Plaintiff

Versus

YAR MUHAMMAD through Legal Heirs and others----Defendants

Suit No.898 of 1997, decided on 1st December, 2008.

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

----Ss. 8 & 20---Reference of dispute to arbitration, application for---Applicant claimed his share in the profit of partnership business, assets and properties in possession of respondent---Partnership-deed contained provision regarding reference of dispute between partners to arbitrator---Respondent's plea was that such application was not maintainable as applicant had already retired from partnership and new partnership had come into existence by admitting new partner---Validity---Before referring dispute to arbitration, three conditions must co-exist i.e. existence of arbitration agreement, existence of dispute thereunder and non-commencement of proceedings under Chap. II of Arbitration Act, 1940---Pleadings of parties fulfilled such three conditions---Parties by agreement had chosen to refer dispute to arbitration, which they were bound to honour and could not bypass the mechanism provided thereunder on flimsy grounds---High Court directed respondent to file arbitration agreement and directed parties to submit name of arbitrator within specified time.

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

----S. 8---Reference of dispute to arbitration---Existence of three essential conditions stated.

Before referring the matter to the arbitration, three conditions are necessary; (1) existence of arbitration agreement; (2) existence of dispute under the agreement; (3) proceedings under Chapter-II of Arbitration Act, 1940 not having been started.

Arif Bilal Sherwani for Plaintiff.

Nemo for Defendants.

CLC 2009 KARACHI HIGH COURT SINDH 354 #

2009 C L C 354

[Karachi]

Before Nadeem Azhar Siddiqi, J

Messrs H & B GENERAL TRADING COMPANY through Director---Applicant

Versus

Messrs INTERNATIONAL MARKETING COMPANY through Proprietor and 2 others---Respondents

C.M.As. Nos.3604, 6883 and 6884 of 2008 in J.M. No.14 of 2008, C.M.As. Nos.4160, 6886 and 6887 of 2008 in J.M.No.18 of 2008, C.M.As. Nos.3251, 6180 and 6181 in Suit No.571 of 2008, C.M.As. Nos.3251, 6180 and 6181 of 2008 in Suit No.572 of 2008, decided on 20th November, 2008.

(a) Trade Marks Ordinance (XIX of 2001)---

----Ss. 73, 80, 96 & 117---Civil Procedure Code (V of 1908), Ss.10, 11 & 20(c)---Suit for revocation of registration of defendant's trade mark and declaring same as invalid and suspension of its operation---Trade marks of both plaintiff and defendant were registered at place "K", but defendant on receipt of plaintiff's legal notice at place "P" filed suit at "P" against plaintiff---Application for stay of subsequent suit of plaintiff at place "K" till decision of defendant's earlier suit pending at place "P" in respect of same trade mark---Validity---Cause of action had partly arisen to defendant at place "P", thus, it was justified to file its suit there against plaintiff---Plaintiff should have filed its suit before District Judge at place "P", where proceedings in respect of same trade mark were already pending---Difference between prayer clauses of such two suits would not hinder passing of order under S.10, C.P.C., for being dependant on fate of suit pending at place "P" and without decision therein of rightful owner of trade mark, no decree in both suits could be passed---If suit at place "P" was decided in favour of defendant, then same would operate as res judicata in plaintiff's suit at place "K"---Matter in issue in both suits (i.e. question of proprietary of trade mark) between same parties was same and defendant's previous suit was pending at place "P" before a competent Court, which could grant relief in plaintiff's subsequent suit also---In absence of any one of the conditions mentioned in S.10, C.P.C., Court could stay subsequent suit in interest of justice, provided decision in previously instituted suit would attract provision of S.11, C.P.C.---Application under S.10, C.P.C., was accepted with observations that interim order passed in plaintiff's subsequent suit would continue to operate till final decision of defendant's previous suit at place "P"---Principles.

Muhammad Younus v. Shaukat Ali, 2003 CLD 1037; Standard Finis Oil Co. Ltd. v. National Detergent Ltd. and others 1984 CLC 781; National Distribution Company v. National Detergent Ltd. PLD 1983 Kar. 402; Salim Industries v. Burhani Trading Co. and others 1982 CLC 973; Habib Bank Ltd. v. Ali Mohtaram Naqvi PLD 1987 Kar. 102; Mahmood Ahmad v. Karachi Road Transport Corporation PLD 1970 Kar. 41 and Dr. Haider Ali Mithani and another v. Ishrat Swaleh and others PLD 1999 Kar. 81 ref.

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

-----Ss. 10 & 11---Stay of subsequent suit---Scope---Where decision in previously instituted suit would operate as res judicata, then proceedings in subsequent suit could be stayed even in absence of any one of the conditions mentioned in S.10, C.P.C.---Principles.

Main ingredients for invoking provision of section 10, C.P.C. are that; (1) the matter in issue in both suits must be directly and substantially the same in both the proceedings; (2) the previously instituted suit is pending in a Court of competent jurisdiction; (3) the Court before whom the previous suit is pending must be competent to grant relief in the subsequent suit; (4) both the suits, i.e. the previous and the subsequent suits must be between the same parties or their representatives; and (5) the parties must be litigating under the same title.

If all the above-mentioned conditions are fulfilled then the subsequent suit must be stayed under provisions of section 10, C.P.C. However, in case any one of the above mentioned conditions are not present even then the subsequent suit can be stayed under section 10, C.P.C. in the interest of justice provided that the decision in the previously instituted suit would attract provisions of section 11, C.P.C.

Salim Industries Limited v. Messrs Burhani Trading Company and another 1982 CLC 973 rel.

----S. 10---Provision of S.10, C.P.C.---Object---Object of such provision is to avoid duplication of trial on same cause of action and obviate conflict of decisions and unnecessary labour on adjudication of a common suit.

(d) Trade Marks Ordinance (XIX of 2001)---

----Preamble---Object of Trade Marks Ordinance, 2001---Mechanism provided in Trade Marks Act, 2001 envisaged that multiplicity of proceedings must be avoided---Application in respect of a trade mark could be filed in a Court, where some proceedings in respect thereof were already pending---Principles.

Nadeem Qureshi and Ahmed Hasan Rana for Petitioner.

Amir Javed for Respondent No.1.

Saleem Merchant for Respondent No.3.

Nemo for Respondent No.2.

CLC 2009 KARACHI HIGH COURT SINDH 371 #

2009 C L C 371

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Ghulam Dastagir Shahani, J

Messrs ASKARI & COMPANY and 2 others----Appellants

Versus

MUSLIM COMMERCIAL BANK LTD. and another----Respondents

1st Appeal No.56 and C.M.A. No.2042 of 2007, decided on 26th November, 2008.

Civil Procedure Code (V of 1908)---

----S. 151 & O.XXI, R.89---Limitation Act (IX of 1908), Art.166---Application for setting aside of sale of property confirmed in favour of auction purchaser---Filing of such application after 23 months of sale and 21 months of confirmation of sale---Effect---Such application could be filed within 30 days from date of sale---Such sale could not be got cancelled/set aside at instance of decree-holder or judgment-debtor, who might be willing to settle his matter in or out of Court on certain terms---Such application was dismissed for being time-barred.

United Bank Limited v. Heryana Asbestos Cement Industries' (Ltd.) and 20 others 2006 CLC 1272; United Bank Limited v. Messrs A.Z. Hashmi (Pvt.) Limited and 8 others 2000 CLC 1438; Muhammad Ikhlaq Memon v. Zakaria Ghani and 6 others PLD 2005 SC 819 and Messrs New Rahat Engineering Works through its Proprietor and 4 others v. National Bank of Pakistan 2003 CLD 382 ref.

Hudaybia Textile Mills and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 fol.

Asim Mansoor Khan for Appellant.

Aamir Malik for Respondent No.1.

Irfan A. Memon for Respondent No.2.

CLC 2009 KARACHI HIGH COURT SINDH 381 #

2009 C L C 381

[Karachi]

Before Gulzar Ahmed, J

MUHAMMAD SHOAIB----Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY, and 3 others----Defendants

C.M.As. Nos.7373 of 2006, 9418, 873 of 2005, 3118 of 2006 and 72 of 2007 in Suit No.159 of 2005, decided on 4th December, 2008.

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

----Ss. 42 & 54---Sindh Rented Premises Ordinance (XVII of 1979), S.15(2)(iv)---Civil Procedure Code (V of 1908), O.VII, R.11(a)---Suit for declaration and injunction---Notice by Building Control Authority requiring tenant to remove basement illegally constructed in demised premises---Tenant in suit alleged that underground locker in his tenancy did not fall within definition of "basement" and sought regularization of such locker by Authority; and that such notice issued at his landlord's instance was without lawful authority---Landlord's plea was that tenant's suit was premature as question of unauthorized construction of basement by tenant was subject-matter of ejectment petition already pending against him---Validity--Tenant could not maintain a civil suit for determination of question by civil court of which Rent Controller was seized---No amount of difficulty or technicality would take away a dispute from jurisdiction of Rent Controller, which he was competent to decide---Tenant in his suit had neither disputed ownership or title of rented premises nor raised question of jurisdiction---Fate of rent case depended upon determination of question, whether underground locker existed since renting out of demised shop to tenant or was constructed subsequently---Until such question was finally decided by Rent Controller, cause of action of tenant in suit for seeking declaration of' regularization of underground locker by Authority would remain premature---Tenant had no subsisting cause of action to maintain such suit---Plaint was rejected under O.VII, R.11, C.P.C.

PLD 1990 SC 382; 1987 CLC 1241; 1991 CLC 1364; 1983 SCMR 1064; PLD 2003 Kar. 444; 1996 CLC 356; 1990 SCMR 54 and Qamar Din v. Sungreen & Co. Ltd., Karachi PLD 1980 Kar. and Quetta 317 ref.

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

----S. 15---Civil Procedure Code (V of 1908), S.9---Jurisdiction of Rent Controller---Scope---Tenant could not maintain ,a civil suit for determination of question by civil court of which Rent Controller was sized---No amount of difficulty or technicality would take away a dispute from jurisdiction of Rent Controller which he was competent to decide.

Muhammad Shafi Siddiqui for Plaintiff.

Muhammad Iqbal Memon for Defendants Nos. 1 and 2.

Rizwan Ahmed Siddiqui and Samuddin for Defendant No.4.

CLC 2009 KARACHI HIGH COURT SINDH 397 #

2009 C L C 397

[Karachi]

Before Khalid Ali Z. Qazi, J

Prof. Dr. S.M. HANIF SHAKIR----Plaintiff

Versus

Mrs. NAFEES SUFI----Defendant

Suit No.607 of 2008, decided on 1st December, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.IX, R.6(1)---Suit for specific performance of sale agreement---Ex parte proceedings against defendant for his non-appearance despite service of summons upon him through all modes including publication in newspaper---Filing of affidavit-in-ex parte proof by plaintiff stating to have entered into sale agreement with defendant on payment of total price and taken over from him possession of suit property along with original title documents and got utility connections in his own name---Confirmation of sale transaction by attesting witnesses of agreement on payment of total price in their presence by plaintiff to defendant---Suit, in absence of any defence, was decreed as prayed for.

Syed Arif Ali for Plaintiff.

Defendant called absent.

Date of hearing: 25th November, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 402 #

2009 C L C 402

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD RASHID FARUQUI----Applicant

Versus

ARIF NAQVI and 6 others----Respondents

C.M.As. No.3313 and 3314 of 2008 in Civil Suit No.491 of 2008, decided on 26th November, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Arbitration Act (X of 1940), S.34---Suit for specific performance of agreement and recovery of amount---Agreement containing an arbitration clause---Stay of suit, application for---Plaintiff's plea was that before filing of suit, defendant had refused for amicable settlement, thus, was not entitled to ask for referring dispute to arbitration---Validity---Plaint showed existence of dispute between parties regarding settlement of plaintiff's share in land and completed and ongoing projects---Defendant's refusal to accept plaintiff's offer of amicable settlement could not be equated with arbitration as plaintiff in his offer had not appointed Arbitrator---Parties for resolving dispute between them had agreed to a mechanism, which could not be bypassed by filing suit---Dispute between parties was covered by agreement, thus, plaintiff was required to ask for arbitration before approaching Court---Defendants after receiving notice of suit without participating in proceedings had filed such application showing their willingness to refer dispute to arbitration---Suit was stayed in circumstances.

Mahmood Abbas for Plaintiff.

Muhammad Masood Khan for Defendants Nos.1 to 5.

CLC 2009 KARACHI HIGH COURT SINDH 413 #

2009 C L C 413

[Karachi]

Before Nadeem Azhar Siddiqi, J

GHAZANFAR ALLY EFFENDI and 3 others----Plaintiffs

Versus

ARIF EFFENDI through L.Rs. and others----Defendants

Suit No.123 of 1994 and C.MA. No.7650 of 2005, decided on 26th November, 2008.

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

----O. XXII, R.4---Suit for declaring defendant as Benamidar of suit property---Legal heirs of deceased defendant, application for impleading---Validity---Right in property claimed in pleadings against deceased defendant could not be said to be personal right of action, thus, suit could not abate---Such application could not be rejected on ground that some proposed defendants were minors---Application was accepted in circumstances.

Muhammad Iqbal and 2 others v. Ghulam Ali Shah PLD 1975 Lah. 1205; Wali and others v. Manak Ali and others PLD 1965 SC 651; Agricultural Development Bank v. Sanaullah Khan PLD 1988 SC 67 and Ali Muhammad Mirza v. Mst. Sardaran PLD 2004 SC 185 ref.

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

----O. XXII, Rr.1 to 4---Term "right to sue" as used in O.XXII, Rr.1 to 4, C.P.C.---Connotation.

The term `right to sue' refers to the right to seek same relief, which' the party is seeking at the time of death of other party and the legal heirs merely continue the proceedings, and it is the original party's rights and disabilities that have to be considered. The rule is that all rights of action existing in favour of or against a party survive, but personal actions connected with individuality of the deceased do not survive.

Wali and others v. Manak Ali and others PLD 1965 SC 651 and Ali Muhammad Mirza v. Mst. Sardaran PLD 2004 SC 185 rel.

----"Right to sue"---Connotation.

Wali and others v. Manak Ali and others PLD 1965 SC 651 and Ali Muhammad Mirza v. Mst. Sardaran PLD 2004 SC 185 rel.

Muhammad Masood Khan for Plaintiff.

Khalil-ur-Rehman for Defendants.

CLC 2009 KARACHI HIGH COURT SINDH 420 #

2009 C L C 420

[Karachi]

Before Abdul Rasheed Kalwar, J

ISRAR HUSSAIN----Applicant

Versus

Mrs. ASMAT PARVEEN ABBASI and 3 others----Respondents

C.M.As. Nos.306 of 2005 and C.M.A. No.697 of 2002 in R.A. No.109 of 2002, decided on 3rd December, 2008.

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

----O. XIII, Rr.1, 2 & O.XLI, R.27(1)--Application for production of documents as additional evidence---Non-production of such documents by plaintiff before Trial Court in spite of having availed several opportunities for such purpose---Non-filing of such application by plaintiff before Appellate Court---Non-raising any ground in memo. of appeal and revision petition by applicant complaining against non-production of such documents by Trial Court---Effect---Conduct of applicant all along had not been vigilant and diligent in pursuing case of production of evidence---Law would help vigilant and diligent litigant---High Court could not allow such application at cost of other side, which they bore in form of delay in disposal of case---Such application was dismissed in circumstances.

PLD 1993 SC 336; PLD 2002 SC 615; 2006 CLC 721; 1993 CLC 1158; 1991 CLC 1606; 2008 SCMR 1639 and 2008 SCMR 1658 ref.

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

----O. XLI, R.27(1)---Provision of R.27(1) of O.XLI, C.P.C. puts embargo on production of additional evidence in Appellate Court, while clauses (a), (b) & (c) thereof are exceptions to such embargo.

----O. XLI, R.27(1)(b)---Provision of O.XLI, R.27(1)(b), C.P.C.---Scope---Such provision being exclusively meant for Appellate Court could not be pressed into service at instance of any party to proceedings---Principles.

Clause (b) of sub-rule (1) of rule 27 of Order XLI, C.P.C. is specifically enabling provision for Appellate Court, which can only require any document to produce or any witness to be examined for pronouncement of judgment or any other substantial cause. This provision by no stretch of imagination can be pressed into service at the instance of any party to the proceedings. This is exclusively meant for the Court and Court has only jurisdiction to harness the powers envisaged in clause (b) of sub-rule (1) of rule 27 of the Order XLI, C.P.C. to meet the ends of justice.

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

----O.XLI, R.27(1)---Application for production of additional evidence---Duty of Court---Court would be bound to record reasons only in case of allowing such evidence, but not otherwise---Principles.

Clause (c) of sub-rule (1) of rule 27 of Order XLI, C.P.C. is imposing condition on the Court that if the Court exercised the discretion under the provisions of Order XLI, rule 27(a)(b) and thereby allowed additional evidence to be produced, then Court would be bound to record reasons for such admission. From the language of clause (c) of sub-rule (1) of rule 27, C.P.C. it appears that the Court has to record reasons in case of allowing admission only. If the Court refuses, then no compulsion has been put upon the Court to record reasons for refusal.

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

----O. XLI, R.27---Provision of O.XLI, R.27, C.P.C.---Nature of---Such provision being discretionary must be exercised by court judiciously, fairly and for securing ends of justice.

(f) Administration of justice---

----Law helps vigilant and diligent litigant.

Shahenshah Hussain for Applicant.

Naimatullah Soomro for Respondent No.1.

Mukhtiar Ahmed Khanzada for Respondent No.3.

CLC 2009 KARACHI HIGH COURT SINDH 433 #

2009 C L C 433

[Karachi]

Before Nadeem Azhar Siddiqi, J

RAHAT KHAN alias ZAFRI----Plaintiff

Versus

Captain (R) TAHIR NAVEED and 6 others----Defendants

C.M.As. Nos.8159 of 2008, 4447 of 2005 and 9960 of 2007 in Suit No.713 of 2005, decided on 11th November, 2008.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for declaration of title to suit-land---Application for amendment of plaint to add therein prayer of possession---Validity---Amendment could be allowed to avoid multiplicity of proceedings and determine real matter in controversy---Such prayer being a consequential relief to such declaration would not change nature and complexion of suit and cause of action---Application was accepted in circumstances.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and possession---Illegal dispossession of plaintiff from State land who alleged himself to be sub-lessee under original lessee for un-expired period of lease---Temporary injunction to restrain authority from creating third party interest in suit-land till expiry of lease period, application for---Validity---Authority had not initiated action for cancellation of original lease on ground of violation of its terms and conditions---Plaintiff had right to claim possession of suit-land on basis of documents annexed with plaint---If suit-land was further encumbered or alienated, then same would create problems in executing decree to be passed in suit---Corpus of litigation would be preserved during pendency of suit---Plaintiff had made out a prima facie case and would suffer irreparable loss in case of refusal of injunction prayed for---Application was accepted in circumstances.

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Essential conditions---Plaintiff had to make out a prima facie case and to show that in case of refusal of injunction, he would suffer irreparable loss.

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

----O. XXXIX, Rr.1 & 2---Temporary injunction, grant of---Purpose---Corpus of litigation would be preserved during pendency of proceedings.

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

----O. I, Rr.3 & 10(2)---Specific allegations and prayer made against a party---Effect---Such party could not be said to be unnecessary and improper party to proceedings---Principles.

Mirza Sarfaraz Ahmed for Plaintiff.

Amir Ali for Defendants Nos.1, 2 and 4.

Ms. Shamim Akhtar for Defendant No.3.

Qazi Majid Ali, Asstt. A.-G. for Defendants Nos.4 and 5.

Ahmed Pirzada for Board of Revenue.

CLC 2009 KARACHI HIGH COURT SINDH 440 #

2009 C L C 440

[Karachi]

Before Ali Sain Dino Metlo, J

HASHIM KHALIL KHAN----Petitioner

Versus

VIIITH CIVIL AND FAMILY JUDGE AND JUDICIAL MAGISTRATE, KARACHI SOUTH and another ----Respondents

Constitutional Petition No.S-138 and C.M.As. Nos.977, 978 of 2008, decided on 13th November, 2008.

Constitution of Pakistan (1973)---

----Arts. 189 & 201---Decision of High Court and Supreme Court, binding force of---Extent---Article 189 of the Constitution provides that any decision of the Supreme Court deciding a question of law or enunciating a principle of law, was binding upon all other courts in Pakistan; and according to Art. 201 of the Constitution, a decision of the High Court deciding a question of law or enunciating a principle of law was binding on all courts subordinate to it, which had shown that binding nature of a decision of a superior court was only to the extent of question or principle of law decided or enunciated by it.

Muhammad Aziz Khan for Petitioner.

Ms. Azima Naseer for Respondent No.2.

CLC 2009 KARACHI HIGH COURT SINDH 449 #

2009 C L C 449

[Karachi]

Before Munib Ahmad Khan, J

DESIYON DAVID & HICKS through Proprietor and others----Appellants

Versus

NATIONAL BANK OF PAKISTAN through Regional Headquarter----Respondent

First Rent Appeals Nos.1112, 1113, 1114 and 1115 of 2000, decided on 28th November, 2008.

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

----Ss. 2(G), 17 & 24---Bona fide personal need of landlord---Maintainability of ejectment application filed by landlord was challenged by the tenant alleging that it was incompetently filed and that Cantonments Rent Restriction Act, 1963 was not applicable in the case---Validity---Application had been filed by the landlord/Bank through its attorney whose power of attorney had been filed during the proceedings and had not been challenged on the ground that the executant of the attorney had no authority to sign that attorney---Rent agreement was executed with the tenant by the landlord Bank through its attorney and application for ejectment was also filed by the attorney while affidavit in evidence was also filed by the attorney of the landlord/Bank--Ejectment application in, circumstances was competently filed---Landlord/bank was a statutory body and counsel for the tenants had failed to point out as to how Cantonments Rent Restriction Act, 1963 would not apply---Tenants in the case were enjoying the premises as a tenant since, 1970 and for such a long period, no action was taken by the landlord/bank---Bank, with the growth In the business, could require premises, while unrebutted proof was that Corporate branch/Regional Head Quarter of the bank had been shifted to the branch and. the intention of the bank was to convert that branch into corporate branch---Intention of the landlord, in circumstances, could not be doubted---Even otherwise according to S.17(6) of the Cantonments Rent Restriction Act, 1963, law had itself provided check upon the desire of a landlord by providing that if the landlord, after attaining the premises in bona fide need, would not possess the same within a month, then tenant could make an application to the Rent Controller for re-possession---When the need of the landlord/bank had not been put under clouds nor demand of increased rent could jeopardize the bona fide need while shifting of the Regional Head Quarter had not been disproved; and the bank's desire to expand its business had not been specifically rebutted, the Rent Controller had rightly found that need of the landlord/bank was bona fide and ejectment of tenant had rightly been ordered---Order passed by the Rent Controller was maintained and appeals dismissed.

PLD 1971 SC 550; 2000 SCMR 472; PLD 1999 Kar. 260; PLD 1985 Kar. 624; PLD 1986 Kar. 637; 1999 CLC 1676; 1989 SCMR 1336; 1990 SCMR 1070; 1996 SCMR 97; 1996 SCMR 1178 and 1990 MLD 538 ref.

Shahenshah Hussain for Appellants.

Zubair Quraishy for Respondent.

Date of hearing: 20th November, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 459 #

2009 C L C 459

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Mrs. BADAR RAHIM----Appellant

Versus

HAMMAD ASIF DOSSLANI and another----Respondents

High Court Appeal No.381 of 2008, decided on 16th January, 2009.

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

----O. XXVI, R.4 & O.X, R.1-A---Issuance of Commission for examination of evidence---Scope---Consent of parties---Necessity.

In terms of Order XXVI, rule` 4, C.P.C. Commission for examination of evidence can be issued within the limits provided, however, by consent of the parties Commission can be issued for examination of witnesses even in the matter which is not covered by rule 4 of Order XXVI, C.P.C. Order X, Rule 1A, C.P.C. provided that with the consent of the parties Commission to examine parties can be issued.

Normally Commission can be issued for recording of evidence by consent of the parties to decide the case expeditiously. However, if the Court is of the opinion that one of the parties, will be benefited by delaying proceedings, one party is in possession of the property in question enjoying part payment, and by not giving consent for recording of evidence on Commission, in exercise of inherent power can order to record the evidence on Commission. Such directions can be exercised for advancement of justice and should not prejudice interest of one of the parties. Procedural law is meant for advancement of justice and to expedite decision of dispute, rather than to delay grant of right: to a party.

Principal object behind all legal formalities is to safeguard the paramount interest of justice and mere technicalities, unless offering an insurmountable hurdle, should not be allowed to defeat the ends of justice. C.P.C. provides procedural code with overriding objective, to enable the Court to deal with the case absolutely.

The Civil Procedure Code provides a procedural code with an overriding object to enable Court to deal with cases justly, to provide justice to the parties according to law, within a reasonable timeframe, to meet requirement of Article 37(d) of the Constitution.

Mrs. Shahnaz and others v. Hamid Ali Mirza 2006 CLC 1737 and Jameel Ahmed v. Late Saifuddin through L.Rs. 1997 SCMR 260 ref.

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

12---Relief of specific performance being an equitable relief, delay in deciding the dispute not only adversely affects the interest of both the parties before the Court but may also disentitle the party asking relief for specific performance.

Nasir J.R. Shaikh for Appellant.

CLC 2009 KARACHI HIGH COURT SINDH 466 #

2009 C L C 466

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

M. AYUB----Plaintiff

Versus

FEDERATION OF THE ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Commerce, Government of Pakistan and 2 others----Defendants

Suit No.1714 of 1997, decided on 27th January, 2009.

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

----S. 73---Breach of obligation by Export Promotion Bureau---Suit for damages with future mark-up till its realization---Quota for export of goods for relevant year purchased by plaintiff from open market according to legally permissible practice---Mentioning of such quota in plaintiff's Pass Book by Export Promotion Bureau---Application form submitted to Bureau for transferring such quota in favour of another company---Non-authentication of such transfer by the Bureau before expiry of quota period---Plaintiff's claim against Bureau for depriving him of his finance and legitimate right to earn profit thereon---Validity---If Export Promotion Bureau had any objection on such transfer, then plaintiff must have been intimated immediately---Bureau had failed to perform their obligation by non-authenticating such transfer and non-replying same immediately---Plaintiffs' quota had expired at the end of relevant year due to such inaction of the Bureau---Plaintiff had been injured on account of breach of obligation created by contract---Suit was decreed accordingly.

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

----S. 73---Suit for grant of compensation for loss allegedly caused by breach of charter of obligations by defendant---Scope---If defendant had not committed any act in violation of such charter, then he could not be penalized to pay damages for loss sustained by plaintiff for his own act of negligence.

Salahuddin Ahmed for Plaintiff.

S. Afsar Ali Abidi for Defendants.

Date of hearing: 14th January, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 477 #

2009 C L C 477

[Karachi]

Before Sarmad Jalal Osmany, J

Syed SULTAN ALI through legally constituted Attorney----Plaintiff

Versus

Sahibzada FROGH NAJAM NAJMI and 2 others----Defendants

Civil Suit No.765 of 1999, decided on 9th January, 2001.

Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 70-A---Civil Procedure Code (V of 1908), O.VII, R.11---Bar of jurisdiction---Scope---Plaint, rejection of---Dispute related to allotment of plots to members of Co-operative Housing Society and had arisen between the plaintiff and defendant both of whom claimed through past members of the Cooperative Housing Society---Matter in question had to be referred to the Registrar of the Society under S.54, Cooperative Societies Act, 1925 and thus the suit was barred in terms of Ss.54 & 70-A of the said Act---Plaint in the suit, in circumstances, was liable to be rejected.

Muhammad Ikram Siddiqui for Plaintiff.

Mrs. Salima Nasiruddin for Defendant No.1.

CLC 2009 KARACHI HIGH COURT SINDH 484 #

2009 C L C 484

[Karachi]

Before Azizullah M. Memon and Abdur Rehman Faruq Pirzada, JJ

YOUTH ENRICHMENT NETWORK (PVT.) LTD. through Chief Executive----Petitioner

Versus

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

Constitutional Petition No.D-924 of 2007, decided on 2nd February, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Illegal construction---Authorities had issued notice to petitioner for removing illegal and unauthorized structure raised on building in question whereby residential building was being used for commercial purposes---Plea raised by petitioner was that many other residential buildings were being used for commercial purposes and as petitioner was running educational institution in the building, therefore, plot being an amenity plot could be termed as commercial unit---Validity---Petitioner had admitted conversion from residential to commercial but he could not be allowed to violate the rules on the plea that other persons had also violated the rules---Petitioner failed to cite any specific law to substantiate his plea that amenity plot could be termed as commercial plot---Petitioner had also made additions/ alterations in building structure without prior approval of competent authority, thus, authorities had committed no illegality by issuing notice to petitioner---Petition was dismissed in circumstances.

Syed Jamil Ahmed for Petitioner.

Ghulam Haider Shaikh for K.B.C.A.

Manzoor Ahmed for C.D.G.K.

CLC 2009 KARACHI HIGH COURT SINDH 491 #

2009 C L C 491

[Karachi]

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

UNITED BANK LTD.---Appellant

Versus

Mrs. JAMEELA MUMTAZ and 8 others---Respondents

Special H.C.A. No.272 of 2005, decided on 20th January, 2009.

Civil Procedure Code (V of 1908)---

----S. 73 & O.XXXIV, R.13---Sindh Chief Court Rules, R.337---Karachi Port Trust Act (VI of 1886), S.46---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.19 & 15---Distinction between S.47 and O.XXXIV, R.13, C.P.C.---Execution of decree---Sale of mortgaged property---Several decree-holders---Application of proceeds---Preferential right of a decree-holder---Principles---Karachi Port Trust being one of the decree-holders whose rights had been protected and safeguarded by virtue of S.46, Karachi Port Trust Act, 1886 and decree being operative in favour of the Trust and the Trust also having been impleaded as party in the execution proceedings in view of R.337, Sindh Chief Court Rules and S.73, C.P.C. whereas no such protection was available to the other decree holders, as such the Court had rightly given preference to the claim of Karachi Port Trust.

There is vast difference between section 47 and O.XXXIV, R.13, C.P.C. as by virtue of section 73, C.P.C. it is condition precedent that there must be more than one creditor who are required to file application in writing before the Court for execution of decree for payment of money awarded against the judgment-debtor and in view of fourth condition to clause (c) to section 73, C.P.C. the Court shall have to distribute rateably amongst the decree-holders who, prior to sale of the property, had applied to the Court who passed the decree, for its satisfaction whereas Rule 13 of Order XXXIV, C.P.C. does not speak about the proposition when there are more than one decree-holders, how the mortgage decree is to be executed. Thus the provision of section 73, C.P.C. provides complete code and method for satisfaction of money decree obtained by the different decree-holders to get it satisfied from the mortgage decree passed against the judgment debtor, in other suit after compliance of conditions enumerated in section 73, C.P.C. In the present case admittedly there were more than one decree-holders who possessed money decree in their favour passed in different suits by different courts and the court keeping in view the applicability of section 73, C.P.C. proceeded to determine the preferential right of the decree holder amongst several decree-holders and after pondering the relevant law in favour of the various decree-holders opined that Karachi Port Trust, in view of S.46 of Karachi Port Trust Act, 1886 had a preferential right to get the decree in its favour satisfied, being government dues.

Section 46 of the KPT Act, 1886 provides that for all the amount of tolls, dues, rates and charges leviable under this Act in respect of any goods, the Board shall have a lien on such goods, and shall be entitled to seize and detain the same until such tolls, dues, rates and charges are fully paid and for the amount of rent lawfully due on buildings, plinths, stacking areas and other premises, the property of the Board, and not paid after bills therefor have been duly preferred, the Board shall have all lien on all goods, therein or thereon, and shall be entitled to seize and detain the same, and that the lien for such tolls, dues, rates and charges shall have priority over all other liens and claims, except a lien for freight, primage and general average, where such lien has been preserved. Section 46 of Karachi Port Trust Act, 1886 therefore fully protects the right of the KPT including the right of recovery of the land and the outstanding dues of the rent including other claims have been protected by way of statute and creates charge over all the goods or the properties. Admittedly the money decree was operating in favour of the KPT, which being Government dues had created lien and charge over the mortgage decree involved in the present suit, in view of section 46 of the Karachi Port Trust Act, 1886 and KPT had been joined as party in execution proceedings. Court had rightly given preference to the claim of the KPT for the reasons that the other decree-holders and the bank had not pointed out any statutory protection in their favour.

It is also an admitted position that Karachi Port Trust was impleaded as a party on its written application in view of rule 337 of the Sindh Chief Court Rules which speaks about becoming a party in the execution application and admittedly the Bank/decree-holder was never impleaded as party in compliance of the Rule 337 as such the Banks had no preferential right against the right of the KPT and the Court rightly observed that the claim of the KPT had statutory protection in view of section 46 of KPT Act.

The right of the KPT being statutory had been safeguarded and protected by virtue of section 46 of Karachi Port Trust Act and the decree was also operating in their favour and also they had been impleaded as party in the execution proceedings, whereas no such statutory protection had been enlightened for the decree-holders/Bank nor they were impleaded as party in view of rule 337 of Sindh Chief Court Rules and section 73, C.P.C. as such, the Court had rightly given preference to the claim of KPT and there was no illegality or irregularity in the order.

Messrs United Bank Limited v. Muhammad Majeed alias Abdul Majeed, 1991 CLC 1102; Mst. Shanti v. Karachi Transport Corporation and others 2000 CLC 595 and Mst. Sooban Bibi v. Mst. Khatoon and others PLD 2001 Lah. 245 distinguished.

Messrs Industrial Development Bank of Pakistan v. Maida (Pvt.) Limited 1994 SCMR 2248; Oudh Commercial Bank Ltd. v. Secretary of State AIR 1935 Lah. 319(2); Messrs United Bank Limited v. Muhammad Majeed alias Abdul Majeed, 1991 CLC 1102; Mst. Shanti v. Karachi Transport Corporation and others 2000 CLC 595 and Mst. Sooban Bibi v. Mst. Khatoon and others PLD 2001 Lah. 245 ref.

Aziz-ur-Rehman for Appellant.

Safdar Mahmood for Respondent No.8.

CLC 2009 KARACHI HIGH COURT SINDH 510 #

2009 C L C 510

[Karachi]

Before Faisal Arab, J

ABDUL HAQUE and others----Applicants

Versus

Mst. AASI through L.Rs. and others--Respondents

Civil Revision No.120 of 2004, decided on 19th December, 2008.

Islamic law---

----Gift---Proof---Plaintiffs claimed that their grandfather gifted suit land in favour of their father, therefore, sisters of their father had no right or title over the suit lands---Both the courts below had concurrently dismissed the suit and appeal filed by plaintiffs---Validity---Keeping the gift secret from the world showed that no open declaration of gift was made, hence gift in question lacked basic ingredients of a valid gift i.e. open declaration that the property was being gifted and its possession was also being handed over to donee---By making declaration of gift and handing over possession in open and unconditional manner, gift was in fact acted upon thereby announcing to whole world that the property had been gifted---Gift deed in question, apart from being declared as fabricated and unproven document as was held by both the courts below, was also liable to be declared as invalid being devoid of basic ingredients which constituted a valid gift--High Court keeping in view concurrent findings of both the courts below declared alleged gift as defective and invalid---High Court did not find any legal justification to interfere with concurrent findings of the Courts below---Petition was dismissed in circumstances.

Sundar Das for Applicants.

Ayaz Latif Palijo for Respondents Nos.6 and 10.

Muhammad Azeem Panhwar, Addl. A.-G. Sindh for Official Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 529 #

2009 C L C 529

[Karachi]

Before Abdul Rasheed Kalwar, J

FEROZ HUSSAIN and 2 others----Applicants

Versus

EXECUTIVE ENGINEER, MITHRAO DIVISION, MIRPURKHAS and 4 others----Respondents

Civil Revision Application No.22 and C.M.A. No.104 of 2005, decided on 14th November, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11(d)---Rejection of plaint---Bar of limitation---Scope---Trial Court and Lower Appellate Court concurrently rejected the plaint filed by plaintiffs on the ground of its being time barred---Plea raised by plaintiffs was that question of limitation was a mixed question of law and fact and it could not be decided without recording of evidence---Validity---Plaintiffs had specifically stated in plaint that they had knowledge about change of R.M.S. one week before filing of the suit and there was no occasion to disbelieve such statements of plaintiffs, contained in plaint---Even if such statement as to limitation was disputed then it could only be resolved by framing issue on the point of limitation and after affording opportunity to all parties for adducing their evidence and proving or disproving the issue in the manner provided under law---Rhetoric and discussion as incorporated in the orders of two courts below, appeared as if it was a full dress trial---Such practice of lower courts resorting to resolve factual controversies and deciding mixed questions of facts and law at the time of decision on application under O.VII, R.11, C.P.C. was disapproved by High Court---Orders passed by both the courts below were set aside by High Court---Revision was allowed in circumstances.

1994 MLD 207; 2004 CLC 799; 1989 SCMR 824 and 2002 SCMR 338 distinguished.

Noor Ahmed Memon for Applicants.

Mukhtar Ahmed Khanzada, State Counsel along with Moula Bux, AXN Naukot.

CLC 2009 KARACHI HIGH COURT SINDH 722 #

2009 C L C 722

[Karachi]

Before Abdul Rasheed Kalwar, J

MADRASA TALEEM-UL-ISLAM BANORIA through President----Applicant

Versus

CITY NAZIM and another----Respondents

Civil Revision Application No.49 of 2006, decided on 19th February, 2009.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Karachi Development Authority Order. (V of 1957), Preamble---Suit for declaration and permanent injunction---Islamic Madrassa constructed. in year 1977 over a plot earmarked for commercial purposes without getting its allotment from Karachi Development Authority---Readiness of plaintiff-Madrassa to pay cost/auction price of suit plot to Authority---Validity---Plaintiff was neither owner nor lessee of the suit plot---Mere possession over suit plot since 1977 would not create any right in favour of plaintiff---Law did not provide plaintiff a right of prior purchase---Record did not show existence of any obligation, either express or implied, in favour of plaintiff---No contractual relationship existed between plaintiff and authority, which might have Created any contractual obligation in plaintiff's favour---Plaintiff has not established any right to suit plot---No prayer was made in plaint regarding title, legal character or right in suit plot---Plaintiff, in absence of legal character or right to suit plot could not seek protection of law tinder Ss.42 and 54 of Specific Relief Act, 1877---Plaintiff had failed to fulfil requirements for grant of perpetual injunction as laid down in S.54 of Specific Relief Act, 1877---Suit was dismissed in circumstances.

Muhammad Irfan for Petitioner.

Syed Sultan Ahmed for C.D.G.K.

CLC 2009 KARACHI HIGH COURT SINDH 731 #

2009 C L C 731

[Karachi]

Before Khilji Arif Hussain and Faisal Arab, JJ

Dr. ABDUL HAKIM ABRASH----Appellant

Versus

ACE SECURITIES (PVT.) LTD.----Respondent

High Court Appeal No.285 of 2008, decided on 25th February, 2009.

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

---S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Transfer of Property Act (IV of 1882), S.53-A---Suit for specific performance of sale agreement--- Ejectment petition, pendency of--- Defendant on 1-6-2005 entered into tenancy agreement with plaintiff for 11 months i.e. upto 30-4-2006--Tenancy agreement provided that after expiry of its fixed term, a fixed amount for each day would become payable by plaintiff till delivery of vacant possession to defendant---Sale agreement between parties made on 3-6-2005 providing for payment of second instalment upto 30-4-2006, resulting possession of plaintiff over property, would be deemed under sale agreement---Failure of defendant to receive second instalment of price on 24-4-2006 and filing of suit on 26-5-2006 by plaintiff---Order of status quo with regard to possession of property subject to furnishing Bank guarantee by plaintiff---Validity---Plaintiff had paid rent for 11 months, whereafter he was not liable to pay rent under rent agreement as after payment of second instalment of sale price, possession of property had to be deemed under sale agreement, thus plaintiff was entitled to protection of S.53-A of Transfer of Property Act, 1882---High Court directed Rent Controller to proceed with rent case, but not to execute final order till decision of suit.

Mst. Azeemun Nisa Begumi v. Ali Muhammad PLD 1990 SC, 382 and Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 ref.

(b) Interpretation of document---

----Substance of document and not its form must be kept in mind while interpreting the same---Principles.

Document must be considered as a whole and intention of the parties is to be discovered from the contents of the document, meaning thereby substance of the document must be kept in mind and not form of the document.

Rasheedur Rehman Khan v. Mian Iqbal Hussain 2006 SC 418 rel.

Asif Ali Pirzada for Appellant.

Haider Waheed for Respondent.

CLC 2009 KARACHI HIGH COURT SINDH 812 #

2009 C L C 812

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Messrs HILTON PHARMA (PVT.) LTD. through Manager Finance----Petitioner

Versus

PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 5 others----Respondents

Constitutional Petition No.D-1337 of 2008, decided on 18th March, 2009.

Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----Ss. 5, 6 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Laches---Cargo Throughput Charges (CTC), imposing of---Civil Aviation Authority---Powers---Petitioner was one of the contractors who had been collecting Cargo Throughput Charges (CTC) since its imposition in year, 1984---Petitioner assailed imposition of Cargo Throughput Charges (CTC) by Civil Aviation Authority in year, 2008---Validity---Civil Aviation Authority had all powers and authority vested in it by virtue of Pakistan Civil Aviation Authority Ordinance, 1982, to frame schemes for betterment of Authority and also to generate funds by imposing and collecting fees and shares in respect of commercial exploitation of authorities' property etc.---Petitioner was found guilty of laches because it was in knowledge of such scheme since the date of its imposition as being one of the contractors, was acting upon the scheme of Cargo Throughput Charges (CTC) and was collecting the same in accordance with the spirit of the scheme---Petition was dismissed in circumstances.

Collector of Customs v. Shaikh Cotton Mills 1999 SCMR 1402; Messrs H.A. Rahim & Sons (Pvt.) Ltd. v. Government of Sindh and another 2003 CLC 649; Ayaz Textile Mills Ltd. v. Federation of Pakistan PLD 1993 Lah. 194; Cannon Products Ltd. v. Income Tax Officer Companies Circle, Karachi PLD 1985 Kar. 572; M. Afzal & Sons v. Federal Government of Pakistan PLD 1977 Lah. 1327; Messrs Pioneer Traders v. Government of Sindh and others PLD 2006 Kar. 648 and Sanofi Avents Pakistan Ltd. v. Province of Sindh and others PLD 2009 Kar. 69 distinguished.

Muhammad Farogh Naseem for Petitioner.

Umer Hayat Sandhu, D.A.-G. for Respondent No.1.

Zahid F. Ebrahim for Respondents Nos.2 to 6.

CLC 2009 KARACHI HIGH COURT SINDH 824 #

2009 C L C 824

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

FAROOQ INAYAT and another----Appellants

Versus

Haji ABDUL SATTAR and 9 others----Respondents

High Court Appeal No.62 of 1996, decided on 20th March, 2009.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.10 & 14---Limitation Act (IX of 1908), Arts.91 & 120---Civil Procedure Code (V of 1908), O.VII, R.11---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Rejection of plaint---Cancellation of Permanent Transfer Deed---Limitation---Mixed question of law and fact---Proof---Permanent Transfer Deed executed in year, 1964, in favour of predecessor-in-interest of plaintiffs was cancelled by authorities on 29-7-1979, which order was assailed in year, 1995---Single Judge of High Court rejected plaint on the ground that suit filed by plaintiff was barred under Art.91 of Limitation Act, 1908 as well as under S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Validity---At the relevant time, Deputy Settlement Commissioner or Settlement Commissioner had no lawful authority or powers to cancel Permanent Transfer Deed issued earlier in year, 1964---Even otherwise plaintiffs had relied upon applicability of Art.120 and not Art.91 of Limitation Act, 1908, on the premises that they came to know about order regarding cancellation of Permanent Transfer Deed in some proceedings before Evacuee Trust Board---Applicability of question of limitation being mixed question of law and facts required evidence---Question of applicability of Art.91 or 120 of Limitation Act, 1908 could only be considered if parties were allowed an opportunity to lead their evidence on such aspect of the matter---Suit could not be rejected under O.VII, R.11 C.P.C. as prayer clause contained multiple prayers including prayer of refund of repair amount incurred by predecessor-in-interest of plaintiffs against defendants which could only be considered on adducing evidence by parties or admission of defendants in their written statements---Division Bench of High Court set aside the order passed by Single Judge and remanded the case for decision afresh---Intra Court Appeal was allowed in circumstances.

Tariq Mahmood Chaudhry v. Najamuddin 1999 SCMR 2396; Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236; Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 288; Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance, Revenue and Economic Affairs Islamabad PLD 2005 SC 842; Federal Government of Pakistan v. Khurshid Zaman Khan and others 1999 SCMR 1007; Sardar Ahmed Yar Khan Jogezai and others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122; Sultan Hassan Khan and others v. Mst. Nasim Jahah and others 1994 SCMR 150; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and others v. Hakeem Hafiz Muhammad Ghaus and others PLD 1997 SC 3; Jan Muhammad through Mubarik Ali and others v. Nazir Ahmed and others 2004 SCMR 612; Wali and others v. Akbar and others 2005 SCMR 284; Abdul Waheed v. Mst. Ramzanu and others 2006 SCMR 489 and Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785 ref.

Deputy Administrator, E. T. P. B. v. Badal and others 2005 SCMR 1286; Khawaja Bashir Ahmed v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604; Muhammad Younus and others v. Muhammad Younus Khan 1981 SCMR 899; Muhammad Shati v. Mushtaq Ahmed and others 1996 SCMR 865; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Chaudhry Altaf Hussain v. The Chief Settlement Commissioner PLD 1965 SC 68; Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294 and Malik Khawaja Muhammad and others v. Marduman Baber Kahol and others 1987 SCMR 1543 rel.

Khalid Mahmood and others v. Chaudhry Ghulam Muhammad 1982 SCMR 557; Wali and others v. Akbar and others 1995 SCMR 284; Evacuee Trust Properties Board and another v. Akhtar and others 2004 SCMR 440; Federation of Pakistan through Secretary, Ministry of Finance, Government of Punjab and others v. United Sugar Mills PLD 1977 SC 397; Deputy Commissioner Pasheen v. Abdul Salam and others PLD 1993 Quetta 121 and Dr. Syed Raza Gardezi v. Nazad Ali PLD 2004 Kar. 143 distinguished.

Khalid Farooqui along with M. Asif Malik for Appellants.

Khalil-ur-Rehman, Anjm Ghani, Haider Shaikh, Ashiq Ali Anwar Rana and Umer Hayat Sandhu, D.A.-G. for Respondents.

Date of hearing: 19th February, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 843 #

2009 C L C 843

[Karachi]

Before Gulzar Ahmed, J

FATEH SPORTS WEAR LIMITED----Plaintiff

Versus

RUSSIAN FEDERATION through Ministry of Foreign Economic Relations and Trade of the Russian Federation (MFER of Russia) and another----Defendants

Suit No.395 of 2000, decided on 5th March, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Declaration and recovery of money---Proof---In cross-examination witness of plaintiff categorically admitted that plaintiff had accepted award and did not prefer any appeal against the same---Witness of plaintiff did not deny the suggestion that agreement between Russian Federation and Government of Pakistan specifically provided that payment of plaintiff's claim was to be settled by buyer itself---Plaintiff's witness further stated in cross-examination that suit was based on arbitration award---Such facts which were admitted by plaintiff established the fact that Rosvenshtrog was a legal entity separate from Russian Federation and was liable to meet its own obligations incurred by contract made with plaintiff---No evidence was produced by plaintiff to establish the fact that Rosvenshtrog was a department of Russian Federation---Award produced by plaintiff in evidence was contrary to such plea of plaintiff---Plaintiff failed to establish liability of Russian Federation for the claim made in the suit, therefore, High Court declined to deal with further issues in the suit---Suit against other defendant had already been dismissed as withdrawn---Suit was dismissed in circumstances.

Arshad Tayabali for Plaintiff.

Taswar Ali Hashmi for National Bank of Pakistan.

Date of hearing: 27th February, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 852 #

2009 C L C 852

[Karachi]

Before Mrs. Qaiser Iqbal and Arshad Siraj Memon, JJ

MUHAMMAD ASLAM RAHU----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others----Respondents

Constitutional Petition No.D-231 of 2009, decided on 16th March, 2009.

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

----Ss. 128, 129, 130, 131, 132 & 133---Constitution of Pakistan (1973), Art.199---Constitutional petition---Inquiry against Nazim---Allegation of corruption---Petitioner was Taluqa Nazim and Provincial Government directed District Coordination Officer (DCO) to initiate inquiry against him--Validity---Inquiry initiated by District Coordination Officer (DCO) with reference to allegations of corruption was not rightly assigned to him, which had not yet materialized---Matter could only be adjudicated by inquiry committee and not by District Coordination Officer---Petitioner had rightly contended that such action against him was to keep him away from his office and the same was based upon mala fides---Validity---Even if there was any substance in the allegations against petitioner the procedure provided for that purpose under law should be followed and matter referred to relevant quarters for holding an inquiry---Order passed by authorities for holding inquiry was declared without lawful authority and of no legal effect---Petition was allowed in circumstances.

Muhammad Shahid Alam v. The Provincial Local Government Commission and others 2004 MLD 2010 rel.

Naeem Iqbal for Petitioner.

Shafi Muhammad Memon, Addl. A.-G. for Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 883 #

2009 C L C 883

[Karachi]

Before Faisal Arab, J

MUHAMMAD NAVEED----Plaintiff

Versus

TEEJAYS EXCLUSIVE (PVT.) LTD. through Managing Director and another----Respondents

Suit No.1038 of 2004, decided on 13th April, 2009.

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

----Ss. 8 & 43---Contract Act (IX of 1872), S.55---Specific performance of agreement for sale of immovable property, suit for---Non-payment of balance price by plaintiff within period fixed in agreement---Legal notice to defendant issued four weeks after expiry of stipulated period repudiating agreement and forfeiting paid amount for such failure of plaintiff---Plea of plaintiff that before payment of balance amount, defendant had to get suit plot commercialized from Ministry of Works and Housing, which he had failed to do so---Validity---Neither evidence on record nor agreement showed that defendant had taken upon himself to get suit plot commercialized before its transfer in favour of plaintiff---Parties at time of execution of agreement with mutual consent had deleted clauses proposed by plaintiff regarding commercialization of suit plot by defendant---Specific performance of such deleted clauses of agreement could not be enforced---Plaintiff's failure to pay balance price within stipulated time on account of his improper insistence on getting suit plot commercialized had established that he was not ready and willing to complete sale transaction at relevant time in terms of agreement---Plaintiff was, thus, not entitled to equitable relief of specific performance of contract---Suit was dismissed in circumstances.

2003 YLR 2793; 1996 MLD 60; 2004 SCMR 584 and PLD 1995 SC 423 ref.

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

----Ss. 12 & 55---Immovable property, sale of, agreement for---Time as essence of such contract---Determining factors stated.

Whether time is essence of contract or otherwise, can be ascertained from the terms of the agreement and other attending circumstances. Generally in agreement for sale of immovable property, time is not the essence of the contract. However, parties may consciously bind each other for due performance within stipulated time and seek strict compliance on failure of penal consequences provided in the agreement.

In a transaction for sale of immovable property, time is never considered to be of the essence of the contract, unless it is specifically made so in the contract itself. Such a contract continues to remain enforceable as it was before the expiry of the time specific therein and continues to bind the parties.

----Ss. 8 & 37---Clause or stipulation in agreement imposing an obligation on a party---Deletion of such clause or stipulation by parties consciously---Effect---Specific performance of such stipulation could not be enforced.

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

---Ss. 18 & 40---Misrepresentation by promisor---Remedy of promisee---Scope---Promisee might rescind contract with whatever deficiency as might be complained of---Promisee could not be allowed to blow hot and cold in same breath.

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

---O. XXXIX, Rr.1 & 2---Temporary injunction, application for---Interpretation and observations of Court while disposing of such application---Validity---Court while finally deciding suit would not be bound to adopt such observation.

(f) Interpretation of documents---

---Nothing could be read in written contract more than what was written therein---No oral term said to be orally agreed would be implanted or supplanted in written contract nor could any party lead evidence to prove same---Principles.

When there is a written contract between the parties, then nothing can be read more than what is written therein. No term said to be orally agreed is to be implanted or supplanted in a written contract. It is also a rule of evidence, as laid down in Article 103 of Qanun-e-Shahadat, 1984 that if the parties intend to add, vary, contradict or delete any term of a written contract, then they must do this as well in writing. Any addition, variation, contradiction or deletion of a written contract said to be arrived at by the parties orally, is of no value and no party is even allowed to lead evidence to prove such oral agreement, if it pertains to variation deletion or contradiction of any term of a written contract [Qanun-e-Shahadat, 1984, Art.103].

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

----Ss. 43 & 55---Immovable property, sale of, contract for---Contract not specifically making time essence thereof---Party defaulting to perform contractual obligations within time specified in contract and then within notice period---Rights and remedies of aggrieved party against defaulting party stated.

A party cannot unilaterally put an end to such a contract. But then parties have to perform their part of the obligation within reasonable time. A party cannot be allowed to enjoy the entire duration of three years within which a suit for specific performance of the contract can be brought before the Court. Even in contract, where no time for performance is provided, section 46 of the Contract Act mandates that the same has to be performed within reasonable time. In contract, where time is not of the essence and a party fails to perform its contractual obligations within the specified time, then an aggrieved party has to call upon the defaulting party to perform the contract within a reasonable period. This is to be done by serving notice on the defaulting party, thereby making time essence of the contract and gaining the option to unilaterally treat the contract as terminated at the expiry of the notice period.

Where the seller fails to complete the transaction within the specific time, then the buyer, at his option, may either choose to sue the seller for specific performance of the contract and while doing so he may also seek damages, either in the alternative or in addition to the relief of specific performance, against the seller or any loss that may have occasioned to the buyer. However, on account of seller's failure to perform, the buyer also intends to discharge himself of the obligations arising from the contract, then the buyer has to first serve notice upon the seller giving him reasonable time to complete the transaction. Serving of notice makes the time essence of the contract. In case, the seller still does not come forward to complete the transaction within the notice period, the buyer becomes entitled to treat himself discharged from his contractual obligations and seek return of all monies that he has paid to the seller under the contract.

Where the buyer fails to complete the transaction within the specified time and the seller intends that he (seller) should be discharged of his contractual obligations under the contract, then the seller must also serve legal notice on the buyer in the same manner as the buyer is to serve on the seller. When buyer fails to perform his contractual obligations within the notice period, the seller stands discharged of his contractual obligations. He then becomes entitled to forfeit the earnest money and, at his option, sue the buyer for damages for any loss that may have occasioned to the seller on account of non-performance of the contract by the buyer.

A notice period of at least thirty days is reasonable period of time for making time essence of the contract within which a defaulting party has to complete the transaction. A party who seeks discharge of its obligations arising from the contract need not have to serve notice in the manner stated above, when the other party has already communicated in writing its refusal to perform the contract. The refusal in writing by a defaulting party by itself demonstrates inappropriate conduct, justifying unilateral rescission of the contract by the aggrieved party, in case it does not wish to seek specific performance of the contract. Thus, upon refusal in writing, the contract instantly becomes voidable at the option of the aggrieved party. This difference between the refusal in writing to perform the contract and failure to perform must always be kept in mind. Therefore, in order for an aggrieved party to discharge itself of the obligations arising from the contract, notice is required to be served on the defaulting party only when there is failure of the defaulting party to perform its contractual obligations and not when there is outright refusal in writing.

Where a seller either fails or refuses to convey the plot and the buyer is interested in seeking conveyance of the property, then in order for the buyer to succeed in his suit for specific performance, it is incumbent upon the buyer to demonstrate that he is-and at all material times was ready and wiling to perform his part of the contract. One of the requirement of demonstrating readiness and willingness of the buyer is that he does not keep quiet for weeks altogether merely because the seller has either failed to perform his contractual obligations or through his improper conduct has avoided or unnecessarily sought extension in the completion of the transaction. If the seller fails to perform his contractual obligations within the specified time, then immediately after expiry of the stipulated period, the buyer should diligently seek enforcement of his rights under the contract by calling upon the seller in writing to complete the transaction. The Court would not grant the decree for specific performance merely because statute of limitation entitles a buyer to file suit for specific performance within three years from the date stipulated in the contract for its performance. After the expiry of the time specified in the contract, if the buyer unnecessarily tries to extend finalization of the transaction on unwarranted grounds, then in such eventuality, the Court shall deny the buyer the relief of specific performance of the contract.

Thus, the failure on the part of the buyer may not entitle the seller to unilaterally repudiate the contract without first serving notice in the manner stated above.

In case, the undue avoidance to complete the contract on the part of the buyer is ignored on the ground that time is not the essence of the contract, then it would amount to thrusting the contract upon the seller for no fault of his own. This may result in irreparable financial loss to the seller. Immovable properties are sold for no ordinary reasons. In the present day, inflationary economy, the prices of real estate fluctuate rapidly. If the conduct of the buyer which is intended to unnecessarily protract the finalization of the transaction is overlooked or condoned, then the same may unduly benefit the buyer on the one hand and at the same time keep the seller tied to the contract to his disadvantage. This would certainly create inequitable balance between the two contracting parties leading to miscarriage of justice. Therefore, once undue avoidance to complete the transaction on the part of the buyer, at any material stage, is established, the Court has to assume that the buyer has failed to demonstrate that he was ready and willing to perform his part of the contract. This assumption is to be made irrespective of the fact that time was not of the essence of the contract and the seller had not put an end to the contract by serving notice upon the buyer. Thus, when it is established that any stage that the buyer was not ready and willing to perform his part of the bargain, then the Court would not thrust upon the seller the contract for the reason that time is not of the essence of the contract, but it would deny the buyer the discretionary and equitable relief of specific performance of the contract.

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

----S. 8---Contract Act (IX of 1872), S.73---Specific performance of agreement for sale of land, suit for---Agreement giving right to defendant to forfeit advance money paid to him and cancel agreement on plaintiff's failure to pay balance price within stipulated time---Cancellation of agreement and forfeiture of entire money by defendant on plaintiff's such failure including other payments made subsequently after payment of advance money---Validity---Defendant was entitled to forfeit only advance money already paid---Subsequent payments could not be termed as advance money---Court while dismissing plaintiff's suit directed defendant to pay back amount subsequently paid and restrained him from selling suit-land till repayment of such amount to plaintiff.

H.A. Rehmani for Plaintiff.

Ch. A. Rasheed for Defendants.

Dates of hearing: 19th February and 2nd March, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 909 #

2009 C L C 909

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Muhammad Karim Khan Agha, J

HUMAYOON MUHAMMAD KHAN----Petitioner

Versus

PROVINCE OF SINDH through Secretary, Local Government and 3 others----Respondents

Constitutional Petition No. D-425 of 2009, decided on 17th April, 2009.

(a) Interpretation of statutes---

----No subsection of a section can be read in isolation to whole section and likewise no section can be read in isolation to whole scheme of an Act.

Ayaz Hussain v. Province of Sindh PLD 2005 Kar. 384 rel.

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

----S. 63---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal of Town Nazim---Procedure---Condemned unheard---Petitioner was Town Nazim who assailed recall motion passed against him on the ground that it was illegal, against the provisions of Sindh Local Government Ordinance, 2001 and no opportunity of hearing was provided to him---Validity---Removal process was two tier process starting initially at Taluka Council level and then finally moving to Union Council level---Such finding of High Court was based on plain reading of section and interplay between its various subsection and was fortified by earlier findings in other cases which were decided prior to amendment of now revived S. 63 (4) of Sindh Local Government Ordinance, 2001---No evidence was available to suggest that petitioner abused his right to be heard---On the contrary documents, on record, revealed that respondents moved with undue haste in order to attempt to remove petitioner, no sincere efforts were made to afford him right to be heard---Respondents had admitted that no notice of hearing was served on petitioner---Such denial was all the more significance in that it was an express terms and might be the only opportunity under S.63 of Sindh Local Government Ordinance, 2001, that petitioner would have to be heard before he might ultimately be removed---Petitioner was not given notice of proceedings against him under S.63 (1) of Sindh Local Government Ordinance, 2001, which he came to know when motion had already been carried and petitioner was, therefore, denied right to be heard---Though some of the breaches might have been of technical nature but when taken as a whole and based on facts and circumstances of the case such breaches had caused great prejudice to petitioner---High Court in exercise of constitutional jurisdiction quashed entire proceedings taken against petitioner to date as being arbitrary and illegal and directed that any proceedings, that might be taken against petitioner under S. 63 of Sindh Local Government Ordinance, 2001, be made strictly in accordance with law---Petition was allowed in circumstances.

Sadiq Hussain v. Federation of Pakistan 2008 YLR 152; Muhammad Jamil v. Munawar Khan PLD 2006 SC 24; 2004 CLC 707; 2007 CLC 1553; 2005 SCMR 186; PLD 2005 Kar. 384; Ayaz Hussain v. Province of Sindh PLD 2005 Kar. 384; Ali Gul v. Federation of Pakistan PLD 2005 Kar. 512 and Nazir Ahmad Panhwar v. Government of Sindh 2005 SCMR 1814 rel.

----Audi alteram partem---Opportunity of hearing---Object and scope---Person against whom adverse order is made must be afforded an opportunity to be heard---Such person is given notice of proceedings against him or is otherwise aware of proceedings against him and he is given an opportunity to associate himself with those proceedings.

Ruksana Soomro v. Board of Intermediate and Secondary Education MLD 2000 145 rel.

Khalid Jawed Khan and Ziaul Haq Makhdoom for Petitioner.

Muhammad Yousuf Leghari, Advocate-General Sindh for Respondent No. 1.

Mirza Nazim Baig for Respondent No.2.

Ataur Rehman, Assist. Election Commissioner, Regional Office Karachi for Respondent No.3.

Abrar Hassan for Respondent No.4.

Dates of hearing: 1st, 2nd and 10th April, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 950 #

2009 C L C 950

[Karachi]

Before Khalid Ali Z. Qazi, J

Messrs AL-MUNAF CORPORATION through Partner----Plaintiff

Versus

SINDH INDUSTRIAL TRADING ESTATE LTD. through Secretary and 4 others----Respondents

Suit No.632 and C.M.As. Nos.3835, 6219 of 2008, decided on 14th February, 2009.

(a) Karachi Building and Town Planning Regulations, 2002---

----Reglns. 25-12.2 & 26-6.12.1---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.54---Permanent injunction, suit for---Installation of petrol pump/CNG Station on industrial plot leased out to defendant by Sindh Industrial Trading Estate Limited (SITE)---Plaintiff's plea was that conversion of suit plot from industrial to commercial was barred by Karachi Building and Town Planning Regulations, 2002; that SITE Authorities had permitted such conversion and installation without inviting public objections; and that such installation would cause nuisance, pollution and hazard to life of population and adjacent properties---Temporary injunction to restrain such installation, application for---Validity---SITE as lessor of suit plot had sole authority to determine and regulate its use---SITE being corporate body had to perform its functions through decisions taken by its Board of Directors---SITE as lessor had not adopted Karachi Building and Town Planning Regulations, 2002 as standards for land use and building control, thus, same would not apply thereto---Plaintiff had not shown violation of any standards approved by SITE---Board of Directors of SITE in meeting dated 17-1-2001 while approving commercialization of East Avenue from Nazimabad to Gulbai had observed that establishment of Petrol Pump/CNG Stations would constitute a commercial activity---According to Regln.25-12.2 of Karachi Building and Town Planning Regulations, 2002, CNG Station could be installed on both commercial and industrial plots---Where entire road was commercialized, then inviting public objections would not be necessary before permitting conversion of a single plot situated on commercial road despite express provisions in Bye-Laws or Regulations mandating issuance of public notice---CNG for not having been itemized in Regln.26-6.12.1 of Karachi Building and Town Planning Regulations, 2002 as "dangerous trades inflammable materials" could not be presumed to be prohibited---Whatever not expressly prohibited would be deemed to be permitted---Petrol Pumps/CNG Stations were part of public necessity, thus, prohibiting their installation on commercialized road would become counter-productive---Plea of easement rights would require evidence---Global oil crises mandated encouragement of alternative source of energy---Oil and Gas Regulatory Authority must periodically inspect site to ensure compliance with safety requirements by plaintiff---Adverse incidents reported throughout the world had occurred mainly due to use of bad quality of gas cylinders---Every home had a gas connections and many cars being run by CNG having gas cylinders were parked in residential homes---Plaintiff had not made out a prima facie case---Balance of convenience would lie in allowing defendant to complete, start and run CNG Station/Petrol Pump--Continuation of order of interim injunction would cause heavy loss to defendant for having made heavy investment---Order of interim injunction already granted was vacated in circumstances.

Zeshan Builders v. K.B.C.A. 1992 MLD 2259; Abdul Ghani v. GOP 1996 CLC 1914; Excell Builders v. Aredeshir Cowasjee 1999 SCMR 2089; Aredeshir Cowasjee v. Clifton Cantonment Board 1998 MLD 1818; Ardeshir Cowasjee v. Clifton Cantonment Board C.P. No.D-294 of 1998; Abdul Razzaq Adamjee v. D.G. K:.A. Civil Petitions Nos.505/K 506/K of 1998, 129/K of 2001; Criminal Original No.36 of 1999; Irfan K.B.C.A. 2005 CLC 694; Captain M.S Aslam v. K,B.C.A. 2005 CLC 759; Shaikh Naeem Ahmed v. Province of Sindh 2006 CLC 1231; Navid Hussain v. Jahangir Siddiqui 2007 CLC 1568; Haji Amin v. Navid Hussain 2008 SCMR 133; Arshad Abdullah v. GOS 2006 YLR 3209; Muhammad Hanif v. Sammena Sibtain 2007 YLR 3113; Rehmat Petroleum Services v. Public-at-Large PLD 2006 Lah. 339; Bashir Ahmed v. The State PLD 1960 Lah. 687; Manue v. The State PLD 1964 Kar. 34; Fazal Elahi v. Bank of Punjab 2004 CL.D 162; I.A. Sherwani v. GOP 1991 SCMR 1041 and Seema v. Millennium Developers 2003 CLC 632 rel.

(b) Practice and procedure---

----Whatever is not expressly prohibited is permitted.

Fazal Elahi v. Bank of Punjab 2004 CLD 162 rel.

Najeeb Jamali for Plaintiff.

Abdul Mobin Lakho for Defendant No.1.

Zaheerul Hassan Minhas for Defendant No.2.

Nemo for other Defendants.

CLC 2009 KARACHI HIGH COURT SINDH 966 #

2009 C L C 966

[Karachi]

Before Khalid Ali Z. Qazi, J

TRADING CORPORATION OF PAKISTAN----Plaintiff

Versus

RIYASAT HUSSAIN----Defendant

Suit No.522 of 1991, decided on 7th April, 2009.

Civil Procedure Code (V of 1908)---

----O. VIII, R.1 & O.XIII, R.4---Qanun-e-Shahadat (10 of 1984), Art.113---Written statement, filing of---Non-production of evidence by defendant and his non-appearance in Court as witness in support of written statement---Effect---Such written statement could not be exhibited and considered as evidence in suit---Court declined to consider such written statement in circumstances.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Messrs Khawaja Auto Cars Ltd. v. Muhammad Yousuf and others 1991 SCMR 2223; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1991 CLC 671; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh. 21 rel.

Safdar A. Syed for Plaintiff.

Defendants Nos.1(1) to 1(7) called absent.

Date of hearing: 31st March, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 986 #

2009 C L C 986

[Karachi]

Before Azizullah M. Memon and Khalid Ali Z. Qazi, JJ

Messrs. YOUNG MEN'S CHRISTIAN ASSOCIATION (YMCA) through President---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Social Welfare and Women Development Department Karachi and 3 others-Respondents

C.P. No. D-330 of 2005, C.M.As. Nos. 5573, 5995, 8102, of 2005, 697, 868, 1525, 2730, 6893, 8819, 8880, 8912 of 2006, 342, 343, 453, 1296, 7395 of 2007, 70, 71, 1253, 2708, 2709 and 5325, of 2008 decided on 30th January, 2009.

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

----S. 11---Res judicata---Declaration given by Court in respect of issues, which were decided---Validity---Orders of Court must be respected---Such declaration was res judicata.

Pir Baksh v. Chairman, Allotment Committee PLD 1987 SC 145 rel.

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

----Art. 199---Voluntary Social Welfare Agencies (Registration. and Control) Ordinance (XLVI of 1961), S.4---Constitutional petition---Supersession of Governing Body of Association through Notification of Provincial Government---Order of High Court disposing of constitutional petition after setting aside such notification with directions to its Nazir to prepare voters list and conduct of election--Entertainment of interlocutory applications by High Court after passing such order---Objection of petitioner that such order had rendered such applications to be infructuous---Validity---Judges having disposed of constitutional petition were not available---Such application had been entertained by Judges other than those having authored such order---Directions contained in such order to hold elections were yet to be brought to their logic end---Such objection was overruled in circumstances.

Capital Development Authority v. Khuda Baksh 1994 SCMR 771 and Abbas Khaleeli v. Saifuddin PLD 1969 Kar. 692 ref.

Capital Development Authority v. Khuda Buksh 1994 SCMR 771 rel.

----Art. 199--Election dispute---Quo warranto, writ of---Scope---Person not being a losing candidate, could challenge election by way of such writ.

Muhammad Afsar Khan v. Muhammad Amin Khan Tareen PLD 1983 Pesh. 234 ref.

Abdul Wahid v. Din Muhammad PLD 1982 Lah. 168 rel.

(d) Elections---

---Elections could not be annulled or vitiated in absence of violation of electoral rules/law materially affecting electoral results.

Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352 rel.

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

----Art. 199----Voluntary Social Welfare Agencies (Registration and Control) Ordinance (XLVI of 1961), S.4----Constitutional petition--Supersession of Governing Body of Association through Notification of Provincial Government---Setting aside of such notification by High Court with directions to its Nazir to prepare voters list, notify date of election and conduct of election---Entertainment of fresh voters by Court vide order, dated 12-12-2006 after conduct of- election on 10-12-2006---Application for setting aside such election on the ground that Nazir had not given in press any public notice for holding of election and inviting interested persons to approach him with evidence of membership---Validity--Preparation of voters list and conduct of elections had been pursued without issuing proper notices in press to all concerned-Record showed that under Court's order, dated 12-12-2006, new voters approached Nazir, who allowed them to become a party to Electoral College---Some 113 members through interlocutory applications had also shown prima facie evidence in terms of membership cards of the Association---If claim of such new voters was entertained and found genuine, then same would not materially affect result of such election---Eligible voters had been disenfranchised without a proper opportunity due to non-issuance of such public notice by Nazir---Entire process of election was violative of natural justice and against welfare of the concerned community---High Court declared such election and voters list prepared by Nazir to be void ab initio for being against concept of due process of law and in breach of natural justice.

Ghulam Ghous v. Muhammad Refique Khan PLD 1982 Karachi 872, Hakim Ali v. Deputy Commissioner/Election Tribunal PLD 1982 SC 172; Khushi Muhammad v. Kabir Ahmed PLD 1983 Lah. 250; Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352; Mauzam Hanif v. Settlement Officer 2006 SCMR 642; Abbas Khaleeli v. Saifuddin PLD 1969 Kar. 692; Maulana Maudoodi v. Government of West Pakistan PLD 1964 SC 673 and Amina Begum v. Ghulam Dastagir PLD 1978 SC 220 ref.

Aftab Shaban Mirani v. President of Pakistan 1998 SCMR 1863 rel.

M. Aqil Awan and M.M. Tariq for Petitioner.

M. Sarwar Khan, Additional Advocate-General, Sindh and Nafis Usmani, A.A.-G. along with Muhammad Yousaf Channa, Assistant Social Welfare Department for Respondents Nos.1 and 2.

Respondent No.3. in Person.

Zahid Hamid for Respondent No.4.

Dr. Farogh Naseem and Munawar Hussain for Interveners.

Muhammad Ashraf Mughal, D.A.-G.

Farid Anwar Qazi, Special Assistant MIT-II.

Dates of hearing: 7th, 21st August, 2008, 20th, 27th, October, 2008, 10th, 12th, 20th, 24th November, 2008, 1st and 15th December, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 1022 #

2009 C L C 1022

[Karachi]

Before Khalid Ali Z. Qazi, J

Malik MUHAMMAD JAWAID----Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Local Government, Government of Sindh and 6 others----Defendants

C.M.As. Nos.426, 599, 572, 957 and 1045 in Suit No.69 of 2006, decided on 26th May 2009.

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

----Ss. 42 & 54---Easements Act (V of 1882), S.52---Transfer of Property Act (IV of 1882), Ss.8 & 105---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Allotment of amenity plot by Karachi Water and Sewerage Board (KW&SB) in. favour of its Officers Association for establishing thereon a club---Construction of club and its lawn on suit plot by plaintiff under agreement with Officers Association-Running of cafeteria on club lawn by plaintiff under subsequent agreement with Officers Association---Revocation of licence of plaintiff by Officers Association and demolition of club and lawn by the Board---Suit by plaintiff against such demolition and his dispossession from club lawn---Rejection of plaint, application for---Validity---Lease was not in favour of Officers Association, which could not transfer any title to plaintiff except to use plot for catering as a licensee---Board was not party to any agreement between plaintiff and Officers Association---Possession- of plot given to plaintiff for construction of club thereon had been returned to Officers Association after completion of construction---Officers Association had granted license to plaintiff to enter into club lawn for catering purposes, while its possession belonged to Officers Association---Board being owner of suit plot had not granted any lease or licence to plaintiff, who had no title or right over suit plot---No one could transfer a title better than that what he had---Board had not granted title to. Officers Association in respect of suit plot---Officers Association and plaintiff had not paid cost of suit plot---Board was not liable for amount invested on such construction by plaintiff, for which he could sue Officers Association for its recovery---Amenity plot had been converted into commercial plot---Officers Associations had already surrendered suit plot to the Board---Suit plot was presently lying as an open plot of land---Suit was not likely to succeed---Plaint was rejected under O.VII, R.11, C.P.C.

PLD 2004 SC 860; 2002 SCMR 1269; 2004 CLD 603; 2001 CLC 1904; PLD 2001 Kar. 185; PLD 1998 Kar. 1; PLD 1993 Kar.700; 1994 SCMR 826; 1989 MLD 1347; PLD 1968 Kar; 107; PLD 1965 SC 83; 1986 SCMR 820; 2003 YLR 943; 1999 SCMR 2883; 2003 YLR 1473; PLD 2005 SC 361; PLD 2006 Kar. 10; AIR 1962 All. 44; AIR 1954 Mysur 59 ref.

M.A. Naser v. Chairman Pakistan Eastern Railways PLD 1965 SC 83 rel.

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

----S. 8---No one could transfer a title better than that what he had.

----S. 52---License being a permission to, enter and perform without any easement rights.?

Abdul Inam for Plaintiff.

Anwer Mansoor Khan along with Bashir Ahmed Khan for Defendant No.2.

Abrar Hassan and Masroor A. Alvi for Defendant No.3.

Shahid Jamiluddin for Defendant No.4.

Khalilur Rehman for Defendants Nos.5 and 6.

Khizer Asker Zaidi, A.A.-G., Sindh for Defendant No.7.

CLC 2009 KARACHI HIGH COURT SINDH 1036 #

2009 C L C 1036

[Karachi]

Before Anwar Zaheer Jamali, C. J. and Muhammad Karim Khan Agha, J

Messrs MASTER TILES AND CERAMIC INDUSTRIES LTD. through Executive for International Business----Petitioner

Versus

FEDERATON OF PAKISTAN through Secretary, Ministry of Ports and Shipping, Islamabad and another----Respondents

Constitutional Petition No.D-901 of 2007, decided on 18th March, 2009.

Karachi Port Trust Act (VI of 1886)---

----S. 78-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Demurrage/storage charges---Grievance of petitioner was that government had waived demurrage/storage charges, which decision was binding on Port Authorities---Contention of Authorities was that government had reconsidered its decision and matter was referred to Board of Karachi Port Trust---Validity---High Court directed the petitioner to approach government in order to seek any further relief from them after the decision of Board of Karachi Port Trust was taken against it in the light of letter issued by government to Karachi Port Trust---Petition was disposed of accordingly.

Mian Abdul Ghaffar for Petitioner.

Muhammad Ahsan Ghani Siddiqui for Respondent No.2.

Shahab Sarki, Standing Counsel for Federation of Pakistan.

CLC 2009 KARACHI HIGH COURT SINDH 1057 #

2009 C L C 1057

[Karachi]

Before Muharram G. Baloch, J

AMJAD KHAN YOUSUFZAI and another----Plaintiffs

Versus

ARSHAD KHAN and others----Defendants

Suit No.855 of 2002, decided on 29th May, 2009.

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

---Art. 117---Issues framed from pleadings of plaintiff---Burden would lie on plaintiff to prove such issues.

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

---Art. 260(3)-Oral gift by Qadiani---Donor and donee belonging to and processing Qadiani faith---Validity---Members of Qadiani faith being non-Muslims could not be governed by Muslim Personal Law as per Art.260(3) of the Constitution---Execution of such declaration under Muslim Personal Law being illegal would be liable to be cancelled--Limitation would not run for filing suit for declaration/cancellation of such document, which was apparently void or illegally executed.

Mst. Farida Malik v. Dr. Khalida Malik 1998 SCMR 816 rel.

---Power of attorney given by plaintiff to her son for filing suit without specifying the purpose for which same was given---Validity---Presumption would be that power of attorney was given for properties for which suit had been filed---Such being minor omission could be overlooked.

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

----Ss. 39 & 42---Limitation Act (IX of 1908), S.3, Arts. 91 & 120---Suit for declaration and cancellation of document apparently void or illegally executed---Limitation---Limitation for being inapplicable to such document would not run for filing such suit.

(e) Benami transaction---

----Contest between legal heirs for property left by their deceased mother---Admission of defendants during cross-examination that deceased was a house-hold lady and had no source of income of her own---Effect---Suit property purchased in the name of deceased in life time of her husband would be presumed to have been purchased in her name by her late husband, thus, was Benami transaction.

Muhammad Zahid Khan for Plaintiffs.

Adnan Usman for Defendants Nos. 1 and 2.

Nemo for Defendants Nos.3 to 5.

Date of hearing: 8th April, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 1070 #

2009 C L C 1070

[Karachi]

Before Faisal Arab, J

RAFIQ DAWOOD and 4 others----Appellants

Versus

Messrs HAJI SULEMAN GOWA WALA & SONS LTD. through Director

and others----Respondents

2nd Appeals Nos.9, 20 and 31 of 2006, decided on 25th May, 2009.

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

----O. I, Rr.3, 8 & O.VIII, R.1---Qanun-e-Shahadat (10 of 1984), Art.119---More than one defendant having common cause or defence---Proof---Not necessary for each defendant to appear in Court as witness to prove his stand, rather any of them could appear as witness.

PLD 1970 SC 25; PLD 1975 SC 598; PLD 1977 SC 109; 1979 CLC 338; 2003 MLD 205 and 2008 CLD 85 ref.

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

----S. 100---Second appeal---Interpretation of document around which whole transaction in question revolving, a question of law.

PLD 1974 SC 204; 1996 CLC 1616; 1986 MLD 206; 1985 PLC 1321; PLD 1966 Dacca 486 and PLD 1975 SC 311 rel.

----O. VI, R.1---Pleadings---Evidence beyond scope of pleadings could not be led or considered by Court while deciding a controversy---Principles.

After the disclosure of the respective positions of the parties in their pleadings, no evidence which deviates from or is contrary to the pleadings is to be looked into. Rights and obligations of the respective parties are always to be determined keeping in view only such pleas that have been taken by them in their respective pleadings. The evidence that is adduced by the parties is also to be looked into only to the extent it supports or opposes the pleas that have been taken by the parties in their pleadings. Any piece of evidence, which is beyond the scope of the pleadings cannot be considered while deciding a controversy.

A party cannot be allowed to lead evidence contrary to its pleadings, nor could a party be permitted to take a plea different than the plea which it has taken in the pleadings, and any part of the evidence which is beyond the pleadings is ought to be overlooked as improvement of the nature being afterthought and impermissible in law.

PLD 1965 SC 15; PLD 1992 SC 590; Hasan Muhammad v. Jan Muhammad PLD 1982 Lah. 132; Shah Muhammad v. Muhammad Bakhsh PLD 1972 SC 321; Kanwal Nain v . Fateh Khan PLD 1983 SC 53; 1996 SCMR 1862; PLD 1973 SC 295 and AIR 1927 Bom. 128 ref.

Ehteshamuddin Qureshi v. Pakistan Steel Mills 2004 MLD 36 fol.

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

----Arts. 31, 113 & 117---Civil Procedure Code (V of 1908), O.VI, R.I & O.VIII, R.3---Plea raised in pleadings by a party admitted or not disputed by opposite party in pleadings or evidence---Effect---No evidence would be required to prove such plea---Principles.

A plaintiff has to adduce evidence in support of his pleas that he has taken in his plaint. However, no evidence is required to establish a plea, which is either admitted or remained uncontroverted by the defendant in his written statement. Similarly, unless a plea which a defendant had taken in his written statement is admitted or has not been controverted by the plaintiff in his evidence, then too, applying the same principle, requires no evidence from the defendant to prove such a plea: Adducing evidence is not a legal requirement, which is to be fulfilled in every eventuality. Evidence is required to be adduced by a party, be it a plaintiff or defendant, only to establish disputed questions, so that the Court is able to resolve conflicting claims. Where the record of the case reflects that a party's plea has either been admitted or has remained uncontroverted by the other side, either in its pleadings or in evidence, then adducing evidence to establish an admitted or uncontroverted plea would obviously be an exercise in futility.

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

----S. 46---Time for performance of contract not specified therein---Effect---Such contract would be performed within a reasonable time---Court in view of circumstances of each contract could read therein such time deemed reasonable for its performance.

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

---S. 12---Transfer of Property Act (IV of 1882), S.54---Contract Act (IX of 1872), Ss.46 & 55---Suit for specific performance of sale agreement---Return of earnest money by vendor accepted by vendee without protest---Effect---Such acceptance by plaintiff-vendee had amounted to putting an end to contract and giving up all his rights there - under, irrespective of facts that time fixed for its performance had expired or not---Nothing was left to be enforced after accepting return of earnest money---Suit was dismissed in circumstances.

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

----S. 55---Time not of essence of sale contract---Purchaser's liability---Scope stated.

Even in contract where time is not of the essence, the purchaser has to demonstrate those at all material times, he was ready and willing to perform his part of the contract.

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

---S. 12---Civil Procedure Code (V of 1908), O.VII, R.1---Suit for specific performance of agreement of sale of property---Plaintiff neither in legal notice nor in plaint took plea that he offered balance sale consideration to defendant, but he refused to accept same---Taking of such a plea by plaintiff during evidence---Effect---Effect of not taking such a plea in plaint would lead to presumption that event of offering balance sale consideration had never taken place---Taking of such a plea at such belated stage of evidence could only be regarded as an afterthought---Such plea was repelled in circumstances.

1979 CLC 280; 2004 MLD 1778 and 2005 MLD 1745 ref.

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

---S. 12---Civil Procedure Code (V of 1908), O.XXIX, R.1---Suit for specific performance of agreement of sale of property---Suit by company through its Managing Director---Maintainability---Authority of Managing Director to enter into a contract to purchase a property on behalf of company or file suit to enforce a contract has to stem either from decisions of Board of Directors or Articles of Association itself---According to Articles. of Association of company, no director in his individual capacity could manage its affairs, which exclusively vested with its Board of Directors---Articles of Association authorized Managing Director only to run business of company, but did not authorize him to purchase or sell properties on its behalf---No resolution of Board of Directors of company authorizing its Managing Director to institute suit was produced in evidence---Suit having been filed without authorization was dismissed for being not maintainable.

2003 SCMR 318; 1996 CLC 1064; 2003 CLD 1497; AIR 1937 Nag. 379; PLD 1990 Lah. 208; 2003 CLD 1497; 2004 MLD 1778; 2008 CLC 727; Muhammad Siddiq v. Australiasia Bank Ltd. PLD 1966 SC 684; Central. Bank of India v. Taj-ud-Din Abdur Rauf 1992 SCMR 846 and Pemco International v. Hubei Machinery Corp. 2005 CLD 74 ref.

Iftikhar Mamdot v. Ghulam Nabi Corp. PLD 1971 SC 550 rel.

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

----O. XXIX, R.1---Order XXIX, R.1, C.P.C. enables persons specified therein to sign and verify pleadings of a suit, but same neither deals with frame of suit nor grant authority to such persons to institute suit on behalf of a company or corporation---Principles.

Farogh Naseem, Abid Zubairi and Malik Muhammad Ejaz for Appellants (in All Appeals).

Khalid Anwar, Mushtaq A. Memon and Faisal Kamal for Respondents (in All Appeals).

Dates of hearing: 25th, 26, 27th, 28th November, 2008, 26th January, 2nd, 4th and 9th February, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 1104 #

2009 C L C 1104

[Karachi]

Before Mushir Alam and Safdar Ali Bhutto, JJ

FATEH MUHAMMAD AGHA and another----Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 5 others----Respondents

Constitutional Petition No.D-143 of 2007, decided on 16th April, 2009.

Contract Act (IX of 1872)----

----S. 2(f)---Public auction---Authority reserving right to accept or reject bid/offer without assigning any reason---Scope---Such right and discretion to cancel bid/offer must be exercised fairly and equitably, but before its acceptance by competent authority---Binding contract would come into being after acceptance of bid/offer, and then authority would have no right and discretion to reject bid/offer---Signing of formal agreement etc., would be procedural requirements---Principles.

Authority may reserve to itself right to accept or reject bid/offer without assigning any reason, provided such authority is exercised with circumspection, due care and utmost responsibility. Such reservation of authority to reject the bid does not clothe the public functionary with brazen and arbitrary power to reject the offer merely because it possesses such power and/or that it reserved to itself such power. Such right or reservation to cancel or revoke the bid could be retained till the offer is not accepted by the competent authority as reserved under the invitation or offer. Once that stage is crossed and the competent authority approves the bid/offer, a binding contract comes into being. Signing of the formal agreement etc., is but procedural requirements.

Public functionary has to exercise its authority with all care and diligence. Once offer is invited on stated terms and conditions, adherence to representation and commitment is obligated upon such functionary. Onerous responsibility is cast upon public functionary to establish and regain its credibility and public trust and confidence in discharge of its public duties and functions, which is fast eroding. There is serious dearth of credibility in the public functionaries. All possible efforts should be made by the public functionary to live upto commitments and representation made by it and adhere to the commitment and live upto the expectation of the common citizen in the realm contractual obligation committed by it in discharge of its statutory duties.

The discretion and right reserved to reject bid or offer are to be exercised fairly, equitably and before the acceptance by the competent authority. Once bid is accepted by the competent authority, no more discretion to cancel the auction is retained by the Authority.

Syed Masroor Ahmed Alvi for Petitioners.

Manzoor Ahmed for Respondents.

Sarwar Khan, A.A.-G. on Court Notice.

Date of hearing: 16th April, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 1113 #

2009 C L C 1113

[Karachi]

Before Mrs. Qaiser Iqbal and Arshad Siraj Memon, JJ

LIGHT INDUSTRIES (PVT.) LTD. through Chief Executive----Appellant

Versus

Messrs ZSK STICKMASCHINEN GmbH through Attorney and another----Respondents

High Court Appeal No.32 of 2007, decided on 5th June, 2009.

(a) Interpretation of statutes---

----Law is required to be interpreted in such a manner that it .should be saved rather than destroyed---Courts should lean in favour of upholding constitutionality of legislation and it .is, therefore, incumbent upon the court to be extremely reluctant to strike down laws as constitutionally such power should be exercised only when absolutely necessary, for injudicious exercise of such. power might result in serious consequences.

Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 62 ref.

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

----S. 28---Civil Procedure Code (V of 1908), Ss.20 & 9---Principal and agent---Suit of plaintiff (agent) was stayed on the ground that there existed an exclusive foreign jurisdiction clause in the agreement---Covenants in the agreement and the contract had addressed the controversy as the same were not contrary to the public policy nor contravened the provisions laid down in S.28 Contract Act, 1872 nor the same violated procedural law---In view of relevant clause of the agreement, contractual relations being subject to foreign law and both the parties having agreed to fulfil all obligations of the contract in, foreign court having exclusive jurisdiction, there was no ambiguity in the mind of contracting party---Contention was that relief claimed in the suit could not be granted by the court of foreign jurisdiction which may deprive plaintiff' from legitimate judicious advantage---Held, question of inconvenience to be faced by anyone of the parties was negated on account of reciprocal agreement between two parties, decree passed by High Court in Pakistan could not be executed in the foreign country as foreign judgment; there being no reciprocal agreement between the two governments to execution of such decrees---Appeal was dismissed.

CGM Compagnie General Maritime v. Hussain Akbar 2002 CLD 1528; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Standard Insurance Company v. Pak Garments Ltd 1998 SCMR 1239 and M. A. Chowdhury v. Messrs Misui, O.S.L. Lines Ltd PLD 1970 SC 373 ref.

Agha Zafar Ahmed for Appellant.

Jawad A. Sarwana for Respondent No.1.

Date of hearing: 19th March, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 1123 #

2009 C L C 1123

[Karachi]

Before Khilj Arif Hussain and Arshad Noor Khan, JJ

NAVEED HAIDER----Appellant

Versus

Messrs NOMAN ABID CO. LIMITED----Respondent

High Court Appeal No.28 of 2008, decided on 20th March, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2---Law Reforms Ordinance (XII of 1972), S.3---Suit for recovery of money on the basis of dishonoured cheque---Unconditional leave---Plaintiff filed suit for recovery of Rs.21 million on the basis of dishonoured cheque issued by defendant in his favour---Defendant had business relations with plaintiff who was a stock broker and was maintaining account of defendant for purchase of shares under his instructions---Plaintiff purchased shares on behalf of defendant and cheque for consideration of the shares issued by 'defendant was dishonoured---Single Judge of High Court granted leave to defend the suit on the condition of furnishing of surety for a sum of Rs.21 million---Plea raised by defendant was that in lieu of dishonoured cheque, he had issued pay order to plaintiff---Validity---Whether after the cheque in question was dishonoured, pay order of same amount was issued in respect of the amount pertaining to dishonoured cheque or it was under some other consideration---Such question could only be answered after recording of evidence---After coming to conclusion that defendant had plausible defence, he had become entitled for unconditional leave to defend the suit---Division Bench of High Court modified order passed by the single Judge of High Court to the extent that defendant was entitled for grant of unconditional leave to defend the shit---Intra-Court Appeal was allowed in circumstances.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Pakistan Water and Power Development Authority (WAPDA) v. Messrs Sea Gold Traders and 2 others 2003 CLD 392 and Consideration Fine Textile Mills' case PLD 1969 SC 163 fol.

Bahzad Haider for Appellant.

Muhammad Anwar Tariq for Respondent.

CLC 2009 KARACHI HIGH COURT SINDH 1175 #

2009 C L C 1175

[Karachi]

Before Arshad Noor Khan and Muhammad Ismail Bhutto, JJ

Mian KHUDA BUX QURESHI----Petitioner

Versus

PROVINCE OF SINDH through Secretary Auqaf, Zakat, Ushar Department, Old K.D.A. Building and 14 others----Respondents

Constitutional Petition No.385 of 2008, C.M.As. Nos.787 of 2009 and 976 of 2008, decided on 21st May, 2009.

Sindh Waqf Properties Ordinance (IX of 1979)---

----Ss. 7(1) & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Notification was issued by Chief Administrator Auqaf whereby shrine was taken over under management and control of Auqaf Department---Petitioner and his forefathers being Gadinasheens/Mutawalies of the shrine were maintaining the said shrine and had assailed said notification---Validity and scope---Section 11 of the Sindh Waqf Properties Ordinance, 1979 had provided forum of District Court for the redress of the grievance of the litigants, said forum was competent to entertain and adjudicate upon the lis amongst the parties and constitutional petition could not be maintained for the reasons that alternate remedy was available and the petition under Art.199 of the Constitution was only maintainable when no other alternate or efficacious remedy was available to the parties for redressal of their grievance---Principles.

Haji Abdullah v. Mst. Gohar Sultana 1984 MLD 1097 fol.

PLD 1963 SC 322; PLD 1972 SC 279; 1999 CLC 1568; 2001 MLD 1013; PLD 1997 SC 401 and PLD 1966 SC 536 distinguished.

Mukesh Kumar G. Karara for Petitioner.

Imtiaz Ali Soomro, Asstt. A.-G. for Respondents Nos.1 to 4.

Abdul Qadir Shaikh for Respondents Nos.5 to 15.

CLC 2009 KARACHI HIGH COURT SINDH 1199 #

2009 C L C 1199

[Karachi]

Before Gulzar Ahmed and Malik Muhammad Aqil, JJ

MORRIS TANVIR----Petitioner

Versus

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

Constitutional Petition No.D-2331 of 2006, decided on 16th July, 2009.

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

----S. 54---Cantonment Land Administration Rules, 1937, Rr.15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amenity plot---Allotment---Plot in question was amenity plot reserved for school and petitioner contended that he purchased the same from a foreigner---Grievance of petitioner was that authorities were not issuing lease in his favour---Validity---Sale of land for any such purpose without definite order of Central Government was prohibited under R.15 of Cantonment Land Administration Rules, 1937---Lease could be granted under R.16 of Cantonment Land Administration Rules, 1937, for minimum period of 30 years and maximum period of 90 years through public auction for building sites---Plots meant for municipal services and amenities could not be leased, sub-leased, 'sold or transferred to any person or to any one class of persons for the use and enjoyment rather it had to remain as government property for public purposes for unhindered free access, use and enjoyment of public at large---In no case plots meant for municipal services and amenities could be termed as building sites nor there could be any exceptional case or exceptional reasons for disposal of such land by private agreement or otherwise---There was no document of sale and purchase of plot in question between Defence Housing Authority and the foreigner in accordance with S.54 of Transfer of Property Act, 1882---Agreement to sell relied upon by petitioner was no agreement in the eyes of law as no authority had been shown nor any seemed to exist to sign the same on behalf of the foreigner---Transfer documents relied upon by petitioner were, therefore, of no consequence being themselves illegal and without authority of law and also seemed to High Court, without consideration---It seemed to High Court that fraud had been played by petitioner and officials of Defence Housing Authority for usurping and misappropriating valuable government property and there had to be an accountability of the same---High Court directed Federal Government to hold inquiry in the whole affair and to take action against all officials and persons found responsible in usurping and misappropriating valuable government property and also to initiate criminal proceedings against such persons---High Court declined to issue any direction in favour of petitioner to authorities for issuance of lease deed---Petition was dismissed accordingly.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Four Square Enterprises v. Karachi Building Control Authority PLD 2000 Kar. 161; Dr. Zahir Ansari and others v. Karachi Development Authority and others PLD 2000 Karachi 168 and Shafiqur Rehman and others v. Government of Sindh and others PLD 2006 Kar. 10 ref.

S.A. Jalib Chaudhry for Petitioner.

Ashiq Raza, Dy. A:-G. along with Hamid Niaz, Dy. Military Estate Officer for Respondents Nos.1 and 3.

Raja Sikandar Khan Yasir for Respondent No.2.

Date of hearing: 7th May, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 1232 #

2009 C L C 1232

[Karachi]

Before Sajjad Ali Shah, J

KHALIL AHMAD ALLAHWALA and 2 others----Petitioners

Versus

Mst. ZAINAB and 2 others----Respondents

Constitutional Petitions Nos.604 and 605 of 2004, decided on 3rd December, 2008.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Nature of premises---Determination---Short tender of monthly rent---Effect---Sub-letting---Proof---Concurrent findings of fact by the Courts below---Eviction order was concurrently passed by Rent Controller and Lower Appellate Court against tenant, who claimed that according to tenancy agreement the premises was commercial and not residential---Validity---Tenant failed to prove tenancy agreement by calling signatory and marginal witnesses in witness-box nor any plea regarding nature of demised premises was taken in written statement leading to framing issue and consequent adjudication on the basis of pleadings and evidence, whereas other floors of building were being used for residential purposes---Tenant failed to explain short tender of monthly rent nor he placed on record explanation as to when rent was deposited in Court---Company (limited) was carrying on business in the demised premises which was distinct legal entity, which had its directors and had its own independent rights and liabilities with respect to third parties including landlady and tenants---High Court declined to upset concurrent findings of Courts below---Petition was dismissed in circumstances.

Debbared and others v. Intizamuddin 1986 MLD 985; Messrs Ali Brothers and others v. Mst. Naushaba Jabeen and others 2001 MLD 648; Muhammad Subhan v. Mst. Builquees Begum 1994 SCMR 1507(2); Manik G. Mobed and another v. Shah Bharam PLD 1974 SC 351 and Messrs Premier Merchantile Services and another v. S.M. Younus and others PLD 1982 SC 79 rel.

I.H. Zaidi for Petitioner.

I.M. Jawed for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 3rd December, 2008.

CLC 2009 KARACHI HIGH COURT SINDH 1254 #

2009 C L C 1254

[Karachi]

Before Khalid Ali Z. Qazi, J

Syed TAHIR HUSSAIN MAHMOODI and 7 others----Plaintiffs

Versus

TAYYAB and others----Defendants

C.M.As. Nos. 7842, 8641 of 2006 and 6654 of 2008 in Suit No.1385 of 2006, decided on 3rd June, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Actionable nuisance---Multistoreyed building, construction of---Contentions of plaintiffs were that before conversion of suit plot from residential to commercial and accord of permission to construct multistoreyed building no public objection was invited or notices given in press and/or objections filed by plaintiffs before relevant authorities were not considered---Validity---Entire road on which suit 'plot was situated had been commercialized/converted by relevant authorities---If complete road had been commercialized/ converted it was not necessary to invite public objections or give notice for conversion in respect of individual plots which were situated on the road which had been commercialized---Plaintiffs failed to make out any case as suit property was situated on declared commercial road surrounded by number of multistoreyed buildings wherein commercial activities were in full bloom---Plaintiffs could not pitch their case upon actionable nuisance---Plaintiffs failed to bring on record anything as regard to easement rights to justify interference by High Court---Even to make out a prima facie case by plaintiffs recording of evidence was required---Plaintiffs could not make out a prima facie case and balance of convenience lay in allowing defendants to complete construction of building in accordance with approved building plan---In view of heavy investment made by defendants, irreparable loss was likely to cause to defendants in case injunction was allowed to operate---High Court declined to grant interim injunction in favour of plaintiffs---Application was dismissed in circumstances.

PLD 1994 SC 512; (1965) 1 All ER 611; (1993) 1 All ER 65; PLD 1981 SC 377 at pages 426; 1998 SCMR 1618; 1998 PTD 3823; 2000 YLR 1161; 1994 SCMR 1900; 1990 CKC 1337; PLD 1987 SC 145; 2006 SCMR 1202; PLD 2007 Kar. 11; PLD 2008 SC 48; 1999 SCMR 2883; PLD 1974 SC 151; PLD 1970 SC 180; PLD 1991 SC 14; PLD 1990 Kar. 1; PLD 1983 Kar. 303; PLD 1962 SC 119; PLD 1969 SC. 165; PLD 1974 SC 151; 2003 SCMR 537; KLR 1984 Civil Cases 225; 1997 SCMR 1543; PLD 1987 SC 149; KBTR 2002 Regulations ' 18.5.1.1.; 2008 SCMR 133; 1998 PTD 2923; 1974 SCMR 519; 1986 CLC 2923; 2000 SCMR 780; 2001 SCMR 279; Haji Amin v. Navaid Hussain 2008 SCMR 133; 2006 YLR 2537; 1991 SCMR 119; PLD 2007 SC 472; PLD 1991 SC 815; 2004 CLC 767; 2008 YLR 738; Excel Builders v. Ardashir Cawasjee 1999 SCMR 2089; Ardeshir Cawasjee v. Clifton Cantonment Board 1998 MLD 1818; Ardeshir Cawasjee v. Clifton Cantonment Board C.P. No.D-294; Abdul Razzaq Adamjee v. D.G., K.D.A. Civil Petitions Nos.505-K, 506-K of 1998, 129-K of 2001; Irfan v. K.B.C.A. 2005 CLC 694; Captain S.M. Aslam v. K.B.C.A. 2005 CLC 759; Shaikh Naeem Ahmed v. Province of Sindh 2006 CLC 1231; Navaid Hussain v. Jahangir Siddiqu 2007 CLC 1568; Arshad Abdullah v. Government of Sindh 2006 YLR 3209; Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113 and Seema v. Millenium Developers 2003 CLC 632 ref.

Naeem-ur-Rehman and Khursheed Javed for Plaintiffs.

Rasheed A. Razvi and Syed Haider Imam Rizvi for Defendants Nos.1, 2 and 4.

Tahawur Ali Khan for Defendants Nos.8 and 10.

CLC 2009 KARACHI HIGH COURT SINDH 1314 #

2009 C L C 1314

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Faisal Arab, J

Syed SAMI ULLAH AL QUADRI----Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Interior and 6 others----Respondents

Constitutional Petition No. D-2051 and Miscellaneous No.11341 of 2008, heard on 21st January, 2009.

Passports Act (XX of 1974)---

----S. 8---Constitution of Pakistan (1973), Arts.15 & 199---Constitutional Petition---Blacklisting of passport---Application of S.8, Passports Act, 1974--Scope---Petitioner, in the present case, was not involved in any subversive activities or in activities which were prejudicial to the interest of Pakistan or Pakistan's relations with- any foreign power---Mere fact that the petitioner or his son had filed some complaint at a foreign Court wherein he had also impleaded some of the members of the Embassy of Pakistan in that country, would not mean that the petitioner was a person involved in subversive activities etc.---Relevant letter from the said Embassy did not contain any allegation, which could be termed to be subversive activities against Pakistan or covered by any other situation visualized under S.8(3) of the Passports Act, 1974---Not only that, petitioner, in the present case, was not given opportunity of being heard before taking punitive action of blacklisting his passport---Held, action taken by the authorities against the petitioner was not only in violation of fundamental rights guaranteed to him under Art.15 of the Constitution, but also against the fundamental principles of natural justice of "Audi Alteram Partem"---High Court, in circumstances, allowed the constitutional petition with the observation that in future the official/authorities shall be careful in taking such arbitrary action against any citizen of this country, else they will be liable for penal action, which may entail, inter alia consequences of imposition of heavy costs---Principles.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 fol.

Rasheed A. Rizvi for Petitioner.

Umer Hayat Sandhu D.A.-G. for official Respondents.

Ms. Shahida Jatoi for Respondent No.5.

CLC 2009 KARACHI HIGH COURT SINDH 1372 #

2009 C L C 1372

[Karachi]

Before Anwar Zaheer Jamali, C.J. and Salman Talibuddin, J

Miss SHAHRUKH----Petitioner

Versus

GOVERNMENT OF SINDH through Additional Advocate-General and 2 others----Respondents

Constitutional Petition No.D-497 and D-581 of 2008, decided on 14th July, 2009.

Educational Institution---

----Admission in State run Medical College under Self-Finance Scheme---Such student must pay full tuition fee in case he or she is required to repeat a full year---Where such student has failed in all subjects and elects to repeat the full year he or she should be required to pay full tuition fee again---Where, however, such a student is only required to resit in one or more, but not in all examinations the tuition fee under the Self-Finance Scheme will be the amount attributable to the number of subjects in which the student is required to be re-examined---Principles.

A student admitted to any State-run educational institution under a Self-Finance Scheme must pay the full tuition fee in case he or she is required to repeat a full year. In other words, where such a student has failed in all subjects and elects to repeat the full year there is no reason why he or she should not be required to pay the full tuition fee again.

Where such a student is only required to re-sit one or more, but not all, exams (including, as in the present case, only one part of the exam in a particular subject), the tuition fee payable under the Self-Finance Scheme will be the amount attributable to the number of subjects in which the student is required to be re-examined. Thus, a student who was examined in five subjects in an academic year but has to re-sit one exam in order to qualify to be promoted to the next academic level, the tuition fee payable by that student before being permitted to re-sit the exam will be one-fifth of the total tuition fee payable under the Self-Finance Scheme for the year in which he or she re-sits the exam.

Proportionate tuition fee shall be payable whether the student chooses to re-sit the examination during the supplementary examinations or during the next annual examinations. Further, the proportionate tuition fee (or full tuition fee in those cases where a student has failed in all subjects and retakes all examinations) shall be payable whether or not he or she elects to attend any classes or practical instructions offered by the university in those subjects. The reason for this is the fact that while a student is not required to, he or she may attend classes and partake in the practical instructions offered by the University in that subject and it will neither be possible nor practicable to attempt to keep a track of students who have and those who have not opted to take advantage of this facility.

Amjad Ali Sahito for Petitioner (in C.P. No.D-497 of 2008 and C.P. No.D-581 of 2008).

Mumtaz Alam Leghari, Asstt. A.-G. for Respondent No.1 (in C.P. No.D-497 of 2008 and C.P. No.D-581 of 2008).

Kamaluddin for Respondents Nos.2 to 3 (in C.P. No.D-497 of 2008 and C.P. No: D-581 of 2008).

CLC 2009 KARACHI HIGH COURT SINDH 1411 #

2009 C L C 1411

[Karachi]

Before Sajjad Ali Shah and Muharram G., Baloch, JJ

UZMA RAFIQUE and 5 others----Petitioners

Versus

S.N. ABBAS and another----Respondents

Constitutional Petition No.D-664 of 2009, decided on 20th July, 2009.

Sindh Public Service Commission Recruitment Management Regulations, 2006---

----Regln. 0701---Sindh Public Service Commission Act (XI of 1989), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Combined competitive examination---Change in time for paper of Civil Law from second half (2-00 to 5-00 p.m.) to first half (10-00 a.m. to 1-00 p.m.)---Non-appearance of petitioners in examination of such paper for not having notice of revised schedule of examination issued by Commission---Plea of Commission was that revised schedule also notified in newspapers was issued due to clash with time schedule of C.S.S. Examination---Validity---Record showed that combined competitive examinations were to commence from 6th to 24th April, 2008, whereas C.S.S. Examinations were to commence from 25th April, 2008---Date of examination of such paper as per original and revised time schedules was same, but only its time was changed from second half to first half---Commission was not justified to issue revised schedule, which was sheer negligence on their part, for which petitioners could not be made to suffer---Where time schedule announced by Commission was not prorogued, but expedited by early dating or squeezing same, then Commission would be bound to adopt all possible modes to inform candidates regarding such change including letters by registered post, courier and telephones as such change was likely to cause serious prejudice and irreparable loss to candidates, who, for any reason, did not come to know of such change---Mere information by publication for early dating time schedule of examination would not be sufficient---Petitioners had no proper notice of such change in time and they were entitled to notices through registered notice/courier as well---High Court directed Commission to arrange examination of such paper within specified time after giving notices by registered post, courier and telephone to all candidates, who could not appear in such paper.

Petitioners Nos.1 and 6 in person.

Abdul Fateh Malik, Addl. A.-G., Adnan A. Karim, A.A.-G. along with Anwar Haider Shah and Aijaz Hussain Jafri, Senior Member and Secretary, Sindh Public Service Commission respectively for Respondents.

CLC 2009 KARACHI HIGH COURT SINDH 1431 #

2009 C L C 1431

[Karachi]

Before Khilji Arif Hussain and Ms. Soofia Latif, JJ

Messrs DADA STEEL MILLS---Appellant

Versus

METALEXPORT and 5 others---Respondents

H.C.A. No.22 of 1985, decided on 27th July, 2009.

(a) Interpretation of statutes---

----While framing a new enactment, Legislature is well-aware of the law in the field.

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

----S. 19---Contract Act (IX of 1872), S.73---Award of compensation---Scope---Court, while exercising power under S.19 of the Specific Relief Act, 1877 if it comes to the conclusion that the plaintiff is entitled for specific performance but instead of granting such relief of specific performance, it can grant relief of compensation for the breach of contract or further while granting relief of specific performance, to meet the ends of justice, in addition to relief of specific performance, it can grant compensation also---Provisions of S.19, Specific Relief Act, 1877 and 73, Contract Act, 1872, compared.

Sm. Shakuntla Devi and another v. Harish Chandra and another AIR 1952 Allahbad 620; Ganga Singh and others v. Santosh Kumar and others AIR 1963 Allahbad 201; Muhammad Sharif v. National Motors Ltd. 1989 CLC 916; Messrs Nigar Pictures, Karachi v. Messrs United Brothers, Lahore and 6 others PLD 1970 Karachi 770; Domb and another v. Isoz 1980 All E R 942; AIR 1926 Born. 189; Wroth and another v. Tyler 1973 (1) All E R 897 and Malhotra v. Chaudhry 1979 (1) All ER 186 ref.

Floor a Sassy v. Hardship H. Mama AIR 1926 Born. 189; Afroz Qureshi and another v. Muhammad Ikram Siddiqui 1995 CLC 735; Wroth and another v. Tyler 1973 (1) All E R 897; Malhotra v. Chaudhry 1979 All E R 186; Smt. Shakuntla Devi and another v. Harish Chandra and another AIR 1952 All. 602; Messrs Nigar Pictures, Karachi v. Messrs United Brothers, Lahore and 6 others PLD 1970 Kar. 770; Arya Pradishak Pratinidhi Sabha through Lala Hans Raj v. Chaudhri Ram Chand and others AIR 1924 Lah. 713; Muhammad Sharif v. National Motors Ltd. 1989 CLC 916; Ganga Singh and others v. Santosh Kumar and others AIR 1963 All. 201 and Alfarooq Shipping Co. ltd. v. Messrs Vasa Shipping Co. Ltd. and 4 others 1980 CLC 1228 quoted.

----S. 73---Specific Relief Act (I of 1877), S.19---Sale of Goods Act (III of 1930), S.58---While interpreting all the said three provisions, not only the intention of the legislature was to be kept in mind that the Sale of Goods Act, 1930 was later in time than the Contract Act, 1872 and Specific Relief Act, 1877; but also that so far as issue in the matter was special law dealing with law of Sale of Goods which previously was governed by Chapter VII of the Contract Act, 1872, would prevail over the mere general one---Provisions in different statutes, but having bearing on the same subject, may be read together in a complimentary manner so that they do not create contradictions while operating in the same field.

(d) Interpretation of statutes---

----Provisions in different statutes but having bearing on the same subject may be read together in a complimentary manner so that they do not create contradictions while operating in the same field.

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

----Ss. 19, 21, & 22---Contract Act (IX of 1872), S.73---Award of compensation---Principles---Scope of application of Ss.19, 21 & 22 of Specific Relief Act, 1877---Where Court came to the conclusion that plaintiff was entitled to specific performance, on the ground of unfair advantage over the defendant or hardship of the defendant which he did not foresee, court could refuse to grant relief of specific performance and could award compensation for which plaintiff was entitled on the date of judgment---Where contract could not be specifically enforced then plaintiff would be entitled to compensation, keeping in view the principles of awarding compensation under S. 73, Contract Act, 1872.

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

----S. 19---Contract Act (IX of 1872), S.73---Award of compensation---Principles.

Compensation under section 19 of- Specific Relief Act can be granted when (i) plaintiff has not abandoned his right of specific performance and (ii) Court comes to the conclusion that although plaintiff is entitled to relief of specific performance yet same cannot be granted as contract has been broken by the defendant, due to hardship equity etc. The compensation in such cases, if equity so required, irrespective of the date of breach can be based upon the value of the property or damages, loss etc. caused to the plaintiff upto the date of judgment. However, in case when court comes to the conclusion that plaintiff is not entitled to specific performance then damage/ compensation can be determined under section 73 of the Contract Act for breach of the contract.

When the defendant was well-aware at the time when entered into agreement of sale of vessel that the plaintiff was engaged in business of re-rolling and will use the scrap in his factory and as such plaintiff was entitled to a reasonable compensation on this count.

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

----S. 19---Specific performance of agreement and award of compensation---Plaintiffs had performed their part of obligation and defendants had committed breach of contract by failing to deliver the `vessel' though said vessel had arrived at Karachi for the purpose of delivery to the plaintiffs, pursuant to the agreement of sale between them---Plaintiffs, who were admittedly carrying on business of re-rolling, had not agreed to purchase the vessel for the purpose of selling the scrap to third party but to use the said scrap of the vessel in their own re-rolling factory and if the delivery of vessel was not effected then same may result in closure of the factory and other alike problems, breach of contract etc.---Vessel in question was attached in pursuance of court order, and to eliminate burden of demurrage etc. was ordered to be sold---Parties were given option to participate in the auction and plaintiffs purchased the vessel as highest bidders---Out of the sale proceeds a specific amount was paid to the defendant being price on which defendant had agreed to sell the vessel to plaintiffs and balance amount was ordered to be invested by the Nazir of the Court in terms of court order---Plaintiffs' contention was that they were entitled to the entire amount recovered after sale of vessel irrespective of damages asked by them in the memo. of plaint or even in their evidence---Validity---Plaintiffs, in circumstances, were entitled to specific performance of the contract in question and were also entitled to the amount lying in the court---Suit was decreed accordingly---Principles.

Muhammad Azam Muhammad Fazil & Co. v. Messrs N.A. Industries Karachi and Alfarooq Shipping Co. Ltd. v. Messrs Vasa Shipping Co. Ltd. and 4 others 1980 CLC 1228 distinguished.

Khalid Anwar for Appellant.

Nemo for Respondents.

Date of hearing: 14th May, 2009.

CLC 2009 KARACHI HIGH COURT SINDH 1452 #

2009 C L C 1452

[Karachi]

Before Azizullah M. Memon, Actg. C.J. and Khalid Ali Z. Qazi, J

SHAHID MAQBOOL----Appellant

Versus

Mst. AYESCHA SALEEM KHAN and 24 others----Respondents

H.C.A. No.137 and C.M.A. No.792 of 2008, decided on 22nd August, 2008.

(a) Jurisdiction---

----Special Tribunal/Court constituted to hear and decide disputes under relevant statute---Effect---All other Courts would stand debarred from exercising powers of such nature.

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

----O. XX, R.18(2) & O.XL, R.1---Sindh Rented Premises Ordinance (XVII of 1979), S.8---Partition suit---Appointment of Receiver/Official Assignee to take over possession of property from tenant---Tenant claiming to be paying Rs.4,500 as monthly rent---Plaintiffs' plea that market rent of property was more than Rs.50,000---Order of Court allowing tenant to file his objection subject to deposit of tentative rent of Rs.35,000---Validity---Where special Tribunal/Court was constituted to hear and decide disputes under relevant statute, then all other Courts would stand debarred from exercising powers of such nature---Plaintiffs had not approached Rent Controller for fixation of fair rent of suit property---Neither Official Assignee had power to make a reference to Court for fixation of fair rent nor Court could exercise such a power---High Court in appeal set aside impugned order leaving plaintiffs/landlords to approach Rent Controller for fixation of rent of suit property.

Irshad Rehman for Appellant.

Mansoor A. Sheikh for Respondents Nos. 1 to 20.

CLC 2009 KARACHI HIGH COURT SINDH 1456 #

2009 C L C 1456

[Karachi]

Before Amir Hani Muslim and Abdur Rehman Faruq Pirzada, JJ

Syed HAMID ALI SHAH RASHDI----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner

and 6 others----Respondents

C.P. No.D-157 of 2008, decided on 16th July, 2009.

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

----S. 63---Constitution of Pakistan (1973), Art.199---Recall of Taluka Nazim---Non-compliance of requirement of a notice as envisaged by provisions of S.63(1), Sindh Local Government Ordinance, 2001---Effect---No written notice in respect of motion during the Session of Taluka Council having been given to the Taluka Nazim, no liability could be imposed upon him for remaining absent during the proceedings of Session---Logical presumption, in circumstances, would be that Nazim was not afforded proper opportunity to appear before the Taluka Council and address it in his defence, as provided under S.63(7) of the Ordinance---Initial notice to move the motion in Council for recall of the Nazim having not been made in accordance with requirements of law, the same would provide inherently weak foundation, and consequently the whole edifice built thereon in form of entire subsequent proceedings for recall of the Nazim, was bound to crumble down---No sanctity, in circumstances, could be attached to the proceedings against the Nazim, as the same were initiated in utter disregard of the canons of natural justice and in violation of the express provisions of law---Principles---Election Commission of Pakistan shall notify accordingly.

Saifullah Memon v. Union Council No.2, Qasimabad and 2 others 2004 CLC 707 fol.

Jhamat Jethanand for Petitioner.

Naimatullah Soomro for Respondent No.7.

Allah Bachayo Soomro, Addl. A.-G.

CLC 2009 KARACHI HIGH COURT SINDH 1473 #

2009 C L C 1473

[Karachi]

Before Nadeem Azhar Siddiqi and Muharram G. Baloch, JJ

HUMAYOON MUHAMMAD KHAN and another----Petitioners

Versus

PROVINCE OF SINDH through Secretary, Local Government and another----Respondents

Constitutional Petition No.D-1238 of 2009, decided on 23rd July, 2009.

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

----S. 132---Expression "of its or his own motion"---Connotation---Initiation of action by Provincial Local Government Commission---Scope---Action can be initiated by Provincial Local Government Commission on the basis of information received by it through any source---Principles.

Sardar Ashiq Muhammad Khan Mazari and 3 others v. Chairman, Federal Land Commission, Islamabad and 4 others PLD 1977 Lah. 461; Messrs Kasbati Builders through Partners v. Income Tax Appellate Tribunal and 2 others 2006 PTD 1088; Messrs Karachi Marriott Hotel v. Atta Hussain 2006 PLC 140 and Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 rel.

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

----S. 132---Decision by Provincial Local Government Commission to hold inquiry---No show-cause notice was required to be issued as during inquiry proceedings the person would get ample opportunity to defend himself.

----Applicability---Distinction between the two situations, one where the right of hearing was statutory and the other when such right was claimed on the basis of principles of natural justice.

There is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the basis of principles of natural justice. In the former case the right is absolute and. its violation makes the order illegal and not sustainable under law, while in later case, it is not so and exclusion of such right could be expressed or implied and whenever a violation of principles of natural justice is alleged, the court may call upon the party to establish prejudice caused to it before striking down the order.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Orders of the authorities can be challenged by way of filing constitutional petition, if the orders are illegal, mala fide, perverse and without jurisdiction---In the absence of any patent impropriety, or glaring violation of law, interference through constitutional jurisdiction is not warranted.

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

---S. 132---Constitution of Pakistan (1973), Art.199---Constitutional petition---Initiation of action by Provincial Local Government Commission---When the decision of the Commission was to call the comments from the Nazim, it was sufficient compliance of right of hearing and Commission committed no illegality while issuing the notification---No mala fide on part of the Commission having been pointed out in issuing the impugned notification, High Court dismissed constitutional petition against the notification.

Abdul Khaliq Farooq v. Government of Sindh 2005 YLR 1143; Shabbir Jan Sarhadi v. Province of Sindh 2006 PLC (C.S.) 955; Syed Qasim Ali Shah v. Government of Pakistan 2007 MLD 989 and Nazir Cotton Mills Ltd. v. State Bank of Pakistan 2007 CLD 1642 distinguished.

Zia-ul-Haq Makhdoom for Petitioners.

Adnan Kareem, Asstt. Advocate-General, Sindh for the State.

Date of hearing: 10th July, 2009.

Lahore High Court Lahore

CLC 2009 LAHORE HIGH COURT LAHORE 34 #

2009 C L C 34

[Lahore]

Before Syed Asghar Haider, J

ADEEL AHMAD SAJID----Appellant

Versus

SHAFQAT HUSSAIN and 2 others----Respondents

S.A.O. No.136 of 2007, heard on 7th October, 2008.

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

----Ss. 13 & 15---Second appeal---Ejectment of tenant---Landlord and tenant relationship---Determination---Landlord filed ejectment petition and placed on record a photocopy of tenancy agreement, which was signed by both the parties---Tenant relied upon registered sale-deed in his favour claiming to be owner in possession of premises---Rent Controller did not frame any issue with regard to determination of relationship of landlord and tenant and dismissed ejectment application---Order passed by Rent Controller was also maintained by Lower Appellate Court---Validity---Rent Controller was bound to take into consideration the tenancy agreement produced by landlord and thereafter to proceed to decide matter in accordance with law after framing of preliminary issue in such regard---Notwithstanding clear denial by tenant, as required by S.13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959, permitting the parties to produce evidence, examine and appraise it and thereafter arrive at a finding to determine that there was dispute regarding title or not---Procedure adopted by Rent Controller was summary and meant to hold inquiry but it had to be in consonance with principles of natural justice---No deviation in such solemn duty was permissible---Rent Controller while exercising powers under the statute was required to adhere to all provisions contained therein but he ignored definition of "landlord" as contained in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959---Though Rent Controller admitted in order passed by him that property in question was jointly owned by landlord and his father, who later sold it and the same was under challenge by landlord but he ignored rent deed which was on record, therefore, Rent Controller committed an illegality on such count---High Court, in exercise of appellate jurisdiction, set aside orders passed by both the courts below and remanded the case to Rent Controller for deciding issue of existence of relationship of landlord and tenant afresh after framing preliminary issue inter se parties---Appeal was allowed in circumstances.

Waheed-ur-Rehman v. Muhammad Ashraf and 2 others PLD 2001 Pesh.42; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572 rel.

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

----S. 13---Ejectment of tenant---Relationship of landlord and tenant---Rent Controller, duty of---Scope---Rent Controller is not required to adjudicate question of title but he is required to record proper evidence to reach such conclusion.

Rana Muhammad Arshad Khan for Appellant.

Respondents proceeded ex parte vide order, dated 9-9-2008.

Date of hearing: 7th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 61 #

2009 C L C 61

[Lahore]

Before Ali Akbar Qureshi, J

Mst. KISHWAR SULTANA and another----Petitioners

Versus

MUHAMMAD SADDIQUE and another----Respondents

Writ Petition No.9352 of 2003, decided on 24th September, 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 recovery of maintenance allowance---Both, the Family Court and Appellate Court concurrently decreed suit for recovery of maintenance allowance to the minor and granted maintenance allowance from the date of institution of the suit in that respect---Evidence produced by both the parties was sufficient to prove that the minor was born at the house of the parents of the plaintiff and defendant had failed to place on record any thing to prove the payment of maintenance to the minor---Minor, in circumstances was entitled to recover the maintenance allowance from the date of birth---Findings of the courts below to that extent were set aside by High Court.

Abdul Ghafoor v. Mehmood Ahmad alias Asghar and others 2003 SCMR 764 ref.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Suit of plaintiff for recovery of dowry articles amounting to Rs.2 Lacs was decreed by the Trial/Family Court, but Appellate Court dismissed suit to that extent---Validity---Family Court decreed suit for recovery of dowry articles holding that the Family of the plaintiff, because of the sound financial status, was in a position to give the dowry articles worth Rs.2 Lacs to the plaintiff---Appellate Court disentitled the plaintiff to recover the dowry articles on the ground that the plaintiff had failed to prove the list of dowry articles and also failed to place on record any receipt thereof--.Evidence on record had proved that father of the plaintiff was running a Medical store, one of her brothers was agency holder of Medical Company and other brother was Medical Surgeon; it was sufficient to prove that family of the plaintiff was well to do and it was not difficult for such like family to give the dowry articles worth Rs.2 Lacs---Normally articles of dowry were handed over along with the list to the parents of the male spouse at the time of Rukhsati and it had now become imperative for all the parents irrespective of their being poor or rich, to give dowry articles to their daughters at the time of marriage---Plaintiff had succeeded to prove her claim for recovery of dowry articles by adducing confidence inspiring evidence and the Appellate Court without referring anything from the record, had set aside the judgment of the Family Court---Impugned judgment and decree passed by the Appellate Court, was set aside by High Court.?

M.A. Ghani for Petitioner.

Ghulam Hussain Malik for Respondent.

CLC 2009 LAHORE HIGH COURT LAHORE 86 #

2009 C L C 86

[Lahore]

Before Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General and another----Appellants

Versus

COMMISSIONER, LAHORE DIVISION, LAHORE and another----Respondents

I.C.A. No.707 of 2002 in Writ Petition No.1771 of 2001, heard on 18th September, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 54---Law Reforms Ordinance (XII of 1972), S.2---Intra-Court Appeal---Maintainability---Proceedings assailed before Single Judge of High Court commenced under the provisions of Land Acquisition Act, 1894---Effect---In case any order was passed in such proceedings, a right of appeal was available to aggrieved party as per provisions of S.54 of Land Acquisition Act, 1894---Division Bench of High Court declined to interfere with the judgment passed by Single Judge of High Court in exercise of Constitutional jurisdiction---Intra-Court Appeal was dismissed in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Aslam Sukhera and others v. Collector, Land Acquisition and others 1998 SCMR 167 and Ch. Nazir Ahmad v. Moulvi Masood-ur-Rehman Khan and 6 others PLD 2008 Lah. 405 fol.

Mian Muhammad Qamar-uz-Zaman for Appellants.

Muhammad Yaqoob Sidhu for Respondents.

Date of hearing: 18th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 95 #

2009 C L C 95

[Lahore]

Before Ali Akbar Qureshi, J

Mst. SARDAR BEGUM through General Attorney----Petitioner

Versus

HOUSING AND PHYSICAL PLANNING DEPARTMENT, GOVERNMENT OF THE PUNJAB through Secretary, and 2 others-Respondents

Writ Petitions Nos. 3087 to 3091 of 2008, heard on 17th September, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allotment of plot---Administration of justice---Despite receipt of entire consideration amount by the Development Authority, possession of the plot was not handed over to petitioner on the ground that plot in question was in possession of some other person and no other plot was available for allotment---Validity---Development Authority was autonomous in its formation and to some degree at liberty to run its domestic affairs without intervention of other government departments---Such type of autonomous Authorities were expected to safeguard and protect rights of people and particularly who were genuinely entitled to be treated strictly in accordance with law---Although Authority was admitting all the claims of petitioner, yet was refusing to grant the same on technicalities or hurdles---Petitioner, after more than a decade, could not be asked to receive the amount paid by him, whereas law permitted him to have alternate plot in any other scheme---High Court in exercise of Constitutional jurisdiction directed the authorities to accommodate the petitioner in any other scheme of the Development Authority---Constitutional petition was allowed accordingly.

Mehmood Ali v. K.D.A. 2003 CLC 272 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 fol.

Aurangzeb Mirza for Petitioner.

Iftikhar Ahmad Mian for Respondents.

Date of hearing: 17th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 111 #

2009 C L C 111

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IJAZ DAR----Petitioner

Versus

Mrs. NASEEM and 2 others----Respondents

C.M. No.1597 of 2008 in Writ Petition No.8203 of 2006, decided on 6th October, 2008.

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

---Ss. 2(c)(i), 13 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Competence---Ejectment of tenant---Relationship of landlord and tenant---Application for setting aside ex parte judgment whereby constitutional petition was allowed and order passed by the Appellate Court was set aside and order passed by the Rent Controller was restored---Case was not only of misreading of evidence, but was non-reading thereof by the court of first appeal, therefore, constitutional petition was competent---Applicant never pleaded adverse possession---Case of applicant was that she was owner of the property which plea she failed to prove---Case of the petitioner was that there had been long drawn litigation about the suit property amongst the co-owners/co-heirs which started somewhere in the year 1956/1957 and it was not suggested to the petitioner that receiver was still alive and available---Other evidence on record was sufficient to prove the relationship between the parties in the absence of evidence of any title possessory or otherwise of the respondent---Judgment could not be recalled---Application for setting aside the ex parte judgment, was dismissed accordingly.

Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 ref.

Muhammad Riaz Lone for Applicant.

Saeed-uz-Zafar Khawaja for Respondent.

CLC 2009 LAHORE HIGH COURT LAHORE 114 #

2009 C L C 114

[Lahore]

Before Ali Akbar Qureshi, J

AMJAD MEHMOOD KHOKHAR----Petitioner

Versus

FARASAT HUSSAIN and 2 others----Respondents

Writ Petition No.10835 of 2008, decided on 12th September, 2008.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Striking off defence---Relation of landlord and tenant---Determination---Agreement to sell---Effect--Tenant denied relation of landlord and tenant on the ground of oral agreement to sell with previous owner of premises---Rent Controller passed tentative rent order but tenant failed to deposit the same within due time thus defence of tenant was struck off and eviction order was passed which order was maintained by Lower Appellate Court---Validity---Agreement to sell even if written could not create any right or title in favour of purchaser---Landlord purchased the premises against registered sale deed which held the field and was a better title as compared to tenant---Filing of civil suit challenging validity of sale deed executed in favour of landlord did not vitiate the title unless the same was finally decided---Tenant had also filed a suit for specific performance of oral agreement and if, at end of the day, tenant would succeed, he could ask for possession of rented premises in accordance with law---Tenant although denied relationship of landlord and tenant but could not place any material on record in support of his contention and rather elected to disobey order passed under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959, by Rent Controller---Tenant could have avoided his eviction from demised property by complying with order passed under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, by Rent Controller and could contest ejectment petition on merits---High Court, while exercising jurisdiction under Art.199 of .the Constitution, declined to interfere with orders passed by the courts below---Petition was dismissed in circumstances.

Messrs Allah Ditta Musical Company v. Muhammad Idrees Baqir and 8 others 1986 CLC 591; 1984 SCMR 741; Sh. Sana Ullah v. Farah Diba and others 2005 YLR 2784; Makhan Masih and others v. Acting Principal F.C. College and others 1984 SCMR 1065; Aziz Begum v. Faiyaz Buttu 1991 CLC Note 9 at page 6; Muhammad Akram v. Additional District Judge, Lahore and 2 others 1990 CLC 908; Tahir Hussain v. Ghulam Faruque and 7 others PLD 1978 Kar. 182 and Ch. Muhammad Akmal v. Faisal Saeed Mirza and others 2004 CLC 862 ref.

Nauman Qureshi for Petitioner.

Mian Hameed Ullah Khan and Niaz Hussain Mirza for Respondent.

CLC 2009 LAHORE HIGH COURT LAHORE 122 #

2009 C L C 122

[Lahore]

Before Malik Saeed Ejaz, J

OMAR FAROOQ----Petitioner

Versus

VICE-CHANCELLOR, BAHA-UDDIN ZAKARIA UNIVERSITY, MULTAN and 2 others----Respondents

Writ Petition No.1606 of 2008, decided on 30th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Smuggling-out of answer sheet---Proof---Petitioner was disqualified and debarred to appear in any university examination for a period of three years on the allegation of smuggling-out an answer sheet from examination hall, which sheet was used by another candidate---Validity---Inquiry report was silent on the point as to how many additional sheets were issued on relevant date to candidates and out of those how many were returned unused---Possibility could not be ruled out that invigilator or superintendent or other staff in examination hall might have retained unused additional sheet with them without showing the same as having been returned, in order to achieve some financial gains by providing such sheet to some other candidate---Authorities had passed orders in hasty manner without collecting evidence against petitioner on the basis of mere presumptions--Authorities failed to establish allegation of smuggling-out an additional answer sheet against petitioner beyond any doubt---High Court in exercise of Constitutional jurisdiction set aside the orders passed by the authorities against petitioner---Petition was dismissed in circumstances.

Sh. Jamshed Hayat for Petitioner.

Malik Muhammad Tariq Rajwana with Muhammad Ishaq, Junior Clerk/Dealing Officer for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 128 #

2009 C L C 128

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD RAMZAN----Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY through Secretary (Works and Communications), Islamabad and 5 others-Respondents

Writ Petition No.4102 of 2008, decided on 9th September, 2008.

Land Acquisition Act (I of 1894)---

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate and efficacious remedy---Factual controversy---Petitioner was tenant over land in question and was aggrieved of construction of ring road over the land---Validity---Authorities had placed photo copies of documents to substantiate that proceedings under Land Acquisition Act, 1894, were carried out by the concerned authorities---Contention of petitioner that prescribed proceedings had not been conducted, was devoid of force---No finding could be recorded about fakery or illegality of proceedings because petitioner had failed to challenge any one of such proceedings---Either the petitioner omitted to assail proceedings in good faith or concealed the same mala fide---Complete mechanism was incorporated in Land Acquisition Act, 1894, for redressal of grievance of persons aggrieved of acquisition proceedings, therefore, no such proceedings could be assailed in Constitutional petition---High Court, in exercise of constitutional jurisdiction, was not supposed to hold any inquiry or carry out rendition of accounts---Petition was dismissed in circumstances.

Syed Arshad Ali and others v. Pakistan Telecommunication Co. Ltd. 2008 SCMR 314 and 2002 SCMR 549 ref.

Barrister Taj Muhammad Khan Langah and Sardar Abdul Qayyum Khan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents Nos. 1 to 3.

Saleem Pervez Patwari, Doaaba Mahar.

CLC 2009 LAHORE HIGH COURT LAHORE 137 #

2009 C L C 137

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD RAFIQUE----Petitioner

Versus

Mst. MUMTAZ AKHTAR alias ALLAH RAKHI and 2 others----Respondents

Civil Revision No.286 of 2008, decided on 28th May, 2008.

(a) Islamic Law---

----Inheritance---Parentage---Legitimacy of children of deceased challenged by their uncle---Proof--Uncle in his pleadings had been adding name of his deceased brother as father of children right from Trial Court upto Supreme Court---Uncle had not objected to parentage and paternity of children before attestation of mutation of inheritance in their favour---No evidence existed on record to show that children were born after divorce of their mother or she had been living in adultery---Uncle asserted that if children relinquished their right of inheritance, then he would accept and acknowledge them as legitimate children of his deceased brother---Such stance of uncle was against the principle of Fiqa---According to Sunni school of thought a child born after six months of marriage or within two years of its dissolution would be presumed to be a legitimate child of his father---Role of uncle to grab a small piece of land by dragging and harassing children of his deceased brother was totally unbecoming of a responsible and conscientious person---Uncle had not resorted to procedure of Liyan by swearing before Qazi that such children were illegitimate and result of adultery---Deceased in his life time had neither challenged paternity of his children nor disowned them in any manner---Such children were legitimate and entitled to legacy and inheritance of their deceased father---Principles.

Sections 146 of 149 of Majmooa-e-Qawaneen-e-Islam by Dr. Tanzeel-ur-Rehman; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073; Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8; Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275; Muhammad Tallat v. Mst. Yasmin Zohra and another PLD 1992 CLC 1180; Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lah. 575; Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605; Mst. Ghulam Fatima v. Mst. Inayat Bibi and 4 others 1987 MLD 172; Muhammad Hussain v. Abdur Rehman and others PLD 1995 Pesh. 124; Verse No.15 Surah Ahqaf Part XXVI; 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.

(b) Islamic Law---

----Paternity of a child---Presumption---Principles.

Paternity of a child born out of the lawful wedlock invariably carries presumption of truth in its favour and mere denial can hardly take away the status-of legitimacy. According to Muhammadan Law, "child follows the bed". Every presumption is made in favour of legitimacy of the child who is presumed to be an issue of his parents without acknowledgment or affirmation of the parentage on the part of father; the child follows bed (Firash).

Mian Saeed-ud-Din Ahmed for Petitioner.

CLC 2009 LAHORE HIGH COURT LAHORE 147 #

2009 C L C 147

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL RAHIM----Petitioner

Versus

GULZAR KHAN and another----Respondents

Civil Revision No.40 of 2004, heard on 26th September, 2008.

Specific Relief Act (I of 1877)---

----Ss. 9 & 42---Civil Procedure Code (V of 1908), Ss.2(12) & 115---Suit for declaration and possession---Mesne profits, claim for---Alleged dispossession in the case had taken place 15 days before the institution of suit---Claim for mesne profits which according to S.2(12), C.P.C., would mean those profits, which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom, together with interest on such profits, could hardly be termed to have accrued at the time the suit was instituted---Claim had been made with regard to mesne profits with effect from July 1997, which was point of time about 19 years after the date of institution of the first suit---Revision was dismissed with costs.

Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047 and Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd. Karachi PLD 1985 Kar. 181 ref.

Muhammad Ashraf Safeer for Petitioner.

Dildar Hussain Mir for Respondents.

Date of hearing: 26th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 156 #

2009 C L C 156

[Lahore]

Before Hafiz Tariq Nasim, J

Mst. AISHA BIBI----Petitioner

Versus

PRINCIPAL, GOVERNMENT ELEMENTARY TEACHERS' TRAINING COLLEGE FOR WOMEN, MULTAN and 2 others----Respondents

Writ Petitions Nos.4818,5858 and 5891 of 2007, heard on 28th July, 2008.

Constitution of Pakistan (1973)---

----Arts. 199 & 25---Constitutional petition---Educational institution---Admission in B.Ed. classes---Age limit---Relaxation of age---Discrimination---Petitioners, who were qualified, applied for admission for B.Ed. morning classes---Age limit was mentioned as 24 years for morning classes in the prospectus, but no such age limit was prescribed for the evening classes---Effect---Ages of the petitioners who were interested in morning classes, were more than the prescribed age---Petitioners moved before concerned authorities for the relaxation of age limit for admission in the morning classes, but same was turned down despite availability of seats in the morning classes---Constitutional petitions filed by the petitioners were admitted for regular hearing, with direction that if the petitioners were otherwise eligible on merits, except regarding the bar of age, they would be given admission in the morning classes---On the strength of said orders of the High Court, petitioners were granted admission and they completed the requisite course satisfactorily and examination was scheduled to be held---Validity---Age for eligibility as 24 years was fixed for admission in morning classes but no such age limit was fixed for evening classes---Such action was a clear case of discrimination and was violative of Art.25 of the Constitution---Petitioners were held entitled to appear-in the final examination of B.Ed. Classes.

Riaz-ul-Haq v. Selection Committee Constituted for Admission in Bolan Medical College and 6 others 1997 SCMR 1845 and Dr. Liaqat Ali v. Vice-Chancellor University of Agriculture, Faisalabad and 2 others PLD 1999 Lah. 454 ref.

Malik M. Ahsan Kharl for Petitioner.

Mubashar Latif Gull, A.A.-G. for Respondents.

Date of hearing: 28th July, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 163 #

2009 C L C 163

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD AWAIS AKHTAR----Petitioner

Versus

BAHA-UD-DIN ZAKARIA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others----Respondents

Writ Petition No.1446 of 2008, decided on 26th August, 2008.

Uniform Semester Rules, 2007---

----Regln. 11(iv)(b), (v)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational Institution---Examination---Petitioner/candidate after qualifying 6th Semester was promoted to 7th semester, but was detained in 7th semester on account of being unsuccessful in 50% of the courses taken by him---Contention of the petitioner was that as per Regulation 11(iv)(b) of Uniform Semester Rules, (2007), a student who secured C.G.P.A. of 2.00 after having been detained in 7th semester would be promoted to the next semester, but petitioner, despite securing C.G.P.A. of 2.3, had been declared failed---Validity---Prevailing rules for the conduct of examination had provided that a student must obtain minimum C.G.P.A. of 2.00 and pass 50% of the course offered for that semester---Passing 50% of the course, in circumstances was mandatory requirement for promotion to the next semester and obtaining C.G.P.A. 2.00 singly was not enough for promotion-Petitioner, no doubt had secured C.G.P.A. of 2.60, but had not succeeded in passing 50% of the courses---Impugned action against the petitioner having been taken according to rules and regulations, same could not be assailed in constitutional jurisdiction of High Court, as dropping of a student from roll of the Department as per regulations, needed strict adherence to keep the standard of education---Petitioner having not succeeded in making out a case of discrimination or unequal treatment, his petition was dismissed.

Muzzamil Shehzad v. Bahauddin Zakria University, Multan and 2 others 2006 YLR 370; Sami-ur-Rehman v. V.C., Bahauddin Zakaria University and 2 others 2006 CLC 1501; Bahauddin Zakaria University v. Muhammad Ilyas 2004 YLR 2639; Rashid Nawaz and 7 others v. University of the Punjab through Vice-Chancellor PLD 2007 Lah. 78 and Ali Younis v. Chairman of Academic Council 2000 SCMR 1222 ref.

Sh. Jamshed Hayat for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 173 #

2009 C L C 173

[Lahore]

Before Saghir Ahmad, J

Messrs A.N. PESTICIDES through Syed Shaukat Hussain Gillani and another----Petitioners

Versus

PAKISTAN through Secretary, Ministry of Food Agriculture and Live Stock, Islamabad and 5 others----Respondents

Writ Petitions Nos.2519 and 3521 of 2008, decided on 23rd July, 2008.

Agricultural Pesticide Ordinance (II of 1971)---

----S. 29---Agricultural Pesticide Rules, 1973, R.9---S.R.O.790(I)/2005, dated 5-8-2005--Constitution of Pakistan (1973), Arts.199 & 25---Constitutional petition---Maintainability---Scope of S.R.O.790(I)/2005, dated 5-8-2005, whereby the persons running pesticide business in the Province of Punjab had to maintain ten agriculture graduates---Plea raised by the petitioner was that they were only distributors, therefore, the S.R.O. was not applicable to them and the S.R.O. was ultra vires and discriminatory in nature as in other Provinces less number of agricultural graduates were required to be employed---Validity---Article 25 of the Constitution provides protection against discrimination, it also allows classification but, of course, reasonable---Section 29 of the Agricultural Pesticide Ordinance, 1971 fully empowers the Federal Government to make rules for carrying the provisions of the Ordinance into effect in consultation with the Agricultural Pesticide Technical Advisory Committee and after previous publication in the official gazette---Federal Government being the authority having promulgated the Pesticides Rules was fully empowered to make amendment therein, thus, the impugned S.R.O. could not be assailed through constitutional petition---High Court dismissed the petition in circumstances.

Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163; Government of N.-W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804 and Pakistan International Airlines Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128 rel.

Amin-ud-Din Khan for Petitioners.

Malik Muhammad Ramzan Khalid, Addl. A.G. and Zafarullah Khan Khakwani, Asstt. A.-G. on Court's call.

CLC 2009 LAHORE HIGH COURT LAHORE 180 #

2009 C L C 180

[Lahore]

Before Saghir Ahmad, J

SAEED AHMAD----Petitioner

Versus

T.M.A., MIAN CHANNU through Nazim and 3 others----Respondents

Writ Petition No.3633 of 2008, decided on 11th August, 2008.

Punjab Local Government (Auction of Collection Rights) Rules, 2003---

---Rr. 11(2) & 11(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Cancellation of bid---Scope---Pleas raised by petitioner were that out of the participants of the bid, the petitioner turned out to be highest bidder and the same was approved by the Auction Committee as well as by the Tehsil Nazim; that Council could refuse to accept the auction but such power could not be used arbitrarily and only where the auction was unreasonable or there was a scope of further enhancement of bid offer---Validity---Council/House could not be allowed to frustrate a lawful process in an arbitrary manner, merely on the pretext that some one had shown willingness to give higher bid, because if such a practice was allowed to be followed, there would be hardly an end to bid process---If the auctions held openly were allowed to be nullified, then there would be no end to this exercise and people will keep on coming with offers of higher amounts in order to oust their adversaries---Held, that highest bid of the petitioner was rejected on extraneous considerations and the resolution of the House/Council had been passed without lawful authority---High Court directed that Tehsil Municipal Administration shall award contract to the petitioner forthwith---High Court accepted the petition in circumstances.

Mirza Aziz Akbar Baig for Petitioner.

M. Ramzan Khalid Malik, Addl. A.-G.

Mirza Muhammad Saleem Baig for Respondents.

T.M.A. along with Tehsil Municipal Officer, Mian Channu.

CLC 2009 LAHORE HIGH COURT LAHORE 184 #

2009 C L C 184

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD UMAIR MIRZA----Petitioner

Versus

VICE-CHANCELLOR, BAHA-UD-DIN ZAKARIA UNIVERSITY, .MULTAN and 2 others----Respondents

Writ Petition No.1607 of 2008, decided on 30th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Using unfair means in examination---Petitioner was issued show-cause notice alleging that he used an additional answer sheet in examination on which relevant material was written and that he was found guilty of smuggling the additional answer books in the examination hall in violations of relevant Regulations---Petitioner was disqualified for a period of three years from passing examination and from appearing in any University examination---Appeal filed by the petitioner before authorities had been dismissed without affording an opportunity to him---Validity---Counsel for authorities as well as the dealing officer, present in the court, had failed to satisfy the court on the point,. whether the Inquiry Officer, ascertained as to how the alleged answer sheet went to the hands of the petitioner---Educational institutions were like mothers and students take birth from the wombs of such institutions; it was the primary duty of the student to maintain the reputation of the institution by adopting good behaviour, honest attitude towards his assignment and to abide by the rules and regulations of the institution---Institutions should also give treatment to its students like mother; and if a student committed any mistake and violated the rules and regulations of the institutions, then punishment was to be given, if necessary, to the extent that his career was not demolished---Before awarding punishment an inquiry was to be held with full care and caution to safeguard the future of the student---In the present case, the petitioner, no doubt was caught red handed in the examination hall with an additional answer sheet, but during the inquiry it was to be proved that said sheet was smuggled in---Answer sheet in question was recovered from the possession of the petitioner, but the source from where and by whom it was transmitted to him was not proved---Case of using unfair means, in' circumstances was made out against the petitioner---No case for smuggling in the answer sheet was made out against the petitioner---Impugned order was modified by High Court and punishment of disqualification of the petitioner was altered to one year and he was to remain debarred from appearing in the examination for one year on account of using unfair means.

Sh. Jamshed Hayat for petitioner.

Malik Muhammad Tariq Rajwana for Respondents with Muhammad Ishaq, Junior Clerk/Dealing Officer.

CLC 2009 LAHORE HIGH COURT LAHORE 188 #

2009 C L C 188

[Lahore]

Before Saif-ur-Rehman, J

Mst. ASMAT ELAHI----Petitioner

Versus

KHIZER HAYAT and 3 others----Respondents

Civil Revision No.21-D and C.M.1-C of 2008, decided on 25th March, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XVII, R.3 & S.115---Suit for specific performance of agreement---Closing of evidence---Plaintiffs having failed to produce evidence, their evidence was closed and suit was dismissed by the Trial Court---Appeal against judgment and decree of the Trial Court was accepted by the Appellate Court---Validity---Evidence was brought by the plaintiffs on two occasions, but their evidence was not recorded because of the inability of the counsel for the defendant to cross-examine them---No cogent reason had been given in revision petitions as to why witnesses produced by the plaintiffs were not cross-examined by the defendant---Had counsel for defendant been aware of his responsibility and the said witnesses had been cross-examined, the occasion for closing the evidence would not have arisen---Was incumbent upon the defendant to justify her inability to cross-examine the witnesses produced by the plaintiffs on the said two dates and only then the defendant could plead that subsequent default of the plaintiffs was not condonable---Petition was dismissed.

Syed Iftikhar Hussain Zaidi v. Mst. Shafiqa Begum and 30 others 2003 SCMR 844; Mian Gul Shahzad Aman Room and others v. Kameen Mian and others PLD 2003 Pesh. 60; Aftab Ahmad Khan and others v. Mist Surayah Begum and 7 others PLD 2004 Pesh. 168; Fateh Sher v. Muhammad Zubair 2007 SCMR 797 and Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673 ref.

Malik Javaid Akhtar Wains for Petitioner.

CLC 2009 LAHORE HIGH COURT LAHORE 223 #

2009 C L C 223

[Lahore]

Before Zafar Iqbal Chaudhry, J

Syed WAQAR HUSSAIN SHAH----Petitioner

Versus

MUHAMMAD YOUNIS----Respondents

Civil Revision No.2395 of 2007, decided on 21st October, 2008.

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

----S. 13---Talbs, performance of---Proof---Pre-emptor's claim could not be rejected merely on slip of tongue of witnesses in stating correct date of sale.

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

---S. 15---Waiver of right of pre-emption---Test to determine such waiver stated.

No hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to a pre-emptible sale, and consequently every case had to be decided in the light of its peculiar facts. The test to be applied is that "the pre-emptor must have a fair opportunity of purchasing the property". If the answer is in the affirmative, the pre-emptor must fail, but if it is in the negative, he must obviously succeed. The right of pre-eruption is not lost, if the person who is a pre-emptor had lost his right to pre-empt merely because he had not made the demands at the proper time, and although the right to pre-empt gives no vested right in the property, but is merely a right of acquiring the property of which a pre-emptor might avail himself or not, as he pleased. Until an offer is made to a person entitled to pre-empt and he refuses to buy, the right of pre-emption continues to exist so long as its enforcement is not barred by limitation.

Ch. Muhammad Yaqub Sindhoo for Petitioner.

Ch. Anwaar-ul-Haq Pannun for Respondent.

Date of hearing: 12th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 259 #

2009 C L C 259

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD HAYAT----Petitioner

Versus

MUHAMMAD JAFFAR----Respondent

Civil Revision No.2131 of 2005, heard on 27th October, 2008.

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

----S. 13(3)---Service of notice of Talb-i-Ishhad---Proof---In order to prove service of such notice, pre-emptor was legally obliged to place on record "acknowledgement due" along with postal receipt of such notice and produce in evidence two truthful witnesses thereof---Non-fulfilment of such legal obligation by pre-emptor would have its own effect according to facts of each case---Principles.

Malik Muhammad Ashhab for Petitioner.

Respondent: Ex parte vide order, dated 15-10-2008.

Date of hearing: 27th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 269 #

2009 C L C 269

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD AKRAM----Petitioner

Versus

JUDGE, FAMILY COURT and others----Respondents

Writ Petition No.8580 of 2008, heard on 8th October, 2008.

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

----Ss. 7 & 11-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Producing of witness---Principles---Petitioner intended to produce two witnesses whose names were not included in list of witnesses filed by him along with his written statement---Plea raised by petitioner was that necessity for including names in list of witnesses was that without including their names in that list, petitioner could not even call those witnesses in witness box at his own responsibility---Validity---Family Court was competent to allow a party to include name of a desired witness in list in accordance with S.7(2) of West Pakistan Family Courts Act, 1964---Witnesses so included in the list could be produced by party, though it could not get summons issued if within three days of framing of issues it had not intimated the court of its desire that a witness might be summoned through the court---Order passed by Family Court was set aside and High Court, in exercise of Constitutional jurisdiction, allowed the petitioner to include names of witnesses in list of witnesses---Petition was allowed accordingly.

Muhammad Ahsan Nizami for Petitioner.

Nawab Ali Meo for Respondent No.2.

Date of hearing: 8th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 279 #

2009 C L C 279

[Lahore]

Before Syed Asghar Haider, J

Mian MUHAMMAD LATEEF----Appellant

Versus

Mst. NASIMA WARSI through L.R.----Respondent

F.A.O. No.194 of 2007, decided on 10th October, 2008.

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

----S. 17---Ejectment of tenant---Bona fide personal need of landlord---Proof---Non-disclosure of other properties owned by landlady---Effect---Rent Controller allowed ejectment application and passed eviction order on the ground of bona fide need of landlady---Plea raised by tenant was that the landlady did not require the premises for herself and she did not disclose in her application the other properties owned by her---Validity---Personal bona fide need of landlady and an affirmative statement coupled with test of cross-examination was sufficient for the purpose of discharging onus by landlady in such respect---Landlady had unequivocally stated that the property most suitable for need of her daughter to establish a clinic was the one which was occupied by tenant---Held, it was prerogative of landlady to choose property of her choice and she was the best judge of her needs, therefore, she would succeed on such principle---Tenant could not impose his will and desire on landlady and in such context heavy burden was upon tenant to disprove need of landlady---No convincing evidence was available on record produced by tenant to disprove need of landlady and witnesses produced by him were either interested in cause or not acquainted with landlady's need, therefore, such witnesses could not judge her choice---Non-disclosure of other properties owned by landlady in her petition was neither necessary nor required under S.17 of Cantonments Rent Restriction Act, 1963---High Court, in exercise of appellate jurisdiction, declined to interfere in eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Dr. A.R. Khan v. Muhammad Ishaque 1972 SCMR 437; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Syed Rashid Hussain and 2 others v. Hussain Haji Ahmad PLD 1973 Note 138 at page 209; S.M. Noor-ud-Din and 9 others v. Saga Printers 1998 SCMR 2119; Muhammad Din v. Nazir Ahmad 1982 CLC 1737; Muhammad Ihsan v. Muhammad Hafeez 1994 CLC 84; Nasrullah Jan v. Mst. Farzana Begum and 6 others 2002 CLC 1523; Farooq Imran v. Mst. Hafeez Munir through Special Attorney 2006 YLR 2723; Malik Muhammad Zakria Kansi v. Dr.. Bashir Ahmad PLD 2001 Quetta 40; Malik Muhammad Ramzan v. Messrs General Iron Stores and another 1995 SCMR 1125; Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442; Gohar Rashid v. Fazal Hassan Mazhar PLD 1995 Lah. 469 and Haji Mohibullah & Co. and others v. Khawaja Baha-ud-Din 1990 SCMR 1070 ref.

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

----O. XIX, R.3---Affidavit---Principle---Under O.XIX, R.3, C.P.C. it is mandatory that affidavits are required to be confined to such facts as the deponent is able of his own knowledge to prove.

Allies Book Corporation through L.Rs. v. Sultan Ahmad an others 2006 SCMR 152 rel.

----S. 17(9)---Future rent, non-deposit of---Striking off defence---Scope---Any default in deposit of future rent is to be visited with penalty under S.17 (9) of Cantonments Rent Restriction Act, 1963, which is a sufficient ground to strike off the defence of tenant.

Messrs Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC. 700; M. Nazir v. S. Shaukat Ali 1982 SCMR 985 and Safer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi (deceased) through L.RS. PLD 2007 SC 304 rel.

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

----S. 24---Civil Procedure Code (V of 1908), Ss.96 & 107---Appellate jurisdiction---Scope---High Court is empowered under S.24 of Cantonments Rent Restriction Act, 1963, to exercise such powers as they are parallel to S.96 C.P.C. and can also exercise same powers as are available to Trial Court under S.107, C.P.C.

Samiullah v. Mian Muhammad Salim, District Judge, Rawalpindi and others PLD 1966 Lah. 572 rel.

Syed Najam-ul-Hassan Kazmi for Appellant.

Ch. Inayat Ullah for Respondent.

Date of hearing: 12th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 289 #

2009 C L C 289

[Lahore]

Before Ali Akbar Qureshi, J

AMJAD IQBAL----Petitioner

Versus

Haji SABIR HUSSAIN through Special Attorney and 4 others----Respondents

Writ Petition No.9174 of 2008, decided on 21st October, 2008.

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

----S. 13---Ejectment petition---Relationship of landlord and tenant between parties, denial of---Tenant's claim as owner of demised premises on basis of agreement of sale---Tenant's application for stay of ejectment proceedings on ground of pendency of his suit for specific performance of such agreement---Validity---Pendency of such suit would not bar filing of ejectment petition---Ejectment proceedings would continue in normal course as Rent Controller could effectively decide question of relationship after recording evidence of parties---Such application was dismissed in circumstances.

Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah. 97; Muhammad Amin and others v. Syed Kazim Hussain and others 1995 MLD 446; Bahadur Ali v. Raja Fazal Hussain 1990 CLC 1529; Mrs. Annetta Haroon v. Mst. Sughran Bibi and others 2000 SCMR 716 and Muhammad Riaz v. Mst. Razia Begum and 2 others 2005 CLC 1959 ref.

Ch. Muhammad Iqbal for Petitioner.

Ch. Ishtiaq Ahmad for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 291 #

2009 C L C 291

[Lahore]

Before Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ

Sh. MUHAMMAD SALEEM----Appellant

Versus

SAADAT ENTERPRISES----Respondent

R.F.A. No.284 of 2004, decided on 11th November, 2008.

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

----Ss. 2(a), 4, 17 & 20---Companies Ordinance (XLVII of 1984), Ss.196, 212 & 283---Contract Act (IX of 1872), S.10---Arbitration agreement on behalf of company signed by a person not authorized through a resolution of Board of Directors---Validity---Such person could not refer dispute to arbitration on behalf of company---Participation of such person in arbitration proceedings would not validate proceedings and award passed therein could not be made rule of Court---Principles.

Province of West Pakistan (Punjab) through Secretary Irrigation and Power Department and another v. Mian Abdul Hamid & Co. 1985 CLC 1170; Mst. Ghafooran Bi v. Abdul Hafeez and others PLD 1993 Kar. 668; Muhammad Suleman Khawar v. Board of Directors, Sindh Provincial Cooperative Bank Ltd. Karachi and 2 others PLD 1989 Kar. 261; Province of Balochistan v. Tribal Friends Company, Loralai PLD 1986 Quetta 321; Province of Punjab through Secretary Communication and works Department, Lahore v. Messrs M.A. Rashid Saeed Alam Khan PLD 1990 Lah. 25; Muhammad Iqbal v. Riaz Sabir 1984 CLC 2375; A. Qutab-ud-Din Khan v. Chec Mill Wala Dredging Co. (Pvt.) Ltd., Karachi 2001 MLD 115; Project Director Peoples Programme v. Kh. Muhammad Sarwar 1989 CLC 1030; Messrs International Development Association Limited v. Shaheen Foundation P.A.F. 1986 MLD 1753; Mst. Waqar Bano v. Syed Sher Ali and others 1987 MLD 146; Chief Engineer Building Department v. Pakistan National Constructions 1988 SCMR 723; Haji Ilyas, Haji Esa and 9 others v. Haji Ahmad and 7 others 1987 CLC 2509; Abaid Ullah Khan v. Inyat Ullah Khan 1998 MLD 1718; Messrs James Construction Co. (Pvt.) Limited through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore PLD 2002 SC 310; Dr. Khalid Malik and 2 others v. Dr. Farida Malik and 7 others 1994 MLD 2348 and Puppalla Raurupu v. Nagidi Apalaswami AIR 1957 And. Pra. 11 ref.

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

----Ss. 2(a), 4 & 20---Unsigned arbitration agreement---Validity---Dispute could not be resolved through arbitration on basis of such agreement unless intention of parties to resolve their dispute through arbitration was proved.

----Ss. 2(a), 4 & 20---Companies Ordinance (XLVII of 1984), Ss.196, 212 & 283---Contract Act (IX of 1872), S.10---Execution of arbitration agreement on behalf of company---Scope---Director or General manager of company or any third person, unless empowered through a resolution of Board of Directors, could not execute such agreement---Principles.

According to section 10 of the Contract Act, 1872, an agreement is contract only when it is made by the parties competent to contract. An agreement on behalf of a company has to be signed by a competent/ authorized person. Company is an artificial person and it can enter into a contract through its agent, who is appointed according to requirements of Memorandum of Association and Articles of Association of the company. Normal mode is through a resolution of Board of Directors of the company. A third party dealing with the agent of company cannot rely upon the apparent authority, but is hound to acquaint himself with Memorandum and Articles of Association of the Company.

A Director is an individual and has no power to act on behalf of company. He is one among the body of Directors called Board and alone has no power except the one delegated to him by the Board. General Manager figures nowhere in the affairs of the company. His status is that of an employee and cannot act on behalf of the company. His act binds the company only when his appointment as an agent is made in writing and conferred by the Board of Directors through resolution and under seal. Section 196 of the Companies Ordinance, 1984 provides that business of the company is managed by the Board of Directors by means of a resolution passed in the meeting, while section 212 provides that person empowered on behalf of the company to enter into contract has to sign the deed on behalf of the company under his seal.

Section 283 of the Companies Ordinance, 1984 envisages that company can refer an existing or future dispute between itself and other person through a written agreement.

(1937) 1 All LR 231 and (1982) 52 Company Cases 293 rel.

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

----Ss. 227 & 228---Contract by agent in excess of and beyond his authority would be void.

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

----Ss. 13 & 30---Document, interpretation of---Arbitrator, powers of---Scope---Arbitration could not interpret document in a manner to replace his own view as against express stipulation contained therein.

Mirza Hafeez-ur-Rehman for Appellant.

Sh. Naseer Ahmad and Aleem Baig Chughtai for Respondents.

Date of hearing: 18th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 308 #

2009 C L C 308

[Lahore]

Before Syed Hamid Ali Shah and Hafiz Tariq Nasim, JJ

A.B.L. ----Appellant

Versus

KHALID MAHMOOD----Respondent

R.F.A. No.122-C of 2008, heard on 30th September, 2008:

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

----O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 13---Suit for recovery of amount on basis of Call Deposit Receipts issued by Bank---Application for leave to defend suit---Plea of defendant-Bank was that plaintiff in collusion with its Ex-Manager had stolen such receipts and filled and completed same subsequently; that bank had lodged F.I.R. and filed suit for cancellation of such receipts; and that such receipts were not promissory notes, thus, suit was not maintainable---Validity---Bank had alleged plaintiff to be party to fraud and theft of such receipts---No consideration or payment with regard to such receipts had been made---Lodging of F.I.R. and filing of suit by Bank supported its plea---Fraud alleged by Bank was not merely a bald allegation---Allegation of fraud could not be determined summarily as same would need recording of evidence---When controversy needed its resolution through evidence, then grant of leave would be the right course---Leave application was accepted.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; National Bank of Pakistan v. Messrs Elegzender and Company and 2 others PLD 1987 Lah. 290; Messrs Bhera Food Grain Corporation and 9 others v. Muslim Commercial Bank 1987 CLC 1843; Messrs Chaudhri Textile Mills and others v. United Bank Limited 1987 CLC 1957; Messrs United Bank Limited v. Messrs Okara Trading Company and others 1989 MLD 921; Messrs Bashir Engineering Industries and 3 others v. The Muslim Commercial Bank Ltd. and another 1988 CLC 941; Habib Bank Limited v. Musarat Ali Khan PLD 1987 Kar. 86; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Zohair Akhtar v. Jawad Adil 2006 YLR 1510 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976 ref.

M. Sarwar Ghani v. Muslim Commercial Bank Limited 1989 ALD 34 and Abdul Malik K. Lakha through Legal Heirs v. Abdul Karim K. Kara 2004 PLD Kar. 399 rel.

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

----O. XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 13---Suit for recovery of amount on basis of negotiable instrument---Leave to defend suit, grant of---Scope---Grant of leave to defend suit would be the right course, if defence put up by defendant needed its resolution through evidence---Duty of court explained.

While granting leave to defend the suit, the Court is to see that triable issues have been raised and defence put up by the defendant is fair, bona fide and reasonable. While examining so the Court is not to see that the defence put up will succeed at the end of the trial. The Court should act liberally (which does not mean generously) in the matter of granting leave to defend the suit. The facts or the plausible defence, has to be disclosed upon affidavit and appraisal of whole evidence or correctness of averment in affidavit, are not required to be examined with minute details, when the application for leave to defend is under consideration. Leave is refused or it is granted subject to condition when the Court finds that the defence is illusory or sham, liability and execution of the negotiable instrument is admitted. When allegation of fraud, forgery or fabrication of negotiable instrument is pleaded, it makes a plausible defence, the applicant/defendant in such circumstances is granted leave to defend the suit.

When the controversy needs its resolution through evidence, then grant of leave to defend the suit is the right course.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; National Bank of Pakistan v. Messrs Elegzender and Company and 2 others PLD 1987 Lah. 290; Messrs Bhera Food Grain Corporation and 9 others v. Muslim Commercial Bank 1987 CLC 1843; Messrs Chaudhri Textile Mills and others v. United Bank Limited 1987 CLC 1957; Messrs United Bank Limited v. Messrs Okara Trading Company and others 1989 MLD 921; Messrs Bashir Engineering Industries and 3 others v. the Muslim Commercial Bank Ltd. and another 1988 CLC 941; Habib Bank Limited v. Musarat Ali Khan PLD 1987 Kar. 86; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Zohair Akhtar v. Jawad Adil 2006 YLR 1510 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976 ref.

M. Sarwar Ghani v. Muslim Commercial Bank Limited 1989 ALD 34 and Abdul Malik K. Lakha through Legal Heirs v. Abdul Karim K. Kara 2004 PLD Kar. 399 rel.

---Allegation of---Proof---Such allegation could not be determined summarily as same would need recording of evidence.

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

----O. XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 13---Allied Bank Limited Book of Instructions, Part IV, Cl.35---Suit for recovery of amount on basis of Call Deposit Receipt issued by Bank---Maintainability---Such receipt signed by Branch Manager and an officer of bank contained a promise to pay a certain sum of money on demand to payee only---Such receipt could be issued and delivered to a person not maintaining an account with issuing Bank---Such receipt was a promissory note and negotiable instrument as envisaged in Ss.4 & 13 of Negotiable Instruments Act, 1881 respectively---Such suit was, held, to be maintainable.

Clause 35, Part IV of A.B.L. Book of Instruction ref.

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

----Ss. 10 & 151---Stay of subsequent suit or consolidation of former and subsequent suits---Scope---Where nature, procedure and jurisdiction of courts in both suits was distinct, then neither stay of subsequent suit nor consolidation of both suits could be ordered.

Ch. Tariq Mahmood Gill for Appellant.

Muhammad Ali Qureshi for Respondent.

Date of hearing: 30th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 322 #

2009 C L C 322

[Lahore]

Before Mazhar Hussain Minhas, J

MUMTAZ RANI----Petitioner

Versus

BAHAUDDIN ZAKARIYAUNIVERSITY, MULTAN through Vice-Chancellor and 4 others----Respondents

Writ Petition No.5817 of 2008, decided on 5th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institutions---Admission in college---Counsel for the authorities had submitted parawise comments wherein it had been pointed out that on the last date of admission of the application, petitioner was overage by five months and four days and that she deliberately concealed that fact in the admission form---Counsel for the authorities had further submitted that under the Regulation Admission Rules and Regulations for the relevant year the remedy of appeal was available to the petitioner, but she having not availed that remedy, constitutional petition, was not competent---Counsel for the petitioner, in response to that objection had submitted photo copy of the appeal submitted to the Vice-Chancellor of the University through post which was still pending unattended--Constitutional petition was disposed of by the High Court with direction to the Vice-Chancellor of the University to constitute the Appellate Admission Committee which would dispose of petitioner's appeal within specified date positively---If petitioner would not succeed before Appellate Admission Committee, she would be entitled to refund of admission fee from the University because the authorities had also committed negligence by not computing the age of the petitioner at the time of admission.

Khurshid Ahmad Khan and Sh. Rehan Iftikhar for Petitioner.

Malik Tariq Rajwana for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 343 #

2009 C L C 343

[Lahore]

Before Rana Zahid Mahmood, J

MEHFOOZ AHMAD----Petitioner

Versus

Messrs SHARIF AGRI INDUSTRIES through Managing Partner and 2 others----Respondents

Writ Petition No.5742 of 2008, decided on 20th October, 2008.

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

----O. XVII, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Failure of defendant to produce evidence for more than two years despite availing several last opportunities at his request---Penal action against such party---Scope---Order of Trial Court closing defendant's evidence on a date fixed at his request as last opportunity upheld by District Judge in revision---Validity---Record showed that conduct of defendant before Trial Court was contumacious and based upon gross negligence---Penal action could be taken against a party for non-production of evidence, when time was sought by it on previous date for such purpose and then failed to do so on next date of hearing---High Court dismissed constitutional petition in circumstances---Principles.

1993 MLD 2312; Zahoor Ahmad v. Mehra and others 1999 SCMR 105; 1999 CLC 1969; 2003 MLD 1559 and 2006 CLC 1680 ref.

Faiz Ullah v. Ghulam Rasool 2006 YLR 1206 rel.

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

----O. XVII, R.3---Penal action could be taken against a party for non-production of evidence, when time was sought by him on previous date for such purpose and then failed to do so on next date of hearing.

Malik Javaid Akhtar Wains for Petitioner.

CLC 2009 LAHORE HIGH COURT LAHORE 364 #

2009 C L C 364

[Lahore]

Before Zubda-tul-Hussain, J

ABDUL JABBAR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE----Respondent

Writ Petitions Nos.3338/F and 3741 of 2005, heard on 17th December, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Determination of quantum of maintenance allowance---Considerations---Quantum of maintenance allowance was always to be determined by keeping in view the requirements of the claimant in contradistinction with the resources of the father/husband.

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

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional jurisdiction of High Court---Scope---Maintenance allowance, grant of---Decree of maintenance allowance being not appealable, the relief, which was not admissible in appeal, could not be considered or granted in exercise of discretionary writ jurisdiction unless the impugned order was perverse and against admitted facts.

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Past maintenance---Nature---Past maintenance was also a right, which could not be denied by a person responsible for providing maintenance to the dependant wife or child---High Court declined to interfere with the findings of trial Court or Appellate Court based on evidence regarding past and future maintenance allowance allowed by the said Courts.

(d) Judgment---

----Matter in all the three lis being inter related, commonality of questions of law and fact could validly warrant a single judgment.

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

----S. 5 & Sched.---Suit for recovery of dowry articles---Certain articles with the passage of time either perish or lose their utility but it depends upon the nature of the articles as to whether they are, or could be, deteriorated to such an extent that their recovery is not possible---Articles like furniture and utensils were of the nature that they could not perish or be subjected to complete wear and tear during the period for which the marriage subsisted between the parties.

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

----O. VI, R.1---Admission---Parties are bound by their admissions and they cannot be allowed to go back upon in the evidence what they have clearly admitted in the pleadings---Details and explanations may be admissible in certain circumstances, where the position of facts needs clarification but these are not permissible where the admission is clear and unequivocal.

Messrs Trading Corporation of Pakistan Limited v. Haji Hashim Haji Ahmad and Brothers 1986 MLD 54 ref.

Mian Shoukat Ali for Petitioner.

Mian Muhammad Tayyib Watoo for Respondent.

Date of hearing: 17th December, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 374 #

2009 C L C 374

[Lahore]

Before Malik Saeed Ejaz, J

MUNAZZA NOOR and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.1209 of 2008, decided on 6th November, 2008.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.6(5)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of deferred (Ghair Muajjal) dower by first wife on contracting second marriage by husband without permission---. Such dower consisted of Rs.50,000 and ten Bighas land---Dismissal of suit by Family Court for such dower not recoverable during subsistence of marriage---Award of decree by Appellate Court for recovery of Rs.50,000 without saying anything about other part of dower i.e. ten Bighas land---Validity---Courts below had found that dower amount along with ten Bighas land admitted by husband to have been fixed had not been paid to first wife---Husband on contracting second marriage without permission of Arbitration Council had become liable to pay to first wife entire dower either prompt or deferred---Husband had sold such land to other persons---High Court remanded case to Appellate Court for giving findings on second part of dower i.e. ten Bighas land, after hearing parties and recording evidence, if necessary.

Javed Iqbal Hashmi for Petitioners.

Mehar Zauq Muhammad Sipra for Respondent No.3.

CLC 2009 LAHORE HIGH COURT LAHORE 386 #

2009 C L C 386

[Lahore]

Before Muhammad Khalid Alvi and Sayed Ali Hassan Rizvi, JJ

MUHAMMAD RAMZAN----Appellant

Versus

ABDUL MAJEED and 4 others----Respondents

R.F.A. No.106 and C.M. No.2/C of 2007, decided on 11th November, 2008.

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

----S. 5 & Art.156---High Court (Lahore) Rules and Orders, Vol.I. Chap.3-B, Rr.1 & 2---Filing of first appeal in High Court after return of memorandum of appeal by District Judge for lacking pecuniary jurisdiction---Application for condonation of delay---Plea of appellant was that in filing appeal before District Judge, he was misled by decree-sheet drawn by Trial Court not containing valuation of suit for purposes of court-fee and jurisdiction; and that before proceeding further in appeal, District Judge was legally required to ascertain his pecuniary jurisdiction and in case of any doubt should have sent for record of Trial Court for such purpose---Validity---In case of appeal being barred by time, right would accrue in favour of respondent, which could not be lightly interfered with, unless there was sufficient grounds for condonation of delay---Both Trial Court and District Judge by failing to perform their such legal obligations had contributed in lapse of appellant in choosing a wrong forum---If Trial Court had mentioned jurisdictional value on decree-sheet, then District Judge on presentation of appeal would have immediately returned the same to High Court---Appeal remained pending with District Judge for about 143 days, thus, there was contributory lapse on his part in mishandling appeal and its returning with such delay---High Court accepted such application in circumstances.

1995 SCMR 584 rel.

(b) Administration of justice---

----Litigant must be vigilant in pursuit of his rights---Courts must be careful in handling cases strictly in accordance with law.

Muhammad Ameer Bhatti for Applicant/Appellant.

Amin-ud-Din Khan for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 400 #

2009 C L C 400

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SARWAR NOOR ----Petitioner

Versus

ALI HAIDER and another----Respondents

Civil Revision No.517 of 2004, heard on 15th December, 2008.

Islamic law---

----Sect---Presumption is that every Muslim is "Sunni" unless it is proved to be contrary---Fact that funeral prayer of the deceased lady was offered by a "Shia Moulvi" can hardly rebut the said presumption, particularly, when the evidence has been rebutted with an equal number of witnesses---Person claiming the particular sect of the deceased was to rebut the said presumption.

Sabir Hussain and others v. Afrasayyab and others 1989 CLC 1591; Amir Ali v. Gul Shaker and 10 others PLD 1985 Kar. 365 and Muhammadan Law by F.D. Mulla ref.

Ch. Khudad Khan Chauhan for Petitioner.

Malik Shahzad Ahmad Khan for Respondent No.1.

Date of hearing: 15th December, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 406 #

2009 C L C 406

[Lahore]

Before Fazal-e-Miran Chauhan, J

DAEWOO PAKISTAN MOTORWAY SERVICES LIMITED through Chief Executive----Appellant

Versus

SUN SHINE SERVICE (REGD) through Chief Executive Officer and another----Respondents

F.A.O. No.59 of 2008, heard on 12th November, 2008.

Specific Relief Act (I of 1877)---

----Ss. 21, 42 & 56---Transfer of Property Act (IV of 1882), S.105---Easements Act (V of 1882), S.52--- Civil Procedure Code (V of 1908), S.104 & O.XXXIX, Rr.1 & 2---Interim injunction---Agreement of license---Termination---Plaintiff was licensee of defendant company and was running business at the premises of defendant---On termination of license, plaintiff resisted his eviction by filing civil suit, wherein Trial Court granted interim injunction in his favour---Validity---Reasonableness of temporary injunction should be judged by principles like prima facie case, balance of convenience, irreparable loss, conduct of parties, nature of suit, time limit likely to be absolved in it, stakes of parties, workability and reasonableness of order proposed to be passed---Plaintiff failed to make out a case for grant of temporary injunction in his favour, as he was only a license holder on the basis of which, no suit for declaration, injunction or specific performance could be filed and was maintainable---At the most, if plaintiff succeeded in the suit, he could recover damages suffered in consequence of cancellation of agreement or dispossession from property---No irreparable injury was likely to be suffered, which could not be compensated in terms of money---Recovery of damages was declaratory remedy eventually---Prima facie the contract was in the nature of revocable license, the period of which had already expired and remedy available to plaintiff was by way of damages---Plaintiff in the garb of injunction could not seek grant of license, which otherwise would be illegal---Order of interim injunction granted under O.XXXIX, Rr. 1 and 2, C.P.C. by Trial Court was set aside---Appeal was allowed in circumstances.

Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146; Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others PLD 1963 Lah. 419; Civil Aviation Authority v. Messrs Providence Aviation (Pvt.) Ltd. 2000 CLC 1722; Muhammad v. Civil Aviation Authority and another 1987 CLC 395; Motsons v. Trustees of the Port of Karachi 1988 CLC 1261 and Government of West Pakistan v. Meezan Corporation and another PLD 1971 Kar. 35 ref.

Muhammad Yaqoob v. Health Officer, Municipal Committee, Hyderabad and another1973 SCMR 184; Marghoob Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Messrs Iftikhar & Co. Ltd. v. Uzin Export Ent. 1986 CLC 303 rel.

Fawzi Zafar and Faisal Zaffar for Appellant.

Tanvir Iqbal and Malik Saadat Hussain for Respondents.

S.M. Baqir Bukhari for National Highway Authority.

Date of hearing: 12th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 416 #

2009 C L C 416

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD NAZIR----Appellant

Versus

FAQIR MUHAMMAD----Respondent

S.A.O. No.65 of 2006, heard on 28th November, 2008.

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

----Ss. 13 & 15(6)---Landlord and tenant, relationship of---Proof---Demarcation of land---Appellant denied relationship of landlord and tenant on the ground that he was not tenant in shop number mentioned by respondent in his ejectment application and claimed to be tenant in adjacent shop which was not owned by respondent---Lower Appellate Court remanded the matter to Rent Controller for appointing Local Commissioner to demarcate the land---Validity---Both the shops were contiguous/adjacent to each other and dispute could only be decided after conducting demarcation of shop in question---Even otherwise, Rent Controller could adopt any method to resolve controversy keeping in view facts of each case---Lower Appellate Court had rightly reached the conclusion that Rent Controller should appoint Local Commissioner to demarcate the land---Appellant failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading or non-reading of evidence with findings recorded by Lower Appellate Court while remanding the matter to Rent Controller---High Court declined to interfere with findings rendered by Lower Appellate Court and maintained the remand order---Appeal was dismissed accordingly.

Naveed Shehryar for Appellant.

Mahboob Rasool Awan for Respondent.

Date of hearing: 28th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 429 #

2009 C L C 429

[Lahore]

Before Zafar Iqbal Chaudhry, J

SIKANDAR HAYAT and 2 others----Petitioners

Versus

Mst. NARGIS PARVEEN and others----Respondents

Civil Revision No.174 of 2002, heard on 19th September, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.72---Declaration of title---Documentary evidence--- Proof--- Document not exhibited--Judicial notice---Defendants were widow and children of deceased owner of suit property but plaintiff denied the relationship---Defendants to prove their relationship with deceased also produced certain photographs which were not exhibited but were only marked---Plea raised by plaintiff was that such evidence could not be read because photographs were not exhibited properly---Validity---High Court agreed with plea raised by plaintiff but judicial notice could be taken thereof, as there was no evidence on record to rebut that photographs did not pertain to deceased and bride shown therein was some other lady and not defendant widow---Defendants also brought on record a copy of application wherein plaintiff had admitted that defendants were widow and children of his deceased brother, which application contained diary number of the office but plaintiff could not rebut the application or prove the same to be fake from record of office concerned---Plaintiffs failed to prove their claim through any tangible evidence and Lower Appellate Court had rightly accepted appeal and dismissed the suit---Judgment and decree passed by Lower Appellate Court was well reasoned and there being no misreading or non-reading of important piece of evidence on the part of Lower Appellate Court, the same was maintained---Revision was dismissed in circumstances.

Nawab Saeedullah Khan for Petitioners.

Taqi Ahmad Khan for Respondents Nos.1 to 4.

Date of hearing: 19th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 438 #

2009 C L C 438

[Lahore]

Before S. Ali Hassan Rizvi, J

Mst. HAMIDA YASMIN----Petitioner

Versus

AHMAD ALI and another----Respondents

Writ Petition No.1131 of 2007, decided on 6th October, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage---Plaintiff (wife) earlier filed three suits for recovery of past maintenance, dowry articles and dower amount and on basis of compromise received dower amount---Later on the plaintiff filed suit for dissolution of marriage, which was decreed by the trial Court in lieu of payment of dower amount---Plea raised by the plaintiff was that suit for dissolution of marriage was filed on the grounds of bad character and cruel behaviour of defendant and plaintiff had never uttered word of "Khula"---Validity---Plaintiff had not joined the defendant (husband) after the suits were decreed and even before for which period she claimed the maintenance, which is evident that she did not allow the defendant to perform conjugal rights and insisted upon for dissolution of marriage---Peculiar circumstances made the case demanded where plaintiff (wife) persistently and insistently claimed the decree for dissolution of marriage, she should have returned the amount received as Haq Mehr---Plaintiff was entitled for decree only on the basis of Khula, therefore, no illegality in the impugned judgment could be pointed out resulting into miscarriage of justice---Constitutional petition was dismissed in circumstances.

Ch. Abdul Ghani for Petitioner.

Rana Khalid Mehmood for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 442 #

2009 C L C 442

[Lahore]

Before Khawaja Farooq Saeed, J

MUNIR ALAM through Special Power of Attorney----Petitioner

Versus

CIVIL JUDGE/FAMILY COURT, LAHORE and 2 others----Respondents

Writ Petition No.4416 of 2008, heard on 19th November, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Interlocutory order---Parameters for justification for interference under constitutional jurisdiction enumerated.

The exercise of writ jurisdiction under Article 199 of the Constitution against an interlocutory order is justified, inter alia, only:---

(i) if the order is a non-speaking order and is violative of the basic law, or

(ii) if it is suffering from infirmities affecting jurisdiction of Court or tribunal, or

(iii) if it settles an issue finally to the extent of the said Court.

Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking II, Lahore and another, PLD 1982 Lahore 92; Mian Muhammad Farooq v. Election Tribunal, etc. 1988 MLD 2949 and Dur Muhammad Piracha v. Judge, Special Court Banking and others 1982 CLC 1625 ref.

(b) West Pakistan Family Courts Ordinance (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199--Constitutional jurisdiction of High Court---Scope---Interim order fixing maintenance temporarily which could be modified later being not a final order adversely affecting the petitioner---High Court declined to prejudice the proceedings by commenting upon the claim of the petitioner---Interim order of the kind could not be interfered with in a writ petition.

----Preamble---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---`Case decided'---Held, in family matters controversy between the parties affecting their rights even through an interlocutory orders deciding such question finally would come within the ambit of "case decided".

Muhammad Juman v. The State, 2004 MLD 278 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Maintenance, fixation of---Issue being provisional which shall be re-visited by the Court at the time of making final decision, High Court declined to interfere under Art.199 of the Constitutional.

University of Health Sciences through Vice Chancellor v. Dr. Azeemuddin Zahid and another, 2007 CLC 1055 ref.

Muhammad Bashir Malik for Petitioner.

Tasawar Hussain Qureshi for Respondent.

Date of hearing: 19th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 480 #

2009 C L C 480

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

MUHAMMAD ILYAS----Appellant

Versus

ELECTION TRIBUNAL and 9 others----Respondents

I.C.A. No.424 of 2008 in Writ Petition No.2475 of 2007, heard on 3rd December, 2008.

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

----S. 154---Election of Nazim and Naib Nazim---Allegation against Nazim was that he did not possess educational qualification prescribed by law for contesting election to the seat---Record showed that disqualification attributed to the Nazim was not notorious and the majority of the voters of the constituency were not aware of the same---No evidence whatsoever was available on record to enable the Election Tribunal or Single Judge of the High Court to pass the order---Judgment of High Court, inasmuch it declared the election of both Nazim and Naib Nazim to be void, was supported by settled law applying the rule of throwaway of voters---Interference was declined in the judgment of Single Judge in Ultra Court appeal by High Court.

Ch. Muhammad Azeem v. Election Tribunal/District and Sessions Judge, Hafizabad and 8 others 2007 MLD 1717; Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611; Sher Zaman Sher and others v. Jehanzeb Khan and others PLD 2004 SC 505 and Sardar Tariq Javaid v. Provincial Election Commission of Punjab and 8 others 2004 SCMR 1242 ref.

Hafiz Ansarul Haq and Majid Karim Khokhar for Appellant.

Ch. Abdul Ghaffar for Respondents Nos.2 and 3.

Nemo for Others.

Date of hearing: 3rd December, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 513 #

2009 C L C 513

[Lahore]

Before Fazal-e-Miran Chauhan, J

PARVAIZ and 4 others----Petitioners

Versus

MUHAMMAD RAMZAN and 5 others----Respondents

Writ Petition No.10940 of 2008, decided on 25th November, 2008.

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

----S. 144---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintainability--- Alternate remedy--- Restitution of possession---Procedure---Act of court---Effect--- Petitioners were dispossessed from their land on the orders of Revenue authority but appeal was decided in their favour and order passed by Revenue authority was set aside, thus petitioners sought restoration of their possession---Validity---Petitioners were required to make application under S.144 C.P.C. to Revenue authority who, on receiving of application by way of restitution, were to place the petitioners in same position which was prior to the order passed by the authority---Court was empowered under S.144 C.P.C. to restore possession of the person from whom it was taken under an order---Act of court should not injure any person and such principle was also applicable to quasi judicial proceedings and order of tribunal---Concept of restitution was as old as the law itself and it would become operative the moment when order under which party to litigation was deprived of his possession was varied, modified or set aside---Court must remedy injury or wrong done to a party because of order of court---Procedure was provided under S.144 C.P.C., while power to order restitution was inherent in court and should be exercised whenever justice demanded---Present was not a case of restoration of possession but of restitution of possession because order of Revenue authority regarding dispossession was set aside by appellate authority declaring the same to be illegal and without jurisdiction---Remedy under S.144 C.P.C. was available to petitioners and they could move application under S.144 C.P.C. before Revenue authority who, on receiving application, would proceed in accordance with law---Petition was disposed of accordingly.

Sajawal Khan v. Wali Muhammad and others 2002 SCMR 134; Ladha Khan and others v. Mst. Bhiranwan 2001 SCMR 533; Attaul Haque and others v. Additional District Judge and another 1992 MLD 1409; Barkat Ali v. Additional District Judge, Faisalabad and 5 others 2001 MLD 1044; Umat Ullah Begum v. Munawar Akhtar PLD 1996 Lahore 582 and Aquil Usman Dhaduk and another v. Jamil Akhtar Kiyani and 5 others 2004 YLR 122 ref.

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

----S. 144---Restitution of possession---Necessary parties---Restitution can be ordered against the person who benefited under such order or decree as well as his transferee or assignee, even though such person may not have been party to the proceedings in which such order or decree was varied or set aside.

K. Anantharam Singh and another v. Marwadi Thara Chand and others AIR 1936 Madras 634; Zia Ullah v. Muhammad Hussain Afzal and 3 others 2003 CLC 1321 and S.A. Latif v. J.B. Dubash and 5 others PLD 1970 Karachi 220 rel.

----S. 144---Restitution of possession---Procedure---Upon variation or reversal of order or decree, right or restitution arises automatically and claimable before court of first instance---On receiving order of reversal or setting aside, the court of first instance should take cognizance of the matter and should proceed in accordance with law---It is not necessary for appellate Court to direct for restitution specifically.

Aftab Gull for Petitioners.

Usman Karim-ud-Din and Zulfiqar Ali Khan for Respondents Nos.1 to 3.

Ch. Rizwan Mushtaq, A.A.-G. with Bashir Ahmad Naib Tehsildar.

CLC 2009 LAHORE HIGH COURT LAHORE 536 #

2009 C L C 536

[Lahore]

Before Abdul Shakoor Paracha and Hafiz Tariq Nasim, JJ

SHAHID ASLAM and another----Appellants

Versus

ELECTION TRIBUNAL, WAZIRABAD TOWN AT HAFIZABAD and 7 others----Respondents

I.C.A. No.55 of 2007 in Writ Petition No.1555 of 2007, heard on 19th November, 2008.

Punjab Local Councils Election Rules, 2005---

----Rr. 76 & 77---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Notorious disqualification---Throw away votes, principle of---Applicability---Acceptance of nomination papers---Effect---Election Tribunal allowed election petition and declared the election of petitioners as returned candidates on the ground that one of the returned candidates did not have required educational qualification and his matriculation certificate was bogus---Plea raised by appellants was that principle of throw away votes was not applicable in their case as disqualification was not notorious---Validity---Election petitioners stated before Election Tribunal that after election they had come to know that one of the returned candidates had bogus certificate of matriculation and admitted in cross-examination that they did not raise any objection before Returning Officer---On the basis of such statement made by election petitioners in their election petition and evidence available on record, disqualification of returned candidate was not notorious at the time of casting of votes polled in favour of successful candidates---Such votes could not be thrown away by giving seats to candidates with next higher number of votes---Election Tribunal had wrongly and illegally declared election petitioners as successful as it was not known to voters that appellants who were going to be elected were not having requisite qualification and no steps were taken to bring to the knowledge of electors that candidate was not matriculate---Nomination papers were accepted without any objection which indicated that voters were unaware of disqualification of one of the candidates---Division Bench of High Court maintained the order passed by Election Tribunal to the extent of disqualifying the appellants but set aside the remaining part of the order whereby election petitioners were declared returned candidates---Intra Court Appeal was allowed accordingly.

Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570; Mian Ahmed Saeed and others v. Election Tribunal for Kasur and Okara and 7 others 2003 SCMR 1611 and Sh. Amjad Aziz v. Haron Akhtar Khan and 10 others 2004 SCMR 1484 fol.

Muhammad Sohail Dar for Appellants.

Mian Sikandar Hayat for Respondents.

Date of hearing: 19th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 561 #

2009 C L C 561

[Lahore]

Before Zafar Iqbal Chaudhry, J

NATIONAL BANK OF PAKISTAN, THE MALL, LAHORE through Vice-President----Appellant

Versus

MUHAMMAD AKRAM KHAN and 14 others----Respondents

Regular Second Appeal No.87 of 2007, heard on 21st November, 2008.

Civil Procedure Code (V of 1908)---

----Ss. 96 & 100---Limitation Act (IX of 1908), S.5---Second appeal---Condonation of delay---Proceedings before wrong forum---Effect---First appeal filed by appellant was returned by High Court for presenting the same before Appellate Court---Appellant filed the appeal before Lower Appellate Court with a delay of 28 months---Appellate Court dismissed the appeal filed by appellant being barred by limitation---Validity---Conduct of appellant and stress in prosecution of appeal before High Court was not bona fide---After first order of High Court for return of appeal, there was no valid reason for appellant to have filed application of re-admission of appeal and having delayed in approaching proper forum---Appellant had been prosecuting appeal before High Court without any probable cause and justified reasons---Time consumed in taking back the memorandum of appeal and refiling the same it before Lower Appellate Court was more than 28 months thus there was no justification to condone the delay---High Court declined to disagree with conclusions drawn by Lower Appellate Court in respect of conduct of appellant, who had rightly dismissed the appeal being barred by time---Second appeal was dismissed in circumstances.

Sardar Mashkoor Ahmad for Appellant.

Ch. Muhammad Akbar Gill for Respondent.

Date of hearing: 21st November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 563 #

2009 C L C 563

[Lahore]

Before S. Ali Hassan Rizvi, J

Dr. ZAFAR ALI KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others----Respondents

Writ Petition No.16284 of 2008, decided on 20th January, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance---Source of income---Scope---Petitioner was qualified doctor having two wives residing in two separate houses---Petitioner had already contracted marriage with four ladies and had been visiting abroad and after divorce to respondent had entered into another marriage---Maintenance allowance awarded to respondent by Family Court was enhanced by Lower Appellate Court to Rs.6,000 till effectiveness of Talaq, which was for 15 months---Validity---Evidence of petitioner was not believable that he was getting only Rs.7,000 as salary while maintaining two families---Rate of maintenance allowance enhanced in appeal by Lower Appellate Court was not beyond the means of petitioner or otherwise exorbitant---Bleak sources or means of income of husband or father was hardly a valid ground in the context of maintenance, so as to justify interference in findings recorded by courts of fact---Judgment and decree passed by Lower Appellate Court was in accordance with law and based on evidence---High Court, in exercise of constitutional jurisdiction, declined to interfere in judgment and decree passed by Lower Appellate Court---Petition was dismissed in circumstances.

Nasir Ahmad Awan for Petitioner.

Muhammad Siddique Awan for Respondents Nos.3 and 4.

CLC 2009 LAHORE HIGH COURT LAHORE 566 #

2009 C L C 566

[Lahore]

Before S. Ali Hassan Rizvi, J

KOUSAR PERVEEN alias SHAMEEM----Petitioner

Versus

MUHAMMAD FAYYAZ and 2 others----Respondents

Writ Petition No.1068 of 2009, decided on 22nd January, 2009.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Different view of evidence---Scope---Male minors were all above 7 years of age and they were studying in English medium school at the time of their removal by mother--Father deposed in evidence that he was worried about future of minors and intended to provide them better schooling and facilities---Guardian Judge, after recording of evidence, was of the opinion that welfare of minors lay in giving their custody to father---Plea raised by mother was that change of custody from her to father would change the scenario and damage future of minors---Validity---While appreciating evidence, different view could not be taken by High Court in constitutional jurisdiction---Father of minors was civil servant and educated person who would care for future of his minor sons for whom he had shown much concern all along---Right of custody to father was to be preferred for male minors who were above 7 years, as he was in better position to facilitate and arrange schooling---There was no illegality or infirmity in the order passed by two courts below, calling for interference by High Court in exercise of constitutional jurisdiction---Petition was dismissed in circumstances.

Muhammad Sana Ullah Khan for Petitioner.

CLC 2009 LAHORE HIGH COURT LAHORE 572 #

2009 C L C 572

[Lahore]

Before Syed Hamid Ali Shah, J

Messrs IMPERIAL BUILDERS through Manager----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Local Government, Lahore and another----Respondents

Writ Petition No.1686 of 2002, heard on 15th October, 2008.

(a) Punjab Government (Tax on Transfer of Immovable Property) Rules, 2001---

----R.4 (1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer tax rate---Applicability---Dispute between parties was with regard to 'rate of transfer tax---Petitioner company contended that rate on the date of registration of conveyance deed was applicable, while authorities demanded rate prevalent on the .date of purchase of property---Validity---Transfer tax had become due when sale deed was registered within the contemplation of R.4 (1) of Punjab Government (Tax on Transfer of Immovable Property) Rules, 2001---In case of transfer, it became due when mutation was sanctioned and in case transfer was not made either through registered deed or through oral transfer/mutation the same would become due when sale took place---As transfer in question took place through registered sale deed, therefore, case of petitioner fell in first category, i.e. R.4 (1) of Punjab Government (Tax on Transfer of Immovable Property) Rules, 2001, and tax had become due on the date when sale deed was registered---Decision of authorities that transfer tax was payable at rate prevalent on date of auction and not on date when sale deed was registered was without lawful authority having no legal effect---High Court, in exercise of constitutional jurisdiction declared that transfer tax from petitioner was to be levied and collected under R.4 (1) of Punjab Government (Tax on Transfer of Immovable Property) Rules, 2001, at the rate which prevailed on the date on which sale deed was registered---Petition was allowed in circumstances.

Ghulam Shabbir v. Commissioner, Rawalpindi Division, Rawalpindi and 4 others 2003 YLR 2640 and Municipal Committee, Tehsil Talagang through Chairman v. Ghulam Shabbir PLD 2006 SC 302 ref.

(b) Interpretation of statutes---

----Meaning of any provision of law---Principles---Nothing can be imported to assign a different meaning to provision of law and it has to be applied and interpreted in the manner as is prescribed by law.

Muhammad Ilyas Sh. for Petitioner.

Hafiz S. A. Rehman for Respondent.

Syed Husnain Kazmi, A.A.-G.

Date of hearing: 15th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 717 #

2009 C L C 717

[Lahore]

Before Khawaja Farooq Saeed, J

Mian ZAMEER TUFAIL through Attorney----Petitioner

Versus

AYESHA BIBI and 2 others----Respondents

Writ Petition No.3077 of 2008, heard on 4th February, 2009.

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

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interlocutory order---Interim custody granted by Guardian Judge was maintained by Lower Appellate Court---Validity---Normally High Court did not entertain Constitutional petition against interlocutory order---As through order transfer of custody, though interim, was likely to take place which was in :elation to protection of the person during such intervening period--Making a child a rolling stone by various interim orders was also not appropriate for his personality and well being---Petition was maintainable in circumstances.

(b) Power of attorney---

----Authority given to attorney---Scope---Constitutional petition filed by petitioner was challenged on the ground that there was no specific authority given in power of attorney to file Constitutional petition before High Court---Validity---Power of attorney had given authority to file other cases in other courts through a specific mentioning in one of the clauses---In other clauses which were general in nature authority to attorney was given to file suits in other forums including High Court---It was general power of attorney and the same had given more wide authority.

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim custody of minor---Right of mother to Hizanat---Scope---Father assailed order under S.12 of Guardians and Wards Act, 1890, whereby interim custody of minor was handed over to mother---Validity---Father of minors was not in Pakistan who did not use to visit very often, hence for all practical purposes, minors were not having parental love and affection in any manner---It could be true that minors were living systematic life in the house of their grandmother but obviously she could not be a substitute to the mother and even father either---Since maintenance of children was responsibility of their father, the minor whose custody was handed over to mother, could still have the same level of education and treatment even while remaining under the shelter of her mother---Depriving mother from her children especially when she was entitled to Hizanat, would be unfair---Minor whose interim custody was handed over to mother, was too young to be taken care of by an old lady (grandmother) or by elder sisters of the minor in question Who also were not even in teen ages---Legislature, by not providing second appeal in such matters, had given the impression of culmination of such issues at the stage of Lower Appellate Court---Intention of Legislature should not be circumvented with by powers of writ substitute of an appeal---While giving order of interim custody, no illegality or even irregularity had been done by any of the two forums---Petition was dismissed in circumstances.

Muhammad Sadiq Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645; Zulfiqar Ahmad v. Mst. Qaisra Sattar 1988 CLC 1741; Mirza Muhammad Yusuf v. Mst. Razia Sultana 1980 CLC 909; Khushi Muhammad v. Mst. Arshad Bibi and others 1988 SCMR 1234; Allah Rakha v. Hamida Bibi 1980 CLC 851; Nazar Gul v. Sessions Judge and others PLD 1999 Pesh. 59; Mst. Farah Waqar v. Dr. Waqar Ahmad Khan and another 2000 YLR 3046 and Mrs. Khurshid Begum v. Additional District Judge, Rawalpindi and 2 others PLD 2004 Lah. 395 ref.

Shahid Mubeen for Petitioner.

Abdul Razzaq for Respondent.

Date of hearing: 4th February, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 726 #

2009 C L C 726

[Lahore]

Before Sh. Azmat Saeed, J

ZAMIR AHMAD KHAN----Petitioner

Versus

Dr. SALEEM HAMEED MALIK----Respondent

Civil Revision No.1496 of 2008, decided on 4th February, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Interim injunction, setting aside of---Devolution of tenancy---Proof---Offer during proceedings---Effect---Plaintiff filed letter issued by Security and Exchange Commission of Pakistan (SECP) to prove that he was in possession of premises in question and on the basis of that letter, Lower Appellate Court directed the parties to maintain status quo---Validity---Effect and validity of letter of SECP was yet to be determined and such letter did not have legal effect of devolution of tenancy in favour of plaintiff---As such it could not be held that plaintiff had prima facie established that he was tenant in premises in dispute---Some sort of offer of compromise could not detract as offer was always deemed to be without prejudice and did not amount to any admission that plaintiff was tenant under defendant---Plaintiff failed to make out prima facie case of his legal status as tenant in respect of premises in dispute and in absence thereof, no prima facie case for grant of temporary injunction could be made out---There was no denial of the fact that premises was demolished and construction was in progress as necessitated by notice of Local Government and any status quo order would amount to frustrate action directed to be taken by Local Government in public interest---High Court declined to sustain status quo order in respect of admittedly dangerous building thereby putting properties and lives at risk---High Court in exercise of revisional jurisdiction set aside status quo order passed by Lower Appellate Court--Revision was allowed in circumstances.

Mian Nisar Ahmad and Mian Saadat Nisar for Petitioner.

Mian Zafar Iqbal Kalanuri for Respondent.

Date of hearing: 28th January, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 737 #

2009 C L C 737

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

NAYYAR AHMED MALIK----Appellant

Versus

SUB-REGISTRAR (GULBERG), LAHORE----Respondent

Intra-Court Appeal No.38 of 2008 in Writ Petition No.12988 of 2008, decided on 28th January, 2009.

(a) Registration Act (XVI of 1908)---

----S. 17---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art.199---Intra-Court Appeal---Registration of document---Observation of High Court in Constitutional petition--- , Effect---Judge in Chambers of High Court while disposing of Constitutional petition recorded a finding that power of attorney of the person who executed sale-deed was dubious---Plea raised by appellant was that such observation of High Court would prejudice appellant in the course of registration of sale-deed---Validity---Division Bench of High Court was not in agreement with the observation of Judge in Chambers of High Court, as to dubious nature of documents in question---Such expression was not final judgment or even a statement rather it was an expression of suspicion---Contents of Constitutional petition itself as also documents produced by appellant himself created suspicion in the mind of person examining the same---Ultimate decision while disposing of Constitutional petition was that sale-deed, whenever submitted would be dealt by authorities after adopting course of action as provided by law---Intra-Court Appeal was disposed of accordingly.

(b) Registration Act (XVI of 1908)---

----Ss. 3 & 38---Appearance before Registration Officer---Exemption---Scope---Endorsement of Local Commissioner---Permission for execution of sale-deed was sought by Local Commissioner on behalf of Board of Foreign Mission of United Presbyterian Church of USA endorsing.

Such endorsement was stamped allowing the application and Local Commissioner proceeded to record other endorsements on the back of sale-deed---Validity---List of persons was provided in S.38 of Registration Act, 1908, who were exempted from appearance at Registration Office---In order to determine as to whether statutory exemption was available, necessary application of mind was required---High Court found that such necessary application of mind was absent before endorsing exemption and directed the Inspector-General of Registration, appointed under S.3 of Registration Act, 1908, to immediately take steps to monitor working of Registration Officers.

Irfan Qadir for Appellant.

CLC 2009 LAHORE HIGH COURT LAHORE 759 #

2009 C L C 759

[Lahore]

Before Khawaja Farooq Saeed, J

AHMAD KHAN----Petitioner

Versus

KAUSAR PERVEEN and another----Respondents

Writ Petition No.12269 of 2008, heard on 12th February, 2009.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope---Factual controversy---Limitation---Raising of new plea---Suit for recovery of dowry articles filed by wife was decreed in her favour---Judgment and decree passed by Family Court was maintained by Lower Appellate Court---Plea raised by petitioner was that suit filed by wife was barred by limitation---Validity---Controversy as to whether dowry articles were taken away or not was factual matter and the same could not be discussed in Constitutional jurisdiction as factual controversies were never brought to discussion unless there were some material irregularities or jurisdictional error---After getting. two judgments and decrees from two subordinate forums and exhausting almost two years in litigation, raising point of limitation before High Court in a mixed question of law and facts, could not be allowed while exercising Constitutional jurisdiction---When question of limitation was of fact or mixed question of law and facts, it should be raised before Trial Court-Appellate Courts were not obliged to examine question which was not raised below---High Court declined to entertain objection of limitation raised by petitioner and maintained judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

Muhammad Ishaq and others v. Shah Muhammad and others 1985 SCMR 799; Allah Yar Khan v. Mst. Sardar Bibi and others 1986 SCMR 1957; Muhammad Rafiq and others v. Barkat Ali and others 1988 SCMR 1526; Ghulam Rasool and 5 others v. Zaheer Ahmad 1989 CLC 482 and Meraj Begum v. Abdul Sattar 1989 MLD 4820 rel.

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

----S. 3---Limitation---Scope---Suit filed or appeal preferred after limitation provided in law is without jurisdiction--Suit should be dismissed even if nobody has pointed out such lacuna in filing petition or appeal-Court was supposed to check issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the Court itself.

Mst. Khalida v. Raja Muhammad Khurshid Khan and 9 others 2008 CLC 1570 and Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 rel.

Muhammad Rashid Chaudhary for Petitioner.

Zulfiqar Ali Noon for Respondent.

Date of hearing: 12th February, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 775 #

2009 C L C 775

[Lahore]

Before Maulvi Anwarul Haq and Ali Akbar Qureshi, JJ

Mian FARID-UD-DIN MASOOD and 6 others---Petitioners

Versus

FEDERAL LAND COMMISSION, ISLAMABAD and 6 others----Respondents

Writ Petition No.197 of 2006/BWP, decided on 14th January, 2009.

(a) Land Reforms Regulations, 1972 [M.L.R. No.115]---

----Reglns. 11 & 12---Powers of review and revision---Scope---Powers of review and revision were provided in Land Reforms Ordinance, 1972, to facilitate aggrieved person particularly keeping in view the intention and scheme of law.

(b) Land Reforms Regulations, 1972 [M.L.R. No.115]---

----Para. 32---Punjab Land Reforms Rules, 1972, R. 12 Para. 29---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suo motu power of revision, exercise of---Scope---Petitioners assailed orders passed in years, 2004 & 2005, by authorities in exercise of suo motu revisional jurisdiction declaring gift and its mutation made in year, 1958, as invalid and void---Validity---Revisional powers could be exercised on application of aggrieved person or by revisional authorities suo motu even after the period stipulated in law because of the fact that it was supervisory jurisdiction which could be exercised to rectify jurisdictional defect, illegality or irregularity committed while passing the order---Predecessor-in-interest of petitioners originally included land allegedly mutated by way of gift by him in favour of his wife and order passed by authorities in year, 1959, and such declaration was not challenged before any forum, therefore, effort to exclude gift land from declaration by way of application was based on mala fides with intention to deprive the State from land which had been vested in the State by operation of law---High Court declined to interfere in the order passed by authorities declaring the gift as void---Petition was dismissed in circumstances.

Muhammad Yousaf Khan v. The Chairman, Federal Land Commission and others 1988 SCMR 611; Munir Ahmed and 2 others v. Chairman, Federal Land Commission, Pakistan and another 1994 CLC 20; Federal Land Commission through Chairman v. Hayat Muhammad Khan and others 1994 SCMR 1112; Federal Land Commission v. Sardar Muhammad Aurangzeb Khan and 5 others 1997 SCMR 911; Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99; Siraj Din v. Sultan and others PLD 1990 SC 95; The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas PLD 1989 SC 550; Falak Sher Khan and another v. Secretary to Government of Punjab Agriculture Department and others PLD 1989 SC 562; Syed Muzamil Shah and 27 others v. Deputy Land Commissioner, Mansehra and 3 others PLD 2001 Pesh. 92 and Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 ref.

Abdul Qayyum Awan and Mian Nisar Ahmad for Petitioners.

Rizwan Mushtaq, A.A.-G. for Respondents.

Date of hearing: 14th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 800 #

2009 C L C 800

[Lahore]

Before Maulvi Anwarul Haq, J

IQBAL BIBI----Petitioner

Versus

IRSHAD BIBI and another----Respondents

Civil Revision No.1520 of 2007, heard on 1st April, 2009.

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---Rejection of plaint---Earlier, a similar suit was filed by the plaintiff, which was dismissed for non-prosecution---Said suit though was dismissed for non-prosecution, but it was dismissed on a date when it was not taken up for hearing but when a miscellaneous application was fixed for its reply and arguments---Said order of dismissal was without jurisdiction---Plaintiff, however ought to have filed application for revival of said earlier suit---Plaintiff filed application in successor court for revival of the suit---Defendant would be summoned and the proceedings in the suit would commence from the stage where those were when earlier order of dismissal was passed and suit would be decided in accordance with law.

Allahwala Foundation v. Province of Sindh and others 2002 SCMR 798 rel.

Abdul Sami Khawaja for Petitioners.

Malik Abdul Wahid for Respondent No.1.

Date of hearing: 1st April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 819 #

2009 C L C 819

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AZHAR SIDDIQUE----Petitioner

Versus

DISTRICT OFFICER (REVENUE), GUJRAT and 2 others----Respondents

Writ Petition No.2073 of 2009, decided on 6th April, 2009.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for maintenance amount---Chairman Arbitration Council granted monthly maintenance to wife at the rate of Rs.20,000 per month for the last 40 months---District Officer, in revision reduced the amount from Rs.20,000 to 3,000 per month for the period of 36 months---Validity--Chairman, Arbitration Council had passed order granting maintenance amount to the wife on the back of the husband and even without recording the evidence about his financial status--.-To determine the ability of the husband to make payment of the maintenance amount, maintenance should commensurate with the income of the husband as well as his other responsibilities---Before the imposition of the maintenance on the husband, it was mandatory for the court or the Arbitration Council to record evidence about the status of the husband and his ability for making the payment to his wife as per his resources---In the present case, without recording the evidence, maintenance had been awarded to wife on presumption which being not sustainable in the eyes of law, was set aside---Application by wife would be deemed to be pending before the Arbitration Council who would decide the same afresh within specified period in accordance with law after recording the evidence of the parties.

Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Major (Retd) Alla-ud-Din Akhtar v. The Collector and others 1985 CLC 2939 and Tayyab Khan v. Nadia Khan 2000 CLC 558 rel.

Umar Farooq for Petitioner.

Ijaz Anwar for Respondent No.3.

CLC 2009 LAHORE HIGH COURT LAHORE 835 #

2009 C L C 835

[Lahore]

Before S. Ali Hassan Rizvi, J

Malik ZAFAR IQBAL----Petitioner

Versus

JUDGE, FAMILY COURT, SHAKARGARH DISTRICT NAROWAL and 3 others----Respondents

Writ Petition No.1182 of 2009, heard on 8th April, 2009.

(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---Suit for maintenance filed by two minors through their mother having concurrently been decreed by the Trial Court and Appellate Court, defendant/judgment-debtor had challenged said concurrent judgments and decrees in constitutional petition---Courts below while granting decree in favour of the plaintiff, had duly brought into consideration the social status and financial resources of the defendant/judgment-debtor---Said judgments and decrees were based on evidence; in the absence of any misreading and non-reading of the pleadings or evidence on record, concurrent judgments and decrees of the courts below could not be interfered within constitutional jurisdiction of High Court.

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

----S. 17---Application of Civil Procedure Code, 1908 in family matters---Scope---Provisions of Civil Procedure Code, 1908, though stricto senso did not apply in family matters except Ss.10 & 11 thereof, but a court was always competent to mould the relief, keeping in view the circumstances of each case; in other words, a court was always competent to grant relief as might be thought just and proper to the same extent as if it had been asked for.

Umer Hayat Tahir for Petitioner.

Ch. Basharat Ali for Respondents.

Date of hearing: 8th April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 848 #

2009 C L C 848

[Lahore]

Before S. Ali Hassan Rizvi, J

Mian SHAUKAT ALI----Petitioner

Versus

Mst. NASEEM BIBI and another----Respondents

Writ Petition No.583 of 2009, decided on 16th January, 2009.

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

----S. 5, Sched. & S.11---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Suit for maintenance---Closing of evidence of defendant.--Evidence of the plaintiff was recorded and defendant, who failed to cross-examine the witnesses produced by the plaintiff, was granted last opportunity to produce his evidence, but he failed to produce same without any justification and his defence was closed---Validity---No provision existed in West Pakistan Family Courts Act, 1964 to the effect that evidence of the party would not be closed in any case---Very purpose of its enactment was to ensure expeditious disposal of case and court could close the evidence of a party who failed to adduce evidence without sufficient cause---Section 11 of West Pakistan Family Courts Act, 1964 had provided that on the date fixed for evidence, the Family Court would examine the witnesses produced by the parties---In the present case despite a caution of last opportunity to produce the evidence, defendant had failed not only to appear in the court, but also had not produced the witnesses; it was, in circumstances, a case of double default committed by the defendant---Matter was pending for the last more than 10 years---Defendant was given last opportunity, but he did not care even to appear in the court---Trial Court, in circumstances, was justified to close the evidence---No illegality was found in the impugned order calling for interference in the exercise of constitutional jurisdiction of the High Court.

Mian Muhammad Ashraf-I for Petitioner.

CLC 2009 LAHORE HIGH COURT LAHORE 858 #

2009 C L C 858

[Lahore]

Before Muhammad Khalid Alvi, J

Rana MUHAMMAD HASHIM---Appellant

Versus

Haji SHAFAAT AHMAD----Respondent

Regular First Appeal No.14 of 2001, heard on 9th February, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & S.96---Limitation Act (IX of 1908), Art.73---Suit for recovery of amount on the basis of pro note---Limitation---Starting point of limitation---Suit filed by the plaintiff was contested by the defendant wherein an objection with regard to limitation ,was also raised---Trial Court after grant of leave to defend suit, decreed suit and said decree had been assailed by the defendant through appeal---Under Art.73, Limitation Act, 1908, period of limitation for filing suit on basis of pro note was three years and starting point of limitation under said Article was the date of execution of pro note, which would mean that date of execution of pro note could not be excluded---Pro note in the case was executed on 24-12-1996 and the last date when the suit could be filed fell on 23-12-1999, but suit was filed on 3-1-2000, fifteen days after prescribed period of limitation---Suit filed by the plaintiff being barred by limitation, appeal against judgment and decree of the Trial Court was allowed and judgment and decree passed by the Trial Court were set aside.

Sheikh Abdul Samad v. Khan Bahadur Muzaffar PLD 1953 Lah. 446 and Jainaraven Bapu v. Vithora and another AIR 1923 Nagpur 556 rel.

Mian Ashfaque Ahmad for Appellant.

Malik Muhammad Lateef Khokhar for Respondent.

Date of hearing: 9th February, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 862 #

2009 C L C 862

[Lahore]

Before Maulvi Anwarul Haq, J

RIAZ MEHMOOD SHEIKH----Petitioner.

Versus

SHAMSHER ALAM KHAN and another----Respondents

Writ Petition No.16603 of 2008, heard on 13th January, 2009.

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

----S. 13(2)(i), (3)(a)(i) & (6)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment application on ground of default in payment of rent and personal need---Striking off defence---Rent Controller passed tentative rent order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 directing the tenant to pay arrears of rent within one month and to pay future rent before 15th day of every succeeding month-Tenant, who claimed that he had paid arrears of rent, had failed to produce proof for such payment---Defence of the tenant was struck off and he was directed to deliver the possession of the house in question to the landlord---Case was adjourned for arguments on the application for framing of additional issue---Application for review of order filed by the tenant was dismissed by the Rent Controller- -Validity---Arrears of rent in question admittedly stood paid regularly by the tenant each month into Bank account of the landlord--No non-compliance of tentative rent order took place, in circumstances-Order directing the tenant to deliver the possession of house in question after striking off his defence, though was appealable, but in the peculiar circumstances of the case, when Rent Controller kept the proceedings pending and in that adjourned the case for arguments on the application filed by the landlord for framing additional issue and in view of admitted position that the rent had actually been paid to the landlord, it could not be said that the tenant acted mala fide while bringing the said fact to the notice of Rent Controller---Rent having stood paid to the landlord, order striking off the defence and directing the tenant to» deliver possession of the house to the landlord, was wholly without jurisdiction---Impugned order was patently illegal and was declared as such---Result would be that ejectment application would-be deemed to be pending before the Rent Controller, who would decide same afresh positively in accordance with law.

Government of Punjab through Ministry for Revenue; Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Ltd. PLD 2004 SC 108 and The Murree Brewary Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Availability of alternate remedy would not constitute a bar upon jurisdiction of High Court to entertain constitutional petition and to exercise constitutional jurisdiction, if the circumstances so warrant---Article 199 of the Constitution was more a regulatory provision than rule of law.

Salman Aslam for Petitioner.

Muhammad Mohsin Rana for Respondent.

Date of hearing: 13th January, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 866 #

2009 C L C 866

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD RAMZAN and others----Appellants

Versus

RAHIM SHAH----Respondent

Regular Second Appeal No.7 of 2004/BWP, heard on 25th March, 2009.

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

----S. 13---Civil Procedure Code (V of 1908), S.107 & O.VI, R.5---Preemption suit---Non-mentioning of necessary details in plaint---Judgment of Supreme Court later in time---Effect---Plea raised by pre-emptor was that requirement of mentioning time, date, and other facts in plaint was made necessary in judgments passed by Supreme Court after suit had already been decreed in his favour---Validity---Time and source of knowledge was not mentioned by pre-emptor in his plaint and averments in plaint on its face value appeared to have been drafted in routine and ex-facie couched in vague and generalized word---Requirement of necessary Talbs had not been fulfilled by pre-emptor---In second appeal, by virtue of S.107, C.P.C. entire case became open and High Court presumed to have been sitting in suit and the latest view of Supreme Court and curative change in law or policy could be taken note of and the same could be made basis of decision---Judgments later in date and time pronounced by Supreme Court would be given due weight as compared to one in which Supreme Court had taken a different view---Suit filed by pre-emptor was dismissed and judgments and decrees passed by two courts below were set aside---Second appeal was allowed in circumstances.

Nawab Din and other v. Ismail through Legal Heirs PLD 1993 Lah. 408; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Muhammad Ayub v. Muhammad Yaqoob PLD 1975 Lah. 445 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through Legal Heirs and others PLD 2007 SC 302 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

Ijaz Ahmad Ansari for Appellants.

Ch. Naseer Ahmad for Respondent.

Date of hearing: 25th March, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 870 #

2009 C L C 870

[Lahore]

Before Ali Akbar Qureshi, J

ALLAH DITTA----Petitioner

Versus

NASREEN AKHTAR and another----Respondents

Civil Revision No.1327 of 2007, heard on 5th November, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Contract Act (IX of 1872), Ss.188, 214 & 215---Civil Procedure Code (V of 1908), S.115---Gift-deed---Proof---Principal and attorney, relationship---Misreading and non-reading of evidence---Transfer of property in the name of near relative by the attorney---Plaintiff appointed general attorney who transferred suit property in the name of his near relative---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court allowed the appeal and dismissed the suit---Validity---Trial Court while decreeing the suit rightly observed that defendants could not substantiate their stance by adducing any oral or documentary evidence but Lower Appellate Court had travelled beyond jurisdiction conferred upon it under law and rendered a conclusion which was not only against facts of the case but was also against consistent view of superior courts---Plaintiff succeeded to prove that before making gift by attorney in favour of his relative, no consultation or prior admission was obtained by him---Plaintiff had not given any authority to attorney while executing power of attorney to alienate suit property in any manner whatsoever---Judgment of Lower Appellate Court was contrary to facts and violative of law and therefore, was not sustained---Revision was allowed in circumstances.

Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Muhammad Jalil and 4 others v. Muhammad Sarni and 8 others PLD 2007 Lah. 467 and Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618 rel.

Nisar Ahmad Baig for Petitioner.

Mian Javed Rashid for Respondent.

Date of hearing: 5th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 876 #

2009 C L C 876

[Lahore]

Before Nasim Sikandar and M.A. Zafar, JJ

MUHAMMAD MUDDASSAR YAQOOB----Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and 4 others----Respondents

Writ Petition No.18696 of 2008, decided on 31st December, 2008.

Constitution of Pakistan (1973)---

----Art. 199---General Regulations of Statutes and Regulations for M.B.,B.S., First, Second, Third and Final Professional Examinations---Constitutional petition---Medical College examination---Chances availed or tin-availed-Principle of past and closed transaction --Petitioner failed in one paper and could not pass the same in four chances---Plea raised by petitioner was that he could not avail third chance due to his illness, therefore, that chance be reinstated---Validity---Un-availed third chance was past and closed transaction and making of any direction in that behalf would amount to transgressing statutory rules of four chances by making them five in the guise of reinstatement of already expired chance "availed or un-availed"---Availing of tour statutory chances was admitted on the part of petitioner, therefore, High Court did not find it justifiable reason to interfere with the order passed by authorities or to make direction that third chance which petitioner failed to avail should be reinstated---Petition was dismissed in circumstances.

Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and others 2006 SCMR 1076; Omer Nassar Muhammad v. Principal, Nishtar Medical College and others 2006 SCMR 695; University of the Punjab and another v. Mst. Samoa Zafar Cheema and 4 others 2001 SCMR 1506; Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532; Munaza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790 and Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101 rel.

Ziaullah Khan Niazi for Petitioner.

Rasaal Hasan Syed for Respondents Nos. 1 to 3.

Rafay Ahmad Khan, A.A.-G.

CLC 2009 LAHORE HIGH COURT LAHORE 905 #

2009 C L C 905

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD BAKHSH MASOOD----Petitioner

Versus

Mst. AYSHA MAI and others----Respondents

Writ Petition No.3154 of 2008, decided on 25th November, 2008.

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

----S. 7(2)---Joinder of causes of action---Object and scope---Claim for various causes of action relating to matrimony of spouses are allowed to be joined together---Joinder is specifically mentioned with reference to the suit for dissolution of marriage but where suit for dissolution of marriage is not filed there can be no bar in joining rest of causes in one suit---Only purpose of permitting parties to join causes of matrimonial disputes in one suit, is to avoid multiplicity of proceedings as well as advancement of cause, convenience of parties and courts---It cannot be said that cause of matrimonial disputes can be joined together with a suit for dissolution of marriage but in other matters, parties should face rigours of multiplicity of litigation, treacherous inconvenience and agony of multiple litigation---If joinder is not to be permitted without suit for dissolution of marriage, the same renders whole legislation on such point useless.

(b) Interpretation of statutes---

----Meanings of statute---Scope---Meanings and interpretation of statute are to be attributed in manner which would advance cause of provisions---Interpretation which renders provision futile or ridiculous, is liable to be set at naught.

----S. 12---Reconciliation proceedings---Omission to make an effort for reconciliation after close of evidence is mere an irregularity.

Daulat Ali v. Shagufta Rani and another 1990 CLC 917 and Muhammad Jalil v. Salma Rani and another 1999 MLD 2192 rel.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dower, recovery of---Maintenance for period of Iddat---Wife filed suit for recovery of maintenance and recovery of house as dower---Family Court dismissed the suit to the extent of maintenance as husband had divorced her but decreed the suit to the extent of recovery of price of house as dower amount---Lower Appellate Court allowed appeal filed by wife and increased value of house and also directed husband to pay maintenance for period of Iddat---Validity---Wife was lawfully entitled to receive alimony for relevant Iddat period---Amount of dower was also enhanced by Lower Appellate Court keeping in view relevant circumstances including price-hike and market value of property, which findings were unexceptionable---Judgments of both the courts below did not suffer from any illegality or material irregularity warranting interference in exercise of Constitutional jurisdiction under Art. 199 of the Constitution---Petition was dismissed in circumstances.

Gulzar Ahmed Khan for Petitioner.

Qazi Fayyaz Ahmed for Respondent.

Date of hearing: 25th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 948 #

2009 C L C 948

[Lahore]

Before Hafiz Tariq Nasim, J

Rana ABDUL RASHEED and another----Petitioners

Versus

Ch. NUSRAT ALI----Respondent

Writ Petition No.4797 of 2008, heard on 10th April, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 4, 12-A & 17(4)(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Acquisition of land- -Award of compensation by Collector---Collector had announced his award---Authorities had shown reluctance to pay compensation to the petitioners/landowners---Antedated corrigendum under S.12-A of Land Acquisition Act, 1894 was issued declaring the petitioners' land as area falling under road instead of' area under acquisition, keeping aside that the authorities had already withdrawn land for the road---Antedated corrigendum was issued against the petitioners' land in a discriminatory manner because the other owners' land was not withdrawn for the purpose of area under road---After announcement of award the Land Acquisition Collector had become functus officio---Petition was allowed and impugned corrigendum was declared illegal, without lawful authority and was set aside.

Assistant Commissioner, Mianwali v. Muhammad Amir 1987 CLC 2095 and Nasreen Zahira v. Government of Punjab2000 YLR 419 ref.

Muhammad Shahid Iqbal Qureshi for Petitioners.

Akhtar Ali Kureshi, A.A.-G. for Respondent No.1.

Date of hearing: 10th April, 2009.

JUDGEMENT

HAFIZ TARIQ NASIM, J.--- Facts leading to this writ petition are that the petitioners' land was acquired by the respondents for the purpose of construction of Ring Road Project, firstly the respondent issued a Notification under section 4 of the Land Acquisition Act, 1894, wherein Khasra No.903 with complete description of land of the petitioners was mentioned. Another Notification under section 17(4)(6) of the Land Acquisition Act, 1894 was issued with full description of the land along with number Khasra as 903. Thereafter, Award No.12 of 2007 was announced and that too on the basis of above referred Notifications.

Learned counsel for the petitioners submits that the petitioners got issued fresh Fard for receiving the compensation from Halqa Patwari in respect of the acquired land, approached the respondents, submitted all the documents required for the said purpose, even indemnity bonds were submitted as per direction of the respondents for the payment, but the respondents showed reluctance to pay the compensation which forced the petitioners to file Writ Petition No.2959 of 2008, wherein notice was issued. However, out of mala fide and ulterior motive an antedated corrigendum under section 12-A of the Land Acquisition Act, 1894 was issued declaring the petitioners' land as area falling under road instead of area under acquisition, keeping aside that the respondents had already withdrawn land measuring 15 Kanals, 12 Marlas for the road and the antedated corrigendum was only issued against thy,' petitioners' land in a discriminatory manner because the other owners' land was not withdrawn by the respondents for the purpose of area under road, so the corrigendum issued by the respondents be declared illegal, without lawful authority and the respondents be directed to pay compensatory amount of the acquired land.
On the other hand, learned Law Officer, assisted by the departmental representative, stood behind the impugned action and submits that the Land Acquisition Collector could rectify the wrong and in the present case only the wrong was rectified and nothing else.
Arguments heard. Record perused.
The impugned matter revolves around only a legal question i.e.

"Whether the Land Acquisition Collector could change the Notification of acquisition of land through any corrigendum or not".

To resolve this issue, section 12-A of the Land Acquisition Act, 1894 shall be useful to reproduce as under:-

"12-A. Correction of mistake.---Any clerical or arithmetical mistake in the award arising therein from any accidental slip or omission may, at any time, be corrected by the Collector either of his own motion or on the application of any of the parties."

Plain reading of section 12-A of the Land Acquisition Act, 1894 reveals that after announcement of award the Land Acquisition Collector becomes functus officio.
In this respect, the law is settled and if some reference is required, reliance can be placed on Assistant Commissioner, Mianwali v. Muhammad Amir 1987 CLC 2095, wherein it is held, "Corrigendum to award---Land Acquisition Collector after announcing award became functus officio and was not competent to review or change it."

This judgment of the Division Bench of this Court was not upset by the apex Court, meaning thereby that it attained finality.

In another case reported as Nasreen Zahira v. Government of Punjab 2000 YLR 419, wherein it is held, "In absence of any provision in Land Acquisition Act, 1894 conferring right of review, Land Acquisition Collector had no power to review the award.

CLC 2009 LAHORE HIGH COURT LAHORE 963 #

2009 C L C 963

[Lahore]

Before Syed Hamid Ali Shah, J

Messrs Mian MUHAMMAD AWAIS MUHAMMAD SHABBIR, Commission Agents through Muhammad Awais----Petitioners

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB and 8 others---Respondents

Writ Petition No.4494 of 2008, decided on 12th November, 2008.

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

----Ss. 21 (vii) & 47---Punjab Agricultural Produce Market (General) Rules, 1979, Rr.4 & 6--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Alternate remedy---Laches---Construction of cold storage in fruit and vegetable market---Plea raised by petitioners was that on 4-5-2007, authorities wrongly allowed respondent to construct cold storage in the market---Validity---Various purposes for expending funds were mentioned at Serial No.vii in S.21 of Punjab Agricultural Produce Markets Ordinance, 1978---Market Committee's fund could be utilized for construction of cold storage, warehouse and godowns etc., therefore, establishment of cold storage was not prohibited in the market---Appeal against order passed in favour of respondent was competent, but the same was not filed by petitioners and the petition suffered from laches---High Court keeping in view decisions of the civil court, availability of remedy of appeal and bar of laches declined to interfere in the matter in exercise of constitutional jurisdiction--Petition was dismissed in circumstances.

Ahmad Khan v. Member (Consolidation) Board of Revenue Punjab, Lahore and others PLD 1990 SC 1070 and Muhammad Ismail and another v. Muhammad Hanif and others PLD 2008 Lah. 40 ref.

Kh. Saeed-uz-Zafar for Petitioners.

Ch. Irshad Ali for Respondent No.2.

Shoaib Zafar for Respondents Nos.4 and 5.

Kh. Abrar Majal and Ch. Muhammad Zahoor Nasir for Respondent No.6.

Rafey Ahmad Khan, A.A.-G.

CLC 2009 LAHORE HIGH COURT LAHORE 980 #

2009 C L C 980

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

ABBAS AHMAD----Petitioner

Versus

Mst. AYESHA AZIZ and 3 others----Respondents

Writ Petition No.4028 of 2009, heard on 24th March, 2009.

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

----S. 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--Interim maintenance---Determination--Guidelines---Wife filed application before Family Court seeking striking off defence of husband on the ground that he did not pay interim maintenance---Amounts paid by husband on different occasions were not considered by Family Court, defence of husband was struck off and suit was decreed in favour of wife---Judgment and decree passed by Family Court was maintained by lower Appellate Court---Plea raised by husband was that Family Court could not fix maintenance without recording any evidence to such effect---Validity---High Court directed Family Court to be careful while fixing interim or full maintenance, rate and computation of period for grant of maintenance and material questions, which depended upon evidence of parties---Family Court should look upon social status of parties, expenses required, source of earning and income of husband and his position to make payment---Family Court had power under S.17-A of West Pakistan Family Courts Act, 1964 to grant interim maintenance for minor or wife during pendency of proceedings, such interim maintenance was to be paid by 14th of each month---Wilful; deliberate or contemptuous disobedience or non-compliance might attract penal consequences of striking off defence of that party--Before having recourse to penal action, Family Court should apply its judicial mind to facts and circumstances of whole case---Penal provisions under S.17-A of West Pakistan Family Courts Act, 1964 were directory in nature and not mandatory--Interim maintenance order was always tentative in nature which had no effect or bearing on final order--High Court in exercise of Constitutional jurisdiction set aside judgments and decrees passed by two Courts below and remanded the case to Family Court for deciding the matter afresh after affording opportunity to parties for adducing their evidence---Petition was allowed accordingly.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah.349 and Muhammad Khalid Javeed v. Shahida Parveen and 4 others 2007 YLR 1366 rel.

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

----Art. 199---Constitutional jurisdiction---Scope---Disputed question of fact cannot be resolved through Constitutional jurisdiction.

----Ss. 7 & 12-A---Matrimonial disputes---Expeditious disposal---Scope---To ensure expeditious disposal of suits relating to dissolution of marriage, family affairs and maintenance etc. West Pakistan Family Courts Act, 1964, being a special statute has been enacted with such specific purpose---Family Court under S.12-A of West Pakistan Family Courts Act, 1964, should dispose of case within a period of six months from the date of its institution.

Muhammad Sarwar Awan assisted by Muhammad Imran Sarwar Awan for Petitioner.

Sardar Mukhtar Ahmad for Respondents Nos. 1 and 2.

Date of hearing: 24th March, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1000 #

2009 C L C 1000

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD ASLAM, LUMBERDAR----Petitioner

Versus

SUB-DIVISIONAL CANAL OFFICER, FAISALABAD and 2 others----Respondents

Civil Revision No.383 of 2009, heard on 27th March, 2009.

Canal and Drainage Act (VIII of 1873)---

----S. 68-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, re-calling of---Restoration of water course---Temporary arrangement---Khal (watercourse) in question was passing through land of plaintiff who dismantled the same and filed suit to restrain Canal Authorities from exercising jurisdiction under S.68-A of Canal and Drainage Act, 1873---Trial Court declined to grant interim injunction against exercise of jurisdiction by Canal Authorities under S.68-A of Canal and Drainage Act, 1873 but Lower Appellate Court allowed the application and granted interim injunction in favour of plaintiff---Validity--Khal (watercourse) was constructed with mutual consent of parties and that was running at the spot, then the question whether S.68-A of Canal and Drainage Act, 1873 would be applicable as it did not find sanction and mentioned in contour plan, the same was to be decided by Civil Court after recording of evidence of parties---When Khal (watercourse) existed at spot and defendant and others had been irrigating their land through that watercourse, then, prima facie ingredients of irreparable loss and balance of convenience leaned in favour of defendant---Even otherwise, defendant and others had been using watercourse in question for irrigating their land even after purchase of land by plaintiff for more than 2/3 years with their mutual acquiescence and consent had been present all along and dismantling of watercourse apparently would cause inconvenience to defendant---Order passed by Lower Appellate Court granting interim injunction in favour of plaintiff suffered from irregularities and infirmities---High Court in exercise of revisional jurisdiction set aside the order passed by Lower Appellate Court and restored that of Trial Court--Revision was allowed in circumstances.

Abdul Majeed and others v. Iftikhar Ahmad and others 2004 CLC 1951 fol.

Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCMR 613; Shafiq Ahmad and others v. Abdul Latif Khan and others PLD 1961 Lah. 439; Rao Muhammad Mubin v. D.C.O, Irrigation Department 2007 CLC 1168 and Shams-ud-Din v. Province of Punjab through Secretary, Irrigation and Power, Lahore and 3 others PLD 1992 Lah. 370 ref.

Ch. Muhammad Rafique Warraich for Petitioner.

Malik Muhammad Akram Awan for Respondents.

Mazhar Qayyum Ziledar Respondent No.2 in person.

Date of hearing: 27th March, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1004 #

2009 C L C 1004

[Lahore]

Before Zubda-tul-Hussain, J

WAPDA----Appellant

Versus

MUHAMMAD ABDULLAH and others----Respondents

R.F.A. No.4 of 2001/BWP, heard on 6th April, 2009.

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

----S. 23---Punjab Land Acquisition Rules, 1983, R.10---Acquisition of land determination of market value---Criteria---One year or five years average price of land in vicinity would not be only criterion for determining compensation---Market price would imply price which a buyer would be prepared to pay and seller ready to accept, if they voluntarily enter into transaction---Court would determine value of acquired land in a broader perspective on basis of price prevalent in open market at relevant time---Not only past sales would be taken into consideration, but value of land without its potentiality would be determined by examining evidence produced before Court--Where evidence showed acquired land to be cultivable and record showed existence of roads on its both sides and there was evidence to show that same was not a far fetched place totally devoid of civic character, then such-land would deserve to be identified as property over and above usual agricultural land---Principles.

Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and others 1999 SCMR 1647 and Malik Hadi Hussain and others v. Land Acquisition Collector PLD 2008 SC 386 rel.

(b) Words and phrases---

----"Market value"---Meaning.

Hafiz Muhammad Abdul Qayyum for Appellant.

Mumtaz Mustafa for Respondents.

Date of hearing: 6th April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1010 #

2009 C L C 1010

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD NAZIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and another----Respondents

Writ Petition No.2945 of 2009, decided on 21st April, 2009.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor--Two courts below having changed the custody of minor from the petitioner/father to respondent/mother, petitioner had impugned said concurrent judgments in the constitutional petition---Father had an obligation under law to provide maintenance to his minor children---Argument that mother had weak financial position as compared to the father, was misconceived---Father had contracted a second marriage and he would have to remain out of his house for considerable time in connection with his daily pursuits---Minor could not be left to the surveillance of step-mother who could never be substitute for the real mother---Real mother had inherent right to .keep her minor children close to her bosom---Intelligent preference of the minor while considering comparative rights of the real mother vis-a-vis the father, who had already contracted a second marriage, could be legitimately pushed to oblivion and that was what the two courts below had done---Well-reasoned findings of facts recorded by the two courts below, could not be interfered within constitutional petition.

Malik Muhammad Azeem for Petitioner.

Malik Munsaf Awan for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 1012 #

2009 C L C 1012

[Lahore]

Before Sayed Zahid Hussain, C.J. and Umar Ata Bandial, J

GHULAM QADIR----Appellant

Versus

SETTLEMENT COMMISSIONER----Respondent

I.C.A. No.387 of 2000, decided on 10th September, 2008.

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

---Ss. 10 & 11---Due to prior allotment of land, claim of the claimant had exhausted and on account of claimant's demise his alleged power of attorney had also discharged---Subsequent allotments of land in favour of deceased claimant, inter alia, were utterly fraudulent and bogus and therefore, liable to cancellation-Even a party to the transaction, which the informant was not, could not validate the void allotment of land.

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

----S. 41---Statutory protection provided under S.41, Transfer of Property Act, 1882 has not been made available in the sale of evacuee property.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 rel.

M. Baleegh-uz-Zaman Chaudhry for Appellant.

Mian Muhammad Yousaf Saqi for Respondents Nos.2 and 3.

Date of hearing: 10th September, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 1034 #

2009 C L C 1034

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ZAINAB BIBI through L.Rs.----Petitioner

Versus

Mirza MUHAMMAD AQEEL and 9 others----Respondents

Writ Petition No.1055 of 2002, heard on 31st October, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration---Rejection of plaint---Registered sale-deed purported to have been executed 'by the plaintiff in favour of defendant had been questioned by the plaintiff---Earlier, son of the plaintiff had filed suit as next friend of the plaintiffs as she was claimed to be a lady of unsound mind, but she having not been found unsound mind, Trial Court rejected plaint in that suit---Subsequently on the death of the plaintiff, her legal representatives filed suit in their own capacity---Defendant in that suit filed application under O.VII, R.11, C.P.C. for rejection of plaint in that suit---Trial Court dismissed that application, but Appellate Court below rejected plaint by accepting application filed by the defendant---Nothing was decided in earlier suit, but all that held was that suit could not have been filed by the next friend of the lady and plaint was rejected---Rejection of plaint would not constitute a bar to subsequent suit---Plaint in the earlier suit was rejected on the sole ground that person filing the suit was not competent to do so on behalf of the lady---Subsequent suit had been filed by the plaintiffs in their own right i.e. being the legal representatives of said deceased lady---Plaintiffs had every right to do so and in the case they were able to prove that suit-land was not sold by the lady/mother of the plaintiffs to the defendant, then they were entitled to a decree in their favour---Impugned order of Appellate Court was set aside---Suit filed by the plaintiffs would be deemed to be pending.

Mushtaq Ahmad Mohal for Petitioner.

Malik Noor Muhammad Awan for Respondent No.1.

Nemo for Others.

Date of hearing: 31st October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 1042 #

2009 C L C 1042

[Lahore]

Before Maulvi Anwarul Haq, J

NOOR MUHAMMAD----Petitioner

Versus

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

Writ Petition No.1083 of 2004, heard on 4th November, 2008.

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

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O.VII, R.11(a)---Court Fees Act (VII of 1870), S.7(iv) [as amended vide S.2 of the Court Fees (Amendment) Act (V of 1990)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Deficiency in court-fee, making up of---Rejection of plaint---Plaintiff was directed by the Trial Court to make up deficiency in the court-fee within specified period---On adjourned date of hearing, plaintiff filed application for extension of time to pay court-fee, which was granted and the plaintiff had paid court-fee---Defendant filed revision against order extending time for payment of court-fee, which was allowed by the Appellate Court and order of the Trial Court was set aside---Validity---No fault could be attributed to the plaintiff when there was a finding by the Trial Court that no court-fee was payable as per price index unit---Impugned order of the Appellate Court passed in revision, was declared to be without lawful authority, void and was set aside---Order passed by the Trial Court with reference to the price index unit passed in presence of counsel for the parties and not challenged by anyone, stood restored---Suit would be decided in accordance with law.

Malik Zafar Iqbal for Petitioner.

Naveed Shaharyar and Miss. Najma Perveen for Respondent No.2.

Nemo for Respondent No.3.

Date of hearing: 4th November, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 1089 #

2009 C L C 1089

[Lahore]

Before Hasnat Ahmad Khan, J

ASIFA KHANUM through L.Rs.----Appellants

Versus

Sheikh ABDUL GHAFOOR through L.Rs.----Respondents

Regular Second Appeal No.3 of 1996, heard on 4th March, 2009.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement of sale of house---Limitation---Execution of suit agreement by defendant on 22-5-1965 in favour of plaintiff---Execution of second agreement by defendant in favour of plaintiff's son on 14-12-1972---Filing of suit by plaintiff on 12-4-1977---Validity---Execution of such second agreement was tantamount to refusal of defendant to execute sale-deed in favour of plaintiff---Cause of action arose to plaintiff on the date when defendant executed such second agreement--Both plaintiff and her son could not be believed not to have knowledge about each others agreements---Plaintiff had filed suit after more than five years of second agreement---Suit was dismissed as barred by time.

Thal Development Authority through Administrator Thal Bhakkar v. Khushi Muhammad and another PLD 1994 Lah. 108; Inam Naqshband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314; Province of Punjab through Secretary, Irrigation and Power Department, P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din & Co through Proprietor 2003 CLC 504; Mst. Bibi Khatoon and 7 others v. Abdul Jalil PLD 1978 SC 213 and Bomanshaw Burjorji Gazdar and another v. Mst. Mumtaz Begum and others 1985 SCMR 554 ref.

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

----S. 100---Second appeal-Concurrent findings of fact by Courts below---Validity---High Court could not disturb such findings even if disagreed with same on its own view of evidence.

----O. XLI, Rr.22 & 23---Appeal against decree of Trial Court dismissing suit---Non-filing of cross-objections by defendant against findings of Trial Court on issues decided against him---Reversal of findings of trial Court on such issues by Appellate Court---Validity---Defendant in such case could support decree and challenge such findings of Trial Court by making oral submission, but could not seek reversal or modification of decree without filing cross-objections---Judgment of Appellate Court was legal---Principles.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 83 and Muhammad Hanif through Legal Heirs v. Province of Punjab through District Collector, Vehari and others 2007 CLC 1309 ref.

(d) Evidence---

----Onus to prove an issue lying on plaintiff---Failure of plaintiff to discharge such burden---Effect---Plaintiff in such case could not be given benefit of weaknesses of evidence of defendant-Illustration.

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

----S. 100 & O.XLI, R.33---Findings of fact recorded by First Appellate Court being at variance with that of Trial Court---Effect---Such findings of First Appellate Court, if found to be supported by evidence on record and logical reasoning, would be immune from interference in second appeal.

Ghulan Khanam and another v. Mst. Noor Jahan 1982 CLC 663; Muhammad Khan v. Muhammad Yousaf PLD 2003 Lah. 413; Amir Bakhsh and another v. Muhammad Ramzan and 3 others 1990 MLD 245; Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Syed Mustafa Kamal Shah and others v. Syed Feroze Shah and others 1992 CLC 355; Mst. Jamila Begum v. Awam-un-Nass and 15 others PLD 1978 Lah. 1376; Mst. Zarina Begum v. Major Aziz-ul-Haq and 3 others 2006 CLC 1525; Khairati and 4 others Aleem-ud-Din and another PLD 1973 SC 295; Hakim-ud-Din through L.Rs. and others 2007 SCMR 870; Muhammad Ashraf and others v. Lahore Metropolitan Corporation through Lord Mayor 2007 CLC 1079 and Pakistan International Airlines Corporation v. Messrs Khalid Brothers PLD 1992 Kar. 78 ref.

Madan Gopal and 4 others v. Maran Beparti and 3 others PLD 1969 SC 617 rel.

Mian Shams-ul-Haq Ansari for Appellants.

Syed Muhammad Ali Gillani and Karim-ud-Din Khilji for Respondents Nos.1-a to 1-g.

Date of hearing: 4th March, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1127 #

2009 C L C 1127

[Lahore]

Before Maulvi Anwarul Haq, J

PRINCIPAL SARWAR SHAHEED N.H. GOVERNMENT COLLEGE----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others----Respondents

Writ Petition No.775 of 2005, heard on 8th April, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Examination---Submission of admission fee and forms---Petitioner, who was Principal of concerned college sent Admission Forms and Fees of regular candidates for examination and admission fee for all candidates was deposited in the account of Secondary Board---Two parcels of Admission Forms were handed over to Courrier Service on dates 3-2-2005 and 4-2-2005, which reached their destination on 8-2-2005---Principal was served with a notice calling upon him to pay late fee---No dispute was that said two parcels were handed over to Courrier Service on 3-2-2005 and 4-2-2005, however according to the Courrier Service those could not be delivered before 8-2-2005 as according to their written statement, office was found closed---In view of Rule 2.16 of the Calendar of the Board, admission fee was deposited three days before last date of submission of the same and the parcels of the Admission Forms were received within .10 days from said last date---Documents/Admission Forms, in circumstances, would be deemed to have been received in time---Claim of the Board for the late fee, was not tenable and was without lawful authority, in circumstances---Impugned claim of the Board for payment of late fee was declared to be without lawful authority and void.

Raja Imran Aziz for Petitioner.

Hafiz Hifz-ur-Rehman with Ch. Mushtaq Hussain, Superintendent, B.I.S.E., Rawalpindi for Respondents.

Date of hearing: 8th April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1130 #

2009 C L C 1130

[Lahore]

Before Malik Saeed Ejaz, J

HAMAD RAZA----Petitioner

Versus

DISTRICT COORDINATION OFFICER, MULTAN and 13 others----Respondents

Writ Petition No.2036 of 2009, decided on 16th April, 2009.

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

----Art. 199---Constitutional petition---Installation of C.N.G. Station in area falling within the negative list---Superintendent of Police concerned applied for installation of the C.N.G. Station in question on behalf of the Police Department in an area which fell within the negative list and had been declared sensitive in which no C.N.G. Station could be installed---Once it was admitted that area in question had already been declared sensitive and placed in negative list, applying, for relaxation of the rules to allow installation of C.N.G. Station though for Police Department, was an act of mala fide, which would amount to sheer discrimination against the general public---Such discriminatory actions on any level could not be allowed to flourish by putting the precious lives of general public at stake---If no person from general public was allowed to install any C.N.G. Station in the said area on the ground of its sensitiveness, such permission could not be granted to any one else, even if it could be the Police Department because by allowing the Police Department to install the proposed C.N.G. Station, it would, by no means, reduce the sensitiveness of the said area---Case being clearly of discrimination, Authority was directed not to issue "no objection certificate" in favour of any one for installation of the C.N.G. Station in the area which had already been declared sensitive and had also been placed on the negative list.

1999 SCMR 467 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court under Art.199 of the Constitution, was -under a legal obligation to protect the Fundamental Rights of all the citizens.

PLD 1993 SC 341 ref.

Muhammad Ramzan Khalid Joiya for Petitioner.

Aamir Aziz Qazi for Respondent No.4.

Naveed Alam, Deputy District Officer (Regulation).

CLC 2009 LAHORE HIGH COURT LAHORE 1132 #

2009 C L C 1132

[Lahore]

Before Pervaiz Inayat Malik, J

MUHAMMAD YUNAS----Petitioner

Versus

JUDGE, FAMILY COURT, MIAN CHANNUN and 2 others----Respondents

Writ Petition No.6803 of 2008, decided on 17th March, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance, dower and articles of dowry--Suit had been decreed by the Family Court---Validity---Plaintiff had categorically stated that she brought articles of dowry of worth of Rs.1,93,950; that defendant earned Rs.25,000 per month and could pay Rs.3,000 per month as maintenance allowance---Statement of the plaintiff was supported by the statement of witnesses---In the absence of cross-examination, the statements of the witnesses had to be admitted as correct---Impugned judgment and decree which were well-reasoned and perfectly in accordance with facts and law applicable to the case could not be interfered with.

Muhammad Yasin v. Mst. Rafia Bibi alias Rafia Sultana and another PLD 1983 Lah. 377; M. Javed Iqbal v. Mst. Tahira Naveed 2002 CLC 1748 and Mujahid Hussain Shah v. K.S.B. Pumps Company Ltd. and 2 others PLD 1996 SC 787 rel.

Malik Muhammad Safdar Khan for Petitioner.

Muhammad Zafar Iqbal Chaudhry for Respondents.

2009 C L C 1148

[Lahore]

Before Sh. Azmat Saeed, J

Messrs NOOR SHAH FILLING STATION (REGD.) through Manager (Administration)----Petitioner

Versus

AUQAF DEPARTMENT through Secretary/Chief Administrator Auqaf, Punjab and 4 others----Respondents

Writ Petitions Nos.13749 of 2006 and 14161 of 2008, decided on 15th January, 2009.

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 15---Chief Administrator Auqaf---Status, duty and functions---Status of Chief Administrator Auqaf. and his subordinates is that of Mutwalli whose authority is circumscribed by the provisions of Punjab Waqf Properties Ordinance, 1979, and rules framed thereunder---Chief Administrator Auqaf is vested with administration, control, management and maintenance of Waqf properties and is authorized to prepare a scheme for administration and development of such Waqf properties but such authority is neither absolute nor unfettered---Discretion in such behalf is strictly structured by law and is always justifiable---Chief Administrator is required to give effect to wishes of person dedicating Waqf to the extent that such wishes can be ascertained and reasonably be given effect to.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 15 & 17---Waqf property, use of---Preparation of scheme---Scheme to use waqf property should be prepared in a manner that property is used for the purpose for which it was dedicated or for the purpose for which it was used prior to its being taken over by Auqaf Department---Only where such wishes of dedicators are not ascertainable or impossible to give effect thereto, Waqf property may be used for any purpose recognized by Islam as religious, pious or charitable---If property is being used for a particular purpose and the same is recognized as religious, pious or charitable by Islam, every effort must necessarily be made to ensure that it is continued to be used for that purpose.

----S. 7---Waqf property---Scope---Not only immovable property but also moveable property such as stock, shares and cash can also form subject matter of waqf.

(d) Punjab Waqf Properties (Administration) Rules, 2002---

----Rr. 5 & 7---Waqf land---Lease period---Principle---Waqf land can be, for reasons to be recorded, leased out for a period longer than three years by Chief Administrator Auqaf, with prior approval of Government of Punjab---Financial advantage can be a reason for grant of such lease.

(e) Punjab Waqf Properties Ordinance (IV of 1979)---

---Ss. 15 & 17---Punjab Waqf Properties (Administration) Rules, 2002, Rr.5 & 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Waqf land---Lease beyond three years--Extending of lease period---Petitioner was the highest bidder, therefore, lease of land in question was granted in his favour for a period of ten years, which was later on extended to thirty years---Petitioner has started installing petrol pump over land in question which was resisted by respondents on the ground that land belonged to Darbar and could not be used for any purpose other than the use by Darbar---Validity---Chief Administrator Auqaf had issued summary without taking into consideration the provisions of Ss.15 (2) and 17 of Punjab Waqf Properties Ordinance, 1979, which was found by High Court to be regrettable---High Court also noticed that after auction had been held, the period of lease was subsequently extended to thirty years upon a note of Chief Administrator Auqaf, which was approved by Chief Minister---Such course of action was strange as in advertisement, only a ten years lease was offered, if lease of thirty years had been offered, there was a possibility that other participants of public auction might have offered a higher consideration---High Court remanded the matter to Chief Administrator Auqaf so that he could revisit the issue, conduct the inquiry so as to determine whether land in question, had been used since time immemorial for a purpose recognized as religious, pious or charitable and whether or not establishment of petrol station would interfere with the performance of rites and rituals at Darbar in question---Petition was disposed of accordingly.

Muhammad Sadiq and 15 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and others PLD 1972 Lah. 780; Sheikh Inayat Ullah and others v. M.A. Khan and others PLD 1964 SC 126 and Chief Administrator of Auqaf, Punjab, Lahore v. Mian Abdul Majid and 7 others 1980 CLC 651 ref.

Mian Asrar-ul-Haq for Petitioner.

Malik Zafar Iqbal Awan, Addl. A.-G. and Sh. Anwarul Haq for Respondents Nos.1, 2 and 3.

Sardar Khurram Latif Khan Khosa for Respondent No.4.

Date of hearing: 23rd December, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 1163 #

2009 C L C 1163

[Lahore]

Before Khawaja Farooq Saeed, J

MUHAMMAD IDREES AASI----Petitioner

Versus

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

Press Appeal No.116 of 2009, heard on 11th June, 2009.

Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----S. 19---Cancellation of declaration---Requirements---Powers of District Co-ordination Officer---Scope---Allegation against publisher was that he had been found guilty of using blackmailing tactics--Complainant, though subsequently abstained, yet record was totally against the publisher and action under S.19, Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 could be taken suo motu---District Co-ordination Officer, however, had proceeded vary quickly without following the procedure under S.19 of the Ordinance---Requirements of S.19 in terms of initiation of the proceedings by the Press Registrar was clear and unless the case was referred by the Press Registrar, District Co-ordination Officer could not take any action---Procedure elaborated---Order of District Co-ordination Officer, in circumstances, could not sustain which was set aside by High Court.

Writ Petition No.16717 of 2005 and Qaisar Nadeem Saqi v. District Coordination Officer (D.C.O.), Hafizabad and 8 others PLD 2006 Lah. 76 ref.

Syed Zeshan Tehmoor Gillani for Appellant.

Salma, Malik, A.A.-G. with M. Aurangzeb, Deputy Director, Press Information Department, Faisalabad for Respondents.

Date of hearing: 11th June, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1167 #

2009 C L C 1167

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

MUHAMMAD NASRULLAH----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 9 others----Respondents

Writ Petitions Nos.1480 and 1479 of 2008, decided on 10th June, 2009.

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

----S. 99(1)(g) & (1-A)(h)---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan (1973), Ars.63(1)(h) & 199---Constitutional petition---Provincial Assembly, election of---Conviction of respondent by Accountability Court upheld by High Court against which petition for leave to appeal pending before Supreme Court---Nondisclosure of such conviction in nomination papers by respondent---Effect---Declaration of respondent as returned candidate in election---Validity---Respondent had not controverted contents of writ petition---Respondent was suffering from pre-election disqualification, thus, was not qualified to be elected to or hold office of M.P.A. in view of provisions of Art.63(1)(h) & S.99(1-A)(h) of Representation of the People Act, 1976---High Court directed Election Commission ,to proceed further in the matter accordingly.

Lt.-Col. Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture Government of West Pakistan PLD 1970 SC 98 rel.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 ref.

M.A. Ghafarul Haq and Syed Ali Zafar for Petitioner.

Respondent No.3: Ex part vide order, dated 25-5-2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1191 #

2009 C L C 1191

[Lahore]

Before Syed Shabbir Raza, Rizvi and Habib Ullah Shakir, JJ

TOWN MUNICIPAL ADMINISTRATION through Town Nazim and another----Petitioners

Versus

MUHAMMAD BANARAS KHAN----Respondent

I.C.A. No.201 in Writ Petition No.1908 of 2009, decided on 27th May, 2009.

Punjab Local Government, (Auctioning of Collection of Rights) Rules, 2003---

----Rr. 10, 11 & 13---Auctioning of rights to collect tax on transfer of immovable property---Non-issuance of work permit to highest bidder declared after third attempt---Validity---Local Government administration on conclusion of first or third attempt would not be bound to accept bid and issue work permit---Acceptance of bid after first or third attempt would not be complete, unless procedure given under Rr.11 & 13 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 was completed---Ultimate power to accept or reject a bid rested with Local Council and not with any committee or administration of Local Government---Local Council could confirm such bid, if same was reasonable and there was no scope of its further enhancement---Principles.

Javed Iqbal Abbasi v. Province of the Punjab and others 1996 SCMR 1433 rel.

M.A. Ghaffar-ul-Haq along with Ch. Muhammad Aslam Langrial for Appellants.

Kh. Saeed-uz-Zafar for Respondent.

Muhammad Nawaz Bajwa, A.A.-G.

CLC 2009 LAHORE HIGH COURT LAHORE 1225 #

2009 C L C 1225

[Lahore]

Before Sh. Azmat Saeed and Umar Ata Bandial, JJ

Syed TAUSEEF SHAH----Appellant

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 5 others---'Respondents

Intra-Court Appeals Nos.192 and 195 of 2007 in Writ Petition No.3381 of 2007, decided on 25th May, 2009.

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

----Ss. 89-A & 51---Setting aside of the resolution of Union Council by the Town Council---Scope---Resolution of the Union Council, at the best, can be set aside by the Town Council for reasons and in the manner reflected in S.89-A, Punjab Local Government Ordinance, 2001.

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

----Ss. 92 & 89-A---"Motion"---Connotation---Word "motion" as used in S.92, Punjab Local Government Ordinance, '2001 and phrase "resolution" of the "Union Council" as employed in S.89-A of said Ordinance are not interchangeable---"Motion", in Parliamentary practice in Pakistan, means merely a proposal of a question put to the members of a House for expression of their opinion or decision; and if and when, such decision is taken, or the "motion" accepted or approved by the House, it becomes "resolution" of the House.

Black's Law Dictionary Eighth Edition; Advanced Law Lexicon Vol.3 J-P Reprint 2007; Law Lexicon of British India compiled by P. Ramanatha Aiyar BA B.L. and Mahesh Chandra and another v. Tara Chand Modi AIR 1958 All. 374 (V 45 C 90) ref.

----S. 89(1)(3)---"Resolution" of the Union Council would mean decision of the said Council which has the formal support of the majority of the Members of the Union Council which must have been passed.

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

----Ss. 92 & 89-A---"Motion" is mere proposal which may or may not be in the form of "Resolution" but it does not become the "Resolution" of the Union Council until and unless "approved and passed" by majority of the members of the Council in a formal act of voting---Procedure.

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

---Ss. 92 & 89-A---"Motion" moved under S.92(1), Punjab Local Government Ordinance, 2001 and deliberated upon under S.92(3) of the Ordinance does not assume the status of a "Resolution" of the Union Council so as to attract the provision of S.89-A of the Ordinance--Principles.

After deliberation under section 92(3), Punjab Local Government Ordinance, 2001 the matter is presented for voting through secret ballot as postulated by section 92(4) of the Ordinance. The matter that is presented to the house of the Union Council under section 92(4) is described by said provision of law itself as "Motion".

Thus, the intention of the Legislature is crystal clear that any "Motion" moved under section 92(3) retains its essential legal character of "Motion" to be presented again to the house as a "Motion" under section 92(4) of the Ordinance. In such circumstances it is clear and obvious that any proceedings on a motion under section 92(1) and thereafter being deliberated upon under section 92(3) does not transform the matter into a "Resolution" of the Union Council so as to attract the mischief of section 89-A of the Ordinance. Thus, in the present case, as only the "Motion" moved and deliberated upon, the Town Council did not have the jurisdiction under section 89-A to set aside the same, inasmuch as, it was only a "Motion" "Resolution" of the Union Council.

In the present case, "Resolution" of the Town Council was moved by the members rather than the T.M.A. Furthermore, "Resolution" merely suspended the proceedings of the Union Council.

No such powers are vested in the Town Council by section 89-A of the Ordinance. Thus, even otherwise the provision of section 89-A of the Ordinance had not been complied with or acted upon.

"Resolution" of the Town Council and the notification issued by T.M.O. were without jurisdiction and of no legal consequence.

Naseer Ahmad Bhutta for Appellants.

Zafar Iqbal Chohan for Respondent.

Malik Zafar Iqbal Awan, Addl. A.-G.

Date of hearing: 13th April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1247 #

2009 C L C 1247

[Lahore]

Before Abdul Sattar Goraya, J

HAQ NAWAZ----Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and 2 others----Respondents

Writ Petition No.2626 of 2008, heard on 10th June, 2009.

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

----S. 8---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10(2) & 30(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate allotment of land to evictees of Mangla Dam---Second review, competency of---Respondent, who was evictee of Mangla Dam and had eligibility certificate for the purpose of alternate allotment, was allotted land and Board of Revenue, in due course of time, had regularized not only the land of the respondent, but also other persons placed in similar position---Respondent .had also obtained a conveyance deed after depositing the whole price in the treasury---Possession of respondent, coupled with the allotment was regularized in the process of review---Petitioner feeling aggrieved of said arrangement made an application seeking second review in terms of S.8 of the West Pakistan Board of Revenue Act, 1957 for annulment of order of allotment, but said application was rejected---Order sought to be reviewed was passed by the Member Board of Revenue in his jurisdiction under S.8 of West Pakistan Board of Revenue Act, 1957---Second review was not competent before Board of Revenue---After the proprietary rights had been conferred upon the respondent/allottee, he was not bound by the terms and conditions and would become absolute owner in respect of the land originally allotted to him by the Collector---Board of Revenue could not cancel the allotment in respect of which the proprietary rights had been acquired---Board of Revenue could go behind the "allotment order" only---If any allegation of fraud and misrepresentation against the allottee was made the Authority could go before the civil court---Schemes under Colonization of Government Lands (Punjab) Act, 1912 were framed for the benefits of landless persons---Petitioner, in any manner, had no locus standi to bring the cause of action before the Board of Revenue---Appropriate writ could not be issued in the aid of injustice and to the advantage of the acrimonious feeling of the petitioner---Impugned order passed by the Member Board of Revenue being based on sound judicial consideration, constitutional petition against same having no merits, was dismissed.

Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD 441 and Rehmat Ali and others v. Member (Colonies) Board of Revenue, Lahore and 2 others 2002 YLR 2310 ref.

Hafiz Khalil Ahmad for Petitioners.

Shamsher Ijaz for Respondents.

Amjad Ali Chattha, A.A.-G. for the State.

Date of hearing: 10th June, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1273 #

2009 C L C 1273

[Lahore]

Before Maulvi Anwarul Haq, J

QUTAB-UD-DIN----Petitioner

Versus

Mst. ZUBAIDA KHATOON and others----Respondents

Civil Revision No.542 of 2000, heard on 11th June, 2009.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Constitution of Pakistan (1973), Art.203-D(2)---Succession---Plaintiffs, in the present case, were the widow and children of deceased who had predeceased his father---Succession opened on 28-1-1972 on the death of father of the predeceased son and in terms of S.4, Muslim Family Laws Ordinance, 1961, the children of the said predeceased son were entitled to receive the share of their father in the estate of father of predeceased son---Share of predeceased son in the estate of his father will devolve only on his children and not the widow in terms of S.4, Muslim Family Laws Ordinance, 1961---Contention that in view of the judgment of the Federal Shariat Court declaring S.4, Muslim Family Laws Ordinance, 1961 to be repugnant to the Injunctions of Islam and as such the very preliminary decree be declared to be void, was repelled, as an appeal against the said judgment of Federal Shariat Court was pending before the Shariat Appellate Bench of the Supreme Court; under Art.203-D(2) of the Constitution, the Federal Shariat Court while declaring any provision of law to be repugnant to the Injunctions of Islam had to specify a date on which the judgment was to take effect; such a date specified by the Federal Shariat Court in the judgment was 31-3-2000; in the present case, the preliminary decree was passed by the Trial Court on 14-4-1990 and finally approved by High Court on 7-11-1994; final decree thus, was passed before target date fixed by the Federal Shariat Court and under proviso to Art.203-D(2) of the Constitution the decision of Federal Shariat Court shall not be deemed to take effect wherein an appeal had been preferred to the Supreme Court before the decision of the said appeal---Order accordingly.

Allah Rakha v. Federation of Pakistan and others PLD 2000 FSC 1 mentioned.

Sh. Naveed Shehryar for Petitioner.

Anwar Akhtar for Respondents.

Date of hearing: 11th June, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1283 #

2009 C L C 1283

[Lahore]

Before Maulvi Anwarul Haq, J

Lieut. MUHAMMAD ASJID IQBAL----Petitioner

Versus

FEDERATION OF PAKISTAN----Respondent

Writ Petition No.2718 of 2003, heard on 20th April, 2009.

Pakistan Army Act (XXXIX of 1952)---

----S. 65(10)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contention of the petitioner was that he was placed under custody and not allowed to serve and do his job and provision of S.65(10)(b), Pakistan Army Act, 1952 providing forfeiture of his pay and allowances for every day he remained in custody was against the Injunctions of Islam and he was entitled to be paid his emoluments---Validity---High Court allowed the constitutional petition and directed the authorities to pay the emoluments to the petitioner i.e. the pay and allowances for the period specified---Principles.

N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 applied.

Col. (R.) Muhammad Akram for Petitioner.

Babar Ali Standing Counsel for Pakistan and Lt.-Col. H.R. Jehangiri, A.J.A.G. GHQ Rawalpindi for Respondent.

Date of hearing: 20th 'April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1285 #

2009 C L C 1285

[Lahore]

Before Maulvi Anwarul Haq, J

MUNSHI MUHAMMAD through L.Rs. and others----Petitioners

Versus

DISTRICT OFFICER (REVENUE), GUJRANWALA and 2 others----Respondents

Writ Petition No.8404 of 2008, heard on 12th May, 2009.

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

----Ss. 13 & 24---Pre-emption suit---Offering of purchase money---Procedure---No provision existed in law for offering purchase money to the vendee, the same had to be deposited in court and, of course, to be withdrawn by the vendee.

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

----S. 13---Civil Procedure Code (V of 1908), O.XX, R.14---Limitation Act (IX of 1908), Art.182 & S.28---Decree in pre-emption suit---Limitation---Principles---Title accrues to the pre-emptor on payment of the decretal amount and is not dependent upon the delivery of possession---Article 182, Limitation Act, 1908 does not prescribe the period of limitation for the institution of a suit by the decree holder; it merely prescribes the period of limitation for an application for delivery of possession to him---If the plaintiff did not apply for the execution within the period of limitation, his right and title in the property which he acquired by virtue of the decree for pre-emption, is not extinguished; he continues to be the owner of the land notwithstanding that he did not file an. application for execution---Revenue authorities were obliged under the law to give effect to decree whereunder the plaintiff had acquired title in law.

Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lah. 207 and Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 ref.

Dr. A. Basit for Petitioners.

Rai Wali Muhammad and Abdul Ghafoor for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 12th May, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1289 #

2009 C L C 1289

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. FAYYAZI BEGUM and 6 others---Appellants

Versus

ALI HASSAN and another---Respondents

F.A.O. No.215 of 2007, decided on 13th May, 2009.

Contract Act (IX of 1872)---

---Ss. 126, 131, 135 & 139---Surety bond---Death of surety before any direction or decree was passed for the recovery of the amount from the defendant---Effect---Such bond was the paramount document as rights and obligations of the surety, could be determined on the basis of surety bond alone---In the present case, surety bond had been furnished for the payment of the amount, which the court would determine against the defendant---No amount was determined against the defendant during the life time of the surety---Surety died before any direction or a decree was passed for the recovery of the amount from the defendant---Surety bond was to be construed strictly, according to the terms mentioned therein---Liability of the surety to pay on behalf of the principal debtor as per the surety bond arose only where the decree was passed or the defendant was directed to make payment of the amount---Neither the defendant was directed to pay any amount nor the decree against the defendant was passed during life time of the surety---Decree which was passed after the death of the surety, would neither bind the deceased surety nor his legal heirs---Principles.

Parvatibai v. Vinayak Balwant AIR 1939 Born. 23; Narayan Ramchandra Bhagwat v. Markandya Tukaram and another AIR 1959 Bom. 516 and T.N. and Q Bank v. Official Assignee AIR 1940 Mad. 396 ref.

Sh. Umer Draz for Appellants.

Ch. Muhammad Anwar Ghumun for Respondents.

Date of hearing: 23rd April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1292 #

2009 C L C 1292

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. KAUSAR PERVEEN----Petitioner

Versus

TALIB HUSSAIN and another----Respondents

Civil Revision No.1251 of 2007, heard on 19th June, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIII, R.10 & O.VII, R.2---Suit for recovery of money---Plaintiff was allowed to file suit as a pauper---Costs where pauper succeeds---When the pauper succeeds, the court was required to calculate the amount of court-fee payable which was to be recovered by the Provincial Government from the party, which was to be ordered to pay the same and the effect of such an order was that the said amount shall be a first charge on the subject matter of the suit---Court had no ground whatsoever to have directed the plaintiff (pauper) to pay the court-fee and to impose penalty of dismissal of the suit for non-payment thereof---Such order of the court being wholly without jurisdiction was set aside by High Court with direction that the amount of court-fee shall be recovered from the defendants along with the decretal amount by the Executing Court to be paid to the Provincial Government, if it so, claimed.

Shahid Mehmood Khan Khilji for Petitioner.

Nemo for Respondents.

Date of hearing: 19th June, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1295 #

2009 C L C 1295

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD SALEEM----Appellant

Versus

MUHAMMAD TARIQ----Respondent

Regular Second Appeal No.1 of 2004, heard on 11th June, 2009.

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

---O.XXIII, R.1 (2)(a)---Term '"formal defect"---Connotation---Term "formal defect" refers to a defect in form prescribed by law and it always gives liberal meaning---Defect should be such as may not be going to the root of the case or affecting its merits.

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

---S. 12---Specific performance of agreement---Cause of action---When cause of action is based upon agreement to sell, only lawful form of suit is specific performance of agreement in accordance with terms enumerated therein.

---Ss. 12 & 56---Civil Procedure Code (V of 1908), O.II, R.2 & O.XXIII, R.1---Specific performance of agreement to sell---Formal defect---Omission of relief in earlier suit---Effect---Earlier suit for declaration was withdrawn by plaintiff on the ground of formal defect and with permission of court filed another suit for specific performance of agreement to sell---Trial Court dismissed subsequent suit but Lower Appellate Court decreed the same in favour of plaintiff---Plea raised by defendant was that as. there was no formal defect in earlier suit, therefore, subsequent suit could not be filed and fact not pleaded in earlier suit could not be pleaded thereafter---Validity---Bar contained in O.II, R:2 C.P.C. did not apply where relief claimed in earlier suit was incompetent or the suit itself was barred by S.56 of Specific Relief Act, 1877---Relief of declaration and injunction could not be granted in a matter of breach of contract and specific performance was the only proper and efficacious remedy---Subject matter in both the suits was the same and nature of dispute was also identical in so far as acclaimed rights were concerned---Though question of consideration was controversial and varifiable, but the same by itself was giving rise to the question and was also relatable to the form of suit and as such, if plaintiff had to put forth the claim on the basis of agreement to sell, he had no option except to file a suit for specific performance after withdrawal of former suit for declaration and injunction---Effect of discrepancy if any, in the contentions and evidence had to be independently decided by Trial Court through judicial scrutiny of evidence---Plea that there was no formal defect in former suit or subsequent suit was not maintainable, was not a plea having sanction of law---High Court in exercise of appellate jurisdiction declined to interfere in the judgment passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Muhammad Shafi v. Muhammad Sharif 2003 CLC 1404; Abdur Rashid v. Mst. Akbar Jan and others 2003 YLR 2775; Mehinwal Khan v. Khuda Bskhsh and others 1996 MLD 252; Muhammad Yousaf Memon v. Karachi Stock Exchange (Guarantee) Ltd. 1995 CLC 183; Fazal Subhan and 11 others v. Mst. Sahib Jamala PLD 2005 SC 977; Abdul Haque and others v. Shaukat Alf and 2 others 2003 SCMR 74; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Mst. Bhirawan and 3 others v. Ahmad Bakhsh and others PLD 1955 Lah. 187 ref.

(d) Fraud----

----Proof--Onus to prove---Onus to prove misrepresentation and fraud lies upon party who alleges the same.

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

----S. 11---Competency to contract---Minor---Enforcing of contract---Scope---Minor can enforce contract made in his favour for a valuable consideration, especially when no liability is to be incurred by him---Minor being beneficiary of agreement, S.11 of Contract Act, 1872, would not impair his rights and interests---Minor is not debarred from acquiring title to anything valuable.

Firm Bhola Ram, Harbans Lal and another v. Bhagat Ram and others AIR 1927 Lah. 24; Haji Noor Muhammad Jamote and others v. Osman and others PLD 1993 Kar. 26 and Mst. Muhammadi and others v. Ghulam Nabi and others 2007 SCMR 761 rel.

Talib Haider Rizvi for Appellant.

Mian Nisar Ahmed for Respondent.

Date of hearing: 11th June, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1334 #

2009 C L C 1334

[Lahore]

Before Mian Saqib Nisar, J

FAZALUR REHMAN---Petitioner

Versus

MUHAMMAD MUBASHIR and another---Respondents

Writ Petition No.2960 of 2009, decided on 25th June, 2009.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 22(2)(6)---Leave to contest---If the leave application is not filed within the stipulated period of ten days, the Rent Tribunal shall pass the final order (as per S.22(6) of the Ordinance) which has made the provision as mandatory (as consequences of default are clearly provided), resultantly the tenant is liable to be straightaway ejected in terms of S.22(2)(6) of the Punjab Rented Premises Ordinance, 2007---Principles.

(b) Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 22(2)(6)---Leave to contest---Tenant failing to file application for leave to contest within stipulated time of ten days---Contention of the tenant, in application for condonation was that on account of the reasons given in the application for condonation sought on the equitable grounds as argued in the court, the lapse should be overlooked---Validity---Held, equity could not override the law and it had not been shown if the condonation of the delay could be granted to the tenant under any provisions of the Punjab Rented Premises Ordinance, 2007 nor it was established if S.5, Limitation Act, 1908 was applicable to the said Ordinance and could be availed by the tenant---Rent Tribunal, in the present case, after having ordered the ejectment of tenant, had framed the issues and proceeded to record the evidence of the parties---Validity---Rent Tribunal having passed final eviction order against the tenant, rendered itself functus officio and could not proceed any further.

Mian Khalid Habib Elahi for Petitioner.

Hamid Iftikhar Pannu for Respondent No.1.

CLC 2009 LAHORE HIGH COURT LAHORE 1343 #

2009 C L C 1343

[Lahore]

Before Sh. Azmat Saeed, J

ICC TEXTILES LIMITED through Authorized Representative and 31 others----Petitioners

Versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA), WAPDA HOUSE, LAHORE through Chairman and 15 others----Respondents

Writ Petitions Nos.13878, 10681, 10898, 14158, 14159, 14044, 14045, 14145, 14143, 14048, 14149, 13502, 13501, 13500, 13498, 13496, 13497, 14703, 14716, 14719, 14582, 14588, 14539, 14540, 14501, 14439, 14427, 14613, 14612, 14611, 14610, 14609, 14591, 14590, 15672, 15125, 14861, 14021, 14335, 10900, 10901, 14349, 14348, 14336, 14337, 11918, 1721/RWP, 10897, 10605, 12597, 13876, 13877, 13879, 18052, 16631, 15758, 16013, 16185, 15673, 15674, 15675, 15676, 15677, 1950, 4948, 10899, 14589, 15679, 15680, 15700, 14350, 14351, 14352, 14353, 14373, 14374, 14375, 14376, 14398, 14399, 14400, 14403, 14404, 14412, 14426, 14425, 14418, 14415, 14413 of 2008 and 102, 545, 546, 277, 1108, 1227, 1235 and 1276 of 2009, decided on 17th April, 2009.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)-National Electric Power Regulatory Authority Tariff Standard and Procedure Rules, 1998---Power of National Electric Power Regulatory Authority to determine the tariff---Scope---Factum of Intervenor---Principles.

Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and the Rules framed thereunder, reveal that NEPRA is vested with the power to determine the tariff, and in doing so, it is enjoined by law, as far as practicable to protect the interest of the consumers and the companies providing service. More particularly, NEPRA while determining the tariff must protect the consumer against monopolistic and oligarchical practices, encourage efficiency in the operation and quality of service and promote economic efficiency in the power industry. NEPRA must keep in view the economic and social policy objectives of the Federal Government, and more importantly, eliminate exploitation and economic distortions. Furthermore, the tariffs should allow licensees (in the present case DISCOs) recovery of any and all costs prudently incurred. The tariff should also provide for a Rate of Return to the licensee of the capital investment which is commensurate to the Rate of Return earned by other investments of comparable risks and promote investments. The tariff should also include a mechanism to allow licensee benefits through improved efficiency and to improve the quality of service. Financial stability in the power sector should also be taken into account. Competition should be encouraged. Inter-class and inter-region subsidies should be provided .transparently, consumer with low consumption levels i.e., the lifeline consumers being provided with electricity at a below rate and appropriate arrangement for rural electrification should be built into the tariff. Discrimination inter se the consumer groups with similarly service requirements should be avoided. And most importantly, each tariff determination should be comprehensive and free of the possibility of misinterpretation and state explicitly each component thereof.

One of the primary functions of NEPRA is to determine the tariff as is evident from section 7 subsection 3(a) of the Act. In order to do so, it is required to follow the procedure as laid down in the Rules of 1998. A common refrain, both in the Act and the Rules, is the protection of the consumer. It has also been noticed that the purposes of the Act and the Rules and the powers conferred upon NEPRA while determining tariff is for the purpose of arriving at a just and informed decision (as is evident from Rule 9 sub-rule (1) and Rule 10 of the said Rules). The nature of powers conferred on NEPRA are not unfamiliar, as similar powers are also available to courts of civil jurisdiction under Civil Procedure Code. However, the tenor of the language employed discloses a significant difference. While under the Rules such powers are vested in and are to be exercised on the initiative of NEPRA, on the other hand, under the Civil Procedure Code, powers are to be exercised at the behest of a party. In Rule 10 of the Rules, it is stated that NEPRA may require any person to 'produce any documentary or other evidence in order to arrive at a just and informed decision. Similarly, under Rule 11, NEPRA is empowered to administer written interrogatories on any person. In comparison under Order XI, rule 1, C.P.C., the plaintiff or defendant by leave of the Court may deliver interrogatories. Order XI, rule 2, C.P.C. perceives of an application for leave to deliver interrogatories. Similarly, under Order XI, rule 12, C.P.C., any party may apply to the court for seeking an order directing the other party to produce a document. The difference of the initiative is obvious i.e. the NEPRA under the Rules in contra distinction to such initiative being with the party in proceedings under C.P.C. This distinction coupled with the specific direction of the law, whereby NEPRA, is enjoined to determine the tariff in a just and informed manner would make it clear and obvious that the nature of jurisdiction being exercised by NEPRA is primarily inquisitorial in nature rather than adversarial. The proceedings conducted by NEPRA while determining a tariff is a due fulfilment of an obligation cast upon it by law, rather than a dispute resolution through adversarial proceedings as is the primary function of a Civil Court. No doubt, there are provisions in the Rules for an intervener and participation of persons other than such intervener, but the same do not detract from the fact that jurisdiction being exercised is inquisitorial in nature. Said provisions viewed in the above context are for the protection of the consumer who may intervene and further to ensure transparency in the entire exercise. Thus, the absence of an intervener or any act or omission thereof would not absolve NEPRA of its duty to arrive at a just and informed decision while determining a tariff.

The fact that the proceedings conducted by NEPRA are inquisitorial in nature does not in any manner detract from the right of the intervener to have his objections adjudicated upon by invoking the various provisions vested in NEPRA, referred to above. In fact, the NEPRA should not hesitate to exercise such powers at the behest of the Intervener if so required so as to make the participation thereof meaningful in the tariff approval process as is enjoined by section 31(3)(b) of the Act. Any failure in this behalf would reduce the proceedings before NEPRA a sham and would denude its validity.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)---National Electric Power Regulatory Authority Tariff Standard and Procedure Rules, 1998-Determination of tariff--Jurisdiction of Authority---Modus of exercise---Scope---No specific powers to pass a "short orders" were conferred upon the Authority nor such jurisdiction could be inferred from any provision of the Act or Rules by any stretch of imagination---Any "short order" would not only be invalid, and illegal but also without jurisdiction---Principles.

Messrs Popular Boards (Pvt.) Ltd. v. Custom Excise and Sales Tax Appellate Tribunal and others 2007 MLD 157 ref.

----S. 31(2)(b)-National Electric Power Regulatory Authority Tariff Standard and Procedure Rules, 1998---Determination of tariff---"Short order" and subsequent detailed determination issued by the Authority---Authority, in the present case, had acted as an unquestioning passive recipient of unverified and selective information on the basis whereof it had mechanically churned out a tariff determination without reference to the purposes required to be kept in view and set forth in S.31(2)(b) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---In fact, no endeavors appeared to have been made in that behalf---Held, it was difficult to hold that due process was followed or that participation of the Intervener in the tariff determination process was meaningful---Both the "short order" and subsequent detailed determination of tariff were deficient in cogent reasons based on extraneous consideration, and more importantly, mandatory standards and guidelines had been ignored and not followed or implemented---Said determination of tariff was not sustainable in law---Short order and the detailed determination were set aside by High Court with the result that the tariff petitions shall be deemed to be pending before the Authority, which shall decide those petitions afresh in accordance with law.

(d) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)(b)---National Electric Power Regulatory Authority Tariff Standard and Procedure Rules, 1998---Determination of tariff---"Short order" and subsequent detailed determination issued by the Authority---Authority, in the present case, had passed "short order", which was neither envisaged by the Regulation of Generation, Transmission and Distribution of Electric Power, Act, 1997, nor the Rules thereunder, therefore, the same was invalid, illegal and without jurisdiction---Detailed order having been released appeared to be having obvious infirmities---Issues were considered, but it was not clear whether they were framed---No evidence was recorded and the reasons for not framing issues and not recording the evidence to be produced, were conspicuous by their absence---Substantial part of the Distribution Margin was to O&M cost but the same had primarily been allowed on the basis of previous years' expenditure---No finding was available on record as to whether any costs had been prudently incurred---Line losses had been whimsically allowed and without any rationale and reasoning---Depreciation and Rate of Return of investment of comparable risks had not been considered or taken into account---Some claims of the licensee though had been disallowed, yet there could be no escape from the fact that determination/order had been passed without any reference or taking into consideration the purpose of entire exercise---Requirement or procedure had not been complied with and the standard and guidelines required to be taken into consideration under the law had been ignored---Authority appeared to be not even aware of such requirements and dictates of law---Short order and the detailed determination being not sustainable in law, were set aside by High Court with the result that the tariff petitions shall be deemed to be pending before the Authority, which shall decide those petitions afresh in accordance with law.

(e) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)(b)---National Electric Power Regulatory Authority Tariff Standard and Procedure Rules, 1998---Determination of tariff---Authority, in the present case, had passed "short order" which was neither envisaged by the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 nor by the Rules thereunder, therefore, the same was invalid, illegal and without jurisdiction---Issues were referred to in the detailed determination, but no explanation was being offered, whether the same were framed or not---None of the parties was allowed or permitted to lead evidence---No reasons for not allowing the production of evidence by the parties was coming forth or available on record---Substantial portion of Distribution Margin was the O&M cost which had been allowed without reference to the mandatory provisions which permit allowing only said costs which bad been prudently incurred---Said mandatory requirement of law had not been complied with and the order passed and the determination made in oblivion thereof---Depreciation and Rate of Return had been allowed without reference to investment of comparable risks, which was in violation of law---"Short order" and detailed order of determination of tariff, in circumstances, were invalid, illegal and without jurisdiction and not sustainable in law, which were set aside by High Court with the result that the tariff petitions shall be deemed to be pending before the Authority, which shall decide those petitions afresh in accordance with law.

(f) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)(b)---National Electric Power Regulatory Authority. Tariff Standard and Procedure Rules, 1998---Determination of tariff by Authority---When suo motu proceedings were initiated by the Authority, the consumers had a right of hearing of which they had been deprived and consequently the determination through adjustment in the case was without jurisdiction---Principles---Suo motu determination of bi-annual adjustment was set aside by High Court with the consequence that suo motu proceedings shall be deemed pending before the Authority to be decided afresh in accordance with law by it after publication of due notice in the press and permitting the Interveners and commentators, if any, to participate therein.

Mian Mahmood Rashid, M. Shah Nawaz Khan, Ali Zafar, Omar Alvi, Fauzi Zafar, Faisal Zafar, Ch. Anwar-ul-Haq, Ch. Muhammad Ali, M. Birjees Tahir. Mian Muhammad Athar, Rana Muhammad Arshad Khan, Abdul Qadoos Mugal, Ijaz Ahmed Awan, Naeem Mushtaq Awan, Rana Javed, Komal Malik Awan, Hasham Ahmed Khan, Rai Salah-ud-Din Kharal, Muhammad Nafees Qureshi, Mian Muhammad Hussain Chotia, Ali Sibtain Fazli, Malik Qarnar Afzal, Khalid Wan, Tariq Mehmood Khan, Allah Rakha, Muhammad Islam Sheikh, Ch. Mumtaz-ul-Hassan, Malik Sajid Naveed, Shafqat Mehmood Chohan, Ch. Muhammad Din Ansari and Malik Sajid Naveed for Petitioners.

M. Ilyas Khan, Senior Legal Advisor for WAPDA, Sardar Shahid Iqbal, Salman Akram Raja, Aamir Suhail Sheikh, Muhammad Idqbal Duggal, Muhammad Siddique Malik, Director, Legal GEPCO and Ijaz-ul-Ahsan for Respondents.

Dates of hearing: 17th, 22nd 28th, October, 11th, 14th, 20th, 28th, November, 11th, 18th, 22nd, December, 2008, 12th, 19th, 21st, 26th, 31st, January and 3rd February, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1391 #

2009 C L C 1391

[Lahore]

Before Mian Saqib Nisar, J

IMTIAZ RASHEED QURESHI----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Power, Islamabad

and 4 others----Respondents

Writ Petition No.4717 of 2009, decided on 15th July, 2009.

(a) Standard Time (Interpretation of References) Ordinance (VI of 1943)---

----S. 2---Rules of Business (Federal Government) Sched.2, Item No.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Advancement of the time by one hour in the Pakistan standard time made by the Federal Government---Validity---On account of Sched.2, Item No.14 of the Federal Government Rules of Business, fixation of time was the subject of the Interior Division, and on a summary prepared by the PEPCO routed through the Ministry of Water and Power, the Interior Division with the consultation of the whole cabinet had advanced the time, therefore, the question of illegality and/or invalidity in that behalf had no substance---Record also showed that decision of advancement of time by one hour was not whimsical in any manner, rather had been taken under the compelling circumstances of acute energy shortage---Said action could not be termed as irrational, arbitrary, capricious or unfair, besides the decision in question was the policy matter of the Government and when no vice of the nature was established, High Court, while exercising its constitutional jurisdiction, was not supposed to sit as an Appellate Forum over the administrative decision---Plea of invalidity of the policy was repelled.

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

----Arts. 199 & 25---Constitutional petition---Load-shedding---Contention of the petitioner was that load-shedding/management was being done in grave discriminatory manner, as some privileged, persons/institutions had been exempted for no rationale behind that, whereas the entire nation was facing the misery of the load-shedding, which was disproportionate, unscheduled and unannounced, thus, the poor people of the country were being put to suffer on account of the load-shedding in the simmering heat; he had also made reference to the devastating effect being caused to the industrial and agricultural sector of the country on that account, especially in terms of financial loss, unemployment, and price hike of the, essential commodities of life---Petitioner had suggested that High Court should constitute a Commission to look into all these aspects and for proposing the load-shedding/management, which should be regulated under the orders of the Court---Validity---To plan and regulate the load management, which was dependent on so many factors was a constantly fluctuating phenomenon such job could be accomplished only by the relevant authorities; it was to be decided by such authorities, as to which sector, organization, institution, establishment, area, (geographical or industrial, agricultural or otherwise), should be subjected to what quantum of and the schedule of load-shedding---When such process was not shown to be irrational, unreasonable or tainted with dishonesty of purpose, such action could not be questioned on the touchstone of Art.25 of the Constitution---Charts placed on record by the authorities showed that decision of load-shedding/management was not arbitrary or whimsical in any manner, rather had been done under the compelling circumstances of acute energy shortage---Data provided by the department further showed that it was only the essential institutions, organizations and the offices, to which the electricity was being continuously supplied which could not be termed discriminatory---High Court, in circumstances, declined to constitute any Commission for the purpose of ascertaining, whether the load management was being conducted in fair and reasonable manner, constitution of such Commission shall. be an unnecessary interference in the affairs of the Government, Which should be avoided, unless it was absolutely imperative and that too on the touchstone of principles of judicial review of administrative actions, which prima facie had not been established by the petitioner on record---High Court observed that basic object of the increase of one hour in the day time was to curtail the consumption of energy of the electricity in the evening/night, the peak period and to conserve it for other days or the sectors, but it was discouraging and a dismal to note that the Restaurants, Shopping Mall, big plazas, markets, wedding halls, etc. remain open till late night hours and no check or embargo had been placed upon them either by the Federal Government, of. which this was the subject, despite the law being there, to compel the implementation of fixing the hours for the opening and closure of these establishments---If the law was duly enforced as presently it is, and/or if there was any inadequacy in such law by providing the same by implementing the opening/closure times, it shall help in overcoming the problems and the energy conserved in the manner could be used for a better/valuable purpose---High Court desired that both the Federal and Provincial Governments shall coordinate and act in conformity for the national cause.

S.M. Zaman for Petitioner.

Ch. Aamar Rehman, Dy. Attorney-General.

Ch. Abdul Sattar, for Respondent No.2.

Rana.Asadullah Khan for Respondent No.4.

Fayyaz Ahmad DIR (Energy Conservator) and Idrees Butt, DIR (I.D.).

CLC 2009 LAHORE HIGH COURT LAHORE 1399 #

2009 C L C 1399

[Lahore]

Before Khawaja Farooq Saeed, J

AVARI HOTELS LIMITED through Controller----Petitioner

Versus

DEPARTMENT OF EXCISE AND TAXATION GOVERNMENT OF THE PUNJAB, through Secretary and 5 others----Respondents

Writ Petitions Nos.11094 and 14349 of 2003, decided on 29th April, 2009.

(a) Interpretation of statutes---

----Interpretation given in one statute of a particular connotation is not to be used or made applicable for other law unless it has been so adopted in the said law.

(b) Interpretation of statutes---

----Where a particular word is not interpreted by a statute the ordinary dictionary meanings are applicable---Courts have never considered it safe to import the meaning from the other statutes while dealing with some issue under another statute.

----Courts while interpreting the provision of a statute are required to remain within the intention of law-makers and remaining within the literal meanings.

(d) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 3---Constitution of Pakistan (1973), Arts.148, 149 & 199---Constitutional petition---Scope of Arts.148 & 149 of the Constitution---Property tax, levy of---Contention of the petitioner was that Government of Pakistan through its Circular No.1-129/99-INV-IV, dated 2-8-1999 had declared "tourism: as an "industry" with all such facilities/ concessions which were and are available to the industries; hotel to be as a necessary ingredient of the same, was an "industrial unit" for all practical purposes---Provinces, by virtue of the provision of Art.149 of the Constitution, were bound to make their policies in harmony with the directions of the Federal Government---Petitioner further contended that "hotel" be treated as an "industry" for the purposes of determining the levy of property tax---Validity---Articles 148/149 of the Constitution applied on the laws which were in Federal List and in the Concurrent List as a domain of the Federation---Property tax, being a provincial law and not in conflict with the Federal law, there was no doubt that the legislation, especially when it deals with the foreign investors, should be attractive and rather luring and provincial as well as local laws should also be harmonious to the Federal Laws---Question, in the present case, being the application of the provisions of West Pakistan Urban Immovable Property Tax Act, 1958 to the hotel, the principle that the law should be applied in its literal meanings was applicable with full force and there was no question of treating a "hotel" to be an "industry" for the purposes of the determination of property tax for the reason that the same had been so treated by the Federal Government through its Circular---Hotel declared as industry by the Federal Government if was not being given the said treatment under the West Pakistan Urban Immovable Property Tax Act, 1958, it was the provisions of the said Act which shall prevail---Property Tax having been created as a result of the charge under West Pakistan Urban Immovable Property Tax Act, 1958, no exception could be made---High Court, however, granted an interim respite to the petitioner and directed that no coercive measures for recovery of the arrears of property tax shall be adopted for fifteen days---Article 149 of the Constitution was to ensure the due compliance of the enforcement of Federal laws and in fact it was not an authority to regulate the Provincial law.

Messrs Tures Hotel, Islamabad and others v. Capital Development Authority and others 2006 SCMR 1738; Commissioner of Income Tax Companies.-II, Karachi v. Messrs Muhammad Usman Hajrabai Trust Imperial Courts, Karachi 2003 PTD 577;" Arabian Sea Enterprises Ltd. v. Government of Sindh through Chief Secretary, Karachi and 3 others 2007 CLC 1215; Mst. Farah Zahra v. Board of Governors of the Area Study Centre for Africa and North and South America, Quaid-i-Azam University, Islamabad through Chairman, Vice-Chancellor and another 2005 PLC (C.S.) 216; Commissioner of Income Tax Zone 8, Lahore v. Muhammad Shahbaz Khan 1996 PTD 1138; Cape Brandy Syndicate v. Inland Revenue Commissioner 1921 K.B. 69; Farooq Ahmed Siddiqi v. The Province of Sindh PLD 1996 Kar. 267; Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Iftikhar Hussain Shah v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2193; Sanofi Aventis Pakistan Limited and others v. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others PLD 2009 Kar. 69 and Zawar Petroleum v. O.G.D.C. and others 2003 YLR 1450 ref.

(e) Interpretation of statutes---

----Taxing statute---Court in case of a taxing statute had to look merely at what was clearly said; there was no room for any intendment; there was no equity about a tax; there was no presumption as to a tax; nothing was to be read in, nothing was to be implied and one could only look fairly at the language used.

Cape Brandy Syndicate v. Inland Revenue Commissioner 1921 K.B. 69 quoted.

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

----Arts. 148 & 149---West Pakistan Urban Immovable Property Tax Act (V of 1958), S.3---Levy of tax by Provincial Government---Scope of application of Arts.148 & 149 of the Constitution---Charge and recovery of property tax is in the exclusive domain of Provincial Legislature as the Constitution has provided full authority to all the Provinces to charge the same and to make laws and rules for the said charge and recovery---Provisions of Arts.148 & 149 of the Constitution have no bearing on unbridled rights of the Province for charging the property tax---Principles.

Iftikhar Hussain Shah v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2193; Sanofi Aventis Pakistan Limited and others v. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others PLD 2009 Kar. 69 ref.

Aitzaz Ahsan and Faisal Hassan Naqvi for Petitioner.

Ch. Rizwan Mushtaq, A.A.-G., Rana Amir Ahmed Khan, A.A.-G., M. Nawaz Waseer, Standing Counsel, Akram Ashraf Gondal, Director Excise, Lahore Region "A", Syed Riaz Hussain, Incharge, Legal Cell, Excise Department, Lahore for Respondents.

Date of hearing: 10th April, 2009.

CLC 2009 LAHORE HIGH COURT LAHORE 1415 #

2009 C L C 1415

[Lahore]

Before Ch. Naeem Masood, J

D.H.A. ESTATE AGENTS ASSOCIATION (REGISTERED) through President----Petitioner

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman and 2 others----Respondents

Writ Petition No.1434 of 2009, decided on 13th July, 2009.

Pakistan Telecommunication (Re-organisation) Ordinance (XVII of 1996)---

----Ss. 4, 5, 6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---UAN Tariff, fixation of---Powers and responsibilities of Pakistan Telecommunication Authority includes directions regarding fixation of reasonable UAN Tariff---In the present case Pakistan Telecommunication Authority had given directions to the Pakistan Telecommunication Company to review and rationalize the UAN Tariff which was not done---If Pakistan Telecommunication Company Limited was aggrieved of the directions of the said Authority on the subject, it could have resorted to the remedy provided under S.7, Pakistan Telecommunication (Re-organization) Ordinance, 1996---Things mandated under the law to be done in any particular way must be done in that way---Pakistan Telecommunication Company Limited was directed by High Court to implement the decision/directions issued by the Authority within a period of three months positively.

Tariq Masood for Petitioner.

Raja Abdul Razzaq, Dy. A.-G. for Respondents.

CLC 2009 LAHORE HIGH COURT LAHORE 1421 #

2009 C L C 1421

[Lahore]

Before Syed Hamid Ali Shah, J

MASJID AHL-E-HADEES through President and General Secretary----Petitioner

Versus

Mst. KARAM NOOR and others----Respondents

Civil Miscellaneous No.762/C of 2003 in Civil Revision No.242 of 1997, decided on 30th October, 2008.

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

----S. 12(2)---Application under S.12(2), C.P.C. with regard to sale of property which was gifted to mosque (through Anjuman) and was sold by Anjuman which was managing the mosque and its property---Anjuman had taken over the possession of the property after the death of donee/his wife and started recovering rent of the same---Nothing was available on record to show that appellants (Managing Committee of the mosque) had ever agitated or claimed the possession of the property in question at any forum---Applicants remained aloof while Anjuman kept on managing the affairs of the gifted property since 1937---Property in question was sold in the year 1940---Applicants had not explained the reasons for their inability to manage the property for such a considerable long time---Rights of the applicants in the suit property, if any, stood extinguished on the principle of waiver and estoppel.

(b) Islamic law---

----Wakf---Mutawalli, powers of---Scope---Mutawalli can sell the dedicated property, if such power was conferred upon him expressly---In the present case, the deed of Wakf expressly conferred power upon "M" (named trustee in the will) to sell or mortgage the Wakf property and the only condition which had been imposed in the will, was that sale proceeds will be utilized for the improvement and benefit of the mosque--"M" having died in the year 1938, power of sale or mortgage passed on the Mutawalli who succeeded him.

Mahomedan Law by Mulla para. 207 ref.

----Wakf---Mutawalli, appointment of---Principle---Office of Mutawalli cannot remain vacant, any other person can be appointed Mutawalli, if the incumbent had not appointed his successor in his life time---In the present case, neither the founder had nominated the successor of the Mutawalli (one mentioned) in the Wakf deed nor the named Mutawalli had nominated his successor---Anjuman, through its office-bearers, took over Mutawalliship of the Wakf property by congregation and such appointment was valid.

Mahomedan Law by D.F. Mulla. Para.203; Piran v. Abdool Karim (1891) 19 Cal. 203; Dilawar Hussain v. Subhan Khan (31) A.O. 375; Ghulam Muhammad v. Abdul Rashid (1933) 14 Lah. 558 and Khagum Khan v. Mohd. Ali Sahib (55) A. Andh. Pra. 209 ref.

(d) Islamic law---

----Wakf---Wakf by immemorial user---Effect---Utilization of the property donated for the purpose of a specific mosque through an Anjuman constituted a valid Wakf---Property utilized for religious purpose for the time immemorial can be treated as Wakf by user and court can infer that property used for the purpose of mosque etc. does not stand merely by leave and licence of the owner and is no longer property of the original owner---Dedicated property, in the present case, remained in the use of an Anjuman for the benefit of a specified mosque in the Wakf deed for the considerable long period being Wakf by user---Property remained validly in the hands of Anjuman, office-bearers of the Anjuman who found that mosque was in dilapidated condition, required construction, sold the Wakf property and utilized its sale proceeds on the reconstruction of the mosque---Sale transaction which was completed as far back as in the year 1940, could not be set at naught after 63 years---Managing Committee of the mosque/objectors to such sale had failed to justify unreasonable delay in taking action at the relevant time and had to establish that Managing Committee of the mosque for which the property was dedicated was the successor of Mutawalli appointed by the donor/founder---Sale proceeds were utilized in the year 1940 for the reconstruction of the mosque as was specified in the Wakf deed---Sale proceeds of Wakf property therefore, were utilized according to the desire of the founder as expressly mentioned in the Wakf deed.

Mahomedan Law Para.188 and Miru v. Ram Gopal AIR 1935 All. 891 ref.

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

----S. 12(2)-Application under S.12(2), C.P.C.---Maintainability---Validity of judgment or decree can be challenged through application under S.12(2), C.P.C. on the plea of fraud or misrepresentation---Said application lies in the cases, where the fraud has been practised or played on the court in obtaining the impugned judgment---Issue raised by the applicants, in the present case, was that the property was dedicated by the founder to mosque which had no concern with the Anjuman and its office-bearer had no power to sell the property of mosque---Validity---Judgment or decree could be assailed invoking provisions of S.12(2), C.P.C., if same had been obtained by practising fraud or misrepresentation in the course of proceedings---Issue or dispute as in the present case, which was outside the proceedings and was not considered remotely in the impugned judgment, decree or order, could not be raised through invoking the provisions of S.12(2), C.P.C.

Sardar Muhammad Ghazi for Petitioner.

Nasir Saeed Sh. for Respondents.

Dates of hearing: 17th, 20th, 23rd and 30th October, 2008.

CLC 2009 LAHORE HIGH COURT LAHORE 1443 #

2009 C L C 1443

[Lahore]

Before Mian Saqib Nisar, J

Mst. MARYAM MASOOD---Petitioner

Versus

MUGHISUDDIN MIRZA and 2 others---Respondents

Writ Petition No.9008 of 2008, decided on 24th September, 2009.

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

----S. 25---Custody of minor and visitation schedule of minor with the parents---Pivotal considerations for settlement of the issues expounded.

Cases pertaining to custody/visitation issues of the minors are not ordinary cases like the breach and enforcement of other civil rights/obligations, such as the property disputes etc. These cases have their own dimensions, repercussions and consequences, founded upon the human emotions and the sentiments. The resolution and adjudication of this special kind of matters, therefore, should be conceived considered and settled in a different perspective and context, which obviously revolves around the welfare of the minor, but at the same time the natural feelings of the parents cannot be overlooked and ignored; if the parents mean something great for a child, the child may also mean the whole world for the parents. In such cases therefore, (when the lis is between the parents), there are three main characters of the scenario, a mother, a father and a child and in certain cases the brothers and sisters of the minor, they are all the stakeholders and the emotions and feelings of every one of them should be kept into view while deciding the noted issue, besides the personal law of the minor and the rule about his welfare as mentioned earlier which should be of pivotal consideration. All these putting together contemplate that regarding the visitation schedule neither the mother should be altogether deprived of the complete custody if she has the lawful custody of the minor (until her right of custody terminates on account of some courts' order or otherwise) nor the father should be deterred and prevented to meet and see his own child with whom in the normal situation, he shall have a free access and interaction, and could shower his love and affection, if the relation between the parents was normal; this also is true position vice versa. The third important character is the child himself, who under the law of nature should have the privilege of the love and affection of both the parents, which is one of the greatest blessings of the God Almighty, but if for certain reasons, the parents on account of their discord and disparity have fallen apart, the child should not be deprived of having the maximum of what he/she could achieve from either of the parents. And it does not behave of the adversary parties, who may even have hatred towards each other to claim, exclusive possessory right over the child to the exclusion of the other, as one could demand in the matter of the property dispute etc. Besides, it may be clearly understood that the father is the natural and legal guardian and under the Islamic Personal Law, the right of mother to "Hizanat", in case of a male child, terminates around the age of seven years, (this observation, in no manner, shall be construed of causing any prejudice to either party on the issue of minor's custody), which has nexus and must be kept into view while considering the question of visitation. The father, once the child has passed the age of seven years, must have maximum interaction with the minor even if the custody is with the mother, but this again should be subject to the rule of welfare of the minor; if for any reason it shall be against the noted principle, the court should either restrict the visitation or even can decline. But if it is otherwise, to prevent the minor from meeting with his father may cause an estrangement, prejudices, psychological intricacies and cobwebs in the mind of the child, which may ultimately prove to be a pivotal vice and a shortcoming in the growth of his personality on the count that he, at the relevant time, could not get sufficient love, affection and company of his father, which a normal child would enjoy. It is a matter of concern that it is quite unnatural rather harsh and coercive to hold that though the father is the legal and natural guardian of the minor and has the right of his supervision under the Islamic law as well, yet has to wait for a week, a fortnight or a month or even more than that in certain cases, to meet his son for the reason that the custody under the court's order or otherwise is with the mother or the matter is sub judice. This all as mentioned is true for the mothers as well, who are the de fecto guardians of their children, keeping the child in their womb for 9 months and undergoing the labour pains, the rigour of feeding, nurture and raising them; a child is a part of their flesh and it is for this reason, why in Islam the Paradise is said to be underneath the mother's feet. One is really shocked, dismayed, disappointed and disgusted to see that in the Family/Guardian Courts the parents waiting to meet their own children, which opportunity they might be having after weeks or month and may only last for not more than an hour or so. The food, clothes, sweets and toys brought by them are sometime not accepted or are thrown away by the child, because he may have the instruction not to take those by the one from whose custody he is brought, coupled with the staring of the adversary party may also spoil the pleasure of such a short meeting. The Court should be liberal 'in chalking out the visitation schedule of the minor with the parents, obviously keeping in view his/her welfare. And in the instant case, only two factors have been indicated against the above principle. Firstly that there is a stepmother in the house and secondly there is no enough accommodation enabling the child to study and/or on account of his night custody with the father or full 10 days visitation, his tuitions/study shall suffer.

Stepmother is not always a lady Macbeth or witch and it cannot be presumed in law that she always shall have dislike, hatred towards, and shall be disaffectionate to the minor, until and unless there is a strong proof in this regard.?

It shall be against the welfare of the minor, if he is kept away from the father, because besides the love and affection from which he shall be deprived, he may develop an estrangement, which would not be in any way in his best interest.?

Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others 2000 SCMR 707; Altaf Akhtar Alvi v. Mst. Sadaf Ara and others 2008 SCMR 527; Mst. Zahid Kiani and another v. Capt. (Retd.) Shahid Ali Khan 1993 SCMR 2303 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 ref.

Ch. Riyasat Ali and Ch. Muhammad Khan Saikhu for Petitioner.

Mian Abdul Qaddous and Mahmood Tahir Ch. for Respondent No.1.

Northern Areas Chief Court

CLC 2009 Northern Areas Chief Court 46 #

2009 C L C 46

[Northern Areas Chief Court]

Before Muzaffar Ali, J

GOVERNMENT OF PAKISTAN through Chief Secretary, N.As., Gilgit and 4 others----Appellants

Versus

MUHAMMAD YOUNUS and 2 others----Respondents

C.S.A. No.8 of 2005, decided on 10th May, 2008.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XIV, Rr.1, 2 & O.XV, R.3---Suit for declaration and perpetual injunction---Deciding case on documentary evidence without recording oral evidence---Trial Court, after framing issues, proceeded to decide the suit on documentary evidence produced by both the parties, holding that documentary evidence produced by the parties was sufficient to dispose of all the issues and that it was not necessary to record oral evidence in the case and Trial Court proceeded with the case under O.XV, R.3, C.P.C. and decreed the same---Appellate Court upheld judgment and decree of the Trial Court---Validity---Order XV, R.3, C.P.C. would not be applicable wherein a case either documentary or oral evidence was required to be led---Powers under O.XV, R.3, C.P.C. were available to determine an issue or issues which were purely relating to law and were sufficient for disposal of the case finally---Trial Court, in circumstances, was not justified to invoke O.XV, R.3, C.P.C. for depriving the parties from adducing their oral evidence in the case, when both issues of law and facts were involved in the case---No provision existed in C.P.C. which could empower a Judge to deprive a party from adducing oral evidence in exercise of his discretionary jurisdiction, unless party himself would undertake not to adduce oral evidence and abandon the right--Order passed by the Trial Court being devoid of sanction from any provision of law, same was void without jurisdiction and when said initial order was void and without' jurisdiction, then subsequent orders in sequence or consequential, would also have no force of law and would be considered to be void and without jurisdiction---Appellate Court below having not taken notice of void order passed by the Trial Court, concurrent judgments and decrees passed by the Trial Court and Appellate Court below being void and without jurisdiction, were liable to be set aside---Impugned judgments and decrees were set aside and case was remanded to the Trial Court to give chance to the parties to adduce oral evidence after framing more issues and to decide case afresh according to law.

PLD 1964 SC 101 ref.

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

----O. XIV, Rr.1, 2 & O.XV, R.3---Framing and deciding issues---Types of issues---Types of issues which could arise in a case from the pleadings were issues of law, the issues for proving of which no evidence, either oral or documentary was required; issues of mixed question of law and facts, adducing of evidence in such issues was required to prove the factual aspect of the issues and issues of fact, issues arising out of factual controversy between the parties, as evident from the perusal of pleadings and whole of the issues were required to be proved through adducing evidence---Legal issues which would go to the root of the subject-matter of suit and did not involve question of fact should be decided first in order to dispose of the whole cause; that in no manner would amount to piecemeal decision---There could be issues in respect of pecuniary or territorial jurisdiction of the court seized of such matter or an issue pertaining to limitation or there could be issue relating to the legal competency of the suit---Powers under O.XV, R.3, C.P.C. could be exercised by a court only when an issue of pure law would arise as preliminary issue in a case for proving of which no evidence was required and the issue touched the root of a case and the order of the court did not amount to piece-meal decision and keeping in view the criteria laid down by the superior judiciary.

Miss Benazir Bhutto v. News Publications (Pvt.) Ltd. and 4 others 2000 CLC 904; 1990 MLD 2049; 1991 MLD 1017 and PLD 1998 SC 823 rel.

Ghulam Abbas Chopa Standing A.-G. for Appellants.

Wazir Shakeel Ahmed for Respondents.

Date of hearing: 10th May, 2008.

CLC 2009 Northern Areas Chief Court 72 #

2009 C L C 72

[Northern Areas Chief Court]

Before Raja Jalal-ud-Din, C.J. and Muzaffar Ali, J

Mir GHULAM SARWAR and 2 others----Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, N.As. Gilgit and 4 others----Respondents

Writ Petition No.15 of 2007, decided on 28th May, 2008.

Northern Areas Council Legal Framework Order, 1994---

----Ss. 19-A & 23---Northern Areas Local Government Order, 1979, S.53(3), Sched VI---General Clauses Act (X of 1897), S.3(37b)---Writ petition---Notification, challenge to---Valid notification---Ingredients---Writ petition had been filed to call into question the vires of notification whereby 2.5% development charges in addition to the registration fee had been imposed on transfer of immovable property on the basis of gift deeds---Petitioners assailed the notification contending that same was ultra vires, ab initio void, mala fide and against their fundamental rights---Validity---For a valid notification two points were essential to the effect that authority issuing the notification must have power to issue notification under Act, Ordinance, Regulation, Rule, Order or by law within the meaning of S.3(37b) of General Clauses Act, 1897 and that notification must be published in the official Gazette---Impugned notification lacked both said ingredients---Right of property of a citizen would come within the ambit of fundamental rights and no tax or any other impediment could be imposed on it except through due course of law, rules and regulations and by the authority competent to levy the tax etc.---Impugned notification having been proved to be void and without lawful authority; same was in deviation of fundamental rights of the petitioners as well as the public-at-large---Notification in question was set-aside, declaring same void ab initio, ultra vires and against fundamental rights of the petitioners and public at large and that the judgment would have effect as judgment in rem.

PLD 1978 SC 193 ref.

Syed Jaffar Shah, Manzoor Ahmed and Javaid for Petitioners.

Asstt. A.-G. for Respondents.

Date of hearing: 28th May, 2008.

CLC 2009 Northern Areas Chief Court 105 #

2009 C L C 105

[Northern Areas Chief Court]

Before Muzaffar Ali, J

NISAR HUSSAIN through Sajjad Ali Khan----Petitioner

Versus

MUHAMMAD through Ali Joo----Respondent

Civil Revision No.12 of 2004, decided on 14th June, 2006.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), Ss.12(2) & 115---Suit for pre-emption---Ex-parse decree---Setting aside of---Defendant having sold suit land to another person, plaintiff being real uncle of defendant/vendor. filed suit for pre-emption against defendants---Suit having been decreed ex parte, defendant filed application for setting aside such decree, on which same was set aside subject to payment of Rs.500 as costs, but defendant having failed to pay the costs and remaining absent, ex parte decree was maintained---Later on two other persons filed petition under S.12(2), C.P.C. against ex-parte decree before the Trial Court which was dismissed as not maintainable---Defendants filed revision against judgment of the Trial Court before Appellate Court and Appellate Court not only set aside ex parse decree, but also dismissed pre-emption suit---Validity---Appellate Court was not justified in law to dismiss pre-emption suit---Only course for the Appellate Court was to set aside ex parte decree when it accepted the revision petition filed by the defendants---Trial Court also took the application filed under S.12(2), C.P.C. lightly and its judgment was confused and was not getting any support from the record---Case was remitted to the Trial Court by setting aside the judgment passed by the Appellate Court to the extent of dismissal of pre-emption suit and also the judgment passed by the Trial Court.

Muhammad Issa and Ali Khan for Petitioner.

Ghulam Nabi and Akhon Muhammad Ali for Respondents.

Date of hearing: 14th June, 2006.

CLC 2009 Northern Areas Chief Court 219 #

2009 C L C 219

[Northern Areas Chief Court]

Before Raja Jalal-ud-Din, Chairman and Muzaffar Ali, Member

Haji GHULAM HUSSAIN----Appellant

Versus

Haji QASIM----Respondent

C.F.A. No.2 of 2001, decided on 22nd October, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O.VIII, R.6 & O.XIV, R.1(5)---Suit for recovery of amount---Set off---Failure to frame proper issues---Plaintiff filed suit for recovery of amount and defendant also filed application claiming set off---Trial Court framed issues in the light of pleadings which the parties tried to prove and rebut through oral and documentary evidence --Trial Court finally concluded that the suit filed by the plaintiff was liable to be dismissed as time barred, while application for set off filed by the defendant, was dismissed---Plaintiff filed first appeal against judgment of the . Trial Court---Validity--Pleadings and impugned judgment, pertaining to the facts of the case, had clearly transpired that the Trial Court had failed to frame proper issues in the case---Various controversies between the parties, laid down in their pleadings had been overlooked and issues had not been framed to determine the real controversy between the parties---Trial Court, thereby had not complied with R.1(5) of O.XIV, C.P.C. which was mandatory in its nature---Framing of issues was most important stage and any negligence or oversight of real controversies, between the parties might cause suffering to parties from inordinate delays and also would cause monetary losses to the litigants---Impugned decree passed by the Trial Court was set aside and case was remanded to the Trial Court to frame proper issues after revisiting into the pleadings and adjudicate the matter afresh.

Munir Ahmed for Appellant.

Muhammad Issa and Shoukat Ali for Respondent.

Date of hearing: 22nd August, 2007.

CLC 2009 NORTHERN AREAS CHIEF COURT 790 #

2009 C L C 790

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

PAK CHINA CONSTRUCTIONS AND MATERIAL COMPANY (PVT.) LTD. (PCCMC) through Chief Executive----Appellant

Versus

CHINA LIAONING INTERNATIONAL ECONOMICAL AND TECHNICAL COOPERATON (GROUP) CORPORATION LTD. (CLIC) through Project Manager and Director and another----Respondents

C.F.A. No.24 of 2008, decided on 5th November, 2008.

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

----O. VII, R.11---Rejection of plaint---Principles---Points to be considered---Order VII, R.11, C.P.C. had enabled the court to reject the plaint, if the Judge, after going through the averments of the plaint, would come to the conclusion that same did not disclose any cause of action; or that the claim was undervalued and the plaintiff failed to correct the valuation within time fixed by the court; or that the claim was properly valued, but the plaint was written upon paper insufficiently stamped and despite the orders by the court to supply requisite stamp paper within the fixed time, failed to do so; or that the suit seemed to be barred by any law from the perusal of the statement in the plaint---Rejection order under O.VII, R.11, C.P.C. would not preclude the claim and fresh plaint could be filed after curing the defects stated in the rejection order; while dismissal of the suit on merits would bar fresh or second suit on the same cause and claim---Only averments of the plaint were to be looked into to ascertain whether the plaint lacked the points stated in O.VII, R.11, C.P.C. and no insufficiency or sufficiency of evidence required to be looked, into; and even point taken in defence were not required to be considered.

PLD 1989 Lah. 320; 1992 MLD 474; 2007 CLC 163; 2008 CLC 1409; 2000 MLD 251(2); 2004 MLD 1349 and 2008 CLC 1409 ref.

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

----O. VII, R.11(a)(d)---Interpretation of O.VII, R.11(a)(d)---Rejection of plaint---"Cause of action" and "statement of the plaint"---Meanings---Cause of action would mean bundle of facts which had been claimed by the plaintiff in the plaint and non-disclosure of cause of action in O. VII, R.11, C.P.C. would construe; if after perusal of the averments of the plaint and plaint only the court would come to the conclusion; that the plaintiff had failed to disclose any actionable cause against the defendant, then the court would be within its jurisdiction to reject the plaint; and court could travel within the four corners of the plaint and not beyond that, meaning thereby that the court could not reject the plaint on the ground that the plaintiff had not attached or attached insufficient evidence with the plaint to prove the facts which construed cause of action---Words "where the suit appears from the statement in the plaint to be barred by any law" in clause (d) of O. VII, R.11, C.P.C., connoted that to ascertain whether the suit was barred by any law, the court was to look into the statement of the plaint only and from "the statement of the plaint" if it seemed to the court that some inquiry or evidence was needed to come to conclusion that the suit was barred by any law, then the court had no jurisdiction to reject the plaint under O.VII, R.11, C.P.C.---Such issues were required to be framed and proof or rebuttal of the same needed to adduce evidence, or to go into detailed enquiry by ensuing further trial---Impugned rejection order passed by the Trial Court was set aside and the suit was remitted to the Trial Court to try the same and dispose of on merits.

Amjad Hussain for Appellant.

Shahzad Saleem Khawaja for Respondent No.1.

Yawar Abbas for Respondent No.2.

Date of hearing: 20th October, 2008.

CLC 2009 NORTHERN AREAS CHIEF COURT 809 #

2009 C L C 809

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

Haji GHULAM RABBANI----Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, N.As., Gilgit and 5 others----Respondents

Writ Petitions Nos.74 and 75 of 2008, decided on 22nd December, 2008.

Contract Act (IX of 1872)---

----Ss. 64, 65 & 75---Northern Areas Governance Order, 1994, Art.45---Writ petition---Rescission of contract---Authorities awarded contract of metalling of 17 Km road to the petitioners and when the petitioners completed metalling of 4 Km road, authorities issued cancellation of agreement and contract awarded to the petitioners was rescinded without issuance of show-cause notice and without hearing the petitioners---Validity---No one could be condemned unheard even if no provision had been incorporated in rules and bye-laws---In the present case the contract had categorically mentioned serving of notice to contractors before rescinding the contract---Orders issued by authorities to rescind the contract, could not stand in field, as same were without jurisdiction and ultra vires---Authorities having taken action against the petitioners without fulfilling the basic formalities of natural justice and contract agreement too, rescission order, was set aside directing that in future, if any action was taken, that must be taken by complying the formalities.

PLD 2006 Lah. 84; 2003 YLR 1501; 2004 PCr.LJ 356; 2004 MLD 1310; 2000 SCMR 718; 1994 SCMR 2287; PLD 2002 SC 1068; NLR 1987 Civil (sic); 2001 MLD 1477; 2004 MLD 597 and PLD (sic) Kar. 185 ref.

Syed Jaffar Shah for Petitioner.

Advocate-General for Respondents.

Date of hearing: 22nd December, 2008.

CLC 2009 NORTHERN AREAS CHIEF COURT 822 #

2009 C L C 822

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

CIVIL AVIATION AUTHORITY, JINNAH INTERNATIONAL AIRPORT KARACHI through Director-General C.A.A. and 2 others----Appellants

Versus

TALIB HUSSAIN through Legal Heirs through Attorney----Respondents

C.F.As. Nos.10 and 11 of 2006, decided on 19th November, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), Ss.47(2) & 96---Suit for declaration---Execution of decree---Plaintiff, who served the authorities, when reached at the age of his pension, they refused to pay pension benefits to him considering his job not to be a permanent one and pensionable---Plaintiff being dissatisfied with the plea of the authorities in refusing his right of pensionary benefits, filed suit before civil court, which was decreed---Decree being of declaratory nature, plaintiff feeling same to be non-executable in the eyes of law, approached to the Executing Court taking resort to the S.47(2), C.P.C. with contention to treat the execution application to be suit---Executing Court treated the application as suit and passed the impugned decree in favour of the plaintiff against the authorities after adopting the procedure provided for and passed the impugned decree which was impugned in first appeal---Validity---Appeal filed by the authorities was based on various grounds of attack, but abandoning all the grounds, they objected on the point of interest imposed on them by the court, with the contention that authorities were ready to pay the pension amount to the plaintiff, but imposition of interest upon the same was illegal and without jurisdiction as District Judge had taken cognizance of the matter as Appellate Court in execution proceedings, he could not travel beyond the decree passed, but had exercised jurisdiction not vested with him---Validity---Interest had not been imposed by Executing Court or Appellate Court in execution proceedings, but had been fixed in general jurisdiction---After a long time of litigation, authorities had shown their willingness to pay the pension amount alone, while with the passage of time, the value of currency of the country had been devalued to the extreme point of its decreasing---Version of the authorities being against equity and natural justice, was discarded---Impugned decree passed by the Trial Court/Executing Court was maintained.

Muhammad Issa for Appellants.

Manzoor Ahmed for Respondent.

2009 C L C 1464

[Northern Areas Chief Court]

Before Muzaffar Ali, J

ALI MUHAMMAD----Petitioner

Versus

ASSISTANT COLLECTOR 1ST GRADE/RECOVERY MAGISTRATE, GILGIT and 4 others----Respondents

Civil Revision No.15 of 2007, decided on 25th May, 2009.

(a) Government Dues Recovery Ordinance (XXII of 1962)---

----S. 3---West Pakistan Land Revenue Act (XVII of 1967), Ss.86, 87 & 114---Specific Relief Act (I of 1877), Ss.42 & 54---Recovery of Government dues---Suit for declaration and injunction---Plaintiff, who was Government Contractor having been declared liable for the recovery of suit amount, Deputy Commissioner directed Assistant Collector (Recovery) to recover the suit amount from him as arrears of land revenue---Suit filed by the plaintiff against said method of recovery was dismissed by the Trial Court and Appellate Court upheld judgment of the Trial Court---Validity---Both courts below had failed to determine the real and core issues involved in the case and had taken cognizance to decide the matter on merits leaving aside the issues which called into question, that the legal sanction behind the procedure adopted and action taken by the authorities to recover the alleged dues from the plaintiff; and whether Deputy Commissioner was competent to simply direct Assistant Commissioner (Recovery) to recover the alleged due amount from the plaintiff as if same was arrears of land revenue---Under provisions of S.3 of Government Dues Recovery Ordinance, 1962 any dues recoverable by Government though were recoverable from the defaulters as if such dues were arrears of land revenue, but after publication of the Notification by the Government declaring the dues as if same were recoverable as arrears of land revenue---No officer or authority other than Provincial Government, was competent to declare any Government dues as if same were recoverable as arrears of land revenue---In the present case Deputy Commissioner, who had issued directives to the Assistant Collector, nowhere figured in the relevant law; his directives, in circumstances, were without jurisdiction and void ab initio---Courts below had committed gross negligence and had shown their ignorance of law by not taking judicial notice of said illegal and without jurisdiction action taken by the administrative authorities---Concurrent findings of the courts below and the proceedings before the Assistant Collector were declared to be void and were set aside.

(b) Administration of justice---

----Courts of law were the only resort through which a helpless individual, deprived of his rights by the administrative authorities because of their authoritative and above law attitude, could come back to state of hope, when the judiciary prevented the administrative officers from taking the law in their hands and lead them to take course of law in its true sense.

Syed Jaffar Shah for Petitioner.

Assistant Advocate-General and Latif Shah for Respondents.

Date of hearing: 25th May, 2009.

Peshawar High Court

CLC 2009 PESHAWAR HIGH COURT 28 #

2009 C L C 28

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

WAQAR HUSSAIN----Petitioner

Versus

MUHAMMAD TARIQ----Respondent

Civil Petition No.421 of 2006, decided on 10th September, 2008.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Specific Relief Act (I of 1877), S.8---Suit for possession---Production of additional evidence---Plaintiff who claimed to be landlord of suit house filed suit for possession of the house---Defendant in his written statement denied relationship of landlord and tenant between the parties and claimed that he had purchased suit house vide unregistered sale-deed---Suit filed by the plaintiff had been decreed---Application by defendant for production of additional evidence had also been dismissed by the Appellate Court---Validity---Alleged unregistered sale-deed sought to be produced in additional evidence, by defendant was not produced before the Trial Court nor was relied upon by him---Where the document was neither tendered nor referred to at the trial, Rule 27 of Order XLI, C.P.C. would not apply at appeal stage---Under the said Rule a document could be permitted for placing on record when the court itself considered it necessary for just decision of the appeal---When the available material on record was not enough to pronounce judgment, then additional evidence could be allowed suo motu or on the request of a party---In the present case defendant moved the court for taking additional evidence so that he could amend his written statement, correct the errors, omissions and introduce quite a new case contradictory to the one previously set up at the trial---Party to the appeal could ask the court for examination or appreciation of evidence already on record, but Rule 27 of Order XLI, C.P.C. did not permit a party to apply for additional evidence, the discovery of which was made at a later stage and was not relied upon or referred to at the initial stage in the pleadings or evidence before the Trial Court---Appellate Court did not feel difficulty in arriving at correct conclusion of the matter on the basis of evidence already available on record---Court of appeal in the present case, did not need production of additional evidence or document, particularly of the type which defendant intended to produce---Impugned order of the Appellate Court, which was well-founded, based on proper reasoning and correct exposition of law, was not open to any exception.

1988 SCMR 1653 and 1931 AIR 143 ref.

Ala Khan for Petitioner.

Qazi Muhammad Ghazanfar for Respondent.

Date of hearing: 10th September, 2008.

CLC 2009 PESHAWAR HIGH COURT 40 #

2009 C L C 40

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ

Mian AWDAL----Petitioner

Versus

MUHAMMD JAN KHAN and 4 others----Respondents

Writ Petition No.1106 of 2008, decided on 12th August, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.VI, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for permanent injunction---Amendment in plaint---Application for amendment of plaint, submitted by the plaintiff had concurrently been rejected by the Trial Court and the Appellate Court---Validity---Suit was filed by the plaintiff eight years before and during such long period, plaintiff did not bother to sue for the correction of number Khasra of suit land---Interim order of amendment having been impugned before the High Court in constitutional petition, said petition was not competent---Even otherwise amendment at a belated stage, could not be granted---Orders impugned herein were strictly in accordance with law, based on equity and justice, which could not be interfered with by the High Court in its extra-ordinary constitutional jurisdiction.

Yousaf Khan Yousafzai for Petitioner.

CLC 2009 PESHAWAR HIGH COURT 65 #

2009 C L C 65

[Peshawar]

Before Muhammad Alam Khan and Said Maroof Khan, JJ

Sayed HAMID SHAH----Petitioner

Versus

ADNAN KHAN and 12 others----Respondents

Writ Petition No.237 of 2008, decided on 6th March, 2008.

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

----Ss. 52, 78, 81, 83 & 103(aa)---Constitution of Pakistan (1973), Arts.225 & 199---Constitutional petition---Competency---Recounting of votes---Allegation of using force, coercion and pressurizing the Presiding Officer---Petitioner had prayed for issuance of a direction to authorities that they should recount the votes---Petitioner had alleged that respondent used force and coercion and pressurized the Presiding Officer to show favour to him and consequently voters were not allowed to use their right of votes at various polling stations; that lady voters were not allowed to cast their votes and that mass rigging had been committed in the process of election---Validity---Allegations levelled by the petitioner, were questions which pertained to factual controversy and same would require recording of evidence, which could not be done by the High Court in its extraordinary constitutional jurisdiction---Election Tribunal constituted for adjudication of election disputes, had exclusive jurisdiction in the matter---Factual controversy being involved in the case and alternate, adequate and efficacious remedy was available to the petitioner for the redressal of his grievances before the Election Tribunal, he could not question the vires of the election or dispute with respect to the election in the extraordinary constitutional jurisdiction of the High Court.

Election Commission of Pakistan through its Secretary v. Javed Hashmi PLD 1989 SC 396 rel.

Zafarullah Khan and Muhammad Arif Khan for Petitioner.

Qazi Muhammad Anwar for Respondent No.1.

Syed Zafar Abbas Zaidi for Respondent No.2.

CLC 2009 PESHAWAR HIGH COURT 79 #

2009 C L C 79

[Peshawar]

Before Muhammad Alam Khan, J

CHAIRMAN WAPDA, LAHORE and 4 others----Appellants

Versus

MUHAMMAD MUSHTAQ KHAN and 2 others----Respondents

R.F.A. No.7 of 2006, decided on 17th April, 2008.

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

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Award of Collector---Reference to Referee Court---Appeal---Landowners, whose land was acquired being not satisfied with award/the' assessment of Land Acquisition Collector in respect of compensation of acquired land, filed reference in Referee Court---Said court came to the conclusion that acquired land was of potential value and that Land Acquisition Collector had granted very meagre compensation; and that he had under-valued the expropriated land-Reference petition filed by the landowners having been accepted by the Referee Court, Authorities had filed appeal against the judgment of the Referee Court whereby amount of compensation was enhanced---By same award, land of another landowner was acquired from the same Khata and from the same Chunk of land against which reference was filed and Referee Court enhanced the compensation from Rs.4,000 to Rs.8,000 per Kanal as was enhanced by the Referee Court in the case and appeal filed by Acquiring Department and Land Acquisition Collector against said enhancement, was dismissed---When the land was acquired by same award which had earlier been maintained by the High Court, judgment and decree of the Referee Court, which was perfectly sound, could not be interfered with in appeal by the High Court---Judgment and decree of the Trial Court/Referee Court being perfectly sound, according to law and established principles relating to the appreciation of evidence on record, called for no interference.

M.C. Gujrat and others v. Province of Punjab and others 1994 CLC 126 rel.

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

----Ss. 4 & 23---Acquisition of land---Determination of amount of compensation---Point to be considered---Landowners whose land was acquired, should be paid the compensation and not the price---Court had to consider the location of the land, the high potential value and its fitness for abadi---One year average was not the true criterion for fixation of the compensation---Land could be recorded in the revenue record as, nehri, banjer qadeem or even barren, but its future use to be put to building sites, could not be ruled out---Price of a willing purchaser and willing seller in that eventuality had to be awarded to the expropriated landowner.

Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870 rel.

S. Abid Hussain Shah for Appellant.

Gohar Zaman Patwari.

Muhammad Jamal Special Attorney for Respondents.

Date of hearing: 17th April, 2008.

CLC 2009 PESHAWAR HIGH COURT 92 #

2009 C L C 92

[Peshawar]

Before Syed Yahya Zahid Gillani, J

ZEENAT BEGUM and 3 others----Petitioners

Versus

MUHAMMAD YAQOOB KHAN and 3 others----Respondents

Civil Revision No.498 of 2008, decided on 15th September, 2008.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction with an application for temporary injunction---Both the plaintiffs and defendants were co-sharers in the suit land---Defendants were allegedly constructing shops on a valuable portion of suit land, the plaintiffs instituted a suit for permanent injunction to restrain the defendants from altering the nature of the suit land till its official partition---Along with suit an application for temporary injunction was also filed by the plaintiffs---Both courts below refused to grant temporary injunction to the plaintiffs in view of the undertaking given by the defendants that construction could be considered at their own risk and cost---Validity---Defendants had specifically stated in their written statement that they were absolute owners in possession of the suit land; and that there was no question of its partition, but at the same time, their suit for partition in the revenue court was pending---Prima facie, it raised question about the intention of the defendants to perpetuate their possession on a valuable portion of joint land by constructing shops which apparently had commercial potential value---Undertaking submitted by the defendants in the Trial Court had revealed that it had been submitted in haste---Said document had not been dated by the scribe at all---Although it had been treated as an affidavit, but neither its form was of an affidavit nor it had been duly attested as an affidavit---Both courts below had concurrently erred in placing extraordinary reliance on the incomplete and unauthenticated affidavit for bypassing the general principle that normally "a co-sharer could not be allowed to alter the nature of joint land unless it was partitioned"---Impugned concurrent orders of the courts below being materially irregular due to the said default, were set aside---Application for temporary injunction, would be deemed pending for re-decision by the Trial Court strictly in accordance with law.

Gul Sadbar Khan and S.M. Attique Shah for Petitioners.

Abdul Sattar Khan for Respondents.

Date of hearing: 15th September, 2008.

2009 C L C 369

[Peshawar]

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

Mst. GOHAR BEGUM----Petitioner

Versus

ALTAF AHMAD and 2 others----Respondents

Writ Petition No.59 of 2008, decided on 30th April, 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---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Rejection of plaint---Defendants, during the proceedings of the suit filed application for rejection of plaint on the ground that suit was filed much after the time prescribed for the purpose---Trial Court dismissed said application, but on filing revision by the defendants against the judgment of the Trial Court, Appellate Court, setting aside judgment of the Trial Court, rejected plaint---Validity---Plaintiff did not mention the time of performance of Talb-i-Muwathibat in her plaint---High Court considered it appropriate not to interfere in the impugned judgment---If in a plaint, time, date and place of performance of Talb-i-Muwathibat was not indicated, such omission would be fatal for a suit seeking enforcement of right of pre-emption--Said lacuna in the plaint was conceded by the counsel for the plaintiff---Constitutional petition, in circumstances did not merit admission and was dismissed.

2000 SCMR 1305; 2004 SCMR 1941; 2004 CLC 284; 2001 SCMR 1591; 2004 SCMR 535 and PLD 2007 SC 302 ref.

Muhammad Siyar for Petitioner.

CLC 2009 PESHAWAR HIGH COURT 377 #

2009 C L C 377

[Peshawar]

Before Muhammad Alam Khan, J

Dr. TAJ MALOOK----Petitioner

Versus

Malik NIAZ KHAN and another----Respondents

Civil Revision No.137 of 2007, decided on 15th February, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2(3) & 2-B---Interim injunction, grant of--Violation of injunction---Application for contempt of court---Trial Court granted ad interim injunction restraining the defendants from alienating the suit land---Plaintiff, after about 8 months from grant of interim injunction, submitted an application under O.XXXIX, R.2(3) for initiating contempt of court proceedings against defendants to the effect that in spite of the prohibitory orders the defendants had violated the order of the court and had raised construction over the land in dispute---Trial Court came to the conclusion that the plaintiff had failed to prove any violation of the injunctive orders and dismissed the application of the plaintiff---Appellate Court maintained orders passed by the Trial Court---Validity---Perusal of record had revealed that no violation of the said order had been proved on the data available on record---Statutory period of injunctive order was six months according to R.2-B of O.XXXIX, C.P.C.---Contempt application was filed by the petitioner after about 8 months from passing of said order; in circumstances, neither injunctive order was existing at the time of moving the contempt of court application by the petitioner nor the alleged violation had been proved on the record of the case---Orders of the two courts below were just, based on equity and were in consonance with the established principles of appreciation of evidence which called for no interference.

Syed M. Shah Jehan Shah and others v. Fazale Rehman and 45 others 1996 CLC 1572 and Gul Haider v. Dr. Asad Zia 2003 YLR 913 rel.

Petitioner in person.

CLC 2009 PESHAWAR HIGH COURT 390 #

2009 C L C 390

[Peshawar]

Before Muhammad Alam Khan, J

Mst. REHMAT BIBI through L.Rs. and others----Petitioners

Versus

Haji ALLAH DEWAYA and 2 others----Respondents

Civil Revisions Nos.86 and 87 of 2004, decided on 12th December, 2008.

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

----Arts. 74 & 78---Admissibility of photo copy of document in evidence---When photo copy of document was admitted in evidence without objection from the other side and was placed on record no objection could be raised to its admissibility at a later stage.

National Bank of Pakistan, Bannu Branch through its Manager v. Syed Mir 1987 CLC 1103 rel.

(b) Registration Act (XVI of 1908)---

----S. 17---Islamic law---Registration of Nikahnama---Dower deed through which property either cash or kind or in any shape of immovable property given to wife in lieu of dower, was not compulsorily registrable.

Fazlur Rehman v. Mst. Sosan Jan and others 1989 SCMR 561; Inayat Ullah v. Mst. Parveen Akhtar 1989 SCMR 1871; Anwar Khan and 16 others v. Sahibzada and 3 others 1989 CLC 1327 and Muhammad Akram v. Farman Bibi PLD 1989 Lah. 200 rel.

---Marriage---Onus to prove divorce---Factum of marriage was admitted, onus to prove divorce, heavily lay on the party objecting the same.

Muhammad Mazhar Special Attorney for Petitioners.

Muhammad Ramzan, Attorney on pre-admission notice for Respondents.

Date of hearing: 12th February, 2008.

CLC 2009 PESHAWAR HIGH COURT 445 #

2009 C L C 445

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

ZAIN-UL-ABIDIN and others----Petitioners

Versus

MUHAMMAD ISHAQ and others----Respondents

Civil Revision No.292 of 2001, decided on 22nd December, 2008.

Islamic Law---

----Succession---Dispute regarding share in the legacy of common predecessor---No defence of adverse possession or limitation could be raised in such a dispute nor the female heir could be deprived of her due Shari share on the basis of gift deed whereby lesser share than her due share was accepted by the female heir.

PLD 1974 SC 207; 1975 SCMR 487; 2005 SCMR 1217; 1996 SCMR 901; 1983 SCMR 626; Abdul Hanan and 10 others v. Ahmad and 30 others 1998 SCMR 996 and Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394 ref.

Asghar Khan Kundi for Petitioners.

Abdul Sattar Khan for Respondents.

Date of hearing: 24th November, 2008.

2009 C L C 850

[Peshawar]

Before Jehan Zaib Rahim and Shahji Rahman Khan, JJ

WAZIRZADA----Petitioner

Versus

Mst. TAJ BIBI and others---Respondents

Writ Petition No.1992 of 2008, decided on 12th January, 2009.

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

---S. 5, Sched. & S.14---Constitution of Pakis tan (1973), Art.199---Constitutional jurisdiction---Suit for conjugal rights and for jactitation of marriage---Suit instituted by the petitioner/husband against respondent/ wife for conjugal rights was dismissed by the court of Illaqa Qazi/Civil Judge, whereas suit' filed by the respondent/wife filed against her husband, was decreed---Appellate Court affirmed judgment and decrees of the Illaqa Qazi/Civil Judge---Family Judge/Illaqa Qazi, after considering the material point involved in the case, dismissed the suit of the petitioner filed by him for conjugal rights and decreed the suit of respondent/wife filed for jactitation of marriage which was affirmed by the Appellate Court---Validity---Impugned judgments and decrees of both the courts below being free from any jurisdictional error, were not open to any interference in the exercise of extraordinary equitable discretionary constitutional jurisdiction of High Court.

Salam Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 12th January, 2009.

CLC 2009 PESHAWAR HIGH COURT 860 #

2009 C L C 860

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

Mst. SALIM-UN-NISA and 5 other----Petitioners

Versus

AZIZ and another----Respondents

Writ Petition No.302 of 2006, decided on 3rd February, 2009.

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

----Ss. 4 & 7---North-West Frontier Province Tenancy Act (XXV of 1950), S.56---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revisional powers of the Board of Revenue---Scope---Petitioners, who were landlords filed suit for produce of crops of Rabi and Kharif, praying for rent till decision of case against respondents/ tenants---Trial Court passed a decree of produce along with ejectment--Tenants, however were held entitled to Rs.71,920 as costs of improvement---Collector, appeal, upheld order of the Trial Court---Against order of Collector two appeals/revisions were filed before Revenue Appellate' Court, who accepted appeal/revision to the extent of cost of crops during pendency of suit and tenants were held entitled to Rs.71,920 as costs of improvement---Member Board of Revenue, on revision by the tenants, accepted the same and remanded the case to Revenue Appellate Court with direction to decide the case on merit in accordance with law---Counsel for the petitioners/landlords had contended that Board of Revenue did not possess the powers of revision under S.56 of North-West Frontier Province Tenancy Act, 1950---Validity---Section 4 of West Pakistan Board of Revenue Act, 1957 as well as the provisions of North-West Frontier Province Tenancy Act, 1950, had clearly established that the power of the Board of Revenue of superintendence, control and overseeing the functioning of all revenue officials and revenue courts, in the matter of land revenue and tenancy was well entrenched.

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

----Art. 199---Constitutional petition---Maintainability---Writ lay against the final adjudication---Remand order, did not finally decide the dispute, as the Authority that decided the case earlier had to re-decide it---Constitutional petition against remand order was not maintainable as the remand order passed in revision, being not a final order could not be interfered with in constitutional jurisdiction.

1991 SCMR 689 ref.

Bashir Mughal for Petitioner.

Farid Khan Swati for Respondent.

Date of hearing: 3rd February, 2009.

CLC 2009 PESHAWAR HIGH COURT 880 #

2009 C L C 880

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD AFZAL---Petitioner

Versus

ALLAH BAKHSH and 2 others----Respondents

Civil Revision No.293 of 2004, decided on 16th December, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit filed by the plaintiff having concurrently been dismissed by the Trial Court and Appellate Court, plaintiff had filed revision against said concurrent judgments---Sale transaction in respect of suit-land was incorporated in mutation and possession thereof was handed over to defendant/vendee and plaintiff had admitted that fact---Witness of the plaintiff had admitted the fact that the moment possession of suit-land was delivered to the defendant/vendee, he informed the plaintiff regarding the impugned sale and the factum of possession was duly entered in Khasra Girdawari in the capacity of vendee/purchaser--Plaintiff who was in the know of the transaction, had failed to perform the statutory demands in time and his right stood extinguished under S.13 of the North-West Frontier Province Pre-emption Act, 1987 - Record had revealed that the plaintiff while filing the suit had not mentioned the date, time, place and name of the informer in the plaint nor the same was proved in evidence---Date, time, place and name of the informer must be mentioned in the plaint specifically and should also be proved during evidence---Having not done so in the case the demands had not been complied with--Two courts below had recorded concurrent findings of fact---No misreading and non-reading had been pointed out by the counsel for the plaintiff so as to warrant interference by the High Court in its revisional jurisdiction --Revision petition was dismissed, in circumstances.

Kala Khan v. Ayub Khan 1992 MLD 536; Taj Malook. V. Mst. Zaitoon and others PLD 1994 SC 356; Amir Jan v. Ghulam Muhammad PLD 1997 SC 883; Din Muhammad v. Subedar M. Zaman 2001 SCMR 1952; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din, v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Nasrullah Khan for Petitioner.

Khuda Bakhsh Khan Baloch for Respondent.

Date of hearing: 15th December, 2008.

CLC 2009 PESHAWAR HIGH COURT 937 #

2009 C L C 937

[Peshawar]

Before Muhammad Alam Khan, J

PESCO through Chief Executive PESCO, Peshawar and 4 others----Petitioners

Versus

ASMATULLAH KHAN and 3 others----Respondents

Civil Revision No.289 of 2004, decided on 4th December, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff filed suit seeking declaration to the effect that he being consumer of electricity having not defaulted in payment of consumed energy, letting off defendants for two years during disconnection period, was illegal, against principle of natural justice, without notice; it was thus contended that impugned order which was passed at the back of the plaintiff was based on mala fide and was not binding on the plaintiff---Plaintiff had prayed for decree for permanent injunction restraining the defendant to recover the suit amount--Trial Court decreed suit of the plaintiff to the extent of Rs.55,089 pertaining to the period for which bill was sent during the disconnection of supply to the premises and same was declared as null and void---Plaintiff, however, was held liable to Rs.16,770 as arrears for actual consumed energy---Appeal filed against judgment and decree passed by the Trial Court, having been dismissed, the defendants had filed revision against concurrent judgments and decrees of the courts below---Disconnection of supply of the plaintiff was admitted; it was also admitted that meter along with all the material appliances were taken away by the defendant--Record had proved that electric supply of plaintiff remained disconnected for relevant two years and in that respect the two courts below had taken into consideration the attending circumstances and relevant evidence on record---Two courts below had recorded concurrent findings against the plaintiff, which were strictly in accordance with well established principles of appreciation of evidence---In absence of any misreading or non-reading of evidence, and irregularity in the proceedings, concurrent findings of two courts below could not be set at naught in revisional jurisdiction of High Court.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad, v. Muhammad Siddique PLD 2002 SC 293 ref.

Arif Rahim Ustrana for Petitioners.

Muhammad Ayaz Khan Qasuria for Respondents.

Date of hearing: 19th November, 2008.

CLC 2009 PESHAWAR HIGH COURT 959 #

2009 C L C 959

[Peshawar]

Before Syed Yahya Zahid Gilani, J

ABDUL HAYEE----Appellant

Versus

FAIZULLAH----Respondent

Civil Appeal No.53 of 2007, decided on 6th March, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R.2(3) & S.96---Violation of status quo--Imposition of penalty---Penal provisions of law were always required to be applied with due care and caution, especially when the question of sentence of imprisonment and liberty of a citizen was involved---Such duty, of course would extremely aggravated when someone was being punished with imprisonment in the proceedings arising from civil matters---Though the penalty of sentence imposable under O.XXXIX, R.2(3), C.P:C. had been codified in the Code of Civil Procedure, but since it had a penal effect, it was of semi criminal nature, because ultimately the guilty person was to undergo the sentence of imprisonment---Before convicting and sentencing someone, the civil court must, besides the violation of any order, satisfy itself that the violator of the stay order had intention to challenge the authority of the court; and it was not an 'act under some misunderstanding or misconception---Existence of mens rea at the part of violator of status quo order was essentially required to be explored and established beyond doubt---Penalty imposable under O.XXXIX, R.2(3), C.P.C. in contempt proceedings, being of criminal nature, same had to be conducted in as nearly as possible with the mode prescribed for dispensing justice in a criminal case failing which, order of conviction and sentence would be regarded as untenable---Conviction and sentence of the appellants was set aside and they were acquitted from the charge of violation of stay order/temporary injunction.

Raja Talat Mehmood v. Ismat Ehtisham-ul-Haq NLR 2004 Civil 4; Dr. Abdul Ghani Siddiqui v. Government of Sindh 1990 MLD 773 and Ghulam Sarwar v. Ghulam Rabbani and 3 others PLD 1992 Pesh. 130 rel.

Gohar Zaman Khan Kundi for Appellant.

Rehmatullah Khan for Respondent.

Date of hearing: 2nd March, 2009.

CLC 2009 PESHAWAR HIGH COURT 973 #

2009 C L C 973

[Peshawar]

Before Syed Yahya Zahid Gilani, J

DEPUTY DIRECTOR WORKS AND SERVICES DEPARTMENT, DISTRICT TANK----Petitioner

Versus

ABDUL AZIZ and 7 others----Respondents

Civil Revision No.212 of 2006, decided on 12th February, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.I., R.8, OXXVII, Rr.4, 8, O.XXXIX, Rr.1, 2 & S.79---Constitution of Pakistan (1973), Art.174---Suit for declaration and permanent injunction filed in representative capacity---Suit against Government---Temporary injunction, grant of---Trial Court accepted application for temporary injunction filed by the plaintiff and defendants were restrained from changing the site of the School in dispute or to transfer the same to another place---Application filed by the defendants for vacation of order of temporary injunction was also dismissed by the Trial Court---Appeal filed by the defendants against orders of the Trial Court was dismissed by the Appellate Court---Validity---Apart from the question whether suit allegedly instituted by the plaintiff in representative capacity, met with legal requirements contained in O.I, R.8(1)(2), C.P.C. or not, there was fundamental infirmity in the suit as provisions of S.79, C.P.C. read with Art. 174 of the Constitution had not been complied with---Very suit filed by the plaintiff appeared to be incompetent--Plaintiff, in circumstances had no prima facie case and the temporary injunction issued in the case was illegal on that score alone; because three ingredients i.e. prima facie case, balance of convenience and irreparable loss must co-exist for grant of temporary injunction---Appellate Court had ignored said legal aspect of the case and its order thus was illegal---High Court, in exercise of its suo motu revisional jurisdiction, set aside impugned orders of the Appellate Court and that of the Trial Court---Case was remanded to the Trial Court where parties would appear and the plaintiff would be allowed to move application within reasonable time for suitable amendment in that.

Secretary B.R. Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Sheriff of Bombay v. Hakam Ji Motaji & Co. AIR 1927 Bom.521; Manaham S. Yeshoova v. union of India and others AIR 1960 Bom.1996; P.B. Shah & Co. and others v. Chief Executive Officer and others AIR 1962 Cal. 283; Forest Department and others v. Muhammad Jan Khan 1996 CLC 1190; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner Khuzdar 1999 SCMR 16 and Province of the Punjab through Member Board of Revenue v. Muhammad Hussain through Legal Heirs PLD 1993 SC 147 ref.

Muhammad Zahid Khan for Petitioner.

Rustam Khan Kundi for Respondent No. 1.

Sanaullah Khan Shamim Gandapur, D.A.-G. for Official Respondents.

Date of hearing: 2nd February, 2002.

CLC 2009 PESHAWAR HIGH COURT 1039 #

2009 C L C 1039

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

ABDUR RAHIM SATHI----Petitioner

Versus

GHULAM SARWAR and 11 others----Respondents

Writ Petition No.178 of 2008, decided on 7th April, 2009.

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

---Ss. 35 & 35-A---Awarding of costs---Scope---Awarding of costs was subject to the provisions of Ss.35 & 35-A & O.IX, C.P.C.---Costs under S.35-A, C.P.C. were compensatory in nature and under S.35, C.P.C., the actual expenses incurred by the successful party in the litigation were awarded by the court, to secure the expenses incurred by it as those costs were not given by way of compensation or benefit.

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

---Ss. 35, 35-A & O.XLI, R.33---Constitution of Pakistan (1973), Art.199---Constitutional petition---Awarding of costs---In the present case, there was no proof of expenses incurred by the respondents in the matter---Section 35, C.P.C. would not be applicable---With regard to compensatory costs, court below had acted under S.35-A, C.P.C. in awarding heavy costs to respondents--- According to S.35-A subsection (2), C.P.C., the maximum prescribed limit for compensatory costs would not exceed twenty five thousand rupees, whereas Appellate Court had awarded thirty thousand rupees as compensation to the respondents, by exceeding the maximum limit fixed by the law---As contemplated in S.35-A read with O.XLI, R.33, C.P.C. under its proviso, Appellate Court was stave off granting compensatory costs to successful party, impugned order to that effect was patently illegal and against the spirit of S.35-A, C.P.C.---Actually S.35-A, C.P.C. empowered the Trial Court alone to give compensatory costs to the successful party against the defeated party, if the claim or defence was found false, vexatious and the successful party had taken the plea at earliest stage of suit---Amount of costs was reduced by High Court from Rs.30,000 to Rs.3000.

----O. IX, R.7---Remedy against ex parte proceedings---Order IX, R.7, C.P.C. had provided remedy against ex parte proceedings as the defendant, who had been proceeded against ex parte, no doubt remained, a party to the proceedings, as he could not be relegated to the position, he would have occupied, had he appeared---On cause being shown, ex parte proceedings could be set aside on nominal costs.

Shakeel Ahmad Khan Jadoon for Petitioner.

Muhammad Asif Qazi for Respondents.

2009 C L C 1118

[Peshawar]

Before Ghulam Mohyuddin Malik, J

WARIS----Petitioner

Versus

MUHAMMAD SARWAR----Respondent

Civil Revision No.228 of 2004, decided on 27th April, 2009.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 15---Suit for pre-emption---Making of Talbs---Trial Court dismissed suit under the issues of estoppel and waiver of right of preemption---Appellate Court decreed the suit---Defendant/vendee argued the case on two grounds, namely that in original plaint, date and place of information and making of Talb-i-Muwathibat was not disclosed, secondly that plaintiff having waived his right of pre-emption, was estopped by conduct to file the pre-emption suit against defendant---Validity---Pre-emptor no doubt was bound to mention the date and time of making Talb-i-Muwathibat in the plaint as therefrom the period prescribed for Talb-i-Ishhad had to be counted---Non-mentioning of such facts in the plaint was considered fatal to the exercise of right of preemption---Date and time of making Talb-i-Muwathibat was the basic foundation or first step upon which structure of pre-emption suit was to be built up---In the present case the facts were a little bit distinguishable---Omission of mentioning date, time and place of making Talb-i-Muwathibat in the plaint was rectified on acceptance of application for amendment in the plaint by the Trial Court on payment of cost which order was never challenged before the next higher forum, so much so that the cost imposed on the pre-emptor for submission of amended plaint was received by the defendant/vendee---By his conduct the defendant was prevented by legal rule to re-agitate the same issue before. High Court in revision---Plaintiff, therefore, had managed to achieve a complete cure to the problems of non-mentioning of date and time in plaint by filing amended plaint under the permission and order of the Trial Court.

2008 SCMR 404; 2007 SCMR 1086, 515, 302; 1971 SCMR 185; 2003 MLD 1983 and PLD 1973 SC 295 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 15---Suit for pre-emption---Waiver of right of preemption---`Waiver' would mean to surrender claim or to give something voluntarily---No confidence inspiring evidence existed in the case to believe that the plaintiff had voluntarily surrendered, 'specially right of pre-emption in favour of defendant/vendee---No evidence was available as to action of pre-emptor indicating an intention to waive the right of pre-emption in favour of vendee saying "I forego my right of pre-emption in favour of vendee"---Evidence was lacking that the sale was effected with pre-emptor's advice, consent and in his presence, through him the vendor had collected sale consideration suggesting that he had no longer any desire to pre-empt the sale--Evidence did not prove or purport to operate to extinguish right of pre-emptor in the disputed property---Right of pre-emption existed in favour of plaintiff and he was not estopped from asserting his right of pre-emption against vendee/defendant who, as per record, was a stranger---Mere presence at the time of bargain or at the time of attestation of sale mutation, would not amount to waiver---Impugned judgment of Appellate Court being based on proper reasoning and correct exposition of law was not open to any exception.

2002 SCMR 49 and PLD 2007 SC 26 ref.

Haji Ghulam Basit for Petitioner.

Q.M. Sharyar and Khalid Khan for Respondent.

Date of hearing: 27th April, 2009.

CLC 2009 PESHAWAR HIGH COURT 1165 #

2009 C L C 1165

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD WAZIR----Appellant

Versus

EHSAN ULLAH----Respondent

R.F.A. No.44 of 2006, decided on 30th March, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Suit for recovery of amount on the basis of pro note---Claim of the plaintiff was based on the execution of pro note, genuineness of same had fully been proved by the plaintiff by producing petition writer and marginal witness---Defendant had failed to rebut by any cogent and substantial evidence, the execution of the pro note and the receipt of the suit money from the plaintiff---Trial Court, in circumstances had correctly appreciated the evidence brought on record and rightly decreed the suit of the plaintiff---Counsel for the defendant had failed to point out any illegality, irregularity, perversity, misreading or non-reading of material evidence available on record so as to call for interference by the High Court through appeal---Appeal was dismissed.

Muhammad Aslam v. Muhammad Aslam 2006 MLD 599 and Muhammad Younis Rehman v. Ghulam Mustafa 2006 MLD 219 ref.

Muhammad Anwar Awan for Appellant.

Abdur Rashid Khan for Respondent.

Date of hearing: 27th March, 2009.

CLC 2009 PESHAWAR HIGH COURT 1171 #

2009 C L C 1171

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

MUHAMMAD ASLAM and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 15 others----Respondents

Writ Petition No.50 of 2007, decided on 26th May, 2009.

North-West Frontier Province Local Government (Conduct of Election) Rules, 2005---

----Rr. 61(2) & 68(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of election petition for not accompanying receipt of amount of fee---Effect---Though under R.61(2) of North-West Frontier Province Local Government (Conduct of Election) Rules, 2005, there was a legal requirement of deposit of Rs.3000 fee and accompanying its receipt with Election Petition and that the Tribunal had power to dismiss Election Petition under R.68(1) of said Rules, but dismissal of Election Petition was not the absolute and solitary option---Word `may' used in R.61(2) of North-West Frontier Province Local Government (Conduct of Election) Rules, 2005, connoted discretionary power and whenever a discretionary power was bestowed upon a Tribunal, that had to be exercised judicially, keeping in view the general principles of law attracted in the case---It was a matter of payment of fee for the benefit of Election Commission of Pakistan and the primary object of R.61(2) of the Rules, was to collect revenue for Election Commission---Before applying the penal clause contained in R.68(1) of Election Rules, 2005, the relevant general principles governing the payment and recovery of court-fee should have been followed---By exercising discretionary jurisdiction, applying the penal clause and dismissing the Election Petition under R.68(1) of Election Rules, 2005, the rule of propriety demanded that a notice of caution should have been given by the Election Tribunal to the petitioners to make good the fee within a fixed reasonable time; and in case of non-compliance, the penal clause could have appropriately been applied--- Application of penal clause without any scrutiny by the Court Staff at the time of receipt of Election Petition to detect the fault of non-deposit of fee and without notice of caution by the Tribunal to make good the deficiency, was not at all justified, because due to un-objected admission of Election Petition by the functionaries of the Tribunal, gave an official impression to petitioners that their petition was properly filed---Law required that none should suffer for act of the court, which also included the act of functionaries of the court---Tribunal had applied the rule 68(1) in violation of relevant principles of law and natural justice---Impugned order was held to be infirm, and arbitrary exercise of discretionary jurisdiction, and bereft of lawful authority, which was set aside and case was remanded to the Tribunal with the direction to decide the same on merits.

Akbar Ali and 4 others v. The Province of Punjab 1989 SCMR 1040; Muhammad Mohibullah v. Seth Chaman Lal 1994 SCMR 222; S.M. Ayub v. Syed Yousaf Shah PLD 1967 SC 486; Abdul Nasir v. Election Tribunal 2004 SCMR 602 and Haji Amirzada v. Chief Election Commission of Pakistan 2007 MLD 1923 ref.

Sh. Iftikhar-ul-Haq for Petitioner.

Jamal Abdul Nasir for Respondents.

Date of hearing: 26th May, 2009.

CLC 2009 PESHAWAR HIGH COURT 1180 #

2009 C L C 1180

[Peshawar]

Before Dost Muhammad Khan and Hamid Farooq Durrani, JJ

MUNIR AHMAD----Petitioner

Versus

SEMESTER COORDINATOR, BBA, SECTION INSTITUTE OF MANAGEMENT SCIENCES, PESHAWAR and 2 others----Respondents

Writ Petition No.159 of 2009, decided on 9th April, 2009.

Educational Institution---

----Examination---Third monthly examination of 6th semester of the petitioner was scheduled to commence on 27-10-2008 while the parents of the petitioner met a road accident on the. preceding day in which his mother lost her life, while his father sustained serious injuries---Due to said incident, the petitioner could not appear on the stipulated date to take the requisite paper---Petitioner applied to the Institute for arranging examination for him which he missed due to the tragic happening, but his said request was not acceded to---Validity---Held, it was not conceivable for a prudent mind that a student missing his examination due to sudden demise of his parents could be dubbed to have deliberately abstained from appearing in test on the notified dates---Educational institution was meant not only to impart formal education to the students admitted therein, but was alongside expected to facilitate the building up career potentials for the pupils---Rules of discipline/business chalked out for the purpose of carrying out daily chores of Institution, in circumstances, were not to be construed in the strictest possible sense so that a case of total hardship, was also pushed against the wall---Institute was a creature of statute (Institute of Management Sciences Ordinance, 2002), Constitutional petition was admitted and allowed---Institute was required to arrange the requisite re-test of petitioner within stipulated period.

Isaac Ali Qazi for Petitioner.

Syed Mabood Gul Kakakhel, Project Director, Institute of Management Sciences on behalf of Respondents.

CLC 2009 PESHAWAR HIGH COURT 1188 #

2009 C L C 1188

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

Dr. SHAHABULLAH KHAN and another----Petitioners

Versus

Mst. SOBIA MEHRIN and 2 others----Respondents

Writ Petition No.120 of 2009, decided on 3rd June, 2009.

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

---S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles or alternate price thereof--List of dowry articles produced on record had been proved to be correct list of articles which were given to the defendant by the parents of the plaintiff at the time of marriage---Statement of attorney of the plaintiff and statements of mother and brother of the plaintiff who appeared as court witnesses, had gone in line with regard to matter of dowry articles that those were delivered at the time of marriage and were never returned after desertion of the plaintiff by the defendant---Such being the factual position proved on the strength of evidence, no room was left to doubt the claim of the plaintiff---Suit was rightly decreed by the subordinate courts, in circumstances---Concurrent judgments and decrees of two courts below, with regard to return of dowry articles, could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

(b) 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 divorced by the defendant, was living in desertion---Amount of maintenance allowance in case of desertion was agreed upon between the parties at the time of marriage, but defendant had failed to honour his undertaking and started litigation on whimsical and flimsy grounds---Conduct of defendant that he had contracted and divorced other wives as well and the life of the plaintiff was made miserable during the existence of matrimonial tie, could be inferred from the evidence of the parties---Plaintiff had left the house of the defendant under compelling circumstances and started living with her parents, wherein she was not provided any maintenance allowance---Husband's obligation to maintenance of wife, would commence from the moment wife would surrender herself to the command and desire of her husband i.e. afford him the right of consortium---Maintenance allowance would become a demandable debt when wife was living in desertion due to his cruel or unbecoming conduct---In the present case defendant had become debtor and' it was decided, by mutual consent that in case of unpleasant circumstances, he would provide her separate maintenance---Plaintiff had proved fixation of her dower and non-payment by the defendant---Plaintiff, in circumstances, was legally entitled to get same, particularly after the divorce---Suit was .rightly decreed concurrently by two courts below---Well founded concurrent judgments and decrees, based on proper reasoning and correct exposition of law, could not be interfered with in exercise of constitutional jurisdiction of High Court.

Q.M. Ghazanffar for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 2009.

CLC 2009 PESHAWAR HIGH COURT 1196 #

2009 C L C 1196

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

SHAH NAWAZ----Petitioner

Versus

Mst. SURIYA BIBI and 2 others----Respondents

Writ Petition No.243 of 2008, decided on 13th May, 2009.

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

----S. 5, Sched. & S.14---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance, dowry articles, dissolution of marriage etc.---Plaintiff filed suit for recovery of amount of Rs.72,000 as maintenance, dowry articles as per list attached with the plaint, suit for partition of house, gold ornaments weighing ten Tolas which had been transferred by way of dower and dissolution of marriage against defendant---Family Court granted decree for recovery of 10 Tolas gold ornaments as well as decree for restitution of conjugal rights in favour of the defendant, Rs.2000 per month from the date of decree till the satisfaction of decree for conjugal rights, was also passed in favour of the plaintiff---On filing appeal by the plaintiff against judgment of the Trial Court, accepted appeal partially and passed decree for dissolution of marriage on the basis of Khula in her favour---In consideration of Khula, the plaintiff was directed to forego her dower including 5 Kanals landed property---Relief of the plaintiff for conjugal rights in favour of the defendant was also declined and decree to that extent was set aside---Appellate Court had also maintained the decree for gold ornaments in favour of the plaintiff, but modified the same to bridal gift instead of dower---Decree for dower was modified and also the decree for maintenance i.e. at Rs.2,000 per month for Iddat period was passed in favour of the plaintiff---Validity---Appellate Court regarding dissolution of marriage on the basis of Khula, had directed the plaintiff to forego the 5 Kanals land mentioned in the deed, but had held her entitled to the remaining dower though the same was converted into bridal gift---Contention of counsel for the defendant that 10 Tolas gold ornaments was violative of the provisions of Dowry and Bridal Gift (Restriction) Act, 1976, was also not in accordance with law as one of the parties entered into a wedlock, executed the deed and resided in the husband's house as husband and wife, husband was duty bound to pay the same and no penal provision under the Dowry and Bridal Gifts (Restriction) Act, 1976 would be applicable---Judgments of the two courts below were strictly in accordance with law, justice, equity, would warrant no interference by the High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution.

Mst. Nasim Sharif v. Imtiaz Ali Khan and 2 others 2006 CLC 1393 and Muhammad Tazeel v. Mst. Khair-un-Nisa 1995 SCMR 885 rel.

Muhammad Yousuf Khan for Petitioner.

CLC 2009 PESHAWAR HIGH COURT 1210 #

2009 C L C 1210

[Peshawar]

Before Ghulam Mohy-ud-Din Malik and Zia-ud-Din Khattak, JJ

Malik TANVEER KHAN----Petitioner

Versus

Mst. AMBER LIAQAT and 2 others----Respondents

Writ Petition No.315 of 2008, decided on 24th June, 2009.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Concept of marriage and family in Islam---Islam forbids sexual relationship outside marriage bond and considers it a grave offence against the society---Marriage establishes a firm bond of love, confidence, affection and mutual trust---Both of them build up marital life on the basis of mutual trust -and understanding---Holy Qur'an describes the relationship between the spouses as raiment worn to cover the body and says that "women were your garments and men are their apparel" which would mean that husband and wife are like body and garments to cover each other---Said Ayyat of Holy Qur'an signifies close relationship of the two sexes in the spiritual sense, further it refers that they should protect each other's privacy and cover each other's short-comings and secrets---Islam condemns all acts of mistrust, allegations and disobediences of husband---Wife should be obedient and guardian of her husband; she should not- become fault finder, malignant critic, but should be conniving at his faults and should never stigmatize the husband on hearsay information; and she should try to build up gaiety and happy social life---Righteous woman guards the sanctity of the bond of marriage and protects her and husband's chastity and virtues, guards her honour for him and to be faithful to him, which also would include guarding secrets of husband because being close contact, she learns the most private and concealed facts of his life, which if brought to public would disgrace and ruin his life---In Islam, it was binding upon the wife to guard secrets of her husband---Muslim family law, attaches great importance to the sanctity of marriage, it enjoins the Muslims to strengthen their relationship and make marriage a success.

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

----S. 2(viii)(b)---Constitution of Pakistan . (1973), Art.199---Constitutional petition---Dissolution of marriage---Wife in her view under compelling circumstances charged her husband that he was leading objectionable life, causing shame and insult in the society to her---Wife had applied for judicial separation---One of the primary ends of marriage was a happy companionship of the spouses, but there could be no happiness when wife would feel that by immoral and unbecoming conduct of husband, her life had become miserable and intolerable by his infamous style of life---Evidence led by both the parties had shown that instead of love and affection, there was misunderstanding, hatred, ill-feeling between the spouses which had reached to a point of no return---Evidence on record clearly showed that petitioner/husband was a persona non grata for respondent/wife---Wife had tried to prove cruelty by his conduct as in her estimation he was leading infamous and immoral life and was involved in homosexuality---Cruelty need not only be of a physical torture and beating etc., but it could be mental by conduct and reputation as well---Evidence on record suggested that she was not feeling easy and was considering her life miserable by conduct of his living an infamous life---Habits and conduct of the petitioner/husband as explained in the evidence, could be mental cruelty in the worst, if he was so open and known case of homosexuality in the society---Incompatibility of temperaments, irreconcilable disposition or contradictory, mental, moral and emotional outlooks, dislikeness and hatred between the spouses, could be valid grounds for divorce under Islamic Law.

M. Shafiq Awari for Petitioner.

Naz Elahi and Munir Bhatti for Respondents.

Date of hearing: 24th June, 2009.

CLC 2009 PESHAWAR HIGH COURT 1238 #

2009 C L C 1238

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

ZAR GUL KHAN----Petitioner

Versus

IHSANULLAH KHAN and 4 others----Respondents

Writ Petition No.204 of 2009, decided on 27th May, 2009.

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

----Ss. 13 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of default in payment of rent, subletting and personal bona fide need---Ejectment application was accepted by the Rent Controller, and Appellate Court maintained order of Rent Controller---Landlord had produced overwhelming evidence to prove the continuous default of tenant---Record also showed that tenant had sublet the shop in question without any permission from landlord---Contention of counsel for tenant that no bona fide personal need was proved by the landlord, was without any substance, as there was overwhelming evidence on record that the premises in question was required for the bona fide personal need of the landlord---Regarding the choice which the landlord exercised, if he had more shops, the choice was with the landlord to select best shop and he could not be restricted to the choice of the tenant---West Pakistan Urban Rent Restriction Ordinance, 1959 itself provided a guarantee. to the tenant that if the shop was vacated on the ground of bona fide personal need as same was rented out or was used for other purposes by the landlord, then the tenant was entitled to restoration of possession, which was sufficient security to the tenant---Impugned order of the two courts below were perfectly sound, based on correct appreciation of evidence brought on record, well-established principles of law and no jurisdictional error was pointed out by the counsel for tenant so as to call for interference by High Court in exercise of extraordinary constitutional jurisdiction under Art.199 of the Constitution---Petition was dismissed.

Zafar Sharif v. Muhammad Shujah 2002 YLR 1355; Afaq-ur-Rahman v. Choudhry Afzal PLD 1968 SC 230 and Messrs Dada Ltd. v. Madersa Muzharul Uloom Association 1981 CLC 1101 ref.

Anwarul Haq Khan for Petitioner.

Respondent in Person.

Date of hearing: 27th May, 2009.

CLC 2009 PESHAWAR HIGH COURT 1251 #

2009 C L C 1251

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

IQBAL KHAN----Petitioner

Versus

MEHNAZ and another----Respondents

Writ Petition No.210 of 2009, decided on 28th May, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on basis of exercise of right of puberty---Suit for dissolution of marriage filed by the plaintiff on basis of exercise of right of puberty, having been decreed by the Trial Court, the defendant had filed constitutional petition---Overwhelming evidence on record led by the plaintiff had proved that she had rightful exercise of right of puberty within the stipulated period after attaining the age of majority---Even for the exercise of right of puberty, permission of the court was not essential; and the moment the lady exercised her right, the Talaq became absolute in view of dicta handed down in the case of Federal Shariat Court reported in PLD 1995 FSC 1---Decree for dissolution of marriage on the basis of exercise of right of puberty had been passed by the court of competent jurisdiction under S.5 of the West Pakistan Family Courts Act, 1964---No jurisdictional defect or misreading/non-reading of evidence had been pointed out by the counsel for the defendant in the' impugned judgment so as to call for interference by the High Court in exercise of its extraordinary constitutional jurisdiction under Art.199 of Constitution.

Said Mahmood and another v. The State PLD 1995 FSC 1 ref. Hafiz Muhammad Hanif Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 28th May, 2009.

CLC 2009 PESHAWAR HIGH COURT 1276 #

2009 C L C 1276

[Peshawar]

Before Ghulam Mohyuddin Malik, J

TAJ MUHAMMAD KHAN through L.Rs.----Petitioners

Versus

Mst. MUNAWAR JAN and 2 others----Respondents

Civil Revision No.415 of 2006(sic), decided on 18th December, 2008.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Original owner of immovable property in dispute, had transferred said property through gift or sale mutation in favour of his two daughters/defendants---Third daughter of original owner and his nephew, through their separate civil suits challenged correctness of both the transactions of gift and sale; and claimed that they being Shari heirs of original owner, were entitled to get their share out of their ancestral property---Trial Court decreed the suit, but Appellate Court dismissed both the suits---Both the gift and sale mutations were attested during the life time of the original owner by the Revenue Officer in "Jalsa Aam" in the presence of the notables of the area including Chairman Zakat Committee, Lamberdar and landowners of the area---Neither the transferor/original owner in his life time himself nor the plaintiffs during life time of the original owner filed suits for declaration or cancellation of said gift and sale mutations in favour of two daughters of the owner---Title deeds in favour of daughters of the original owner, were acted upon in the subsequent Jamabandi and the plaintiff filed the suits after the death of the original owner on the grounds of fraud and misrepresentation etc.---Revenue record had shown that mutations in dispute were properly entered and attested at the instance of original owner---Suits were filed by the plaintiff after many years of attestation of deeds and even much later than the date of death of executant/original owner, but neither in their plaint nor in evidence disclosure of particulars of alleged frauds, was made nor those could be proved at the trial----Plaintiffs had no cause of action to challenge the transaction made by the owner of the property in his life time with his free consent---Plaintiffs could get no more than what the original owner had left behind for his other legal representatives at the time of opening of his succession, of course, by excluding the property transferred by him in favour of defendants/two daughter.

Khalid Rehman Qureshi for Petitioners.

Shah Sultan Tahir Kheli for Respondents.

Date of hearing: 4th December, 2008.

CLC 2009 PESHAWAR HIGH COURT 1311 #

2009 C L C 1311

[Peshawar]

Before Muhammad Alam Khan, J

AURANGZEB----Appellant

Versus

GHULAM RASOOL and 13 others----Respondents

Civil Revision No.47 of 2009, heard on 22nd May, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Suit had concurrently been dismissed by the Trial Court and Appellate Court---Demand of Talb-e-Muwathibat which was a jumping demand, was not made by the plaintiff immediately and on the spot---No date, month or even the year of knowledge had been alleged in the plaint, so much so that even the name of the informer had not been mentioned---Said ingredients had to be mentioned in order to prove the date of knowledge of performance of Talb-e-Muwathibat---Notices of Talb-e-Ishhad allegedly issued twice, had not been proved---Plaintiff, in circumstances, had rightly been non-suited by the two courts below---Two courts below had recorded concurrent findings of facts against the plaintiff, which were not open to interference by High Court until and unless grave injustice or material illegality was proved on the record, which were missing in the case---No interference could he made in the concurrent findings of the facts recorded by the two courts below.

Mst. Sahib Jamala v. Fazal Subhan and others PLD 2005 SC 977; Abdul Aziz v. Malik Aman 2007 SCMR 1295; Nawab Din v. Faqir Sain 2007 SCMR 401; Abdur Rehim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed v. Muhammad Siddique PLD 2002 SC 293 ref.

Muhammad Ayaz Khan Qasuria for Petitioner.

S. Mastan Ali Zaidi for Respondent on pre-admission notice.

CLC 2009 PESHAWAR HIGH COURT 1388 #

2009 C L C 1388

[Peshawar]

Before Syed Yahya Zahid Gilani, J

MUMTAZ KHAN and 7 others----Petitioners

Versus

AMIR JAN----Respondent

Civil Revision No.192 of 2007, decided on 29th May, 2009.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession and decree for mesne profit---Entitlement to mesne profit---Trial Court decreed suit filed by the plaintiff under S.9 of Specific Relief Act, 1877 as well as decree for mesne profit, and Appellate Court had dismissed appeal against judgment and decree of the Trial Court---Validity---Appellate Court should have first decided the nature of the suit; that whether it fell under S.8 or S.9 of Specific Relief Act, 1877, qua the right to invoke the upper forum in appellate or revisional jurisdiction---On remand of case, Appellate Court found that mere addition of an ancillary relief of mesne profit had not changed the nature of suit clearly filed under S.9 of Specific Relief Act, 1877 and dismissed appeal---Validity---Right to recover mesne profits would involve determination of right to possess property under a valid title and earn profits from it---Question of title could not be looked into under a suit for recovery of possession under S.9 of the Specific Relief Act, 1877, whereunder a plaintiff could be held entitled to a decree for possession, simply on the ground that he was in possession and was dispossessed---Decree for mesne profit could not be claimed in a suit filed under S.9 of Specific Relief Act, 1877---If a plaintiff instead to add and continue with the prayer for mesne profit, then he would have to declare that his suit was for possession under S.8 of the Specific Relief Act, 1877---Present suit having been instituted under wrong impression or improper legal advice to include the relief of mesne profit, the whole dispute between the parties could not be resolved, unless the plaintiff would exercise his right of choice to declare that he wanted his suit to be treated under S.9 or S.8 of the Specific Relief Act, 1877---Impugned decree of the Trial Court was set aside and case was remanded to the Trial Court with direction that the plaintiff be offered opportunity to exercise the option by way of amendment in the plaint to bring his suit, either in the category of suits under S.9 or under S.8 of the Specific Relief Act, 1877.

Foujmal Manaji v. Bikhibai and another AIR 1937 Sindh 161 and Late Mst. Majeedan through Legal Heirs v. Late Muhammad Nasim through Legal Heirs 2001 SCMR 345 ref.

Gauhar Zaman Kundi for Petitioner.

Salimullah Khan Ranazai for Respondent.

Punjab Election Tribunal

CLC 2009 PUNJAB ELECTION TRIBUNAL 1 #

2009 C L C 1

[Punjab Election Tribunal]

Before Mr. Justice Hasnat Ahmad Khan, Election Tribunal

Sued FAKHAR IMAM---Petitioner

Versus

MUHAMMAD RAZA HAYAT MIRAJ and 5 others---Respondents

C.M. No.2 in Election Petition No.157 of 2008, decided on 8th September, 2008.

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

----Ss. 52, 62(1), 64 & 76---Civil Procedure Code (V of 1908), S.151---Application for restoration of election petition dismissed for non-prosecution---Absence of express provision in Representation of the People Act, 1976 empowering Election Tribunal to restore such petition---Effect---Such omission could not be taken as an insurmountable hurdle in providing a remedy to defaulting petitioner---Every court, in absence of any express provision, would be deemed to possess in its very constitution all such powers, which would be necessary to do right and undo a wrong in the course of administration of justice---Equitable principles underlying provisions of C.P.C. could be invoked in election proceedings---Proceedings for setting aside an election is one wherein entire electorate would be interested----Election Tribunal had power to restore such petition, provided there were genuine and sufficient reasons in support of such application---Principles.

Muhammad Amjad v. Muhammad Anwar and 10 others 2003 MLD 57; Muhammad Hanif v. District Judge/Election Tribunal, Multan and others 1983 CLC 2965; H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and PLD 1985 Central Statutes 677 ref.

Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge Hafizabad and 4 others 2001 YLR 336; Sardar Saleem Haider v. Rao Muhammad Afzal 1982 CLC 927; Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603; Maqbool Rehman v. The State and others 2002 SCMR 1076; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Muhammad Shafi and another v. Election Tribunal, Multan and another 1983 CLC 3031 and Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another AIR 1961 Bom. 21rel.

Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610 not fol.

(b) Jurisdiction---

----Inherent jurisdiction of court, source of---Every court, in absence of any express provision, would be deemed to possess in its very constitution all such powers, which would be necessary to do right and undo a wrong in the course of administration of justice.

Maqbool Rehman v. The State and others 2002 SCMR 1076 fol.

----Ss. 52 & 62---Framing of issues after decision of election petition---Absence of specific provision in Representation of the People Act, 1976 regarding framing of issues by Election Tribunal---Effect---Election Tribunal could dispense with framing of issues and such decision could not be termed as illegal.

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

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

----Ss. 52 & 76---Application for restoration of election petition dismissed for non-prosecution before filing of written statement by respondent---Validity---Trial of election petition would commence after filing of written statement---Proceedings on relevant date were fixed for appearance of respondent, who had not filed written statement till then, thus, trial had not commenced---Litigants should not be knocked out on technical grounds, rather cases should be decided on merits---Respondent had filed counter-affidavit to controvert contents of such application---High Court accepted such application and restored the main election petition to its original number, in circumstances.

(e) Administration of justice---

----Litigants should not be knocked out on technical grounds; rather cases should be decided on merits.

Maqbool Elahi Malik and Muhammad Umar Riaz for the Applicant.

Kh. Haris Ahmed, Advocate-General Punjab with Ch. Muhammad Shafiq, Addl. Advocate-General (on Court notice).

Respondents proceeded ex parte.

Quetta High Court Balochistan

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 190 #

2009 C L C 190

[Quetta]

Before Akhtar Zaman Malghani, J

Messrs PRISM PRINTERS (PVT.) LTD.----Petitioner

Versus

MANAGING DIRECTOR, LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY----Respondent

Civil Revision No.192 of 2007, decided on 8th August, 2008.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), S.96---Limitation Act (IX of 1908), S.5---Suit for declaration and injunction---Appeal---Limitation for---Condonation of delay---Sufficient cause---Scope---Suit for declaration and injunction was decreed by the Trial Court---Terms of decree passed by the Trial Court were that plaintiff would approach the authorities and submit application for restoration of electric supply---Plaintiff, in the light of judgment and decree passed by the Trial Court, wrote a letter to authorities for resolution of dispute, which was replied directing the plaintiff to sign new memorandum of understanding stipulating new conditions, which letter was received by the plaintiff, whereafter the plaintiff filed appeal along with an application for condonation of delay, but Appellate Court dismissed appeal being barred by time---Plaintiff sought condonation of delay mainly on the ground that in the light of judgment and decree passed by the Trial Court, he approached the authorities for redressal of his grievances, but without any result---Validity---Court had been empowered to extend period of limitation in appeal, if the appellant would satisfy the court that he had sufficient cause for not preferring appeal within the period of limitation---Genuine or good cause was sufficient ground on which one should receive a liberal construction so as to advance cause of substantial justice---Sufficient cause was a question of fact which varied from case to case and had to be determined by a reference to all circumstances of each particular case with a view to secure furtherance of justice---Trial Court in the present case partly decreed the suit directing authorities to resolve the matter within one month after that N.O.C. was to be issued to plaintiff as per law---Plaintiff, in circumstances had no occasion to have challenged the decree, as to some extent, relief was granted to him, but on presentation of application, authorities imposed condition of signing a new memorandum of understanding stipulating new terms and conditions for retention of suit plot, which terms and conditions were not acceptable to the plaintiff---Plaintiff preferred appeal against judgment and decree within 30 days of receipt of reply from authorities, which cause was sufficient for condonation of delay---Judgment and decree passed by Appellate Court, were set aside---Delay was condoned, with the result that appeal would be deemed to be pending before the Appellate Court, who was directed to decide the same on merits.

(b) Words and phrases---

----"Sufficient cause import, meanings and concept.

----S. 5---Condonation of delay---Scope---Sufficient cause was a question of fact which varied from case to case and had to be determined by a reference to all circumstances of each particular case with a view to secure furtherance of justice.

Shakil Ahmed for Petitioner.

Malik Sarwar Awan for Respondent.

Date of hearing: 23rd July, 2008.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 196 #

2009 C L C 196

[Quetta]

Before Akhtar Zaman Malghani and Amanullah Khan Yasinzai, JJ

Haji ABDUL RASOOL MENGAL----Petitioner

Versus

CHIEF ELECTION COMMISSIONER and others----Respondents

Constitutional Petition No.198 of 2008, decided on 4th August, 2008.

Balochistan Local Government Ordinance (XVII of 2001)---

----Ss. 5 & 63---Balochistan Local Government (Recall/No-Confidence Motion Against Nazim and Naib Nazim) Rules, 2007, R.5(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---No-confidence motion against Tehsil Nazim---Procedure---Petitioner was elected as Tehsil Nazim and thereafter two respondents submitted an application to the Naib Nazim requesting therein that session of the Council could be convened so that no-confidence motion could be moved against the petitioner---Session of the Council was convened, wherein re-call motion was approved by the majority of 9 to 3---Petitioner had challenged proceedings conducted by Tehsil Council---Validity---Section 63 of Balochistan Local Government Ordinance, 2001, provided that if in the opinion of a member of Tehsil Council reason was available to believe that Tehsil Nazim was action against the public policy or the interest of the people or was negligent or responsible for loss of opportunity to improve governance, he could, seconded by another member of Council, give a notice to move motion to the Tehsil Council Nazim; on receipt of such notice Naib Nazim would summons session of the Tehsil Council---Under provisions of subsection (4) of S.63 of Balochistan Local Government Ordnance, 2001 where a motion was approved by 2/3rd majority of votes of the total membership of the . Council through secret ballot to be conducted by the Returning Officer and Tehsil Nazim would cease to hold office---For the approval of recall motion not only 2/3rd majority of total membership of the Council was required but the proceedings were also required to be conducted through secret ballot by a Returning Officer nominated by the Chief Election Commissioner---Approval of re-call motion in Tehsil Council Session, was illegal and in clear violation of the procedure laid down in subsection (4) of S.63 of Balochistan Local Government Ordinance, 2001---Approval of re-call motion in Tehsil Council, was declared to be illegal, violative of law and without lawful authority and was struck down by High Court accordingly.

Syed Ayaz Zahoor for petitioner.

Muhammad Riaz Ahmed and Mumtaz Yousaf, Standing Counsel for Respondents.

Date of hearing: 23rd June, 2008.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 462 #

2009 C L C 462

[Quetta]

Before Mehta Kailash Nath Kohli, J

IFTIKHAR MEHMOOD----Petitioner

Versus

ABDUL LATIF and others----Respondents

Civil Revision No.159 of 2005, decided on 11th August, 2008.

Pre-emption---

----Plaintiff filed suit for pre-emption claiming superior right of pre-emption against suit land being `Sharik-e-Jar' in adjoining land---Defendant resisted the suit on the ground that plaintiff was not a full and complete owner of said adjoining land, but there were four owners including the plaintiff and that said other co-owners had not filed pre-emption suit---Courts below concurrently dismissed pre-emption suit---Validity---Scope---Counsel for pre-emptor could not support his contention that co-owner of adjoining land alone could file pre-emption suit and claim right of pre-emption---Conclusion drawn by the two courts below being based upon correct appreciation of law, required no interference by the High Court in exercise of its revisional jurisdiction.

Iftikharuddin v. Jamshed K.A. Market and 11 others PLD 1995 Kar. 608; Sikandar v. Sultan Muhammad PLD 1974 SC 11; Sakina Bibi v. Amiran and others ILR 10 All 472; Dewanutulla v. Kazem Molla ILR 15 Cal. 184 and Sakina Bibi v. Amiran and others defendants ILR (Allahabad) 1888 ref.

Muhammad Aslam Chishti for Petitioner.

Muhammad Ayaz Sawati and Shakil Ahmed Mirza for Respondents.

Date of hearing: 1st August, 2008.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1015 #

2009 C L C 1015

[Quetta]

Before Amanullah Khan Yasinzai, C. J. and Akhtar Zaman Malghani, J

Dr. ABDUL SAMAD and 3 others----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Health/Chairman, Balochistan Clinical Laboratory Regulatory Authority, Quetta and 2 others----Respondents

Constitutional Petition No.565 of 2008, decided on 3rd March, 2009.

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

----Arts. 18 & 199---Constitutional petition---Right to enter upon any lawful profession, trade or occupation---Under Article 18 of the Constitution, every citizen of Pakistan was entitled to enter upon any lawful profession or occupation and to conduct any lawful trade or business subject to qualifications, if any, as could be prescribed by law---Said right was not an absolute right, but was liable to certain restrictions---Proviso (a) of Art.18 of the Constitution had conferred upon government to regulate any trade, profession through a licencing system---Power to regulate necessarily includes a power to prohibit, which implied a power to foster, to protect, control and restoration---Fundamental Right in Art.18 of the Constitution, pertaining to freedom of trade, was also subject to such qualification as could be prescribed by law which was a clog on the said fundamental right---If the Constitution had given to the legislature the power to regulate a trade by a licencing system, it must follow that the power to prohibit vested in the legislature insofar as the trade under such system could only be carried by the licensed persons, corporations--Under Art.18 of the Constitution, person without having a qualification could run a business or trade, but of profession would not mean the freedom to enter upon any profession or occupation without having the requisite qualification---Regulations of the professions of medicine, dentistry, law and other like professions which involve the safety and health of the general public, were carried on in most of the countries, which provided that qualifications could be prescribed by law---In order to determine reasonableness of restriction, likely imposed to the nature of business and conditions prevailing in the trade, it was obvious that said factors must differ from trade to trade and no hard and fast rules concerning the trades could be laid down---Creation of moral rights in favour of person or body of persons to carry on any business, prima facie would affect the freedom of trade---But it could not be said that in no circumstance he exclusion of competition so as to create a moral monopoly, was justified---Nature of business would be an important element in determining the legality of exclusion of competition in a particular case.

(b) Balochistan Clinical Laboratories Regulatory Authority Ordinance (XLV of 2001)---

----S. 17---Balochistan Clinical Laboratory Regulatory Rules, 2005, Rr.4, 5, 6, 7, 8, 9, 11 & 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Clinical Laboratory Services---Regularization of---Petitioners, who claimed to be qualified Doctors had challenged validity of letter issued by the Authority whereby they were directed to close their clinical laboratory---Contention of petitioners was that act of the Authority in depriving the petitioners from running their laboratories by means of impugned letter, was not only illegal and improper, but also in violation to provisions of Balochistan Clinical Regulatory Authority Rules, 2005 and advice of Pakistan Medical and Dental Council---Validity---Petitioners could have expertise in their respective fields, but merely because during their study in M.B.,B.S. the petitioners were taught elementries of Pathology, would not expertise them in the subject nor on the basis thereof they could be allowed to practise in said field---Baluchistan Clinical Laboratories Regulatory Authority Ordinance, 2001 and Rules made thereunder did not put any clog on the running of Clinical Laboratories by the petitioners, but only had laid down condition that the said laboratories should be supervised by a Pathologist who should be physically present during routine working hours, provided that their laboratories fulfil other requisites as provided under Rr.5, 6, 7, 8, 9 & 11 of Balochistan Clinical Laboratory Regulatory Rules, 2005---Petitioners had not applied for registration during the grace period of six months and were running their laboratories without registration and having valid lincences---Authorities, in circumstances, had rightly and lawfully issued letter directing petitioners to close their laboratories which were being unauthorizedely run---Petitioners were neither entitled to the relief claimed for nor their petition was maintainable.

Syed Ayaz Zahoor for Petitioner.

Salahuddin Mengal for Respondents.

Date of hearing: 24th December, 2009.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1183 #

2009 C L C 1183

[Quetta]

Before Mehta Kailash Nath Kohli and Amanullah Khan Yasinzai, JJ

ABDUL JABBAR and another----Petitioners

Versus

CANTONMENT EXECUTIVE OFFICER, ZHOB CANTT.----Respondent

Constitutional Petition No.370 of 2007, decided on 30th March, 2009.

Cantonments Act (II of 1924)---

----Ss. 91 & 259---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in deposit of arrears of rent---Petitioners being tenants in the shops belonging to the Cantonment Board were paying monthly rent at the rate of Rs.350 per month---Tenancy period was extended subject to increase of 20% in monthly rent---Petitioners defaulted in payment of arrears of rent due thereunder---Demand notices for arrears were served on petitioners under S.91 of the Cantonments Act, 1924 and an application under S.259 of the same Act was also filed along with list of defaulters before Judicial Magistrate for recovery of rent arrears but no progress was made---Petitioner's union (tenants) pledged that all the dues would be cleared by the June, 2007 but no significant progress was made for recovery of arrears---Contention of the petitioners was that they were not being dealt with in accordance with law and their shops had been sealed without. any justifiable reason---Validity---Rent was enhanced and subsequently settlement was made that the payment would be made up till target date but petitioners had failed to make payment of the amount due, resultantly, coercive action was taken whereby shops were sealed---Provisions of S.259 of the Cantonments Act, 1924 authorized the Magistrate to recover the amount by distress, as well as by sale of movable property of the tenants---Petitioners had approached the court with unclean hands---High Court dismissed constitutional petition having no merit.

Jamal Khan Mandokhail for Petitioners.

Ch. Mumtaz Yousaf, Standing Counsel for Respondent.

Date of hearing: 16th March, 2009.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1217 #

2009 C L C 1217

[Quetta]

Before Amanullah Khan Yasinzai, C. J. and Mehta Kailash Nath Kohli, J

MUHAMMAD ASIF and another----Petitioners

Versus

SELECTION COMMITTEE FOR THE SESSION 2008-09 for admission in Bolan Medical College, Quetta through Chairman/Chairman Balochistan Public Service Commission, Quetta and 5 others----Respondents

Constitutional Petition No.91 of 2009, decided on 30th April, 2009.

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

----Art. 199---Constitutional petition---Educational institution---Admission---Dual Local Certificate---Petitioners applied for admission in M.B.,B.S. on the basis of Local Certificates issued to them by Executive District Officer Revenue (E.D.O. Rev.) "K" against the reserved seats of the District---Respondents being candidates of the admission from the same District raised objection against the candidature of petitioners that petitioners did not belong to the said District "K" rather belonged to another District "M"---Objections were filed before Selection Committee for admission---Selection Committee referred the case to E.D.O.(Rev.) with direction to hold an enquiry which found that grandfather and father of petitioners had ,obtained Local Certificates on the basis of false affidavits, therefore, they did not belong to the said District "K"---Selection Committee rejected the candidature of petitioners---Contention of the respondents was that grandfather and father of petitioners obtained dual Local Certificates from the Districts "M" and "K" therefore, in. view of para.32 of the prospectus of the Medical College petitioners were not eligible to apply for admission against the reserved seat of said District "K"---Record revealed that Local Certificates obtained by the grandfather and father of petitioners in the year. 1988 were surrendered before the E.D.O. (Rev.) District "M" in the year 2007 for cancellation which were cancelled---Once they submitted original Local Certificates for cancellation, they were no more in possession of such Local Certificates---Nothing was available on record to suggest that petitioners had ever benefited from such Local Certificates---Petitioners had applied independently for the first time for obtaining Local Certificates from District "K", which had not been objected to and the same were intact---Rejection of candidates by Selection Committee was without lawful authority, High Court accepted the constitutional petition and set aside the order passed by Selection Committee with direction to admit the petitioners against reserved seats on merits.

Miss Sumia v. Selection Committee, Bolan Medical College, Quetta and others 1991 SCMR 2099; Miss Salma v. Selection Committee 1993 SCMR 2083 and Ashiq Hussain and others v. The State 1989 SCMR 392 rel.

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

----Art. 15---Freedom of movement---Article 15 of the Constitution confers a. right on every citizen to move freely and reside and settle anywhere in any part of the country subject to reasonable restriction imposed by law in public interest.

Muhammad Mohsin Javed for Petitioners.

Muhammad Rauf Atta, Legal Advisor B.M.C. for Respondent.

S.A.M. Quadri and Nasrullah Achakzai, Addl. A.-G. for Respondent No.5.

Syed Zareef Shah for Respondents Nos.4 and 6.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1241 #

2009 C L C 1241

[Quetta]

Before Mehta Kailash Nath Kohli, J

WALI MUHAMMAD and another----Appellants

Versus

Haji NASARUDDIN and another----Respondents

F.A.O. No.13 of 2007, decided on 12th September, 2008.

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

----S. 15---Ejectment of tenant---Subletting---Shop was leased out to the tenant at monthly rent of Rs.300 who further sublet the shop to another person and the said person sublet the shop to yet another person at monthly rent of Rs.3,600---Rent Controller accepted ejectment petition---Contention of tenant and subletees was that attornment of tenancy had been made and the question of subletting from him to other persons did not arise---No proof on record was available that the second subletee was receiving rent from third person at the rate of Rs.3,600 per month---Findings recorded by Trial Court were not correct and proper and were based on misreading of record---High Court set aside the ejectment order passed by the Rent Controller and allowed appeal.

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

----S. 15---Ejectment of tenant---Bona fide personal need of shop by landlord's son---Validity---Rent Controller allowed ejectment petition filed by landlord on ground of personal bona fide use and occupation by his son---Shop in dispute was adjacent to other shops of the landlord and two of the shops were lying vacant/closed and were in possession of the landlord---No explanation was offered by the landlord that while being in possession of two shops, the shop in dispute was further required for personal use and occupation---Ground urged for personal requirement had not been proved---Findings recorded by Trial Court were not found to be recorded on proper appreciation of law---High Court set aside the ejectment order passed by the Rent Controller and allowed appeal.

----S. 15---Ejectment of tenant---Waiver of claim---Effect---Premises were leased out twenty years back and the possession of the same was handed over after few months of the creation of tenancy---Contention of the landlord was that about two years back, he came to know about subletting---Landlord had kept on receiving the rent---High Court declared the acceptance of rent in circumstances, as waiver of the claim and dismissed eviction order, in appeal, passed by Trial Court.

Mehraj Din v. Muhammad Islami 1980 SCMR 764; Rais Illahi Bux and another v. Inamullah 1991 CLC Note 46 at p.33 and Amjad Ali v. Haji Said Wahab and 3 others 2003 YLR 1084 rel.

M. Zafar for Appellants.

Noor-ud-Din for Respondents.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1269 #

2009 C L C 1269

[Quetta]

Before Mehta Kailash Nath Kohli, J

SECRETARY, BOARD OF REVENUE, BALOCHISTAN QUETTA and 3 others----Petitioners

Versus

ABDUL QAYYUM----Respondent

Civil Revision No.3 of 2007, decided on 23rd June, 2008.

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

----S. 115---Dastur-ul-Amal Diwani, Kalat, S.24---Specific Relief Act (I of 1877), S.42---Suit for declaration---Time-barred revision---Maintainability---Plaintiff filed a suit for declaration, permanent injunction and correction of revenue entries of the disputed plot, which was decreed by Trial Court---Appellate Court also dismissed appeal filed' by defendant---Contention of the defendant was that the present revision petition was not maintainable being time-barred and S.24 of Dastur-ul-Amal Diwani, Kalat provided a period of sixty days being a special period---Section 115 of Civil Procedure Code, 1908 was amended in the year 1992 whereby limitation was provided as being ninety days---Provisions of C.P.C. were extended to the areas where Dastur-ul-Amal' Diwani, Kalat were to be applied---Petition having been filed within limitation, High Court allowed revision petition and directed the judgments and decrees passed by courts below to be set aside.

Mir Said Muhammad and another v. Mir Chakar and 6 others PLD 1973 Quetta 43 and Province of Balochistan v. Ismail and others PLD 1983 Quetta 8 rel.

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

---S. 42---Suit for declaration---Possession without permission---Trespasser---Scope---Occupation of disputed plot without there being any permission from anybody about fifteen years back, without any title by the plaintiff---Trespasser---Contention of the plaintiff was that he was in possession of the disputed plot about fifteen years ago and had placed his construction material on the disputed plot when he was stopped to raise construction---Plaintiff further contended that he had raised construction of wall' and revenue entries about the disputed plot were recorded in the name of Provincial Government-Validity-Plaintiff was not entitled to any legal right or character as no permission was obtained from any competent authority with regard to taking possession of the disputed plot---Plaintiff, without the consent or permission of any authority occupied the disputed plot, was a "trespasser" and was not entitled to the disputed plot---High Court accepted revision petition and set aside the judgment, and decrees of the courts below---Revision petition was allowed.

Amanullah Tareen, Asstt. A.-G.

Kamran Murtaza for Respondent.

Date of hearing: 23rd June, 2008.

CLC 2009 QUETTA HIGH COURT BALOCHISTAN 1279 #

2009 C L C 1279

[Quetta]

Before Mehta Kailash Nath Kohli and Amanullah Khan Yasinzai, JJ

CLC 2009 SUPREME COURT AZAD KASHMIR 899 #

2009 C L C 899

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhary, C. J. and Khawaja Shahad Ahmed, J

BARKAT ALI and another----Appellants

Versus

SULTAN MEHMOOD and 18 others----Respondents

Civil Appeal No.35 of 2004, decided on 6th February, 2009.

(On appeal from the judgment of High Court, dated 22-1-2004 in Civil Appeal No.73 of 2002).

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

----S. 42----Azad Jammu and Kashmir Supreme Court Rules, 1978, O.V, R.2(2) & O.XV, R.7---Civil Procedure Code (V of 1908), O.I, R.10 O.XXII, R.1---Appeal to Supreme Court---Impleading of legal representatives of deceased respondent---Pending appeal before the Supreme Court, it was brought on record through an application that one of the respondents had died---By order counsel for the appellant was directed to take necessary steps for impleading the legal representatives of said deceased respondent, but no application for impleading the legal heirs of deceased respondent was brought on the date when case was fixed, but on next date of hearing an application was moved for said purpose---Petition for leave to appeal was filed after death of the respondent and when the Process-Server reported about the death of the respondent, appellants did not reply and when the Registrar directed them to file application for bringing on record the legal representative, they still procrastinated, which clearly smacked of their negligence---Supreme Court had jurisdiction to allow an application for bringing on record the legal heirs of deceased party even after limitation to avoid non-suiting of a party on technical grounds---Power of the court, however, was not absolute and had to be exercised keeping in view the facts of each case and more particularly the conduct of party---While deciding ancillary matter of such nature, Supreme Court had also to see if mandatory provision of Supreme Court Rules were violated in which case Supreme Court should not take a liberal view---Deviation in such cases would amount to violation of a rule of law, which could not be allowed to perpetuate---Negligence of a party could not lightly be taken under the garb of power of the Supreme Court to do complete justice.

Khushi Muhammad v. Mst. Aziz Bibi 1980 SCMR 531; Dost Muhammad Khan v. Mst. Bibi Rukia 1986 SCMR 353; Chinar Gul v. Cantonment Board of Peshawar and another 1978 SCMR 44; PLD 2005 SC 430; 1999 YLR 550; 2004 CLC 1925 and 2006 SCR 92 ref.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O.V, R.2(2) & O.XX, R.7---Powers of the Supreme Court---Supreme Court had jurisdiction and powers under the Supreme Court Rules, to pass an order to avoid non-suiting of a party on technical grounds.

Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal 1992 SCR 94 ref.

----S. 9---West Pakistan Land Revenue Act (XVII of 1967), Ss.16, 17 & 18---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Controversy between the parties about right and possession of Shamilat Deh land---Jurisdiction of court---Appeal to Supreme Court---Record had revealed that controversy between the parties throughout had been about their alleged rights and possession of Shamilat Deh land---Suit-land was Shamilat Deh, about which the civil courts had limited jurisdiction and could not grant permanent injunction against all the share-holders who possessed the land in the estate as well---Unless the Shamilat Deh land was partitioned by metes and bounds by the Revenue Authorities, no specific share could be declared to be in possession of any landowner---Supreme Court modified the judgment recorded by the Trial Court in favour of respondents by holding that judgment recorded by the Trial Court would be inter-party and not enforceable against other share-holders in the Shamilat nor would the same be binding on the Revenue Authorities who had jurisdiction to work out the share in Shamilat according to the holding of landowners in the village or estate.

Sardar Muhammad Azam Khan for Appellants.

Ch. Reaz Alam for Respondents.

Date of hearing: 2nd June, 2008.

CLC 2009 SUPREME COURT AZAD KASHMIR 940 #

2009 C L C 940

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Muhammad Azam Khan, J

TARIQ MEHMOOD----Appellant

Versus

Contractor AHMED DIN and 4 others----Respondents

Civil Appeal No.57 of 2008, decided on 13th February, 2009.

(On appeal from the order of the High Court, dated 24-5-2008 in Civil Revision Petition No.1 of 2007).

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

----S. 115---Revision---Powers of High Court under S.115, C.P.C.---Scope---Non-filing of copies of the pleadings and documents with the revision petition---Effect---High Court dismissed the revision petition on the ground that copies of the pleadings and documents having not been filed with the revision petition, same was not competent---Validity---Section 115, C.P.C. would apply to the cases where the lower court had illegally assumed jurisdiction, irregularly exercised or refused to exercise the jurisdiction vested in it or committed an error of law---Powers vested in the High Court under S.115, C.P.C., were purely discretionary and could be exercised on the principles upon which such discretionary orders were passed---While exercising revisional jurisdiction, if the High Court would come to the conclusion that the lower court had exercised such jurisdiction which was not vested in it by law or had failed to exercise or declined to assume the jurisdiction vested in it under law or exercised discretion in an illegal manner or had adapted such procedure, the result of which put a party in an advantageous position as against the other, then the revisional powers must be exercised---If it was of the opinion that no violation of the said matters was on record, then, it should decline to exercise the revisional jurisdiction---Proviso to subsection (1) of S.115, C.P.C., was incorporated through Law Reforms Ordinance, 1980 in Pakistan which had been adapted in Azad Jammu and Kashmir in 2003---Before the incorporation of Proviso to subsection (1) to S.115, C.P.C., it was general practice that the record of the lower court was summoned, due to which unnecessary delay was caused in the disposal of the cases---Said Proviso had been introduced to avoid unnecessary delay in disposal of the cases---If the copies of the documents and pleadings along with the order of the lower court were appended with the revision petition, then it was not necessary to summon the record of the lower court so that the revisional court could decide the same without staying the proceedings in the lower court---Filing of copies of pleadings and documents with the revision petition was not mandatory---If the High Court or the District Judge would feel that it was not necessary to call for the record of subordinate court, while exercising revisional jurisdiction, the court could direct the petitioner to furnish the copies of pleadings, relevant documents and orders, so that it could decide the revision petition expeditiously.

Riasat Ali v. Muhammad Jaffar Khan and 2 other 1991 SCMR 496 ref.

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

----S. 115---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.46---Powers of the High Court of superintendence and control over subordinate courts---High Court had powers of superintendence and control over the courts subordinate to it--Apart from S.115, C.P.C., it had powers of superintendence and control over the courts subordinate to it under S.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Powers of superintendence and control, would include the powers of correction of jurisdictional errors or material irregularities committed by the subordinate courts during the judicial proceedings---Rules of procedure and technicalities could not obstruct the exercise of those powers---Rules were meant to promote the ends of justice and not to defeat it.

Karamat Hussain and others Muhammad Zaman and others PLD 1987 SC 139; Haji Muhammad Latif Khan v. Muhammad Hanif 2007 SCR 125; Muhammad Resham Khan and 2 others v. Rtd. Subedar Muhammad Amir Khan 2001 MLD 534; Khawaja Abdul Qadir v. Abdul Majid PLD 1984 SC (AJ&K) 166 and Azad Kashmir Logging and Saw Mill Corporation Ltd. v. Messrs Muhammad Farid Khan and Company Brothers, Contractors AKLASC PLD 1986 AJ&K 228 ref.

M. Riaz Inqalabi for Appellant.

Respondent No.1 in Person.

M. Riaz Tabbassum for Respondents Nos.3 and 4.

Respondents Nos.2 and 5: Ex parte.

Date of hearing: 2nd February, 2009.

CLC 2009 SUPREME COURT AZAD KASHMIR 1378 #

2009 C L C 1378

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmad and Muhammad Azam Kan, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 2 others----Appellants

Versus

MUHAMMAD RAFIQUE KHAN and 9 others----Respondents

Civil Appeals Nos.105 of 2008, decided on 22nd January, 2009.

(On appeal from the judgment and decree of the High Court, dated 30-5-2008 in Civil Appeals Nos.11 and 28 of 2007).

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

----Ss. 4, 11, 18, 26 & 54---Acquisition of land---Filing appeal without the decree-sheet with memo. of appeal---Competency of appeal---Appeal filed against judgment of Referee Court before High Court under S.54 of Land Acquisition Act, 1894 was dismissed on the ground that the decree-sheet of the Referee Court had not been filed with memorandum of appeal---Under S.26 of the Land Acquisition Act, 1894 award was to be treated as decree; accordingly it was not necessary to file the copy of a decree-sheet along with the memorandum of appeal in the High Court---Judgment of the High Court on that ground was not maintainable.

Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052; Military Estate Officer, Hazara Circle, Government of Pakistan Abbottabad and others v. Muhammad Bashir and 6 others PLD 2000 SC(AJ&K) 34 and Government of Sindh v. Meho Khan and 14 others 1998 CLC 1068 ref.

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

----Ss. 4, 11, 12, 18 & 54---Acquisition of land---Reference to Referee Court---Limitation---Land Acquisition Collector announced the award in respect of acquired land, but no notice under S.12 of the Land Acquisition Act, 1894 was issued to the landowners whose land was acquired---Landowners acquired knowledge of award after about 2 months of announcement of award by the Collector and landowners filed Reference application just five days after acquiring knowledge of announcement of award---Section 12 of Land Acquisition Act, 1894. had provided that if a person was not present at the time of announcing the award, a notice must be issued to him---If no such notice was issued to affected person, then limitation would not start running from the date of award, but would start running against him from the date of his knowledge---Reference which was filed only after five days of knowledge, held, was filed within time.

Muhammad Jan and 4.others v. Azad Government and 7 others 1996 CLC 1967'and Allandino v. Fakir Muhammad PLD 1969 SC 5821 ref.

---Ss. 4, 11, 18, 23 & 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---Acquisition of land---Determination of compensation amount---Reference to Referee Court---Appeal to Supreme Court---Land Acquisition Collector awarded Rs.52,134 per Kanal plus 15% compulsory acquisition charges---Dissatisfied from said award, landowners filed Reference to Referee Court and claimed compensation amounting to Rs.6,00,000 per Kanal---Referee Court on the basis of evidence, accepted reference and amended the award of the Collector fixing compensation to Rs.6,00,000 per Kanal instead of Rs.52,134 per Kanal---Landowners originally claimed in the Reference applications Rs.2,00,000 per Kanal, but during pendency of Reference after lapse of approximately 15 years, filed application for amendment of the Reference in which it was stated that compensation amounting to Rs.2,00,000 per Kanal was inadvertently written in earlier application, which in fact was Rs.6,00,000 per Kanal---Said amended application was accepted and Referee Court fixed compensation to Rs.6,00,000 per Kanal---Validity---For determination of compensation amount S.23 of Land Acquisition Act, 1894 was relevant, whereurider the first condition for determining the market value of the acquired land was that it would be determined at the time of notification under S.4 of Land Acquisition Act, 1894---Sale deeds relied upon by the landowners, executed in respect of adjoining land could not be considered by the court after completion of award about 15 years of issuance of notification under S.4 of Land Acquisition Act, 1894---Appeal was partly accepted---Judgments of courts below were amended and the landowners were declared entitled to compensation amount of Rs.2,00,000 per Kanal along with 15% compulsory acquisition charges as initially demanded by them in their reference application.

Muhammad Jan and 4 others v. Azad Government and 7 others 1996 CLC 1967; Allandino v. Fakir Muhammad PLD 1969 SC 5821; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 and Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 ref.

Raja Gul Majeed Khan, Advocate-General for Appellants.

Sardar Muhammad Sayab Khalid, Advocate for Respondents.

Date of hearing: 5th December, 2008.