CLC 2010 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Election Tribunal Balochistan
Election Tribunal Punjab
Election Tribunal Sindh
Gilgit Baltistan Chief Court
High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Northern Areas Chief Court
Northern Areas Chief Court Gilgit
Northern Areas Supreme Appellate Court
Peshawar High Court
Quetta High Court Balochistan
Supreme Court Azad Kashmir

Board Of Revenue Punjab

CLC 2010 BOARD OF REVENUE PUNJAB 629 #

2010 C L C 629

[Board of Revenue, Punjab]

Before Aftab Ahmad Maneka, Member (Judicial-IV)

NAZIR AHMAD----Petitioner

Versus

THE STATE through Executive District Officer (Revenue), Vehari and another----Respondents

R.O.R. No.267 of 2009, decided on 6th January, 2010.

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

---Ss. 10 & 30---West Pakistan Land Revenue Act (XVII of 1967), S.164---Allotment of land under Temporary Cultivation Lease Scheme---District Officer (Revenue) granted proprietary rights of land in question in favour of the petitioner, but subsequently taking suo motu action reviewed his earlier order of granting proprietary rights in absence of the petitioner---Impugned order by the District Officer was not tangible under law---Order by Executive District Officer (Revenue) whereby he upheld the order passed by the District Officer (Revenue) could not be termed as a valid order under the law---When original impugned order passed by the District Officer (Revenue) was not found to be legal and proper, the entire structure built on that would crumble automatically---Case was remanded as impugned order passed by the District Officer (Revenue) and order passed by Executive District Officer (Revenue) upholding order of District Officer (Revenue) suffered from legal and factual infirmities---Board of Revenue remanded the matter with the direction to decide the matter afresh after providing opportunity of hearing to the petitioner strictly on merits.

Muhammad Naveed Shabbir Goraya for Petitioner.

CLC 2010 BOARD OF REVENUE PUNJAB 1190 #

2010 C L C 1190

[Board of Revenue, Punjab]

Before Nadeem Ashraf, Azhar Hussain Shamim, Members (Judicial-III) and Dr. Nazir Saeed, Member (Judicial-V)

TANVIR AHMED KHAN----Petitioner

Versus

HAMID MUKHTAR and 3 others----Respondents

Review Petition No.474 of 2004 in R.O.R. No.1693 of 2003, decided on 2nd December, 2009.

West Pakistan Land Revenue Rules, 1968---

----R. 19---West Pakistan Board of Revenue Act (XI of 1957), S.8---Appointment of lamberdar---After death of lamberdar, District Officer (Revenue) appointed the petitioner as successor lamberdar---On filing appeal by respondent, Executive District Officer (Revenue), set aside order of District Officer---Revision petition filed against order of Executive District Officer, having also been dismissed by Board of Revenue, petitioner had filed review petition---Petitioner had resigned front government service and was prepared to carry out duties as lamberdar---Petitioner had more land than the respondent and was better educated (F.Sc.) as compared to respondent who had passed primary stage---Being younger in age, it was expected that petitioner would deliver better---Review petition was accepted---Order passed by Executive District Officer (Revenue) and order passed by the Member (Judicial) Board of Revenue, were set aside and order passed by District Officer (Revenue), was upheld in review by Board of Revenue.

Allah Ditta v. Salamat Ali and others PLD 1965 SC 393 ref.

Rao Abdul Jabbar Khan for Petitioner.

Rana Muhammad Arif for Respondent No.1.

Election Tribunal Balochistan

CLC 2010 ELECTION TRIBUNAL BALOCHISTAN 912 #

2010 C L C 912

[Election Tribunal Quetta]

Before Ghulam Mustafa Mengal, J

Sardar MUHAMMAD YAQOOB KHAN NASIR----Petitioner

Versus

Sardar MUHAMMAD ISRAR TAREEN and others----Respondents

C.M.A. No.903 of 2009 in Election Petition No.8 of 2008, decided on 16th November, 2009.

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

----Ss. 52, 55(3) & 63---Civil Procedure Code (V of 1908), O. VI, R. 15 & S.139---Election petition---Verification of---Maintainability of election petition filed by the petitioner had been challenged on the ground that the petitioner had not complied with the mandatory provisions of S.55(3) of Representation of the People Act, 1976 and provision of O. VI, R.15, C.P.C.---Election petition had not been verified by specifying by reference to the numbered paragraphs of petition as to what paragraphs of the petition were verified of petitioner's own knowledge; and what he verified upon information received and believed to be true---Moreover the documents attached with the petition had neither been signed by the petitioner nor the same had been verified on oath as per requirement of law---Verification of the petition as well as annexures as was required to be done under the provisions of O. VI, R.15, C.P.C., having not been done accordingly, case of petitioner had a fatal defect and petition was required to be dismissed summarily likewise the documents annexed with the petition---Petitioner having failed to comply with mandatory provisions of law, election petition was dismissed, in circumstances.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Sardarzada Zafar Abbas and other v. Syed Hassan Murtaza and others PLD 2005 SC 600 and Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 ref.

Muhammad Riaz Ahmed and Ayaz Sawati for Petitioner.

Ch. Ali Muhammad for Respondent No.1.

Iqbal Tareen for Respondent No.6.

Election Tribunal Punjab

CLC 2010 ELECTION TRIBUNAL PUNJAB 131 #

2010 C L C 131

[Election Tribunal Punjab]

Before Hasnat Ahmad Khan, Election Tribunal

AHMED KHAN BHATTI----Petitioner

Versus

Maj. (R.) ZULFIQAR ALI GONDAL and 10 others----Respondents

Election Petition No.1 of 2008, decided on 13th August, 2009.

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

---Ss. 63 & 64---Election petition---Dismissal---Parameters---Non-filing of list of witnesses---Effect---While filing election petition, petitioner failed to give list of witnesses, private or official, along with election petition--- Respondent sought dismissal of election petition on the ground that list of witnesses was not filed with the petition as the same had been made mandatory by Election Commission in a notification---Validity---Parameters for dismissal of election petition were laid down in S.63 of Representation of the People Act, 1976, due to the failure of the compliance of certain provisions of Representation of the People Act, 1976---Failure to comply with the provisions of notification in question could not be made ground for dismissal of election petition---Notification was a subordinate legislation, therefore, it could not control powers of Election Tribunal as Civil Court---Election petition could not be dismissed by Election Tribunal for non-compliance of the provisions of notification. in question---Mere delivery of petition to respondent without documents and affidavits of witnesses mentioned in the notification would not serve object of S.62 of Representation of the People Act, 1976---Affidavits of certain polling agents/private witnesses were filed along with election petition; therefore, failure to give list of witnesses whose affidavits had been attached with petition would' not be prejudicial to election petitioner---Such witnesses could be produced by petitioner in his evidence and barring them petitioner could not be allowed to produce any other private witness---Petitioner was not required to file affidavits of official witnesses along with the petition---Petitioner failed to append list of official witnesses along with election petition and at belated stage, petitioner could not be allowed to produce official witnesses without specific permission of Election Tribunal but petitioner failed to submit any application seeking permission to produce such witnesses---Election Tribunal partly maintained the objection raised by respondent to the extent that petitioner could move application giving reasons justifying production of official witnesses and documents if any, intended to be produced and proved by petitioner through such witnesses---Objection was disposed of accordingly.

Engineer Jameel Ahmed Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914; Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382; Rai Asghar Ali Khan v. Returning Officer and others 1999 CLC 565; Sardar Akhtar Ali v. Wasim Ahmed 1992 CLC 1437; Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175 and Sardar Khalid Nawaz v. Mian Manzoor Ahmed Wattoo 1987 CLC 1167 ref.

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

---Ss. 62 & 64---Civil Procedure Code (V of 1908), Preamble---Election petition---Provisions of Civil Procedure Code,1908---Applicability---Provisions of Civil Procedure Code, 1908, are not stricto sensu applicable during trial of election petition---Election Tribunal is armed with all powers of a Civil Court. trying a civil suit under C.P.C.---In the light of amended S.62 of Representation of the People Act, 1976, every election petition has to be decided in accordance with the' procedure laid down by Election Commission.

----S. 64---Election petition---Filing of affidavits---Object and scope---Purpose of filing of affidavits of witnesses is that during trial, consumption of time in recording examination-in-chief of witnesses can be avoided---Even framing of issues is not necessary during proceedings of election petition.

Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 rel.

Farooq Haider for Petitioner.

Fakhar-uz-Zaman Akhtar Tarar for Respondent No.1.

CLC 2010 ELECTION TRIBUNAL PUNJAB 613 #

2010 C L C 613

[Election Tribunal Punjab]

Before Ijaz Ahmed Chaudhry, Election Tribunal

Mian IMRAN MASOOD----Petitioner

Versus

Haji NASIR MEHMOOD and 11 others----Respondents

Election Petition No.147 of 2008, decided on 3rd February, 2010.

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

---Ss. 62 & 99(c)(cc)---Conduct of General Elections Order (7 of 2002), Art.8-A---Higher Education Commission Ordinance (LII of 2002), S.10(o)---Election petition---Provincial Assembly, election of---Disqualification of returned candidate---Filing of nomination papers by returned candidate on 26-11-2007 on basis of degree of Bachelor of Business Administration issued in March, 2003, but attested on 12-9-2008 by University of East Hyderabad---Validity---Record showed that such University was not recognized by Higher Education Commission from October, 2007 to 15 August, 2008--Original record of such degree was not available with the University--Copy of such degree was attested on behalf of University on 12-9-2008 i.e. after its recognition by HEC and filing of nomination papers by returned candidate---Nomination day was crucial date for testing qualification of a candidate---Doubtful and suspicious graduate qualification could not discharge positive obligation cast on a candidate to establish his qualification of eligibility to contest general election---Returned candidate was not qualified under law to contest election on basis of such. degree as on nomination day, he was not possessing degree of graduation of a recognized University---No evidence was available on record to show that such disqualification of returned candidate was notorious, thus, candidate securing next higher votes could not be declared elected---Election Tribunal declared that returned candidate was not qualified under law to contest election and directed Election Commission to conduct fresh election in circumstances.

Muhammad Nasir Mehmood and another v. Federation of Pakistan PLD 2008 SC 341 ref.

Mian M. Azam Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449 and Sardar Muhammad Amir Khan v. Nadeem Akhtar and others 2007 SCMR 1044 rel.

Ch. Farooq Haider for Petitioner.

Zahid Sultan Khan Minhas for Respondent No.1.

Date of hearing: 28th January, 2010.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1358 #

2010 C L C 1358

[Election Tribunal]

Before Umar Ata Bandial, J

WAQAR AHMAD CHAUDHRY---Petitioner

Versus

Dr. TAHIR ALI JAVAID and 3 others---Respondents

Election Petition No.59 of 2008, decided on 9th April, 2010.

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

----Ss. 52, 55(3) & 63(a) --- Civil Procedure Code (V of 1908), O. VI, R.15---Qanun-e-Shahadat (10 of 1984), Art. 85---Election petition---Photocopies of public documents attached to election petition not verified on oath by petitioner---Plea of petitioner that photocopies of public document were exempt from rule of verification---Validity---Such copies purported to reinforce allegations made in election petition---Such copies pertaining to election record, judicial record and police record qualified as "public documents", but were neither certified copies nor verified by petitioner---Material sustaining allegations in election petition, whether documentary or oral, must be reliable and truthful, otherwise, such petition would be liable to dismissal---Personal verification of an election petitioner on annexes and schedules attached to the petition would fix upon him responsibility for copies of such documents being genuine and correctness of allegations made in the petition---Only certified true copies of public documents were exempt from rule of verification---Photocopy of a public document would not be better than a secondary evidence not having any intrinsic probative value---Requisite credibility might be lent to a photocopy of public document upon verification by election petitioner---Election petition was dismissed in circumstances.

S.M. Ayyub v. Syed Yusaf Shah and others PLD 1967 SC 486; Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 and Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 rel.

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

----Arts. 87 & 88--- Public document, photocopy of--- Evidentiary value---Such copy could not be relied or accepted as a correct copy of original free from alteration---Only certified copy of such document would possess probative value.

Ch. Maqsood Ahmed for Petitioner.

Mian Naseer Ahmad for Respondents.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1424 #

2010 CLC 1424

[Election Tribunal, Punjab]

Before Sh. Najam-ul-Hasan, J

Captain (Retd.) IZAT JAVAID KHAN---Petitioner

Versus

AHMAD KHAN BALOCH and 4 others---Respondents

Election Petition No.49 of 2008 and C.M. No. 1 of 2010, decided on 10th June, 2010.

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

----Ss. 55 & 63---Civil Procedure Code (V of 1908), O. VI, R.15---Verification of election petition and plaint---Distinction---Defective Verification---Penal consequences---Plea raised by returned candidate was that defective verification was fatal to election petition and deficiency in verification could not be rectified---Validity---Provisions of law which entailed penal consequences were mandatory in nature and lacunae entailing penal consequences of such mandatory provisions could not be allowed to be filled---Although verification of a plaint in suit filed under Civil Procedure Code, 1908, was the same as in election petition, yet there was a great difference between the two---No penal provision was prescribed under Civil Procedure Code, 1908, for non-compliance of O. VI, R.15, C.P.C. as such the same could be considered as directory in nature whereas non-compliance of provisions of S.55 (3) of Representation of the People Act, 1976, entailed penal consequences in terms of its S.63, hence the same were mandatory and must be fulfilled exactly.

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

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

----Ss. 55 & 63---Civil Procedure Code (V of 1908), O. VI, R.15---Election petition---Defective verification---Effect---Non-bifurcating of paragraphs-Failure to 'mention date and place of verification---List of witnesses---Returned candidate sought dismissal of election petition on the ground that the same did not contain proper verification as mentioned in O. VI, R.15, C.P.C.---Validity---Election petitioner while filing petition did not comply with mandatory requirements of law regarding verification of petition and omitted to bifurcate the paragraphs verified on his own knowledge and on information received by him and believed to be true, non-compliance of which was fatal---Mandatory for election petitioner to specifically mention as to which paragraphs of election petition were verified as per his own knowledge and what he believed to be true on the basis of information received as the same was not a formality but might has different consequences---Petitioner neither mentioned the place where verification was made nor did he mention the date on which contents of election petition were verified---Verification was not made by election petitioner in accordance with law and the same being so, the mandatory provision of S.55 (3) of Representation of the People Act, 1976, had not been complied with---Petitioner even did not consider it necessary to support the contents of election petition with his affidavit---Petitioner also did not even verified the annexures appended with the petition as required by the provisions of S. 55(3) of Representation of the People Act, 1976---Even list of witnesses was not appended by petitioner to whom he desired to produce at trial or the gist of facts which such witnesses had to prove at trial along with precise statement of material facts on which petitioner relied--Requirement of law was mandatory in nature and such defects in verification were fatal to petitioner's case---Election petition was dismissed in circumstances.

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

Sh. Dilud-Din v. Election Tribunal Lahore High Court, Lahore 2009 YLR 1930; Sardarzada Zafar Abbas v. Syed Hassan Murtaza PLD 2005 SC 600; Tariq Muhammad Bajwa v. Muhammad Afzal Sahi 1994 CLC 1366; Asif Nawaz Fatiana v. Walayat Shah 2007 CLC 610; Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914; S.M. Ayub v. Yousaf Shah PLD 1967 SC 486; Aman Ullah Khan v. Tariqullah 1997 MLD 612; Haji Liaqat Ali v. Ch. Muhammad Afzal Sahi and 7 others 2004 MLD 1089; Nasir Hamid Qureshi v. Mst. Abbasi Begum and others 2003 SCMR 1553 and Hussain Spinning Unit No.2 v. Authority under the payment of wages and another 2008 PLC 280 ref.

Khalid Jamil and Muhammad Latif for Petitioner.

Abdus Sattar Goraya for Respondent No.1.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1490 #

2010 C L C 1490

[Election Tribunal, Punjab]

Before Rauf Ahmad Sheikh, J

Chaudhary PERVEZ ELAHI---Petitioner

Versus

MUHAMMAD FAIZ TAMMAN and 2 others---Respondents

Election Petition No.140 of 2008, decided on 9th June, 2010.

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

----Ss. 39(3) & 52---Representation of the People (Conduct of Election) Rules, 1977, R.26(2)---Re-counting of votes---Scope---Re-count could not be ordered in routine---Factum of non-checking of rejected votes at time of consolidations of results by Returning Officer must be proved by evidence---Recount could not be ordered without recording evidence to such effect.

Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others PLD 2007 Lah. 141; Muhammad Sarwar and another v. Election Commission of Pakistan through Secretary and 17 others 2006 YLR 502; Muhammad Tariq Zakhmi and another v. Election Tribunal/District and Sessions Judge Hafizabad and 13 others 2002 MLD 284; Kanwar and 2 others v. Irshad Ali and 2 others PLD 1986 SC 483; Pervaiz Bashir Wariach and another v. Election Tribunal/District and Sessions Judge Hafizabad acid 4 others 2006 CLC 1407; Rai Asghar Ali Khan v. District and Sessions Judge Kasur and 2 others 2002 YLR 1324; Muhammad Saeed Qazi and another v. Election Tribunal/Additional District and Sessions Judge Lahore and 16 others 2004 CLC 631; Nadeem Ahmad Wains and another v. Election Tribunal and 5 others PLJ 2006 Lah. 209 and Zulfiqar Ali v. Election Tribunal/Civil Judge Ist Class Khanpur and 5 others 2000 MLD 746 rel.

Ch. Farooq Haider for Petitioner.

Malik Muhammad Kabir for Respondent No.1.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1692 #

2010 C L C 1692

[Election Tribunal, Punjab]

Before Nasir Saeed Sheikh, J

Ch. BILAL IJAZ---Petitioner

Versus

MUDASSAR QAYYUM NAHRA and 4 others ---Respondents

Election Petition No.204 of 2008, decided on 21st June, 2010.

(a) Constitution of Pakistan 1973---

----Art. 62 (f)---Words "sagacious", "righteous", "non profligate", "honest" and "ameen"---Object and scope---As such the words demonstrate a keen desire of the Constitution that persons desiring to engage themselves in the process of law-making for the country must themselves be possessed with high qualities of personal character and moral values---Legislator who indulges into unfair means in earning or procuring his educational documents cannot be termed to be possessing the required standards of high personal characteristics mentioned in Art. 62 (f) of the Constitution---Members of National or Provincial Assemblies on their successful election have been further obliged to take oath as incorporated in Third Schedule of the Constitution with necessary condition of undertaking the performance of duties and functions honestly in accordance with the Constitution.

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

----Arts. 62(f) [as amended by Constitution (Eighteenth Amendment) Act (X of 2010)] & 199---Constitutional petition---Election dispute---Bogus educational degree---Retrospective effect of Constitutional amendment---Scope---Disciplinary Committee of university, action by---Effect---Election of respondent candidate was assailed on the ground that his degree of B.A. was found to be bogus and Disciplinary Committee had found him guilty---Plea raised by respondent candidate was that after amendment in Art. 62 C of the Constitution, there was no requirement for a candidate to have graduation degree---Validity---Person who had indulged into using unfair means in procuring his educational qualifications and was also found guilty by Disciplinary Committee, which was the only authority competent to inquire into the matter of such allegations against candidates appearing in examination of concerned universities, did not deserve to claim to be honest, righteous or ameen person so that he be assigned the high responsibilities performing national functions of running the affairs of country---Amendment in the Constitution was effected through Constitution (Eighteenth Amendment) Act, 2010 dated 19-4-2010---Election petition was instituted on 12-4-2008 and election of respondent candidate, was held in February, 2008, therefore, election petition had to be decided in accordance with the law which existed at the commencement of the Lis---Legislature had not given retrospective effect to Constitution (Eighteenth Amendment) Act, 2010, therefore, amendment effected in Art. 62 CD of the Constitution could not be made applicable---Election Tribunal declared respondent candidate as a person who was neither righteous nor honest and ameen, therefore, election to the seat of respondent candidate was set aside---Election Tribunal declined to declare petitioner as returned candidate as majority of electorates of the constituency in question did not cast their votes in his favour---Election Tribunal directed Election Commission to immediately arrange for holding of by-elections for the constituency in accordance with law---Petition was disposed of accordingly.

M.R. Kamran Sheikh and Ali Akbar Rana for Petitioner.

Ch. Khurshid Ahmad, Azam Nazeer Tarrar and Sh. Shahid Waheed for Respondent No.1.

Date of hearing: 11th June, 2010.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1716 #

2010 C L C 1716

[Election Tribunal, Punjab]

Before Kh. Imtiaz Ahmad, J

ISHTIAQ AHMED MIRZA---Petitioner

Versus

YASIR RAZA MALIK ---Respondent

Election Petition No.228 of 2008, decided on 30th June, 2010.

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

---Ss. 52, 55, 61, 65 & 99---Election Tribunal---Powers---Educational qualification---Scrutiny---Notorious disqualification, principle of---Applicability---Respondent was declared as returned candidate and petitioner assailed his election on the ground that his certificates of matriculation and intermediate were bogus and result of impersonation---Plea raised by petitioner was that after declaring respondent, as disqualified, he be declared as returned candidate---Validity---When Intermediate certificate issued by the Board was result of impersonation then automatically Bachelor degree held by respondent had lost its value also---As the respondent obtained Intermediate certificate through impersonation, so he was disqualified to contest election---Declaration of petitioner to be elected candidate would mean that in fact voters who cast their votes in favour of respondent would be deprived of their right of representation in Provincial Assembly for no fault of them, since they did not know that respondent was not qualified to contest election---Election Tribunal directed Election Commission to conduct re-election in accordance with law---Petition was allowed accordingly.

1988 CLC 2048; 2007 CLC 671; 2000 YLR 2793; 2004 CLC 713; PLD 1976 SC 459; 1998 MLD 1198; 2000 SCMR 1172; 2004 MLD-36; 2005 YLR 937; PLD 1975 SC-6; PLD 1957 SC-91; 1991 CLC 662 and 2003 MLD 185 ref.

PLD 2005 SC 600; 2005 CLC 672; PLD 2007 SC 362 and 2007 SCMR 34 distinguished.

Sheikh Muhammad Ilyas for Petitioner.

Sardar Abdul Razzaq Khan for Respondents.

Date of hearing: 29th June, 2010.

CLC 2010 ELECTION TRIBUNAL PUNJAB 1739 #

2010 C L C 1739

[Election Tribunal Punjab]

Before Sh. Najam-ul-Hasan, J

Mian ABDUL MANAN---Petitioner

Versus

MUHAMMAD IJAZ VIRK and 6 others ---Respondents

Election Petition No.119 of 2008, decided on 6th July, 2010.

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

----S.55(1)(b)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Corrupt or illegal practice---Onus to prove---Where a person alleges illegal and corrupt practices, he has to provide full particulars of such corrupt or illegal practice or illegal act which he alleges to have taken place and also to mention the name of parties alleged to have committed such corrupt or illegal practice or illegal act and date and place of commission of such practice or act---Burden to prove such issue heavily lay on election petitioner to establish allegation of illegal and corrupt practices beyond shadow of doubt giving their full particulars.

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

----Ss.39, 55 (1) (b) & 70---Corruptor illegal practice---Failure to give details of corrupt or illegal practice---Effect---Recounting of votes---Declaring election as a whole void---Principle---Petitioner assailed election of returned candidate on the ground of use of corrupt and illegal practice during polling and failure of Presiding Officer to recounting of votes---Validity---General and sweeping allegations of corrupt and illegal practice which were not corroborated by other pieces of evidence were nothing but bald and vague assertion which could not be given any weight---Petitioner neither pointed out any illegal or corrupt practice on the part of returned candidate nor pointed any place or time where any alleged corrupt act took place---Petitioner failed to prove such issue and the same was decided against him and in favour of returned candidate---If petitioner wanted to have entire votes recounted by Returning Officer he must have satisfied that his request was reasonable---Vague allegations not containing adequate statement of material facts could not be considered as grounds for recounting which could not be granted as a matter of right---Petitioner did not lead any evidence to establish that Presiding Officer had not counted the votes correctly or that double votes had been counted or even that valid votes of petitioner had been rejected---High Court declined to interfere in election result and the same were maintained---Election petition was dismissed in circumstances.

Muhammad Naeem and others v. Ashraf Ali and others 2005 SCMR 1130; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others 2007 CLC 778; Muhammad Ishaq v. The Election Tribunal Senior Civil Judge and others 1984 Law Notes SC 418; Ghulam Qadir Khan v. District & Sessions Judge, Vehari and others 2001 SCMR 237 and Mustafeezuddin v. Arshad Mahfooz and 18 others 2004 CLC 687 ref.

Zahid Sultan Khan Minhas for Petitioner.

Syed Ijaz Qutab for Respondents.

Date of hearing: 1st July, 2010.

Election Tribunal Sindh

CLC 2010 ELECTION TRIBUNAL SINDH 518 #

2010 C L C 518

[Election Tribunal Sindh]

Before Syed Mahmood Alam Rizvi, J

Mr. Farooq Hussain Kashmiri for AJ &K University.

Karachi High Court Sindh

CLC 2010 KARACHI HIGH COURT SINDH 14 #

2010 C L C 14

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDULLAH and 11 others----Applicants

Versus

MUHAMMAD HAROON and 8 others----Respondents

Civil Revision Application No.22 of 2007, decided on 3rd August, 2009.

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

----O. XLI, Rr.30 & 31---Judgment in appeal---Points in controversy requiring determination not formulated in particular form, but appellant Court addressed to such points and recorded findings thereon---Validity---Substantial justice had been done in such case.

Hafiz Ali Ahmed through L.Rs. v. Muhammad Abad and others PLD 1999 Kar. 354 rel.

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

----S. 42---Suit for declaration to protect State land from its fraudulent transfer in favour of defendant---Maintainability---Plaintiff by raising such plea had admitted that he had no right or title in suit-land---No duty was cast upon plaintiff to take pain of filing such suit---Question of fraud was brought to notice of relevant authorities, which had given decision in favour of defendant---Only Government could have challenged such decision---No grievance was caused to plaintiff by such decision---Suit was dismissed in circumstances.

Hafiz Ali Ahmed v. Muhammad Asad PLD 1999 Kar. 354 and S. Shahid Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1978 SCMR 367 ref.

----S. 115---Impugned decision being erroneous in law and/or fact---Revisional jurisdiction of High Court---Scope stated.

Provisions of section 115, C.P.C., envisage interference by High Court only on account of jurisdiction alone i.e. if a Court subordinate to High Court has exercised jurisdiction vested in it or has not exercised such jurisdiction so vested in it. When a Court has jurisdiction to decide a question, it has jurisdiction to decide it rightly or wrongly both in fact and law. The mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction. For an applicant to succeed under section 115, C.P.C., he has to show that there is some material defect of procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of Court in exercise of such jurisdiction. Erroneous conclusions of law or fact can be corrected in appeals and not by way of a revision, which primarily deals with the question of jurisdiction of a Court i.e. whether a Court had exercised a jurisdiction not vested in it or had not exercised a jurisdiction vested in it or had exercised a jurisdiction vested in it illegally or with material irregularity.

Mir Muhammad v. Ghulam Muhammad PLD 1996 Kar.202 and AASA v. Ibrahim 2000 CLC 500 ref.

Qamar Muhammad Khan for Applicants.

Inam Nabi Soomro for Respondents Nos. 1 to 3.

Ms. Afsheen Aman for Respondents Nos.4 to 9.

Date of hearing: 25th March, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 58 #

2010 C L C 58

[Karachi]

Before Faisal Arab, J

Syed MATANAT MOAZZAM BUKHARI---Petitioner

Versus

Dr. ARFA SAEED and 2 others----Respondents

Constitutional Petitions Nos.S-337 and S-444 of 2007, decided on 9th September, 2009.

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

----S. 5, Sched. & S.10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ix)---Suit for dissolution of marriage on ground of Khula---Failure of re-conciliation between parties at pre-trial stage---Effect---Wife had a right to seek Khula from husband through a Court of law, when relations between them were strained to such an extent where they became irreconcilable---Wife in the present case had expressed her irretrievable position that she could no more live in peace and harmony with husband---Wife was granted Khula in circumstances.

Shariat Petition No.1/K of 2007 fol.

Shafi Muhammadi for Petitioner.

M.A. Qadri for Respondent No.1.

Date of hearing: 27th August, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 99 #

2010 C L C 99

[Karachi]

Before Faisal Arab, J

ABDUL REHMAN----Petitioner

Versus

ZIA-UL-HAQUE MAKHDOOM and 2 others----Respondents

Constitutional Petitions Nos.333 and 334 of 2009, decided on 13th August, 2009.

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

----S. 8---Fair rent, determination of---Scope---Payment of Pugri to landlord or value on which landlord became owner of demised premises would be not taken into consideration while determining fair rent.

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

----S. 8---Premises in commercial market---Fair rent, determination of---Where area of such premises is smaller, then per square feet rate would be higher.

PLD 1994 SC 725 ref.

Muhammad Anwar Tariq for Petitioner.

Khalid Javed Khan for Respondents.

CLC 2010 KARACHI HIGH COURT SINDH 120 #

2010 C L C 120

[Karachi]

Before Gulzar Ahmed, J

Mst. SAFIA MUSHTAQ----Applicant

Versus

WALI MUHAMMAD and 18 others----Respondents

Review Application No.34 of 2009, decided on 28th September, 2009.

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

----Ss. 42, 54 & 55---West Pakistan Land Revenue Act (XVII of 1967), Ss.172 & 53---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration, permanent and mandatory injunction---Application for rejection of plaint---Application under O. VII, R.11, C.P. C. was filed by the defendant for rejection of plaint in the suit contending that suit was barred in terms of 5.172 of West Pakistan Land Revenue Act, 1967, which had excluded the jurisdiction of civil courts---Disputed facts regarding the title of suit property would require recording of evidence---Under provisions of S.53 of West Pakistan Land Revenue Act, 1967, a person who was aggrieved by an entry in the record of rights and claimed right of which he was in possession, could institute" a suit for declaration of his right under Specific Relief Act, 1877---Plaintiff having claimed right and possession of the suit property and being aggrieved of cancellation of entry from record of rights, provisions of S.53 of West Pakistan Land Revenue Act, 1967 would be attracted to the facts and circumstances of the case---Suit filed by the plaintiffs would, not be barred under S.172 of the West Pakistan Land Revenue Act, 1967, which also had made exception to the provisions of said S.53 of the said Act---Suit filed by the plaintiff was not barred by law in circumstances.?

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

----S. 115---Revision before High Court---Maintainability---Revision petition filed by the petitioner against judgment and decree passed by the Trial Court, was objected to on the ground that same ought to have been filed in the District Court and not directly in High Court against impugned order---Contention of counsel for the petitioner was that S.115, C.P.C. had conferred concurrent jurisdiction upon the High Court as well the District Court---Validity---Section 115, C.P.C., had given concurrent jurisdiction to High Court as well as the District Court to entertain revision petition against order passed by the courts below---Subsection (2) of S.115, C.P.C. was the provision by which concurrent jurisdiction was conferred upon the District Court, but such conferment of concurrent jurisdiction was limited where the amount or value of subject matter would not exceed the limits of its appellate jurisdiction---Such being limitation placed upon the District Court for entertaining the revision petition, it had no application to the High Court, nor such provision would take away the jurisdiction of High Court from entertaining the revision petition against the order passed by a court subordinate to it---Revision petition was maintainable. ?

1993 SCMR 618; PLD 1991 Lah. 314; 1988 CLC 1812; PLD 1995 Lah. 15; PLD 1980 Revenue 27; 1984 SCMR 228; 1991 MLD 345 and 2001 CLC 200 ref.

Syed Ansar.Hussain for Applicant.

Muhammad Arshad Pathan for Respondents Nos. 1 to 15.

Allah Bachayo Soomro, Addl. A.-G. for official Respondents.

CLC 2010 KARACHI HIGH COURT SINDH 141 #

2010 C L C 141

[Karachi]

Before Nadeem Azhar Siddiqi, J

TEXTAINER EQUIPMENT MANAGEMENT LIMITED----Plaintiff

Versus

MEGAFEEDER (PVT.) LIMITED and another----Defendants

Suit No.481 and C.M.A. No.4267 of 2007, decided on 9th April,, 2009.

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

----O. VII, Rr.2 & 11---Suit for recovery of amount---Rejection of plaint---Application for---Ingredients required for dismissal of suit---For the purpose of deciding an application under O. VII, R.11, C.P.C., only the averments made in the plaint were to be taken into consideration and nothing else was to be considered for that purpose---Plaintiff in the plaint had shown, the cause of action that had accrued--Mere denial by the defendants could not suffice---Provisions of clause (a) of O.VII, R.11, C.P.C. were of no help to the defendants---No controversy as envisaged under clauses (b) and (c) of O. VII, R.11, C.P.C. with regard to valuation of the relief claimed or the same being written on insufficiently stamped paper---Under clause (d) of O. VII, R.11, C.P.C., the court was to decide on the basis of the averments made in the plaint whether the suit was barred by any law---Application filed by the defendants under O. VII, R.11, C.P.C. was dismissed.

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

----O. VII, R.2 & O.XXIX, R.1---Qanun-e-Shahadat (10 of 1984), Art.95---Suit for recovery of amount---Filing suit on behalf of a company---Presumption as to power-of-attorney---Scope---Suit or any other proceeding filed by a person on behalf of a company without having been duly authorized to do so by the company would be without lawful authority and liable to be dismissed as such---Where a suit had been filed by a duly authorized person, but such authority had not been produced at the time of filing of the suit, same could not be said to be filed by the incompetent person, that at the best could be termed as an irregularity which was curable and not as an illegality---Power of attorney executed and authenticated by Notary -Public or any Court, Judge, Magistrate, Pakistan Consul or Vice Consul or representative of the Federal Government, was to be presumed to have been so executed and authenticated.

Ghulam Mohiuddin and another v. Noor Dad and others PLD 1988 SC (AJ&K) 42 and Ismail and another v. Mst. Razia Ahmad and others 1981 SCMR 687 ref.

----Arts. 117 & 118---Burden of proof---Once the initial burden was discharged by the plaintiff, it was for the defendants, to rebut the same by evidence.

Mansoor Shaikh for Plaintiff.

Kh. Shamsul Islam for Defendants.

CLC 2010 KARACHI HIGH COURT SINDH 159 #

2010 C L C 159

[Karachi]

Before Shahid Anwar Bajwa, J

Hafiz MANSOOR AHMED and 4 others----Petitioners

Versus

Vth ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 4 others----Respondents

Constitutional Petition No.383 of 2004, decided on 16th November, 2009.

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

---Ss. 15(2)(ii), (iii)(a) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on grounds of default in payment of rent and subletting---Rent Controller allowed application on ground of subletting, however, ground of default in payment of rent was dismissed---Appellate Court however, allowed appeal against judgment of the Rent Controller and landlord had filed constitutional petition against judgment of the Appellate Court--Alleged sub-tenant who admittedly was living in the premises in question, had claimed that in fact he was living in different premises since 1974, whereas ejectment application was filed in 1998---Said sub-tenant neither had produced documents of said other property nor any rent agreement of the same---If said subtenant had been living in said other premises for 21 years surely he must have been in possession of some documents to establish, as to whether and in what capacity had he been living there; whether he was owner or tenant---No such document had been produced by him---Landlord had successfully proved his case of subletting---High Court accepted petition, set aside impugned order passed by the Appellate Court and directed tenants to hand over the vacant peaceful possession of tenement to landlord within specified period.

M. D. Tahir, Advocate v. Lahore High Court through Registrar 1994 SCMR 1507; Tariq Hussain Hashmi and others v. Master Ali Ammar and others 2001 MLD 21; Minochar N. Kharas represented by Legal Heirs v. Ali Hassan Manghi and 6 others 1986 CLC 1378; Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others PLD 1982 SC 79; Haji Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439; Abdul Salam v. Mrs. Tahir Zaidi 1988 MLD 1854 and Matloob v. Syed Abdul Qayyum 1988 MLD 2150 ref.

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

----Arts. 117 & 118---Burden of proof---Once evidence of both sides was recorded, the question of burden of proof would lose its shine---Court was supposed to evaluate the evidence of two sides and thereafter to decide question on the basis of preponderance of evidence.

Naeem Iqbal for Petitioner.

Altaf Hussain for Respondent No.3.

Date of hearing: 29th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 178 #

2010 C L C 178

[Karachi]

Before Amir Hani Muslim and Ahmad Ali Shaikh, JJ

Messrs FATIMA HOUSING SCHEME though Managing Partner----Petitioner

Versus

SUPERINTENDING ENGINEER HESCO CIRCLE-I, HYDERABAD and 2 others ----Respondents

Constitution Petition No.D-553 of 2009, decided on 4th November, 2009.

Electricity Act (IX of 1910)---

----Ss. 22 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Supply of---Charges of---Petitioner approached Authority for installation of transformer and electricity connection for his premises---Superintendent Engineer of the Authority issued demand notice and a bill of Rs.15,000 for the cost of material and installation of electric connection, which was deposited by, the petitioner accordingly, but despite that Authority did not install the transformer and failed to provide electric connection to the petitioner---Authority not only failed to install transformer and electricity connection to the petitioner, but had issued an advance bill showing consumption of units with direction to the petitioner to pay said bill in advance for three months---Authority could not produce any provision of Electricity Act, 1910 under which advance bill of the payment was required to be paid---Once the Authority had received the requisite amount for transformer and security deposit, it could not offer plausible explanation, except that it was the practice of the Authority to issue such bills in advance as security---Demand notice, contained words "Security Deposit" which had already been deposited by the petitioner---Advance bill issued by the Authority to the petitioner was not covered under any provision of law---Counsel for the Authority had failed to justify such advance bill---After receipt of the security deposit, demand of authority by way of advance bill, was without lawful authority---Constitutional petition was allowed.

Petitioner in person.

Syed Mujeeb Alam Shah for Respondents Nos.1 to 3.

CLC 2010 KARACHI HIGH COURT SINDH 191 #

2010 C L C 191

[Karachi]

Before Faisal Arab, J

BASHIR DAWOOD----Appellant

Versus

Haji SULEMAN GOAWALA & SONS LTD. and others----Respondents

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

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

----O. I, R. 12---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Appearance of only one defendant as witness but due to his advance age and mental 'incapacity, he was unable to continue with his deposition---On behalf of rest of the defendants, another defendant appeared as witness---Effect---Where there was common cause or common defence, it was not necessary that each of the defendant should appear to defend their suit any of them could appear as witness.

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

----S. 12---Civil Procedure Code (V of 1908), O. VI, R.1---Suit for specific performance of contract---Pleadings---After the disclosure of the respective positions of the parties in their pleadings, no evidence which deviated from or was contrary to the pleadings was to be looked into---Rights and obligations of the respective parties were always to be determined keeping in view only such pleas that had been taken by them in their respective pleadings---Evidence that was adduced by the parties was also to be looked into only to the extent it supported or opposed the plea that had been taken by the parties in ,their pleadings---Any piece of, evidence which was beyond the scope of the pleadings could not be considered while deciding a controversy---Party could not be allowed to lead evidence contrary to its pleadings, nor could a party be permitted to take a plea different than plea, which it had taken in its pleadings---Any part of evidence which was beyond the pleadings was ought to be overlooked as improvement of the nature being afterthought and impermissible in law.

Ehtesharnuddin Qureshi v. Pakistan Steel Mills 2004 MLD 36 ref.

----O. XVIII, R. 2---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Production of evidence---Plaintiff had to adduce evidence in support of his plea that he had taken in his plaint---However, no evidence was required to establish a plea which was 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 was admitted or had not been controverted by the plaintiff in his evidence, then too, applying the same principle, required no evidence from the defendant to prove such a plea---Adducing evidence was not a legal requirement which was to be fulfilled in every eventuality, but evidence was required to be adduced by a party, be it a plaintiff or defendant, only to establish disputed questions so that the court was able to resolve conflicting claims---Where record of the case reflected that a party's plea had either been admitted or had remained uncontroverted by the other side, either in its pleadings or in the evidence, then adducing evidence to establish an admitted or uncontroverted plea would be an exercise in futility.

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

----S. 46---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Time for performance of contract---Absence of time for performance of the contract, was also of no legal consequence for the reason that when time for performance of a contract was not specified, it had to be performed within a reasonable time---Section 46 of Contract Act, 1872 provided for such eventuality---Even if parties had not specified any time for the performance of a contract, the same would not make it unenforceable in law---Court could read into such contract a time which it deemed reasonable for its performance, keeping in view the circumstances of each contract---However, in order to find out as to which of the two parties were at fault in the performance of contract keeping in view their respective pleadings as to the time of performance; it was necessary to first examine the question as to what was the time that was settled for the performance of the contract.

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

----S. 12---Specific performance of contract---Acceptance of return of earnest money by the purchaser without any protest---Effect---Where the purchaser would accept the return of the earnest money without any protest, that fact by itself would amount to putting an end to the contract, irrespective of the fact that the time fixed between the parties for the performance of the contract had expired or not---Plaintiff by receiving back the advance amount, had in fact given up all his rights that he possessed under the contract---Such being the position emerging from the conduct of the plaintiff itself, it mattered not whether time was essence of the contract or what was the actual sale consideration that was settled between the parties---Plaintiff from his own conduct of accepting the return of advance payment had amply demonstrated that whatever were the terms of contract, it had put an end---Even in contracts where time was not of an essence, the purchaser had to demonstrate that at all material time he was ready and willing to perform his part of contract---In order to retain its right to seek enforcement of the contract, the plaintiff ought to have demonstrated that he was ready and willing to perform its part of the contract at all material times and should not have received back the advance payment---After accepting the return of the advance amount, nothing was left to be enforced---Contract simply stood terminated by the conduct of both the parties which appeared to be the mutual intent at the relevant time---When advance payment was returned back to the plaintiff offer of balance sale considerations or defendants refusal to accept the same at the best would be considered as an unilateral attempt to revive a dead contract, in case the offer was made after the return of the advance payment---Trial Court in circumstances, had rightly dismissed plaintiff's suit for specific performance.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXIX, R.1 & S.100---Suit for specific performance of contract by Corporation---Verification of pleadings---Counsel for the plaintiff/corporation had argued that O.XXIX of R.1, C.P.C. by itself having authorized Director of Corporation to file suit on behalf of the company, suit was competently filed---Validity---Scope of 0.XXIX, R.1, C.P.C. was limited only to the signing and verification of pleadings by certain named officers of a company or corporation who were able to depose to the facts of the case---Said rule neither deals with the frame of the suit nor grants authority to those named officers to institute suit on behalf of a company or corporation---Order XXI, R.1, C.P.C. was only an enabling provision which enabled certain persons to sign and verify pleadings of a suit which should have otherwise been validly instituted under requisite authority of a company or corporation granted either by the Board of Directors or under the authority derived from Articles of Association of the company---No resolution authorizing the Managing Director to institute a suit was produced in evidence---No Director in his individual capacity could manage the affairs of the plaintiff/company which under Articles of Association exclusively vested with its Board---Suit was filed by the plaintiff-company/corporation through its Managing Director, who at the time of filing of the suit, did not possess authorization from the Board to act on his own and file suit on behalf of the plaintiff---Before a suit could be termed as competently filed, it was necessary that authorization in that regard must come from plaintiff's/company's Board of Directors---Absence of authorization to file suit had become fatal to the maintainability of the suit---Suit filed without proper authorization was to be treated as not maintainable and liable to be dismissed on that score alone---Impugned judgment and decree passed by the Appellate Court was set aside and judgment and decree passed by the Trial Court whereby suit was dismissed, was restored.

1979 CLC 280; 2004 MLD 1778; 2005 MLD 1745; PLD 1970 SC 25; PLD 1975 SC 598; PLD 1977 SC 109; 1979 CLC 338; 2003 MLD 205; 2008 CLD 85; 2003 SCMR 318; 1996 CLC 1064; 2003 CLD 1497; AIR 1937 Nag. 379; PLD 1990 Lah. 208; 2003 CLD 1497; 2008 CLD 727; Muhammad Siddiq v. Australasia Bank Ltd. PLD 1966 SC 684; Iftikhar Mamdot v. Ghulam Nabi Corp. PLD 1971 SC 550; Central Bank of India v. Taj-ud-Din Abdur Rauf 1992 SCMR 846; Pemco International v. Hubei Machinery Corp. 2005 CLD 74; 1996 CLC 1616; 1986 MLD 206; 1985 PLC 1321; PLD 1966 Dacca 486; Gulzar Khan v. Shahzad Bibi PLD 1974 SC 204; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311; 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.

Farogh Naseem, Abid Zubairi, Malik Muhammad Ejaz for Appellants.

Khalid Anwar, Mushtaq A. Memon, Faisal Kamal for Respondents.

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

CLC 2010 KARACHI HIGH COURT SINDH 214 #

2010 C L C 214

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD ASIF RANA---Petitioner

Versus

ABDUL MAJEED ALI M. SABADIA through Attorney and 2 others----Respondents

Constitutional Petition No. S-515 of 2009, decided on 15th October, 2009.

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

-----S. 15(2)(ii), Proviso [as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]---Ejectment of tenant on ground of default, in payment of rent---Applicability of Proviso to S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979---Proviso to S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979 would be applicable only when the four conditions would be met which were that ejectment application was filed on the sole ground of default in payment rent; that default would not exceed six months; that on the first date of hearing tenant admitted his liability to pay rent claimed; and that it was not a case of first default and Rent Controller directed tenant to pay rent claimed on or before the date to be fixed for that purpose---When all said four conditions were met proviso to clause (ii) of subsection (2) of S.15 of the Ordinance kicked in---If a single condition would not be there, said proviso could not be made applicable to the case---Default in the present case had specifically been denied--In presence of such specific denial and in absence of clear statement of admission of liability by the tenant, tenant could not claim benefit of the proviso to S.15(2)(ii) of the Ordinance.

Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741; Abdul Samad Khan v. Asif Malik (Asif Zaman Khan) 1989 CLC 1994; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Imran Khan and others .v. Aftab Khan 2008 CLC 1043 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Question of fact could not be gone normally into particularly when they had, been decided concurrently by the two courts below.

M.M. Tariq for Petitioner.

Muhammad Aqil for Respondent No.1.

Date of hearing: 15th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 232 #

2010 C L C 232

[Karachi]

Before Shahid Anwar Bajwa, J

Miss RAKSHANDA KHATOON through Attorney----Petitioner

Versus

NAWAB DIN and 2 others----Respondents

Constitutional Petition No.594 of 2008 arid C.M.A. No.4183 of 2009, decided on 27th October, 2009.

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

----Ss. 2(F)(J) & 15(2)(ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Relationship of landlord and tenant---Respondent/tenant had clearly admitted that firstly he paid rent of shop in question for more than 20 years to its previous owner; and secondly he even paid rent to the petitioner/landlady for a period of two months-Respondent/tenant in his written statement had stated that he had constructed shop in question himself on piece of land which he had acquired 27 years ago---Tenant, however, could not state that as to under what authority he acquired that land; did he purchase it or was it gifted to him or he was a mere trespasser---Landlord could not be the owner, but once a tenant, always a tenant'---Having himself taken position in his written statement that respondent was paying rent and therefore tenant, he could not take different position and to say that he ceased being tenant---Where tenant denied relationship of landlord and tenant and such relationship stood proved, then there was no other way left to the court but to order ejectment of the tenant---In the present case respondent firstly accepted that he was a tenant, then accepted that he stopped paying rent---Order of Rent Controller. hereby ejectment application filed by the landlady was accepted, was in conformity with the law.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court being an extraordinary jurisdiction, was to be exercised to foster ends of justice---Constitutional jurisdiction ,was discretionary jurisdiction; and the court' could decline even to set aside an illegal order if doing so would perpetuate injustice or would perpetuate another illegal order---High Court could grant relief, even though it could not have prayed for---High Court could not allow an injustice or a wrong act to be perpetuated.

Mirza Waqar Hussain.

CLC 2010 KARACHI HIGH COURT SINDH 243 #

2010 C L C 243

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

CIVIL AVIATION AUTHORITY through Director Airport Management----Plaintiff

Versus

Messrs BLAZON ADVERTISING through Chairman----Defendant

Suit No.1008 and J.M. No.16 of 2007, decided on 3rd February, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex parte decree, setting aside of---Non-service of process---Incorrect address---Defendant residing abroad---Even after publication of summons in local newspaper, the matter was placed before Court, when directions were issued that summons to defendant through bailiff be served---Again bailiff reported that defendant had shifted from given address---Plaintiff was asked to file fresh address but in place of filing fresh address on the request of plaintiff matter was fixed in court and on the basis of publication of earlier summons in local newspaper suit was ordered to be proceed ex parte and ex parte decree was passed---Validity---Such ex parte decree passed against defendant was illegal being in violation of principles of natural justice, therefore, the same was set aside---Application was allowed in circumstances.

Amir Malik for Plaintiff.

Nadeem Akhtar for Plaintiff Applicant-Defendant.

CLC 2010 KARACHI HIGH COURT SINDH 273 #

2010 C L C 273

[Karachi]

Before Shahid Anwar Bajwa, J

Khawaja ZAIUL ISLAM-Applicant

Versus

ALAUDDIN MALIK and another----Respondents

R.A. No.41 of 2008, decided on 19th November, 2009.

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

----S. 12---Civil Procedure Code (V of 1908), S.151 & O.XLI, R.19---Dismissal for non-prosecution-Date of hearing---Not fixed for---Effect---Plaintiff filed suit for specific performance, mandatory and permanent injunction in respect of the disputed property claiming therein that one of the defendants/purchaser purchased the disputed property from the seller and the said seller had told the plaintiff that he was attorney of the purchaser and then agreed to sell the disputed property to the plaintiff---Trial Court decreed the suit of the plaintiff---Appellate Court on appeal dismissed the same for non-prosecution--Application under O.XLI, R.19 read with S.151, C.P.C. was filed for re-admission/restoration of the said appeal which was also dismissed for non-prosecution-Another application for restoration of application under O.XLI, R.19, C.P.C. was filed on the ground that on 3-2-2007 matter was fixed for service of applicant under O.XLI, R.19, C.P.C. and therefore it could not be dismissed for non-appearance of the defendant's counsel---Validity---On 3-2-2007 court could have held service good when both the counsel were present and then adjourned the matter to a date for hearing---If both counsel were present there was nothing to preclude the court to hear both parties with their consent and thereafter to decide the matter---Circumstances did not warrant 'dismissal of application---Order of the Appellate Court suffered from an infirmity---High Court dismissed the order passed by Appellate Court for dismissal of the application and remanded the matter to Appellate Court to first decide application under O.XLI, R.19, C.P.C. and thereafter in the light of its such decision proceed in accordance with law---Petition was allowed accordingly.

Ahmed Nawaz and 4 others v. Abdul Khalique and 13 others 2002 MLD 1783; Ghulam Fareed v. Shahid-ud-Din Toghalaq; PLD 2008 Kai. 536; Faqir Alam and 10 others v. Ajab Khan and 15 others 1986 CLC 1320; Zahid Ahmad v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252; Zaheeruddin v. Hashmatullah 1986 CLC 2609; Sindh Sugar Corporation Limited v. Messrs Maqbool Associates Karachi 2008 SCMR 47; Mohammad Ashfaq v. Agricultural Development Bank of Pakistan; 2000 CLC 1760; Syed Junaid Akhtar and others v. Managing Director/Chairman PLD 2008 SC 130 and Nabi Bakhsh and others v. Muhammad Aslam and 7 others 1988 MLD 1830 ref.

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

----O. XLI, R.19, O.XLIII, R.1(t)---Application for restoration of appeal under O.XLI, R.19, C.P.C.---Maintainability---Scope--Application for restoration of application for re-admission of appeal had been dismissed---Order XLIII, R.1(t), C.P.C. was not available to the applicant---Application was maintainable.

----O. I, R.10---Intervener---Party to the proceeding---Scope of--Intervener can be impleaded as a party only when either it is a necessary party or it is a proper party.

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

----O. I, R.10---Subsequent purchaser---Whether necessary or proper party---Scope---Subsequent purchaser who purchased the property during pendency of dispute between seller and buyer of the same property was neither necessary party nor proper party.

Khuwaja Shamsul Islam for Appellant.

Ch. Muhammad Ramzan for Respondents.

Zulfiqar Noorani for Respondent.

Zayyad Khan Abbasi for Intervener.

Date of hearing: 27th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 292 #

2010 C L C 292

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. MIR BAHAR and others----Applicants

Versus

SAUDABAD COLONY TRUST through Deputy Commissioner and 2 others----Respondents

Revision Application No. 1 39 of 2002, decided on 23rd November, 2009.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.72---Specific performance of agreement to sell---Transfer letter---Proof---Failure to produce transfer letter---Contention of plaintiff was that suit plot was transferred in his favour by Welfare Officer of the Trust but the Trust declined to execute lease deed in his favour---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same---Validity---Plaintiff had pleaded that it was Welfare Officer who had allotted him the piece of land, such allotment, if at all, was non-est, bye-laws of the Trust did not contain any such authority for Welfare Officer---Letter of transfer relied upon by plaintiff was a cyclostyled document, whereon even signatures were cyclostyled and the letter was not produced in evidence---Even during appeal no efforts had been made to prove existence of that transfer letter---High Court declined to act and decide on the basis of such a document which had no legs to stand upon---Once a trespasser always a trespasser---Plaintiff stated in his plaint that he was put in occupation and his claim was that he was allotted plot in question by Welfare Officer but plaintiff had not been able to produce that Welfare Officer in the dock---Plaintiff had been in illegal occupation of plot in question and no authorized person or the Trust put him in possession or had allotted the plot to him, therefore, plaintiff was mere a trespasser always liable to eviction---High Court maintained judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Ali Gohar Soomro for Applicants.

Yousuf Iqbal for Respondents.

Date of hearing; 28th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 308 #

2010 C L C 308

[Karachi]

Before Shahid Anwar Bajwa, J

YOUSUF AZIZ and another----Appellants

Versus

ASIM SALEEM----Respondent

First Rent Appeal No.14 of 2007, decided on 12th November, 2009.

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

----S. 17---Ejectment of tenant---Bona fide personal need of landlord---Choice of landlord---Scope---Landlord claimed that demised premises was required by him for his own use and tenant had committed default in payment of monthly rent---Rent Controller allowed the application and passed eviction order on the basis of bona fide personal need of landlord---Validity---Was not for the court or for opponent to decide as to which should be the premises suitable for need of landlord---Such was sole, exclusive and absolute discretion of landlord to decide as to which premises or which part of premises would be suitable to his requirements---Neither court nor the opponent could be allowed in such regard to supplant the opinion of landlord who had clearly stated that he had been living with his uncle---No one could be denied the right of landlord to live in his owned premises---High Court declined to disturb the conclusion reached at by Rent Controller on the issue of bona fide personal need---Landlord established default in payment of rent in terms of rate of rent as well as by first deposit having been made in the Court of Rent Controller---Eviction order passed by Rent Controller was in consonance with evidence produced before the court---Appeal was dismissed in circumstances.

PLD 1981 Kar. 170; PLD 1996 SC 724; PLD 2006 Lah. 684 and 2005 CLC 564 distinguished.

Azizullah Khan for Appellant.

M.K. Badar for Respondent.

Date of hearing: 27th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 323 #

2010 C L C 323

[Karachi]

Before Shahid Anwar Bajwa, J

PAKISTAN HANDICRAFTS, SINDH SMALL INDUSTRIES CORPORATION, GOVERNMENT OF SINDH----Petitioner

Versus

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (PVT.) LTD. and 2 others----Respondents

Constitutional Petition No.S-82 of 2007, decided on 11th November, 2009.

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

----S. 21---Limitation Act (IX of 1908), Art.181---Application for restoration of appeal dismissed on 19-11-2004 for non prosecution---Filing of such application on 31-10-2005---Validity---Order passed by Rent Controller being not a decree, such application would be governed by Art.181 of Limitation Act, 1908 and was, not time-barred.

Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 and Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212 ref.

Yousuf v. Fazal Karim 1983 PLC 2219 and Afzal Begum and another v. Y.M.C.A. through General Secretary PLD 79 SC 18 rel.

(b) Limitation---

----Limitation is not a technicality as limitation confers very valuable rights.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 fol.

Khawaja Shamsul Islam for Petitioner.

Nasrullah Awan for Respondents.

Date of hearing: 20th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 337 #

2010 C L C 337

[Karachi]

Before Shahid Anwar Bajwa, J

SHAMAUDDIN----Petitioner

Versus

IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE (EAST) KARACHI and another----Respondents

Constitutional Petition No.S-184 of 2009, decided on 13th November, 2009.

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

----S. 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for summoning of witnesses---Non-mentioning of any reason by tenant in application except names of witnesses finding' mention in written statement also---Rejection of application by Rent Controller for failure of tenant to show as to why such witnesses were not in touch with him or had not agreed to file their affidavit-in-evidence or were beyond his control to put them in witness-box; and that application was silent as to nature of testimony likely to be made by witnesses to be called through court---Validity---Tenant in constitutional petition had not urged any ground to such effect---High Court refused to interfere with impugned order in circumstances.

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

----Art. 199---Constitutional petition---Concurrent findings of fact by two courts below---Validity---Normally High Court would not interfere with such findings except in rare and exceptional circumstances as of non-reading or misreading of evidence or misapplication of a provision of law or incorrect application of a principle of law laid down by superior courts.

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acceptance of ejectment petition on ground of bona fide personal need of shop for son of landlord---Validity---Landlord in ejectment petition had stated that he was facing financial problems and wanted to expand his sources of income and required shop for use by his son having completed his matriculation---Landlord had clearly established that he had son of 18 years age and he needed shop for use of his son---Landlord had exclusive right to decide to expand his sources of income; and that no court could assume to itself right to decide whether a landlord should be allowed to expand his resources of income or not---Two courts below had rightly recorded concurrent findings of fact in favour of landlord---High Court dismissed constitutional petition in circumstances.

Abde Ali v. Sheikh Hatim Bhaxi 2003 SCMR 730; Muzaffar Aleem v. Iqbal Ahmad 1999 MLD 3178; Adeel Ahmed Sajid v. Shafqat Hussain and 2 others 2009 CLC 34; Muhammad Ghazi Qureshi v. Muhammad Mudasir 2008 CLC 1629; Abdul Haneef Khan v. Vth Additional District and Sessions Judge; Karachi Central and 2 others 2008 CLC 1271; Malik Muhammad Zakria Kansi v. Dr. Bashir Ahmed PLD 2001 Quetta 40; Muhammad Shafi v. Shahid Nadeem and 5 others 1999 CLC 1273; Syed Fazilatul Hoda v. Bashir Muhammad 1997 CLC 992; Shah Zareen v. Sada Gul 1998 MLD 903; Muhammad Atique v. Muhammad Hanif Khan 1996 SCMR 1260; Murad Ali v. Sultan Aziz and others 1988 CLC 2281; Mrs. Rafiqa Begum through her legal heirs v. Mrs. Mahmooda Wahidina PLD 1987 Kar. 287; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051; E.M. Cordeiro (Cedaro) v. Juzer Fakhruddin and another 1992 MLD 1155; Mst. Shirin Bai v. Famous Art Printers (Pvt.) Limited and others 2006 SCMR 117; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Muhammad Arif v. Mrs. Anwar Jehan 2000 SCMR 1960 ref.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Javed Khalique v. Muhammad Irfan 2008 SCMR 28 and Abdul Ghani v. Muhammad Bashir and other 2005 SCJ 41 rel.

Muhammad Arif for Petitioner.

Riffat Memon for Respondent No.2.

Date of hearing: 16th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 346 #

2010 C L C 346

[Karachi]

Before Shahid Anwar Bajwa, J

MUBASHIR HUSSAIN SHAH----Petitioner

Versus

1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI EAST and 2 others----Respondents

Constitutional Petition No. S-295 of 2009, decided on 6th November, 2009.

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

----Ss. 16(1) & (2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-compliance of tentative rent deposit order---Order of Rent Controller dated 22-4-2008 directing tenant to deposit arrears of rent within 30 days and future rent by 10th of each month---Deposit of arrears of rent by tenant on 27-5-2008 and rent for May/June, 2008 on 10-5-2008---Landlord's application for striking off defence of tenant---Non-filing of counter-affidavit by tenant to such application---Acceptance of such application by Rent Controller and dismissal of tenant's appeal filed thereagainst---Plea of tenant that he had gone for Tableegh-e-Islam for forty days and returned back on 25/26th May, thus, he could not know about passing of such order--Validity---Tenant had not asserted as to how he came to know about requirement of deposit of future rent on 10th May---Tenant knew of such order at least on 10th of May, when he deposited future rent--Tenant had failed to make out any ground for interference with concurrent orders of courts below---High Court dismissed constitutional petition in circumstances.

Mst. Fatim-un-Nisa and others v. Mrs. Zubaida 1990 SCMR 750; Jamil Ahmad v. Mrs. Sultan Jehan Begum 1987 CLC 1391; Jawaid Ashraf Khan v. Mst. Suriya Begum 1999 MLD 2886; Babar Parvezv. Muhammad Saad 2000 CLC 1134; Messrs Platinum Insurance Co. Ltd., v. Messrs State Life Insurance Corporation of Pakistan, 1991 MLD 1256; G.Z. Malik v. Mrs. Khayyam Baig, PLD 1991 Kar. 370 and Messrs Pragma Leather Industries v. Mrs. Sadia Sajjad, PLD 1990 SC 724 ref.

Naeem Iqbal for Petitioner.

Ms. Mehrunisa for Respondents.

Date of hearing: 21st October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 354 #

2010 C L C 354

[Karachi]

Before Shahid Anwar Bajwa, J

ZULFIQAR AHMED KHAN----Petitioner

Versus

STATION COMMANDER, STATION HEADQUARTERS, KARACHI and another----Respondents

Constitutional Petitions Nos.S-422 to S-425 of 2009, decided on 11th December, 2009.

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

---Ss. 3 & 17(11)---Central Government Land and Buildings (Recovery of Possession) Ordinance (LIV of 1965), S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Building owned by Federal Government---Shops in question were owned by Federal Government and petitioners were tenants in the shops---Petitioners filed suit for restraining Federal Government from dispossessing them from the shops in question but the suit was rejected on the ground that remedy before Civil Courts was not available---Petitioners then initiated proceedings before Rent Controller but the same were also dismissed on the ground that the shops were covered under S.3 of Cantonments Rent Restriction Act, 1963---Validity--Except to the extent of S.17(11) of Cantonments Rent Restriction Act, 1963, remaining provisions were not applicable to building or premises owned by Federal Government or other authorities named in S.3 of Cantonments Rent Restriction Act, 1963---Tenant of such building could not have recourse to any proceedings under Cantonments Rent Restriction Act, 1963 but it did not mean that authority that owned the premises had unfettered licence---If Federal Government was to seek eviction on the grounds of non-payment of rent or for infringement of any of the terms of possession or occupation, it had to move the concerned Rent Controller under S.17(11) of Cantonments Rent Restriction Act, 1963---High Court directed the authorities to put the petitioners in occupation of their respective shops---Petition was allowed accordingly.

PLD 1987 SC 107; PLD 1966 SC 1; 1987 CLC 591; 2002 YLR 1268; PLD 1957 SC (Pak) 157 and Messrs East-West Insurance Company Ltd., through Chairman and others v. Messrs Muhammad Shafi & Company through Managing Partner and 2 others, 2009 CLD 960 ref

Muhammad Rafique Kamboh for Petitioners.

Abdul Karim Khan and Ashraf Ali Butt for Respondents.

Date of hearing: 24th November, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 365 #

2010 C L C 365

[Karachi]

Before Shahid Anwar Bajwa, J

Hafiz FEROZEUDDIN and 2 others----Petitioners

Versus

ARSHAD BEGUM and 6 others----Respondents

Constitutional Petition No.S-217 of 2005, decided on 11th December, 2009.

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

---S. 1S---Ejectment of tenant---Bona fide personal need---Choice of landlord---Scope---Landlord has to decide as to which property is more suitable to his requirements---Where landlord owns more properties in the same building or in the same locality, it was the landlord to decide as to which would be more suitable to his requirements---Neither tenant nor court could sit in judgment over such a right of, and exercise of such a right by landlord---When any other property was vacant and available, it was essential for landlord to state as to how and on what basis the available property was not suitable to his requirements.

(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---Proof---Premises in question was jointly owned by more than one person and ejectment application was dismissed as they failed to prove their bona fide need---Validity---Owner appearing as witness admitted that his brother who was co petitioner, had three sons and their ages respectively were 29 years, 26 years and 13 years and the elder two sons were also doing business and there had not been any partition of the property---There was no statement on record as to who was to conduct business or whether all of them had jointly decided to conduct business---Other owners did not appear as witnesses and there was no statement that the owner who appeared had been authorized by coowners---While all owners separately signed ejectment application, the other co-owners did not appear as witness---All such circumstances led the Courts below to come to the conclusion that bona fide personal need had not been established---Nigh Court declined to interfere in the orders passed by two courts below---Petition was dismissed in circumstances.

Mazharuddin v. Hussain Bakhsh and 2 others, PLD 2005 Kar. 205; Sultan Ahmad v. Additional District Judge-1, Karachi South 2006 CLC 99; Muhammad Anwar Azim and another v. R.I.G. Education Board through Directress/General Secretary, PLD 2003 Kar. 34 and Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787 ref.

Muhammad Younus for Petitioners.

Ms. Sofia Saeed Shah for Respondents.

Date of hearing: 1st December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 373 #

2010 C L C 373

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

BABER QAYYUM RAJA----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior; Ministry of Interior and 3 others----Respondents

Constitutional Petition No. D-924 of 2009, decided on 6th November, 2009.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan (1973), Arts.4, 9, 15 & 199---Constitution petition---Prayer for deletion of petitioner's name from Exit Control List---Placing petitioner's name in such list for his involvement in two criminal cases of drugs---Acquittal of petitioner by Trial Court in both cases through two separate orders-Non-filing of appeal by authority against one order of petitioner's acquittal--Pendency of petition for leave to appeal before Supreme Court against judgment of High Court dismissing appeal filed by authority against second order of petitioner's acquittal---Validity---Every citizen had liberty to go abroad and enter Pakistan, unless he was precluded from doing so under some law made in public interest---After acquittal of petitioner in both cases, authority was not justified to keep his name on such List on ground of pendency of such petition before Supreme Court---Petitioner could not be deprived from his fundamental right to leave and enter Pakistan, unless otherwise debarred---High Court directed authority to remove petitioner's name from such List and allow him to travel abroad for any lawful purpose on valid travel documents.

Abdul Qayyum Khan, v. Federal Government of Pakistan and others PLD 2009 Kar. 361 and Mirza Ashfaq Beg v. Federation of Pakistan and another 2005 MLD 1698 ref.

Saleem Akhtar v. Federation of Pakistan and another PLD 1999 Kar. 177; Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Kar. 252 and Kishwar Jabeen v. Federation of Pakistan others 2005 YLR 2438 rel.

Amir Mansoob Qureshi for Petitioner.

Ms. Cookie Rawat, Standing Counsel for Respondent No. 1.

S. Ashfaq Hussain Rizvi for Respondent A.N.F.

Date of hearing: 29th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 383 #

2010 C L C 383

[Karachi]

Before Tufail H. Ebrahim, J

WAKEELUR REHMAN through L.Rs. and others----Plaintiffs

Versus

ABDUL BASIT and another----Defendants

Suit No.94 of 2006 and C.M.A. No.6388 of 2008, decided on 24th November, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XL, R.1---Receiver, appointment of---Pre-conditions---Defendant claimed to have purchased flat in question from plaintiff and alleged that possession remained with plaintiff as his tenant, therefore, he sought appointment of receiver in respect of flat in question---Validity---Property in question was never in possession of defendant and possession of the same was always with plaintiff either as owner or as tenant---Defendant did not allege preservation, damage and wastage of suit property--Issues were settled and local commissioner had been appointed to record evidence---High Court declined to appoint receiver in respect of flat in question---Application was dismissed in circumstances.

Mansoor Ahmed Khan for Plaintiffs.

Nadeem Akhtar for Defendant No.1.

S. Khizr Askar Zaidi, Asstt. A.-G. for Defendants No.2.

CLC 2010 KARACHI HIGH COURT SINDH 389 #

2010 C L C 389

[Karachi]

Before Tufail H. Ebrahim, J

Messrs APOLLO TEXTILES MILLS LTD. through Chief Financial Officer----Plaintiff

Versus

Mian FARHAT IQBAL----Defendant

Suit No.437 of 2006 and C.M.A. No.6666 of 2006, decided on 25th November, 2009.

Civil Procedure Code (V of 1908)---

----Ss. 20 (c), 151 & O. VII, R. 10---Return of plaint---Territorial jurisdiction of Court---Determination---Accrual of cause of action---Issuance of notices and preparation of gate passes---Scope---Plaintiff filed suit for recovery of money at place "K" where defendant was neither residing nor he was doing any business---Agreement relied upon by plaintiff against defendant was not arrived at place "K", nor any payment was made there---Plaintiff filed suit at place "K" on the basis of issuance of notices to defendant and also issued delivery/gate passes where his registered office was located---Validity---In determining whether any part of cause of action had accrued, averments of plaint were to be read with relief sought by a party in the suit but such reading of plaint should be meaningful and rationale to the controversy---Issuance of alleged notices to defendant and preparation of delivery/gate passes from registered office of plaintiff at place "K" could not be considered as accrual of cause of action to plaintiff within territorial limits of court at place "K"---High Court returned the plaint to plaintiff for presenting the same to the court in which suit should have been instituted---Application was allowed accordingly.

2007 CLC 394; 2007 YLR 21; 2007 YLR 2724; PLD 1997 Lah. 643; PLD 2002 Kar. 420; 1997 SCMR 1874; 1985 SCMR 758; 1993 CLC 1627 and 2005 MLD Kar. 1506 rel.

Khawja Shamsul Islam for Plaintiff.

Bilal Shaukat for Defendant.

CLC 2010 KARACHI HIGH COURT SINDH 397 #

2010 C L C 397

[Karachi]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

MUHAMMAD UMAR and another----Petitioners

Versus

GUL MUHAMMAD through L.Rs. and 4 others----Respondents

Constitutional Petition No.D-400 of 2007, decided on 16th November, 2009.

Civil Procedure Code (V of 1908)--

----O. I, R. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conduct of the party---Filing of application under O.I, R.10, C.P.C.---After pronouncement of judgment and decree---Scope---Application under O.I, R.10, C.P.C. was filed after judgment and decree passed by Trial Court in favour of plaintiffs---Defendants had also subsequently filed separate suit in respect of the same disputed property but did not move any application before Trial Court for joining as defendants in plaintiffs' suit---Validity---Conduct of the defendants reflected that they intentionally and deliberately remained mum and had waited for final decision in plaintiffs' suit---Suit was finally disposed of and Trial Court had become functus officio---Application under O.I, R.10, C.P.C. could not be entertained by the Trial Court after it has given judgment and decree.

Haji Khan Hingorjo for Petitioner.

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

CLC 2010 KARACHI HIGH COURT SINDH 403 #

2010 C L C 403

[Karachi]

Before Ghulam Sarwar Korai, J

Mst. FOZIA----Petitioner

Versus

AZIZULLAH and 2 others----Respondents

Constitutional Petition No.504 of 2009, decided on 28th October, 2009.

West Pakistan Family Courts Rules, 1965---

----R. 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Territorial jurisdiction of Family Court---Place of residence of wife---Suit filed by wife for dissolution of marriage was returned to wife on the ground that she had failed to produce any document showing her residence at the place where she filed the suit--Validity---Suit for dissolution of marriage or dower, under R.6 of West Pakistan Family Courts Rules, 1965, could be filed within local limit where wife ordinarily resided---High Court in exercise of constitutional jurisdiction set aside the orders passed by both the Courts below and case was remanded to Family Court to proceed in accordance with law---Petition was allowed in circumstances.

Rafique Ahmed v. Judge Family Court 1996 CLC 1820 fol.

Mushtaque Ahmed Shahani for Petitioner.

Riaz Ahmed Soomro for Respondent No. 1.

Agha Athar Hussain Pathan, A.A.-G.

CLC 2010 KARACHI HIGH COURT SINDH 407 #

2010 C L C 407

[Karachi]

Before Faisal Arab, J

MUHAMMAD NAWAZ MAGSI----Applicant

Versus

Haji ILLAHI BUX and others----Respondents

Civil Revision Applications Nos.15 and 16 of 2006, decided on 30th October, 2009.

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

----Ss. 12 & 27(b)---Transfer of Property Act (IV of 1882), S.53-A---Specific performance of agreement to sell---Plea of bona fide purchaser for valuable consideration without notice---Applicability---Part performance, plea of---Limitation---On the basis of agreement to sell dated, 4-10-1982, plaintiff took over the possession of whole land after making part payment but owner of suit-land subsequently, in years, 1984, 1986 and 1990, executed sale-deeds in favour of defendants--Plaintiff filed suit against defendants in year, 1993, which was dismissed by Trial Court and appeal was also dismissed by Lower Appellate Court---Plea raised by defendants was that suit filed by plaintiff was barred by limitation---Validity---Law did not entitle a person to transfer a right in a property which he himself did not possess though the property might be in his name---As the land in question had already been agreed to be sold under agreement to sell in favour of plaintiff and the same was coupled with transfer of possession, therefore, subsequent transferees could not be conferred with any lawful title in the disputed land---Subsequent transferees could not even claim to be bona fide purchasers for value without notice, as when land in question was transferred in their favour, the plaintiff was already in possession of the same and subsequent transferees did not approach plaintiff to ask him about nature or basis of his possession, therefore, subsequent transfers being not bona fide were not legally valid transfers---Right created under S.53-A of Transfer of Property Act, 1882, was an existing right and was not extinguished by any length of time---There could not be any expiry date for enjoyment of a right conferred upon a transferee in possession under S.53-A of Transfer of Property Act, 1882---Law of limitation did not come in the way of transferee in possession when he ways a plaintiff filed his own suit to preserve his right to retain possession that was granted to him under S.53-A of Transfer of Property Act, 1882---Judgments passed by both the Courts below were set aside and suit filed by plaintiff was decreed in favour of plaintiff and sale-deeds in favour of defendants being based on transactions subsequent to the transaction with applicant had no legal validity---Revision was allowed accordingly.

Ahmed Mujtaba Khan v. Iqbal Shah 1990 CLC 1381 and Inayat Ullah v. Shah Muhammad PLD 1961 Lah. 372 ref.

(b) Limitation---

----Where a plaintiff continues to enjoy a right then statute of limitation cannot take away such a right as the law of limitation is not meant to take away an existing right rather it only bars remedy to gain one's lost right.

----Civil controversies are decided on the basis of preponderance of probabilities.

Abdul Hameed Khan for Applicant.

Illahi Bux Kehar for Private Respondents.

Date of hearing: 26th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 420 #

2010 C L C 420

[Karachi]

Before Shahid Anwar Bajwa, J

Messrs CARGIL INCORPORATED and another----Appellants

Versus

Messrs TRADING CORPORATION OF PAKISTAN and another----Respondents

Second Appeal No.40 of 2006, decided on 20th November, 2009.

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

----O. VII, R.2 & O.XXIX, R.1---Money suit---Plaint---Signing of---Unauthorized person---Effect---Plaintiff filed suit for recovery of an amount of US $101,908.02 etc. 'claiming therein that the defendants being seller of "Crude Degummed Soya Bean Oil" were bound to provide the same with the agreed quantity of weight 15749.344 metric tons at C&F at "K" as per contract rather than short quantity of 15,554.264 metric tons causing loss to the plaintiffs by short receipt of 195.080 metric tons---Suit was contested by defendants on the ground that claimed quantity of "Crude Degummed Soya Bean Oil" had been handed over to carrier who in receipt thereof issued their clearance on board tankers and denied liability on behalf of defendants and the liability, if any, was of shipping company---Trial Court dismissed suit do the ground that carrier company was a necessary party---Appellate Court on appeal allowed the same and found that carrier was not necessary party as they were made -party through local agent who executed customs bond-Contentions of the defendants were that the plaint of the suit had been signed by a person who did not have authority or resolution of Board of Directors authorizing him to sign the same---Validity---Resolution of Board had to be passed before institution of proceedings and not after proceedings had been instituted---Plaint was incompetently filed and in law it had to be presumed that the same was never filed---High Court allowed the second appeal by setting aside the order of Appellate Court and restored the order of Trial Court with costs.

Burjorjee Cowasjee and Co. v. Habib Insurance Co. Ltd., Karachi PLD 1975 Kar. 195; British India Steam Navigation Co. Ltd. and another v. M.A. Wadud and Co. and others PLD 1968 Dacca 860; Messrs Tar Muhammad Janoo and Co. v. Messrs Maladivian National Corporation (Ceylon) Ltd. and another PLD 1969 Kar. 495; Messrs Crescent Sugar Mills and Distillery Ltd. v. Messrs American Export Isbrandt Sen Inc and 2 others PLD 1983 Kar. 29; Dr. S.M. Rab v. National Refinery Ltd. PLD 2005 Kar. 478; Messes Muhammad Siddique Muhammad Umer and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Madan Gopal and 4 other v. Maran Bepari and 3 others PLD 1969 SC 617; Mst. Rehmat Bibi v Fazal Muhammad and others 1987 SCMR 843; Messrs Home Comforts v. Mirza Rashid Baig and others 1992 SCMR 1290; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Sarbnaland v. Allah Loke and others 1996 SCMR 575; Syed Fakhar Mahmood Gillani v. Abdul Ghafoor 1995 SCMR 96; Abdul Rashid' v. Bashiran and another 1996 SCMR 808 and Khan Iftikhar Hussain Khan of Mamdot's (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 ref.

Khan Iftikhar Hussain Khan of Mamdot's (represented by 6 heirs) v. Messrs Ghuiam Nabi Corporation Ltd., Lahore PLD 1971 SC 550; Messrs Razo (Pvt.) Limited v. The Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208; Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367 and International Insurance Corporation and others v. Pakistan National Shipping Corporation and others, 2006 CLD 85 rel.

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

----O. XXIX, R.1---Order XXIX, R.1, C.P.C. allows the person to sign on behalf of the Corporation but such person, unless he has been conferred an authority by the Board of Directors of the Corporation cannot act on part of the Corporation.

M.G. Dastagir for Appellants.

Amanul Haq for Respondent No.1.

Date of hearing: 28th October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 432 #

2010 C L C 432

[Karachi]

Before Faisal Arab, J

QAMARUDDIN ARAIN----Plaintiff

Versus

FEDERATION OF PAKISTAN through President of Islamic Republic of Pakistan, Islamabad and 4 others----Respondents

Civil Suit No.1241 and C.M.As. Nos.8642, 8959, 8960, 9525, 9910, 9911 and 11667 of 2008, decided on 17th December, 2009.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11---Suit for declaration, cancellation of document and permanent injunction---State land in possession of plaintiff under cultivation contract executed between him and authority---Termination of contract by authority after giving prior notice thereof to plaintiff---Dismissal of constitutional petition by High Court with observations that authority was within its right to issue such notice; that plaintiff had lost his legal claim over land on expiry of contract period; and that plaintiff could sue authority in Civil Court for any breach of contract or loss suffered by him---Prayer in suit for declaring such notice and award of subsequent contract as illegal---Rejection of plaint, application for---Validity---Controversy in suit pertained to termination of contract and consequential relief emanating therefrom---Such controversy remained subject-matter of constitutional petition filed by plaintiff, which had been put at rest---Principles of S.11, C.P.C., would attract to such suit, thus, plaint was liable to be rejected---No claim for any loss had been raised in suit---Plaint was rejected in circumstances.

Mrs. Kausar Anwar Siddiqui for Plaintiff.

Ch. Muhammad Rafiq Rajorvi for Defendant No.2.

M. Saleem Iqbal for Defendant No.5.

Ms. Cooki Rawat for Federation.

CLC 2010 KARACHI HIGH COURT SINDH 440 #

2010 C L C 440

[Karachi]

Before Tufail H. Ebrahim, J

BILAL----Plaintiff

Versus

ABDUL WAHID DARWESH----Defendant

Suit No.1565 and C.M.As. Nos. 10901, 10902, 11874 of 2008, decided on 3rd December, 2009.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific performance of agreement to sell---Interim injunction, grant of---Plaintiff sought restraining order against defendant from creating any third party interest with regard to property in question---Validity---Prima facie there was some agreement between plaintiff and defendant whereby suit property was to be sold by defendant to plaintiff after completion of construction by defendant---There was some delay on the part of defendant to complete construction and sum of Rs.17,50,000 had been paid by plaintiff to defendant---No title was transferred in favour of alleged purchasers by defendant but he had delivered possession of flat for occupation of plaintiff; which was in his possession---Plaintiff made out a prima facie case and balance. of convenience was also in his favour as he had paid a sum of Rs.17,50,000 to defendant which had been admitted by defendant---High Court directed the defendant not to hand over possession of roof top to any person and further not to dispose of, convey or transfer suit property to any person by way of sale-deed, sub-lease deed or any other transfer deed---Application was allowed accordingly.

Mirza Sarfaraz Ahmed Baig for Plaintiff.

Hakim Ali Khan for Defendant.

CLC 2010 KARACHI HIGH COURT SINDH 447 #

2010 C L C 447

[Karachi]

Before Shahid Anwar Bajwa, J

NELOFAR SOOMAR----Appellant

Versus

Mst. SHAHIDA----Respondent

F.R.A. No.4 of 2007, decided on 23rd December, 2009.

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

----S. 17---Bona fide personal need of landlord---Proof---If landlord has number of premises, he is not burdened with any other onus beyond making a bare statement of his need and establishing his bona fide.

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

----S. 17(4)(b)---Ejectment of tenant---Bona fide personal need of landlord---Non-disclosure of business---Landlady had two shops in different localities of the city and she sought ejectment of tenant from the shop situated in Cantonment area---Rent Controller passed ejectment order on the ground of bona fide personal need---Plea raised by tenant was that landlady did not disclose nature of business she intended to do in shop in question---Validity---If there was another premises available to landlady, she had to travel beyond mere statement and to establish as to why premises chosen by her was more suitable than other premises available to her---It was not necessary for landlady to disclose in ejectment application as to what business she intended to start in the premises---high Court declined to interfere in eviction order passed by Rent Controller against tenant---Appeal was dismissed in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Abdul Wahab v. Commissioner of Income Tax and another 2006 PTD 476 and Pirzada Niaz Ahmed Farooqi through legal representatives v. Muhammad Bux and others 2004 SCMR 862 distinguished.

Mst. Hajiyani Ayesha Bai v. Zahid Hussain 2001 SCMR 1301; Messrs Ibrahim Agencies v. Messrs Panorama Enterprises Ltd. 1997 MLD 3035; Province of Sindh through Secretary, Ministry of Works and Communications v. Messrs Umar Khan and 3 others 1986 MLD 1421; Mst. Aziz Khatoon v. Allah Diwaya and others PLD 1952 B.J. 22; Muhammad Ibrahim v. District Judge Appellate Authority Vehari and others 1985 CLC 2644; Anisur Rehman v. Mst. Sharifa Khatoon and another 1986 CLC 448; Abdul Majeed v. 1 District Judge Mirpur. 2. Khalid Rauf Mir 1997 MLD 2137 and Suhail Printer and others v. Shaikh Abid Ali and Company Pvt. Ltd. Civil Petitions Nos.24-K to 26-K of 2009 ref.

Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Juma Sher v. Sabz Ali 1997 SCMR 1062 rel.

Salahuddin Ahmed for Appellant.

Taqdir Ali Khan for Respondent.

Date of hearing: 8th December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 466 #

2010 C L C 466

[Karachi]

Before Shahid Anwar Bajwa, J

Messrs ROOTS SCHOOL NETWORK through Attorney----Petitioner

Versus

BASHIR AHMED and 2 others----Respondents

Constitutional Petition No.S-14 of 2009, decided on 24th December, 2009.

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

----Ss. 15 & 16(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Striking of defence Agreement to sell non-consideration of---Tentative rent order was passed by Rent Controller and on depositing rent in Miscellaneous Rent Case, Rent Controller struck of the defence of tenant, which order was maintained by Lower Appellate Court---Plea raised by tenant was that such deposit of rent was not default in payment of rent---Validity---No person could be allowed to get out of a tentative rent order and claim that in tentative rent order Rent Controller did not decide such and such question of fact or even such and question of law---All such questions were to be decided when final order would be passed---Nonreferring to agreements of sale in tentative rent order did not vitiate tentative rent order---Ownership was a question which was in litigation in two civil suits and suit of tenant had been dismissed and that of landlord was decreed and that two appeals were pending---Question of ownership or sale agreement could be decided only by High Court where appeals of parties against judgments and decrees passed by civil Court were pending---Rent Controller and Lower Appellate Court did not commit any faux pas by not alluding to sale agreements---Purpose of litigation was to deliver justice and not to engage in litigation on the basis of mere technicalities particularly so when violation of technicality had not caused any prejudice to the other party---If tenant had the intention of disobeying order of Rent Controller, he would not have deposited Rs.9,36,000 in one case and Rs.96,000 in the other case---Tenant had dutifully deposited a sum of Rs.10,32,000 which in essence and in substance, was in compliance with the tentative rent order---High Court directed the tenant to take out money from rent case and deposit in ejectment case and set aside the orders passed by both the Courts below---Petition was allowed accordingly.

Mst. Kulsum Bai v. Zari Bai 1987 CLC 1738; Jawaid Ashraf Khan v. Mst. Suriya Begum 1999 MLD 2886; Major (Rtd.) A.S.K. Samad v. Lt.-Col.(Rtd.) A. Hussain and another 1987 SCMR 1013; Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCMR 130; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Mst. Husna Bano alias Mst. Bibi Hussan Bano and others v. Faiz Muhammad through Legal Heirs and others 2002 SCMR 667; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480; 2004' YLR 3278; Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 and Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others 2008 CLC 1087 ref.

Muhammad Yaseen Azad for Petitioner.

Nazar Akbar for Respondent No.1.

Date of hearing: 14th December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 485 #

2010 C L C 485

[Karachi]

Before Shahid Anwar Bajwa, J

Mirza MUSHARRAF BAIG through L.Rs.----Petitioners

Versus

VTH ADDITIONAL DISTRICT JUDGE (SOUTH), KARACHI and 4 others----Respondents

Constitutional Petition No. S-543 of 2006, decided on 23rd December, 2009.

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

----S. 27---Service of legal notice sent through registered post---Denial of addressee to have received such notice as its acknowledgment due was showing its receipt by a third person---Validity---Due to availability of copy of postal receipt on record, rebuttable presumption would arise in favour of sender of notice---Addressee in evidence had not examined either postman or such third person---Receipt of legal notice in absence of reply thereto would not mean that whatever stated therein stood proved, rather same would remain a mere contention and nothing more---Legal notice was, held, to have been received by its addressee.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Arts.132 & 133---Application for determination of fair rent---Rent deed between landlord and second tenant showing higher rate of rent---Second rent deed produced in evidence by landlord suggested to be fictitious during his cross-examination by first tenant/respondent---Effect---Landlord was bound to prove second rent deed by examining second tenant or marginal witness thereof.

Mukhtar-ul-Omar v. State Life Insurance and others 2009 YLR 204 ref.

Zaheer Hussain Chishti for Petitioners.

Badrudduja Khan for Respondents Nos.3 to 5.

Date of hearing: 16th December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 492 #

2010 C L C 492

[Karachi]

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

Messrs R.N.A. INTERNATIONAL through Partner and 3 others----Petitioners

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Defence, and another----Respondents

Constitutional Petition No.D-1425 of 2006, decided on 12th February, 2008.

Cantonments Act (II of 1924)---

----S. 63---Constitution of Pakistan (1973), Arts.25 & 199---Constitutional petition---Demand of property tax by issuing challan to petitioner by Cantonment Board---Petitioner alleged such demand to be on higher side and discriminatory for not being in conformity with order passed by Cantonment Magistrate---Validity---Petitioner had been discriminated in connection with assessment held by competent forum to be payable by him---High Court directed the Cantonment Board to reassess petitioner's building after due notice to him on basis of payments .made by and claimed from other occupants" of similar building and/or same building.

Naveed Ahmed Khan for Petitioners.

Ashraf Ali Butt for Respondent No.2.

CLC 2010 KARACHI HIGH COURT SINDH 506 #

2010 C L C 506

[Karachi]

Before Khilji Arif Hussain, J

Messrs GANDHARA CONSULTANTS (PVT.) LTD.----Plaintiff

Versus

PAKISTAN DEFENCE OFFICER'S HOUSING AUTHORITY, KARACHI----Defendant

Suit No.1107 of 2001, decided on 20th, October, 2003.

Arbitration Act (X of 1940)---

----Ss. 18, 30 & 33---Arbitration award---Objections---Principle---Duty of court---Matter between the parties was decided by arbitrator, who sent the award for making the same as rule of court---Application under Ss.30 and 33 of Arbitration Act, 1940, was filed seeking setting aside of award on the basis of objections raised to the award---Validity---Once specific question of law was referred to arbitrator for his decision, even if it touched its jurisdiction, the decision of arbitrator would be binding on both the parties and none of the parties could wriggle out of the award by contending that arbitrator could not clutch at or confer jurisdiction upon himself by misconstruing the agreement---Arbitrator was the final judge on the law and facts and it was not open to a party to challenge the decision of arbitrator, if it was otherwise valid---Award could not be set aside, even on the ground due to wrong interpretation of any terms of agreement or specific findings on each issue were not given---In order to set aside the award, illegality must have been appearing on the face of award and so obvious and prominent that one might point it out by reading the award itself---Court while examining award could not act as court of appeal, nor it would disturb findings of arbitrator to whom parties themselves appointed to decide their dispute and review or reappraise the evidence afresh---High Court declined to interfere in the award passed by arbitrator and dismissed the objections raised---Award was made rule of the Court.

2001 YLR 1063; PLD 1958 SC 221; AIR 1999 SC 2253 and PLD 1987 SC 393 ref.

Pakistan Steel Mills Corporation v. Messrs Mustafa Sons (Pvt.) Ltd. PLD 2003 SC 301 rel.

Naveed Ahmed Khan for Plaintiff.

Arif Khan for Defendant.

2010 C L C 546

[Karachi]

Before Faisal Arab and Irfan Saadat Khan, JJ

WALI MUHAMMAD KHOSO and another----Petitioners

Versus

FEDERATION OF PAKISTAN through Federal Secretary Information Government

of Pakistan and 6 others----Respondents

Constitutional Petition No.D-966, M.As. Nos.4166, 4167 and 4127 of 2009, decided on 31st December, 2009.

Constitution of Pakistan (1973)---

----Arts. 19 & 199---Constitutional petition---Maintainability---Freedom of speech---Libel and slander---Petitioners sought direction of High Court under Constitutional jurisdiction to restrain anchor persons of certain television programmes from making comments against President of Pakistan---Contention of petitioners was that the anchor persons were biased and were involved in character assassination---Validity---Freedom of speech and expression guaranteed under Art. 19 of the Constitution did not entitle print or electronic media to launch campaign against any person which was defamatory or was directed to harm and damage his political life on baseless grounds-There could not be any justification for doing so as right of speech was not absolute, nor was exercisable in all circumstances---Constitutional protection was not given under Art. 19 of the Constitution to a defamatory utterance nor right to exercise freedom of speech and expression was exempted from liability of libel and slander---To seek any legal relief against such abuse of freedom of speech and expression, appropriate remedy under ordinary law was always available to the person who was so aggrieved i.e. he had locus standi to initiate such proceedings---Petitioners failed to refer to any specific statement that had been aired and published by respondents in their respective television programmes so as to enable High Court to reach to an undeniable conclusion that respondents abused their fundamental right while exercising freedom of speech and expression as guaranteed under Art. 19 of the Constitution and had violated any restrictions of law that regulated exercise of such right---Petition was dismissed in circumstances.

Petitioners in person.

CLC 2010 KARACHI HIGH COURT SINDH 551 #

2010 C L C 551

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD AYUB through L.Rs.----Plaintiffs

Versus

MUHAMMAD SHAFIQUE and others----Defendants

Suit No.636 of 1985, decided on 13th January, 2010.

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

----S. 3(1)---Transfer of Property Act (IV of 1882), S.106---Civil Procedure Code (V of 1908), O.XL---Ejectment of tenant---Receiver, duties of---Government premises---Shop in question was situated in government hospital, which was leased out to a partnership firm---Proceedings for dissolution of partnership were pending and High Court appointed Official Assignee as Receiver, when hospital authorities cancelled lease of shop---Official Assignee, as Receiver filed reference before High Court against termination of lease of shop in question---Validity---Receiver was an officer or representative of Court and he had to function under the direction of Court---Receiver had no independent title to the property when he was appointed Receiver to hold the property for ultimate rightful owner---It was the obligation of every Court to ensure that rightful owner was given his legitimate due and officer of the Court should not enter into any unnecessary litigation, taking advantage of its dominant power to hold-over shop on which the parties to the suit had no claim after cancellation notice of lease under S.106 of Transfer of Property Act, 1882, and thereafter to hold it despite the real owner being entitled to take possession under the law---In view of S.3 (1) of Sindh Rented Premises Ordinance, 1979, relationship between parties was not governed by rent laws, as the shop in question was owned . by Provincial Government, therefore, relationship between the parties was governed by Transfer of Property Act, 1882---Hospital authorities lawfully terminated lease of shop in question in accordance with provisions of 5.106 of Transfer of Property Act, 1882, therefore, High Court would not permit the Receiver, being officer of the Court, to hold over the shop or to enter into unnecessary and expensive litigation---High Court -directed the Receiver to hand over vacant possession of shop to hospital authorities---Reference was disposed of accordingly.?

AIR 1940 Cal. 429; AIR 1940 Cal. 402; AIR 1936 Sindh 122 and AIR 1940 Cal.1. distinguished.

Salman Talibuddin for Plaintiff.

Munir-ur-Rehman for Defendant.

Sajjad Ali, Office Superintendent in Official Assignee's Office.

Ikram Ahmed Ansari Amicus Curiae.

CLC 2010 KARACHI HIGH COURT SINDH 561 #

2010 C L C 561

[Karachi]

Before Faisal Arab, J

HAMEED and 3 others----Petitioners

Versus

JITENDRA and 2 others----Respondents

Constitutional Petition No.S-489 of 2009, decided on 31st December, 2009.

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

----S. 18---Change of landlord---Notice---Proof---Even when notice sent under S.18 of Sindh Rented Premises Ordinance, 1979, is not dispatched or if dispatched is not actually received by tenant, initiation of rent proceedings in Court become sufficient notice to tenant with regard to change of ownership---Tenant is liable to tender rent directly to new landlord within 30 days of receipt of notice of legal proceedings.

Muhammad Yousuf v. Mairajuddin 1986 SCMR 951 and Habib Bank Limited v. Sultan Ahmed 2001 SCMR 678 rel.

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

----S. 15---Transfer of Property Act (IV of 1882), S.111 (g) (2)---Landlord and tenant---Relationship, denial of---Avoidance of estoppel---Essential condition---Scope---Essential condition to avoid estoppel on denial of title in all ordinary cases is that if a tenant questions title of a person with whose permission he or his predecessor-in-interest obtained possession as tenant, then tenant or his successor must surrender possession before questioning title of landlord or his successor---Exceptions to such general rule can be there but there can be no doubt about initial impact of such rule.

Province of Punjab v. Abdul Ghani PLD 1985 SC 1 rel.

---Ss. 15 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Relationship of landlord and tenant, denial of---After death of landlord, his legal heirs sent notice of change of ownership and tenant instead of paying rent to legal heirs, refused to accept them as landlord---Both the Courts below concurrently passed eviction order against tenants---Validity---Predecessor-in-interest of petitioners was inducted by predecessor-in-interest of respondents, as tenant in premises and after the death of landlord, his heirs had become owners of premises---Denial of relationship of landlord and tenant with heirs of landlord amounted to contumacious denial of such relationship making petitioners liable for eviction straightaway as in such circumstances rent was not tendered to new landlords when they became owners---Even otherwise rent from August, 1987 to October 1988, was deposited in Court on 12-11-1988, therefore, default of 12 months had already been committed when rent was deposited in Court---High Court in exercise of Constitutional jurisdiction did not find any justification to interfere in concurrent findings of both the Courts below---Petition was dismissed in circumstances.

Muhammad Hanif v. Muhammad Jamil Turk 2002 SCMR 429; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 ref.

Samiuddin Siddiqui for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 572 #

2010 C L C 572

[Karachi]

Before Tufail H. Ebrahim, J

Mrs. SURRIYA AFZAL----Plaintiff

Versus

ALIM SHEIKH and others----Defendants

Suit No.1144 of 2004, decided on 11th January, 2010.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Declaration of title, cancellation of document and recovery of damages---Scope---Grievance of plaintiff was that defendants had fraudulently prepared fake and forged documents in respect of her property and the same caused mental torture to her---Validity---Evidence as to claim of damages / compensation was not conclusive and plaintiff did not lead any evidence as to actual loss suffered by plaintiff---Forgery with the intent to fraudulently depriving plaintiff from her property was fully established against defendants and there was some act of collusion among defendants who should be punished for their illegal acts, failing which they would be encouraged to other unlawful activities in future---Plaintiff would have suffered shock and mentally aggrieved on coming to know about the fraudulent transfer of her valuable property through forgery and sham documents---Plaintiff must have suffered financial losses and damages as the plaintiff was not able to use and enjoy her property and must have lost several lucrative opportunities to sell her property during boom economic periods in addition to the legal costs and expenses for pursuing legal cases against defendants---High Court declared plaintiff as lawful owner of her property and general power of attorney and sale deed prepared by defendants were forged and fabricated documents and the same were cancelled and revoked---High Court burdened the defendants with damages/compensation to plaintiff for committing forgery and preparing fake power of attorney and sale deed with the intent to fraudulently depriving plaintiff from her property---Suit was decreed accordingly.

Tasuwar Ali Hashimi and Muhammad Sarwar Shahid for Plaintiff.

Nemo for Defendants.

CLC 2010 KARACHI HIGH COURT SINDH 599 #

2010 C L C 599

[Karachi]

Before Shahid Anwar Bajwa, J

ITTEHAD CHEMICALS LTD.----Petitioner

Versus

VIITH ADDITIONAL DISTRICT AND SESSIONS JUDGE and others----Respondents

Constitutional Petition No.S-548 of 2008, decided on 10th October, 2009.

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

----Art. 199---Constitutional jurisdiction---Constitutional petition challenging concurrent findings given by courts below---Interference with such findings by High Court---Scope.

The scope of interference in constitutional jurisdiction is very limited particularly so when there are concurrent findings by the Courts below. High Court should interfere with concurrent findings, inter alia, in the following circumstances:---

a) When there is a misreading of evidence;

b) When there is non-reading of evidence;

c) When there is erroneous presumption of facts;

d) When there is a misapplication of law;

e) In the aid and to serve cause of justice but surely not to defeat it;

f) When a rule of law laid down by the superior Courts has not been correctly applied by the Courts below;

g) Constitution of jurisdiction cannot be exercised to reappraise evidence unless lower courts appraised evidence in violation of well-settled principles for appraisal of evidence;

h) Even if a different conclusion is possible, the evidence shall not be reappraisal and such conclusion shall not be recorded by the High Court in exercise of its constitutional jurisdiction;

i) Constitutional jurisdiction cannot be used as a second appeal;

j) If the conclusion of the Courts below are not found to be arbitrary, capricious or perverse.

Muhammad Azhar Sohail and others PLD 1981 SC 246 and Ali Muzaffar v. Syed Muhammad Ali 2006 CLC 379 ref.

Amina Nuzhat Babar v. Khan Sher 2002 CLC 1; Muhammad Nawaz and others v. Muhammad Ibrahim and others 1986 CLC 1860; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070; H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115; Mst. Tahira Dilawar Ali Khan v. Syeda Kaneez Sughra and others PLD 2007 Kar. 50; Messer Oceanic International Pvt. Ltd. v. Messer Lalazar Enterprises and others 2009 MLD 91; Messer Olympia Shipping and Weaving Mills Ltd. and others v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103; United Bank Limited v. Qamar Hussain and 2 others 1991 CLC 1184; Habib Insurance Co. Ltd. v. State Life Insurance Corporation of Pakistan Ltd. and another PLD 2006 Kar. 294; Muhammad Azhar Khan v. Abdul Matin 1985 MLD 185; Messer Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others PLD 2005 Kar. 554 rel.

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

----Art. 117---Burden of proof in civil litigation---Significance of---Principles.

In civil litigation as soon as both the parties have produced their evidence burden of proof loses its significance as it is only a matter of preponderance of evidence, which enables the court to record correct conclusion on evidence led by the parties.

----O. XVIII, R.4 & O.XXIX, R.1---Qanun-e-Shahadat (10 of 1984), Art.3---Appearance of a witness in court on behalf of a company (not party to proceedings) without approval of its Board of Directors---Deposition made by such witness---Evidentiary value---Law never required that every minor act or thing to be done by a company should be done only and only with approval of its Board of Directors---Fundamental things like appointment of principal officers, institution of litigation etc., must be done with approval of Board of Directors---No approval of Board of Directors would be required for sending witness in a case in which company was not even a party---Principles.

Ghulam Abbas Pishori for Petitioner.

Naveedul Haq for Respondent No.3.

Date of hearing: 2nd October, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 621 #

2010 C L C 621

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

WORKS COOPERATIVE HOUSING SOCIETY LTD.----Petitioner

Versus

PROVINCE OF SINDH through City District Government and 2 others----Respondents

Constitutional Petition No.D-2432 of 2008, decided on 16th February 2010.

Sindh Local Government (Imposition of Taxes) Rules, 2001---

----R. 7---Sindh Local Government Ordinance (XXVII of 2001), Ss.116 & 193---Sindh Enquiries and Anti Corruption Act (VII of 1991), Preamble---Penal Code (XLV of 1860), S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of fees on Marriage Halls/Lawns by Town Nazim through notification dated 6-2-2007 issued on basis of resolution of Town Council dated 2-10-2007 approving such levy---Validity---Difference between such dates of notification and resolution would show that no resolution existed for issuing on its basis notification on 6-2-2007---Such resolution did not contain reference to nature of Marriage Halls/Lawns and sanctioned rates as reflected in the impugned notification---Impugned notification was in contradiction of proposal of levy of such fees published in newspaper and such resolution---According to S.116 of Sindh Local Government Ordinance, 2001, Town Nazim was required to issue notification in accordance with resolution passed by Town Council, but he had no power to cause any variation therein---Town Nazim had imposed his own rates on Marriage Halls/Lawns without sanction from Town Council---Fees charged by Town Nazim on the basis of impugned notification had amounted to commission of fraud and misconduct by him upon owners of Marriage Halls/Lawns---High Court set aside impugned notification for having been issued by Town Nazim without lawful authority---Town Nazim being a public servant within meaning of S.21, P.P.C., had also committed scheduled offence in terms of Sindh Enquiries and Anti-Corruption Act, 1991---High Court directed Chief Secretary to take appropriate action against the Town Nazim within specified time and ensure refund to owners of Marriage Halls/Lawns fees recovered from them under impugned notification.

I.H. Zaidi for Petitioner.

Shaikh Riaz for C.D.G.K.

Nadeem Farooqui for Town Nazim Gulshan-e-Iqbal Town, Karachi.

CLC 2010 KARACHI HIGH COURT SINDH 637 #

2010 C L C 637

[Karachi]

Before Faisal Arab, J

Syed SHARIF HUSSAIN SHAH----Petitioner

Versus

Mst. SAMINA TAUSIF through Attorney and 2 others----Respondents

Constitutional Petition No. S-176 of 2006, decided on 19th February, 2010.

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

----Ss. 2(F)(i) & 15(2)(vii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of bona fide personal need---Relationship of landlord and tenant, determination of---Ejectment application filed by the respondent on ground of personal bona fide need was resisted by the petitioner denying relationship of landlord and tenant between the parties---Record showed that the premises in question stood in joint names of the father-in-law of respondent and his father who subsequently gifted the same to the respondent---Petitioner was paying the rent to attorney of the respondent, which had clearly established that the petitioner had recognized the respondent as his landlady; in such clear cut admission, the petitioner should not have denied the ownership of the respondent---Where a tenant was inducted by a person and that person's interests were transferred to any other person by way of transfer of title, then the denial of title of successor-in-interest of the landlord by a tenant would entitle outright ejectment of the tenant---Petitioner admittedly was paying rent to the respondent's attorney and respondent was claiming ownership then the denial of relationship of landlord and tenant was contumacious warranting outright ejectment of the petitioner.

1986 CLC 2862; 1986 CLC 1613; 1985 CLC 2085; 2001 SCMR 1434; 1987 CLC 775 and 1991 SCMR 1376 ref.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Bona fide personal need of landlady in respect of premises sought to be ejected by her, was resisted on the ground by the tenant that landlady along with her family was residing abroad and in circumstances was not entitled to seek eviction of tenant on ground of personal need---Validity---Held, it was not incumbent upon the owner of premises who was not in Pakistan to come to Pakistan and then file the case on the ground of personal need---Person who owned premises in Pakistan and for the time being living abroad, if he wanted his own house for his personal need, he could file case seeking ejectment of tenant through his attorney---Not necessary for the landlord who was for the time being living abroad to lead evidence personally---If the tenant would succeed to bring any material on record to show that the need of the landlord was not bona fide, only in such circumstances the eviction could be refused, otherwise if the bona fide was established, the landlord would become entitled for the relief of eviction.

PLD 2001 Kar. 238; 1992 CLC 2307 and 1990 MLD 1009 ref.

Muhammad Younus for Petitioner.

Sathi M. Ishaque and Naseer Hussain Jafri for Respondent No.1.

Date of hearing: 16th February, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 654 #

2010 C L C 654

[Karachi]

Before Ms. Rukhsana Ahmed, J

NATIONAL BANK OF PAKISTAN----Plaintiff

Versus

Messrs NAYA DOUR MOTORS (PVT.) LTD.----Defendant

Suit No.951 of 1997, Old S.No.2326 of 1994 and Execution No.232 of 2000, decided on 12th February, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 73, 151 & O.XXXIV, R.13---Auction proceeds---Disbursement---Liability of auction purchaser---Payment of utility bills---Contention of auction purchaser was that in view of the provisions of S.73 C.P.C., outstanding utility bills should be paid from auction money---Validity---Executing Court had already directed that out of sale proceeds with Official Assignee, if there was no amount due towards property tax, the decree in execution might be satisfied in the first instance and if any amount remained with Official Assignee then he could make a fresh reference in that regard---Contention of auction purchaser as per S.73 C.P.C. had no relevance in the matter, as provisions of O.XXXIV, R. 13 C.P.C. were applicable in stricto senso---Application was dismissed in circumstances.

1994 SCMR 2248 ref.

CLC 2010 KARACHI HIGH COURT SINDH 661 #

2010 C L C 661

[Karachi]

Before Muhammad Tasnim, J

Mst. ZARINA FATIMA through L.Rs.----Applicant

Versus

Syed ABDUL MUSSAWWIR SHAH through L.Rs. and another----Respondents

Civil Revision Application No.216 of 2003, decided on 10th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Art.113---Suit for declaration and possession---Execution of agreement---Denial to act upon the agreement---Matter between parties was settled and agreement with regard to said settlement was executed between the parties---According to said agreement defendant admitted ownership of plaintiff over the portion of land in question and defendant had agreed to handover possession of said portion to the plaintiff, but subsequently when defendants had denied to act upon said agreement, the plaintiff filed suit against the defendant---Contents of agreement arrived at between the parties, were never challenged by the defendants---Counsel for the plaintiff had argued that things which had already been admitted by the defendants need not to be proved through other evidence in view of provisions of Art.113 of the Qanun-e-Shahadat, 1984, especially when author of the same and its marginal witnesses had accepted the execution of the same---No fact need to be proved in any proceedings which the parties thereto or their agents agreed to admit---Defendants could not turn ground and refuse to perform their part of obligation under the agreement---Trial Court decreed the suit, but Appellate Court set aside judgment and decree of the Trial Court---Validity---Appellate Court had completely ignored the admissions, made by the defendants in their written statement as also during the course of cross-examination and passed impugned order which was clearly in violation of provisions of Art.113 of Qanun-e-Shahadat, 1984---Appellate judgment and decree passed by the Appellate Court were set aside and that of the Trial Court which were passed on correct appreciation of evidence, were restored.

Messrs Foremost Trading Company v. Messrs Calendonian Insurance Company Limited and other PLD 1988 Kar. 131; Messrs Bengal Friends & Co. Dacca v. Messrs Benode Shah & Co. Calcutta and another PLD 1969 SC 477; Mst. Baswar Sultan v. Adeeba Alvi 2002 SCMR 326; Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 ref.

Shahenshah Hussain for Applicant.

Nasir Mahmood for Respondent No.1.

Respondent No.2 absent.

CLC 2010 KARACHI HIGH COURT SINDH 669 #

2010 C L C 669

[Karachi]

Before Amir Hani Muslim, J

Mst. NOOR JEHAN----Plaintiff

Versus

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

Suit No.972 of 2009, C.M.As. Nos.10534 of 2009, 266 and 933 of 2010 decided on 23rd February, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration, perpetual and mandatory injunction---Interim injunction,, application for---For seeking injunction, a party had to show a prima facie case, balance of convenience and in case the injunction was not granted, it would suffer irreparable loss and injury---Plaintiff herself was in appeal in regard to her title of land in dispute, which she claimed to have inherited and said appeal was pending---Plaintiff had failed to plead either in the plaint or in the injunction application as to when she was dispossessed and when she acquired knowledge about the impugned construction, being carried out on the suit land by the defendants---Plaintiff had only disputed the location of land---Question of location of land at that point of time, was immaterial---Land of the plaintiff was unsurveyed land, while defendants were in possession of the surveyed land and prima facie, had the title of the land in dispute---Construction being sought on suit land was with required permission---Matter was being heard at an interlocutory stage and findings of facts could not be given on the basis of documents annexed with the pleadings---Plaintiff, in circumstances, had failed to make out a prima facie case for grant of injunction as at that juncture she was neither owner nor in possession of suit land, besides the title of the plaintiff, ex facie was cloudy---Defendants on the other hand, had made out a case for continuing the construction of petrol pump on the land---If at such point of time the construction was stopped, defendants would suffer irreparable loss---Accordingly balance of convenience lay in favour of the defendants---Principle object of granting interim relief was to preserve the corpus of the dispute and ensure that in case the suit was decreed in favour of the plaintiff, execution thereof would not become impossible or extremely difficult---Plaintiff having failed to make out a case for grant of injunction, application made by the plaintiff, was accordingly dismissed.

Guahar Rehman v. Jan Ashbi 1990 SCMR 1586; Nooruddin v. Pakistan 1997 CLC 1971; Muhammad Hanif v. Sardaran 1989 MLD 401; Misri Khan v. Muhammad Sharif 1997 SCMR 338; Town Committee v. Mehr Bakhsh 2007 YLR 82; Ahmad Din v. Sughari 1987 SCMR 63; Muhammad Yousaf v. Khan Bahadur 1992 SCMR 2334; Fawad Rehman v. Shakira Nawaz PLD 2003 Kar. 57; Hussain v. Faiz Muhammad 1989 MLD 3651 and Ghulam Muhammad v. Muhammad Aslam PLD 1993 SC 336 ref.

Faisal Siddiqui for Plaintiff.

Thawar Ali Khan for Defendants Nos.1 and 2.

Nafees Ahmed Usmani, A.A.-G. along with Sabir Mirani, Mukhtiarkar, Gadap Town, Qurban Ali Ladha, Mukhtiarkar, New Karachi.

Abdul Haleem Siddiqui for Defendant No.7.

Defendant No.10 in person.

Khalid Javed Khan for Defendants Nos.11 and 12.

CLC 2010 KARACHI HIGH COURT SINDH 754 #

2010 C L C 754

[Karachi]

Before Shahid Anwar Bajwa, J

BAHARO alias BAHAR ALI----Petitioner

Versus

GHULAM RASOOL through L.Rs. and others----Respondents

Civil Revision No.1 of 1997, decided on 9th February, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Trial Court dismissed the suit, but Appellate Court allowing appeal decreed the suit---Validity---Since court had come to the conclusion that the plaintiffs had no right or title in respect of the property in question, suit had to be dismissed---Question regarding the allotment, no allotment or wrong allotment of suit property in favour of allottee from whom the defendant had claimed to have purchased the property, could only be decided if appropriate proceedings were instituted by the defendant against the Government; and such other parties as could be necessary and proper; and then after evidence it was to be decided whether the defendant had any right or title to the suit property---High Court deemed it appropriate not to enter into the discussion regarding the title and entitlement of the defendant and said issue was left to be determined in appropriation proceedings---Judgments and decrees passed by the courts below, were set aside, suit filed by the plaintiffs was dismissed and the defendant was left at liberty to institute appropriate proceedings for establishing his right/title in respect of the suit property in accordance with law---In the meanwhile Government was directed to dispossess the plaintiffs and to take over the land in question and thereafter deal with the same in accordance with the law.

Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 25; Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795; Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617; Government of Pakistan v. Sardar Ahmed Ali PLD 1965 Kar. 1; Allandad v. Government of Pakistan and 53 others 1989 CLC 1571; Muhammad Akbar alias Akan v. Mst. Pathani through legal heirs and 5 others 2001 MLD 1037; Anjuman Araian, Bhera v. Abdul Rasheed and others PLD 1982 SC 308; Wallayat and others v. Muhammad Shafi and others PLD 1965 SC 278; Muhammad Siddique and 2 others v. Fakir Muhammad and another 1993 CLC 1158; Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21; Ehtram Ali and others v. Custodian of Evacuee Property and others 1975 SCMR 431; Karamali Jamali and 5 others v. Federal Land Commission 1982 CLC 689; Muhammad Essa v. Board of Revenue, West Pakistan Lahore and 2 others PLD 1979 Kar. 783; Muhammad Saleem and others v. Rasheed Ahmed and others 2004 SCMR 1144; Pir Bux represented by his legal heirs and others v. The Chairman Allotment Committee and others PLD 1987 SC 145; Mst. Mumtaz Begum v. Allauddin and 2 others PLD 1993 Quetta 37; Lal Khan v. Faiz Ahmed and another 1986 SCMR 1962; Muhammad Yasin v. Bashir Ahmed 1985 CLC 2111; Ghulam Hussain Arshad and another v. Allah Ditta and others 1990 CLC 1819; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; Qutub Ali v. Custodian Evacuee Property, Lahore and others PLD 1964 SC 58; Mst. Bibi Ameena v. Ikramullah 1989 CLC 698; Umar Bakhsh v. Mst. Zamrut Jan and 9 others PLD 1973 Pesh. 63 and Province of the Punjab v. Muhammad Hussain PLD 1993 SC 147 ref.

Rahmat Ally Rajput for Petitioner.

Gulab Rai Jessrani for Respondents Nos.1 to 3.

Abdul Hamid Bhurgri, Addl. A.-G. for Respondents Nos.4 to 8.

Dates of hearing: 8th and 9th February, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 849 #

2010 C L C 849

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Messrs TRI-STAR ENERGY LTD.----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

Constitutional Petition No.1586 of 2006, heard on 1st October, 2009.

Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 (III of 2001)---

----S.4---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotments of State land made in violation of law or during ban---Issuance of public notice by authority offering regularization of such cancelled allotments on payment of differential of market value of land as determined by Committee constituted under S.4 Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000---Petitioner's application made within stipulated period seeking payment of such differential amount, but refusal of authority to issue challan thereof---Validity---Once such offer was made and accepted by petitioner, then vested right was created in him for regularization of his cancelled allotment on payment of such differential amount, for which authority was obliged to issue challan for payment---High Court directed Authority to issue challan for payment of such differential amount while making petitioner liable to pay interest on entire amount at prevailing Bank rate from date of acceptance of such offer along with upto date Malkano and occupancy value.

Ghulam Abid Khan v. Government of Pakistan 2000 CLC 443; Abdul Haq v. Government of Sindh 2000 SCMR 907 and Appeals (Pvt.) Ltd. v. Member (LU) and others 2005 YLR 1921 ref.

Appeals (Pvt.) Ltd. v. Member (LU) and others 2005 YLR 1921 rel.

Abid S. Zuberi and Haseeb Jamali for Petitioners.

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

CLC 2010 KARACHI HIGH COURT SINDH 860 #

2010 C L C 860

[Karachi]

Before Shahid Anwar Bajwa and Ghulam Sarwar Korai, JJ

JAM and others----Petitioners

Versus

TALUKA NAZIM, TALUKA MUNICIPAL ADMINISTRATION, LARKANA and others----Respondents

Constitutional Petitions Nos.D-502, D-572 of 2007, D-723 and D-724 of 2008, decided on 28th January, 2010.

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

----Ss. 124, 125.& 129---Sindh Local Government (Contract) Rules, 2001, R.10(3) & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Use and disposal of property of Local Government---Effect of ban imposed by the Chief Minister---Petitioners were allotted plots belonging to Local Government through auction by the Taluka Nazim---Subsequently such allotment was cancelled, but on filing constitutional petition by the petitioners/allottees, High Court passed an order directing that status quo be maintained---After said order of the High Court, Taluka Nazim withdrew notice of cancellation of allotment---Intervener who filed application to be impleaded as party, had alleged that as there was ban imposed by the Chief Minister, disposal of plot in dispute during period of ban was without lawful authority and was of no legal effect---Validity---Section 124 of Sindh Local Government Ordinance, 2001, which dealt with disposal of property of Local Government, being a statutory provision and subsequent to the letter dated 27-8-1997 would override the ban placed by the Chief Minister---Even otherwise S.129 of Sindh Local Government Ordinance, 2001 did not confer any authority on the Chief Minister in that regard, which would mean that; if action was taken by Local Government under S.124 of the said Ordinance, ban imposed by the Chief Minister, even if the said ban was still effective, would not be applicable to the property of the Local Government Institutions.

Syed Ghulam Mustafa and others v. Province of Sindh and others 2005 CLC 931 and M.A. Hamid Ali Bukhsh v. City Governments and others PLD 2003 Karachi 162 ref.

(b) Sindh Local Government (Contract) Rules, 2001---

----First Sched.---Powers of Municipal Administration and Taluka---Under First Schedule to Sindh Local Government (Contract) Rules, 2001, Town Municipal Administration and Taluka had power to enter into contract, whose value did not exceed Rs-1 million in cases of immovable property in Taluka concerned--- Taluka Nazim, in circumstances, did not have the power to contract for amounts in excess of Rs.10,00,000---If action was taken by a person not competent to take that action, that action would be a nullity in the eye of law and would be void ab initio---Very act of allotment by Nazim in case of properties in excess of Rs.l million, was not within the scope of his authority and an illegal act and an act without authority could not be given protection merely because vested rights had been created---Taluka Municipal Administration was directed by High Court to issue a show-cause notice to such allottees who had been allotted the plots by Nazim in violation of the power conferred upon him by the Sindh Local Government Contract Rules, 2001.

----Ss. 124 & 125---Allotment of amenity plot---Allotment of an amenity plot for any purpose other than amenity would be in violation of law and negation of right of all citizens who had right to enjoy and avail the benefit of that facility---If any amenity plot had been allotted, such allotment would be cancelled.

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

----O. XXIII, R.1---Withdrawal of claim---Right of litigant-Right of litigant to withdraw whole or part of his claim unconditionally was conferred upon a complainant under O.XXIII, R.1, C.P.C.---Such a withdrawal could be effected without any order from the court.

PLD 1970 SC 1 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Purpose of constitutional jurisdiction was to do complete justice and no one should be allowed to get away with ill-gotten gains---Such jurisdiction was corrective and directory in nature and it was to be tampered with equity---Superior Court, in exercise of constitutional jurisdiction, would act as conscious keeper of the Constitution and ultimate protector of rights of citizens and the society at large---High Court could not shut its eyes to wanton use and misuse of powers of State functionaries and the property of the State---If any State functionary or functionary of a Local Government would take action in excess of his authority; and in consequence of that action a citizen was made to incur expenditure or suffer a loss, that citizen had remedy to recover damages from such functionary in accordance with the law.

Wajihul Hussan Zaidi v. Government of Punjab and others 1997 SCMR 1901 and WAPDA through Superintending Engineer and another v. The Presiding Officer, Sindh Labour Court No.VII, Sukkur and others 1998 PLC 180 ref.

Inayatullah G. Morio for Petitioners (in C.Ps. Nos. D-723 and 724 of 2008).

Habibullah G. Ghouri for Petitioner (in C.P. No.D-572 of 2007).

Nemo for Petitioners (in C.P. No.D-502 of 2007).

Muhammad Ashiq Dhamrah for T.M.A. along with Qurban Ali Abbasi, Taluka Nazim for Respondent.

Imtiaz Ahmed Bhatti for the Intervener.

Azizul Haq Solangi, Asstt. A.-G. for Respondent.

CLC 2010 KARACHI HIGH COURT SINDH 878 #

2010 C L C 878

[Karachi]

Before Faisal Arab, J

Messrs SHAHEEN FREIGHTS SERVICES through Proprietor----Petitioners

Versus

Messrs EBRAHIM TRUST through Managing Trustee and 3 others----Respondents

Constitutional Petition No.368 of 2009, decided on 19th February, 2010.

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

----S.16---Tentative rent deposit order---Delay of two days in depositing such rent---Effect---Tenant had issued pay order on 10th of each month---Confirmation of pay order sought by Bank had caused such delay which was condoned.

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

----Ss. 3(2) & 15---Government of Sindh Notification No. VIII(3) SOJ/75, dated 15-3-1981---Ejectment petition filed in year 2006---Default in payment of rent, ground of---Premises built on land leased out to applicant-landlord by Karachi Port Trust (KPT)---Plea of tenant-respondent that Rent Controller had no jurisdiction to entertain eviction petition in respect of such premises---Validity---Government of Sindh vide Notification No. VIII (3) SOJ/75, dated 15-3-1981 had exempted premises belonging to KPT from application of Sindh Rented Premises Ordinance, 1979---Granting of lease of open land by KPT to an individual and then his raising of building thereon and its renting out to a third party were two separate and independent situations---Both such situations gave rise to dual ownership having two separate legal implications i.e. in first situation, KPT was owner of land and in second situation, lessee of KPT (i.e. applicant herein) was owner of building---Ownership of KPT in land would have no relevance in exercise of ownership rights by lessee of KPT in building constructed by him on land owned by KPT---If such concept of dual ownership was ignored and lessee's ownership of building was considered as non-existent, then no basis would be left for tenant to regard him as owner---Such exemption notification would not apply to a dispute arisen between lessee of KPT (applicant herein) owning building and person in occupation thereof as tenant (respondent herein)---Such plea of tenant was repelled in circumstances---Principles.

B.S. Khan v. Pakistan State Oil Company 1989 SCMR 75 and 1999 SCMR 2518 ref.

Lalazar Enterprises (Pvt.) Ltd. v. Oceanic International (Pvt.) Ltd.2006 SCMR 140 fol.

---Art. 189---Interpretation of any constitutional provision or law or its earlier judgment by Supreme Court---Binding effect---Such interpretation would become law of land and would be given effect to by all courts including High Court, unless overruled by Supreme Court through its subsequent judgment---Principles.

When the Supreme Court of Pakistan interprets the effect of any provision of the Constitution or a law or its own judgment, it becomes law of the land. When the Supreme Court interprets the legal effect of its earlier judgment in a certain manner, then it is not open to the High Court to differ from such interpretation. All courts have to examine a controversy in the light of such interpretation, unless the Supreme Court itself overrules it through its subsequent decision. As long as a judgment of the Supreme Court stands, it has to be given effect to by all courts including the High Courts.

1999 SCMR 2518 ref.

(d) Jurisdiction---

----Party through its conduct could neither confer nor take away jurisdiction of a court, which would be determined in accordance with law regarding same for time being.

Muhammad Arif for Petitioners.

Khawaja Naveed Ahmed and Muhammad Atiq Qureshi for Respondents Nos.1 and 2.

Date of hearing: 21st January, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 893 #

2010 C L C 893

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

NASEER AHMAD----Appellant

Versus

BASHOO MAL----Respondent

High Court Appeal No.68 of 2008, decided on 16th January, 2009.

Civil Procedure Code (V of 1908)---

----Ss.10 & 151---Suit for rendition of accounts, recovery of loss of business, reputation and for withholding of money---Contract for supply of poultry feed---Short-supply of feed by defendant to plaintiff---Defendant denying plaintiff's claim not only claimed in written statement amount outstanding against plaintiff for supplied feed and profit thereon, but filed 'suit for recovery thereof---Plaintiff's application seeking stay of defendant's suit for being filed subsequently---Trial Court dismissed application and consolidated both suits while treating plaintiff's suit as leading suit---Validity---Parties in both suits being same were claiming against each other in respect of same business transaction, but relief asked in their respective suits were not substantially same---Relief asked for by defendant in his suit could not be granted in suit filed by plaintiff---High Court dismissed appeal in limine.

Dr. Haider Ali Mithani v. Ishrat Swaleh, PLD 1999 Kar. 81 ref.

The Mall, Lahore v. Government of Punjab and 4 others, 1991 SCMR 2324; Muhammad Yaqoob v. Behram Khan, 2006 SCMR 1262 and Karachi Water and Sewerage Board v. Messrs M.A. Majeed Khan and 2 others 2002 CLC 566 rel.

Syed Ali Ahmed Tariq for Appellant.

Naveed Ahmed Khan for Respondent.

CLC 2010 KARACHI HIGH COURT SINDH 908 #

2010 C L C 908

[Karachi]

Before Sarmad Jalal Osmany C J and Ahmad Ali M. Shaikh, J

Messrs SHAHEEN MULTI FOODS (PVT.) LTD. (FLOUR MILLS) through Chief Executive and 4 others----Appellants

Versus

ABDUL HAFEEZ RAJPUT and others----Respondents

High Court Appeal No.57 of 2009, decided on 3rd February, 2010.

Civil Procedure Code (V of 1908)---

----O.IX, R.9---Law Reforms Ordinance (XII of 1972), S.3---Intra Court appeal---Non-appearance of applicant or its counsel-Sufficient cause---Proof---Appellant challenged the order passed by Single Bench of High Court whereby it allowed the application filed under O.IX, R.9, C.P.C. and restored the judicial miscellaneous application to its original stage subject to payment of cost of Rs.50,000---Appellant asserted that respondents had not shown `sufficient cause' for their absence as well as absence of their advocate---Validity---Law favoured adjudication on merits rather than on technicalities---Impugned order passed by Single Bench of High Court was in accordance with law and the same was based on the settled principles---Through impugned order neither the interest of the appellant had been taken away nor they had been prejudiced in any manner---Intra court appeal was dismissed in limine.

Rex Talkies (Pvt.) Ltd. and another v. Samir Oosman and 2 others PLD 2007 Kar. 362 ref.

Pirzada Niaz Ahmed Faruqui v. Muhammad Bux 2004 SCMR 862; Mehar Textile Mills v. Investment Corporation of Pakistan 2005 SCMR 1328 and Imtiaz Ahmed v Ghulam Ali and others PLD 1963 SC 382 rel.

Karim Khan Aga for Appellants.

Muhammad Jamshid Malik for Respondent No.1.

S. Ali Mehdi for Respondents Nos.2-8.

CLC 2010 KARACHI HIGH COURT SINDH 925 #

2010 C L C 925

[Karachi]

Before Muhammad Tasnim, J

ARIF UMER----Petitioner

Versus

MUHAMMAD SHAMIM KHURSHEED and 3 others----Respondents

Constitutional Petition No. S-113 of 2005, decided on 16th March, 2010.

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

----S.15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant---Sub-letting---Proof---Rent tendered by original tenant---Findings of fact---Jurisdiction of High Court under Act, 199 of the Constitution---Scope---Ejectment application filed by landlord was allowed by Rent Controller on the ground of sub-letting but Lower Appellate Court reversed finding of Rent Controller and dismissed ejectment application---Validity---Rent was being tendered by original tenant and was being deposited in court by original tenant, therefore, sub-letting was not proved---High Court, in its constitutional jurisdiction under Art. 199 of the Constitution, could not act as court of appeal on the question of fact---Findings of fact recorded by competent tribunal or court could be interfered with by High Court in exercise of constitutional jurisdiction if the same were based on no evidence or were recorded by ignoring material evidence on record---Findings of fact could not be interfered with by High Court in its constitutional jurisdiction merely on the ground that a different view on the basis of same material was possible---Findings recorded by Lower Appellate Court were in consonance with evidence available on record and the same did not call for any interference by High Court---Petition was dismissed in circumstances.

Ghulam Muhammad and another v. Haji Muhammad Jamil 1982 CLC 1042; Zamir Hassan and another v. Mst. Batul 1987 MLD 103 and Muhammad Shafi v. State Life Insurance Corporation 2009 SCMR 893 distinguished.

Muhammad Ibrahim v. Shabbir Hussain 1989 MLD 1604 ref.

Muhammad Yasin Azad for Petitioner.

Zafar Iqbal Datt for Respondents.

Date of hearing: 10th March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 935 #

2010 C L C 935

[Karachi]

Before Muhammad Tasnim, J

Mst. RAHEELA YASMEEN through Attorney----Petitioner

Versus

MUHAMMAD IQBAL and 2 others----Respondents

Constitutional Petition No. S-928 of 2009, decided on 16th March, 2010.

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

----S.21---Appeal---Maintainability---Interim order---No appeal lies against interim order passed by Rent Controller while rent proceedings are pending.

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

----S.19 (2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant---Words "found" and "without any reasonable excuse" in S.19(2), Sindh Rented premises Ordinance, 1979---Connotation---Rent Controller passed order for ex parte proceedings against tenant but Lower Appellate Court allowed appeal filed by tenant and set aside the order---Validity---Use of word "found" and words "without any reasonable excuse" clearly meant and imply that Rent Controller had to record finding that notice was served and further that default in making reply was without any reasonable excuse---Unless findings on such two facts were recorded, Rent Controller could not give full effect to S.19 (2) of Sindh Rented Premises Ordinance, 1979---Lower Appellate Court rightly set aside order passed by Rent Controller and the same did not call for any interference by High Court in its constitutional jurisdiction under Art.199 of the Constitution---Petition was dismissed in circumstances.

Mian Manzar Bashir and others v. M.A. Asghar and Co. PLD 1978 SC 185; Wahid Bux Soomro v. Ghulam Muhammad Baloch 1982 CLC 1436; Haji Mohibullah and Co. and others v. Khawaja Bahauddin 1990 SCMR 1070 and Zahoor v. Election Tribunal, Vehari and others 2008 SCMR 322 distinguished.

Mashlakhuddin v. Syed Ali Haider 1982 SCMR 570 ref.

Ghulam Ali Khokhar for Petitioner.

Muhammad Iqbal called absent for Respondent No.1.

Date of hearing: 11th March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 942 #

2010 C L C 942

[Karachi]

Before Muhammad Tasnim, J

AAMIR IQBAL KHAN----Petitioner

Versus

Mst. FARYAL AAMIR KHAN and another----Respondents

Constitutional Petition No. S-100 of 2010, decided on 12th March, 2010.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plaintiff filed suit for dissolution of marriage on the basis of Khula, maintenance of herself and of her two minors---Defendant contested suit and filed written statement---Trial Court fixed the matter for pre-trial proceedings---Defendant challenged the order in constitutional petition---Validity---It was statutory duty of Trial Court that after filing of written statement to settle the dispute between the parties at the pre-trial stage in a suit for dissolution---In case of failure of pre-trial, decree for dissolution of marriage should be passed forthwith---No order in consequence to pre-trial had been passed---Defendant contended before High Court to stop the Trial Court from discharging its legal duty under the law which could not be done in constitutional jurisdiction---Constitutional petition was dismissed by High Court in limine.

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

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stay of---Judicial proceedings--Plea of inherent powers of High Court---Scope---Plea taken that High Court had inherent power to stay the judicial proceedings was wholly misplaced---Under Art.199 of the Constitution only an aggrieved party could maintain a constitutional petition not being the case of quo warranto and habeas corpus.

Zakir Laghari for Petitioner.

CLC 2010 KARACHI HIGH COURT SINDH 950 #

2010 C L C 950

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD ISMAIL BURKI----Applicant

Versus

MARINERS AGENCIES (PVT.) LTD., KARACHI----Respondents

Civil Revision No.35 of 2010, decided on 12th March, 2010.

Civil Procedure Code (V of 1908)---

----S. 115 & O.XXXVII, R.3---Non-compliance of order---Revision---Maintainability---Scope---Plaintiff filed - summary suit under O.XXXVII, R.3, C.P.C.---Defendant contested and filed application for leave to defend---Trial Court allowed leave to defend subject to furnishing security to the extent of the amount within ten days from the date of order---Defendant failed to deposit the amount as per the order---Effect---In case of non-compliance of the order passed by Trial Court; decree followed and once a decree had been passed in the matter appeal was provided under the law---Section 115, C.P.C. provided that revision lay only in case where no appeal was provided and the case fell under any of the clauses mentioned in (a), (b) and (c) of S. 115, C.P. C, but none of the provisions were attracted in the present case---Petition was dismissed by High Court in limine.

Manzoor Hussain Khoso for Applicant.

CLC 2010 KARACHI HIGH COURT SINDH 955 #

2010 C L C 955

[Karachi]

Before Muhammad Iqbal Mahar and Amir Hani Muslim, JJ

FAHAD ----Petitioner

Versus

QAID-E-AWAM UNIVERSITY OF ENGINEERING, SCIENCE AND TECHNOLOGY NAWABSHAH through Vice-Chancellor and 5 others----Respondents

Constitutional Petitions Nos. D-37 (Hyderabad) and D-1100 (Kar.) of 2008, decided on 4th May, 2009.

Sindh Permanent Residence Certificate Rules, 1971---

----R. 8(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of Domicile and Permanent Resident Certificate---Cancellation of certificate---Petitioner, who was resident of District B', applied for issuance of Domicile and Permanent Resident Certificate of said District and Authorities after completion of the codal formalities issued the required certificate---Subsequently an application filed by respondent before the Executive District Officer, certificate issued to the petitioner was cancelled by Executive District Officer without hearing the petitioner and in his absence---Pending appeal filed by the petitioner before District Co-ordination Officer, University Authority, where the petitioner was student, issued show-cause notice to the petitioner, who filed constitutional petition---Validit5 ---Record had shown that sufficient material had been placed on record by the petitioner showing that petitioner was resident of DistrictB' and that certificate in question had been issued after completing all codal formalities---Executive District Officer, had stated that no fraud had been committed in issuance of certificate to the petitioner---Under R.8(1) of Sindh Permanent Residence Certificate Rules, 1971, Executive District Officer, in law had no authority to cancel the same---Authority rested with District Co-ordination Officer, but he had not cancelled the certificate in question---Mere filing of appeal by the petitioner would not confer jurisdiction on the District Co-ordination Officer---University where petitioner was studying was not justified in issuing show-cause notice to him on the basis of the order of Executive District Officer (Revenue) cancelling the certificate.

Ishrat Ali Lohar for the Petitioner.

Allah Bachayo Soomro, Addl. A.-G. Sindh along with Rehan Iqbal Baloch, E.D.O. (Revenue) Badin and Ghulam Qadir Jamali, Asstt. E.D.O. (Revenue) Badin.

Kamaluddin for Respondent/University.

Abdul Hafeez Memon for Respondent No.6.

CLC 2010 KARACHI HIGH COURT SINDH 1021 #

2010 C L C 1021

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD SAEED and another----Applicants

Versus

MUHAMMAD YOUSUF and another----Respondents

Civil Revision No.44 of 2007, decided on 2nd April, 2010.

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

----Ss. 8, 42 & 39---Suit for possession, declaration and cancellation of lease agreement---Defendants also filed suit against the plaintiffs for possession and mesne profits---Both suits were consolidated---Trial Court decreed suit of the plaintiffs and dismissed the suit filed by defendants---Appellate Court, on appeal, also dismissed the same---Contention of the defendants was that courts below had not dealt with the issue of limitation and that the burden to prove fraud was upon the plaintiffs which had wrongly been shifted upon the defendants---Validity---Defendants had not seriously contested the point of limitation---Appellate Court had extensively dealt with the point of limitation which did not call for interference by High Court in revisional jurisdiction---Findings of facts had been recorded by two competent forums, which were in line with the evidence on record---No jurisdictional defect, illegality or material irregularity in the conduct of proceedings had been pointed out in impugned judgments and decrees---Revision petition was dismissed by High Court.

Dr. Shabbir Ahmed and 4 others v. Abdul Haleem and 3 others 2000 SCMR 1287; Wali and 10 others v, Akbar and 5 others 1995 SCMR 284; Majeeduddin Khan and others v. Sardar Khan and others 1990 SCMR 1031; Mst. Surryia Begum and others v. Mst. Suban Begum and others 1992 SCMR 625; Nawab Din v. Ghulam Qadir and 9 others 1994 MLD 1275; Shamsher Ali v. Sardar Khan 1991 CLC Note 133 and Abdul Aziz v. Muhammad Ashiq and others 1991 CLC 820 ref.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), S.115---Suit for possession and declaration---Non-suited---Due to fault of other party---Plea of---Effect---Plea raised by the party that it was non-suited due to fault of Karachi Development Authority who had not adduced any evidence on record relating to transfer and subsequent lease---Validity---Party had approached the court, it was its duty to establish its case through cogent evidence and could not take advantage of the weakness of the other side.

Amir Malik for Applicants.

Muhammad Akram for Respondent No. 1.

Sultan Ahmed for Respondent No.2.

Dates of hearing: 15th March, and 29th March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1039 #

2010 C L C 1039

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD NAEEM and another----Plaintiffs

Versus

K.A. BASHIR and another----Respondents

Civil Suit No.1230 of 2004, decided on 12th April, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.3 & O.XIV, R.1---Dismissing of suit for non-prosecution---Settlement of issues---Date of hearing---Matter was fixed for settlement of issues but none was present for plaintiff nor plaintiff had filed proposed issues---Contention of defendant was that date for settlement of issues was date for hearing of suit and as plaintiff had lost interest, therefore, the suit might be dismissed for non-prosecution---Validity---Date fixed for settlement of issues was a date of hearing and in absence of plaintiff, the suit should be dismissed in non-prosecution-Suit was dismissed in circumstances.

PLD 1959 (W.P.) Kar.143; Government of Sindh through Secretary, Education Department and 3 others v. Muslim Educational Society (Regd.) 1991 CLC 1766 and Messrs Ciba Geigy (Pak.) Limited v. Muhammad Safdar 1995 CLC 461 ref.

Nemo for Plaintiffs.

Syed Muhammad Haider for Defendant No.1.

CLC 2010 KARACHI HIGH COURT SINDH 1046 #

2010 C L C 1046

[Karachi]

Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ

Messrs RELIANCE CONSULTANCY AND ENGINEERING WORKS PRIVATE LIMITED----Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others----Respondents

Constitutional Petition No.D-1962 of 2009, decided on 12th April, 2010.

Contract Act (IX of 1872)---

----S. 2(a)(b)(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Invitation of tenders---Lowest bid offered by petitioner---Order of authority for re-tendering after scrapping all bids including that of petitioner for not being responsive---Validity---Mere fact that petitioner's bid being lowest would not ipso facto entitle him to award of tender---Public functionary could not reject lower bid without assigning valid reasons---Had petitioner's bid been rejected for being not responsive and bid of some one else been accepted, then High Court could enter into question, whether treating of petitioner's bid as not responsive was justified in circumstances or not---High Court dismissed constitutional petition while observing that if authority invited fresh tenders and petitioner participated therein, then his bid must be evaluated in a just, fair, judicious and transparent manner and that tender must be awarded strictly in accordance with law and rules while observing highest standards of probity.

Ayaz Builders through Partner v. Karachi Water and Sewerage Board through Managing Director and 2 others, 2007 CLC 728; Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Messrs Bagh Construction Company v. Federation of Pakistan and others 2001 YLR 2791; City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and another 2002 CLD 1158; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Fateh Muhammad Agha and another v. City District Government, Karachi through District Coordination Officer and 5 others 2009 CLD 1336 ref.

Malik Naeem Iqbal for Petitioners.

M.G. Dastigir and Ashiq Raza, D.A.-G. for Respondents.

Date of hearing: 6th April, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1064 #

2010 C L C 1064

[Karachi]

Before Muhammad Tasnim, J

UNIVERSAL BLOCK through Proprietor----Petitioner

Versus

II-ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 2 others----Respondents

Constitutional Petition No.S-774 of 2009, decided on 31st March, 2010.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Finding of fact recorded by competent forum---Interference---Principle---High Court in its jurisdiction under Art.199 of the Constitution, cannot sit as a court of appeal on question of fact---Finding of fact recorded by competent forum can be interfered with by High Court in its constitutional jurisdiction, if the same was based on no evidence or was recorded by ignoring material evidence on record---Finding of fact cannot be interfered with by High Court in its constitutional jurisdiction merely on the ground that a different view on the basis of the same evidence was possible.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fair rent, fixation of---Jurisdiction of Rent Controller---Arrears of rent---Instalments---Tenant was aggrieved of rent fixed by Rent Controller and maintained by Lower Appellate Court---Validity---Rent of all tenaments of same building and adjoining buildings ranged between Rs.7 and 8 per sq. foot per month per shop and such rent was fixed about nine years prior to passing of order by Rent Controller---Considering the period of pendency of rent application, the Rent Controller had rightly fixed rate of rent at Rs.10 per sq. foot per month and the same did not call for interference by High Court in constitutional jurisdiction---Such findings of Rent Controller neither suffered from any illegality nor were based upon any misreading of evidence nor had been recorded by ignoring material evidence on record---Findings of fact recorded by two forums below had taken care of all evidence i.e. documentary or otherwise available on record, therefore, the same could not be disturbed in constitutional jurisdiction of High Court under Art.199 of the Constitution---Arrears of rent could be ordered for payment in instalments, so as to avoid hardship as a result of the act of court in consuming sufficient time in disposing of rent application---High Court keeping in view the hardship and delay in disposal of case, directed the tenant to pay arrears of rent in six equal instalments within a period of 18 months---Petition was disposed of accordingly.

Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115 rel.

State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt.) Ltd. and 2 others 2008 CLC 517; Banarsi Silk Cloth Museum v. Mst. Amna Bai 1986 CLC 1570; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Mst. Masudah Jawad through her daughter v. State Life Insurance Corporation of Pakistan, Karachi and another PLD 2007 Kar.485; Messrs Eastern Automobiles (Pvt.) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi PLD 1993 Kar.9; Muhammad Shafi Khan v. Meher Sultan 1991 CLC 351; Abdul Hamid v. Abdul Ghani 1992 MLD 1588; Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others PLD 2005 Kar.554; State Life Insurance Corporation of Pakistan v. Pakistan National Shipping Corporation of Pakistan 1993 CLC 1726; Messrs Olympia Shipping and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103; State Life Insurance Corporation of Pakistan, Karachi v. Messrs Victor Restaurant through Partners and others 2009 YLR 1124 and PLD 2006 SC 24 ref.

----S. 8---Fixation of fair rent---Duration---Powers of Rent Controller---Scope---Very wide discretion has been conferred by law on Rent Controller to fix fair rent from the date of application or from the date of order and in suitable cases even from a date in between the two events---Discretion vested in Rent Controller or appellate authority is not arbitrary or whimsical---Discretion in fixing fair rent as well as period from which it would be made payable is to be exercised judiciously with great care and caution, being in the nature of public trust.

Khalid Javed for Petitioner.

K.A. Wahab for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 17th March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1086 #

2010 C L C 1086

[Karachi]

Before Zahid Hamid, J

Mst. SHEHLA NAZ through Special Attorney----Petitioner

Versus

JAWAID and 2 others----Respondents

Constitutional Petition No.S-497 of 2007 and C.M.A. No.3604 of 2008, decided on 18th March, 2010.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art. 132---Ejectment petition---Default in payment of rent, ground of---Statements of landlord's witnesses regarding default in payment of rent and existence of relationship of landlord and tenant between parties neither cross-examined nor disputed by tenant by filing affidavit-in-evidence in rebuttal---Effect---Adverse inference in such circumstances would be drawn against tenant by assuming that whatever was stated by landlord's witnesses was not disputed by tenant---Ejectment petition was accepted in circumstances.

(a) Maxim---

----"Apices Juris Non Sunt Jura "---Legal principles must not be stretched to their most extreme consequences regardless of equity and good sense.

----A wrong could not be allowed to perpetuate.

PLD 2004 SC 154 ref.

Hassan Ali for Petitioner.

Nemo for Respondent.

2010 C L C 1200

[Karachi]

Before Shahid Anwar Bajwa, J

Messrs DEEN BROTHERS & Co. through Partner---Applicant

Versus

GULSHAN-E-IQBAL TOWN COMMITTEE through Town Nazim and 7 others---Respondents

Civil Revision Application No.20 of 2002, decided on 23rd April, 2010.

(a) Martial Laws Order [Zone C]---

----Nos.34 & 89---Specific Relief Act (I of 1877), S.42---Cancellation of allotment of plots reserved for amenity/community purposes---Suit for declaration and permanent injunction on the ground that the plot leased out to plaintiff was not the amenity plot and allotment could not be cancelled---Defendants contested suit on the ground that leased plot was an amenity plot reserved for park and was continuously used by the residents for assembling there in the evening, to enjoy outdoor activities---Trial Court, decreed the suit of the plaintiff---Appellate court on appeal, allowed the same and set aside the judgment and decree of the Trial Court--- Validity---Trial Court had discussed the evidence and had come to the conclusion that the leased plot was not an amenity plot but was adjacent to the amenity plot---Neither Martial Laws Order [Zone C], No.34 nor No.89 were applicable to the leased plot---Revision petition was allowed by High Court.

Aldeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.) Karachi and 4 others 1999 SCMR 2883 rel.

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

---Ss. 4 & 12---Appeal---Filing of---Application for certified copy---Exclusion of period--- Plea of--- Effect--- Decree was passed on 31-5-1997---Application for certified copy was filed on 5-7-1997---Certified copy was received by judgment debtor on 5-7-1997---Appeal was filed within one month from receiving the certified copy---Prayer for exclusion of time from 1-6-1997 to 4-7-1997 being vacation of the Court---Validity---Period when court was closed, though office of the court remained open, was excluded for the purpose of filing appeal and not for the purpose of filing application for certified copy of the judgment and decree---Appeal before the Appellate Court was barred by time.

Ikramullah and others v. Saad Jamal 1980 SCMR 374 rel.

----Ss. 4 & 12---Applicability and scope of Ss. 4 & 12, Limitation Act, 1908.

Khawaja Shamsul Islam for Applicant.

Sultan Ahmed for Respondent No.11.

Arif Bilal Sherwani for Respondent No.12.

Date of hearing: 23rd December, 2009.

CLC 2010 KARACHI HIGH COURT SINDH 1226 #

2010 C L C 1226

[Karachi]

Before Muhammad Ali Mazhar, J

ISMAT ASAD---Plaintiff

Versus

PAKISTAN OXYGEN LIMITED and another---Defendants

Suit No.83 of 2006 and C.M.A. No. 3300 of 2008, decided on 17th May, 2010.

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

----S.12---Limitation Act (IX of 1908), S.6---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Question of limitation---Plea of insanity---Cause of action to file suit for specific performance of agreement to sell accrued in year 1981 but it was filed in year 2004---Delay was sought to be condoned on the basis of medical certificate issued by doctor in which he certified that plaintiff remained under his treatment from October 1981 to 2004 and she was brought to him in insane condition---Effect---Unless specific issue was framed and ' evidence was recorded, such contention could not be adjudicated at such a stage whether plaintiff was entitled to avail concession of S. 6 of Limitation Act, 1908, or not---High Court declined to reject the plaint on the ground of limitation---Application was dismissed in circumstances.

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

----S.12---Specific performance of agreement to sell---Pre-conditions---General principle for enforcement of specific performance is that every contract creates not only a right but also corresponding obligation in another---Every contract entails an obligation on each of the contracting parties to perform such terms of contract as covenanted, failing which the other party has right to insist on the actual performance of the contract or to obtain satisfaction for nonperformance---In order to invoke specific performance there should be a contract enforcement of which is barred in the Act; the act to be done is in respect of trust; there is no standard for ascertaining the actual damage caused; pecuniary compensation is not adequate relief and the court deems it fit to exercise its discretion in favour of plaintiff.

----S.12---Civil Procedure Code (V of 1908), S. 16 (d) & O. VII, R.10---Return of plaint---Specific performance of agreement to sell---Territorial jurisdiction---Determination---Plea of any other relief---Suit property was situated at place "R" and suit was filed at place "K" on the ground that advertisement for sale of suit property was published in newspaper at place "K" and earnest money was also paid there-, Validity-By reading S.12 of Specific Relief Act, 1877, in conjunction with S.16 (a) and (d) C.P.C., it was clear that only the courts in whose territorial jurisdiction the suit property was situated could entertain and decide the suit---Mere publication of an advertisement to sell or alleged payment of token money could not give any cause of action to decide the suit for specific performance in which many reliefs were claimed including the declaration--- Provisions of O. VII, R.10, C.P.C. were mandatory and adjudication by a court without jurisdiction was a determination coram non judice and not binding---When court lacked pecuniary jurisdiction or territorial jurisdiction, in such cases, the plaint must be returned for presentation to proper court and the court could not pass any judicial order except that of returning of plaint---Plaint was returned in circumstances.

Hamid Hasan v. Mst. Saleha Begum 1990 CLC 991; Haji Abdul Malik v. Muhammad Anwar Khan 2003 SCMR 990 and Muhammad Jewan v. Syed Abdul Qasim 1979 CLC 186 ref.

Haji Riaz Ahmed Mir v. Brig. (Retd.) Ch. Muhammad Sharif PLD 2003 Kar. 45; Karachi Development Authority v. City District Government Karachi 2008 UC 75; Muhammad Yousaf v. Ume Aiman and others 2007 CLC 163 and Feroz-ud-Din v. Muhammad Aziz PLD 2005 Azad J & K 9 distinguished.

New Mofussil Co. Ltd. v. Shankerlal Narayndas Mudade AIR 1941 Bombay 247 rel.

Jafer Hussain for Plaintiff.

Haider Waheed for Defendant No.1.

Farhatullah along with Tehmaz Razvi for Defendant No.2.

CLC 2010 KARACHI HIGH COURT SINDH 1253 #

2010 C L C 1253

[Karachi]

Before Muhammad Ali Mazhar, J

ABU DHABI MEDICAL DEVICES CO. L.L.C.---Plaintiff

Versus

FEDERATION OF PAKISTAN through the Ministry of Health and another---Defendants

Suit No. 613 and C.M.A. Nos. 3982, 3983 of 2010, decided on 21st May, 2010.

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

----Ss.12, 42 & 54---Public Procurement Rules, 2004, R.35---Specific performance of agreement---Compromise between parties---Authorities floated tenders for supply of certain types of medical syringes and plaintiff was declared as the lowest bidder---Dispute between the parties arose with regard to implementation of the contract---Parties were at issue only for the reasons of pre-conditions imposed by plaintiff which delayed signing of contract---Later on plaintiff had withdrawn all such conditions and agreed to sign the agreement "as it is" and in the same terms and conditions as offered by authorities in tender document---Effect---Authorities had not invited fresh tender for the contract and the matter was intact, therefore, High Court felt that parties might sign the contract "as it is" to avoid wastage of time and if fresh tenders were invited, it would take another two or three months for procurement of syringes and the very purpose of tender and awarding of contract would remain pending for number of months for fulfillment of different formalities required for awarding contract and procurement of syringes---In such exercise again a considerable time would be lapsed and ultimately general public/children were deprived from laudable services undertaken by authorities in the larger public interest---As the parties had no serious dispute, therefore, the matter could be resolved without any further delay and if new tender was called the expended programme of immunization would be kept in abeyance whereby public at large would suffer as the contract period was only confined to financial year, 2009-2010---Suit was decreed accordingly.

(b) Words and phrases---

----Public interest'-Connotation-Expressionpublic interest' in common parlance means an act beneficial to general public---Action taken in public interest necessarily means an action taken for public purpose---Public interest further leads general social welfare or regard for social good and predicating interest of general public in matters where regard to social good is of the first moment.

Mr. Salman Talibuddin along with Suhail Rafiq, Chief Financial Officer and Mr. Qashif Effendi, Group Head of Sales & Marketing for Plaintiff.

Irfan Ali for the Defendant No.1 along with Muhammad Younas Khokhar, Manager Procurement Expanded Programme on Immunization, Federal EPI Cell, National Institute of Health, Islamabad.

None present for the defendant No. 2 though served.

CLC 2010 KARACHI HIGH COURT SINDH 1272 #

2010 C L C 1272

[Karachi]

Before Muhammad Ali Mazhar, J

Messrs GUL AHMED TEXTILE MILLS LIMITED through Authorized Signatory---Plaintiff

Versus

SHAKOOR and 4 others---Defendants

Suit No. 547 and C.M.A. No. 3471 of 2010, decided on 26th April, 2010.

Administration of justice---

----Court normally would accept the statement of all Advocates at Bar, but if the Advocates would start denying the statements given by them in the court, the whole purpose of accepting the statements at Bar would become redundant and unreliable.

Ms. Shazia Tasleem for Plaintiff.

Saleem Ghulam Hussain for Defendant No. 1.

CLC 2010 KARACHI HIGH COURT SINDH 1277 #

2010 C L C 1277

[Karachi]

Before Ahmed Ali M. Shaikh, J

Mrs. ASMA HASAN---Petitioner

Versus

Mrs. KAUSAR H. HAMID and another---Respondents

Constitutional Petitions Nos.S-373 and 384 of 2010, heard on 19th May, 2010.

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

----Ss. 15, 16(1)(2) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Tentative rent order to deposit arrears of rent and future monthly rent---Non-compliance of tentative rent order---Rent Controller on application filed by the landlady under S.16(1) of Sindh Rented Premises Ordinance, 1979, directed the tenant to deposit arrears of rent within specified period and to deposit future rent, but the tenant failed to comply with said tentative rent order---Defence of the tenant was struck off and she was directed to hand over the vacant possession of premises to landlady within specified period---First appeal filed against order of Rent Controller having been dismissed by the Appellate Court, tenant had filed constitutional petition---From the order passed by the Rent Controller as well as judgment of Appellate Court, it was crystal clear that the tenant had failed to comply with orders of the Rent Controller with regard to the arrears of rent as well as future rent, not only that she had obtained one year's time for vacating the premises in very mysterious circumstances---Constitutional petition was dismissed, in circumstances.

Attorney Humayun Latif Hamid for Petitioner (in C.P. No.373 of 2010).

Saathi M. Ishaque for Petitioner (in C.P. No.384 of 2010).

Firdous Fareedi for Respondent (in C.P. No.384 of 2010).

Date of hearing : 19th May, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1285 #

2010 C L C 1285

[Karachi]

Before Salman Talibuddin, J

SHALIMAR SOAP FACTORY through Managing Partner---Plaintiff

Versus

ZULFEQAR INDUSTRIES LIMITED through Managing Director---Defendant

Suit No. 1324 of 2006 and C.M.As. Nos. 7801 of 2006, 9191 of 2007, decided on 7th May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 56(e)---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration, injunction and damages---Stay of proceedings in a criminal matter--- Rejection of plaint, application for---Defendant in the case had sought rejection of plaint filed by the plaintiff on the ground that suit was hit by S.56(e) of the Specific Relief Act, 1877---Submission of the defendant was that F.I.R. with regard to the criminal matter got registered by him was against person other than the plaintiff who had no relationship at all with the plaintiff nor the plaintiff was named in said F.I.R.---No cause of action having been disclosed in the plaint against the defendant, plaint was rejected under O. VII, R.11, C.P. C., in circumstances.

Mirza Mehmood Baig for Plaintiff.

Saleem Ghulam Hussain for Defendant.

CLC 2010 KARACHI HIGH COURT SINDH 1287 #

2010 C L C 1287

[Karachi]

Ms. Rukhsana Ahmed, J

Mst. HUSSAN BANG through Legal Representative and others---Appellants

Versus

Kazi MUHAMMAD USMAN and others---Respondents

IInd Appeal No. 8 of 2006, decided on 3rd May, 2010.

Islamic Law---

----Inheritance---Widow---Share of---Entitlement---Plaintiff filed suit for declaration on the ground that her husband was owner of the disputed plot and construction over the said plot was jointly made by them and she had spent about Rs.200,000 over the construction---Plaintiff further contended that in the year 1985, her husband gave 50% share in the disputed property which was accepted by her and after death of her husband she was in possession of entire property and claimed a share of 62-1/2% in the property---During pendency of suit the plaintiff died and she was represented by her legal heirs---Trial Court returned the plaint and required plaintiff to pay court-fee--Plaintiff withdrew from the prayer of injunction and filed amended plaint---Defendants contested suit on the ground that the plaintiff was divorced by her husband during his life time and possession was forcibly taken by plaintiff---Trial Court decreed the suit of the plaintiff to the extent of share of 12% while dismissed rest of the claim and directed to pay ad valorem court fee over the value of the suit within thirty days--Appellate Court, on appeal, upheld the judgment of the Trial Court---Validity---Both courts below had erred in deciding the share of plaintiff as widow---Share of widow was 1/4 when there was no child or child of a son and there was evidence on record that applicant was issueless---Plaintiff's legal heirs were entitled for share of 1/4th in the disputed property---High Court allowed the contention about non-payment of court fee and denied rest of pleas raised by plaintiff with direction to Trial Court to make modification in the judgment and decree with respect to 1/4 share of legal heirs in the disputed property.

Jhamat Jethanand for Appellants.

Aijaz Ali Hakro for Respondents.

Dates of hearing : 22nd March and 12th April, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1300 #

2010 CLC 1300

[Karachi]

Before Muhammad Tasnim, J

PAKISTAN STATE OIL COMPANY (Ltd.) through Authorised Officer---Petitioner

Versus

MUHAMMAD RAFIQUE and 4 others---Respondents

Constitutional Petitions Nos. S-122, S-540, S-131 and S-132 of 2009, decided on 10th May, 2010.

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

----Art. 199---Findings of fact recorded by Tribunal/Courts below--Interference in such findings by High Court in exercise of constitutional jurisdiction---Scope.

Findings on facts recorded by competent tribunal can be interfered with by the High Court in exercise of constitutional jurisdiction, if same was based on no evidence or was recorded by ignorance of material evidence on record. Finding of facts cannot be interfered with by High Court in its said jurisdiction merely on the ground that a different view on the basis of same was possible.

If any misreading or non-reading is noted, which has caused serious prejudice to a particular party, in that event jurisdiction under Article 199 of the Constitution is to be invoked and illegality committed by the court below is to be rectified. If it is found that findings of the courts below are in accordance with law and also in line with the evidence on record, normally no interference is called for.

Mst. Mobin Fatima v. Muhammad Yamin and 2 others, PLD 2006 SC 214 and Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCAM 505 ref.

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

----Ss. 2(g) & 15(2)(vii)---Ejectment petition---Personal bona fide need of landlord for constructing thereon shops, offices and showrooms---Validity---Personal use would mean use of premises by its owner or his/her spouse, son or daughter---Landlords in the present case were builders/developers by profession---Landlords in their evidence had nowhere stated that as to which part of the building they wanted to occupy and for whose personal use same was required---Landlord wanted to demolish present structure and erect high-rise building on its land--- Ejectment petition was dismissed in circumstances.

PLD 2004 SC 921 ref.

----Ss. 2(i) & 15(2)---Ejectment petition---Default in payment of water charges and property tax by tenant---Such default admitted by tenant's witness during his cross-examination---Effect---When a tenant committed default in payment of rent to landlord or water/electricity and other charges payable by hint to relevant authority, then he would be guilty of default in payment of rent---Ejectment petition was accepted in circumstances.

Pakistan State Oil Company Limited v. Sikandar A. Karim and others 2005 CLC 3; Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323; Badruddin v. Muhammad Yousuf 1994 SCMR 1900; Muhammad Usman and another v. Dr. Muhammad Hanif 1999 SCMR 2234; fzhar Hussain Naqvi v. Muhammad Saeed 1986 CLC 1485; Abdul Mateen v. Muhammad Hussain (Late) through Legal Heirs and another 1997 CLC 216; Mrs. Tahira Dilawar Ali Khan through Attorney and 2 others v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505; Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214 and Abdul Rahman through legal Heirs and 6 others v. Pakistan State Oil Company Ltd. and another PLD 2004 SC 921 ref.

Messrs Kwality Food Products v. Mst. Sehba Nishat Haq 1991 MLD 1331; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28; Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671 and Badruddin v. Muhammad Yousuf 1994 SCMR 1900 rel.

1995 SCMR 323 distinguished.

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

----S. 15---Ejectment petition---Subletting, ground of---Admission of tenant's witness during his cross-examination regarding handing over possession of two portions of demised premises by tenant to others without written permission of landlord---Ejectment petition was accepted in circumstances.

1986 CLC 1485 ref.

Muhammad Sadiq for Petitioner (in C.Ps. Nos.S-122 and 540 of 2009).

Khalid Javed Khan, Faisal Kamal and Arshad Hussain for Respondents Nos. 1 and 2 (in C.Ps. Nos. S-122, S-540, S-131 and S-132 of 2009).

Iftikhar Javed Qazi for Respondent No. 3 (in C.Ps. Nos. S-122 and S-540 of 2009).

Nemo for Respondents Nos. 4 and 5 (in C.Ps. Nos. S-122 and S-540 of 2009).

Iftikhar Javed Qazi for Petitioner (in C.Ps. Nos. S-131 and S-132 of 2009) for Respondents Nos. 3 and 4.

Muhammad Sadiq for Respondents Nos. 5 (in C.Ps. Nos. S-131 and S-132 of 2009).

Dates of hearing: 11th March, 20th April and 27th April, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1324 #

2010 C L C 1324

[Karachi]

Before Munib Akhtar, J

RASOOL BUX through L. Rs. and others---Applicants

Versus

HUSSAIN BUX and others---Respondents

Civil Revision Application No. 13 of 1990 and C.M.As. No.s. 224-225/09-415/07, 92/03, 690/06, heard on 3rd March, 2010.

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

----Arts. 85(2), 102 & 103---Suit involving issue of date of death of plaintiff's father --- Production of certified copy of Death Report by plaintiff finding mention therein that he reported to Municipality that his father died on 15-4-1973 as a result of "T.B. "---Exclusion of oral evidence to contradict or dispute contents of such report---Scope---Such report was not a confirmation regarding death of deceased by an independent authority or third party such as a medical doctor or a hospital or other such functionary---Plaintiff's own statement about date of death of his father, if made to and recorded by Municipality, could not be regarded as definite proof of such date, which fact had to be established by proper evidence---Such report would not come within scope of Arts. 102 & 103 of Qanun-e-Shahadat, 1984 for not being a contract, grant or other disposition of property or containing any matter required by law to be reduced in form of a document---Plaintiff had reported such date of death of his father to Municipality after 14 years of his death and institution of suit---Plaintiff in cross-examination stated that he did not remember date of death of his father, who died suddenly and was not ill prior to his death---Such report showed that plaintiff's father had been ill before his death---Tuberculosis being a disease which never causes a person to die suddenly--- Plaintiff's own evidence was at variance with such Report in many material respects---No credibility could be attached to such report in circumstances --- Principles.

(b) Medical jurisprudence---

---Sudden death not possible by tuberculosis---Principles.

Tuberculosis is a disease that hardly ever causes a person to die suddenly; the afflicted person invariably remains ill for sometime before the occurrence of death.

----O.XLI, R. 27 --Application for production of additional evidence in Appellate Court---Scope---Such application would not be allowed, unless court was satisfied that there were some strong and weighty reasons for allowing such evidence to be produced at such a late stage.

Shaikh Abdul Rehman and Noor Hassan Malik for Applicants.

J.K. Jarwar for Respondent No. 1.

Imtiaz Ali Soomro, Assistant Advocate-General for Respondents.

Date of hearing: 3rd March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1335 #

2010 C L C 1335

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD IQBAL KAMDAR---Plaintiff

Versus

MUHAMMAD TAHIR AHMADANI and 12 others---Defendants

Suit No. 252 of 2007, decided on 23rd April, 2010.

Specific Relief Act (I of 1877)---

----Ss. 39 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for cancellation of documents, permanent injunction and damages --- Plaintiff being co-vendee of suit plot under irrevocable power of sub-attorney signed settlement deed agreeing for its sale by defendant/principal @ Rs. 1,22,000/- per square yard and on paying him agreed share in sale price --Plaintiff's claim for an additional amount in addition to his agreed share from defendant/principal alleging sale of suit plot by him @ Rs. 1,44,000/- per square yard---Application for interim injunction by plaintiff---Validity---Defendant/principal had sold suit plot with consent of plaintiff---Plaintiff had received his share of amount as per settlement deed from subsequent vendee on instruction of defendant/principal after executing receipt by mentioning to have surrendered, released, relinquished his right, title or interest therein in favour of subsequent vendee --- Sale agreement and sale deed executed by defendant/principal showed sale of suit plot @ Rs. 1, 22,000/- per square yard --- Plaintiff had raised in suit a question of fact as to whether suit plot had been sold by defendant/principal at a price higher than shown in settlement deed---Such question could not be decided without recording evidence---In case there was any shortfall in payment of share of plaintiff or any fraud on part of defendant/principal, such matter could not be resolved without recording evidence of parties---Subsequent vendee had not caused any loss to plaintiff--In case of refusal of injunction, no prejudice would be caused to plaintiff and loss, if any, could be compensated in shape of damages as claimed by him in suit---Plaintiff had failed to make out a prima facie case for grant of injunction---Balance of convenience was not in favour of plaintiff--- High Court dismissed application for interim injunction in circumstances.?

Navaid Hussain and 5 others v. Jahangir Siddiqui through Attorney and 9 others 2007 CLC 1568 rel.

Hakim Ali v. Sakhi Muhammad and others 1996 SCMR 354; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Riaz and others v. Razi Muhammad 1982 SCMR 741; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 and Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 distinguished.

Badar Alam for Plaintiff.

Asim Mansoor Khan for Defendant No. 1.

Arshad Tayably along with Hassan Akbar for Defendant No. 2.

Defendant No. 6 in person.

Nemo for remaining defendants.

Date of hearing: 19th April, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1370 #

2010 C L C 1370

[Karachi]

Before Sarmad Jalal Osmany, C.J. and Zahid Hamid, J

Messer KOHISAR ENTERPRISES through Partner---Petitioner

Versus

PROVINCE OF SINDH through Secretary and another---Respondents

Constitution Petition No.D-232 of 2009, decided on 7th May, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Tender notice---Procedural fairness---Transparent proceedings---Subsequent increase in rate---Refund of earnest money---Petitioner claimed refund of earnest money on the ground that revision in rate of royalty was arbitrary, unilateral and mala fide---Validity---Tender notice was virtually a liquid, partly concealed and inchoate invitation to offer and acceptance on the part of petitioner would amount to offer which was responded to by variation of proposal by specifying and almost doubling the liabilities--Increase in rate demanded subsequently was substantially raised by 50% above the existing rate and such rate was introduced immediately within a few days of tender, under notification---If increase royalty rate could be conceived by parties publishing tender notice as the process in all probabilities was in offing why the same information was not spelt out---Authorities might be knowing that increase in royalty rate was going to rise by 50% above the stipulated rate specified in public notice but such information was withheld by not mentioning that the rise could go up to 50% of the given rate---Authorities, therefore, secured an advantage to twist the transaction in their favour if they so liked at a later stage---Procedural fairness of transaction was completely lacking which had betrayed the outcome of transaction itself---Courts under such circumstances had the power to ensure substantive fairness of transaction---Petitioner was entitled to refund of earnest money, which was wrongly stated to be the security deposit---Petition was allowed accordingly.

Pakistan Industrial Development of Pakistan v. Aziz Qureshi PLD 1965 (W.P.) Kar. 202; City School (Pvt.) Ltd. Lahore Cantt. v. Privatization Commission Government of Pakistan and others 2002 SCMR 1150; Malik Muhammad Nawaz v. Municipal Committee Pattoki and others 2003 SCMR 1191; East Asiatic Co. (India) Ltd. Bombay v. Messrs Rugnath Tricumdas AIR 1953 Saurashtra 122; Messrs Shams & Brothers v. Government of Pakistan and others 2007 CLD 125 Kar.; S.M. Saleem v. Province of Sindh and others 2007 YLR 2001; Pakistan Steel Products v. Messrs Indus Steel Pipes Ltd. 1996 CLC 118 and Abdul Rahim and 2 others v. UBL PLD 1997 Kar. 62 ref.

Irfan Ahmed Memon for Petitioner.

Sarwar Khan Additional-Advocate-General along with Abdullah Memon, Director-General, Mines & Mineral Development, Government of Sindh for Respondents.

CLC 2010 KARACHI HIGH COURT SINDH 1383 #

2010 C L C 1383

[Karachi]

Before Shahid Anwar Bajwa and Syed Hassan Azhar Rizvi, JJ

GHULAM MUSTAFA and 189 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Education Department and 6

others---Respondents

Constitutional Petitions Nos.D-726 to 734 of 2010 and Constitutional Petition No.2298 of 2009, decided on 31st May, 2010.

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

----Art. 11---Slavery---Scope---No one, much less the State functionaries, can be allowed to take beggar work from citizens and every employee who works has inherent right to receive his wages.

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

----Part. II, Chapter 2 [Arts. 29 to 40]---Principles of Policy---Scope---Principles of Policy do not confer legal rights or create legal remedies and are in the nature of instruments of instruction or general recommendations addressed to all authorities in the State reminding them of basic principles of new social and economic order which the Constitution aims at building.

Ms. Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar. 342 rel.

----Art. 25-A [as inserted by Constitutional (Eighteenth Amendment), Act, 2010]---Right to education---Scope---Right of compulsory education to all children of the age of 5 to 16 years in fundamental rights indicates increased awareness in the society in general and legislature in particular regarding importance of mass literacy for sustainable development of country.

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

---Arts. 25-A & 199---Constitutional petition---Compulsory education---Fundamental right---Closing of school---Salaries, non-payment of---Grievance of petitioners was that they had been performing their duties in schools but government had not paid them their salaries---Plea raised by authorities was that they had no funds available with them---Validity---Education, compulsory and free had been made fundamental right of every child, if school was established it would not be available to Provincial Government to discontinue service of a teacher without providing a substitute teacher; it would also not available to close a school without first deciding and putting into action a plan for providing education facility to the children who were studying in school sought to be closed by government---Almost 1500 persons (more than 1000 of them being teachers) employed in various schools were claiming that they had been working and government was claiming that they were not working any more without government saying a single word as to, at least as far as 1000 of them being teachers were concerned, no alternate arrangements had been made to ensure that children education should remain uninterrupted---High Court issued directions for authorities and constitutional petition was allowed accordingly.

Punjab Text Book Board, Lahore v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032; Mst. Zaib-u-Nisa v. Government of Punjab, Department of Education, through Secretary and 4 others, 1995 CLC 1281 and Employees Union, Jamia Karachi v. Registrar of Trade Unions, Sindh and 2 others 1981 PLC 403 ref.

M.M. Aqil Awan for Petitioners (in Constitutional Petitions Nos.D-726 to 734 of 2010).

S. Shoa-un-Nabi for Petitioners (in Constitutional Petition No.D-2298 of 2009).

Sheikh Jawed Mir for Respondents No.2 to 6 (in Constitutional Petition No.2298 of 2009) and for Respondents Nos.2 to 7 (in Constitutional Petitions Nos.D-726 to 734 of 2010).

Adnan Karim Additional Advocate-General.

Date of hearing: 24th May, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1477 #

2010 C L C 1477

[Karachi]

Before Zahid Hamid, J

M. MUHAMMAD SHAFI & CO.---Appellant

Versus

A. REHMAN ENTERPRISES and 3 others---Respondents

First Appeal No.34 of 2004, decided on 28th June, 2010.

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

----O.XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dishonoured cheque---Placing on record by plaintiff photo copy of cheque instead of original---Failure of defendant to furnish surety in compliance of order granting leave to defend suit---Liability of suit amount not only admitted by defendant in his letter, but also not disputed during cross-examination of plaintiff---Defendant not volunteered for his cross-examination on affidavit filed in support of leave application---Effect---Plaintiff's claim stood established in circumstances--- Principles.

Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others PLD 2002 Kar.315; Messrs Ahan Saz Contractors v. Pak Commercial Limited 1999 MLD 1781; Messrs Chowdhury Allah Bux Moula Bux v. Messrs Aijaz Moula Bux and another PLD 1973 Kar.468; Gulab v. Coast Lines and others 1994 CLC 2284; Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39; Abdullah v. Shaukat 2001 SCMR 60 and Fayyazul Hasan v. Messrs National Feed (Pvt.) Ltd. 2001 MLD 1630 ref.

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

----S.69---Proceedings in name of firm instituted by a partner---Objection regarding non-registration of firm and its locus standi to sue not raised by defendant--- Effect--- Such objection would be deemed to have been waived---Principles.

Under section 69 of the Partnership Act, 1932, no suit to enforce a right arising from a contract can be instituted in any court by or on behalf of a firm against any third party, unless the firm is registered and the persons suing are or have been shown in Register of Firm as partners in the firm. It is an established position in law that a partner may file proceedings in the name of the firm. However, it is for the defendant to point out to the court any legal infirmity in the proceedings and if the objection is not raised as to non-registration of the firm and its locus standi to sue, the objection may well remain unnoticed by the court, escape its attention and may be deemed to have been waived.

----O.XXXVII, Rr. 2 & 3---Partnership Act (IX of 1932), S.69---Suit for recovery of amount on basis of dishonoured cheque by partnership firm--Maintainability-Basically bill, on being dishonoured gave right to sue to its holder---Such suit would be decided independently of a right arising from a contract as referred to in S.69 of Partnership Act, 1932---Court seized of matter under summary procedure would not be obliged to advert to subterranean contract between parties giving rise to a right to sue particularly when leave was refused or not availed.

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

--- Art.2(4) (5)---Terms "proved" and "disproved" as used in Art.2(4) & (5) of Qanun-e-Shahadat, 1984---Connotation---Not conclusive proof of a fact in physical form, but only positive probability or likelihood of its existence would be required---Principles.

In the given circumstances, one should not assume that the requisite evidence in relation to any fact is to be proved conclusively in a physical form. Obviously, the words "so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" would mean something falling within the scope of positive probability far short than being conclusive. The degree of clarity of a fact is to bear proximity with probability or likelihood of its existence and that is all.

Jam Asif Mehmood and Tauqeer Ahmed Bokhari for Appellant.

Muhammad Safdar for Respondents.

Date of hearing: 2nd March, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1492 #

2010 CLC 1492

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Mst. SHAHANA BEGUM---Petitioner

Versus

PROVINCE OF SINDH through Senior Member, Board of Revenue and 5

others---Respondents

Constitutional Petition No.D-235 of 2008, decided on 2nd October, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Lease of agricultural land---Renewal of lease---Grievance of the petitioner was that she was in possession of Wahi Chahi agricultural land as lessee which lease was renewed for further 30 years, but authorities were interfering in her possession without due course of law---State Counsel had stated that title of the petitioner was forged and fabricated---Since there was a controversy as to whether the petitioner was holding valid title documents or otherwise, the dispute could not be resolved in the wake of controversy---Constitutional petition was disposed of with the direction that in case the petitioner was not holding any valid title, then authorities would take action strictly in accordance with law.

Nazar Muhammad Jamali for Petitioner.

Manzoor Ahmed and Shafi Muhammad Memon, Addl. A.G. for CDGK.

CLC 2010 KARACHI HIGH COURT SINDH 1545 #

2010 C L C 1545

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD TAHIR---Applicant

Versus

EMIRATES BANK INTERNATIONAL PJSC and another---Respondents

J.M. Application No.13 of 2007 in Suit No.67 of 2004, decided on 23rd July, 2007.

Civil Procedure Code (V of 1908)---

----S.12(2)---Sindh Chief Court Rules (O.S.), Rr.140, 141, 142, 143, 144 & 145---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 12---Ex parte decree, setting aside of---Misrepresentation---Incorrect address---Substituted service---Principle---Inquiry by High Court official---Defendant sought setting aside of judgment and decree passed by Banking Court on the ground that process was not served on him as his incorrect address was mentioned in plaint and also on the process---Validity---Relevant provisions for process were provided in Sindh Chief Court Rules (O.S) for the convenience and larger public interest and if the same were not followed in letter and spirit, the same would create unnecessary multiplicity of proceedings---Before declaring any person ex parte, the Court ought to ensure that all reasonable and possible efforts had been made for effective service on the parties---Neither bailiff had complied with relevant provisions nor Additional Registrar of High Court had held any inquiry as to sufficiency of service and ordered substituted service---Address of applicant was wrong throughout the proceedings and no efforts were made for personal service on him at the correct address---Judgment and decree was obtained against defendant on misrepresentation, which clearly transpired from wrong address of defendant mentioned in plaint as well as subsequent addresses provided by plaintiff---As the address of defendant was wrong and suit was decreed on the basis of wrong address defendant was never served, hence application under section 12(2) C.P.C. was maintainable on the ground of misrepresentation---Ex parte judgment and decree passed against defendant was set aside and case was remanded to Banking Court for filing of written statement by defendant---Application was allowed in circumstances.

Nauroz Khan v. Haji Qadoor 2005 SCMR 1877; Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCMR 664; Atiqur Rehman v. Novell Data Systems Pakistan (Pvt.) Ltd. 2009 YLR 432; Muhammad Younis v. Additional District Judge, Jhelum 2006 MLD 963; Muhammad Ayub Patel v. Hasham 1997 MLD 1838; Yusuf A. Haroon v. Mahmood A. Haroon 1997 MLD 2246; Mst. Zubeda Begum v. Messrs Long Life Builders 1995 CLC 1290; Zulfiqar v. Muhammad Jan 2002 CLC 932; Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah 1993 MLD 889 and Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6 ref.

Haji Akbar and others v. Gul Baran and others 1996 SCMR 1703; Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCMR 1228 and Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46 rel.

Zia-ul-Haq Makhdoom for Applicant.

A.H. Mirza and Ghulam Murtaza for Respondents.

CLC 2010 KARACHI HIGH COURT SINDH 1578 #

2010 C L C 1578

[Karachi]

Before Muhammad Ali Mazhar, J

Mrs. AZRA SHABBIR---Applicant

Versus

Mrs. REHANA KHATOON---Respondent

Judicial Miscellaneous Application No.49 of 2008 in Civil Suit No.1223 of 2005, decided on 23rd July, 2010.

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

----S.12(2)---Word "person"-Scope---Legislature has introduced S.12(2), C.P.C. with a broad scope and instead of mentioning word "defendant", the word "person" has been used which gives even third party a right to challenge a decree if it is obtained by way of fraud and misrepresentation.

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

----S.12(2)---Setting aside of decree---Remedy under section 12(2), C.P.C.---Scope---Remedy provided under section 12(2), C.P.C. cannot be equated or treated at par to a remedy of review or revision.

----S.12(2)---Setting aside of decree---Multiple remedies---Re-agitating controversy---Trial Court passed ex parte decree against applicant and the decree remained unchanged upto Supreme Court---Applicant once again invoked the remedy under section 12(2), C.P.C. after losing from Supreme Court---Validity---Applicant had already availed all best possible remedies up to the level of the Supreme Court and then she had no plausible and cogent justification to file application under section 12(2), C.P.C. for resurrecting the earlier decided matter which has attained finality against her---If such type of misconceived applications were entertained, there would be no end, it would amount to grant licence to every lost/unsuccessful litigant to first avail all best possible remedies up to the level of the Supreme Court, then file application under section 12(2), C.P.C. to commence second round of litigation for dragging opponent in vexatious proceedings---Application was dismissed in circumstances.

Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Abdur Rehman Khan v. Muhammad Altaf 1997 CLC 1260; Lodhran Cotton Ginners (Pvt.) Ltd. v. Zaffar Saleem and Brothers 1992 CLC 980 and Mrs. Anis Haider v. S. Aamir Haider 2008 SCMR 236 distinguish.

Ardeshir Cowasjee v. K.B.C.A and others PLD 2003 Kar. 314; North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; Mst. Sabiran Bibi v. Ahmed Khan 2008 SCMR 226; Gulzar Ahmed v. Muhammad Rashid 1993 CLC 824; Banque Indosuez v. Rehmani Brothers 1993 CLC 1257; Mrs. Amina Bibi v. Nasrullah 2000 SCMR 296 and Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46 rel.

Haleem Siddiqui for Applicant.

Adnan Choudhary for Respondent.

CLC 2010 KARACHI HIGH COURT SINDH 1603 #

2010 C L C 1603

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD SHABBIR---Plaintiff

Versus

Mrs. FARAHA BIBI and 2 others ---Defendants

Suit No.216 of 2007, C.M.A. No.10934 of 2009, decided on 3rd August, 2010.

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

----Ss.12, 8 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific performance of sale agreement, possession and permanent injunction---Execution of sale agreement and two receipts of payment through Pay Orders by defendant in favour of plaintiff---Refection of plaint, application for---Defendant's plea that suit agreement was cancelled with mutual consent and amount paid to defendant through Pay Orders was adjusted towards purchase of other property by plaintiff, thus, he had no cause of action---Validity---Execution of two receipts and receipt of Pay Orders by defendant from plaintiff gave him a cause of action for filing suit---Court without recording evidence could not give positive findings that suit was barred by law; and that alleged novation of contract had taken place---Plaint showed plausible cause of action against defendant, thus, question as to whether plaintiff would be able to prove same would become irrelevant---Court at such stage could not base its decision on data provided by defendant-Such application was dismissed in circumstances.

Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629; Muhammad Sharif v. Mst Faji and others 1996 CLC 883; Mst Khatoon Begum v. Barkatunnisa. Begum PLD 1987 Kar. 132 and Raja Muhammad Younis Khan v. Bagga Khan and others 2003 YLR 2797 ref.

Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243; Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Jewan V. Federation of Pakistan 1994 SCMR 826 rel.

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

----O. VII, R.11(a)---Rejection of plaint---Scope---When plaint disclosed a cause of action, then question as to whether plaintiff would be able to prove the same would become irrelevant---Court at such stage could not base its decision on data provided by defendant.

----S.12---Court Fees Act (VII of 1870), S.17 & Sched. I, Art. 1---Civil Procedure Code (V of 1908), O. VII, R.11---Application of S.17, Court Fees Act, 1870---Scope---Suit for specific performance of sale agreement mentioned two properties---Plaint showing payment of maximum court fee thereon by plaintiff---Rejection of plaint, application for---Defendant's plea that plaintiff claiming specific performance of two different properties was liable to pay separate court fee thereon---Validity---Applicability of provisions of S.17 of Court Fees Act, 1870 confined to a suit containing multifarious causes of action and different reliefs claimed in plaint for purposes of ad valorem court fee in vogue prior to fixation of maximum limit of court fee for plaint---Maximum court fee had been affixed on plaint against valuation of suit, thus, provision of S.17 of Court Fees Act, 1870 would not apply to the present case---Such application was dismissed in circumstances.

Aslam Industries Ltd. v. Pakistan Edible Corporation of Pakistan and others 1993 SCMR 683 fol.

M.A. Khan for Plaintiff.

Imtiaz Ali for Defendants.

CLC 2010 KARACHI HIGH COURT SINDH 1615 #

2010 C L C 1615

[Karachi]

Before Ghulam Sarwar Korai, Abdul Hadi Khoso and Syed Zakir Hussain, JJ

SHAHID KHAN NIZAMANI---Appellant

Versus

RETURNING OFFICER and another---Respondents

Election Tribunal Appeals No.2 and 3 of 2010, decided on 21st July, 2010.

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

----Ss.12 & 14---Election of National Assembly---Nomination papers, filing of---Eligibility of respondent to' contest election---Objection against respondent being Director of a Mills was that he was defaulter as huge amount was due from his Mills to Market Committee; and that Bank loan obtained by his family was still outstanding---Plea of respondent that suit regarding such dues between his Mills and Market Committee was pending in Civil Court; and that Bank loan was being paid according to its schedule---Validity---Respondent was not personally responsible for such, dues of Market Committee, which was subjudice in civil suit---Obtaining loan from Bank under a schedule would not restrict any person from contesting election till commission of default in payment of agreed instalments---Due date of repayment of Bank loan fell in the year 2014 and respondent had not defaulted thereto---Such objections were rejected in circumstances.

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

----Ss. 14 & 52---Provisions of Ss. 14 & 52 of Representative of the People Act, 1976---Scope---Scope of S.14 of the Act, being limited could not be equated with S.52 thereof, where parties would be required to lead evidence to establish their claims.

Irfan Ahmed Qureshi for Appellant.

S. Mahmood Alam Rizvi for Respondent No.2.

Abdul Shakoor, State Counsel.

CLC 2010 KARACHI HIGH COURT SINDH 1622 #

2010 C L C 1622

[Karachi]

Before Muhammad Ali Mazhar, J

SHAMS MOHIUDDIN ANSARI---Plaintiff

Versus

Messrs INTERNATIONAL BUILDERS through Partners and another ---Defendants

Suit No.284 of 1996 and C.M.A No.4503 of 2009, decided on 17th August, 2010.

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

----O.I. R.10(2)-Transfer of Property Act (IV of 1882), S.52---Suit for damages for infringement of agreement, loss of value of shop and future profit---Application under O.I, R. 10 (2), C.P.C., by defendant impleaded during pendency of suit for striking out his name from plaint on ground that after having sold suit shop through registered sale-deed, he no longer remained to be a proper or necessary party in the suit---Validity---Defendant had executed sale-deed during pendency of suit---Issues in suit had already been settled---Commissioner for recording evidence of parties had been appointed---Liability of each defendant towards plaintiff, if any, would be decided on basis of evidence to be adduced by parties---Not proper to hold at such stage that defendant was neither a necessary party nor a proper party---Application was dismissed in circumstances.

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

----S. 52---Lis pendens, doctrine of---Object and scope stated.

The concept of lis pendens as enumerated and envisaged under section 52 of the Transfer of Property Act, 1882 is to protect the multiplicity of proceedings, and if the parties are allowed to dispose of the property in question during the pendency of proceedings, then no suit will reach to its ultimate conclusion and in each and every case, the plaintiff has to make many parties one by one and the litigation between the parties will not attain finality. The object and scope of doctrine of lis pendens as contemplated in section 52 of the Transfer of Property Act is that neither party to litigation can alienate the property in suit so as to affect his opponent. Section 52 is an expression of the principle of maxim "pendente lite nihil innovetur" (pending a litigation nothing new should be introduced). This rule is an expression of the principle that pending a litigation nothing new should be introduced in it for avoiding adversely affecting the rights of litigating parties. The true scope of section 52 of the Transfer of Property Act does not prevent the vest of title in transferee in sale pendente lite, but only makes subject to the rights of other parties as decided in the suit. The doctrine of lis pendens is not simply based upon the principle that filing of suit is not to the whole world, but more so on public policy that no one should be allowed to affect right of parties pending decision of a cause before a court of law. If alienation of property pending litigation is accepted, then such act would amount to permitting endless multiple litigation, thus, completely destroying the doctrine of lis pendens.?

Muhammad Sarwar and another v. Muhammad Ashraf 1971 SCMR 204 and Fazal Karim v. Muhammad Afzal PLD 2003 SC 818 rel.

Aminuddin Ansari for Plaintiff.

Abdul Muqtadir Khan for the Defendant No.1.

Ghulam Ali Khokhar for Defendant No.2.

CLC 2010 KARACHI HIGH COURT SINDH 1633 #

2010 C L C 1633

[Karachi]

Before Syed Hasan Azhar Rizvi, J

S. ABID ALI and 3 others---Plaintiffs

Versus

Syed INAYAT ALI and 5 others---Defendants

Suit No.1240 of 2007, decided on 28th May, 2010.

(a) Benami transaction---

----Onus to prove---Principle of shifting of onus---Applicability---Initial burden of proof to prove transaction as Benami, is on the party who alleges that ostensible owner is Benamidar---Weakness of defendant's evidence does not relieve plaintiff from discharging the burden of proof---During trial once burden of proof shifted from defendant to plaintiff and he fails to discharge burden of proof so shifted to him, the defendant succeeds--Specific Relief Act (I of 1877), S.42---Qunun-e-Shahadat (10 of 1984), Arts.117 & 120.

(b) Benami transaction---

----Payment of consideration---Proof---Age of ostensible owner--Plaintiffs claimed to be the owners of house in question through inheritance and alleged that defendants were in illegal occupation of the house---Validity---plaintiffs failed to prove their case for declaration to the effect that their predecessor-in-interest was the sole and absolute owner of the suit property---Sale-deed of house in question in favour of predecessor-in-interest of plaintiffs was Benami---Suit property was purchased by father of defendants and predecessor-in-interest of plaintiffs but the sale-deed was executed and registered in the name of predecessor-in-interest of plaintiffs---Predecessor-in-interest of plaintiffs, at the time of purchase of suit property was only 24/25 years and he had no independent source of income at the relevant time---Plaintiffs resided separately with their mother who had been divorced by predecessor-in-interest of plaintiffs, while predecessor-in-interest till his death resided with defendants in suit property--Plaintiffs were only entitled to the extent of the share of their predecessor-in-interest in suit property and defendants were the legal occupants and were in legal possession of suit property in their own rights and title over the suit property to the extent of their shares according to Muslim law of inheritance---Predecessor-in-interest of plaintiffs was a Benami/ostensible owner of the suit property--Plaintiffs were not entitled for any mesne profit, compensation and damages as claimed by them---Suit was disposed of accordingly---Specific Relief Act (1 of 1877), S.42.

1991 SCMR 703; 2009 SCMR 124; PLD 1953 Lah. 251 and Mst. Saira Bai and 7 others v. Iqbal 2006 MLD 1429 ref.

Muhammad Shahid Qadeer for Plaintiffs

Ubaidur Rahman and Noor Z. Khattak for Defendants.

Date of hearing: 14th April, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1666 #

2010 C L C 1666

[Karachi]

Before Muhammad Ali Mazhar, J

TRUSTEES OF THE PORT OF KARACHI---Plaintiff

Versus

KARACHI INTERNATIONAL CONTAINER TERMINAL LIMITED, (K.I.C.T.)---Defendant

Suit No.819 of 2006, decided on 3rd August, 2010.

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

----Preamble---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11(a)---Constitution of Pakistan (1973), Art. 189---Suit for recovery of wharfage charges payable by defendant on "Ship to Shore Cranes and Rubber Tyre Gantry Cranes "---Rejection of plaint, application for---Defendant's plea that plaint did not disclose any cause of action as Supreme Court in its judgment passed in a similar matter between same parties held that wharfage was not payable by defendant---Plaintiff's plea that review petition against such judgment was pending adjudication before Supreme Court---Validity---Supreme Court in said judgment had held that definition of wharfage as contained in Karachi Port Trust Manual for Traffic Department would not include payment of any wharfage on equipment necessary to provide at port facilities in loading and unloading goods; and that such cranes were not goods imported or shipped against "merchandise" to attract wharfage---Said judgment was judgment in rem and judgment in personam having decided same issue between same parties in earlier proceedings, thus, would operate as res judicata between parties-- Mere filing of review would not operate as stay by Supreme Court suspending its original judgment under review---Such judgment had binding effect on Trial Court, which could not proceed any further except to reject plaint--- Plaint was rejected with observation that in case of review of such judgment by Supreme Court, any cause of action accrued to plaintiff, then he might institute fresh suit.

Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others 2006 SCMR 1317 and Farhat Azeem v. Waheed Rasul PLD 2000 SC 18 ref.

Mustufa Kamal v. Dawood Khan PLD 2004 SC 178; Muhammad Salimullah v. Additional District Judge, Gujranwala PLD 2005 SC 511; Muhammad Ashiq and others v. Water and Power Development Authority2009 SCMR 749 and Abdul Ghaffar, Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 rel.

(b) Judgment---

----Classification of---"Judgment in personam" and `judgment in rem"---Meanings stated.

Every judgment has two classifications, one is "judgment in personam" or "inter parties" and other is "judgment in rem". "Judgment in personam" means a judgment against a particular person as distinguished from a judgment against a thing or a right or status. While "judgment in rem" means adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having competent authority. It is founded on a proceeding instituted against or on something or subject-matter whose status or condition is to be determined.

Black's Law Dictionary 6th Edition rel.

----S.11---Res judicata, doctrine of---Applicability stated.

The Doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every jural society.

Mustufa Kamal v. Dawood Khan PLD 2004 SC 178 and Muhammad Salimullah v. Additional District Judge, Gujranwala PLD 2005 SC 511 rel.

(d) Supreme Court Rules, 1980---

----O.XXVI---Review of Supreme Court Judgment---Mere filing of review would not operate as stay by Supreme Court suspending its original judgment under review.

Muhammad Ashiq and others v. Water and Power Development Authority 2009 SCMR 749 and Abdul Ghaffar, Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 rel.

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

----O. VII, R.11---Rejection of plaint---Essential considerations---Averments of plaint would only be looked into to ascertain and discover, whether plaintiff had any cause of action or not.

Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989 rel.

Safdar Mahmood Baig for Plaintiff.

Umar Soomro for Defendant.

CLC 2010 KARACHI HIGH COURT SINDH 1708 #

2010 C L C 1708

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD ALAM and 4 others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary and 2 others ---Defendants

Suit No.1095 of 2007 and C.M.A No.3611 of 2009, decided on 3rd August, 2010.

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

----Ss. 39, 42, 54, & 55---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration, cancellation of orders, mandatory and permanent injunctions---Cancellation of allotment of plaintiff's shop in Market through a general order without hearing him---Relief sought in suit to declare such order as illegal and cancel same, direct authority to grant lease of suit shop and restrain authority from dispossessing plaintiff therefrom---Application by intervener/allottee to be joined as defendant in suit---Plea of intervener that he being occupant of a shop in such market was threatened by some persons to be dispossessed therefrom after issuance of stay order in favour of plaintiff---Validity---Impugned order had not been issued to any individual by name, but same was a general order of cancellation of allotments of shops having been issued illegally by unauthorized officials during period of ban and in violation of decision of Provincial Ombudsman---Allotment letters of intervener had also been issued during period of ban---Allotment letters of plaintiff and intervener came within ambit and purview of impugned cancellation order---Unless impugned order was set aside by orders of court in case of each individual, same would apply to all occupants, who secured allotments during period of ban---No benefit would accrue to intervener by joining him in suit as defendant, as nothing could be granted or allowed to him in capacity of mere defendant---Intervener instead of pursuing such application should have filed separate legal proceedings to challenge cancellation order, which was not against any particular shop, but had general impact on all allottees having secured shops during period of ban--Intervener was opposing suit by supporting impugned order---Nothing would be achieved by intervener after adding him as defendant in suit---Nazir's report negated intervener's stance to be in possession of shop---Presence of intervener was not necessary for deciding plaintiff's suit, wherein he had simply sought declaration and cancellation of impugned order, whereby his allotment was cancelled--Intervener might initiate separate proper legal proceedings to safeguard his interest, if any---Intervener's application was dismissed in circumstances.

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

----O.I, Rr.1, 3 & 10---Joining of a person as necessary or proper party in suit---Object stated.

Persons ought to have been joined as parties and in whose absence no effective decree can be passed are necessary parties and persons whose presence before the court is necessary to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit are proper parties. The object of making such persons parties is to prevent needless multiplicity of suits and to protect the interest of parties to the suit or of such persons, who are added as proper parties. However, the court should not be embarrassed by simultaneous investigation of unconnected controversies.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 and Ghulam Ahmad Chaudhry v. Akbar Hussain and another PLD 2001 SC 615 rel.

Muhammad Aziz Khan for Plaintiffs.

Ahmed Ali Shah for interveners.

Asadullah Memon for Defendant No.3.

CLC 2010 KARACHI HIGH COURT SINDH 1734 #

2010 C L C 1734

[Karachi]

Before Ghulam Rabbani and Saiyed Saeed Ashhad, JJ

AL-REHMAN ASSOCIATES through Special Power of Attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary Land Utilization Department and 2 others ---Respondents

Constitutional Petitions Nos. 313, 314, 315, 316, 317, 318, and 319 of 2000, decided on 17th May, 2002.

(a) Natural justice, principles of ---

----Principles of natural justice would be read into relevant provisions of law and available to a person having vested right and affected by an action taken to prejudice such right.

(b) Equity---

----Person seeking equity must do equity and come to court with clean hands---Dishonest and mala fide action of a person would not be allowed to exist merely for reason that principle of natural justice was violated---Principles.

Abdul Khalique Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 rel.

----Art. 199---Constitutional petition would not be a proper remedy in cases involving factual controversies---Principles.

Muhammad Younus and 12 others v. Government of the N.-W.F.P. through Secretary Forest and Agriculture Peshawar and others 1993 SCMR 618 rel.

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

----Art.199---Constitutional petition---Adequate alternate remedy, availability of---Effect---High Court would be judiciously cautious in exercising jurisdiction in such cases.

Ch. Muhammad Ismail v. Fazalzada Civil Judge, Lahore PLD 1996 SC 246 rel.

Muhammad Shafi Rajput for Petitioner.

Muhammad Sarwar Khan, Additional Advocate-General, Sindh.

CLC 2010 KARACHI HIGH COURT SINDH 1788 #

2010 C L C 1788

[Karachi]

Before Abdul Hadi Khoso, J

MUHAMMAD ASHRAF through Attorney---Petitioner

Versus

Mrs. AZRA MUQEEM and 2 others ---Respondents

Constitution Petition No.103 and C.M.A. No.524 of 2010, decided on 13th May, 2010.

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

----Ss. 15 & 21---Constitution of Pakistan (1973), Arts.199, 23 & 24---Constitutional petition---Petitioner/tenant had impugned concurrent judgments of the Rent Controller and Appellate Court---Counsel for the petitioners had stated that petitioner was statutory tenant and was in a legal and lawful possession of premises and was paying monthly rent before the Nazir of the Rent Controller---Provisions of Arts.23 & 24 of the Constitution, had protected right of property---Right of ownership was superior than the right of tenancy---Petitioner/tenant was not satisfied with the concurrent findings of the courts below---If the petition was lingering on while the respondent/landlady , had suffered the agony of trial before the Rent Controller and the Appellate Court and was being dragged in constitutional petition, it was harassment for the lady, if such petitions were allowed---Constitutional petition was dismissed.

Munir-ur-Rehman for Petitioner.

Khalid Dawoodpota for Respondents.

CLC 2010 KARACHI HIGH COURT SINDH 1810 #

2010 C L C 1810

[Karachi]

Before Munib Akhtar and Muhammad Athar Saeed, JJ

A.R. KHAN & SONS (PVT.) LTD through Authorized Officer and 3 others--- Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad and 3 others ---Respondents

Miscellaneous No.8786 of 2010 in Constitutional Petition No.D-2138 of 2010, decided on 23rd August, 2010.

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

----Art. 199---Civil Procedure Code (V of 1908), S.20---Constitutional petition---Territorial jurisdiction of High Court---Scope---Person or authority by whose act petitioner aggrieved, if was within territorial limits of High Court or otherwise amenable to its jurisdiction, then such petition would be maintainable---Mere actual physical commission of alleged illegalities by a person or authority at a particular place would not be a determining factor---When more than one High Court had jurisdiction in a matter, then aggrieved party could choose any court for initiating proceedings---Principles.

Trading Corporation of Pakistan (Pvt) Ltd. v. Pakistan Agro Forestry Corporation (Pvt) Ltd. and another 2000 SCMR 1703; Syed Muhammad Anwar legal v. Bangladesh Shipping Corporation 1991 CLC 473; Ibrahim Fibres Limited v. Federation of Pakistan and others PLD 2009 Kar. 154; Al-Iblagh Ltd. v. The Copyright Board, Karachi 1985 SCMR 758; Deputy Managing Director, National Bank of Pakistan v. Ataul Huq PLD 1965 SC 201; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Hafiz Hamdullah v. Saifullah Khan PLD 2007 SC 52 and Nawabzada Muhammad Shahabuddin v. Chairman, Federal Land Commission 1996 CLC 539 ref.

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

----Art.199---Constitutional petition challenging illegality actually occurred---Development of some relevant facts subsequent to filing of such petition---Effect---Petitioner might be aggrieved as much as by impending illegality as an illegality that had actually occurred---Such subsequent facts would not make such petition premature---Principles. ?

Sh. Ajaz Rasool v. Vice Chancellor Karachi University and others 1999 CLC 1942 ref.

----S. 13(2)(j)---Public Procurement Regulatory Authority Ordinance (XXII of 2002), S. S---Public Procurement Rules, 2004, R. 42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cargo imports by Trading Corporation of Pakistan at Gwadar Port in July 2010---Concession agreement entered into in year 2007 between Port of Singapore Authority and Gwadar Port Authority---Trading Corporation of Pakistan obtained stevedoring services and import handling facilities of Port of Singapore Authority without open bidding---Constitutional petition challenging such act of Trading Corporation excluding petitioner from participating in providing such services at Gwadar---Trading Corporation's objection that such agreement was entered into in year 2007, thus, any challenge thereto in year 2010 would be hit by laches---Validity---Issue of such unlawful exclusion of petitioner from participating in providing such services arose in year 2010 after importation of cargo by Trading Corporation in July 2010---Constitutional petition was not hit by laches in circumstances.?

Member (S&R)/Chief the Settlement Commissioner and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 and Jawad Mir Muhhmmadi and others v. Haroon Mirza and others PLD 2007 SC 472 ref.

(d) Gwadar Port Authority Ordinance (LXXVII of 2002)---

----Ss. 2(j), 13(2)(j) & 21---Public Procurement Regulatory Authority Ordinance (XXII of 2002), S. 5---Public Procurement Rules, 2004, Rr. 3, 4, 20, & 42(c)---Competition Commission Ordinance (XVI of 2010), Ss.l (1)(e)(k), 3 & 4---Constitution of Pakistan (1973), Arts. 18 & 199---Constitutional petition---Diverting cargo imports by Trading Corporation of Pakistan to Gwadar Port---Concession agreement between Port of Singapore Authority and Gwadar Port Authority to build and develop various port facilities in concession area of Gwadar Port on BOT (Built, Operate and Transfer) basis---Trading Corporation obtained stevedoring services and import handling facilities of Port of Singapore Authority without open bidding---Constitutional petition challenging such act of Trading Corporation excluding petitioner from participating in providing such services at Gwadar Port---Plea of Trading Corporation that Port of Singapore Authority was only provider of such services at Gwadar, thus, Trading Corporation had no option except to enter into a direct contract with Port of Singapore Authority in terms of R.42 of Public Procurement Rules, 2004---Validity---Concession area did not extend to whole of Gwadar Port, but was limited to a specified portion thereof, wherein Port of Singapore Authority had exclusive right to make investments, while Gwadar Port Authority had complete liberty to develop remaining part of Gwadar Port---Facilities presently available at Gwadar Port being operated within concession area under such agreement could be provided by Port of Singapore Authority exclusively---Such Agreement did not require Trading Corporation to import cargo at Gwadar, but if imported then Trading Corporation would utilize services of Port of Singapore Authority for stevedoring purposes---Port of Singapore Authority having exclusivity rights under such agreement would not mean that all options for Trading Corporation were closed and its hands were tied---Trading Corporation of Pakistan being a public procuring agency was obliged to procure such services by means of open competitive bidding in a fair and transparent manner---Procuring agency might, but not bound to take recourse to direct contracting method of procurement in existence of any one of seven situations envisaged by R.42(c) of Public Procurement Rules, 2004 for such Rule being discretionary and not mandatory---Proviso to R.42 of Rules 2004 was not applicable to facts of the present case---Gwadar Port Authority had powers to enter into contract and grant exclusive rights to Port of Singapore Authority in respect of facilities developed or to be developed in concession area---Speaking about dominant position of Port of Singapore Authority without first determining relevant market would be meaningless, which determination could be made by Competitive Commission requiring factual investigation---Nothing on record for determining as what was relevant market in which Port of Singapore Authority could be said to have a dominant position---Factual investigation to determine "relevant market" would be beyond scope of proceedings under Art. 199 of the Constitution---High Court directed Trading Corporation of Pakistan to review its options and obligations under Public Procurement Regulatory Authority Ordinance, 2002 and Rr. 4 & 42 of Public Procurement Rules, 2004 before entering into agreement, and its decision must be supported by reasons.?

Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport and others 1998 SCMR 2268 and Signage Security System (Pvt) Ltd. v. Capital Development Authority and others 2010 CLC 567; Shamim Khan v. Pakistan Defence Officer Housing Authority 1999 YLR 410 and Member (S&R)/Chief Settlement Commissioner and another v. Syed Ashfaque Ali and others PLD 2003 SC 132 ref.

Arshad Mahmood and others v. Government of Punjab and others PLD 2005 SC 193 rel.

(e) Public Procurement Rules, 2004---

----Rr. 3, 4, 20, & 42---Procurement of goods and services by Government through a procuring agency---Method---Such procurement must be done by means of open competitive bidding in a fair and transparent manner---Not mandatory for procuring agency to take recourse to R.42 of Public Procurement Rules, 2004 even in existence of any one of seven situations envisaged in clause (c) thereof---Principles.

Rule 4 of Public Procurement Rules, 2004, in fact, merely puts in statutory form the basic principle enunciated in a number of judgments of the superior Courts, namely that any procurement by a public agency must be done in a fair, open and transparent manner and that any discretion that the public agency may have in this regard cannot be exercised in an arbitrary or capricious manner, but must be carefully and properly regulated and modulated in accordance with law.?

Thus, unless there is any express or specific provision to the contrary in Public Procurement Rules, 2004, all procurements of goods and service made by a procuring agency must be by means of open competitive bidding. The reason is simple. Open competitive bidding is invariably the best method for ensuring the guiding principles laid down in Rule 4 of Public Procurement Rules, 2004 are adhered to, and the objectives therein stated are achieved in practice.?

The alternative method of direct contracting contained in Rule 42 (2) of the said Rules is that the seven situations envisaged by it are disjunctive, i.e. if any one of the situations is found to exist, then the procuring agency may take recourse to the direct contracting method of procurement. Secondly, it is to be noted that the provisions of Rule 42 are discretionary and not mandatory inasmuch as the word used there is "may" and not "shall". Thus, even though a situation may be covered by one of the seven sub-clauses of clause (c), that does not make it incumbent on the procuring agency to take recourse to Rule 42. It has been granted discretion in this regard. The manner in which a public agency is to exercise its discretionary powers is of course well established.?

Khalid Jawed Khan for Petitioners.

Mazhar Jafri for Respondent No.2.

Anwar Mansoor Khan for Respondent No.3.

Mian Khan Malik, D.A.-G.

Hassan Akbar for Respondent No.4.

Date of hearing: 12th August, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1843 #

2010 C L C 1843

[Karachi]

Before Muhammad Ali Mazhar, J

Messrs PAKISTAN STATE OIL COMPANY LIMITED, through authorized officer---Plaintiff

Versus

FEDERATION OF PAKISTAN, MINISTRY OF WORKS, through Secretary and 4 others ---Defendants

Suit No. 1661 of 2008, C.M.A. No.11530 of 2008 and C.M.A. No.2665 of 2009, decided on 3rd September, 2010.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Dealership of an oil company---Plaintiff, an oil company on the one hand was forcing that defendant should become its dealer in view of the dealership agreement, on the other hand plaintiff refused to waive the security deposit condition when applied by the defendant---No privity of contract existed between the plaintiff and defendant---Plaintiff had no lawful right and authority to force the defendant to become its dealer---Dealership agreement signed between the plaintiff and defendant was not materialized and operative due to non fulfilment of security clause; and the stand of plaintiff was also hit by the principle of approbate and reprobate---Party could not 'be allowed to approbate and reprobate in the same breath, rather it would be bound by his previous stance---Main ground in the injunction application was that defendant be restrained from entering into the agreement with some other party in respect of the plot where petrol station was built---Principle of statutory tenancy, was not applicable in the case because not only the lease of the plaintiff in respect of property in question had expired, but it was finally executed in favour of the defendant---Plaintiff, thus, was not entitled to claim the benefit of statutory tenancy on expiry of lease period, particularly when the case filed by the plaintiff under S.10 of Sindh Rented Premises Ordinance, 1979 was dismissed on the ground that provisions of Sindh Rented Premises Ordinance, 1979 were not applicable to the land in question which was owned by Federal Government.?

Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Mirza Jawad Baig v. Pakistan State Oil Co. Ltd. 1985 MLD 536; Pakistan Burmah Shell Ltd. v. Khalil Ahmed and another 1988 MLD 210; Muslim Commercial Bank Ltd. and another v. Adamjee Insurance Company Ltd. and others 2003 MLD 688; Muhammad Yakoob v. Health Officer, Municipal Committee Hyderabad and another 1973 SCMR 184 and Khaliq Raza Khan v. Messrs Pakistan State Oil Company Limited 1998 SCMR 2092 ref.

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

----Ss. 21, 42, 54 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Application for temporary injunction---Relief by way of an injunction, whether temporary or permanent was in the discretion of the court-Section 21 of Specific Relief Act, 1877, had provided that a contract could not be specifically enforced which in its nature was revocable and/or a contract for non-performance of which compensation of money was an adequate relief---Section 56 of the Specific Relief Act, 1877 had provided that an injunction could not be granted to prevent breach of a contract, the performance of which could not be specifically enforced---Main ground in injunction application, in the present case, was that the defendant be restrained from entering into the agreement with another party in respect of plot in question on which the plaintiff had invested more than Rupees one million for the construction of Petrol Pump---First of all no agreement had come into existence due to non-fulfilment of security deposit clause, therefore no licence/agency or franchise was issued by the plaintiff with clear denial to waive the security deposit clause-Plaintiff, in circumstances, had no lawful justification to force the defendant for a reluctant relationship.

----S.73---Specific Relief Act (1 of 1877), S.21---Compensation for loss or damage caused by breach of contract---Scope---Principal.

Section 73, Contract Act, 1872 provides that if plaintiff deems that the defendant has committed breach of an obligation resembling those created by contract has been incurred and has not been discharged, the' plaintiff may claim compensation subject to explanation attached with said section that in estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account and such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. The similar provision is available under section 21 of the Specific Relief Act, which provides under clause (a) that a contract cannot be specifically enforced for the non-performance of which-compensation is an adequate relief aid another clause (d) further provides that a contract which in its nature revocable can, also not be specifically enforced. When the licence agreements, agency/dealership agreements and franchising agreements are revocable in its nature, at the best, the aggrieved party can claim damages/compensation for its alleged breach subject to proof.?

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

----Art. 114--Estoppel, principle of---Applicability---Scope---When any person had by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and acted upon such belief, he would be estopped and not allowed to turn around.?

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

----O. XX XIX, Rr.1 & 2---Temporary injunction, grant of---Essential---Duty of court---Ingredients for grant of temporary injunction: Existence of prima facie case, likelihood of irreparable loss or legal injury for non-grant of temporary injunction; and the balance of convenience, were the three requisite/essential ingredients which must be fulfilled before injunction could be granted in favour of a party---Absence of any one of those essential ingredients, would not warrant grant of injunction---Court while granting injunction should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour; and that his case was not likely to fail on account of some apparent defects---To obtain an interlocutory injunction, it was not enough for the plaintiff to show that he had a prima facie case, but he must further show that in the event of withholding the relief of temporary injunction, he would suffer an irreparable injury; and that in the event of his success in the suit in establishing his alleged legal right, he would not have the proper remedy in being awarded adequate damages--In such a situation, the plaintiff must show a clear necessity for affording immediate protection to his alleged right or interest which would otherwise be seriously injured or impaired.?

2003 MLD 688 ref.

Muhammad Sadiq for Plaintiff.

Abdul Karim Nizamani, Standing Counsel.

Muhammad Saleem Thepdawala for Defendant No.4.

Khalid Ahmed Tanwirl for Defendant No.5.

Muhammad Aslam, Superintendent Legal Branch, Pak P.W.D. Ministry of Works present in person.

CLC 2010 KARACHI HIGH COURT SINDH 1879 #

2010 C L C 1879

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD SABIR---Plaintiff

Versus

Maj. (Rtd.) MUHAMMAD KHALID NAEEM CHEEMA and others---Defendants

Civil Suit No. 196 of 1999 and C.M.A. No.9171 of 2006, decided on 11th August, 2010.

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

----S.12---Specific performance of contract being an equitable relief could not be granted as a matter of right---Principles.

Specific performance is an equitable relief, which cannot be granted as a matter of course or as a matter of right, but it is the discretion of the court to be exercised on the-basis of established sound judicial principles and upon consideration of all circumstances of each particular case.

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

---S.21(a)---Contract Act (IX of 1872), Ss. 36, 56 & 65---Cooperative Societies Act (VII of 1925), S. 70--Agreement void ab initio or discovered to be void or became void afterwards or declared to be void under S. 36 of Contract Act, 1872--Effect---Party having received any advantage under such agreement would be bound to restore same or compensate other party---Provision of S.56 of Specific Relief Act, 1877 containing a positive rule of law relating to doctrine of frustration would apply to cases of physical impossibility---Principles.

Chaudhary Muhammad Sarwar through L.Rs v. Mst.Aimna Bibi and others 2006 CLC 1110; Haji Khuda Dad v. Ghulam Yaseen 2004 CLC 1302; Tamizul v. Waheed Akhtar and others 2001 YLR 882 and Nizar Ali v. Nooriabad Co-operative Housing Society Ltd. PLD 1987 Kar. 676 ref.

Province of West Pakistan v. Asghar Ali Muhammad PLD 1968 Kar. 196 and Govindram Sksaria v. Edward Radbone PLD 1947 PC 213 rel.

----O. VII, R.11---Rejection of plaint---Essential considerations---Contents of plaint could only be looked into for such purpose---Court could reject plaint, when allegations made therein, if assumed as proved to be correct, would not entitle plaintiff to get relief---Principles.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Jewan v. Federation of Pakistan 1994 SCMR 826 rel.

(d) Amenity plot---

----Use of amenity 'plot cannot be converted into any commercial or residential use.

Tauqeer Ali Khan and Naveed Ahmed Khan for Plaintiff.

Mian Mushtaque for Defendant No.4.

Nemo for other Defendants.

CLC 2010 KARACHI HIGH COURT SINDH 1895 #

2010 C L C 1895

[Karachi]

Before Muhammad Ali Mazhar, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Decree Holder

Versus

FAZAL AND SONS (PVT.) LTD---Judgment Debtor

Suit No.401 of 1994, Execution No.79 of 2002 and C.M.As Nos. 1040, 1041, 1048, 1049 of 2009, decided on 3rd September, 2010.

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

----O. VII, R.2, O. XXI, Rr.11(2) & 58---Transfer of Property Act (IV of 1882), Ss.122, 123 & 129---Suit for recovery of amount---Application for execution of decree---Attachment of property---Objection to---Suit for recovery of amount filed by the plaintiff/corporation, against defendant company had been decreed---Decree-holder filed execution application against judgment-debtor, which was not contested---Decree-holder sought attachment and sale of objector's personal Flat---Said objector who was Chief Executive of the judgment-debtor's company had stated that said property was orally gifted by him to his daughter, prior to execution proceedings---Counsel for objector had contended that Director/Chief Executive Officer of a company was not personally liable to pay the liabilities of the company---Validity---Objectors/Chief Executive of judgment-debtor company had not stated that he purchased the property in question from the funds of the company which would have called for the invocation of doctrine of lifting the corporate veil---Doctrine of lifting of the corporate veil would not mean that shareholders were also to be made equally liable to the company---Company was a separate juristic person distinct from shareholders and Directors and to make recovery from the company, the personal property of the Chief Executive, Director could not be attached---So far as the factum of gift, was concerned, it was correct that donor had not produced any registered document conferring upon her the title of the property in question; but a gift was to be effected in the manner prescribed by Islamic Law and it was essential to the validity of a' gift that there should be a declaration of gift by the donor, acceptance of the gift, expressed or implied by or on behalf of the donee; and delivery of possession of the subject of the gift by the donor to the donee---Oral gift was permissible and sufficient to transfer of property; it could not be necessarily reduced in writing, if by cogent and conclusive evidence, it was proved that the donor had made an oral gift, which had been accepted by donee and possession had been delivered to donee---Donor had fully proved ingredients of a valid gift in her favour---Property in question, in view of the gift could not be attached---Order so far it related to the attachment, auction and sale of property in question, was recalled.?

Messrs Sakhi Dattar Cotton Industries v. Mahmood (Pvt.) Ltd 2006 CLD 199; Shamim-ud-Din v. Federal Government of Pakistan 1995 CLC 299; Tariq Saeed Saigol v. District Excise and Taxation Officer 1982 CLC 2387; Muhammad Anwar Khan Tiwana v. Sadeeqa Begum PLD 1984 Lah. 411; Ayas Durrani V. Chairman WAPDA PLD 2000 Lah. 414; Haji Khuda Bux Nizamani v. Election Tribunal 2003 MLD 607; Habib Bank Limited v. Messrs Rudolf Donhill and others 1999 PTD 2940; 2006 CLD 191; AIR 1994 Orissa 98; Rundan Singh v. Moga Transport (Pvt.) Ltd. (1987) 62 COM Cases 600 (P&H); Surinder Nath Khosla v. Excise and Taxation Commissioner Punjab (1995) 4 Comp. LJ 343 (Punj.) and PLD 1999 PTD 2940 rel.

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

----Ss. 122, 123 & 129---Gift, validity of---Gift could not be implied, but must be expressed and unequivocal and intention of the donor must be demonstrated by his entire relinquishment of the thing given---Hiba in its liberal sense signified the donation of a thing from which the donee could derive a benefit---Gift as it was defined in law, conferred a right of property in something specific, without any exchange--- According to 5.123 of Transfer of Property Act, 1882, it was clear that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses.?

----S.129---Islamic law---Oral gift---Gifts made under Islamic law are expressly excluded from operation of Transfer of Property Act, 1882---Under Islamic law a gift could be effected orally if formalities prescribed by Islamic law were complied with even if instrument of gifts was not registered.?

Mst. Umar Bibi and others v. Bashir Ahmed and others 1977 SCMR 154 ref.

Mukesh Kumar for Decree Holder.

Hasan Akbar for Objector No.1.

Mrs. Sofia Saeed Shah for Objector No.2.

CLC 2010 KARACHI HIGH COURT SINDH 1910 #

2010 C L C 1910

[Karachi]

Before Syed Hasan Azhar Rizvi, J

NADEEM AHMED ANSARI---Plaintiff

Versus

FRONTIER WORKS ORGANIZATION through Group Commander and another---Defendants

Civil Suit No.1383 of 1998, decided on 26th August, 2010.

Limitation Act (IX of 1908)---

----Art. 56 & 115---Suit for recovery of price of work done by plaintiff for defendant---Limitation---Suit filed on 27-10-1998 under agreement dated 21-10-1996---Agreement was executed on 17-10-1996 and defendant alleged that agreement was cancelled on 21-10-1996---Such suit was not time-barred for having been filed within prescribed period of three years.

AIR 1925 PC 232 ref.

Shahenshah Hussain for Plaintiff.

Syed Ahmed Ali Shah, Standing Counsel for Defendants.

Date of hearing: 25th May, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1931 #

2010 C L C 1931

[Karachi]

Before Muhammad Ather Saeed, J

ALLAHYAR and others---.Applicants

Versus

JIAND and others ---Respondents

Revision Application No. S-32 of 2001, decided on 4th June, 2010.

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

----O.XX, R.5 & O.XLI, R.31---Appeal against judgment of Trial Court containing its findings given on each issue with reasons---Dismissal of appeal by Appellate Court without framing points of determination and giving findings thereon---Validity---Appellate Court could not decide an appeal without following provisions of O.XLI, R. 31, C.P.C., for being mandatory in nature---Appellate Court in the present case, had given its entire findings in one page---Reasons given in judgment of Trial Court might or might not be valid and legal, but appeal could not be disposed of in a summary manner---Duty of Appellate Court was to decide appeal by framing points for determination on basis of judgment of Trial Court and arguments of parties on points determined---High Court remanded case to Appellate Court for passing order afresh.

Naimatullah Khan v. Hameedullah 2006 CLC 125 and Canal Petroleum Service v Pakistan Burmah Shell PLD 1982 Kar. 121 ref.

Iftikharuddin v Central Bank of India Limited 1996 SCMR 669; 2000 CLC 1838 and Juma Khan v. Musammat Shamim and others 1992 CLC 1022 rel.

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

----O.XLI, R.31---Provisions of O.XLI, R.31, C.P.C.---Nature of---Such provisions being mandatory Appellate Court could not decide an appeal without following such provision.

2000 CLC 1838 and Juma Khan v. Musammat Shamim and others 1992 CLC 1022 rel.

----O.XX, R.5---Provisions of O.XX, R.5, C.P.C., would apply to Trial Court only.

Mukesh Kumar Karara for Applicants.

Parya Ram Vaswani for Respondents.

Date of hearing: 18th February, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1950 #

2010 C L C 1950

[Karachi]

Before Gulzar Ahmed, J

ABDUL JABBAR---Applicant

Versus

MUHAMMAD AJMAL---Respondent

Civil Revision Application No. 2 and C.M.A. No. 11 of 2007, decided on 9th October, 2009.

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

----Arts. 79 & 117---Proof of execution of document attested by witnesses---Criteria---Provisions of Art. 79 of Qanun-e-Shahadat, 1984 being mandatory must be complied with---For complying with said Article, attesting witnesses in their evidence must be shown such document and their categorical statement must be obtained regarding their own signatures thereon and its execution in their presence by parties thereto---In absence of such evidence, party on whom burden to prove such document was lying would fail and same could not be used in evidence---Principles.

Mustafa and 3 others v. Muhammad Khan and another PLD 1978 SC(AJ&K)75; Muhammad Anwar v. Haji Muhammad Ismail 1992 MLD 860; Abdul Hameed v. Suhrab through Legal Heirs PLD 1997 Kar. 589; Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524; Dhani Bux v. Ali Sher and others 2007 YLR 2134 and Rashid Ahmed. v. Said Ahmed 2007 SCMR 926 ref.

Mst. Kulsoom Bibi v. Muhammad Arif 2005 SCMR 135 fol.

Jhamat Jethanand for Applicant.

Aijaz Ali Hakro for Respondent.

CLC 2010 KARACHI HIGH COURT SINDH 1957 #

2010 C L C 1957

[Karachi]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD RAFIQ MEMON---Plaintiff

Versus

HAKIM ALI---Defendant

Civil Suit No.1259 of 2008, decided on 26 August, 2010.

Suit for damages---

----Mental torture and loss of reputation, claim for---Compensation, determination of---Criteria stated.

There is no yardstick or definite principle for assessing damages in such like cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, who may, on facts of each case and considering how far society would deem to be a fair sum, determine the amount to be awarded to a person, who has suffered such a damage. The general damages are those, which the law will imply in every violation of legal right. They need not to be' proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by the judicial mind in such cases is that the conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party, however, adequate care should be taken in this regard while dilating on the quantum of award and the Courts' should be vigilant to see that the claim is not fanciful or remote; the award should never arise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemic parsimony, but the court should give the 'aggrieved party what is considered in all the circumstances a fair and reasonable compensation for his loss.

Ameeruddin v. Fazalur Rahim Khan 2003 YLR 136; PLD 1996 SC 737; PLD 1970 Kar. 757 and 2003 SCMR 1699 rel.

K.B. Bhutto for Plaintiff.

Nemo for Defendant.

Date of hearing: 27th May, 2010.

CLC 2010 KARACHI HIGH COURT SINDH 1968 #

2010 C L C 1968

[Karachi]

Before Muhammad Ali Mazhar, J

BADAL and another---Plaintiffs

Versus

MANSOOR AHMED AWAN and 7 others---Defendants

Civil Suit No. 420 of 2008 and C.M.As. Nos. 637 of 2009, 425, 3154, 828 of 2008, decided on 31st August, 2010.

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

----O.XXXIX, Rr.1, 2 (3), O. VII, R.1 & S.151---Specific Relief Act (I of 1877), Ss. 8, 42 & S4---Application for grant of permanent injuction---Cause of action---Significance and requirements---Plaintiffs had sought declaration that they were the allottees of agricultural land in question as per allotment order made by Assistant Commissioner, Settlement Department and that defendants were mere trespassers---Permanent injunction was sought to the effect that defendant be restrained from alienating, demarcating, allotting, raising construction and handing over possession of land in question to any third party---Permanent injunction was also sought restraining defendants from cancelling the allotment order in favour of the plaintiff; and possession of land in dispute to the plaintiff under allotment order---Defendants denied claim of the plaintiff and submitted that plaintiff had no cause of action to file the suit as they had no right and character in respect of the suit-land---Validity---Word "cause of action" would mean a bundle of facts, which if traversed, a suitor claiming relief was required to prove for obtaining judgment---Nevertheless, it would not mean that even if one such fact, a constituents of cause of action was in existence, the claim could succeed---Totality of the facts must co-exist and, if anything was wanting, the claim would be incompetent---One part could be included in the whole, but the whole could never be equal to the part---Not only the party seeking relief should have a cause of action when the transaction or the alleged act was done, but also at the time of the institution of the claim---Suitor was required to show that not only a right had been infringed in a manner to entitle him to a relief, but also that when he approached the court, the right to seek the relief was in existence---Cause of action had no relation to the defence, that could be set up nor it depended upon the character of the relief prayed---No lawful or plausible justification was available to dismiss the suit on the question of maintainability, unless, the issues were settled and parties were allowed to adduce evidence in support of their respective claims---Interim order was confirmed till final disposal of the suit---By consent case was adjourned and Mukhtiarkar was required to be present on adjourned date of hearing with entire record.

Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243 and Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030 ref.

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

----S.161---Appeal---Scope---Subsection (1) of S.161 of West Pakistan Land Revenue Act, 1967, had made it incumbent upon a party to file an appeal against some original or appellate order.

----O. VII, R.11---Rejection of plaint---Scope---Averments made in the plaint were to be looked into---Court could not take into consideration pleas raised by the defendants in the suit in his defence; as at that stage the pleas raised by the defendants were only contentions in the proceedings unsupported by any evidence on record.

Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 and Ghulam Ali v. Asmatullah 1990 SCMR 1630 ref.

Sohail Hameed for Plaintiffs.

Khizer Askar Zaidi, A.A.-G.

Muhammad Yousuf Abbasi, Mukhtiarkar Gadap Town.

Lahore High Court Lahore

CLC 2010 LAHORE HIGH COURT LAHORE 1 #

2010 C L C 1

[Lahore]

Before Ijaz-ul-Ahsan, J

SHAKEEL AHMAD----Petitioner

Versus

JUDGE, FAMILY COURT----Respondent

Writ Petition No.18781 of 2009, decided on 1st October, 2009.

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

----S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on basis of Khula--Scope---Plaintiff filed suits for dissolution of marriage and maintenance, dowry articles and birth expenses of Rs.10, 000---On statement of plaintiff that she did not want reconciliation with defendant and her suit for dissolution of marriage should be decreed on the basis of Khula, Trial Court passed an order for dissolution of marriage on the basis of Khula in terms of S.10(4) of the West Pakistan Family Courts Act, 1964 and an interim maintenance allowance for the minor daughter in the sum of Rs.1,500 per month---Defendant asserted that provisions of S.10 of the West Pakistan Family Courts Act, 1964 were mandatory and after pre-trial hearing, court was required to frame issues and fix a date for recording of evidence---Validity---Family Court had been granted powers to pass a decree for dissolution of marriage forthwith if reconciliation failed---Family Court was not obligated to follow the sequential order given in S.10 of West Pakistan Family Courts Act, 1964 in the event of failure of reconciliation where a decree for dissolution of marriage was sought/granted on the ground of Khula---Proviso to S.10(4) of West Pakistan Family Courts Act, 1964 was couched in such language, containing a non obstante clause giving wider power to the Family Court to dissolve the marriage when facts of the case would permit such course and the provision was enacted to avoid unnecessary delay---High Court declined to interfere in constitutional jurisdiction.

PLD 1984 SC 549 rel.

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

----S. 5 & Sched.---Interim maintenance---Only grounds alleged by plaintiff to challenge interim maintenance that he was unable to pay said amount as his monthly income was only financial resources in absence of any material on record was not justified.

Muhammad Sharif Chohan for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 4 #

2010 C L C 4

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD ALI KHAN and another----Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary to Government of Punjab Home Department and 4 others----Respondents

Writ Petition No.16056 of 2009, decided on 20th October, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Licence and licensee---Provincial/Home Secretary cancelled Arms dealership licences issued in the name of a company, which was being operated by the petitioners under other names---Licences were cancelled on two grounds; firstly that several F. I. Rs. were registered against the petitioners alleging the issuance of false licences; secondly that petitioner had acquired the dealership licence of a private company under a different name---Out of seven F.I.Rs. petitioners had been able to obtain acquittal and/or discharge of five F.I.Rs. and remaining two F.I.Rs. were pending---High Court ordered that if the petitioners were able to exculpate themselves from all criminal cases registered against them, they could approach Home Secretary for considering in accordance with law the revival/restoration of the licences which stood cancelled under impugned order---Second ground would have to be decided afresh by the Home Secretary---Cancellation of the licences would be held in abeyance until a decision by the Home Secretary on the said point was made in that matter---Petitioners were granted six months time to clear themselves of the criminal cases registered against them in order to approach Home Secretary---Beyond that they would lose the right to claim revival of their cancelled dealership licences.

Muhammad Shahzad Shaukat for Petitioner.

Mamoon Rashid Sheikh, A.A.-G. for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 7 #

2010 C L C 7

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAEEM and 2 others----Petitioners

Versus

LAND ACQUISITION COLLECTOR, BOARD OF REVENUE PUNAJB, LAHORE

and 5 others----Respondents

Writ Petition No.9324 of 2009, decided on 5th August, 2009.

Land Acquisition Act (I of 1894)---

----Ss.4, 5-A & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land--- Objection to acquisition---Graveyard was sought to be acquired by the authority, petitioners who were resident of village concerned, had objected to said acquisition---Authority had stated that portion of the graveyard was coming in the right of way of the proposed Ring Road'; and that in order to relocate the same the Provincial Government had acquired land where affected graves will be shifted to the said land---Validity---No doubt, a graveyard could not be acquired under the law and graveyard had been excluded, however the contention of State Counsel was that the petitioners had no locus standi to file constitutional petition as they had no interest in the land in question---In view of the categorical stand taken by the Authorities that arrangements had been made to shift the graves from the acquired portion and to burying the remains in land already acquired by the Government for that purpose---Constitutional petition was disposed of by the High Court with the direction that before executing the project at the relevant location, the graves from the affected portion would be shifted to the place which was acquired for that purpose.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 ref.

Mian M. Waseem and Sana Ullah Chaudhry for Petitioner.

M.R. Sheikh A.A.-G.

Sh. Farooq Hussain, Legal Advisor for Respondent No.5.

Arshad Khan Assistant Land Control Officer, L.A.C. Office, Lahore.

CLC 2010 LAHORE HIGH COURT LAHORE 9 #

2010 C L C 9

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MUHAMMAD SHARIF through L.Rs. and 3 others----Petitioners

Versus

SHER MUHAMMAD through L.Rs. and others----Respondents

Civil Revision No.822 of 2009, decided on 8th May, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Claim of the plaintiff was that his sister, who was about 80 years of age and also an uneducated Pardanashin lady, owned agricultural land and a house and defendants who were not related to her in any manner whatsoever, in collusion with the staff of Sub-Registrar got executed gift-deed in their own favour; whereas his aged sister neither gifted nor delivered the possession of suit property to the defendants and that alleged gift-deed had been procured by the defendants through fraud and misrepresentation---Even the lady in her life time assailed the validity of gift-deed---Suit filed by the plaintiff having concurrently been decreed by the Trial Court and Appellate Court below defendants had challenged said concurrent judgments and decrees in revision---Defendants had failed to prove alleged gift-deed as they remained unable to produce marginal witnesses to prove their claim---Even otherwise the owner of property in her life time had challenged the gift-deed by filing civil suit but she subsequently died---Plaintiff being special attorney of his sister produced five witnesses in support of his claim that he was genuine heir of his deceased sister and was entitled to his due share from her property and alleged gift-deed in favour of defendants was a bogus document---Concurrent findings of both courts below declaring the gift-deed as bogus document, did not need any interference as counsel for the defendants had failed to point out any illegality therein---Claim of the plaintiff had been proved to be based on cogent evidence---Revision petition being devoid of any force concurrent findings of both the courts below could not be interfered with having been passed on the evidence available on the record.

Ahmad Awais for Petitioners.

CLC 2010 LAHORE HIGH COURT LAHORE 22 #

2010 C L C 22

[Lahore]

Before S. Ali Hassan Rizvi and Muhammad Ashraf Bhatti, JJ

MUHAMMAD ASGHAR----Appellant

Versus

Mian MUHAMMAD HUSSAIN----Respondent

Regular First Appeal No.432 of 2003, heard on 30th April, 2009.

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

----O. XXXVII, Rr.1, 2 & S.35-A---Suit for recovery of money on basis of pro note---Plea of defendant was that he had no acquaintance with plaintiff; that he never received money from plaintiff; that suit was false; and that plaintiff had unduly got his thumb-impression on some papers, when he had gone to release his relative confined illegally on complaint of plaintiff---Proof---Evidence of defendant and his said relative was consistent with his version given in written statement--Witnesses having deposed in plaintiff's favour were impartial---Plaintiff had failed to prove his case as setup and that as to why he had paid Rs. 4,00,000 to defendant aged 75 years on his simple request without any relationship with him---Plaintiff had no cause of action and had not come to Court with clean hands---Suit was dismissed with special costs of Rs.5, 000 in circumstances.

(b) Practice and Procedure---

----Greater would always include lesser.

----O. XXXVII, R.3, Ss.96 & 148---Limitation Act (IX of 1908), S.5---Suit for recovery of money on basis of pro note--Defendant's failure to furnish security within time fixed by Court---Extension of time by Court on defendant's application while refusing to pass decree on plaintiff's application in terms of O.XXXVII, R.2(2), C.P.C. for such failure of defendant---Furnishing of security by defendant before expiry of extended time---Dismissal of suit on merits by Trial Court---Plaintiff's plea was that his application was illegally dismissed as suit was liable to be decreed on such failure of defendant---Validity---Plaintiff by not challenging in revision had accepted orders of Trial Court dismissing his application and extending time---Trial Court had power to extend time under S.148, C.P.C. and had condoned delay on defendant's application---Plaintiff had lost suit after full-dress trial, thus, he could not be allowed to raise such plea, which had not found favour with Trial Court---Nothing substantially was likely to turn upon: such plea, when plaintiff had no case on merits---High Court declined to vary or reverse or interfere with such findings of Trial Court--Appeal was dismissed in circumstances.

(d) Administration of justice--

----Procedural laws are framed for advancement of justice and to take a cause to a logical end for and against the litigating parties---Technicalities cannot be allowed to operate as tyrant masters so as to smother and frustrate genuine claims.

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

----S. 148---Time, extension of---Scope---Court could extend time either suo motu in interest of justice or on application of party concerned.

Abdul Razaq Mirza for Appellant.

Naseer Ahmed Sial for Respondent.

Date of hearing: 30th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 32 #

2010 C L C 32

[Lahore]

Before S. Ali Hassan Rizvi, J

Syed AQDAS ABBAS----Petitioner

Versus

Mst. SAMINA SHAHBAZ----Respondent

Writ Petition No.7788 of 2009, decided on 28th April, 2009.

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

----S. 5, Sched., Ss.7 & 9---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Suit for payment of maintenance allowance---Petitioner, had challenged the validity of order, whereby Family Court had directed payment of maintenance allowance at the rate of Rs.15,000 for minor, who was a "special child"---Petitioner did not appear before the Judge, Family Court and also did not submit written statement and instead he moved application under S.7 of West Pakistan Family Courts Act, 1964 pointing out some technicalities---Interim maintenance at the rate of Rs.15,000 per month for a special child, who was under treatment, was not exorbitant---Said rate ,of maintenance, however, would be adjustable at the time of final determination of the maintenance amount---Had the petitioner been mindful of his defence, he should have immediately submitted his written statement bringing to the Court every proof as to his monthly income etc.---No appeal, revision or review had been provided against order relating to interim maintenance---Order of interim maintenance, could not be disturbed in constitutional jurisdiction, unless same, on the face of it was shown to be exorbitant---Petitioner had not paid even a single penny to his retarted son---No case for interference of High Court in the order passed by the Family Court having been made out by the petitioner, petition was dismissed.

Zafar Hussain v. Begum Farzana Nazli and others PLD 2004 Lah. 349; Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41 and Mst. Sitwat Chughtai and another v. Judge Family Court, Lahore and another PLD 2009 Lah. 18 ref.

Syed Abid Mumtaz Tirmizi for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 39 #

2010 C L C 39

[Lahore]

Before Ijaz-ul-Ahsan, J

Rana MUHAMMAD RAFIQUE----Petitioner

Versus

Malik MUHAMMAD ASHFAQ----Respondent

Civil Revision No.1673 of 2009, heard on 21st October, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Punjab Pre-emption Act (IX of 1991), S.17---Abatement of right of pre-emption---Plea of----Effect---Plaintiff filed suit for pre-emption in respect of disputed property---Defendant moved an application under O. VII, R.11, C.P.C. seeking dismissal of the suit on the ground that right of pre-emption of the plaintiff had been abated under S.17 of the Punjab Pre-emption Act, 1991---Defendant further asserted that where the pre-emptor alienated a part or whole of his property on the basis of which he had asserted a right of pre-emption, his right of pre-emption stood abated---Trial Court dismissed application of the defendant---Validity---Plaintiff was a co-sharer despite having sold a portion of his holding in the joint Khata---Plaintiff had also shared common amenities and the suit was at its initial stage where evidence was yet to be recorded---Order of the Trial Court whereby it had dismissed the application of the defendant under 0. VII, R.11, C.P.C. was unexceptionable---No illegality or material irregularity had been committed by the lower court---Petition was dismissed.

Umar Bin Akbar for Petitioner.

Malik Mujeeb-ur-Rehman for Respondent.

Date of hearing: 21st October, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 41 #

2010 C L C 41

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

ALLAH DITTA----Petitioner

Versus

KHUSHI MUHAMMAD and another----Respondents

Writ Petition No.1914 of 2001, heard on 16th June, 2009.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Review---Scope of---Grounds for review of order were discovery of new and important evidence which was not in the knowledge of the party---Such evidence was not produced at the time of the decree or order---Scope of review being very limited, it was not permitted to reopen the matter---Jurisdiction of review could only be exercised subject to the conditions mentioned in the statute---Such power could only be invoked when new and important matter or evidence was discovered which was not available on the previous occasion when order was passed or it could be availed when order was made on account of some mistake or error apparent on the face of the record---Review could not be made only for the reason that another view could be taken on the record---Succeeding Member, Board of Revenue though competent to review, could not review the order passed by his predecessor, simply because another view could be taken in the case---Where ground on which review was sought, related to the merits of the case, case could not be permitted to be reopened in exercise of power under S.8 of West Pakistan Board of Revenue Act, 1957---Words "for any other sufficient reason" in S.8 of West Pakistan Board of Revenue Act, 1957, to be read "ejusdem generic" (of the same thing or nature) with preceding words laying down ground of review---Review was not available for every cause; but was restricted to cause relatable to circumstances; such as discovery of new and important matter or some apparent mistake on the face of record---Requirement of review was that some error must be so manifest and clear that no court was to permit such error to remain on the record and it must be error which must be floating on the surface of record---In the present case, findings recorded by the officers of the revenue hierarchy were interfered by the Member, Board of Revenue in exercise of review jurisdiction---Highest hierarchy of the revenue department had appointed the petitioner as Lumberdar and gave findings of fact, which was interfered through impugned order without any legal justification---Impugned order passed by Member, Board of Revenue was not only violative of law as well as the established principles---High Court could correct any error on the part of the Revenue Officer---Constitutional petition was allowed.

Khan Muhammad and others v. Member, Board of Revenue and others PLD 2006 Lah. 615; Muhammad Ashraf v. Dost Muhammad and others 1981 SCMR 383; Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755; Muhammad Amin v. M.B.R. 1992 CLC 2338; Muhammad Din and 2 others v, Muhammad Amin and 8 others PLD 1994 SC 288; Khan Muhammad and others v. Member, Board of Revenue and others PLD 2006 Lah. 615; Nasim Ahmad v. Board of Revenue PLD 1979 Note 82 at P.57; Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112; Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 and Haji Noor's case PLD 1991 SC 531 rel.

Sahibzada Mahboob Ali Khan for Petitioner.

Nemo for Respondent No.1.

Mian Abbas Ahmad, Addl. A.-G. for Respondent No.2.

Date of hearing: 16th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 50 #

2010 C L C 50

[Lahore]

Before Ijaz-ul-Ahsan, J

BASHIR AHMED----Petitioner

Versus

HANIFAN BIBI----Respondent

Civil Revision No.2111 of 2009, decided on 19th October, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Sole legal heir---Quality of evidence--Scope---Plaintiff filed suit for declaration to the effect that he was the only legal heir of his deceased father and was exclusively entitled to inherit the disputed property and that the defendant being an adopted daughter, as the real sister of the plaintiff had died on her way to Pakistan at the time of Independence, was not a legal heir and was not entitled to inherit any share in the disputed property---Trial Court dismissed suit of the plaintiff---Appeal filed against the judgment and decree of Trial Court was also dismissed by Appellate Court---Validity---Plaintiff made a statement in the year 1989 before the Revenue authorities when the alleged mutation was attested that his sister 'S.B.' had died six months ago and being the sole surviving legal heir of his father he was entitled to the entire property---Plaintiff had attested the Nikahnama in which name of the defendant's father was mentioned as M. Y./father of the plaintiff, which had played a major role in his failure to discharge the onus of proof placed on him---Plaintiff had failed to prove that he was the only legal heir of M. Y. and that the defendant was not the real daughter of M. Y. ---Alleged affidavit of the mother of the parties was never proved and had no evidentiary value---Higher threshold of the quality of evidence was required to deprive a person of his/her rights in the inherited property especially so where rights of women were involved---Such threshold has clearly not been achieved---Plaintiff had not been able to show any misreading or non-reading of evidence nor had any illegality or material irregularity on the part of the lower courts, been demonstrated---Revision petition was dismissed.

Talish Umar Chaudhry for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 54 #

2010 C L C 54

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MUHAMMAD QASIM----Petitioner

Versus

UNIVERSITY OF AGRICULTURE, FAISALABAD through Vice-Chancellor and 2 others----Respondents

Writ Petition No.6462 of 2009, decided on 9th July, 2009.

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

----Art. 199---Constitutional petition, maintainability of---Even during

the pendency of the civil suit, constitutional petition could be maintained and decided.

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

----Art. 199--Constitutional petition---Educational institution---Examination---Petitioner appeared in original examination which was held in winter Session 2005-2006, in which he failed: he repeated first time in Spring 2005-06, in which also he failed and third time he was enrolled for repetition in the Spring Semester 2006-07, but could not appear due to rustication order passed against him, which was subsequently set aside by the Appellate forum---Petitioner only appeared in one paper and the remaining papers were to be taken when the order of rustication was passed against him, whereby he did not remain student of the University and could not appear in the remaining papers of Spring Session 2006-07---Petitioner appeared in Spring 2007-08 but failed---Petitioner could not appear due to the order of rustication in Spring Sessions 2006-07, that could not be considered as the second repetition availed by the petitioner---Second repetition, in circumstances, would be considered when the petitioner appeared in Spring 2007-08 as it was beyond the control of the petitioner due to order of rustication passed by the University and he ceased to be the student of the University---Petitioner, in circumstances, was entitled for another chance in lieu of Spring Session 2006-07 and would be allowed to appear in the next examination to be held by the University on the subject as the last chance.

PLD 1971 SC 130 and PLD 1988 Lah. 325 ref.

Khalid Mian for Petitioner.

Sardar Tariq Mehmood along with Muhammad Aslam, Assistant Registrar, University of Agriculture, Faisalabad with record for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 64 #

2010 C L C 64

[Lahore]

Before Ijaz-ul-Ahsan, J

TEHKEDAR JEHAGIR----Appellant

Versus

IZAT FAZEEL and others----Respondents

S.A.Os. Nos.150 and 151 of 2009, decided on 16th October, 2009.

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

----Ss. 13 & 15---Ejectment of tenant---Bona fide personal need of landlord---Plea of---Scope---Landlord categorically stated in his statement that he wanted to establish a showroom for electronics by combining four shops, two of which had already been got vacated and he needed the other two shops to set up his business where his brothers could join him in running the showroom of electronics; such evidence could not be disproved or shaken in cross-examination---Solitary statement of the landlord was sufficient to establish bona fide personal need.

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

----S. 13---Ejectment of tenant---Plea of---Bona fide personal need of landlord---Each case had to be decided on its own merits---Tenant could not be allowed to force a landlord to let him use the leased premises for an indefinite period notwithstanding landlord's personal need.

Mian Faheem Altaf for Appellant.

CLC 2010 LAHORE HIGH COURT LAHORE 68 #

2010 C L C 68

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD YOUNUS and 9 others----Petitioners

Versus

DIVISIONAL CANAL OFFICER, LODHRAN CANAL DIVISION, MULTAN and 12 others----Respondents

Writ Petition No.1066 of 1998, decided on 27th May, 2009.

Canal and Drainage Act (VIII of 1873)---

----S. 20---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate remedy of civil suit---Scope---Principle of "condemned unheard"-Applicability---On the application of respondents, Divisional Canal Officer, changed Moga of water course for irrigating lands of respondents, which order was maintained by appellate authority---Contention of petitioners was that authorities had passed orders in their absence and no opportunity of hearing was given to them---Validity---Any order arrived at without associating parties had no room in domain of law---Any order passed in violation of principle of natural justice could not have the legal effect---Order passed by appellate authority was merely affixing rubber stamp on the orders passed by Divisional Canal Officer and the same could not be termed as legal determination of appeal---Filing of civil suit might not be efficacious and speedy remedy as controversy involved could be resolved without entering into disputed question of facts raised by parties---Appellate authority acted in unfair and arbitrary manner and without going into details of factual controversy matter could not be resolved by exercising power under Art.199 of the Constitution---Order passed by appellate authority was final in nature and it could be assailed in a Constitutional jurisdiction---In the first order, Divisional Canal Officer concluded that contention of respondents were frivolous whereas in the second order he accepted contention of respondents without passing detailed reasoning---High Court in exercise of Constitutional jurisdiction set aside the order passed by appellate authority and remanded the appeal for decision afresh---Petition was allowed accordingly.?

Sultan Ahmad v. Superintending Engineer, Bahawalnagar 1988 MLD 1460; Muhammad Idress and others v. Superintending Engineer and another 1996 CLC 1746; Muhammad Mubeen v. DCO 2007 CLC 1168; Bashir Ahmed v. Sardar Muhammad 1984 CLC 2158; Muhammad Ismail v. Muhammad Sadiq and others 1971 SCMR 653; Mrs. Anisa v. PIAC and others 1994 SCMR 232; Messrs Wak Orient Power and Light Ltd. through Chief Secretary v. Government of Punjab, Ministry of Water and Power through Secretary 1998 CLC 1178; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector General of Police Sindh, Police Headquarter and 2 others PLD 1992 Kar. 283 and Zulfiqar Ali and another v. Superintending Engineer, Multan and others PLD 1957 Lah. (W.P) 730 rel.

Malik Mumtaz Akhtar for Petitioner.

Mehr Ashfaq Ahmed for Respondent.

Date of hearing: 11th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 77 #

2010 C L C 77

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD ASLAM and another----Petitioners

Versus

MUHAMMAD SHARIF and another----Respondents

Civil Petition No.609 of 2009, decided on 11th May, 2009.

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

----O. XVII, R.3-Non-production of remaining evidence by plaintiff despite availing more than nine consecutive adjournments and burdening him with costs of adjournment and giving him warning, final and last opportunity at six different occasions---Dismissal of suit by Trial Court upheld by Appellate Court---Validity---Duty of plaintiff was to lead evidence to prove his cause---Suit had remained pending for more than three years for recording of plaintiff's evidence---Trial Court could not keep case pending for an indefinite period---Trial Court on last date of hearing had directed plaintiff's counsel to produce evidence on relevant date, otherwise his right to produce evidence would be struck off---Trial Court had closed evidence of plaintiff on relevant date after keeping the case in waiting till 2-30 p.m.---Order sheet did not indicate "sufficient cause" for grant of further adjournment on relevant date---Trial Court had rightly dismissed suit on basis of available material---High Court dismissed revision petition in circumstances.

Zahoor v. Election Tribunal 2008 SCMR 322 and Muhammad Afzal v. Muhammad Ashraf 2004 YLR 1166 rel.

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

----O. XVII, Rr.1 & 3---Adjournment being prerogative and discretion of Court could not be claimed by parties as a matter of right---Evidence in case once begun must continue till examination of all witnesses in attendance in Court---Principles.

Sardar Muhammad Ramzan for Petitioners.

Nemo for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 81 #

2010 C L C 81

[Lahore]

Before Ijaz-ul-Ahsan, J

SALAHUDDIN CHAUHAN----Appellant

Versus

MUHAMMAD KHAN----Respondent

First Appeal from Order No.375/I of 2009, decided on 23rd October, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.12---Interim injunction---Grant of---Proof---Scope---Plaintiff filed suit for specific performance of an agreement to sell in respect of disputed property on the ground that he had paid earnest money in the sum of Rs.15,25,000 and an additional amount of Rs.2.4 million subsequently, for purchase of disputed property---Defendant contested suit on the ground that the plaintiff had failed to pay the balance amount despite having received legal notice and that the time was the essence of the agreement---Trial Court granted an interim injunction to the plaintiff---Validity---Agreement to sell was admitted by both parties and receipt of an earnest money was also not denied by the defendant---Whether or not time was the essence of the agreement required deeper probe which could only be undertaken after recording of evidence---Prima facie case in favour of the plaintiff had been made out---In case the defendant was not restrained from alienating the suit property during pendency of the suit the plaintiff would suffer irreparable loss and possibility of multiplicity of proceedings could not be ruled out---High Court dismissed first appeal in limine with clarification that the observations made in the order by High Court were only of a tentative nature and should not affect the merits of the case.

Asad Mahmood Ahmad Khan for Appellant.

CLC 2010 LAHORE HIGH COURT LAHORE 87 #

2010 C L C 87

[Lahore]

Before Pervaiz Inayat Malik, J

Mst. GHULAM SHAHEENA----Petitioner

Versus

JUDGE, FAMILY COURT----Respondent

Writ Petition No.6226 of 2005, decided on 27th April, 2009.

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

----S. 5 & Sched.---Suit for possession of house given to wife in consideration of dower---Competent before Family Court.

2000 MLD 1638 ref.

1997 SCMR 1122 fol.

Haji Muhammad Abbas v. Mrs. Naila Taranum Jamshed and 4 others 2001 PCr.LJ 628 distinguished.

Muhammad Ramzan Khalid Joiya for Petitioner.

Muhammad Mahmood Ashraf Khan for Respondent No.2.

CLC 2010 LAHORE HIGH COURT LAHORE 95 #

2010 C L C 95

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUZAFFAR ALI KHAN----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE

through Chairman and another----Respondents

Writ Petition No.8664 of 2007, decided on 3rd July, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational institution---Using unfair means in examination---Cancellation of result card---Petitioner who appeared in Intermediate Examination held in the year 2004, having been found using unfair means, was declared disqualified by the committee for six examinations and his result card of Matriculation was also cancelled---Petitioner had challenged such cancellation---Petitioner had passed his matriculation examination in the year 1978, whereas he appeared in Intermediate Examination in the year 2004 wherein he was found using unfair means for which he had already been punished by restraining him from appearing in the examination of Intermediate for six times---Petitioner did not use unfair means in the Matriculation Examination wherein he was eligible to appear in the examination in the year 1978, when he cleared the same and it became a past and closed chapter---Nothing had been brought to the notice of the Board that the petitioner had obtained the matriculation certificate by using unfair means as well--Order of cancellation of matriculation certificate of the petitioner was not sustainable as examination of matriculation had no nexus with the Intermediate examination---Both being different entities, the petitioner could not be penalized by cancellation of his matriculation certificate---Impugned order for cancellation of matriculation certificate of the petitioner, was set aside.

2001 CLC 759 and PLD 2004 SC 25 ref.

Qaiser Mehmood Sara for Petitioner.

Sheikh Shahid Waheed for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 102 #

2010 C L C 102

[Lahore]

Before Pervez Inayat Malik, J

ABDUL GHAFFAR-Petitioner

Versus

Haji SHAMEEM-UD-DIN---Respondent

Civil Revision No.962 of 2006, decided on 13th May, 2009.

Civil Procedure Code (V of 1908)---

----O. XXI, R.58---Execution of decree---Attachment of property---Objection, deciding of-Non-framing of issues---Articles attached during execution of decree were objected to by petitioner on the ground that in fact he was the owner of the articles and not judgment-debtor---Plea raised by petitioner was that Executing Court did not frame issues to decide his objections---Validity---No prima facie proof of ownership of articles were placed on record of Executing Court---Original receipts were produced by petitioner for the first time before High Court in revision petition, genuineness whereof on the face of such receipts was doubtful---High Court did not find any illegality or misreading/non-reading of record attributed to Executing Court in dismissing objection petition---Executing Court was not bound Jo hold regular inquiry by framing. issues and providing opportunities to parties to produce evidence rather Court was vested with power to reject objection petition summarily in absence of prima facie proof and also where collusion was found in between objection petitioner and judgment-debtor---Executing Court rightly found collusion of petitioner and judgment-debtor, which was even floating on the -surface of the record---Order passed by Executing Court was legal and the same was maintained by High Court---Revision was dismissed in limine.

Mst. Surriya Begum v. Muslim Commercial Bank Limited and 4 others PLD 1940 Lah. 4; Shaukat Ali and others v. Bank Tribunal for Karachi and Sakhar and others 2001 MLD 1828; Muhammad Rafi and others v. Muhammad Shafique, Civil Judge Hasil Pur and others 1993 CLC 1903 acid PLD 1970 Lah. 2004 distinguished.

Muhammad Akbar Sajid for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 110 #

2010 C L C 110

[Lahore]

Before Pervaiz Inayat Malik, J

Mst. FARMIDAH----Petitioner

Versus

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

Writ Petition No.674 of 2009, heard on 22nd May, 2009.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage and recovery of maintenance allowance to the tune of Rs.1,50,000-Family Court decreed suit for dissolution of marriage, whereas suit for recovery of maintenance allowance was decreed to the extent of Rs.50,000 only---Appellate Court enhanced the decretal amount of maintenance from Rs.50,000 to 1,00,000 only---Plaintiff not satisfied with said enhancement, filed constitutional petition---Validity---Plaintiff (wife) had suffered hardships, miseries by the act of the defendant (husband) who expelled the plaintiff out of his house in three plain clothes; she for the last number of years had been facing the agony of protracted litigation---Defendant had not paid single penny to her---Sole purpose of the defendant appeared to add to the miseries of the plaintiff---Allowing constitutional petition filed by the plaintiff, decretal amount of maintenance was enhanced from Rs.1,00,000 to Rs.1,50,000 as prayed for by the plaintiff---Plaintiff was also allowed costs throughout in view of peculiar facts and circumstances of the case.

Kh. Qaisar Butt and Malik Shah Nawaz Khokhar for Petitioner.

Nazim Hussain Naich for Respondents.

Muhammad Zafarullah Khan Khakwani, A.A.-G.

CLC 2010 LAHORE HIGH COURT LAHORE 116 #

2010 C L C 116

[Lahore]

Before Abdul Sattar Goraya, J

SULEMAN and another----Petitioners

Versus

ATAULLAH and 5 others----Respondents

Civil Revision No.939 of 2005, heard on 21st May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 31 & 39---Suit for rectification of sale-deed---Revision petition---There being some dispute with regard to Khasra No. of land in question, suit was filed under S.39 of Specific Relief Act, 1877 for rectification of sale-deed in respect of suit-land---Both the Trial Court and Appellate Court had concurrently decreed the suit---Validity---If any contradiction was found in the actual position and Khasra number, it was the description given in the sale-deed which would prevail and not the actual Khasra number---Sufficient evidence had been brought on the record to establish that the plaintiffs were in possession of the house constructed on land in question which was surrounded by the boundary walls and the Pacca construction had been raised thereon---Mere fact that in the sale-deed, incorrect Khasra number was mentioned, would not disentitle the plaintiff to retain the residential property owned and possessed by them---Both the courts below had minutely seen the matter and issue involved had been determined by scanning the evidence with microscopic vision---Case was of concurrent finding of fact and interference in exercise of jurisdiction under S.115, C.P.C., was not possible---Judgments and decrees of both the courts below being rich in detail, revision petition against said concurrent judgments was dismissed.

Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah. 89; PLD 1970 SC 63; AIR 1960 SC 941; (1906) 3 CLJ 561 (PC); (1897) 1 CWN 574; (1897) 1 CWN 189; (1870) 14 SWR 474; (1903) 7 CWN 615; AIR 1920 Pat. 82; ILR 26 Cal 845; (1913) 18 IC 745; Muhammad Rafique v. Amar Shahzad 1999 YLR 610; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Abdul Rahim and another v. Mrs. Janntay Bibi and 13 others 2000 SCMR 346 ref.

Wali Muhammad Chaudhry for Petitioners.

Irshad Ahmad Qureshi for Respondents Nos.1 and 2.

Date of hearing: 21st May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 124 #

2010 C L C 124

[Lahore]

Before Abdul Sattar Goraya, J

SARDAR KHAN-Petitioner

Versus

BASHIR AHMED----Respondent

Civil Revision No.1499 of 2003, heard on 7th May, 2009.

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

---Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff, who claimed superior right of pre-emption in respect of pre-empted land, had asserted that when he got knowledge of sale of suit-land from a person, he at that very time, without losing time, made Talb-i-Muwathibat and then the remaining formalities were completed; whereafter the other Talbs were performed in a mode prescribed by law---Trial Court decreed suit filed by the plaintiff, but Appellate Court set aside judgment and decree passed by the Trial Court and dismissed the suit---Appellate Court, while reversing decree of the Trial Court, had focused its decision on the point that the sale-deed was made through a registered instrument and the witnesses admitted that all the villagers knew the registration of sale-deed---Appellate Court had emphasized that since all villagers knew with regard to the date of sale-deed, the necessary presumption would be that the plaintiff had a notice of the sale transaction, but he sent a notice long after said notice---Evidence on the point of Talb-i-Muwathibat was consistent and no discrepancy was noticed in that---Presumption drawn by the Appellate Court that since other people of village had got knowledge, it would not mean that the plaintiff had got knowledge of the sale---Validity---Knowledge of other persons could not be presumed to be the knowledge of the plaintiff---Impugned judgment and decree of the Appellate Court, was not sustainable at law---Revision petition against the judgment of the Appellate Court was accepted with costs and impugned judgment and decree was set aside and that of the Trial Court was restored.

Hameedullah Khan and others v. Mst. Zeenat Khatoon 2008 SCMR 1444; Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366 and Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 ref.

Chaudhry Muhammad Rafique Warraich for Petitioner.

Sardar Muhammad Ramzan for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 146 #

2010 C L C 146

[Lahore]

Before Abdul Sattar Goraya, J

ABDUL MAJEED and 5 others----Petitioners

Versus

PROVINCE OF THE PUNJAB through District Collector, Layyah and 4 others----Respondents

Civil Revision No.72-D of 2004, heard on 21st July, 2009.

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

----O. VII, R.11---Rejection of plaint---Suit barred by law---Determination---Principles---For determination whether suit is barred by law, averments contained in plaint can only be looked into---Decision in any case on assertion of defendants based on material foreign to record cannot be made---Court is bound to see whether from statement made in plaint, there was another cause of action available and whether suit is barred by law or not.

Cotenca Inspection SA and another v. Messrs Ismail and Co. and 6 others 2001 CLC 899 and Sajid Saeed v. Inam-ul-Haq 2007 MLD 1622 ref.

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

---S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.172---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11---Declaration of title---Rejection of plaint---Civil court---Bar to jurisdiction---Scope---Principle of res judicata---Applicability---In either of litigation, ex parte decree was passed in favour of plaintiffs, and land in question was mutated in their names---Defendants assailed the mutation before revenue authorities on the plea of fraud, and Provincial Board of Revenue decided the matter in their favour---Plaintiffs once again filed declaratory suit, which was rejected by Trial Court on the ground that already a decree had been passed in favour of plaintiffs regarding suit-land and jurisdiction of civil court was barred under S.172 of West Pakistan Land Revenue Act, 1967---Validity---Jurisdiction of civil court to rectify wrong done or entries made in Revenue Record could not be excluded merely by operation of S.172, West Pakistan Land Revenue Act, 1967--Jurisdiction of civil court was only barred in respect of those matters or functions which had been assigned to Revenue Court---Reasons weighed with Trial Court was that plaintiffs were holding an ex parte decree in their favour and there was no justification in law to file another suit on same cause of action---Trial Court was also influenced by impression that Revenue Record was corrected by revenue authorities and after decision of Board of Revenue jurisdiction was not available with civil court----Such grounds on the basis of which plaintiffs were non-suited were not available and plaint could not be rejected under O. VII, R.11, C.P.C.---Fact that plaintiffs were holding civil court decree in their hand was not a relevant ground to non-suit them---When order was passed by Board of Revenue, fresh suit had become competent---Whether plaint was hit by principle of res judicata or not, could only be determined after holding trial and in no other manner---Both the courts below committed illegalities and irregularities ad initiaitum in reaching the conclusion---Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for decision afresh on merits.

---S. 9---Civil court---Jurisdiction---Scope---Every presumption should invariably be made in favour of jurisdiction of civil court and all laws touching upon usual jurisdiction of the case should be construed strictly---Ouster of jurisdiction of civil court not to be interfered until and unless word used in relevant statute makes it clear that intention was to take away jurisdiction in specific terms.

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

----S. 172---Civil Procedure Code (V of 1908), S.9---Decree passed by civil court---Effect---Revenue officers are bound to give effect to decree passed by civil court in Revenue Record---Ultimate jurisdiction remains with civil court to settle issues.

Khawaja Muhammad Akbar and 5 others v. Khawaja Fateh Muhammad and 15 others 1993 MLD 76; Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Abdur Rehman and others v. Abdul Qadir and others 1998 CLC 401; Safdar and 5 others v. Rashid Ahmad and 12 others 1994 SCMR 1454 and Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 rel.

Syed Muhammad Ali Gillani for Petitioners.

Chaudhry Khalil Asghar Sindhu for Respondents.

Date of hearing: 21st July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 157 #

2010 C L C 157

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AYUB----Petitioner

Versus

GULAB KHAN and another----Respondents

Writ Petition No.205 of 2005, decided on 14th April, 2009.

West Pakistan Land Revenue Rules, 1968---

----Rr. 17 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of successor Lumberdar---Wife of petitioner who was Lumberdar of revenue estate concerned, having died, petitioner and respondent along with others applied for appointment of successor Lumberdar---District Collector, vide his order appointed respondent as Lumberdar---Appeal and then revision filed by the petitioner against decision of the District Collector, having been dismissed petitioner had filed constitutional petition---Contention of the petitioner was that since his deceased wife was the Lumberdar, he was entitled to be appointed as he had a hereditary claim and was otherwise better than his opponent/respondent---District Collector found that respondent was more suitable and his opinion was affirmed by the Commissioner and ultimately by the Board of Revenue---Held, in the matter of appointment of Lumberdar the opinion of the Collector had to be given weight until it was shown to be perverse---No such material was available on record to hold the impugned orders to be perverse--Hereditary claim was a relevant consideration in the matter of first appointment to be made under R.17 of West Pakistan Land Revenue Rules, 1968---Present being case of appointment of successor Lumberdar, Rule 19 of West Pakistan Land Revenue Rules, 1968 would be applicable---Only claim of the petitioner was that he was husband of late Lumberdar lady; his case would not fall under sub-rule (2) of R.19 of West Pakistan Land Revenue Rules, 1968.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

Pirzada Noor Ali Shakoori for Petitioner.

Shahid Hussain Kazmi, A.A.-G.

Respondent No.1 in person.

CLC 2010 LAHORE HIGH COURT LAHORE 170 #

2010 C L C 170

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAZZAQ----Petitioner

Versus

FAQIR HUSSAIN and another----Respondents

Criminal Revision No.178/D of 2001, heard on 14th July, 2009.

Civil Procedure Code (V of 1908)---

----Ss. 115 & 12(2)---Specific Relief Act (I of 1877), S.12---Qanun-e-Shahadat (10 of 1984), Art.58---Revision---Petitioner filed a suit against the respondents to challenge order passed in an earlier suit filed by respondent against him wherein his attorney appeared and conceded the suit and got recorded a promise that the. petitioner will transfer the suit property to respondent on his return from abroad---Court recorded the said statement and observed that defendant (i.e. the petitioner) will remain bound by the said promise and dismissed the suit as withdrawn---Decree "'as accordingly prayed for that the said statement and the order was illegal and void and suit was contested---Preliminary objection was taken to the effect that the suit was barred in view of S.12(2), C.P.C. and that suit for specific performance on the basis of said statement (by the attorney) had been filed which was pending---Petitioner's contention was that since the words fraud, collusion or misrepresentation had not been used in the plaint, the suit could not have been dismissed on said ground---Plaint showed that the petitioner felt aggrieved of the said conduct of his attorney as a result whereof the said proceedings and order came to be recorded---Petitioner admitted on court question that statement of the attorney was fraud and collusive---Effect---Impugned orders held, had been passed with jurisdiction while holding that the suit was not competent---Suit against the petitioner for specific performance on the basis of the statement of attorney was still pending, petitioner could very well demonstrate in the said suit itself that the statement was fraudulently or collusively made and the order sought to be enforced in the said suit was liable to be set aside---Article 58, Qanun-e-Shahadat, 1984 catered for such a situation---Revision was dismissed.

Abdul Wahid Qureshi for Petitioner.

Adil Nawaz Khan for Respondents.

Date of hearing: 14th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 181 #

2010 C L C 181

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR HUSSAIN through .Attorney----Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, BOARD OF REVENUE PUNJAB, LAHORE and 3 others----Respondents

Writ Petition No.7108 of 2009, heard on 9th July, 2009.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Evacuee land---Execution of PTD in favour of petitioner on payment of transfer price and fee---Refusal of Revenue Office to implement such PTD in Revenue Record alleging same to be forged---Findings of Notified Officer after remand of case by High Court that such PTD was valid---Dismissal of earlier constitutional petition filed by Revenue Department against order of Notified Officer---Validity---Notified Officer had scrutinized case of petitioner in terms of Notification dated 12-6-1988---Dismissal of earlier constitutional petition of Revenue Department was not per incuriam and was binding upon both parties, who were bound to implement same in letter and spirit---High Court disposed of constitutional petition in such terms.

Civil Appeals Nos.625, 627 of 2003; Muhammad Ramzan and others v. Member (Rev./CSS) and others 1997 SCMR 1635; C.P. No.557/L of 2004; Civil Appeals Nos.2233 and 2234 of 1998 and Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner, Punjab, Lahore v. Muhammad Mustafa and 74 others 1993 SCMR 732 ref.

Kh. Aamir Farooq for Petitioner.

Faisal Zaman Khan, Addl. A.-G.

Mehmood A. Sheikh for Respondents.

Hafiz Muhammad Yousaf for intervener.

Date of hearing: 9th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 210 #

2010 C L C 210

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MANSHA----Petitioner

Versus

ASGHAR ALI----Respondent

Civil Revisions Nos.2071 and 2072 of 2007, heard on 6th July, 2009.

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

----S. 5---Pre-emption suit---Mutation of exchange alleged by plaintiff to be a sale for consideration and that possession never changed hands---Proof---Plaintiff's witnesses deposed that possession of suit-land allegedly given in exchange remained with defendant, who later on got same transferred to his cousin/brother-in-law and presently same was in name of wife of defendant---Plaintiff's witnesses during cross-examination admitted that no consideration was paid in their presence, but rest of their depositions remained unchallenged---Mutation of exchange was attested on 22-3-2003, which land was transferred to cousin/brother-in-law of defendant through registered sale-deed dated 28-4-2004 and then to defendant's wife through mutation attested on 7-2-2006---Defendant during evidence did not offer any explanation as to how suit-land ultimately came back to his wife, but expressed his ignorance, which was not sufficient rebuttal of oral and documentary evidence led by plaintiff---Mutation of exchange was a sale and in absence of evidence to the contrary, sale price was to be one mentioned in plaint and evidence of plaintiff.

Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892 rel.

Rana Abdul Majid Khan for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 6th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 219 #

2010 C L C 219

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. FAUZIA NOUREEN----Petitioner

Versus

MUHAMMAD ASGHAR----Respondent

Civil Revision No.315 of 2009, heard on 27th July, 2009.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Dues of deceased government servant---Distribution---Group insurance---Deceased was employee of police department, who died issueless and survived with widow, mother and father---Trial Court issued succession certificate with direction to disburse amount in accordance with rules and regulations of police department but Lower Appellate Court modified the certificate to disburse the amount in. accordance' with Muslim shares---Validity-Out of total amount, sum payable as Group Insurance was not to be part of estate of deceased, therefore, such amount was exclusively payable to widow if duly nominated by deceased---High Court directed that remaining amount was payable to family of deceased and would be distributed accordingly amongst parents and widow---Revision was allowed accordingly.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 fol.

Muhammad Bashir Khan for Petitioner.

Abid Hussain Abid for Respondent.

Date of hearing; 27th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 220 #

2010 C L C 220

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM QADIR----Petitioner

Versus

PUNJAB COOPERATIVES BOARD FOR LIQUIDATION through Chairman and 2 others----Respondents

Petition No.220/C of 2007, decided on 5th June, 2009.

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

----S. 54---Sale agreement---Evidentiary value---Such agreement would not confer any title.

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

----S. 7---Registration Act (XVI of 1908), S.60---Registered sale-deed in favour of defunct Corporation---Petitioner's claim as real owner of land purchased through sale-deed supported by ex-Manager of defunct Corporation---Validity---Manager of the defunct Society had subsequently joined hands with fraudulent persons to grab property of defunct Corporation---Such oral assertion of petitioner supported by the Manager in absence of documentary evidence, could not be given any importance over registered document---Petitioner's claim was rejected in circumstances.

Iqbal Haider and 3 others v. P.C.B.L. through Chairman and 14 others 2006 YLR 910 and Kh. Zia Ullah and 5 others v. P.C.B.L. through Chairman and 3 others 2006 YLR 924 ref.

Malik Abdul Wahid and Dr. Syed Sarshar Hussain for Petitioner.

Muhammad Ilyas Khan for Respondents Nos.1 and 2.

CLC 2010 LAHORE HIGH COURT LAHORE 224 #

2010 C L C 224

[Lahore]

Before Khawaja Farooq Saeed, J

Mrs. KAUSAR IQBAL BHATTI, ADVOCATE HIGH COURT BAHAWALPUR---- Petitioner

Versus

SHAFQAT ATTA and 25 others----Respondents

Writ Petition No.1490 of 2009, decided on 3uth March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Election of High Court Bar Association---Cancellation of result of election---Petitioner who contested election of High Court Bar Association allegedly noticing certain irregularities and illegalities seeking cancellation of election result---Constitutional petition in the case could not be entertained as same was not against a person as defined under Art.199 of the Constitution---Aggrieved person could undoubtedly challenge the order of any functionary working in or under the Federal or Provincial Government or local authorities---high Court Bar Association was neither performing the functions of Federal, Provincial Governments and local authority, but basically was an `Association ; its by laws and rules had been prepared for the members to manage its own affairs; it was an association within its own framework for which its members and election rules, if any, were prepared to conduct its affairs within themselves---Election Commission having been nominated under the said rules of the Association also would not have any status of a functionary dealing with the matters of State---Provisions of Art.199 of the Constitution in circumstances, would not apply in any form thereon---Petitioner as well as the respondent, all being private litigants, controversy among them could not be decided in constitutional jurisdiction of High Court---Petitioner at her own will could avail the other alternate remedy.

Petitioner in Person.

CLC 2010 LAHORE HIGH COURT LAHORE 227 #

2010 C L C 227

[Lahore]

Before Maulvi Anwarul Haq, J

Lt.-Col. MASUD MAHMUD----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Rawalpindi Cantt.----Respondent

Writ Petition No.1419 of 2008, heard on 16th July, 2009.

Pakistan Air Force Act (VI of 1953)---

----Ss. 2(e), 3 & 121(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Major in the Pakistan Army seconded to Pakistan Air Force (PAF) in corresponding rank of Squadron Leader---Reversion of petitioner to Army w. e. f. 25-9-2000 and his promotion as' Lt. -Colonel w. e. f. 6-10-2000---Further posting of petition in PAF w. e. f. 12-11-2001 as Wing Commander in Medical Administrative Wing--Issuance of charge-sheet to petitioner on 30-1-2002 and commencement of his trial on.6-2-2002 before Field General Court Martial (FGCM)---Awarding of sentence of imprisonment to petitioner and his removal from service by FGCM after finding him guilty---Dismissal of petitioner's appeal by Court of Appeals---Petitioner's plea that FGCM had no jurisdiction to try him for an offence after six months of his reversion from PAF to Army on 25-9-2000---Validity---According to S.121(2) of Pakistan Air Force Act, 1953, person should either be subject to Pakistan Air Force Act, 1953 at the time of his trial for an offence committed there-under or six months had not elapsed since his ceasing to be so subject to the said Act---Petitioner was subject to Pakistan Air Force Act, 1953 at the time of issuing him charge-sheet and commencement of his trial---High Court dismissed constitutional petition in circumstances.

Col. (Rtd.) Muhammad Akram for Petitioner.

Babas Ali, Standing Counsel with M. Junaid Cheema, Flying Officer, AHQ, Peshawar.

Date of hearing: 16th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 230 #

2010 C L C 230

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YASIN and 8 others----Petitioners

Versus

ABDUL HAMID and 21 others----Respondents

Civil Revision No.1895 of 2004 heard on 9th July, 2009.

Civil Procedure Code (V of 1908)---

----O. VI, R. 1 & O. XII, R.6---Qanun-e-Shahadat (10 of 1984), Arts.31 and 34---Admission made in pleadings---Effect---Such admission would be binding on its maker and could be used against him.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 fol.

Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 and Muqarrab Hussain through L.Rs. and another v. Pirzada Muhammad Rafiq 2001 YLR 1103 ref.

Mirza Hafiz-ur-Rehman and Inayat Ullah Ch. for Petitioners.

Ch. Muhammad Jehangir Wahlah for Respondents.

Date of hearing: 9th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 237 #

2010 C L C 237

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

SHAUKAT HAYAT and others---Petitioners

Versus

PROVINCE OF THE PUNJAB and others----Respondents

Civil Revision No.645-D of 2004, decided on 30th September, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Claim of plaintiffs was that they were owners-in-possession of the suit properly and that alleged gift mutation allegedly made. by the plaintiffs in favour of defendant was against the law and result of fraud and liable to be declared void and cancelled---Validity---Physical possession of suit property was still with plaintiffs and same had never been delivered to the defendants---No gift, in circumstances, was made by the plaintiffs in favour of defendant---Entries made in the Revenue Record were fictitious, result of collusiveness of the officials of the Revenue department with the defendant--Suit filed by the plaintiffs was decreed.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121; Mian Muhammad Rafiq Saigol v. Trust Modarba 2003 CLD 634; Muhammad Sarwar and 3 others v. Jahangir Ahmad and 5 others 2002 CLD 1865, Maula Dad v. Fazal Dad 2002 MLD 1101; Mrs: Saima Khatoon v. Manzar Hussain 1993 MLD 1542 and Manzoor Hussain v. Raja Shah and others 1992 CLC 602 ref.

M.R. Fakhar Baloch for Petitioners.

Aurangzeb Khan, Asstt. A.-G. for Respondents.

Date of hearing: 30th September, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 240 #

2010 C L C 240

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. BHAG BHARI and 6 others----Petitioners

Versus

MUHAMMAD KHAN and 5 others----Respondents

Civil Revision No.156-D of 2002, heard on 16th July, 2009.

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

----Art. 126---Person in possession---Effect---Only person having title superior to person in possession could dispossess him---In absence of proof of superior title vesting in plaintiff; rule of inperidelicto would become effective and case would be decided in favour of person in possession of property.

Agha Muhammad Ali Khan for Petitioner No.2.

Faisal Khawaja for Respondents.

Date of hearing: 16th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 246 #

2010 C L C 246

[Lahore]

Before S. Ali Hassan Rizvi, J

KARAM DIN through L.Rs. and others----Petitioners

Versus

MUHAMMAD IDREES----Respondent

Civil Revision No.474 of 2005, decided on 20th April, 2009.

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

----O. VIII, Rr.4. & 5---Non-specific, but evasive denial of a fact--Effect---Relevant assertion made by other side would be deemed to have been admitted.

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

----Arts. 117 & 118---Civil matter---Burden of proof---Scope---Entire evidence having been recorded, burden of proof would lose its importance and Court would have to examine evidence in its entirety.

----Arts. 102 & 103---Execution of agreement admitted---Effect---Any oral evidence against terms of such agreement would stand excluded from consideration.

(d) Islamic Law---

---- `Areeat'---Meaning.

Mahomedan Law by Dr. M.A. Manan (Pakistan Edition) ref.

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

---Ss. 42 &54---Suit for declaration and permanent injunction by a person not being an owner of property, but only having possessory rights thereof---Maintainability---Section 42 of Specific Relief Act, 1877 did not postulate that declaration in respect of right to any property could be sought only by its owner---Position of a person in possession would be stronger---Possessory rights of a person would confer on him a legal status, except against true owner, if any, which would be equivalent to legal character as envisaged under S.42 of Act, 1877---Such suit was maintainable---Illustration.

Hyderabad Municipal. Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284 rel.

Malik Abdul Wahid and Humma Abreen for Petitioner.

Ata-ul-Mohsin for Respondent.

Date of hearing: 15th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 258 #

2010 C L C 258

[Lahore]

Before Ijaz-ul-Ahsan, J

M. PARNIAN AROOJ----Petitioner

Versus

MEHMOOD SADIQ and another----Respondents

Writ Petition No.17957 of 2009, decided on 7th December, 2009.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7(1)---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Talaq, pronouncement of---Failure of parties to reconcile their differences despite lapse of three months---Effect---Law would presume an irretrievable break down of marriage---Principles.

It is indeed an unfortunate event in family relationships, when the marriage breaks down. While the right of divorce is deprecated at all levels, it has nevertheless begrudgedly been granted, to be exercised where a marriage breaks down irretrievably when this happens, law provides a mechanism whereunder the parties are provided an opportunity to reconcile their differences through intermediaries by engaging in the process of reconciliation through arbitrators. However, where such efforts fail, despite lapse of three months, law presumes that reconciliation is not possible and there has been an irretrievable break down. Thereupon the parties are allowed to undo the marriage tie and both parties can walk away, if they so wish with dignity and grace. This is real objective of the Muslim Family Laws Ordinance, the Family Courts Act, as amended from time to time and the Rules framed thereunder.

(b) Administration of justice---

----Laws and rules are not meant to prolong agony of one party or other on basis of technicalities and hairsplitting, such is not intention of law.

----S. 7(1)---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Talaq---Non-service of notice of Talaq---Validity---Such non-service being a mere irregularity would not affect validity of a Talaq validly pronounced and communicated---Principles.

The provisions of section 7(1) of the Muslim Family Laws Ordinance, 1961 and Rule 3(b) of West Pakistan Rules under the Muslim Laws Ordinance, 1961 are directory in nature as no penalty is provided for their non-compliance. Non-service of notice is a mere irregularity and does not affect validity of a divorce validly pronounced and communicated. The rationale for providing for notice of divorce to be sent to the Union Counsel of the area where the wife resides is to facilitate her participation in the proceedings, if she so desires.

Batool Tahir through Nominee/Representative/Special Attorney Mustejab Zehra v. Province of Sindh through Secretary Local Government Sindh and 3 others PLD 2005 Kar. 358; Allah Dad v. Mukhtar and another 1992 SCMR 1273 and Mst. Zahida Shaheen and another v. The State and another 1994 SCMR 2098 ref.

(d) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7(1)---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Constitution of Pakistan (1973), Art.199--Talaq pronounced thrice in presence of witnesses and communicated to wife at her address and Union Council concerned---Failure of wife to participate in arbitration proceedings initiated by Union Council despite having notice thereof---Application by husband to Union Council for issuance of Talaq Certificate after expiry of requisite period of 90 days---Constitutional petition by wife seeking quashment of proceedings before Union Council---Validity---Petitioner herself had chosen not to attend arbitration proceedings initiated by Union Council---Petitioner had failed to show any lawful reason or justification to quash such proceedings or restrain Union Council from issuing such certificate to husband on expiry of 90 days---High Court dismissed constitutional petition in circumstances.

Sh. Shahid Waheed for Petitioner.

Ch. Muhammad Ameen Javed for Respondent.

Date of hearing: 16th November, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 267 #

2010 C L C 267

[Lahore]

Before Syed Mansoor Ali Shah, J

Ch. GHULAM MUSTAFA----Petitioner

Versus

Mst. RIZWANA SHAHEEN and 3 others----Respondents

Civil Revision No.1180 of 2009, decided on 16th December, 2009.

Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O.XX, Rr.18 & 19 & O. VI, R.17---Partition of property---Set off claimed by co-sharer---Subsequent events---Parties were real brothers and sisters and suit property was their ancestral property to be partitioned among them---Defendant sought amendment of his written statement three years after its filing on the ground that in the meanwhile he had made payment to a third party to settle a suit for specific performance of agreement to sell regarding the suit property---Application for amendment of written statement was dismissed by Trial Court---Validity---Rights under O.XX, Rr.18 and 19 C.P.C. could not be limited to rights on corpus of property in physical sense alone but should also include rights in shape of claims or liabilities or payments made to upkeep the property or payments made to settle debt of predecessor-in-interest of defendant who already owned the property before it devolved on the children---All such payments constituted "property" and required to be apportioned at the time of partition---Sale of joint property could be made under S.4 of Partition Act, 1893, when it was not divisible---At the time of such sale all debts attached to the property were to be settled first--So if at the time of sale, debts/claims attached to the property could be considered, why the same principle could not be applied at the time of partition of the property--Claims could not be limited to third party only and one of the co-sharer could also have a claim on the property which was required to be settled or set off at the time of partition like other claims---As similar claims could be dealt with in a suit for administration, similarly claims/liabilities attached and fixed to property in question could also be apportioned between the parties in a suit for partition---Suit for partition included all liabilities/claims attached to the property which would be apportioned and divided as an equitable set off in the suit for partition---Concept of preliminary inquiry under O.XX, R.18 C.P.C. was just the right construct for such purpose---Amendment proposed in the application would not change nature of the suit and could, therefore, be allowed---Delay in filing of application did not arise as the claims/liabilities had arisen during pendency of the suit---Trial Court had not correctly applied the law and, therefore, order declining amendment of application suffered from an illegality---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court and amendments proposed by petitioner were allowed under O.VI, R.17 C.P.C.---Revision was allowed in circumstances.

Law relating to Partition by M. N. Das Sixth Edition Eastern Law House and PLD 1971 SC 162 ref.

Waqar A. Sheikh for Petitioner.

Ijaz Ahmad Chadhar for Respondents Nos. 1 to 3.

Imtiaz Ahmad Wahga for Respondent No.4.

CLC 2010 LAHORE HIGH COURT LAHORE 285 #

2010 C L C 285

[Lahore]

Before Ijaz-ul-Ahsan, J

ABDUL GHAFFAR----Petitioner

Versus

WAQAS HAFEEZ and others----Respondents

Civil Revision No.1046 of 2009, decided on 13th November, 2009.

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

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.8---Suit for possession---Family partition---No nexus or connection with disputed land---Effect---Plaintiff filed suit for possession through partition along with an application for temporary injunction claiming therein that the plaintiff being co-sharer in the disputed property could not be deprived of use of his share as he was entitled to and had a proprietary interest in every inch of the undivided Khata---Defendants contested suit on the ground that as a result of family partition the defendants were in possession of the disputed land out of total land in joint Khata for the last 25 years and that the plaintiff had no nexus or connection with the said partition---Trial Court dismissed application for restraining order against defendant---Appellate Court on appeal also dismissed the same---Validity---Record revealed that the suit was at preliminary stage---Right of the plaintiff in the disputed land and its extent had yet to be determined by recording of evidence---Defendants were in exclusive possession of the disputed property for the past 25 years on the basis of family partition---Prima facie case in favour of the plaintiff was not clearly made out---Defendants had invested huge sums of money in construction of CNG Station and installation of equipment and machinery thereon---Order restraining defendants from operating the CNG Station would cause inconvenience to them more compared to the plaintiff who had no nexus or connection with the disputed land for the past 25 years---Loss, if any, would be calculated in monetary terms---Ingredient of irrepairable loss was missing in the suit---Plaintiff had failed to show any illegality or material irregularity committed by subordinate courts in exercise of jurisdiction vested in them---Petition was dismissed by High Court.

Muhammad Muzaffar Khan y. Muhammad Yusuf Khan PLD 1959 SC (Pak) 9; Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514 and Aman Ullah v. Hameed Ullah and others 2006 YLR 856 ref.

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

----O. XXXIX, Rr.1 & 2---Injunctive relief-Equitable and discretionary in nature---All three ingredients have to be present at the same time---In case any one of the ingredients is missing, the court cannot grant temporary injunction.

----S. 8-Suit for possession---Family partition---Co-sharer in possession in a Khata has a right to alienate a specific piece of land in his possession and the transferee acquires the same rights as the transferor.

Rafique Javed Butt for Petitioner.

Mian Abdul Quddous and Muhammad Tahir Ch. for Respondents.

Date of hearing: 8th October, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 301 #

2010 C L C 301

[Lahore]

Before Umar Ata Bandial and Ijaz-ul-Ahsan, JJ

Messrs JILANI & CO.----Appellant

Versus

D.G., WILD LIFE AND PARKS and others----Respondents

I.C.A. No.828 and C.M. No. 2 of 2009, decided on 20th October, 2009.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Discrimination---Plea of---Scope---Petitioner filed constitutional petition against discrimination of having been refused the extention of lease agreement for another year which had to be awarded for the play land/kiddy ride inside Zoo on payment of 25% extra amount over and above the contract money---Department contested on the ground that they had not extended the agreement for play land/kiddy ride because these activities were causing harassment to the inhabitants of the Zoo and polluting its atmosphere---Single Bench of the High Court held that after having agreed to the terms mentioned in the agreement as well as the work order, and having acted upon them, the petitioner was estopped from objecting to the same---Petitioner could not impose himself on the department who could not be forced to extend the agreement for another period, against the advice of the Zoo Maintenance Committee---Validity---Petitioner had accepted the terms, he could not be allowed at this belated stage to turn around and take a diametrically different stance when his request for extention of the tenure for another year had been turned down---No vested right of further extention which, as clearly stated in the agreement, vested in the petitioner, extension was solely at the option of the department---Option to refuse extention was exercised for valid reasons---Petitioner had not brought on record any material that might even remotely suggest discrimination, favoritism or high-handedness on the part of government functionaries associated with the matter---Intra-court appeal was dismissed.

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

----S. 114---Review---Scope and object---Review has a very limited scope, it may be exercised in the event of discovery of new matter of evidence, which, after exercise of due diligence was not within the knowledge of the petitioner or could not be produced by him at the time when the order was made---Such power may also be exercised on account of some mistake or error apparent on the face of the record---Review proceedings cannot partake rehearing of a decided case---Party cannot be permitted to convert a review petition into an appeal---Main object of power of review is to enable a court to correct its own mistake or error, to prevent injustice.

PLD 1998 SC 363 and 2003 SCMR 1501 rel.

----S. 5---Condonation of delay---Sufficient cause---Proof---Application filed under S.5 of the Limitation Act, 1908---Applicant had not given sufficient cause for condonation of delay in filing of appeal---Only reason mentioned in application was that the applicant was out of station in connection with his business, therefore, could not file appeal within time---Such, hardly furnished sufficient cause for condonation of delay.

Syed Kazim Bukhari for Appellant.

CLC 2010 LAHORE HIGH COURT LAHORE 313 #

2010 C L C 313

[Lahore]

Before Ch. Naeem Masood, J

SAJJAD AHMAD----Petitioner

Versus

KHAN BROTHERS FLYING COACH SERVICE, MAILSI through Proprietor and 5 others----Respondents

Civil Revisions No.1024, 1025 of 2002 and Writ Petition No.659 of 2008, heard on 2nd June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Contempt of Court Act (LXIV of 1976), S.3---Demarcation of Khasra numbers---Non-compliance of court order---Contempt of court---Scope---Plaintiff filed suit for declaration to the effect that he had a wagon stand constructed over the land and defendants had no concern with his construction and the order passed by authorities about demolishing the construction of wagon stand in the year 1993 was illegal---Authorities made a statement that the disputed wagon stand was situated in a Khasra which did not belong to the department and therefore, it had no concern with it and after getting the demarcation of the concerned Khasra, they would not interfere in possession of the plaintiff---Trial Court dismissed the suit as withdrawn in the light of statement of the department---Plaintiff filed an application for contempt of court as the demarcation had not been followed to be made by either party---Trial Court decided the application in favour of plaintiff and attached the property of the department adjacent to. the disputed property till implementation of the order---Defendants filed appeals against the order of contempt of court passed by Trial Court, which was allowed and the Trial Court was directed to decide the contempt application afresh, after proper demarcation of the .disputed Khasras---Plaintiff asserted that the impugned order by Appellate Court was illegal as the Appellate Court itself could record the evidence and that trustworthy evidence of the plaintiff had not been properly appreciated---Validity---Appellate Court's direction that the demarcation to be made first of all was quite in consonance with the statement of the department in the suit in the year 1994 that demarcation should be sine qua non to the further relationship between the parties---Statement was accepted by the counsel of the plaintiff and the suit was. permitted to be withdrawn in the light of reciprocal commitments---Without resorting to the full-fledged demarcation of the disputed Khasras (adjacent to each other), it was impossible to determine the respective claims of the parties---No illegality or material irregularity had been shown to have been committed in the impugned order---High Court declined to interfere in the impugned order and in a constitutional petition altogether and dismissed the same with the direction to the Senior Civil Judge to direct the Senior Member, Board of Revenue, Punjab to constitute a committee of three responsible Revenue Officers headed by a Grade-19 Revenue Officer to conduct fair and meticulously transparent demarcation of the disputed Khasra numbers and to submit a report to that effect to the Senior Civil Judge within two months---Case should preferably be decided within four months---Order accordingly.

Mian Muhammad Jamal for Petitioner.

Muhammad Jafar Javaid Khan for Respondent No. 1.

Rao Muhammad Iqbal for Respondents Nos.2 to 6.

Zafar Ullah Khan Khakwani, A.A.-G.

Date of hearing: 2nd June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 328 #

2010 C L C 328

[Lahore]

Before Ch. Naeem Masood, J

MANZOOR----Petitioner

Versus

Mst. BAKHAN MAI KHOKHAR and others----Respondents

Civil Revision No.813-D of 2004, heard on 14th May, 2009.

(a) Islamic Law---

----Gift-Mutation-Contention of alleged donee (brother) was that his sister had made a gift of property left by their father in his favour---Suit by illiterate sisters alleging such gift to be result of fraud---Proof---Suit property was jointly inherited by brothers and sisters---Evidence of brother had not proved offer of gift and its acceptance---Evidence of brother regarding delivery was highly doubtful as suit property was joint---Brother had kept sisters in oblivion about correct position and satisfied them by paying nominal income of usufruct--Correct date, time and place of making gift had not been given by brother---Plea of brother that gift was made at the time of Qul Khawani of his father, but neither he nor his witnesses did state its correct date---Specific evidence of three ingredients of gift i.e. declaration of gift, acceptance of gift and delivery of possession was lacking---Very heavy burden lay on brother to prove beyond any shadow of doubt such ingredients, which he had failed to discharge---Statement of revenue authorities regarding entry of mutation was not confidence inspiring---Sisters were Pardahnashin ladies---Story of alleged gift was concocted and mutation of gift was result of fraud in collusion with revenue authorities---Suit filed by sisters was decreed in circumstances.

Aziza Begum v. Mst. Badnshahan and others 1994 MLD 1741; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Riasat Ali v. Mst. Sardar Bibi and 7 others 1994 CLC 475 rel.

(b) Islamic Law---

----Gift---Burden of proof---Very heavy burden would lie on donee to prove offer, acceptance and delivery of possession beyond any shadow of doubt.

Ch. Abdul Ghani for Petitioner.

Mian Habib-ur-Rehman Ansari for Respondents.

Date of hearing: 14th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 342 #

2010 C L C 342

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD SIDDIQ and 10 others----Petitioners

Versus

MEMBER (JUDICIAL-II) BOARD OF REVENUE, PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.12875 of 2000, heard on 29th April, 2009.

West Pakistan Land Revenue Rules, 1968---

----R. 19---Lambardar appointment of---Abandonment of such post by sitting Lambardar in favour of his son---Validity---Such post was not personal ownership of sitting Lambardar---Vacancy of Lambardar must be open to all members of estate and applications for filling up such post must be invited from all of them---Only suitable person to conduct as a Lambardar in village on basis of his best credentials must be appointed thereon.

Muhammad Shafi v. Syed Mushtaq Hussain Shah and others 1994 MLD 1882; Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003 SCMR 708; Haji Muhammad Ilyas v. Fazal Hussain and others PLD 1979 Lah. 876; Muhammad Yousaf v. Member Board of Revenue and 4 others 1996 SCMR 1581; Muhammad Aslam v. Syed Ahmad Naeem and others PLD 1992 SC 819; Raees Khan and 5 others v. Afridi Khan and 4 others PLD 1989 Peshawar 75; Bashir Ahmad v. Member Board of Revenue, Punjab, Lahore and 2 others. 2007 CLC 354 distinguished.

Sahibzada Mehboob Ali Khan for Petitioners.

Qamar-uz-Zaman Butt for Respondent No.2.

Date of hearing: 29th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 350 #

2010 C L C 350

[Lahore]

Before Ch. Naeem Masood, J

MANZOOR AHMAD and 9 others----Petitioners

Versus

GHULAM NABI and 5 others----Respondents

Civil Revision No.155-D of 2007, decided on 9th April, 2009.

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

----Art.129(g)---Best evidence must be produced and should not be withheld.

NS Vehkatagiri Ayyangar's case PLD 1949 PC 26 and Abdul Ghafoor v. Kallu 2008 SCMR 452 ref.

Sardar v. Gurdial AIR 1927 PC 230; Bajranglal v. Sheeta Ram AIR 1949 Cal. 457; Ramchand v. India AIR 1962 Bombay 92; Virendra v. Jagjivan AIR 1974.SC 1957; Bhagwan v. Bhishan AIR 1974 Punjab 7; Mst. Kamina v. Al-Amin 1992 SCMR 1715 and Iswar v. Harihar AIR 199 SC 1341 rel.

(b) Specific Relief Act (1 of 1877)---

----S. 8---Suit for possession on basis of title---Proof---Duty of plaintiff to establish his ownership without any shadow of doubt.

----Art. 117 & 118---Burden of proof on a party must be discharged unclinchingly and not with shaky evidence.

Malik Muhammad Ibrahim for Petitioners.

Sheikh Muhammad Faheem for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 360 #

2010 C L C 360

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD SALEH----Petitioner

Versus

BASHIR AHMAD and 9 others----Respondents

Civil Revision No.452-D of 1993, heard on 6th April, 2009.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.IX, R.13---Limitation Act (IX of 1908), Art.164---Application under S.12(2), C.P.C. to set aside ex parte decree---Ex parte decree was not challenged by first defendant before Trial Court, but was challenged unsuccessfully by second defendant---Dismissal of appeal filed against ex parte decree by second defendant---Application under S.12(2), C.P.C., by first defendant made to Appellate Court for setting aside ex parte decree after four years of its passing---Validity---Application for setting aside ex parte decree was barred by time---Ex parte decree was passed by Trial Court and not by Appellate Court---Appellate Court had nothing to do with fraud or collusion committed before Trial Court---Such issue must have been raised before Trial Court---Application under S.12(2), C.P.C., was dismissed in circumstances.

Mubarak Ali v. Fazal Muhammad PLD 1995 SC 564; Mst. Riaz Fatima v. Ch. Ijaz Ahmed 1979 YLR 2681; Muhammad Yousaf v. Noor Din 1999 YLR 2720; Province of Punjab. v. Muhammad Irshad 1999 SCMR 1555; Government of Sindh v. 'Ch. Fazal Muhammad PLD 1991 SC 197 and Secretary Ministry of Religious Affairs and Minorities v. Syed Abdul Majid 1993 SCMR 1171 rel.

Sh. Muhammad Rafiq Goreja for Petitioner.

Rao Muhammad Iqbal for Respondents.

Date of hearing: 6th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 369 #

2010 C L C 369

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

MUHAMMAD AFZAL----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ATTOCK and others----Respondents

Writ Petition No.424 of 2009, decided on 11th May, 2009.

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

----S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage---Physical and mental torture---Plaintiff filed suit for dissolution of marriage on the grounds of habitual cruelty and physical and mental torture---Defendant filed suit for restitution of conjugal rights---Trial Court decreed the suit of the plaintiff and dismissed suit of the defendant for restitution of conjugal rights---Defendant preferred appeal which was dismissed by the Appellate Court---Contention of the plaintiff was that the defendant had remarried and she had suffered mental torture---Remarriage was a ground for dissolution of marriage. under the Dissolution of Marriages Act, 1939 but by second marriage of the husband, a woman would go through such a mental torture that could not be appreciated by the male gender--Contention of the plaintiff that she had suffered mental torture at the hands of the defendant was proved---High Court declined to interfere in constitutional petition in the judgments of appellate as well as that of Trial Court---Constitutional petition was disposed of.

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

----S. 10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage---Plaintiff did not ask for her marriage to be dissolved on the ground of Khula---If the marriage was dissolved solely on ground of Khula, the situation would be different but the plaintiff having not asked for her marriage to be dissolved on ground of Khula, she was entitled to keep whatever she had acquired by reason of her Nikah with the defendant despite her decree for dissolution of marriage---High Court declined to interfere in constitutional petition---Constitution petition was disposed of accordingly.

----S. 10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage---Framing of extra issue---Contention of the plaintiff was that Trial Court had failed to frame an issue qua the return of things taken by the plaintiff at the time of her departure from marital abode despite defendant alleged that point--Defendant had failed to file an application for framing of an extra issue or at least to make its demand to be a part of the court record---High Court declined to interfere in constitutional petition.

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

----S. 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Constitution of Pakistan (1973), Act.199---Constitutional petition---Grounds of dissolution of marriage as grounds of Khula---Validity---Plaintiff had filed a suit for dissolution of marriage on the basis of Khula which was later on withdrawn by her---Under the Dissolution of Muslim Marriages Act, 1939 as many as ten grounds had been given for dissolution of Muslim marriage---Had the intent of the Legislature been to treat these grounds as grounds for Khula, said Act would have been repealed a long time back---High Court declined to interfere in constitutional petition---Constitutional petition was disposed of.

PLD 2002 SC 273 rel.

Basharatullah Khan for Petitioner.

Habib Anwar Khan for Respondent No.3.

CLC 2010 LAHORE HIGH COURT LAHORE 380 #

2010 C L C 380

[Lahore]

Before Asad Munir, J

Mst. PARVEEN AKHTAR----Petitioner

Versus

MUHAMMAD ADNAN and others----Respondents

Writ Petition No.280 of 2009, decided on 28th October, 2009.

(a) Islamic Law---

----Inheritance---Insurance policy, amount of---Denial of nominee under insurance policy to give legal heirs of deceased their due shares in such amount---Validity---Nominee for being a trustee of such amount could not appropriate same for his own use/benefit, but would be bound to distribute same among legal heirs as per their entitlement.

PLD 1991 SC 731 ref.

Mst. Omat-ul-Habib and others v Mst. Musarrat Parveen PLD 1974 SC 185; Messrs Latif Ibrahim Jamal v. Controller of Estate Duty 1989 P.T.D. 1027 and Mrs. Shaista Younas Khan and others v. Mrs. Asia Khatoon and others PLD 1995 SC 560 fol.

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

----S. 151---Subsequent events, taking notice of---Inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation.

Raja Israr Ahmad Abbasi for Petitioner.

Ch. Riaz Ahmad for Respondents Nos. 1 and 2.

Maqsood Hassan for Respondents Nos.3 to 5.

CLC 2010 LAHORE HIGH COURT LAHORE 386 #

2010 C L C 386

[Lahore]

Before Ijaz-ul-Ahsan, J

Mst. ROBINA SHAMSHAD- --Petitioner

Versus

MUHAMMAD HAFIZ and another----Respondents

Writ Petition No.13830 of 2009, decided on 13th November, 2009.

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

----S. 5, Sched. & S.10(4), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage---Failure of pre-trial reconciliation efforts between spouses---Plea of husband that marriage could not be dissolved without returning gold ornaments in addition to Haq Mehr received by wife during marriage---Framing of issues by Family Court instead of decreeing suit on failure of such efforts---Validity---Proviso to S.10(4) of West Pakistan Family Courts Act, 1964 was in nature of non obstante clause having overridden sequential order given therein---Going beyond language of such proviso and reading other matters therein would defeat and nullify its intent---Court on failure of such efforts was bound to decree suit and restore to husband Haq Mehr received by wife in consideration of marriage at time of marriage---Matter of dissolution of marriage could not be held up till outcome of proceedings for recovery of gold ornaments---High Court set aside impugned order for being contrary to dictates of law---Principles.

N.A. Butt for Petitioner.

Mian Tariq Manzoor for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 393 #

2010 C L C 393

[Lahore]

Before Ijaz-ul-Ahsan, J

ABDUL RASHEED----Petitioner

Versus

ABDUL LATEEF----Respondent

Civil Revision No.1985 of 2009, decided on 5th November, 2009.

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

----S. 8---Suit for possession---Plaintiff having sale-deed in his favour regarding suit house alleged defendant to be in possession thereof as his licensee---Defendant's plea was that two. houses including suit house were purchased with sale proceeds of joint land belonging to deceased father of parties; and that on account of family settlement, suit house fell into share of defendant and he took over its possession as its real owner, whereas plaintiff was its ostensible owner---Proof---Oral and documentary evidence produced by plaintiff showed that after purchasing suit house, he got same vacated from its tenant and allowed defendant to use same on temporary basis till such time he constructed his own house---Defendant could not prove that sale proceeds of land left by his father was retained by plaintiff, who utilized same for purchasing both houses including suit house---Defendant could not prove that funds used to purchase suit house were provided by or belonged to him---Defendant could not explain retention of title document of suit house by plaintiff without any challenge or protest for about 35 years---Defendant could not support his plea that plaintiff had fraudulently transferred suit house in his name and that his title deed represented only Benami transaction---Preponderance of oral and documentary evidence was in favour of plaintiff---Suit was decreed in circumstances.

Shaukat Nawaz v. Mansab Dad and another 1988 SCMR 851; Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCMR 2029 and Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 ref.

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

----S. 115 & O.XIV, R.1---Revision---Limitation---Question of Benami transaction and family settlement-Non-framing of issues regarding such questions by Trial Court---Validity---Petitioner all along had an opportunity to seek framing of additional issues, which he had never availed---Nigh Court declined to allow such plea to be raised at such belated stage.

Ch. Muhammad Iqbal for Petitioner.

Muzammal Akhtar Shabbir and Kh. Nasir Mehmood Butt for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 400 #

2010 C L C 400

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

PEER BAKHSH----Petitioner

Versus

HAFEEZ ULLAH and 2 others----Respondents

Civil Revision No.904/D of 2009, decided on 29th October, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Revision---Scope---Trial Court after framing of issues and recording of evidence of both the parties dismissed the suit of the plaintiff---Appellate Court also dismissed appeal filed by the plaintiff---Validity---Trial Court as well as Appellate Court after best appraisal of evidence, decided the case against the plaintiff---Trial Court after discussing each and every aspect of the case, after appraisal of evidence in detail dismissed suit of the plaintiff---Findings of the two courts below on facts and question of law were concurrent, no misreading or non-reading of evidence was pointed out by the counsel for the plaintiff---Where findings of Trial Court and lower Appellate Court were concurrent, howsoever, erroneous those findings could be, could not be interfered with by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless such findings of two courts below suffered from jurisdictional defect.

2007 SCMR 926; 2007 SCMR 870; PLD 2005 SC 418; 1994 SCMR 818; 2003 SCMR 83; 2003 SCMR 286 and PLD 1988 SC 625 ref.

Mian Arshad Ali for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 405 #

2010 C L C 405

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUREED ABBAS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, TOUNSA SHARIF DISTRICT D.G. KHAN and 2 others----Respondents

Writ Petition No.7740 of 2009, decided on 15th October, 2009.

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

----S. 5, Sched., Ss.13 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower---Execution of decree---Determination of rate of gold---Suit of plaintiff was concurrently decreed by the Family Court and Appellate Court---Defendant had admitted decree to the extent of 10 Tolas gold which decree was upheld upto Supreme Court---Only dispute was about the rate of gold at what rate that decree should be executed---Claim of the defendant was that marriage between the parties having been solemnized on 26-8-2002, rate of gold should be that which was at the time of solemnization of marriage on 26-8-2002, while Executing Court had fixed the rate as Rs.29,000 per tola, which was the rate at the time of execution of decree---Appeal filed by the defendant was dismissed by the Appellate Court which upheld the order passed by the Executing Court, whereby rate of gold was determined at the rate which was prevailing at the time of execution of decree---No interference in concurrent findings of facts of two courts below was called for in constitutional jurisdiction of High Court---Constitutional petition having been filed just to prolong the matter, petition was dismissed.

Keizer Heat Khan Pinion for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 417 #

2010 C L C 417

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD SIDDIQUE and 2 others----Petitioners

Versus

Mst. HANEEFAN BIBI and 2 others----Respondents

Civil Revision No.589 of 1995, heard on 3rd June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff filed suit for declaration that her husband had gifted suit plot to her through an agreement and ever since she had been owner in possession of house constructed on the suit plot---Testimony of the marginal witnesses read with statement of the plaintiff, had unequivocally proved that gift was made in favour of the plaintiff, which was accepted by her and possession was delivered to her---Nothing was in the cross-examination to shake the testimony of those witnesses---Document as a whole established that it was a Hiba-bil-Ewaz for all intents and purposes---Record had established that the plaintiff remained in possession of the house in dispute throughout that period---Plaintiff had unshakenably established that the ingredients of gift were complete---Both courts below had rightly decreed suit as no illegality or material irregularity had been demonstrated to have been committed in the concurrent findings of the courts below---Petition was dismissed.

Raja Ali Shah v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Rasheedur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418; Aurangzeb through. Legal Representatives and others v. Muhammad Jafar and another 2007 SCMR 236; State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 and Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 ref.

Ch. Abdul Ghani for Petitioner.

Date of hearing: 3rd June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 429 #

2010 C L C 429

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

PROVINCE OF PUNJAB through District Collector, Vehari and 3 others----Petitioners

Versus

Messrs BUREWALA COTTON COMPANY, BUREWALA through Muhammad Ayub and 8 others----Respondents

Civil Revision No.583/D of 1995, heard on 19th May, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Revision---Scope---Suit for declaration filed by the plaintiff was decreed by the Trial Court---Being aggrieved of said judgment and decree defendants preferred appeal before the Appellate Court, which was dismissed---Validity---Impugned judgments and decrees had revealed that conclusion arrived at by both the courts below were elaborate and were based on cogent reasons---No misreading or non-reading of evidence or any other legal infirmity had been pointed out by the counsel for the defendants with judgments rendered by the courts below warranting interference by High Court in its revisional jurisdiction.

Aurangzeb through Legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 ref.

Mian Abbas Ahmad, Addl. A.-G., Punjab for Petitioners.

Syed Kabeer Mahmood for Respondents.

Date of hearing: 19th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 436 #

2010 C L C 436

[Lahore]

Before Syed Mansoor Ali Shah, J

Haji MAQSOOD AHMED----Petitioner

Versus

LESCO through General Manager, Shalimar Division, Lahore and 3 others----Respondents

Civil Revision No.1745 of 2009, decided on 22nd October, 2009.

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

----Ss. 24(1), 26-A & 54-C---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Charge of energy-Non-payment of---Effect---Plaintiff filed suit for declaration to the effect that detection bill issued by authorities had to be issued under S.26-A of Electricity Act, 1910 and not under S.24 and therefore, provision of S.54-C of the said Act did not apply---Application under O.XXXIX, Rr.1, 2 had also been filed---Trial Court dismissed application of the plaintiff---Appellate Court on appeal, also dismissed the same---Validity---Detection bill had been served on the plaintiff which was charge of energy assessed by the authorities---Authorities had a right to disconnect electricity if the plaintiff neglected to pay any charge for energy---High Court declined W interfere in revisional jurisdiction and petition was dismissed.

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

----Ss. 24(1), 26-A & 54-C---Detection bill---Computation of---Application of relevant provisions of Electricity Act, 1910---Scope---Section 26-A of the Electricity Act, 1910 deals with the computation of the detection bill and is not per se a recovery provision and provides parameters to work out charge of energy/detection bill in case the measuring apparatus in the opinion of the licensee remained disconnected---Once the charge of energy is calculated, S.24(1) of Electricity Act, 1910 comes into play and so does S.54-C.

Khalid Nawaz Ghuman for Petitioner.

Syed Ali Raza Rizvi for Respondents.

Rabyar, S.D.O., LESCO, Bilal Colony Sub-Division.

CLC 2010 LAHORE HIGH COURT LAHORE 444 #

2010 C L C 444

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

AKBAR----Petitioner

Versus

MUHAMMAD IKHTIAR and 3 others----Respondents

Writ Petition No.8416 of 2009, decided on 4th November, 2009.

(a) Contract Act (1X of 1872)---

----S. 128---Surety, liability of---Scope---If principal fails to fulfil his obligations, the surety steps into the shoes of principal to do that---Surety is as responsible as judgment-debtor for payment of decretal amount.

Rafique Hazquel Masih v. Bank Alfalah Ltd., and other 2005 SCMR 72 and Messrs State Engineering Corporation Ltd v. National Development Finance Corporation and others 2006 CLD 687 rel.

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

---S. 128---Civil Procedure Code (V of 1908), O.XXI, R.41 & XXXVII, R.1---Constitution of Pakistan (1973), Art.199---Constitutional petition---Surety, liability of---Execution of decree--Suit was decreed in favour of plaintiff and during execution of decree, property owned by petitioner was attached---Petitioner contended that first proceedings should be taken against judgment-debtor---Validity---Petitioner stood guarantor/surety for payment of amount of decree and submitted surety bond before Trial Court for payment of amount, which was decreed against defendant---Executing Court correctly rejected application of petitioner and passed order for depositing decretal amount before considering objection petition---High Court declined to interfere in the order passed by two Courts below---Petition was dismissed in circumstances.

Asghar Abbas v. Muhammad Ramzan and 4 others 1993 CLC 1313; Mst. Hamida Begum and 6 others v. The Additional District Judge, Lahore and 5 others 1986 CLC 1697 and National Bank of Pakistan v. S.R. Rehmatullah and another PLD 1970 Lah. 330 distinguished.

Mian Muhammad Akram for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 462 #

2010 C L C 462

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Syed IBRAR HUSSAIN SHAH----Petitioner

Versus

SECRETARY MINES AND MINERALS DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.5721 of 2009, decided on 28th October, 2009.

Punjab Mining Concession Rules, 2002---

----R. 42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease, cancellation of---Condemned unheard---Review of order---Powers of Provincial Government---Scope---Petitioner was awarded mines lease for a period of two years but authorities cancelled the same prematurely---Plea raised by petitioner was that authorities did not have any power under Punjab Mining Concession Rules, 2002, to review their order---Validity---Competent authority wrongly reviewed their order as there was no power under Punjab Mining Concession Rules, 2002, vested with Provincial Government to review its earlier order without issuing any show-cause notice to affected party---Petitioner was condemned unheard, who had very valuable rights in the work leased out to him for which he almost had completed major portion of lease---All of a sudden grant of lease to any other contractor for same work without hearing affected party could not be permitted under any law---Order passed by authorities cancelling lease in favour of petitioner was set aside and petitioner was directed to continue to work on site till completion of his lease---Petition was allowed accordingly.

2004 CLC 1525; Ijaz Sarwar v. Nadeem Farooq, 2006 CLC 1381; Hafiz Ahmad v. Rent Controller, Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 ref.

Abdul Rashid Sheikh for Petitioner.

Aurangzeb Khan, A.A.-G.

Shakeel Javaid Chaudhary for Respondent No.5.

Hafiz Karim Bakhsh, Deputy Director Mines and Mineral, D.G. Khan.

CLC 2010 LAHORE HIGH COURT LAHORE 478 #

2010 C L C 478

[Lahore]

Before Nasim Sikandar, J

Miss SAIMA BUKHARI and another----Petitioners

Versus

DISTRICT COORDINATION OFFICER, RAJANPUR and 3 others----Respondents

Writ Petitions Nos.1192 of 2004, 1409 of 2007, 7212 of 2008 and C.M.As. Nos. 232/07, 447/408 of 2008 and 479 of 2009, decided on 9th June, 2009.

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

----Ss. 12(2) & 114---Constitution of Pakistan (1973), Art.199---Setting aside of judgment---Principle---Judgment passed by High Court in exercise of constitutional jurisdiction was assailed by applicants under S.12 (2) C.P.C. on the ground of it being result of fraud and misrepresentation---Applicants contended that if judgment passed by High Court could not be set aside under S.12(2), C.P.C., then their applications might be converted into review applications---Validity---Challenge under S.12(2), C.P.C. to validity of judgment and decree or order on the plea of fraud, misrepresentation or want of jurisdiction could be made only by way of application to same forum---As all facts and documents were part of record and were before High Court, the applicants could not be heard in complaint that the order was obtained by fraud or misrepresentation---High Court specifically referred to a number of documents on the basis of which it felt satisfied and accordingly made a direction to the authority concerned to exercise his authority properly---All facts alleged by applicants and documents relied upon by them were available on record at the time of making of order passed in Constitutional petition, therefore, High Court declined to even convert applications into review applications as the same would also not in accordance with law---High Court declined to interfere in the judgment already passed in exercise of Constitutional jurisdiction---Application was dismissed in circumstances.?

Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 46; Miss Rizwana Andleeb v. Principal, Chandka Medical College Larkana and another 2003 SCMR 1944; Miss Dur-e-Sameen and another v. Selection Committee through Chairman. Balochistan Public Service Commission, Quetta and 4 others 1997 SCMR 270; Syed Dawood Shah v. Adnan Kamal and another 2002 CLC 413; Mst. Jameela Kausar v. Board of Intermediate and Secondary Education and others 2003 SCMR 153; Rahat Saeed Bukhari v. Aisha Hameed Qadir and another 1997 MLD 218 (SCAJ&K); Muhammad Alamgir and others v. Muhammad Iqbal and others 1983 CLC 2919; Mubasher Ahmad v. Mian Tahir Raza and others PLD 2002 SC 270; Mst. Saadat-ur-Rehman v. Muhammad Zaarat Khan and 3 others PLD 1998 Pesh. 1; Shah Hanif and 20 others v. Col. Yar Muhammad Khan and 7 others 2000 MLD 1740 and Subedar Muhammad Hussain v. Mst. Shah Begum and others 1990 MLD 2100 rel.

(b) Review---

----Power of review is to enable correction of errors and review in no case should amount to rehearing on merits.?

Ch. Muhammad Javaid Aslam for Petitioner (in Civil Miscellaneous No.232 of 2007).

Amin-ud-Din Khan for Petitioner (in Writ Petition No.1192 of 2004).

Muhammad Suleman Khan for Petitioner (in Civil Miscellaneous Nos.477 of 2008 and 479 of 2009).

Amin-ud-Din Khan for Petitioner (in Civil Miscellaneous No.408 of 2008).

Ch. Muhammad Javaid Aslam for Petitioner (in Writ Petition No.1409 of 2007).

Amin-ud-din Khan for Respondents Nos.4 and 5 (in Writ Petitions Nos.1409 of 2007 and 7212 of 2008).

Muhammad Suleman Khan for Petitioner (in Writ Petition No.7212 of 2008).

CLC 2010 LAHORE HIGH COURT LAHORE 488 #

2010 C L C 488

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

ALLAH BAKHSH----Petitioner

Versus

MUHAMMAD BAKHSH and 5 others----Respondents

Civil Revision No.867 of 2009, decided on 20th October, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Temporary injunction---Ingredients---Failure to prove---Effect---Plaintiff filed suit for permanent injunction, restraining defendants from installing electric pole in the land of the plaintiff---Application under O.XXXIX, Rr.1, 2, C.P.C. had also been filed for temporary injunction---Contention of the plaintiff was that electricity poles and transformer in front of his house were got installed on the payment made by him and he had become exclusive owner of the same therefore without his consent further supply could not be given to the defendants---Trial Court disposed of case of the plaintiff by observing that defendants would be entitled to install new pole of electricity subject to payment of compensation to plaintiff---Appellate Court on appeal dismissed the same filed by plaintiff and allowed the appeal filed by the private person (respondent)---Validity---All the installations were belongings of the Electric Company/authorities, therefore, the version of the plaintiff that he was exclusive owner of transformer etc.; had rightly been repelled by the Appellate Court---Electric Supply Company had authority to install the poles for supply of electricity, which was basic necessity of life nowadays, to' every citizen---Plaintiff could not establish as to what irreparable loss would be caused to him if defendants would install the electricity poles in his land---Installation of poles would not deprive plaintiff from the piece of land if these were installed on his land for supply of electricity to the residents of the surrounding area nor the plaintiff would suffer any inconvenience---High Court declined to interfere and petition was dismissed in limine.

Malik Fida Hussain Khokhar for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 494 #

2010 C L C 494

[Lahore]

Before Mian Saqib Nisar and Iqbal Hameed-ur-Rehman, JJ

Syed MUHAMMAD MURTAZA ZAIDI----Petitioner

Versus

MOTOR REGISTRATION AUTHORITY and others----Respondents

Writ Petitions Nos.8886, 13426, 14698, 14699, 13723, 16048, 16049, 15685, 15743, 15723, 15737, 15588,15586, 15974, 15535, 15563, 15564, 15491, 15173, 15170, 15780, 15534, 15174, 15175, 15350, 15180, 15349,15347, 15346, 15348, 15351, 15.172, 15171, 16028, 16027, 15019, 16023, 16034, 16050, 16039, 16040, 16070, 16071, 16079, 16075, 16077, 16186, 16339, 16494, 16493, 16480, 16427, 16490, 16691, 16224, 16202, 17450, 17459, 17509, 17140, 17614, 17615, 17611, 16872, 16875, 16876, 16905, 16906, 16907, 16873, 16946, 16952, 16957, 16958, 16959, 16960, 16987, 17044, 17704, 17692, 17698, 17533, 17095, 17155, 17112, 17559, 17076, 17075, 17073, 17103, 17089, 17157, 17079, 17083, 17085, 17084, 17367, 17366, 17365, 17364, 17368, 17381, 17380, 17141, 17411, 17412, 17395, 17394 17393, 17392, 17410, 17214, 17389, 17413, 17204, 17205, 17206, 17207, 17296, 17297, 17305, 17215, 17243, 17241, 17277, 17300, 17270, 17257, 17295, 17301, 18540, 18539, 18541, 18428, 18246, 18255, 18257, 18258, 18187, 16530, 16531 16532, 16549, 16551 16566, 16581, 16580, 16582, 17784, 17785, 17786, 17787, 17797, 17801, 17829, 17840, 17854, 17855 of 2008, 192, 193, 194, 195, 196, 199 of 2009, 16642, 16683, 16684, 16685, 16697, 16707, 16713, 16724, 16812, 16813, 16829, 17782, 17783 of 2008, 60, 41, 910, 2672, 3314, 4059, 5769, 5771, 5775, 6346, 7076, 7077, 5700, 7235, 8701, 11363, 11248, 11981, 11980, 12074, 12004, 12504, 13684, 13999, 13959, 14658, 14660, 15734, 15733, 17953, 12689, 6513, 18941, 18960, 19290 of 2009, 17363 of 2008, 17449, 22153, 1051, 6871, 6872, 6873, 6874, 22986, 23007, 23009, 22692, 23008 and 20787 of 2009, decided on 24th December, 2009.

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

----Arts. 189 & 201---Judgment of equal Bench---Scope---Earlier judgment of equal Bench in High Court on the same point is binding upon second Bench---If a contrary view has to be taken, then request for constitution of larger Bench should be made---Points which have been settled are binding.

Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and The Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296 rel.

(b) Punjab Finance Act (I of 2008)---

----S. 6---Tax on imported luxury vehicles---Applicability---Retrospective effect---Legislative intent---On account of lucid, express, unambiguous language, which has categorically provided a cut-off date, the intention of legislature is very much clear; that the imposition is vividly, consciously, lambently retrospective in nature and also affects past and closed transaction and even any alleged vested right---All those vehicles, which have been imported into Pakistan by given date, notwithstanding registration or otherwise, are liable to tax.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 rel.

----S. 6---Constitution of Pakistan (1973), Arts.25, 70 (4), 77, 141, 142(a), 199 & Fourth Schedule, Sr. No.52---Constitutional petition---Tax on imported luxury vehicles---Legislative power of Province---Scope---Provincial Government imposed tax on vehicles on the basis of capacity---Plea raised by petitioners was that such tax could not be imposed in the garb of "luxury" and imposition of such tax was covered by Federal Legislative list---Validity---it was the use and enjoyment of a vehicle having engine of a particular power, which was subject to tax and such tax could on the production capacity of any plant, machinery etc. so as to attract entry No. 52 of Federal Legislative list---High Court declined to hold that engine produced energy to run a vehicle and the same had brought the matter within the connotation of "production" appearing in entry No. 52 of Federal Legislative list of the Constitution---Petitioners failed to make out a case of discrimination at all of any nature as all vehicles of given engine power, from a particular date were subjected to tax and the same as across the board---Capacity criterion in such behalf constituted a class itself which was not shown to be based on any irrational criteria rather the use and enjoyment of vehicles having bigger engine force were subject/object of tax, which was rationally founded notwithstanding model and brand of vehicle---Petition was dismissed in circumstances.

WAPDA and others v. Mian Muhammad Riaz and others PLD 1995 Lah. 56; Sayphire (Pvt.) Ltd. and others v. Government of Sindh, PLD 1990 Kar. 402; Rahimullah Khan and others v. Government of N.-W.F.P 1990 CLC 550; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026, Charanjit Lal Chowdhury v. The Union of India and others AIR 1951 SC 41; Hirjina and Coi. v. Islamic Republic of Pakistan and another 1993 SCMR 1342; Amanat. Khan v. Motor Registration Authority, Chakwal and 2 others 1999 CLC 1597; Messrs Syed Bhais (Pvt.) Ltd. through Company Secretary v. Government of the Punjab, Excise and Taxation Department through Secretary and another PLD 2000 Lah. 20; Messrs Raja Industries Ltd. v. Government of Punjab and others 1999 MLD 3141 and Elahi Cotton Mills Limited. v. Federation of Pakistan PLD 1997 SC 582 ref.

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

----S. 25---Discrimination, principle of---Applicability---Wisdom of legislature as to why a particular item has been taxed and not the other cannot be gone into by court, until a case of discrimination has been made out.

Fauji Foundation and others v. Shamimur Rehman PLD 1983 SC 457 rel.

Taffazul H. Rizvi, Imtiaz Rashid Siddiqui, Muhammad Azhar Siddique, Zia Haider Rizvi, Ms. Najma Rasheed, Shahid Mahmood Sheikh, Shahbaz Butt, Salman Akram Raja, Ras Tariq Ch., Fozi Zafar, Shahid Azeem, Ch. Anwar-ul-Haq, Muhammad Kashif Chaudhry, Arshad Malik, Nasar Ahmad, Asjad Saeed, Hafeez-ur-Rehman, Labeeb Zafar Bajwa, Muhammad Ashraf Joya, Rana Muhammad Zahid, Atif Amin, Malik Ahsan Mehmood, Kamran Masood Mirza, Malik Asad Rasool Khan, Jawad Hassan, Sh. Muhammad Umar, Khurram Hussain, Muhammad Anwar Khokhari, Mirza Abbas Baig, Pir. S.A. Rashid, Ijaz Ahmad Awan, Nouman Mushtaq Awan, Kornai Malik Awan, Mian Waheed Nazir, Muhammad Arif Mehdi, Ata-ul-Mustafa Rizvi, Moazim Ali Shah, M. Iqbal, Zulfiqar Ali Khan, Barrister Ahmad Pervaiz, Muhammad Javed Arshad and Sher Zaman Khan for Petitioners.

Muhammad Shan Gul, A.A.-G., Malik Zubair Khalid, Standing Counsel, Zaka-ur-Rehman, Addl. A.-G. along with Farrukh Sher Gondal, Excise and Taxation Officer Motor Registering Authority for Respondents.

Dates of hearing: 3rd and 9th December, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 513 #

2010 C L C 513

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Syed IQBAL HUSSAIN SHAH and 10 others----Appellants

Versus

MUHAMMD NASEEM and another----Respondents

Regular Second Appeal No.53 of 2006, decided on 5th October, 2009.

Civil Procedure Code (V of 1908)---

----Ss. 148 & 149---Court-fee---Deficiency---Extension of time---Scope---Plaintiffs filed suit for recovery of an amount of Rs. 9,98,000 against defendants to the effect that predecessor-in-interest of defendants being owner was doing business of cotton with the plaintiffs and owed an amount of Rs. 998,000 to the plaintiffs which was acknowledged by him in the year 1998---Defendants contested suit on the grounds of cause of action and preparation of forged, collusive and bogus document with signature of the deceased---Trial Court decreed suit of the plaintiffs---Appellate Court on appeal passed conditional order subject to payment of court fee of Rs.15,000 upto next date of hearing---Application before the fixed date of hearing was moved by appellants which was dismissed and appeal was also dismissed for non-payment of court-fee-Validity-Appellate Court first time on 9-8-2006 extended time' to make up deficiency of court fee upto 14-9-2006---Before expiry of extended time, one day earlier, the appellants submitted an application for extention of time to make up the deficiency of court-fee-Appellate Court could extend time further for making up the deficiency of court fee of Rs.15,000---Respondent's claim that appeal was time-barred was not discussed in the judgment by Appellate Court---High Court allowed one opportunity to appellants to make up the deficiency of court fee and remanded the case to Appellate Court for decision afresh with direction to both parties to appear before Trial Court on 5-11-2009---Appellants had voluntarily offered to deposit Rs.20,000 as cost in the account of the dispensary of High Court Bar Association before appearing before lower appellate court on 5-11-2009---Appeal was allowed by High Court.

PLD 1984 SC 289 and 2003 CLC 158 ref.

Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289; Sultan Ahmad and others v. Khuda Bux and others, 1986 SCMR 1005; PLD 1990 SC 42; PLD 1961 SC 882 and PLD 1981 SC 489 rel.

Muhammad Ameer Bhatti for Appellants.

Rana Kashif Haneef for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 524 #

2010 C L C 524

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUNAWAR HUSSAIN KHAN----Petitioner

Versus

PROVINCE OF PUNJAB through E.D.O. Education, Multan and 4 others----Respondents

Civil Revision No.908 of 2009, decided on 27th October, 2009.

Civil Procedure Code (V of 1908)---

---O.XXXIX, Rr.1, 2 & S.115---Dismissal of stay application---Revision--Scope---Both the Trial Court and Appellate Court had concurrently dismissed stay application---Trial Court on appraisal of material on record had considered the matter from all angles keeping in view the factors relating to grant and refusal of temporary injunction---Trial Court had advanced sound, cogent and sagacious reasons in support of its order---Appellate Court upheld the order passed by the Trial Court, expressing valid reasons---Civil revision had a limited scope---High Court could not interfere in revisional jurisdiction with the concurrent findings on the question of fact determined by the two courts below---Counsel for the petitioner had failed to point out any misreading and non-reading in the order passed by two courts below---Mere assertion that impugned judgment and order suffered from misreading and non-reading of material on record without pinpointing or substantiating the same from the record, the concurrent finding of fact could not be disturbed by High Court in exercise of its revisional jurisdiction---Petitioner, had badly failed to point out any illegality or irregularity in the decision concurrently arrived at by the Trial Court as well as by the lower Appellate Court---High Court declined interference in revision in circumstances.

Muhammad Anwaar for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 528 #

2010 C L C 528

[Lahore]

Before Ch. Naeem Masood, J

NOOR MUHAMMAD and 17 others----Petitioners

Versus

RAHIM BAKHSH and 33 others----Respondents

Civil Revision No.4 of 1996, heard on 9th July, 2009.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Maintainability---Scope---Application under S.12(2), C.P.C. challenging the judgment and decree of the Appellate Court wherein the judgment and decree passed by the Trial Court was set aside and case was remanded to the Trial Court for proceeding afresh---Filing of application under S.12(2), C.P.C. before the Appellate Court was challenged having been filed in the wrong forum---Validity---Application under S.12(2), C.P.C. had rightly been filed before the Appellate Court and the judgment and decree of the Trial Court had merged in the judgment and decree of the Appellate Court---Remand of a case to the Trial Court to try afresh the application under S.12(2), C.P.C." on the ground that the final order was passed by the Trial Court, the same having been affirmed by the Appellate Court in appeal, would tantamount to travesty of justice.

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

----S. 12(2)---Application filed under S.12(2), C.P.C. alleging there-under the commission of fraud and misrepresentation---Scope---Held, fraud and misrepresentation had been committed by the party by its failure to implead co-owner of the disputed property as a party in the suit along with Province of Punjab as a party---Party was bound to implead the co-owner in the suit which it did not do, and thus, obtained a decree against the Government of the Punjab only---High Court dismissed the revision petition and upheld the judgment and decree of the Appellate Court and directed the Trial Court to expedite the matter.

----S. 115---Revision---Joint issues, disposal of---Validity---Disposal of joint issues was not an illegality which was susceptible to be challenged in revision.

Warraich Zarai Corporation v. F.M.C. United (Pvt.) Limited 2006 SCMR 531 rel.

Syed Izhar-ul-Haq Gillani for Petitioners.

Mazhar Jawed Qureshi for Respondents.

Date of hearing: 9th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 535 #

2010 C L C 535

[Lahore]

Before Ch. Naeem Masood, J

Mst. SARDAR----Appellant

Versus

IMAM BAKHSH and 6 others----Respondents

First Appeal from Order No.111 of 2000, heard on 8th June, 2009.

Specific Relief Act (I of 1877)---

---Ss. 42 & 12---Civil Procedure Code (V of 1908), O.XVI, R.14---Non-summoning of court-witnesses---Effect---Plaintiff being widow of the deceased, filed a suit for declaration, claiming thereunder to be entitled to her share in the property as 1/4th, in the year 1983---Defendants admitted the claim of the plaintiff during proceedings of the suit, and made a statement that the plaintiff was entitled to get 16 Kanals of land from the property in dispute relating to new Khata and her suit regarding the remaining land be dismissed---Trial Court dismissed suit of the plaintiff---Plaintiff then filed suit for specific performance in the year 1991 which was based on statement of compromise made by defendants which was dismissed in default---Restoration application of the suit was filed by plaintiff in the year 1995 which was also dismissed in 1996---Appeal filed by the plaintiff was dismissed in default in 1996---Validity---Judgment and decree passed by Trial Court in the year 1983 was based upon technicality i.e. mere non-clarity of Khata number, whereas in substance the suit had been compromised to the extent of 16 Kanals i.e. 1/4th share of inheritance of the widow from the property left by her deceased husband---Matter should have been resolved by the Trial Court by summoning a concerned Revenue Officer as a court-witness by exercising power under O.XVI, R.14, C.P.C. which having not been done the lady stood deprived of her right of the disputed land for the last 35 years---High Court set aside judgment and decree passed by Trial Court in the year 1983 and remanded the case back to Trial Court for decision on specific issue of Khasra number of the land of the deceased and directed the Trial Court to call for the Executive District Officer (Revenue) as a court-witness to explain from the Revenue Record the Khata, Khewat and Khasra numbers etc. of the disputed land left by the deceased---High Court further directed the Trial Court to complete such exercise within two months and should direct the Executive District Officer (Revenue) to get the decree implemented within a further period of one month including the choice of land by the plaintiff---Intrinsic value of mesne profit for 35 years was also directed to be paid to the plaintiff---Both the Trial Court and the Executive District Officer (Revenue) were directed that they should submit compliance report of the order of the High Court to Chief Justice of Lahore High Court through the Additional Registrar (Judicial) at its principal seat.

Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111; Muhammad Anwar Khan and 5 others v. Riaz Ahmad PLD 2002 SC 491; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Nasir Hamad v. Abbasi Begum 2003 SCMR 1553 and Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154 ref.

Nemo for Appellant.

Mian Muhammad Mashahid Asghar for Respondents.

Date of hearing: 8th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 543 #

2010 C L C 543

[Lahore]

Before Ch. Naeem Masood, J

PROVINCE OF PUNJAB through District Collector, Sahiwal and another----Petitioners

Versus

ZAFAR MAHDI and another----Respondents

Civil Petition No.1463-D of 1994, heard on 23rd June, 2009.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Plaintiffs who were owners of shop in question rented out same to a corporation---Said tenant/corporation having been declared illegal by the Government, plaintiffs did not receive any rent of the corporation and shop was sealed and the plaintiff never received any rent of the shop since then---Till the shop was not sealed the rent was paid to the plaintiff and they continued paying the property tax to the Excise Department---Plaintiffs after seal of the shop having not received the rent, were not liable to pay tax---Demand notice issued to the plaintiffs, was illegal and invalid---No illegality or material irregularity having been shown in impugned judgments and decrees of the courts below, revision petition was dismissed.

Lyallpur Cotton Mills Ltd. v. The Commissioner, Sargodha Division and another PLD 1976 SC 615 ref.

Zafarullah Khan Khakwani, A.A.-G. for Petitioners.

Respondents in person.

Date of hearing: 23rd June, 2009.

2010 C L C 577

[Lahore]

Before Khawaja Muhammad Sharif, CJ

Rai MUNIR ZAFAR----Petitioner

Versus

PROVINCE OF THE PUNJAB through Chief Secretary and 7 others----Respondents

Writ Petitions Nos.17665, 21583 and 22033 of 2009, decided on 23rd November, 2009.

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

----Ss. 7 & 11---West Pakistan Land Revenue Act (XVII of 1967), S.6(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Administration of justice---Arbitrary exercise of power---Scope---Petitioner challenged notification issued by Government of the Punjab to the effect that application of the respondent to detach 22 villages from District "C" and to include it in another District "J" and subsequently cancellation of earlier notification on the application of the respondent was based on illegal and arbitrarily exercise of discretion---Validity---Villages detached from District "C" through subsequent notification were about 25 kilometers away from Tehsil Headquarter "L" whereas by inclusion of villages in District "J", the distance between the villages included in District "J" was 65 kilometers from Tehsil Headquarter "J"---Union Council Nos.9 and 10 were part of District "C" since its creation as Tehsil in 1856---Police Station "B" was also at a distance of about 5 kilometers from these villages whereas Police Station "Q. P." of Tehsil "J" was at a distance of 40 kilometers' from the said areas---Government of Punjab through Board of Revenue had rightly issued notification dated 26-1-2009 but subsequent notification dated 19-8-2009 on the application of a Member Provincial Assembly seemed to be issued on political consideration without keeping in mind the factual hardships of the inhabitants of 22 villages and merely on the wishes of respondent amounted to non-application of mind by the Authority while passing the order---By issuing the impugned notification, instead of providing facilities and ease to the inhabitants of the villages, their miseries had been increased inasmuch as distance between their residences to Police Station and Tehsil headquarter had become more---Constitutional petition was accepted by High Court.?

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

----S. 6---Policy decision---Exercise of power---Scope---Policy decision falls within the ambit of power of Executive Government which was expected to take such decision keeping in view many considerations, that is, public interest, administrative, practical convenience and difficulties of the local population etc. but all the same notifications issued by the provincial government under S.6 of West Pakistan Land Revenue Act, 1967 were not immune from being called in question and moveover the power of judicial review was available in appropriate cases of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of government.?

Ahmad Awais, Mian Muhammad Sikandar Hayat, Malik Rehmat Ullah and Syed Faiz-ul-Hassan for Petitioners.

Ch. Muhammad Hanif Khatana, A.-G. along with Arif Shahid, Director, Board of Revenue for Respondent.

Hussain Ahmad Madni for Respondent No.8.

Date of hearing: 20th November, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 583 #

2010 C L C 583

[Lahore]

Before S. Ali Hassan Rizvi, J

ABDUR RASHEED----Petitioner

Versus

DUBEER AHMED and 12 others----Respondents

Writ Petition No.3979 of 2009, decided on 2nd March, 2009.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O. VI, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance---Application for amendment in the plaint---When evidence was being recorded in the case, the plaintiff moved an application under O. VI, R.17, C.P.C. seeking amendment in the plaint so as to assert that his claim was based on a written agreement instead of oral agreement of sale---Trial Court dismissed application filed by the plaintiff, revision also having been dismissed by the Appellate Court, plaintiff filed constitutional petition---Validity---Suit was brought by the plaintiff on the basis of alleged oral agreement of sale and when the suit was at the stage of recording evidence and one witness had also been recorded on his behalf, he wanted to introduce a fact that his claim was based on a written agreement of sale---Plaintiff had never asserted that his claim was based on a written agreement and that the original was misplaced somewhere as contended by the plaintiff-Plaintiff's version in the application for amendment was that he be allowed to base his claim on written agreement of sale---Such a volte face could not be allowed to be pleaded---Earlier when his claim was based on an oral agreement of sale, the same was duly verified on oath---Litigant alleging contradictory things on material question, could not be heard---Both the courts below rejected his application for amendment; their orders were sound and did not call for interference in constitutional jurisdiction.

Arif Mehmood Rana for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 584 #

2010 C L C 584

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD SIDDIQUE----Petitioner

Versus

MUHAMMAD SHARIF----Respondent

Civil Revision No.595/D of 1995, heard on 20th May, 2009.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Burden to prove the Talbs was always on the plaintiff---Plaintiff had examined two witnesses in addition to his own statement (as his own witness), but they could not prove making of Talbs---Time, date and place as to when Talb-i-Muwathibat was allegedly made was not specifically mentioned and it had not been proved that the written notices in respect of Talb-i-Ishhad were dispatched---Neither in the plaint nor in the statement, the time and place was mentioned about the knowledge of the sales---Requirement of Talbs had not been fulfilled in circumstances---What had been said about the Talbs, was also negated by the evidence of the plaintiff---Trial Court and Appellate Court had rightly dismissed suit filed by the plaintiff.

Fazal Din through Legal Heirs v. Muhammad Inayat through Legal Heirs 2007 SCMR 1 ref.

Sh. Ziauddin Ahmad Qamar for Petitioner.

Malik Zafar Mehmood Anjum for Respondent.

Date of hearing: 20th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 588 #

2010 C L C 588

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AMEEN----Petitioner

Versus

KHADIM HUSSAIN----Respondent

Civil Revision No.359-D of 2003, heard on 10th November, 2009.

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

----S. 13---Right of pre-emption---Talb-e-Muwathibat---Proof---Facts necessary to be mentioned in plaint---Both the courts below decreed the suit in favour of pre-emptor---Plea raised by vendee was that pre-emptor did not mention time and place of making Talb-e-Muwathibat in plaint---Validity---Unless and until all ingredients i.e. date, time and place of making Talb-e-Muwathibat were mentioned in the plaint and proved through evidence, it could not be held that Talb-e-Muwathibat was proved---Both the courts below committed material illegality and irregularity in decreeing the suit of pre-emptor, who had failed to prove Talb-e-Muwathibat in accordance with law---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed in favour of pre-emptor and suit was dismissed---Revision was allowed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Mst. Amir v. Mst. Soini 1997 MLD 2376; Muhammad Khan v. Allah Ditta 2005 CLC 283 and Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

Mian Ashfaq Ahmed Sial for Petitioner.

Hassan Bakhsh Khan for Respondent.

Date of hearing: 10th November, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 591 #

2010 C L C 591

[Lahore]

Before Syed Asghar Haider, J

PITRIS MASIH----Petitioner

Versus

Mst. SALEENA and another----Respondents

Writ Petitions Nos.1708 to 1720 of 2008, decided on 13th May, 2009.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of dilapidated condition of the property---Ejectment application was accepted by the Rent Controller and Appellate Court maintained the same---Evidence tendered by landlord reflected that the building was in a dilapidated condition and required demolition---Building was more than 100 years old and it was specifically pleaded in the application and was not rebutted in reply---Record revealed that Town Municipal Committee had already issued a notice for demolition, declaring the building to be dangerous for human habitation---Ample evidence was available on record to hold that the order of the Rent Controller and the Appellate Court were in consonance with evidence tendered---Constitutional petition was dismissed.

Muhammad Sharif Khan and 9 others v. Chaudhry Karamat Hussain and another 2001 MLD 175; Rashid Brothers v. Ch. Muhammad Anwar Khan 1981 SCMR 782; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1981 Lah. 694; Qamar Din v. Mrs. K. Taleh Begum 1980 SCMR 608; Newalram v. Messrs Ismail Brothers 1980 CLC 915; Muhammad Ibrar v. Muhammad Ikram 2004 CLC 157; Hafiz Altaf Ahmed v. Haji Ahmed Din 2005 CLC 1758; Hamayun and others v. Mst. Namwar Khatoon and others 2005 CLC 446; Nasim Ahmad Khan v. Additional District Judge; Lahore and 4 others PLD 2006 Lah. 774; Muhammad Saleem Akhtar v. The Senior Civil Judge/Rent Controller, Rahimyar Khan and others 2005 MLD 867; Muhammad Umar v. Muhammad Sultan Siddiqui (deceased) through Legal Heirs and others 2005 YLR 145; Qamar Din v. Mst. K. Taleh Begum 1980 SCMR 516; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Jameela Peer Bakhsh and 11 others v. Appellate Authority under Rent Restriction Ordinance; 1959/Additional District Judge; Lahore and 3 others 2001 CLC 975; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 ref.

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

----Ss. 13(5) & 13(5)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of dilapidated condition of property---Right of tenant---Protection---Ejectment application was accepted by the Rent Controller and Appellate Court maintained the same---Section 13(5) of the West Pakistan Urban Rent Restriction Ordinance, 1959, takes care of the situation in respect of tenant and holds that if the building was not demolished within the period of four months from taking of possession of the same, or the building was not reconstructed within a period of two years, punitive action could be initiated against the landlord---Section 13(5)(a) of the Ordinance bestows upon the Rent Controller the power to restore possession to the ousted tenant---Right of the tenant stood adequately protected in law and therefore, on such count as well, the impugned judgment and order were unexceptionable---Constitutional petition was dismissed by High Court.

Waqar-ul-Haq Sheikh for Petitioner.

Muhammad Tanveer Chaudhry for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 596 #

2010 C L C 596

[Lahore]

Before Saif-ur-Rehman, J

INAYAT HUSSAIN alias INAYATULLAH----Petitioner

Versus

Chaudhry SULTAN AHMAD----Respondent

Civil Revision No.190 of 2002, heard on 20th April, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Offer to make statement---Disposal of the suit on said offer---Validity---Plaintiff filed suit for declaration and grant of permanent injunction against the defendant---Trial Court decreed suit on the ground of an offer made by defendant that if plaintiff's witness made correct statement on special oath---Appellate Court on appeal set aside judgment and decree of the Trial Court on the ground that before recording statement of plaintiff's, witness, defendant had withdrawn his offer---Offer was accepted by the plaintiff vide his statement recorded on the same day---Offer and acceptance took place in presence of counsel for the parties---Offer and acceptance noted in the very order-sheet without recording statements of the parties separately were held to be enforceable and the party was not allowed to resile---Defendant had failed to plead any circumstance which might show that offer made by him was the result of his emotional behaviour or that offer and acceptance had given rise to any void agreement---Defendant could not mention anyone of such grounds in his application---Appellate Court had failed to appreciate the facts and law involved in the controversy---High Court restored the judgment and decree passed by the Trial Court---Petition was disposed of by High Court.

Elahi Bakhsh and another v. Mst. Bhiranwan 1994 SCMR 2246; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795; Nasrullah Jan v. Rastabaz Khan 1996 SCMR 108 and Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 ref.

Abdul Khaliq Safrani for Petitioner.

Syed Shamim Abass Bukhari for Respondent.

Date of hearing: 20th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 625 #

2010 C L C 625

[Lahore]

Before Umar Ata Bandial, J

Messrs AD-MASS ADVERTISING (SMC-PVT.) LIMITED through Chief Executive----Petitioner

Versus

CIVIL AVIATION AUTHORITY through General Manager----Respondent

Civil Revision No.2236 of 2009, decided on 15th December, 2009.

Easements Act (V of 1882)---

----S. 60---Civil Procedure Code (V of 1908), 0.XXXIX, Rr.1 & 2---Suit for permanent injunction with application under O.XXXIX, Rr.1 & 2, C.P.C. with contention that plaintiff being licensee of the defendant had made investment of a permanent nature on defendant's property and on account of that the plaintiff had acquired an interest in that property and could not be dispossessed summarily---Suit was contested by defendant on the ground that plaintiff could not claim a right under alleged licence agreement when the exclusive possession of the property was retained by the defendant and the plaintiff was liable to surrender his structure, a signboard, at the expiry of the licence---Trial Court dismissed application for the grant of ad interim injunction---Appellate Court, on appeal, allowed the ad interim injunction but subsequently vacated the same---Validity---Claim of permanent investment by the plaintiff was untenable without evidence in its affirmation---Plaintiff was at liberty to show by evidence that its investment was assured by the defendant to remain protected---Such claim could not be presumed at the interlocutory stage of the proceedings---Prima facie, legal right of the plaintiff under the licence agreement was of a limited nature as a licensee---Plaintiff's possession of advertising site was being interfered by the defendant which admittedly controlled access thereto---Claim of the plaintiff for alleged tenancy also stood excluded---Ingredients of S.60 of the Easements Act, 1882 were not apparent on the face of the record---Interim order could not be issued by presuming that the defendant had accepted some enlarged status of the plaintiff over its property---Petition was dismissed by High Court.

Ebrahim Brothers Limited v. Wealth Tax Officer PLD 1985 Kar.407 ref.

Zaidi Enterprises v. C.A.A. PLD 1999 Kar.181 rel.

Sikandar Khan for Petitioner.

Mian Muzaffar Hussain for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 680 #

2010 C L C 680

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

ADNAN IJAZ----Petitioner

Versus

Mst. HANIFAN BIBI and 17 others----Respondents

Civil Revision No.681 of 2009, decided on 11th May, 2009.

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

----S. 42---Registration Act (XVI of 1908), S.7---Suit for partition of land and permanent injunction---Plaintiffs filed suit for partition and permanent injunction of the disputed land claiming thereunder that their predecessor-in-interest had left some disputed properties, which were in possession of the defendants and no family partition was made and the plaintiffs were deprived of the use of the same---Trial Court decreed the suit of the plaintiffs and appeal filed by the defendants was also dismissed by the Appellate Court---One of the defendants contended that his father had gifted him a portion of the disputed property under his possession, the same might be excluded from the partition---Defendant in his evidence stated that his father had promised to deliver him two shops and had also announced that those were gifted to him but no gift deed in proof of his stance had been brought on record---Neither requirements of the gift nor its compulsory registration were complied with---Defendant had not been able to prove the gift or even on the basis of oral gift the defendant had been at liberty to get mutations sanctioned in his favour through process of law, but he had not done so---Defendant was trying to avoid partition of the disputed property---Concurrent findings of the courts below were well-reasoned and elaborate---High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed in limine.

Masab Ali v. Hafizan and 5 others PLD 1993 Lah. 1 ref.

Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; Laloo v. Ghulaman 2000 SCMR 1058; Mst. Sughra Bibi v. Asghar Khan 1988 SCMR 4; Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 2018 and Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82 rel.

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

----O. XIV, R.1---Specific Relief Act (I of 1877), S.42---Suit for partition of land---Non framing of issue---Effect---Plaintiffs' suit for partition of land was decreed by the Trial Court---Appellate Court dismissed appeal filed by the defendants---Contention of one of the defendants was that Trial Court had not framed an issue on point of gifted property as the defendant had taken the same stance in his written statement and absence of the said issue would vitiate the whole trial---None of the parties at any stage of the proceedings made any request either for an amendment in the pleadings or for framing of additional issue and thus the judgment could not be challenged on this ground---Both courts below had dealt with the plea of gift in the impugned judgments---Findings arrived at by the Trial Court and Appellate Court were concurrent in nature, High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed in limine.

Aamir Iqbal Basharat for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 684 #

2010 C L C 684

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ISMAIL----Petitioner

Versus

PUNJAB COOPERATIVES BOARD FOR LIQUIDATION through Chairman and 2 others----Respondents

Petition No.39/C of 2005, decided on 19th May, 2009.

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

----S. 11---Maintenance of account by petitioner with defunct Corporation---Deposit of Rs.3,43,200 by petitioner on 6-11-1991 against outstanding overdraft facility of Rs. 7,17,139 and adjustment of an SMR amounting to Rs.5 lac on 6-11-1991 leaving Rs.33 at his credit---Award for Rs. 29,29,700 passed against petitioner by Judicial-Officer of Punjab Cooperative Board for Liquidation---Validity---Petitioner had opened account on 9-12-1990 by depositing Rs.977 and Branch Manager of the Corporation had given him on same day an overdraft facility of Rs.7,17,000 without securing such loan through documents---Record showed only adjustment without giving details of payment in cash and SMRs---Petitioner in his defence had not produced any receipt of cash amount or any documentary evidence in support of adjustment of SMRs amounting to Rs.5 lac---Branch Manger having made deposit entries of such adjustment had delivered to Corporation only three account ledger, but had not delivered other documents particularly Day Book and Cash Book containing receipt and disposal of cash---If such adjustments were genuine, then there must be entries in Day Book and Cash Book---Conduct of Branch Manager was doubtful, who was in league with petitioner---Petitioner had not deposited a single penny or made any transaction after receipt of such loan till closure of the corporation on 6-11-1991---Petitioner could not produce receipt showing deposit of Rs. 3, 39, 000 in cash---Such adjustment made in favour of petitioner was highly doubtful and seemed to have been manoeuvred in order to deprive the defunct Corporation and its creditors of such a huge amount---High Court upheld impugned award in circumstances.?

Malik Riaz Khalid Awan for Petitioner.

Syed Faizan Haider on behalf of Muhammad Ilyas Khan for PCBL.

CLC 2010 LAHORE HIGH COURT LAHORE 689 #

2010 C L C 689

[Lahore]

Before Arshad Mahmood, J

MUHAMMAD AKBAR ABBAS----Petitioner

Versus

MUHAMMAD ZAFAR----Respondent

Civil Revision No.232 of 2009, decided on 26th May, 2009.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of money---Furnishing of surety---Extension of time---Scope---Plaintiff filed suit for recovery of money on the basis of a cheque issued by defendant---Trial Court decreed the suit ex parte---Defendant filed application for setting aside ex parte decree, which was allowed---Defendant applied for leave to appear and defend the suit which was granted subject to the condition that he would submit surety of equal amount within two weeks---Defendant sought extension in time for furnishing surety bond which was allowed---Plaintiff asserted that grounds seeking extension in time for furnishing of surety were not sufficient and the defendant was not entitled to the discretionary relief:---Validity---Trial Court had taken into consideration old age of the defendant, distance of his residence from the court premises and lack of intimacy at the city where the court was located, extended time for submission of surety bond---Discretion had been exercised after weighing and balancing respective pleas of parties and by judicial application of mind which by no stretch of imagination would be termed as arbitrary or fanciful.

Muhammad Ismail v. Syed Intizar Abbas Zaidi 2004 CLC 389 and Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd, Karachi 1999 SCMR 1326 ref.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of money---Leave to defend suit---Discretion---Exercise of---Scope---Even after the dismissal of application for leave to defend, Trial Court was not obliged to decree the suit straightway---Trial Court could ask the plaintiff to produce evidence in support of his claim and in that eventuality defendant could have participated in the proceedings---No prejudice would be caused to the defendant by the impugned order---Law favoured adjudication of lis on merits--Discretion exercised by the Trial Court for advancement of the said principle of law could not be interfered in revisional jurisdiction.

Malik Muhammad Ibrahim for Petitioner.

Saif Ullah Khan for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 691 #

2010 C L C 691

[Lahore]

Before, Raja Muhammad Shafqat Khan Abbasi J

Syed MUHAMMAD SARWAR ALI SHAH----Petitioner

Versus

DIRECTOR-GENERAL, MULTAN DEVELOPMENT AUTHROTIY, MULTAN and 4 others----Respondents

Writ Petition No.2651 of 2008, decided on 30th June, 2009.

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

----Art. 199---constitutional petition involving factual controversy---Maintainability---High Court in constitutional jurisdiction could not decide such controversy.

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

----Art. 199---Constitutional petition---Withdrawal of transfer letter issued in favour of petitioner by Development Authority without hearing him---Validity---Impugned order was violative of principle "audi alteram partem "---High Court set aside impugned order and remanded case to the Authority for its decision afresh after hearing both parties.

Muhammad Tufail Alvi and Sahibzada Muhammad Ibrahim for Petitioner.

Muhammad Amin Malik for Respondents Nos. 1 to 3.

Mian Abbas Ahmad and Kanwar Muhammad Younas for Respondents Nos.4 and 5.

CLC 2010 LAHORE HIGH COURT LAHORE 697 #

2010 C L C 697

[Lahore]

Before Ijaz Ahmad Chaudhry, J

JAVED IQBAL and 3 others----Petitioners

Versus

PUNJAB COOPERATIVE BOARD OF LIQUIDATION, LAHORE through Chairman and another----Respondents

Petitions Nos.44/C and 28/C of 2007, decided on 29th May, 2009.

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

----S. 11---Registration Act (XVI of 1908), S.62---Non-issuance of "no objection certificate"---Validity---Applicant purchased disputed land from the defunct society in total consideration of Rs.50 lac and had taken possession of the same---Sale-deed executed in favour of the applicant was of consideration of Rs.8 lac which was registered by Sub-Registrar---Defunct society was declared an Undesirable Cooperative Society with the result that the applicant had to apply for "no objection certificate", to Punjab Cooperative Board for Liquidation, which was not issued---Applicant and Chairman of defunct society challenged the impugned order by filing application under S.11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---Both the applications were consolidated---Contention of the applicant was that execution of the sale-deed was objected to by the Punjab Cooperative Board for Liquidation in respect of its sale consideration that the said amount was deposited for the purpose of investment and not for sale proceed---Perusal of the impugned order revealed that sale-deed was executed and the claim of the Chairman of the defunct Cooperative Society was found incorrect with the findings that the applicant had been deprived of "no objection certificate" due to lack of entry in the relevant record about payment of Rs.50 lac---Applicant had nothing to do as the record was in possession of employees of the defunct society and if they made wrong entry of Rs.50 lac that it was for investment and not for sale proceed, the applicant could not be affected by the act of their own employees---Only question through which the "no objection certificate" was not issued was that the sale-deed was for total consideration of Rs.50 lac but in order to avoid income-tax it was wrongly got mentioned by the applicant and the Chairman of the defunct society worth Rs.8 lac---Refusal for issuance of "no objection certificate" in favour of applicant was not justified-Cooperative Judge directed the Punjab Cooperative Board for Liquidation to issue "no objection certificate" to the applicant without any further delay---Application filed by the applicant was granted.

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

----S. 11---Registration Act (XVI of 1908), S.60---Execution of registered sale-deed---Payment of consideration---Effect---Applicant purchased disputed land from the defunct society in total consideration of Rs.50 lac and had taken possession of the said land---Sale-deed executed in favour of the applicant was of consideration of Rs.8 lac which was registered by Sub-Registrar---Applicant and Chairman of the defunct society challenged the impugned order of refusal of "no objection certificate" by the Punjab Cooperative Board for Liquidation to the applicant regarding sale-deed under S.11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---Both the applications were consolidated---Respondents contended that the impugned order was contradictory whereby it was held by Punjab Cooperative Board for Liquidation that sale consideration was not deposited/paid and as such the sale-deed was nullity and had no legal effect---Applicant had established to have purchased the disputed property and sale-deed was executed and registered, before declaration of the society defunct or undesirable, payment was made before Sub-Registrar--Impugned order showed that even in the F.I.R. lodged in respect of the said disputed property, no incident was explained having happened during the year 1991, when two documents were registered---Respondent/Chairman of the defunct society had failed to explain the amount which was received by him at the time of sale-deed and his signature on the registered sale-deed---Cooperative Judge dismissed application filed by Chairman defunct society.

1971 SCMR 414 ref.

Ahmed Waheed Khan for Petitioner.

Miss Saba Saeed Sheikh for Petitioner (in Petition No.28-C of 2007).

Muhammad Illyas Khan for PCBL.

CLC 2010 LAHORE HIGH COURT LAHORE 703 #

2010 C L C 703

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

FAZAL KARIM and another----Petitioners

Versus

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

Writ Petition No.3671 of 2009, decided on 2nd June, 2009.

Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of revision application---Application for restoration of revision petition---Suit for possession filed by the plaintiff having been decreed, defendants assailed judgment and decree of the Trial Court in revision before the High Court---Said revision was transmitted back to District Judge due to change in the pecuniary jurisdiction of the courts below---District Judge dismissed revision for non-appearance of the defendants and application for restoration of revision having also been dismissed, defendants had filed constitutional petition---Notices of Pairavi issued by the District Judge were never served on the defendants as the Process Server had reported that counsel for the defendants had stated that the defendants had taken back the case and that he (counsel) had no instructions and that the defendants could be summoned personally---Revisional court/District Judge, however had not issued any such notice for the service of the defendants---Revisional court ignored said report of Process Server and dismissed revision petition in hasty manner---Law required that court should decide the cases on merits instead of adopting shortcut method for earning units---Revisional court instead of dismissing revision in default could have disposed it of in accordance with law on merits---Law favoured adjudication on merits, unless there existed some insuperable practical obstacle---Due to the negligence of the counsel or court official, litigant should not suffer---Revisional court had committed irregularities in dismissing the revision petition which was pending for the last 14 years---Instead of dismissing the revision due to non-prosecution, it should have been decided on merits---Impugned orders were set aside with direction to the revisional court to conclude the matter within specified period.?

Muhammad Sadiq v. Mst. Bashira and 9 others PLD 2000 SC 820 ref.

Syed Waheed Raza Bukhari for Petitioners.

Syed Hamid Ali Shah for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 706 #

2010 C L C 706

[Lahore]

Before Abdul Sattar Goraya, J

Qari MUHAMMAD HANIF----Appellant

Versus

IHSAN ULLAH KHAN----Respondent

Regular Second Appeal No.59 and Cross-Objection No.105 of 2005, heard on 30th April, 2009.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), Ss.2, 73 & 74---Suit for specific performance of contract---Compensation for breach of contract---Defendant executed an agreement in favour of plaintiff for payment of amount of consideration of land in question---Parties had agreed that amount would be paid till specified date and in ease of failure of defendant to pay amount till specified date, defendant would pay the double amount---Case of the plaintiff was that as terms of the agreement having not been complied with by the defendant, he was bound to pay double amount---Plea of the defendant was that he being working under the command of the plaintiff, had been subjected to undue influence and instrument/agreement was signed under coercion---Plaintiff had contended that he was never acting as a free agent when he put signature on said document---Validity---No signatures appeared on the instrument of the plaintiff to accept any reciprocal liability, if there was any---Provisions of S.74 of Contract Act, 1872 dealt with only the rights to receive from the party who had broken a contract, a reasonable compensation and in absence of any contract, mere fact that defendant did not make payment of the amount, within the time limit fixed by the suitor, would not entitle him to attract the provisions of penal clause and claim the penalty---Penalty to claim double amount in fact, was not enforceable at law--Court was bound to make proper assessment as to what was the nature of the contract and contents of the deal arrived at between the parties and what was the loss occasioned---Courts below had not taken into consideration that aspect and recorded their findings contrary to material available on the record---Section 74 of Contract Act, 1872 boldly cuts the most troublesome knot in the Common Law doctrine of damages---As contract had not been signed by the plaintiff, in absence of a reciprocal liability, said contract did not come within the definition of concluded contract as the vital ingredients embodied in S.2 of the Contract Act, 1872 were missing---Penal clause kept in instrument being not enforceable at law, only stipulated amount outstanding against the defendant, was bound to make payment of same in a recovery suit but not its double amount.

Allah Ditta v. Abdul Khalique 2006 CLC 1152; Mst. Gul Shahnaz v. Abdul Qayyum Soomro and another PLD 2002 Kar. 333; Sir Chunilal v. Mehta and Sons Ltd. AIR 1962 SC 1314; Messrs Ravians Paper and Board Industries Limited through Chief Executive 2004 CLD 984 and Mst. Barkat Bibi v. Muhammad Rafique and others 1990 SCMR 28 ref.

Taki Ahmad Khan for Appellant.

Hafiz Khalil Ahrnad for Respondent.

Date of hearing: 30th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 712 #

2010 C L C 712

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MANSHA and 5 others----Appellants

Versus

MUQADAS SULTAN and 6 others----Respondents

First Appeal from Order No.230 of 2007, heard on 25th September, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.104---Mental Health Ordinance (VIII of 2001), Ss.29, 31 & 37----Suit for declaration---First Appellate order--Appellant and 4 others purchased land in question from respondent and her son vide registered sale-deed executed on behalf of said two vendors/(respondents) by a General Attorney---Subsequently one of the said respondents filed suit for declaration to the effect that Power-of-Attorney executed in favour of General Attorney of the respondents and sale-deed executed by said Attorney was void---One of the said two respondents (brother), filed application under S.29 of the Mental Health Ordinance, 2001 for declaration that his brother/(respondent) was a person of unsound mind, which application was allowed and said respondent was declared to be of unsound mind and the other respondent (brother) was appointed guardian of said respondent with direction to perform his duties in the light of S.37 of Mental Health Ordinance, 2001---Suit for declaration was withdrawn by the respondent (guardian) and same having been dismissed, appellants had filed appeal against said order---Power-of-Attorney was allegedly registered by respondents on 22-7-2003 and sale-deed was executed by said Attorney of respondents in favour of appellants on 31-7-2003 and application under S.29 of Mental Health Ordinance, 2001 for declaration that the respondent was a person of unsound mind was filed on 22-6-2005---Validity of sale in question would have to be determined with reference to said dates, i.e. the fact that as to what was the state of mind of the respondent on the said dates, would have to be adjudicated upon---High Court declined to interfere with impugned order in circumstances---Matter was remitted to the court below which would examine the provisions of S.31 of Mental Health Ordinance, 2001 and would proceed accordingly to satisfy itself as to whether the guardian/respondent was performing his duties or not.

Malik Muhammad Imtiaz for Appellants.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 25th September, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 715 #

2010 C L C 715

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

Mst. FARZANA KHANUM----Appellant

Versus

MUHAMMAD ZULFIQAR KHAN and others----Respondents

Regular First Appeal No.535 of 2006, heard on 9th July, 2009.

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

----Ss. 42 & 55---Suit for declaration-cum-permanent injunction---Oral gift--Long possession over the disputed property-Effect-Plaintiff filed suit for declaration-cum-permanent injunction before the Trial Court in respect of the disputed property with assertion that the disputed property had been gifted to her in recognition of her services out of love and affection by the deceased/donee---Trial Court dismissed suit of the plaintiff--Contention of the plaintiff was that she was in possession of the disputed property for more than two decades without any disturbance and such a long possession over the disputed property in itself was sufficient to reach at a conclusion that the disputed property had been transferred to the plaintiff by way of oral gift---Oral gift was alleged to have been made in the year 1968 and till death, the plaintiff who had been a teacher in an institution never felt necessary to get the disputed property transferred in her name through registered deed---Validity---Oral gift was permissible in Islamic law but to prove the oral gift, strong evidence of unimpeachable character was required---No mutation or the registered instrument was available on record to, reach at a conclusion that there was a valid gift made in favour of the plaintiff---Judgment and decree passed by Trial Court was based on sound judicial considerations---Appeal was dismissed.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625 and Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2007 Lah. 467 ref.

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

----Ss. 42 & 55---Suit for declaration-cum-permanent injunction---Oral gift---Documentary evidence---Validity---Plaintiff filed suit for declaration-cum-permanent injunction before Trial Court in respect of oral gift made to her regarding disputed property---Trial Court dismissed suit of the plaintiff---Contention of the plaintiff was that sufficient documentary evidence was available on the record to demonstrate that the utility bills were in the name of the plaintiff but the Trial Court had fallen in serious error while returning to relevant issues---Utility bills had not been formally exhibited or brought on the record, however, there were certain photostat copies available on the record to show that bill of water and sanitation was in the name of the deceased/donor---Electricity bill was also in the name of the deceased/donor---High Court declined to interfere in the judgment and decree passed by the Trial Court---Appeal was dismissed.

Khan Muhammad Ehtisham Yasin for Appellant.

Muhammad Ashraf Bajwa for Respondents.

Date of hearing: 9th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 721 #

2010 C L C 721

[Lahore]

Before Mansoor Akbar Kokab, J

ASHFAQ AHMAD and 2 others----Petitioners

Versus

RANA BROTHERS COTTON & OIL INDUSTRIES, SAHIWAL through Managing Partner----Respondent

Civil Revision No.927 of 2009, decided on 30th October, 2009.

Civil Procedure Code (V of 1908)---

----O. XIV, R.5 & S.115---Non-framing of issues---Trial Court having dismissed application of the defendant filed under O. XIV, R. 5, C.P.C. whereby he agitated that the issues were not framed in the suit filed by the defendant---Ground about maintainability, if raised as purely touching the question of law and had nothing to do with question of facts, then the legal ground could be raised by the defendant at the time of arguments even without framing of issues---Issue pertaining to entitlement was clear in the case, and there remained only the question of fact to prove the entitlement or disentitlement by establishing certain mode of payment and' for that no specific issue was necessary to be framed---Case being at final stage for disposal, there was no need to reopen the case by framing of the fresh issues and in fact to provide the petitioner with the chance to adduce the evidence, pertaining to which the right was never assailed and had attained finality.

Javed Ahmad Khan for Petitioner.

Muhammad Iqbal Khan for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 722 #

2010 C L C 722

[Lahore]

Before Abdul Sattar Goraya, J

Syed IMDAD HUSSAIN SHAH----Petitioner

Versus

Syed MAKHDOOM HUSSAIN RAZA and 5 others----Respondents

Civil Revision No.1638 of 2006, decided on 1st July, 2069.

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

----S. 12---Registration Act (XVI of 1908), Ss.49 & 60---Agreement of sale---Registration---Pardanasheen lady---Plaintiff filed suit for specific performance of sale agreement in respect of the disputed property against predecessor-in-interest of the defendants---Trial Court dismissed the suit of the plaintiff---Appeal filed against the judgment and decree of the Trial Court was also dismissed by the Appellate Court---Contention of the plaintiff was that agreement of sale for all purposes was a registered document and carried a strong presumption of correctness under S.49 read with S.60 of the Registration Act, 1908 and until strong evidence was available on the record to rebut the presumption, the said document should occupy the field and should be deemed to be correct for all purposes---Validity---Agreement of sale even if it was a registered document, heavy burden lay upon the plaintiff to discharge the onus and prove the genuineness of the said transaction---Registered document had a sanctity to it and very strong evidence was required to challenge the genuineness of the said instrument---No evidence was available on the record to rebut the genuineness of the transaction but one thing which was very relevant was that predecessor-in-interest of the defendants was a Paradanashin lady and in case of Paradanashin lady, great care and caution should be adopted by the court---Evidence brought on the record was insufficient---Interest of justice demanded that in view of the plea taken by the defendants that their predecessor-in-interest was bed-ridden and never appeared before the Sub-Registrar, the evidence of the Sub-Registrar and the scribe was necessary---High Court accepted the revision petition and remanded the case accordingly.

Rasool Bakhsh and another v. Muhammad Ramzan 2007 SCMR 85; Abdul Ghafoor and others v. Mst. Anwar Jehan Begum and others 2004 MLD 894; Muhammad Bashir and 6 others v. Muhammad Ashraf and 26 others 2004 CLC 1880; Lt. Muhammad Sohail Anjum Khan and others v. Abdul Rasheed Khan and others 2003 MLD 1095; Sheikh Muhammad Sharif Uppal v. Sheikh Akbar Hussain and others PLD 1990 Lah.229; Shahadat Khan and others v. Nawab and others 2005 YLR 2020; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Muhammad Ashraf v. Shah Noor Khan and another 1996 MLD 1819; Water and Power Development Authority v. Ghulam Shabbir 1998 MLD 1592 and Khushi Muhammad v. Abdul Sattar PLJ 2003 Lah. 367 ref.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 492; Abdul Ghafoor's case 2004 MLD 894; Mirza Muhammad Ashraf's case 1996 MLD 1819; Water and Power Development Authority's case 1998 MLD 1592; Khushi Muhammad's case PLD 2003 Lah. 367 and Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.87---Uncertified copy---Signature of attesting person---Validity---Plaintiff filed suit for specific performance of sale agreement in respect of the disputed property against predecessor-in-interest of the defendants---Trial Court dismissed suit of the plaintiff---Appeal filed against judgment and decree of the Trial Court was also dismissed by the Appellate Court---Plaintiff asserted that death certificate produced by the defendants was not admissible in evidence because the same was not certified copy and in absence of any unrebutted evidence brought by the plaintiff, the defendants remained unsuccessful to dislodge the presumption attached to the registered document---Document presented was shown to have been attested by the Secretary of the Union Council---Document attested by the Union Council should not be treated to be a certified copy---Certified copy was the one which formed part of the public record and had been issued by the competent authority after comparing same with the original document or Register---Mere fact that the signatures of the copyist or the Secretary Union Council appeared on the said instrument, was not sufficient until the said document was admissible in evidence and the certified copy had been brought on the record which could be proved by bringing the original record or the Secretary Union Council or the copyist---High Court accepted the petition.

Bhag Bhari v. Akbar Khan and others 1987 CLC 1543 ref.

Muhammad Aslam and another v. Senior Civil Judge, Gujrat and 2 others 2000 MLD 1581 rel.

Chaudhry Khurshid Ahmad and Naseer Ahmad Sial for Petitioner.

Syed Kaleem Ahmad Khurshid for Respondent.

Date of hearing: 24th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 733 #

2010 C L C 733

[Lahore]

Before Mian Saqib Nisar, J

Mst. SHAHNAZ BEGUM alias SHAHNAZ AKHTAR and 2 others----Petitioners

Versus

Mst. ZAHIDA SAIF and 11 others Respondents

Writ Petition No.9717 of 2009, decided on 20th May, 2009.

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

----Arts. 132, 133 & 134---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-examination of witnesses---Petitioners were defendants of the case wherein certain witnesses were examined by the respondents---In order to cross-examine the witnesses, the petitioners moved an application for re-examining them, which application was rejected by the Trial Court and that rejection order was upheld in revision---Counsel for the petitioners had contended that as many other cases were consolidated, in that context the evidence, which had been produced by the respondents, was necessary to be rebutted; and it would be done through the process of cross-examination as well---Validity---When the statement of the respondents' counsel had come on the record, the deposition of the witnesses would not be used against the petitioners---For all intents and purposes, the said statements were non-existent as far as the petitioners' right and interest in the litigation were concerned---No case had been made out for interference in the constitutional jurisdiction---Constitutional petition was dismissed.

Muhammad Yasin Hatif for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 734 #

2010 C L C 734

[Lahore]

Before Abdul Sattar Goraya, J

BASHIR AHMAD and 21 others----Petitioners

Versus

SHAH MUHAMMAD and another----Respondents

Civil Revision No.1804 of 2004, heard on 30th June, 2009.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Transfer of Property Act (IV of 1882), S.54---Suit for specific performance of agreement of oral sale---Plea of plaintiff that parties entered into agreement 16 years ago after payment of entire sale price, whereafter he continued to be in possession of land; and that 10 days before filing of suit, defendant finally refused to perform his part of agreement---Denial of defendant to have executed agreement---Proof---Oral agreement could not be considered to be valid in law, where terms and conditions thereof were not satisfied---Plaintiff had not mentioned in plaint exact date of agreement and other necessary ingredients thereof---Revenue Record was showing plaintiff to be tenant-at-will---Nothing on record to show that after alleged payment of entire sale price to defendant, why plaintiff postponed issue of sale for 16 years and did not file suit in time---Suit had become time barred---Suit was dismissed in circumstances.

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

----S. 54---Oral sale agreement---Validity--Such agreement could not be considered to be valid in law, unless terms and conditions thereof were satisfied.

Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372 and Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 rel.

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

----S. 54---Sale agreement would not confer any ownership right.

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

----O. VI, R.2 & O. VII, R.1---Ingredients necessary to be mentioned in plaint not stated---Effect---No evidence could be led on such point.

Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336 rel.

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

----O. XLI, R.33---Appeal---Suit dismissed by Trial Court decreed by Appellate Court after building-up a new case to advantage of appellant-plaintiff, which was otherwise not spelt out from record---Validity--Appellate Court had committed serious illegality and irregularity in reaching at the impugned conclusion---High Court set aside impugned judgment and dismissed suit in circumstances.

Shehzada Muhammad Zeshan Mirza for Petitioners.

Mian Mumtaz Hussain for Respondents.

Date of hearing: 30th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 739 #

2010 C L C 739

[Lahore]

Before Sh. Azmat Saeed, J

ABDUL RASHID ANSARI----Petitioner

Versus

JAZZ MOBILINK CO. through Director Engineer and another----Respondents

Civil Revision No.1358 of 2009, decided on 28th October, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff who claimed to be owner of the suit property, had sought injunction against the defendants from raising tower thereon---Suit which was resisted by the defendants, was dismissed by the Trial Court and appeal filed by the plaintiff against judgment of the Trial Court was also dismissed by the Appellate Court---Validity---Record showed that there were several previous rounds of litigation between the parties, whereas the plaintiff had raised the same claim with regard to the same property on the same ground and finally Supreme Court had concluded that the plaintiff had no right over the property in dispute; it was on the basis of said judgment of the Supreme Court that the Trial Court dismissed the suit which judgment was maintained in appeal---Controversy attempted to be raised, had already been decided by the Supreme Court---Suit by the appellant, in circumstances, was rightly dismissed---No exception could be taken to the impugned judgments and decrees passed by the two courts below.

Petitioner in Person.

Taqi Ahmad Khan for Respondent.

Shujat Ali Khan, A.A.-G. (on Court's call).

CLC 2010 LAHORE HIGH COURT LAHORE 740 #

2010 C L C 740

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD HUSSAIN and another----Petitioners

Versus

Ch. MUHAMMAD SHARIF through L.Rs. and another----Respondents

Civil Revision No.1587 of 2003, heard on 4th June, 2d09.

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

----Ss. 6, 13 & 31---Suit for pre-emption filed during interregnum period---Limitation---Suit was concurrently dismissed by the Trial Court and Appellate Court---Sale in question was entered through registered sale-deed on 23-2-1988 and according to the plaintiffs they acquired knowledge of such sale on 27-1-1989 i.e. eleven months and four days after the sale---Notice of Talb-i-Ishhad was issued on 30-1-1989 and suit was filed on 21-2-1989 i.e. 22 days after issuance of Talbi-Ishhad---Period of limitation for suit filed during interregnum period would be four months and not one year.

Azizul Haq v. Muhammad Aslam and others 1995 MLD 1854; Noor Begum v. Muhammad Boota and 3 others PLD 1995 Lah. 344; Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Asghar Abbas and 3 others v. Muhammad Amin and 6 others 1993 SCMR 2022 and Mehr Moman Khan v. Ghulam Abbas and 3 others 2001 SCMR 1979 ref.

Syed Muhammad Rafique Shah for Petitioner.

Rana Nasrullah Khan for Respondents.

Date of hearing: 4th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 742 #

2010 C L C 742

[Lahore]

Before Sh. Azmat Saeed, J

IJAZ AHMAD KAMRAN----Petitioner

Versus

Mst. ZUBAIDA BIBI and others----Respondents

Civil Revision No.886 of 2008, decided on 15th July, 2009.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration, possession through partition and mesne profit---Contention of plaintiffs was that suit property was owned by their deceased father and on his death mutation of inheritance was recorded whereby widow of deceased was given 5/12 share and balance. property was divided to other legal heirs---Deceased in his will had given 5/12 share to his widow instead of 1/8th share to which she would have been entitled under the law of inheritance---Trial Court dismissed the suit primarily on the ground that it was barred by limitation---Appeal filed by the plaintiffs was partially accepted in terms that suit for declaration challenging the will and the mutation in favour of widow of the deceased to the extent of 5/12 share, was held to be time barred, while the suit for partition and mesne profit was decreed---Counsel for the defendant had been unable to show as to why in such circumstances the suit for partition would not be or would become barred by limitation and the same would also hold true for the claim of mesne profit---Contention of the plaintiffs having been accepted and plaintiffs being co-owners in the property in dispute, were entitled to partition thereof and mesne profit.

Mian Ghulam Rasool for Petitioner.

Saif-ul-Haq Ziay for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 744 #

2010 C L C 744

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD ADNAN and 2 others----Petitioners

Versus

DR. BASHIR AHMED----Respondent

Civil Revision No.1365 of 2007, decided on 13th July, 2009.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of contract---Application for temporary injunction---Plaintiff was in possession of the property in dispute and agreement to sell placed on record, had clearly shown that the entire payment had been made---When the possession of the property in dispute was with the plaintiff, a prima facie case certainly had been made out and the plaintiff would suffer an irreparable loss in case he was dispossessed---Balance of convenience also lay in his favour---No jurisdictional error had been demonstrated to invite the revisional jurisdiction of High Court.

Mian Shah Abbas for Petitioners.

Nemo for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 746 #

2010 C L C 746

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD IBRAHIM and 6 others----Petitioners

Versus

DIL MORE and 19 others----Respondents

Civil Revision No.1247-D of 2003, decided on 10th July, 2009.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Sanction of mutation---Absence of executor---Effect---Mother of the plaintiff filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through inheritance by her father---Trial Court decreed the suit in favour of the plaintiffs----Defendants filed appeal which was dismissed by Appellate Court---Mother of the plaintiff asserted that the impugned mutation of Tamleek whereby her share in inheritance of disputed property, which was alleged by defendants to have been donated by her to defendants, was illegal, unlawful result of fraud and ineffective upon her rights---Validity---Plaintiffs being legal representatives stood in the shoes of their predecessor-in-interest---Defendant's witness in his cross-examination had admitted that mother of the plaintiffs was not present in one of the mutations when the same was sanctioned but was shown to have been present at the time of other mutation---Defendants failed to produce those persons as witnesses who had allegedly identified t e mother of the plaintiffs/executor---Ruptt Roznamcha Waqiati indicated that no signature or thumb-impression of any doner nor identified or attested witnesses were present there---Defendants had not produced any Revenue Officer to establish the factum of gift---Both the courts below had rightly come to the conclusion that mother of the plaintiffs had not voluntarily gifted the disputed property through impugned mutation---High Court declined to interfere in revisional jurisdiction.

Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Muhammad Ali and 6 others v. Mst. Hameedan Begum 2001 CLC 265 and Muhammad Hassan and another v. Liaqat Ali Khan 2001 CLC 1743 rel.

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

----S. 42--Suit for declaration---Inheritance---Limitation---Scope---Mother of the plaintiffs filed suit for declaration to the effect that she was owner in possession of the disputed property which was inherited by her through her father---Trial Court decreed the suit of the plaintiffs---Defendants filed appeal which was dismissed by Appellate Court---Contention of the defendants was that mother of the plaintiffs had no cause of action, suit was barred by time and she had waived her right as she had compromised with them and in lieu of compromise she had withdrawn the appeal filed by her before Additional Commissioner (Revenue)---Validity---Fraud, vitiate more solemn affirmation and no limitation runs against void orders based on fraud---High Court repelled the contention by the defendants regarding estoppel, waiver and laches on the part of the mother of the plaintiffs---Mother of the plaintiff had filed suit within time, her brothers had illegally deprived her of her share which she got from inheritance of her father through mutation in the year 1996---Perusal of the impugned judgments and decrees revealed that the conclusions arrived at by both courts below were elaborate and were based on cogent reasons---No misreading or non-reading of evidence or any other legal infirmity in judgment rendered by the courts below warranting interference by High Court.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Ghulam Haider v. Mst. Sooban Bibi and others 1986 MLD 1952; Hakim Khan v. Nazeer Ahmed Laughmani and 10 others 1992 SCMR 1832; Muhammad v. Mst. Rehman through Mst. Sharifan Bibi 1998 SCMR 1354; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Noor Muhammad v. Mst. Karim Bibi PLD 1959 (W.P.) Lah. 932; Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmed 2007 SCMR 926 rel

Sahibzada Mehboob Ali Khan for Petitioners.

Kanwar Iqbal Ahmad Khan for Respondents.

Date of hearing: 2nd July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 756 #

2010 C L C (C.S.) 756

[Lahore High Court]

Before Iqbal Hameed-ur-Rehman, J

Rai IMTIAZ HUSSAIN and another

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB LG AND CD

Writ Petition No.4804 of 2010, decided on 19th April, 2010.

Constitution of Pakistan (1973)---

----Arts. 4, 8, 25 & 199---Constitutional petition---Fundamental rights---Civil Service---Higher education---Petitioners were civil servants and with the permission of authorities joined Ph.D. programme but authorities transferred them to far off places---Validity---Petitioners joined Ph.D. programme and they had also submitted their Ph.D. Research Proposals---Petitioners had incurred expenses in taking admission in the programme after obtaining due permission/No Objection Certificate from authorities---At such stage of their studies, by transferring them to far off places, petitioners would be depriving of their right of getting higher studies, when their proposals were accepted and supervisors had been appointed and the same would amount to deprive the petitioners of their fundamental rights guaranteed under the Constitution---Order of transfer of petitioners passed by authorities was unjustified and arbitrary---High Court declared such orders of transfer as illegal, void, arbitrary, issued without lawful authority and of no legal effect-'-High Court set aside the orders of transfer of petitioners as the same amounted to deprive the petitioners of their fundamental rights provided under Arts.4, 8 and 25 of the Constitution---Petition was allowed in circumstances.

Mrs. Abid Parveen Channar v. High Court of Sindh at Karachi 2009 SCMR 605 rel.

Agha Abu-ul-Hassan Arif and Ashfaq Ahmad Malik for Petitioner.

Muhammad Azeem Malik, Addl. A.-G.

CLC 2010 LAHORE HIGH COURT LAHORE 770 #

2010 C L C 770

[Lahore]

Before Ijaz Ahmed Chaudhry, J

RIAZ-UL-HAQ SHEIKH through L.Rs.----Petitioner

Versus

ZULFIQAR HUSSAIN and 4 others----Respondents

Petitions Nos.61-C, 56-C and 58-C of 2006, decided on 29th June, 2009.

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

----Ss. 7(c)(e) & 11---Assets and liabilities---Determination---Jurisdiction---Respondents/vendees purchased land from the defunct Cooperative Society through registered sale-deed---Punjab Cooperative Board for Liquidation cancelled the sale-deed on the ground that an outstanding amount was still unpaid by the respondents---Respondents asserted that Punjab Cooperative Board for Liquidation was not competent to give finding about the sale-deed which had been finalized at much earlier time when no litigation was pending and that Punjab Cooperative Board of Liquidation or the Cooperative Judge had no jurisdiction to decide the matter as it was dispute between the private parties---Respondents claimed to have purchased the land from the Society which was declared undesirable society---Validity---All assets and liabilities of the undesirable cooperative society were to be determined under S.7 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and according to S.7(c) the Liquidation Board was competent to determine the assets and liabilities of the undesirable society and under S.7(e) of the same Act, the Liquidation Board could cancel all agreements entered into by undesirable cooperative society or its previous management or Director/Officer which, in the opinion of the Cooperative Board, were against the interest of such society---Respondents had themselves invoked the jurisdiction of the Liquidation Board and after its decision filed an application under S.11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 before the Cooperative Judge whereupon the case was remanded---Respondents again had submitted to the jurisdiction of the Liquidation Board and after decision of the Liquidation Board, respondents could not object to the jurisdiction of the Liquidation Board---Cooperative Judge dismissed the petition.

PLD 2003 SC 31; 2004 MLD 875; PLD 2003 SC 676; PLD 2005 SC 490; PLD 2005 SC 418; PLD 2006 Lah. 223 and 2007 SCMR 729 ref.

2001 SCMR 1959; 2004 CLC 60 and 2006 SCMR 1630=2006 PLC (C.S.) 1173 rel.

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

----S. 11-Non-production of original power of attorney and sale?-deed---Effect---Respondents purchased land from the defunct society through registered sale-deed---Punjab Cooperative Board for Liquidation cancelled the sale-deed on the ground that an outstanding amount was still pending to be paid---Applicants asserted that the power of attorney and sale-deed on the basis of power of attorney were forged and fictitious documents and once execution thereof was denied by them, the onus shifted to the beneficiary to prove the general power of attorney and the sale-deed---Applicants further asserted that, the respondents did not produce the original power of attorney as well as sale-deed and in absence of the original documents, the certified copies were not admissible in evidence---Beneficiaries were bound to prove the execution and attestation of the power of attorney by production of two marginal witnesses and in absence of their production, the power of attorney could not be held to have been executed and the transaction of the sale would be invalid as if the foundation was bad, all the structure laid thereon would automatically fall on the ground---Original power of attorney or the sale-deed of any of the beneficiary were not produced--In absence of the original documents the certified copies of these documents would not be admissible without providing non-availability of the original documents---Beneficiaries of the general power of attorney had failed to prove its execution in their favour and in spite of this document being registered could not be proved on record and the sale-deed on the basis thereof about the disputed land in absence of the proof would be void document---Cooperative Judge declared the sale-deed and subsequent documents void which stood cancelled.

Imam Din v. Bashir Ahmad PLD 2005 SC 418; Masood and others v. Salman Ali PLD 2003 SC 31; 2004 MLD 875,; PLD 2006 SC 676; 2005 SCMR 490; 2007 SCMR 760; PLD 2006 Lah. 223; PLD 2003 SC 303; 2004 SCMR 581; 1997 SCMR 315; 2007 CLC 177; 2005 CLC 897 and 2007 SCMR 729 rel.

Malik Noor Muhammad Awan, Naveed Shehryar Sheikh and Farooq Qureshi Chishti for Petitioners.

Kh. Saeed-ul-Zafar for Petitioner (in Petition No.56-C of 2006) and for Respondent No.2 (in Petition No.61-C of 2006).

Salah-ud-Din Shehryar Babar for Petitioner (in Petition No.58-C of 2006) and for Respondent No.3 (in Petition No.61-C of 2006).

Muhammad Ilyas Khan and Syed Faizan Haider for P.C.B.L.

Dates of hearing: 4th and 27th of June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 781 #

2010 C L C 781

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD AKRAM----Petitioner

Versus

Mst. HALIMAN BIBI and 6 others----Respondents

Civil Revision No.1064 of 1995, heard on 26th June 2009.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Parentage---Proof---Scope---Plaintiffs filed suit in the year 1985 to the effect that their predecessor-in-interest had died on 22-2-1984 leaving behind the plaintiffs, his only legal and Shariah heirs who were owners in possession of his land and that the defendant was son of and was Rajput by caste while the plaintiff were Bhatti by caste and that the defendant had no concern with the disputed land---Trial Court decreed the suit of the plaintiffs---Defendant filed appeal which was dismissed by Appellate Court---Defendant asserted that both courts below had dealt with the issue of legal heir only and had not considered the documentary evidence produced by the defendant in its true perspective and had wrongly relied upon the oral evidence ignoring the documentary evidence---Birth entry, school record regarding admission, school leaving certificate and Register Dakhal and Kharij bore the parentage of defendant as rather than 'W.M.'--Plaintiffs produced uterine brother of the defendant's mother to support their claim that she never married with W. M.' nor defendant was a son ofW.M..' rather they unanimously proved that defendant was born from the wedlock of mother of defendant with M.H.'---All the witnesses proved the fact that, mother eloped with and went toRYK' and contracted Nikah there and the defendant was born there---School admission form, other record and mutation got entered by defendant himself with the parentage of `M.H.' and Khasra Girdawari which was never challenged by defendant and presumption attached to Jamabandi which had been prepared, after a lease mutation got sanctioned by defendant himself with the parentage of Court declined to interfere in concurrent findings of fact recorded by courts below---Revision petition was dismissed.

1985 SCMR 1052; 1989 SCMR 704; Naziran Ahmad v. Boota and others 1989 SCMR 450; Riaz v. Muhammad Salim and 4 others 1989 SCMR 1491; Lahore Development Authority v. Muhammad Qasim 2003 SCMR 1311; Irshad Hussain v. Ijaz Hussain and 9 others 1994 PLD SC 326; Abdul Qayyum v. Muhammad Rafiq 2001 SCMR 1651; and Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647 ref.

Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368; Rashid Ahmad v. Said Ahmad 2007 SCMR 926; Lahore Development Authority v. Muhammad Qasim 2003 SCMR 1311 and Abdul Hakeem v. Habib Ullah and 11 others 1997 SCMR 1139 rel.

Mian Mushtaq Ahmad for Petitioner.

Sh. Zia-ud-Din Ahmad Qamar for Respondents Nos. 1 to 4.

Date of hearing: 26th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 789 #

2010 C L C 789

[Lahore]

Before Sh. Azmat Saeed, J

MANZOOR AHMAD and another----Petitioners

Versus

MUHAMMAD SAIN and others--Respondents

Writ Petition No.9043 of 2004, heard on 3rd June, 2009.

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

----S. 40---Civil Procedure Code (V of 1908), O. XXI, R.35(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Symbolic possession---Delivery of---Scope---Plaintiff filed suit challenging mutation of gift and claiming her share in the property to the extent of 1/8th share along with possession of the same---Suit was contested by defendants on the ground that plaintiff was only entitled to 1/8th share of the disputed land, symbolic possession of the entire land could not be granted---Trial Court dismissed suit of the plaintiff---Appellate Court on appeal accepted the same which finding was upheld till the apex court---Execution proceeding initiated for execution of the appellate judgment and decree was dismissed---Predecessor-in-interest of the plaintiff challenged the same in revision petition which was accepted by the Executing Court granting symbolic possession of the entire land---Validity---Appellate order revealed that mutation of gift in favour of predecessor in interest of the defendants was declared void and mutation of inheritance was restored whereunder all parties became joint co-owners in respect of the entire property of 200 Kanals---First Appellate Court had correctly granted symbolic possession to the plaintiff in execution of the said decree strictly in accordance with O.XXI, R.35(2), C.P.C.---High Court declined to interfere in findings of the first Appellate Court in constitutional petition---Constitutional petition was dismissed.

Ch. Zulfiqar Ahmad for Petitioners.

Siddique Ahmad Ch., Asghar Ali Ch. and Masood Akhtar Khan for Respondents.

Date of hearing: 3rd June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 791 #

2010 C L C 791

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD MANAWAR----Petitioner

Versus

NAZIR AHMAD and 5 others----Respondents

Civil Revision No.1749/A of 2004, decided on 16th June, 2009.

Succession Act (XXXIX of 1925)---

---Ss. 371 & 372---Dismissal of application for grant of succession certificate and such dismissal was upheld by the Appellate Court---Validity---Evidence produced by the respondent had proved that petitioner had divorced deceased (lady) in her life time---Trial Court had rightly dismissed application of the petitioner which was upheld by Appellate Court---Counsel for the petitioner was unable to point out any illegality or material irregularity in the judgments and decrees of both the courts below warranting interference by High Court in the revisional jurisdiction.

Ch. Muhammad Zafar Iqbal for Petitioner.

Muhammad Ikram Ch. for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 794 #

2010 C L C 794

[Lahore]

Before Sh. Azmat Saeed and Syed Mansoor Ali Shah, JJ

NISAR alias SHADA----Appellant

Versus

MUHAMMAD SAEED SAFDAR and 4 others----Respondents

Intra-Court Appeal No.410 in Writ Petition No.4969 of 2009, decided on 21st December, of 2009.

(a) Waqf Property (Administration) Rules, 1960---

----R. 7(a)(iii)---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Lease property---Reauction of---Procedure---Scope---Appellant challenged the decision of Single Judge whereunder reauction of bid for leasehold rights was declined in the constitutional petition---Appellant became the highest bidder when after bid they moved an application with greater offer of bid---Auqaf department directed for reauction---Constitutional petition filed by respondent was accepted by Single Judge---Validity---Held, it was clearly spelt out in the proclamation inviting bids that competent authority retained the absolute right to accept or reject any bid, such power had been exercised and the bid was rejected---Auction was held at a distance of 40 miles from the spot which was against the rule provided in R.7(a)(iii) of the Waqf Property (Administration) Rules, 1960---Decision to re-auction the leasehold of the property appeared to be in accordance with law and in the best interest of the Waqf---Intra-court appeal was allowed.

Mumtaz Ahmad Chadhar v. Rana Nasir Ali and 3 others 2005 SCMR 263 and Malik Habibullah v. Province of the Punjab through Secretary Mines and Mineral Department, Lahore and 7 others 2006 CLC 1723 ref.

(b) Auction---

----Bid---An offer---Scope---Bid submitted is no more than an offer and does not mature into a vested right in favour of the bidder till the same is accepted.

Sh. Naveed Sheheryar for Appellant.

Baleegh-uz-Zaman for Respondent No.1.

Syed Ali Ahmad for Respondents Nos.2 to 4.

CLC 2010 LAHORE HIGH COURT LAHORE 797 #

2010 C L C 797

[Lahore]

Before Arshad Mahmood, J

ABDUL RASHEED----Petitioner

Versus

JUDGE, FAMILY COURT, MIAN CHANNU and another----Respondents

Writ Petition No.4666 of 2009, decided on 16th June, 2009.

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

----S. 5, Sched. & S.10---Civil Procedure Code (V of 1908), S.151 & O. VIII, R.10--Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Plaintiff filed suit for dissolution of marriage on the basis of khula---Defendant did not file written statement---Trial Court struck off defence of the defendant on non-filing of his written statement---Validity---Although the power of closing the right of written statement was not available to the Family Court but the words "if any" couched in subsection (2) of S.10 of the West Pakistan Family Courts Act, 1964 clearly postulated the intent of legislature that the Family Court was neither helpless nor supposed to act as a silent observer to the inaction and reluctance of the defendant in filing written statement---Inherent powers as provided by S.151, C. P. C. were available to the Family Court---Family Court was competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances---Suit for dissolution of marriage had been filed against the defendant but he was delaying the matter by not filing written statement---Order of the Judge Family Court closing right of filing written statement of the defendant, in circumstances, was not open to exception---Order passed by Family Court was interim/interlocutory in nature against which a constitutional petition was not maintainable---Constitutional petition was dismissed in limine.

Maqsood Ahmad v. Judge, Family Court, Burewala and 5 others 2001 CLC 567 and Mst. Naziran Bibi v. Additional District Judge and others 2003 YLR 82 ref.

Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh.63 and Zulfiqar Ahmad v. Judge Family Court 1996 MLD 1997 rel.

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

----S. 10(2)---Civil Procedure Code (V of 1908), O. VIII, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition--Non-filing of written statement---Effect---If the interpretation that Family Court had no authority to close right of filing written statement of the defendant was taken as correct, it would render the West Pakistan Family Courts Act, 1964 practically unworkable placing the Family Court at the mercy of defendant---Defendant may never file written statement and in that eventuality no case would be decided---Court in such circumstances, could not and should not sit like a distant spectator to witness a legal battle, being fought before it by two adversaries---Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path---Such was all the more necessary and may be this was the reason for enacting a special statute conferring exclusive jurisdiction on the Family Courts to decide special family disputes.

Ghulam Murtaza v. Additional District Judge-II, D.G. Khan and 2 others 1991 CLC 81 rel.

----Preamble---Family. Court---Purpose---Scope---West Pakistan Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily mean that embargo has been placed upon the Family Court in the exercise of certain powers---Confidence has been shown in the court to proceed in the matter by exercising its inherent powers to avoid the abuse of the process of law without any hindrance of the technicalities imposed by Civil Procedure Code, 1908---Purpose of enacting Family Courts Act, 1964 is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner---All that the Family Courts Act, 1964 has done is that it has changed the forms, altered the method of trial and empowered the court to grant better remedies---Purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities.

(d) 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 khula---Scope---Only difference between the right of divorce devolved upon the husband and the right of khula by the wife is that the husband can divorce his wife without intercession of court, while wife has to approach the court to obtain dissolution of marriage---Once wife approaches the court for dissolution of marriage on the basis of khula, then court has no option, but to accede to her request, because she is entitled to divorce on basis of khula ex debito justitiae.

Muhammad Suleman Yazdani for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 801 #

2010 C L C 801

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana SAEED AHMED and 5 others----Petitioners

Versus

NASIR AHMAD and 8 others----Respondents

Writ Petition No.20492 of 2009, decided on 22nd January, 2010.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners challenged the decision of Trial Court passed in the complaint under Illegal Dispossession Act, 2005 to the effect that petitioners were owners in possession of the disputed property but respondents had colluded with each other for depriving the petitioners of their possession through filing a collusive complaint under the Act---Consensus had emerged between the counsel for the parties during hearing of the constitutional petition, that it shall serve the interests of justice if the impugned order passed by Trial Court was set aside and the matter be remanded to the Trial Court for reconsideration and re-decision of the matter after affording an opportunity to the petitioners to advance their case---Validity---Held, in peculiar circumstances of the case consensus between the parties was in the interest of fostering the ends of justice---High Court allowed the constitutional petition and set aside the order passed by Trial Court with direction to decide the matter accordingly within the next four weeks.

Muhammad Tahir Chaudhry for Petitioners.

Ch. Hamid Mahmood for Respondents Nos.1 to 3.

Sh. Maqbool Hussain for Respondents Nos.4 to 6.

Raja Nadeem Haider, Addl. A.-G. for Respondents Nos.7 to 9 with Maqbool Ahmad, Inspector with record.

CLC 2010 LAHORE HIGH COURT LAHORE 803 #

2010 C L C 803

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD DURAB YOUSAF QURESHI AL-HASHMI----Petitioner

Versus

Mst. MUNAWAR SULTANA and 2 others----Respondents

Writ Petition No.13545 of 2009, decided on 12th January, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of dowry articles---Reliance on documents---Non objection to---Effect---Plaintiff filed suit for recovery of dowry articles or its value to the sum of Rs. 700,000 on the ground that she belonged to an educated family which was financially well off and possessed considerable financial resources---Plaintiff further asserted that along with dowry articles a car was also given to her---Defendant contested suit on the ground that he had given a sum of Rs.700,000 to the plaintiff which was lying with her and the same had been misappropriated by her---Defendant further contended that other than a transfer letter regarding the car, there was no credible evidence on record to indicate that a car was actually given to him---Trial Court decreed the suit of plaintiff in the sum of Rs.350,000---Appellate Court on appeals filed by both the parties, dismissed the same---Validity---Documents produced by plaintiff were not objected to and the subordinate courts were, justified in relying upon the documents in question---Oral testimony produced by plaintiff was subjected to lengthy cross-examination---Nothing was achieved, by way of shaking credibility of the witnesses produced---Subordinate courts were circumspect in coming to the conclusion that there might have been exaggeration in calculating the value claimed by plaintiff, but at the same time, they made a conscious effort to arrive at a realistic figure on the basis of facts and circumstances of the case and evidence produced on record---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed.

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

---Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional petition---Questions of fact---Concurrent findings---Interference by High Court---Scope---Interference in the concurrent findings of subordinate courts on the questions of fact, is an exception and not the rule---In order to fall within the purview of exception, it has to be established that subordinate courts had acted illegally, with material irregularity, exercised jurisdiction not vesting in them or passed orders, which were in excess of their jurisdiction.

Nawab Saeed Ullah Khan for Petitioner.

Masood A. Malik for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 812 #

2010 C L C 812

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi and Pervaiz Inayat Malik, JJ

GOVERNMENT OF PUNJAB through Secretary Food and 3 others---Appellants

Versus

Messrs MADINA JUTE MILLS LIMITED through Director---Respondent

I.C.A. No.127 of 2007 in W.P.No.6543 of 2006, heard on 11th June, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Contractual obligation---Scope---Contract was arrived at between the parties whereby the respondent mill was to supply 2907 bales of jute bags to the appellants at the rate of Rs.51 per bag---Respondent complied with the terms and conditions of the contract and supplied required bales within specified time---Appellants, however, paid amount at the rate of Rs.48.94 per bag instead of at the rate of Rs.51 according to terms of agreement arrived at between the parties and paid Rs. 19,65,240 less which was to be paid to the respondent---Appellant having failed to pay said amount, respondent filed constitutional petition before High Court, which having been allowed by the High Court, appellant had filed intro court appeal---Contention of appellants was that constitutional petition filed before High Court was not maintainable as factual controversy/ contractual obligation was involved therein---Validity---Held, there could be no cavil with the proposition that enforcement of a purely contractual obligation could not properly form the subject-matter of proceedings under Art.199 of the Constitution, however, it could not be ignored that the State functionaries had a constitutional obligation to act fairly even when performing administrative functions---When a party complained before the court that the State while awarding a contract to a party, had acted in an unfair or arbitrary manner or had discriminated against one of the parties, who contested for the award of the contract, such grievance could be looked into by High court in exercise of its powers of judicial review under Art.199 of the Constitution---If the court was satisfied that the Government while entering into a contractual obligation had acted arbitrarily or in an unfair manner, or had discriminated between the parties before it in any manner of awarding the contract, it could interfere and strike down such action---In such like situation, the Government must honour its commitment and fulfil liability of payment of compensation/damages out of valuable public money and should uphold its dignity and credibility amongst the people.

Mahmood Ali Butt v. I.G. Punjab and others PLD 1997 SC 823 and Bayindir Insaat v. Pakistan through Ministry of Communications and 3 others PLD 2001 Lah.426 ref.

Zafarullah Khan Khakwani, Asstt. A.G. Punjab for Appellants.

Khalid Ibn-e-Aziz for Respondent.

Date of hearing: 11th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 815 #

2010 C L C 815

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

BUSHRA BIBI---Petitioner

Versus

SAIFULLAH and 4 others---Respondents

Civil Revision No.202 of 2010, decided on 11h March, 2010.

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

----O. VIII, Rr.1 & 10---Specific Relief Act (I of 1877), S.42---Suit for declaration---Petitioner/defendant failed to file written statement---Trial Court closed the right of petitioner/defendant to file written statement-Defendant instead of preferring appeal, filed an application for setting aside the order which application was also dismissed---Appellate Court dismissed the appeal for being time barred---Validity---Petitioner remained indolent and did not prefer appeal---Appellate Court, legally and lawfully, dismissed the appeal being time barred.

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

----S. 115---Revision---Scope---Revisional jurisdiction under S.115, C.P.C. was very limited---Interference could only be made in such findings which suffered front jurisdictional defect, illegality or material irregularity---Said jurisdiction could be exercised when subordinate courts had exercised the jurisdiction not vested in them or had failed to exercise jurisdiction so vested in them; or material irregularity had been committed.

Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Punge and another PLD 2002 SC 6301; 2004 YLR 959; 2001 CLC 200; 2002 SCMR 1954; 2004 CLC 658 and Umer Zad Shah and 2 others v. Karim Dad Khan 2004 CLC 1811 ref.

Alamgir Khan through L.Rs. and others v. Haji Abdul Sattar Khan and others 2009 SCMR 54 rel.

Muhammad Kabir Khan for Petitioner.

Ch. Muhammad Siddique for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 819 #

2010 C L C 819

[Lahore]

Before Ch. Muhammad Tariq, J

Hakim KHUSHI MUHAMMAD---Petitioner

Versus

Mst. TALAAT RANA and 7 others---Respondents

Civil Revision No.812 of 2000, decided on 11th March, 2010.

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

----S. 12---Punjab Rented Premises Act (VII of 2009), S.15---Suit for specific performance---Both Trial Court and Appellate Court dismissed the suit---Validity---Mere assertion that plaintiff had been putting up on the disputed plot for forty years did not create any title in his favour.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 15---Ejectment of tenant---Construction and improvement on suit plot without permission of landlord itself was a ground for ejectment.

----Once a tenant, always a tenant.

Ch. Imtiaz Ahmad Kamboh for Petitioner.

Saber Hussain Ch. for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 821 #

2010 C L C 821

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD TAYYAB---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.23564 of 2009, decided on 10th February, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance against father of minor---Trial Court awarded maintenance at Rs.3000 per month which was reduced to Rs.1500 per month by the first Appellate Court---Validity---Father was bound by law to maintain his child, he attempted to avoid payment of maintenance relying on a document pertaining to the custody of the child---Both courts below had correctly found that such document was not binding---Impugned appellate judgment being not sustainable, constitutional petition was accepted.

Malik Wajid Ali Khokhar for Petitioner.

Zahid Hussain Khan for Respondent No.3.

CLC 2010 LAHORE HIGH COURT LAHORE 823 #

2010 C L C 823

[Lahore]

Before Arshad Mahmood, J

KHURSHID ALI---Petitioner

Versus

SHEHBAZ AHMAD---Respondent

Writ Petition No.5596 of 2008, heard on 8th July, 2009.

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

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Ex parte proceedings---Petitioner/ tenant filed reply to the ejectment application and case was adjourned and on the same day landlord filed an application for early hearing of ejectment application, upon which a notice was issued to the tenant for fixation of application for early hearing---On said date though notice was issued to the tenant only upon the application for early hearing, he was proceeded against ex parte in the main ejectment application and case was adjourned for ex parte evidence---On the adjourned date of hearing, ex parte evidence of landlord was recorded and case was adjourned for orders---On adjourned date of hearing tenant filed application for setting aside ex parte proceedings, but same having been dismissed, tenant had filed constitutional petition---Proceedings in the case were not concluded in a transparent manner as firstly tenant could not have been proceeded against ex parte on the date when notice was issued to him only upon the application for early hearing and he had no intimation about the fixation of the main ejectment application; secondly tenant had moved an application for setting aside ex parte proceedings first after nineteen days of the ex parte proceedings which should have been set aside because justice should not only be done, but it should be seen to have been done---Impugned order, in circumstances was arbitrary, perverse and seemed to be tainted with mala fide---Even otherwise, law favoured adjudication on merits rather on technicalities---Allowing constitutional petition, impugned order was set aside and case was remitted to District Judge for entrustment of the same to some other Rent Controller for its onward disposal in accordance with law.

Aamir Altaf Khan Alizai for Petitioner.

Sheikh Ejaz Ahmad for Respondent.

Date of hearing: 8th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 825 #

2010 C L C 825

[Lahore]

Before Ch. Muhammad Tariq, J

FAISALABAD DEVELOPMENT AUTHORITY, FAISALABAD through Director General and another---Petitioner

Versus

Mst. KHURSHID BEGUM and 5 others---Respondents

Civil Revision No.1316 of 1999, decided on 8th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act (I of 1995), S.3---Suit for declaration-Predecessor of plaintiffs averred in the plaint that he was a resident of Kachi Abadi prior to 1-1-1978; his name, however, was not entered in the survey conducted by Development Authority in 1974-75; as an alternate accommodation he was allotted a house but no proprietary rights were given to him---Trial Court dismissed the suit---Plaintiffs filed appeal before appellate Court which accepted the appeal and set aside the judgment and decree of Trial Court---Validity---Plaintiffs were entitled to the advantage of S.3 of Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995, which conferred all rights, title and interest whatever, in the land which was situated within the Abadi Deh and which was under a house owned by non proprietor, shall, on the commencement of the Act, vest in the non proprietor under whose house it was situate---Petition was dismissed.

Nemo for Petitioner.

Ch. Muhammad Amin Javed for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 828 #

2010 C L C 828

[Lahore]

Before Ali Akbar Qureshi, J

Miss SABOOR through real Mother---Petitioner

Versus

KASHIF SOHAIL and another---Respondents

Writ Petition No.18168 of 2008, decided on 26th 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 of minor---Plaintiff minor girl demanded Rs.5, 000 per month for her maintenance, but Family Court decreed maintenance allowance Rs.800 per month and the minor plaintiff had filed constitutional petition---Plaintiff had claimed that defendant who was getting Rs.15,000 per month as salary, could easily pay the maintenance allowance, as Rs.5,000 per month---Validity---Maintenance allowance of Rs.800 as granted by the Family Court, was totally insufficient as compared to the necessities of the minor and the income of the defendant as Rs.15,000 per month-Minor who was 2-1/2 years old, was entitled to receive the maintenance amount of Rs.2500 per month for her financial survival---Judgment and decree passed by the Family Court was modified and maintenance allowance of the minor was fixed at Rs.2, 500 pre month.

Mahmood Tahir Chaudhry for Petitioner.

Respondent No.1: Ex parte.

CLC 2010 LAHORE HIGH COURT LAHORE 830 #

2010 C L C 830

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SHARIF and others---Petitioners

Versus

MUHAMMAD HANIF and others---Respondents

Writ Petition No.20720 of 2002, decided on 1st March, 2010.

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

----S. 11, O.VII, R.11 & O.XVII, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Res judicata, principle of---Applicability---Scope---Defendants contended that an earlier suit filed by same plaintiffs was dismissed, hence the suit was barred by principle of res judicata---Trial Court dismissed application under O. VII, R.11, C.P.C.---Defendants assailed the order of Trial Court before the Additional District Judge who set aside the order of Trial Court and rejected the plaint---Validity---Held, that earlier suit having been dismissed for failure to file the amended plaint, besides no issue was framed the suit was not dismissed on merits---Principle of res judicata was applicable only if the matter had been adjudicated upon finally on merits---Dismissal order under O.XVII, R.3, C.P.C., in the present case, did not operate as res judicata---Impugned order of Appellate Court was set aside---Constitutional petition was accepted and matter was sent back to Trial Court with direction to allow time to the plaintiffs for filing the amended plaint.

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

----O. XVII, R.3---Scope and application of O.XVII, R.3, C.P.C.---Term `decide' referred to in O.XVII, R.3, C.P.C. could only be pressed into service when there was no material available on record for the disposal of suit---Entire suit could not be dismissed on the basis of default on the part of one of the plaintiffs---Provisions of R.3 of O.XVII, C.P.C. were permissive and not mandatory; action should be taken only when the party was wilfully negligent---Condition mentioned in R.3, O.XVII, C.P.C. must be fulfilled before the action was initiated---Petition was allowed.

Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300; Hashmatullah v. Muhammad Shafi Butt and 3 others 1999 CLC 916; Government of N.-W.F.P. through Secretary C&W and others v. Messrs Tahir Shoaib-Rashid Shoaib 1998 CLC 1680 and Pervaiz and 2 others v. The State and others 1998 SCMR 1976 ref.

Zahid Saleem for Petitioners.

Muhammad Farooq Qureshi Chishti for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 836 #

2010 C L C 836

[Lahore]

Before S. Ali Hassan Rizvi, J

AZHAR FAREED---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, PAKPATTAN SHARIF and 4 others---Respondents

Writ Petition No.2534 of 2009, decided on 11th February, 2009.

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 and for recovery of dowry articles---Brother of the plaintiff who had a property in the commercial area and was running shops and wheat grinding machine, had ample sources to give dowry articles to the plaintiff at the time of marriage---Receipts of purchase of articles of dowry were exhibited---Plaintiff was subjected to lengthy cross-examination on each and every item---Defendant had admitted the delivery of certain articles of the dowry, but denied the price fixed for such items---Trial Court thrashed out the evidence and believed only certain articles which had been proved---Plaintiff claimed Rs.2,96,230, but decree was passed to the extent of Rs.1, 66, 700---Counsel for defendant had failed to point out any illegality in appreciation of evidence---Defendant, who had a business and was an earning hand, was duty bound to provide maintenance to his minor daughter---Maintenance amount fixed was not beyond the sources of the defendant---Constitutional petition was dismissed.

Muhammad Yasin Hatif for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 837 #

2010 C L C 837

[Lahore]

Before Arshad Mahmood, J

GHULAM HUSSAIN---Petitioner

Versus

MUHAMMAD BILAL---Respondent

Civil Revision No.373-D of 1996, heard on 24th June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 126---Suit for declaration---Gift, cancellation of---Courts below considering the factum that mutation of tamleek was sanctioned in favour of the defendant when he was a minor, dismissed the suit filed by the plaintiff---Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness---After scrutinizing the entire evidence on record, it was concluded that defendant had successfully proved the factum of appearance of the plaintiff before the revenue hierarchy for attestation of mutation of tamleek---Courts below had further observed that there was valid offer and acceptance; and as the tamleek was made in favour of minor son, there was no need for transfer of possession---Findings of the courts below, in circumstances, were made on proper appreciation of evidence---Concurrent findings of fact recorded were not open to exception, unless it was established that same suffered from jurisdictional defect or were based on misreading or non-reading of evidence, which elements were conspicuously lacking in the revision.

Mst. Bibi Muhtar v. Mst. Amrezan and another PLD 1968 Pesh. 169; Nazir Ahmad v. Umra and others 2002 SCMR 1114; Aurangzeb through LRs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 rel.

Sahibzada Mehboob Ali Khan for Petitioner.

M. Riaz Khan Baber and Mian Ashfaque Ahmad Sial for Respondent.

Date of hearing: 24th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 840 #

2010 C L C 840

[Lahore]

Before Ali Akbar Qureshi, J

Miss SABOOR through real mother---Petitioner

Versus

KASHIF SOHAIL and another---Respondents

Review Petition No.44 of 2009 in Writ Petition No.18168 of 2008, decided on 26th May, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Review of order passed by the High Court in constitutional petition---Enhancement of amount of maintenance---Petitioner had sought review of the order passed by the High Court in constitutional petition on the ground that maintenance of minor was enhanced from Rs.800 per month to Rs.2500 per month, but had not mentioned regarding previous/past maintenance awarded by Family Court---Held, while disposing of the constitutional petition, monthly maintenance of minor was enhanced to Rs.2500 from Rs.800 w.e.f. February 2009---Order clearly showed that past maintenance would be Rs.800 per month as decreed by the Family Court, however for clarification, it was observed by the High Court that past maintenance will be given to the minor as per decree of the Trial Court, whereas future maintenance would be paid at enhanced rate of Rs. 2500 per month w.e.f. February 2009.

Mahmood Tahir Chaudhry for Petitioner.

Nemo for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 841 #

2010 C L C 841

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD ASHRAF---Petitioner

Versus

GHULAM HUSSAIN and 4 others---Respondents

Civil Revision No.1159 of 2005, decided on 10th July, 2009.

Civil Procedure Code (V of 1908)---

----S. 115---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Revision petition---Burden of proof---Revision petition had been filed against concurrent judgments and decrees of the courts below---Not only the Trial Court, but the Appellate Court had also attended to all the important aspects of the case; and discussed the evidence available on record---Contention of the counsel for the petitioner that as the fraud alleged by the petitioner was denied by the respondents, so the burden to prove the same was on the shoulders of the respondents, had no force, because the onus to prove a fact would rest on the shoulders of the person who raised the same and not on the opposite party---No illegality was found to warrant interference with the impugned judgments and decrees passed by the both the courts below which were concurrent in nature.

PLD 2007 SC (AJK) 20; 2006 SCMR 1594; 2004 SCMR 1; 2007 MLD 1732; 2007 YLR 2220; 2004 CLC 950 and 2009 CLC 219 ref.

A. D. Naseem for Petitioner.

Ch. Muhammad Din Ansari for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 843 #

2010 C L C 843

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD FARYAD---Petitioner

Versus

MEMOONA NAZLI and another---Respondents

Writ Petitions Nos.11421 and 11422 of 2008, decided on 25th May, 2009.

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 its value and maintenance---After framing of issues, the plaintiff produced evidence, whereafter the defendant was directed to produce his evidence; but he failed despite several opportunities, including last opportunity and his defence was closed---Family matters were to be decided expeditiously and the defendant was informed by the Trial Court about that and given a last opportunity to produce his evidence, but he failed to do so---Counsel of defendant was unable to point out any illegality or material irregularity in the judgments and decrees of both the courts below warranting interference by the High Court in the constitutional jurisdiction---Constitutional petition was dismissed.

Maqbool Hussain Sh. for Petitioner.

Shabbir Hussain Dhiloon for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 846 #

2010 C L C 846

[Lahore]

Before Hafiz Tariq Nasim, J

MAHI KHAN---Petitioner

Versus

SALMA BIBI and 2 others---Respondents

Writ Petition No.9095 of 2008, decided on 25th March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Legal question could be raised even before the High Court, if the same was not raised before the lower court, because despite non-raising any legal objection by any party, it was obligatory on the part of the court to apply law in its strict sense:

Syed Faiz-ul-Hassan for Petitioner.

Syed Ali Raza Rizvi for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 847 #

2010 C L C 847

[Lahore]

Before Sh. Azmat Saeed, J

AAMIR HAMEED---Petitioner

Versus

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

Writ Petition No.839 of 2010, decided on 15th March, 2010.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment petition---Tenant entered appearance but did not file an application for leave to defend---Trial Court passed ejectment order---Appeal by tenant was accepted and case was remanded to Trial Court for decision afresh---Tenant failed to appear and ex parte proceedings were ordered against him---Tenant filed application for setting aside the ex parte proceedings but did not file application for leave to defend, resultantly, the Rent Tribunal ordered ejectment of tenant---Appeal of tenant was dismissed---Validity---Tenant did not file application for leave to defend even when he joined proceedings before Rent Tribunal as directed by Appellate Court---Law must take its course and tenant must suffer the consequences---Order and appellate judgment impugned, being in accordance with law, constitutional petition by tenant was dismissed.

Shahid Shaukat for Petitioner.

M. Akram Nizami for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 853 #

2010 C L C 853

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mian SHAHBAZ AHMED----Petitioner

Versus

PUNJAB COOPERATIVE BOARD OF LIQUIDATION, LAHORE through Secretary----Respondent

Petition No.1579/C of 2002, decided on 5th June, 2009.

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

----S.11---Qanun-e-Shahadat (10 of 1984), Art.2(1)(b) & (c)---Oral evidence could not prevail over documentary evidence.

Jehangir A. Jhoja for Petitioner.

Muhammad Ilyas Khan for PCBL/Respondent.

Date of hearing: 6th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 873 #

2010 C L C 873

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AJMAL RAFIQUE----Petitioner

Versus

PUNJAB COOPERATIVE BOARD OF LIQUIDATION, LAHORE and another----Respondents

Petition No.130-C of 2007, decided on 1st July, 2009.

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

----Ss.7(c)( & 11---Registration Act (XVI of 1908), S.60(2)---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---Registered sale-deed executed on 26-6-1991 in favour of petitioner by Manager of defunct Corporation---Application in year 2004 for obtaining "NOC" from Punjab Cooperative Board of Liquidation for sanction of mutation on basis of such sale deed---Cancellation of such sale-deed by Board for being executed by incompetent person---Validity---When competency of executant was challenged, then onus would shift upon vendee to prove that sale-deed had been executed according to law---Nothing was available on record to show that such Manager was authorized through a resolution of Managing Committee of defendant Corporation to execute such sale deed on its behalf and receive amount---Nothing was on record to show that Managing Committee of Corporation through its resolution had approved such sale---Officers authorized by Managing Committee of Corporation to execute sale-deed on behalf of Corporation were neither empowered to delegate their powers nor had delegated their powers to such Manager---Statements of witnesses produced by petitioner regarding place and time of payment were contradictory to each other---Petitioner had not examined second marginal witness and Local Commission of such sale-deed---Petitioner had failed to prove that any deal had been struck with defunct Corporation; that such Manager was authorized to execute sale-deed; and that he had paid sale consideration---Such deal had been struck on 26-6-1991, when cooperative scam had already come on surface---Board or Cooperative Judge were the ultimate authorities to take cognizance of matters relating to defunct Societies, which were not finalized and still needed consideration---High Court dismissed petition in circumstances.

PLD 2006 SC 676 rel.

Habib Bank Ltd. Mubarak Alam Syed 1987 CLC 1914; 1971 SCMR 414 and 1989 MLD 4314 distinguished.

Mirza Hafeez ur Rehman for Petitioner.

Muhammad Ilyas Khan, PCBL for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 890 #

2010 C L C 890

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD IDREES----Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and 2 others----Respondents

Writ Petition No.1740 of 2010, decided on 15th March, 2010.

Educational institution---

----Examination---Cancellation of answer books---Show-cause notice---Effect---Petitioner who appeared in the final examination of B.Sc. Civil Engineering in the year, 2008, had received four show-cause notices with the allegation that he was found involved in managing to change the solved answer books in violation of regulation of the university--Inquiry Committee of the university had cancelled all four papers of the petitioner and was given chance to re-appear in the examination---Petitioner had challenged such cancellation---Record revealed that external examiner had reported that he had received the bundle of answer books without seal and the same were opened---Person who had entered the fictitious number on the detached papers stated that the same was not in his handwriting---Lines drawn in zigzag shape before detaching the papers from the original answer sheets did not correspond with each other which showed that the answer sheets had been changed---University had strictly proceeded in accordance with law and even had made the favourable decision in favour of the petitioner by allowing him to appear in the examination---Constitutional petition was dismissed by High Court.

PLD 1970 Lahore 811; PLD 1978 Lah. 972; PLD 1981 SC 176; 2009 CLC 112 and 2007 MLD 282 distinguished.

Khurshid Ahmad Khan for Petitioner.

Malik Muhammad Tariq Rajawana for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 900 #

2010 C L C 900

[Lahore]

Before Ch. Muhammad Tariq, J

ASLAM MEHMOOD----Petitioner

Versus

MEMBER (JUDICIAL-VII), BOARD OF REVENUE PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.19030 of 2009, decided on 17th March, 2010.

West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan (1973), Art.199--Constitutional petition---Lambardar, appointment of---Rule of primogeniture, applicability---Scope---Rule of primogeniture was against the injunctions of Islam---By virtue of abolition of rule of primogeniture, qualification of hereditary claim had ceased to exist.

Rana Zahoor Ali Khan for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 905 #

2010 C L C 905

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

NISAR AHMAD----Petitioner

Versus

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

Writ Petition No.7378 of 2008, decided on 19th January, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles, dower and maintenance allowance---Defendant contended that alleged house as claimed by the plaintiff was not transferred to her---Defendant further contended that a compromise was effected between the parties and the defendant had paid an amount of Rs.150,000 as price of land and dowry articles to the plaintiff and this was done to bring the plaintiff to his house but she remained with the defendant only for a week and thereafter left the house of the defendant without any reason---Trial Court decreed suit of the plaintiff for maintenance at the rate of Rs.2000 per month with effect from the institution of suit, dowry articles of value of Rs.200,000; dower in shape of gold ornaments or its value of Rs.200,000 and the alleged house or its value of Rs.200,000---Appeals filed by defendant were dismissed by Appellate Court---Validity---Defendant had withheld the best evidence and did not append with the constitutional petition complete copy of statement of his witness---Plaintiff's witness had supported the claim of the plaintiff---Defendant could not point out any jurisdictional defect or error in the judgment of two courts below---Constitutional petition was dismissed by High Court.

Tahir Mehmood for Petitioner.

Sh. Nazar Hussain for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 916 #

2010 C L C 916

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mrs. KISHWAR ASHRAF----Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE (MEMBER REVENUE), PUNJAB, LAHORE and 2 others----Respondents

Writ Petitions Nos. 6713 of 2009, decided on 15th February, 2010.

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

----Ss.10 & 30(2)---Constitution' of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Disputed question of fact---Fraudulent transaction---Cancellation of allotment--Petitioner claimed to be bona fide purchaser through exchange from persons who claimed to be allottees of land in question---Board of Revenue issued notice under S.30 (2) of Colonization of Government Lands (Punjab) Act, 1912, to the persons from whom petitioner purchased the land and cancelled allotment in their favour---Validity---Allottees maneuvered proprietary rights in their favour with connivance of revenue officials and Board of Revenue had rightly issued notices under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912, as the provision of law had empowered Board of Revenue to cancel grant of rights based on fraud and misrepresentation obtained through concealment of facts---Petitioner was transferee through exchange of land from allottees and foundation of allottees with regard to land in dispute was shaky, based on fraud and mis-representation, as the allottees did not obtain proprietary rights and had not got executed conveyance deed in their favour fairly and honestly---Any subsequent transfer of land in dispute by fraudulent allottees could not sustain---If foundation was weak and was likely to be collapsed, the structure built thereupon must collapse---High Court, under constitutional jurisdiction could not decide whether conveyance deed was obtained through fraud or misrepresentation, as serious factual controversy was involved to settle the issue, which could only be adjudicated upon after recording of evidence of both the parties---Question of fraud could not be adjudicated in constitutional jurisdiction and the same could always be challenged before Civil Court---Parties could not be left out without any relief and Civil Court had got jurisdiction in such matters---High Court in exercise of constitutional jurisdiction declined to interfere in the order passed by Board of Revenue---Petition was dismissed in circumstances.?

Muhammad Aslam v. Muhammad Akram and others Law Notes 1968 Lah. 176; PLD 1968 Lah. 1155; Muhammad Rafique v. Hashmat Ali PLD 1992 SC 37 and Muhammad Khan v. Province of Punjab 2007 SCMR 1169 ref.

Muhammad Tariq Khan v. Muhammad Sarwar Aami 2007 SCMR 818; Muhammad Hassan v. Muslim Commercial Bank Ltd. 2003 CLD 1693 (d) and Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612 rel.

Ch. Muhammad Ashraf for Petitioner.

Javaid Saeed Pirzada for A.A.-G.

Malik Muhammad Latif Khokhar for Respondents.

Riasat Ali, Junior Clerk, Muhammad Yar, Patwari and Mulazim Hussain, Junior Clerk, Aquaf Department.

CLC 2010 LAHORE HIGH COURT LAHORE 933 #

2010 C L C 933

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ABDUL KHALIQ----Petitioner

Versus

MUHAMMAD AKHTAR through Legal Heirs and others----Respondents

Civil Revision No.120 of 2010, decided on 8th February, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Oral agreement---Concurrent findings of fact by the courts below---Plaintiff claimed to be owner in possession of suit land on the basis of oral agreement to sell and payment was also claimed by plaintiff in cash in presence of witnesses---Both the courts below declined to grant interim injunction in favour of plaintiff---Validity---Amount was not paid by plaintiff through any documentary transaction and agreement to sell was also not in existence in black and white---Defendants were legal heirs of deceased owner of suit property and on his demise the same devolved upon them, thus they were lawful owners and they could not be stopped from using of land in question in any manner whatsoever they liked---Entries in revenue papers in favour of plaintiff were yet to be scrutinized at the time of recording of evidence---Proper form to file suit for plaintiff would have to file suit for specific performance against deceased in his life time---Plaintiff had yet to prove his prima facie case---Balance of convenience and irreparable loss for grant of temporary injunction was to be proved by plaintiff and if one of the ingredients was missing temporary injunction could be refused---Both the orders, passed by Trial Court dismissing application of plaintiff for temporary injunction and order passed by Lower Appellate Court by which order of Trial Court was upheld, were in consonance with law---No irregularity or illegality in both the orders of two courts below was found---Concurrent findings could not be disturbed in revisional jurisdiction, unless gross illegality was pointed out with regard to jurisdiction or defect in the orders assailed through civil revision application---High Court declined to interfere in the concurrent orders passed by two courts below---Revision was dismissed in circumstances.

Syed Hamid Ali Bukhari for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 939 #

2010 C L C 939

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ALLAH DITTA and 5 others----Petitioners

Versus

MUHAMMAD SHAFI and 6 others----Respondents

Civil Revision No.55 and C.M. No. 112-C of 2010, decided on 20th January, 2010.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Possession, proof of---Report of local commission---Concurrent findings of fact by the courts below---Plaintiffs claimed to be owners in possession of shops but defendants denied the same, therefore, on divergent pleadings of parties, Trial Court appointed local commission for spot inspection---Trial Court relying on the report of local commission granted interim injunction in favour of plaintiffs---Validity---Fact of possession was admired by defendants and orders passed by both the courts below were based on convincing, rational and cogent reasons---Defendants failed to point out any illegality or irregularity in orders passed by courts below and basic ingredient for grant of temporary injunction i.e. possession of plaintiffs was admitted on the site---Plaintiffs were even owners in joint Khata which was yet to be partitioned, which fact had established their prima facie case---If application of plaintiffs was dismissed and if temporary injunction was refused and order for maintaining status quo was not passed by Trial Court, then there was an apprehension that defendants could have created inconvenience by selling joint property in the hands of others---High Court declined to interfere in concurrent orders passed by two courts below---Revision was dismissed in circumstances.?

Tahir Mehmood for Petitioners.

CLC 2010 LAHORE HIGH COURT LAHORE 945 #

2010 C L C 945

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

NAWAB DIN and 2 others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/DOR Vehari and others----Respondents

Civil Revision No.438-D of 2008, decided on 10th December, 2009.

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

----S.36---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Civil suit---Maintainability---Bar on jurisdiction of Civil Court---Scope---Concurrent findings of fact by the courts below---Property in question was allotted by the authorities in favour of plaintiff but the allotment was cancelled by Board of Revenue---Plaintiff assailed the order passed by Board of Revenue before Civil Court but suit and appeal filed by plaintiff were concurrently dismissed by both the courts below---Validity---Dispute of property in question fell purely within the jurisdiction of revenue courts and suit could not be filed, as the same was not maintainable---Jurisdiction of Civil Court in such like cases under S. 36 of Colonization of Government Lands (Punjab) Act, 1912, was barred---Concurrent findings of fact against plaintiff could not be disturbed unless some misreading or non-reading was pointed out, for which plaintiff failed---High Court in exercise of revisional jurisdiction declined to interfere in the judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others 1998 SCMR 468; Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Shafi Muhammad v. Khanzada Gul 2007 SCMR 368 and Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 fol.

Tahir Mehmood for Petitioners.

2010 C L C 963

[Lahore]

Before Ch. Muhammad Tariq, J

LAL DIN through Special Power of Attorney---Petitioner

Versus

Syed SABIR HUSSAIN SHAH and 9 others---Respondents

Civil Revision No.2028 of 2009, decided on 10th March, 2010.

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

---S.13---Right of pre-emption---Enforcement---Talb-e-Muwathibat---Proof---Contradiction in statements of witnesses---Notice of sale---Principle of estoppel---Applicability---Pre-emptor asserted that he came to know about the sale of suit-land when he was sitting in his house along with the witnesses at evening time---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same---Validity---Witness of pre-emptor contradicted his statement and stated that he came to know about the sale of suit property on the same day at about 4/5 in the evening and he informed the pre-emptor about the sale of suit property in presence of other witnesses---During cross-examination pre-emptor's witness admitted that before sale of suit-land everybody was informed that any person who was interested in purchase of the land he could purchase the same; proper notice as required under the law therefore, was served upon residents of the area including pre-emptor---Pre-emptor's witness stated that "Shaam"/evening meant after 7:30 P.M. and another witness of pre-emptor stated in his examination-in-chief that pre-emptor was informed about sale of suit-land at 5`O' clock afternoon---None of the witnesses was constant on the point and there were discrepancies amongst the statement of all pre-emptor's witnesses--- Pre-emptor was also estopped by his words and conduct to file the suit because vendor had already announced about the sale of suit-land which was in the knowledge of residents of the area---High Court did not find any jurisdictional error in the judgment passed by Lower Appellate Court, warranting interference by High Court---Revision was dismissed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 966 #

2010 C L C 966

[Lahore]

Before Sh. Azmat Saeed, J

Mian ALLAH DITTA through Legal Heirs---Petitioner

Versus

Mst. SAKINA BIBI through Leal Heirs and another---Respondents

Civil Revision No.1202 of 2005, decided on 23rd February, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Execution of document by an illiterate lady---Effect---Respondent/plaintiff alleged that general power of attorney was result of misrepresentation and fraud---Trial Court dismissed the suit---Appellate Court set aside the judgment and decree of Trial Court and suit was decreed in favour of plaintiffs---Validity---Where executant was an illiterate and old lady and there was no evidence for independent legal advice or support of any male relative, to her, such transaction, upon its denial, could not be upheld--Impugned judgment was upheld, in circumstances.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bhibi and 4 others 1993 SCMR 462; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500; Pakistan Banking Council and another v. Ali Maohtaram Naqvi and others 1985 SCMR 714; Khalil-ur-Rehman v. Mst. Halim Khatoon PLD 2001 Lah. 63; Mst Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591; Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131; Faiz Muhammad through legal representatives and others v. Mst. Khurshid Bibi PLD 2009 Lah. 41 ref.

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

Ch. Khurshid Ahmed for Petitioner.

M.M. Javed Iqbal for Respondents Nos.1(i) to (ix).

Nemo for Respondent No.2.

CLC 2010 LAHORE HIGH COURT LAHORE 970 #

2010 C L C 970

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

KHAN MUHAMMAD---Petitioner

Versus

KHURSHEED---Respondent

Civil Revision No.248-D of 2007, decided on 15th May, 2009.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Signatures on sale-deed---Admission---Effect---Plaintiff filed suit for declaration to the effect that he was owner of the disputed land and the defendant had no concern with it---Trial Court dismissed the suit of the plaintiff---Appeal filed by plaintiff was allowed by the Appellate Court---Contention of the defendant was that sale-deed had been proved through marginal witnesses, who had admitted their signatures but the Appellate Court had set aside the judgment and decree passed by the Trial Court without logical basis and the Appellate Court was wrongly influenced by the compromise which was not available on the record---Plaintiff had badly failed to discharge his burden of proof---Appellate Court while upsetting the well-reasoned judgment of the Trial Court had observed that sale-deed was executed during the year 1976 and the same was incorporated in the Revenue Record in the year 2000---Under S.42 of the West Pakistan Land Revenue Act, 1967 no period of limitation has been prescribed for entry and attestation of mutation on the basis of registered sale-deed---Registration Authority was duty bound to send the "Purcha Registry" to the concerned revenue authority for the entry and attestation of the mutation---Where vendee or transferee did not present registered deed for entry of mutation, then it was the duty of the revenue authority to enter an appropriate mutation in the Revenue Record on the basis of "Purcha Registry" directly sent by the Registration Authority---Plaintiff's witnesses had admitted their signatures on sale-deed and after admitting the signature there was no justification for Appellate Court for setting aside the well-reasoned findings of the Trial Court---High Court allowed the revision petition and the judgment and decree passed by the Appellate Court were set aside.

Umar bin v. Muhammad Anwar 2003 YLR 67 rel.

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

----Art. 101---Registration Act (XVI of 1908), S.60---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Presumption of truth---30 years old document---Validity---Plaintiff filed suit for declaration to the effect that he was owner of the disputed land and the defendant had no concern with it---Trial Court dismissed the suit of the plaintiff---Appeal filed by the plaintiff was allowed by the Appellate Court---Defendant asserted that Appellate Court had not properly considered the registered sale-deed as the presumption of truth was attached to the same which was too 30 years old document---Defendant had validly discharged its burden in proving the sale-deed---Under S.60 of the Registration Act, 1908 presumption of truth is attached with the registered instrument---Sale-deed is a public document and being more than 30 years old, presumption of truth was allowed to it as envisaged in Art.101 of Qanun-e-Shahadat---Plaintiff had badly failed to discharge its burden of proof---Revision petition was allowed by High Court.

Mst. Naseem Fatima v. Sheikh Ala-ud-Din and others PLD 2005 SC 455; Safdar Hussain v. Muhammad Azam Khan PLD 2009 Lah. 247; Pirla and others v. Noora and others; PLD 1976 Lah. 6; Haxzrathullah v. District Council Haripur 1997 SCMR 1570; Mst. Taj Bibi v. Syed Ahmad Shah 1989 SCMR 1001; Feroze Khan and others v. Mst: Waziran Bibi 1987 SCMR 1647 and Muhammad Tufail v. Abdul Aziz through Legal Heirs PLD 1998 Lah. 37 rel.

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Pleas---Contradiction---Effect---Plaintiff filed suit for declaration to the effect that he was owner of the disputed land and the defendant had no concern with it---Trial Court dismissed the suit of the plaintiff---Appeal filed by plaintiff was allowed by Appellate Court---Defendant asserted that plaintiff had taken contradictory pleas at different stages in evidence produced by him was beyond the pleadings which could not be considered and the Appellate Court had upset the findings on issues without considering the relevant record---Appellate Court had ignored that plaintiff had taken different pleas at different stages---Evidence produced by plaintiff was beyond the pleadings of the plaintiff---Plaintiff had failed to prove exchange-deed, compromise-deed or plea of fraud, plea of influence, plea of cheating, undue influence---Pleas were contradictory to each other and the same were ignored by the Appellate Court---Revision petition was allowed by High Court.

Saghir Ahmad Bhatti for Petitioner.

Kanwar Intizar Muhammad Khan for Respondent.

Date of hearing: 7th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 976 #

2010 C L C 976

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD MANSHA---Petitioner

Versus

MEMBER/CHIEF SETTLEMENT COMMISSIONER and others---Respondents

Writ Petition No.79-R of 2007, heard on 5th June, 2009.

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

----S. 3(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Auction of land---Extra institutional influence---Effect---Grievance of petitioner was that he was highest bidder but authorities allotted land in question to respondent on the basis of some extra institutional influence---Validity---Once . it had been decided after scrutiny of record that property should be put to auction, authorities had no jurisdiction to advert to the mode of proceedings to the benefit of respondent---Petitioner had been facing atrocities on the part of Executive---Litigant public had always come in law courts with expectation of judicial treatment with their cases of facing incidental hardship and their dispute should not be decided on extraneous consideration or on recommendations of persons having some authority or influence to wield---System would be spoiled if already not destroyed and stream of justice should be allowed to flow unpolluted by extra institutional influence---While passing order in favour of respondent, authorities had transgressed the limit of jurisdiction in behaving under the command of Army personnel---Order passed by authorities in favour of respondent was without lawful authority, of no legal effect and mala fide---Decision taken in favour of petitioner originally in auction proceedings would remain intact and petitioner was declared owner of land in question---Petition was allowed accordingly.

Masood Abid Naqvi for Petitioner.

Ms. Sumera Ijaz for Respondents.

Amjad Ali Chattha, A.A.-G. with Mehboob Aalam Nutkani, Secretary S & R for the State.

Date of hearing: 5h June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 980 #

2010 C L C 980

[Lahore]

Before Ch. Muhammad Tariq, J

ALTAF HUSSAIN and another---Petitioners

Versus

ABDUL MAJEED and 2 others---Respondents

Writ Petition No.301 of 2010, decided on 10th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, R.1 & O. VI, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration and permanent injunction---Plaintiff alleged that the suit house was in his exclusive possession and the defendants had no title to the house---Initially, defendant stated in written statement that the house was sold for Rs.30,00,000 but later submitted an application for amendment in the written statement to the effect that the said house was sold for Rs. 17,00,000---False price of Rs.50,000 was mentioned on mutation in order to evade tax---Trial Court allowed the application for amendment---Plaintiff contended that amendment could not be allowed in respect of admission or denial which were part of pleadings---District Judge accepted revision and set aside order of Trial Court---Validity---Admission or denial in plaint or in written statement would not be allowed to be amended--Impugned order was legal---Constitutional petition was dismissed.

Anis Ali Hashmi for Petitioners.

Naved Shehryar for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 982 #

2010 C L C 982

[Lahore]

Before Abdul Sattar Goraya, J

MEHBOOB ALAM---Appellant

Versus

MUHAMMAD IQBAL---Respondent

R.S.A. No.200 of 2004, heard on 22nd May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 12, 22 & 54---Contract Act (IX of 1872), S. 55---Suit for specific performance of contract and permanent injunction---Time as essence of contract---Execution of agreement of sale was not denied by the vendor/defendant, but it was pleaded that time was of the essence of the contract and that on account of passage of time said agreement was rendered ineffective and that was not capable to be enforced in law---Trial Court dismissed suit and appeal filed against dismissal order was also dismissed by the Appellate Court, and plaintiff/vendee had filed second appeal---Validity---Defendant/vendor had accepted earnest money and it was agreed that the remaining amount would be paid by the specified date---Agreement arrived at between the parties, provided for no penalty that in case of non-performance of the contract by the plaintiff/vendee the amount would be forfeited and parties only intended to perform their part of contract within reasonable time---From the bare perusal of agreement, it was crystal clear that time could not be treated to be essence of the contract---Discretion exercised under S.22 of the Specific Relief Act, 1877, should never be arbitrary and where it had been found that the suitor was not at fault, discretion could not be exercised to the disadvantage of the plaintiff---No evidence was available on record of unimpeachable character to dislodge the claims of the plaintiff---It was imperative upon the defendant to give the plaintiff notice under S.55 of the Contract Act, 1872, but to make the agreement of sale, essence of the contract, no notice whatsoever was issued---Necessary implication from above contentions would be that the parties intended to perform the contract within reasonable time and time was not essence of the contract---Claim of defendant and the plea put forward to defend the suit was wholly unjustified---Plaintiff had every right to get the agreement of sale performed through civil court---Both the courts below had fallen in error and committed illegalities ad infinitum in non-suiting the plaintiff on the grounds, which were non-existent---Impugned judgment and decrees of the court below were set aside and suit stood decreed in favour of the plaintiff in the terms prayed for with costs throughout.

Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Muhammad Anwar and 8 others v. Bahan and another 2000 YLR 378; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; ISSO and another v. Muhammad Ismail and others 1992 MLD 1787; Muhammad Nawaz Khan and others v. Mst. Farrah Naz PLD 1999 Lah. 238; Anjuman-e-Islamia, Sialkot through Khawaja Mahmood Ahmad, President, Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153 and Syed Arif Shah v. Abdul Hakeern Qureshi PLD 1991 SC 905 ref.

Taki Ahmad Khan for Appellant.

Muhammad Yaseen Chaudhry, Malik Matiulllah Datta Khel and Hashim Niazi for Respondents.

Date of hearing: 22nd May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 988 #

2010 C L C 988

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ARIF---Petitioner

Versus

IRSHAD BIBI and 2 others---Respondents

Writ Petition No.8805 of 2007, heard on 2nd June, 2009.

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---Suit having concurrently been decreed by the Trial Court and Appellate Court defendant had filed constitutional petition---Validity---Two courts below had made rough estimate with regard to the amount of dowry articles without adverting to the facts that material evidence which was available with the plaintiff in the shape of scribe of the list of dowry articles, but was not produced---Nothing was on the record that said scribe was not alive at the time when the evidence was recorded---Plaintiff had also withheld her brother who was financer of dowry articles; and was available at the relevant time---Receipts of the purchase of articles were available with the plaintiff, but same had also not been produced in evidence---Admittedly at the time of marriage, father of the plaintiff was not happy with marriage---All those aspects had clearly demonstrated that plaintiff had failed to establish her case with regard to dowry articles---On the other hand statements of witnesses of defendant had gone unchallenged---No case for decree having been made out, constitutional petition was allowed and judgments and decrees passed by the courts below, were set aside, in circumstances.

Mian Ghulam Rasul for Petitioner.

Arshad Sabir Agha for Respondent No.1.

Date of hearing: 2nd June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 990 #

2010 C L C 990

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD HANIF---Petitioner

Versus

MEMBER, (S&R) BOARD OF REVENUE and 2 others---Respondents

Writ Petition No.41-R of 2005, heard on 15th June, 2009.

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

---S.3---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Arts.4, 25 & 199---Constitutional petition---Evacuee land---Cancellation of allotment of original allottee after selling land to petitioner---Order of Chief Settlement Commissioner (CSC) passed on recommendations of Notified Officer allowing petitioner to purchase land on payment of its price---Recalling of such order by Chief Settlement Commissioner in exercise of his power of review under S.21 of General Clauses Act, 1897 after coming to know that land being urban in nature was not available for sale to petitioner---Validity---Record showed that petitioner remained in possession of land as its bona fide purchaser, from its original allottee and was not privy to any fraud---Notified Officer in such circumstances had recommended sale of land to petitioner to regularize his long standing possession---Neither department nor any body else had put forward plea of fraud for being not available in present case---If other persons placed in similar position had been allowed benefit of sale in same village, then petitioner could not be made to suffer and dealt with discriminately for being impermissible in law---Such other persons were still enjoying benefit of Scheme, but only petitioner had been chosen for purpose of reviewing order---Chief Settlement Commissioner for having no power of review had exceeded his jurisdiction while passing impugned order-,-Petitioner had developed land by spending hard manual labour and huge expenses---Fundamental duty of an Islamic State would be to provide bread and butter to its subjects---No useful purpose would be served in upsetting petitioner as land if became available after upholding impugned order, then same would surely be either allotted to someone else or disposed of under any other Scheme---High Court declared impugned order to be without lawful authority and of no legal effect.?

Ramzan's case 1997 SCMR 1635; Mst. Bashiran Bibi v. Town Committee, Eminabad through Vice-Chancellor, Tehsil & District Gujranwala and others PLD 2003 SC 573; Basai v. Qaim Ali and 8 others PLD 2003 SC 825; Khan Muhammad and others v. Member, Board of Revenue and others PLD 2006 Lah. 615; Mst. Wazir Begum and others v. Member, BOR/Chief Settlement Commissioner and others 2000 SCMR 989; Fateh Muhammad through Legal Heirs v. Mst. Hajra and others 1999 CLC 143 and Muhammad Hussain v. Member board of Revenue (Colonies Punjab Lahore 2004 MLD 1685 rel.

(b) Review---

---Power of recalling with ultimate object of review, if not available in relevant statute, could not be invoked.?

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Khan Muhammad v. Member Board of Revenue and 6 others PLD 2006 Lah. 615 re.

Sh. Naveed Shehryar for Petitioner.

Amjad Ali Chattha, A.A.G., Zulfiqar Ali, Patwari, Halqa Jhan, Chak Janoobi for Respondents.

Date of hearing: 15th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 995 #

2010 C L C 995

[Lahore]

Before Saif-ur-Rehman, J

GHULAM RASOOL and 17 others---Petitioners

Versus

MUHAMMAD DIN and 32 others---Respondents

Civil Revision No.2337 of 2004, heard on 28th May, 2009.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession through partition---Both Trial Court and Appellate Court had granted preliminary decree in favour of the plaintiff in their suit for possession through partition---Validity---Findings of the courts below were based on revenue record and judgments of competent courts which had attained finality during previous litigation and plaintiffs were proved to be co-sharers---When the execution of title deed was not denied by the executant and particularly when its validity was admitted in the previous litigation, the parties would be estopped to deny the genuineness of the same subsequently---On the basis of those considerations, the title deed in favour of the plaintiffs was held to be valid and genuine---Plaintiffs were proved to be co-sharers and possession of one co-sharer was deemed to be possession of other co-owners and the position would remain unchanged even if one co-sharer was ousted by the other from any specific number, because his possession even in such event, could never be taken to have been extinguished or possession of the persons ousting the other co-sharer from possession could not be treated as adverse to one who was ousted.

Khowja Mawjiv, Mst. Khatubai and others PLD 1965 (W.P.) Kar. 592 ref.

Kashif Ali Chaudhry for Petitioners.

Riaz Ahmad Rana for Respondents.

Date of hearing: 28th May, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 997 #

2010 C L C 997

[Lahore]

Before Muhammad Khalid Alvi, J

ASGHAR ALI---Petitioner

Versus

PUNJAB PROVINCE through Collector District Sargodha and 2 others---Respondents

Civil Revision No.1594 of 2007, heard on 4th June, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for declaration---Failure to produce evidence---Closing of evidence---From the date of framing of issues, total 38 dates were fixed for leading evidence by the plaintiff---On majority of said dates, case had to be adjourned on the request of the plaintiff for producing his evidence - with cost and also with warning, but despite that the plaintiff had failed to produce his evidence---Suit filed by the plaintiff ultimately stood dismissed---Plaintiff who pleaded that he could not produce evidence as he met a road accident, could not prove that plea as no mention of any accident was on the record---Apart from that it took almost three years and 38 adjournments and numerous on the request of the plaintiff, and particularly last three were with cost and warning, the plaintiff did not care to adduce his evidence---Suit was rightly dismissed concurrently by the two courts below and said order of dismissal could not be interfered with in revisions.

Tariq Bashir Dogar for Petitioner.

Rafey Ahmed Khan, A.A.G. for Respondents.

Date of hearing: 4th June, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 999 #

2010 C L C 999

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

WAQAS ZAFAR---Petitioner

Versus

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

Writ Petition No.1031 of 2009, decided on 13th May, 2009.

Baha-ud-Din Zakriya University Uniform Semester System Regulations---

----Regln. No.11(v)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dropping of student from University---Petitioner, who was given admission in the University in M.Sc. Physics (Semester System) on Self-Finance basis, was dropped from the University due to lack of G.P.---Contention of counsel for the student/petitioner was that he could not be dropped in third semester, but he could only be detained for third semester while the other students who were also not having got required G.P., were detained by the University and that the petitioner was treated with discrimination, which was unwarranted in the eyes of law---Validity---University authorities, were best judge of their own affairs and High Court normally did not interfere in the internal affairs of the University---Statute through which University came into existence had given power to its authorities to frame the regulations qua manners, mode, conduct, standard and regularization of examination from time to time, they had power to frame the policy in that regard---High Court while exercising its constitutional jurisdiction had to follow and implement the relevant regulations and could not substitute its opinion with the opinion of those who were actively involved in making such Policy, merely on sympathetic consideration---Arguments of the petitioner that he had been treated differently than other students thus had no force---Petitioner along with other students who failed to perform well and failed to obtain the requisite G.P.A. and CGPA was dropped from the role of the department in terms of Regln.11(v) of the University in order to maintain the requisite standard of the education of University--University authorities had powers to make their own regulations in order to achieve the high standard of education---Impugned action of dropping the petitioner from the roll of the department was neither illegal nor discriminatory or harsh; and same had been taken according to the rules and regulations of the University---Petitioner having failed to make out his case of discrimination or unequal treatment by the University authorities his petition was dismissed.

Baha-ud-Din Zakariya University through Vice-Chancellor v. Muhammad Illyas 2004 YLR 2638; Munir Mohsin and others v. Vice Chancellor Baha-ud-Din Zakriya University 2002 MLD 1329; Ali Yousaf and others v. Chairman Academic Dow Medical College Karachi and others 2000 SCMR 1222 and Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

Muhammad Bilal Gormani for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

Date of hearing: 28th April, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1003 #

2010 C L C 1003

[Lahore]

Before Ch. Muhammad Tariq, J

ABDUL GHAFOOR and 2 others---Petitioners

Versus

KHALID AMIN---Respondent

Civil Revision No.2640 of 2002, decided on 30th March, 2010.

Civil Procedure Code (V of 1908)---

----S. 115 & O. VII, R.2---Revision---Scope---Money suit---Plaintiff alleged that defendant purchased a Thresher from him but refused to pay the remaining amount of price of tie same---Defendant contended that suit was false and frivolous---Trial Court decreed the suit---Appellate Court also dismissed the appeal---Validity---Points raised by defendant/petitioner pertained to question of fact---Petitioner could not point out any illegality or jurisdictional error in the impugned judgments---Question of fact could not be examined under section 115, C.P.C.-Revision was dismissed.

Muhammad Sharif Chohan for Petitioners.

CLC 2010 LAHORE HIGH COURT LAHORE 1006 #

2010 C L C 1006

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD ATTIQUE----Appellant

Versus

SHAFAIT ALI SHEIKH----Respondent

F.A.O. No.178 of 2008, decided on 10th March, 2010.

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

----Ss. 17(4)(b) & 24---Ejectment of tenant on ground of bona fide personal need of landlord---Ejectment application in respect of shop having been allowed by the Rent Controller, tenant had filed appeal against said judgment---Landlord seeking ejectment of tenant on ground of personal need was not required to give detailed and elaborate description of the personal use that the property would be put to---If landlord had stated that he needed the premises for his personal use as he had no other property which could be suitable for the work he planned to undertake, he was not required to prove anything further---Landlord, in the present case, had stated in ejectment application that he needed the premises in question for his personal use; his contention was that he was living and working abroad and had returned after completion of his overseas assignment and that he being a marketing professional, wanted to open marketing consultancy office in the demised premises---Where bona fide need of the landlord was otherwise established on record, plea of intention to increase rent, would not adversely affect the case of the landlord for his personal use---Even otherwise, under the law it was prerogative of the landlord to get vacant premises of his own choice without any objection on the part of the tenant---Findings of the Rent Controller on the issue of bona fide personal need were valid as same were supported by cogent reasons and substantiated by oral as well documentary evidence---Findings of Rent Controller regarding bona fide personal need of the landlord being valid and based upon the record, could not be interfered with in appeal by High Court.

Messrs Delite House Ltd. v. Ch. Farryaz Akbar 1986 CLC 495; Jehangir Rustam Kakalia v. Messrs Hasrhwani Sales and Services (Pvt) Ltd. 2002 SCMR 241; Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070; Khawaja Imran Ahmad v. Noor Ahmad and another 1990 SCMR 1152 ref.

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

----Ss. 17(2)(i) & 24---Ejectment of tenant on ground of default in payment of rent---Burden of proof was on the landlord to establish non-payment of rent by the tenant---Where landlord appeared in the court and stated on oath that rent had not been paid by the tenant for a certain period, the burden lying upon hint was sufficiently discharged and would shift on the tenant to prove affirmatively that he paid or tendered such rent---Landlord, in the present case, appeared in the court and stated on oath that because of issuance of notice the tenant had wilfully stopped payment of rent whereupon ejectment application was filed---Tenant, on the other hand while appearing in the court as his witness had submitted his affidavit and stated irrelevant facts and adverted to contradictory statements relating to payment of rent---Evidence of two witnesses produced by the tenant, did not inspire confidence in view of the material contradictions in the facts narrated by them---Conclusions drawn by the Rent Controller relating to default in payment of rent by the tenant, were also well founded---Tenant had failed to produce any confidence inspiring or credible evidence to substantiate his claim that he had not committed default or that he paid the rent in accordance with the terms and conditions of the rent agreement, executed between the parties---Oral evidence produced by the tenant was contradictory and did not inspire confidence and tenant had failed to dislodge the case set up by the landlord before the Rent Controller---Findings of the Rent Controller, being unexceptional with regard to default in payment of rent, warranted no interference by High Court.

Allah Din v. Habib PLD 1982 SC 465; Muhammad Luqman Ahmad v. Munir Ahmad and others 1997 CLC 651; Khalid Javed v. Muhammad Imran 2004 MLD 577; Mst. Maqsooda Begum v. Hamid Mahmood Butt 1999 CLC 391; Muhammad Baqir Qureshi v. Mst. Razia Begum 1981 SCMR 18 and PLD 1988 SC 190 ref.

Hamid Iftikhar Pannu for Appellant.

Muhammad Umer Malik for Respondent.

Date of hearing: 24th February, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1017 #

2010 C L C 1017

[Lahore]

Before Ijaz-ul-Ahsan, J

SHAHBAZ ALI----Petitioner

Versus

FAREEDA KHANUM and 2 others----Respondents

Writ Petition No.2393 of 2008 and C.M.As. Nos.4570 to 4572 of 2009, decided on 19th February, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Dismissal of constitutional petition for non-prosecution--Application for restoration of petition---Only ground asserted by the petitioner in support of application for restoration of petition was that his counsel had left for higher education abroad---No date had been given to show as to when his counsel left abroad---Petitioner had contended that he was unaware of the dismissal of the petition and such dismissal came to his knowledge from the Executing Court when a copy of the dismissal order of the petition was presented by the counsel for the respondent---No exact date of such knowledge had been disclosed, when the petitioner came to know about the dismissal of the petition---Petitioner had not been vigilant in pursuing the matter--Indolence and carelessness was apparent from the conduct of the petitioner-No plausible reason had been provided in the application for the long delay in moving the application for restoration of the petition---No valid ground having been shown to condone the delay, applications were dismissed.

Malik Manzoor Ahmad for Petitioner.

Ch. Saeed Akhtar Kamboh for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1018 #

2010 C L C 1018

[Lahore]

Before Ch. Naeem Masood, J

NAZAR HUSSAIN and 4 others----Petitioners

Versus

FAZAL ELLAHI and 5 others----Respondents

Civil Revision No.205 of 2001 and C.M. No.524/C of 2009, heard on 13th July, 2009.

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

----S. 31---Award---Rule of Court---Failure to make---Effect---Arbitration award was challenged on the ground that the decision of the arbitrator had been acted upon and evidence of the parties to that effect had not properly been appreciated---Trial Court dismissed suit of the plaintiff---Appellate Court allowed appeal and set aside the judgment and decree of the Trial Court---Validity---Arbitration award having never been made a rule of court had lost its credence---Disputed property was not partitioned physically as dictated by the award---Arbitration award, photocopy of which was placed on the record did not appear to have been acted upon by the authorities in letter and spirit as well as in true perspective---High Court declined to interfere in revisional jurisdiction.

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

----O. XIII, Rr.1 & 2---Arbitration Act (X of 1940), S.31---Award---No permission was sought to file photocopy of the arbitration award---Photocopy was not admissible in evidence.

Nemo for Petitioners.

Nemo for Respondents.

Date of hearing: 13th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1028 #

2010 C L C 1028

[Lahore]

Before Sh. Azmat Saeed and Sh. Ahmad Farooq, JJ

Ch. MUNIR AHMED through L.Rs.----Appellant

Versus

MUHAMMAD NAEEM----Respondent

Regular First Appeal No.258 of 2004, decided on 22nd March, 2010.

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

----O. XXXVII, R.2---Suit for recovery on the basis of pro-note---Blackmailing---Plea of---Effect---Predecessor-in-interest of the plaintiff filed suit for recovery of Rs.600,000 on the basis of promissory note, receipt and agreement---Defendant filed an application for leave to defend the suit which was allowed by Trial Court subject to furnishing security in the sum of Rs. 650,000---Contention of the defendant was that his signatures on the promissory note as well as receipt and agreement were obtained through blackmailing---Trial Court dismissed suit filed by predecessor-in-interest of the plaintiff---Contention of the plaintiff was that Trial Court had relied upon the solitary statement of the defendant which was not corroborated by any other witness---Validity---Defendant did not examine any witness except appearing himself as the sole witness---Solitary statement of the defendant had been given preference over the statements of seven witnesses for the plaintiff by Trial Court without any convincing reason---Defendant could not prove that his signatures on the promissory note and agreement were taken under duress or coercion or through blackmailing---Defence of the defendant regarding suit for cancellation of the agreement and the promissory note in the civil court was unbelievable as neither the attested copy of plaint of the said suit was presented nor the defendant knew about the dismissal of his suit---Appeal was allowed by High Court.

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

----Art. 17---Document could only be proved through the statements of the scribe and the witnesses in whose presence it was written and executed.

Muhammad Almas Chaudhry for Appellant.

Rana Rashid Akram Khan for Respondent.

Date of hearing: 8th March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1032 #

2010 C L C 1032

[Lahore]

Before Mian Saqib Nisar, J

GHULAM HASSAN and 5 others----Petitioners

Versus

IQBAL HASSAN and 2 others----Respondents

Civil Revision No.1012/D of 2009, decided on 5th October, 2009.

Court Fees Act (VII of 1870)---

----S. 12---Civil Procedure Code (V of 1908), O. VII, R. 2---Money decree-Non-fixation of court-fee---Effect---Suit filed by plaintiff for recovery of Rs.2,20,000 was decreed in his favour and defendants assailed judgment and decree before Lower Appellate Court, without affixing court fee, which was dismissed---Validity---It was a decree for recovery of amount of Rs.2,20,000 and defendants should have known that appeal required affixation of court fee of an amount of Rs.15, 000 but contumaciously on such appeal, court fee was not paid---Defendants were directed to make up deficiency in payment of court fee and they themselves or their counsel should have verified and abreast the order, despite specific order court fee was not paid---High Court observed that it was ridiculous and misconceived to state that defendants for long did not get in touch with their counsel or themselves sought information about the fate of their appeal, which had already been dismissed and if defendants were indolent and negligent in that behalf, it was they who should be blamed---No case was made out by defendants for interference of High Court in revisional jurisdiction---Revision was dismissed in circumstances.

Muhammad Bashir v. Province of Punjab and others 2003 SCMR 83 and Premier Insurance Company Pakistan Ltd. through Chairman and another v. Anis A. Sheikh 2007 CLC 511 rel.

Hafiz Khalil Ahmed for Petitioners.

Muhammad Zafar Ch. for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1043 #

2010 C L C 1043

[Lahore]

Before Maulvi Anwarul Haq, J

Agha SHAHID KHAN----Petitioner

Versus

Mst. SHAHIDA GUL----Respondent

Civil Revision No.90 of 2005, heard on 1st October, 2009.

Specific Relief Act (I of 1877)---

----S. 8---Agreement to sell---Consideration---Uncertain and undetermined---Effect---Plaintiff filed suit for possession of her share in the disputed property allegedly gained by her through the registered gift-deed from her mother---Suit was contested by defendant on the ground that he had given a loan of Rs.6,10,400 to the plaintiff and plaintiff had promised to pay the same otherwise would agree to sell her property upon her failure to do so and the plaintiff had also executed an agreement to sell in his favour---Trial Court decreed the suit of the plaintiff---Appeal filed against judgment and decree of the Trial Court was dismissed by Appellate Court---Validity---Consideration was wholly uncertain and undermined in agreement to sell---Agreement to sell constituted a clog on the equity of redemption and appeared to be void---Defendant stated that he did not pay any amount directly to the plaintiff and had sent the same through his witnesses---Defendant having failed to prove the case particularly, the consideration for the agreement to sell, High Court declined to interfere.

Taki Ahmed Khan for Petitioner.

Muhammad Iqbal Akhtar for Respondent.

Date of hearing: 1st October, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1054 #

2010 C L C 1054

[Lahore]

Before Mian Saqib Nisar, J

Messrs FAFFLES (PRIVATE) LIMITED through Chief Executive officer----Petitioners

Versus

SHIN NAIAN CHIN and 2 others----Respondents

Writ Petition No.12449 of 2009, decided on 21st October, 2009.

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

----Ss. 13(2), (i), 13(6) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Tentative rent order---Non-compliance of tentative rent order---Striking off defence of tenant in terms of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 19597-Appeal filed by the tenant against order of Rent Controller having been dismissed by the Appellate Court, the tenant had filed constitutional petition---Validity---Tenant was required to deposit arrears of rent for relevant period, and even if the advantage that commercialization fee had been paid by the tenant for discharging the liability of landlord, even then he was a defaulter to the extent of sufficient amount---Defence of the tenant was liable to be struck off---Besides, even after the order passed by the Rent Controller striking off his defence, during the pendency of appeal and even till date, the order had not been complied with---Case was not fit for exercising of constitutional jurisdiction---Petition was dismissed.

Abid Iqbal Butt for Petitioner.

Umer Mahmud Kasuri and Shehryar Kasuri for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 1059 #

2010 C L C 1059

[Lahore]

Before Arshad Mahmood, J

MUHAMMAD ISHAQUE----Appellant

Versus

Rana DILBER HUSSAIN----Respondent

Regular First Appeal No.255 of 2001, hear on 1st July, 2010.

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

----Art. 129(g)---Civil Procedure Code (V of 1908), O.XXXVII, Rr. 1 & 2---Finger print expert---Report of---Oral assertion---Scope---Plaintiff filed suit for recovery of Rs.200,000 on the basis of pro note and receipt pro note in Trial Court---Suit was contested by defendant on the ground that report of finger print expert could not be relied upon without examining the concerned expert---Trial Court decreed suit of the plaintiff---Validity---Report from finger print expert was called by Trial Court which had substantiated the claim of the plaintiff that defendant had executed the said pro note---Defendant submitted objections to the report of finger print expert but did not deposit expenses for summoning the finger print expert for the purpose of his examination---Oral assertions of the witnesses of the defendant were brushed aside by the report of finger print expert as it is documentary evidence takes precedence over oral evidence---Documentary evidence was a report of the neutral expert and he had no animosity towards the defendants---Appeal was dismissed by High Court.

Sultan Muhammad v. Haji Khair Muhammad and 2 others PLD 2008 Quetta 1; Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366. Niaz Din v. Mirza Muhammad Ismail and others PLJ 2000 Lah.429, Nasrullah v. District Judge, Khushab and another 2000 YLR 703; Mst. Rasool Bibi through Legal heirs v. Additional District Judge, Sialkot and another PLD 2006 Lah. 181; Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Muhammad Yousaf and 12 others v. Abdul Khaliq and others 1991 SCMR 1981; Pak Carpet Industries Limited v. Government of Sindh and 2 others 1993 CLC 334 and Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820 ref.

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

----O. XXXVII, Rr.1 & 2---Negotiable instrument---Presumption---Without any proof to the contrary presumption attached to the negotiable instrument is that it was always for consideration.

Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820 rel.

Ch. Muhammad Ashraf Kamboh for Appellant.

Mian M. Hanif for Respondent.

Date of hearing: 1st July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1077 #

2010 C L C 1077

[Lahore]

Before Syed Shaheen Masud Rizvi, J

MUHAMMAD ATIF KHAN----Petitioner

Versus

TEHSIL MUNCIPAL ADMINISTRATION, RAHIMYAR KHAN through Tehsil Nazim and 3 others----Respondents

Writ Petition No.3133 of 2009/BWP, decided on 24th July, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Re-auctioning for collection of fee on transfer of immovable property---Petitioner had challenged the re-auctioning of the fee for the transfer of immovable property on the ground that in the earlier auction for the said purpose, he was declared successful bidder---Bid of the petitioner was with the administration of the Tehsil Council and it was yet to be submitted for final approval---Just after another party made an offer, the petitioner opted to withdraw his security and he made an application to the authorities that the security be refunded to him---Security of petitioner was refunded and payment was made to him and thereafter the collection right of the fee was advertised to be re-auctioned, which auction had been challenged by the petitioner in the constitutional petition---Counsel for the petitioner had not been able to show as to how the petitioner stood aggrieved from the subsequent re-auction, when he had voluntarily withdrawn the security---Petitioner, in circumstances stood debarred from challenging the subsequent auction; as his earlier withdrawal of the security would operate as an estoppel against the petitioner---Petitioner could have easily taken part in the subsequent auction proceedings.

Muhammad Ozair Chughtai for Petitioner.

Sajjad Hussain Mian for Respondents Nos.1 to 3.

Muhammad Uzair Qayyum for Respondent No.4.

CLC 2010 LAHORE HIGH COURT LAHORE 1084 #

2010 C L C 1084

[Lahore]

Before Mian Saqib Nisar, J

TALHA SIDDIQUE----Petitioner

Versus

DIRECTOR COMSATS and others----Respondents

Writ Petition No.16443 of 2009, heard on 21st October, 2009.

Pakistan Engineering Council Regulations, 1985---

----R. 2(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institution---Examination---Petitioner had passed first two semesters, but for 3rd and 4th semester, his C.P.G.A. being less than two, he failed to qualify both the semesters---Petitioner moved the authorities to permit him to repeat his 3rd and 4th semester which had been declined on the ground that as per amended Rule 2(a) of the Pakistan Engineering Council Regulations, 1985, re-admission could only be granted, if the candidate had 60 marks in his intermediate examination---Validity---Present case was not the one in which some fresh admission was being sought, from the very beginning in first semester to which said Rules should apply---Petitioner already being the student of the Institution wanted to repeat 3rd and 4th semesters---When there was no bar in the Pakistan Engineering Council Regulations, 1985 in that behalf, he must be permitted to do so---Petition was allowed.

Mian Muhammad Aslam for Petitioner.

Mian Waheed Akhtar for Respondents.

Date of hearing: 21st October, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1091 #

2010 C L C 1091

[Lahore]

Before Ijaz-ul-Ahsan, J

Engr. GHULAM MUSTAFA QAZI----Petitioner

Versus

SECRETARY INDUSTRIES, PUNJAB, LAHORE and 3 others----Respondents

Civil Revision No.2301/I of 2009 and C.M. No.295-C of 2010, decided on 12th April, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2 & 4---Application for setting aside restraining order---Applicant who claimed to have won the election by a considerable margin had alleged that by virtue of the restraining order passed by the court, applicant's result was not being announced and consequently he could not perform function for the office to which he was elected---No live issue was pending before the court; and it would not serve any useful purpose to restrain the applicant from performing his function---Restraining order, was recalled, in circumstances.

Imran Aziz Khan for Petitioner.

Muhammad Akram Khawaja for Respondent No.4.

Aurangzeb Mirza for Applicant (in C.M. No.295/C of 2010).

CLC 2010 LAHORE HIGH COURT LAHORE 1095 #

2010 C L C 1095

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD SIDDIQUE BUTT----Appellant

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 6 others----Respondents

S.A.O. No.9 of 2009, heard on 13th November, 2009.

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

----Ss. 13(3)(11),(4) & 15---Ejectment of tenant on ground of bona fide personal need---Appeal---Landlord instituted an ejectment petition on ground of personal requirement of his son---During the pendency of ejectment petition, landlord died and his son appeared as a witness in support of his personal requirement---Rent Controller ordered ejectment of tenant on ground of personal bona fide need, and Appellate Court having affirmed order of the Rent Controller tenant had filed second appeal---Validity--Son of landlord for whom shop in question was sought to be ejected, though when he made statement was an employee, in a Firm, but he wanted to do his own business---It was fundamental right of every person/citizen to do his business for the better earning and livelihood and improve his financial resources---If the person in service wanted to do the business in his own property for his business object, it could not be held that such service/employment should have any reflection upon his need---It was for the tenant to establish on the record the facts/factors, which militated against the bona fide of the landlord in that behalf and to establish the dishonesty of the purpose, that however, was conspicuously lacking in the case, particularly when son of the landlord had unequivocally stated that he would occupy the property himself of his business and in case it was not done, he would give it back to the tenant---Even otherwise sufficient check was available under S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, wherein it had been provided that if the landlord pursuant to the eviction order on personal requirement did not occupy the property within one month of the date of obtaining the possession or relet the property, evicted tenant could apply to Rent Controller for an order directing that he would be restored possession of such property and Rent Controller should make an order accordingly---Concurrent findings of fact by the two courts below were neither infirm on account of misreading and non-reading nor for misapplication/non-application of the proper law, same could not be interfered in second appeal.

Muhammad Atique v. Muhammad Hanif Khan 1996 SCMR 1260; Dr. Ubaidur Raza Khan v. Mrs. Saghera Bano and another 1994 CLC 1302; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Sakha Ullah v. Mst. Tahir Almas alias Tahira Shabbir and another 2001 CLC 1641; Anisur Rehman v. Mst. Sharifa Khatoon and another 1986 CLC 448; Fazal Azim and another v. Tariq Mahmood and another PLD 1982 SC 218; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 and Gohar Rashid v. Fazal Hasan Mazhar PLD 1995 Lah. 469 ref.

Rashid Masood Gongohi and K.J. Khattak for Appellant.

Ch. Riaz Hussain and Muhammad Akhtar Shabbir for Respondents.

Date of hearing: 13th November, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1098 #

2010 C L C 1098

[Lahore]

Before Umar Ata Bandial, J

DIRECTOR COLLEGES, FAISALABAD and 2 others----Petitioners

Versus

YOUSAF ALI----Respondent

Civil Revision No.2210/I of 2009 and C.M. No.161-C of 2010 in C.M. No.3-C of 2009, decided on 4th March, 2010.

Civil Procedure Code (V of 1908)---

----O. I, R.10 & O.XXXIX, Rr.1, 2---Dispute as to possession of land--Interim injunction, grant of---Application for impleading as party---Revision petition had been filed against order passed by the Appellate Court affirming the interim injunction given to the respondent against interference in his possession of land by the petitioner---Counsel for the respondent had stated that insofar as the existing construction and structure on the land was concerned, respondent had no objection if the same be maintained, but a restriction be imposed on further construction in the premises, until determination of the suit---State Counsel had stated that construction of the main building had been completed and only the boundary wall remained to be completed---High Court ordered that boundary wall could be completed, but no further construction would be made within the premises until the decision of the suit---Applicant had sought leave to become party to the proceedings contending that his interest was being affected by the litigation---If applicant had any legal right in the subject property, he could seek its enforcement in accordance with law from the competent forum---Applicant could not join the proceedings, which merely concerned the claim asserted by the respondent against the petitioner and not against the claimed right of the applicant.

Shahid Mubeen Awan Addl. A.-G. Zaka-ur-Rehman, A.A.-G. for Appellant.

S.M. Masud for Applicant (in C.M. No.161 of 2010 and C.M. No.3-C of 2009).

Khaliq Ahmed Ansari for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 1104 #

2010 C L C 1104

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ALLAH WASAYA----Petitioner

Versus

JUDGE, FAMILY COURT and others----Respondents

Writ Petition No.2333 of 2010, decided on 22nd March, 2010.

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 by wife---Petitioner/defendant after contracting third marriage started maltreating respondent/wife who took refuge with her brothers---Petitioner/husband filed suit for restitution of conjugal rights--Both suits were consolidated and Trial Court dismissed both the suits---Appellate Court, on appeal, fixed maintenance allowance at Rs.1000 per month from the date of institution of the suit till the subsistence of marriage---Validity---Judgment and decree of Trial Court could not be' assailed in constitutional petition as the same had attained finality because petitioner did not file appeal under S.14 of West Pakistan Family Courts Act, 1964 against the judgment and decree which dismissed the petitioner's suit for restitution of conjugal rights---If petitioner/husband could maintain two other wives, he should also arrange maintenance and separate residence for respondent as polygamy of the petitioner was the cause of strained relations between the respondent and the petitioner---Appellate Court had rightly decreed the suit of respondent---Constitutional petition was dismissed in circumstances.

Ahmad Ali v. Sabha Khatun Bibi and others PLD 1952 Dacca 385 and Majida Khatun Bibi v. Paghalu Muhammad PLD 1963 Dacca 583 ref.

Sardar Muhammad Hussain Thaheem for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1108 #

2010 C L C 1108

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ZULFIQAR----Petitioner

Versus

Mst. TASMINA BIBI and another----Respondents

Writ Petition No.1859 of 2009, decided on 30th March 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles or in alternative payment of Rs.2,35,000---Trial Court decreed the suit for return of dowry articles or payment of Rs.20,000 in lieu thereof---Appellate Court, on appeal, enhanced the price of dowry articles from Rs.20,000 to Rs.100,000---Validity---Petitioner husband had failed to prove through any documentary evidence that he was a poor cultivator as stated---Petitioner also failed to point out any illegality or irregularity committed by the Appellate Court---High Court declined to re-examine the entire evidence again and again in constitutional jurisdiction---Petition having no force, was dismissed.

Abdul Wahid Ch. for Petitioner.

Sardar Muhabbat Ali Doggar for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1115 #

2010 C L C 1115

[Lahore]

Before Ch. Muhammad Tariq, J

AHMAD HUSSAIN BUTT----Petitioner

Versus

ROBINA through General Attorney and 2 others----Respondents

Writ Petition No.15103 of 2009, heard on 13th April, 2010.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan (1973), Art.199---Ejectment petition on ground of default in payment of rent---Tenant was denied leave to defend the ejectment petition by the Trial Court---Appellate Court dismissed the appeal---Validity---Petitioner had failed to pay the rent for two months which he was obliged to deposit by 10th day of every calendar month under S.15 of the Punjab Rented Premises Act, 2009---No intervention of the High Court, in the matter, was called for---Constitutional petition was dismissed---Petitioner/tenant was directed to vacate the suit house and hand over its vacant and peaceful possession to the landlord within one month.

Ishtiaq Ahmad Mian for Petitioner.

Shoaib Khokhar for Respondent.

Date of hearing: 13th April, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1126 #

2010 C L C 1126

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ALLAH DITTA----Petitioner

Versus

BARKAT ALI and others----Respondents

Civil Revision No.343-D of 2009, decided on 22nd March, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. XII, R.6 & O. XV, R.2---Suit for declaration---Fraudulent transfer of plaintiff's land by defendants (his two sons) in their favour through mutation---Written statement by second defendant conceding passing of decree as prayed against him---Framing of issues on basis of contesting written statement filed by first defendant---Statement of first defendant made before Trial Court after recording evidence of parties that he had no objection to retransfer of suit property of plaintiff, subject to condition that he would not alienate same during his lifetime---Acceptance of such offer of first defendant by plaintiff by making statement before Trial Court to the effect that he would not alienate suit property during his lifetime---Passing of decree by Trial Court in favour of plaintiff in terms of such statements of first defendant and plaintiff after observing that suit mutation was based on fraud and was not effective on rights of plaintiff (real owner of suit-land)---Filing of two separate appeals; one by plaintiff and other by second defendant---Dismissal of appeal filed by second defendant for reason that he having filed a conceding written statement had no locus standi to impugn such condition of further alienation placed on plaintiff, who himself had admitted its placement---Appellate Court accepted plaintiff's appeal and decreed suit without any condition by observing that he himself had admitted condition mentioned in statement of first defendant, thus, plaintiff would be stopped by his words and conduct to change same---Validity---Owner could dispose of his property in his lifetime---Condition imposed on plaintiff with regard to transfer of his own land was beyond law of the land---Real sons could not claim any share in suit property during life time of their father---Inheritance would go to legal heirs on death of father---Second defendant had filed conceding written statement, while first defendant got recorded his statement regarding cancellation of mutation and transfer of suit-land in favour of plaintiff, thus, Trial Court was bound to pass decree in respect of suit-land in toto and not partial---High Court dismissed revision petition filed by first defendant.

Muhammad Zaheer Butt for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1131 #

2010 C L C 1131

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD YOUSAF----Petitioner

Versus

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

Writ Petitions Nos.8185 and 12573 of 2008, decided on 29th March, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles purportedly of the value of Rs.1,12,855---Trial Court dismissed the suit---Appellate Court decreed the suit for the return of dowry articles, or in the alternative, a sum of Rs.47,820---Both the parties impugned the judgment and decree of the Appellate Court---Validity---Appellate Court, keeping in view the status of the parties, rightly assessed the value of dowry articles---Both the parties failed to pinpoint any illegality or irregularity in the impugned judgment---High Court, in its constitutional jurisdiction declined interference in the findings of facts---Constitutional petitions were dismissed.

Ch. Dost Muhammad Kahoot for Petitioner.

Zahid Hussain Khan for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 1134 #

2010 C L C 1134

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

Mst. KHUSH ZAR and 2 others----Appellants

Versus

Mst. SHAMIM ARA----Respondent

R.F.A. No.274 of 2007, heard on 31st March, 2010.

Civil Procedure Code (V of 1908)---

----O. I, R.8, O.XXVI, R.13, O.XL, R.1, XLIII, R.1 & S.96---Administration suit---Trial Court passed preliminary decree thereby determining the shares of parties on the report of the local commission and arriving at the conclusion that the ordinary mode of partition through division and distribution inter se the legal heirs was not possible---Local commission was directed to conduct the auction of the. properties subject matter of suit filed by respondent and receiver was appointed for partition---Appellants/defendants raised objections to the report of the local commission but the same were rejected by the Trial Court which was not appealed against by the defendants who instead elected to assail the order directing auction of the suit properties through first appeal---Validity---Order rejecting objections to the report of local commission, having not been assailed either in appeal or in revision, had attained finality and the vires of the said order could not be allowed to be argued under the garb of assailing the order directing the local commission to conduct auction---Counsel for petitioner did not argue in support of any mode to partition the suit properties other than auction---Order passed by the Trial Court did not suffer from any illegality---Justice had been done, the respondent who even offered to sell the share to the appellants in order to bring an end to protracted litigation but the offer was not accepted by appellants who requested for remand of the case to Trial Court; request of the appellants could not be entertained as it was likely to set aside the order which had attained finality on the ground of having not been challenged within prescribed limitation---Report of the local commission was not only comprehensive but also fair and just---Appeal being without merits was dismissed.

Ch. Muhammad Rafique Warraich for Appellants.

Mushtaq Ahmad Chaudhry for Respondent.

Date of hearing: 31st March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1142 #

2010 C L C 1142

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mian FURQAN IDREES----Petitioner

Versus

MUHAMMAD ALI AKBAR and 5 others----Respondents

Civil Revision No.6 of 2010, decided on 26th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Suit for declaration and permanent injunction---Plaintiff applied for electric connection which he needed for irrigation purposes but defendants/functionaries stopped the installation work which the plaintiff sought to be restored---Trial Court dismissed application for the restraining order---Appellate Court, on appeal issued notices to respondents---Validity---Impugned order being of interim nature, would be decided by the Appellate Court after hearing the parties---High Court could not interfere in the jurisdiction of Trial Court which was fully authorized and it was not proper to examine the merits of the case at preliminary stage in a revision petition---Petitioner was directed to approach the Appellate Court which would decide the application for interim injunction after hearing both the parties---Revision petition was disposed of accordingly.

Ijaz Ahmad Awan and Nauman Mushtaq for Petitioner.

M. Asad Manzoor Butt for Respondent No.1.

Tanveer Khan, S.D.O. LESCO

Zulfiqar, Patwari.

CLC 2010 LAHORE HIGH COURT LAHORE 1152 #

2010 C L C 1152

[Lahore]

Before Ch. Muhammad Tariq, J

MAQSOOD AHMAD----Appellant

Versus

Malik MUHAMMAD AFZAL----Respondent

Regular First Appeal No.301 of 2010, decided on 31st March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Trial Court granted the defendant permission to appeal and defend the suit subject to submission of surety bond---Defendant neither submitted his written statement nor furnished the surety bond as required by the Trial Court---Trial Court proceeded ex parte against the defendant---Defendant filed an application for setting aside ex parte proceedings, but absented from the proceedings and the application moved by the defendant for setting aside of ex parte proceedings was dismissed and the Trial Court decreed the suit of plaintiff---Validity---Defendant by not submitting the surety bond, had grossly violated the order passed by the Trial Court---Counsel for the defendant could not point out any illegality or jurisdictional error in the impugned judgment and decree---Conduct of defendant having remained lethargic throughout, he was not entitled for any concession---Appeal was dismissed.

Ch. Muhammad Ashraf Jalal for Appellant.

CLC 2010 LAHORE HIGH COURT LAHORE 1153 #

2010 C L C 1153

[Lahore]

Before Ch. Muhammad Tariq, J

AMANAT KHAN----Petitioner

Versus

NAZIR KHAN and another----Respondents

Civil Revision No.166-D of 2002, decided on 13th April, 2010.

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

----Ss. 6 & 7---Suit for pre-emption---Plaintiffs asserted their superior right of pre-emption on the ground of being Shafi Sharik, Shafi Khalit and Shafi Jar---Trial Court decreed the suit on the ground that the petitioners were co-sharers in the suit Khata---Appellate Court set aside the judgment and decree of the Trial Court---Validity---Defendants had purchased the suit-land on 29-3-1989 vide mutation while plaintiffs had also purchased land in the same Khewat vide mutation---Mutation of sale in favour of defendants, therefore, preceded the mutation of sale in favour of plaintiffs showing that at the time of transfer in favour of defendants, plaintiffs were not owners in the suit Khewat---Held, in circumstances for a pre-emptor to succeed, he must have preferential right at the time of sale, at the time of institution of suit and at the time of decree of Trial Court---Petition was dismissed.

Muhammad Malik v. Haji Muhammad Bashir and others 1994 CLC 2020 fol.

Mushtaq Raj for Petitioner.

Sher Nawaz Shah for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1156 #

2010 C L C 1156

[Lahore]

Before Hafiz Tariq Nasim, J

FAISALABAD DEVELOPMENT AUTHORITY, FAISALABAD through Director-General and 2 others----Petitioners

Versus

GHULAM FATIMA and 5 others----Respondents

Civil Revision No.746 of 2007, decided on 1st June, 2009.

Specific Relief Act (I of 1877)---

---S. 42--Suit for declaration--Conduct of defendant---Effect---Plaintiff filed suit for declaration to the effect that her predecessor-in-interest was allotted plot by the defendants but the said allotment was not actualized by 'them---Trial Court dismissed suit of the plaintiff---Appeal filed by plaintiff was allowed and judgment and decree of the Trial Court was set aside by the Appellate Court---Validity---Conduct of the defendants was very much reflected from the judgment and decree of the. Appellate Court---Defendants' counsel did not put his appearance to argue at a number of times, last opportunity was granted, once again last opportunity was granted but no one appeared on behalf of the defendants, Appellate Court was left with no other option except to decide the appeal on the basis of available record---Attitude of the defendants spoke something else---Findings recorded by the Appellate Court were not even controverted by the defendants in revision petition---High Court did not find any illegality or infirmity in the judgment and decree passed by the Appellate Court---Revision petition was dismissed.

Ch. Naveed Anjum for Petitioners.

Ch. Muhammad Afzal Iqbal for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1169 #

2010 C L C 1169

[Lahore]

Before Nasir Saeed Sheikh and Ch. Muhammad Tariq, JJ

WAPDA through Chairman----Appellant

Versus

Qazi ZAKA ULLAH and another----Respondents

Regular First Appeal No.424 of 2005, decided on 26th March, 2010.

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

----Ss. 6, 7, Arts.14 & 36---Suit for damages---Limitation--Suit for recovery of Rs.76,50, 639 claiming special as well as general damages, on the ground that due to malfeasance, misfeasance and nonfeasance of the defendants, broken high-tension electricity lines of 11 thousand KV were left unattended with running power current and the plaintiffs were badly burnt and received severe injuries from the electric shocks---Defendants contested suit on the ground of limitation and asserted that suit filed by plaintiffs was barred by time---Trial Court decreed the suit to the sum of Rs.5, 000, 000 covering both special as well as general damages---Contention of the defendants was that Art.14 of the Limitation Act, 1908 did not exclude the time spent by plaintiffs in pursuing a complaint lodged in respect of incident before the Federal Ombudsman---Validity---One of the plaintiffs was aged about three years at the time of incident and was still a minor and was suffering from a legal disability as envisaged in S.6 of the Limitation Act, 1908 and limitation had not even commenced against him---Said plaintiff undeniably suffered from a legal disability of minority and the time for limitation for instituting the suit could not said to be run against them---Plaintiffs, in circumstances, were entitled to the benefit of provisions of S.7 of the Limitation Act, 1908---Plaintiffs suffered continuing wrong due to the incident and the period of limitation began to run at every moment of time during which the wrong was continuing---Suit instituted by plaintiffs was not time-barred---Appeal was dismissed by High Court.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 and Shifatullah Qureshi v. Federation of Pakistan through Secretary/Chairman, Railways, Ministry of Railways Railway Board, Islamabad 1999 CLC 364 ref.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Shifatullah Qureshi v. Federation of Pakistan through Secretary Chairman, Railways, Ministry of Railways Railway Board, Islamabad 1999 CLC 364; Kamleshwari Prosad Singh v. Shivachandra Bose and others AIR 36 1949 Patna 212; AIR 1919 Allahabad 297 and AIR 1935 Kalkatta 636 rel.

(b) Suit for damages---

----Broken high tension electricity lines---Statutory responsibility---Unawareness---Plea of---Effect---None of the defendant's witnesses had established any fact as to after the breaking of high-tension wires, any steps were taken by them to take care of the broken and falling electricity wires or that the electricity supply at least to the extent of those broken electricity wires was stopped by the defendants---Defendants were statutorily bound to have exercised necessary caution and care in such a situation---Plea raised by defendants that nobody informed them of breaking of the electricity wires was not acceptable---Witnesses produced by defendants did not utter a single word about any steps having been taken to meet such an eventuality by the defendants in order to save human life and injuries to the ordinary citizens---Appeal was dismissed by High Court.

Lord Mayor, Aldermen and Citizen of the City of Manchester and Markland 1936 Appeal Cases 360 rel.

----O. I, R.9---Suit for damages---Necessary parties---Non-impleadment---Plea of---Effect---Incident had taken place within the premises of Petrol Station and breaking of high-tension electricity cables were caused by the entering of truck---Both persons that is, owner of the petrol pump and driver/owner of the truck had not been impleaded in the suit---Effect---Objection by defendants that without impleading owner of the petrol pump and driver/owner of the truck, the suit was liable to be dismissed, was not sustainable.

Punjab Road Transport Board through its Chairman, Lahore v. Abdul Ghafoor and 6 others PLD 1989 SC 541 rel.

Muhammad Ilyas Khan for Appellant.

S.M. Masud for Respondents.

Date of hearing: 4th March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1181 #

2010 CLC1181

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ABBAS----Petitioner

Versus

Mst. KHURSHID BIBI and 5 others----Respondents

Civil Revision No.2926 of 2000, heard on 22nd March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and permanent injunction---Plaintiffs asserted that their father transferred suit-land through Tamleek in their favour and that defendants, in collusion with the revenue officials, got mutation of Tamleek attested in their favour fraudulently against the actual Tamleek---Trial Court decreed the suit---Appellate Court dismissed same in appeal on technical grounds---Validity--Appellate Court was not justified to dismiss the appeal on technical grounds vis-a-vis pro forma respondents who had not assailed the decree---Appellate Court was bound to decide the appeal on merits---Case was remanded to Appellate Court with direction to decide the appeal afresh on merits.

Ch. Abdur Rasheed Gujjar for Petitioner.

Rao Asif Ahmed for Respondents.

Date of hearing: 22nd March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1192 #

2010 C L C 1192

[Lahore]

Before Sayed Zahid Hussain, J

FATAH MUHAMMAD and another----Petitioners

Versus

ADDITIONAL COMMISSIONER (REV.)/SETTLEMENT COMMISSIONER, GUJRANWALA DIVISION and 14 others----Respondents

Writ Petition No 267/R of 1995, heard on 2nd May, 2002.

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

---S. 3---Displaced Persons (Land Settlement) Act (XL VII of 1958), Ss.10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Purchase of evacuee land by petitioner from original allottee---Application by informer for cancellation of allotment in favour of original allottee for being result of fraud and fabrication---Cancellation of allotment. of original allottee by Settlement Commissioner and its allotment to informer---Validity---Record showed that original allottee had no property in India, but had manoeuvred allotment on basis of forged and bogus documents---Any interpolations in Mukhbari application would lose its significance in view of fact that same was a fraudulent transaction---Authority had powers to go into question of validity of allotment in view of allegations of fraud and record findings on basis of relevant record---Impugned order was legal---Petitioner had claimed to be in continuous possession of land purchased by him from original allottee---Authority was legally bound to have first offered to petitioner for sale so much of land as would not exceed subsistence holding by taking into consideration land already held by him---Authority had to examine as to whether petitioner fulfilled criteria for purchase of land and how much---If petitioner was found entitled to purchase some land, then same would be excluded from allotment of informer, while balance land would remain with informer---High Court directed Notified Officer to decide entitlement of petitioner in terms of Proviso to S.3 of Evacuee Property and Displaced Persons Settlement Laws (Repeal) Act, 1975.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Baran and others v. Member Settlement and Rehabilitation, Board of Revenue, Punjab and others PLD 1991 SC 691 and Lt. Col Rtd. Munir Hussain and others v. The Chief Settlement Commissioner Member Board of Revenue and others 1987 SCMR 1240 rel.

Ch. Aamar Rehman for Petitioner.

M.Z. Khalil with Rehmat Ali Virk, Incharge Judicial with Record, Gujranwala for Respondent No.1.

Muhammad Nadeem, Incharge and Abdul Malik Shah, Patwari Central Record, Board of Revenue, Lahore.

Rana Muhammad Arif for Respondents Nos.2 to 8.

Date of hearing: 2nd May, 2002.

CLC 2010 LAHORE HIGH COURT LAHORE 1196 #

2010 CLC 1196

[Lahore]

Before Mian Shahid Iqbal and Nasir Saeed Sheikh, JJ

MUHAMMAD HANIF and others---Appellants

Versus

RAMZAN BIBI and others---Respondents

R.F.A. No. 405 of 2004, heard on 3rd May, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12 & 19---Contract Act (IX of 1872), S.73---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for specific performance of agreement to sell and recovery of damages---Trial Court closed defendant's right to produce evidence, decreed the suit for specific performance but dismissed the claim of damages---Appeal was dismissed by High Court for being time-barred---Plaintiff contended that defendant having failed to execute registered sale-deed by revoking general power of attorney in favour of his nominee, entrusted with execution of registered sale-deed, was liable to pay damages eleven times the sale price of suit-land as per penal clause of the agreement---Defendant controverted plaintiff's averment maintaining that both specific performance and penalty could not be granted to plaintiff---Validity---Plaintiff was entitled to compensation under S.73 of Contract Act, 1872 if he established loss caused by non fulfilment of contractual obligation by vendee of the agreement to sell but no such loss was proved to have occurred by the plaintiff during trial---In order to seek compensation for the loss caused by non-performance of the contract, plaintiff had to serve a notice upon the vendor and raise a demand of compensation for breach of the agreement but no such notice was, admittedly, served by plaintiff---Plaintiff could either seek specific performance of the agreement or enforcement of penalty clause, if any, incorporated in the agreement---Damages were claimed by plaintiff on the ground of cancellation of power of attorney in favour of his nominee but the same having been cancelled only after three years, since the execution of the agreement, could not be termed a violation of the agreement leading to enforcement of penalty clause---Cancellation of power of attorney, by itself; did not constitute refusal to perform agreement to sell---Plaintiff could not prove any specific monetary loss equivalent to the amount claimed in the plaint---Impugned judgment and decree of Trial Court did not suffer from any illegality---Appeal was dismissed in circumstances.

Danishmand v. Syed Rashid Afzal 1986 MLD 141 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon 1994 SCMR 2189 distinguished.

Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968 Lah. 501 rel.

Mian Muhammad Rafiuddin for Appellants.

Mian Muhammad Ayub for Respondents.

Date of hearing: 3rd May, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1209 #

2010 C L C 1209

[Lahore]

Before Asad Munir, J

Sh. MUHAMMAD USMAN---Appellant

Versus

AURANGZEB MUGHAL and another---Respondents

S.A.O. No.12 of 2009, decided on 14th April, 2010.

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

----Ss. 15(6), 13-A & 5-A---Ejectment of tenant---Previous owner had rented the disputed shop to tenant's father---New owner/landlord sent a notice of change of ownership and thereafter filed ejectment petition on grounds of wilful default in payment of rent for last eight months, bona fide personal need of landlord and failure of tenant to pay enhanced rent under S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Trial Court accepted ejectment petition on the first two grounds but rejected the ground of default in payment of enhanced rent for not having been pleaded in the ejetment petition---Appellate Court upheld the judgment of Trial Court accepting the ground of default in payment of enhanced rent---Tenant contended that ground of wilful default in payment of enhanced rent was not available to landlord until a formal demotic, for the same had been made by him---Tenant further contended that bona fide personal need of landlord did not cover need of or use by brother of the landlord---Validity---Personal need of landlord included the need of and use by his relatives, including his brother, if they were dependent on him for the landlord would benefit in material terms by way of having been relieved from supporting his dependent relatives---Tenant could not produce any evidence to prove that he had paid the rent to the previous landlord---Tenant having knowledge that another person had become the landlord was bound to pay rent due within thirty days of receipt of notice of change of ownership of landlord---Landlord needed shop, in good faith, for his jobless dependent brother---Impugned judgment did not suffer from any illegality or irregularity---Tenant having wilfully failed in payment of rent was held liable to be ejected---Appeal was dismissed in circumstances.

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

----Ss.15(6), 13-A & 5-A---Ejectment of tenant---Tenant could not produce any evidence to prove that he had paid the rent to the previous landlord---Tenant having knowledge that another person had become the landlord was bound to pay rent due within thirty days of receipt of notice of change of ownership of landlord.

Syed Illyas Ali Abbasi v. Mst. Allah Rakhi 2001 SCMR 31 fol.

Dildar Hussain v. Shahzada Alamgir 2007 CLC 1495 and Javed Iqbal v. S.M. Khurram Wasti 2000 CLC 126 rel.

Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207; Pakistan Bait-Ul-Mal v. Umar Mahmood Kasuri and another PLD 2008 Lah. 250; Muhammad Zahir Khan v. Ch. Shah Muhammad PLD 1980 Lah. 125 and Minhaj ul Abidin Khan and 5 others v. Mst. Shamim Akhtar 1988 CLC 2433 distinguished.

Muhammad Afzal v. Muhammad Tufail 2000 MLD 1858 and Mahmood-ul-Hassan v. Muhammad Jameel 1980 CLC 829 ref.

----S. 13-A---"Rent due"---Connotation---Phrase `rent due' did not refer to future rent alone but also included rent for previous months which might have been due and payable to the landlord.

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

----S. 5-A---Scope and application of S.5-A, West Pakistan Urban Rent Restriction Ordinance, 1959---Tenant could not be held to have defaulted in payment of enhanced rent under S.5-A of West Pakistan Rent Restriction Ordinance, 1959, unless landlord had made a demand for the 'same.

Hafiz Saeed Ahmad Sheikh for Appellant.

Munir Ahmed Malik for Respondents.

Date of hearing: 28th January, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1215 #

2010 C L C 1215

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

PROVINCE OF PUNJAB through Collector District Lahore---Petitioner

Versus

MUHAMMAD LATIF and another---Respondents

C.Rs. Nos.1350 and 1351 of 1992, decided on 6th May, 2010.

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

----S. 42---Evacuee Property (Multiple Allotment) Act (VII of 1957), S.22---Civil Procedure Code (V of 1908), O. XVII, R. 3---Suit for declaration---Revenue record showing suit land in the name of evacuee owner after independence of Pakistan and his migration to India---Plaintiff claiming to be owner of suit land on basis of sale deeds executed in his favour in years 1945-46 by non-Muslim owner---Order of Deputy Custodian confirmed by Custodian declaring suit land not to be evacuee property, but owned by plaintiff---Cancellation of mutation of suit land attested by Tehsildar on basis of such orders of Deputy Custodian and Custodian---Plea of private defendant that plaintiff had obtained such orders through fraud---Suit decreed by Trial Court in favour of plaintiff due to non production of evidence by official defendant was confirmed by Appellate Court---Validity---Agricultural property could be transferred through mutation in years 1945-46---Nothing was available on record to show as to why plaintiff remained silent till 14-8-1947 and did not get mutation in his favour despite purchasing suit land in years 1945-46---Plaintiff had not produced Khasra Girdawri showing his possession over suit land after its purchase by him---Suit land shown in revenue record to be exclusive property of evacuee owner became property of Central Government by operation of law---Official respondent had never tried to produce evidence to unearth real facts, but had kept obtaining adjournments and ultimately their right to produce evidence was closed---Impugned decree had been obtained on technical ground by invoking provisions of O. XVII, R. 3, C.P.C.---Plaintiff had not disclosed in plaint that after cancellation of mutation in his name, suit land had been transferred to Provincial Government or a number of persons---Plaintiff had not impleaded persons to whom suit land had been allotted---Plaintiff had concealed all such facts from Trial Court, which proceeded to pass impugned decree in his favour in absence of true facts---Official defendant had not produced evidence, thus, conclusion drawn by courts below was one sided---Law would favour decision of disputes between parties on merits---No one would be allowed to take benefits of technicalities---High Court set aside impugned judgment/ decree and remanded case to Trial Court for allowing official defendant to produce its evidence and decide suit afresh on merits.

Zahoor Hussain v. Ch. Niaz Ali and others 2006 SCMR 1067; Bank at Machine v. Manzoor Ahmad 2006 SCMR 1068; Evacuee Trust Property Board v. Muhammad Saddique 1995 SCMR 1748; Lahore Cantt Cooperative Housing Society Ltd. v. Muhammad Ammar and others 2007 CLC 160; Ali Muhammad v. Mst Zahida Perveen 1992 CLC 2328; Abdul Hameed v. Ghulam Muhammad and others 1987 SCMR 1005; M/S Canforce Ltd v. Syed Ali Shah and others PLD 1977 SC 599; Islamic Republic of Pakistan v. M/s. Abdul Ghani Abdul Rehman Ltd. 2002 CLC 1039; Ministry of Defence v. Janed and Co. 2005 CLC 1004; Masood Akhtar v. Manzoor Ahmad 2005 CLC 1651; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Hassan Din v. Abdus Salaam PLD 1991 SC 65 ref.

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

----Ss. 115 & 151---Provisions of Ss. 115 & 151, C.P.C.---Scope--Provisions of S. 151, C.P.C. could not be invoked to condone gross negligence or defeat provisions of C.P.C.---Provisions of S. 115, C.P.C. could be invoked for correcting errors made by subordinate courts.

----S. 115 [as amended by Civil Procedure (Amendment) Act (III of 1992) w.e.f. 24-5-1992]---Suo motu revisional jurisdiction of High Court---Limitation of 90 days prescribed for filing revision petition---Applicability---Such jurisdiction was not restricted by any period of limitation---Embargo of limitation was applicable on a person making such petition under S.115(2), C.P.C., but not on High Court while exercising powers under S.115(1), C.P.C.---When merits so demand, High Court could consider such petition an information and take action under its suo motu power---Principles.

(d) Administration of justice---

----All disputes between parties should be decided on merits---No one should be allowed to take benefit of technicalities.

Tariq Masood and Muhammad Sirajul Islam Khan, A.A.-G. for Petitioner.

Maqbool Ahmed Choudry and Talat Farooq for Respondents.

Date of hearing: 9th April, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1243 #

2010 C L C 1243

[Lahore]

Before Iqbal Hameed ur Rehman, J

MUHAMMAD IQBAL---Petitioner

Versus

JAMEELA BEGUM and 12 others---Respondents

Writ Petition No.10019 of 2010, decided on 14th May, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXI, R.23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration---Petitioner and respondent were co-sharers in the suit property acquired by Land Acquisition Department but respondent filed compensation petition without associating the petitioner---Suit was decreed by the Trial Court---High Court upheld the decree of Trial Court in appeal---Respondent filed execution petition which was contested by petitioner through objection petition and application for grant of injunction to stay the payment of compensation to respondents in excess of their share--- Executing Court dismissed objection petition---Petitioner filed revision before District Judge contending that respondents had entered into compromise with petitioner in suit for declaration filed by him but one of the respondents had submitted forged wakalatnamas of respondents who had entered into compromise with petitioner---Validity----Held, instead of filing objection petition before executing court, petitioner should have challenged the validity of final order in terms of section 12(2), C.P. C. before High Court as the final order relating to compensation was passed by High Court---If said respondents had entered into compromise with the petitioner, they could make mutual adjustments but execution of decree could not be - disrupted---Petitioner could not point out any illegality or irregularity in the impugned judgments calling for interference---Constitutional petition, therefore, was dismissed in limine.

Ch. Muhammad Imtiaz Bajwa for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1267 #

2010 C L C 1267

[Lahore]

Before Kh. Imtiaz Ahmad, J

Messrs UNITRADE IMPEX and others---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Revision No. 534 of 2009, decided on 17th May, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 9 & 20---Contract Act (IX of 1872), S.28---Accrual of cause of action to file suit within jurisdiction of different courts---Contract between parties containing a clause to take dispute before a particular court having jurisdiction---Validity---Mere consent of parties would not give jurisdiction to a court not having jurisdiction---Such clause of contract was a legal clause---Where there were many courts having jurisdiction and parties mutually consented to take their dispute before a particular court having jurisdiction, then such particular court would have exclusive jurisdiction to entertain the matter---Principles.

PLD 1996 SC 292; 1983 CLC 1369; 1986 CLC 6; 1981 CLC 6; 2000 SCMR 1312; 1983 CLC 1378; 2008 CLC 1618; 1992 SCMR 11; PLD 1993 SC 395 and 1993 MLD 1031 ref.

1987 SCMR 393; 1992 SCMR 1174 and Muhammad Yasin and 2 others v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 rel.

Sh. Muhammad Ilyas for Petitioner.

Nazir Ahmad Abbasi, Standing Counsel for Respondents.

Date of hearing : 13th May, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1273 #

2010 C L C 1273

[Lahore]

Before Ch. Muhammad Tariq, J

ALLAH DITTA and another---Petitioners

Versus

SHAMEER and 4 others---Respondents

Civil Revision No. 791 of 2006, decided on 3rd May, 2010.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of--Non-mentioning in plaint date, time and place where pre-emptor came to know about the suit land sale---Pre-emptor's failure to state place in examination-in-chief as to where he came to know about the sale---Effect---Such Talb being mandatory provision of law could neither be ignored nor defect was curable---Law mandatorily required that date, time and place where pre-emptor came to know about suit land sale must be mentioned in plaint and corroborated later on by witnesses---Pre-emptor could neither be allowed to lead evidence to prove such Talb nor could court consider evidence on issue not being part of pleadings--- Suit was dismissed in circumstances.

2009 SCMR 673; PLD 2007 SC 302 and 2008 SCMR 1682 rel.

(b) Pleadings---

----Evidence could not be led on facts not duly mentioned in pleadings, and if such evidence was recorded, then same could not be considered while deciding issues---Matters should be decided within four corners of pleadings.

Mian Muhammad Nawaz for Petitioners.

Rana Muhammad Rafique for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1281 #

2010 C L C 1281

[Lahore]

Before Hassan Raza Pasha, J

MUHAMMAD ZULQARNAIN SATTI---Petitioner

Versus

Mst. ISMAT FAROOQ---Respondent

Writ Petition No. 1721 of 2010, heard on 14th May, 2010.

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

----Ss. 12 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Application for custody of minors by mother was dismissed by Guardian Court but Appellate Court accepted the appeal and granted interim custody of three minors to her---Father contended that custody of minors was given to him at the time of divorce as a result of an agreement executed by her own choice---Mother contended that father had contracted second marriage, therefore, grant of custody of minors to him was tantamount to leave the minors to the mercy of step-mother-Validity-Father had contracted second marriage while mother had not done so, therefore, she was devoting all her attention and affection to the upbringing of minors who could not be left to the mercy of step-mother---Overriding and paramount consideration of handing over the interim custody of minor was the welfare of the minor---Impugned judgment did not suffer from any illegality or irregularity---Constitutional petition, being without merits, was dismissed with direction to the Guardian Judge to decide the main petition under section 25 of Guardians and Wards Act, 1890 within a period of two months.

Zulfiqar and others v. Mst. Kausar and others 1997 MLD 543; Abdul Razak v. Ijaz Mahmood and another 1992 CLC 5; Matloob Hussain v. Additional District Judge, Lahore and others 1992 MLD 1210; Muhammad Jamil v. Safina Bibi 2008 CLC 576; Tahira Batool v. Additional District Judge, Mianwali and another 2008 CLC 1595; Yaqoob Ahmad v. Mst. Shaista and 2 others 2008 CLC 654; Mrs. Khurshid Begum v. Additional District Judge, Rawalpindi and 2 others PLD 2004 Lah. 395; Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Pesh. 23; Shamim Bibi v. Allah Ditta 1992 CLC 1573; Ms. Quratulain Aleem v. Muhammad Rehan Khan and another 2006 YLR 2604 and Mst. Nasreen v. Additional District Judge, with Power of Guardian Judge, Alipur and others PLD 2007 Lah. 576 ref.

Sardar Muhammad Hafeez for petitioner.

Mujeeb-ur-Rehman Kiani for respondent.

Date of hearing : 14th May, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1345 #

2010 C L C 1345

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ZAHID MEHMOOD---Appellant

Versus

TAHIR AZIZ CHUGHTAI and 2 others---Respondents

Regular Second Appeal Case No.32 of 2003, decided on 28th April, 2010.

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

----O. XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.28---Money suit---Trial Court decreed the suit---Appellate Court upheld the judgment and decree of Trial Court---Defendant contended that he did not execute promissory note in his personal capacity but as an employee of the partnership firm which was the actual beneficiary of the loan---Validity---Plaintiff averred himself in plaint that he had advanced loan to the partnership firm---Plaintiff witnesses also admitted that promissory note was signed by the defendant on behalf of other defendants---Defendant was employee of the firm and was performing his duties as an employee---Promissory note also bore the official rubber stamp of the firm---No doubt, defendant had admitted to putting his signatures on the promissory note and receipts but such admissions were made on behalf of principal/partnership firm---Receipts were issued to the plaintiff on the letter-head of the firm signed by the accounts officer and the defendant as manager of the firm---Plaintiff's own admissions were sufficient to disprove his claim against the defendant who did not assume/incur any personal liability by executing the promissory note---Courts below had failed to evaluate/appreciate the evidence led by the parties and decreed the suit against the defendant instead of the firm which was the real recipient and beneficiary of the loan---Impugned judgment and decree were set aside with costs in circumstances.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 28---Liability of agent signing the promissory note---Scope and application of S.28 of Negotiable Instruments Act, 1881---Where the person signing the promissory note added words indicating that he did so "for, and on behalf of principal or in representative capacity", such person had not assumed any personal liability by signing the promissory note---Executant of promissory note could not absolve himself from personal liability merely on the ground that there were words added to his signature indicating that he was acting as an agent or in representative capacity but the beneficiary of the promissory note had to prove the intention of the executant in this regard---In the present case, executant was admittedly employee of a firm and further, the firm had allowed him to operate their accounts maintained with the Bank.

Munawar-us-Salam for Appellant.

Muhammad Iqbal for Respondents.

Date of hearing: 31st March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1352 #

2010 C L C 1352

[Lahore]

Before Maulvi Anwarul Haq, J

MAHBOOB HUSSAIN and another---Petitioners

Versus

Mian IMTIAZ AHMAD---Respondent

Civil Revision No.2606 of 2004, heard on 11th February, 2009.

(a) Islamic Law---

----Gift---Gift deed by widowed aunt in favour of her nephews---Denial of execution of gift deed by aunt---Proof---Aunt had a son, while deed found mention that she having no male child was making gift in favour of lawful heirs, so that dispute regarding her inheritance might not arise in case of her death---Land was situated in District "H", while attesting witnesses of deed were residents of District "S "---First attesting witness was reported to have died, while second witness (employee of scribe) did not know aunt earlier except her nephews, on whom asking he had signed the deed---Deceased attesting witness did not belong to village of aunt and her tribe---Deed was not attested by a person from village of aunt---Scribe neither did have licence to scribe documents nor did brought stamp vending register nor did ask for National Identity Card of aunt nor did he mention its number in deed---Scribe had stated that aunt was accompanied with her nephews and brother, but he did not know name of her brother---First nephew stated that his aunt had son aged 50 years, with whom she was residing after death of her husband while according to second nephew, husband of his aunt had contracted second marriage---Both nephew's stated that aunt had made an oral gift, whereas in plaint gift through deed was alleged to have been made---Aunt had come alone to nephews' house and her son was not with her--- Aunt was ill since 2/3 years and could not move at relevant time, thus, her son/attorney had answered all relevant questions in cross-examination---Disputed land was jointly owned by aunt along with father of nephew's, who was in possession thereof as co-sharer---Mere non participation in profits would not constitute ouster of a co-sharer or co-heir---In absence of proof of valid gift in favour of nephews, their aunt would be deemed to be in .joint possession of disputed land---Reasons pleaded for gift by aunt had not been proved, rather stood disproved in statements of witnesses of nephews---Suit filed by aunt was decreed in circumstances.

Ata Muhammad v. Maula Bakhsh and others NLR 2000 SCJ 147 (sic); Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

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

(b) Inheritance---

----Limitation in case of inheritance would be irrelevant.

Syed Kaleem Ahmad Khurshid for Petitioners.

Mian Javed Rasheed and Khan A.Hameed Khan for Respondent.

Date of hearing: 1lth February, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1376 #

2010 CLC 1376

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD SALEEM---Appellant

Versus

GHULAM DASTGIR---Respondent

S.A.O. No.3 of 2010, heard on 3rd June, 2010.

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

----S. 13---Transfer of Property Act (IV of 1882), S.52---Ejectment petition---Respondent filed ejectment petition against appellant who denied the relationship of landlord and tenant---Rent Controller dismissed petition holding that relationship of landlord and tenant did not exist inter se the parties---Appellate Court allowed the appeal---Appellate order was challenged before High Court which set aside the impugned order and remanded the case to first Appellate Court; in post remand proceedings, appeal was accepted again---Validity---Premises in question at one time was rented out to the appellant who surrendered possession but subsequently acquired the possession as a mortgagee on the basis of a document which revealed that loan was advanced to respondent by the appellant who secured possession of the premises in question while agreeing to hand over possession back to respondent on repayment of loan advanced by appellant---Held, said document contained all the ingredients of a mortgage as defined by S.52 of the Transfer of Property Act, 1882---Appellant had the possession as a mortgagee and not as a tenant, therefore, the Rent Controller rightly decided that relationship of landlord and tenant did not exist inter se the parties---Impugned appellate order did not reflect judicial application of mind, correct application of evidence on record and application of relevant law---Order of Appellate Court was, therefore, set aside and that of the Rent Controller restored.

Imran Muhammad Sarwar for Appellant.

Taki Ahmad Khan for Respondent.

Date of hearing: 3rd June, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1395 #

2010 C L C 1395

[Lahore]

Before Ijaz-ul-Ahsan, J

Mst. PERVEEN---Petitioner

Versus

LIAQAT HAYAT and 26 others---Respondents

Civil Revision No.766 of 2009, decided on 31st May, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.12(2), 151 & O.IX, R.13---Suit for specific performance---Trial Court dismissed the suit while Appellate Court accepted the appeal and decreed the suit ex parte---Revision filed by the defendant failed and petition for leave to appeal was also dismissed by the Supreme Court---Defendant, after first round of litigation, filed application under S.12(2) read with O.IX, R.13, C.P.C. for setting aside the ex parte decree---Defendant also moved an application under S.151, C.P.C. for suspension of decree but said application was dismissed---Defendant/petitioner contended that grant of interim relief was the natural consequence where the court had come to the conclusion that there was a prima facie case---Validity---Application of defendant under S.12(2) read with O.IX, R.13, C.P.C. was pending in the lower Appellate Court which would be recording evidence after framing of issues---Lower Appellate Court had found that the defendant was not faced with irreparable loss---Matter related to immovable property and defendant was not altogether non-suited insofar as her application under S.12(2), C.P.C. had been entertained by the lower Appellate Court---Interim relief through grant of interim injunction needed fulfilment of three requirements viz. prima facie case, irreparable loss and the balance of inconvenience---Defendant had failed in several fora up to the Supreme Court, therefore, to deprive plaintiffs of fruits of the decree would cause more inconvenience to them rather than defendants---Even otherwise, if defendant succeeded he would be entitled to recover the immovable property which was not in the danger of being changed---Appellate Court did not commit any illegality or material irregularity warranting exercise of revisional jurisdiction of High Court---Petition was dismissed accordingly.

Ch. Muhammad Nadeem for Petitioner.

Rana Sardar Ali for Respondents Nos.15 to 19.

CLC 2010 LAHORE HIGH COURT LAHORE 1398 #

2010 C L C 1398

[Lahore]

Before Sh. Azmat Saeed, J

ZAHID MAHMOOD and 3 others---Petitioners

Versus

ABDUL HAMEED alias GHULAM MUHAMMAD and another---Respondents

Civil Revision No.1385 of 2009, decided on 2nd June, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XX, R.8 & O.XXI, R.35----Suit for partition---Trial Court decreed the suit---Judgment and decree was challenged by the defendant up to the Supreme Court---Executing court issued warrant of possession which was challenged in appeal but the appeal was dismissed---Defendant contended that the original decree had become inexecutable and that issuance of the warrant of possession was without jurisdiction; furthermore, requisite stamps were not affixed on the decree---Plaintiff contended that the issues involved in the petition had been settled by the Supreme Court and that the revision petition was tainted with mala fides and was only a ploy to delay execution--Validity-By final judgment and decree plaintiff was directed to transfer the said land to the petitioners and other defendants in shares mentioned therein upon the payment of compensation to be determined by Revenue Authorities within thirty days but defendants failed to make the payment-High Court affirmed the order of the executing court holding that since the defendant failed to make payment within stipulated period, plaintiff was entitled to warrant of possession---Said order/matter was unsuccessfully challenged before the Supreme Court, thus the question of entitlement of plaintiff to warrant of possession was settled by the High Court not once but twice---Order, therefore, had attained finality after being challenged unsuccessfully right up to the Supreme Court---Same arguments were re-agitated again and again by the defendants' side in order to frustrate the execution---Warrant of possession was rightly issued by the executing court inasmuch as, the original order in that behalf had attained finality and the matter was affirmed by High Court twice-By issuing warrant of possession the executing court had acted in accordance with the judgment and decree and had not trangressed its jurisdiction--Revision was found by the High Court not only misconceived but tantamount to abuse the process of the courts which was dismissed accordingly.

Syed Kaleem Ahmad Khurshid for Petitioners.

Respondent No.1 in person.

Date of hearing: 26th May, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1405 #

2010 C L C 1405

[Lahore]

Before Ch. Muhammad Tariq, J

ATTA-UR-REHMAN and others---Petitioners

Versus

HOUSING AND PHYSICAL PLANNING COMMITTEE and others---Respondents

Civil Revision No.235 of 2009, decided on 15th June, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115 & O.XVI, R.1---Suit for declaration---Revision---Maintainability---Scope---Trial Court, after framing the issues, directed the parties to file the list of witnesses within seven days but plaintiff did not file the said list for more than three and half years---When plaintiff filed application for permission to produce witnesses after above-mentioned delay, Trial Court dismissed the application---Instead of filing revision against the order of Trial Court, plaintiff filed appeal which was dismissed by Additional District Judge---Defendant contended that appeal against order of Trial Court was not maintainable, so appellate court committed illegality by proceeding with the appeal as plaintiff could only file a revision and not an appeal against the order of Trial Court---Defendant further argued that plaintiff's revision against dismissal of appeal, again was not maintainable---Validity---Parties were required to present in court a certificate of readiness to produce evidence along with a list of witnesses under O.XVI, R.1, C.P.C.---Remedy available to plaintiffs against order dismissing application not submitted within prescribed time was revision under S.115; C.P.C. and not an appeal which could only be filed under specific statutory provision-Appeal was not a substitute for revision---Revision against order of dismissal of appellate court dismissing appeal was not maintainable--- Appeal filed in contravention of law was void ab initio because a superstructure raised on wrong foundation was liable to be demolished---Revision was dismissed, in circumstances.

Malik Qamar Afzal for Petitioners.

Habib-ul-Wahab-ul-Khairi for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1411 #

2010 C L C 1411

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD ASHRAF---Petitioner

Versus

Mst. NUSRAT BIBI and 3 others---Respondents

Writ Petition Nos.4123, 6751 and 4124 of 2009, decided on 11th May, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance and expenses incurred on medical treatment of minor---Trial Court decreed the suit for maintenance to three thousand rupees per month and claim of medical expenses to Rs.1,50,000 respectively---Appellate Court reduced decretal amount of medical expenses to Rs.100,000 and dismissed plaintiff's plea for enhancement of the maintenance--Defendant pointed out that the plaintiff had concealed from the court the fact that through an earlier suit by plaintiff, maintenance of Rs.400 per month had been awarded, therefore, a second suit on the same cause of action was barred---Defendant further argued that the plaintiff had not produced any document to establish the source of income of the defendant and that the maintenance awarded by Trial and Appellate Courts was beyond his means---Plaintiff maintained that the minor was studying at a boarding school and being a cardiac patient, needed regular medical care-Validity---Financial position of the defendant was found by the courts below to be strong enough to sustain maintenance of Rs.3000 per month to his child---Defendant did. not produce any evidence to show that his financial resources were not sufficient to afford the payment of Rs.3000 per month---Minor had cardiac problem and underwent open heart cardiac surgery which required materials for surgical processes and medicines---Receipts produced by the plaintiff supported the judgment and decree of the Appellate Court which awarded Rs.100,000 for medical expenditure after due application of mind---No bar existed on a second suit for enhancement of maintenance in the wake of increasing financial requirements of the minor---Provisions of the Civil Procedure Code, 1908 were not applicable to Family suits in stricto senso, therefore, the second suit was not barred- Courts below had not committed any illegality or material irregularity--- Petitions were dismissed accordingly.

1994 CLC 1216 and 2002 CLC 1838 ref.

Malik Imtiaz Hussain Khan Baloch for Petitioner.

Malik Asif Ahmad Nissoana for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1418 #

2010 CLC 1418

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Ch. MUHAMMAD TAHIR RANDHAWA---Petitioner

Versus

ARSHAD ALI and 2 others---Respondents

Writ Petition No.5510 of 2006, decided on 22nd March, 2010.

(a) West Pakistan Land Revenue Rules, 1968---

---R. 17---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.175---Constitution of Pakistan (1973), Art.199---Constitutional petition---Estoppel---Lumberdar, appointment of---Plea that Advocate could not be appointed as Lumberdar was never raised by respondent before District Officer (Revenue), Executive District Officer (Revenue) or Member, Board of Revenue---Respondent was estopped to raise such objection in constitutional petition.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484; Rehmat Ali v. Sultan Muhammad PLD 1958 W.P. (Rev. 29); Mst. Hayat Begum and. others v. Mst. Kaniz Shahr Bani and another PLD 1958 W.P. Rev. 90; Muhammad Rahim and 6 others v. Board of Revenue, Sindh and 4 others 1992 CLC 1040 and Muhammad Rafique v. Nazir Ahmad and others 2007 SCMR 287 ref.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 175---Post of Lumberdar did not fall within the prohibited arena prescribed in R.175(1) of Pakistan Legal Practitioners and Bar Councils Rules, 1976.

Muhammad Rafique Goreja for Petitioner.

Aurangzeb Khan, Additional Advocate-General.

Mushtaq Ahmad Chaudhary for Respondent No.2.

CLC 2010 LAHORE HIGH COURT LAHORE 1432 #

2010 C L C 1432

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ILYAS BAIG---Petitioner

Versus

GOVERNMENT OF PUNJAB---Respondent

Writ Petition No.1281 of 2009, decided on 7th June, 2010.

Land Acquisition Act (I of 1894)---

----S. 4---Punjab Land Acquisition Rules, 1980, R. 7---West Pakistan Land Revenue Act (XVII of 1967), S.17---Constitution of Pakistan (1973), Art.199--Constitutional petition---Petitioner contended that government issued notification, under S.4 of the. Land Acquisition Act, 1894 more than two years ago i.e. on 6-1-2007 but made no progress towards acquisition of the land so the notification was liable to be declared void inasmuch as the circle Patwari had refused to issue copy of register Haqdaran-e-Zameen to the petitioner---Validity---Notification in question having been issued more than two years ago had become infructuous as proceedings of acquisition of land automatically lapsed after 14 months under R.7 of the Punjab Land Acquisition Rules, 1980---No legal sanctity was attached to the notification under S.4 of the Land Acquisition Act, 1894 if no further action pursuant thereto was taken by the authority within a period of one year and two months---High Court observed that Patwari being a custodian of public documents, could not refuse issuance of "Fard" and copy of Register Haqdaran-e-Zameen which was a public document---Constitutional petition was disposed of accordingly.

Sh. Azfar Amin for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1438 #

2010 C L C 1438

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN---Petitioner

Versus

RABIA BIBI and 2 others---Respondents

Transfer Application No.79-C and C.M. No.1 of 2010, decided on 8th June, 2010.

Civil Procedure Code (V of 1908)---

----S. 24-Transfer of suit-Respondent filed petition for execution which was pending before the civil court at District Headquarters while suit for damages brought by the petitioner was pending in the civil court at Tehsil Headquarters of the same district-Both petitioner and the respondent made separate applications for consolidation of the matters-District Judge accepted the petition of respondent while dismissed the application of petitioner consequently, the District Judge transferred the suit of petitioner to court at the District Headquarters where the suit of the respondent was pending--Validity--Respondent was a lady/female-Woman, undoubtedly, would face more difficulties and inconvenience in comparison to a man in pursuing her case at a place other than that of her own residence-District Judge, keeping in view her predicament, had rightly transferred her case to the place of her residence- Petition was, therefore, dismissed.

Muhammad Javaid-ur-Rehman Rana for Petitioner.

Zafar Abbas Khan for Respondents No.1 and 2.

CLC 2010 LAHORE HIGH COURT LAHORE 1444 #

2010 C L C 1444

[Lahore]

Before Tariq Javaid, J

TAJVEED IQBAL---Petitioner

Versus

RETURNING OFFICER NA-178, Muzaffargarh-III and another---Respondents

Writ Petition No.3943 of 2010, decided on 14th May, 2010.

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

----Ss. 14 & 78---Constitution of Pakistan (1973), Art. 199--Constitutional petition---National/Provincial Assembly, election of--Objections on eligibility and/or acceptance of nomination papers of any candidate--Scope and remedy---Voter/elector could raise such objections before Returning Officer, but could not challenge his decision thereon in appeal or constitutional petition-Role of elector would come to an end on lying information before Returning Officer in form of such objections---Principles.

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

----Ss. 14(3) & 78--Constitution of Pakistan (1973), Arts. 62, 63, 199, 218 & 225-Conduct of General Election Order (7 of 2002), Art. 8-D(1)(g)-Constitutional petition--- Maintainability--- Bye-election of National Assembly--Disqualification of respondent-candidate by Supreme Court for having contested general election on basis of forged degree--Eligibility of respondent to contest election objected to by an elector and contesting candidate---Withdrawal of appeal filed by contesting candidate against acceptance of nomination papers of respondent by Returning Officer--Filing of two separate constitutional petitions by elector and contesting candidate--Maintainability---Role of elector had come to an end on laying information before Returning Officer in form of such objections, thus, he could not be deemed to be an aggrieved person---Contesting candidate was only aggrieved person, who had withdrawn his appeal--Both elector and contesting candidate had no locus standi for issuance of writ of quo warranto-Election had not yet been held and respondent was not holding any public office of profit---All institutions including Election Commission were legally bound to implement judgments of Supreme Court---Information regarding ineligibility of respondent had already been laid before Election Commission through such judgment of Supreme Court, thus, for its implementation no further direction would be required-Petitioners instead of approaching Election Commission had sought constitutional remedy-High Court dismissed both constitutional petitions in limine for not being maintainable.

Asif Ali Zardari v. The State PLD 1008 Kar. 310, 313, 429, 487; Federation of Pakistan through Secretary Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others PLD 2009 SC 237; Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others 2006 SCMR 1356 and 1713; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Basanta Lal v. Comrs. for the Port of Calcutta and others AIR 1951 Calcutta 460, 570; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; PLD 2009 SC 531; Nawabzada Iftikhar Ahmad Khan v. Chief Election Commissioner, Islamabad and others C.P. No.287 of 2008 and A.K. Brohi on Fundamental Law of Pakistan ref.

Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 and Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 rel.

----Art. 199---Writs of mandamus and quo warranto---Locus standi---Scope---Petitioner in case of writ of mandamus must be an aggrieved person, but not in case of writ of quo warranto---Person against whom a. writ of quo warranto sought to be issued must be incumbent of a public office---Principles.

Writ of quo warranto is issued upon an information which may be lodged against a person, who claims or usurps office/franchise or liberty, and upon such information being laid, the court will inquire by what authority the person who claims or has usurped the office, support his claims.

In case of writ in the nature of mandamus, the person invoking the constitutional jurisdiction of High Court must be an aggrieved person, whereas in case of invoking the constitutional jurisdiction for the issue of writ in the nature of quo warranto, he does not need to be an aggrieved person.

For invoking constitutional jurisdiction of High Court for the issue of writ of mandamus, the petitioner must be an aggrieved person. However, in case of quo warranto, he need not be an aggrieved person, but it is imperative that the person against whom a writ is sought to be issued must be incumbent of a public office.

Rex v. Speyer (1916) 1 K.B.D. 595 and Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 fol.

Zafarullah Khan Khakwani for Petitioner.

Mubbashar Latif Gill, A.A.-G.

Malik Muhammad Rafiq Rajwana, Rana Javaid Akhtar and Javaid Iqbal Ansari Standing Counsels for Federation of Pakistan.

CLC 2010 LAHORE HIGH COURT LAHORE 1465 #

2010 C L C 1465

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NUSRAT BIBI and 10 others---Petitioners

Versus

ALLAH BAKHSH and 9 others-Respondents

Civil Revision No.368 of 2007, decided on 29th June, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Thal Development Act (XV of 1949), S.21---West Pakistan Land Reforms Regulations, 1959, Para.22---Suit for declaration---Plaintiffs claimed that they were owners in possession of suit land as Adna Maliks through their predecessor-in-interest and claimed the return of suit land in adjustment of land acquired by the Thal Development Authority in the year 1951---Defendants also filed suit against plaintiffs---Both suits were consolidated---Trial Court dismissed the main/original suit and decreed the suit filed by defendants---Appellate Court decreed the main/original suit---Defendants/petitioners contended that plaintiffs were not in possession of the land as Adna Maliks at the time of acquisition but were tenants-at-will and that Bashara Malikan Bawaja Nautore along with enteries of Ghair Dakhilkar Bahissa Batai was not Adna Malik nor was in adverse possession---Validity---Plaintiffs had claimed that they were owners through their predecessor-in-interest who was Adna Malik of the land which was acquired by the Thal Development Authority---Controversy of Adna Malik or Aala Malik was of secondary importance as the plaintiffs had to prove, in the first instance, that their predecessor-in-interest was owner of the land which was acquired by the Thal Development Authority---Revenue record showed that the predecessor-in-interest of plaintiffs was Adna Malik of land measuring 27 Kanals and one Marla and was not owner of land measuring 330 Kanals and 6 Marlas as claimed in the plaint---Only document which showed that the predecessor-in-interest was in possession of 400 Kanals of land on the basis of Nautore was declared by the Trial Court to be a fabricated document---Ownership of the suit land by the predecessor-in-interest. of plaintiffs and acquisition of the same by the Thal Development Authority could not be proved, therefore, no question of re-grant of the land could arise when plaintiffs had been re-granted land in another chak---Disputed land was in fact allotted to the predecessor-in-interest of defendants so the mutation was sanctioned in their favour---Adjustment facility from the Thal Development Authority could be utilized only by owners of land, therefore, plaintiffs had to establish their ownership in the first instance to avail the adjustment facility---Appellate Court focused on the controversy of Adna Malik and Aala Malik and decided the case in terms of Para.22 of the West Pakistan Land Reforms Regulations, 1959 which had provided that Aala Malikyat stood abolished while Adna Malik were made full owners of the land---Appellate Court failed to appreciate the evidence which showed that land measuring 27 Kanal, one Marla which was owned by the predecessor-ininterest of plaintiffs was never acquired by the Thal Development Authority---Suit land was a shamilaat and entitlement of plaintiffs had to be ascertained with respect to their total holdings in the village---Trial Court should have summoned the original record including Wajib-ul-Arz to establish the entitlement of both the parties in the village and recorded the statements of Revenue Officials as court witnesses to adjudge the entitlement of the parties to suit land---Judgments of both Trial and Appellate Courts were set aside and the case was remanded to the Trial Court with direction to record the evidence of Revenue Officials, examine the Wajib-ul-Arz and decided the case within four months.

Mandan Gopala and 4 others v. Maran Depari and 3 others PLD 1969 SC 617; Allah Din v. Habib PLD 1982 SC 465 and Alloo v. Sher Khan and others PLD 1985 SC 382 ref.

Malik Allah Wassaya for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 10th June, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1493 #

2010 CLC 1493

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD IQBAL through Special Attorney---Petitioner

Versus

NOOR ELAHI and 5 others---Respondents

Civil Revision No.132 of 2008, decided on 4th May, 2010.

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

----Ss. 5 & 12(5)---Civil Procedure Code (V of 1908), S.115---Revision---Revision petition was time-barred---Petitioner who was asked to explain the delay, contended that once revision had been admitted for regular hearing, question of limitation could not be considered before final arguments and that he was not informed by the copying agency about date, of preparation of certified copies, therefore, period of limitation would run from the time when he was informed about the preparation of certified copies---Validity---Court was empowered to consider any question of law at any time including question of limitation irrespective of the fact whether such question was agitated or not---Question of limitation needed to be dealt with diligently before deciding the controversy on merit---Petitioner's contention that he was not informed by copying agency was misconceived as S.12(5), Limitation Act, 1908 excluded only the time requisite for obtaining certified copies-Revision was barred by delay of two days which could not be condoned as S.5 of Limitation Act, 1908 was not applicable to civil revision---Revision, being time-barred, was dismissed.

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

----S. 12(5)--Scope of S.12(5), Limitation Act, 1908--Section 12(5), Limitation Act, 1908 provided for exclusion of only that duration of time which was needed for preparation of certified copies.

----S. 5--Civil Procedure Code (V of 1908), S.115--Applicability of S.5, Limitation Act, 1908 to civil revision- Provisions of S.5, Limitation Act, 1908 were not applicable to proceedings under S.115, C.P.C.

Muhammad Ibrahim v. Muhammad Idrees and 5 others 1998 CLC 1123; Naziran Begum and 2 others v. Saleh Muhammad and others 2002 SCMR 37; Pirzada Niaz Ahmad Farooqi through Legal Representatives v. Muhammad Bux and others 2004 SCMR 862 and Kakakhel Industries Limited v. Market Committee, Faisalabad KLR 2003 SC 221 ref.

Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403 and City Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 fol.

Mst. Anisa Begum v. Atiq-ur-Rehman 2007 MLD 1385 rel.

Sh. Naveed Shaharyar for Petitioner.

Nemo for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1503 #

2010 CLC 1503

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMAD---Petitioner

Versus

PUNJAB CO-OPERATIVE BOARD FOR LIQUIDATION, Lahore through

Chairman and another---Respondents

Petition No.70 of 2009, decided on 22nd June, 2010.

Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----Ss. 5, 11 & 17---Shop sold by defunct society through agreement dated 21-9-1991 after receiving total price and delivering its possession to claimant---Receipt of liquidation charges from claimant by Liquidation Board, but its refusal to execute sale deed in his favour on ground that such sale was prohibited vide Notification dated 28-7-1991; and that such sale through payment of SMRs held by sister-in-law of claimant was not legal---Validity---Claimant had paid sale price and was in possession of shop since 21-9-1991--- Board after receipt of liquidation charges on 5-9-2007 was legally bound to execute sale deed in favour of claimant---SMRs of sister-in-law of claimant had been enchashed---As per policy/scheme of Board envisaged in its Circular dated 30-1-2006 approved by Co-operative Judge, SMRs of near relatives/family of loanee were acceptable---Board of Revenue through Notification dated 28-7-1991 had not prohibited sale of assets of defunct societies, but had only attached a condition of NOC thereto---Board was denying a valid legal right accrued to claimant on basis of mere technicalities---Claimant was bona fide purchaser for value and in possession of shop till yet under agreement to sell, thus, entitled for execution of sale deed---High Court directed Board to complete process for final disposal of shop in favour of claimant within specified time.

Tariq Masood for Petitioner.

M. Ilyas Khan for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1512 #

2010 CLC 1512

[Lahore]

Before Ijaz Ahmad Chaudhry, J

WASEEM SANA and another---Petitioners

Versus

PUNJAB CO-OPERATIVE BOARD FOR LIQUIDATION and 6 others---Respondents

Petition No.156-C of 2007, heard on 10th July, 2009.

Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----S. 11--Civil Procedure Code (V of 1908), S. 141 & O. XXI, R. 66--Auction of land of defunct society---Non-fixation of reserve price by. Liquidation Board--Auction of land by Board @ Rs. 76,000 per /canal after five years of its sale by defunct society to affected allottees Rs.1,50,000--Application by allottee for setting aside such auction-Validity--Defunct Society had spent huge amount on construction of roads and development of Society---Land had been auctioned at cheaper price--Auction had been conducted in a clandestine manner, whereagainst serious objections had been raised--Allottees were ready and willing to pay off amounts deposited by auction purchaser-Board had deprived 339 affectees of their developed land, who had already deposited amounts five years ago-Allottees had registered two criminal cases against Chairman of Board and moved to Anti Corruption Department for registration case against him in present deal-High Court set aside impugned auction while directing Board to prepare scheme for establishing society' and inducting allottees in their land after collecting money from them.

2009 CLC 863 and 2001 CLC 126 rel.

Kh. Saeed-uz Zafar for Petitioners.

Muhammad Ilyas Khan for the State.

Sardar Khurram Latif Khosa for Respondent No.7.

Abdul Rashid Qureshi for Respondent No.6 in person.

Date of hearing: 10th July, 2009.

CLC 2010 LAHORE HIGH COURT LAHORE 1523 #

2010 C L C 1523

[Lahore]

Before Syed Mansoor Ali Shah, J

MUHAMMAD SALEEM ABID---Petitioner

Versus

VICE-CHANCELLOR B.Z.U, Multan and 7 others---Respondents

Writ Petition No.3301 of 2009, decided on 15th March, 2010.

Constitution of Pakistan (1973)---

----Arts. 25 & 199-Constitutional petition-Educational institution--Admission--Offer of M.Phil/Ph.D., composite programme-Rules--Applicability---Petitioner had challenged, the eligibility criteria for admission in Ph.D. programme on the ground of discrimination-Contention raised by the petitioner was that he was enrolled into the composite programme of M.Phil/Ph.D. in the year 2003 and new Rules of M.Phil/Ph.D. programme announced in the year 2005 by the University were made applicable to him--Authorities contended that M.Phil and Ph.D. were two different programmes and University did not offer composite programme and that under notification in the year 2005, the new Rules were introduced superseding the old Rules of the year 2002---Validity--Record revealed that admission in M.Phil/Ph.D. programme was a composite programme and registration into the remaining part of Ph.D. programme was a procedural step and did not affect the continuation of the programme---Earlier the students admitted to Ph.D. programme in the year 2004 were subjected to the old Rules which amounted to discrimination to the petitioner with new Rules--High Court ,,, allowed the constitutional petition and directed authorities to apply old Rules applicable to the M.Phil/Ph.D. programme to the case of the petitioner--- Constitutional petition was disposed of accordingly.

Muhammad Ishaque Soomro v. Water and Power Development Authority and another 1990 SCMR 924; Messers Airport Support Services v. The Airport Manager, Quaid-eAzam International Airport, Karachi and others 1998 SCMR 2268; S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612; Muhammad Asif Ikram and others v. Central Manager, Pakistan Telecommunication Corporation Limited (PTCL) and others 2009 PLC (C.S.) 721; Ahmad Latif Oureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore and another PLD 1994 Lah. 3; re. Province of Sindh through Chief Secretary Sindh Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325; Shafique Ahmed and others v. Government of Punjab and others PLD 2004 SC 168; Rashid Nawaz and 7 others v. University of the Punjab through Vice-Chancellor, Lahore and 3 others PLD 2007 Lah. 78; re. Imtiaz Ahmed and others v. Punjab Public Service Commission through Secretary, Lahore and others PLD 2006 SC 472 and Muhammad Faisal Haseeb Khan Baloch and 2 others v. Vice-Chancellor, Baha-ud-Din Zakariya University, Multan and 2 others 2006 YLR 413 ref.

Noor Ahmad Khan Meo for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 28th January, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1532 #

2010 CLC 1532

[Lahore]

Before Sh. Azmat Saeed, J

SOODAN KHATOON---Petitioner

Versus

ZAREENA BEGUM and 4 others---Respondents

Civil Revision No.2636/I of 2009, decided on 11th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration claiming to be the widow of the deceased and her entitlement as a sharer in the inheritance of the deceased---Plaintiff also filed an application for the grant of temporary injunction to protect her share in the disputed property against execution of decree---Trial Court accepted application of the plaintiff--Appeal filed against the order of Trial Court was disposed of by Appellate Court entitling the defendant to execute decree to the extent of 1/16 share in the estate, protecting rights of the plaintiff to the extent of the balance 1/16 share---Estate of the deceased consisted of bank accounts and the immovable property---Defendant was entitled to receive 1/16 share in terms of the impugned order whereas in terms of immovable property, her share was undivided and she was entitled to the possession of immovable property subject to partition---Revision petition was disposed of accordingly.

Arshad Malik Awan for Petitioner.

Malik Salim Iqbal Awan for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1540 #

2010 C L C 1540

[Lahore]

Before Mian Shahid Iqbal and Nasir Saeed Sheikh, JJ

NASCO PACKAGING (PVT.) Limited through Chief Executive---Appellant

Versus

SHEIKH INAM-UL-HAQ and another---Respondents

Regular First Appeal No. 154 of 2007, heard on 25th June, 2010.

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

----O.IX, Rr.6, 13 & O.XXXVII, Rr. 2, 3---Qanun-e-Shahadat (10 of 1984), Art. 133---Suit for recovery of money on basis of cheque---Report of Process Server showing service of summons upon a person alleged to be Incharge of defendant's factory---Initiation of ex parte proceedings against defendant on basis of such report---Application for setting aside order of ex parte proceedings on ground that said person was neither employee of defendant nor was he authorized to receive summons, thus, service upon defendant could not be deemed to have been lawfully effected--Rejection of such application and passing of decree by Trial Court after recording plaintiff's evidence without allowing defendant to cross-examine plaintiff's witnesses---Validity---Defendant had right to be treated in accordance with law and could avail opportunity to defend suit instituted against him---Nothing was available. on record to show as to how such person was believed to be Incharge of defendant company---Report of Process Server did not show parentage or Identity Card number of such person---Defendant had specifically denied his connection with such person, thus, Trial Court was duty bound to frame issue on such point and allow him to lead evidence thereon---Order of ex parte proceedings was not legally sustainable---Defendant despite having been proceeded ex parte could still join proceedings of pending suit and cross-examine witnesses produced by plaintiff in ex parte evidence---Denial of opportunity to defendant to cross-examine plaintiff's witnesses was illegal, which had resulted into miscarriage of justice---High Court set aside impugned judgment/decree while directing Trial Court to frame issue on such application and decide same after recording evidence.

Ch. Mazhar Ali v. Deputy Commissioner Islamabad and another 1992 MLD 116; Messrs Landhi Industrial Trading Estates Ltd. Karachi v. Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi 1970 SCMR 251; Mst. Bilqees Begum v. Syed Ali Turab and others 1980 CLC 930; Aziz Ullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lah. 879; Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din PLD 1970 Lah. 428 and Snagram Singh v. Election Tribunal, Kotah and another AIR 1955 SC 425 rel.

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

----O.IX, R.6---Qanum-e-Shahadat (10 of 1984), Art. 133---Order of ex parte proceedings against defendant---Effect---Defendant could join proceedings of pending suit and cross-examine witnesses produced by plaintiff in ex parte evidence---Denial of opportunity to defendant to cross-examine plaintiff's witnesses would be illegal resulting into miscarriage of justice.

Ch. Mazhar Ali v. Deputy Commissioner Islamabad and another 1992 MLD 116; Messrs Landhi Industrial Trading Estates Ltd. Karachi v. Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi 1970 SCMR 251; Mst. Bilqees Begum v. Syed Ali Turab and others 1980 CLC 930; Aziz Ullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lah. 879; Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din PLD 1970 Lah. 428; Snagram Singh v. Election Tribunal, Kotah and another AIR 1955 SC 425 rel.

Jahangir A. Jhojha for Appellant.

Sh. Zulfiqar Haider Mankee for Respondents.

Date of hearing: 25th June, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1557 #

2010 C L C 1557

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

KHURRAM SHUJA---Appellant

Versus

Mst. KISHWAR ZIA and another---Respondents

S.A.O.No. 171 of 2009, decided on 14th July, 2010.

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

----Ss.13 & 15---Ejectment of tenant---Bona fide personal need of landlord---Concurrent findings of fact by two Courts below---Substitution of findings---Jurisdiction of High Court---House owned by son of landlord---Ejectment of tenant was sought on the ground of bona fide personal need of landlord, as he was living in the house owned by his son---Rent Controller passed eviction order against tenant and the same was maintained by Lower Appellate Court---Validity---Landlord had only one house which was in the name of his son, therefore, the rented premises was required to landlord for his personal use as landlord had no other house to reside---Landlord proved that he required the house for his personal need---Landlord appeared as witness and produced one witness in support of his claim of bona fide need whereas tenant failed to shatter veracity of statement of landlord that he did not need the demised premises---Both the Courts below after properly appreciating evidence on record had concurrently decided against tenant and High Court had no jurisdiction to substitute its own findings in place of concurrent findings of the Courts below---Findings of Rent Controller and Lower Appellate Court were based on elaborate, careful and correct appraisal of evidence and did not suffer from any misreading---High Court in exercise of appellate jurisdiction, declined to interfere in concurrent findings of two Courts below and maintained eviction order passed against tenant---Second appeal was dismissed.

1988 SCMR 197; 2000 SCMR 556; 2001 SCMR 577 and 2007 SCMR 818 ref.

Messrs F.K. Irani and Company v. Begum Feroze 1996 SCMR 1178; Muhammad Rafique v. Amir Shehzad 1999 YLR 610; Raham Dil v. Province of Punjab 1999 SCMR 1060; Syed Ghani v. Mst. Saba Bibi 2007 CLC 1075 and Alamghir Khan through legal heirs and others v. Haji Abdul Sattar and others 2009 SCMR 54 rel.

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

----Ss. 13 & 13(6)---Ejectment of tenant---Default in payment of monthly rent---Tentative rent order, non-compliance of---Landlord sought ejectment of tenant on the ground of default in payment of monthly rent---Plea raised by tenant was that landlord refused to give receipt of rent to him---Validity---When landlord refused to give receipt of rent, he did not file any suit in any court---Order under S. 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, passed by Rent Controller regarding deposit of rent to the tune of Rs.2000 per month was not complied with by tenant, therefore, it as proved that he was wilful defaulter in payment of rent---Rent Controller had rightly passed ejectment order against him---Appeal was dismissed by the High Court.

Ch. Ijaz Sarwar v. Nadeem Farooq and another 2004 CLC 1525 and Javed Iqbal Butt v. Sheikh Fiyaz Ali by L.Rs 2004 CLC 981 rel.

----S.15(5)---Appeal---Tentative rent order---Non-compliance---Penal consequences---Lower Appellate Court, powers of---Rent Controller passed ejectment order against tenant and when he filed appeal Lower Appellate Court directed him under section 15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, to deposit tentative rent---Tenant did not comply with the order passed by Lower Appellate Court, resultantly his appeal was dismissed---Validity---Tenant failed to comply with order under section 15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, therefore, Lower Appellate Court rightly dismissed the appeal filed by tenant---Non-compliance of tentative rent deposit order entailed penal consequences---Appeal was dismissed.

Khurshid Ahmad Qais v. Shahabuddin and 2 others PLD 1982 Lah. 13 rel.

Ch. Muhammad Bashir for Appellant.

Qazi Misbah-ul-Hassan for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1564 #

2010 C L C 1564

[Lahore]

Before Shaukat Umar Pirzada, J

Mst. WAKEELAN BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE (Camp at Duniyapur), District Lodhran and 2 others---Respondents

Writ Petition No.1001 of 2009, decided on 9th June, 2010.

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

---Ss. 12 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Trial Court accepted father's application for custody of minors---Appeal of mother was dismissed by the Appellate Court---Validity---Father's claim to custody of minors was a counterblast to the decree of maintenance obtained by mother---Father was under strong influence of his elder brother who pursued the litigation on behalf of his younger brother against the mother of minors which indicated that father had no independent mind---Father was owner of vast land while his elder brother owned nothing which suggested that elder brother had his own axe to grind---Registration of false and frivolous cases against the mother of minors and her second husband at the instance of the father showed his negative frame of mind---Minors were in good shape which negated father's accusation that they were not maintained well by the mother---Second husband of the mother of minors was also well-disposed towards the minors---Maternal grandparents of minors living nearby were also looking after them---Interest and welfare of minors required that they should have been allowed to remain with their mother---Application of father was dismissed and mother was allowed to retain the custody of minors---Constitutional petition was accepted.

Muhammad Anwar v. Additional District Judge, Mandi Baha-ud-Din and 2 others PLJ 2007 Lah. 335 and Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Pesh. 23 rel.

Ch. Ghulam-ud-Din Aslam for Petitioner.

Sardar Muhammad Sarfraz Dogar for Respondent No.3.

CLC 2010 LAHORE HIGH COURT LAHORE 1572 #

2010 C L C 1572

[Lahore] Before Ch. Muhammad Tariq, J

MUHAMMAD IQBAL and another---Petitioners

Versus

MEMBER JUDICIAL-II, BOARD OF REVENUE, PUNJAB, LAHORE and 11 others---Respondents

Writ Petition No. 16300 of 2004, decided on 28th April, 2010.

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

----S. 163-Thal Development Act (XV of 1949), Ss.21 & 36---Constitution of Pakistan (1973), Art.199---Constitutional petition---Land of predecessor-in-interest of petitioners was acquired under That Development Act, 1949 and adjustment in return of the acquired land was made---Respondent challenged the adjustment order before revenue hierarchy, contending that he was in possession of the suit-land, by filing two appeals and a revision without success---Member, Board of Revenue accepted review application filed by respondent---Petitioner contended that the Member, Board of Revenue had not taken into consideration the question of limitation while allowing review which was time-barred---Validity---Record showed that land in question was confirmed under adjustment scheme by Colonization Officer in presence of the representatives of the respondent but he never challenged said order at any appropriate forum---Period of filing review under S.163 of the West Pakistan Land Revenue Act, 1967 was ninety days; an order could only be reviewed on the discovery of fresh grounds, or evidence which could not be produced at the time when the order was passed, or on account of some mistake or error apparent on the face of record whereas none of the grounds were available to the Member, Board of Revenue for allowing the review petition--- Constitutional petition was allowed and the impugned order of Board of Revenue was set aside in circumstances.

Zafar Iqbal Chohan for Petitioners.

Rana Shamshad Khan, A.A.-G. and Jaafar Ali, Assistant, Board of Revenue for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1575 #

2010 C L C 1575

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

RIAZ HUSSAIN---Petitioner

Versus

BOARD OF REVENUE PUNJAB through Senior Member and 2 others---Respondents

Writ Petition No.7698 of 2009, heard on 23rd June, 2010.

Stamp Act (X of 1899)---

----Ss. 49(d)(s) & 50---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner purchased non judicial stamp papers worth Rs.200,000 on which sale-deed was written and executed but the same could not be presented to the Sub-Registrar for registration---District Officer (Revenue) filed/dismissed petitioner's application for refund of the non judicial stamp papers maintaining that application having been submitted after sixty days had become time-barred---Validity---Held, there was no ambiguity in the language of S.50(3) of the Stamp Act, 1899 which prescribed a period of six months for any stamp paper executed by any of the parties through an instrument---Petition for refund was submitted within prescribed period of six months and there was no need to file application under S.5, Limitation Act, 1908---Impugned order having been passed without any lawful authority, was set aside---Petitioner was held to be entitled to the refund of non judicial papers valuing Rs.2,00,000 in accordance with law.

Ch. Shah Muhammad for Petitioner.

Siraj-ul-Islam for Respondents.

Date of hearing: 23rd June, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1590 #

2010 C L C 1590

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mian MAHMOOD-UL-HASSAN---Petitioner

Versus

SPECIAL JUDGE, RENT TRIBUNAL, LODHRAN and 2 others---Respondents

Writ Petition No. 145 of 2010, decided on 19th February, 2010.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

---Ss. 15 & 22(1)---Constitution of Pakistan (1973), Art.199---Constitutional - petition---Maintainability---Ejectment of tenant---Landlord filed ejectment petition against tenant before Rent Controller---Tenant, instead of filing application for leave to contest under S.22(1) of the Punjab Rented Premises Ordinance, 2007, filed reply to the ejectment petition--Rent Tribunal allowed tenant to file application for leave to contest---Landlord moved appeal against the said order of the Rent Tribunal---Appellate Court dismissed the same on the ground of being not maintainable---Tenant asserted that constitutional petition was not maintainable against the interim order in such matters---Validity---Held, it was appropriate for the landlord to assail the order passed by Appellate Court but he had failed to do the same--- Tenant appeared before the Rent Tribunal where he was ordered to file written statement, which order was complied with---Rent Tribunal should treat reply, filed by tenant, as an application for leave to contest and should have decided same first before proceeding further in the case---Order passed by Rent Tribunal was interim in nature which could not be assailed in the constitutional petition---Constitutional petition was dismissed by High Court.

PLD 1995 Lah. 385; 2006 YLR 1516; NLR 1995 Civil Cases 134; 2009 CLC 1334; 1995 SCMR 1700; PLD 2009 Lah. 469; PLD 2006 Lah. 649; 1996 SCMR 1165; 1994 SCMR 65 and 2003 YLR 1722(C) ref.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 rel.

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

----Art. 199---Constitutional petition---Courts always favour to adjudicate the lis on merits rather than on technicalities.

----Ss. 15 & 22(1)---Ejectment petition---Rent Tribunal to treat reply, filed by tenant, as an application for leave to contest and should decide the same first, before proceeding further in the case.

Khalil-ur-Rehman Mayo for Petitioner.

Shehbaz Murtaza Ansari for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1594 #

2010 C L C 1594

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

NADEEM AZAM-Petitioner

Versus

ADDITIONAL DISTRICT, JUDGE, SHUJABAD, MULTAN and another ---Respondents

Writ Petition No.1304 of 2010, decided on 7th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage, maintenance, dower and recovery of dowry articles of Rs.4,43,597 in the alternative---Trial Court decreed the suit---Plaintiff filed appeal for enhancement of maintenance and return of dowry articles as per list appended with the plaint---Appellate Court remanded case to Trial Court after framing additional issues in respect of dowry articles---Validity---Trial Court rightly framed issues regarding dowry articles---No objection was raised from either side---1n view of sufficient evidence on record for determination of the controversy, remand of the case to Trial Court by the Appellate Court was uncalled for as the remand would result in prolonging the case unnecessarily---Family cases needed to be decided without delay---Order of the Appellate Court was set aside by' High Court with direction to decide the appeal on the basis of evidence already produced by the parties.

Ch. Muhammad Sharif Mayo for Petitioner.

Ch. Ghulam Din Aslam for Respondent No.2.

CLC 2010 LAHORE HIGH COURT LAHORE 1598 #

2010 C L C 1598

[Lahore]

Before Ch. Muhammad Tariq, J

ZAHID MEHMOOD LATIF---Petitioner

Versus

MUHAMMAD ASLAM LONE and another ---Respondents

Writ Petition No.2350 of 2010, decided on 9th June, 2010.

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

----S. 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Defendant omitted to put his signature on the written statement and the verifying clause---Trial Court accepted defendant's application for permission to sign the written statement---Plaintiff challenged the Trial Court's order before Appellate Court who set aside the order of the Trial Court---Validity---Defendant could not derive any benefit from non-signing of the written statement---Omission was pointed out by the plaintiff during evidence whereafter defendant forthwith applied for permission to sign the written statement---Non-signing of written statement was merely an irregularity---Procedural defect or technical error could be rectified at any stage---Non-signing of pleading being a technical irregularity could not become a basis for rejection of the plaint---Technicalities should not thwart the course of justice and matters should be decided on merits---Constitutional petition was allowed, impugned order of Additional District Judge was set aside while order of the Civil Judge was restored.

Malik Abdul Wahid for Petitioner.

Ijaz Feroze for Respondent No.1.

CLC 2010 LAHORE HIGH COURT LAHORE 1601 #

2010 C L C 1601

[Lahore]

Before Ch. Muhammad Tariq, J

SH. NIAZ AHMED and others---Petitioners

Versus

UMER HAYAT KHAN KHARAL and 2 others---Respondents

Writ Petition No.16466 of 2010, decided on 26th July, 2010.

Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 22(vi)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant--Non-filing of application for leave to contest---Effect---Landlord filed eviction petition before the Rent Controller---Tenant did not file application for leave to contest within 10-days of his appearance---Rent Controller ordered for eviction of the tenant---Appeal filed by tenant was also dismissed by Appellate Court---Tenant asserted that he had filed application for leave to contest within time but due to negligence of the diary branch his application was attached with the suit filed by him in respect of the same property---Validity---Contention of the tenant that application for leave to contest was filed with another suit for declaration in respect of the rented premises was misconceived---Rent Controller had provided a number of opportunities to the tenant but he had failed to file application for leave to contest within the prescribed period---Constitutional petition of tenant was dismissed in limine.

Syed Shabahat Hussain Tirmzi for Petitioners.

CLC 2010 LAHORE HIGH COURT LAHORE 1627 #

2010 C L C 1627

[Lahore]

Before Ch. Muhammad Tariq, J

Messrs AL-SIDDIQUE OIL AND RICE MILLS through Sole Proprietor---Petitioner

Versus

INSPECTOR GENERAL OF PRISONS, PUNJAB, LAHORE and another---Respondents

Writ Petition No.5865 of 2008, decided on 11th June, 2010.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Tender for supply of goods---Petitioner deposited Rs.3,48,544 as call deposit in pursuance of advertisement in the newspaper for supply of rice on behalf of authorities---At the opening of the tender, rate offered by the petitioner was found to be the lowest yet, instead of approving the tender in petitioner's favour, authorities informed him through letter that amount deposited by him was forfeited---Validity---In the absence of any time frame for the validity of offer in advertisement or the tender form, forfeiture of call deposit by authorities was a nullity in the eyes of law and was against principles of natural justice---Constitutional petition was allowed by High Court with direction to authorities to refund the amount of call deposit within one month.

Ch. Muhammad Amin Javaid for Petitioner.

Raja Abdul Qayyum, Law Officer, Prisons Department.

Rana Shamshad Khan, A.A.-G.

CLC 2010 LAHORE HIGH COURT LAHORE 1646 #

2010 C L C 1646

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ALTAF HUSSAIN alias MUSHTAQ AHMED---Petitioner

Versus

MUHAMMAD DIN and others--Respondents

Civil Revision No. 970-D of 1991, decided on 24th May, 2010.

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

----S. 161---West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64)---Assistant Collector acting under the West Pakistan Land Revenue Act, 1967 declared the sale to be in violation of the West Pakistan Regulation, 1959---Said order was set aside by the Additional Commissioner (Revenue) acting as Appellate Court under the West Pakistan Land Revenue Act, 1967---Validity---Both orders, held, were without jurisdiction.

Sher Zaman v. Muhammad Ishaque and others PLD 1985 SC 144; Nisar Ahmed Khan v. Mst. Ismat Jahan Begum 1968 SCMR 667; Haji Makhdoom Ali and others v. Noor Samad PLD 1985 Rev. 237; Muhammad Ashfaq v. Muhammad Shafique and others 2007 SCMR 1773; Bashir Ahmed v. Messrs Muhammad Salim, Muhammad Siddique and others 2008 SCMR 1272 and Mst. Aisha Bibi v. Nazeer Ahmed and others 1994 SCMR 1935 ref.

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

----S. 42---Court Fees Act (VII of 1870), S.28--Suit for declaration--Consequential relief of possession not claimed---Effect--Natural result of declaration, if succeeded, would be that consequential relief had to be given by the court even the same was not claimed---Court, in such circumstances, was bound to call upon the party to amend the plaint to the extent of possession and could direct it to pay the court fee accordingly.

Mst. Arshan Bibi through Mst. Fatima and others v. Mulla Bakhsh (deceased) through Mst. Ghulam Safoor and others 2003 SCMR 318 and Ahmed Din v. Muhammad Shafi PLD 1971 SC 762 rel.

---O. VI, R.17--Specific Relief Act (I of 1877), S.42-Suit for declaration---Amendment in---Suit for declaration could not be thrown out merely on the ground that possession had not been sought in the suit Where the party had successfully proved its case of declaration and as such if the amendment of suit for possession sought was not allowed, party would suffer due to fault of court.

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

---O. VI, R.17---Specific Relief Act (I of 1877), S.42-Suit for declaration---Application for amendment of suit could be filed at any stage of the case even before the Supreme Court.

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

----S. 42---Court Fees Act (VII of 1870), S.28---Declaratory suit on the basis of title could not be dismissed on the ground that plaintiff was not in possession of the disputed property---Proper course in such a situation would be to allow the plaintiff to amend the plaint and to ask for possession---High Court, in the present case, dismissed revision petition with direction to plaintiff to pay court fee of Rs.15000 within 30 days of the announcement of order, failing which the suit of the plaintiff would be deemed to be dismissed.

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

----Ss. 42 & 52---Suit for declaration---Preventive relief---Court under S.52 of Specific Relief Act, 1877 had no power to dismiss the suit where the plaintiff being able to seek further relief had omitted to do so--If court had come to the conclusion that declaratory decree without possession could not be passed, court was duty bound to allow plaintiff to amend the suit.

Mian Israr-ul-Haq for Petitioner.

Syed Kaleem Ahmad Khurshid for Respondents.

Date of hearing: 22nd April, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1655 #

2010 C L C 1655

[Lahore]

Before Ijaz-ul-Ahsan, J

ASHIQ HUSSAIN and another---Petitioners

Versus

JAN MUHAMMAD and 4 others-Respondents

Civil Revision No.2526 of 2002, decided on 17th May, 2010.

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

---Ss. 6 & 13---Suit for pre-emption---Ingredients of valid Talbs---Both Trial and Appellate Courts dismissed the suit---Plaintiffs contended that courts below had erred in law by holding that the evidence produced by plaintiffs lacked details of time, place and meeting in which Talb-e-Muwathibat was pronounced---Validity---Plaint did not mention specifically the time or place of performance of Talb-e-Muwathibat in accordance with the provisions of S.13 of the Punjab Pre-emption Act, 1991 and plaintiffs had failed to prove Talb-e-Ishhad---Plaint, in circumstances, suffered from fatal defect insofar as it did not expressly disclose time, date and place at which the Talb-e-Muwathibat was performed---Entire superstructure designed to be built on the assertion that Talb-e-Muwathibat was validly performed dashed to the ground---Plaintiffs could not point out any misreading or non-reading of evidence by subordinate courts which did not commit any illegality or material irregularity---Petition, being without merits, was dismissed.

Noor Khan v. Ghulam Qasim 2003 YLR 570 and Muhammad Ali v. Allah Bakhsh 2004 CLC 1949 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302 fol.

Taki Ahmad Khan for Petitioners.

Siddiq Ahmad Chaudhary for Respondents.

Date of hearing: 27th April, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1660 #

2010 C L C 1660

[Lahore]

Before Rauf Ahmad Sheikh, J

Mian ABDUL JABBAR---Appellant

Versus

LATIF SHAH---Respondent

F.A.O No. 27 of 2004, decided on 1st June, 2010.

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

---Ss. 17(2)(i) & 24---Ejectment of tenant on ground of default in payment of rent---Appeal against judgment of Rent Controller---Ejectment petition had been dismissed by the Rent Controller---Landlord claimed rent of the premises at the rate of Rs.5,000 per month, however, Rent Controller vide order fixed tentative rent at Rs.4000 per month and directed the tenant to deposit a sum of Rs.1,12,000 as arrears of rent before 10-12-2001 and also to deposit monthly rent by 5th of each month, but tenant had not deposited rent on stipulated date---Affidavit of the attorney of landlord whereby it was stated on oath that rent was not paid, would discharge the initial onus of the landlord; and it was for the tenant to prove that he had in fact paid the rent---Tenant alleged that Rs. one lac had been paid by him to landlord in advance for rent of 30 months, but he could not prove the same by producing any receipt which showed that tenant had tailored the same as an excuse for non-payment of rent---Tenant, in circumstances, was defaulter, pure and simple, but Rent Controller had failed to appreciate the evidence in its true perspective---Findings recorded by the Rent Controller being not sustainable, were reversed, in circumstances---Ejectment petition filed competently by the landlord through his attorney was accepted with costs and tenant was directed to deliver vacant possession of premises to landlord within two months.

Syed Qalb-i-Hassan for Appellant.

Ahmar Zahoor Mughal and Syed Mahmood Ahmad Yazdatii for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 1663 #

2010 C L C 1663

[Lahore]

Before Ijaz Ahmad, J

RESIDENTS' WELFARE SOCIETY, SECTOR G-13, ISLAMABAD through President---Petitioner

Versus

FEDERAL GOVERNMENT EMPLOYEES' HOUSING FOUNDATION through Director General and another---Respondents

Writ Petition No.2150 of 2010, decided on 30th June, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Conversion of public utility areas of Housing Society into commercial plots---Registered welfare Society of residents challenged the conversion of public utility areas and open spaces into commercial and residential plots ---Society contended that the petitioner should have had recourse to arbitrator before seeking remedy through constitutional jurisdiction of High Court---Validity---Residential and commercial plots were admittedly carved out for public utility areas including school, parks and open spaces which could only be used for specified purposes---Open spaces were the common property of the residents and a heritage for the posterity, therefore, conversion of open spaces amounted to obliterate history---Reducing the size of `Nullah' which worked as a drain during rainy season was not admissible under law---Earth-filling of the depressions that served as the natural outlets of rain water had always brought havoc by inundation of the localities during rainy reason---Conversion of land, in the present case, thus was illegal---Where an Authority had acted in a manner not warranted by law, remedies provided under the law need not be necessarily exhausted before seeking interference of High Court through constitutional jurisdiction--- People decide to choose a particular housing scheme for living in view of the provision of public utility areas, parks, schools, open spaces and topography of such housing scheme, petitioners, therefore, could not be deprived of such public utility areas which they had in their minds while they subscribed for the such housing scheme---Constitutional petition was accepted---Authorities were perpetually restrained from converting the public utility areas into residential or commercial places.

Shahid Mehmood Khokhar for Petitioner.

Niaz Ahmad Rathor for Respondent No. l

Malik Zafar Abbas, Director/Law Officer on behalf of respondent No.1.

Qaisar Abbas, Director (Tench) FGEHF.

CLC 2010 LAHORE HIGH COURT LAHORE 1674 #

2010 C L C 1674

[Lahore]

Before Tariq Javaid, J

MUHAMMAD HASHIM and 3 others---Petitioners

Versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 8 others---Respondents

Writ Petition No.1445 of 2007, heard on 10th February, 2010.

Punjab Waqf Properties Ordinance (IV of 1979)---

---Ss. 15 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had contended that land donated by his predecessors to Khanqah for religious and charitable purpose was being leased out for construction of petrol pump by Auqaf authorities which were not authorized to alienate the sane---Property in question was being used as playground of the school established on the donated/waqf property---Authorities argued that the property was being leased out by the approval of the Chief Minister---Validity---Waqf property could not be leased out for more than three years but the Auqaf authorities had leased the waqf land for thirty years at a lousy rent of Rs.4000 per month---Property in question was so carved out by the waqf authorities that the remaining portion of the property was rendered useless as a playground---Lease for more than three years was illegal as the same amounted to sale---Grant of lease seemed to be a colourable exercise of jurisdiction by authorities as well as the Chief Minister who sanctioned the lease despite objections of the Finance Department---Land donated for religious purposes could only be used for educational purposes and for no other purpose---Places reserved for public purpose could not be converted into commercial enterprise---Waqf' land could only be used for the purpose for which such land was donated, however, use for educational purpose was an exception---Lease for thirty years being void ab initio, was cancelled---Constitutional petition was allowed.

Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599; Malik Aslam Pervaiz v. Province of Punjab and others 1994 MLD 1986; Sahibzada Mansoor Ahmad v. Chief Administrator Auqaf 1993 MLD 2529and Manzoor Bhatti v. Executive Officer Cantonment Board PLD 2002 Lah. 412 rel.

Allama Maqsood Ahmed v. Government of Punjab 2005 SCMR 816 and Moulvi Iqbal Haider v. CDA PLD 2006 SC 364 fol.

Syed Muhammad Ali Gillani for Petitioners.

Javed Saeed Peerzada A.A.-G.

Muhammad Asif Karim for Respondent No.1.

Sh. Muhammad Faheem for Respondent No.9.

Mumtaz Ahmed Manager, Auqaf Circle No.3 Multan.

Date of hearing: 10th February, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1681 #

2010 C L C 1681

[Lahore]

Before Rauf Ahmad Sheikh, J

ABDUL HAMEED---Petitioner

Versus

Mst. RUBINA BIBI and 2 others ---Respondents

Writ Petition No. 3230 of 2009, heard on 7th July, 2010.

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

----S. 5 & Sched---Civil Procedure Code (V of 1908), O.XXIII, R.1(3)---Applicability of Order XXIII, R.1(3) C.P.C.---Family suit withdrawal of---Filing of same suit subsequently---Maintainability---Plaintiff withdrew her suit for dissolution of marriage, recovery of dowery and maintenance, due to compromise---After compromise defendant did not pay maintenance to the plaintiff and turned her out of the house after beating and abusing her---Plaintiff filed family suit subsequently--Validity---Plaintiff had developed hatred and was not ready to live with the defendant---Provisions of O. XXIII, R.1(3), C.P.C. were not applicable on proceedings under Family Courts Act, 1964---Subsequent suit was not barred by any provision of law and was maintainable.

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

----S. 5, Sched. & S.10(4)---Enforcement of Shariah Act (X of 1991), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of Khula, maintenance and recovery of dowry articles---Trial Court decreed dissolution of marriage on the basis of Khula upon return of the dower received by the plaintiff---Defendant contended that S.10(4) of the West Pakistan Family Courts Act, 1964 was against the injunctions of Islam and could not have been enacted in view of the Enforcement of Shariah Act, 1991 and that an earlier suit by the plaintiff was dismissed as a result of compromise so the present suit was not maintainable---Validity---Plaintiff had categorically stated that she hated defendant and could not live with him within limits prescribed by Allah, the Almighty---Proviso to S.10(4) of the West Pakistan Family Courts Act, 1964 did not render the subsequent provisions of the Act meaningless because said provisions related to the proceedings conducted after reconciliation stage---Decree on the basis of Khula was not against Injunctions of Islam as the Holy Quran had provided the basis and legality of Khula in the Verse No.229 of Sarah Al-Baqarah---To foist hateful union upon husband and wife could lead to social evils---Where wife had categorically stated that she wanted divorce, court might safely presume that the spouses could not live together in harmony---Constitutional petition, being devoid of merits, was dismissed. ?

Rana Muhammad Sarwar for Petitioner.

Fiza Ullah along with Mst. Rubina Bibi for Respondent No.1 in person.

Date of hearing: 7th July, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1685 #

2010 C L C 1685

[Lahore]

Before Ch. Muhammad Tariq, J

Dr. HAMID NAWAZ KHOKHAR---Petitioner

Versus

MEDICAL SUPERINTENDENT, DISTRICT HEADQUARTERS HOSPITAL, HAFIZABAD and 2 others ---Respondents

Writ Petition No. 16454 of 2010, decided on 26th July, 2010.

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

----Art. 199---Constitutional petition---Petitioner had challenged taking of forcible possession of the house, allotted to him as residence of specialist doctor---Petitioner asserted that he was posted as a consultant pathologist in the hospital in the year 2008 and since then, was performing his duties diligently and efficiently---Record revealed that allotment of residence in favour of petitioner was on temporary basis who had proceeded abroad on Ex-Pakistan leave---House was got vacated after notice which was further allotted to a needy person---Constitutional petition was dismissed in limine.

Pir Ghulam v. Province of Balochistan 1981 SCMR 876 rel.

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

----Art. 199---Constitutional petition---Temporary allotment of house, to a specialist doctor---Taking of possession of the house after service of notice---Prayer of the petitioner that the concerned administration should be directed to hand over vacant possession of the allotted house was not open to challenge in constitutional petition---Constitutional petition was dismissed in limine.

Pir Ghulam v. Province of Balochistan 1981 SCMR 876 rel.

Mian Basharat Ali Dola for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1687 #

2010 C L C 1687

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. ZAKIA BIBI---Petitioner

Versus

CIVIL JUDGE IST CLASS, MULTAN and 12 others---Respondents

Writ Petition No.3795 of 2010, decided on 11th May, 2010.

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

----Ss. 12(2), 151 & O.VII, R.11---Constitution of Pakistan (1973), Arts.199 & 203---Constitutional petition---Application for setting aside decree under S.12(2), C.P.C.---Trial Court passed order to the effect that application under S.12(2), C.P.C. would be decided before recording evidence of the parties---Petitioner, being respondent to the said application sought a direction from High Court to the Trial Court to record evidence before deciding the application under S.12(2), C.P.C. contending that High Court had powers to correct and revise the orders of subordinate courts under its supervision and control under Art.203 of the Constitution---Validity---Held, it was prerogative of the Trial Court to first decide the application for rejection of plaint or record evidence---High Court could not interfere in the proceedings of the Trial Court through constitutional petition---Directions could not be issued to the Trial Court under Art.203 of the Constitution to provide relief to litigating parties, instead, said Article empowered the High Court to supervise and control the subordinate court's functioning and performance for proper administration of justice---Under Art. 203 of the Constitution party could bring error or dereliction of duty on the part of a subordinate court to the notice of High Court which could take corrective action that might affect the interests of the party either way---High Court declined to interfere in the Trial Court's order to decide application for rejection of plaint before recording evidence---Petition was dismissed.

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

----Art. 203---Scope and applicability of Art.203 of the Constitution---Article 203 of the Constitution was not meant to provide relief to the parties to a case, instead, the same empowered the High Court to supervise, control and guide the functioning of the subordinate courts for proper administration of justice---Under Art.203 of the Constitution, party could bring the error, fault or dereliction of duty on the part of subordinate court to the notice of High Court which might take corrective action that might affect the party either way.

Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kai. 164 rel.

Iftikhar Ahmad v. The Muslim Commercial Bank Limited and another PLD 1984 Lah. 69 Distinguished.

Mrs. Anis Haider and others v. S.Amir Haider and others 2008 SCMR 236 ref.

Abdul Rasheed Sheikh for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1729 #

2010 C L C 1729

[Lahore]

Before Sh. Ahmad Farooq, J

MUDASSAR BUTT---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and another---Respondents

Writ Petition No.7278 of 2010, heard on 15th June, 2010.

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

----S. 5, Sched. & S. 10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of dower and maintenance---Trial Court decreed the suit for dissolution of marriage on the ground of Khula' without adjudicating on the controversy regarding dower---Defendant contended that the Trial Court had violated the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964---Validity---Plaintiff denied receiving dower in the shape of gold ornaments at the time ofNikah' as averred by the defendant---Restoration of Haq Mahr' not received by wife at the time of marriage was not a sine qua non for passing a decree of dissolution of marriage---Trial Court had already framed issue to determine the payment of dower after recording evidence produced by the parties---Decree passed by the Trial Court was in accordance with S.10(4) of the West Pakistan Family Courts Act, 1964 the object and Scope of S.10(4) was to avoid delay in family cases and provide expeditious remedy to women seekingKhula'---Impugned order having been passed with lawful authority, did not warrant any interference--Constitutional petition was dismissed in circumstances.

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

----S. 10(4)---Object and scope of S.10(4), West Pakistan Family Courts Act, 1964---Object of subsection 4 of section 10 of the West Pakistan Family Courts Act, 1964 was to avoid delay in proceedings of family cases and provide expeditious remedy to women seeking Khula'---Restoration ofHaq Mahr' not received by wife at the time of marriage was not a sine qua non for passing a decree of dissolution of marriage.

Abdul Rehman v. Mst. Hakim and another PLD 2007 Kar. 344 and Muhammad Ijaz Ahmad Khan v. Judge Family Court and another 2005 YLR 2799 distinguish.

Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272 ref.

Muhammad Ijaz Ahmad Khan v. Judge Family Court and another 2005 YLR 2799 and Aurangzeb v. Mst. Gulnaz and another PLD 2006 Kar. 563 rel.

Ch. Mumtaz Ahmad for Petitioner.

Amjad Ali Sherazi for Respondents.

Date of hearing: 15th June, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1786 #

2010 C L C 1786

[Lahore]

Before Ch. Muhammad Tariq, J

GHULAM FATIMA---Petitioner

Versus

DISTRICT JUDGE, TOBA TEK SINGH and 3 others ---Respondents

Writ Petition No.16535 of 2010, decided on 26th July, 2010.

(a) Lunacy Act (IV of 1912)---

----Ss. 62 & 63---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of guardian of a lunatic---Statement of a lunatic---Scope---Petitioner, in the Constitutional petition, had challenged the decision of Trial Court for dismissal of her application for the appointment of guardian of her lunatic brother on the ground that she was real sister and ultimate well-wisher of her brother thus entitled to be appointed as his guardian---Record revealed that statement made by brother (alleged lunatic) of the petitioner had made it clear that he was in his senses; though he was an old man with tender age and preferred to live with his nephews---Petitioner's brother was owner of agricultural lands, all her efforts were being made to grab immovable property of her brother---Claimed lunatic could not be compelled to live with his sister---Petitioner could not be appointed as a guardian, in circumstances---Constitutional petition was dismissed in limine.

(b) Lunacy Act (IV of 1912)---

----Ss. 63 & 72---Appointment of guardian of lunatic---Procedure---Legal heirs of a lunatic should not be appointed as his guardian unless a competent court, Collector after recording reasons in writing made such appointment.

Sarfraz Ahmed Qureshi for Petitioner.

CLC 2010 LAHORE HIGH COURT LAHORE 1790 #

2010 C L C 1790

[Lahore]

Before Ijaz-ul-Ahsan, J

SHARIFAN BANO and 5 others---Petitioners

Versus

MUHAMMAD BASHIR and 3 others---Respondents

Civil Revision No. 2237 of 2001, decided on 5th August, 2010.

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

---S. 42---Punjab Kachi Abadies Act (VIII of 1992), S.7---Suit for declaration---Plaintiff averred that he allowed the predecessor-in-interest of the defendants, his relative, to live in a room of his house in December, 1978, however, during plaintiff's absence from the city for six months, said predecessor took possession of the whole house and denied plaintiff's entry into the house on his return from the village---Defendants claimed possession and ownership since 1-1-1978 on the basis of mortgage and sale deeds in their favour executed by the Municipal Committee---Defendants contended that the suit land was situated in Kachi Abadi and Municipal Committee was empowered to allot the same to the persons found to be in possession of such land---Validity---Determination of possession of the disputed land on 1-1-1978 was a decisive factor in clinching the controversy as proprietary rights could only be granted to the persons in possession of the disputed land on said date---Plaintiff lent a room of his house to the predecessor of defendants who occupied the whole house---Defendant's claim to property on the basis of mortgage was not established by any credible evidence while the sale deeds registered during the pendency of the suit were result of fraudulent affidavits as the defendants were minors at the relevant time and could not claim ownership---Plaintiff, admittedly, purchased structure of disputed property in 1973 and remained in possession of the same till 1-1-1978---Defendants' possession of disputed property on 1-1-1978 was under and subject to the rights of the plaintiff so they could not claim proprietary rights as they did not possess property in their own right---Defendants being minors at the relevant time could not claim proprietary rights of any property situated in Kachi Abadi---Plaintiff's right to be entitled to the possession of . disputed property on relevant date having been established, defendants' possession of the same at any subsequent date would be presumed to be subject to the rights of the plaintiff; disputed property, therefore, would be presumed to be under the possession of the plaintiff; excluding any independent right, authority or entitlement of the defendants to claim proprietary rights---Sale deeds based on false affidavits were void, therefore, no limitation ran against the same---Subordinate courts did not commit any illegality or material irregularity warranting interference of the High Court---Revision was dismissed in circumstances.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1.982 SC 308; Abdul Aziz v. Syed Arif Ali and 6 others PLD 1978 Lah. 441; Abdul Ghafoor and 2 others v. Allah Bukhsh and 5 others 2001 CLC 370; Secretary, Board of Revenue, Balochistan Quetta and 3 others v. Abdul Qayyum 2009 CLC Quetta 1269; Ghulam Yasin Butt and 2 others v. Manzoor Hussain and 3 others 2000 YLR Lah. 915; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 and Ghulam Siddique v. Mst. Ajaib and others 2002 CLC 1244 ref.

(b) Limitation---

----Fraud---Limitation did not run against fraud.

Ch. Riyasat Ali for Petitioner.

Hassan Din Ansari for Respondents.

Date of hearing: 9th July, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1798 #

2010 C L C 1798

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AMIR---Petitioner

Versus

UMER HAYAT and 5 others---Respondents

Writ Petition No.462 of 2010, decided on 9th April, 2010.

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

----Art. 199---Constitutional jurisdiction---Scope---Concealment of facts---Filing of civil suit before Trial Court---Non-disclosure of---Effect---Petitioner did not disclose in the constitutional petition the filing of civil suit before Trial Court assailing the same orders which were assailed in the constitutional petition---Relief under Art.199 of the Constitution was discretionary and petitioner should have approached the High Court with clean hands---Material concealment of facts not disclosing the filing of civil suit before Trial Court by the petitioner was sufficient ground for refusing the relief sought for in the constitutional petition.

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

----Art. 199---Constitutional jurisdiction---Scope---Petitioner could not avail two remedies simultaneously--- Petitioner was bound to choose either to avail the remedy of filing civil suit or that of constitutional petition--- When the suit was pending on the subject of the lis, the same could not be assailed in constitutional jurisdiction.

Muhammad Anwar and another v. Government of Sindh through Secretary, Home Department and 2 others 1986 MLD 1440; Muhammad Anwar v. Municipal Corporation, Faisalabad and others 1993 CLC 1851; Haji Dossas Limited and others v: The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another 1986 CLC 1193 and Saleem Akhtar v. Province of Punjab 1994 CLC 2290 rel.

Mian Muhammad Siddique Kamyana for Petitioner.

Saghir Ahmad Bhatti for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1802 #

2010 C L C 1802

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MASOOD IQBAL GONDAL and another---Petitioners

Versus

RETURNING OFFICER CONSTITUENCY NA-68, SARGODHA and 4 others ---Respondents

Writ Petitions Nos. 254 of 2008 and 6697 of 2010, decided on 10th June, 2010.

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

----Ss. 7, 14 & 99(1)(cc)---Conduct of General Elections Order (7 of 2002), Art. 8-A---University Grants Commission Act (XXIII of 1974), Preamble---Constitution of Pakistan (1973), Arts. 62 & 199--Constitutional Petition---National Assembly, election of---Academic qualification of candidate---Returned candidate was alleged to be holding a fake Sanad Daras-ul-Almia from Darul Aloom which denied to have issued such Sanad and affiliated with Wafaqul Madaris Al-Arbia---Returning Officer accepted nomination papers by writing only word "accepted" thereon without giving any reason therefor---Validity---For becoming a member of an Assembly, a person should be a graduate possessing bachelor's degree in any discipline or any degree recognized as equivalent thereto by University Grants Commission--Sanad in question was not reliable for having been declared to be forged one by Nazim of the Darul Aloom---Darul Aloom was not affiliated with Wafaqul Madaris and was not recognized by University Grants Commission---Respondent had not given any reasonable explanation regarding his being a graduate---Respondent while filing nomination papers was not qualified to contest election on basis of such forged Sanad, thus, had defrauded Government functionaries and people of his constituency---Person of such conduct could not hold office of Member National Assembly for not fulfilling conditions of Art. 62 of the Constitution---Returning Officer had illegally accepted nomination papers of respondent without entering into area of scrutiny---High Court declared election of respondent as null and void while directing Election Commission to hold fresh election.

Naghma Mushtaq v. Election Tribunal, Punjab, Lahore and 2 others PLD 2008 Lah. 149; Makhdoom Ghulam Ali Shah v. Election Commission of Pakistan, Islamabad through Secretary and 4 others 2008 CLC 738; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; PLD 2007 SC 52 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.

Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad Civil Petition No.287 of 2008 rel.

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

----Art.199---Civil Procedure Code (V of 1908), S.11---Dismissal of earlier constitutional petition, wherein petitioner of subsequent constitutional petition was not a party---Rule enunciated in S.11, C.P.C., would not apply to subsequent petition, in circumstances.

Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC fol.

Khawaja Saeed-uz-Zafar for Petitioners.

Dr. A. Basit and Sh. Naveed Shehryar for Respondent No.2.

Date of hearing: 27th May, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1835 #

2010 C L C 1835

[Lahore]

Before Ijaz Ahmad and Asad Munir, JJ

Mst. GHUFRAN BEGUM and another---Appellants

Versus

C.D.A. ISLAMABAD and others---Respondents

I.C.A. No.61 of 2008, decided on 29th June, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioners applied for allotment of Agro Farming Plot in Orchard Industry Scheme in adjustment of their land acquired by the Capital Development Authority---Petitioners had filed constitutional petition in the High Court which directed the authorities to decide petitioners' application in accordance with law but did not specifically order the authorities to allot the plot to petitioner in the said scheme---Petitioners filed intra-court appeal wherein authorities were directed by High Court to issue the allotment letter to petitioners by 13-4-2010---Petitioners were offered a plot measuring 2.5 acres at the rate of Rs.40,00,000 per acre but petitioners contended that the Authorities could apply the rates prevalent on the date of High Court's judgment in constitutional petition announced on 21-5-2003---Petitioners contended that delay in allotment was caused by the inaction of the Authorities who stated that the allotment of agro plots remained banned in the intervening period---Authorities further contended that in view of depreciation in money value and sharp rise in the prices of the real estate, the price demanded from petitioners was not exorbitant---Validity---Held, at the time of judgment passed in constitutional petition, price per acre in the said scheme was Rs. 18,00,000 but delay could not be attributed to the petitioners; however, keeping in view the economic factors namely, depreciation in money value and increase in price of the real estate, price demanded from the petitioners was not exorbitant---Delay having not been caused by petitioners, High Court allowed them the concession of payment in instalments over a period of 18 months whereafter authorities were directed to execute a conveyance deed in their favour---Constitutional petition, was allowed.

Syed Ali Shah v. Government of Pakistan and 2 others 1994 CLC 369 ref.

Syed Asghar Hussain Sabzwari for Applicants.

Misbah Sharif for Respondent.

CLC 2010 LAHORE HIGH COURT LAHORE 1839 #

2010 C L C 1839

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD JAFFAR---Petitioner

Versus

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

Writ Petition No. 10009 of 2010, decided on 29th June, 2010.

Punjab Rented Premises Act (VII of 2009)---

---Ss. 15 & 21(4)(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Tenant claimed to have purchased the shop through registered sale deed---Trial Court passed ex parte eviction order in pursuance whereof landlord took over possession of the disputed shop---Tenant filed application for setting aside eviction order---Trial Court accepted the application and ordered the landlord to hand over vacant possession to tenant-Landlord filed appeal which was accepted by the Appellate Court which remanded the case to Trial Court with direction to decide tenant's application under S.21(4) of the Punjab Rented Premises Act, 2009 afresh after framing an issue on the crucial point and recording evidence of both the parties---Tenant filed constitutional petition against the order of the Appellate Court contending that the ex parte order was rightly set aside by the Trial Court as the due service of the notices etc. upon him could not be established---Tenant further contended that the Trial Court was competent to set aside ex parte order on such terms as it deemed fit under S.21(5) of the Punjab Rented Premises Act, 2009 if respondent had shown sufficient cause for his non-appearance---Validity---Trial Court had set aside the ex parte eviction order only after arriving at a conclusion that the notices were not served on the tenant as was shown by relevant record and the report of the process server regarding affixation of the notices---After Trial Court's conclusive findings as to sufficient cause for non-appearance of the tenant in eviction petition, no further evidence or framing of issue was required on that particular point---Findings of the Appellate Court, therefore, were illegal, erroneous and suffered from material irregularity---Under S.21(5) of the Punjab Rented Premises Act, 2009 Rent Tribunal/Trial Court was empowered to set aside ex parte order on such terms as it deemed fit if sufficient cause for his non-appearance had been shown by respondent---Tenant having succeeded in getting the ex parte order set aside by showing sufficient cause for his non-appearance, was entitled to the possession of the property---Order of the Trial Court fell within the expression "on such terms as it may deem fit" used in S.21(5) of the Punjab Rented Premises Act, 2009---Setting aside of ex parte eviction order without restoration of possession would have been meaningless as the same would have resulted in irreparable loss and multiplicity of proceedings---Leave to contest the eviction petition granted to the tenant by the Trial Court would be meaningless if possession over the disputed shop was not restored to him---Appellate Court illegally and erroneously set aside the order of Trial Court---Petition was accepted and Trial Court's order setting aside ex parte eviction order was restored in circumstances.?

Sanaullah Chaudhry for Petitioner.

Malik Arshad Abbas, for Respondent No.3.

CLC 2010 LAHORE HIGH COURT LAHORE 1876 #

2010 C L C 1876

[Lahore]

Before Rauf Ahmad Sheikh, J

INAYAT ALI through Legal Representatives---Petitioners

Versus

FAQIR HUSSAIN and another---Respondents

Civil Revision No. 1705-D of 2000, heard on 8th July, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O. VIII, R.1--Predecessor-in-interest of the plaintiff filed suit for declaration and possession on the ground that he was owner of the disputed land but in the register of record of rights for the year 1964-65, his land was shown to be owned by predecessor-in-interest of the defendants and the said mistake was repeated in the subsequent Jamabandis---Predecessor-in-interest of the defendants contested suit; however in the year 1984 he made a statement that he had purchased the disputed land which was enhanced during consolidation and if it was found that he was in possession of land more than the land purchased, he would relinquish the possession of the same but if it was found that he was in possession according to his entitlement on the basis of land purchased, the suit be dismissed---Both parties prayed to the Trial Court that Halqa Patwari be appointed as referee and his report of demarcation be called for and the parties would be bound by- the same---Trial Court decreed the suit of the plaintiff---Appellate Court on appeal, allowed the same and set aside judgment and decree of Trial Court and remanded the case for decision afresh---Defendants contended that original suit was for possession of land measuring 5 Kanals, 14 Marlas and the reference was made in respect of the disputed land but the Trial Court received amended plaint for possession of land measuring 51 Kanals on 19-9-1985 and without seeking amended written statement proceeded to pass decree for the said land---Validity---Record revealed that in the original plaint a decree for possession of land measuring 5 Kanals and 14 Marlas was sought but in the amended plaint filed on 19-9-1985 the prayer was made for possession of land measuring 51 Kanals and without requiring submission of amended written statement, Trial Court passed the judgment and decree in terms of report of the referee/Patwari---Such was a material irregularity and illegality committed by Trial Court---Referee had gone beyond his reference---Defendants should have been directed to file amended written statement and then the findings should have been recorded as to the correctness or otherwise of the report submitted by the referee before passing a decree in terms of the same---Revisional petition was dismissed by High Court.

Malik Muhammad Ashraf for Petitioner.

Mian Javed Iqbal Arain for Respondents.

Date of hearing: 8th July, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1889 #

2010 C L C 1889

[Lahore]

Before Mian Shahid Iqbal, J

ABDUL MAJEED---Petitioner

Versus

MUHAMMAD SIDDIQUE and others---Respondents

Civil Revision No. 2516 of 2006, heard on, 28th July, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff challenged the mutation whereby suit land was transferred on the basis of alleged sale by father of the plaintiff who died three days after the sanction of said mutation---Trial Court decreed the suit---Appellate Court set aside the judgment and decree of the Trial Court holding that the mutation was entered on the basis of gift, therefore, property was legally transferred and that the civil court had no jurisdiction to decide revenue matters---Plaintiff contended that the word 'gift' was incorporated from outside whereas defendant originally claimed that the property was purchased from plaintiff's father---Validity---Appellate Court erred in holding that the mutation was based on gift and that civil court had no jurisdiction in revenue matters---None of the parties pleaded in the Trial Court that the mutation was based on gift---Controversy involved mutation by way of sale---Appellate Court's view that civil court had no jurisdiction in revenue matters, could not be accepted---Findings of Appellate Court were based on wrong assumption of fact and incorrect application of law--Impugned judgment and decree were set aside and case was remanded to Appellate Court with direction to appraise the evidence on record properly---Revision was accepted.

1993 MLD 76; 2003 CLC 814; 2000 MLD 720 and 1986 SCMR 306 ref.

1992 CLC 125 rel.

Ch. Muhammad Ijaz Jamal for Petitioner.

Iqbal Ahmed Malik for Respondents.

Date of hearing: 28th July, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1905 #

2010 C L C 1905

[Lahore]

Before Ijaz ul Ahsan, J

AHMAD through Legal Representatives---Petitioners

Versus

ALLAH DITTA and another---Respondents

Civil Revision No.2068 of 2009, decided on 5th August, 2010.

Specific Relief Act (1 of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Plaintiff asserted that the predecessor-in-interest of defendants received earnest money but refused to execute the sale deed---Trial Court decreed the suit directing plaintiff to pay the remaining amount of consideration within one month otherwise the suit would be deemed to be dismissed---Plaintiff deposited the remaining amount in the court---Appellate Court upheld the judgment of the Trial Court---Validity---Payment of earnest money through cheques in favour of the predecessor-in-interest of defendants was proved by cogent evidence sufficiently supporting the execution of agreement to sell---Receipt of payments made in addition to payments through cheques, however, was not believed by the court---Held, a document disbelieved by the court could not cancel the effect of document believed by the court---Concurrent finding of subordinate courts did not suffer from any illegality or material irregularity warranting interference by the High Court---Revision was dismissed in circumstances.

2009 SCMR 589 ref.

Hafiz Khalil Ahmad for Petitioners.

Malik Ghulam Siddique Awan for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1918 #

2010 C L C 1918

[Lahore]

Before Nasir Saeed Sheikh, J

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Secretary Finance---Petitioner

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY, through Chairman and 2 others---Respondents

Writ Petition No. 2020 of 2009, decided on 19th November, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Interim relief---Recovery of tariff---Petitioner was provincial government and had grievance against National Electric Power Regulatory Authority with regard to change in electricity tariff---Petitioner/Government sought interim protection against recovery of tariff by the Authority, till institution of appropriate proceedings against final order---Respondent-Authority took an exception to such interim protection as the petitioner/government was avoiding recovery of tariff---Further contention was that order finally deciding tariff by the Authority was in the knowledge of the government and was also placed on record along with parawise comments and government did not assail the same, therefore, government was not entitled to any interim relief from High Court in the matter---Validity---High Court declined to grant interim relief as it was open to the government to seek such relief from competent forum, where final order would be assailed---Petition was disposed of accordingly.

Mian Gul Hassan Aurangzeb and Hamid Ahmad for Petitioner.

Ch. Mushtaq Khan for Respondent No.1.

Anwar Kamal for the Respondent No.2 along with Shakeel, Assistant Manager (Legal)PESCO.

Muhammad Akhtar Awan, Deputy Attorney-General, for Respondent No.3.

Syed Karamat Ali Rizvi, Project Director EMC, Finance Department, N. -W . F. P.

CLC 2010 LAHORE HIGH COURT LAHORE 1921 #

2010 C L C 1921

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM AHMAD---Petitioner

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and others ---Respondents

Writ Petition No.682 of 2008, decided on 8th June, 2010.

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

----S. 164---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Order of remand---Petitioner challenged the order passed by Member, Board of Revenue whereby case was remanded to Executive District Officer, Revenue---Validity---Constitutional jurisdiction of High Court could not be invoked to challenge the order of remand as the same was not a `final order'.

Akbar Ali and 18 others v. Mukhtar Ahmad and 14 others 2007 CLC 768 and Jafar Hussain v. Member Judicial-IV, Board of Revenue, Punjab, Lahore and 3 others 2004 MLD 2024 ref.

Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue Punjab Lahore and 5 others PLD 1973 Lah. 495; Ghulam Rasul and others v. Khuda Dad and others PLD 1986 Quetta 130 and Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and others PLD 1963 Lah. 461 rel.

Muhammad Ryas Khan v. Muhammad and others 1986 SCMR 251 fol.

Hakeem-ud-Din Qureshi for Petitioner.

Aurangzeb Khan, A.A.-G.

CLC 2010 LAHORE HIGH COURT LAHORE 1925 #

2010 C L C 1925

[Lahore]

Before Syed Mansoor Ali Shah, J

RIAZ JAVAID---Petitioner

Versus

SHERAZ AHMED and 4 others ---Respondents

Writ Petition No. 49 of 2010, decided on 13th August, 2010.

West Pakistan Family Courts Act (XXY'V of 1964)---

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Family Court, jurisdiction of---Non-Muslims---Scope---Plea raised by petitioner was that as the parties were non-Muslim Ahmadies, therefore, Family Court had no jurisdiction under S.5 of West Pakistan Family Courts Act, 1964---Validity---Family Courts established udder West Pakistan Family Courts Act, 1964, embraced personal laws of all religions and could entertain causes relating to matters mentioned in Para I of Schedule to West Pakistan Family Courts Act, 1964, which included matters pertaining to non Muslims (including Ahmadies) as well as matter which had arisen out of non-codified Personal Law---Family Court had rightly rejected the objection raised by petitioner regarding jurisdiction---High Court in exercise of Constitutional jurisdiction, maintained the order passed by Family Court---Petition was dismissed in circumstances.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Farah Chaudhry v. Shahid Mahmood Malik 2005 YLR 29; Muhammad Rasheed Ahmed v. Nusrat Jehan Begum 1986 MLD 1010; Amjad Khan Yousufzai and another v. Arshad Khan and others 2009 CLC 1057; Naeem Ahmed v. Mst. Nuzhat Almas and 2 others 1981 CLC 195; Mubbasher Ahmed v. Talat Khurshid and others 1996 CLC 1963; Ahmed v. Mehr Khan PLD 1982 FSC 48; Jagsi v. Shr. Marwan and another PLD 2005 Kar. 334; Mulchand v. Smt. India and others PLD 1985 Kar. 362; Ramdas v. Mst. Bernadat PLD 1998 Kar. 42; Safdar Bhatti v. Mst. Rozi Jan PLD 1977 Lah. 836; Mrs. Daphne Joseph v. Malik Eric Roshan Khan PLD 1971 Kar. 887; Kerala State Electricity Board v. Messrs Midland Rubber and Produce Co. Ltd. and another (1976) 1 SCC 468; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447; South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum and another AIR 1964 SC 207; C & J Clark Ltd. v. Inland Revenue Comrs. (1973) 2 All ER 513; Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus 1991 SCMR 681; Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Masood Sadiq v. Mst. Shazia PLD 2008 Lah. 398 and Mst. Noreen Iqbal v. Sohail Iqbal 2005 CLC 1472 rel.

Aurangzeb Chaudhry for Petitioner.

Rana Tariq Javaid, Mirza Mehmood Ahmed and Salman Akram Raja for Respondents.

Date of hearing: 4th March, 2010.

CLC 2010 LAHORE HIGH COURT LAHORE 1938 #

2010 C L C 1938

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. SAEED BIBI and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, JAMPUR, DISTRICT RAJANPUR and 2 others---Respondents

Writ Petition No.9239 of 2009, decided on 9th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance allowance for wife and minor son and dowry articles---Trial Court decreed the suit---Appellate Court accepted husband/defendant's appeal regarding dowry articles for plaintiff had failed to produce the receipts of the dowry articles---Validity---Plaintiff denied that she had taken dowry articles to her parents' home when she left her husband's house-Non-production of receipts of dowry articles was not significant as neither people in villages asked for receipts of shoppings nor shopkeepers were willing to stand witnesses for their customers---Constitutional petition was allowed---Finding of Appellate Court was set aside and that of Trial Court restored:

Malik Muhammad Jaffar Arain for Petitioners.

Muhammad Shah Jehan Malik for Respondent No.3.

CLC 2010 LAHORE HIGH COURT LAHORE 1941 #

2010 C L C 1941

[Lahore]

Before Shaukat Umar Pirzada, J

Hafiz MUHAMMAD SHAHID NAWAZ---Appellant

Versus

Hafiz MUHAMMAD SAEED---Respondent

S.A.O.No.9 of 2010, decided on 3rd June, 2010.

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

----Ss.13 & 13-A---Ejectment petition---Shop leased out to tenant by landlord's father as its previous owner---Denial of tenant to be tenant under landlord after transfer of shop in his favour by his father---Validity---Transfer of shop in favour of landlord was established by documentary evidence produced by him---Receipt showing deposit of rent in favour of landlord's father was neither produced by tenant nor would have any bearing on the present case---Filing of ejectment petition was a sufficient notice of change of ownership in favour of landlord, whereafter tenant was not entitled to raise such plea---Tenant could not wriggle out of his admission as to description of shop and his status as tenant---Once a tenant would always be a tenant---Mere denial of relationship of landlord and tenant would not change status of tenant---Ejectment petition was accepted in circumstances.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 fol.

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

----Ss. 13 & 13-A---Notice of change of ownership of demised property---Scope---Filing of ejectment petition would be a sufficient notice of such change.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 fol.

----Art.31---Admission---Party could not wriggle out of his own admission.

Syed Ikram-ul-Haq Gilani for Appellant.

Kanwar Muhammad Younas for Respondents.

CLC 2010 LAHORE HIGH COURT LAHORE 1945 #

2010 C L C 1945

[Lahore]

Before Ijaz-ul-Ahsan, J

Mst. TAHIRA SHAMIM and 6 others ---Appellants

Versus

SHAHID RANA---Respondent

R.S.A. No. 205 of 2010, decided on 6th August, 2010.

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

----Ss. 6 & 13---Suit for pre-emption---Plaintiff had alleged in the plaint that he met the defendant at suit property and expressed his desire to exercise his right of pre-emption---Validity---Right of pre-emption would be extinguished if three talbs were not performed under S.13 of Punjab Pre-emption Act, 1991---Any delay in Talb-i-Muwathibat also termed as 'jumping demand' despite knowledge of sale was ipso. facto fatal to the case---Possession of the property was immediately handed over to the defendant through registered sale-deed which constituted presumptive notice to public at large---Plaintiff was resident of the same village wherein the suit property was situated---Despite knowledge of the sale plaintiff did not perform Talb-e-Muwathibat which rendered subsequent talbs inconsequential---Plaintiff raised no objection to the exhibition of photo copy of the passport at trial or in appeal; such objection could not be raised at subsequent stages especially at revisional stage---Copies of the passport of the defendant had falsified plaintiff's claim that he met defendant to express his desire to purchase the property as such copies showed that defendant was not in Pakistan at the relevant time---Advertisement board for sale of the property remained displayed at suit property but plaintiff made no effort to buy the property---Defendant was not asked even a single question in cross-examination as to display of said board---Positive assertion of a witness would be deemed to have been admitted if such assertion was not contradicted/confronted in cross-examination---Subordinate courts appraised evidence correctly and did not commit any illegality or material irregularity---Appeal was, therefore, dismissed.

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

----S. 13---Performance of three talbs---Right of pre-emption would be extinguished if three talbs were not performed under S.13 of the Punjab Pre-emption Act, 1991.

----S. 13(1)(a)---Talb-e-Muwathibat---Significance---Delay---Any delay in Talb-e-Muwathibat also termed as 'jumping demand' despite knowledge of sale, rendered the subsequent talbs inconsequential---Any delay in Talb-e-Muwathibat despite knowledge of sale was ipso facto fatal to the case.

Mahmood ul Hassan Bhatti for Appellants.

CLC 2010 LAHORE HIGH COURT LAHORE 1963 #

2010 C L C 1963

[Lahore]

Before Mian Shahid Iqbal, J

MUHAMMAD ASLAM---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, and 4 others---Respondents

Writ Petition No.15257 of 2010, decided on 8th July, 2010.

(a) West Pakistan Land Revenue Rules, 1968---

----R.17---Lumberdar, appointment of---Scope---Such appointment is not a vested right and it cannot be claimed as such.

Muhammad Afzal v. Senior Member, Board of Revenue, Punjab, Lahore and 6 others 2003 MLD 157 and Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another 1971 SCMR 719 rel.

(b) West Pakistan Land Revenue Rules, 1968---

----R.17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Lumberdar, appointment of---Criteria---Recommendations of revenue authorities---Petitioner was aggrieved of the appointment of respondent as Lumberdar by revenue authorities---Validity---Patwari and revenue hierarchy who had recommended the name of person so making him entitled to be appointed for the post were the best neutral official functionaries to make the recommendations---Reasons weighed with accepting recommendations were that father of respondent was earlier a Lumberdar in the Patti and he had good interaction with government officials concerned in the revenue estate unless and until they did not have good understanding with each other, the interest of government could not be properly served---Other consideration weighed before revenue authorities was that respondent belonged to majority community as such in order to keep a better harmony and. good relation, so keeping in view the interest of government and link with populace, the respondent was appointed---Authorities had properly applied the provisions of R.17 of West Pakistan Land Revenue Rules, 1968, and coda[ formalities were met, therefore, in absence of any illegality, infirmity or jurisdictional error, High Court declined to interfere in the appointment of respondent as Lumberdar---Petition was dismissed in circumstances.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan, PLD 1999 SC 484 and Nazar Hussain and others v. The State and others 2005 CLC 1228 distinguished.

Abdul Ghafoor and another v. Akbar Ali 1992 CLC 617; Subedar (Rtd.) Muhammad Ali v. Muhammad Anwar and 3 others 1985 CLC 668; Ilam Din v. Dost Muhammad 1992 CLC 1630 and Abdul Karim v. Member, Board of Revenue, Punjab and 2 others 1993 MLD 1628 rel.

Mian Shahzad Siraj for Petitioner.

Northern Areas Chief Court

CLC 2010 NORTHERN AREAS CHIEF COURT 46 #

2010 C L C 46

[Northern Areas Chief Court]

Before Muzaffar Ali, J

YAWAR HUSSAIN----Petitioner

Versus

ANSAR ALI KHAN----Respondent

Civil Revision No.22 of 2009, decided on 10th July, 2009.

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

----O. VII, R.2, O.IX, R.13, O.XVII, R.3, O.XLI, R.1 & S.115---Suit for recovery of amount---Ex parte decree, setting aside of---Plaintiff adduced witnesses in proof of his claim, but the defendant having failed to produce witness, his defence was struck off and suit was decreed ex parte---Application for condonation of delay by defendant was dismissed by Appellate Court as barred by time under S.5, Limitation Act, 1908 and ex parte decree passed by the Trial Court was upheld---Neither decree of the Trial Court was challenged nor copy of the decree had been attached with the memo. of appeal by the defendant---Only copy of the impugned judgment passed by the Appellate Court had been attached with the revision petition without any copy of the decree---Neither copy of orders passed by the Trial Court had been attached with the revision petition nor copy of decree passed by the Trial Court were attached---Under provision of O.XLI, R.1, C. P. C., it was the decree which was being appealed against and attaching an attested copy of the decree with the memo. of appeal was indispensable---Though it was the decree which was being challenged in appeal and not the order or judgment, but such irregularity was not fatal to result the dismissal of the appeal as same would not affect the jurisdiction of the court---Memorandum of appeal must be accompanied by a copy of the decree and if not attached, it was not validly presented as the court could not dispense with---High Court proceeded to decide the revision petition on its merits to provide substantial justice to the parties leaving aside said irregularity without findings.

1996 PLC 702; 1995 CLC 1102; PLD 1990 Lah. 208; PLD 1991 Kar. 205; PLD 1984 (AJ&K) 61; 1998 SCMR 892 and 1993 Lah. 439 ref.

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

----O. VII, R.2, O.IX, R.13 & S.115---Limitation Act (IX of 1908), S.5 & Art.64---Suit for recovery of amount---Setting aside of ex parte decree---Limitation---Suit filed by plaintiff was decreed ex parte---Ex parte order though seemed to be very short and sketchy and the Trial Court had not bothered to discuss the evidence adduced by the plaintiff, which ought to have done so,, but despite said legal deficiency, the decree could not be called without jurisdiction and void ab initio as the day on which impugned ex parte decree was passed, was day of hearing as it was fixed for final arguments---Date fixed for argument would come within the definition of "date of hearing"---Legal resort available to the defendant to get the decree set aside, was under O.IX, R.13, C.P.C. which he availed, but after lapse of limitation as O.IX, R.13, C.P.C. was governed under Art.164 of the Limitation Act, 1908 which had prescribed 30 days of limitation for filing application under O.IX, R.13, C.P.C.---Defendant in application for condonation of delay of four months filed under S.5 of Limitation Act, 1908 had taken plea of being abroad, but both the courts below had not considered said plea to be a sufficient cause to condone the delay---If defendant was abroad, his counsel could file application as he was also authorized under law to do that---Defendant could have appointed a person as his attorney to conduct the suit on his behalf, if he was interested to contest the suit--Impugned decree was maintained.?

Amjad Hussain for Petitioner.

Javed Iqbal for Respondent.

Date of hearing: 10th July, 2009.

CLC 2010 NORTHERN AREAS CHIEF COURT 91 #

2010 C L C 91

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

PROVINCIAL GOVERNMENT through Secretary, Education N.As. and 3 others---Appellants

Versus

FIDA HUSSAIN ----Respondent

C.F.A. No.2 of 2002, decided on 27th May, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Reference to Referee Court---Respondent landowner whose land was acquired being not satisfied with the compensation amount fixed by the Collector, sought reference to Referee Court---Referee Court having enhanced amount of compensation, authorities filed appeal against said enhancement---Respondent landowner by producing oral as well as documentary evidence had fully proved that acquired land was located in commercial area in the city and that rates of acquired land fixed by the Collector were less than the rates prevailing at the relevant time---Collector had been proved to have fixed the rates of the acquired land arbitrarily and without resorting to the provisions of Land Acquisition Act, 1894---Authorities had failed to bring on record any oral or documentary evidence to rebut the facts on record as produced by the landowner in proof of his claim---Referee Court in circumstances, had not erred in law by enhancing the rates fixed by the Collector---Judgment of Referee Court could not be interfered with.

PLD 1986 SC 158; 1998 MLD 1592; 1984 CLC 459; AIR 1974 SC 2333; PLD 1991 Lah. 337; PLD 1996 Pesh. 22; PLD 1996 Lah. 171 and PLD 1997 Pesh. 19 ref.

A.A.-G. for Appellants.

Syed Jaffar Shah for Respondent.

CLC 2010 NORTHERN AREAS CHIEF COURT 129 #

2010 C L C 129

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

NIAMAT KHAN through L.Rs. and others----Appellants

Versus

SECRETARY, KASHMIR AFFAIRS AND NORTHERN AREA, ISLAMABAD and 4 others----Respondents

C.F.A. No.16 of 2008, decided on 27th May, 2009.

Land Acquisition Act (I of 1894)---

---Ss. 4, 11, 18, 23, 28, 34 & 54---Acquisition of land---Determination of compensation---Enhancement of amount of compensation by Referee Court---Execution of decree---Claim for interest on excess amount of compensation---Appeal---Landowners whose land was acquired, being dissatisfied with amount of compensation as determined by the Collector sought reference to Referee Court and their case was referred to the Referee Court and Referee Court enhanced the rate of compensation---Commission was appointed on appeal with the consent of the parties for determination of proper rates of compensation and decree passed by the Referee Court was modified in accordance with the report of the Commission---Execution proceedings were filed before Executing Court to execute the modified decree and during course of proceedings, landowners claimed interest under S.28 of the Land Acquisition Act, 1894, which had been refused by the Executing Court---Validity---Interest was awarded to the landowners as purported by S.34 of Land Acquisition Act, 1894 and no interest under S.28 of said Act, had been granted---Executing Court, in such a situation, had no option, but to execute the decree in the terms of the judgment of the court as the Executing Court could not go behind the decree---Executing Court, however was directed by Chief Court that it was well within its jurisdiction to calculate the interest properly; and if the Executing Court was of the view or was convinced, could discard the calculation made by authorities and recalculate or make the calculation through a Commission of any account knowing person.?

Muhammad Shafi for Appellants.

Asstt. A.-G. for Respondents.

CLC 2010 NORTHERN AREAS CHIEF COURT 151 #

2010 C L C 151

[Northern Areas Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

MIRZA HUSSAIN and others----Petitioners

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary Gilgit-Baltistan and 8 others----Respondents

Writ Petitions Nos.56, 57, 62 and 64 of 2009, decided on 13th October, 2009.

(a) Words and phrases---

----Insolvent', defined and explained.

(b) Words and phrases---

----Insolvency', defined and explained.

---- `Bankrupt', defined and explained.

(d) Words and phrases---

----`Bankruptcy notice', defined and explained.

(e) Words and phrases---

----`Adjudge', defined and explained.

(f) Words and phrases---

----`Adjudication', defined and explained.

(g) Words and phrases---

----`Defaulter' defined and explained.

(h) Words and phrases---

----`Government', defined and explained.

(i) Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009---

----Art. 2(a)---West Pakistan Land Revenue Act (XVII of 1967), S.4(7)---"Defaulter"---Defaulter was a person who owed. some dues to Government or its financial institutions and had been declared to be defaulter by the Provincial Government for the purpose to resort various recovery methods under relevant law against him---Defaulter could not be said insolvent, unless had been adjudged insolvent by a competent forum, either on application of the person himself or by his creditors after issuance of notice under law---When a person was adjudged to be insolvent, his assets would vest in the trustees which were being distributed among all his creditors---Person could be declared defaulter by Government through notification for the purpose of recovery of such dues from the defaulter as if such dues were arrears of land revenue---Unless the person was declared and notified to be defaulter by the Government, the person could not be said to be defaulter; and no recovery could be made by extending the special procedure provided for recovery of arrears of land revenue under the West Pakistan Land Revenue Act, 1967.

(j) Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009---

----Arts. 37(2)(b) & 71(2)---Writ petition---Election to Assembly---Disqualification of candidate---Under provisions of Art.37(2)(b) of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 a candidate would be disqualified to contest the election to the Assembly, if he had been adjudged by competent forum to be insolvent and he had not discharged himself from insolvency; and a period of ten years had not elapsed since his being adjudged as insolvent---Said Article had clearly envisaged disqualification of an adjudged insolvent from contesting the election for the Assembly and none of the petitioners in the present case had been adjudged to be insolvent by a competent forum and had been declared defaulter by any competent authority--Impugned rejection orders were based merely on lists sent by the financial institutions to the election authorities which were without jurisdiction and void ab initio and were set aside---Petitioners were allowed to contest elections, if they were otherwise qualified.

Muhammad Essa, Shafqat Ali, Javed Ahmed and Shabbir Haider for Petitioners.

Advocate-General for Respondents.

Date of hearing: 13th October, 2009.

Northern Areas Chief Court Gilgit

CLC 2010 NORTHERN AREAS CHIEF COURT GILGIT 807 #

2010 C L C 807

2010 C L C 73

[Peshawar]

Before Abdul Aziz Kundi, J

ABDUL MAJID KHAN and others----Petitioners

Versus

GUL REHMAN and others----Respondents

Civil Revision No.866 of 2006, decided on 12th October, 2009.

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

----S. 9---Suit for possession---Plaintiffs claimed themselves to be the owners of the suit property and that they were in possession of the same---Plaintiffs had alleged that defendants who were neither owners of the suit property nor ever remained in its possession, had entered into said property without any entitlement; and in spite of repeated demands were not prepared to leave the said land and hand it over to the plaintiffs---Defendants denied claim of the plaintiff stating that suit property was not exclusively owned by the plaintiffs and same was in fact "Shamilat-e-Deh"---Suit filed by the plaintiffs was dismissed and Appellate Court concurred with the Trial Court and maintained judgment and decree of the Trial Court---Validity---While claiming exclusive title over the suit-land plaintiffs had filed a simple suit for possession, which exclusive title of the plaintiffs was challenged by the defendants---Plaintiffs subsequently in their rejoinder instead changed their stand as against one which was taken in the plaint and stated that the defendants were their tenants---Said subsequent stand was without any force as in the plaint it had never been their case that defendants were tenants-at-will over the suit land---Factum of cancellation of earlier mutation of partition and suit property having again gone into common pool, had been admitted by the plaintiffs in their evidence---As to how and when the plaintiffs were dispossessed from the property in dispute and the defendants entered into its possession, was a mystery and alarming as well because it was against all norms of justice to deprive a co-sharer from possession of his lawful share through means other than lawful---Revision petition was dismissed.

Samal Gul v. Central Government and others PLD 1986 SC 35 and Mst. Resham Bibi and others v: Lal Din and others 1999 SCMR 2325 ref.

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

----O. VII, R.7-Application of O. VII, R. 7, C.P.C.-Suit was for possession alone in respect of limited area and entire joint property was not subject-matter of the suit---Resort to O. VII, R. 7, C.P.C. could not be made.

Samal Gul v. Central Government and others PLD 1986 SC 35 and Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 ref.

Abdul Samad Khan for Petitioners.

Malik Jarar Hussain for Respondents.

Date of hearing: 12th October, 2009.

CLC 2010 PESHAWAR HIGH COURT 106 #

2010 C L C 106

[Peshawar]

Before Abdul Aziz Kundi and Miftahuddin Khan, JJ

MUHAMMAD GHAFFAR----Petitioner

Versus

Mst. IRUM and others----Respondents

Writ Petition No.372 of 2007, decided on 21st October, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 24 & 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---Defendant/vendee filed written statement along with an application for rejection of plaint on the twin grounds of non-deposit of 1/3rd of the price entered in the mutation and that of limitation---Said application was dismissed by the Trial Court, but Appellate Court in revision dismissed suit filed by the plaintiff on both the grounds urged by defendant in his application for rejection of the plaint---Validity---Section 24 of the North-West Frontier Province Pre-emption Act, 1987 had made it obligatory for the court to direct the plaintiff to deposit in the court 1/3rd of the sale consideration; and if no sale price was mentioned in the sale-deed, then to order deposit 1/3rd of the probable value of the property---In the present case in view of the averments in the plaint, when defendant introduced sale consideration as against the one alleged by plaintiff, the proper, appropriate and legal course for the Trial Court was to have directed the plaintiff/pre-emptor to make up the deficiency in the said amount by a specified date---Question of limitation being mixed question of law and facts, judgment/order passed by the Appellate Court in revision, was declared to be suffering from legal infirmities, which could not be sustained and was set aside---Suit was restored and remitted to the Trial Court for its decision afresh in accordance with law.?

2004 SCMR 535; PLD 2004 Pesh. 1259; 2004 SCMR 1941; 2001 SCMR 543; 2004 CLC 2004; PLD 2003 Pesh. 189; Haji Gul Nabi v. Mst. Sahib Jamala 1994 SCMR 845; Muhammad Din v. Mahboob Khan and 3 others 1993 SCMR 2325 and Shahab-ud-Din and 5 others v. Mir Ali Khan 2001 SCMR 543 rel.

Muhammad Taif for Petitioner.

Afridi Khan and Azizur Rehman for Respondents.

Date of hearing: 21st October, 2009.

CLC 2010 PESHAWAR HIGH COURT 281 #

2010 C L C 281

[Peshawar]

Before Hamid Farooq Durrani, J

Haji UMAR ZAMAN----Petitioner

Versus

KABIR KHAN----Respondent

Civil Revision No.729 of 2005, decided on 6th October, 2009.

North-West Frontier Province Pre-emption Act (I of 1987)---

----Ss. 6, 13 & 14---Suit for pre-emption---Making of Talbs--- Trial Court decreed the suit, but Appellate Court reversed the judgment and decree passed by the Trial Court---Validity---Appellate Court non-suited the plaintiff holding that Talb-i-Ishhad was performed by him through his son who though was constituted as a general attorney, but was not conferred with the power to create Talbs in accordance with law---Plaintiff; in circumstances, remained at loss in carrying out his obligation as required by the statute---Talb-i-Muwathibat as well as Talb-i-Ishhad provided foundation for a suit for pre-emption, in case those were not found to have been performed at all, the entire edifice raised thereon was found to collapse---Findings of Appellate Court to that extent were not exposed to exception---Performance of Talb-i-Muwathibat and Talb-i-Ishhad was a personal obligation of the plaintiff, while he could have done so through an agent under provisions of S.14 of North-West Frontier Province Pre-emption Act, 1987, albeit after properly and specifically constituting the latter in that respect---In the present case no such authorization was available in favour of attorney appointed by the plaintiff---Talb-i-Muwathibat, was not made immediately in a meeting or sitting in which he had come to know of the sale---Appellate Court had rightly non-suited the plaintiff, in circumstances.

PLD 1993 Pesh. 131; 2004 MLD 650; 2004 CLC 359; PLJ 2003 Pesh. 324; 1995 CLC 1541-1572; 1996 CLC 161; PLD 1969 Kara 123; 2007 SCMR 1956 and 2005 CLC 325 ref.

Hidayatullah Khan for Petitioner.

Haji Muhammad Zahid Shah for Respondents Nos.1, 3 and 6.

Respondents Nos.2 and 4: Ex parte.

Date of hearing: 6th October, 2009.

CLC 2010 PESHAWAR HIGH COURT 295 #

2010 C L C 295

[Peshawar]

Before Abdul Aziz Kundi, J

GOVERNMENT OF N.-W.F.P.----Petitioner

Versus

Messrs HUSSAIN MIR N. COMPANY---Respondent

Civil Revision No.986 of 2007, decided on 30th October, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O. IX, Rr.6 & 13---Limitation Act (IX of 1908), S.5 & Art.164---Suit for recovery of amount---Limitation---Ex parte decree, setting aside of---On filing suit by the plaintiff, one of the defendants entered contest, while other defendant was proceeded against ex parte and Trial Court after framing of issues, directed parties to produce their respective evidence---Trial Court after recording examination-in-chief of one of the witnesses of the plaintiff, adjourned the case for cross-examination of said witness---On adjourned. date of hearing, defendants having absented, were proceeded against ex parte; and ex parte decree was passed in favour of the plaintiff and against the defendants---Application for setting aside ex parte decree filed by the defendants having been accepted by the Trial Court through impugned order, plaintiff being aggrieved of impugned order of setting aside of ex parte decree had questioned said order---While passing the ex parte judgment and decree, the Trial Court had totally shut its eyes and there was no probability that Court had. even looked to the contents of the plaint; otherwise decree for such a huge amount would not have been passed in the presence of a very bulky record; and that too without any proof, as evidence had yet to be recorded---Trial Court had in its impugned order also taken notice of the fact that in view of the law settled by the superior courts to give full opportunity to the parties and avoid technicalities for doing complete justice; and that the conduct of one of the defendant was that of a vigilant party---Impugned order passed by the Trial Court, which had undone its earlier illegality, was maintained, but cost imposed upon defendant in the sum of Rs.2,000, appeared to be too meagre---Cost was enhanced from Rupees two thousands to rupees thirty thousands---Trial Court was directed to conclude the trial as early as possible, but not later than one year from the date of passing of order.

2006 SCMR 631; Honda Atlas Cars (Pakistan) Ltd., v. Honda Sarhad (Pvt.) Ltd., and other 2005 SCMR 609; Shahid Pervez alias Shahid Hamid, v. Muhammad Ahmad Amin 2006 SCMR 63; Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 and Provincial Government through Collector Kohat and another v. Shabir Hussain PLD 2005 SC 337 ref.

Zahid Yousuf, A.A.-G. for Petitioner.

Mushtaq Ahmad for Respondent No.2.

Date of hearing: 14th October, 2009.

CLC 2010 PESHAWAR HIGH COURT 306 #

2010 C L C 306

[Peshawar]

Before Attaullah Khan, J

Mst. AKHTARI BEGUM and 5 others----Petitioners

Versus

INAYATULLAH and 2 others----Respondents

Civil Revision No.212 of 2009, decided on 14th December, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.XVII, R.3---Suit for recovery of amount---Striking off right of defence---Evidence of the plaintiff was recorded and was concluded by the Trial Court and case was fixed for evidence of the defendants---On adjourned date of hearing evidence of the defendants being absent, one chance was given to defendants on payment of cost and case was adjourned---On adjourned date of hearing evidence of defendants being not available, notice under O.XVII, R.3, C.P.C. was given and case was fixed for evidence---Evidence of the defendants being not available on the said fixed date, their right of defence was struck off and suit was decreed---On date when defence of defendants was struck off neither defendant was present nor his evidence was available and the Trial Court proceeded against them under O.XVII, R.3, C.P.C. and right of defence of the defendants was struck off---Validity---Court could not pass such an order in the absence of the defendants as the court could pass such order in the presence of the party and in case of non-availability of the evidence---Only two chances had been given and thereafter provisions of O.XVII, R.3, C.P.C. were pressed into service---Impugned judgment had revealed that Trial Court had not discussed and appreciated the evidence of the plaintiff---Absence of defendants' evidence would not mean that whatever was produced by the plaintiff in the shape of evidence was to be believed--Court was bound to assess and examine the evidence and thereafter form an opinion---No such efforts having been made by the courts below, impugned judgments and decrees of both the courts were not "speaking one"---By not giving sufficient opportunity to the defendants for producing evidence, the Trial Court had committed error and denied defence and condemned the defendants unheard---Impugned judgments and decrees of both the courts below were set aside and case was remanded to the Trial Court with the directions to record evidence of the defendants.

Noor Gul Khan Marwat for Petitioners.

Abdul Qayum Qureshi for Respondents.

Date of hearing: 14th December, 2009.

CLC 2010 PESHAWAR HIGH COURT 318 #

2010 C L C 318

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

GUL REHMAN and others----Petitioner

Versus

MUHAMMAD and others----Respondents

Civil Revision No.586 of 2003, decided on 4th December, 2009.

Specific Relief Act (I of 1877)---

----S.42---North-West Frontier Province Tenancy Act (XXV of 1950), Ss.3/4---Suit for declaration---Change of status of occupancy tenant to that of tenant-at-will---Case of the plaintiffs was that they were the occupancy tenants of the suit property since their forefathers, but unlawfully and without any justification their such status was changed to that of tenant-at-will by the Revenue Officials while preparing the record of rights of Settlement of 1971-72; whereas in three Khasra numbers, defendants were recorded as tenants-at-will without any justification by replacing the entries in the names of the plaintiffs---Record of rights available on the file since 1903 up-till 1965, was in support of the plaintiffs, whereas at the time of Settlement, fresh record of rights was prepared in the year 1971-72, which reflected that status of the plaintiffs as occupancy tenants was changed to that of tenants-at-will---In said three Khasra numbers, defendants were recorded, without any justification or without any proof on the record---Suit, of the plaintiffs was decreed in the shape of different observations against the defendants---Appellate Court, however dismissed the suit of the plaintiffs---Validity---As far as, the entries in the name of defendants regarding said three Khasra numbers were concerned, same got no support from the revenue record and evidence produced by the defendants---North-West Frontier Province Tenancy Act, 1950 which was promulgated on 3rd July, 1950, its section 3 had provided that after the commencement of the said Act, no person, whether he was a tenant or not could acquire, had or continue to have a right of occupancy in any land under any enactment, contract, decree or order of any court---Such had clearly reflected that after the promulgation of said Act, no one could claim himself to be the occupancy tenant of the land---However after the commencement of North-West Frontier Province Tenancy Act, 1950, occupancy tenants were given a right under S.4 of the said Act to become owner of the property within the parameters given in the said section 4---Provisions of said S.4 of the Act, was declared against the Injunctions of Islam by the Shariat Appellate Bench of Supreme Court wherein a target date 23rd, March of 1990 was given to amend S.4 of the Act---Persons whose cases were dealt with under the provisions of S.4 of North-West Frontier Province Tenancy Act, 1950 prior to the said date 23-3-1990 were protected, but after said date no one would be able to claim ownership under said S.4 of the Act---Plaintiffs who had failed to avail said concession within that period could not claim such concession---By considering the old and long possession of the plaintiffs over the suit land, their status over said property would be at the most that of tenants-at-will---High Court declared that names of the plaintiffs be entered as tenants-at-will in the column of Cultivation of the Register Haqdaran Zarnin---However they could not claim ownership of the land under their occupation under the provisions of S.4 of the North-West Frontier Province Tenancy Act, 1950 which had ceased to have its effect.?

Sultan Khan v. Government of N.-W.F.P. NLR 1990 SD 90 ref.

Tasleem Hussain for Petitioner.

Muhammad Rafiq Khan for Respondents.

Zahid Yousaf Qureshi, A.A.-G.

Date of hearing: 12th October, 2009.

CLC 2010 PESHAWAR HIGH COURT 333 #

2010 C L C 333

[Peshawar]

Before Syed Yahya Zahid Gilani and Muhammad Alam Khan, JJ

TEHSIL MUNICIPAL ADMINISTRATION D.I. KHAN through T.M.O. and another----Petitioners

Versus

DISTRICT JUDGE, D.I. KHAN and 4 others----Respondents

Writ Petition No.361 of 2005, decided on 11th June, 2009.

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

----O. XLI, R.27---North-West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977), Ss.3, 13 & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice for demolishing shops---Production of additional evidence---Petitioner/Authorities issued notice to respondents for demolishing shops allegedly constructed by the respondents by encroaching upon the land of the authorities---Respondents challenged said notice before District Judge/Tribunal and succeeded to get decree prayed for declaring said notice as null and void and the authorities had filed constitutional petition---Counsel for the authorities/petitioners sought permission for additional evidence on the plea that some documents could not be produced during evidence before the Tribunal as those documents were missing---Validity---Authorities being municipal organization, its said plea that its favourable record were missing and after lapse of many years same had been traced out for production as additional evidence, was not convincing---Counsel for the respondents had rightly resisted the prayer on the ground that such a document could be manipulated to fill up lacuna in the case of the authorities and it was not in the interest of justice to provide a party extraordinary latitude to improve his case by filling up lacuna---Request of the authorities for production of additional evidence, was turned down, in circumstances.

(b) North-West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977)---

----Ss. 3, 12, 13 & 14---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Exercise of---Findings of the Tribunal were based on the bulk of evidence on record and a very casual reference had been given to the report of Commission in the impugned judgment, which also impliedly would mean that objections to said report of the Commission were not upheld---High Court would not disturb findings of fact arrived at by the Trial Court/Tribunal on the basis of evidence available on record to substitute its own finding---Marked difference was in constitutional and appellate jurisdiction---Findings of the Tribunal were based on the bulk of evidence on record, which needed no interference as jurisdiction vested had been exercised in accordance with law.

Barkat Ali v. Ahmad Din and another 2006 CLC 527; Syed Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Lahore and others 2006 SCMR 959 and Inshallah Khan and 10 others v. Sirbuland Khan and three others 2004 CLC 1689 ref.

Saleemullah Khan Ranazai for Petitioners.

Muhammad Waheed Anjum for Respondent.

Date of hearing: 11th June, 2009.

CLC 2010 PESHAWAR HIGH COURT 457 #

2010 C L C 457

[Peshawar]

Before Liaqat Ali Shah, J

FAZAL JAMAL----Petitioner

Versus

Haji MUHAMMAD SARWAR and others----Respondents

Civil Revision No.187 of 2008, decided on 11th January, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Plaintiffs who claimed to be landlord/owners of the suit house situated on the land which was owned by them through their predecessors and private partition, filed suit for possession and recovery of outstanding rent against defendant who allegedly was their tenant---Defendant denied relationship of landlord and tenant between the parties and claimed to be owner of suit property by virtue of long possession thereon---Both the Trial Court and Appellate Court below had concurrently decreed the suit by the plaintiffs---Validity---Counsel for defendant could not point out any evidence whereby the denial of relationship of landlord and tenant by the defendant could be justified, which otherwise seemed to be frivolous---That also would take care of his objection with regard to the maintainability of the suit for recovery of possession without seeking declaration of title---As the plaintiffs were already owners of the property by virtue of inheritance and partition, mere denial of relationship of landlord and tenant by the defendant, could not convert the suit into one of title--Such denial was not based on any convincing evidence---When the title of the plaintiffs was not defective, they could competently bring the suit in the present form---Two courts below had rightly passed the impugned judgments and decrees---Revision petition filed by the defendant being devoid of any force, was dismissed.

Shakeel Azam Awan for Petitioner.

Muhammad Taif Khan for Respondents.

Date of hearing: 21st December 2009.

CLC 2010 PESHAWAR HIGH COURT 475 #

2010 C L C 475

[Peshawar]

Before Dost Muhammad Khan and Abdul Aziz Kundi, JJ

OSMAN KHAN through Attorney----Petitioner

Versus

AISHA NAZ and 2 others----Respondents

Writ Petition No.3284 of 2009 decided on 14th January, 2010.

(a) Administration of justice---

----Mentioning wrong provision of law---When decision on merits was the most cherished goal of law and courts administering justice were not slaves of technicalities, then mere mention of a wrong provision of law, should not be a hurdle in doing justice between the parties; and particularly when one was otherwise found entitled to it.

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

----Art. 199---Constitutional jurisdiction---Scope---Jurisdiction under Art.199 of the Constitution, should not be exercised in matters arising out of interlocutory orders; and fragmentary decisions should be avoided, which otherwise would delay the disposal of the main case.

Ahmad Owais Qadri for Petitioner.

CLC 2010 PESHAWAR HIGH COURT 610 #

2010 C L C 610

[Peshawar]

Before Abdul Aziz Kundi, J

REHMAN GHANI and others----Petitioners

Versus

SHAHZAD KHAN and others----Respondents

Civil Revision No.853 of 2009, decided on 8th September, 2009.

Muslim Family Laws Ordinance (VII of 1961)---

----S. 4---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Suit for declaration, injunction and possession---Inheritance---Plaintiffs had sought declaration, injunction and possession of land transferred through inheritance mutation to defendants who were the children of predeceased son of original owner of the suit-land---Trial Court vide its judgment and decree non-suited the plaintiffs under S.4 of Muslim Family Laws Ordinance, 1961, holding that children of the deceased son of original owner were entitled to the share equivalent to the one which their father would have received, if alive, at the time of opening of succession---Appeal filed against judgment and decree of the Trial Court, was also dismissed by the Appellate Court---Validity---Counsel for the plaintiffs could not point out and illegality in the impugned judgments and decrees of the two courts below, which could not be interfered with, in circumstances.

(b) Administration of justice---

----Frivolous litigation---Luxury of frivolous litigation by vested interests could hardly be afforded by courts administering justice---Trial Courts were under a legal obligation to apply their mind to the suit---Suits of such nature should be buried at their very inception and not allowed to be put to lengthy trials which ultimately would result in unnecessary burden on the diary of the courts---Such cases were the main cause of huge pendency---When only one legal issue was involved which could have been resolved at the very initial stage of the suit, if the Judge ceased of the suit had attended to the plaint that would save the precious time of the court, the parties and their hard earned money---Goals of National Judicial Policy could also be easily achieved, if the Trial Court would attend to the said observations.

Lal Jan Khattak for Petitioners.

CLC 2010 PESHAWAR HIGH COURT 640 #

2010 C L C 640

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

GHULAM QADIR and others----Petitioners

Versus

MIR FAROSHA and others----Respondents

Civil Revision No.116 of 2010, decided on 17th February, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Islamic law---Inheritance---Concurrent findings of the two courts below passed in a declaratory suit filed by the plaintiffs wherein they had sought indulgence of civil court by declaring them to be the legal heirs of their predecessor---Plaintiffs had also challenged inheritance mutation wrongly entered and attested in favour of defendants by excluding them---Pedigree-table brought on record could not be disputed---In absence of evidence, it could sufficiently be presumed that there were no other legal heirs of the deceased, except shown in the pedigree-table---Had there been any of such legal heirs, they would themselves had joined the proceedings---No evidence on record was referred to by the counsel for the defendants which could reflect that the same was misread or misinterpreted by the courts below; or there was any jurisdictional defect in the proceedings before the courts below---Revision was dismissed.

Manzoor Khan Khalil for Petitioners.

CLC 2010 PESHAWAR HIGH COURT 658 #

2010 C L C 658

[Peshawar]

Before Abdul Aziz Kundi, J

SAHIB GUL and others----Petitioners

Versus

MARWARANG and others----Respondents

Civil Revision No.521 of 2007, decided on 5th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.I, R.8 & S.99---Suit for declaration, injunction and possession---Inhabitants of `Mauza' concerned being large in number, could not be sued individually---Plaintiffs had not only filed an application under O.I, R.8, C.P.C. for permission to sue the defendants through their representatives; but had also appended a list of said persons who were intended to be sued through their representatives---Decree prayed for was also against all the persons and not against those six who were defendants in the suit---Trial Court, however, without attending to the provisions of O.I, R.8, C.P.C., proceeded with the suit and decreed the same in favour of the plaintiffs---Appellate Court also did not attend to the provisions of O.I, R.8, C.P.C.---Compliance with the provisions of O.I, R.8, C.P.C. was mandatory and non-compliance was an irregularity, which could not be cured under S.99, C.P.C.---Impugned judgments and decrees of the two courts below were set aside and case was remanded to the Trial Court to proceed with the same in accordance with law strictly following the provisos of O.I, R.8, C.P.C.

Abdul Sattar Khan for Petitioners.

Syed Wilayat Ali Shah Bukhari and Shah Baroz Khan Buneri for Respondents.

Date of hearing: 18th January, 2010.

CLC 2010 PESHAWAR HIGH COURT 870 #

2010 C L C 870

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

AYUB KHAN and another----Petitioners

Versus

Mst. MAKNOON----Respondent

Civil Revision No.177 of 2010, decided on 5th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.122---Gift deed---Challenge to---Suit for declaration and injunction---Parties to the suit were brothers and sisters inter se---Property in dispute, belonging to their predecessor, was shown to have been gifted away by their predecessor in favour of defendants/sons of the predecessor, excluding the plaintiffs/real daughters of the deceased---Plaintiffs claimed that had there been no gift mutation in favour of the defendants, the parties to the lis would have inherited the property in accordance with their respective shares---After the death of their predecessor, the plaintiffs/real sisters of the defendants were compelled to file the suit on refusal of the defendants to give their share of produce and they got the knowledge of the mutation of gift in question and filed the suit on the refusal of the defendants to admit their claim--Validity---Whenever an illiterate, old age person, pardanashin lady or female issue of Muslim was deprived of her property through sale, exchange, gift, inheritance, etc. then in such-like situation the beneficiary of the transaction, whether the same was effected through mutation, registered deed or the same was oral, would legally be required to prove its genuineness---Besides, he would also be required to prove with confidence-inspiring evidence, that the same was the result of free and independent advice of the person parting with the property etc.---In case of gift besides its proof, the beneficiary would also be required to prove the factum of gift along with all of its ingredients i.e. offer, acceptance and delivery of possession of the property under gift through independent and confidence-inspiring evidence---Mere attestation of suit mutation in favour of the defendants would not support their version in absence of confidence-inspiring evidence---Mutations itself would not confer or extinguish any right or title---Defendants had failed to prove the gift being a valid and genuine alienation in their favour---Defendants even had failed to refer to a piece of evidence which had been misread or not read in its true perspective by the courts below---In absence of jurisdictional defect in the exercise of jurisdiction by the courts below, said concurrent findings of facts would not require interference by High Court in exercise of its revisional jurisdiction.?

Umer Zafran for Petitioners.

CLC 2010 PESHAWAR HIGH COURT 887 #

2010 C L C 887

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. MAH RUKH JAN and others----Petitioners

Versus

Mst. NUSRAT BIBI and others----Respondents

Civil Revision No.811 of 2006, decided on 16th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession to the extent of 2/3 share of suit property on the basis of respective Kabinnama/Nikahnamas of plaintiffs---Trial Court passed a decree to the extent of 1/3 share in favour of one plaintiff, whereas the claim of other plaintiff was refused by the Trial Court---Defendants having not filed any appeal against the judgment and decree passed by the Trial Court, same had attained finality against them---On filing appeal by one plaintiff, against judgment and decree passed by the Trial Court, Appellate Court accepted the appeal and passed decree to the extent of 1/3 share of said plaintiff---Effect---Entire suit of the plaintiff to the extent of both the plaintiffs stood decreed against the defendants, in circumstances---Defendants who claimed ownership of suit property to the extent of 1/2 share, had failed to produce or refer any document reflecting their ownership of entire property or any part thereof--Document referred to by the counsel for the defendants which was not the part and parcel of the original suit and being a private document, could not be relied upon at revisional stage---Defendants had failed to rebut the claim of the plaintiffs and had also failed to prove their version---Judgments and decrees passed by the two courts below, were maintained in circumstances.

Haji Muhammad Zahir Shah for Petitioners.

Mazullah Khan Barkandi for Respondents.

Date of hearing: 16th March, 2010.

CLC 2010 PESHAWAR HIGH COURT 897 #

2010 C L C 897

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Messrs FLYING KRAFT PAPER MILLS (PVT.) LIMITED, CHARSADDAH----Petitioner

Versus

DISTRICT OFFICER, REVENUE AND ESTATE, CHARSADDAH and 2 others----Respondents

C.M. No.1 of 2010 (in C.C. No.1 of 2010), decided on 29th March, 2010.

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

----S. 42---Sale of property through auction---Issuance of sale certificate and delivery of physical possession of auctioned property to auction-purchaser-Applicants had sought for issuance of a direction to the Authority to effect the change of ownership in record---Applicant purchased property in question through auction and after completion of auction process sale certificate was issued to the applicants and physical possession was also delivered to the applicant/auction purchaser---Applicant claimed that it was legal duty of the authorities to have given effect to the said sale certificate which amounted to sale-deed and incorporating the same in the Revenue Record---Claim of the authorities was that no doubt under the law authorities were bound to honour the sale certificate, but applicant/auction-purchaser, was required to pay the government dues/taxes etc., in the absence of which change of name/transfer was not possible---Validity---Government dues/taxes were levied by the Provincial Government through enactments/notifications etc.---While enacting such laws, the Government had the prerogative to exempt Federal; Provincial Government Departments or sometimes other such bodies from levy of such taxes---Applicant in the absence of any such exemption, had to be burdened with the government dues/taxes---When the sale certificate issued by the court had to be registered/incorporated by the authorities, then the applicant in absence of any provision of exemption in that regard, would also be liable to pay the government taxes---Applicant would be liable to pay the government taxes/transfer fee etc., but the rate of such transfer should be the rate prevailing during the days of issuance of sale certificate.

1995 CLC 1922 and 2002 CLD 145 ref.

2010 C L C 1055

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ZAHEER KHAN----Petitioner

Versus

ZAREEF KHAN----Respondent

Civil Revision No.1208 of 2006, decided on 2nd April, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 31---Suit for pre-emption---Making of Talbs---Limitation for suit to enforce the right of pre-emption---Pre-emption suit filed by the plaintiff was decreed in his favour by the Trial Court, but on filing appeal by the defendant, Appellate Court set aside judgment and decree passed by the Trial Court on the point of non-performance of "Talbs" in accordance with law and also on the question of limitation---Validity---Sale effected through mutation dated 26-6-2003 was pre-empted by the plaintiff through his attorney by alleging the performance of Talb-i-Muwathibat' on 8-9-2003---No doubt the power of attorney executed by the plaintiff in favour of his son, had reflected that all such powers of making ofTalbs' and filing of pre-emption suit were delegated to the attorney through the deed of attorney, but the fact which could not be ignored was that, the power of attorney was executed on 10-5-2003, whereas the impugned mutation was entered on 15-5-2003 and then was attested on 26-6-2003---If the attorney of the plaintiff had not admitted the fact of knowledge of sale prior to attestation of mutation; and if seen in that purview, the story of performance of Talbs' as floated in the plaint, could safely be ignored being concocted and tailor made---Suit filed by the plaintiff on 8-9-2003 against the sale mutation dated 26-6-2003, however, was well within the prescribed period of limitation---Suit on the point of non-performance ofTalbs'' in accordance with law, was rightly dismissed by the Appellate Court---Findings recorded by the Appellate Court were based on proper appraisal of the evidence on record and the law on the subject and could not be interfered with in revision.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 31---Suit for pre-emption---Making of Talbs---Limitation---Pre-emptor under the law would be required to perform Talb-i-Muwathibat', the jumping demand, the moment he would come to know or gets the knowledge of sale in favour of the vendee, irrespective of the fact of attestation of mutation in favour of the vendee; and then accordingly should performTalb-i-Ishhad', however, the third and final Talb' i.e.Talb-i-Khusmat' had to be fulfilled in the light of S.3 of the North-West Frontier Province Pre-emption Act, 1987 and period of limitation provided for i.e. 120 days would start from the date of attestation of mutation or date of registration of sale-deed; and similarly from the date of possession or knowledge as envisaged in S.31 of N.-W.F.P. Pre-emption Act, 1987---Date of attestation of mutation in that context would only be relevant for filing of pre-emption suit and not for making of Talb-i-Muwathibat'---Performance ofTalbs' specially the `Talb-i-Muwathibat' had no nexus with the attestation of mutation---Petition was dismissed.

Akbar Nawaz Khan v. Sherdil Khan 1995 MLD 1061 ref.

Rafique Khan for Petitioner.

Hassan U.K. Afridi for Respondent.

Date of hearing: 29th March, 2010.

CLC 2010 PESHAWAR HIGH COURT 1078 #

2010 CLC 1078

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD RASOOL KHAN and 3 others----Petitioners

Versus

Mst. MASROON BIBI and 13 others----Respondents

Civil Revisions Nos.236, 237 and Civil Miscellaneous No.142 of 2004, decided on 18th September, 2008.

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

----Ss. 8, 17, 25 & 48---Civil Procedure Code (V of 1908), S.115---Appointment of guardian of person and property of minors---Mother of three minors filed application for appointing her guardian of person and property of minors, which application was accepted and she was appointed guardian of minors as prayed for by her and guardian certificate was issued to her---Mother on the strength of said guardianship certificate, sought leave of the court to sell the property belonging to the minors in order to incur their expenditure for their betterment, but the court refused to grant such leave and petition in that respect was dismissed---Subsequently, Guardian Judge taking suo motu action, declared guardianship certificate issued to the mother as cancelled; however on appeal against said order of the Guardian Judge, Appellate Court set aside impugned judgment of the. Guardian Judge and guardianship certificate was restored---Father of the minors as well as the minors filed revision petition against judgment of the Guardian Judge whereby the mother was allowed to sell the property of the minors---In the application filed by the mother for appointing her as guardian of person and property of minors, public-at-large as well petitioner was a party who was served through proclamation in the newspaper and was placed ex parte, which ex parte proceedings had never been challenged by the petitioners---Such was purely a case under Guardians and Wards Act, 1890 to which the provisions of C.P.C. were applicable in view of S.48 of the Guardians and Wards Act, 1890---Revision petition before the High Court, in circumstances, was competent, however on merits the petitioners had no case because the mother was duly appointed as guardian of person and property of the minors and permission to sell the property in question was obtained by her, which was never challenged and guardianship certificate in favour of the mother was still intact---Challenge to the proceedings by the petitioners was the result of greed on their part to deprive the bona fide purchasers from their entitlement---No illegality or material irregularity had been pointed out by the counsel for the petitioner in the proceedings before the Guardian Judge and that of the Appellate Court, which were well reasoned and based on sound appreciation of evidence and called for no interference---Revision was dismissed.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139; Ehsan-ur-Rehman v. Mst. Najma Parveen PLD 1986 SC 14; Akhawat Khan and another v. Mst. Shui Khelay PLD, 1981 SC 454; Akhtar Ali Said Bacha v. Mst. Naheed Bibi PLD 2003 Pesh. 63 and Mst. Ulfat Shaheen, v. Akram Khan and 2 others 2006 CLC 51 ref.

Rustam Khan Kundi for Petitioners.

Sh. Iftikharul Haq for Respondent No.1.

Abdul Aziz Khan Kundi for Respondents Nos.6 and 7.

Date of hearing: 30th June, 2008.

CLC 2010 PESHAWAR HIGH COURT 1092 #

2010 C L C 1092

[Peshawar]

Before Attaullah Khan, J

AFZAL SHAH----Petitioner

Versus

FAYYAZ ALI and 7 others----Respondents

Civil Revision No.35 of 2009, decided on 4th March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Grant of stay order--Ingredients of---Ingredients necessary for grant of stay order were; whether there existed a prima facie case in favour of grant of stay; whether the refusal of injunction would result in irreparable damage or loss; and whether refusal of grant of injunction would result in inconvenience to the applicant--- Prima facie case would mean that whether applicant had established an arguable case or not---Irreparable damage or loss was that injury which could not be compensated in terms of coins---Principle of balance of inconvenience, denoted that the applicant would suffer more inconvenience in case of refusal of injunction than the respondent---In order to establish a prima facie case, the plaintiff was required to prove the same---Court, while assessing same, had to see whether an applicant had got a prima facie case and for that conclusion, the court was required to assess the merit of the case summarily and need not go into details---Mere apprehension would not constitute balance of inconvenience in favour of the applicant, because normally the balance lay in favour of continuation of status quo---Defendant in the present case had allegedly constructed a house over the suit property and if the injunction was issued, it would result in inconvenience to him and the inconvenience in case of refusal of stay, if measured, would be lesser than that of the defendant---Both courts below had acted legally while refusing exercise of discretionary power in favour of the plaintiff/applicant---Nothing illegal having been pointed out by the counsel for the plaintiff, impugned judgments of both the courts below needed no interference by the High Court in its revisional jurisdiction.?

Manzoor Khan Khalil for Petitioner.

CLC 2010 PESHAWAR HIGH COURT 1111 #

2010 C L C 1111

[Peshawar]

Before Imtiaz Ali, J

SULTAN ZARIN and others----Petitioners

Versus

HABIB-UR-REHMAN and another----Respondents

Civil Revision No.1413 of 2007, decided on 23rd April, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption--Making of Talbs---Plaintiff in his plaint, except the date, had not given other details with regard to time and place of performance of Talb-e-Muwathibat---No mention was found in the plaint about the witnesses as to in whose presence Talb-e-Muwathibat was made---Though a registered notice of Talb-e-Ishhad was issued duly attested by certain witnesses, but said witnesses in their statements did not state anything about the said notice, but instead had stated that they had gone to the defendant as a Jirga telling him that plaintiff was desirous of purchasing the suit property---Findings of the Appellate Court on Talb-e-Ishhad, were also not in accordance with law and were liable to be reversed---Judgment of two courts below were set aside and suit was dismissed.

PLD 2003 SC 315; 2005 SCMR 431 and 2007 SCMR 1 ref.

(b) Interpretation of statutes---

----Courts were only called upon to interpret a law when there was any ambiguity therein---When law was not ambiguous, the Judge could not have gone beyond the letter of law by interpreting same in a way which was absolutely inconsistent or rather contrary to the express intention of legislature.

Roohul Amin for Petitioners.

Muhammad Khan for Respondents.

Date of hearing: 23rd April, 2010.

CLC 2010 PESHAWAR HIGH COURT 1159 #

2010 CLC 1159

[Peshawar]

Before Abdul Aziz Kundi, J

Syed ZAHID HUSSAIN and others----Petitioners

Versus

AUQAF and others----Respondents

Civil Revision No.165 of 2008, decided on 9th April, 2010.

North-West Frontier Province Waqf Properties Ordinance (I of 1979)---

----Ss. 8, 11 & 12---Civil Procedure Code (V of 1908), O. VII, R.10---Specific Relief Act (I of 1877), S.42---Suit for declaration---Return of plaint---Two courts below had ordered return of the plaints by holding that the dispute fell within the jurisdiction of District Court under S.11 of North-West Frontier Province Waqf Properties Ordinance, 1979---Counsel representing defendant (Auqaf Department) had contended that suits filed by the plaintiffs were hit. by Ss.l1 & 21 of North-West Frontier Province Waqf Properties Ordinance, 1979 and that two courts below had rightly ordered return of plaints---Plaintiffs in their plaints had put no challenge to the notification, but their case was that disputed property was distinct from the one subject-matter of the said notification---Even the Appellate Court had found so in the light of description of the property in the notification in question---Auqaf Department did not lay its hands upon the disputed property for sufficient long time of issuance of said notification and allowed the plaintiffs not only to enjoy it, but also demolish and re-construct the same and it was for the first time, somewhere in the year 1989 when the Auqaf Department managed the attornment of one of the tenants of said property in its favour---Issue regarding jurisdiction of civil court was already under trial and the most appropriate course for the Trial Court, in the circumstances was, to have allowed the parties to adduce their respective evidence on all contested issues and then decide the same including the issue of jurisdiction---If on conclusion of trial, plaintiffs had proved their allegation of the disputed property being not a part of said notification or a Waqf property, then it would be the domain of civil court to decide the matter---Impugned judgments and orders, passed by the two courts below appeared to be result of illegal and irregular exercise of jurisdiction vested in them which were set aside and cases were sent back to the Trial Court for proceeding with the same from the stage at which the plaints were ordered to be returned to the plaintiffs---Trial Court would record evidence of the parties and then decide both the suits strictly in accordance with law and on merits.

Chief Administrator, Auqaf v. Sakina Bibi and others 2005 MLD 318; Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary Government of Pakistan PLD 1960 SC 113; Samiullah and Naveedullah v. Fazle Malik and Administrator, Auqaf Department Peshawar PLD 1996 SC 827 and Chief Administrator, Auqaf, Sindh, Thandi Sarak, Hyderabad and another v. Mst. Masooma PLD 2001 SC 75 ref.

Ghafoor Ahmad Qureshi for Petitioners.

Syed Sardar Hussain for Respondents.

Date of hearing: 25th February, 2010.

CLC 2010 PESHAWAR HIGH COURT 1246 #

2010 C L C 1246

[Peshawar]

Before Zia-ur-Rahman Khan, J

AMIR ALI SHAH---Petitioner

Versus

SHER AZEEM and others---Respondents

Civil Revision No. 927 of 2009, decided on 26th April, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XLI, R.31---Suit for declaration and permanent injunction---Suit had concurrently been decreed by the Trial Court and Appellate Court---Validity---Most important issue involved in the suit was that of limitation about which proper plea was taken by the defendant in his written statement but the Trial Court failed to frame that important issue and give a clear judgment thereon---Appellate Court had also not recorded any, finding in that respect, despite the memorandum of appeal mentioned that very ground which had been specifically agitated by the defendant---Trial Court was sole responsible to have framed proper issue arising out of the pleadings of the parties---Memorandum of appeal revealed that apart from raising many objections including the non framing of issue about the limitation, Appellate Court had failed to meet all those questions as the first court of facts in accordance with the provisions of O.XLI, R.31, C.P.C.---Appellate Court had tried to decide the appeal of the defendant in a very slipshod manner without accepting its responsibility of dealing with each and every ground having been agitated in the memorandum of appeal---Appellate Court was obliged to have seen all the disputes in their true perspective, the non-attendance whereof had caused prejudice to the case of the defendant---Impugned judgment and decree of the Appellate Court, was set aside and the matter was remanded to the Appellate Court for doing the needful.

Muhammad Shafi v. Abdul Ghani through Legal Heirs and others 2000 SCMR 1124 and Mst. Sughra Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772 ref.

Mazullah Barkandi for Petitioner.

Amir Gulab Khan for Respondents.

Date of hearing: 26th April, 2010.

CLC 2010 PESHAWAR HIGH COURT 1317 #

2010 C L C 1317

[Peshawar]

Before Abdul Aziz Kundi, J

ALI GOHAR KHAN---Petitioner

Versus

ADNAN KHAN and 4 others---Respondents

C.Ms. Nos.8, 9 and 11 of 2009 in E.P. No. 2 of 2009, decided on 21st May, 2010.

Senate (Election) Act (LI of 1975)---

----Ss. 31, 35, 36, 44 & 45---Conduct of General Election Order, 2002, Art.2(d)---Civil Procedure Code (V of 1908), S.10 Election petition---Application for stay of proceedings in election petition---Nomination papers filed by the respondent for one of the two seats of "technocrats" in Senate, had been rejected both by the Returning Officer and Election Commission of Pakistan---High Court, under its constitutional jurisdiction had allowed the respondent to contest election with an order that in case respondent was elected, then the retaining of office of Senator would be subject to the final decision to be given on main petition---Respondent contested election and he was declared as a returned candidate and accordingly was notified by Election Commission---Petitioner who had also contested the said election, but remained unsuccessful, filed election petition under S.31 of Senate (Election) Act, 1975---Respondent/returned candidate filed application under S.45 of Senate (Election) Act, 1975 for stay of proceedings in the election petition filed by unsuccessful candidate, pending final disposal of constitutional petition earlier filed by the respondent---Contention of the respondent was that since his constitutional petition was earlier in time, thus while applying the principles of S.10, C.P.C. proceedings in the petition could be stayed and that under S.45 of Senate (Election) Act, 1975 Election Tribunal had all the powers of a civil court---Validity----Election petition was filed to arrest time, though the actual controversy had to be resolved in the constitutional petition---Held, respondent having been allowed to contest the Senate Election subject to the final decision of the constitutional petition, it would be appropriate and in the interest of justice to stay proceedings in the election petition till the final disposal of constitutional petition---Proceedings in election petition, were stayed, in circumstances.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Muhammad Azad Gul's case 1997 CLC 1132; and Malik Umer Aslam v. Sumaira Malik and another PLD 2007 SC 362 ref.

Qazi Muhammad Anwar for the Petitioner.

Barrister Umair Majeed Malik for Respondent No.1.

2010 C L C 1474

[Peshawar]

Before Attaullah Khan, J

AMIR NAWAZ KHAN and 2 others---Petitioners

Versus

RAHMATULLAH KHAN---Respondent

Civil Revision No.231 with C.M. No.167 of 2010, decided on 9th June, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 2(d)(1), 6 & 13-Suit for pre-emption---Transaction, whether sale'-orexchange'---Making of Talbs---Suit was resisted by the defendants contending that the transaction was exchange and not sale and that said exchange was for better management of suit land; and that same could not be pre-empted--Unless the defendants proved that the suit land was exchanged for better management of agricultural property, it would not be exempted from pre-emption---Defendants had failed to prove the plea of better management of the suit land through cogent and convincing evidence--Both the courts below, in circumstances, had rightly found that the disputed properly was not exchanged for better management of agricultural property---Plaintiff had proved making of Talbs through evidence of marginal witnesses in whose presence Talbs were performed---Notices had also been established to have been issued by the plaintiff in respect of Talb-e-Ishhad---No illegality, irregularity, perversity, misreading or non-reading of evidence was found in the impugned findings of the courts below---Such findings were maintained.

M. Saleemullah Khan Ranazai for Petitioners.

Nemo for Respondent.

Date of hearing: 9th June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1519 #

2010 C L C 1519

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

KARAM ELLAHI---Petitioner

Versus

MUHAMMAD HASHIM and 3 others---Respondents

Civil Revision No. 204 of 2005, decided on 22nd June, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 24--Suit for pre-emption--Non-deposit of pre-emption amount-Suit had concurrently been dismissed by the Trial Court and Appellate Court--,Suit was dismissed on the ground that plaintiff who was directed to deposit 1/3rd of pre-emption amount within thirty days, had failed to deposit same accordingly-Evidence on record had established that the plaintiff was kept in darkness as well as in topsy-turvy position since institution of case by him regarding deposit of 1/3rd of the pre-emption amount; for the reasons that order of deposit of 1/3rd amount was made about one year and four months after filing of suit by the plaintiff-Order of depositing amount was not particularly communicated to the plaintiff by the court--Order passed non-suiting the plaintiff on the ground of non-deposit of 1/3rd of pre-emption money was, quite incorrect-Dismissal of appeal of plaintiff by the Appellate Court was also incorrect, which was also the result of miscarriage of justice having not evaluated the merits in that regard in true perspective-Impugned judgments/orders of the courts below were set aside and suit of the plaintiff was restored on its original number and the plaintiff was directed to deposit 1/3rd of pre-emption amount within thirty days.

Mazhar Javed v. Muhammad Iqbal 2005 CLC 830 and Riaz Ahmad v. Additional District Judge, Sargodha 1999 YLR 336 ref.

Abdul Qayoom Qureshi for Petitioner.

Muhammad Anwar Awan for Respondents.

Date of hearing: 22nd June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1534 #

2010 C L C 1534

[Peshawar]

Before Attaullah Khan, J.

Mst. RAMZANO and others---Petitioners

Versus

ABDUR RASHID---Respondent

Civil Revision No. 197 of 2009, decided on 21st June, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration and perpetual injunction-Suit had concurrently been decreed by the Trial Court and Appellate Court---Evidence on record had proved that sale in question was complete, entire sale consideration was paid by the plaintiff and the possession of suit property was delivered to the plaintiff-No evidence in rebuttal was available---Courts below of competent jurisdiction having given concrurrent findings on question of fact or law, such findings could not be disturbed by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., when such findings did not suffer from material irregularity, illegality, misreading, non-reading or jurisdictional defect.

Mst. Said Kazaban and others v. Momin Khan and others 2004 MLD 655 and Muhammad Idrees and others v. Muhammad Parvez and others 2010 SCMR 5 ref.

S. Mastan Ali Zaidi for Petitioners.

Muhammad Jahangir Awan and Muhammad Daud Khan for Respondent.

Date of hearing: 21st June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1568 #

2010 C L C 1568

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

ALLAH BAKHSH and another---Petitioners

Versus

MUHAMMAD AYUOB and another---Respondents

Civil Revision No.216 of 2006, decided on 25th May, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Superior right---Making of Talbs---Gift transaction---Proof---Suit had concurrently been decreed by the Trial Court and Appellate Court ---Defendants had contended that transaction of suit property was gift and not sale which was exempted from preemption---Validity---Unless and until three necessary ingredients of declaration, acceptance and the transfer of possession of the suit property were fulfilled in favour of beneficiaries, it could not be considered as gift---Vendor in the present case, had his own kids and under Shariah, he could not deprive them from the properly by gifting the property to his nephews---No evidence of the sort that ingredients of Tamleek were completed between the vendor and the vendee on the part of the defendants, who were beneficiaries of the gift, was available---Onus of probandi to be discharged was on the defendants, but they had failed to substantiate the same---Mutation in the case had been devised in the shape of Tamleek, without the fulfilment of necessary ingredients---In fact transaction was sale which was open to pre-emption---Requirements of Talb-e-Muwathibat and Talb-i-Ishhad necessary for establishing the right of pre-emption had been fulfilled by the pre-emptor, while indicating the date, the day, time and place as well as the informer---Plaintiffs had superior right of pre-emption and the defendants had no such qualification being strangers---Courts below had very well appraised the evidence recorded on file and had viewed the other material minutely and reached to a correct concurrent finding which called for no interference.

2007 CLC 154; Barkat Ali v. Muhammad Ismail 2002 SCMR 1938; 2004 CLC 203 (b) and Mst. Farzana Bibi v. Manzoor Ellahi and others 2006 CLC 1669 ref.

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

----O. VI, R1--- Pleadings--- Pleadings could not take the place of evidence unless the concerned person was examined as witness in the court.

Malik Muhammad Bashir for Petitioners.

Salim Nawaz Awan for Respondents.

Date of hearing: 25th May, 2010.

CLC 2010 PESHAWAR HIGH COURT 1612 #

2010 C L C 1612

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

ABDUL WAHID KHAN---Petitioner

Versus

Mst. NAZIA and 3 others ---Respondents

Writ Petition No.323 of 2009, decided on 23rd June, 2010.

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, dowry articles, dissolution of marriage and dower---Both Trial Court and Appellate Court had decreed the suit---Validity----Dower deed on record had revealed that twenty tolas of gold ornaments had been fixed as dower---Evidence produced on record by the plaintiff had supported her claim that dower had not been paid; and that fact had also not been rebutted by the defendant---Dower, in circumstances, was to be paid by the defendant---Record showed that the plaintiff had left the house of defendant after remaining in his house for 45 days and that she left the house of her husband on account of his cruel conduct---Plaintiff having been forced to live in her parents house, she was entitled to her maintenance allowance and maintenance allowance of her son---Amount fixed was reasonable keeping in view the inflationary trend prevailing in the market---In absence of any illegality in the impugned judgments and decrees to justify interference, constitutional petition being without force, was dismissed.

Malik Muhammad Asad for Petitioner.

Anwar-ul-Haq for Respondents.

Date of hearing: 23rd June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1629 #

2010 C L C 1629

[Peshawar]

Before Sher Muhammad Khan, J

Haji ATLAS KHAN and another---Petitioners

Versus

Mst. MEHRAN BIBI and 5 others---Respondents

Civil Revision No.46 of 2005, decided on 1st June, 2010.

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

---Ss. 42 & 54---Suit for declaration and perpetual injunction---Plaintiffs claimed that they were owners in possession of suit land and had possession to the extent of their shares; and that defendants were not entitled to interfere in their possession---Suit had concurrently been decreed by the Trial Court and Appellate Court ---Counsel for the plaintiffs had conceded that on the strength of the decree, they did not claim exclusive ownership of Khasra Number in question, but had only obtained decree from the court to protect his possession till proper partition by metes and bounds and that the decree of civil court would never be used as hurdle in partition proceedings before the Revenue Court---Counsel for defendants had asserted that if the commitment made by the counsel of the plaintiffs was brought on the record, he would not stress on the acceptance of his revision petition---Revision petition, in circumstances, was disposed of in the light of the commitment made at the bar by counsel of plaintiffs, that the judgment/decree would never be used as hurdle before the Revenue Officers for the proper partition in accordance with law.

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

---Ss. 39 & 52---Mutation---Entry of mutation not incorporated in Jamabandi---Presumption of truth-Entry of mutation which was not incorporated in Jamabandi did not carry presumption of truth---Revenue Officers were under statutory obligation to incorporate the entry of mutation in the next Jamabandi to secure the interest of the person who had acquired rights in an estate by inheritance, sale, gift or otherwise.

Jamal Abdul Nasir Awan for Petitioners.

Nasrullah Khan for Respondents.

Date of hearing: 1st June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1644 #

2010 C L C 1644

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

Mst. FATIMA BIBI through Muhammad Ismail---Petitioner

Versus

Mst. IFFAT SULTAN -Respondent

Civil Revision No.38 of 2006, decided on 19th July, 2010.

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

---Ss.13 & 17---Ejectment---Execution proceedings---Objection petition--Ejectment application had concurrently been accepted by the Rent Controller and Appellate Court and tenant was ordered to be ejected---Said judgment was put to execution wherein the objector filed objection petition, which was summarily dismissed by the Executing Court and dismissal order was also upheld in appeal---No doubt, in case of a genuine objection regarding title over any interest, the Executing Court had the powers to hold an enquiry, but when on the face of record the objection was found based on mala fide and to deprive the decree-holder from fruits of the decree, the Executing Court could competently/summarily dismiss the objection petition.

Ghulam Nabi v. Additional District Judge Jhelum 2001 SCMR 683 ref.

Abdul Sattar Khan for Petitioner.

Iqbal Ahmad Durrani and M. Masum Qureshi for Respondents.

Date of hearing: 16th April, 2010.

CLC 2010 PESHAWAR HIGH COURT 1727 #

2010 C L C 1727

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. FATIMA---Petitioner

Versus

ABDUL QADIR alias SUHBAT and 8 others ---Respondents

Civil Review No.10 of 2010 in Civil Revision No.1288 of 2009, decided on 26th April, 2010.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Mental Health Ordinance (VIII of 2001), S.32---Review---Appointment of guardian ad litem of an insane person---Grievance of the petitioner was that an insane person was appointed as guardian ad litem of another insane person, which was a justified reason, and as such necessary correction in that regard was made---Such correction had no adverse effect on the merits and decree in the case and purpose and need behind the correction was just to set the record of the case straight---Such correction could be made in the record as both the persons remained properly represented throughout the proceedings and no prejudice was caused to their interest---Defect in the procedure for appointment of guardian ad litem did not vitiate the decree, unless any prejudice was caused to the interest of minor, a person of unsound mind as a result thereof---Absence of a formal order of appointment of guardian ad litem would not be fatal to the decree, if no prejudice had been caused to the minor---To secure the interest and rights of insane person, there must be a legally appointed guardian under S.32 of Mental Health Ordinance, 2001---Counsel for the petitioner was unable to point out any error apparent on the face of the record and nothing was brought on the record which could have reflected that some important matter or evidence came into his knowledge later on which was not in his knowledge at the time of judgment to be reviewed---High Court ordered accordingly.

Murtaza Khan Durrani for Petitioner.

Saeedullah Khalil for Respondents.

Date of hearing: 26th April, 2010.

CLC 2010 PESHAWAR HIGH COURT 1776 #

2010 C L C 1776

[Peshawar]

Before Zia-ur-Rehman Khan, J

NASRULLAH---Petitioner

Versus

MUHAMMAD WAHID and others---Respondents

Civil Revision No.444 of 2010, decided on 17th May, 2010.

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

----S. 12---Civil Procedure Code (V of 1908), S.148---Suit for specific performance of agreement of sale---Fixation of period by Court for deposit of outstanding amount of sale consideration within prescribed period---Extension of time---Scope---Trial Court passed ex parte preliminary decree against judgment-debtor and in favour of decree-holder with the condition that decree-holders would deposit outstanding amount of sale consideration within prescribed period of forty days---Decree-holders who failed to deposit said amount within prescribed period of forty days, filed application for extension of period for deposit of outstanding amount and Trial Court while exercising its powers under S.148, C.P.C. accepted said application extended the requisite period and allowed the decree-holders to deposit the amount---Decreeholders deposited said amount long after expiry of prescribed period and Trial Court passed final decree and judgment-debtors were directed to hand over the possession of suit property to decree-holders---Validity---Conditional decree was passed in favour of decree-holders and in the event of non-deposit of the balance sale consideration within prescribed period said decree entailed dismissal of the suit of the decree-holders---As non-deposit of the remaining amount entailed the penal consequence of the dismissal of the suit, Trial Court was functus officio and was vested with no jurisdiction to pass an order with regard to extension of time for deposit of the outstanding amount---Once the original decree was without jurisdiction and was the result of illegal act of the court, the entire edifice raised thereon, would automatically dash to the ground and crumble---Obtaining the final decree also would lose its importance and was of no use to the decree-holders---Judgments of both courts below being erroneous, not warranted by law and without jurisdiction, were set aside and the suit of the decree-holders stood dismissed.

Mst. Sultana Begum v. Mst. Sadiqa Begum 2003 CLC 1705;Shujaat Ali v. Muhammad Riasat and others PLD 2006 SC 140; Waqar Mustafa and 2 others v. Ch. Muhammad Ashraf Mahmood and 2 others 2008 CLC 866; Bashir Ahmad and others v. Hussain Industries (Pvt.) Ltd. 2003 YLR 55; Muhammad Iqbal through Legal Heirs v. Bashir Ahmad and 19 others PLD 2002 Lah. 88 and Abdul Ghaffar Khan v. Mst. Batool Begum and others through General Attorney 2006 CLC 1827 ref.

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

----S. 12---Civil Procedure Code (V of 1908), O.IX, R.13 & S. 151---Suit for specific performance of agreement of sale---Ex parte decree---Setting aside of---Ex parte decree after the non-appearance of the defendant was passed in the light of the ex parte evidence---Application for setting aside said ex parte decree was submitted beyond the prescribed period of limitation; and without any plausible and sufficient explanation---No illegality was committed by the two courts below while dismissing application for setting aside ex parte decree---Such aspect of the case did not require any indulgence of High Court within the purview of S.115, C.P.C. and no exception could be taken to said findings.

Mian Saadullah Jandoli for Petitioner.

Malik Manzoor Hussain for Respondents.

Date of hearing: 26th April, 2010.

CLC 2010 PESHAWAR HIGH COURT 1861 #

2010 C L C 1861

[Peshawar]

Before Liaquat Ali Shah and Mazhar Alam Khan Miankhel, JJ

Mst. NASEEM---Appellant

Versus

Mst. SHEHLA DURRANI and 2 others---Respondents

Regular First Appeal No. 70 of 2002, decided on 30th Jun, 2010.

(a) Registration Act (XVI of 1908)---

---S.60---Qanun-e-Shahadat (10 of 1984), Arts. 85(2) & 129 (e)---Registered deed---Evidentiary value---Such deed would be binding on parties thereto and third party---Strong evidence would be required to cast aspersion on its genuineness---Principles.

Under the law, registered deed has got a basic presumption of its correctness, unless that is rebutted.

The registered deed under the law carries validity of correctness and strong evidence is required to cast aspersion on its genuineness. Such document is not only binding on the parties in the document, but equally applicable to a third party. Especially when execution of a registered deed is not denied, then the formal proof of execution of the registered deed is not required under the law. Mere its production in the case would legally be sufficient.

Mere allegations to rebut a registered document, execution of which is not denied, would in no way be sufficient.

(b) Islamic Law---

----Gift through registered deed---Execution of such deed and its registration not denied by parties-Effect-Such admission would be sufficient proof of its offer by donor and its acceptance by donee.

----Gift of a portion in joint property---Delivery of physical possession to donee not possible without partition of property---Effect---Constructive possession in such circumstances would be sufficient to validate such gift---Where actual possession could not be delivered by donor to donee and donor had done all that what he was required to do to divest himself of gifted property, then gift would be considered to be complete and effective---Principles.

Iltaf Ahmad for Appellant.

Jehanzeb Muhammad Zai for Respondents.

Date of hearing: 30th June, 2010.

CLC 2010 PESHAWAR HIGH COURT 1872 #

2010 C L C 1872

[Peshawar]

Before Attaullah Khan, J

ALLAH KHAN and 7 others---Petitioners

Versus

RAHIM GUL and another---Respondents

Civil Revision No.166 of 2005, decided on 18th June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Suit had concurrently been dismissed by the Trial and Appellate Court---Plaintiffs had claimed that they were owners in possession of suit property and that alleged sale mutation attested in favour of the defendants was wrong, against law, facts, without jurisdiction and ineffective upon rights of the plaintiffs---Plaintiffs, though had produced a number of witnesses, in proof of their claim, but no substantial piece of evidence was available to favour that sale mutation in dispute in favour of the defendants was fraudulent; and that the property had not been sold by the plaintiffs to the defendants---Even witnesses produced by the plaintiffs could not say that mutation of sale was attested fraudulently or not---Special attorney of the plaintiffs, who was one of the plaintiffs, had also admitted that suit property was in possession of the defendants for the last 55 years and that it was still in possession of legal heirs of the defendants---Such admission was negation of and contrary to the contention of the plaintiffs that they were owners in possession of suit property---None of the plaintiffs' witnesses had stated that mutation of sale in question was fraudulently attested and that the suit property was not sold by the plaintiffs--Defendants. had produced evidence in support of their claim that the mutation was entered and attested correctly---Defendants, in circumstances, had discharged their burden in succeeding to prove that they had purchased property in dispute from the plaintiffs through a valid mutation---No fraud or illegality had been established by the plaintiffs in the attestation of mutation in dispute---Suit of the plaintiffs was rightly dismissed by both the courts below---In absence of any illegality, non-reading or misreading of evidence or jurisdictional error to justify interference, revision petition was dismissed.

Khawaja Nawaz Khan for Petitioners.

Respondent in Person.

Quetta High Court Balochistan

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 251 #

2010 C L C 251

[Quetta]

Before Amanullah Khan Yasinzai, CJ

GOVERNMENT OF BALOCHISTAN through Deputy Commissioner, District Quetta and another----Petitioners

Versus

Syed ABDUL QADIR ALGILANI and 6 others----Respondents

Civil Revision No.257 of 2008, decided on 26th June, 2009.

(a) Balochistan Cancellation of Illegal Allotments of Land Act (V of 1996)---

----S. 3---Entry of petitioner's name in Revenue Record as "Mauroosi Bazgar" for having developed barren State land by spending huge amount and being in possession thereof for last 40 years---Cancellation of such entry in view of Notification No.180-14/93/Revenue, dated 6-12-1995 and Balochistan Cancellation of Illegal Allotment of Land Act, 1996 without giving any notice to petitioner or initiating enquiry---Validity---Such entry had not been made in record of rights abruptly---Ownership rights had not been transferred in petitioner's name---Revenue authorities had entered petitioner's name as "Mouroosi Bazgar" after due process of enquiry and inspection of land---Petitioner was paying usher in respect of such land after turning same into cultivable land without any objection---Such notification and Balochistan Cancellation of Illegal Allotments of Land Act, 1996 were not applicable to petitioner's case---Impugned order, held, was passed without jurisdiction and in violation of principles of natural justice.

(b) Civil Procedure Code (V of1908)---

----S. 115---Concurrent findings of fact arrived at by courts below--Interference in such findings by High Court in exercise of its revisional jurisdiction under S.115, C.P. P.C. ---Scope.

While exercising powers under section 115, C.P.C. the High Court has to satisfy itself that subordinate Courts had jurisdiction to try the case and had exercised the same rightly, and that while exercising jurisdiction, the Court had not acted legally or in breach of any provision of law or with material irregularity, and if the High Court is satisfied that the aforesaid criteria has been met by the Court below, then the High Court shall not interfere, even if it differs with the findings of subordinate Courts on the question of law or facts.

High Court while sitting in revisional jurisdiction will not interfere in the concurrent findings of fact arrived at by the Courts below, unless it is established that the Courts below have passed the judgment without jurisdiction or have committed material illegality, irregularity or impropriety.

N.S. Venkatagiri Ayyunger's case PLD 1949 PC 26 and 2005 SCMR 135 rel.

Nasrullah Achakzai, Addl. A.-G. for petitioners.

Arshad Ch. for Respondents.

Date of hearing: 15th May, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 631 #

2010 C L C 631

[Quetta]

Before Muhammad Noor Meskanzai, J

ABDUL QADIR and another----Petitioners

Versus

NADEEM JAVED and 4 others----Respondents

Civil Revision No.54 of 2005, decided on 17th November, 2009.

(a) Islamic law---

----Inheritance---Scope---On the death of owner, legal heirs became entitled for their due share under personal law without intervention of the court or authority.

PLD 1990 SC 1 ref.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Ars.117 & 120---1'nlieritance---Specific plea---Proof of-Onus to prove---Defendants denies partition of suit property to plaintiffs on the ground that they had already paid shares to plaintiffs--Both the courts below concurrently decreed the suit in favour of plaintiffs---Validity---Defendants did not dispute the fact that property in question was ancestral but resisted the suit on the excuse and pretext that they had given shares to plaintiffs by making payment to them---It had become inevitable and essential upon defendants to have proved factum of settlement and payment of amount in lieu of shares to other legal heirs of predecessor-in-interest of parties with their free will and consent---Judgments rendered by both the courts below were in accordance with law, as subject-matter among the parties was distribution of ancestral property, which was inherited by them---Trial Court remaining well within four corners of law rightly held that property in dispute be partitioned among legal heirs of predecessor-in-interest of parties---There was no impropriety, irregularity, perversity and illegality in judgments and decrees passed by lower courts---High Court declined to interfere with concurrent findings of facts based on proper appreciation of evidence by lower forums---Revision was dismissed in circumstances.

2007 SCMR 635 ref.

Miss Sarwat Hina for Petitioners.

Farrukh Malik for Respondents.

Date of hearing: 28th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 642 #

2010 C L C 642

[Quetta]

Before Muhammad Noor Meskanzai, J

Malik ZAHIR and others----Petitioners

Versus

MUHAMMAD SALEEM and others----Respondents

Civil Revisions Nos.66, 67, 68, and 69 of 2007, decided on 17th November, 2009.

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

----S. 8---Possession---Proof---If a witness has not seen and visited disputed property for last 7-8 years back, then his statement to the extent of possession carries no legal weight.

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

----Ss. 8 & 42---Declaration of title and recovery of possession---Judgments at variance---Findings of Lower Appellate Court---Scope---Plaintiffs claimed that suit property was ancestral property and sought declaration and recovery of possession---Trial Court decreed the suit in favour of plaintiffs but Lower Appellate Court allowed the appeal and dismissed the suit---Validity---Infringement of vested right or legal character was presupposed by S.42 of Specific Relief Act, 1877---Claim of plaintiffs was that property in dispute was ancestral property but none of the plaintiffs' witnesses termed property in dispute to be ancestral property of plaintiffs---So even if all the plaintiffs might have been in possession of property in dispute even then mere possession itself did not create a vested right nor could clothe someone with legal character to maintain suit for declaration---Relief within the ambit of Specific Relief Act, 1877 required some ingredients enabling someone for a decree in his favour which were lacking and missing---Conclusions drawn by Lower Appellate Court required to be given due weight, if the same did not suffer from any inherent defect, irregularity or perversity---Failure of defendants to prove their possession did not entitle plaintiffs for a decree in their favour because plaintiffs had to prove their case at the strength of their own evidence and they could not take benefit of weaknesses of defendants---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

PLD 1985 Quetta 69 and 2005 CLC 1821 distinguished.

1999 CLC 252 ref.

----O. XXIII, R. 1(2)---Filing of fresh suit on same cause of action---Limitation---After withdrawal of first suit, limitation is to be reckoned from the date of filing of earlier proceedings, as once limitation starts on same cause of action, then it does not stop.

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

----O. VII, R. 1(e)---Cause of action---Scope---It is bounden duty of plaintiff to state categorically and in unequivocal terms as to how and when cause of action accrued to him.

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

----O. XLI, R. 23---Remand of case---Principle---Party cannot be allowed to take benefit of his own fault---Suit cannot be remanded just to allow a party to fill in gaps left by him.

Syed Mumtaz H. Baqri for Petitioners (in all cases).

Taj Muhammad Mengal for Respondents (in all cases).

Date of hearing: 30th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1138 #

2010 C L C 1138

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Haji GHULAM RASOOL and 3 others----Petitioners

Versus

NASARULLAH and 9 others----Respondents

R.F.A. No.19 of 2002, decided on 15th April, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---Suit for possession, declaration, cancellation of mutation, partition and permanent injunction---Trial Court having decreed the suit filed by the plaintiffs, the defendants had filed first appeal before High Court against judgment and decree passed by the Trial Court---Contention of the defendants, firstly was that the Trial Court had not properly framed the issues arising out of the pleadings of the parties, secondly that while passing the impugned judgment, the Trial Court had failed to give findings upon the issues in accordance with law and material available on record and that the Trial Court while deciding one issue that "whether the plaintiffs were co-sharers in the suit land and private partition had not taken place" had given a contradictory judgment by passing the decree for partition and had passed contradictory judgment---Validity---Objection regarding non-framing of proper issues by the Trial Court, had no force, because the defendants had not filed any application for framing of proper issues before the Trial Court during the proceedings of the same---Counsel for defendants had not been able to point out as to what should have been the correct issues, which had not been framed by the Trial Court and had prejudiced the defendants---Second objection of the defendants that Trial Court while deciding issues had passed contradictory judgment for partition of the property in dispute, had substance---Trial Court while deciding said issue, came to the conclusion that private partition had already been effected between the plaintiffs and defendants and in pursuance of said private partition both the parties were enjoying possession of property and cultivating the same, having installed boring and developed orchards---Trial Court after coining to the said conclusion, decreed the suit as per prayer clause of the plaint and directed Authorities to partition the property in dispute and hand over the vacant possession to the extent of their possession---Findings of the Trial Court to the extent of partition being erroneous, was liable to be set aside---Judgment and decree passed by the Trial Court was upheld with modification that the finding of the Trial Court with regard to partition of property was set aside.

Naeem Akhtar for Petitioners.

W.N. Kohli and Rafique Langove and Ejaz Sawati for Respondents.

Date of hearing: 17th December, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1250 #

2010 C L C 1250

[Quetta]

Before Ghulam Mustafa Mengal, J

Mst. SHAHNAZ PARVEEN and 4 other---Petitioners

Versus

ABDUL AZIZ and another---Respondents

Civil Revision No. 136 of 2002, decided on 8th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42, 39, & 9---Suit for declaration, cancellation of agreement and possession---Trial Court decreed the suit and appeal filed by the defendants against judgment and decree passed by the Trial Court had been dismissed by the Appellate Court---Validity---Documentary evidence produced by the plaintiffs, which was an agreement showed that predecessor-in-interest of the defendants was enjoying the possession of house in dispute as licensee---Evidence on record had also proved that house in dispute was purchased by grandfather of the plaintiffs in . the year 1939; and that two rooms were given to predecessor-in-interest of the defendants on rent---Objection of defendants with regard to limitation was also baseless---Findings on question of fact and law recorded by the court of competent jurisdiction could not be interfered with in revisional jurisdiction, unless those findings suffered from jurisdictional defect, illegality or material irregularities--- Petition was dismissed by High Court.

Miss Sarwat Hina for Petitioners.

Manzar Siddique for Respondents.

Date of hearing: 1st February, 2010.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1261 #

2010 C L C 1261

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

NASIR HAYAT---Appellant

Versus

Syed QAMAR RAZA RIZVI---Respondent

Civil Misc. Appeal No. 13 of 2007, decided on 10th March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXI, R.10, Ss.48 & 100---Specific Relief Act (I of 1877), Ss. 8 & 12---Limitation Act (IX of 1908), Art.181---Execution of decree---Application for---Limitation---Decree-holder whose suit for specific performance of agreement, possession and recovery was decreed, filed application for execution of decree, which was dismissed being barred by time---Decree-holder had claimed that earlier he filed application for execution of decree in time, but same having been dismissed in default, he had again filed application for execution of decree, which had been dismissed by the Executing Court without appreciating the facts and circumstances of the case and accepting the objection of judgment-debtor with regard to limitation and that first application for execution of decree was to be filed within a period of three years and once it was filed in time, thereafter any number of applications for execution could be made within the provided period of six years---Validity---Despite having full opportunity, decree-holder had failed to prove any such application before the court, he had even failed to mention the exact date of submission of said first execution application made by him---Decree-holder had not asserted that due to fraud or misrepresentation he was restrained from filing of such application; or there existed such circumstances due to which he was unable to file application for execution of decree in time---No such grounds were urged by the decree-holder, on basis of which delay occurred in filing application could be condoned---Execution application was rightly dismissed, in circumstances.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 779 ref.

Tahir Ali Baloch for Appellant.

Nemo for Respondent.

Date of hearing: 29th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1293 #

2010 C L C 1293

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL NASIR and 12 others---Petitioners

Versus

BIBI JANATORA and 10 others---Respondents

Civil Revision 164 of 2003, decided on 18th May, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Claim of plaintiffs was that they were owners of 3/4 share of property in question; that remaining 1/4 share thereof was owned by their close relatives and that said two share-holders of 1/4 share having died issueless, their share devolved upon the plaintiffs being close relatives--Defendants denied said claim of the plaintiffs and claimed that property in question had been mutated in the name of grandson of one of said owner and through him same had been devolved upon the defendants through mutations---Suit filed by the plaintiffs had concurrently been dismissed by the two courts below---Validity---Burden lay on the plaintiffs to establish that two owners of 1/4 share of the property in question had died issueless, but they could not establish the same as they failed to produce specific evidence in that respect and also failed to specifically describe relationship between them and said two deceased owners of property in question---Defendants also could not produce any evidence to prove their relationship with the two deceased owners---Revenue record produced before the Trial Court had revealed that no entry after names of the deceased describing their legal heirs existed---Courts below, in circumstances, had rightly decided that deceased owners of property in question had died issueless as nothing could be brought to the contrary---Said deceased owners died nearly 100 years ago, but despite that mutation of alleged inheritance was effected thereafter, while nothing was mentioned that on whose instance said entry was made in record---Courts below had rightly found that said entries in record were result of fraud and misrepresentation, however, despite that both the courts below had found that as the plaintiffs had failed to establish their title, said mutation entries could not be cancelled---View taken by both the courts below was erroneous---Even on cancellation of said mutation entries, the property in question was not required to be recorded in the names of the plaintiffs as no title devolved on them---Plaintiffs having completely failed to make out any case in their favour, they were not entitled for any relief---Previous entries in the names of said two owners stood restored and authorities were directed to examine the matter from the very initial stage, whereafter make appropriate orders and take steps thereon strictly in accordance with law.

Naeem Akhtar Afghan for Petitioners.

Abdul Hadi Tareen for Respondents.

Date of hearing : 11th December, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1343 #

2010 C L C 1343

[Quetta]

Before Ghulam Mustafa Mengal, J

NATIONAL BANK OF PAKISTAN through its Manager---Applicant

Versus

WASA through Managing Director and 3 others---Respondents

Review Application No. 03 of 2010 in Civil Miscellaneous Appeal No. 15 of 2005, decided on 14th May, 2010.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Review---After dismissal of appeal in default for non prosecution, appellant/applicant filed application for restoration of appeal without filing any application for condonation of delay---Said application was dismissed and after eight and half months of dismissal order, applicant filed review application---Review application was not competent where neither any new and important matter or evidence had been disclosed nor was any mistake or error apparent on the face of record---In the present case neither any mistake or error was apparent on the face of record nor there was discovery of a new and important matter or evidence---Applicant had failed to make out a case for review---Application was dismissed.

Mst. Kabir-un-Nisa and another v. Settlement Commissioner (Lands), Lahore and 3 others 1975 SCMR 493; Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865 and Mst. Kalsoom Liak and others v. Assistant commissioner and others 1996 SCMR 710 ref.

Muhammad Raouf Hashmi for Applicant.

Nemo for Respondents.

Date of hearing: 7th May, 2010.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1434 #

2010 C L C 1434

[Quetta]

Before Syeda Tahira Safdar, J

JALIL KHAN DOTANI---Petitioner

Versus

DAWOOD AHMED and others---Respondents

Civil Revisions Nos.450 and 451 of 2007, decided on 23rd February, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54-Qanun-e-Shahadat (10 of 1984), Arts.74, 75, 76, 77 & 78-Suit for specific performance of agreement and permanent injunction-Production of secondary evidence-Revision petition-Application of the plaintiff for producing secondary evidence had been rejected by the Trial Court-Plaintiff in the present case had relied on agreement of sale which allegedly was executed between him and the defendant in respect of property in question-Plaintiff had contended that original agreement of sale had been lost and despite his efforts, same was not traced out and he intended to prove the same through secondary evidence-Validity-Under Art.76 of Qanun-e-Shahadat, 1984, if an original document had been lost, evidence could be produced to prove its existence and contents, however, in the present case the plaintiff had filed application for production of secondary evidence after more than two years since the document was lost-Plaintiff had to establish execution and existence of agreement in question between the parties at first instance, whereafter he had to establish his assertion that the document in question had been lost without his fault, which made him entitled to produce secondary evidence in respect of the same-Trial Court had come to the correct conclusion which needed no interference-Plaintiff having failed to make out any case in his favour, his revision petition was dismissed.

Rauf Ahmed Hashmi for Petitioner (in both petitions).

Tahir Ahmed Dar in person (in both petitions).

Date of hearing: 27th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1440 #

2010 C L C 1440

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

BIBI SHAH GUL---Petitioner

Versus

SAADIA and 7 others---Respondents

Civil Revision No.100 of 2009, decided on 20th April, 2010.

Civil Procedure Code (V of 1908)---

----S. 47, O.XXI, Rr. 10 & S. 23-A---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration, correction of record and possession---Execution of decree---Objection to---Suit filed by the plaintiff having concurrently been decreed in his favour by the courts below, he filed application for execution of decree to which objections were raised by defendants/judgment-debtors---Under Section 47, C.P.C., it was the court executing the decree to determine the questions arising between the parties to the suit relating to the execution, discharge or satisfaction of decree and no separate suit was required to be filed---During pendency of application for execution of decree no objection was raised from the side of judgment-debtors, despite having full knowledge about the same---Application was filed by the plaintiff/decree-holder during course of proceedings for execution wherein certain khasra numbers were mentioned and notice of said application was given to the judgment-debtors who failed to contest the same---Mentioned khasra numbers were the same which were mentioned in the plaint, which were subject-matter of the decree---Judgment-debtor had failed to point out her grievance and was unable to specify that as to how the whole property was mutated in favour of the decree-holder, while the report of Civil Nazir showed to the contrary---Judgment-debtor had further failed to specify the exact measurement of property in decree and respective shares of the parties, specifically of her own---In the absence of any merits in the revision petition, same was dismissed and impugned orders of the courts below were maintained.

Khushnood Ahmed for Petitioner.

Habib Tahir for Respondent No.1.

Respondents Nos. 2 to 8 Ex parte.

Date of hearing: 28th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1462 #

2010 C L C 1462

[Quetta]

Before Jamal Khan Mandokhail, J

ABDUL SATTAR and 10 others---Petitioners

Versus

Haji FATEH KHAN and 6 others---Respondents

Civil Revision No.400 of 2010, decided on 29th June, 2010.

Civil Procedure Code (V of 1908)---

----O. XX, R.6, Ss. 2(2) & 152---Clarification of decree---Application for---Contents of decree---Suit having finally been decreed by the Trial Court in favour of plaintiffs, judgment debtors filed application under S.152, C.P.C. for clarification of decree passed in favour of the decree-holders---Said application had been accepted and clarification of decree ordered---Validity---While passing a decree, there should be formal expression of adjudication, which must be precise and deliberate---Under Order XX, R.6, C.P.C. the decree would agree with the judgment and should contain particulars of the claim; and also to specify clearly the relief granted---Decree and judgment were separate and distinct documents and it was a decree that had to be executed---Decree should be self-contained and capable of execution, without reference to any other document---Under S.152, C.P. C., where the two documents, did not agree the court could correct the decree and also had inherent power to bring them in consonance with each other--- While exercising powers under S.152, C.P.C. for correction/amendment in the decree, the court had together material from the judgment---In the present case, the Trial Court, while deciding the issue of relief, had given explanation, but in decree, no explanation of the rights of the parties had been specified--Apparently, the decree before amendment/clarification was not clear and was ambiguous, as such was not executable---By making the necessary clarification in the decree in accordance with S.152, C.P.C., no illegality or irregularity had been committed by the Trial Court---After clarification the decree had become absolutely in consonance with the judgment passed by the Trial Court and had become executable---Impugned order, was upheld, in circumstances.

Abdul Ghani Mashwani for Petitioners.

Naeem Akhtar Afghan for Respondents.

Date of hearing: 10th June, 2010.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1471 #

2010 C L C 1471

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Dr. LIAQUAT ALI---Petitioner

Versus

ASHFAQ AHMED---Respondent

Civil Revision No.16 of 2009, decided on 30th April, 2010.

Civil Procedure Code (V of 1908)---

----S. 115---Suit for damages---Revision petition---Suit was filed by the plaintiff through his attorney---Defendant along with his written statement filed application contending that no valid power-of-attorney existed in favour of said attorney---Trial Court allowing said application of defendant, dismissed the suit vide impugned order and the plaintiff had sought setting aside of that order being contrary to law and facts in revision---Revision petition was also filed by the same attorney---Impugned order showed that despite giving several opportunities, alleged attorney of the plaintiff had failed to produce power-of-attorney allegedly executed in his favour by the plaintiff before the Trial Court---Power-of-attorney filed along with revision petition did not pertain to the present case---Alleged attorney and the counsel for the plaintiff had tried to mislead the court by placing power-of-attorney on record, which was not relevant in the case, which was highly objectionable---Revision petition had been filed by a person having no valid legal authority vested in him for filing the petition on behalf of the plaintiff, petition was dismissed being not maintainable.

2006 SCMR 21 ref.

M. Rauf Hashmi for Petitioner.

Ashfaq Ahmed for Respondent.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1496 #

2010 C L C 1496

[Quetta]

Before Mrs. Seyda Tahira Safdar, J

GOVERNMENT OF BALOCHISTAN through Secretary Revenue, Board and another---Petitioners

Versus

RASHID and 3 others---Respondents

Civil Revision No. 177 of 2007, decided on 10th May, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration, permanent injunction and correction of entries in revenue record---Suit had concurrently been decreed by the courts below in favour of plaintiff---Plaintiffs claimed themselves to be the owners of land in question which according to them devolved on them as their ancestral property, which was purchased by their predecessor-in-interest---Defendant/Provincial Government did not deny the title of the plaintiffs to the extent of landed property purchased by their predecessor, but according to the defendant land in question was different from the one as mentioned---Burden was on the plaintiffs to establish their title in respect of property in question as same existed in the name of Government---Plaintiffs though had asserted execution of sale-deed in favour of their predecessor in respect of suit property, but they failed to produce sale-deed during course of trial---No evidence was available on record about ownership and possession of land in question in favour of the plaintiffs---Despite the same, the Trial Court and Appellate Courts relied on oral evidence so produced---Title of a party could not be decided on such set of evidence---Both the courts below had failed to appreciate the evidence and material properly, while arriving to the conclusion which was not in accordance with law and facts---Plaintiffs had completely failed to establish their title on the basis of evidence produced by them---Plaintiffs, in circumstances, were not entitled to the relief as prayed by them; and as granted to them by the Trial Court and upheld by the Appellate Court---Petition though was barred by more than three months, but impugned orders being contrary to law and facts were illegal and void, no limitation would run against a void order---Delay in filing revision petition, was condoned, in circumstances---Impugned orders were set aside and suit filed by the plaintiffs stood dismissed being without merits---Entry in question in record of rights stood restored in favour of defendant/ Provincial Government.

Naseer Ahmed Bangulzai, A.A.-G. for Petitioners.

Iqbal Shah for Respondents.

Date of hearing: 25th November, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1507 #

2010 C L C 1507

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD RASOOL and 4 others---Petitioners

Versus

ABDUL GHAFOOR and another---Respondents

Civil Revision No. 433 of 2007, decided on 15th February, 2010.

Specific Relief Act (I of 1877)---

----Ss. 9, 42 & S4---Suit for declaration, possession and permanent injunction-Suit by the plaintiff had concurrently been decreed---Defendants alleged that material facts present on record and evidence produced by the parties were not considered, but the defendants could not point out the facts and material which allegedly were not considered---Even during course of arguments counsel for the defendants had failed to specify such instances-Trial Court before recording evidence had framed issues separately and gave findings on the same--Legal objections raised by the defendants, pertaining to valuation of suit, non-existence of cause of action and misjoinder of parties, were decided in the negative---Defendants raised objection in respect of valuation of the suit as assessed by the plaintiff, but no specific evidence in that regard had been brought on record by the defendants---Valuation of suit for court fee and jurisdiction as assessed in the plaint by the plaintiff was to be relied upon, until proved contrary--Plaintiff, in circumstances, was the owner of property in question and he having been deprived of his possession by the defendants, Trial Court had rightly decided that issues in favour of the plaintiff---Defendants could not prove their assertion that plaintiff had sold suit property to one of the defendants---Suit had rightly been decreed in favour of the plaintiff and defendants having failed to make out any case for revision of impugned judgments, concurrent judgments were upheld.

Sultan Muhammad for Petitioners.

Mian Bader Munir for Respondents.

Date of hearing: 19th October, 2009.

CLC 2010 QUETTA HIGH COURT BALOCHISTAN 1527 #

2010 C L C 1527

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

Syed SOHBAT SHAH and others---Petitioners

Versus

MUHAMMAD KHAN and another---Respondents

Civil Revision No. 379 of 2008, heard on 6th July, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 47 & O.XXI, R.10---Suit for declaration and injunction---Execution of decree--Suit was decreed with consent of parties taking into consideration report submitted by local Commissioner after inspection of site, to which no objection was raised by the plaintiffs/decree-holders--Application for execution of decree filed by the decree-holders had concurrently been dismissed by two courts below---Decree-holders in their execution petition sought possession of land which according to claim of defendants, was in their possession from time immemorial---Contention of defendants was that land sought to be obtained by the decree-holders was unsettled land and that decree-holders with mala fide intention had included said Khasra and Khatooni numbers of their property situated at northern side of the property---Contention of decree-holders that land existed in between the boundaries as mentioned in the plaint be handed over to them as they being decree-holders were entitled for the same, was repelled by the Executing Court concluding that no dispute existed over the said land---Court even warned the decree-holders to be careful in future and not to file any suit without any cause of action--Held, decree-holders who had consented for the order and decree before the Trial Court, could not resile from their stand taken before the Trial court at relevant time---Decree-holders who admitted to be in possession of decreed property, later on could not claim possession of some other property in the garb of the decree made in their favour---Both courts below had come to the right conclusion, which needed no interference by High Court in revision.

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

----S. 47---Execution of decree-Court in execution of decree could not go behind the decree.

Amanullah Kanrani for Petitioners.

Nouroz Khan for Respondent No.1.

Tariq Ali Tahir Addl. A.-G. for the State.

Date of hearing: 30th April, 2010.

Supreme Court Azad Kashmir

CLC 2010 SUPREME COURT AZAD KASHMIR 1749 #

2010 C L C 1749

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C. J. and Muhammad Azam Khan, J

Civil Appeal No.58 of 2009

WAQAS AHMED BAIG---Appellant

Versus

SAMARA MOIN and 9 others ---Respondents

(On appeal from the order of the High Court dated 6-3-2009 in Writ Petition No. 812 of 2008).

Civil Appeal No 59 of 2009

MARYAM ALI SHAHEEN and another---Appellants

Versus

SAMARA MOIN and 8 others---Respondents

(On appeal from the order of the High Court dated 6-3-2009 in Writ Petition No.812 of 2008)

Civil Appeals Nos. 58 and 59 of 2009, decided on 7th May, 2010.

(a) Azad Jammu and Kashmir State Subject Rules, 1980---

---- Rr.6 & 10---Azad Jammu and Kashmir Nomination Board Rules, R.20---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Writ petition---Maintainability---Educational institution---Respondents filed writ petition against the appellants in which domicile certificates and permanent resident certificates issued in favour of the appellants by District Magistrate, were challenged---High Court accepting writ petition cancelled domicile certificates and permanent resident certificates issued in favour of the appellants---Appellants in their appeal before the Supreme Court had challenged maintainability of writ petition on the ground that alternate remedy was available to the respondents under State Subject Rules, 1980 and under Azad Jammu and Kashmir Nomination Board Rules, but same having not been availed by the respondents, writ petition was not maintainable---Validity---No doubt the remedy under State Subject Rules, 1980 and R.20 of Azad Jammu and Kashmir Nomination Board Rules, was provided, but appeal before the Government or Azad Jammu and Kashmir Council could not be decided expeditiously, particularly in the circumstances when matter related to nomination in the Professional Colleges; where classes had already started; and time consumed in persuading the remedy by way of appeal before the Government or the Azad Jammu and Kashmir Council would affect the career of both the appellants and respondents---Only adequate and efficacious remedy was filing of a writ petition---Remedy by way of appeal before the Government and Azad Jammu and Kashmir Council was not an adequate and efficacious remedy and the respondents, had only adequate remedy by way of writ petition---Writ petition was maintainable, in circumstances.?

PLD 1997 SC (AJ&K)l; Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261; Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551; Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761; Maria Tazarrat and another v. Abid Hussain Dar and 5 others PLD 2006 SC(AJ&K) 10and Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1 ref.

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

----Ss.42 & 44---Appeal to Supreme Court---Cancellation of domicile certificates---Two appeals had arisen out of the judgment of High Court, whereby High Court had cancelled domicile certificates and permanent resident certificates issued in favour of the two appellants by District Magistrate---Nomination Board was directed to withdraw the nomination of appellants from the Medical Colleges and nominate candidates other than the appellants---Appellant despite being at serial No.1 in merit list, was not given admission on the ground that he was not permanent resident of district concerned---Father of said appellant was born in district concerned and he was brought up and educated in said district---Candidate obtained State subject and domicile certificate from said district; his grandfather was burried in said district and his family had landed property in that district---High Court despite the facts had cancelled domicile certificate and permanent resident certificate duly issued to the appellant by competent authority---On the basis of evidence produced by said appellant, it could safely be held that appellant was permanent resident of the concerned district; and State Subject and domicile certificate and permanent resident certificate, had been correctly issued in his favour after thorough inquiry---High Court, in circumstances, was not justified in declaring that appellant was not a permanent resident of the district ---Judgment of High Court to the extent of said appellant was set aside and writ petition to his extent was dismissed, however it had fully been proved that the other appellant who belonged to refugee family was permanently settled in district other than concerned district---Father of the said candidate was having a business in the concerned district and permanently settled there and intended to reside there in future, was not of any help to her case because intention of a person for choosing a place for permanent residence, had to be gathered from the facts---Person could settle anywhere for earning the livelihood or for business purpose, but that place could not be said to be his permanent place of residence; and on the basis of having business in any place the domicile certificate or permanent resident certificate could not be issued---Contention of counsel for said appellant that her maternal grandmother died and was buried in the concerned district, all her relatives from maternal side were buried there, which had shown her intention to settle permanently in the said district, had no substance---Held, for the purpose of domicile the domicile of the father had to be followed---Domicile could not be claimed on the basis of residence of maternal relatives---Appeal filed by said appellant, had no substance, her appeal was dismissed.?

Miss Rakshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others PLD 1986 SC (AJ&K) 1 and PLD 1997 SC (AJ&K) 1 ref.

Mujahid Hussain Naqvi for Appellant (in Civil Appeal No.58 of 2009) .

Kh. Muhammad Maqbool War for Respondents Nos. 2 and 3 (in Civil Appeal No.58 of 2009).

Asghar Ali Malik for Appellants. (in Civil Appeal No. 59 of 2009) .

Ch. Muhammad Ibrahim Zia for Respondents Nos. 2 and 3. (in Civil Appeal No. 59 of 2009).

Date of hearing: 16th April, 2009.

CLC 2010 SUPREME COURT AZAD KASHMIR 1866 #

2010 C L C 1866

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhter Chaudhry, C.J. and Muhammad Azam Khan, J

MILITARY ESTATE OFFICER, HAZARA CIRCLE and another---Appellants

Versus

Ch. MANZOOR HUSSAIN and 3 others---Respondents

Civil Appeal No.15 of 2008, decided on 30th April, 20W.

(On appeal from the judgment of the High Court dated 15-12-2007 in Civil Appeal No.289 of 2006).

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

----Ss.4, 11, 18, 23 & 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Enhancement of amount---Appeal to Supreme Court---Respondent/landowner being aggrieved from amount of compensation of acquired land as determined by Collector Land Acquisition, filed reference before Referee Court, which court enhanced the price of land---Feeling dissatisfied from the findings of the Referee Court, authorities filed appeal before the High Court---Appeal having been dismissed by the High Court, authorities had filed appeal before the Supreme Court against judgment of High Court---Land in question which was situated on the both sides of main road, was commercial land and some portion of land was situated within the limits of municipality and shops were adjacent to said land---Such fact had not been denied by the authorities---Oral and documentary evidence on record had fully proved that market value of land in question was much higher---Authorities could not produce any evidence in rebuttal of said evidence---Concurrent findings on the question of fact regarding market value of land in question---Price fixed by Referee Court was upheld by the High Court---No misreading or non-reading of evidence had been pointed out by the counsel for the authorities---Concurrent findings on the question of fact would not be set aside, unless some misreading or non-reading of evidence was committed by the courts below---Where there were concurrent findings, then second appeal would not lie; and while considering second appeal, Supreme Court would not embark upon fresh appreciation of evidence, even if erroneous view had been drawn by the courts below---Appeal was dismissed, in circumstances.

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

----Arts.117 & 118---Burden of proof---Onus of proof would not remain fixed on one party---When some evidence was led by one party, then it would shift on other party---If the other party would fail to produce any evidence, then the evidence of the first party would be deemed to have been admitted by the other party.

Khan Muhammad Badar and others v. Mst. Roshni and others 2008 SCR 46; Akbar Ali and 4 others v. Ehsan Ellahi PLD 1980 Lah. 145 and Ghulam Nabi and others v. Mst. Zainab Bibi and others 2005 MLD 153 ref.

----Arts.132 & 133---Cross-examination---Where a portion of statement was not challenged during the cross-examination, that would be deemed to have been admitted.

Sardar Muhammad Razik Khan for Appellants.

Ch. Jahandad Khan for Respondent No.1.

Date of hearing: 30th April, 2009.