CLC 2011 Judgments

2011 C L C 1641

[Bar Council Election Tribunal, Quetta]

Before Jamal Khan Mandokhail, J

SHAKEEL AHMED BALOCH----Petitioner

Versus

RETURNING OFFICER and another----Respondents

Election Petition No.1 of 2011, decided on 30th May, 2011.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 3(c) & 61---Election Tribunal---Formation and jurisdiction---Request to constitute Election Tribunal---Scope---In relation to an election dispute of a Provincial Bar Council, the Chief Justice of concerned High Court has to nominate a Judge of, High Court as an Election Tribunal---As the Tribunal has been assigned jurisdiction to hear election dispute, therefore, after announcement of election schedule, every dispute arising out of election of that period is triable by the Election Tribunal---At any time, either after announcement of an election schedule or the moment an election petition is received in accordance with Rule 61 of Pakistan Legal Practitioners an4 Bar Councils Rules, 1976, the Chief Justice has to constitute a Tribunal accordingly, however, in case the Tribunal is not constituted, concerned Bar Council can request the Chief Justice for needful to be done---In Pakistan Legal Practitioners and Bar Councils Act, 1973 or Legal Practitioners and Bar Councils Rules, 1976, no request of a Bar Council is required for constitution of an Election Tribunal.

(b) Administration of justice---

----Procedure, deviation from---Effect---When a statute provides an act to be done in a particular manner, then it has to be done accordingly and deviation from the procedure vitiates the entire proceedings.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 3(c), 26, 61, 62 & 63---Election petition---Maintainability---Objections, non filing of-Direct filing of election petition---Both candidates secured equal votes and Returning Officer decided the matter. by drawing lots in accordance with Rule 26 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, resultantly respondent won the toss and he was declared successful candidate---Petitioner assailed election on the ground of illegalities committed during election--Validity---Petitioner had directly approached Election Tribunal, without filing objection through a letter before Chairman Provincial Bar Council, for its onward transmission to Election Tribunal, therefore, proper procedure as provided by law was not followed---By not following the procedure, the Chairman of Provincial Bar Council had also acted illegally and petition was wrongly filed before Election Tribunal without resorting to the provisions of Rules 61 to 63 of Pakistan Legal Practitioners and Bar Councils Rules, 1976---Election petition was returned for proper presentation.

H. Shakil Ahmed for Petitioner.

Salahuddin Mengal, Returning Officer/Advocate-General for Respondent No.1.

Kamran Murtaza for Respondent No.2.

Date of hearing: 20th December, 2010.

2011 C L C 857

[Board of Revenue Punjab]

Before Muhammad Arshad Bhatti, Member (Judicial-VII)

NAZIR AHMAD---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), SIALKOT and another----Respondents

R.O.R. No.749 of 2010, decided on 4th February, 2011.

West Pakistan Land Revenue Rules, 1968---

----R. 19---West Pakistan Land Revenue Act (XVII of 1967), S.164---Appointment of Lamberdar---Office of Lamberdar' of Mauza concerned having become vacant, case was processed for appointment of a permanent Lamberdar in the Mauza---Two applications, one by the petitioner and one by the respondent, were received for such appointment---Respondent candidate who absented himself, was proceeded ex parte and petitioner was appointed as permanent Lamberdar---Appeal filed by the respondent was accepted by Executive District Officer and set aside the order of appointment of petitioner and respondent was appointed as Lamberdar---Validity---Affidavits from both sides were placed on record from the inhabitants of the village--Respondent was not heard by the District Collector and an ex parte order was passed behind his back---Executive District Officer .(Revenue) heard both the parties and found that respondent was most' suitable candidate for the post of Lamberdar from all angles as compared to the petitioner---Findings of the lower court could not be interfered with---Same was upheld, revision petition was dismissed and respondent would hold the office of Lamberdar.

2010 CLC 1190; PLD 1959 W.P (Rev.) 89; PLD 1958 W.P. (Rev.) 134 and PLD 1958 W.P. (Rev.) 60. ref.

Farooq Ahmad son of petition in Person.

Muhammad Kamran Rasheed for Petitioner.

Shahbaz Ahmad Tatlah for Respondent No.2.

2011 C L C 1398

[Board of Revenue Punjab]

Before Irfan Ali, Member (Judicial-VII)

ABDUL SATTAR----Petitioner

Versus

Mst. NAHEED AKHTAR through her uncle Muhammad Hadayat and another----Respondents

R.O.R. No.1447 of 2007, decided on 16th March, 2011.

Islamic Law---

----Inheritance---Original owner of property in dispute died leaving behind one daughter, one paternal uncle and one uterine brother---Daughter of deceased got 172 share of deceased, while remaining half of the property was given to paternal uncle of the deceased as residuary and Revenue Officer sanctioned mutation accordingly---Petitioner, who was uterine brother of deceased owner of property, challenged said mutation to the extent of one respondent who was paternal uncle of deceased and claimed that petitioner being uterine brother of deceased owner was entitled to 1/2 share of property as residuary---Deputy District Officer accepted appeal of the petitioner and set aside impugned order of Revenue Officer---Uncle of the deceased filed appeal against order of Deputy District Officer who restored mutation---Validity--Both subordinate courts had not perused the relevant provisions of law in depth and both had decided contrary to the provisions and spirit of law---Deputy District Officer (Revenue) in his order had found that the paternal uncle of the deceased was the rightful inheritor of half the share of the deceased's property as a residuary---Executive District Officer on the other hand had given opposite findings in his order stating that "uterine brother of the deceased was a close kin than the paternal uncle, who was a distant kin "---According to the table of residuaries in order of succession, a full paternal uncle was a residuary---In the present case, deceased was survived by only a daughter, who was share holder of a higher category, entitled to get 1/2 share of the property of her deceased father---Uterine brother of the deceased, as per the table of the shares was a sharer, but at serial No.9 of the shares, was entitled to get 1/6 share of the remaining property---Paternal uncle was residuary and the remaining property was to be divided among the residuaries, if there were no other share; and the claim of the sharers had been satisfied---Said important issues had been totally ignored in the decisions given by the lower courts---Impugned orders of both courts below were set aside and the matter was remanded to the District Officer (Revenue) to ascertain the shares in the property of the deceased according to law. ?

Petitioner in person.

2011 C L C 1624

[Board of Revenue Punjab]

Before Irfan Ali, Member (Judicial-VII)

MANZOOR AHMAD and others----Petitioners

Versus

MUHAMMAD ASHRAF and others----Respondents

R.O.Rs. Nos.1708 and 1729 of 2009, decided on 19th April, 2011.

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

----Ss. 10, 24, 25 & 30---West Pakistan Land Revenue Act (XVII of 1967), S.164---Allotment of land under Ejected Tenants Scheme--Resumption of land and allotment of resumed land as Lamberdari Grant---Petitioners who were allotted land under Ejected Tenants Scheme, introduced in 1952, were refused proprietary rights as the land allotted to them was within 5 miles radius of municipal limits---Board of Revenue on 1-6-1970 had directed that allottees of Ejected Tenants Scheme, who fell within 5-Miles of urban area, could not be dispossessed without giving them alternate land---District Officer (Revenue), without keeping said directions and without giving the petitioners chance of hearing, allotted said land to respondent as Lamberdari Grant---Before granting Lamberdari Grant to respondents, it was necessary for the District Officer (Revenue) and the Executive District Officer (Revenue) to examine the instructions of the Board of Revenue dated 1-6-1970 regarding the possibility of alternate land to allottees---No doubt, no one could be given proprietary rights in the prohibited zone, but the Board of Revenue's directions, starting from 1970 onward were meant to accommodate the allottees, who fell within the prohibited zone---Petitioners could not be dispossessed without ascertaining whether they had been given an opportunity for alternate land; and whether they had availed that opportunity or not---Lamberdari Grant given to the respondents by dispossessing petitioners, was unjustified and was not sustainable---Impugned orders passed by District Officer (Revenue) and Executive District Officer (Revenue), were set aside by Board of Revenue and the matter was remanded to the Commissioner, with the direction that the petitioners' case be examined in the light of instructions of the Board of Revenue on the subject.

Ch. Iqbal Ahmad Khan for Petitioners.

Respondent No.1 in person.

Khalid Masood Rana for Respondent No.1.

Clerk of Counsel for Petitioner.

2011 C L C 1636

[Board of Revenue Punjab]

Before Irfan Ali, Member (Judicial-VII)

Qazi MUHAMMAD ASGHAR and 10 others----Petitioners

Versus

ADMINISTRATOR, MARKET COMMITTEE, ARIFWALA and 24 others----Respondents

R.O.R. No.1398 of 2009, decided on 13th April, 2011.

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

----Ss. 70 & 164---West Pakistan Land Revenue Rules,, 1968, R.6-A---Sale of property---Assessment of price---Reassessment---District Price Assessment Committee, fixed/assessed price of property in question as Rs. 3,00,000 per marla---Reassessment of price of property was ordered by Executive District Officer (Revenue) on appeal---District Price Assessment Committee in collusion with the respondent reassessed the price Rs.1,00,000 per marla thus depriving not only the petitioners/owners of the property, but also the Government of millions of rupees---District Price Assessment Committee had also violated the instructions given in the order of Chief Minister regarding price of the specific plots---Under R.6-A of West Pakistan Land Revenue Rules, 1968, lower forum was not supposed to remand the case for fresh assessment of the price---Petitioners who were owners of the land in question being entitled to get 1/3rd of the price of the shops in question, before changing the price of land in question, should have been given notice to that effect, but neither the petitioners had been issued a notice nor they had been given an opportunity of hearing; and while proceeding ex parte against the petitioners, the rates of the property in question had been changed/revised by the District Price Assessment Committee---Impugned order was set aside and case was remanded to Executive District Officer (Revenue) by Board of Revenue, to conduct an enquiry into the matter of fresh price assessment with direction that price of the property would be reassessed by District Price Assessment Committee in accordance with market value as existed in 2006.

Qazi Abdul Waheed for Petitioners.

Malik Mukhtar Hussain Gorchha for Respondents Nos.3 to 6, 10 to 12, 14, 15, 17 and 18.

Muhammad Aslam, Secretary, Market Committee.

Haji Muhammad Sahrif, purchaser.

2011 C L C 1645

[Board of Revenue Punjab]

Before Ubaid Rubbani Qureshi, Member (Consolidation)

Syed ZIL-E-KAFL, ABBAS SHAH----Petitioner

Versus

Syed QALANDAR JAHANIAN and 3 others----Respondents

ROR No.542 of 2008, decided on 24th March, 2011.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---West Pakistan Land Revenue Act (XVII of 1967), S.164--Consolidation of holdings---Consolidation scheme of mouza concerned was confirmed by Consolidation Officer---Respondents filed an appeal before-Deputy District Officer (Consolidation) with delay of two years, two months and twenty days, who dismissed the same---Executive District Officer (Revenue) .accepted appeal filed by the respondents against order of Deputy District Officer (Consolidation) and mode some amendments in the wandas of the parties---Validity---Executive District Officer, (Revenue) had confined himself to the exchange of land only and did not discuss merits/demerits of the exchange; and the arguments advanced by the counsel of both the parties---Record and site map prepared by the Patwari halqa, corresponded to the order of Deputy District Officer (Consolidation)---Order of Deputy District Officer (Consolidation) was upheld; order of Executive District Officer (Revenue), being not maintainable as against the spirit of consolidation, was set aside, in circumstances.

Muhammad Irshad Chaudhary for Petitioner.

Malik Sir Buland for Respondent No. 1.

2011 C L C 1762

[Punjab Board of Revenue]

Before Akhlaq Ahmad Tarar, Senior Member

MUHAMMAD SHARIF and others----Petitioners

Versus

DISTRICT OFFICER and others----Respondents

R.O.Rs. Nos.1860 of 2009, 258 and 2330 of 2010, decided on 5th May, 2011.

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

----Ss. 10 & 30---West Pakistan Land Revenue Act (XVII of 1967), S.164---Leasing out State land through open auction under Temporary Cultivation Lease Scheme---Grant of proprietary rights to lessees---Petitioners were leased out State land through open auction under Temporary Cultivation Lease Scheme---When Government decided to grant proprietary rights to lessees of State land under said scheme, petitioners also filed application along with others for grant of proprietary rights---Application of the petitioners were rejected on the ground that original auction proceedings did not contain the approval of the District Collector---Petitioners were highest bidders and were leased out land in question in accordance with law/Policy of the Government---Bids were confirmed by the A.C./Collector---Petitioners had been cultivating the land leased out to them for the last number of years and paying Government dues regularly and fulfilled all the terms and conditions of the scheme for grant of proprietary rights and in identical cases, other lessees had been granted proprietary rights---Proprietary rights had also been granted in similar cases to the allottees despite the fact that the bid sheet was not approved by the District Collector---If the cases of similar nature had already been decided in favour of the allottees, same concession should have been granted to the petitioners on the basis of rule of consistency---Impugned orders were set aside by Board of Revenue allowing the right of grant of proprietary rights to the petitioners---District Collector was directed to process files of the petitioners, accordingly.

2006 CLC 1555 and 2004 CLC 1337 ref.

2002 SCMR 71 and PLD 1986 Revenue 62 rel.

Syed Mukhtar Abbas for Petitioner (in R.O.R. No.1860 of 2009).

Muhammad Irshad Chaudhary for Petitioners (in R.O.Rs. Nos.258 and 2330 of 2010).

Hafiz Khalil Ahmad for Respondent No.4 (in R.O.R. No.258 of 2010).

2011 C L C 1052

[Board of Revenue Sindh]

Before S. Moinuddin, Member (Judicial-II)

Syed IRFAN ALI SHAH----Appellant

Versus

AIJAZ NABI and 4 others----Respondents

Case No.SROA/136 of 2009, decided on 2nd February, 2011.

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

----Ss. 161 & 164---Appeal to Board of Revenue---Appeal against the order by the Executive District Officer (Revenue) whereby the proceedings under S.164 of West Pakistan Land Revenue Act, 1967 were stopped till the final disposal of civil suit---Counsel for the appellant had contended that appellant was owner of the land to the extent of his share in un-partitioned joint owned property and that false/bogus title/Khata was created in connivance with some corrupt officials of the lower functionaries in the names of respondents---Counsel for the respondents contended that as the appellant was trying to grab the property in question, he had filed suit before the civil court, which was pending---Counsel for the respondents had prayed that matter being sub judice before the civil court, impugned order of the Executive District Officer (Revenue), could be maintained---Validity---Parties were directed to approach the competent court of law to decide the issue regarding the title of person.

Appellant in person.

Hareesh Chander for Respondent.

2011 C L C 1649

[Election Tribunal Balochistan]

Before Muhammad Noor Meskanzai, J

Sardar MUHAMMAD YAQOOB KHAN NASIR----Petitioner

Versus

Sardar MUHAMMAD ISRAR TAREEN and 9 others----Respondents

Election Petition No.8 of 2008, decided on 13th June, 2011.

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

----Ss. 50, 52 & 63---Election petition-Non-filing of return of election expenses---Effect on competency of election petition---Counsel for returned candidate had urged that the election petition by the petitioner/unreturned candidate was incompetent for non filing of return of election expenses and that non-submission of return of election expenses within a stipulated period would constitute a valid ground for the dismissal of petition---Validity---Provision of section 63 of Representation of the People Act, 1976, whereby election petition could be dismissed, had left no room for doubt that S.50 of the Act, could not be pressed into service for the dismissal of election petition---Said provision could only be resorted to by the Chief Election Commissioner and not by Election Tribunal---Even if, a person was found to be guilty of an illegal practice for his failure to submit the election expenses, the order of disqualification could only be made by the Chief Election Commissioner and not by the Election Tribunal, as the power under S.50 of Representation of the People Act, 1976 was not exercisable by the Tribunal---Petitioner, in circumstances, had not lost his locus standi to file election petition on account of violating provisions of S.50 of Representation of the People Act, 1976.

2008 SCMR 1 ref.

Meraj Khalid v. Ashiq Ali Dial 1993 MLD 1911 rel.

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

----Ss. 52, 54 & 55---Election petition---Objection on maintainability of petition---Issue involved. in the case was whether election petition was liable to be dismissed for non-compliance of provisions of Ss.54 & 55 of the Representation of the People Act, 1976---Returned candidate raised objection on maintainability of the petition for want of compliance of Ss.54 & 55 of the Representation of the People Act, 1976---Validity---Contention with regard to strict compliance of Ss.54 and 55(3) of the Representation of the People Act, 1976, were of no avail---Returned candidate filed application before Election Tribunal seeking dismissal of petition on said ground---Tribunal while allowing said application dismissed the petition---Order passed by Election Tribunal was set aside by the Supreme Court---No court, Tribunal or authority, could re-open a matter closed by the apex court---In view of the judgment of the apex court issue "whether the petition was liable to be dismissed for non-compliance of provisions of Ss.54 & 55 of the Representation of the People Act, 1976", was resolved in the negative and petition was found to be maintainable; in circumstances.

Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250 and S.M. Ayub v. Yousaf Shah PLD 1967 SC 486 rel.

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

----Ss. 33, 52, 68 & 69---Election petition---Petitioner/unreturned candidate had levelled allegations of commission of illegal and corrupt practices and massive rigging in process of election in 23 Polling Stations---To prove said allegations, petitioner, besides himself had produced ten prosecution witnesses and court witness---Statements of said witnesses, particularly those witnesses who conducted the election and performed their duties as Polling Staff/Officials, had established the fact that illegal and corrupt practice was committed and massive rigging was done in the Polling Stations---Statement of court witness had fully corroborated the statements of prosecution witnesses which showed that massive rigging was committed and provisions of S.33 of the Representation of the People Act, 1976 had been violated---Statements of Polling Staff, particularly the Presiding Officer and others had fully established allegations levelled by the petitioner---Rigging had taken place under a planned and managed programme for and the object was achieved through the process which was carried out by Booth Capturing---Allegations of illegal, corrupt and massive rigging in process of election levelled by the petitioner, in circumstances, had fully been proved---Proposition that the election petitions were treated to be quasi criminal proceedings, the benefit of doubt had to be extended to the returned candidate, was not applicable in the case as the returned candidate had not been able to create any doubt or dent in the case of the petitioner justifying the dismissal of election petition on such ground---Election in 23 Polling Stations was established to have been conducted in utter disregard of provisions of S.33 of the Representation of the People Act, 1976, which had badly affected the result---Such violation could not be lightly ignored---Votes of said Polling Stations were declared invalid and in the circumstances declaring the entire election void, would be unjustified---Valid votes polled in said 23 Polling Stations, even if counted in favour of returned candidate, he could not be declared to have been legally elected as returned candidate---Notification whereby respondent was declared as returned candidate, was set aside and the petitioner was declared returned candidate---Election Commission was directed to notify the petitioner as returned candidate from the constituency in question.

2010 SCMR 1271; 2008 SCMR 1; 1986 CLC 1119; PLD 1966 E.C. 121 and 1998 CLC 2033 ref.

PLD 1996 Lah. 98; 1987 MLD 1372; 2003 YLR 3039; 1986 CLC 2499; 1989 MLD 4882 and 1995 CLC 1426 distinguished.

Ehsanullah Reki v. Lt. General (R) Abdul Qadir Baloch and others 2010 SCMR 1272; Abdul Hafeez Khan v. Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 and Mukhtar Hussain Shah v. Wasim Sajjad PLD 1986 SC 178 rel.

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

----S. 52---Election petition---Allegation was that ballot papers in two Polling Stations were issued more than the total registered votes and cast---Burden to prove the allegation was on the petitioner, who produced 10 witnesses besides recording his own statement and of court witness---No material was found in said statements to prove the fact that more ballot papers than the actual registered votes were issued---Petitioner, in circumstances had failed to prove the allegation, which was resolved in the negative.

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

---S. 52---Election petition--Allegation was that fake votes were stuffed in a Polling Station by putting forged thumb-impressions and fictitious number of Identity Cards---Petitioner had levelled the allegation of massive rigging and corrupt and illegal practice with regard to 23 Polling Stations, but Polling Station in question did not find mention in the list of the 23 Polling Stations---Returned candidate in the Polling Station in question had obtained 36 votes, whereas the majority of votes were obtained by the petitioner---Number of rejected votes were more than the votes obtained by any of the candidates--Petitioner, in circumstances, had not been able to prove the allegation, which was decided against him.

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

----S. 33---Voting procedure---Object behind provisions of S.33 of Representation of the People Act, 1976 was to ensure fair, free and transparency of election---Violation of said provision, would lead to contrary view; and departure therefrom would tantamount to make the law ineffective; and would pave a way for bogus votes.

Dr. Hamid Khan Achakzai v. Vehram Khan Achakzai 2000 MLD 1832 rel.

Muhammad Riaz Ahmed, Ayaz Swati and Syed Ikhlaq Shah for Petitioner.

Ch. Ali Muhammad, Baz Muhammad Kakar and Iqbal Tareen for Respondents.

Dates of hearing: 10th, 11th, 17th, 18th and 20th May, 2011.

2011 C L C 1271

[Election Tribunal Peshawar]

Before Syed Sajjad Hassan Shah, J

BAZ MUHAMMAD KHAN----Petitioner

Versus

Haji SHER AZAM KHAN and 8 others----Respondents

Civil Miscellaneous No.3 of 2010 in Election Petition No.53 of 2008 and Civil Miscellaneous No.10 of 2010 in Election Petition No.32 of 2008, decided on 2nd May, 2011.

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

----Ss. 52, 55(3) & 63---Civil Procedure Code (V of 1908), S.139 & O.V, R. 15---Election petition---Non-verification of petition and its annexure---Respondent's application for dismissal of election petition for such failure of petitioner---Petitioner's plea that his petition verified on 27-3-2008 was attested by Oath Commissioner on 28-3-2008, whereas documents appended therewith were mostly copies of public record, which were not required to be attested---Validity---Expression "schedule or annexure" was not defined in Representation of the People Act, 1976---Such documents were supporting evidence of allegations mentioned in election petition, thus, failure of petitioner to verify same would not be fatal to prosecution of election petition---Omission to verify on oath some of annexures would not be fatal for same neither going to root of allegations nor disclosing any additional allegation of substantive character nor furnishing better particular of allegations made in election petition---Election Tribunal dismissed such application in circumstances.

Eng. Iqbal Zafar Jhagra v. Khalil-ur-Rehman 2000 SCMR 250; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Malik Umer Aslam v. Sumera Malik and another PLD 2007 SC 362; Amir Lal v. Ishwar Dad and others 2007 SCMR 1776; PLD 2004 SC 570; PLD 1991 SC 2293; 2010 SCMR 1877; 1994 MLD 2293 and 1997 MLD 612 ref.

Molvi Abdul Qadir and others v. Molvi Abdul Wassay and others 2010 SCMR 1877 and S.M. Ayub v. Syed Yousaf Shah and 2 others PLD 1967 SC 486 rel.

Abdul Latif Afridi and Malik Naeem Jan for Petitioner.

Athar Minallah and Barrister S. Masood Kausar for Respondents.

Dates of hearing: 11th October, 2010 and 17th January, 2011.

2011 C L C 48

[Election Tribunal Punjab]

Before Sh. Najam-ul-Hasan, J

Mst. ASHIFA RIAZ FATYANA---Petitioner

Versus

Mst. NAZIA RAHEEL and 10 others---Respondents

Election Petition No. 127 of 2008, decided on 13th August, 2010.

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

----S. 39(6)---Recounting of ballot papers---Principles---Petitioner assailed election on the ground that she was not satisfied with counting of ballot papers and Returning Officer did not recount the votes on her request---Validity---If petitioner wanted to have the entire votes recounted by Returning Officer, she should have satisfied with cogent reasons that her request was reasonable---Vague allegations not containing adequate statement of material facts could not be granted as a matter of right---Petitioner did not lead any evidence to establish that Presiding Officers had not counted the votes correctly or that double votes had been counted or even that valid votes of petitioner were rejected---Returning Officer had rightly declined to recount the votes in circumstances.

(b) Interpretation of statutes---

----Provisions entailing penal consequences---Filling of lacunae---Scope---Provisions of law which entail consequences are mandatory in nature and lacunae entailing penal consequences of such mandatory provisions cannot be allowed to be filled.

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

----Ss. 55(3) & 63(a)---Civil Procedure Code (V of 1908), O. VI, R.15---Verification of election petition' andpleadings'---Distinguished---Bifurcation of paragraphs, failure of---Election petition did not carry verification of petition with bifurcation of paragraphs as to which the petitioner verified on her own knowledge and which paragraphs she verified upon information received and believed to be true---Effect---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 S. 63(a) of Representation of the People Act, 1976, hence the same were mandatory and must be fulfilled exactly---If a law required a particular thing to be done in a particular manner, it should have been done in the same manner, otherwise the command of Legislature was not obeyed---Verification without reference to numbered paragraphs was fatal and election petition was liable to be dismissed---Petitioner failed to prove the case beyond any shadow of doubt---Petition was dismissed in circumstances.

Engineer Jameel Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914 and Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 rel.

Muhammad Shehzad Shaukat for Petitioner.

Muhammad Iqbal-IV for Respondent No. 1.

Muhammad Irfan Zia for Respondent No. 7.

Date of hearing: 21st July, 2010.

2011 CLC152

[Election Tribunal, Punjab]

Before Umar Ata Bandial, J

Mian NAJEEB-UD-DIN AWASI---Petitioner

Versus

AMIR YAR and others---Respondents

E.P. No. 46 of 2008 and C.M. No. 1 of 2009, decided on 2nd April, 2010.

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

----Ss. 55(3) & 63 (a)---Qanun-e-Shahadat (10 of 1984), Arts. 87 & 88---Election petition---Public documents---Non-verification---Photo copies of public record---Returned candidate sought dismissal of election petition on the ground that documents attached with petition were not verified by petitioner---Validity---Documents forming subject matter of scrutiny pertained to record kept by Election Commission of Pakistan under the provisions of Representation of the People Act, 1976, record of University of Balochistan, judicial record and police record---Such documents fell within the categories of public documents comprising record of acts of public officers, record of judicial proceedings and documents required to be maintained by public servants under the law, thus such documents qualified as public documents---Statutory prescription of penal consequence for non-compliance with requirements of S. 55(3) of Representation of the People Act, 1976, conveyed a clear statutory intent---Material sustaining allegation made in an election petition, whether documentary or oral, must be reliable and truthful otherwise election petition was liable to dismissal---Personal verification of election petitioner on annextures and schedules attached to his petition fixed upon him the responsibility for copies of such documents being genuine and for correctness of allegations made in his election petition---Petitioner could be punished if his verification proved false---Petitioner's verification lent credibility to evidence relied by him and assured seriousness of his claim---Such statutory precaution filtered out the false and frivolous claims thereby avoiding waste of Election Tribunal's time and also saving undue harassment to returned candidate---By judicial precedent only exception to such rule would be those documents that had intrinsic probative value under the law---Such documents were certified true copies of public documents as envisaged by Art. 87 of Qanun-e-Shahadat, 1984---Photocopy of public documents was no good than a piece of secondary evidence which could not have any intrinsic probative value let alone the comfort of genuineness of a document demanded under Representation of the People Act, 1976---For such photocopy documents, requisite credibility might lent to it upon verification by an election petitioner---Photocopies of annextures attached to election petition did not bear verification of election petitioner, therefore, application filed by returned candidate was accepted-Petition was dismissed in circumstances.

Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362; Sardarzada Zafa Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 and S.M. Ayub v. Yousaf Shah PLD 1967 SC 486 ref.

Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur PLD 2004 SC 570 distinguished.

Mian Ahmed Mehmood for Petitioner.

Ijaz Ahmed Ansari for Respondent No. 1.

2011 CLC 1515

[Election Tribunal Punjab]

Before Umar Ata Bandial, J

Mehr KHALIQ YAR KHAN----Petitioner

Versus

Ch. GHAYAS AHMAD MELA and others----Respondents

Election Petition No.118 of 2008 and C.M. No.1 of 2010, decided on 8th October, 2010.

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

----Ss. 39, 46, 52 & 64---Election petition---Recounting of ballot papers---Petitioner/unreturned candidate agitated before Returning Officer for recount of valid ballot papers cast in election---Plea of petitioner was accepted, but Returning Officer, confined the recount proceedings to two Polling Stations only---Subsequently without disclosure of grounds in the order-sheet, the Returning Officer further restricted the recount to only one Polling Station, whereas the petitioner apprehended that miscount or wrongful count was made at all the Polling Stations---Consolidation of result made by Returning Officer had shown, that errors were committed in the counting of votes done by Presiding Officers of several Polling Stations---With regard to recount, Returning Officer accepted plea raised by the petitioner to the extent of two Polling Stations, but in fact recount was limited to the result of only one Polling Station, without any reason for such curtailment---To that extent, the recount contemplated by the Returning Officer on record, conflicted with the recount conducted by him---Such default merited correction---Order whereby plea of the petitioner for recounting was accepted, had mentioned consent of the parties for limiting the recount proceedings to two Polling Stations---Consent of the parties, to the further restriction of the recounting of one Polling Station was not substantiated from the record---Even for the one Polling Station, where recount was conducted, the Returning Officer concluded that the votes had been wrongly treated as valid and counted in favour of respondent/Returned Candidate---Contention of the petitioner was that there being a total of 275 Polling Stations, exercise of recount must be continued---Record, in circumstances, contained elements justifying a wider recount, however, one aspect which required elaboration by counsel for the parties before proceeding further, was the number of sample Polling Stations to be recounted and characteristics which should define a sample---Case was fixed for submissions of counsel for parties on the said point.

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

---Ss. 39 & 64---Jurisdiction of Election Tribunal to recount of votes---Scope and extent---Salient grounds for ordering a recount of ballot papers were; that Election Tribunal could order opening of Packets, examination and inspection of the ballot papers in order to find out, whether the statutory provisions were duly observed by the statutory functionaries; while seizing of the Election Petition, the Election Tribunal was vested with the power to order recount, which power, however was to be exercised on the basis of some material, prima facie, establishing illegalities and irregularities in the count of Polled Votes; a party was not entitled to claim recount as a matter of course; and it was to be shown that there had been improper reception, refusal or rejection of votes; and such power of the Election Tribunal though quite extensive, but it was to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in the court.

Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867; Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC 542; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 and Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others PLD 2007 Lah. 141 ref.

Malik Noor Muhammad Awan for Petitioner.

Dr. Khalid Ranjha for Respondent No.1.

2011 C L C 391

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

MUSHRAF AHMAD---Petitioner

Versus

SHER AHMAD and another---Respondents

Civil Revision No. 17 of 2009, decided on 29th October, 2010.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction with application for temporary injunction---Plaintiff claimed ownership over suit land, but had admitted the tenancy in possession of defendant devolved to hint front the time of his forefathers---Plaintiff challenged the legal sanction of sale transaction between the defendants in respect of suit land; and also claimed taking back of possession, of it from defendant, just before institution of suit; and also prayed for perpetual injunction from the court to prevent the defendants front interfering into the suit land---Plaintiff had also prayed for temporary injunction through application filed under O.XXXIX, Rr.1 & 2, C.P.C. pending disposal of the suit---Trial Court granted temporary injunction---Appellate Court had set aside order of the Trial Court---Validity---Impugned order passed by the Trial Court, prima facie, gave ugly picture of ignorance of law and facts of the case for the reasons that; (a) order was unheard and ex parte; (b) it was ad interim, but final; (c) order was for maintaining status quo, but had created a situation of ante-status quo and (d) the order had shown that the Trial Court had granted the relief to the plaintiff at the early stage of the suit without going into procedural stages of the trial as the Trial. Court had used the term as "prayed for in the plaint"---Parties were at variance about the situation of the subject matter existing at the time the suit was instituted---Trial Court, in such situation, was first to inquire into things to determine the situation of the subject matter, then to pass any order---Trial Court did not bother to correct the state of affairs, even when the new situation came to its notice---Appellate Court, in circumstances, had rightly discarded the impugned orders passed by the Trial Court---Order passed by Appellate Court was not sufficient to bring the state of affairs as were at the day, the suit was instituted---Appellate Court did not issue any directives to the Trial Court to conduct any inquiry to bring back the situation of the subject matter existing at the day, the suit was instituted; and left the situation undetermined and let the parties in tug of war---Impugned order passed by the Appellate Court below, was maintained, and directive was issued to the Trial Court to hold an inquiry for determining the state of affairs in respect of the subject matter, prevailing at the day the suit was instituted.?

(b) Words and phrases---

--"Ad interim ", defined and interpreted.?

(c) Words and phrases---

----"Status quo", defined and interpreted.

Johar Ali for Petitioner.

Amjad Hussain for Respondents.

Date of hearing: 29th October, 2010.

2011 C L C 406

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

ZAFAR IQBAL---Appellant

Versus

Mst. NAGINA BEGUM---Respondent

Civil First Appeals Nos. 9 and 5 of 2009, decided on 2nd November, 2010.

(a) Islamic law---

----Suit for recovery of dower money---Plaint showed that plaintiff had claimed Rs.50,000 as dower amount, but the Trial Court decreed the suit to the tune of Rs.80,000---No explanation was available in the impugned judgment as to how the Trial Court extended the decree to the tune of Rs.80,000---Impugned decree passed by the Trial Court was modified by reducing same to Rs.50,000 as prayed for by the plaintiff.

(b) Islamic law---

----Suit for recovery of price of dowry articles---Plaintiff (wife) had given a list of her dowry articles in the plaint, which she left in the house of defendant (husband), while she was forced to leave his house by mother of the defendant---Defendant had admitted the fact that the dowry articles were in his house, but he contradicted on the price fixed by the plaintiff as to be more than the value---Defendant offered the plaintiff to fetch the same---Offer of the defendant was not proper as plaintiff lady who after marriage went to other city having long distance could not be compelled to revisit the house of defendant after dissolution of her marriage for collecting dowry articles, while relation was broken and she had gone to her father's home---Defendant was, liable to return and deliver the articles to the lady at the place she resided.

(c) Islamic law---

----Suit for maintenance amount---Trial Court had refused the grant of maintenance money in favour of the plaintiff, but without cogent reasons---Defendant had admitted in his written statement that the plaintiff had to leave her husband's house as a result of quarrel with her mother-in-law, when the defendant was out of his house at place of his posting--Statement of the defendant was sufficient to infer that plaintiff lady being steriled, might have faced taints and mental tortures from her mother-in-law as psyche of a mother in such a situation could be expected---Version of the lady was more believable than that of the version taken by the defendant, that the lady 'left the house with her free consent---Defendant was liable to pay maintenance money fixed Rs.2,000 per month from the date she was forced to leave his house up to the last date of Iddat.

Manzoor Ahmed for Appellant.

Muhammad Umer Farooq for Respondent.

Date of hearing: 2nd November, 2010.

2011 CLC 421

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

SHER WALI KHAN---Petitioner

Versus

Mst. KHOSH BEGUM---Respondent

Civil Revision No. 21 of 2010, decided on 2nd December, 2010.

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

----Ss. 9, 115, 151 & O.IX, Rr.6, 13---Limitation Act (IX of 1908), Arts. 164 & 181---Suit for recovery of dower, dowry articles and maintenance---Ex parte decree, setting aside of---Limitation--Defendant having remained absent from the court, faced the ex parte decree---Trial Court had refused to set aside the ex parte decree, on the ground that application for setting aside ex parte decree by the defendant under O.IX, R.13, C.P.C. was barred under Art.164 of the Limitation Act, 1908---First Appellate Court had upheld, ex parte decree passed by the Trial Court---Validity---When court would pass ex parte decree, the remedy against setting aside the same, had been provided under O.IX, R.13, C.P.C., whereby a defendant could file an application for setting aside the ex parte decree---Said application must be shielded with sufficient cause to justify the non-appearance of the defendant on the date the ex parte decree was passed; and said application must be submitted within 30 days under Art.164 of Limitation Act, 1908---Remedy under O.IX, R.13, C.P.C. was available to a defendant only when the ex parte decree had been passed, when the suit was called on for hearing---In the present case date of ex parte decree was fixed for filing of written statement, and said date was not a "date fixed for hearing"---Impugned ex parte decree passed by the Trial Court, did not come within the purview of O.IX, R.6, C.P.C.---Same was without jurisdiction, void and nullity in the eyes of law, which could be set aside by invoking inherent jurisdiction of the court under S.151, C.P.C., for the purpose not to allow it to defeat the ends of justice---Once the inherent powers were exercised under S.151, C.P.C., then limitation would be governed under Art.181 of Limitation Act, 1908 which provided the period of three years---Impugned orders passed by the courts below and the impugned ex parte decree, were set aside and suit was remitted to the Trial Court for disposal of the same on merits

1992 SCMR 707; 2006 SCMR 789; 1993 CLC 660; PLD 1975 SC 678; 1973 SCMR 103; PLD 1964 SC 97; 2009 CLC 351; PLD 1990 SC 813; 1985 SCMR 1228; PLD 1981 SC 21; 1989 CLC 825; 1987 CLC 1858; PLD 1991 SC 1104 and 1987 SCMR 733; ref.

(b) Words and phrases---

----"Hearing", meaning and connotation of.

1997 SCMR 733; PLD 1975 SC 878 and 1992 MLD 458 ref.

(c) Words and phrases---

----"Suit", meaning and connotation of.

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

----O. IX, R.13---Ex parte decree, setting aside of---Sufficient cause was pertinent to show when application for setting aside an ex parte decree would come within the purview of O.IX, R.13, C.P.C. only---Ex parte decree passed on a date which was not fixed for hearing of the suit, would become coram non judice and itself was sufficient cause for setting aside the same as on the date the decree could not be passed under the law.

Khanjer Baig and Muhammad Nadir for Petitioner.

Attaullah Khan for Respondent.

Date of hearing: 2nd December, 2010.

2011 C L C 1265

[Chief Court Gilgit-Baltistan]

Before Jalal-ud-Din, C J. and Sahib Khan, J

GOVERNMENT OF PAKISTAN through Secretary Defence and 2 others----Appellants

Versus

GHULAM HUSSAIN----Respondent

C.F.A. No 1 of 2007, decided on 30th November, 2010.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Ss.5 & 14, Arts.164 & 181---Suit for recovery of amount---Application for setting aside ex parte decree---Limitation---Defendants had not turned up on the date fixed for recording evidence though case was twice adjourned and Trial Court proceeded ex parte directing the plaintiff to produce evidence and adjourned the case---Trial Court, on the adjourned date, recorded evidence produced by the plaintiff and adjourned the case for arguments and on adjourned date Trial Court decreed the suit ex parte---Application filed by the defendants under O.IX, R.13, C.P.C. for setting aside ex parte decree having been dismissed by the Trial Court, defendants had filed appeal with application for condonation of delay in filing application for setting aside order of ex parte decree---Date on which ex parte decree was passed against the defendants, was not fixed by the Trial Judge himself as on that date he was busy in some other cases and the adjourned date was given by the office/reader of the court---Validity---Office/reader of the court was neither empowered nor competent to fix a matter for hearing, except could hardly adjourn and fix a future date for the information of the parties---As adjourned date was a date fixed by the office and not by the Judge for hearing, court below was not competent to pass an ex parte decree without issuing notice to opposite party---Period of limitation available to the defendants, was three years as provided under Art.181 of the Limitation Act, 1908, and not under Art.164 of the said Act---Application for setting aside ex parte decree which was within the time, was allowed and ex parte decree was set aside subject to payment of normal costs.

1981 PLD SC 21; 2001 CLC 1976; 1986 MLD 596 and 1988 MLD 1518 ref.

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

----O. IX, Rr.6 & 13---Limitation Act (IX of 1908), Art.164---Setting aside of ex parte decree---Limitation---Procedure---Order IX, R.6, C.P.C. was applicable only on the occasions specified therein; and the court was competent to proceed ex parte on that basis only---Law not only had recognized ex parte decree under O.IX, R.6, C.P.C., but even could be passed on subsequent adjourned date---Procedure laid down for setting aside the ex parte decree, either passed under O.IX, R.6, C.P.C. or on subsequent adjourned date was under O.IX, R.13, C.P.C.---Limitation provided under Art.164 of Limitation Act, 1908, was applicable to ex parte decree---Column-3 of Art.164 of Limitation Act, 1908, had specifically provided for both the situations, when the summons not duly served or a decree passed ex parte when the case was called on for hearing in the subsequent adjourned date.

(c) Administration of justice---

----Courts were bound to apply the provisions of law at appropriate level considering the facts and figures of each and every case and to consider the attitude of the parties to the litigation.

Ghulam Abbas Chopa D.A. for Appellants.

Munir Ahmed for Respondent.

2011 C L C 1278

[Chief Court Gilgit-Baltistan]

Before Sahib Khan and Muzaffar Ali, JJ

GHULAM MUHAMMAD and 19 others----Appellants

Versus

COLLECTOR, SKARDU and 2 others----Respondents

C.F.A. No.2 of 2009, decided on 6th April, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Appellants/ landowners, dissatisfied with amount of compensation as determined by the Collector, assailed said award under S.18 of Land Acquisition Act, 1894 and claimed enhancement of the awarded amount, contending that the Collector Land Acquisition had violated mandatory provisions of Land Acquisition Act, 1894; that he had not issued notices under the relevant provisions; that he had fixed the arbitrary rates of acquired lands at the back of the owners; and that he had violated S.23 of Land Acquisition Act, 1894---Referee Court after receiving the petition from the Collector, followed the procedure and authorities were given chance to defend---Referee Court had found that the Collector did not follow the procedure provided by Land Acquisition Act, 1894 before passing the impugned award---Collector had fixed the rates silently without publishing notification in official Gazette and issuing public notice under S.4 of Land Acquisition Act, 1894 to enable the affected persons to meet the situation---Referee Court at the end decided the issue in negative holding an ironical view that impugned award once passed, even in violation of mandatory provisions of law, could not be set aside---Referee Court had ignored or failed to understand the interim legal consequences of issues to the effect that initially the burden lay on the Collector to prove that he had taken all mandatory steps, like notice under S.4 of Land Acquisition Act, 1894 and hearing of objection under S.5-A of the Act after publication of said notice---Collector had failed to bring into record of the case, the prima facie proof and had admitted that he had not complied any mandatory provision of Land Acquisition Act, 1894---No option was left, in circumstances, with the Referee Court, but to rely on the evidence adduced and submitted by landowners with the prayer to enhance the rates fixed by the Collector---Impugned judgment/decree was set aside, the impugned award was enhanced as prayed for in the petition under S.18 of Land Acquisition Act, 1894 with 15% compulsory charges and 8%? of? compound? interest? till? realization? of? the? enhanced? amount.

?????? Ghulam Haider and Syed Muhammad Ali Shah for Appellants.

?????? Addl. A.-G. for Respondents.

2011 C L C 1445

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

PAKISTAN/PROVINCIAL GOVERNMENT GILGIT-BALTISTAN, GILGIT and 2 others----Appellants

Versus

KACHO FIDA MUHAMMAD and 9 others----Respondents

C.F.A. No.2 of 2010, decided on 5th April, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of amount of compensation---Reference to referee court---Respondents/ landowners whose land was acquired, being dissatisfied with amount of compensation as determined by the Collector, received amount of compensation under protest and lodged their protest through objection under S.18 of Land Acquisition Act, 1894---Referee Court having enhanced amount of compensation along with 15% compulsory charges and 8% interest till realization of the amount, authorities had filed appeal---Respondents/landowners, had proved their case through oral as well as documentary evidence, while the appellant/authorities had failed to rebut the issue of enhancement of compensation---Contention of authorities was that landowners having not claimed 8% compound interest and 15% compulsory acquisition charges, same could not be granted to them, was repelled as the point concerned with the mandatory provisions of Land Acquisition Act, 1894, whereunder 8% of compound interest could not be refused, even if the owners waived the same---Likewise 15% of compulsory charges, also could not be departed from the award or from enhanced amount under law.

Asstt. A.-G. for Appellants.

Syed Ahmed Ali Shah for Respondents.

Date of hearing: 5th April, 2011.

2011 C L C 1766

[Chief Court Gilgit-Baltistan]

Before Muzaffar Ali, J

NIAZ ALI and 3 others----Petitioners

Versus

Syed KAZIM SHAH----Respondent

Civil Revision No.10 of 2010, decided on 1st April, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for declaration and perpetual injunction---Suit filed by the plaintiff had been decreed by the courts below---Plaintiff claimed that sale transaction in favour of defendant was made only in respect of receiving the lagan of the disputed land from the tenants for 15 years and ownership of disputed land rested with the plaintiff as the ownership of land had not been transferred to the defendant---Claim of legal heirs of the deceased defendant was that their father had purchased the ownership of the disputed land from the plaintiff in the years 1969 and 1970 for the consideration of Rs.1000; and said transaction had been acknowledged by the plaintiff vide unregistered documents dated 16-10-1969 and 15-6-1970; and since then deceased and after his death his legal heirs were receiving the lagan of the disputed land as owners; and the ownership had been transferred in the name the defendant through mutations in which their deceased father had been shown as the owner of disputed land---Defendant in proof of his claim had filed two unregistered documents which had allegedly been executed in the years 1969 and 1970---Said documents had been written more than 30 years ago, but both courts below had discarded said documents holding them to be inadmissible for evidence as not to be registered---Both the courts had declared said documents to be forged for the reason that defendant had not signed said documents---Courts below were not justified in law by not considering said documents as same seemed to be acknowledgment receipts, which need not be registered; and if considered to be sale deeds, then too, said documents could be admitted for collateral purposes such as, estoppel and to determine day, year of the sale transaction for calculation of limitation period---Logic of courts below declaring said documents to be forged, was also not understandable as plaintiff had written his full name in the documents, like as he had written his full name in the plaint and other documents submitted before the court in suit---Suit filed by the plaintiff was barred by the prohibitory clause of S.42 of Specific Relief Act, 1877 and also time-barred---Both impugned decrees passed by lower courts, were set aside and the plaintiff was de-suited.

PLD 1976 SC 781 and 1997 SCMR 837 rel.

Akhon Muhammad Ali for Petitioners.

Syed Muhammad Ali Shah for Respondent.

2011 C L C 469

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

PARAGON CONSTRUCTORS (PVT.) LTD. through Attorney and 2 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR through Chief Secretary and 3 others---Respondents

Writ Petition No. 1361 of 2010, decided on 30th December, 2010.

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

---S. 44---Writ petition---Maintainability---Contract between a private person and State or its subordinate functionaries---Disputed questions relating to factual inquiry arising out of such contract---High Court in such matter could direct public functionaries to act within limits of statutory authority---Principles.

Messrs Wak Orient Power and Light Limited v. Government of Pakistan and 2 others PLD 1998 Lah. 665; PLD 1992 Kar. 283; Muhammad Ashraf Ali's case 1986 SCMR 1096 and Inpak Tech. Industries Pvt. Ltd. v. Government of Punjab 1998 MLD 1383 rel.

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

----S. 44---General Clauses Act (X of 1897), S. 24-A---Writ petition---Construction contract---Lowest bid of petitioner accepted by authority, which allowed him to carry out work---Subsequent cancellation of such acceptance by authority for non-availability of funds and issuance of advertisement inviting fresh tenders for such project---Validity---Authority had issued subsequent advertisement against same amount without any change in specification of work---Petitioner had been deprived from award of such contract without hearing him---Authority had not given any reason while re-advertising project---Reasons must be based on objective approach and must be judicious, fair and just---Authority had deviated from their settled earlier practice, which had resulted in discriminatory treatment---Refusal of authority to issue formal work order and execute contract in petitioner's favour was arbitrary---Impugned act of authority was without lawful authority and of no legal effect---High Court accepted constitutional petition and directed authority to award such contract to petitioner in circumstances.

Messrs Pacific Multinational Pvt. Ltd. v. Inspector-General of Sindh Police and others PLD 1992 Kar. 283; Messrs Dadabhoy Investments Pvt. Ltd. v. Federation of Pakistan and another PLD 1995 Kar. 33; Tariq Meer v. Azad Government and others 2009' CLD 803; AKLASC v. District Council Muzaffarabad and another PLD 2003 SC(AJK) 6; Messrs M.A. Khan and Co. v. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. 2006 SCMR 721; Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472; Messrs Arif Builder and Developers v. Government of Pakistan and others PLD 1997 Kar. 627; Balochistan Construction Company v. Port Qasim Authority 2001 YLR 2716; Messrs Shams and Brothers v. Government of Pakistan and others 2007 CLD 125; Nehar Ali Biswas v. Nazam Negar Rashida Banu PLD 1968 Dacca 525; AJK Government and others v. Ch. Abdul Majeed and others 2004 MLD 844; British India Steam Navigation Company Ltd. London and others v. National Security Insurance Company, Ltd. 1985 CLC 1720; Pakistan Burmah Shell Ltd. v. Phoenix and others PLD 1979 Kar. 789; Collector of Customs Karachi and others v. Messrs Abdul Majeed Khan and others 1977 SCMR 371 and Messrs AIRRS Associates (Pvt.) Ltd. through its proprietor and Chief Executive v. Health Department and others Civil Appeal No. 158 of 2009 ref.

Muhammad Mushtaq's case 1993 CLC 432 rel.

Dr. Farogh Naseem for Petitioners.

Abdul Rasheed Karnani for Respondents Nos. 2 to 4.

Nemo for Respondent No. 1.

Date of hearing: 30th December, 2010.

2011 CLC 998

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

CENTRAL BAR ASSOCIATION, MUZAFFARABAD through President----Petitioner

Versus

AJ&K GOVERNMENT through Chief Secretary and 19 others----Respondents

Writ Petition No.750 of 2010, decided on 17th March, 211.

Azad Jammu and Kashmir Grant of Khalsa Waste Land As Shamilat Deh Act, 1966---

----S. 6---Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, S.7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Allotment of Khalsa land---Implementation of order---On the direction of the Chief Executive, Khalsa land in question was proposed for allotment by Chairman of the Development Authority---Prime Minister had approved said proposal and ordered for further proceedings---Said order had neither been got reviewed under the Rules of Business nor had been denied---Petitioner had sought implementation of the order of the Chief Executive---Contentions of counsel for respondents that order of the Prime Minister was illegal, was devoid of any force---No provision of law had been cited that order of allotment issued in favour of the petitioners, had contravened any provision of law---According to notification issued by the Government under S.7 of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, Khalsa land could be granted to the Social, Educational and other Institutions of the similar nature---Petitioner-Association fell within the category of said Institutions, because the duty of the Members of the petitioner-Association was of social nature---Order of the Prime Minister was also covered by S.6 and other enabling provisions of Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deh Act, 1966---Writ Petition was accepted in the manner that order of the Chief Executive would be implemented; and the land identified by the Chairman, Development Authority, would be allotted in favour of petitioner-Association.

1997 PLC (C.S.) 468; 1992 UC 2004;2004 PLC (C.S.) 914; 1995 SCR 375; 1992 SCR 307, 1999 MLD 1549; 2003 PLC (C.S.) 700 and Khurshid Anwar's case 1992 MLD 236 ref.

Syed Shahid Bahar for Petitioners.

Raja Gull Majid Khan, Advocate-General for the Official Respondents.

Sardar Atta Elahi Abbasi for Private Respondents.

2011 C L C 1065

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C. J. and Munir Ahmad Chaudhry, J

Hafiz MUI-HAMMAD AHMED RAZA QADRI----Petitioner

Versus

AZAD JAMMU AND KASHMIR ELECTION COMMISSION through Secretary and 4 others----Respondents

Writ Petition No.405 of 2011, decided on 8th April, 2011.

Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---

----S. 13(B)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Deletion of illegal, non-qualified and bogus voters from Electoral Rolls---Application for---Petitioner filed application before Revising Authority and finally before Chief Election Commissioner and raised objection on the draft Electoral Rolls---Petitioner had alleged that while updating and re preparing the voter list respondent, with connivance of some Political Workers had managed to enter voters, who were not qualified to be entered as such under Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970 and prayed for deletion of illegal, non-qualified and bogus voters from the Electoral Rolls---Said application remained unattended and no final order had been passed thereon-Section 13(B) of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, was enacted in view of the general complaints received from the public at large by the Chief Election Commissioner regarding the entry of non-qualified and bogus voters in the constituencies meant for the refugees, settled in Pakistan---Chief Election Commissioner, though was vested with ample powers to include or exclude any voter from the voters list, prepared for the general elections of the Legislative Assembly, but said provision was a special one and had to be given effect with full force in order to prepare transparent voter lists---When a special right in shape of an appeal, review, revision or representation was given to an aggrieved person; and for vindication of the same a forum was also provided, then it was the duty of such judicial or quasi judicial Authority to decide the application filed before it within a reasonable time, because the decision on such an application was a statutory right of the applicant---Procrastination of the decision, would tantamount to deprive the applicant of his statutory right--Petitioner was entitled to have decision on his application without delay, within a reasonable time---Authorities were directed to dispose of the application of the petitioner, within 10 days, in circumstances.

Mrs. Bakhtawar v. Abdul Majeed through legal heirs and another 2001 SCMR 1423; Arif Hussain Shah's case PLD 1979 Lah. 603; Kamal Sharif Rana's case PLD 1985 Lah. 135 and Molana Ghulam Din's case 1998 PLC (C.S.) 1364 ref.

Muhammad Yaqoob Khan Mughal for Petitioner.

Advocate-General for Official Respondents.

Kh. Manzoor Qadir for Respondent No.5.

2011 C L C 1109

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhary and M. Tabassum Aftab Alvi, JJ

AZHAR HUSSAIN GILLANI---Petitioner

Versus

CHIEF ELECTION COMMISSIONER through Secretary, Election Commission of the

State of AJ&K and 2 others----Respondents

Writ Petition No.38 of 2011, decided on 8th April, 2011.

(a) Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---

----S. 13-B---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ of prohibition, issuance of---Deletion of non-qualified voters of refugees settled in Pakistan from Electoral Rolls---Petitioner had sought writ of prohibition against authorities to refrain from proceeding on the application filed by respondent and alleged that numerous illegalities had been committed by its subordinate staff of the authorities including entering non-qualified and bogus voters in the Electoral Rolls---Request was made for correction of the alleged irregularities---Chief Election Commissioner, sent said application for further proceedings to Secretary Election Commission---Committee was constituted for inquiry into allegations levelled in the application---Petitioner had challenged order of Chief Election Commissioner constitution of the committee and further proceedings on the ground that same were being conducted by authorities without jurisdictional competence---Validity---Under provisions of S.13-B of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, Chief Election Commissioner was empowered to delete non-qualified voters from the voter's list---Said provision appeared to have been enacted specifically in view of the complaints of the public at large about inclusion of non-qualified and bogus voters in the voters list and the provision having overriding effect, had to be interpreted notwithstanding existence of other similar provisions---Authentic Electoral Rolls was sine qua non for transparent election, power to delete non-qualified voters, could be exercised by Chief Election Commissioner at any time, even after publication of Electoral Rolls---Only embargo placed on said powers of the Chief Election Commissioner was that a complaint under S.13-B of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, should have been made by a voter from the same constituency---Respondent in the present case was not a resident of that constituency---Filing of complaint and assumption of jurisdiction, constitution of Committee and issuance of notices by the Chief Election Commissioner, in circumstances, were violative of said provisions of law---Chief Election Commissioner, was restrained to proceed on application filed on behalf of respondent.?

Muhammad Aftab Khan v. District Education Officer and 2 others 2001 PLC (C.S.) 28; Suleman Ahmed v. Tanveer Ahmed Mir 3 others 2002 PLC (C.S.) 714; Umar Hayat v.. Azad Government and 3 others 1999 PLC (C.S.) 93 and Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92 rel.

(b) Administration of justice---

----Where special procedure was provided for performance of an act, then act should be performed in the same manner or not at all.?

Mansab Ali's case PLD 1971 SC 124 rel.

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

----S. 44---Writ of prohibition---Object---Writ of prohibition was meant to restrain a Tribunal or Quasi Judicial Authority from taking proceedings, exercising jurisdiction not vested in it; or the same being not exercised in the prescribed manner.?

Muhammad Bux Balouch v. The Market Committee and 2 others 1990 CLC 788 and Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1998 CLC 783 rel.

(d) Jurisdiction---

----Assumption and exercise of---For assuming the jurisdiction by the court, Tribunal or quasi judicial Authority, it was imperative that cause brought before it for invoking its jurisdiction must be in accordance with limitation provided by the statute, otherwise the authority itself was bound to reject the application or appeal.?

Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1998 CLC 783 and Azad Govt. of the State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 AJK 33 rel.

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

----S. 44---Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, S.13-B---Writ petition---Aggrieved person---Scope---Contention of counsel for respondent that the petitioner was not aggrieved person, was devoid of any force---Due to the deletion of the alleged non-qualified voters from the constituency though petitioner would not suffer any loss; and the loss, if any had to be suffered by the voters, sought to be deleted, but the petitioner had a right to ask Chief Election Commissioner to perform his statutory duty strictly in accordance with the provisions of S.13-B of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---Aggrieved party was one whose rights were threatened; or whose rights were being denied; or whose rights had been affected by a decision---Word 'rights' was not used in strict juristic sense; it was sufficient, if the person alleging to be an aggrieved had a personal interest in the performance of a legal duty, which if not performed, would result in the loss of some personal activities---Party who would stand to lose or gain an advantage by observance or non-observance of law, was an aggrieved party.?

Ch. M. Yasin's case 2010 SCR 17 rel.

Mushtaq Ahmed Janjua for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Syed Shahid Bahar for Respondent No.3.

2011 C L C 1407

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and M. Tabassum Aftab Alvi, J

SHAUKAT USMAN----Petitioner

Versus

UNITED BANK LIMITED through President and 6 others----Respondents

Revision Petition No.153 of 2010, decided on 22nd April, 2011.

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

----O. XIII, R.1---Production of document---Failure to produce documents at first hearing of the case---Effect---Documents which were in possession of a party must be produced at first hearing of the case---However, if any party would fail to do so, it was not precluded from producing the same before the court at a later stage---Said rule was not inflexible; and nowhere it had been laid down in R.1 of O. XIII, C.P.C. that documents going to the root of the case could not be allowed at all at a later stage---Even an Appellate Court could allow documents on showing good reason---If the court was satisfied that the document was authentic and was not concocted, fabricated, prepared later, relevant and necessary for just decision of the case, it could be allowed at any stage---Documents sought to be produced in the present case were public record maintained by the Bank and there could be no doubt about their authenticity and genuineness---Courts below had rightly allowed respondents to produce said documents through their witnesses.

Muhammad Usman Mirza v. Waris Iqbal and others 1990 SCMR 964; Muhammad Bakhtiar Khan v. Qari Bashir Ahmed PLD 1957 Lah. 803; Faizullah v. Mst. Zaini PLD 1984 (AJ&K) 41; Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others 1993 CLC 432 and Mst: Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365 ref.

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

----S. 115---Revisional jurisdiction---Scope---Re visional jurisdiction could be exercised where the order amounted to "case decided"; and only where applicant had been able to show jurisdictional defect in the exercise of jurisdiction and the court below had acted illegally or with material irregularity in exercise of its jurisdiction; or had exercised jurisdiction not vested in it by law; or failed to exercise jurisdiction so vested---Primary purpose of S.115, C.P.C. was for correcting errors made by the subordinate courts in exercise of their jurisdiction.

Raja Muhammad Hanif Khan for Petitioner.

Muhammad Idrees Mughal for Respondents.

2011 CLC 1631

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD MUZAFFAR----Petitioner

Versus

MUHAMMAD YOUSAF KHAN and 12 others----Respondents

Civil Revision No.126 of 2008, decided on 6th July, 2011.

Civil Procedure Code (V of 1908)---

----Ss. 107, 151, O.I, R.10 & O.XLI, R.20---Powers of Appellate Court to add or implead party---Appellate Court while exercising powers postulated in S. 107, C.P.C., read with O.I, R.10/C.P.C., could implead any party---Appellate Court could add party while exercising powers under O.XLI, R.20, C.P.C.

Syed Bashir Hussain Shah and another v. Administrator Thal Bhakkar 1993 CLC 1013; Muhammad Nisab Khan v. Azad Government of the State of Jammu and Kashmir and 4 others 1987 CLC 1329 and Chan Zeb and 9 others v. Gul Zaman and 5 others 1998 CLC 1857 rel.

Muhammad Yaqoob Khan Mughal for Petitioner.

Respondent No.1 in Person.

Nemo for pro forma Respondents Nos.2 to 13.

2011 C L C 1977

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD SHAFI----Appellant

Versus

MUHAMMAD MAQBOOL and 9 others----Respondents

Civil Appeal No.133 of 2009, decided on 29th August, 2011.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.1 & O.VII, R.11---Withdrawal of suit---Filing of fresh suit---Scope---Under provisions of O.XXIII, R.1, C.P.C., plaintiff at any time after the institution of suit, could withdraw his suit or abandon part of his claim when the court was satisfied that the suit must fail due to some formal defect or that other sufficient grounds were to allow the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim---Unless a prayer for permission to bring a fresh suit was made, the plaintiff was precluded from instituting any fresh suit in respect of same subject matter or part thereof---In order to bring a fresh suit in respect of the subject of dispute, permission of the court was a condition precedent---Court was enjoined upon to accord such permission on the satisfaction that the suit under consideration would fail due to some formal defect or withdrawal of the suit was justified in the light of the circumstances placed before the court---Suit, in the present case, having been filed by the plaintiff, was hit by principle of estoppel due to withdrawal of earlier suit by his father---Such suit should not be allowed to remain sub judice in the court of law for false hopes---Court was duty bound to lay at rest an incompetent suit at an initial stage and for that purpose the provisions contained in O.VII, R.11, C.P.C., could be invoked by the Trial Court even suo motu---Judgment passed by Appellate Court below, whereby, while setting aside the order and decree passed by the Trial Court, suit filed by the plaintiff was remanded to the Trial Court, was set aside and decree passed by the Trial Court was restored, in circumstances.

Muhammad Bakhsh v. Abid Hussain Shah and 6 others 1991 MLD 571 and Muhammad Yousaf and 3 others v. Mst. Zubeda Begum and others 1993 MLD 2138 ref.

Karamat Ali Khan and other v. Sardar Ali and 29 others PLD 2001 SC (AJ&K) 30; Muhammad Aziz Khan v. United Kashmir Flour Mills (Pvt.) Ltd. and 6 others PLD 2004 SC (AJ&K) at pages 10 and 11; Muhammad Bakhsh v. Abid Hussain Shah and 6 others 1991 MLD 571 and Muhammad Yousaf and 3 others v. Mst. Zubeda Begum and others 1993 MLD 2138 rel.

Choudhry Shoukat Aziz for Appellant.

Muhammad Yaqoob Khan Mughal for Respondent.

Nemo for pro forma Respondents.

Date of hearing: 18th August, 2011.

2011 CLC 427

[Islamabad]

Before Riaz Ahmed Khan, J

Homoeopathic Doctor MUHAMMAD ZAHIR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Health, Government of Pakistan, Islamabad and another---Respondents

Writ Petition No. 4129 of 2010, decided on 14th January, 2011.

Unani Ayurvedic and Homeopathic Practitioners Act (II of 1965)---

----Ss. 13(2) & 22(3)---Unani, Ayurvedic and Homeopathic System of Medicine Rules, 1980, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Removal/replacement of petitioner from membership of Examining Body---Petitioner who was elected member of National Council for Homeopathic was appointed as Member of Examining Body of the Council---After about three years, the petitioner along, with another was removed/replaced from membership of Examining Body vide notification on complaint against the petitioner--Petitioner had challenged his removal alleging that action was in violation of law and Rules-Under R.11 of the Unani Ayurvedic and Homeopathic System of Medicine, Rules, 1980, a member appointed to an Examining Body under S.22(3) of Unani Ayurvedic and Homeopathic Practitioners Act, 1965, could be removed by the Federal Government of the recommendation of the Council---Member of Examining Body, could be replaced/removed by the Federal Government after consultation with the Council and after providing an opportunity of showing cause against action proposed to be taken and notification was to be published in the official Gazette, but no show-cause notice was ever given to the petitioner---Action taken against the petitioner, in circumstances, was in violation of S.13(2) of the Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 and against, principles of natural justice as he had been condemned unheard---Order of removal/replacement of the petitioner, was set aside, in circumstances.

Amir Abdullah Abbasi for Petitioner.

Shabbir Ahmed Abbasi, Standing Counsel for Respondent No. 1.

Muhammad Rafi (A.D.).

Kosain Faisal Mufti for Respondent No. 2.

Date of hearing: 14th January, 2011.

2011 C L C 463

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

SHIFA INTERNATIONAL HOSPITALS LTD. through Chairman and C.E.O.---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL (PMDC) and 3 others---Respondents

Writ Petition No. 4631 of 2010, decided on 27th January, 2011.

Pakistan Registration of Medical and Dental Practitioners Regulations, 2008---

----Reglns. 19, 30 & 31---Constitution of Pakistan, Art. 199---Constitutional petition---Lodging of report on complaint---Petition arose out of complaint submitted by the respondent alleging that his father was not treated properly and due to negligence and careless attitude of petitioner/Hospital Staff and inexperienced doctors he died---Petitioner/Hospital was a company providing medical facilities and treatment to the patients and was registered with Pakistan. Medical and Dental Council constituted under the Act---Affairs of said organization were being controlled/run by specially enacted laws known as Pakistan Registration of Medical and Dental Practitioners Regulations, 2008, which provided procedure for action against the negligent behaviour and infamous conduct of registered practitioners---Disciplinary Committee and the Council had ample powers under Reglns.30 & 31 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 to de-register such practitioners and to take other legal actions---In the present case, patient/father of the respondent remained admitted in Intensive Care Unit for thirteen days, but complainant had never expressed any dissatisfaction or no confidence over the Hospital Staff---No means rea or motive for criminal negligence on the part of the practitioner was noticed---Special enactment always prevailed over the general law; and in the present case, special law to deal with the negligence of the practitioners being available, without exhausting that remedy, no criminal proceedings could be initiated---Once it was held by the Pakistan Medical and Dental Council that practitioner was guilty of negligence and professional misconduct, criminal law as well as civil law could be set into motion against them---High Court directed that complaint of respondent be forwarded to the Council for proper legal action under the °law without being prejudiced by any observations of the Police or the court---Order accordingly.

AIR 2004 SC 4091; PLD 2005 SC 99; PLD 2010 Kar. 134; PLD 1974 SC 151; 2002 SCMR 1076; 2008 SCMR 1118; 1999 PCr.LJ 1117; PLD 2010 SC 1969; PLD 1994 SC 281; PLD 1994 SC 2142; PLD 1993 SC 399 and PLD 1971 SC 677 ref.

Muhammad Akram Sheikh and Natalia Kamal for Petitioner.

Mujeeb-ur-Rehman Kiyani for Respondent No. 4.

Malik Qamar Afzel for Respondent No. 1.

Qazi Rafee-ud-Din Babar, learned D.A.-G.

Haris Nadeem Complainant in person.

Hameed ul Haq S.I. with record.

Date of hearing: 17th January, 2011.

2011 C L C 814

[Islamabad]

Before Riaz Ahmed Khan, J

SHABNAM ASHRAF----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and 2 others----Respondents

Writ Petitions Nos.35 and 2125 of 2009, heard on 10th February, 2011.

Islamabad Land Disposal Regulations, 2005---

----S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Plot in Diplomatic Enclave earmarked for school---Allotment of suit plot by Capital Development Authority (CDA) without advertising same in favour of respondent not educationist running school in Islamabad---Validity---Record showed that CDA on 18-10-1996 had advertised some school plots (not including suit plot) for allotment to a person already running school in Islamabad only---Record showed that meeting of Board included suit plot to be allotted without making any decision to alter such advertisement---According. to S.7(4) of Islamabad Land Disposal Regulations, 2005, allotment could be made after inviting applications---Application could not be invited without publicizing plot in newspaper---Board had to lay down criteria after receiving applications for allotment---Neither suit plot had been publicized nor on basis of criteria mentioned in such advertisement any plot finding mention therein could be allotted to a person not running school in Islamabad---Chairman, CDA in his affidavit filed in Court had admitted allegations made in constitutional petition except allegation regarding nepotism after undertaking to allot suit plot in accordance with law and criteria laid down---Respondent-allottee by filing in Court his affidavit gave up his claim regarding suit plot---High Court accepted constitutional petition and directed CDA to proceed with allotment of suit plot in accordance with law and procedure.

S. Naeem Bokhari for Petitioner.

Barrister Masroor Shah for Respondent No.1.

Salman Akram Raja and Malik Ghulam Sabir for Respondents Nos.2 and 3.

Date of hearing: 10th February, 2011.

2011 CLC 831

[Islamabad]

Before Riaz Ahmed Khan, J

UNITED BANK LIMITED PENSIONERS WELFARE ASSOCIATION OF PAKISTAN through President----Petitioner

Versus

UNITED BANK LIMITED through President and 5 others----Respondents

Writ Petition No.14 of 2010, heard on 10th February, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Constitutional petition had been filed against Bank, which was not a person within the meaning of Art.199 of the Constitution---Bank was not performing functions with respect to the affairs of Federation, Province or any statutory body---Employees of the Bank were not governed by the statutory rules---No writ could be issued against the Bank---Petition had been filed in representative capacity by one person, and it was also not known as to whether petitioner (association) existed or not, as same had not been registered anywhere---Constitutional petition being incompetent, was not maintainable, in circumstances.

Petitioner in person.

Faisal Mahmood Ghani and Muhammad Naseem Bhatti, A.V.P. Representative for Respondents.

Date of hearing: 10th February, 2011.

2011 C L C 846

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

MUNEER KHAN and another----Petitioners

Versus

UZMA UFAQ and 3 others----Respondents

Writ Petition No.416 of 2011, decided on 14th February, 2011.

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

----Ss. 2(g)(j), 17 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of personal bona fide requirement of landlord---Relationship of landlord and tenant---Both courts below had concurrently accepted ejectment application of landlords and passed ejectment order against the tenants, who had moved constitutional petition against concurrent judgments of the courts below---Tenants had assailed judgments of courts below on the ground that ownership of the property was controverted as the Capital Development Authority had claimed to be the owner and had cancelled the property from the names of the tenants---Tenancy agreement between the parties was not extended after its expiry--Ejectment application was filed by the landlords, who were wife and sister-in-law of one to whom the tenants had been paying rent of the premises---Ejectment application, in circumstances, was maintainable---Dispute between the landlord and Capital Development Authority had .got no relevancy; at the most, it could be a dispute between landlord and Capital Development Authority---Once a tenant was always a tenant and no contradictory stand could be taken at the same time---Personal bona fide requirement of landlords had not been rebutted through cross-examination and landlords had got every right to get the premises vacated for personal bona fide use---Concurrent findings of courts below needed no interference in the constitutional jurisdiction of High Court---Constitutional petition was dismissed.

Musharraf Khan for Petitioners.

2011 CLC 851

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

MASROOR HUSSAIN----Petitioner

Versus

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

Writ Petition No.4825 of 2010, decided on 7th March, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry ' articles and maintenance allowance---Family Court decreed suit for recovery of dowry articles and Appellate Court maintained judgment of Family Court in that respect---Family Court had granted Rs.3000 per month as maintenance allowance to plaintiff, but Appellate Court reduced the same to that of Rs.2000 per month---Concurrent findings on the issue of recovery of dowry articles and rate of maintenance allowance having already been modified from Rs.3000 per month to Rs.2000 per month could not be interfered with in constitutional petition.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for custody of minor---Defendant having entered into second marriage, step-mother of minor by no stretch of imagination could be considered to be sympathizer of step-son/minor---Minor could not be left at the mercy of a woman who was otherwise a stranger to the minor, while defendant/father would remain out of the home in connection with job---Welfare of minor was supreme and his interests were to be taken care of in all circumstances---Court was to take care of minor's well being and proper upbringing---Father though had a right over custody of male child after seven years of age, but the fact would remain that conduct of father by remarrying and by not providing sufficient maintenance allowance to his son, would disentitle him to the custody of minor---Suit of the plaintiff was rightly decreed, in that respect.

2007 SCMR 621; 1994 CLC 1216; 1994 CLC 1242; PLD 1988 Kar. 252; PLD 1988 Kar. 261; 1995 CLC 800; 1995. CLC 813; 1991 MLD 745 and 1991 MLD 756 ref.

Ch. Afrasiab Khan for Petitioner.

Asad Abbas for Respondent No.3.

Date of hearing: 9th February, 2011.

2011 C L C 875

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

NASEEM AKHTAR MEHMOOD CHAUDHRY----Petitioner

Versus

SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN and another----Respondents

Writ Petition No.3560 of 2009, decided on 28th January, 2011.

Constitution of Pakistan---

----Arts. 4, 14, 25 & 199---Constitutional petition---Refusal of issuance of Passport---Fundament rights, violation of---Issuance of Passport was refused to the petitioner by the authorities on the ground that name of the petitioner was included in the blacklist---Authorities had not shown any justifiable reason for refusal of issuance of Passport to the petitioner---No material was on record to declare the petitioner as blacklisted---Petitioner was already in possession of a valid CNIC and had been holding a Pakistan Passport---Every citizen of Pakistan had a legal right to get Passport subject to fulfilling legal requirements---No citizen could be deprived of his fundamental right guaranteed by the Constitution; and court was under obligation to uphold the guarantees provided by the Constitution---Authorities were directed to issue Passport to the petitioner, in circumstances.

Petitioner in person.

Muhammad Abid Raja, Standing Counsel.

2011 C L C 889

[Islamabad]

Before Riaz Ahmad Khan, J

KHALID MEHMOOD----Petitioner

Versus

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

Writ Petition No.150 of 2011, decided on 9th March, 2011.

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

----Ss. 17 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Welfare of minor---Application by mother of minor girl for custody was accepted by the Trial Court---Appeal filed by the father of the minor against judgment of the Trial Court had been dismissed by the Appellate Court---Validity---Marriage between father and mother of the minor had been dissolved on the ground of Khula and mother after dissolution of marriage had contracted second marriage, whereas father had not---Female minor aged 10 years was a `special person' and also had kidney problem---Treatment of minor required huge expenses; and mother of minor neither herself nor her parents, were in a position to provide for medical expenses of the minor---Minor was in the custody of her father, who had been providing her all medical facilities---In appointing the guardian of the minor paramount consideration for the court should be welfare of the minor---Court must see as to who was the most likely to contribute to the well being of the minor and who would be in better position to look after and take care of the minor---In the present case, father had been providing special care to her minor daughter; and he was in a position to bear the expenses as well---Concern which the father had shown, had proved that he loved his daughter and would definitely look after the minor in a much better way than the mother---Mother of the minor who had contracted second marriage with a stranger, would remain dependant upon her second husband, who could not provide maintenance and care to the minor---No reasons existed to disentitle the father for custody of the minor---Judgments of the two courts below were set aside and father who was natural guardian of the minor, was declared as entitled to the custody of minor.

Khurram Mahmood Qureshi for Petitioner.

Ahmad Nawaz Bhatti for Respondent No.3.

Date of hearing: 23rd February, 2011.

2011 CLC 903

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

ABDUL GHANI----Petitioner

Versus

CHAIRMAN, FEDERAL PUBLIC SERVICE COMMISSION----Respondent

Writ Petition No.459 of 2011, decided on 17th February, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---CSS Examination---Petitioner, who was a candidate contended that his district was badly hit by the flood, which made him shelterless and miserable; and that he along with many other candidates of the area, could not prepare for the said examination---Petitioner stated that examination of 2009, having been delayed fore some internal problems, examination which 'was to start from 26th February, 2011, could be delayed for few months---Petitioner, in fact had prayed for the examination to be kept in abeyance, because, if he was not allowed to appear in current examination, he could become overage---Examination was held every year and closing date of submission of application was 31-12-2010, while the flood hit the said areas in June/July, 2010---Petitioner had applied for his appearance in the examination on 21-12-2010 and it was his obligation to prepare for the examination, because the process of law could not be held in abeyance for an individual---Thousands of candidates from all over the country, would be appearing in the examination and accepting of such petition would mean their deprivation to contest for their jobs---Constitutional petition was dismissed.

Qazi Muhammad Nazeef for Petitioner.

2011 CLC 1375

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

KIRAN SHAHZADI----Petitioner

Versus

QUAID-E-AZAM UNIVERSITY, ISLAMABAD through Vice-Chancellor and 2 others----Respondents

Writ Petition No.213 of 2011, decided on 27th April, 2011.

(a) Constitution of Pakistan---

----Art. 25A---Right to education---Right to get education is a fundamental right guaranteed by the Constitution and the Courts are under obligation to protect such rights.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution--Announcement of result---Petitioner was student of respondent-University and her grievance was that University did not allow her to appear in 'comprehension paper' and viva voce, with a direction to the university to announce her result---Validity---Petitioner had been exonerated of the charge and her appearance in the examination became her right---Petitioner had six chances under University rules, to appear in examination but the result of her papers was not communicated by the University on tine and it was declared only when copies of papers were produced before High Court, therefore, petitioner could not be held responsible for missing available chances---Appearance of petitioner in examination held recently would be considered as one out of six chances available to her under University rules---As the petitioner had already appeared in 'comprehension paper' held recently, therefore, High Court directed the University to allow her to appear in viva voce and announce her result---Petition was allowed accordingly.

Rana Abid Nazir Khan for Petitioner.

Muhammad Munir Paracha with Syed Muhammad Aqeel Gillani, Deputy Controller of Examinations and Sarni Ullah Khan, Assistant Registrar, Quaid-e-Azam University, Islamabad for Respondents.

Date of hearing: 1st April, 2011.

2011 CLC 1404

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Syed QAZIM ABBAS----Petitioner

Versus

INTERIOR MINISTRY through Secretary and another----Respondents

Writ Petition No.724 of 2011, decided on 11th March, 2011.

Exit from Pakistan (Control) Ordinance (XL VI of 1981)---

----S. 3---West Pakistan Family Courts Act (XXXV of 1964), S.5---Constitution of Pakistan Art.199---Constitutional petition--Maintainability-Factual controversy---Family suits, pendency of---Petitioner was married to respondent and the marriage ended in divorce---Petitioner sought placing the name of respondent on Exit Control List on the apprehension that she might not leave the country without returning the belongings to petitioner---Validity---Civil cases were pending between the parties and petitioner could have approached concerned courts for attachment of disputed properties---Alternatively petitioner could have submitted an application directly to authorities for placing the name of respondent in Exit Control List---Matter involved factual controversy which could not be looked into under constitutional jurisdiction, therefore, High Court declined to issue any direction for placing the name of respondent on Exit Control List---Petition was dismissed in circumstances.

Miss Farzana Sultan Baig for Petitioner.

2011 C L C 1619

[Islamabad]

Before Muhammad Anwar Khan Kasi and Riaz Ahmad Khan, JJ

JAMILAPIRZADA and 3 others----Appellants

Versus

Col. (R) MANSOOR AKBAR and 2 others----Respondents

R.F.A. No.70 of 2010, decided on 26th May, 2011.

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

----O. I, R. 10 & O. IX, R. 13---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Passing of order of ex parte proceedings on 8-2-2005 and ex parte decree on 16-3-2010 due to non-appearance of defendant---Appeal by legal heirs of defendant against ex parte decree alleging defendant to be missing since September, 2004---Plaintiff's plea that such legal heirs were not party in the suit; and that Trial Court had dismissed application of one legal heir for impleading him as party in suit, which order was upheld in revision by High Court---Validity---Record showed that proper F.I.R. about missing of defendant had been lodged in' Police Station and his case was pending before Apex Court along with other missing persons---Appellants being legal heirs of defendant would be adversely affected by execution of impugned decree---Appellants had no alternate remedy to challenge impugned decree---Leave to appeal ordinarily would be granted to persons, who though not parties to proceedings would be bound by judgment/decree passed therein and who could not attack correctness thereof in other proceedings---Rejection of such application would not debar its applicant from filing appeal, if his rights were being affected--Remaining appellants had not filed such applications and they as legal heirs being affected adversely by ex parte decree could file appeal thereagainst for having no alternate remedy---High Court admitted appeal for regular hearing and suspended operation of impugned decree till its decision.

PLD 1965 Kar 603; PLD 1969 SC 65; 1991 MLD (AJ&K) 2178; 1992 CLC 1099; 2001 CLC 781 and 2009 SCMR 385 rel.

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

---Ss. 96, 100, 104 & XLIII, R. 1---Appeal by a person not party to original proceedings---Scope.

As a general principle, none can appeal from a decree unless he is a party, but a person, who is not a party to the trial proceedings in a civil suit can file an appeal, if he/she is adversely affected by the order and the Appellate Court considers it necessary in the interest of justice, because in cases right of appeal is a safety wall against the perpetuation of injustice as well as against useless appeals.

It does not violate the common law doctrine that the right to appeal is a substantive right and the appeals cannot be filed without a statutory sanction and such rights are given to the parties after examining the applicability in the given circumstances of the case. The right of appeal arises under the statutory provisions such as sections 96, 100, 104 and Order XLIII, Rule 1, C.P.C., but it is attached to those persons, whose interests are prejudicially affected.

Ordinarily leave to appeal should be granted to persons, who though not parties to the proceedings, shall be bound by the decree or judgment in that proceeding and who cannot otherwise attack its correctness in other proceedings.

PLD 1965 Kar 603; PLD 1969 SC 65; 1991 MLD (AJ&K) 2178; 1992 CLC 1099; 2001 CLC 781 and 2009 SCMR 385 rel.

Samina Khan and Adnan Muhammad Khan for Appellants.

Syed Javed Akbar for Respondent No.1.

Respondent No.1 in person.

2011 C L C 19

[Karachi]

Before Bhajandas Tejwani, J

Haji WALI MUHAMMAD through Legal Heirs and others---Petitioners

Versus

ASLAM PERVAIZ and 2 others---Respondents

Constitution Petition No.213 and C.M.A. No. 932 of 2010, decided on 15th April, 2010.

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

----Ss. l5(2)(ii)(vii), 20 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on grounds of default in payment of rent and bona fide personal need of landlord---Ejectment application filed by the landlord against predecessor-in-interest of the petitioners on grounds of default in payment of rent and bona fide personal need had concurrently been allowed by the Rent Controller and Appellate Authority---Validity---Counsel for the petitioners had contended that as predecessor-in-interest of the petitioners having already expired, case filed against dead person was nullity in law which was liable to be dismissed only on that legal ground---Contention was repelled---No doubt the proceedings were filed against the predecessor­-in-interest of the petitioners, who was not alive at the time of filing of proceedings, but on receipt of notice, the petitioners themselves appeared and joined in the proceedings to contest the same---Petitioners filed their written statements, attempted to controvert the grounds of ejectment raised in the case; and fully contested the matter till its adjudication---Order of ejectment passed by both the courts below, could not be termed as illegal as same had not been passed against the dead person---Rent Controller had discretion to follow any reasonable procedure as he deemed fit and appropriate in the circumstances to secure and achieve the ends of justice---During such course, even S.20 of Sindh Rented Premises Ordinance, 1979 did not restrict power of Rent Controller with regard to adoption of any procedure---Rent controller was not bound to invoke every provisions of C.P.C.---Petitioners themselves admitted the ownership of respondent/landlord over the demand premises---Petitioners could not challenge the ownership of the landlord/ respondent---No illegality, non-appreciation or misreading of evidence, nor any jurisdictional error was pointed out, warranting interference in extraordinary constitutional jurisdiction of High Court---Petition was dismissed.

Mst. Afshan v. III Additional District Judge 2006 CLC 71 and Rashida Khatoon v. Syed Hamid Ali Naqvi 1986 SCMR 256 ref.

Rashid Yousuf Zai for Petitioners.

Muhammad Yaseen Azad for Respondents.

2011 C L C 29

[Karachi]

Before Irfan Saadat Khan, J

S. IQBAL AHMAD through Legal Heirs and others---Plaintiffs

Versus

JAWAID IQBAL---Defendant

Suit No.438 of 2001, decided on 17th September, 2010.

(a) Benami transaction---

----Benami---Meaning---Word Benami is compound of two Persian words, "Bay" means "without" and "Nami" means "name", hence Benami means transaction which has been undertaken by someone in the name of other person.

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

----S. 42---Benami transaction---Scope---Benami are transactions in which a person never intends such property to be vested in ostensible owner---Benamidar is the person who merely lends his name to another but who acquires no interest in the property, though he may possess indicia of ownership.

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

----S. 42---Qanun-e-Shahadat (X of 1984), Arts. 117 & 120---Benami owner---Onus to prove---Principle of shifting of onus---Applicability---Initially burden of proof is on the party who alleges that ostensible owner is his Benamidar---Initial burden is on plaintiff to prove with cogent material that he is ostensible owner and defendant is only his Benamidar---Once such evidence is produced by plaintiff, the burden shifts from plaintiff to defendant to prove his ownership, otherwise plaintiff is regarded to be ostensible owner and defendant to be merely a Benamidar---Question whether transaction is Benami in character or not depends upon facts and circumstances of each case and no absolute formula or acid test can be laid down in such regard.

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

----S. 42---Qanun-e-Shahadat (X of 1984), Art. 118---Benami transaction---Proof---Onus, shifting of onus---Father filed suit against his son alleging that house in question was owned by him---Validity---Plaintiff purchased the plot in the name of his minor son i.e. defendant, who had no source of income at that time and was thus a Benamidar of his father---In Benami transactions possession of property was also a decisive factor and since construction of the house on plot in question it had remained continuously in the possession of plaintiff and his other family members---Though defendant was not residing in house in question but only one room, which was locked, was in his possession---Burden of proof under Art. 118 of Qanun-e-Shahadat, 1984, in such type of cases, was on the person who had asserted that the other person in whose name the property was purchased was Benamidar but once the initial burden was discharged then it was for Benamidar to establish that the property belonged to him---Plaintiff purchased property in question in the name of his minor son and his minor son was nothing but his Benamidar and could not claim himself to be the owner of property in question---Suit was decreed in circumstances.

Ch. Ghulam Rasool v. Mrs. Nusrat Rasool PLD 2008 SC 146; Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Muhammad Sajjad .Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Saba Jamil v. Mst. Sultana Wilayat and 4 others PLD 2007 Kar. 310; Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316; Mst. Kausar Haseen v. Mst. Anis Begum MLD 1988 Kar. 552; Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui 2003 MLD Kar. 319; Shabbir Ahmed v. Abdul Haleem 2000 SCMR 1287; Rehmat Ali Ismailaia v. Khalid Mehmood 2004 SCMR 361; PLD 1953 Pesh. 19 and PLD 1965 Lah. 550 rel.

Habib Mehmood v. Bilqees Fatima 1997 MLD 390; Halima v. Muhammad Kassam 1999 MLD 2934; Khan Imtiaz Ahmad Khan v. The Islamic Republic of Pakistan PLD 1983 FSC 28; Jaydayal Poddar v. Mst. Bibi Hazra and 7 others AIR 1974 SC 171; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Kaleem Hyder Zaidi Duly Constituted Attorney v. Mehmooda Begum 2006 YLR 599; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool PLD 2008 SC 146; Chuttal Khan Chachar v. Mst. Shahida Rani 2009 CLC 324; Bilqees Begum v. Registrar of Properties PLD 2006 Kar. 617; Syed Ansar Hussain v. Khawaja Muhammad Kaleem 2006 CLC 732; Muhammad Nawaz Minhas v. Mst. Surriya Sabir Minhas 2009 SCMR 124; Abdul Majeed v. Abdur Rashid 2006 CLC 819 and Ghulam Murtaza v. Mst. Asia Bibi PLD 2010 SC 569 distinguished.

Ikram Ahmed Ansari for Plaintiffs.

Saalim Salam Ansari for Defendant No. 1.

Nemo for Defendant No. 2.

Date of hearing: 25th August, 2010.

2011 C L C 62

[Karachi]

Before Khilji Arif Hussain and Arshad Siraj Memon, JJ

AMAN BAIG---Petitioner

Versus

DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTIES and others---Respondents

Constitutional Petition No. D-865 of 2004, decided on 21st May, 2009.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8, 10 & 17---Settlement Scheme No. VIII---Constitution of Pakistan, Art. 199---Constitutional Petition---Transfer of evacuee property---Declaration of property to be evacuee trust property---Petitioner, as a displaced person, was in possession of evacuee property in question---When Settlement Scheme No. VIII was enforced under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, Deputy Settlement Commissioner transferred said property to the petitioner under said Scheme---Subsequently, it transpired that property in question belonged to `Shivalo' a Charitable Trust and Authority held that the disputed property was evacuee trust property and directed for publication of the notification in that respect under the law and Permanent Transfer Deed issued in favour of the petitioner in respect of property in question, was not validated---Evidence on record had proved that the property was evacuee Trust property which could not be transferred to the petitioner---Constitutional petition was dismissed.

1990 SCMR 20; Mst. Bani v. Government of Pakistan 1999 SCMR 2927; 1994 SCMR 1908; Muhammad Yaqoob v. Additional Secretary 1999 MLD 2068; 1991 SCMR 2206; 2005 SCMR 207; District Evacuee Trust Committee v. Muhammad Umer 1990 SCMR 25; Muhammad Bashir v. Islamic Republic of Pakistan 2004 MLD 2033; Government of Pakistan v. Nizamuddin through Legal Heirs and other 1994 SCMR 1908; Divisional, Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 SCMR 503 and Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586 ref.

Muhammad Ikram Siddiqui for Petitioner.

Ashiq Ali Anwar Rana for Respondents Nos. 1 and 2.

Date of hearing: 13th April, 2009.

2011 C L C 82

[Karachi]

Before A. Hadi Khoso, J

Mrs. IMRANA TAUFIQ: In the matter of

S.M.A. No. 262 of 2009 and C.M.A. No. 523 of 2010, decided on 31st May, 2010.

Succession Act (XXXIX of 1925)---

----S. 278---Petition for letter of administration---Exemption from filing surety---Petitioner who claimed exemption from filing surety as per Rules, had contended that being legal heir of the deceased and old aged person, despite his best efforts, could not arrange the surety and further requested that letter of administration be issued without furnishing surety on his personal bond---Validity---Property mentioned in the Schedule, approximately was worth Rs. one crore and twenty five lacs and for such valuable property petitioner could not be exempted from furnishing surety---High Court, in circumstances, ordered that original documents of the property be deposited with the Nazir of the court as a surety; and a personal bond also be executed by the surety for issuance of letter of administration.

M. Suhail Zafar Bhatti for Petitioner.

2011 C L C 88

[Karachi]

Before Muhammad Ali Mazhar, J

Mst. BANO alias GUL BANO and others---Plaintiffs

Versus

Begum DILSHAD ALAM and 4 others---Defendants

Civil Suit No. 1681 of 2008 and C.M.A. No. 722 of 2009, decided on 15th October, 2010.

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

----O. VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Application for rejection of plaint---Defendants filed application under O. VII, R.11, C.P. C. on the ground that the plaint did not disclose the cause of action and the suit was time-barred---Plaintiffs contested application on the ground that said application pertained purely to the defence of the defendants which were the disputed facts and beyond the scope of O. VII, R.11, C.P.C. and further that the suit contained crucial question of facts and law to be adjudicated at the trial of the suit---Validity---Bone of contention between the parties recounted in the plaint and written statement showed substantial dispute with mix question of law and facts which required evidence and unless evidence was recorded, the dispute between the parties could not be resolved---Plaintiffs had properly pleaded the cause of action in the plaint and if the cause of action described in the plaint was taken to be true and correct, the suit was not time-barred---In case of controversial questions of facts or law provision of O. VII, R.11, C.P. C. could not be invoked rather proper course for the court in such cases was to frame issues on such questions and decide the same on merits in the light of evidence---Application for rejection of plaint was dismissed by High Court.

Muhammad Saleh v. Deputy Commissioner, Tharparkar and others PLD 1963 Kar. 613; Hawaldar Sawar Khan v. Province of Sindh and others 1998 CLC 382; Pir Bux v. Muhammad Moosa 2007 YLR 1880; Jan Muhammad Abbasi v. Mukhtiarkar Estate Larkana and others 2007 CLC 1790; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Decca 190; M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others 1994 CLC 2413; Muhammad Yaqub and others v. The Province of the Punjab 1993 MLD 2419; Ali Ahmed v. Mst. Ghulam Zohra 1987 Quetta 189; Mian Muhammad Akrain v. Muhammad Rafi 1989 CLC 15; S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Muhammad Zaman v. Tariq Mahmood 1994 MLD 207; Mst. Sakina and others v. The Excise and Taxation Officer 1989 CLC 964; Muhammad Anwar v. Pak Arab Refinery Limited 2007 CLC 1821; Major (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633; Muhammad Altaf v. Abdur Rehman Khan 2001 SCMR 953; Ghulam Ali v. Asmatullah 1990 SCMR 1630; Amirzada Khan v. Itbar Khan 2001 SCMR 609; Mst. Raj Bibi v. Province of Punjab 2001 SCMR 1591; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa 2001 SCMR 338; Muhammad v. Mst. Rehmon 1998 SCMR 1354; Janat Bibi v. Sikandar Ali PLD 1990 SC 642; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Nemat Ali and another v. Malik Habibullah and others 2004 SCMR 604; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. and others 1993 SCMR 618 and Sardar and 5 others v. Rashid Ahmad and 12 others 1994 SCMR 1454 ref.

Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650 rel.

PLD 1963 Kar. 613; 1998 CLC 382; 2007 YLR 1880 and 2007 CLC 1790 distinguished.

(b) Sindh Revenue Jurisdiction Act (X of 1876)---

----S. 11---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Application for rejection of plaint---Plea of the defendants was that suit was barred under S.11 of the Sindh Revenue Jurisdiction Act, 1876 and the plaintiffs had failed to present appeal allowed by law before the Revenue hierarchy---Validity---Plaint was not confined to the acts and omission of revenue officers alone, but there were many other reliefs sought by the plaintiffs which could not be entertained and or decided by the Revenue hierarchy and such was not a simple matter of mutation entries and or its cancellation---Matter was also a mix question of law and facts---In case of controversial questions of facts or law, provisions of O. VII, R.11, C.P.C. could, not be invoked rather proper course for the court in such cases was to frame issue on such question and decide the same on merits in the light of evidence.

PLD 1963 Kar. 613; 1998 CLC 382; 2007 YLR 1880 and 2007 CLC 1790 distinguished.

Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650 rel.

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

----O. VII, R.11---Rejection of plaint---Requirements---For the purposes of rejection of plaint, only the averments of the plaint were to be looked into---"Cause of action" meant the bundle of facts incorporated in the plaint.

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

----S. 53---Application and scope of S.53, West Pakistan Land Revenue Act, 1967---Section 53 of West Pakistan Land Revenue Act, 1967 would apply to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry.

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

----O. VII, R.11---Rejection of plaint---Still born suit should be buried at its inception to save the time of court on a fruitless litigation.

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

----O. VII, R.11---Rejection of plaint---Scope---For the purposes of rejection of plaint, the material other than contents of the plaint might also be looked into.

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

----O. VII, R.11---Rejection of plaint---Averments contained in the plaint were presumed to be correct for the purposes of application under O. VII, R.11, C.P.C.---Lack of proof or weakness of proof in the circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint.

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

----O. VII, R.11---Rejection of plaint on technical grounds---Effect---Rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing legal remedy for undoing the wrong done in respect of his right.

Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650 rel.

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

---O. VII, R.11---Rejection of plaint---Scope---Controversial questions of facts or law---Provision of O. VII, R.11, C.P. C. could not be invoked rather the proper course for the court in such cases was to frame issue on such question and decide the same on merits in light of evidence.

K.B. Bhutto for Plantiffs.

Saeeduddin Nasir for Defendants Nos. 1 and 2.

Qazi Majid Ali, Assistant Advocate-General Sindh.

Date of hearing: 4th October, 2010.

2011 C L C 108

[Karachi]

Before Irfan Saadat Khan, J

Messrs HUSSAIN (PVT.) LTD.---Plaintiff

Versus

KARACHI FISH HARBOUR AUTHORITY---Defendant

Suit No. 606 of 2010, decided on 16th September, 2010.

Arbitration Act (X of 1940)---

----Ss.9 (b) & 14 (2)---Sindh Chief Court Rules (O.S.), R. 282---Arbitration---Making award rule of the court---Award by sole arbitrator---Defendants objected to award on the ground that matter was to be decided by two arbitrators one appointed by each party but the award was announced by sole arbitrator appointed by plaintiff only---Validity---Defendants had waived their objections and had continued to appear before the sole arbitrator without any objection till the last date when award was given---Raising of objection by defendants at such juncture would not vitiate the award granted by sole arbitrator merely on such ground alone---High Court declined to declare the award invalid or set aside---Award was made rule of the court in circumstances.

1982 CLC 97; 1990 MLD 261; PLD 1958 Kar. 158; 2003 YLR 3289; PLD 2002 Kar. 427; 2006 CLC 1060 and 1983 SCMR 718 ref.

PLD 1990 SC 359 rel.

Muhammad Masood Khan for Plaintiff.

Ali Sher Habibani for Defendant.

Date of hearing: 1st September, 2010.

2011 C L C 124

[Karachi]

Before Irfan Saadat, Khan, J

Syed ALI FIRDAUSI and 3 others---Plaintiffs

Versus

NAVEED JAHANGIR--Defendant

Suit No. 1362 of 2008, decided on 1st October, 2010.

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

----Ss. 54 & 56---Suit for permanent injunction and damages---Harassment alleged to be caused to plaintiff and his children by defendant---Murder of one plaintiff by defendant during pendency of suit---Effect---Plaintiffs, if feeling any threat to their lives, could approach appropriate forum as in a civil suit, only civil matter would be dealt with---In matter of such murder, Civil Courts had no role to play---Injunction either perpetual or temporary, could be granted only in respect of civil matters---Suit was dismissed in circumstances.

(b) Tort---

----Damages, suit for---Proof---General, vague and scanty evidence could not be relied upon in such matter---Damages suffered and quantity of amount claimed under each head would have to be proved by cogent evidence---Mere assertion of inflated amount without any corroboratory evidence would be of no avail to plaintiff.

Nazir Ahmed and another v. Haji Nazir Ali and 3 others 2006 MLD 907; Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737; Raja Fakhar Abbas and others v. Karachi Metropolitan Corporation 1998 CLC 1547 and M. Younas and Co. v. Hajiani Mariam Bai and others PLD 1963 (WP) Kar. 791 rel.

(c) Tort---

----Damages, suit for---Quantum of damages to be awarded by court---Principle stated.

The conscious of the court should be satisfied that the damages awarded, if not completely, satisfactorily compensate the aggrieved party.

(d) Equity---

---Person seeking equity must come to court with clean hands.

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

----S. 54---Suit for permanent injunction and damages---Proof---Person seeking equity must come to court with clean hands---Plaintiff would prove that his own act in such matter was fair, honest and free from any taint or fraud or illegality and that he acted in a fair and equitable manner.

S. Aamir Ali for Plaintiffs.

Nemo for Defendant.

Date of hearing: 21st September, 2010.

2011 C L C 135

[Karachi]

Before Mrs. Rukhsana Ahmed, J

NAA CONSULTING ENGINEERS (PVT.) LTD. and another-Plaintiffs

Versus

PUBLIC PRIVATE PARTNERSHIP UNIT through Chief Secretary Sindh, Karachi and 6 others---Defendants

Civil Suit No. 49 and C.M.As. Nos. 311, 2744 of 2010, decided on 5th July, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, & O.XXXIX, Rr.1, 2---Suit for declaration, permanent injunction and recovery of money---Application for grant of interim injunction---Plaintiffs had failed to show any direct nexus with the defendants; and no direct connection existed between the defendants and plaintiff---Party seeking injunction had to show prima facie case, balance of convenience and irreparable loss---Plaintiffs in the present case had failed to prove a prima facie case in their favour---Case for injunction was not made out---Issue as regard to the maintainability of the suit would be decided at the time of final adjudication of the suit after recording of evidence by both the parties.

S. Shehanshah Hussain for Plaintiffs.

Siam Hashmi along with Jam Asif and Khizer Asker Zaidi, A.A.-G. for Defendants.

2011 C L C 143

[Karachi]

Before Syed Zakir Hussain, J

ASIF RAZA---Petitioner

Versus

FAROZAN MIRZA and another---Respondents

Constitutional Petition No. S-668 of 2010, decided on 29th September, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for custody of minors and maintenance of children---Counsel for the parties agreed to the disposal of petition amicably in the terms in order to get the controversy resolved through consent order---According to terms of consent agreement; custody of the minors would remain with their mother and father would pick and drop children from the residence of mother to take their timely custody according to schedule at his own expenses---Father would continue enjoying the company of minors, subject to their wish, desire and willingness for such company; in case they would feel otherwise and/or became sick or engaged in the matter of any ceremonial gathering of the family of their mother, father would not insist on the compliance of order of the court for such occasion 'only---In case minors would not feel any pleasure and would not want to remain with father, during scheduled visiting hours, father would give preference and pay heed thereto irrespective of time schedule and would immediately drop the minors to place of their mother---Order of company and visit between father and minor, would be revisable and the time thereof would be open to be extended---Father would furnish a surety of Rs.100,000 for each child, which would be open to be forfeited in favour of other party at a matter of penalty of the default in compliance of the order---Suit and appeal of Guardian and Wards, pending in the court, would stand disposed of in terms of the order and would no more remain pending---Since the order contained a punitive measure, it was made clear that in case, where penalty was imposed and the surety was forfeited, fresh surety would make the order to be operative---Order accordingly.

Farrukh Zia G. Shaikh and Muneer Ahmed Panhwar for Petitioner.

Amir Azam for Respondent No. 1.

2011 C L C 150

[Karachi]

Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ

AFAQ RIAZ AHMED and another---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

C.P.No. D-1476 and Miscellaneous No. 5865 of 2010, decided on 4th June, 2010.

Prevention of Electronic Crimes Ordinance (LXXII of 2007)---

----Ss. 4, 8, 13, 16 & 19---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S.31(1)---Electronic Transaction Ordinance (LI of 2002), Ss.36 & 37---Constitution of Pakistan, Art.199---Constitutional petition---Grievance of the petitioners was that despite the `Prevention of Electronic Crimes Ordinance, 2007' having lapsed, they were being proceeded under the said Ordinance---In the present case, complaint under Ss.4, 8, 9, 13 & 16 of Prevention of Electronic Crimes Ordinance, 2007, under S.31(1) of Pakistan Telecommunication (Re-organization) Act, 1996 and Ss.36 & 37 of Electronic Transactions Ordinance, 2002 was lodged against the petitioners---Prevention of Electronic Crimes Ordinance, 2007, which was promulgated in 2007, lapsed on expiry of 120 days---Prevention of Electronic Crimes Ordinance, 2007 being a temporary law and same having been lapsed, proceedings under said Ordinance could not be continued in law---To the extent of the proceedings against the petitioners under the Prevention of Electronic Crimes Ordinance, the same was quashed---Petitioners, however, could be proceeded under other provisions of law as mentioned in the complaint in accordance with law.

Muhammad Arif v. The State 1993 SCMR 1589 ref.

Rasheed A. Rizvi, Zia-ul-Haq Makhdoom and Mahmood A. Qureshi for Petitioners.

Ashiq Raza, D.A.-G. and Adnan Karim, A.A.-G. for Respondents.

2011 C L C 157

[Karachi]

Before Ms. Rukhsana Ahmed, J

NELOFAR SAQIB---Plaintiff

Versus

SAIBAN BUILDERS AND DEVELOPERS and others---Respondents

Suit No. 918 of 2008, C.MA. No. 8982 of 2008 and C.M.A. No. 8860 of 2009, decided on 19th August, 2010.

Partnership Act (IX of 1932)---

---Ss. 39 & 48---Arbitration Act (X of 1940), S.34---Specific Relief Act (I of 1877), Ss.44 & 54---Suit for dissolution of partnership, rendition of accounts, appointment of receiver and injunction---Referring the matter to arbitrator---Pending suit filed by the plaintiff, defendants filed applications under S.34 of Arbitration Act, 1940 for a direction to the plaintiff to approach relevant Arbitration Forum in accordance with one of the clauses of partnership deed---Plaintiff had alleged commission of fraud by the defendants---Where allegations of fraud were levelled by one party against another; and if the same appeared to be substantial, weighty and bona fide allegations, then case should be tried in court rather than to remit the same to arbitrator for a decision---In the present case plaintiff having levelled allegations of fraud on the part of the defendants, same should only be decided by the court of law instead of being referred to arbitration proceedings.

PLD 2006 SC 196 ref.

Waqar Muhammad Khan Lodhi for Plaintiff.

Wajid Wyne for Defendant No. 2.

Zahid Marghoob for Defendant No. 3.

2011 C L C 162

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

MUHAMMAD QASIM and 9 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary and 4 others---Respondents

Constitutional Petition No. D-390 of 2007, decided on 20th January, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Unauthorized construction of mosque---Submission of counsel for the petitioner was that mosque had been constructed on an amenity plot unauthorizedly without approved building plan---Counsel for respondents had stated they had applied for regularization and the matter was under consideration---By consent, it was ordered that except mosque with attached wazookhana, would for the time being, be not disturbed and rest of the construction, if raised, would be demolished and the encroachment would also be removed---Amenity area reserved for park be restored including the 10 feet lane covered by construction---Authority and Town Administration would process the application for regularization and approval of mosque strictly in accordance with law, rules regulations applicable thereto within a period of 30 days---Order accordingly.

S. Fazal-ur-Rehman for Petitioners.

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

Masroor Ahmed Alvi for Respondent No. 5.

Manzoor Ahmed and Shaikh Riaz for the C.D.G.K.

Date of hearing: 20th January, 2010.

2011 C L C 172

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD NAEEM---Applicant

Versus

WAQAR AKHTAR and 2 others---Respondents

Civil Revision No. S-46 of 2008, heard on 8th October, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dishonoured cheque---Refusal of Trial Court to grant to defendant leave to defend suit and passing of decree against him---Defendant's objection regarding jurisdiction of Trial Court to the effect that summonses served upon him were not in Form-IV of Appendix-B of C.P.C., thus, Trial Court should have treated such suit as regular suit instead of summary suit---Validity---Defendant after service of summonses had filed leave application within time under provisions of O.XXXVII, R. 3, C.P.C., and submitted to jurisdiction of Trial Court, and was conscious that proceedings initiated against him were under summary procedure---Such objection was neither raised nor argued before Trial Court, thus, same could not be allowed to be raised in revisional jurisdiction---Defendant had not shown any plausible defence in leave application---High Court dismissed revision petition in circumstances.

Waseem Iqbal v. Tanveer Ahmad 2008 CLC 1612; Naveed Haider v. Messrs Noman Abid Co. Ltd. 2009 CLC 1123; Bilqees Fatima v. Abdul Razzaq PLD 1986 Kar. 444; Ali Muhammad Shah v. Ijaz Hussain Shah 2007 MLD 1619; Fine Textile Mills Ltd. v. Haji Umer PLD 1963 SC 163 and 1985 CLC 3023 ref.

Manzoor Ahmed v. Muhammad Iqbal 1994 SCMR 560 and Rana Mumtaz Ahmed Noon v. Muhammad Javeed Khan 1999 SCMR 1845 rel.

Zaffar Ali Shah Rizvi for Applicant.

Sadaruddin Buriro for Respondent No. 1.

Agha Athar Hussain A.A.-G. for Respondent No. 2 and 3.

Date of hearing: 8th October, 2010.

2011 C L C 183

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

CITY DISTRICT GOVERNMENT, KARACHI through its District Coordination Officer---Appellant

Versus

Mrs. YASMIN and 4 others---Respondents

High Court Appeals Nos. 284 and 285 of 2009, decided on 10th November, 2009.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 23---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Acquisition of land---Execution proceedings---High Court, in execution application directed that alternate land would be provided to the decree-holder and in case it was not allotted within the stipulated time, decree-holder should be allowed to raise construction on the plot according to approved plan and judgment-debtor would not create any hindrances to the proposed construction without due process of law---Respondent/decree-holder was the owner of the, subject property and he was alternatively entitled to raise construction---Foreign Government interest being involved in the case, two months' time was allowed to complete the entire exercise of land acquisition---If entire exercise was not concluded and the amount was not deposited or paid to the decree-holder within two months, decree-holder would be entitled to resume construction of the plot.

Khawaja Shams-ul-Islam for Appellant.

Manzoor Ahmed for Respondents.

2011 C L C 191

[Karachi]

Before Salman Hamid, J

MUHAMMAD TARIQ SIDDIQUI---Plaintiff

Versus

NASIR ALI and another---Defendants

Summary Suit No. 300 of 2009, decided on 21st October, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount of dishonoured cheque---Application for leave to defend suit---Application for leave to defend suit though mentioned that cheque was never issued by the defendants, but memorandum of the Bank whereby cheque was returned on two occasions showed that "the funds were not sufficient" and not that "the drawer's signature differed"---Only plausible and logical conclusion that could be drawn was that the cheque was issued by the defendants to the plaintiff under valid signatures---Mere disputing the amount envisaged in the cheque or cheque itself, would not entitle the defendants for leave as impact of O. XXXVII, C.P.C. was to curtail full trial of the suit---Object of summary procedure having been achieved by the plaintiff needed to be efficaciously remedied and no prolong commercial litigation was required since admission of partnership and its dissolution subsequently was also admitted; and also the fact that cheque had been dishonoured for want of adequate funds and not because of falsification of signatures of the defendants---No fair dispute existed to be tried, application to defend suit was dismissed and suit filed by the plaintiff was decreed with interest, in circumstances.

Asif Nadeed v. M/s. Bexshim Corp. 2001 CLC 653; Naveed Haider v. M/s. Noman Abid Co. Ltd. 2009 CLC 1123; Muhammad Ali Nawaz and 3 others v. Sh. Muhammad Aslam PLD 2010 Lah. 219 and Tahir Hassan Choudhery v. Shahid Ahmed Khan 2006 CLC 640 ref.

Muhammad Khalid for Plaintiff.

Sardaruddin Qureshi for Defendants.

2011 C L C 198

[Karachi]

Before Zahid Hamid, J

Mst. ANESA YAR'MUHAMMAD Daughter of Dr. YAR MUHAMMAD: In the matter

S.M.A. No. 109 of 2003 and C.M.As. Nos. 926, 1128 of 2009, 165 of 2010, decided on 24th February, 2010.

Succession Act (XXXI of 1925)---

----Ss. 263, 278, 282 & 374---Petition for letter of administration of property and succession certificate---Objection application---Counsel for objector in his application had alleged that property in question had fraudulently been shown in the schedule of property in the main petition, which should have been excluded; and that an appropriate action could be initiated under S.282 of Succession Act, 1925 for allegedly committing fraud and breach of trust---Counsel for objector prayed that the grant of letter of administration should be annulled by way of its suspension without holding any inquiry or adducing evidence---Validity---Held, at such stage it could not be said that whatever the objector was stating was true; and the entire proceedings should be reversed---Whatever course could be resorted to as a remedy under the facts and circumstances, would ultimately require inquiry and evidence---Objector, in circumstances, could file appropriate application for annulment in accordance with law, subject to there being prima facie evidence in his favour to support such plea.

Muhammad Abdullah and Mohsin Shahwani for Petitioner.

2011 C L C 215

[Karachi]

Before Zahid Hamid, J

Ms. NASIM BASHIR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Constitutional Petition No. S-733 and C.M.As. Nos. 4203, 3376 of 2010, decided on 4th November, 2010.

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

----S. 16(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Landlord sought ejectment of tenant on the ground of non-payment of rent and subletting the same without permission---Rent Controller struck off defence of the "tenants" and directed tenants to deposit arrears of rent as well as future rent but no specific direction was given to the tenant and alleged sublettee to make such deposits with the Rent Controller---Appellate Court, on appeal, upheld the judgment and decree of the Rent Controller---Validity---Alleged sublettee at any stage of the proceedings, was not admitted to be the tenant, yet the alleged rent deposited by her at a different rate was allowed to be adjusted---Rent Controller was supposed to clearly saddle the tenant and the alleged sublettee with the liability as the circumstances of the case could permit in accordance with law to make payment of arrears as well as future rent---Order passed by Rent Controller under S.16(1) of the Sindh Rented Premises Ordinance, 1979 was quite uncertain inasmuch as it was not mentioned as to whose defence had been struck off---Order of ejectment could not be followed in circumstances---High Court set aside both impugned orders as well as order passed under S.16(1) of the Ordinance and allowed constitutional petition to the extent that the matter was remanded to the Rent Controller with the direction to the parties to appear before him on the date fixed by it and to proceed with the case from the stage of written statement after fresh notice to the tenant in the case and pass speaking and definite orders whenever the stage might so warrant---High Court further directed that the amount of alleged "rent" deposited by the alleged sublettee should be paid to the landlord as if the same were mesne profit if it were held that she (sublettee) was not the tenant for adjustment against any claim made in any civil court between the parties and without prejudice to the respective rights of the alleged sublettee and the landlord to establish their respective pleas before the Rent Controller.

Muhammad Afzal for Petitioner.

Zakir Hussain Khaskheli for Respondents.

2011 CLC 235

[Karachi]

Before Salman Hamid, J

Messrs ROYAL GROUP---Plaintiff

Versus

Messrs SEMOS PHARMACEUTICALS (PVT.) LTD.---Defendant

Suit No. 1373 and C.M.A. No. 9329 of 2007, decided on 24th November, 2010.

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

----S.12---Arbitration Act (X of 1940), S. 34---Specific performance of agreement---Arbitration---Stay of proceedings---Delay---Defendant filed application under S. 34 of Arbitration Act, 1940, seeking stay of proceedings and referring the matter to arbitrator, as arbitration clause was available in the agreement between parties---Plea raised by plaintiff was that referring the matter to arbitrator would cause delay in proceedings---Validity---Plea raised by plaintiff was not a position for not referring the matter to arbitration, more particularly when it came to be appreciated from the perception that parties by choice willingly and knowingly chose such jurisdiction and that it could not be defeated as it would amount to usurping the control of domestic forum which plaintiff and defendant had agreed upon earlier in time when they arrived at executing the agreement---Was not proper to proceed into the matter for which previous consent was accorded by parties to each other for resolution before a forum other than High Court---As the parties had chosen to refer any dispute arising out of or in connection with it and matters contemplated therein would be settled by arbitration between them, therefore, the same must be referred to arbitration---High Court stayed proceedings of suit filed by plaintiff and referred the matter to arbitrator in accordance with provisions of agreement between parties---Application was allowed accordingly.

PLD 1965 Dacca 26 and 1998 SCMR 310 distinguished.

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

----S.34---Stay of proceedings---Principle---Steps taken after filing of application under S. 34 of Arbitration Act, 1940, does not disentitle defendant to pray for stay of proceedings of the suit---Only proceedings, which were taken prior in time in moving of application under S. 34 of Arbitration Act, 1940, would disentitle a party to ask for stay of proceedings---Even if written statement has been filed by defendant after preferring application under S. 34 of Arbitration Act, 1940, such step would not debar and/or disentitle defendant from seeking stay of proceedings under S. 34 of Arbitration Act, 1940.

Aimal Kansi for the Plaintiff.

Mirza Mehmood Baig for the Defendant.

2011 C L C 250

[Karachi]

Before Ms. Rukhsana Ahmed, J

MUHAMMAD IQBAL---Plaintiff

Versus

ALTAF HUSSAIN and others---Defendants

Suit No. 1370 of 2007 and C.M.A. No. 3144 of 2009, decided on 8th November, 2010.

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

----Ss. 42 & 56---Civil Procedure Code (V of 1908), S.91 & O. VII, R.11---Sindh Buildings Control Ordinance (V of 1979), S.6(2)---Karachi Building and Town Planning Regulations, 2002, Reglns.18-3.1.8 & 25-2.1---Public nuisance---Suit for declaration and permanent injunction---Essential conditions for seeking relief of declaration under S.42, Specific Relief Act, 1877, enumerated---Plaintiff contended that defendant unlawfully sub-divided and converted the suit property to unauthorized commercial use---Defendant contended that plaintiff had failed to disclose any cause of action, therefore, plaint was liable to be rejected---Validity---No easement right of plaintiff was infringed by construction on the suit property---Object of exercise of powers under O. VII, R.11, C.P. C. was to bring an end to the incompetent suit at the earliest to avoid wastage of time---Four conditions were essential for seeking relief of declaration under S.42 of Specific Relief Act, 1877 namely, that plaintiff must be entitled to a legal character at the time of suit; that plaintiff must be entitled to a right to property; that defendant must have denied or been interested in denying such legal character or right and that plaintiff should not be in position to ask for relief consequential upon declaration sought---Plaintiff, in the present case, had failed to obtain permission of Advocate-General which was a mandatory condition in the case of a `public nuisance' under S.91, C.P.C.---Court was not liable to entertain suit where prior permission of Advocate General in the case of public nuisance had not been obtained by plaintiff---Where no benefit accrued to the plaintiff or plaintiff had set up merely a abstract right to satisfy his ego or settle a personal score, suit could not be allowed to proceed---Plaintiff, in circumstances, failed to disclose any cause of action against the defendant---Plaint was rejected accordingly.

2007 SCMR 1157 and 2004 CLC 1029 ref.

2003 CLC 1156; PLD 1978 Lah. 113; 2003 CLC 799; PLD 1982 Kar. 940; 1989 MLD 1966 and 2005 CLC 856 rel.

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

----O. VII, R.11---Object of O. VII, R.11, C.P.C. ---Object of exercise of power under O. VII, R.11, C.P.C. was to bring an end to the incompetent suit at the earliest to avoid wastage of time.

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

----S. 91---Public nuisance---Suit for declaration---Maintainability---Condition---Prior permission of Advocate General in the case of public nuisance under S.91, C.P.C. was a mandatory condition---Court was not liable to entertain suit where said permission had not been obtained by the plaintiff before filing the suit.

Muhammad Zahid Khan for Plaintiff.

Asim Iqbal and Arif Khan for Defendants.

Fauzia Khan for KBCA.

2011 C L C 294

[Karachi]

Before Muhammad Ali Mazhar, J

Syed ASADUL HAQ---Plaintiff

Versus

Messrs BALOCHISTAN GLASS LIMITED through Officer Secretary/Managing Director---Defendant

Suit No. 1129 of 2007 and C.M.A. No. 4941 of 2008, decided on 15th October, 2010.

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

----O. VII, R.10---Return of plaint---Defendant filed an application under O. VII, R.10, C.P.C. before High Court on the ground that one of the agreements for engagement of contractor was executed at place S' and under one of its clauses it was agreed that the court at placeS' should have exclusive jurisdiction, therefore, the suit on the basis of such agreement was liable to be rejected/returned---Plaintiff contested application on the ground that all the money transactions/payments were made by defendant at place K' and the cause of action had accrued at placeK' where Head Office of the defendant was located, therefore, the court at place K' had jurisdiction to proceed into the matter---Validity---Held, in the present case, there were two different agreements, the plaintiff should have filed two separate suits for two different causes of action and joinder of causes of action and joint trial was not possible or permissible for the agreement having exclusive jurisdiction clause for recovery of money which should have been filed in the competent court having territorial jurisdiction at placeS'---Agreements related to different services for different units, therefore, the cause of action for both suits had different nature and character---Plaintiff might institute a suit at place `S'---High Court returned the plaint based on the agreement with exclusive jurisdiction clause and dispose of the application with direction to the, plaintiff to file amended plaint within two weeks and delete averments and modify prayer clause relating to the agreement with exclusive jurisdiction clause.

Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 1174; Ch. Mehtab Ahmed and another v. Mir Shakeel-ur-Rehman and 4 others 2004 MLD 662; Saleem Mehtab v. Messrs Rathan Best Food Ltd. Company 2010 MLD 1015; Alam Khan v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375; Muhammad Yasin v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 and Province of Punjab through District Collector Mianwali and others v. Mehmood-ul-Hassan Khan 2007 SCMR 933 ref.

Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 2375; PLD 1993 SC 395 and 2007 SCMR 933 distinguished.

2010 MLD 1015 rel.

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

----S. 28---Scope of S.28, Contract Act, 1872---Section 28 of the Contract Act, 1872 did not restrain the parties from entering into an agreement to get their dispute decided by a particular court of competent jurisdiction for their convenience and avoidance of necessary objection to the territorial jurisdiction of the court---Intention behind the said provision of law was that all those agreements which restrained a person to enforce his rights under a contract by usual legal proceedings in the ordinary tribunals were void---Party could not be restrained to enforce his right in ordinary court of law but if by mutual agreement between the parties a particular court having territorial and pecuniary jurisdiction was selected for the determination of their dispute, there appeared to be nothing wrong or illegal in it or opposed to public policy---Such agreement was legal and not hit by S.28 of the Contract Act, 1872 and the parties were bound to follow the same.

2010 MLD 1015 rel.

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

----O. VII, R.10---Return of plaint---Where the parties were at issue regarding jurisdiction, it was necessary that court should decide the question of jurisdiction first in order to determine whether the court had jurisdiction and the suit was rightly instituted or not---If the parties had agreed that suit was to be filed in a particular court and the suit was filed in another court, the proper course for the court was to return the plaint for presentation to the court agreed upon by them.

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

----S. 20(c)---Contract Act (IX of 1872), S. 28---Territorial jurisdiction---Validity of an agreement by which the parties preferred one of the two courts depended upon the fact that both courts must have jurisdiction to decide the matter---If the party had not chosen the territorial jurisdiction of a particular court in the agreement the territorial jurisdiction could have been determined in view of S.20 (c), C.P.C. which provided right to sue at any place on accrual of cause of action in whole or in part.

Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi 1992 SCMR 2375; PLD 1993 SC 395 and 2007 SCMR 933 distinguished.

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

---O. II, R.2-Suit to include whole of the claim---Scope---Claim of plaintiff was based on two different agreements for two different services out of which one had specifically provided the choice of jurisdiction---Scope---Joinder of cause of action in one suit was not possible---Order II, R.2, C.P.C. provided that the suit include whole of the claim which the plaintiff was entitled to make in respect of cause of action but a plaintiff might relinquish any portion of his claim in order to bring suit within the jurisdiction of any court---In the present case, there were two different agreements, the plaintiff should have filed two separate suits for two different causes of action and joinder of causes of action and joint trial was not possible or permissible for the agreement having exclusive jurisdiction clause for recovery of money which should have been filed in the competent court having territorial jurisdiction.

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

----O. II, Rr.2 & 6---Joinder of several causes of action---Scope---Civil Procedure Code, 1908 permitted joinder of several causes of action, but the court had power to order separate trial when it appeared that such causes of action could not be conveniently tried or disposed of together, however; in order to handle, overcome and deal with such type of situation, O.II, R.6, C.P.C. provided a solution which applied where cause of action joined in the same suit was essentially of a different character.

Ch. Abdul Rasheed for Plaintiff.

Masood Khan Ghori for Defendant.

2011 C L C 314

[Karachi]

Before Muhammad Ali Mazhar, J

LIAQUAT HUSSAIN---Plaintiff

Versus

SAUDI AIR LINE, through Country Manager---Defendant

Suit No. 155 of 2009 and C.M.A. No. 2339 of 2010, decided on 15th October, 2010.

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

----S. 13---Civil Procedure Code (V of 1908), S.151---Application for refund of court-fees-Scope-Plaintiff filed application under S.13 of the Court Fees Act, 1870 for refund of court fees in a suit for recovery of damages on the ground that the suit was withdrawn on the basis of compromise at its initial stage---Assistant Advocate-General contested application on the ground that the suit had reached at the stage of settlement of issues and after lapse of considerable time, there was no justification to ask for the refund of court-fees-Validity-Suit was withdrawn on the basis of compromise which reached between the parties outside the court and neither the issues were settled nor any interlocutory application was filed, decided or pending in the suit---Suit was fixed first time for settlement of issues and then on second date, it was withdrawn, thereby not burdening the court to expend its valuable time in examining the case, in hearing arguments, deliberating over the judgment and then formally taking time to write it---High Court allowed application and directed the office to issue necessary certificate for refund of court fees to the plaintiff.

Sh. Riazuddin v. Aqil-ur-Rehman Siddiqui and 4 others PLD 1993 SC 76 ref.

Tradewell (Pakistan). Corporation v. Standard Bank Ltd. PLD 1975 Kar. 178; Bhola v. Sardar Muhammad PLD 1976 Lah. 1268 and Nabi Bux Khan Bhurgari v. National Bank of Pakistan PLD 1988 Kar. 24 rel.

(b) Constitution of Pakistan---

----Art. 37(d)---Inexpensive Justice---Scope---Judiciary was not debarred from interpreting the positive laws of Pakistan in the light and with the aid of Principles of policy contained in the Constitution---Provision of "inexpensive" justice would imply the dispensation thereof at as less cost as possible.

Khursheed Javed for Plaintiff.

Qazi Majid Ali, Assistant Advocate-General, Sindh for Defendant.

2011 CLC 323

[Karachi]

Before Ms. Rukhsana Ahmed, J

ARABTEC PAKISTAN (PVT.) LTD. Through Chief Executive---Plaintiff

Versus

ENSHAANLC DEVELOPMENTS (PVT.) LTD. through its Chief Executive and another---Defendants

Suit No. 1354 and C.M.As. Nos. 8816, 10628, 10630 of 2009, decided on 13th October, 2010.

Arbitration Act (X of 1940)---

----Ss. 20 & 41---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Arbitration agreement, filing of---Dispute between parties relating to construction contract---Application by plaintiff to restrain defendant from encashing Bank Guarantee---Plaintiff's plea that such guarantee was conditional upon default of contractual obligations by plaintiff; that defendant had stopped construction for redesigning project, thus. plaintiff stood released from performance and that what was owed to plaintiff by defendant was more than total value of such Guarantee---Validity---Question involved was as to whether any payment was due to plaintiff or whether defendant had paid to plaintiff more than what was due---Such question could successfully be decided by Arbitrator appointed by court with consent of both parties---High Court accepted such application by observing that such Guarantee would remain intact till making of award by Arbitrator.

AIR 1988 Dehli 207; PLD 1996 Kar. 183; 2002 SCMR 1781; 2008 CLC 726; PLD 1976 Kar. 644; PLD 2003 SC 191; 1993 CLC 1926; 1993 MLD 1234 and PLD 1994 SC 311 ref.

Zahid F. Ebrahim for Plaintiff.

Munir A. Malik for Defendant No. 1.

Ijaz Ahmed for Defendant No. 2.

2011 CLC 349

[Karachi]

Before Irfan Saadat Khan, J

MUHAMMAD AYUB---Applicant

Versus

BARKAT ALI SHAIKH and 7 others---Respondents

Civil Revision Application No. 11 of 2009, decided on 5th November, 2010.

(a) Administration of justice---

----If basic structure is illegal, all super structure built thereupon is also illegal.

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

----Ss. 51 & 52---Civil Procedure Code (V of 1908), S.115---Specific Relief Act (I of 1877), S. 42---Revision---Concurrent findings of facts by two Courts below---Lis pendens, doctrine of---Compensation for improvements---Suit filed by plaintiff was decreed by Trial Court in his favour and Lower Appellate Court maintained judgment and decree passed by Trial Court---Defendant was purchaser of suit property from the person who prepared bogus title documents of suit property---Defendant sought benefit of doctrine of lis pendens and also sought compensation of improvements made by him after purchase of suit property---Validity---Defendant acquired suit properly during pendency of suit, hence, he could not claim that he was not in knowledge of the fact that he had purchased a property which was in dispute, therefore, doctrine of lis pendens was not applicable---No amount could be claimed from plaintiff as defendant did not raise construction in good faith or with bona fide and honest impression that property acquired by him was free from disputes, therefore, defendant could not claim any compensation for such improvements---Relief sought under S. 51 of Transfer of Property Act, 1882, was not available to defendant, who failed to point out any legal infirmity in findings recorded by two Courts below---When concurrent findings recorded by Courts did not suffer from any legal infirmity, no interference in that regard was required---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

2003 CLC 250; 2003 MLD 1970; 2008 SCMR 352; AIR 1919 Madras 685; AIR 1929 Lah. 825; 1985 SCMR 345; PLD 1992 S.C. 180; 1990 CLC Kar. 47; 1997 SCMR 284 and PLD 2008 Lah. 51 ref.

PLD 1994 SC 291 rel.

Hassan Mehmood Baig for Applicant.

Respondent No. 1 in person.

Nemo for Respondents Nos. 2 to 5.

Mumtaz Alam Leghari, A.A.-G. for Respondents Nos. 6 to 8.

Date of hearing: 25th October, 2010.

2011 C L C 368

[Karachi]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

OFFICERS ASSOCIATION T.C.P. through its General Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Commerce and others---Respondents

Constitutional Petition No. D-820 and Misc. Nos. 12474, 5299 of 2009, decided on 4th November, 2010.

Sacked Employees (Reinstatement) Ordinance (XI of 2009)----

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Aggrieved person---Non-statutory rules---Petitioner was a registered association who claimed to be working for the rights of employees and officers working in Trading Corporation of Pakistan---Grievance of petitioner was that ex-employees of Rice Export Corporation of Pakistan and Cotton Export Corporation should not be inducted in Trading Corporation of Pakistan---Validity---Provisions of Sacked Employees (Reinstatement) Ordinance, 2009, conferred right on certain persons to be taken back in employment and did not restrict right of an employer to take any other person into his employment---No statutory rules were available in Trading Corporation of Pakistan, therefore, Constitutional petition was not maintainable---Petitioner association was not competent to maintain a Constitutional petition as it was not an aggrieved person in respect of any grievance, whether statutory or in respect of fundamental rights of any or all of its members---Petition was dismissed in circumstances.

Pakistan International Airlines Corporation v. Tanveer-ur-Rehman PLD 2010 SC 303; Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan 1964 PLC 121 and Muntazima Committee, Al-Mustafa Colony, Karachi and 3 others v. Director Katchi Abadi Sindh and 5 others PLD 1992 Kar. 54 ref.

Afroz Ilahi and 2 others v. Karachi Metropolitan Corporation and another 1990 MLD 828 and Sindh Graduates Association and another v. The State Bank of Pakistan and 2 others 1992 MLD 2238 distinguished.

Democratic Workers' Union C.B.A. v. State Bank of Pakistan 2002 PLC (C.S.) 614 and Mutual Funds Association of Pakistan v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another 2010 PLC 306 rel.

Mir Afzal Khan for Petitioner.

Muhammad Nawaz Shaikh for Respondents Nos. 4 to 11.

2011 CLC 381

[Karachi]

Before Imam Bux Baloch, J

Mst. SAIQA---Petitioner

Versus

PROVINCIAL POLICE OFFICER, SINDH and 8 others---Respondents

Constitutional Petition No. S-1786 of 2010, decided on 11th, October, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 114 & 47---Review---Object and scope---Applicants/respondents sought review on the ground for the first time, that their denial of allegations levelled by the petitioner was not considered by the court---Validity---Applicants did not point out any error or typographical mistake in the impugned order---Scope of review proceeding being limited and object of review was to correct serious error in the order resulting in miscarriage of justice---Grounds not taken at the earlier stage could not be allowed to be raised at later stage---Mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong would not be a valid ground for review of the judgment unless the court had failed to consider important question of law---Impugned order was passed after considering material on record---Review application was dismissed.

Abdul Hakeem and others v. Khalid Wazir 2003 SCMR 1501 and Mehdi Hassan v. Province of Punjab through Member Board of Revenue and others 2007 SCMR 755 fol.

Nisar Ahmed G. Abro for Respondents Nos. 6 and 7.

Naimatullah Bhurgri for the State Counsel.

2011 CLC 401

[Karachi]

Before Aqeel Ahmed Abbasi, J

Capt. Syed SHAHRUKH ABBAS---Applicant

Versus

Aga FAQUIR MUHAMMAD and 3 others---Respondents

Civil Revision Application No. 140 of 2009 and C.M.As. Nos. 3525, 3415 of 2010, decided on 6th October, 2010.

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

----O. I, Rr. 10 & 13---Defamation Ordinance (LVI of 2002), Ss.14 & 15---Defamation---Necessary or proper party---Scope---Court's power to strike out or add parties---Power of adding party to proceeding was not a question of initial jurisdiction but of discretionary jurisdiction and such power had to be exercised in view of facts and circumstances of each case---Party without which no effective decree could be passed was a necessary party---Person against whom no relief was sought or against whom no relief could possibly be granted was not a necessary or proper party---Plaintiff sought relief against defendant for issuing defamatory e-mail and raised no grievance against the proposed intervenor---No issue had been formulated which could justify the inclusion of proposed intervenor nor any ground was raised by the defendant/applicant through application under O.I. R.10, C.P.C.-Cases filed under Defamation Ordinance, 2002 were required to be disposed of expeditiously---No valid ground was raised by defendant who failed to point out any illegality in the impugned order warranting interference by High Court---Re visional was dismissed in circumstances.

Hidayat Ullah v. Zahir Muhammad and 5 others PLD 2005 Pesh. 184; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Pakistan Banking Council and another v. Ali Maohtaram Naqvi and another 1985 SCMR 714; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 ref.

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

----Ss. 14 & 15---Scope---Cases filed under Defamation Ordinance, 2002 were required to be disposed of/decided expeditiously.

Rehman Aziz Malik for Applicant.

Fasih-uz-Zaman Abbasi for Respondents Nos. 1 to 3.

2011 C L C 418

[Karachi]

Before Zahid Hamid, J

SAMIR ANWAR and another---Petitioners

Versus

Messrs A.R. HUSSAIN AND COMPANY and another---Respondents

Constitutional Petition No. S-570 of 2010, decided on 2nd November, 2010.

Limitation Act (IX of 1908)---

----S. 5 &, Art. 152---Appeal to District Judge---Delay of one day, application for condonation of---Appeal ought to have been filed on 24-12-2007 being its last day, but was not filed, whereafter winter vacations commenced and courts were to reopen on 3-1-2008---Appeal filed on 1-1-2008 during winter vacations as urgent case with such application supported by affidavit of Counsel---Plea that such delay occasioned due to mistake of appellant's Counsel in calculating period of limitation---Validity---Appellant had not mentioned such plea in the application and affidavit of his Counsel---Appellant had advanced such plea while filing appeal as urgent case during winter vacations---Appeal for being time barred was dismissed in circumstances.

Muhammad Azeem and another v. Muhammad Nawaz PLD 1961 (W.P.) Lah. 137; Muhammad Ramzan v. Ahmed Bux 1991 SCMR 716; Shafqat Hussain Shah v. Sakina Begurri and others 1987 CLC 664 and Pakistan and another v. Muhammad Hedayet Ullah PLD 1961 Dacca 29 ref.

Arif Khan and Liaquat Hussain for Petitioners.

Muhammad Farooq for Respondents.

2011 C L C 433

[Karachi]

Before Muhammad Ali Mazhar, J

LUCKY CEMENT LIMITED---Plaintiff

Versus

HMS BERGBAU A.-G. and 3 others---Defendants

Suit No. 655 and C.M.A. No. 4198 of 2010, decided on 24th December, 2010.

Specific Relief Act (I of 1877)---

----Ss.12 & 22---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction---Recovery of damages---Encashing of bank guarantee---Plaintiff-company sought specific performance of agreement to supply of goods---Validity---On one hand, the plaintiff was asserting its right of specific performance and showing disinterested in bank guarantee amount or damages but on the other hand got encashed bank guarantee on the ground that it was being expired---If plaintiff was keen in specific performance, then it should not have encashed the guarantee, no matter it was being expired--Encashment of bank guarantee after obtaining interim order of High Court showed lack of prima facie case in favour of plaintiff and the same amounted to surrender/relinquish the right to maintain injunction till final adjudication of the case---Plaintiff failed to make out any prima facie case, balance of convenience also did not lie in its favour and there was no question of any irreparable loss when not only the bank guarantee had been encashed due to non-performance of the agreement but plaintiff had also claimed huge amount of damages/compensation, therefore, plaintiff was not entitled to injunctive relief---Application was dismissed in circumstances.

Messrs Dada Steel Mills v. Metal Export and others 2009 CLD 1524; Molasses Export Company Limited v. Consolidated Sugar Mills Limited 1990 CLC 609; Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited 1997 CLC 302; American Jurisprudence Volume 49 Page 151, Specific Performance, Section 128; Messrs Jolly Steel Industries v. Union of India AIR 1979 Born. 214; Vijaya Minerals v. Bikash Chandra AIR 1996 Cal. 67; Behnke v. Bed Shipping Company Limited 1927 K.B. 649; James Jones and Sons v. Earl of Tanker Ville 1909 Chancery Division 440; Sky Petroleum Limited v. VIP Petroleum Limited [1974] All E.R. 1954; U.P. State Electricity Board v. Ram Barai Prasad AIR 1985 Allahabad 265; Petro Commodities Private Limited v. Rice Export Corporation PLD 1998 Kar. 1; Haji Abdul Sattar v. Secretary, Karachi Grains and Seeds Merchants 1991 MLD 2697; Fother Gill v. Rowland (1873) Law Reports 17. Equity 132; Al-Farooque Shipping v. Vasa Shipping Company 1980 CLC 1228; Puri Terminal Limited v. Government of Pakistan 2004 SCMR 1092; Atlas Khan v. Muhammad Nawaz 2010 SCMR 1217 and Shakeel Ahmed v. Mst. Shaheen Kausar 2010 SCMR 1507 ref.

Rashid Anwer for the Plaintiff.

Shaiq Usmani for Defendant No. 1.

Agha Zafar Ahmed for Defendant No. 2.

M. Sarfraz Sulehry for Defendant No. 4.

Mazhar Lari for Intervener.

2011 CLC 511

[Karachi]

Before Tufail H. Ebrahim, J

Mrs. FARIDA HANIF---Applicant

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior Affairs, Islamabad and another---Respondents

Revision Application No. 112 of 2010, decided on 23rd December, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), S.115---Date of birth---Correction---Plaintiff sought correction of her date of birth in her Computerized National Identity Card---Validity---Both the courts below failed to appreciate the fact that passport of plaintiff had been renewed by competent authorities on more than three occasions and concerned issuing authority did not raise any objection regarding her date of birth---Date of birth of plaintiff appearing in passports issued by Government of Pakistan as well as by Government of Great Britain were not managed, forged and fabricated or plaintiff did not file the suit for any mala fide or ulterior reasons---Plaintiff was neither claiming any right in service nor having any other interest of whatsoever nature in seeking correction of date of birth which would not adversely affect any right of any other person or be burden upon exchequer in any manner---Plaintiff was citizen of Pakistan and had a right to obtain computer readable Pakistani passport and was, therefore, entitled to rectify the mistake as to her date of birth appearing in her Computerized National Identity Card from 11-2-1954 to 1-1-1946---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two courts below and directed the authorities to rectify the mistake as to date of birth appearing on Computerized National Identity Card---Revision was allowed in circumstances.

Tasawur Ali Hashmi for Applicant.

Mujahid Khan, Law Officer for Respondent No. 2.

NADRA is present.

2011 C L C 538

[Karachi]

Before Tufail H. Ebrahim, J

AHMED---Appellant

Versus

Miss AISHA TARIQ---Respondent

F.R.A. No. 20 of 2010, decided on 24th December, 2010.

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

----Ss. 7(5) & 15---Ejectment of tenant---Default in monthly rent---Expiry of tenancy agreement---Rate of monthly rent---Contention of tenant was that after expiry of tenancy agreement, no new agreement was executed between the parties; therefore,, he had become statutory tenant and was not required to pay enhanced rent---Validity---After expiry of tenancy agreement if the same was not mutually renewed then terms and conditions of expired agreement would continue on the same terms and conditions as mentioned in the tenancy agreement including any provision to enhancement of rent, and only those terms and conditions would not be applicable which were repugnant to Cantonments Rent Restriction Act, 1963---Tenant admitted in his cross-examination that rate of rent was Rs. 75,000/- and after enhancement of 10%, rent became Rs. 82,500/- per month---Provisions of S. 7 (5) of Cantonments Rent Restriction Act, 1963, would be applicable only after once the fair rent was determined by the Rent Controller---As the enhancement .was in terms of tenancy agreement and no fair rent was fixed by Rent Controller, therefore, Rent Controller had rightly come to the conclusion that tenant had defaulted in payment of differences of rent---High Court maintained the eviction order passed against tenant by Rent Controller---Appeal was dismissed in circumstances.

Mrs. Zarina Khawaja v. Agha Mehbob Shah PLD 1988 SC 190 rel.

Ahmed Siddiqui for Appellant.

Muhammad Zaki Ahmed for Respondent.

2011 CLC 573

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD SHARIF---Applicant

Versus

Syed ASGHAR ALI through Legal Representative and 7 others---Respondents

Civil Revision No. 62 of 2002, decided on 20th December, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), Ss.12 (2), 115 & 148---Decree, setting aside of---Misrepresentation---Non-issuance of notice--Enlargement of time---Plaintiff sought extension in time for deposit of balance consideration amount but the same was denied by Trial Court as well as by Appellate Court---High Court in exercise of revisional jurisdiction directed the Trial Court to proceed further---Defendants sought setting aside of the order passed by High Court on the plea of misrepresentation and not being served prior to the decision of High Court---Validity---Defendants were duly served which was also recorded in order of Single Judge of High Court and notices were issued to all defendants at their given address---One of the defendants appeared in High Court and made a statement undertaking to produce remaining defendants on next date of hearing---On next date, same defendant appeared in High Court and filed a counter affidavit to injunction application and he once again undertook to either file power of attorney of remaining defendants or to file Vakalatnama in favour of an advocate on the next date of hearing---Again on next date of hearing, three defendants were present in person before High Court---Defendants had been pursuing civil revision filed by plaintiff for last four years and they were fully aware of the date of hearings---As both the courts below had rejected application for enlargement of time to deposit decretal amount, therefore, upon filing civil revision application by plaintiff, High Court deriving powers under its revisional jurisdiction was competent to correct it in accordance with law---No bar or restriction under S. 115, C.P.C., existed whereby civil revision application could only be filed against single order---No want of jurisdiction was found and defendants were not misrepresented or committed any fraud or misled the court in obtaining order---High Court declined to set aside the judgment and order passed in exercise of revisional jurisdiction---Application was dismissed in circumstances.

Dr. Abdul Basit for Applicant.

S. Hassan Imam for Respondents Nos. 4 and 5.

2011 C L C 582

[Karachi]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

KAUKAB IQBAL----Petitioner

Versus

P.T.C.L. through President/C.E.O. and 4 others----Respondents

Constitutional Petition No.D-768 of 2008, decided on 21st December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition-Maintainability-Pro-bono publico petition-Disputed question of fact---Alternate remedy---Petitioner was chairman of a registered society who filed pro-bono publico petition against Pakistan Telecommunication Corporation Limited (PTCL) for charging additional Rs.199 per month from every customer for a special telephone package called "Pakistan Package" and increase in local call charges--Plea raised by respondents was that the petition was not maintainable and there was disputed question of fact---Validity---Petitioner had filed pro-bono publico petition for the benefit and to protect interest of millions of customers---Pre-activation of "Pakistan Package" had affected million of customers and some customers might have been caught unaware of such kind of imposition by PTCL---De-activation of the package was not simple and straight forward process and imposition of "Pakistan Package" on millions of customers would result in increase in billing of some customers at the expense of others, if not curtailment of a privilege or any right but disadvantageous to most of the customers---Increase in local call charges after eight years due to various reasons including inflation and taking into consideration worldwide prices had gone un-rebutted by petitioner---Right of PTCL to increase local call charges was a mixed question of fact and law, for which adjudication would require recording of evidence, therefore, the same could not be resolved in Constitutional jurisdiction, notwithstanding availability of alternative adequate remedy for agitating the issue---High Court declined to issue any direction to respondents---Petition was disposed of accordingly.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others 1999 SCMR 2883 rel.

Nasiruddin Ghori v. Federation of Pakistan 2010 PLC 323 ref.

Javid Ahmed Chhatari for Petitioner.

Tehmis Rizvi for Respondent No.1.

Faisal Kamal for Respondent No.2.

Ashiq Raza, D.A.-G. for Respondents Nos.3, 4 and 5.

Date of hearing: 25th November, 2010.

2011 CLC 598

[Karachi]

Before Mushir Alam and Nisar M. Shaikh, JJ

FEROZE ABDUL KARIM----Petitioner

Versus

MUSLIM COMMERCIAL BANK LTD. through Managing Director----Respondent

H.C.As. Nos.176 to 178 of 2009, decided on 12th October, 2010.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.5---High Court appeal --Delay of seven (7) days, condonation of, application for---Appellant's plea that he being heart patient was admitted in hospital, thus, could not contact his counsel to file appeal---Validity---Medical certificate of appellant showed that he was admitted in hospital on 11-9-2008 and discharged on 14-9-2008---Impugned order had been passed on 17-2-2009 much after discharge of appellant front hospital and he had ample opportunity to instruct his counsel to file appeal---Inability or incapability of appellant to instruct or direct filing of appeal after his discharge from hospital had not been explained in affidavit attached to such application---Such application and appeal were dismissed in circumstances.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.5---High Court appeal---Delay, condonation of, application for---Appellant's plea that he had gone to place "M", where he remained busy and had no idea as to necessity to contact his counsel---Validity---Such application did not explain as to when appellant had gone to and returned from place "M"---Such application and appeal were dismissed in circumstances.

(c) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.5---High Court appeal---Delay, condonation of, application for---Appellant's plea that he was attending in hospital his sister, who was critically sick, and he could not leave her and file appeal---Validity---Medical record attached with such application showed that appellant's sister was admitted on 18-3-2009 and discharged from hospital on 29-3-2009---Medical reports did not suggest that appellant's sister was suffering from cancer---Appeal had been sworn on 27-3-2009 i.e., two days before discharge of appellant's sister from hospital, which fact had contradicted such plea---Such application and appeal were dismissed in circumstances.

Muhammad Yousuf v. Ghayyur Hussain Shah 1993 SCMR 1185 ref.

(d) Interpretation of statutes---

----Special provision would exclude application of general provision.

Muhammad Yousuf v. Ghayyur Hussain Shah 1993 SCMR 1185 ref.

1993 MLD 1550, 2002 YLR 3712 and PLD 2008 Kar. 25 rel.

Umer Hayat Sandhu for Appellant.

Imran Khan for Respondent.

2011 CLC 614

[Karachi]

Before Ms. Rukhsana Ahmed, J

Dr. SHAISTA WAHIDI----Plaintiff

Versus

ARY COMMUNICATIONS (PVT.) LIMITED and another----Respondents

Civil Miscellaneous Applications Nos.11241 and 11242 of 2010 in Civil Suit No.1682 of 2010, decided on 2nd November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--Suit for declaration, permanent injunction and recovery of damages---Temporary injunction, grant of, application for---Plaintiff's plea that she through a fresh contract had offered her services to another T. V. channel, whereas defendant was demanding her to join back its T. V. channel, thus, was obstructing her from earning livelihood by harassing, threatening and blackmailing her---Validity---Such plea needed consideration on merits---High Court granted interim injunction against defendant till next date of hearing while issuing notice to defendant.

Jam Asif Mehmood for Plaintiff.

ORER

MS. RUKHSANA AHMED, J.--- Learned counsel for the plaintiff is present along with his client and seeks urgency in taking up the matter, as such C.M.A. No.11241 of 2010 is taken up. It has been elaborated in the affidavit in para.4 to the urgent application that the plaintiff has entered a fresh legal contract with another T.V. channel and is now legally bound to perform her legal obligations under the said contract and her first show is to be broadcasted tomorrow morning i.e. on 3-11-2010 but the defendants are continuously harassing the plaintiff and demanding her to join back their group namely ARY Group. The urgency application is therefore, granted.

2011 C L C 622

[Karachi]

Before Ali Sain Dino Metlo, J

AMANULLAH KHAN----Petitioner

Versus

Mst. KHATOON ABBAS through L.Rs.----Respondent

Constitutional Petition No.S-190 of 2007, decided on 31st July, 2008.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of bona fide personal requirement of landlord---Landlady sought ejectment of tenant on the ground that house in her possession had become insufficient for her family members due to marriage of her son---Rent Controller dismissed ejectment application on the ground. that neither landlady nor after her death her legal representatives required the premises in good faith for their personal use as they were already living in a capacious double storeyed house---Appellate Court, however, set aside judgment of the Rent Controller and accepted ejectment application---Ipse dixit or mere desire of a landlord was not sufficient to eject a tenant; in order to get a tenant ejected on the ground of personal requirement, landlord must show that he genuinely needed the premises for his personal use---He/she must plead and prove necessary and material facts for establishing .his/her personal requirement---Landlady and after her death her legal representatives, did not disclose as to what was the accommodation available with them---One son of deceased landlady for the first time in cross-examination disclosed that they were residing in a capacious double storeyed house---Rent Controller, in circumstances, had rightly held that the accommodation available with family of deceased landlady was quite sufficient for them and they did not require the premises in good faith for their personal use---Appellate Court was not justified to set aside judgment of the Rent Controller.

2001 SCMR 1197; 1992 SCMR 1296; 2000 SCMR 1613; 1999 SCMR 1796 and 2007 SCMR 1209 ref.

(b) Pleadings---

----Party could not deviate from its pleadings nor court could set up a different plea for a party and decide the case on that basis.

Shaikh Muhammad Usman for Petitioner.

Muhammad Irfan for Respondents.

Date of hearing: 15th April, 2008.

2011 C L C 633

[Karachi]

Before Ahmed Ali M. Shaikh, J

Syed IZHAR ALI----Petitioner

Versus

Mst. AMINA BEGUM through L.Rs. and 2 others----Respondents

Constitutional Petition No.S-341 of 2009, decided on 5th April, 2010.

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

---Ss. 15(2)(ii), (vii) & 21---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Ejectment application on ground of default in payment of rent and bona fide personal need of landlord---Ejectment application concurrently allowed by the Rent Controller and Appellate Court---Validity---Constitutional jurisdiction of High Court to interfere in such matter was very limited and confined only to ascertain whether Appellate Court had not flouted provisions relating to the statute or failed to follow the law relating thereto as laid down by the superior courts.

Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others PLD 2005 Kar. 554; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033; Mazahar Husain Shah through L.Rs. v. Member Board of Revenue Punjab, Lahore and others 2006 SCMR 959; Malak Muhammad Husain v. District Returning Officer and others 2008 SCMR 488 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of fact arrived at by two courts below---Such findings could only be interfered with under constitutional jurisdiction in exceptional circumstances.

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

----Ss. 15(2)(ii), (vii) & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application against the tenant on ground of default in payment of rent as well as personal need of landlady for her children who wanted to start their own business in the rented shop---Tenant in his written objections did not dispute the relationship of tenant and landlord, but had disputed the personal bona fide need of the premises in question, monthly rent as well as default---Legal heirs of deceased landlady and witnesses in their respective affidavits-in-evidence had 'stated that rent of the premises in question was Rs.2,000 per month; they were not cross-examined by the counsel of tenant on the point whether rent of premises was Rs.1000 as claimed by the tenant or Rs.2000 per month as claimed by the landlady---On the point of personal need, legal heirs of deceased landlady though were cross-examined, but counsel for the tenant could not shake them---Legal heirs of deceased landlady had proved their case on the point of default in payment of rent by the tenant as well as on the personal bona fide need---Impugned judgment passed by Appellate Court, in circumstances, was in accordance with law on ,the basis of material as well as evidence adduced before Rent Controller by the parties---No case for interference by High Court in the impugned judgment having been made out, constitutional petition was dismissed, in circumstances.

Syed Afaq Ali for Petitioner.

Adnan Usman for Private Respondents.

Date of hearing: 8th March, 2010.

2011 C L C 648

[Karachi]

Before Tufail H. Ebrahim, J

HABIB BANK AG ZURICH and another----Petitioners

Versus

NAZIR AHMED VAID and another----Respondents

Constitutional Petition No.S-948 of 2010, decided on 31st December, 2010.

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

----S. 16 (1) & (2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability-Tentative rent order---Interlocutory order-Tenant assailed interim order under S.16(1) of Sindh Rented Premises Ordinance, 1979, passed by Rent Controller, whereby he was directed to deposit' arrears of rent as well as future rent and also to pay maintenance charges---Validity--No final order had been passed within the meaning of S.16(2) of Sindh Rented Premises Ordinance, 1979, and no appeal or Constitutional petition could be filed against such order---Appeal was not maintainable under law, therefore, Constitutional petition could not be maintainable against interim order/interlocutory order passed under S.16(1) of Sindh Rented Premises Ordinance, 1979, as the same would delay of administration of justice---Legislature had provided sufficient efficacious remedy of filing of appeal, if defence of tenant was struck off within the meaning of S..16(2) of Sindh Rented Premises Ordinance, 1979---Order of Rent Controller was based upon available record and the same could not be deemed to be without jurisdiction or as Foram non judice--Order passed by Rent Controller directing tenant to deposit arrears of rent and maintenance charges pending decision of ejectment application against him being interlocutory/interim in nature could not be subjected to challenge by filing Constitutional petition before High Court as it would amount to defeating clear intent of legislature---High Court declined to interfere in the order passed by Rent Controller---Petition was dismissed in circumstances.

1996 MLD 1895; 2009 YLR 136; 2008 MLD 1229; 2007 CLC 1961; 2007 CLC'1956; 1997 CLC 50; 1997 CLC 1822; 1996 MLD 403; 1995 CLC 639; 1993 CLC 2525 and 1993 CLC 649 rel.

Nasir J.R. Sheikh for Petitioners.

S. Hassan Ali for respondents.

Date of hearing: 10th December, 2010.

2011 CLC 664

[Karachi]

Before Muhammad Ali Mazhar, J

KHURSHEED AHMED BUTT----Plaintiff

Versus

Captain FEROZE AFTAB and 3 others----Respondents

C.M.A. No.8401 of 2010 in Suit No.566 of 2006, decided on 29th December, 2010.

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

----O. XXXIX, Rr.1 & 2---Interim injunction---Pre-condition---Plaintiff who asks for injunction, must be able to satisfy the Court that his own acts and deeds in the matter have been fair, honest and free from any taint or illegality---If any dealing with person against whom he seeks relief he has acted in unfair or un-equitable manner---While granting injunction, Court has to consider principle of prima facie existence of right in plaintiff and its infringement by defendants or existence of prima facie case in favour of plaintiff, irreparable loss, damages or injuries which may occur to plaintiff if injunction is not granted and inconvenience which plaintiff may undergo from withholding injunction would be comparatively greater than that which is likely to arise from granting it and balance of inconvenience should be in favour of plaintiff---All three essential ingredients- must be fulfilled--Anyone of such ingredients would not warrant grant of injunction.

1994 CLC 1617 rel.

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

----S. 12---Transfer of Property Act (IV, of 1882), S.53-A---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Specific performance of agreement to sell---Part performance, plea of---Principle---Alternate relief---Damages, claiming of---Plaintiff on the basis of a sale receipt claimed to have entered into agreement to sell with defendant and also claimed that he was put into possession of suit property as part performance of the agreement---Validity---In order to avail plea under S.53-A of Transfer of Property Act, 1882, plaintiff had to show that there was a. contract in writing signed by transferor in respect of immovable property, from writing, transfer could be ascertained with reasonable certainty, in part performance of the contract, transferee had taken possession of property or any part thereof or if he was in possession, he continued to be in possession in part performance of the contract and had done some act in furtherance, of the contract and transferee performed or was willing to perform his part of the contract---Plea of part performance was available to plaintiff as well as defendant as shield to protect and maintain possession against transferor or any person claiming under him---Plaintiff failed to establish that he was in possession of property in question due to part performance of contract, therefore, his possession was not protected under S.53-A of Transfer of Property Act, 1882---Plaintiff also failed to make out a prima facie case and balance of convenience did not lie in his favour---Against irreparable loss, plaintiff had already claimed damages in the suit and in case Court would reach to the conclusion that plaintiff was not entitled to specific performance, then plaintiff could be compensated by awarding damages, if plaintiff succeeded to prove in evidence---High Court declined to grant interim injunction to plaintiff---Application was dismissed in circumstances.

Muhammad Asad v. Muhammad Tariq and others 2010 MLD 1353 ref.

Zaheer Minhas for Plaintiff.

Dilawar Hussain for Defendant No.1.

Ijaz Shirazi for Defendant No.3.

Rehman Aziz Malik for Defendant No.4.

2011 CLC 693

[Karachi]

Before Munib Ahmed Khan and Nadeem Azhar Siddiqui, JJ

Malik FAYYAZ AHMED and 7 other----Appellants

Versus

MUHAMMAD AFSAR BUTT and 68 others----Respondents

H.C.As. Nos.94, 95, 96 and 98 of 2007, decided on 5th March, 2008.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Code of Civil Procedure (Amendment) Ordinance (X of 1980), S.15---High Court appeal---Substitution of party---Application by defendant under O.I, R.10, C.P.C. was allowed and he was permitted to be substituted as defendant in the place of existing defendant with the observation that "subject to all rights available under proceedings already taken place would be binding on the newly joined defendant"---Contention of counsel for the appellant was that despite said observation, Single Judge of High Court had directed the substituted defendant to file written statement which was against the observation of the court---Original defendant having already filed his written statement, observation of Single Judge in the impugned order to the effect that said defendant had been declared ex parte, was incorrect---Question of filing of written statement by the substituted defendant in such circumstances, would not arise, as he had been substituted subject to the condition that the proceedings already undertaken, would be binding on him----Direction for filing written statement being contrary to the condition imposed by Single Judge, was deleted by Division Bench, in circumstances.

Mst. Surraya Begum v. Mst. Suban Begum 1992 SCMR 652 and Policherala Veeraraghava Reddi v. Cherla Subba Reddi and others AIR 1920 Madras 391 ref.

Mansoor-ul-Arifin for Appellants (in all the Appeals).

Adnan Usman Respondent No.23 (in H.C.A. No.95.of 2007).

Khalid Mehmood Siddiqui for UBL (in all the Appeals).

Shahjehan for proposed Applicants/Intervenors.

Date of hearing: 5th March, 2008.

2011 CLC 714

[Karachi]

Before Aqeel A. Abbasi, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION----Plaintiff

Versus

ACT AIRLINES INC.----Respondent

Suit No.1241 and C.M.As. Nos.8198, 8199 of 2010, decided on 6th August, 2010.

Civil Procedure Code (V of 1908)---

---S. 136 & O. XXXVIII, R. 1---Suit for recovery of lease rental---Agreement for lease rental between parties in respect of aircraft engines---Breach of such agreement by defendant-Airline Company---Application for arrest and attachment of defendant's Aircraft before judgment---Plaintiff's plea that he would sustain monetary loss and very purpose of filing suit would be frustrated, if defendant's Aircraft likely to leave Pakistan, was not arrested and attached---Validity---High Court directed Civil Aviation Autli4rity to issue necessary instructions to concerned Airport authorities restraining such aircraft from leaving territorial jurisdiction of Pakistan till next date of hearing subject to deposit of specified amount or furnish Bank Guarantee in court, whereupon such aircraft would stand released without further orders by court.

Jawad A. Sarwana for Plaintiff.

2011 CLC 731

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

MUHAMMAD IQBAL and 4 others----Petitioners

Versus

DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY BOARD, KARACHI and others----Respondents

Constitutional Petitions Nos. D-1568 to D-1570 of 2006, decided on 15th September, 2010.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 10---Displaced persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.4---Constitution of Pakistan, Art.199---Constitutional petition---Cancellation of PTD and declaration of evacuee property as evacuee trust property on basis of reference filed l(y Deputy Administrator, Evacuee Trust Properties---Validity---One of subsequent vendees had filed written statement, but on his absence, he was proceeded against ex parte---Plea raised by subsequent vendee in written statement had not been taken into consideration while passing impugned order---Other subsequent vendees for having interest in such property should have been heard after making them as party to such reference---Rules of natural justice would be read into every statute---Original transferee was not owner of disputed property at the time of passing of impugned order, rather was dead at time of filing of such reference---Dead person could not be made party or proceeded against ex parte---Impugned order was void for being violative of rules of natural justice---High Court set aside impugned order and remanded case to Chairman, Evacuee Trust Property Board for its decision afresh after hearing necessary parties.

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

----O. IX, R. 6 & O. XXII, R. 1 --- Dead person could not be made party to proceedings or proceeded against ex parte.

(c) Natural justice, principles of---

----Rule of natural justice has to be read in every statute.

Mirza Sarfraz Ahmed for Petitioners (in C.Ps. Nos.D-1568 to 1570 of 2006).

Raja Qasir Nawaz for Respondents.

Nemo for Respondent No.3.

2011 C L C 740

[Karachi]

Before Muhammad Tasnim, J

KHALID MUNAWAR and another----Applicants

Versus

HANIF ABDANI and 4 others----Respondents

Judicial Miscellaneous Application No.3 of 2010 in Suit No.789 of 2008, decided on 15th November, 2010.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XXIII, R. 3---Consent decree, ,setting aside of, application for---Applicant's plea that plaintiff had obtained his signature on compromise application by fraud and threat to his life---Validity---Applicant and his counsel had signed compromise application---Compromise application had been accepted in presence of applicant, who had not objected to its acceptance---After passing of consent decree,, applicant had approached Nazir for its execution by making statement, wherein he had not raised such plea---Applicant had filed application under S.12(2), C.P.C., after two years of filing of contempt application against plaintiff for having disobeyed consent decree---Applicant had admitted consent decree and had taken steps for its execution before Nazir---Nothing on record to show that any fraud had been played upon court or consent decree had been obtained by misrepresentation of facts---Application under S.12(2), C.P.C., was dismissed in circumstances.

Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Abdul Hakim v. Shamim Mushtaq Siddiqui and 2 others 1986 CLC 2611; Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183; Ghulam Akbar v. Muhammad Ilyas and others 1992 MLD 2279; Mst. Zaitoon v. Mst. Rehmi through L.Rs. 2005 MLD 978; Messrs GAMA Silk Mills (Pvt.) Ltd. v. Abdus Salam and others 2006 CLC 1113 and Tanveer Siddiqui and another v. Muhammad Rashid 2010 YLR 1851 ref.

Mirza Sarfraz Ahmed for Applicants.

Tasawwur Ali Hashmi for Respondent No.1.

Irfan Haroon for Respondent No.5.

2011 C L C 758

[Karachi]

Before Mushir Alam and Tufail H. Ibrahim, JJ

Messrs U.I.G. (PVT.) LIMITED through Director and 3 others----Appellants

Versus

MUHAMMAD IMRAN QURESHI----Respondent

H.C.A. No.18 of 2010, decided on 3rd December, 2010

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

----S. 42---Arbitration Act (X of 1940), Ss.21 & 34---Civil Procedure Code (V of 1908), S.89-A & O.X, R.1A---High Court under its original jurisdiction passed consent order referring the matter to arbitration on the basis of joint consenting statement made by the defendant and one of the plaintiffs representing other plaintiffs---Plaintiffs were shareholders of the same company---Said other plaintiffs challenged the consent order contending that defendant's application for arbitration having been dismissed, no arbitrator could be appointed on the basis of joint statement and further urged that the company was no party to the suit and consent of plaintiffs was not obtained---Validity---Company was a family concern and could be treated like partnership concern---Said other plaintiffs/appellants, being in majority, were entitled to run the affairs of the company but they could not stop other shareholders from participating in affairs of the company except in accordance with law---Vakalatnama on record showed that the counsel had authority to effect compromise---No allegation of transgression of authority was made against the counsel---Interest of the company and the plaintiffs were the same; they could not take benefit of corporate veil to upset the order made on the basis of statement made by one of plaintiffs in the presence of counsel of said other plaintiffs/ appellants---Law did not bar recourse to any method of alternate dispute resolution including mediation or arbitration at any stage of the proceedings even after dismissal of application under S.34 of the Arbitration Act, 1940---Refusal of a party to arbitration at one point of time would not perpetually bar such party from subsequent recourse to arbitration---Under S.21 of the Arbitration Act, 1940, parties to the suit might apply in writing to the court for an order of reference to arbitration at any time before the pronouncement of judgment---Under S.89-A and O.X, R.1A, C.P.C. the court night adopt any alternate method of dispute resolution including meditation, conciliation or any other means including arbitration for bringing an end to the controversy and expediting disposal of the case by consent of parties-Appeal was dismissed in circumstances.

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

----S. 34---Law did not bar recourse to any method of alternate dispute resolution including mediation or arbitration at any stage of the proceedings even after dismissal of application under S.34 of the Arbitration Act, 1940.

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

----S. 21---Reference to arbitration at any stage of suit---Under S.21 of the Arbitration Act, 1940, parties to the suit might apply to the court in writing for order of reference to arbitration at any time before the pronouncement of judgment.

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

----S. 89-A & O.X, R.1A---Alternate method of dispute resolution by the court---Under S.89-A and O.X, R.1A, C.P.C. the court might adopt any alternate method of dispute resolution including mediation, conciliation or any other means including arbitration for bringing an end to the controversy and expediting disposal of the case by the consent of parties.

Fazal Mehdi v. Allah Ditto PLD 2007 SC 343; Muhammad Sadiq Gondal v. Additional District Judge and others 1986 CLC 326; Mst. Mumtaz Danish v. Akhtar Bibi and another 1988 CLC 2134; Mr. Manzur Qadir v. Mst. Amtul Hussain and others PLD 1971 Lah. 537; Talawand and others v. Fatehdin and others AIR 1918 Lah. 126; Muhammad Raza v. Ram Saroop and others AIR 1929 Oudh 385; Mst. Ummakulsum v. Ghulam Rasul Khan Burgri and another AIR 1929 Sind 32; Smt. Jamila Bai Abdul Qadir v Shankarlal Gulabehand AIR 1975 SC 2202; Thenal Amoral and another v. Sokammal AIR 1918 Madras 656; Mehra v Ahmed and others AIR 1929 Lah 746, Sourindra Nath Mittra v. Heramba Nath AIR 1923 PC 98; Baqar v Muhammad Rafiq 2003 SCMR 1401; Commissioner of Income Tax v. Abdul Ghani 2007 PTD 967; Asif Ali Ch v. The Registrar Cooperative Societies Punjan 1996 MLD 1709; Adamjee Insurance Company v. MCB 2003 CLD 463; Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634; Bashiran Bibi and others v. Jewni and others 1997 SCMR 1079; Haseeb Express (Pvt.) Ltd. v. Azerbaijan Hava Yollari State concern Azerbaijan Air Lines, 1998 CLC 1390; Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd, PLD 1965 SC 221; Messrs Nagina Films Ltd. v. Usman Hussain and others 1987 CLC 2263 and Mst. Qamar Loan and 5 others v. Messrs Kashmirian (Pvt.) Ltd and 6 others PLD 1997 Kar. 376 ref.

Nasir Maqsood for Appellants.

Salahuddin Ahmed for Respondent.

Dates of hearing: 5th May and 25th October, 2010.

2011 CLC 772

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

AMANULLAH and 3 others----Petitioners/Applicants

Versus

PROVINCE OF SINDH through Chief Secretary to Government of Sindh

and 7 others----Respondents

C.M.As. Nos. 13703, 12426, 5045 of 2010 in Constitutional Petition No.278 of 2010, C.M.A. No.6055 of 2010 in C.P. No.D-713, C.M.As. Nos.6062, 6063 of 2010 in C.P. No.D-714 of 2009, C.M.As. Nos.6058, 6073 of 2010 in C.P. No.D.715 of 2009, C.M.A. No.6054 of 2010 in C.P. No.D-750 of 2009, C.M.As. Nos.6067, 6074 of 2010 in C.P. No,D-748 of 2009, C.M.As. No.6076, 6056 of 2010 in C.P. No.D-160 of 2009, C.M.As. Nos.6072, 6060 of 2010 in C.P. No.D-743 of 2009, C.M.A. No.6051 of 2010 in C.P. No.D-716 of 2009, C.M.As. Nos.6075, 6070 of 2010 in C.P. No.D-712, C.M.As. Nos.6065 and 6066 in C.P. No.D-716 of 2009, decided on 29th December, 2010.

Civil Procedure Code (V of 1908)---

----S. 114---Review---Applicant contended that impugned judgment was passed without hearing him---Validity---No error or typographical error was found in the impugned judgment---Scope of review was limited---Parties could not be allowed to agitate the facts which had already been decided---Case could not be reopened on consent of parties or on merits in review jurisdiction---Re-hearing of the case was not permissible under review---Application being misconceived and without merit was dismissed.

Union Council, Bolhari through Nazim at Balhari v. Province of Sindh through Secretary, Department of Labour. Karachi and 3 others 2004 YLR 268; Messrs Pakistan Oil Mills (Pvt.) Ltd. v. Messrs Peter Shipping Co. Ltd. and others 2005 MLD 1745; Land Acquisition Officer and Assistant Commissioner, Hyderabad versus Gul Muhammad through Legal heirs PLD 2005 SC 311 and Mohy-ud-Din and another v. Muhammad Ashraf and others 1§86 MLD 1034 ref.

Ali Ahmed v. Muhammad Iqbal 2009 SCMR 394; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554 and Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan PLD 2007 SC 121 fol.

Athar Abbas Solangi for Respondent No.8/Applicant.

Muhammad Ali Hakro for Petitioners.

Muhammad Hashim Soomro.

Ghulam Shabir Baloch (in C.P. No.D-716 of 2010).

2011 CLC 783

[Karachi]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

SHAHBAZ QALANDAR COOPERATIVE HOUSING SOCIETY LIMITED through Chairman----Petitioner

Versus

PROVINCE OF SINDH through Secretary Cooperative Department and 2 others----Respondents

Constitutional Petition No.D-1424 of 2008, decided on 1st December, 2010.

Cooperative Societies Act (VII of 1925)---

----S. 43---Constitution of Pakistan, Art.199---Constitutional petition---Suo motu notice---Registrar, jurisdiction of---Petitioner was a registered housing society and entered into an agreement with another society for development of its land---Plea raised by petitioner was that authorities with mala fide intention and for ulterior motive' made false allegations and initiated inquiry---Validity---Action of Registrar, under 5.43(1) of Cooperative Societies Act, 1925, was independent of subsection (2) unless mala fide or illegality was shown---Registrar on available information or on failure of compliance of directions submitted in annual reports by its inspectors could suo motu issue notice within the meaning of S.43(1) of Cooperative Societies Act, 1925, as detailed information could only be collected through proper inquiry---Was not necessary that Registrar even after receipt of information in respect of allegations against a society, should wait for receipt of same information in a particular way---Sufficient reasons was available for initiation of action within the meaning of S.43(1) of Cooperative Societies Act, 1925---Registrar had given detailed reasons for conducting such inquiry---Even from record it was clear that President and Secretary of Society were unlawfully appointed for life time, which was violation of bye-laws of the Society---As request to deregister the society was made by Society, therefore, it had become more imperative to conduct proper inquiry---Main object and purpose of holding inquiry was to check whether mandatory requirements and working affairs of the society were being conducted according to law and in the larger interest of members of the society particularly when audit of Society was not conducted for the last several years or at least compliance of directions were not made by Society---Registrar had neither acted in any manner beyond its jurisdiction nor in violation of any law by issuing order for conducting inquiry furthermore the petition was motivated and based on apprehensions and surmises---Petition was dismissed in circumstances.

C. P. No. D-1036 of 2007 and Saddar Cooperative Market v. Province of Sindh and others 2009 CLC 143 ref.

Muhammad Ali Hakro for Petitioner.

Zubair Hashmi for Respondents Nos.2 and 3.

Date of hearing: 23rd November, 2010.

2011 C L C 855

[Karachi]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD ARSHAD LODHI: In re

C.M.A. No.193 of 2009 in Insolvency Petition No. Nil of 2008, decided on 21st February, 2011.

Insolvency (Karachi Division) Act (III of 1909)---

---Ss. 10 & 15---Sindh Chief Court Rules (O. S.), R.586(2)---Declaration of insolvency---Book of accounts, non-maintaining of---Effect---Petitioner was a highly qualified person, particularly banker and had served with different banks throughout his career---High Court declined to believe that petitioner did not maintain his own books of account---Petitioner failed to fulfil requirements of R.586(2) of Sindh Chief Court Rules, (O. S.) and was not entitled to be declared insolvent---Petition was dismissed in circumstances.

Zafar Iqbal Arain for Petitioner.

Qadir Bux Umrani, Official Assignee.

2011 CLC 867

[Karachi]

Before Sarmad Jalal Osmany, C. J. and Abdul Hadi Khoso, J

JAUDAT HASSAN----Petitioner

Versus

BOARD OF SECONDARY EDUCATION, KARACHI through Secretary and 4 others----Respondents

Constitutional Petition No.2094 of 2010, heard on 19th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution--Examination of petitioner/candidate was cancelled and he was debarred for one year on allegations that he changed Examination Centre unauthorizedly, without permission and he was found involved in cheating in examination---Five-Member Committee of the Board of Secondary Education found that candidate had changed the examination certre unauthorizedly without permission of the Board and that he and his mother were found sitting in a special room and were solving the examination papers in an unauthorized examination centre---Five-member Committee of the Board had no enmity or grudge with the candidate and Board of Education had given ample opportunity to candidate to defend himself, which he failed to do---Findings of the Five-member Committee could not be interfered with, in circumstances---Constitutional petition was dismissed.

Muhammad Nawaz Shaikh for Petitioner.

S. Masroor Alvi for Respondents Nos.1 to 4.

Saifullah, A.A.-G. for Respondent No.5.

2011 C L C 884

[Karachi]

Before Muhammad Tasnim, J

SAGHIR AHMED BAIG----Plaintiff

Versus

Messrs HABIB BANK LTD. through Chief Executive/President Habib Bank and another-Respondents

Civil Suit No.1065 and C.M.A. No.7676 of 2010, decided on 7th December, 2010.

Suit for damages---

----Defendants filed application under O. VII, R.11, C.P. C. for rejection of plaint on the ground that since plaintiff in his suit had questioned suspension order passed against him along with prayer of damages, plaint was liable to be rejected---Counsel for defendants, during course of arguments, had admitted that plaintiff had not claimed the reinstatement into service, but had claimed only damages and had challenged suspension order---Counsel of defendants had also admitted that plaint could not be rejected in parts, but it could be rejected as a whole---Prayer clause in the suit showed that amongst other reliefs,, a prayer for damages, was also made by the plaintiff, which required evidence---Even otherwise, suit for damages, was not hit by any of the clauses of O. VII, R.11, C.P.C.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCR 60 and United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68 ref.

Abrar Bukhari for Plaintiff.

M. Sohail Zafar Bhatti for Defendants.

2011 CLC 897

[Karachi]

Before Faisal Arab, J

Haji FAKIR MUHAMMAD through Attorney----Applicant

Versus

PROJECT DIRECTOR EDUCATION WORKS and 15 others----Respondents

Civil Revision Application No.110 of 2005, decided on 20th December, 2010.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 23 &.28-A---Civil Procedure Code (V of 1908), S.115---Acquisition of land---Determination of compensation---Claim for additional compensation---Denial of claim---Land of applicant was acquired, possession of acquired land was taken over and amount of compensation was determined---Amount of compensation having been paid to applicant after 10 years, 3 months and 11 days of taking over possession of land, applicant claimed additional compensation under S.28-A of Land Acquisition Act, 1894---Claim of applicant was denied---Validity---Under provisions of S.28-A of Land Acquisition Act, 1894 15% per annum was granted as additional compensation which was to be given to the landowner, if the possession of the property was taken over from the owner, but compensation was not paid to him---Applicant who was paid amount of compensation after delay of more than 10 years was entitled to additional compensation under S.28-A of Land Acquisition Act, 1894 and there was no justification for denying the additional compensation---High Court directed the authorities to work out and pay additional compensation to the applicant.

Ahmed Ali A. Memon for Applicant.

Liaquat Ali Shar Addl. A.-G.

2011 C L C 907

[Karachi]

Before Shahid Anwar Bajwa, J

Syed MEHBOOB ALI SHAH----Applicant

Versus

FEDERATION OF PAKISTAN through Secretary Pakistan Railways and 2 others----Respondents

Civil Revision No.S-237 and C.M.A. No.869 of 2010, decided on 11th January, 2011.

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

----O. VII, R. 11 & O. XV, R. 3---Specific Relief Act (I of 1877), S.42---Suit for declaration---Issues had been framed---Trial Court rejected the plaint---Appellate Court dismissed appeal---Plaintiff contended that once the issues had been framed, the matter should have been decided on merit---Validity---Court might come to the conclusion that a right claimed was not available to the applicant but such conclusion would not be sufficient for holding that the suit was barred by law---Whereafter having framed the issues, the court arrived at the conclusion that an issue of fact or of law could be decided without recording evidence, the court might proceed to dispose of the suit under O.XV, R.3, C.P.C.---Absence of title to the property could be a ground for dismissal of suit under O.XV, R.3, C.P.C. but the same could not be a ground for rejecting the plaint under O. VII, R.11, C.P.C.---Plaintiff, however, did not have any title to the property, rather, he claimed lease on the basis of recommendation of the departmental authorities---Courts below gave due consideration to facts of the case---Where substantial justice had been done, revisional jurisdiction could not be invoked for hypertechnical reasons---Revision was dismissed in circumstances.

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

----O. VII, R.11 & O.XV, R.3---Absence of any title to the property could be a ground for dismissal of suit under O.XV, R.3, C.P.C. but the same could not be ground for rejecting the plaint under O. VII, R.11, C.P.C.

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

----S. 115---Revisional jurisdiction---Scope---Section 115, C.P.C., was attracted where the court had committed `material ' irregularity'---Re visional jurisdiction being discretionary in nature, where substantial justice had been done, re visional jurisdiction could not be invoked for hyper technical reasons.

Tabassam Nazir v. The District Judge Faisalabad 2000 SCMR 1279 and Q.B.E Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. 2008 SCMR 1037 ref.

Province of Punjab, through Collector Bahawalpur v. Anwar Ali and 315 others 2000 CLC 1363 fol.

Ghulam Shabbir Dayo for Applicant.

Imran Khan for Respondents Nos.2 and 3.

David Lawrance, Dy. Attorney-General.

2011 C L C 933

[Karachi]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

Rana IMRAN and another----Appellants

Versus

FAHAD NOOR KHAN and 2 others----Respondents

H.C.A. No.146 and C.M.A. No.1287 of 2010, decided on 18th January, 2011.

Civil Procedure Code (V of 1908) ---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.12, 42 & 54---Interim injunction, grant of-Principles-Court, duty of---Terms "prima facie case" and "balance of convenience"---Scope---Grievance of plaintiff was that he had purchased shares of company in question from defendant but defendant had declined to transfer the shares in his name---Single Judge of High Court restrained defendants from creating any third party interest in disputed shares of company in question---Validity---Rule of granting injunction was (i) prima facie existence of right of plaintiff and its infringement by defendant or existence of prima facie case in favour of plaintiff; (ii) irreparable loss, damages or injuries which might occur to plaintiff, if injunction was not granted; (iii) inconvenience which plaintiff would undergo from withholding injunction would be comparatively greater than that which was likely to arise from granting it or in other words, balance of convenience should be in favour of plaintiff---Court had to make only a tentative assessment of the case for enabling to see whether three requisites for grant of injunction existed in favour of plaintiff or not---Relief of injunction was discretionary and was to be granted by Court according to sound legal principles---Existence of prima facie case was to be judged or made out on the basis of material on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, Court 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---Term "prima facie case" was not specifically defined in Civil Procedure Code, 1908---In order to satisfy about existence of prima facie case, pleadings must contain facts constituting existence of right of plaintiff and its infringement at the hands of opposite party---Balance of convenience meant that if injunction was not granted and suit was ultimately decided in favour of plaintiff, inconvenience caused to plaintiff would be greater than that would be caused to defendant, if injunction was not granted---Question whether plaintiff had made payment or not or whether confession letter, cheques and bank statement were genuine or fictitious or whether confession letter was obtained under duress or coercion, all such aspects of matter could not be resolved without evidence---All such issues were triable issues, which could only, be resolved after recording of evidence in the matter---Single Judge of High Court had given similar findings while disposing of injunction application, therefore, Division Bench of High Court did not find any cogent reason to interfere with the order passed by Single Judge of High Court---High Court appeal was dismissed in circumstances.?

Muhammad Mushtaq for Appellants.

Mohsin Shahwani for Respondents.

2011 C LC 955

[Karachi]

Before Irfan Saadat Khan, J

ASHFAQ GHORI----Petitioner

Versus

IVth ADDITIONAL DISTRICT JUDGE, KARACHI and 2 others----Respondents

Constitutional Petition No.S-69 of 2011, decided on 9th February, 2010.

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

----Ss. 15 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Stay of execution proceedings---Ejectment application filed by landlord was allowed by Rent Controller and appeal against eviction order was dismissed for non-prosecution--Tenant filed application for restoration of appeal but in the meanwhile landlord filed execution proceedings--Plea raised by tenant was that during pendency of application for restoration of appeal, eviction order could not be executed---Validity---Numerous opportunities were provided to tenant either to argue the case or to produce any stay order but he failed to comply with any of such conditions---High Court did not find any merit in the petition as tenant was just lingering on the matter---Constitutional petition was dismissed in circumstances.

Mst. Halima Tahir and others v. Mst. Naheed Ejaz and others 2010 MLD 554 ref.

Mehmood Habibullah for Petitioners.

Nemo for Respondents Nos.1 and 2.

Mrs. Muqeema Alam for Respondent No.3.

Date of hearing: 2nd February, 2011.

2011 CLC 964

[Karachi]

Before Syed Hassan Azhar Rizvi, J

SHAH NAWAZ MUNAWAR----Plaintiff

Versus

UNITED BANK LIMITED through Branch and another----Defendants

Suit No.1048 of 2006 and C.M.As. Nos.2288, 2289 of 2007 and 5999 of 2006, decided on 28th February, 2011.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and possession---Rejection of plaint, application for---Plea not raised in plaint, but raised in reply to such application that defendant was benami owner of suit property---Such plea was an afterthought in circumstances.

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

----O. VII, R. 11---Rejection of plaint---Purpose stated.

Purpose of rejection of plaint is that stillborn suit ought to be buried at its very inception and no time be consumed on fruitless litigation and that plaintiff would have a chance to retrace his steps at the earliest possible time. The plaint can be rejected in four cases i.e. where it does not disclose a cause of action; where relief claimed has been undervalued; where court- fee of full value has not been paid; and where suit appears on face of plaint to be barred by any law.

Mst. Hajiani Khatija Bai and 8 others v. Haji Dawood and 11 others 2003 MLD 828 ref.

Habibullah Jatoi for Plaintiff.

Abdur Rehman for Defendants.

2011 C L C 981

[Karachi]

Before Munib Akhtar, J

Dr. ATTA MUHAMMAD PANHWAR through Attorney----Applicant

Versus

FAISAL MUGHAL and 2 others----Respondents

R.A. No.101 of 2010, decided on 21st February, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, Rr.2, 10 & S.20---Suit for recovery of amount---Territorial jurisdiction of court---Return of plaint---Plaintiff filed suit for recovery of amount against defendants in court at place H'---Case of contesting defendants was that none of the defendants resided or work for gain within territorial limits of the courts at placeH'; and that the cause of action alleged by the plaintiff arose entirely within the limits of the courts at place I'---Defendants prayed that plaint be returned to the plaintiff for filing it before a court of competent jurisdiction, which according to them was court at placeI'---Trial Court allowed application by the defendants to return the plaint, but on filing appeal by the plaintiff, Appellate Court set aside order of the Trial Court and remanded the suit to Trial Court for further proceedings, including consideration of the issue of territorial jurisdiction after framing a proper issue with regard thereto---Validity---If there was a refusal or failure to repay any money lent, either in whole or part, that would constitute part of the cause of action of any suit; and it would be regarded as having arisen at the place where the amount lent was to be repaid---Courts of that place would have territorial jurisdiction over the matter under S.20(c), C.P.C.---If the agreement between the parties did not indicate as to where the money was to be paid; and the relevant facts and circumstances also did not so indicate, then the principle that the debtor must seek his creditor would become applicable and the courts at place where the creditor resided or worked for gain, would have territorial jurisdiction---In the present case neither written agreement existed, nor there appeared to be any stipulation as to where the money lent by the plaintiff to the defendants was to be returned---Part of the cause of action in the case had arisen at place H'---Suit filed by the plaintiff, in circumstances, was within the territorial jurisdiction of court at placeH'---Appellate Court had arrived at the correct conclusion, in holding that civil court at place `H' did have territorial jurisdiction in the matter---Order passed by Appellate Court did not suffer from any illegality or irregularity which would require interference by High Court in exercise of its revisional jurisdiction. ?

Apollo Textile Mills Limited v. Mian Farhat Iqbal 2010 CLC 389; Muhammad Kashif and another v. Talat Mujeeb Ranjha 2008 YLR 56; Muhammad Hassan and another v. Zubair Ahmed and another 1988 CLC 1914; Shahzad Humayoun v. Muhammad Akram 1991 MILD 530; Nasim Saleem and Company v. M. Barkatullah PLD 1967 Lah 928; Mst. Fazlan Bibi v. Muhammad Azam PLD 1952 Lah. 227 and Sh. Imam Ali v. Ch. Muhammad Shafi PLD 1956 Lah. 34.1 ref.

Ejaz Ali Hakro for Applicant.

Imdad Ali Unar for Respondents.

2011 C L C 995

[Karachi]

Before Syed Hassan Azhar Rizvi, J

Dr. Syed MISBAH-UZ-ZAFAR----Plaintiff

Versus

Mst. ROOHANA and 3 others----Defendants

Suit No.924 and C.M. No.5930 of 2005, decided on 8th March, 2011.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42, 54 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for cancellation of sale agreement, transfer order, declaration, mandatory and permanent injunction, recovery of balance sale consideration and damages---Plaintiffs plea that he transferred suit plot to defendant after receiving earnest. money of Rs. 15,00,000, while defendant executed promissory note for balance amount of Rs. 1,35,00,000 with undertaking that in case of defendant's failure to pay same, earnest money would stand forfeited and plaintiff could claim re-transfer of suit plot in his name---Plaintiffs' application to restrain defendant from creating third party interest in suit plot till decision of the suit---Validity---Execution of sale agreement and payment of earnest money was admitted by parties---Defendant had not placed on record any document to show payment of balance sale consideration except receipt showing payment of Rs. 1,35,00,000 in cash---Plaintiff being a Doctor could not be believed to have received such a huge amount in cash particularly in city of Karachi---Controversy involved could not be resolved without recording of evidence---Plaintiff had a prima case and balance of convenience appeared to be in his favour as he would suffer irreparable loss in case of refusal of injunction---Such application was accepted in circumstances.

Riazuddin for Plaintiff.

Farhatullah for Defendants.

2011 C L C 1004

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

Moulvi SAIFULLAH MEMON and another----Petitioners

Versus

PROVINCE OF SINDH and others----Respondents

C.Ps. Nos.D-1615 and D-2200 of 2008 heard on 10th August, 2010.

(a) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 16 (4) (5) & 21 (3) (e) (7)---Constitution of Pakistan, Art.199---Constitutional petition---Removal from office---Misconduct---Provincial government---Authority---Review, remedy of---Petitioners were appointed as Chairmen District Zakat and Ushr Committees for a period of three years but after change of government, Provincial Government removed the petitioners and appointed respondents as the Chairmen---Plea raised by authorities was that petitioners had alternate remedy of filing review to Provincial Zakat Council against its decision---Validity---Only Provincial Zakat Council could arrive at the opinion that petitioners had been guilty of alleged misconduct etc. and it was after the resolution of Provincial Zakat Council, the petitioners could be removed from the office as Chairmen of District Zakat and Ushr Committees---Notification in question was issued by Provincial Government with the approval of Chairman, Provincial Zakat Council, unauthorisedly exercising powers of Provincial Zakat Council, which on the face of it was illegal, without jurisdiction and coram non judice, hence the same was of no legal effect---No decision of Provincial Zakat Council was on record and decision of its Chairman alone could not be termed to be a decision of Provincial Zakat Council, therefore, no review could be filed before Provincial Zakat Council in absence of its decision---Orders/notifications of recalling/withdrawing nomination of petitioners and nominating respondents as Chairman District Zakat and Ushr Committees were declared to be illegal and of no legal effect---Petition was allowed in circumstances.

Azad Jammu and Kashmir Government versus Javed Iqbal Khawaja and another 1996 PLC (C.S.) 155 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Principles---High Court may not refuse to grant relief to an aggrieved party only on the ground that alternate remedy was available to petitioner---High Court may not refuse to strike impugned order down in exercise of its powers under Art.199 of the Constitution, if it appears to be ab inito void, due to complete lack of jurisdiction or substantial defect in jurisdiction.?

PLD 1979 Quetta 45; PLD 1961 SC 119, PLD 1972 SC 279 and PLD 1975 SC 450 rel.

Ali Gohar Soomro for Petitioner (in C.P. No.D-1615 of 2008).

Miran Muhammad Shah, Addl. A.-G. for Respondents Nos.1 to 3 (in C.P. No.D-1615 of 2008).

Aftab Ahmed Memon and G. Akbar Punhoon Uqaili for Respondent No.4.

M.M. Aqil Awan for Petitioner (in C.P. No.D-2200 of 2008).

Muhammad Nawaz Shaikh for Respondent No.3 (in C.P. No.D-2200 of 2008).

Date of hearing: 10th August, 2010.

2011 C L C 1011

[Karachi]

Before Syed Hasan Azhar Rizvi, J

Mrs. SHAKILA ZAIDI through Attorney and 8 others----Applicants

Versus

HAMMAD ASIF DOSSLANI and others----Respondents

Judicial Miscellaneous No.34 and C.M.As. Nos.7758, 9515 of 2009, decided on 17th March, 2011.

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

----S. 12---Civil Procedure Code (V of 1908), O.I, R.10---Suit for specific performance of agreement to sell---Marginal witnesses---Necessary party---Applicants were marginal witnesses to agreement to sell in question and their grievance was that they were not made party to the suit in question---Validity---Plaintiff had no privity of contract with applicants, therefore, there was no reason to join applicants to the suit as party, which had been filed for specific performance of contract executed between plaintiff and defendant.

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

----S. 12(2) & O.XXIII, R.3---Judgment and decree setting aside of---Fraud and misrepresentation---Petitioners contended that compromise decree passed in favour of plaintiff which was obtained by playing fraud, misrepresentation, concealment and suppression of material facts by plaintiff and defendant in collusion with each other---Validity---One of the petitioners was attorney of remaining petitioners and he confirmed preparation of compromise application in another suit and admitted sale of property in question in favour of plaintiff---Such admission by the petitioner established that defendant had agreed to sell property in question to plaintiff---By filing suit and obtaining order and compromise decree, plaintiff and defendant did not, commit any fraud or misrepresentation with the Court or petitioners---Order and consent decree in favour of plaintiff by High Court had no fraud, misrepresentation and error of jurisdiction committed by plaintiff and defendant---Petitioners failed to make out a case of fraud or misrepresentation against plaintiff and defendant, therefore, High Court declined to interfere in the consent decree passed in favour of plaintiff---Petition was dismissed in circumstances.

1985 CLC 2569; 1996 CLC 1657; PLD 1982 Pesh. 172; 1991 CLC 553; 2002 YLR 2531; 1984 SCMR 586; Mst. Bibi Sahiba and 9 other v. Mustaqir Shah and others 2002 SCMR 1838; AIR 2004 SC 3992 and Muhammad Noor Alam v. Zair Hussain and 3 others 1993 SCMR 1646 distinguished.

1992 YLR 373; 2000 MLD 1970; PLD 2003 Kar. 222; Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal heirs and others 2003 PLD SC 818; Messrs Dadabhoy Cement Industries Ltd and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500; Akhter Ali v. Anjuman-e-Ansar Ahle Bait and 4 others 2009 MLD 653; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40; Mst. Nasira Khatoonand another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Subedar Sardar Khan and others v. Muhammad Idrees and another PLD 2008 SC 591 ref.

Badar Alam for Applicants.

Mushtaq A. Memon and Ishtiaq Memon for Respondent No.1.

Amir Raza Naqvi and Haq Nawaz Talpur for Respondent No.2.

2011 C L C 1045

[Karachi]

Before Muhammad Ali Mazhar, J

ALI BUX through Legal Representative and others----Applicants

Versus

Mst. BHAGBHARI through Legal Representatives and others----Respondents

Civil Revision No.109 of 1985 and Civil Miscellaneous Appeal No.35 of 1984, heard on 25th March, 2011.

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

----O. III, R.4---Sindh Civil Court Rules, R.42---Appointment of pleader---Role and professional responsibility/conduct of pleader/advocate concerned---Scope.

Once a pleader is appointed to act on behalf of a client in a Civil Court under Rule 4(1) of Order III, C.P.C. his appointment continues till all proceedings in the suit come to an end as provided by sub-rule (2) of Rule 4. For the purpose of this sub-rule, sub-rule (3) further provides that among other things an appeal arising out of a judgment and decree in a suit shall be deemed to be proceedings in the suit and power filed in the suit will be considered to be valid in the appeal. The appointment of a pleader once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court Rules also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the Sindh Civil Court Rules will apply when the client terminates his authority given to a pleader to appear and act on his behalf. No Vakalatnama having been given to counsel, he had no business to appear in Court nor had he any locus standi even to ask for adjournment until he filed Vakalatnama.

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

----O. IX, R.13---Application for setting aside ex parte decree passed against defendants---Contentions of the counsel of applicants/ defendants were that defendants were the owners of agricultural land, which was in their possession for the last 40 years; that suit was decreed ex parte without any service upon the applicants in the trial Court; that neither the applicants had ever engaged any advocate nor instructed to file any Vakalatnama nor any notice was served upon them through bailiff or substituted service; in their supporting affidavit defendants had specifically stated that they were totally unaware about the pendency of the suit and they only came to know the factum of suit when the alleged attorney of the plaintiffs disclosed that the suit-land had been mutated in their favour on the basis of decision obtained from the Civil Court; that trial Court had dismissed the application on the ground "that one Mr. J. Advocate caused his appearance for representing the defendants in the suit, therefore, the 'assertion of applicants/defendants that no notice was served upon them was incorrect"; that record showed a statement filed by Mr. J. Advocate in the trial Court in which he simply requested to the Court for adjournment enabling him to file objections to the injunction application and in the same statement he also undertook to file vakalatnama on behalf of defendants; that said Mr. J. Advocate had also intimated the trial Court that he remained absent for want of instructions from defendants and for such reasons the application under O.IX, R.13, C.P.C. of defendants was dismissed by the trial Court and that appellate Court also took the same view and rejected the plea of non-service of defendants and advised the applicants to file an application under S.12(2), C.P.C.---Validity---Held, trial Court, as well as the appellate court both had failed to give any findings or reasoning on the crucial point as to whether applicants were ever served on or not---Neither any vakalatnama was filed by Mr. J. Advocate nor any notice was issued by the trial Court to the applicants after taking the statement of said Advocate that he remained absent for want of instructions---Even the appellate Court while dismissing the appeal ignored to decide an essential issue as to whether Mr. J. Advocate filed any vakalatnama in the matter or not and if no vakalatnama was filed why notice was not issued to the applicants if they were not duly served through bailiff---Appellate Court, instead of deciding the appeal on its own merits, advised the applicant to file an application under S.12(2), C.P.C. which was not the right approach---High Court, in circumstances, accepted the revision of applicants and remanded the matter to trial Court to decide the suit on merits after allowing ample opportunity to defendants/applicants.

Nazar Muhammad v. Government of Pakistan and others 1975 SCMR 387; Abdul Rashid v. Abdul Shahim and another 1981 CLC 550 and Mst. Sardaran Bibi v. Alladino PLD 1990 Kar. 227 ref.

Sundardas for Applicants.

Nemo for Respondents.

Date of hearing: 25th March, 2011.

2011 C L C 1074

[Karachi]

Before Muhammad Tasnim, J

Messrs FAISALABAD OIL REFINERY (PVT.) LTD. and 2 others----Plaintiffs

Versus

Messrs GOLDEN ALPINE MARITIME PTE LTD. through Local Agent and 2 others----Defendants

Suits Nos.636, 1673, 1705 of 2010 and C.M.As. Nos.457, 463 and 461 of 2011, decided on 18th February, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R.5---Scope of application of O.XXXVIII, R.5, C.P.C.

Order XXXVIII, Rule 5, C.P.C. attracts only for order of attachment before judgment. Rule 5 postulates that it may be proved to the satisfaction of the Court that the defendants own property and with intent to obstruct or to delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In determining whether defendants with intent to obstruct or to delay the execution of any decree that may be passed against him about to dispose of or about to remove the whole or any part of the property, the Court shall take into account all the circumstances of the case while passing any order in terms of Order XXXVIII, Rule 5, C.P.C.

Where a vessel was not owned by any of the defendants hence any attachment order in terms of Order XXXVIII, Rule 5, C.P.C. could not be passed against said vessel which was neither party to the proceedings nor any claim against said vessel appeared to have been made in the suits.. Except the assertions of the plaintiffs that the defendant was manager/operator of the vessel will not bring the case of the plaintiffs within four corners of the provisions of Order XXXVIII, Rule 5, C.P.C.

Mazhar Imtiaz Lari and lbaad Mazhar Lari for Plaintiffs (in all suits).

\Khalid A. Rehman for Respondents Nos.1 to 3 (in all suits).

2011 C L C 1086

[Karachi]

Before Muhammad Tasnim, J

PAKISTAN INDUSTRIES (PVT.) LIMITED----Plaintiff

Versus

KARACHI PORT TRUST through Board of Trustees----Defendant

C.M.A. No.7703 of 1999 in Suit No.450 of 2003, decided on 14th January, 2011.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Scope---Where plaintiff was in possession and there was threat to his possession he could always approach the court for protection and his suit shall not be hit by S.42, Specific Relief Act, 1877---Where plaintiff had not been dispossessed by act of defendant and only a cloud had been thrown on his title by the defendant's conduct the plaintiff could sue for a mere declaration of his title and need not ask for any further relief---Principles.

No person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

In the present case, plaint showed that plaintiff was handed over two plots under the lease of 25 years and a request for renewal of the lease was made by the plaintiff much before the expiry, but in response to the request of the plaintiff, defendant showed their willingness to renew the lease for further period of 25 years, subject to enhanced rent mentioned in their letter. It was the case of the plaintiff that defendant had acted arbitrarily, capriciously and that terms which were highly discriminatory, not reasonable, disproportionate and had no nexus with the reality. It was further case of the plaintiff that disproportionate increase in rate of rent as demanded by the defendant was also excessive and it amounted to denial of lease under the garb of increased rent. Plaintiff had further pleaded in the plaint that defendant was against the plaintiff and had given lease to other lessees on much lower rent hence plaintiff had sought a declaration that defendant could not charge such excessive amount and that charging the same was unlawful, arbitrary, excessive, illegal and void. Since plaintiff was in possession and there was threat for his ejectment from the suit plots he had right to approach the court for the relief claimed.

Where plaintiff was in possession and there was threat to his dispossession he could always approach the court for protection and his suit shall not be hit by section 42 of Specific Relief Act. Where the plaintiff had not been dispossessed by act of the defendant and only a cloud had been thrown on his title by the defendant's conduct the plaintiff could sue for a mere declaration of his title and need not ask for any further relief. In the present case, plaintiff had not only sought a declaration but had also prayed for mandatory injunction. The plaintiff made request for renewal of lease in respect of both the plots under his possession such request of the plaintiff was responded to 'by the defendant vide its letter stating therein that in case no positive response was received within seven days from the receipt of the-notice a legal action for ejectment of the plaintiff will be processed. In these circumstances present suit for declaration and mandatory injunction was filed. In view of above settled legal position and circumstances of the case plaint of the plaintiff was not hit by provisions of section 42 of the Specific Relief Act, 1877.?

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

----S. 55---Mandatory injunction---Scope---Section 55, Specific Relief Act, 1877 provides as to when to prevent the breach of an obligation and to compel performances of the requisite act---Principles.

A bare reading of section 55 of the Specific Relief Act, 1877 provides that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite act. In the present case, since demand for enhancement of rent was questioned by the plaintiff through the present suit on the ground that demand of defendant is unreasonable, excessive, unlawful, arbitrary, illegal and void and there was a threat to plaintiff's dispossession from the suit properties. As per plaint open plots were leased out to the plaintiff, who had invested considerable amount for raising necessary construction and installation of necessary machinery in order to utilize the plots under the long terms of lease with a valid legitimate expectations that lease would be renewed on the reasonable term, consequent upon expiry of the lease in respect of suit plots but when request was made by the plaintiff for renewal of lease it was responded to, but on very exorbitant rent which according to plaintiff was discriminatory, excessive, arbitrary, illegal and void and there was also threat to the plaintiff for his ejectment from the suit properties. In the circumstances interim relief to plaintiff was granted by the court whereby defendants were directed not to interfere with the plaintiff's peaceful enjoyment of the suit properties nor shall create any third party interest. Such order was upheld by Division Bench of High Court and finally maintained by the Supreme Court of Pakistan. In the circumstances of the case the plaint in the suit was not hit by provisions of section 55 of the Specific Relief Act, 1877.?

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

----O. VII, R.11---Specific Relief Act (I of 1877), Ss.42, 12 & 55---Suit for declaration, specific performance and mandatory injunction---Rejection of plaint---Provisions of O. VII, R.11, C.P.C. are not exhaustive, but plaint can be rejected by the court only if it is found that the suit is 'incompetent'---Principles and procedure.

It is the duty of the court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw court's attention to the same by way of an application. The court can, and, in most cases hear counsel on the point involved in the application. The principles involved are two-folds in the first place, it contemplates that a still born suit should be properly buried, at its inception, secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may file a properly constituted suit. It appears from the language of Rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what has been bound to collapse as not being permitted by law.?

Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of the Karachi Port Trust 1986 CLC 2229 and Trustees of the Port of Karachi v. Messrs Hyesons Commercial and Industrial Corporation 1987 CLC 1932 distinguished.

Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of the Karachi Port Trust 1986 CLC 2229; Trustees of the Port of Karachi v. Messrs Hyesons Commercial and Industrial Corporation 1987 CLC 1932; Ghous v. Bux v. Muhammad Suleman and others 2001 MLD 1159; Bank Alfalah Limited v. Iftikhar A. Malik 2003 CLD 363; Begum Hafizunnisa Qureshi and others v; Shaikh Muhammad Hussain and others 2003 CLC 1156; 2004 CLC 799; Noor Begum v. Muhammad Boota and others PLD 1995 Lah. 344 and Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 held not applicable.

Malik Naeem Iqbal for Plaintiff.

Safdar Mehmood for Defendant.

2011 C L C 1097

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

FINANCIAL BROADCASTING SERVICES (PVT.) LIMITED----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (SINDH REGION)----Respondent

Constitutional Petition No. D-984 and Miscellaneous No.5009 of 2008, decided on 12th April, 2011.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

---Ss. 30-A & 19---Pakistan Electronic Media Regulatory Authority Rules, 2002, R.23---Constitution of Pakistan, Art.199---_Constitutional petition---Refusal of F.M. Radio Licence---Petitioners had failed to avail the remedy of appeal under S.30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and bypassed the same without any justifiable reason---Petitioners had concealed the fact of filing appeal under R.23, Pakistan Electronic Media Regulatory Authority Rules, 2002 and did not bring said fact to the notice of the court or disclosed the same in the memo of constitutional petition---Said appeal was dismissed by the Authority and petitioners were intimated of the same---Contention of the petitioners that they were not aware of the dismissal of their appeal and no such order was received by them was without force, as it was the applicant who should be vigilant and it was the duty of applicant to pursue the case and enquired about its fate---Constitutional petition was dismissed in circumstances.

(b) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 19---Constitution of Pakistan, Art.199---Constitutional petition---Licence to broadcast or operate---Contention was that petitioner was the highest bidder for F.M. Radio licence and had vested right, and exercise of discretion against the subject by the Authority should be based on sound principles of justice, equity, fairness and in accordance with spirit of the relevant provisions of law and should not be merely at the whims of the Authority---Validity---Held, such principle was not attracted where the petitioner/applicant did not fulfil the required eligibility---High Court observed that tendency to by-pass forum available under the relevant law was increasing day by day and the persons opted shortcut to resolve their grievance/dispute by filing the constitutional petition instead of availing of remedy provided for under the relevant statute---Constitutional petition was dismissed, in circumstances.

Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 601; Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Makerwal Collieries Ltd. and 2 others v. Government of N.-W.F.P. and 11 others 1993 SCMR 1140; Messrs Dadabhoy Investments (Pvt.) Limited v. Federation of Pakistan and another PLD 1995 Kar. 33; Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. 2010 SCMR 306 and Abdul Rehman Mayat and another v. Wealth Tax Officer and others 1988 SCMR 1722 ref.

Ejaz Ahmed for Petitioner.

Kashif Hanif for Respondent.

2011 C L C 1136

[Karachi]

Before Muhammad Ali Mazhar, J

RIJHOMAL----Appellant

Versus

TARACHAND----Respondent

M.As. Nos.18 and 19 of 1998, 10 of 1983 and 166 of 1986 decided on 1st April, 2011.

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

----Ss. 276, 281 & 295---Petition for probate---Procedure---Trial Court disregarding the substantial evidence adduced by witness of the will who had deposed that will was signed by the maker in his presence, which statement was neither shattered nor dismantled during cross-­examinaiton---Judgment passed by the Trial Court was not based on judicial considerations in circumstances.

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

----O. XXII, Rr. 1 & 4---Death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives---When within the time limited by law no application is made or intimation is given under R.4 sub-rule (1) of O.XXII, C.P.C., the court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place.

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

---O. XXII, R.11---Entire Order XXII, C.P.C. has been made applicable to appeals also with slight modification and variation of the nomenclature of plaintiff and defendant as appellant and respondent.

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

----Art. 133---Cross-examination---Object---If a meticulous version in evidence on a material point of fact goes unchallenged and un­rebutted, same would be deemed to have been admitted and accepted as true---Object of cross-examination is two fold i.e. to bring out desirable fact of case modifying examination-in-chief or establishing cross-examiner's own case and to impeach credit of witness---Cross­-examination helps in discovery of truth and it is a skillful art to extract something in cross-examiner's favour out of the lips of his opponent---When a specific assertion made by witness in examination-­in-chief substantially relevant to the controversy not challenged by putting contrary suggestion, such assertion could be given full credit.

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

---Ss. 283 & 276---Civil Procedure Code (V of 1908), O.XXII, R.5---Petition for probate---Procedure--Determination of question as to legal representative---Powers of District Judge---Scope.

The powers of District Judge are provided under section 283 of the Succession Act which inter alia provides that the District Judge or District Delegate may if thinks proper examine the petitioner in person upon oath, require further evidence of the due execution of the will or the right of the petitioner to the letters of administration and issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. It is further provided in subsection (2) of section 283 that the citation shall be fixed up in some conspicuous part of court house and also in the office of Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct. Keeping in view the above unambiguous and explicit provision of law, the trial court shall issue citation and also publish the same in vernacular newspaper. The trial Court will also issue notice to the concerned Mukhtiarkar for making effort to bring the actual legal representative on record if any and in case any person cause his appearance in the capacity of legal representative, then the trial Court will first determine his status in terms of Order XXII, Rule 5, C.P.C. before proceeding further with the matter.

Ahmed Ali Shaikh for Appellant.

Nemo for Respondent.

Date of hearing: 1st April, 2011.

2011 C L C 1160

[Karachi]

Before Aqeel Ahmed Abbasi, J

SAIN RAKHIO----Applicant

Versus

ABDUL GHAFFAR and 5 others----Respondents

Civil Transfer Application No.S-23 of 2010, decided on 21st January, 2011.

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

----S. 24---Transfer of case---Scope---Grounds or instances for seeking transfer of case from one court to another not mentioned in S.24, C.P.C.---Powers vested in a Court under S.24, C.P.C., would be exercised keeping in view principles laid down by Superior Courts regarding administration of justice---Justice should not only be done, but should be seen manifestly and undoubtedly to have been done---Conduct of proceedings by a Judge must not generate any reasonable apprehension in mind of a person that Judge/Presiding Officer of court was biased or his mind was prejudiced---Apprehension of bias could not be extended to judicial bias on ground that since a Judge while deciding a similar matter had already expressed an adverse opinion, thus, other case of similar nature might have same fate---Authority vested in High Court and District Judge under S. 24, C.P.C., would be exercised with caution only in extraordinary circumstances and not as a routine matter---Filing of baseless and frivolous transfer applications with an intent to thwart legal proceedings or cause inconvenience to court or either party must be discouraged by dismissing same with heavy costs.

Government of N.-W.F.P. and another v. Dr Hussain Ahmed Haroon and others 2003 SCMR 104 and Syed Tahir Hussain Mahmoodi and others v. Tayyab and others PLD 2009 Kar. 176 rel.

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

----S. 24 & O. VII, R. 11---Transfer of case, application for---Remand of case by Appellate Court after setting aside order of rejection of plaint passed by Trial Court---Plaintiff alleging his apprehension of not getting justice from Presiding Officer of Trial Court that he would dismiss suit in same terms as he had earlier rejected the plaint---Validity---Apprehension of bias could not be extended to judicial bias on ground that since a Judge while deciding a similar matter had already expressed an adverse opinion, thus, other case of similar nature might have same fate---Such application did not find mention any specific allegation against Presiding Officer---No logic existed behind alleged apprehension of plaintiff as parameters and consideration of application under O.VII, R. 11, C.P.C., were entirely different and limited in nature---While deciding application under O.VII, R. 11, C.P.C., court had to examine only contents of plaint and not evidence---Appellate Court had remanded case for deciding case on merits after recording evidence---Plaintiff's apprehension under such circumstances was misconceived and not tenable in law---High Court dismissed transfer application in circumstances.

Syed Tahir Hussain Mahmoodi and others v. Tayyab and others PLD 2009 Kar. 176 rel.

(c) Bias---

----Judicial bias---Apprehension of bias could not be extended to judicial bias on ground that since a Judge while deciding a similar matter had already expressed an adverse opinion, thus, other case of similar nature might have same fate.

Syed Tahir Hussain Mahmoodi and others v. Tayyab and others PLD 2009 Kar. 176 ref.

Applicant in person.

Altaf Hussain Surahio, State Counsel.

2011 C L C 1176

[Karachi]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

MUHAMMAD NAVED ASLAM and 3 others----Appellants

Versus

Mst. AISHA SIDDIQUI and 14 others----Respondents

H.C.A. No.62 of 2010, decided on 21st April, 2011.

(a) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 7 [as amended by Sindh Civil Courts (Amendment) Act (III of 2011)]---Sindh Courts Act (VII of 1926), S.8---High Court of West Pakistan (Establishment) Order (XIX of 1955), Art.5---Jurisdiction of Karachi Bench Sindh High Court at original side---Scope---Karachi Bench of Sindh High Court is functioning or exercising the powers and performing the duties as the Principal Civil Court of original jurisdiction in the civil district of Karachi---By virtue of latest amendment made under S.7, West Pakistan Civil Courts Ordinance, 1962 (dated 2-3-2011), [as amended by Sindh Civil Courts (Amendment) Act (III of 2011)] the pecuniary jurisdiction of original side of Karachi Bench of Sindh High Court has been enhanced from thirty lacs to fifteen million.

Firdous Trading Corporation's case PLD 1961 Kar. 565; West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. PLD 1964 (WP) Kar. 11; Shaikh Muhammad Ameen and Co. v. Provincial Industrial Development Corporation 1991 CLC 684; Agricides (Pvt.) Ltd v. Ali Agro Supply Corporation Ltd. 1988 CLC 59; Pakistan Kuwait Investment Company Pvt. Ltd v. Saadullah Khan and Brothers 2010 CLD 760; Gulfam and others v. Bibi Qudsia Begum 2003 CLC 1183; Syed Muhammad Anwar Iqbal v. Bangladesh Shipping Corporation 1991 CLC 473; Wajid Hussain Farooqui v. Shahida Shahnawaz 2007 CLC 394; Mirza Abdur Rahim Baig and another v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388; M/s. Popular Pharmacy, Karachi v. M/s. Nova Bio Medical and others PLD 1996 Kar. 411; Valuegold Limited v. United Bank Limited PLD 1999 Kar. 1; Mazhar Valjee v. Sher Afghan Than Niazi 2004 YLR 2525; Haji Abdul Malik v. Muhammad Anwar Khan 2003 SCMR 990; Muhammad Yasin v. Ch. Muhammad Abdul Aziz PLD 1993 SC 395 and Sunshine Corporation (Pvt.) Ltd v. M/s. E.D. DU Pont De Nemours & Co. 1999 YLR 2162 distinguished.

Firdous Trading Corporation v. Japan Cotton & General Trading Co. Ltd. PLD 1961 (W.P) Kar. 565; Haji Razak v. Usman PLD 1975 Kar. 944; Province of Sindh v. Haji Razzaq 1991 SCMR 920; Rimpa Sunbeam Cooperative Housing Society Ltd. v. Karachi Metropolitan Corporation PLD 2006 Kar. 444; Ismat Asad v. Pakistan Oxygen Limited 2010 CLC 1226 and Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha 2005 MLD 1506 ref.

(b) West Pakistan Civil Courts Ordinance (II of 1962)---

----S.7 [as amended by Sindh Civil Courts (Amendment) Act (III of 2011)]---Civil Procedure Code (V of 1908), Ss.120, 16, 17, 19 & 20, O.XLIX, R.3, O.VII, R.10, O. II, R.2 & O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42, 39, 54 & 55---Suit for declaration, injunction, cancellation, direction and recovery of damages---Territorial jurisdiction of Karachi Bench of Sindh High Court at the original side---Nature and extent---Application and implication of S.12, C.P.C. read with O.XLIX, R.3, C.P.C.---Return of plaint---Scope---Principles.

The provisions of Order VII, Rule 10, C.P.C. are mandatory in nature and adjudication by a court without jurisdiction is coram non judice and when any court lacks pecuniary or territorial jurisdiction, the proper course is to return the plaint for presentation to the proper court and such court cannot pass any judicial order except that of returning the plaint. The powers conferred under Rule 10 can only be exercised where the suit is pending before the court and it may be exercised at any stage of the suit even in appeal and or revision. The bare look of the plaint, in the present case, undisputedly shows that the plaintiff instituted the suit for the determination of the right to or interest in the immovable property and for compensation for wrong to immovable property and the recovery of movable property. The relief claimed in the suit and its nature falls within the purview of section 16 of C.P.C. which provides that such kind of suits shall be instituted in the court within the limits of whose jurisdiction the property is situated. Though section 120, C.P.C. provides that sections 16, 17 and 20 shall not apply to High Court in exercise of its original civil jurisdiction but it does not mean that by virtue of this section the jurisdiction of original side of Karachi Bench of Sindh High Court extended to all territories of Province of Sindh no matter the property in question is situated at Karachi or not. The jurisdiction of Karachi Bench of Sindh High Court at original side is only limited and confined to the Districts of Karachi. Merely for the reasons that Revenue functionary on the application instead of hearing the case at Hyderabad, heard the case at Karachi and passed the order at Karachi does not confer the territorial jurisdiction to Karachi Bench of High Court of Sindh on original side.

Non-applicability of sections 16, 17 and 20 read with Order XLIX, Rule 3, C.P.C. is only applicable and limited to the original side jurisdiction for the districts of Karachi and when it is found that the property is situated outside the territorial jurisdiction of Karachi then sections 16 and 17 will automatically come into operation. The initial guiding principles for institution of various suits is provided under sections 16 to 19, C.P.C. whereafter section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. In the present case, section 16 is applicable therefore, the suit should have been instituted where the property is situated and since the claim of damages is not an independent relief but arising from the alleged wrong done committed by the defendants in the suit, therefore, this relief can also be easily claimed in the same suit at same place along with other reliefs including the declaration as to the ownership, permanent and mandatory injunction. Jurisdiction of Sindh High Court to entertain suits is basically neither the ordinary nor the extraordinary original civil jurisdiction of the High Court but simply a District Court jurisdiction, the jurisdiction of Sindh High Court to try Civil Suits is confined to matters where the pecuniary value of the subject-matter exceeds Rs.30,00,000. All other suits are liable to be tried by the District Courts.

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

----O. II, R.2---West Pakistan Civil Courts Ordinance (II of 1962), S.7 [as amended by Sindh Civil Courts (Amendment) Act (III of 2011)]---Suit to include the whole claim---Scope and application---Original jurisdiction of Karachi Bench of Sindh High Court---Scope---Provision of O.II, R.2, C.P.C. is based on the principle that defendant should not be vexed twice for the same cause of action---Said provision is penal in nature and precludes the plaintiff to sue for the portion of claim on remedy so omitted---Person entitled to more than one relief in respect of same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted---Principles.

Order II, Rule 2, C.P.C. provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Section 19 of C.P.C. provides that where a suit is for compensation for wrong done to the person or to the movable property, if the wrong was done within the local limits of jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of jurisdiction of another court, the suit may be instituted at the option of plaintiff in either of the said courts. Though the plaintiff, in the present suit, has claimed the damages on account of actual loss and damages for mental torture suffered on account actionable wrong of the defendants but for claiming the damages which could be filed in the Karachi Bench of Sindh High Court keeping in view the express provision of section 19, subject to Order II, Rule 2, C.P.C. the plaintiffs have to relinquish the part of claims and reliefs fall within the parameter and ambit of section 16, C.P.C. It is further provided under sub-rule 3 of Order II, Rule 2, C.P.C. that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Since the claim of damages arising from and offshoot of the same cause of action, therefore, all such reliefs can be claimed and granted to the plaintiff in one suit by the court having territorial jurisdiction to try the suit in question. Order II, Rule 2, C.P.C. is devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party. This provision is based on the principle that the defendant should not be vexed twice for the same cause of action. It is penal in nature and precludes the plaintiff to sue for the portion of claim or remedy so omitted.

Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha 2005 MLD 1506 ref.

Mushtaq A. Memon and Khawaja Shamsul Islam for Appelants.

Kamal Azfar along with Haider Waheed and Zayyad Khan Abbasi for Respondent No.1.

Mrs. Haleema Khan, Addl. A.-G. Sindh along with Saifullah, Asstt. A.-G. Sindh.

Nazar Akbar, D.A.-G.

Date of hearing: 2nd February, 2011.

2011 C L C 1225

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

MUHAMMAD ASLAM----Appellant

Versus

Messrs COLONY SARHAD TEXTILE MILLS LTD.----Respondent

H.C.A. No.111 of 2004, decided on 18th April, 2011.

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

----Arts. 122 & 129---Misappropriation and embezzelment of money of employer company by employee---Employee claiming that he had taken all the money from the bank of the company for business purposes of the company---Onus lay on the employee asserting such averment and it was for employee to prove with cogent material and evidence that the said amounts withdrawn by employee were in fact utilized and spent for business purposes of the company---Principles.

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

----O. VI, R. 1---Pleadings---No evidence could be allowed or looked into in support of the plea which had not been pleaded in proceedings---If a plea of fact was not pleaded no case could be founded on the same---Person could not be allowed to argue something which was not part of the pleadings, until and unless the facts so warranted.

T. Motandas v. Ali Ahmed PLD 1987 Kar. 159 and Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469 ref.

Naveed Ahmed Khan for Appellant.

Zafar Alam Khan for Respondent.

Date of hearing: 3rd March, 2011.

2011 C L C 1239

[Karachi]

Before Syed Hasan Azhar Rizvi, J

HUSSAIN ALI----Plaintiff

Versus

Shaikh MUHAMMAD SHAHID and 11 others----Defendants

C.M.As. Nos.1438, 1439, 5778, 5779 and 5780 in Suit No.202 of 2009, decided on 18th March, 2011.

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

----S. 17 & Sched. I, Art. 1---Civil Procedure Code (V of 1908), O.I, R.3 & O.II, R.3---Multifarious suits---Court-fee, affixing of---Principles---Court-fee has to be calculated in a manner that court-fee of every individual cause of action is to be added upto together into an aggregate amount and then affixed with plaint.

Alam Khan and others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375; Sahibzada Azhar Saleem v. Muhammad Hanif 2002 MLD 696 and Umeed Ali and 12 others v. Government of Sindh and others PLD 2007 Kar. 224 ref.

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

----O. III, R.1 & VII, R.1(c)---Filing of plaint---Proper party---Owners of suit property should be sued through attorney and not the attorney in his individual capacity.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles---Plaintiff had purchased several flats situated in suit property from defendant, through lease deed and was enjoying physical possession thereof---Effect---Suit was maintainable, plaintiff had a prima facie case and balance of convenience was also in his favour---High Court confirmed interim injunction already granted to plaintiff---Application was allowed in circumstances.

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

----O. I, R. 10---Specific Relief Act (I of 1877), Ss.42 & 54---Necessary party---Proof---Impleading as defendant---Claim of plaintiff and intervenors/applicants were based on sub-lease as they were claiming ownership of flats in question through registered sub-leases---Interveners/applicants were in physical possession of flats in question, which fact was apparent from counter affidavits filed by plaintiff, wherein he himself stated that interveners/applicants had occupied flats in question with mala fide intention and he had lodged F.I.R. with police---Effect---Such statement of plaintiff in counter affidavit indicated that plaintiff was fully aware that interveners applicants were in possession of flats in question and he did not array interveners/ applicants as defendants to the suit---High Court in order to cut short the controversy and to avoid multiplicity of litigation, directed the plaintiff to array intervenors/applicants as defendants and file amended title of plaint---Application was allowed in circumstances.

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

----O. XI, R. 14---Production of document---Scope---Plaintiff contented that defendants should deposit their lease / sub-leases / general power of attorney with Nazir of High Court and the same be kept in custody---Validity---Relief sought by plaintiff was premature as parties to the suit would submit their original documents in Court before recording of evidence, therefore, submitting the same, at initial stage of trial, before Nazir of High Court was not justified---Application was dismissed in circumstances.

Muhammad Ashraf Qazi for Plaintiff.

S. Amir Ali for Defendant No.2

Muhammad Irfan for Intervenors.

Ms. Farkhanda Mangi for the State.

2011 C L C 1253

[Karachi]

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

Dr. NOSHEEN FATIMA----Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Health and 5 others----Respondents

Constitutional Petition No.D-1012 of 2010, decided on 12th February, 2011.

(a) Educational institution---

----Written examination---If a flaw is found in a question in the paper, then an examiner will be placed at a disadvantaged position and the examiner should suffer because of the flaw in the question and not the examinee---In the present case, three questions in the question paper were wrong or were not decipherable and could be "seriously objected to" and were not clearly understandable and admittedly there were various typographical errors, the examinee was placed at a disadvantageous position and ought to have been compensated more particularly when she missed the mark only by 0.4%---Held, said examinee be accommodated accordingly i.e. that she be declared as passed in the written examination.

(b) Educational institution---

---Such institution exercises parental jurisdiction over its students and is not expected to give step-motherly treatment to the students.

Irfan Nadir v. University of Punjab 1996 CLC 550 ref.

(c) Educational institution---

----Written examination---Paper setters and examiners---In the present case, number of students for the examination is always one or two, it would be in the interest of every one, especially the students that the supervisor of such student should not be a paper setter and examiner, there being always a possibility of allegations being raised, that the paper was leaked out by the supervisor to the candidate who was under his supervision---Papers, therefore, be got set and checked by someone other than the supervisors who were not the supervisors of the students appearing for examination---High Court observed that in the present era of computerization, it would be best that the papers are checked through computer process rather than manually, ruling out the possibility of allegation of bias and favouritism---High Court directed that in future the standards and criteria set by the Educational Institution itself and the methodology suggested by the High Court in paper setting and its examination/checking and marking be followed strictly.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Educational Institution---Written examination---Petitioner, a student, was an aggrieved person and fell within the pale of the provisions of Art.199 of the Constitution---Educational Institution's affairs were directly under scrutiny and control of Government of Pakistan, therefore, on such score, constitutional petition merited consideration---Principles.

Ms. Raana Khan for Petitioner.

Umer Hayat Sandu D.A.-G. for Respondent No.1.

Muhammad Yousuf Leghari for A.-G. for Province of Sindh.

Muneer A. Malik and Ismat Mehdi for Respondent No.6.

Nemo for Respondents 2 to 5.

Dates of hearing: 30th November and 3rd December, 2010.

2011 C L C 1286

[Karachi]

Before Faisal Arab and Nisar Muhammad Sheikh, JJ

Syed MUREED HUSSAIN SHAH and another----Petitioners

Versus

Syed ZAMEER HUSSAIN SHAH through Legal Heirs and others----Respondents

Constitutional Petition No.D-492 of 2007, decided on 3rd May, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.52, O.XXI, R.34 & O.XXII, R.12---Constitution of Pakistan, Art.199---Constitutional petition---Execution of decree---Judgment-debtors, death of---Act of Court---Decree for specific performance of agreement to sell was passed in favour of predecessor-in-interest of respondent and execution of the decree was allowed by Executing Court vide order dated 12-9-1985---Only obligation on decree-holder, in order to get sale-deed executed in his favour was deposit of balance sale consideration, which he deposited on 20-5-1986---Sale-deed was executed on 10-3-2007, in favour of respondent through Court official---Petitioners who were legal heirs of deceased judgment-debtors raised the plea that execution of decree was barred by limitation---Validity---After deposit of balance sale consideration by decree-holder on 20-5-1986, nothing was to be done on the part of decree-holder---Official of Court was to execute sale-deed in favour of decree-holder---Delay in execution of sale-deed could only be attributed to judgment-debtors and after their death to their legal heirs or to official of Trial Court---After deposit of balance sale consideration there was no need for decree-holders to move separate application to seek registration of sale-deed---Act of Court should prejudice no one and decree-holders or their legal representatives could not be denied fruits of decree merely because of the default of judgment-debtors to discharge their obligation under the decree or of the official of Trial Court---Not necessary that upon death of judgment-debtors during pendency of execution proceedings, legal representatives should be made a party---Decree could be executed without impleading legal representatives of judgment-debtors unless decree-holder could not get his decree satisfied without obtaining an order against legal representatives of deceased judgment-debtors for its execution---Sale-deed had been executed in favour of respondent, there was nothing left in the case---High Court declined to interfere in execution of sale-deed---Petition was dismissed in circumstances.

2011 CLC 731; 2001 SCMR 1; 2004 CLC 1482; PLD 1974 BJ 25; PLD 1975 Lah. 909; 2003 MLD 22; PLD 2008 SC 3; 2007 MLD 355; 2007 SCMR 621; PLD 1994 SC 294; 1986 CLC 2972. PLD 1981 BJ (sic); PLD 1990 SC 1 and 2011 SCMR 8 ref.

Abdul Naeem assisted by Faisal Naeem and Syed Bahadur Ali Shah for Petitioners.

Abdul Qadir Shaikh for Respondents Nos.1(a) to (g).

Date of hearing 3rd May, 2011.

2011 C L C 1303

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

Syed GHAZANFAR HUSSAIN through Legal Heirs and others----Appellants

Versus

NOORUDDIN and others----Respondents

High Court Appeal No.67 of 2008 and C.M.A. No.379 of 2011, decided on 27th April, 2011.

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

----S. 114, O. XLVII, R.1 & S.12(2)---Law Reforms Ordinance (XII of 1972), S.3(1)---High Court Appeal against order passed by Single Bench of High Court in revision filed against order of Trial Court---Division Bench of High Court set aside such order and remanded case to Single Bench for passing fresh order---Review petition for recalling such order of Division Bench of High Court---Maintainability---Such appeal was not competent as order challenged therein had not been passed by Single Bench in its original civil jurisdiction---Division Bench while passing impugned order had assumed jurisdiction not vested in same under any provision of law---Impugned order was a void order and a nullity in law---No limitation would run against a void order for being non-existent in eyes of law---Review petition was not time-barred---Only proceedings which had not been finally disposed of in accordance with law could not be re-opened---Impugned order had been passed in violation of S.3(1) of Law Reforms Ordinance, 1972, thus, same had not attained finality and was not a past and closed matter---Review petition was maintainable as provisions of C.P.C., in absence of specific exclusion thereof would apply to appeals filed under Law Reforms Ordinance, 1972---High Court, in exercise of its inherent jurisdiction, could convert review petition into an application under S.12(2), C.P.C.---High Court accepted revision petition and recalled impugned order and quashed all actions taken on its basis.

Muhammad Swaleh v. United Grain Fodder Agencies PLD 1964 SC 97 and Muhammad Yaqoob v. Messrs United Bank Limited and others 2007 SCMR 922 rel.

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

----S. 11---Res judicata---Scope---Matters could not be allowed to continue indefinitely and there should be an end to litigation---Once a case had been heard and appeal had been taken or time of appeal had gone, then all parties to dispute and their successors would be bound by court's findings on issue thereunder.

Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee PLD 1987 SC 145 rel.

(c) Constitution of Pakistan---

----Arts. 189 & 185(3),---Leave granting order by Supreme Court---Such order for not being of binding nature would not fall within ambit of Art. 189 of the Constitution.

Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202 rel.

(d) Law Reforms Ordinance (XII of 1972)---

----S. 3---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Review against order passed in High Court Appeal---Maintainability---Provisions of C.P.C., in absence of specific exclusion thereof would apply to Law Reforms Ordinance, 1972---Review was maintainable.

(e) Jurisdiction---

----Inherent jurisdiction of High Court---Scope---High Court in exercise of such jurisdiction could convert an appeal or constitutional petition or revision to any other remedy---Application under one section could also be converted to an application under any other section.

Muhammad Yaqoob v. Messrs United Bank Limited and others 2007 SCMR 922 rel.

Gohar Iqbal assisted by Mirza Saeed Baig for Appellants.

Muhammad Ali Waris Lari for Respondent No.3.

Date of hearing: 21st April, 2011.

2011 C L C 1325

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

SAADAT HAYAT KHAN----Appellant

Versus

ZAHEERUDDIN and another----Respondents

High Court Appeal No.73 of 2005, decided on 29th April, 2011.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art.17(a)(b)---Agreement of sale, attestation of---Scope---Documents referred to under Art.17(a) of Qanun-e-Shahadat, 1984 were instruments as defined under Negotiable Instruments Act, 1881, S.3 and would not apply to such agreement for being covered by Art.17(b) of Qanun-e-Shahadat, 1984.

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

----S. 54---Registration Act (XVI of 1908), Ss.17 & 18---Agreement of sale finding mention factum of payment of entire sale consideration---Objection that such agreement was required to be properly stamped and registered---Validity---Mere mention of such fact in agreement would not make same a sale deed.

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

----S. 54---Sale agreement---Evidentiary value---Such agreement could not confer a title on party.

Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 rel.

S. Afsar Ali Abidi and Abdul Sattar Pingar for Appellants.

Mrs. Haleema Khan for Respondent No.1.

Nemo for Respondent No.2.

Dates of hearing: 31st March, and 7th April, 2011.

2011 C L C 1356

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

Miss JAVARIA----Petitioner

Versus

MEHRAN UNIVERSITY OF ENGINEERING AND TECHNOLOGY, JAMSHORO through Vice-Chancellor, Controller of Examination Registrar (Officers) Academic Council and Syndicate (Authorities)----Respondent

M.As. Nos.6912, 7739 of 2010 and 930 of 2011 in Constitutional Petition No.D-1649 of 2010, decided on 5th May, 2011.

(a) Mehran University of Engineering and Technology Act, (IV of 1977)---

----S. 47--Mehran University of Engineering and Technology Admissions and Teaching of Students Regulations, 1978, Regln, 10---Mehran University of Engineering and Technology, Bachelor of Engineering (B.E.), Bachelor of Architecture (B.Arch.), and Bachelor of City & Regional Planning (B.C.R.P.) Degree Courses Regulations, 2003, Regls.9 & 11---Constitution of Pakistan Art.199---Constitutional petition---Student of 3rd year, Bachelor of Engineering (B.E.)---Final examination of Sixth Term (third year) to commence on 25-11-2010---Denial of examination form to petitioner for having below 75% required attendance---Petitioner's plea that 54% attendance secured by her in sixth term was due to be her often sickness, thus, she was entitled to condonation of attendance of missed classes on medical ground---Filing of constitution petition one day earlier to date of examination---Validity---Petitioner was allowed to appear in sixth term examination through an interim order subject to final outcome of present constitutional petition ---Petitioner had not attached a single medical certificate with petition to substantiate her claim---Medical certificate filed along with affidavit-in-rejoinder showing petitioner to be patient of Acute Pyelonephritis which was a common renal disease of inflammation of kidney---Petitioner in petition had admitted that she had missed 102 classes and secure only 54% attendance in sixth term as against 75 required attendance---According to Para-11 of Prospectus 2007-2008, maximum 10% condonation in genuine case might be allowed under discretionary powers of Vice-Chancellor on basis of application to be scrutinized by Director/Chairman concerned and routed through respective Dean of the Faculty ---Petitioner had failed to show any unfair or discriminatory treatment with her requiring any interference of High Court---Interim order of High Court would not create any valuable or vested right in favour of petitioner---Relevant Regulations and Prospectus did not allow any student to appear in examination having below 75% attendance---High Court dismissed constitutional petition in circumstances.

Miss. Sehar Sultan v. Comsats Institution of Information Technology Lahore 2011 CLC 559(?); Zubair Ishtiaq Qureshi v. The Chairman of Academic Council and Principal of Sindh Medical Karachi 1993 CLC 1675; Miss. Karima v. University of Punjab 2001 MLD 1252; Controller of Examination Board of Intermediate and Secondary Education Lahore v. Wagar Hussain Hashmi PLD 1977 Lah. 1029; Shaukat Hussain v. Syed Jarar Hyder 1997 CLC 596; Ali Yousaf and another v. Chairman of Academic Council and Principal Dow Medical College, Karachi 2000 SCMR 1222 and Farhan Karim Mahar v. Mehran University of Engineering and Technology Jamshoro C.P No. D-523 of 2000 ref.

(b) Medical jurisprudence---

---- "Acute pyelonephritis "---Definition.

Acute hylonephritis is one of the most common renal diseases. It is an inflammation of the kidney characterized by the sudden onset (within one to two days) of fever and chills, side pain, and frequent, painful urination. Acute pyelonephritis results most commonly from the spread of a naturally occurring lower urinary tract or bladder infection up through the ureters to the kidneys.

Irfan Ahmed Qureshi for Petitioner.

Jhamat Jethanand for Respondent.

2011 CLC 1371

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

Mrs. FARZANA and another----Petitioners

Versus

MUHAMMAD MATEEN KHAN and 2 others----Respondents

Constitutional Petition No.D-715 of 2008, decided on 12th August, 2010.

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

----O. VII, R. 11(a)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff's plea that as per his Bank Statement and cheques, he had paid entire sale consideration to defendant (his ex-wife), thus, she was liable to transfer suit house in his favour---Rejection of plaint by Trial Court on grounds that no sale agreement existed between parties and there was no proof that defendant ever sold out suit house to plaintiff, thus, he had no cause of . action against defendant---Validity---Every allegation made in plaint would be presumed to be true for determining whether plaint disclosed a cause of action or not---Only facts stated in plaint would be construed to determine whether same constituted a cause of action or not--Averments made in plaint disclosed a cause of action and triable issue--Questions as to whether there existed a contract for sale of suit house between parties, and whether alleged payment made by plaintiff to defendant was towards sale consideration, could not have been resolved without proper trial---Plaintiff should have been given an opportunity to substantiate his case---Matter in issue required factual investigation, thus, plaint could not be rejected---Trial Court had wrongly resorted to unusual course of shortcutting matter in rejecting plaint---Appellate Court had rightly set aside order of Trial Court---High Court dismissed constitutional petition filed by defendant.

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

----O. VII, R. 11(a)---Rejection of plaint for not disclosing cause of action---Scope---Every allegations made in plaint would be presumed to be true for determining whether plaint disclosed a cause of action or not---Only facts stated in plaint would be construed to determine whether same constituted a cause of action or not.

Rizwan Ahmed Siddiqui for Petitioners.

Izhar Alam Farooqui for Respondents.

Date of hearing: 12th August, 2010.

2011 C L C 1389

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

Mst. MUSSARRAT JABEEN and another----Petitioners

Versus

Syed MUSSARRAT ALI and another----Respondents

Constitutional Petition No.D-2673 of 2010, decided on 11th March, 2011.

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

----S. 12(2) & O.V, R.17---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan Art.199---Constitutional petition---Suit for specific performance of sale agreement---Application under S.12(2), C.P.C. for setting aside ex parte decree---Petitioner's plea that decree had been obtained by misrepresentation and fraud as neither he was served in suit nor his address mentioned in plaint was correct; that he came to know about decree during its execution; and that documents. enclosed with plaint were photocopies and forged---Order of Trial Court dismissing such application upheld by revisional court---Validity---Address of petitioner mentioned in the plaint and execution application was not the same---Petitioner and House Building Finance Corporation (HBFC) finding mention as judgment-debtors in execution application were not party to suit---Respondent in fresh execution application had arrayed petitioner's wife as judgment-debtor and deleted name of House Building Finance Corporation and petitioner---Bailiff's report showing petitioner not found at given address was held by Trial Court to be good service upon petitioner---Record showed that petitioner had never been served directly in suit--- No A/D or receipt of courier was available on record to prove issuance of summons to petitioner---Notices shown to be pasted did not find mention name, NIC number or signature of a respectable person of locality as witness---Neither any application nor any oral request was available on record for issuance of summons through publication---No explanation available on record of repetition of holding service good upon petitioner by same Presiding Officer---Rules of procedure meant to promote cause of justice could not be used as engine of oppression against party to suit---Question of genuineness of documents enclosed with plaint could be resolved only after recording evidence of parties and production of original documents before Trial Court---Production of original documents in evidence was mandatory in law, but respondent had produced only photocopies thereof---Respondent had obtained decree by deceitful manner on basis of forged, fabricated, bogus, false and fictitious documents---Trial Court had wrongly held good service of summons on petitioner in violation of O. V, R. 17, C.P.C. and Sindh Chief Court Rules (OS)---High Court accepted constitutional petition and set aside impugned orders while directing Trial Court to decide suit within specified time.

(b) Administration of justice---

----Rules of procedure for being meant to promote cause of justice could not be used as engine of oppression against a party to suit.

Muhammad Sabir Haider for Petitioners.

Nadeem Khalid for Respondent No.1.

2011 CLC 1401

[Karachi]

Before Salman Hamid and Syed Hassan Azhar Rizvi, JJ

GUL MUHAMMAD----Petitioner

Versus

CHAIRMAN, AGRICULTURE MARKET COMMITTEE, K.N. SHAH and 6 others----Respondents

Constitutional Petition No.D-1345 and M.As. Nos.6092, 6088 of 2010, decided on 7th July, 2010.

Agricultural Produce Market Act (V of 1939)---

----Ss. 2(e) & 6---Agricultural Produce Market, Rules, 1940, R.6---Constitution of Pakistan Art.199---Constitutional petition---Cattle piri in Notified Market Area, licence for---Petitioner's application for granting such licence was refused by authority after renewing licence of respondent---Validity---Petitioner made such application on 3-6-2010---Respondent's licence was to expire on 30-6-2010---Respondent had not made application in prescribed form for renewal of his licence---Petitioner's application for being prior in time was required to be processed before renewal of respondent's licence for period commencing from 1-7-2010 and ending on 30-6-2011---Refusal or grant/renewal of licence was not followed altogether---Authority had violated procedure laid down under S. 6 of Agricultural Produce Market Act, 1939---High Court directed authority to issue licence only to those found entitled after processing petitioner's and other applications strictly in accordance with law.

Habibullah G. Ghori for petitioner.

Syed Lal Shah for Respondent No.6.

2011 C L C 1405

[Karachi]

Before Nisar Muhammad Shaikh, J

Mrs. SHAHIDA HUSSAIN alias RANI----Plaintiff

Versus

KARACHI AMERICAN SCHOOL through President and 2 others----Defendants

Suit No.130 of 2008 and C.M.A. No.12500 of 2010, decided on 21st April, 2011.

Civil Procedure Code (V of 1908)---

----O. XI, R.14---Production of documents---Court under O.XI, R.14, C.P.C., at any time during pendency of the suit, could order the production of the documents in possession or power of any party, if such documents related to the matter in question---Documents sought to be produced in the case, appeared to have relevancy to the points in question, on which the issues were already framed in the court---No cogent reason was available to reject the prayer of the plaintiff, specially when no prejudice would be caused to the defendant party on production of the documents in question, together with the affidavit on oath as the possession of those documents, except one, was also not denied by the defendant party.

Choudhri Mehmood Ahmed and others v. Government of Punjab and others 1988 CLC 1532 and Muhammad Arif v. Muhammad Anwar 2004 MLD 1127 ref.

Iqbal Haider along with Ameer Haider for Plaintiff.

Abdul Ghaffar Khan for Defendants.

2011 C L C 1412

[Karachi]

Before Munib Akhtar, J

Syed MOAZZAM ALI SHAH----Appellant

Versus

MUHAMMAD SULEMAN and others----Respondents

Second Appeal No.4 of 2007, decided on 8th April, 2011.

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

---Ss. 12, 27(b) & 42---Suit for specific performance of prior sale agreement and declaring subsequent sale agreement as null and void---`Plea of subsequent purchaser not to have knowledge/notice of prior agreement before such suit; and that prior purchaser (plaintiff) had not averred in plaint that subsequent purchaser had such notice/ knowledge---Burden of proof---When point of knowledge/notice of subsequent purchaser about prior agreement was part of plaintiff's cause of action, then same must be specifically averred in plaint, otherwise he could not be allowed to leave evidence in respect of such fact---When such point of knowledge/notice was simply part of defence plea, then plaintiff could lead evidence to prove contrary thereto even in absence of such averment in plaint---Principles.

Mst. Khair-ul-Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25; Shah Nawaz v. Abdul Ghafoor and another 2008 SCMR 352; Abdul Haque and others v. Shaukat Ali and others 2003 SCMR 74; Pak United Housing Enterprise v. Ramzan and others 1992 CLC 1678 and Muhammad Ramzan v. Muhammad Sharif and others 1987 MLD 403 rel.

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

----S. 100---Question of legal nature and effect of agreement in dispute---Scope---Court would look at substance of agreement, but not how same was labelled and a party wished to describe same---Such question being question of law could be raised in second appeal.

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

---S. 12---Suit for specific performance of agreement to sell---Agreement for sale---Evidentiary value---Such agreement would not confer any title in or to property on buyer.

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

----S. 27(b)---Transfer of Property Act (IV of 1882), S.54---Subsequent agreement for sale of immovable property in favour of subsequent vendee by vendor---Evidentiary value---Such agreement would not amount to or confer or convey any title to subsequent purchaser, whose title acquired thereunder would remain either an "equitable right" or an "imperfect title".

Shaukat Ali Mian v. Trust Leasing Corporation Ltd. 2002 CLD 1071 and P&T Co-operative Housing Society Ltd v. Ch. Manzoor Sahi PLD 1961 Kar 53 rel.

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

----S. 54---Registration Act (XVI of 1908), S.48---Agreement for sale of immovable property---Priority of registered subsequent agreement over unregistered agreement---Scope---Question of priority of registered document would arise in a case when document was required by law to be registered, but not otherwise---Law did not require compulsory registration of sale agreement---Sale agreement registered voluntarily would/could not be given priority over another agreement of same nature.

Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers and others 2009 SCMR 611; Rasool Buksh and another v. Muhammad Ramzan 2007 SCMR 85 and Tahir Hussain Malik v. Mst. Najma Rafi 1995 SCMR 1407 rel.

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

----Ss. 12, 27(b) & 42----Transfer of Property Act (IV of 1882), S.53-A---Suit for specific performance of prior sale agreement and for declaring sale agreement of subsequent purchaser as null and void---Plea of subsequent purchaser claiming to be in possession of suit-land, on basis of registered sale agreement that he was a bona fide purchaser of suit-land for valuable consideration without knowledge/notice of prior agreement before such suit---Validity---Agreement for sale of immovable property would not confer any title in or to property on buyer---Person claiming protection under latter part of Cl. (b) of S.27 of Specific Relief Act, 1877 must have a "title" to suit property and paid entire sale price before acquiring knowledge of prior agreement--Subsequent purchaser's statement on oath as witness not to have notice of prior agreement would shift onus on plaintiff to prove that subsequent purchaser did have such notice---Subsequent agreement, even if registered voluntarily, would not amount to or confer or convey any title to purchaser, whose title acquired thereunder would remain either an "equitable right" or an "imperfect title", thus, defence under S.27(b) of Specific Relief Act, 1877 would not be available to him---Subsequent purchaser during cross-examination admitted that he had not paid entire sale consideration to vendor and there was balance amount outstanding against him---Subsequent purchaser was not entitled to protection of S.27(b) of Specific Relief Act, 1877 for not having paid entire sale consideration to vendor before acquiring knowledge of prior agreement---Such plea of subsequent purchaser was repelled and subsequent agreement was declared as null and void and cancelled in circumstances.

Veeramalai Vanniar (Died) and others v. Thadikara Vanniar and others AIR 1968 Mad. 383; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Kali Charan v. Janak Deo AIR 1932 All 694 rel.

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

---Ss. 12, 27(b) & 42---Suit for specific performance of prior sale agreement and declaring sale agreement of subsequent purchaser as null and void---Plea of subsequent purchaser that he was a bona fide purchaser of suit-land for valuable consideration without having knowledge/notice of prior agreement before filing of suit---Admission of subsequent purchaser during cross-examination not to have paid entire sale consideration to vendor and there was balance amount outstanding against him---Validity---Subsequent purchaser had not paid entire sale consideration before acquiring knowledge/notice of prior agreement, thus, he would not be entitled to protection of latter part of S.27(b) of Specific Relief Act, 1877---Court in such case could declare subsequent agreement as null and void and cancel the same---Illustration.

Veeramalai Vanniar (Died) and others v. Thadikara Vanniar and others AIR 1968 Mad 383 rel.

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

----S. 53-A---Specific Relief Act (I of 1877), Ss.12 & 27(b)---Suit for specific performance of prior sale agreement---Suit property claimed to be in possession of subsequent purchaser in part performance of subsequent agreement---Validity---Provisions of S.53-A of Transfer of Property Act, 1882 would not apply to present case as plaintiff had made claim to suit property under prior sale agreement---Subsequent purchaser, if not entitled to protection of latter part of S.27(b) of Specific Relief Act, 1877, could not resist suit of prior purchaser by taking shelter behind provision of S.53-A of Transfer of Property Act, 1882---Only in case of suit by second purchaser against third purchaser, third purchaser would be entitled to benefit of Proviso to S.53-A of Act, 1882---Principles.

Hemraj v. Rustomji AIR 1953 SC 503 rel.

Mushtaque A.Memon for Appellant.

Mrs. Razia Ali Zaman Khan for Respondent No.1.

Badal Gahoti for Respondent No.2.

Mumtaz Alam Leghari, Asstt. A.-G.

2011 C L C 1441

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD SHAMIM----Petitioner

Versus

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

Constitutional Petition No.S-595 of 200.8 and C.M.As. Nos.1669 to 1671 of 2011, decided on 13th April, 2011.

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

----S. 15---Civil Procedure Code (V of 1908), Ss.148 & 151---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment order passed by Rent Controller upheld by Appellate Court---High Court in constitutional petition by consent order granted time to tenant for vacating demised premises---Tenant's application under S. 148 read with S. 151, C.P.C. for granting him one year further time for compliance of consent order---Applicant's plea that he could not arrange alternative place in vicinity; and that he misunderstood consent order and construed same to be for continuance of tenancy on enhanced rent---Validity---Both such pleas for being contradictory showed mala fide on tenant's part---Consent order in unambiguous and clear terms stipulated that applicant would peacefully hand over possession of premises to landlord on date specified therein---Applicant had been granted reasonable time to vacate premises---Landlord could not be burdened due to applicant's failure to obtain alternative premises within stipulated time---No provision of law existed under which High Court could grant further time---High Court dismisses such application in circumstances.

Amin Badshah v. Nargis Saleem Ahmed 2000 SCMR 1641 rel.

Bayer AG and another v. Pharmedic (Pvt.) Ltd. 2003 CLC 1548; Mst. Naseema Salahuddin and 2 others v. Mst. Daulat Fatima and 4 others PLD 2004' Lah. 103; Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Dr. Iftikhar Ahmad Zahid v. Mrs. Nilofer Akhtar and another 2004 SCMR 96 and Izzat Baig Awan v. Habib Bank Ltd. 2004 SCMR 98 distinguished.

Muhammad Aziz Khan for Petitioner.

Nalemitho alias Muhammad Ishaque for Respondent No.3.

2011 C L C 1450

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD BACHAL----Plaintiff

Versus

PROVINCE OF SINDH through Home Secretary and 12 others----Defendants

Suit No.1542 of 2008 and C.M.As. Nos.10715, 11035 and 11487 of 2008, decided on 25th May, 2011.

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

----O. VII, R.10---Return of plaint---Exercise of powers---Pre­conditions---Powers conferred under O. VII, R.10, C.P.C. can only be exercised where suit is pending before the court and it may be exercised at any stage of the suit even in appeal and or revision.

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

----O. II, R. 2---Same cause of action---Splitting-up of claims--Validity---Provision of O.II, R. 2, C.P.C. is devised to prevent a party from splitting-up claims and remedies arising out of same cause of action against same party---Such provision is based on the principle that defendant should not be vexed twice for the same cause of action---Provision of O.II, R. 2, C.P.C. is penal in nature and precludes plaintiff to sue for the portion of claim or remedy so omitted.

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

----Ss. 16, 17, 20 & O. VII, R. 10---Return of plaint---Cause of action---Territorial jurisdiction---Property of plaintiff was demolished and bulldozed unlawfully and illegally by defendants---Suit property was situated at place "N" whereas the suit was filed at place "K" before High Court in its original civil jurisdiction---Validity---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 or territorial jurisdiction, in such cases, plaint must be returned for presentation to proper court and Court could not pass any judicial order except that of returning the plaint---Cause of action described by plaintiff in plaint showed that no cause of action accrued to plaintiff within territorial limits and jurisdiction of High Court, therefore, plaint was returned to plaintiff for institution before the court of appropriate jurisdiction---Plaint was returned accordingly.

Wajid Hussain Farooqi v. Shahida Shahnawaz 2007 CLC 394; Haji Razak v. Usman PLD 1975 Kar, 944; West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. PLD 1964 (WP) Kar. 11; Agricides (Pvt.) Ltd. v. Ali Agro Supply Corporation Ltd. 1988 CLC 59; Mirza Abdur Rahim Baig and another v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388; Muhammad Naveed Aslam v. Mst. Aisha Siddiqui PLD 2010 Kar. 261; Muhammad Naveed Aslam v. Mst. Aisha Siddiqui High Court Appeal No.62 of 2010; Province of Sindh v. Haji Razaq 1991 SCMR 920; Firdous Trading Corporation's case PLD 1961 (W.P.) 565; Mian Akbar Hussain v. Mst. Aisha Bai and others PLD 1991 SC 985; Rimpa Sunbeam Cooperative Housing Society Ltd. v. Karachi Metropolitan Corporation PLD 2006 Kar. 444 and Murlidhar P. Gangwani v. Engineer Aftab Islam Agha 2005 MLD 1506 ref.

Muhammad Jamil for Plaintiff.

Qazi Majid, A.A.-G.

Asif Ali Pirzada for Defendants Nos.3 to 9, 11 and 12.

Date of hearing: 10th March, 2011.

2011 C L C 1528

[Karachi]

Before Faisal Arab, J

ZAHEER ABBAS----Appellant

Versus

Pir ASIF and 6 others----Respondents

Civil Miscellaneous Appeal No.3 and C.M.A. No.363 of 2009, decided on 30th May, 2011.

Islamic Law---

----Inheritance----Death of an employee during service----Service benefits of deceased included payment of gratuity, family pension, leave encashment, group insurance and general provident fund----Deceased during life time having nominated his mother to receive group insurance, family pension and gratuity----Legal heirs of deceased employee except such nominee claiming shares in all such service benefits----Validity----Service benefits payable to a deceased employee during his life time from his employer, if remained unpaid, would become part of his estate and heritable by all his legal heirs according to their respective shares---Service benefit which had not fallen due to a deceased employee in his lifetime and was in the nature of a grant or concession on part of employer, then whatever amount became payable after death of employee would be distributed amongst those members of his family entitled thereto as per rules and regulations or under any prevalent law---Benefits such as gratuity, group insurance and family pension being grants and concession on part of employer, of payable to an employee after his death, could not be treated as heritable by all heirs of employee, but would be received by beneficiary thereof under service rules and regulations of employer----Principles.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 and PLD 2010 Kar. 153 fol.

Saddaruddin Buriro for Appellant.

Muhammad Akram Jhamat for Respondents.

Date of hearing: 29th October, 2010.

2011 C L C 1538

[Karachi]

Before Munib Akhtar, J

BURMA OIL MILLS LIMITED----Plaintiff

Versus

TRUSTEES OF THE PORT OF KARACHI through Chairman----Defendant

Suit No.1813 and C.M.A. No.12049 of 2010, decided on 21st April, 2011.

(a) Interpretation of documents---

----Proper meaning and interpretation of a term used in contract being a question of law would be decided by court.

(b) Interpretation of documents---

----Words used in a contract could not be interpreted in isolation from words immediately preceding them---Illustration.

(c) Interpretation of documents---

---Words used in a contract regarding immovable property---Determination of proper meaning---Principle---Any antecedent agreement(s)/deed(s) between parties on same subject-matter could, in appropriate circumstances, shed light (by forming part of relevant factual background) on proper meaning of words used in such contract.

(d) Interpretation of documents---

----Words used in a contract---Meaning---Determination---Duty of court stated.

Modern principles of construction require the Court to have regard to the commercial background, the context of the contract and the circumstances of the parties, and to consider whether against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.

Cargill International SA v. Bangladesh Sugar and Food Industries Corporation [1997] EWCA Civ 2757; [1998] 1 WLR 461 fol.

Arshad M. Tayebaly and Amel Khan Kansi for Plaintiff.

Ghulam Hyder Sheikh for Defendant.

Date of hearing: 31st March, 2011.

2011 C L C 1573

[Karachi]

Before Munib Akhtar, J

Messrs SHEZAN SERVICES (PVT.) LTD. through Assistant Accounts Manager----Applicant

Versus

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

C.M.A. No.7585 of 2010 and Suit No.90 of 2008, decided on 20th May, 2011.

Civil Procedure Code (V of 1908)---

----S. 11---Res judicata, principle of---Interlocutory applications, applicability to---Scope---Such principle would apply even to interim applications and proceedings within same suit---Illustration.

Clifton Centre Association v. City District Government, Karachi and others PLD 2003 Kar. 477 and Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board and other's PLD 2003 Kar. 495 ref.

Moin Azhar Siddiqui for Applicant.

Abdul Sattar Pirzada along with Ms. Tahsin Taj for Respondent No.3.

Date of hearing: 27th April; 2011.

2011 C L C 1594

[Karachi]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI----Appellant

Versus

Dr. Syed TARIQ SOHAIL and another----Respondents

H.C.A. No.D-418 of 2006, decided on 20th May, 2011.

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

----S. 42---Suit for declaration---Area and dimension of property mentioned in the deed and site plan being different from description of boundaries thereof---Vendee claiming property on basis of boundaries thereof---Validity---Vendor could not sell and vendee could not have purchased area in excess of that not transferred to vendor---Vendee would not have right to area in Excess of that mentioned in deed and transferred to vendor---Vendee could not claim benefit of description in terms of boundaries particularly when exact dimensions of area were specified in deed and site plan---Principles.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; A.R. Khan v. P.N. Boga through legal heir PLD 1987 SC 107; Arshad Abdullah and others v. Government of Sindh through Secretary, Housing and Town Planning Department and others 2006 YLR 3209 and Rashid-ur-Rehman v. Akram Khan and 2 others 1989 SCMR 1982 ref.

Arshad Abdullah and others v. Government of Sindh through Secretary, Housing and Town Planning Department and others 2006 YLR 3209 distinguished.

(b) Judgment---

----Judgment/decree partly being against plaintiff not challenged in appeal---Effect---Such part of judgment/decree would be presumed to have been accepted by plaintiff---Principles.

Nazar Hussain Dhoon along with Anwar Mahmood Khan, Assistant Engineer for Appellant.

Ms. Sana Akram Minim for Respondents.

Date of hearing: 17th May, 2011.

2011 C L C 1726

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

ABID IQBAL and 2 others----Appellants

Versus

EXPORT PROCESSING ZONE AUTHORITY through Chairman----Respondent

High Court Appeal No.46 of 201u, decided on 4 the May, 2011.

Export Processing Zone Authority Ordinance (IV of 1980)---

---S. 24---Arbitration Act (X of 1940), S.34---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---Arbitration clause---Stay of proceedings---Plaintiff assailed stay of proceedings of suit on the plea that basis of dispute between the parties was not mentioned in arbitration application---Validity---If suit was filed not on the basis of an agreement but was covered by Export Processing Zone Authority Ordinance, 1980, --then it was not necessary that disputes were specifically highlighted---Only thing the Court had to examine was that whether such disputes were covered by arbitration clause in Export Processing Zone Authority Ordinance, 1980, or not---As the dispute between the parties was covered by arbitration clause of Export Processing Zone Authority Ordinance, 1980, therefore, arbitration application was rightly allowed---Order of High Court was unexceptionable and no interference was called for in High Court Appeal---Appeal was dismissed in circumstances.

Novelty Cinema, Lyallpur v. Firdaus Films and another PLD 1958 (W.P.) Lah. 208; Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498; Messrs Cosmplitan Development Company v. Messrs SO DI.ME,-S.P.A. and another 1983 MLD 2832; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350; Mst. Zohra Begum v. Messrs Abdul Razak & Co. and 10 others 1984 CLC 1643; Union of India v. Birla Cotton Spinning and Weaving Mills Ltd. AIR 1967 SC 688 and Messrs National Small Industries Corporation Ltd., New Delhi v. Messrs Punjab Tin Printing and Metal Industries Ajraunda, Faridabad (Haryana) and others AIR 1979 Delhi 58 distinguished.

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

H.A. Rahmani for Appellants.

Ali Mumtaz Shaikh for Respondents.

Date of hearing: 26th April, 2011.

2011 C L C 1818

[Karachi]

Before Salman Hamid, J

FAIZ MUHAMMAD----Applicant

Versus

GUL MUHAMMAD----Respondent

Civil Revision Application No.113 and C.M.As. Nos.527 to 530 of 2011, decided on 11th July, 2011.

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

----O. IX, R.13 & S.115---Ex parte decree, setting aside of---Defendant had been appearing in the case but later on, when he absented himself, the decree was passed in favour of plaintiff---Trial Court declined to set aside the decree under O.IX, R.13, C.P.C., for the reason that it was not an ex parte decree---Lower Appellate Court allowed the appeal on the ground that judgment was passed one sided, therefore, provisions of O.IX, R.13, C.P.C. were applicable---Validity---Plaintiff did not allege that jurisdiction exercised by the Courts below did not have such jurisdiction and/or such Courts had failed to exercise the jurisdiction which vested in them or that such Courts had exercised jurisdiction illegally or with material irregularity---Revision application was competent only if the Courts below had exercised jurisdiction not vested in them by law or failed to exercise jurisdiction so vested or had committed illegality or material irregularity in exercise of jurisdiction---Scope of revision was limited to cases where subordinate Courts had exceeded their jurisdiction or had declined to exercise jurisdiction warranted by the law---Plaintiff did not contend that the Courts below had committed a gross illegality and did not attend the legal proposition of law and passed the judgments / orders in violation of established principle of law---High Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

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

----S. 115---Revision---High Court, jurisdiction of---Scope---High Court can interfere, in revision, in the finding of Courts below only if it was shown that such were based on misreading/non-reading of evidence or were patently absurd or the Courts had failed to exercise jurisdiction vested in it or assumed jurisdiction not vested---Where conclusion of law and fact do not in any way affect the jurisdiction of the Court, no matter, how erroneous, wrong or perverse the decision might be either on a question of fact or law, unless decision involved matter of jurisdiction, the provision of revision cannot be invoked---High Court has no jurisdiction to interfere under S.115, C.P.C., if the Courts below had jurisdiction to pass an order.

Tariq G. Hanif Mangi for Applicant.

2011 C L C 1834

[Karachi]

Before S. Zakir Hussain, J

SARWAT SAEED----Applicant

Versus

ABDUL RAZZAK BAJWA----Respondent

Civil Revision Application No.167 of 2010, decided on 28th September, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & S.12(2)---Suit for recovery of loan---Application for leave to defend suit---Challenging judgment and decree on allegation of fraud and misrepresentation---Defendant filed application for leave to defend suit, which was dismissed by Trial Court and High Court with direction to defendant to submit cash guarantee/bank guarantee or surety equal to the suit amount within a period of one month---Defendant failed to comply with the said direction of the High Court and abstained himself to attend the hearing before the Trial Court and Trial Court ordered to proceed ex parte---Affidavit, in ex parte proof was filed by the plaintiff with relevant documents and suit was accordingly decreed in favour of the plaintiff, which had attained finality---Defendant preferred application under S.12(2), C.P.C. and sought said finding to be upset on the ground of fraud and misrepresentation of facts---Said application was dismissed---Validity---Trial Court had rightly dismissed application filed under S.12(2), C.P.C. as same was beyond the scope of the subject matter of the suit and was nothing, but an attempt to frustrate the ends of justice---No fraud or misrepresentation of facts appeared at all in the matter of obtaining the judgment and decree---Impugned order could not be interfered with by High Court in exercise of its revisional jurisdiction.

Jamil Ahmed Javed for Applicant.

2011 C L C 1847

[Karachi]

Before Munib Akhtar, J

Messrs MUHAMMAD ISMAIL through Managing Partner and 6 others----Plaintiffs

Versus

Messrs SIR JAHANGIR KOTHARI TRUST through Trustees and 16 others----Defendants

C.M.A. No.9987 of 2009 in Suit No.804 of 2008, decided on 4th July, 2011.

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

----S 92---Suit under S.92, C.P.C.----Maintainability---Determination---Essential considerations---Such question would be determined on an examination of entire plaint after considering its substance and not the form in which the suit was brought.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid and others PLD 1988 SC 283 and Begum Hafizunnisa Qureshi v. Shaikh Muhammad Hussain and others 2003 CLC 1156 rel.

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

----S. 92 & O.VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Rejection of plaint---Trust Deed and will of testator prohibiting sale of trust property---Sale of trust property by defendant-trustee without permission of Court alleged by plaintiff-tenants to be against law and a nullity and apprehending their illegal eviction by its purchaser---Defendant's application under O.VII, R.11, C.P.C., for rejection of plaint---Validity---Suit property belonged to public charitable trust---Plaintiffs could not contend that scope of their suit fell outside purview of S.92, C.P.C.---Plaintiffs' grievance related to matters coming within scope of S.92(1)(f), C.P.C., and alleged apprehension was not their substantive grievance---Tenant could be evicted only in accordance with law and mere change of ownership would not result in his eviction---Plaintiffs had not brought suit in a representative capacity for benefit of public at large, but were asserting their individual rights---Plaintiffs were not persons having an interest in trust within meaning of S.92, C.P.C.---Section 92, C.P.C., was intended to be a shield protecting trustees from frivolous and fictitious litigation---Nothing was brought on record by plaintiffs to contradict defendant's version that object and purpose of trust would be best served by sale of trust property and investing its proceeds elsewhere---After applying mind to facts available on record and situation of the present case, a reasonable person would not conclude that directions/decree of court was necessary for administration of trust including sale of suit/trust property---High Court rejected the plaint in circumstances.

Muhammad Siddique v. Bhupendra Narayan Roy Chowdhury and others PLD 1992 Dacca 643 and Khadim Hussain and others v. Ata Muhammad and others PLD 1967 Lah. 915 ref.

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

----S. 15---Eviction of tenant---Scope---Tenant could be evicted only in accordance with law and mere change of ownership would not result in his eviction.

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

----S. 92---Suit under S.92, C.P.C.---Scope---Such suit could be brought by Advocate-General himself or two or more persons having an interest in trust after obtaining written consent of Advocate-General---Persons having an interest in trust would include the trustees and beneficiaries---Such suit must be brought in a representative capacity on behalf of public at large and not to enforce a private or an individual claim or right---Suit filed by persons not falling in the categories mentioned in S.92, C.P.C., if showed its violation or violation of any provision of Trust Deed, then court ought not to ignore a potential illegality brought into its notice, but must take notice thereof in exercise of its inherent jurisdiction and pass appropriate orders or directions---Public charitable trust was for benefit of public and court must discharge its responsibility as a guardian of public interest.

Begum Hafizunnisa Qureshi v. Shaikh Muhammad Hussain and others 2003 CLC 1156 rel.

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

----S. 92---Public charitable trust created under general law---Public charitable trust created under some specific/special provision of law---Sale of property belonging to such two kinds of trust---Scope.

(f) Islamic Law---

----Waqf---Muttawalli is not owner of waqf property.

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

----S 92---Public charitable trust---Obtaining decree of court for administration of such trust or alienation/sale of trust property---Requirement of---Scope---When a reasonable person having knowledge of all relevant facts and circumstances of a particular situation would conclude in relation thereto that direction of court be obtained, then such decree would be required, but not otherwise---When such requirement on objective basis was found to be applicable, then obtaining of such decree would be mandatory---When such requirement on objective basis was not found to apply, then obtaining of such decree would not be mandatory even though matter might be falling within scope of any clause of S.92(1), C.P.C.---When matter did not come within scope of S.92, C.P.C., then action taken by trustees would be within their powers---Trustees could approach the court in all cases, whether contentious or not---Principles.

Halsbury's Laws of England (Vol. 5, Fourth Edition, para 808 and Attorney-General v. South Sea Company (1841) 4 Beav 453; 49 ER 414 rel.

Moin Azhar Siddiqui for Plaintiffs.

R.F. Virjee for Defendants Nos.1 to 3.

Abdul Qadir Khan and Muhammad Younus Memon for Defendants Nos.4 to 17.

Date of hearing: 8th April, 2011.

2011 C L C 1866

[Karachi]

Before Munib Akhtar, J

Dr. SHAHZAD ALAM and 2 others----Plaintiffs

Versus

BEACON LIGHT ACADEMY and 5 others----Defendants

Suit No.234, C.M.As. Nos.8781 of 2009 and 1174 of 2008, decided on 4th July, 2011.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss.91, 94(c), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Scope---Public nuisance---Public interest---Commercial school opened by defendant without permission of City Local Government on residential property in a residential area in immediate vicinity of plaintiffs' houses causing them nuisance and impairing peaceful enjoyment thereof---Plaintiffs' application for grant of interim injunction against operation of school on suit property---Defendant's plea that school on suit property was in full operation since year 2004 long before acquisition of residences by plaintiffs in year 2006-2007; that more than 59 schools were in operation in same locality, which ceased to be a purely residential area, thus, acts complained of would not constitute a nuisance; that defendant by running school was performing an important civic duty of imparting education, which was in larger public interest, thus, sought refusal of such relief---Validity---Onus was on defendant to establish that complexion/character of disputed locality being residential had already changed---Owner of a private residence would normally be only concerned with and could only complain about his own disturbance---Enjoyment of a private residence would not ordinarily be affected if similar or other commercial activities were being carried out in other neighbouring localities---Other 59 schools were not operating in vicinity of plaintiffs' residences---Nothing on record to show that immediate neighbourhood of plaintiffs had been so altered by commercial and other activities that operation of a school by defendant on suit property would not constitute a nuisance---Residential property put to a non-residential use and then great deal of movement to and from such property at regular times would constitute a nuisance---Activities of or at a school at specific time of its opening and closing could materially impair enjoyment by neighbours of their properties---Plaintiffs had established a prima facie case that running of school on suit property constituted a nuisance as they were being discomforted in enjoyment of their residences on daily basis during school term---Balance of convenience and question of irreparable loss/injury was in favour of plaintiffs---Court, though finding all three ingredients to be in plaintiffs' favour, could in appropriate circumstances withhold injunctive relief for same being equitable and discretionary---Mushroom growth in population had created huge demand for education in all parts of the country, which demand of public interest must be met one way or the other---Court, in larger public interest could withhold such relief even though plaintiff having made out a case therefor on account of nuisance---Public interest would be fully engaged, when school had been in operation for some time and a large number of students had been attending school for a number of years---Sudden disturbance in established routine of education of a large number of students would have disruptive impact on their education---Court in such situation would consider and weigh question of public interest while outweighing individual rights of plaintiffs---High Court declined to grant the relief to plaintiffs in circumstances---Principles.

Khurram Khalil and another v. Hameeda Begum and others HCA No.1 of 2007; Ardeshir Cowasjee and others v. Muhammad Taqi Nawab and others PLD 1993 Kar. 631; Naz Shoukat Khan and others v. Yasmin R. Minhas and another 1992 CLC 2540; Nasir Khan and another v. Federation of Pakistan and others Suit No.1353 of 2009; Bliss v. Hall (1838) 4 Bing (NC) 183; 132 ER 758; Lahore Grammar School (Pvt.) Limited and another v. Hameeda Begum and another PLD 1996 Lah. 442; Rana Naeem Mahmood and others v. Karachi Metropolitan Corporation and others Suit No.951 of 2000; Abdul Rasheed and others v. Mahmood Ali Khan 1994 SCMR 2163; A. Razzak Adamjee and another v. Datari Construction Company (Pvt.) Ltd. 2005 SCMR 142; Mst. Jamila v. Yadgar Service Station and others 2009 YLR 2018; Shaikh Muhammad Nasim and others v. Al-Murtaza Society and others 2003 CLC 627 and M. Zaheerul Hasan v. Lahore Grammar School (Pvt.) Limited and others C.P. No.D-2621 of 2003 ref.

Ardeshir Cowasjee and others v. Muhammad Taqi Nawab and others PLD 1993 Kar. 631; Bellamy v. Wells (1891) 63 LT 635; Abdul Razak v Karachi Building Control Authority and others PLD 1994 SC 512, Excell Builders v Ardeshir Cowasjee and others 1999 SCMR 2089; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883; Zaheer Ahmed Chaudhry v City District Government Karachi and others 2006 YLR 2537; Shelfer v. City of London Electric Lighting Company [1895] 1 Ch 287; Miller v. Jackson [1977] 3 All ER 338; Kennawey v. Tounsin [1980] 3 All ER 329 and Clerk and Lindsell on Torts (18th ed., 2000) rel.

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

----S. 91---Nuisance---Change in nature or complexion of residential locality by running therein a commercial establishment---Scope.

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

----S. 94(c), O.XXXIX, Rr.1 & 2---Interim injunctive relief, grant of---Scope---Court, though finding all three ingredients to be in plaintiffs' favour, could in appropriate circumstances or in larger public interest withhold such relief for same being equitable and discretionary---Principles.

Shelfer v. City of London Electric Lighting Company [1895] 1 Ch 287; Miller v. Jackson [1977] 3 All ER 338; Kennawey v. Tounsin [1980] 3 All ER 329 and Clerk and Lindsell on Torts (18th ed., 2000) rel.

Akhtar Hussain along with M. Masaud Ghani for Plaintiffs.

Hasan Akbar.

Agha Zafar for Defendants Nos.2, 3 and 6.

Shamim Akhtar for Defendant No.4.

M. Iqbal Memon for Defendant No.5.

Date of hearing: 25th May, 2011.

2011 C L C 1894

[Karachi]

Before Munib Akhtar and Muhammad Athar Saeed, JJ

PAKISTAN CRICKET BOARD through Manager, National Stadium, Karachi and others----Petitioners

Versus

DIRECTOR-GENERAL EXCISE AND TAXATION and others----Respondents

Constitutional Petitions Nos.1364 of 2008, 892 of 2004, 2499 of 2010, decided on 24th June, 2011.

(a) Taxation---

----Exemption from tax, claim for---Burden of proof---Onus would lie on taxpayer to establish his entitlement to such exemption.

(b) Interpretation of statutes---

----Fiscal statute---Exemption clause---Two reasonable interpretations of such clause possible---Effect---Interpretation favouring Revenue, even if going against taxpayer, would be adopted.

(c) Interpretation of statutes---

----Fiscal statute---Exemption clause, benefit of---Entitlement---Scope---Taxpayer, if coming within meaning and scope of such clause, would not be denied its benefit by unduly or unnaturally straining its language or by reading any word or intent or objective therein.

(d) Words and phrases---

----"Playground"---Meaning.

New Shorter Oxford English Dictionary 1993 ed.; Merriam-Webster Dictionary and Chambers Combined Dictionary Thesaurus (1995 ed. ref.

(e) Words and phrases---

----"Playing field"---Definition.

New Shorter Oxford English Dictionary 1993 ed. ref.

(f) Words and phrases---

----"Stadium"---Definition.

New Shorter Oxford English Dictionary 1993 ed. ref.

(g) Words and phrases---

----"Public playground"---Definition.

Merriam-Webster Dictionary; Chambers Combined Dictionary Thesaurus (1995 ed.) and Ziauddin Hospital Trust v Director-General/Commissioner, Excise and Taxation and another PLD 2001 Kar. 52 ref.

(h) West Pakistan Urban Immovable Property Tax Act., (V of 1958)---

----Ss. 3(2), 4(e), 91 & 92---Sports (Development and Control) Ordinance (XVI of 1962); Preamble---Constitution of Pakistan Art.199---Constitutional petition---Property owned by Federal Government leased out to Pakistan Cricket Board being used as cricket stadium---Demand of tax by Authority for such property---Board pleaded to be a non-profit organization devoting its income to promotion and development of cricket activities in the country; that such stadium being a public playground was exempt from tax under S.4(e) of West Pakistan Urban Immovable Property Tax Act, 1958---Validity---Lease of such property in favour of Board was for purposes of sports activities and was not in perpetuity as its ownership still vested in Government---Stadium, according to dictionary meaning, was not a playground, but was a place where spectators' events were held---Presence of public in form of crowd of spectators in a stadium could not be regarded as its "use" by them as required by S.4(e) of West Pakistan Urban Immovable Property Tax Act, 1958---Use of such stadium by the Board also as a coaching centre for youngsters and budding cricketers and its use not permitted to public would not bring the same within meaning of S.4(e) of the Act---"Play" or "recreation" being a necessary characteristic of a "public playground" was missing in the present case---Board was entitled to exemption from property tax for such property---High Court quashed impugned demand notice, in circumstances.

New Shorter Oxford English Dictionary 1993 ed.; Merriam-Webster Dictionary and Chambers Combined Dictionary Thesaurus (1995) ed. rel.

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

----Ss. 107 & 110---Lease for a fixed period, however long, would not be a lease in perpetuity.

(j) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----Ss. 4(a), 91 & 92---Constitution of Pakistan, Art.199---Constitutional petition---Sports Complex built by Bank---Leasing out of such Complex as "playground" to general public on a first come and first served basis without any reservation---Demand of property tax by Authority on such property for its use being for commercial purposes---Validity---Mere charging of a fee would not in itself be sufficient to derogate from public user of a property---Bank had made available different sports facilities on such Complex to public at large without discrimination---'Public' could mean any person using sports facilities for their benefit in such manner as they deemed fit---Bank was entitled to exemption from property Tax on such Complex under S.4(a) of West Pakistan Urban Immovable Property Tax, 1958---High Court quashed impugned demand notice in circumstances---Principles.

Pakistan v. Province of Punjab and others PLD 1975 SC 37 rel.

Mazhar Ali Jafferi for Petitioner (in C.P. No.1364 of 2008 and C.P. 2499 of 2010).

Abdur Rehman for Petitioner (in C.P. No.892 of 2004).

Mrs. Haleema Khan, Addl. A.-G. and Saifullah, Asstt. A.-G. for Respondents.

2011 C L C 1966

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

SAEED ABBAS----Appellant

Versus

AGAR INTERNATIONAL (PVT.) LTD. through Director----Respondent

High Court Appeal No.192 of 2010, decided on 3rd August, 2011.

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

----O. XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), Ss.4, 5, 6, 118, 123, 123-A, 124, 129 & 130---Suit for recovery of money on basis of dishonoured cheque or dishonoured crossed-cheque---Maintainability---Cheque being a negotiable instrument, thus, bank would be bound to place into account of payee amount indicated thereon when collected and not into any other account---When cheque was dishonoured, then its payee could sue its drawer and get decree against him for recovery of its amount---Cheque, if crossed "account payee", would cease to be negotiable and banker collecting its payment would be bound to put same in account of its payee---Provisions of O.XXXVII, C.P.C., would apply to all bills of exchange whether negotiable or not---Suit upon a cheque crossed "account payee" would be maintainable under O.XXXVII, C.P.C.---Principles.

According to provisions of sections, 4, 5, 6, 118 and 123 of Negotiable Instruments Act 1881, a cheque is a negotiable instrument, which may be negotiated, and the Bank has the duty to place into the account of payee the amount indicated on the cheque when collected and not into any other account. However, so far as crossed cheque is concerned, the same is to be dealt with under specific provisions like sections 123-A, 124, 129 and 130 of the Negotiable Instruments Act. When a cheque is dishonoured, the payee can sue for an action for the payment of amount of cheque from its drawer, meaning thereby that if a person gives a cheque for the amount due to be presented at a certain bank on a certain date, and if a cheque is dishonoured on presentation, a person can sue for consideration and get the decree for recovery of that amount in his favour. A cheque is a negotiable instrument resembling a bill of exchange, but entirely different, in the ordinary course, it is not intended for a circulation, but it is meant for the payment to the person on whose name the said cheque was made. Section 6 defines the cheque as a "bills of exchange" drawn on a specific bank and not expressed to be payable otherwise than on demand. The drawer must be a person, who enter into the contract and should be pointed out with certainty and his signatures on the cheque have to be obtained. Whenever a cheque is dishonoured, then in such cases execution has been admitted and it is presumed that the said cheque was executed for the consideration mentioned therein and the drawer could hardly wriggle out of the situation that the said cross cheque was meant for any other consideration other than mentioned on the said cheque. The onus in this regard squarely lies on the drawer. Even on reading of section 123-A of the Act, it is clear that when cheque is crossed account payee, it will cease to be negotiable and it will be the duty of the banker collecting payment of cheque to put the same in the account of the payee mentioned in said cheque. However, if the section 123-A of the Act is read with Order XXXVII, C.P.C., which applies to all bills of exchange whether negotiable or not, a suit upon a crossed cheque account payment only is maintainable. The provisions of Order XXXVII, C.P.C., are not only relevant in negotiable instruments only, but apply to crossed cheques also.

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

---O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss. 6, 118 & 123---Suit for recovery of money on basis of dishonoured crossed-cheque---Non-filing of leave application by defendant---Defendant's objection raised at time of final disposal of suit that cheque was issued in name of "Agar Corporation", thus, suit on its basis filed by "Agar International Limited" was not maintainable---Validity---Defendant's counsel did not deny that in past, defendant had been issuing cheques to plaintiff-company in name of "Agar Corporation Limited"---Defendant's counsel did not deny that in past, bills pertaining to "Agar International Limited" had been issued by defendant in name and style of "Agar Corporation"---Such admissions of defendant's counsel fully established that bills and cheques issued in past pertained to plaintiff-company, thus, defendant now could not take somersault by stating that cheques were issued by him in name of "Agar Corporation" and not in name of "Agar International Limited"---Bank statement of accounts showed that all previous bills and cheques issued by defendant were in name of "Agar Corporation" and encashed, except suit cheques dishonoured with specific remarks of bank "due to insufficient funds"---Defendant in his letter had requested plaintiff to hold suit cheques till specified month and had apologized for inconvenience---Magistrate in F.I.R. lodged against defendant under S.489-F, Cr.P.C., had convicted and sentenced him---Plaintiff-company in its audited report had shown suit amount to be outstanding against defendant---Such uncontroverted facts showed that defendant had, in consideration of business dealings, handed over suit cheques to plaintiff to be encashed as past practice and by dishonouring same, defendant had exposed himself to legal action against him---High Court decreed suit amount along with an interest of 10% per annum from date of suit till recovery of entire decretal amount.

Muhammad Tariq Khan v. Khawaja Muhammad Javed Ansari 2007 SCMR 818; Muhammad Ayub v. Barkat Ali Shah 2011 CLC 349; Messrs C.M. Textile Mills (Pvt.) Ltd. v. ICP 2004 CLD 587; Ponnuswami Chetiar v. P. Velai Muthu Chetiar AIR 1957 Mad. 355; Zujya Pascol Damel v. Manmohandas Lalubhai Partap AIR 1940 Bom. 164; Karachi Road Transport Corporation v. Fazal Brother Limited; another PLD 1971 Kar. 583; M. Muhammad Shafi and Co. v. A. Rehman Enterprises and others 2010 CLD 920 and Muhammad Sultan v. The State 2010 SCMR 806 ref.

Syed Hassan Ali for Appellant.

Kazi Abdul Hameed Siddiqui for Respondent.

Date of hearing: 30th May, 2011.

2011 C L C 2002

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

VAKIL AHMED SIDDIQUI----Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another----Respondents

Constitutional Petition No.D-255 of 2003, decided on 2nd June, 2011.

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

----Arts. 9 & 32---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art.199---Constitutional petition---Life Insurance Policy acquired by petitioner from Office of Pakistani Insurance Company at Dubai---Demand of Dirham 67,281.32 by company including 100% late fee with further medical examination of petitioner for revival of such policy---Order of Wafaqi Mohtasib directing company to waive mark-up, review late fee and obtain declaration of good health from petitioner instead of medical check-up---Company's representation against order of Mohtasib upheld by President of Pakistan without giving opportunity of hearing to petitioner---Validity---Exercise of powers by President under S.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 must be in a just and fair manner---Recommendations of Mohtasib could be interfered with only by way of passing a well reasoned and speaking order---Simply affirming or discarding findings of Mohtasib would not be termed as proper dispensation of justice vested in the President---President, in the present case, had discarded recommendations of Mohtasib without giving even a single reason and in a very hasty manner---President had not disposed of matter in a legal and judicious manner by fulfilling norms of law---High Court set aside impugned order and directed company to implement recommendations of Mohtasib within specified time.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 and State Life Insurance Corporation and another v. Jaffar Hussain and others PLD 2009 SC 194 rel.

Petitioner in person.

Ghulam Ali for Respondent No.1.

Date of hearing: 2nd June, 2011.

2011 C L C 25

[Lahore]

Before Sh. Najam-ul-Hasan, J

SHEHZAD KHAN KHAKWANI---Petitioner

Versus

AAMIR HAYAT HIRAJ and others---Respondents

Election Petition No. 22 of 2008 and C.M. No. 1 of 2010, decided on 6th September, 2010.

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

---Ss. 52, 62(1), 64 & 76---Civil Procedure Code (V of 1908), S. 151 & O.IX, Rr.8, 9---Application for restoration of election petition dismissed for non-prosecution-Maintainability-Election Commission in exercise of its powers under S. 62(1) of Representation of the People Act, 1976 vide Notification No. F1(7)85-Cord., dated 16-3-1985 had provided a procedure to be adopted by Election Tribunal for trial of election petition---Provision of S. 76 of the Act had expressly ousted application of O.IX of C.P.C. to proceedings before Tribunal---Tribunal being creation of special statute would discover its powers primarily thereunder---Power of review, unless conferred by statute, could not be exercised---Tribunal could dismiss election petition for non prosecution, but had no jurisdiction to review or recall its own order---Tribunal after deciding a matter in one way or the other would become functus officio and could not reopen the same---Election Tribunal dismissed such application for being not maintainable---Principles.

Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610 rel.

(b) Review---

----Scope---Power of review, unless conferred by statute, could not be exercised.

(c) Interpretation of Statutes---

----Special law dealing with specific matter and providing special procedure therefor---Effect---Such special procedure in such matter would be followed and not that provided under general law---Principles.

Nemo for Petitioners.

Arshad Qayyum, Assistant Advocate-General for the Respondents.

2011CLC 79

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD ASLAM and 2 others---Petitioners

Versus

Mst. RASHIDAN BIBI and others---Respondents

Civil Revision No. 2194 of 2010, decided on 10th June, 2010.

Specific Relief Act (I of 1877)---

----S.9---Suit for recovery of possession---Concurrent findings of fact by the Courts below---Trial Court decreed the suit in favour of plaintiffs on the ground that defendants had forcibly dispossessed them---Judgment and decree passed by Trial Court was maintained by Appellate' Court---Validity---Concurrent findings of fact arrived at by Courts below against defendants---Both the Courts below had passed judgments and decrees after weighing evidence led by parties and had concurrently found that memorandum of exchange had been acted upon and defendants were in possession of the property obtained through exchange---Defendants were unable to explain or establish otherwise, and it did not lie in the mouth of defendants to contend that memorandum of exchange was not acted upon---High Court declined to interfere in concurrent judgments and decrees so passed---Revision was dismissed in circumstances.

Ch. Muhammad Masaud Akhtar Khan for Petitioners.

2011 C L C 105

[Lahore]

Before Ch. Shahid Saeed, J

REHMAT ALI---Petitioner

Versus

THE STATE---Respondent

Writ Petition No. 1487 of 2000, decided on 19th October, 2010.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, R.19---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of Lambardar on basis of principle of "primogeniture'---Cancellation of such appointment---Petitioner who was eldest son of deceased Lambardar, was appointed as Lambardar by District Collector on the basis of principle of `primogeniture' but without speaking order---Commissioner on appeal cancelled appointment of petitioner---Revision petition filed by the petitioner, was also dismissed by the Member, Board of Revenue---Validity.---Order appointing petitioner passed by District Collector was not a speaking order and no solid reason was given on the basis of which petitioner was appointed as Lambardar---Order cancelling appointment of petitioner was passed by competent authority---In absence of any illegality or irregularity in concurrent judgment passed by competent authority, same could not be interfered with in constitutional petition.

PLD 1999 SC 484 and 1994 MLD 1480 rel.

Mumtaz Hussain Bazmi for Petitioner.

Ch. Khalid Nawaz, Additional Advocate-General for the State.

2011 C L C 116

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

SAFDAR JAMIL and others---Petitioners

Versus

VICE-CHANCELLOR and others---Respondents

I.C.As. Nos. 726 of 2010, 739 of 2009, W.Ps. Nos. 19749, 23882, 8274, 8283, 8305, 8376, 5737, 5592, 4702, 4862, 23928 of 2009 and 18, 11519, 16790, 13492, 21271 of 2010, decided on 25th October, 2010.

(a) Constitution of Pakistan---

----Arts. 25---Law Reforms Ordinance (XII of 1972), S.3---Educational Institution---Admission in medical college---Discrimination---Open merit' andself-finance basis'---Distinction---Appellants got admissions in government medical colleges on the basis of self-finance schemes---Plea raised by appellants was that if the seats allocated for self-finance schemes were included in open merit, then they could have got the admission, therefore, they were discriminated by the authorities---Validity---Open merits seats and seats on self-finance basis were two different categories, as was evident from prospectus for the relevant sessions---Prospectus was provided to intending students in advance and all students, who applied for admission on self finance scheme basis fully knew the rules---Appellants were not forced to take admission on self finance scheme under any duress and coercion---Prospectus also provided that students would be bound to abide by the rules and regulations as laid down in the prospectus, wherein it was clearly mentioned the fee for a student admitted on self finance seat as Rs.250, 000 per annum, in addition to normal fee, which was bound to pay every year, till the completion of his MBBS/BDS course---Self­-finance scheme was not violative of fundamental rights enshrined in the Constitution---Equality of citizens, provided in Art. 25 of the Constitution meant equal treatment amongst persons, who were equally placed and reasonable classification in terms of equal treatment was legally permissible---Appellants had obtained less marks as compared to the students who were admitted against the seats, reserved for open merit, and as such they were not similarly situated or placed and differential treatment was justified---Single Judge had rightly held that abolition of self finance scheme was prospective in nature and appellants could not claim its application with retrospective effect---Division Bench of High Court declined to interfere in the findings made by Single Judge---Intra Court Appeal was dismissed in circumstances.

Messrs Army Welfar Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another 2001 CLC 347; Abdul Baqi and others v. Muhammad Akram and other PLD 2003 SC 163; Anwar-ul-Haq Ahmad v. Secretary Economics Affairs Division, Islamabad and others PLD 2004 Lah. 771; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad Ramzan and 3 others v. Government of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Pakistan Secretariat Islamabad and 3 others 2004 YLR 1856; Shehzad Riaz v. Federation of Pakistan through Secretary Cabinet Division and 3 others 2006 YLR 229; Government of the Punjab through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs. and others 2010 SCMR 431; Tariq Aziz-ud-Din and others in re Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009 2010 SCMR 1301; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; 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; Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab, Lahore and 3 others 2001 CLC 9; Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773 and Anwar-ul-Haq Ahmad v. Secretary Economics Affairs Division, Islamabad and others PLD 2007 Lah. 771 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitution petition---Maintainability---Policy matter---Principle---Courts do not normally interfere or strike down a policy made by government unless it is proved mala fide or made in colourable exercise of authority.

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; Gul Khan v. Government of Baluchistan through Secretary Education and 4 others PLD 1989 Quetta 8; Anwar-ul-Haq Ahmad v. Secretary Economics Affairs Division, Islamabad and others PLD 2004 Lah. 771 and Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116 rel.

(c) Notification---

----Notification cannot take effect retrospectively.

Shafqat Mahmood Chohan, Abdul Sadiq Chaudhry, Mian Khalid Rasheed, Malik Muhammad Ijaz Khokhar and Dr. Ehsan-ul-Haq Khan for Petitioners.

Khawaja Haris Ahmad, Advocate-General Punjab, Muhammad Farid Chaudhry, Mian Shahid Nazir, Mumtaz Ahmad, Mian Bilal Ahmad, Najma Parveen and Muhammad Hussain Sandhu for Respondents.

Dates of hearing: 29th September and 7th October, 2010.

2011CLC130

[Lahore]

Before Mamoon Rashid Sheikh, J

MUNAWAR MEHMOOD and another---Petitioners

Versus

NADEEM SIDDIQUI and others---Respondents

Civil Revision No. 1363 of 2010, decided on 13th October, 2010.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Amendment of pleadings---New plea---Belated application---Suit was filed on 26-10-2007 and application for amendment of pleadings was filed on 24-3-2010---Both the courts below dismissed the application and appeal filed by plaintiffs---Validity---Plaintiffs failed to give any explanation for not taking up the pleas sought to be introduced through proposed amendments at the initial stage of trial---Application filed by plaintiffs was just a device to lead evidence through back door---Plaintiffs were not permitted to achieve indirectly which could not be achieved directly---Both the courts below had passed orders in accordance with law and plaintiffs failed to point out any illegality or material irregularity or that the courts had failed to exercise their jurisdiction vested in them--- High Court refused to allow amendment in pleadings--- Petition was dismissed in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mst. Rahim Noor v. Mst. Salim Bibi and 2 others PLD 1992 SC 30; Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824; SEMCO Salvage Pte Limited v. M.V. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 and Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191 distinguished.

Ijaz Mahmood and others v. Manzoor Hussain and others 1988 SCMR 34 rel.

Dr. Hasan Mahfuz Jalisi v. Khawaja Moinuddin and 2 others PLD 2006 Kar. 98; Atlantic Steamer's Supply Company v. M.V. Titisee and others PLD 1993 SC 88; Muhammad Munir v. Shahida Saleem 2009 YLR 483; Abdul Hameed Dogar v. Federation of Pakistan and others 2010 SCMR 312 and Nazir Ahmad and 8 others v. Commissioner, Lahore Division Lahore and 3 others 2000 MLD 322 ref.

Ch. Muhammad Ashraf for Petitioners.

Mahmood Ahmad Bhatti for Respondents.

2011 C L C 146

[Lahore]

Before Umar Ata Bandial, J

Mst. SAADIA YAQOOB---Petitioner

Versus

M. KHALID KARIM and others---Respondents

Writ Petition No. 3249 of 2008, heard on 29th May, 2009.

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

----Ss.9 & 25---West Pakistan Family Courts Act (XXXV of 1964), S.7(ii), second proviso---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors---Territorial jurisdiction---Plea raised by mother of minors was that under the provisions of West Pakistan Family Courts Act, 1964, she could file application for custody of minors at the place of her right conferred on a wife by second proviso to S. 7(ii) of West Pakistan Family Courts Act, 1964, meant that the place of her residence would create jurisdiction in competent court for the types of claims mentioned therein that a wife might file---If procedural technicality was allowed to rule the choice of forum in such a matter then benefit conferred upon a wife or a mother by second proviso to S. 7(ii) of West Pakistan Family Courts Act, 1964, would be easily lost---Family Court at the place of residence of mother of minors had jurisdiction to entertain her application for custody of her minor children who were residing in some other city---Petition was allowed accordingly.

Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000; Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 and Muhammad Ismail and Sons v. Trans-Oceanic Steamship Co. Ltd. PLD 1966 Dacca 296 rel.

Ch. Nazir Ahmad Kamboh for Petitioner.

Rana Muhammad Anwar Khan for Respondent No. 1.

Date of hearing: 29th May, 2009.

2011 C L C 161

[Lahore]

Before Sh. Ahmad Farooq, J

ZAFAR ALI---Petitioner

Versus

WAFAQI MOHTASIB (OMBUDSMAN) and 4 others---Respondents

Writ Petition No. 23314 of 2010, decided on 5th November, 2010.

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

----Arts. 9 & 32---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner had prayed for setting aside order whereby the Wafaqi Mohtasib (Ombudsman) had dismissed his complaint--Petitioner had filed constitutional petition without availing the remedy of representation before the President of Pakistan, thus had not availed the alternative efficacious remedy available to him under the law---Even otherwise, correctness of amount of electricity/detection bill was a factual controversy, which could only be resolved after recording of evidence; and such exercise could not be undertaken by High Court in its constitutional jurisdiction---Consumer who wished to challenge a detection bill, could seek his remedy under general civil law by initiating appropriate proceedings before the court of plenary jurisdiction---Constitutional petition was dismissed.

Rana Muhammad Aslam Nadeem for Petitioner.

Jawad Hassan, Additional Advocate-General (on Court's call).

2011 C L C 178

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHARIF SINDHU---Petitioner

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION through Secretary and 4 others---Respondents

Petition No. 36-C of 2009, decided on 29th September, 2010.

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

----S. 7----Constitution of Pakistan, Art. 199-Constitutional petition---Order of previous Chairman, Punjab Cooperative Board for Liquidation (PCBL) passed on basis of judgment given by Judicial Officer of the Board settling controversy between the parties---Review of such order by incumbent Chairman---Validity---Such order having not been challenged in higher forum by any party had attained finality---No court or Tribunal had inherent powers to review its decree or order, unless expressly conferred by statute---Chairman had no jurisdiction to exercise power of review under Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---High Court set aside impugned order in circumstances.

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Abdul Hakeem and another v. Khalid Wazeer 2003 SCMR 1501 rel.

(b) Review---

----Right of---Scope---Such right is a substantive right and not a matter of procedure---No court or Tribunal possesses inherent powers to review its decree or order, unless expressly conferred by statute.

Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.Waqar Ahmad Sheikh for Petitioner.

Kh. Muhammad Jawad Asmi for Respondents.

Date of hearing: 21st May, 2010.

2011 CLC 195

[Lahore]

Before Iqbal Hameed-ur-Rehman and Mamoon Rashid Sheikh, JJ

ASAD AZIZ---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES and others-Respondents

Review Petition No. 132 of 2009, decided on 25th March, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Educational Institution---Review of High Court judgment---Petitioner sought review of judgment passed by High Court in Constitutional petition on the ground that there was an error patent on record as he had not claimed relief of award of average marks on questions in examination papers which were out of syllabus-Validity-Held, if there was an error apparent on the face of record, the petitioner was not likely to succeed on merits inasmuch as from the record it was apparent that six candidates took the examination in question and out of the said six candidates four candidates had passed this paper/examination where the remaining two candidates, including the petitioner, did not pass the said examination---Other failing candidate had not challenged his result; it was only the petitioner who came forward with the grievance that the paper was out of syllabus---Rules and regulations framed by the University Authorities for the purpose of conducting/regularizing its examinations etc. were required to be interpreted by the University Authorities itself and Courts were to avoid to interpret the same unless a case of grave injustice was made out---Petitioner had chosen a profession in which he would be practising as doctor although not a doctor practising the profession of medicine yet a doctor in the field of Physiotherapy---Physiotherapist was required to have detailed knowledge of subjects prescribed in syllabus---Candidate appearing for professional examinations could not pick and choose random topics as in practical field he was required to have a thorough knowledge of his subject---Examinations of B.Sc. Physiotherapy was not that of a primary or secondary level where a candidate might have selective preparation and could pass the examination---High Court declined to review its judgment passed earlier---Review petition was dismissed in circumstances.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

Mushtaq Ahmad Mohal for Applicant.

Rasal Hassan Syed with Dr. Hammad Hussain, Assistant Registrar and Zahid Mahmood, Junior Planning Officer, U.H.S., Lahore for Respondents.

2011 C L C 205

[Lahore]

Before Sh. Azmat Saeed and Muhammad Yawar Ali, JJ

Syed ZAIDI HASSAN SHAH---Appellant

Versus

FAIZ-UR-REHMAN SHAH---Respondent

R.F.As. Nos. 84 and 85 of 2010, heard on 3rd November, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Suit for recovery of amount on the basis of pro note---Plaintiff filed two separate suits for recovery of amount on the basis of pro note against two different defendants---Issues were framed and evidence was led by the parties---Trial Court, while passing judgment and decree reproduced the evidence recorded in one case verbatim in the other case---Effect---Evidence of one case could not be shifted verbatim to another case for rendering of a decision; it could not be said with certainty as to in which case the evidence was recorded and subsequently shifted verbatim to the other---Such a procedure would be totally alien to Civil Procedure Code, 1908 and could cause grave injustice and would militate against all known norms of natural justice---Trial Court while seized of two different suits, had not given any special reason as to why evidence was recorded only in one case and shifted to another also--Impugned order was set aside and case was remanded for giving a fresh decision after affording an opportunity to both the parties for producing evidence.

Nazir Ahmad v. Mst. Ghazala Bashir 2001 CLC 468 and Malik Aman v. Haji Muhammad Tufail PLD 1976 Lah. 1446 ref.

Sheikh Naveed Shahryar for Appellant.

Malik Muhammad Rafique for Respondent.

Date of hearing: 3rd November, 2010.

2011 C L C 211

[Lahore]

Before Rauf Ahmed Sheikh, J

DAYYAM ATTA TAREEN---Petitioner

Versus

MUST and others---Respondents

Write Petition No. 1695 of 2010, heard on 19th October, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioner challenged his withdrawal from Bachelor in Engineering at the university on the ground that at Grade Point Average between 1.00 and 1.50, the student might be relegated or withdrawn but relegation being lessor punishment should have been awarded and withdrawal was uncalled for---University authorities contended that petitioner had failed to meet the highest standard of the university and that regulations were framed by the competent authority and had to be followed in letter and spirit---Validity---Student with Grade Point Average of 1.00 in the first semester could be awarded one of two penalties i.e. relegation or withdrawal---Whenever two interpretations of the statute/rules or regulation was possible, the interpretation favouring the subject should be applied instead of one favouring the authority---Withdrawal was too harsh as it not only adversely affected the student but his family would also be put to endless agony---Members of the University Committee should have exercised their discretion with benevolence---Youth should not be put to the state of disappointment/dejection and an opportunity should be provided to the young students to become useful member of the society--Impugned order could not be left unnoticed only in the name of administration policy, which provided lessor punishment at the same time---High Court allowed constitutional petition with direction to the university authorities to allow petitioner to continue his studies.

2005 YLR 737; 2004 YLR 801; 1992 SCMR 1093; PLD 1984 SC 170; 2006 MLD 25; 2006 MLD 30; 1999 CLC 1557 and PLD 1978 SC 61 ref.

2008 CLC 766; PLD 2007 SC 271 and PLD 1997 SC 823 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Educational institution---Contention that it was the prerogative of the faculty of the university to decide as to which regulation of the university was applicable---Scope---Held, it was not a matter of discretion simpliciter rather the concerned authorities should keep in view that future of a student with brilliant academic record was at stake.?

(c) National University of Sciences and Technology Act (XX of 1997)---

----S. 22(2)---National University of Sciences and Technology (Academic Programme) Regulations, 2005---S.R.O. 1 of 2005 issued in June, 2005---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Contention that rules were framed by the University and forward to the Government and the same had not been notified and as such the constitutional jurisdiction of High Court could not be invoked in the matter---Under S.22(2) of the National University of Science and Technology Act, 1997, the Board of Governors was empowered to approve the recommendations of the Committee---S.R.O. 1 of 2005 issued in June, 2005 showed that the National University of Sciences and Technology (Academic Programme) Regulations, 2005 were made by the Board of Governors and were duly notified---Such regulations were, therefore, binding and any deviation therefrom might be agitated by the aggrieved party in the High Court through constitutional petition under Art.199 of the Constitution.?

(d) Administration of justice---

----Courts and all those responsible for administration of justice should strive to achieve ends of justice and one should not be non-suited in the name of technicalities.?

2008 CLC 766; PLD 2007 SC 271 and PLD 1997 SC 823 rel.

Raja Jabran Tariq for Petitioner.

Abdur Rahseed Awan for Respondents.

Date of hearing: 19th October, 2010.

2011 C L C 220

[Lahore]

Before Sagheer Ahmed Qadri, J

ATTA MUHAMMAD---Petitioner

Versus

GHULAM DIN---Respondent

Civil Revision No. 728-D of 2005, decided on 19th July, 2010.

Easements Act (V of 1882)---

----S.13---Specific Relief Act (I of 1877), S.54---Easement of passage---Proof---Joint possession---Alternate passage---Suit for grant of injunction---Maintainability---Parties were joint owners in land in question and grievance of plaintiff was that defendant by raising a wall and room had obstructed his right of passage which he had been using since long---Validity---Right of way claimed through easement was a right of easement by necessity---Such necessity must be absolute one and if any alternate mode or passage was available then one could not claim such right---Plaintiff as well as his witnesses admitted that plaintiff was actually enjoying access to his property through another passage but he was claiming his such right through land in possession of defendant as an alternate passage, thus exercise of his right of easement was not available to plaintiff---Finding of Lower Appellate Court on the issue regarding issuance of mandatory injunction in his favour was lawful and justified---Property in question was in joint possession of both the parties, therefore, suit for grant of injunction simplicitor was not maintainable until and unless partition was sought---High Court in exercise of revisional jurisdiction upheld the findings of Lower Appellate Court---Revision was dismissed in circumstances.

Malik Paiker Maqsood and 106 others v. Sheikh Muhammad Amin and 637 others 1991 MLD 106; Abdul Karim v. Ali Zaman and another 1993 MLD 1481; Muhammad Ismail and others v. Malik Muhammad Shafi and others 1992 CLC 2060; Fazal Din v. Mst. Umar Bibi and another 1994 MLD 550; Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estates Ltd. and others 1990 PSC 1199 and Messrs Pakistan Warranted Warehouse Ltd. v. Messrs Sindh Industrial Trading Estates Ltd. and others 1991 SCMR 119 ref.

Atif Farzouq Raja for Petitioner.

Malik Shehzad Ahmad Khan for Respondent.

2011 CLC 230

[Lahore]

Before Rauf Ahmed Sheikh and Mamoon Rashid Sheikh, JJ

MEMOONA NOUREEN---Appellant

Versus

VICE-CHANCELLOR, FATIMA JINNAH WOMEN UNIVERSITY, RAWALPINDI---Respondent

I.C.A. No. 102 of 2010, decided on 7th December, 2010.

(a) Fatima Jinnah Women University Admission and Registration Regulations---

----Regln. 25---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Educational institution---Admission---Transfer from one programme to other---Appellant got admission in Fatima Jinnah Women University on "Self Support Programme" and her grievance was that university authorities had declined to transfer her to "Regular Programme"---Validity---It was only when appellant failed to gain admission on merit, she at her own accord applied for admission under "Self Support Programme", therefore, she could not as of right claim admission in "Regular Programme "---Appellant failed to point out any of her fundamental rights having been violated by the act of university authorities---Appellant had Cumulative Grade Point Average of 2.31 and she applied for transfer in second semester, therefore, she was not eligible under Regln. 25 of Fatima Jinnah Women University Admission and Registration Regulations, to obtain transfer---No case of grave injustice was made out by appellant---High Court declined to interfere in judgment passed by Single Judge of High Court---Intra Court appeal was dismissed accordingly.

Hamza Khan v. Province of Balochistan 1995 SCMR 711 distinguished.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Academic matters---Interference of court---Principle---In academic matters, universities are the best judges to interpret Rules and Regulations framed by university authorities---Courts are required to avoid interpreting the same unless a case of grave injustice is made out, otherwise it would become difficult for the universities to run their affairs---Constitutional petition was dismissed.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

Muhammad Anwar Dar and Shaukat Aziz Siddiqui for Appellant.

Raja Muhammad Bashir and Mirza Idrees Baig for the Fatima Jinnah Women University along with Shamim Ahmed Khan, Deputy Registrar, FJWU for Respondent.

2011 CLC 241

[Lahore]

Before Ch. Shahid Saeed, J

RAHIM BAKHSH---Petitioner

Versus

BASHIR AHMAD and others---Respondents

Civil Revision No. 53-D of 1995, heard on 10th November, 2010.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---No date, time and place had been mentioned in the plaint as to when it became into knowledge of plaintiff or informer---Plaintiff had totally failed to perform all the Talbs as required under S.13 of Punjab Pre-emption Act, 1991---Effect---Date, time and place of information about the sale and performance of Talb-e-Muwathibat was necessary to be mentioned in the plaint for possession through pre-emption---Finding of both courts below decreeing suit filed by the plaintiff, was illegal---Courts below had not exercised their jurisdiction in accordance with law and did not appraise the evidence on record when the plaintiff totally failed to fulfil the requirements of S.13 of Punjab Pre-emption Act, 1991---Impugned judgments of courts below were set aside in circumstances.

PLD 2007 SC 302 rel.

2000 SCMR 314 and 2000 SCMR 329 ref.

Mian Ahmad Nadeem Arshad for Petitioner.

Mian Muhammad Bashir for Respondents.

Date of hearing: 10th November, 2010.

2011 CLC 260

[Lahore]

Before Ch. Shahid Saeed, J

NOOR MUHAMMAD and others---Petitioners

Versus

FALAK SHER---Respondent

Civil Revision No. 110 of 2003, decided on 16th June, 2010.

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

----S.13---Right of pre-emption, exercise of---Limitation---Superior right of pre-emption---Scope---Partition of joint Khata---Pre-emptor sought recovery of possession through pre-emption on the basis of his being co-sharer in suit land---Plea raised by vendee was that suit was time barred and pre-emptor lost his superior right of pre-emption before passing of decree---Validity---Three conditions which pre-emptor had to fulfil regarding his status i.e. the date of sale, date of institution of suit and date of decree by Trial Court---Where at any three stages, pre-emptor was denuded of his superior qualification asserted by him, he must lose---Pre-emptor who was once a co-sharer in land in question but had ceased to be so, at any of the three stages by partition or otherwise of joint property could not be deemed to be a co-sharer for the purpose of pre-emption and, therefore, could not claim pre-emption on such score---Pre-emptor had lost his status as co-owner in Khata at the time of decree, therefore, he was not entitled for decree---Vendee was given possession of land in dispute on 14-9-1989, thus suit was barred by time as maximum period from the date. of possession was four months---Vendor had herself stated that possession was already with vendees and pre-emptor had lost his status as co-owner in the Khata as the Wanda took place prior to the decree passed by Trial Court---Judgments and decrees passed by two courts below were set aside and suit filed by pre-emptor was dismissed---Revision was allowed in circumstances.

1994 CLC 52; 2010 CLC 740; 2001 MLD 1716; 1996 MLD 1706; PLD 1992 SC 811; PLD 1992 SC 1778; 1991 SCMR 1232; PLD 1991 SC 1981 and PLD 2007 SC 302 ref.

Ch. Naseer Ahmed for Petitioners.

Ijaz Ahmed Ansari and Amir Aqeel Ansari for Respondent.

Date of hearing: 3rd June, 2010.

2011 C L C 270

[Lahore]

Before Ch. Shahid Saeed, J

Syed HAMID RAZA and others---Appellants

Versus

Malik KHUDA BAKHSH and others---Respondents

R.S.A. No. 16 of 1993, decided on 8th July, 2010.

(a) Pleadings---

---Variation in pleadings---Effect---Variation in pleadings and proof is not permissible in law---Party cannot lead evidence which is not supported by pleadings---No evidence can be led or looked into in support of a plea which has not been taken in pleadings and parties would be bound by their pleadings.

(b) Punjab Land Revenue Act (XVII of 1887)---

----S. 34---Specific Relief Act (I of 1877), S.42---Mutation, attestation of---Prerequisites---Plaintiffs assailed mutation in question on the plea of fraud---Trial Court decreed the suit in favour of plaintiffs but Lower Appellate Court dismissed the same---Validity---At the time of attestation of mutation, parties to transaction were required to be present, so as to admit receipt of sale consideration and delivery of possession but Revenue Officer giving reference to a previous mutation, buried the question of payment of sale consideration---Alleged vendor was also not present before Revenue Officer at the time of attestation of mutation---Vendor had no knowledge of alienation of suit land and Trial Court had rightly found that mutation was sanctioned on the basis of presumption, surmises and conjectures---Mutation in question was sanctioned in collusion with Revenue staff, therefore, the same was illegal, void, result of fraud and collusion---Trial Court had rightly set aside mutation in question---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by Lower Appellate Court and upheld that of Trial Court---Second appeal was allowed in circumstances.

2007 SCMR 729; 2007 CLC 257; 1991 MLD 2167 and 2000 MLD 2015 ref.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Mutation, assailing of---Contention of defendant was that suit filed by plaintiffs was barred by limitation---Validity---Plaintiffs filed suit for declaration and limitation period for the same was given under Art. 120 of Limitation Act, 1908, and limitation period was six years---Mutation in question was sanctioned on 26-4-1962, thereafter plaintiffs approached Revenue authorities to declare the same as illegal and void---Matter was decided by Revenue authorities in year, 1968, with a direction to approach civil court and plaintiffs brought the suit in year, 1974, within six years of passing of such order and starting point for limitation was year, 1969---Suit filed by plaintiffs was within time in circumstances.

Syed Muhammad Ali Gillani for Appellants.

Ch. Naseer Ahmed for Respondents.

Date of hearing: 8th July, 2010.

2011 CLC304

[Lahore]

Before Ijaz Ahmed, J

MUHAMMAD ASHRAF---Petitioner

Versus

DILBAR KHAN---Respondent

Civil Revision No. 113 of 2002, heard on 2nd November, 2010.

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

----S. 13---Pre-emption suit---Plaintiff filed suit for possession on the ground of superior right of pre-emption being "Shafi Sharik" and "Shafi Jar"---Defendant contested suit on the ground that the plaintiff did not make Talbs in accordance with S.13 of the Punjab Pre-emption Act, 1991 and that the plaint did not show the date, time and place of making "Talb-e-Muwathibat"---Trial Court decreed suit of the plaintiff and Appellate Court maintained findings of the Trial Court---Validity---Plaint was silent about the place, date and time of making of "Talb-e-Muwathibat"; however the same had mentioned that the plaintiff would exercise his right of pre-emption as soon as he had the knowledge of the transaction---Statements made by plaintiff as a witness as well as the other witnesses were also completely silent about the three factors the place, date and time which were important for making "Talb-e-Muwathibat"---High Court allowed revision petition and dismissed suit of the plaintiff by setting aside the judgments and decrees of both courts below.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Haqnawaz v. Muhammad Kabir 2009 SCMR 630; Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673; Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Altaf Hussain v. Abdul Majeed 2000 SCMR 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

2000 SCMR 301; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Mian Pir Muhammad's case PLD 2008 SC 302; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nagendra Nath Dey and others v. Suresh Chandra Dey and others 59 IA 283; Mymensingh Cooperative Town Bank Ltd. v. Rajendra Chandra Roay PLD 1961 Dacca 312 and Civil Revision No. 394-D of 2002 rel.

Altaf Hussain v. Abdul Majeed 2000 SCMR 314 distinguished.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

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

---S. 13---Pre-emption suit---Reference of place, date and time of making Talb-e-Muwathibat in the plaint was a sine qua non in a suit for pre-emption---Such were the material facts on which the plaintiff relied and could not be termed as evidence.

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

----O. VI, R. 2---Pleadings---Party could not lead evidence beyond its pleadings.

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

----S. 13---Pre-emption suit---Talb-e-Ishhad, making of---Limitation---Computation---Principle---Talb-e-Muwathibat had to be made in the same meeting that is, after the receipt of information about the sale and before the dispersal of the meeting, therefore, the mention of three factors the place, date and time became essential in order to compute the period of limitation fixed for making of "Talb-e-Ishhad" that had to be made within the period of 15-days after "Talb-e-Muwathibat".

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

----S. 96---Appeal---Appeal is the continuation of the original proceedings before the higher forum for testing the soundness of the decision of the lower court.

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

----S. 115---Revision---Scope---Remedy of revision was discretionary and the revisional court had to proceed under certain limitations.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Nagendra Nath Dey and others v. Suresh Chandra Dey and others 59 IA 283 rel.

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

----S. 96---Appeal---Any application by a party to an Appellate Court, asking it to set aside or revise the decision of a subordinate court, was an `appeal' within the ordinary acceptance of the term.

Mymensingh Cooperative Town Bank Ltd. v. Rajendra Chandra Roay PLD 1961 Dacca 312 and Civil Revision No. 394-D of 2002 rel.

Muhammad Ilyas Shaikh for Petitioner.

Ch. Afrasiab Khan for Respondent.

Date of hearing: 2nd November, 2010.

2011 CLC 319

[Lahore]

Before Mansoor Akbar Kokab, J

MAHBOOB AHMAD (deceased) through L.Rs.---Petitioner

Versus

Mst. FEROZA BEGUM and others---Respondents

Civil Revision No. 620 of 2006, heard on 2nd November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.II, R.2, O. VII, R.11 & O.XXIII, R.1(3)---Suit for declaration---Plaintiff filed suit for perpetual injunction, which was withdrawn unconditionally after filing of written statement by the defendants---Plaintiff subsequently filed another suit for declaration with consequential relief for the grant of injunction with regard to the same disputed property on the ground that the plaintiff was in occupation of the disputed property because of private partition between the co-sharers and that contention of the defendants that they were co-sharers in the disputed property was self-­concocted---Defendants contested suit---Trial Court rejected plaint of the suit---Appellate Court on appeal dismissed the same on the ground that it was incumbent upon the plaintiff that instead of withdrawal of his suit for permanent injunction he should file an application for amendment of the plaint converting his suit for permanent injunction into a suit for declaration along with consequential relief of injunction rather than withdrawal of that without any request to re file the same---Validity---Cause of action for filing a suit for declaration accrued the day the written statement was filed, much later than the date of cause of action having been accrued for the suit of injunction only, which was later on withdrawn---For filing of a suit for declaration along with injunction or that as a consequential relief, the cause of action meant for previously filed suit, which was later on withdrawn, was not the one for the purposes of the second suit filed by the plaintiff---Both suits being in nature of independent of each other as having different dates of the causes of action were to be dealt with accordingly as independent of each other for all respects---Date of filing the subsequent suit, within less than two years of withdrawal of the first suit, made the filing of the suit for declaration within limitation---Nature of the two suits being separately distinguishable allowed the aggrieved party to file suit as and when he desired provided the date of cause of action for the same had fallen within the limitation period counted from the date of filing the said suit---High Court reversed finding of the Appellate Court by setting aside the earlier order of the Trial Court---Suit of the plaintiff was to be deemed pending before Trial Court to be adjudicated upon merits.

Mst. Shaheen Ishfaque and others v. Additional District Judge and others 2004 MLD 1553 ref.

Ch. Muhammad Anwar Bhinder for Petitioner.

Kh. Saeed-uz-Zafar for Respondents.

Date of hearing: 2nd November, 2010.

2011 C L C 343

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD INAYAT---Petitioner

Versus

Mst. SARDARAN BIBI---Respondent

Civil Revision No. 1170 of 2010, decided on 2nd August, 2010.

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

----S. 42---Civil Procedure (V of 1908), O. VII, R.11---Plaintiff filed suit for declaration on the ground that alleged mutation of disputed property attested in the year 1987 was an outcome of fraud---Defendant contested suit and filed written statement and filed an application under O. VII, R.11, C.P.C. for rejection of plaint on the plea that suit was time barred---Trial Court accepted application of the defendant and rejected the plaint---Plaintiff filed appeal which was allowed by Appellate Court and the case was remanded to Trial Court to decide after framing of issues and recording of evidence---Defendant contended that non-mentioning of particulars of fraud in the plaint was fatal-Validity-Contents of the plaint showed that particulars of fraud had been given by the plaintiff---Plaintiff had specifically asserted that two weeks before filing the suit, the defendant had refused to transfer her property in her name---Fact that suit was barred by limitation was not substantiated by pleadings of the parties---Petition was dismissed by High Court.

Chiragh Din v. Bakhat Bhari 2007 YLR 2941; Manzoor Ahmed v. Mst. Hanifan Bibi 1985 MLD 1255; Muhammad Ilyas v. Muhammad Bashir PLD 2006 Lah. 365; Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through legal Heirs PLD 2006 Lah. 371 and Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230 ref.

2007 YLR 2941; 1985 MLD 1255; PLD 2006 Lah. 371 and PLD 2006 Lah. 365 distinguished.

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

----S. 42---Civil Procedure Code (V of 1908), O. VI, Rr.4, 5 & O. VII, R.11---Suit for declaration---Plea that particulars of fraud were not mentioned in the plaint---Scope---Order VI, R.4, C.P.C. provided that the plaintiff was bound to give the particulars of fraud in his plaint, but the term particulars refer to the detail vary on case to case basis and parties to the suit could not be ordered to reveal his evidence---Order VI, R.5, C.P.C. was enacted only for clarification of any ambiguity in the pleadings of the parties---If the Trial Court was of the opinion that particulars of fraud were not given in the plaint or some material facts were not clear and were ambiguous, court should ask parties for a better statement under O. VI, R.5, C.P.C. instead of rejecting the plaint.

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

----O. VII, R.11---Rejection of plaint---Scope---While deciding application under O. VII, R.11, C.P.C. the court had to see only the contents of the plaint and even not the written statement and other material filed by defendant.

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

----Preamble---Limitation was a matter of statute and provisions of Limitation Act, 1908 were mandatory but the question of limitation had to be decided according to the circumstances of each and every case.

Baleegh-uz-Zaman for Petitioner.

Muhammad Arif Raja for Respondent.

2011 CLC 377

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. HIRA REHMAN---Petitioner

Versus

CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, LAHORE and 2 others---Respondents

Write Petition No. 14640 of 2010, decided on 6th October, 2010.

(a) Precedent---

----Latest view---Scope---View expressed in case-law latest in time has to be preferred over the views earlier in time.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Expelling from institution---Autonomous body---Parental jurisdiction, exercise of---Scope---Petitioner was studying in University and she was expelled because of low percentage in her attendance---Plea raised by petitioner was that University should have exercised parental jurisdiction in her matter---Validity---University was an autonomous body and it had its own regulations, policy and prospectus---Courts did not interfere in such like petition as matter of petitioner fell within the domain of working of the University---High Court did not find any force in the plea raised by petitioner, as she once earlier had been re-admitted by the University in her class---Conduct of petitioner was that she during her academic session had earned low percentage in attendance of classes while required percentage was 85% in each subject---Petitioner failed to explain as to why she had not taken proper care in her academics and she had also not paid fee even to the University---In the event of such failure on the part of a student, she was liable to be struck off the rolls of the educational institution---Petitioner, when herself had not demonstrated any care and concern in her academic career, then no further indulgence could be shown to her in the matter---High Court in exercise of Constitutional jurisdiction declined to interfere in the decision taken by the University---Petition was dismissed in circumstances.

The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; Muhammad Shahbaz Khan v. Superintendent, Umar Hall, B.Z.U. Multan and 2 others 2005 YLR 2434 and Miss Sumaira Nosheen v. Principal, Government College of Commerce, Vehari and 3 others 2005 MLD 1759 ref.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 and Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab, Lahore and 3 others 2001 CLC 9 rel.

Nassir Ahmad Awan for Petitioner.

Ali Masood Hayat for Respondents.

2011 C L C 396

[Lahore]

Before Syed Akhlaq Ahmad, J

Haji MUHAMMAD ASHRAF---Petitioner

Versus

Ch. ABDUL MA NNAN and another---Respondents

Civil Revision No. 3429 of 2010, decided on 15th October, 2010.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 15 & 31---Punjab Rented Premises Act (VII of 2009), S.31---Ejectment application was allowed by Rent Controller against tenant---Tenants filed objection petition during pendency of execution proceedings against tenant contending therein that the landlord in the ejectment application had admitted that he had received rent till March, 2009 but the Rent Controller had ordered that the landlord was entitled to recover arrears of rent at the rate of Rs.50,000 per month since February, 2009 till vacation of the premises---Tenants further contended that after taking the rented premises, he invested more than Rs.400,000 on its improvement---Landlord contested objection petition on the ground that Executing Court had no jurisdiction to re-determine liabilities of the parties---Executing Court dismissed the objection petition---Appeal filed by tenants was allowed by Appellate Court and the case was remanded to executing court to consider claims of the tenants and to proceed in accordance with law---Validity---Perusal of S.31 of the Punjab Rented Premises Act, 2009, revealed that all the provisions applicable to execution of a decree of a civil court would be applicable including those under which the objections were filed and under the law the same had to be decided by the Executing Court---No illegality or material irregularity had appeared in the impugned order of remand passed by Appellate Court---Petition was dismissed in limine.

1994 SCMR 22; 2002 CLC 757 and 2006 SCMR 562 ref.

Muhammad Tariq Khan v. Kh. Muhammad Jawad Asami and others 2007 SCMR 818 and Municipal Committee Kasur through Tehsil Nazim v. Additional District Judge Kasur and 3 others PLD 2008 Lah. 230 rel.

Ch. Iqbal Javed Dhillon for Petitioner.

2011 C L C 409

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD YOUNAS through Legal Heirs and others---Petitioners

Versus

TOWN COMMITTEE WARBARTON, TEHSIL AND DISTRICT NANKANA SAHIB through Administrator---Respondent

Civil Revision No. 3398 of 2010, decided on 12th October, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.11 & O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.54---Predecessor-in-interest of the plaintiffs filed suit for permanent injunction on the ground that he had purchased the disputed property through registered sale deed and the defendant in the year 2008 had illegally and forcibly tried to take possession of the disputed property---Predecessor-in-interest of the plaintiffs also filed an application for the grant of interim relief---Defendant contested suit as well as application on the ground that the disputed property was a street in the use of public at large---Trial Court dismissed application as well as plaint of the suit---Appellate Court on appeal also dismissed the same---Validity;--Held, it was proved that the plaintiffs had encroached upon "ﮜﻠﻰﺷﺎﺮﻉﻋﺎﻢ" of the defendant by including the same into their own property---Defendant was not concerned with the ownership of the plaintiff regarding the disputed land if he had legally and validly purchased it from any actual owner, however in the cover of said land, the plaintiffs could not include the "ﮜﻠﻰﺷﺎﺮﻉﻋﺎﻢ" of the defendant into their property---Plaintiffs being encroacher of the public street were not entitled to get any legal shelter from, the courts of law to perpetuate their encroachment---No illegality or material irregularity was found in the impugned concurrent findings of both courts below calling for interference---High Court dismissed revision petition in limine with direction to defendant to initiate necessary action for removal of encroachment and restoration of ''ﮜﻠﻰﺷﺎﺮﻉﻋﺎﻢ" at the spot for the public at large without any delay.

Ch. Nazir Ahmad Sadiq for Petitioner.

2011 CLC 417

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD SABIR---Petitioner

Versus

Mst. AZRA BIBI and 2 others---Respondents

Writ Petition No. 20575 of 2010, decided on 28th September, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Striking off defence of defendant---Defence of defendant having been struck off by the Family Court, defendant filed revision petition which was also dismissed on the ground that no appeal or revision was competent against interim order---Validity---Contention of defendant was that under S.14(3) of West Pakistan Family Courts Act, 1964, no appeal or revision being maintainable against the interlocutory order, only a constitutional petition under Art. 199 of the Constitution was competent---Such contention was without any force---Admittedly under S.14(3) of West Pakistan Family Courts Act, 1964 no appeal or revision was competent against the interlocutory order by the Family Court; likewise an interim order of the Family Court also could not be legally challenged before the High Court through constitutional petition---Constitutional petition was dismissed.

S. Azharul Hassan Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754 and Muhammad Akram v. Mst. Raheela Aslam and 2 others PLD 1999 Lah. 33 ref.

Mian Muhammad Ali for Petitioner.

2011 C L C 452

[Lahore]

Before Nasir Saeed Sheikh, J

Mirza ALLAH RAKHA---Petitioner

Versus

FAHEEM UD DIN AZIZ and 10 others---Respondents

Writ Petition No. 16457 and Civil Revision No. 1626 of 2009, heard on 26th November, 2010.

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

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Application under S.12(2), C.P.C. before Rent Controller---Maintainability---Scope---Application under S.12(2), C.P.C. was maintainable before the Rent Controller if the order obtained from the Rent Controller was the result of fraud or misrepresentation or was without jurisdiction.

Mst. Asia Bano v. The Rent Controller, Gujranwala and others 1991 MLD 813; Tariq Mehmood v. Additional District Judge and others 2000 YLR 227 and Sh. Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542 ref.

Sh. Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542; Tariq Mehmood v. Additional District Judge and others 2000 YLR 227 and Mst. Asia Bani v. The Rent Controller, Gujranwala and others 1991 MLD 813 distinguished.

Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 rel.

Rao Abdul Jabbar Khan for Petitioner.

Ch. Ehsan Sabri for Respondents.

Date of hearing: 26th November, 2010.

2011 C L C 487

[Lahore]

Before Rauf Ahmad Sheikh, J

NABILA KIANI and others---Petitioners

Versus

Mst. FAROOQ SULTAN and others---Respondents

W.P. No. 4958 of 2010, decided on 6th December, 2010.

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

----S. 13(6)---Constitution of Pakistan, Art.199---Constitutional petition---Landlords filed ejectment petition against tenants through their attorney---Rent Controller directed tenants to, deposit a sum of Rs.273, 000 as arrears of rent till 4-1-2010 and also monthly rent at the rate of Rs.6500 per month---Rent Controller due to non-compliance of the said order struck off the defence of the tenants and passed ejectment order---Tenants filed appeal wherein they were directed by appellate court to deposit the amount of rent which order was not complied with---Tenants' appeal was dismissed due to their non­appearance---Application for restoration of appeal by tenants was also dismissed by appellate court on account of delay of 133 days in filing of the same and non furnishing of plausible explanation for non­appearance---Tenants contended that demise of one of the landlords stood established and the power of attorney executed by the said landlord in favour of alleged attorney ceased to exist, so proceedings recorded by the Rent Controller and the appellate court were vitiated in toto---Validity---Tenants had admitted that no rent had been paid or deposited in compliance of the order of the Rent Controller---Authenticity of letter submitted by the tenants regarding death of one of the landlords was not established as the same did not contain the date of death---Proceedings before Rent Controller did not abate on account of demise of one of the landlords as her sons and daughters were already party to the proceedings---Tenants were occupying the disputed premises without payment of rent for a period of more than four years---Rent Controller and appellate court did not commit any illegality or irregularity ordering ejectment of tenant---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed by High Court.

Asad Mehmood Qureshi for Petitioners.

2011 CLC 494

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD MANZOOR---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 644-D of 2005, decided on 14th December, 2010.

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

--Ss. 30(2) & 36---Civil Procedure Code (V of 1908), O. VII, R.11---Allotment under Cooperative Farming Scheme---Jurisdiction of civil court---Rejection of plaint---Plaintiff filed suit to challenge the decision of Member, Board of Revenue before Trial Court on the ground that the Member Board of Revenue had set aside the conveyance deed executed in favor of the plaintiff where under disputed property was allotted to him under the Cooperative Farming Scheme in the year 1960---Both Trial Court and appellate court rejected the plaint under O. VII, R.11, C.P.C. and found that the matter was still pending before the District Officer (Revenue)---Contention raised by the plaintiff was that Member, Board of Revenue was not competent to refer the matter back to the Collector/District Officer Revenue for deciding the same afresh and he should have done it himself after holding the inquiry and since the basic order of Member, Board of Revenue was void ab initio the civil court had jurisdiction to entertain the same---Validity---Plaintiff had joined in the proceedings before the Board of Revenue and the impugned order was passed after hearing parties by the Member, Board of Revenue---Inquiry was also made by the Member, Board of Revenue which had mentioned that plaintiff occupied the record room and store of the Cooperative Society and a criminal case was registered against him and record room of the colony office was also burnt to ashes---Member, Board of Revenue found it fit that the Collector (Now District Officer Revenue) who gave the proprietary rights, should record the evidence and to decide the matter which was still pending before the said officer---Both the courts below had rightly placed reliance upon Ss.30(2) & 36 of the Colonization of the Government Lands (Punjab) Act, 1912 by holding that the civil court had no jurisdiction---Revision petition was dismissed by High Court.

PLD 1993 Lah. 114; 1993 MLD 1929; 2004 YLR 1175; 2001 SCMR 953; 2008 SCMR 521; PLD 1983 Lah. 294; 2003 CLC 1922; 1988 MLD 413; 1998 CLC 401; 2006 PTD 219 and 2000 YLR 2888 ref.

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

----S. 30(2)---Allotment under Cooperative Farming Scheme---Power of Board of Revenue to resume the land---Scope---Board of Revenue was competent to resume the land provided a reasonable opportunity of showing cause to person that why the land should not be resumed, be provided to him.

Mian Muhammad Akram for Petitioner.

Ch. Abdul Ghani for Respondent No. 3.

Mirza Muhammad Saleem, Additional A.-G. for Respondents Nos. 1 and 2.

Date of hearing: 14th December, 2010.

2011 C L C 503

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

Malik MUHAMMAD ASAD---Petitioner

versus

COTTON EXPORT CORPORATION and others---Respondents

C.R. No. 651 of 2005, decided on 2nd December, 2010.

Civil Procedure Code (V of 1908)---

----O.XXI, R.90, & 0.1, R.10---Suit for recovery---Executing court ordered attachment of the house owned by judgment-debtor---High Court dismissed application filed by the wife of judgment-debtor, for setting aside the decree---Objection petition and appeal filed by the wife of the judgment-debtor were also dismissed---Executing court auctioned the property of judgment-debtor---Present petitioner, tenant of the wife of judgment-debtor filed application for cancellation of auction which was dismissed by the executing court; appeal also failed---Petitioner, tenant of the property in question, contended that he was a `person interested' in property in dispute in terms of R. 90, O. XXI, C.P.C.---Validity-Petitioner being only a tenant in the disputed property, was not covered by the definition of "a decree-holder or any other person entitled to share in the ratable distribution of assets "---Tenant could not be termed/considered to have an interest in the property---Decree having been satisfied and decree-holder no more interested in execution proceeding, participation in open auction sought by the petitioner could not be allowed as the house in dispute had to be released to the owner who had paid decretal amount with litigation charges---Auction proceedings in favour of the auction purchaser were set aside on account of satisfaction of the decree---Petition of tenant was dismissed.

Ch. Manzoor Ahmad and Sardar Mehmood Iqbal Khakwani for Petitioner.

Syed Wajid Hussain, along with Ghulam Abbas, G.M. for Respondent No. 1.

Ch. Naseer Ahmad, M. Akhtar Qureshi and Syed Wajid Hussain for Respondents.

Date of hearing: 29th November, 2010.

2011 C L C 520

[Lahore]

Before Ch. Muhammad Tariq, J

DEFENCE HOUSING AUTHORITY, LAHORE CANTT. through Secretary---Petitioner

Versus

PUNJAB CO-OPERATIVE HOUSING SOCIETY LIMITED through Secretary-Respondents

Civil Revision No. 2908 of 2000 and Civil Miscellaneous No. 1210-L of 2010, heard on 4th November, 2010.

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

----Ss. 54, 70 & 70-A---Specific Relief Act (I of 1877), S. 54---Dispute between societies---Mandatory requirements---Bar of jurisdiction---Scope---Concurrent findings of fact by the Courts below---Plaintiff society sought mandatory injunction against defendant society---Suit was concurrently decreed by Trial Court and Lower Appellate Court in favour of plaintiff---Plea raised by defendant was that suit of plaintiff was not maintainable under S. 70 of Cooperative Societies Act, 1925---Validity---Matter was a dispute of piece of land 'which was being claimed by both the parties, therefore, neither provisions of S. 54 nor S. 70-A of Cooperative Societies Act, 1925, would obstruct the suit for permanent injunction---Provisions of Ss. 54, 70 or 70-A of Cooperative Societies Act, 1925, related to disputes touching business of the society---Suit for permanent injunction was not barred by provisions of Cooperative Societies Act, 1925---Trial Court as well as Lower Appellate Court had dealt with in detail all issues and discrepancies between the parties in the light of evidence adduced by parties---Concurrent findings of facts and law were recorded by two courts below against defendant society and the same could not be interfered with by High Court in exercise of revisional jurisdiction---Defendant society failed to point out any illegality, infirmity, misreading / non-reading of evidence or jurisdictional error in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Mst. Sardar Begum and 5 others v. Delhi Mercantile Cooperative Housing Society Limited and 2 others 1997 CLC 962 rel.

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

----S. 11 & O.II, R.2---Specific Relief Act (I of 1877), S.54---Res judicata---Subsequent suit---Maintainability---Subsequent suit for permanent injunction is neither hit by S. 11, C.P.C. nor by O.II R.2 C.P.C. because suit for permanent injunction is a relied in relation to cause of action stated in that suit---Such is not a claim and further the question of res judicata would not arise in a case when a previous suit was dismissed for non-prosecution-Provision of S. 11, C.P.C. would be applicable only if previous suit had been decided on merit regarding same issues which were directly and substantially in issue in the subsequent suit.

Tariq Masood for Petitioner.

Munawar-ul-Islam for Respondent.

Date of hearing: 4th November, 2010.

2011 CLC 532

[Lahore]

Before Ijaz Ahmad and Saghir Ahmed Qadri, JJ

ALLAH RAZI---Appellant

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others---Respondents

R.F.A. No. 77 of 2002, decided on 11th November, 2010.

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

----Ss. 4, 18 & 23(2)---Acquisition of land---Determination of market value---Enhancement of price of acquired land---Referee Court to which matter was referred on application of landowner, enhanced price of acquired land from Rs.4000 to Rs.8000 per kanal and also awarded compulsory charges of 15% of the market value---Contention by landowner was that the Referee Court had not taken into consideration the future potential of the disputed land and the location of the land which was in the proximity of a tourist's resort and boasts of all the amenities---Validity---Authorities had been unable to produce any documentary evidence showing market value at less rate than Rs.100,000 per kanal---Land Acquisition Collector had failed to take into consideration all the factors while determining the amount of compensation---Meagreness of the compensation had added salt to the injury sustained by the landowner---Land in question was situated in the revenue estate which was already a well developed tourist spot and had a future potential---High Court allowed appeal and enhanced the amount of compensation upto Rs.110, 000 per kanal.

WAPDA through S.E. Acquiring Cell CRBC Project WAPDA D.I. Khan and another v. Syed Ali and others 2010 SCMR 82; Land Acquisition Collector v. Mst. Iqbal Begum and others PLD 2010 SC 719 and Chairman, WAPDA and others v. Sarfraz Khan and another 2007 SCMR 1054 ref.

Sadaqat Ali Khan through LRs and others v. Collector Land Acquisition PLD 2010 SC 878 and Major (Retd.) Akbar Jan v. Collector, Land Acquisition, Sui Northern Gas Pipeline (Ltd.), Peshawar and 2 others PLD 2010 Pesh. 26 rel.

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

----S. 23---Determination of compensation---Market value had to be ascertained on the basis of average sale price of the land sold in the revenue estate during the previous one year.

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

----S. 23---Determination of compensation---Acquisition was a unilateral act of the acquisition authority and was usually unacceptable but was merely tolerated by the other party---Such unwilling vendor had to be compensated by more than mere payment of price.

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

----S. 23---Determination of compensation---Landowner who was compulsorily made to quit his land and was forced to say farewell to the place, that cradled him and harboured the bones of his forefathers, had to be dealt with generously and delicately.

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

----S. 23---Determination of compensation---Considerations---Market value, the future potential, the proximity of the land and amenities attached thereto had to be considered.

M. Bilal, Babar Bilal and Ms. Shazia Bilal for Appellant.

Abid Hussain Ranjha for Respondents Nos. 3, 4 and 5.

2011 CLC 546

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

MUHAMMAD IQBAL---Appellant

Versus

MUHAMMAD AFZAL and others---Respondents

S.A.O. No. 13 of 2007/BWP, decided on 3rd December, 2010.

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

----Ss. 13 & 13-A---Ejectment petition---Default in payment of rent to new owner/landlord---Trial Court accepted ejectment petition---Appellate Court dismissed tenant's appeal---Tenant contended that pendency of title suit between new and previous owners of the demised property barred ejectment petition---Validity---New owners/landlords stepped into the shoes of previous owners/landlords---Notice of change of ownership was duly dispatched to the tenant---Courts below rightly held that the relationship of landlord and tenant existed between the new owners and the tenant---Tenant's contention that ejectment petition was not maintainable during pendency of suit between the new and previous owners, was without substance---Tenant did not pay rent despite having knowledge of the change of `ownership of demised property---Appeal was dismissed.

Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. NLR 2004 (Civil) 702 fol.

Muhammad Aslam Khan Dhukkar for Appellant.

Malik Ashiq Muhammad for Respondents.

Date of hearing: 24th November, 2010.

2011 CLC 553

[Lahore]

Before Ch. Muhammad Tariq, J

GHULAM RASUL---Applicant

Versus

GHULAM QADIR---Respondent

Civil Miscellaneous Nos. 1-C to 4-C of 2008 and Civil Revision No.1267 of 1999, decided on 22nd, March, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.13, O. XXXIX, Rr.1, 2 & S. 115---Limitation Act (IX of 1908), S.5---Setting aside ex parte decree---Application for grant of interim injunction and for condonation of delay---Revision petition filed by the petitioner was decided by High Court wherein respondent was proceeded against ex parte---Counsel for the respondent had filed four applications, one for setting aside ex parte decree, second for bringing on record the legal heirs of deceased respondent, third for condonation of delay and fourth for interim injunction for the suspension of operation of impugned judgment---Ex parte decree was passed against the respondent when he had died more than one year prior to passing of said decree---Legal heirs of deceased respondent were also abroad and record showed that after the death of respondent no notice was served upon the legal heirs of deceased to inform about the pendency of the revision in High Court---As soon as a person dies his power of attorney would cease---Record had further revealed that the revision was filed against sole respondent and there was no other respondent who could inform the legal heirs of deceased respondent about the pendency of revision---Impugned judgment was not sustainable in the eyes of law against a dead, person, particularly when power of attorney executed by the deceased respondent had already expired---Such was a sufficient cause to condone the delay---Delay was condoned, ex parte decree was set aside and the petitioners in the main revision petition were directed to submit amended memo of parties within two weeks and thereafter revision be decided on merit.

Ch. Riasat Ali for Petitioner.

Sh. Naveed Shaharyar for Applicant-respondent.

2011 CLC 559

[Lahore]

Before Ch. Muhammad Tariq and Syed Akhlaq Ahmad, JJ

Miss SANER SULTAN---Appellant

Versus

COMSATS INSTITUTION OF INFORMATION TECHNOLOGY, LAHORE---Respondent

I.C.A. No. 366 in Writ Petition No. 12589 of 2006, heard on 3rd November, 2010.

(a) Educational institution---

----Student was declared fail on accounts of shortage of her lectures---Natural justice, principles of and maxim: audi alteram partem---Applicability---Appellant was declared fait' by the educational institution for lecture shortage despite the fact that she had cleared all the eight semesters and the final project comprising the course for the Bachelor of Information Technology [BS(IT)] degree---Constitutional petition filed by the appellant was dismissed by High Court---Appellant in intra-court appeal contended that she was never served any notice about her insufficient attendance---Validity---Educational institution did not serve any show-cause notice or communicated the effect of lecture shortage/result of failure to appellant until she gained knowledge on her own after she had completed the six semesters---Educational institution even did not intimate to the appellant as to her ineligibility to join the next semester, resultantly, she continued her education till completion of all the eight semesters and the final project---Appellant, in circumstances, could not be penalized for the irregularity committed by the institution which impliedly consented to continuance of appellant's further education---Maxim: `audi alteram partem' (i.e. no one shall be condemned unheard) was not confined only to judicial proceedings but also to all the proceedings affecting persons or property of a party-Future/omission to provide for show-cause notice in the statute would not override the principles of natural justice---No order affecting the rights of any person could be passed without affording an opportunity of hearing to such party---Educational institution was directed to declare the appellant successful and issue her degree of relevant discipline---Intra-court appeal was allowed.

Commissioner Income Tax v. Fazal ur Rehman PLD 1964 SC 410 fol.

(b) Maxim---

----Maxim: `audi alteram partem' (i.e. no one shall be condemned unheard) was not confined only to judicial proceedings but also to all the proceedings affecting persons or property of a party.

Kh. Anwarul Haq Khalid Butt and Shahid Bashir for Appellant.

Mian Waheed Akhtar for Respondent.

Date of hearing: 3rd November, 2010.

2011 CLC 566

[Lahore]

Before Rauf Ahmad Sheikh, J

WAHID-UL-ISLAM---Petitioner

Versus

SHAHEEN AKHTAR and 2 others---Respondents

Writ Petition No. 17398 of 2005, heard on 29th November, 2010.

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

----Ss. 5, Sched. & 10(4)---Constitution of Pakistan, Art.199----Constitutional petition---Plaintiff (wife) filed suit for dissolution of marriage on the ground of khula and non-payment of maintenance---Defendant (husband) contested the suit and filed suit for restitution of conjugal rights---Trial Court decreed the suit for dissolution of marriage whereas dismissed the suit for restitution of conjugal rights---Appellate Court maintained judgments and decrees passed by Trial Court---Contention by husband was that without the return of dower and other articles allegedly removed by the wife from his house, a decree for dissolution of marriage on ground of khula could not have been passed---Validity---Rupees 1000 was fixed as dower and paid at the time of marriage---Husband, in the written statement had not specifically claimed the return of dower so an implied waiver was attracted on his part---Under the provision of S.10(4) of the West Pakistan Family Courts Act, 1964, it was mandatory for the court to pass a decree for dissolution of marriage on failure of reconciliation proceedings and direct the return of "Haq maher" received by the wife in consideration of Khula divorce, however, if the husband did not claim the return of dower specifically an implied waiver would be attracted on his part and in such eventuality the wife was not obliged to even return the dower---Not only reconciliation proceedings had failed, in the present case, but the wife had categorically stated on oath that she had severe hatred towards the husband---Husband had been living abroad throughout---Contention that the wife had taken ornaments, garments and cash amount from his mother could not be accepted and if in fact she had taken these articles from his mother, such would not amount to benefits of marriage taken from the husband---Decree was passed by the court of competent jurisdiction and did not suffer from any illegality or infirmity due to alleged non-return of dower as the husband had not specifically claimed the same---Constitutional petition was dismissed in circumstances.

PLD 1967 SC 97; PLD 2004 Lah. 399; PLD 1968 Lah. 411; PLD 1990 Lah. 71; 2006 MLD 83; PLD 2009 Pesh. 92; 2007 CLC 505; 2006 CLC 1662 and PLD 2006 Kar. 272 ref.

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

----S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula---Wife had categorically stated before the Trial Court that she had severe hatred towards the husband and was not ready to live with him under any condition---Such statement on oath coupled with the failure of reconciliation proceedings was sufficient to dissolve the marriage on the basis of khula.

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

---S. 10(4)---Dissolution of marriage on the basis of khula---Return of dower---Scope---Under the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964, it was mandatory for the court to pass a decree for dissolution of marriage . on failure of reconciliation proceedings and direct the return of "Haq maher" received by the wife in consideration of khula divorce, however, if the husband did not claim the return of dower specifically, an implied waiver would be attracted on his part and in such eventuality the wife was not obliged to even, return the dower.

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

----Ss. 5, Sched. & S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Return of dower or benefits of marriage was not condition precedent for a decree for dissolution of marriage in view of the provisions of S.10(4) of the West Pakistan Family Courts Act, 1964 [as amended].

Syed Kalim Ahmad for Petitioner.

Date of hearing: 29th November, 2010.

2011 C L C 592

[Lahore]

Before Ch. Muhammad Tariq, J

SARDAR KHAN and others----Appellants

Versus

GHULAM MUHAMMAD and others----Respondents

Regular Second Appeal No.155 of 2006, heard on 11th November, 2010.

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

----Ss. 8 & 42---Plaintiffs filed suit for possession on the ground that the defendants had forcibly occupied the disputed property and further in collusion with the revenue officials were able to show their cultivation over the disputed property---Defendants also filed suit for declaration with the contention that they had purchased the said disputed property from the plaintiffs through oral sale agreement and had paid Rs.967,537.50 to the plaintiffs in presence of four witnesses and possession was delivered to them---Trial Court decreed suit of the plaintiffs and dismissed the suit filed by defendants through consolidated judgment and decree---Appellate Court on appeal, maintained findings by the Trial Court---Validity---Out of four defendants' witnesses before whom the alleged payment was made, three witnesses never appeared before Trial Court to support version of the defendants and one witness appeared and made a different statement---Record revealed that in Roznamcha Waqiati as well as in the mutation of sale Rs.860, 000 was recorded as consideration price instead of Rs.967,537---None of the witnesses had deposed that money was paid in his presence rather the witnesses had only made statements that money was paid which did not establish factum of payment of consideration price---Suit for declaration to enforce an agreement to sell was not maintainable in circumstances---High Court declined to interfere in concurrent findings of fact in appellate jurisdiction---Appeal was dismissed by High Court.

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

----Ss. 8 & 42---Suit for possession and declaration---During pendency of suit, some of the parties from the defendants compromised with the owners of the disputed property and thereafter vide two separate mutations, some portion of the disputed property was purchased by them against consideration---Such fact was fatal for the case of the defendants as, if the parties had already paid the consideration/price of the disputed properly, then they could not indulge in separate two transactions of purchase of some portion of the disputed property against value---High Court declined to interfere in appellate jurisdiction---Appeal was dismissed in the circumstances.

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

----S. 42---Mutation---Simple entry in a mutation without attestation had no sanctity in the eye of law nor it did create any title, right or interest whatsoever in favour of any person.

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

----S. 42---Mutation---Mutation was not a document of title but was a sanction under the revenue law meant only for fiscal purposes.

Malik Noor Muhammad Awan for Appellants.

Sh. Naveed Shehryar, Muhammad Suleman Qureshi and Saif-ul-Haq for Respondents.

Date of hearing: 11th November, 2010.

2011 C L C 609

[Lahore]

Before Syed Akhlaq Ahmad and Ch. Muhammad Tariq, LI

TRUST SECURITIES AND BROKERAGE LIMITED through Authorised Officer----Appellant

Versus

Dr. Syed SIBITUAL HUSNAIN----Respondent

Regular First Appeal No.230 of 2003, heard on 11th November, 2010.

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

----Constitution of Pakistan, Art.199---Constitutional petition---Allegation of loss of reputation---Suit for damages---Trial Court decreed the suit---Defendant contended that after promulgation of Defamation Ordinance, 2002, civil suit was not maintainable---Validity---Suit was maintainable for having been filed before promulgation of Defamation Ordinance, 2002 which was not enforced with retrospective effect---Where a law had been repealed or amended, proceeding pending at the time of the repeal would be decided under the repealed law as if the law had not been repealed---Language of the notices in question was neither threatening nor humiliating---Plaintiff's contention that he suffered humiliation and mental agony was misconceived as he could not be presumed to have read the notices aloud in public---Evidence produced by plaintiff did not disclose the time of receiving said notices---Written reply of the notices was not exhibited---Plaintiff could not derive any benefit from said written reply without being cross-examined---Claim of damages having not been detailed in the plaint, suit could not proceed---Evidence produced by plaintiff could not establish that notices of demand were defamatory and caused mental torture to him---Statutory law had provided for notice of demand which was simply a reminder to do an act within stipulated time---Courts below grossly misread the evidence---Equal protection of law and treatment in accordance with law were inalienable rights of every citizen--Evidence produced by plaintiff did not constitute defamation as the notices of demand issued to the plaintiff, were not published or circulated widely in newspaper---Plaintiff could not made out a case for damages on account of loss of reputation---Appeal was accepted in circumstance.

(b) Interpretation of statutes---

----Where a law had been repealed or amended, proceeding pending at the time of the repeal would be decided under the repealed law as if the law had not been repealed.

Abdul Majeed for Appellant.

Atta-ur-Rehman Sh. and Ch. Fazal Ilahi for Respondent.

Date of hearing: 11th November, 2010.

2011 C L C 629

[Lahore]

Before Nasir Saeed Sheikh, J

GHULAM through L.Rs. and 8 others----Petitioners

Versus

PEHILWAN and 3 others----Respondents

Civil Miscellaneous Nos.1/C and 2/C of 2007 in Civil Revision No.303 of 2004, decided on 15th September, 2010.

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

----S. 5---Civil Procedure Code (V of 1908), Ss.115 & 151---Application before High Court for restoration of revision petition dismissed for non prosecution along with application for condonation of delay under S. 5 of the Limitation Act, 1908---Contention of the applicants was that no notice of transfer of case was given to the applicants or their counsel from Circuit Bench to principal seat; therefore, application was moved after two years nine months and 10 days delay---Validity---Matters from Circuit Bench were transferred to the principal seat vide notification issued in the year 2003 and the applicant's counsel appeared before High Court on 9-3-2004 after transfer of the case; he had the knowledge that the case stood transferred---On subsequent dates of hearing the counsel sent written request for adjournment and on 8-7-2004 the said counsel did appear before High Court at the principal seat; however, on the next date of hearing on 30-7-2004 a request for adjournment was sent---Record revealed that on 19-11-2004 revision petition was fixed for hearing and card was issued to the counsel for the applicants vide note dated 2-11-2004 for the date 19-11-2004---No affidavit was submitted by the applicants' counsel that he did not receive the card issued by the office for 19-11-2004---Contents of application for condonation of delay did not explain the delay of each and every day---Application filed under S.5 of the Limitation Act, 1908 was not maintainable---Restoration application along with condonation of delay application was dismissed by High Court in circumstances.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820; Said Ali v. Safdar Ali and others 2004 SCMR 387 and Allah Bachai and others v. Fida Hussain and others 2004 SCMR 615 ref.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

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

----S. 5---Civil Procedure Code (V of 1908), S.115---Revision---Limitation---Provisions of S.5 of Limitation Act did not apply for condonation of delay of civil revision.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

Muhammad Ramzan Chaudhry for Applicants.

Muhammad Siddique Kamyana for Respondents.

2011 C L C 645

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

Syed ABBAS HUSSAIN NAQVI and 5 others----Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Auqaf, Lahore and 4 others----Respondents

Writ Petition No.10555 of 2010, decided on 15th September, 2010.

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

----Ss. 105, 107 & 111---Constitution of Pakistan, Art.199---Constitutional petition---Lease of land through open auction---Non­-delivery of vacant possession of land to lessee---Petitioners, participated in- the auction proceeding and succeeded to get lands in different Mouzas of the District---Petitioner had made the payment of bid amount---Contention of the petitioners, was that despite making deposit of heavy amount, they were not given vacant possession of land and in the meanwhile the lease period expired and their paid amounts were adjusted for the next year and even then authorities failed to hand over vacant possession of land---Petitioners had called in question advertisement published for further auction of land in dispute contending that petitioners who had made payments of heavy amount, were entitled to said lease for next year on adjustment of the amounts already received by the authorities---Validity---Held, actual lease amount of the lands for the next year, could only be determined through fresh auction and thereafter the question of adjustment would arise---Constitutional petition, in circumstances was pre-mature---Since the authorities had raised certain objections with regard to the previous auctions held, certain factual controversies had arisen, which could not be determined in constitutional petition by High Court---Constitutional petition was dismissed.

Benedict F. D' Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918 and Muhammad Younas Khan and 12 others v.

Government of N.-W.F.P. through Secretary, Forest Agriculture, Peshawar and others 1993 SCMR 618 ref.

Ch. Umar Hayat Sindhu for Petitioners.

Muhammad Azam Zia for Respondents.

Muhammad Azeem Malik, Addl. Advocate General.

2011 C L C 652

[Lahore]

Before Mamoon Rashid Sheikh, J

Messrs ZAKIUDDIN AHMAD SIDDIQUI and another----Petitioners

Versus

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

Writ Petition No.692 of 2006, decided on 10th December, 2010.

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

----S. 17---Constitution of Pakistan Art.199---Constitutional petition--Ejectment of tenant---Concurrent findings of fact---Interference---Principle---Rent Controller as well as' Lower Appellate Court passed eviction orders against tenant on the ground of default in payment of monthly rent and personal use---Validity---High Court in its extraordinary Constitutional jurisdiction declined to interfere in cases having concurrent findings of fact unless it could be established that findings of fact by Courts below were result of misreading or non-reading of evidence or were perverse, arbitrary or fanciful---Tenant had failed to show that there had been misreading or non-reading of evidence on the part of Courts below---Tenant also could not establish that judgments passed by two Courts below suffered from any legal infirmity---Constitutional petition was dismissed in circumstances.

Muhammad Azizullah v. Abdul Ghaffar 1984 CLC 2837; Abdullah v. Hassan Abbas 1985 CLC 892 and Muazam Hanif v. Settlement Officer/Collector and another 2006 SCMR 642 distinguished.

Shamshad Begum v. Mst. Huma Begum and others 2008 SCMR 79; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158 and Hanif and others v. Malik Ahmad Shah and another 2001 SCMR 577 rel.

(b) Administration of justice---

----Subsequent events may be taken into consideration by the Courts while deciding cases.

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 rel.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Moazzam Ali Shekh for Respondent No.3.

Date of hearing: 22nd October, 2010.

2011 C L C 661

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SIDDIQUE----Petitioner

Versus

GHULAM RASOOL and others----Respondents

Civil Revision No.662 of 2005, decided on 14th September, 2010.

Specific Relief Act (I of 1877)---

----Ss. 9 & 12---Plaintiff's suit for possession through specific performance of agreement was concurrently dismissed by Trial Court as well as Appellate Court on the ground that marginal witnesses had not been examined, as such agreement had not been proved---Plaintiff asserted that two marginal witnesses had died before recording evidence and as such it was incumbent upon the courts below to pass decree' ignoring the fact that two marginal witnesses were not examined---Validity---Plaintiff deposed in examination-in-chief that two marginal witnesses had died but their death certificates or other material had not been produced proving that said witnesses were not alive---Plaintiff admitted that he had not paid earnest money individually to the vendors according to their shares---Payment of Rs. 60,000 had not been proved and as per admission of the plaintiff that he had paid the amount to one of the vendors was sufficient to negate assertion of the plaintiff that all vendors had agreed to sell their shares in the disputed land---No special or general power-of-attorney in favour of said vendor had been produced---Plaintiff had failed to point out any misreading or non-reading in the judgments of courts below---Revision petition was dismissed under circumstances.

Abdul Wali Khan through Legal heirs and others v. Muhammad Saleh 1998 SCMR 760 and Allah Dad and 3 others v. Dhuman Khan and 3 others 2005 SCMR 564 ref.

Abdul Wali Khan through Legal heirs and others v. Muhammad Saleh 1998 SCMR 760 distinguished.

Mian Sarfraz-ul-Hassan for Petitioner.

Respondents ex parte.

2011 C L C 681

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

BASHIR APIMAD CHAUDHRY and others----Appellants

Versus

TAHIR MAHMOOD and others----Respondents

Regular First Appeals Nos.224 and 451 of 2002 and Cross-Objection No.25 of 2003, decided on 18th June, 2010.

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

----S. 12(2)---Decree obtained through fraud, misrepresentation or collusion---Remedy---Filing of fresh suit---Scope---Legal bar has been created by provisions of S.12(2), C.P.C. for a person, who feels himself aggrieved of any judgment or decree passed by a Civil Court on the ground that the judgment and decree have been obtained through fraud and misrepresentation or collusion---Only remedy which is available to such a person is to move application under S.12(2), C.P.C. before the Court which passed judgment and decree in question and separate suit is not maintainable at all by such person.

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

----Arts. 17 & 79---Agreement affecting immovable property---Proof---Procedure---If such agreement affecting immovable property as claimed by plaintiff of a suit is denied to have been executed by defendant to whom the agreement is attributed, then as per provisions of Arts. 17 and 79 of Qanun-e-Shahadat, 1984, plaintiff has to prove the claimed agreements to sell by producing two marginal .witnesses of the agreement in question.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Agreement to sell---Proof---Non production of two marginal witnesses---Effect---Trial Court did not find plaintiff entitled to decree for specific performance of agreement to sell but decree for recovery of double the amount of earliest money ,was passed in his favour-Validity-In absence of any plausible explanation or reasons in not producing second marginal witness by plaintiff during trial, it could not be said that requirement of Art. 79 of Qanun-e-Shahadat, 1984, had been fulfilled by plaintiff-Non-production of second marginal witness made the original agreement to sell as an inadmissible document---Plaintiff failed to prove original agreement to sell during trial and the transaction forming basis of the claim of plaintiff faded away---No legal justification was available to sustain the judgment and decree passed by Trial Court for recovery of earnest money or double the amount of that earnest money---Judgment and decree passed by Trial Court in favour of plaintiff were set aside and suit was dismissed---Appeal was allowed in circumstances.

Ch. Mushtaq Masood for Appellant (R.F.A. No.224 of 2002).

Nadeem Ahmad Sheikh for Respondent No. 1.

Atif Ameen and Imran Muhammad Sarwar for Respondent No.2.

S. M. Masud for Respondents Nos.3 to 6.

Date of hearing: 4th June, 2010.

2011 C L C 702

[Lahore]

Before Tariq Javaid and Shaukat Umar Pirzada, JJ

SADDIQUE S. KHAN through L.Rs. and others----Appellants

Versus

ZAFAR ULLAH KHAN and 8 others----Respondents

R.F.A. No.197 of 2003, decided on 15th September, 2010.

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

----Ss. 16 & 20---Suit for rendition of accounts claiming compensation/damages on account of loss and agony caused to plaintiffs by the defendants which was spreaded over a period of 40 years---Defendants contested suit on the ground of bar of limitation, absence of jurisdiction and non-maintainability of .suit---Trial Court decreed suit of the plaintiffs---Defendants asserted that they were citizens of foreign country, disputed property was situated outside the country (Pakistan) and disputed income/gains/interest from the said property also accrued abroad therefore the courts in Pakistan had no territorial jurisdiction on the subject matter---Validity---Defendants were citizens of foreign country, disputed property was situated abroad, the income regarding which dispute had been raised pertained to the year 1962 to 1973, also accrued in the foreign country; the final settlement of account reached between the parties led to partition of the disputed property between them also effected in the foreign country; and further acceptance of the settlement account by the foreign court remained unchallenged and had attained finality---Courts of Pakistan had no jurisdiction---High Court allowed appeal with costs throughout and set aside the impugned judgment and decree passed by Trial Court.

Mst. Gulzar Begum and others v. Muhammad Ghaus and 10 others 1993 CLC 448 rel.

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

----S. 13---Suit for rendition of accounts and recovery Of damages---Contention of the plaintiffs was that financial relationship and joint farming arrangement between the parties came to an end in the year 1973 whereafter, final settlement of account took place and a cheque was accordingly issued by one of the defendants to his two brothers clearly containing a note to the effect that the said payment was made as settlement of account between them---Suit had been filed after about 28 years---Plaintiffs claimed benefit of S.13 of the Limitation Act, 1908 and maintained that the suit was within time---Validity---Provisions of S.13 of the Limitation Act, 1908 had been wrongly applied and period of limitation had been stretched to unwarranted limits by the Trial Court in order to benefit plaintiffs---Defendants were citizens and permanent residents of the foreign country; S.13 of the Limitation Act, 1908 was not attracted in the facts and circumstances of the case---Suit was time-barred.

Rathina Thevan v. Packirisani Thevan AIR 1928 Madras 1088 ref.

Shafqat Ali Khan Blouch for Appellant.

Ameen-ud-Din Khan for Respondents Nos. 1 to 8.

Ehsan Ahmed Sindhu for Respondent No.9.

Date of hearing: 30th June, 2010.

2011 C L C 726

[Lahore]

Before Mansoor Akbar Kokab, J

Syed NADEEM RAZA through Attorney General----Petitioner

Versus

Mst. AMNA-TUZ-ZAHRA and 2 others----Respondents

Writ Petition No.11293 of 2000, heard on 20th September, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower---Plaintiff (wife) filed a suit for recovery of dower amount of Rs.5 lac; one house built upon 1 Kanal area and 1 square of agricultural land-- -Trial Coourt decreed suit of the plaintiff---Appellate Court on appeal filed by defendant dismissed the same---Contention raised by defendant was that the dower amount fixed at the time of marriage was ,only Rs.5 lac mentioned in Column No.13 payable on demand whereas the house and agricultural land were though mentioned in column. No.16 of the Nikahaama but were not to constitute the payable dower fixed or agreed upon between the parties at the time of marriage---Nikahnama and its contents had negated the arguments advanced by counsel of the plaintiff to the effect that entries made in one column of the Nikahnama were to be read along with the entries of other column, constituting whole dower payable to the bride by the bridegroom---Wording of the column in the nikahnama indicated that it referred to past transaction which was never covenanted between the parties for some future liability, rather the same was considered as an explanation for an act done in compliance and in furtherance to-agreed amount of payable dower---Trial Court while deciding. the issue with regard to determination of payable dower only decided the fact that the dower was not proved as having been paid as pleaded by the defendant, whereas no specific determination of the fact as to what was the fixed dower between the parties was made---Appellate Court dismissed appeal without touching the merits of the case and found that the appeal was incompetent because specifically ordered the bond of Rs.5 lac by the lower court, to he deposited by the defendant, was never complied with---Both of the judgments were not according to the requirements of Civil Procedure Code, 1908 vis-a-vis, term, `judgment"---Such generalization was not acceptable not. so were expected from the judicial officers qua required deliberation upon each and every fact in the light of relevant law with due application of mind---High Court allowed constitutional petition and set aside the impugned judgments and decreed the suit only to the amount of 'Rs.5 lac payable as dower.

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

----O. VII, R.1(e)---Particulars to be contained in plaint---Scope---To file a specific claim before a court of competent jurisdiction, some cause of action should have been accrued to the plaintiff' before filing suit or the claim and by no means the claim was a right in favour of the plaintiff only because of filing of the suit itself and improper or .evasive reply made in written statement filed by the defendant in reply to the enhanced claim incorporated in the plaint---Claim could only be put forth to the court of competent jurisdiction through a suit when the same had already been established as a right to be enforced constituting a cause of action for a lis in favour of the plaintiff---Order VII, R. 1(e), C.P.C. made it incumbent that the plaint should contain the facts constituting the cause of action and when it arose.

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

----O. VI, R. 17 & O. VII, R. 1(e)(g)---Amendment of plaint---Fresh cause of action---Scope---Admitting certain claim by defendant in written statement either patently or by evasive denial was not to equate with emergence of fresh cause of action for a claim of relief, already put forth through the plaint---Fresh cause of action, if ever accrued because of some new circumstances or being of a nature of recurring cause of action required amendment of the plaint for re-compliance of provisions of O. VII, R.1(e), C. P. C. and the changed relief, which. the plaintiff claimed, because of fresh cause of action also necessitated amendment in the prayer of the suit as by O. VII, R.1(g), C.P.C. specific relief was also to be embodied in the plaint---Admission of certain facts through written statement could not alter the allegedly accrued cause of action pleaded in the plaint---No one could be allowed to take benefit of some technicalities or because of some defective pleadings submitted by one party in a sense that some new right had accrued traceable somewhere in the past.

Muhammad Ameer Bhatti for Petitioner.

Ch. Shakir Ali for Respondent.

Date of hearing: 20th September, 2010.

2011 C L C 736

[Lahore]

Before Kh. Imtiaz Ahmad, J

UMAR NAWAZ and another----Petitioners

Versus

Mst. ALAM KHATOON and another----Respondents

Civil Revision No.1195-D of 1996, decided on 20th October, 2010.

Islamic law---

----Inheritance---Plaintiffs filed suit for declaration against defendants on the ground that one of the defendants was entitled only 1/4th share of disputed property left by deceased and the alleged mutations were illegal as in the said mutations, the said defendant was given excess share---Trial Court decreed the suit of the plaintiffs on the ground that the plaintiffs and defendants had to inherit in their personal status equally and not in accordance with the share of their deceased fathers---Appellate Court on appeal allowed the same and set aside the judgment and decree passed by Trial Court on the ground that the plaintiffs as well as defendants would automatically step in the shoes of their fathers respectively and would get share from the inheritance of deceased according to the share which their deceased fathers would have been entitled to get---Validity---Deceased had two sons and one of the defendants had one son, after excluding the share of widow, the remaining property was to be devolved in three parts, each of them would obtain 1/3rd share of the property---Appellate Court had committed illegality by observing that the plaintiffs were entitled to get shares according to the shares of their fathers---High Court set aside the judgment and decree passed by appellate court and restored the one passed by Trial Court.

Mohammad Law by Syed Ameer Ali, Chapter 11 p.50; Digest of Muslim Law by Baillie p.702 and Abdul Sattar Khan and another v. Rafiq Khan and others 2000 SCMR 1574 rel.

Syed Hamid Ali Shah for Petitioners.

Mirza Aziz Akbar Baig for Respondents.

Date of hearing: 19th October, 2010.

2011 C L C 755

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ZAMAN----Petitioner

Versus

AKRAM HUSSAIN and others----Respondents

Writ Petition No.1541 of 2010, heard on 12th November, 2010.

Punjab Rented Premises Act (VII of 2009)---

---Ss. 5, 15, 19 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Petition for ejectment of tenant on grounds of wilful default in rent, subletting and unauthorized changes in the premises and personal bona fide need of landlord---Tenant submitted application seeking leave to defend the petition, which was dismissed and ejectment petition filed by the landlord was concurrently accepted by both courts below holding that the fixed period of tenancy had expired---Execution of rent deed wherein 3 years tenancy period was fixed, was admitted by the tenant---No proof was available to substantiate the claim of tenant that any extension in the said initial period of three years was agreed upon by the landlord---Tenant could not claim extension as of right---Contention of tenant that without registration of the rent deed under S.5 of the Punjab Rented Premises Act, 2009, the ejectment petition was not competent, was repelled as landlord could not be non-suited on the ground that the rent deed was not got registered with the Rent Registrar; especially when a period of two years was granted to the landlords and tenants of the existing tenancies to bring the same in conformity with the provisions of Punjab Rented Premises Act, 2009---Impugned judgments and decrees, which did not suffer from any illegality or infirmity, were upheld, in circumstances.

Javed Akhtar Bhatti for Petitioner.

Tahir Mehmood for Respondent No.1.

Date of hearing: 12th November, 2010.

2011 CLC 768

[Lahore]

Before Rauf Ahmad Sheikh, J

RIZWANA SHAHEEN----Appellant

Versus

Ch. GHULAM MUSTAFA and 3 others----Respondents

First Appeal from Order No.45 of 2005, heard on 25th November, 2010.

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

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.172(2)(xviii)---Civil Procedure Code (V of 1908), S.17 & O.XXXIX, Rr.1 & 2---Plaintiff filed suit for partition, declaration and permanent injunction on the ground that the disputed mutation was sanctioned without her free consent and disputed property was fraudulently alienated through the impugned gift with an application for temporary injunction---Defendants contested suit on the ground of territorial jurisdiction of Trial Court---Trial Court partially allowed application of the plaintiff to the extent of disputed house but declined to grant injunction in respect of agriculture land by holding that a suit for partition in respect of agricultural land was not maintainable in the civil court---Validity---Impugned mutations were sanctioned on the same day therefore the contention of the plaintiff that her signatures were obtained on the pretext that the same were required for attestation of mutation of inheritance appeared to be correct---One of the disputed properties was situated at "L" and under S.17, C.P.C. the civil court at "L" had jurisdiction to hear the suit---Contention of the plaintiff that the injunction at the most should be granted only to the extent of 1/6th share of the plaintiff, had no force because mutation of inheritance was challenged and a decree for partition was prayed for, however, one of the defendants nevertheless had the right to alienate his undisputed 1/3rd, undivided share in the disputed property without alienating the specific number---High Court partially allowed appeal and directed one of the defendants not to alienate 2/3rd share of the disputed property till disposal of the suit, however he could sell his undivided 1/3rd share of the disputed property---Order accordingly.

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

----S. 172(2)(xviii)---Contention of the party that suit for partition of agricultural land was not maintainable in the civil court was erroneous as under S.172(2)(xviii) of the Land Revenue Act, 1967, a suit for partition where the question of title was involved, was maintainable in the civil court---High Court repelled contention and partially allowed appeal with direction to the party not to alienate the disputed land till the disposal of the suit, however the party could sell his undivided 1/3rd share of the disputed property.

Taqi Ahmad Khan for Appellant.

Imtiaz Ahmad for Respondents Nos.1 and 2.

Ijaz Ahmad Chidhar for Respondents Nos.3 and 4.

Date of hearing: 25th November, 2010.

2011 C L C 780

[Lahore]

Before Ijaz Ahmad, J

MAJID ASGHAR----Petitioner

Versus

FAIZA RIAZ and others----Respondents

Writ Petition No.5157 of 2010, decided on 6th December, 2010.

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

----O. XXI, R.29---Constitution of Pakistan, Art.199---Constitutional petition---Matter relating to maintenance allowance of minor--Execution of decree pending suit between decree-holder and judgment­-debtor---Scope---Petitioner's objection petition was dismissed by Executing Court and said decision was maintained by revisional court---Contention raised by petitioner was that suit regarding determination of legitimacy of the minor (son) was, pending adjudication before the civil court, therefore, execution of decree for maintenance of minor should have been stayed by the Executing Court---Validity---Execution decree had been passed by Family Court, however; the said suit pending before Civil Judge against decree-holder, could not be said to be a suit pending before the same court which had passed the decree---Decree for maintenance allowance had been passed in favour of minor and execution of said decree in the remote future would be of no avail to him if he had grown up, as an uneducated, under-nourished and ill-groomed person, however; unless decided otherwise, the presumption was that the minor was the legitimate child of the petitioner---Petitioner had no claim to be adjusted against the maintenance allowance decreed in favour of the minor---Constitutional petition' was dismissed by High Court in limine.

Sheikh Muhammad Shafique v. Humayun Kabir and 3 others 1981 CLC 1248 and Prudential Commercial Bank Ltd. through Attorneys v. West Pakistan Tanks Terminal (Pvt.) Ltd. and 5 others 2007 CLC 978 ref.

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

----O. XXI, R.29---Constitution of Pakistan, Art.199---Constitutional petition---Contention that the suit regarding determination of legitimacy of the minor (son) was pending adjudication before the Civil Judge, therefore, execution of decree for maintenance allowance passed by Judge Family Court should have been stayed by the Executing Court under O.XXI, R.29, C.P.C.---Validity---Provision of O.XXI, R.29, C.P.C. was meant to satisfy cross decrees passed under the ordinary law by civil courts---In the present case, suit was pending before the Civil Judge against the decree-holder (minor), could not be said to be a suit pending before the same court which had passed the decree---Constitutional petition was dismissed by High Court in limine.

Sheikh Muhammad Shafique v. Humayun Kabir and 3 others 1981 CLC 1248 and Prudential Commercial Bank Ltd. through Attorneys v. West Pakistan Tanks Terminal (Pvt.) Ltd. and 5 others 2007 CLC 978 ref.

Attique-ur-Rehman Siddiqui for Petitioner.

2011CLC793

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SADIQ----Petitioner

Versus

MUHAMMAD FAROOQ and 9 others----Respondents

Civil Revision No.997-D of 1998, heard on 28th October, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration---Plaintiff filed a suit for declaration along with permanent injunction on the ground that he was owner in possession of the disputed property along with stairs and the defendants be restrained from interfering into the stairs of the said property permanently---Defendants contested suit on the ground that original owner of the disputed property had executed an agreement of association with them and on the basis of said agreement the defendants had became joint-owners of the disputed property and the alleged sale-deed by plaintiff was illegal---Trial Court dismissed suit of the plaintiff---Appellate Court on appeal, allowed the same and reversed the judgment and decree of the Trial Court---Validity---Record revealed that plaintiff was sole owner of stairs because he had purchased said stairs through registered sale-deed and was in possession of the same which sale-deed was never challenged, however; if plaintiff had allowed defendants to use stairs in approach their floor at any occasion, such did not create a right of easement in favour of defendants---Agreements of association had confirmed that the sale-deed was a legal document which was never cancelled or declared as void document by any court of law---High Court allowed revision petition and set aside the judgment and decree passed by Appellate Court and restored the one passed by Trial Court.

Muhammad Ilyas Khan for Petitioner.

Mian Ghulam Rasool for Respondents.

Date of hearing: 28th October, 2010.

2011 CLC 802

[Lahore]

Before Ijaz-ul-Ahsan, J

Sheikh FASIH-UD-DIN and another----Petitioners

Versus

Mst. HAJRA BIBI and 8 others----Respondents

Civil Revision No.1066 of 2009, decided on 6th August, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction on the ground that Administrator of Municipal Corporation had approved a scheme under the Punjab Local Government Ordinance, 1979 and in the said scheme plots belonging to the plaintiffs were taken over unilaterally without due process of law and without any compensation---Defendants contested suit on the ground that disputed property was an amenity plot which was approved by the competent Authority---Trial Court decreed suit of the plaintiffs---Appellate Court dismissed the appeal and upheld the judgment and decree passed by Trial Court---Validity---Master plan should have been prepared with survey of the local area on the basis of which necessary orders could have been passed after hearing the affected parties---Defendants had failed to prove that there was any notification or any other legal document to show that a colony was legally sanctioned and the impugned order passed in the year 1994 was passed after fulfilling all legal and statutory formalities---Nothing was on record by way of documentary evidence that might even remotely suggest that the disputed property was ever lawfully earmarked as an amenity plot or an open space---No misreading or non-reading of evidence had been pointed out---Petition was dismissed by High Court.

Ali Baqar Najfi for Petitioners.

Respondent No.4 in person.

2011 CLC 809

[Lahore]

Before Ch. Muhammad Tariq, J

MOAZAM ALAM KHAN----Petitioner

Versus

FULL BOARD OF REVENUE, PUNJAB, LAHORE and 4 others----Respondents

Writ Petition No.7212 of 2010, heard on 22nd November, 2010.

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

----S. 164---West Pakistan Land Revenue Rules, 1968, R.17---Constitution of Pakistan, Art.199---Constitutional petition--Appointment of lambardar---Petitioner had challenged the denial of his appointment as lambardar---Contention of petitioner was that he was eligible for the said post on the basis of hereditary claim as his father was a permanent lambardar---Record revealed that petitioner had abandoned his residence and had shifted from the relevant area and had sold his entire land and was no more landowner in the area---Contentions raised by petitioner had already been decided by the revenue hierarchy which could not be agitated in the constitutional jurisdiction of High Court---Constitutional petition was dismissed by High Court.

PLD 1966 (W.P.) Lah. 53; 1989 SCMR 614 and 1988 SCMR 484 ref.

(b) West Pakistan Land Revenue Rules, 1968---

----R. 17---Appointment of lambardar---Rule of primogeniture was against the Injunctions of Islam.

Malik Ghulam Siddiq Awan for Petitioner.

Sh. Naveed Sheryar for Respondent No.3.

Rana Shamshad Khan, Asst. A.-G. Punjab for the State.

Date of hearing: 22nd November, 2010.

2011 CLC 812

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

GUL MUHAMMAD and 2 others----Petitioners

Versus

ALI MUHAMMAD and 48 others----Respondents

Civil Revision No.2161 of 2002, decided on 15th September, 2010.

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

----O. XLI, Rr.27 & 28---Additional evidence, production of---Application for---Petitioners had claimed that mutations referred in application for additional evidence were for the land which was not part of estate of the deceased and as such their land could not be made part of estate of deceased---Respondents had admitted that they had no claim against personal property of the petitioners---Application for additional evidence had become redundant---Judgment passed by High Court in the year 2003 held the field and petitioners if had any grievance they could approach the competent forum for redressal of their grievance---Application for production of additional evidence was disposed of accordingly.

(b) Islamic law---

----Inheritance---Legal heirs were entitled to the estate of deceased and in case any legal heir had purchased property independently that could not be made part of estate of the deceased.

Muhammad Hanif Niazi for Petitioners.

Tasawar Hussain Qureshi for Respondents.

2011 C L C 820

[Lahore]

Before Nasir Saeed Sheikh, J

SHAHZAD HUSSAIN----Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and 2 others-Respondents

Writ Petition No.8948 of 2010, decided on 24th December, 2010.

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

----S. 5, Sched., Ss.17A & 17B---Constitution of Pakistan, Art.199---Constitutional petition---Interpretation of Ss.17A & 17B of the West Pakistan Family Courts Act, 1964---Suit for recovery of maintenance of minor daughter---Trial Court passed the order awarding interim maintenance---Review application filed by defendant was dismissed by Trial Court and struck off defendant's right of defence and decreed the suit---Appellate Court dismissed appeal of defendant---Validity---Section 17A of the West Pakistan Family Courts Act, 1964 empowered the Family Court to strike off the defence of defendant and pass a final decree if he failed to comply with the order of interim maintenance---Power to strike off the defence and decree the suit formed part of discretionary power of the court---Principles---Family Court did not exercise the power to pass the decree judiciously and decreed the suit in mechanical manner---Judgment and decree passed by the Family Court were set aside---Constitutional petition was allowed.

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

----S. 17A---Scope, nature and application of S.17A of West Pakistan Family Courts Act, 1964---Power of court to strike off defence of defendant---Scope---Use of the term 'may' in S.17A of the West Pakistan Family Courts Act, 1964 suggested/reflected that the discretion had to be exercised judicially while striking off the defence of the defendant---Where defendant could explain the reason for not complying with the interim order of maintenance, Family Court was authorized to exercise discretionary power, that is why, the word 'shall' ,had not been used by the legislature---Where wilful default in complying with interim maintenance order by defendant was established, the court could pass an order of interim maintenance and pass a final decree against such defendant---Process of passing a final decree under S.17A of the West Pakistan Family Courts Act, 1964 could not be accomplished by a Family Court through passing a mechanical final decree---Adoption of mechanical process was contrary to the provisions of S.17A of the West Pakistan Family Courts Act, 1964 rendering the provision of S.17B of the Act redundant by negating the intention of the legislature.

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

----S. 17B---Scope and application of S.17B, West Pakistan Family Courts Act, 1964---Section 17B empowered the Family Court to issue commission, examine any person, make a local investigation and to inspect any property or document---Section 17B of the West Pakistan Family Courts Act, 1964 was to enable the court to hold inquiry into financial resources of the father, needs of the spouse or minor fore determining the rate of maintenance where the court had to exercise its discretion judicially in order to pass a final decree granting maintenance---Section 17B facilitated the process of determining the rate of maintenance by the Family Court while exercising its discretion.

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

----S. 2(2)---Decree---Meaning---Decree was a judicial act which involved adjudication---Process of passing a decree involved pronouncement of final judgment in the matter by the court---Word 'decree' meant an order by one in authority; a judicial decision; an edict in law.

(e) Words and phrases---

----"Adjudication"---Definition---Adjudication refers to judicial determination of a matter in controversy.

Arif Sana Bajwa v. Additional District Judge (Mushtaq Ahmad Tarar), Lahore and others 2004 MLD 794; Ch. Zafar Ullah Khan and 6 others v. Pakistan through Secretary, Ministry of Defence Government of Pakistan, Islamabad and 5 others and Ghulam Muhammad v. Barkat Ali and 4 others PLD 1975 SC 15; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Messrs Union Bank Limited v. Messrs Silver Oil Mills Limited and others 2003 SCMR 116; Messrs Faridsons Ltd. Karachi, and 2. Messrs Friederike Ltd. Karachi v. Government of Pakistan through its Secretary, Ministry of Commerce Karachi PLD 1961 SC 537; Bahadur Khan v. Muhammad Yousaf 1992 SCMR 2117 and Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Limited Rawalpindi PLD 1991 SC 14 fol.

Pakistan Lawyers Forum (Registered) through its President v. Federation of Pakistan through Secretary Ministry of Law and Justice, Human Rights, Islamabad and 2 others PLD 2005 Lah. 107; Nasrullah and another v. Haji Usman Ghani 2002 CLC 1925 and Amarsangji Dungarji Jhala v. Deepsangji Ravabhai Jhala AIR 1925 Bombay 241 rel.

Ghulam Ali Raza for Petitioner.

Shakil Ahmad for Respondent No.2.

2011 CLC 832

[Lahore]

Before Rauf Ahmad Sheikh, J

SHAUKAT MEHMOOD----Petitioner

Versus

Prof. MUHAMMAD YASEEN and others----Respondents

Writ Petition No.5128 of 2010, decided on 14th January, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 8, 9(b), 21 & 22(6)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Scope---Special Judge, Rent passed ejectment order---Appellate Court dismissed appeal of tenant---Validity---Impugned order was passed against tenant after serving and providing him opportunity of being heard---Default in payment of rent was not denied by the tenant who had been enjoying the occupation of the premises without making any payment to the landlord contumaciously violating terms of the tenancy, so he was a 'defaulter'-Period of tenancy had expired--Ejectment orders passed by courts below did not suffer from any illegality or infirmity---Section 8 of the Punjab Rented Premises Act, 2009 provided a cushion of two years from its enforcement on 17-11-2009 to existing tenancies against fine for not bringing such tenancies in conformity with the provisions of the Punjab Rented Premises Act, 2009---Payment of fine was a matter between the State and the citizen---Where law allowed a concession to the citizens, they were entitled to benefit from such concession---Penalty under S.9 of the Punjab Rented Premises Act, 2009 could not be levied, therefore, before expiry of two years from the enforcement of the Punjab Rented Premises Act, 2009, i.e. before 17-11-2011---Ejectment petition could not be rejected on the ground of non-registration of existing tenancies before 17-11-2011---Constitutional petition was dismissed for being without merits.

PLD 2009 Lah. 469 distinguished.

Muhammad Ilyas Sheikh for Petitioner.

Assad Raza Janjua for Respondents.

2011 C L C 835

[Lahore]

Before Ijaz Ahmad, J

NAWAZISH ALI KHAN----Petitioner

Versus

ZILA COUNCIL, RAWALPINDI and others----Respondents

Writ Petition No.737 of 2000, decided on 14th December, 2010.

Punjab Local Government Ordinance (VI of 1979)--

----S. 138---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner sought return of Rs. 1, 20, 50, 000 paid by him to the Zila Council as consideration for collecting the tax on excavation of stones, Bujri, sand and earth etc. contending that the Zila Council auctioned the right to collect the excavation tax despite having knowledge of the abolition of said tax by the Provincial Government---Validity---Under S.138 of the Punjab Local Government Ordinance, 1979, the Zila Council could impose, and collect the tax or enter into a contract for collection of the tax---Provincial Government having already abolished the excavation tax, Zila Council could no more auction the right to collect the said tax---Petitioner was an equal subscriber to the wrongful act---Payment of subsequent instalments by petitioner in addition to the 10 per cent auction money proved that he had been collecting tax from the people in collusion with the Zila Council---Both petitioner and the Zila Council deserved exemplary and deterrent treatment---Petition was dismissed, along with imposition of fine of Rs.20,000 to be paid by the petitioner.

Muhammad Ansar Awan for Petitioner.

Rashid Hafeez A.A.-G. for Respondents.

2011 C L C 837

[Lahore]

Before Rauf Ahmad Sheikh and Ch. Muhammad Tariq, JJ

NADEEM KAMRAN and another----Appellants

Versus

WASEEM AKHTAR TAREEN----Respondent

Regular First Appeal No.325 of 2005, heard on 30th November, 2010.

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

----O. XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.4---Recovery suit---"Promissory note"---Essentials---Trial Court decreed the suit---Defendants contended that, promissory note was executed by them as security and not for payment, therefore, matter pertained to rendition of accounts and suit under O.XXXVI, C.P.C. was not maintainable---Validity---For a document to become a 'promisory note', four conditions were necessary, namely, an unconditional undertaking to pay; sum of money should be certain; the payment should be to, or to the order of a certain person, or to the bearer of the instrument and the maker should sign the document---Defendant's contention that they had not received the amount in cash so the 'promissory' note in question was not valid document and it was not correct that as a promissory note was merely a promise to pay a certain amount at a certain time---Promissory note in question was a valid 'promissory note' as defined by S.4 of the Negotiable Instruments Act, 1881---Defendants had admitted to have received the stock and made the part payment of the same----Defendants failed to point out any illegality in the impugned judgment or misreading of evidence---Appeal was dismissed in circumstances.

(b) Negotiable Instruments Act (XXVI of 1881)---

---S. 4---Constituents of a promissory note---For a document to become a promissory note, four conditions were necessary, namely, (i) an unconditional undertaking to pay (ii) sum of money should be certain (iii) the payment should be to, or to the order of a certain person, or to the bearer of the instrument (iv) the maker should sign the document.

Ch. Nazir Ahmad Kamboh for Appellants.

Sajid Latif Hanjra for Respondents.

Date of hearing: 30th November, 2010.

2011 C L C 841

[Lahore]

Before Ch. Muhammad Tariq, J

CHAIRMAN, WAPDA and another---Appellants

Versus

Messrs SYED BHAIS (PVT.) LTD. and another----Respondents

First Appeal from Order No.32 of 1993, heard on 7th December, 2010.

Arbitration Act (X of 1940)---

----Ss. 30, 33, 13, 15, 21 & 22---Reference to arbitrator---Powers of court---Scope---Trial Court dismissed appellant/defendant's objection petition against award of the arbitrator---Appellant contended that the Trial Court could not reject the petition without framing the issues and providing them opportunity to lead evidence---Validity---Object of settlement of disputes through arbitration was to bypass the lengthy procedure involved in civil cases---Arbitration was a domestic tribunal controlled by chosen representatives of parties to do complete justice expeditiously without technicalities of procedural law---Trial Court did not prevent the parties from leading evidence, therefore, omission to frame issues was inconsequential---Court was not bound to frame issues and record evidence in all circumstances for decision of the suit---Function of court in arbitration cases was, principally, supervisory in nature under C.P.C.---Court had to give reasonable intendment in favour of the award leaning towards upholding rather than vitiating the same---Court would neither act as court of appeal nor override the award through its own judgment by scrutinizing the award to discover errors for the purpose of setting aside the same---Allegations of misconduct against the arbitrator were vague in nature--Arbitrator followed the procedure and answered all the pleas and objections of the parties accordingly without violating any principle of natural justice---Findings of the arbitrator were within the parameters of the submissions made by the parties before him---Possibility of a different view by appreciating the facts with a different angle was no ground for setting aside the award---Arbitrator, being the final judge on question of law and fact, his decision merited weightage unless misconduct against' him stood proved---Not proper for the court to reappraise the evidence recorded by the arbitrator merely to discover errors or infirmities in the award---Appellant failed to point out any legal infirmity or lack of jurisdiction on the part of the arbitrator who dealt with the claims of parties minutely---Trial Court rightly dismissed the objection petition---Appeal was dismissed in circumstances.

PLD 2000 Lah. 157; 1989 CLC 2194 and 1988 CLC 430 distinguished.

1985 SCMR 116 and 1985 SCMR 597 ref.

Muhammad Ilyas Khan and Malik Asad for Appellants.

Mian Nisar Ahmed and Mian Bilal Ahmed for Respondent No. 1.

Date of hearing: 7th December, of 2010.

2011 C L C 848

[Lahore]

Before Shaukat Umar Pirzada, J

GHULAM MASHIH ALBERT GILL through Special attorney----Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue/Collector, Sahiwal and 2 others----Respondents

Civil Revision No.1173 of 2010, heard on 7th December, 2010.

Powers of Attorney Act (VIII of 1882)---

----S. 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Power of attorney---Not inheritable---Defendant challenged Trial Court's order of accepting plaintiff's application for interim injunction---Appellate Court dismissed defendant/petitioner's application to implead legal heirs of co-defendant who died during pendency of appeal---Deceased defendant was representing the principal institution as general attorney---Relationship between the deceased defendant and the principal/institution was that of a principal and an attorney and the same was governed by the provisions of Powers of Attorney Act, 1882---Principal, through an instrument of Powers of Attorney had conferred certain powers on the attorney to be exercised by him on behalf and in the name of the principal---Authority or attorney came to an end with the revocation thereof by the principal or accomplishment of the assignment or by death of either the principal or the attorney---Authority given by principal to the attorney stood terminated/revoked by the death of either party, therefore, authority given to the attorney was not inheritable---Legal heirs/representatives of deceased attorney could not be impleaded in the proceedings pursued by such attorney---Deceased attorney was merely a pro forma respondent in appeal therefore, no compulsion could be placed on his legal heirs---Defendant failed to point out any illegality, material irregularity, error of jurisdiction or non-reading of the record in the impugned order, which was passed in accordance with law---Revision was dismissed in circumstances.

1999 CLC 501 and 1985 MLD 549 rel.

Sagheer Ahmed Bhatti for Petitioner.

Zafarullah Khan Khakwani, A.A.-G.

Ashtar Ausaf Ali Khan for Respondent No.2.

Date of hearing: 7th December, 2010.

2011 C L C 860

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

EJAZ AHMAD----Appellant

Versus

NAEEM AHMAD and another----Respondents

F.A.O. No.237 of 2009, heard on 29th July, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rt. 1 & 2---Specific Relief Act (I of 1877), S.12---Grant of temporary injunction---Conditions---Proof---Plaintiff filed a suit for specific performance of an agreement against the defendant along with an application under O.XXXIX, Rr.1 & 2, C.P.C. in respect of the disputed land---Trial Court allowed application filed by the plaintiff and temporary injunction was granted---Defendants contended that three conditions namely, prima facie case, balance of convenience and irreparable loss had not been fulfilled while granting application for temporary injunction and the same had only been granted on the basis of the disputed agreement---Parties were closely related inter se being brothers and the agreement to sell had been executed in favour of one of the brothers and the same had been admitted by one of the brothers by filing conceding written statement wherein the plaintiff was stated to have made a payment of Rupees two crores and was admittedly in possession of the suit-land and reliance was placed upon Naqal Khasra Girdawari and the same had been discussed by Trial Court while taking into consideration the existence of Iqrarnama which was signed by all the parties as well as witnesses of the transaction---Plaintiff, in circumstances, had a prima facie case as well as balance of convenience and irreparable loss in his favour---Appeal filed by defendants was dismissed by High Court.

Sahibzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 'SC 139 and Puri Terminal Ltd. Karachi v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092 ref.

Mian Nisar Ahmad for Appellant.

Munir Hussain Bhatti and Zaheer-ud-Din Babar for Respondents.

Date of hearing: 29th July, 2009.

2011 CLC 863

[Lahore]

Before Nasir Saeed Sheikh, J

Messrs MUHAMMAD SIDDIQUE CHAUDHRY AND COMPANY through Managing Partner-Petitioner

Versus

HIGHER EDUCATION COMMISSION through Project Director----Respondent

Writ Petition No.24720 of 2010, decided on 25th November, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Petitioner sought release of security amount deposited with authorities in respect of contract between the parties---Validity---Constitutional petition was not competent against a letter of legal advisor of Government functionary---Petitioner himself invoked arbitration clause of the contract under which arbitration proceeding were pending---Legal Advisor of authorities had informed the petitioner that he could claim the security amount after withdrawing the arbitration proceedings---Petition was dismissed in limine for not being entertainable under constitutional jurisdiction of High Court.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

Riaz Karim Qureshi for Petitioner.

2011 C L C 876

[Lahore]

Before Nasir Saeed Sheikh, J

Miss AMY J. KING and another----Petitioners

Versus

KHALID AZIZ and 23 others----Respondents

Civil Revision No.2499 of 2003, decided on 24th January, 2011.

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

----S. 12---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for possession through specific performance---Trial Court closed plaintiff's right to produce evidence and dismissed the suit---Appellate Court dismissed appeal---Validity---Court under S.115, C.P.C., could look into enforcement of an agreement sought to be performed through the suit . for specific performance---Trial Court allowed sufficient opportunities to plaintiffs to produce their evidence---Plaintiffs were not in possession of any portion of suit land---Facts narrated in the plaint did not raise any possibility of enforcement of the agreement in favour of plaintiffs, therefore, remanding the case and forcing the parties to again start the proceedings would not be just and appropriate---Revision was dismissed in circumstances.

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

---S. 175---Specific Relief Act (I of 1877), S.12---Revisional jurisdiction---Scope---Court, in exercise of jurisdiction under S.115, C.P.C., could look into enforcement of an agreement sought to be performed through the suit for specific performance.

Javaid Akhtar Nawaz v. Mehr Kabir 1990 CLC 1122 distinguished.

Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109; Mst. Ghulam Hamid v. Kh. Abdul Rehman 2010 SCMR 334 and Burmah Eastern Ltd. v. Burmah Eastern Employees, Union and others PLD 1967 Dacca 190 ref.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 and Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673 fol.

Ch. Ali Muhammad for Petitioners.

Ch. Mushtaq Ahmad Khan and Abid Hassan Minto for Respondents.

Date of hearing: 18th January, 2011.

2011 C L C 893

[Lahore]

Before Ch. Muhammad Tariq, J

NAVEED KHAN----Petitioner

Versus

HIGHER EDUCATION COMMISSION through Chairman and 2 others----Respondents

Writ Petition No.18795 of 2010, heard on 25th October, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioner filed constitutional petition seeking directions against authorities on the ground that private respondent, in connivance with the functionaries/authorities claimed to be Ph.D. degree holder, while her thesis suffered from serious plagiarism and had not yet been approved in accordance with law and rules framed thereunder---Petitioner further prayed that appropriate proceedings/departmental and through initiation of criminal proceedings of fraud and forgery might also be directed to be initiated against the private respondent---Contention raised by Ph.D. degree holder was that the petitioner had no nexus or relation with her and had been acting on the instance of someone else and prayed for dismissal of constitutional petition with costs---Petitioner, on questions by High Court, submitted that he was employee of Infra Services Intelligence (ISI) and at present, he was working for NATO in the neighbouring country; that he did not know the Ph.D. degree holder personally as to where she resided; that he was not even aware of the course prescribed for Ph.D. or about the thesis prepared by the Ph.D. degree holder and that he did not pay any tax---Petitioner had produced his office Identity Card which showed that he was a mere technician---Petitioner had not mentioned his address on his constitutional petition---Petitioner, therefore, had no nexus with the Ph.D. degree holder and the constitutional petition had been filed on the instigation of someone else for some ulterior motives---Effect---High Court dismissed constitutional petition with costs of Rs.50,000 (rupees fifty thousand only) with direction to the petitioner to deposit the amount with the Deputy Registrar (Judicial) of High Court against a valid receipt within a fortnight; however in case of non-deposit of the costs within a fortnight, Deputy Registrar (Judicial) was directed to send a copy of the judgment to the District Officer (Revenue)/Collector for recovery of costs of Rs.50,000 from the petitioner as arrears of land revenue by adopting all coercive methods if so needed---High Court further directed that a copy of judgment should also be sent to the Inspector-General of Police along with original Identity Card of the petitioner for further inquiry against him with direction ,to submit report of his inquiry/proceedings to the Deputy Registrar (Judicial) within four weeks positively for perusal of the High Court.

Ahmed Waheed Khan for Petitioner.

Ali Masud Hayat for Respondent No.2.

Ijaz Ahmad Khan for Respondent No.3.

Date of hearing: 25th October, 2010.

2011 C L C 905

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ARIF----Petitioner

Versus

FESCO through Chairman FESCO, Faisalabad and 5 others----Respondents

Writ Petition No.12249 of 2010, decided on 1st December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Res judicata, principle of--Applicability---Electricity Company rejected petitioner's application for new electricity connection and meter---Validity---Petitioner concealed the dismissal of his suit and appeal by courts below---Instead of fulfilling the requirements for installation of connection undertaken by him through affidavit, petitioner filed present constitutional petition--Grievance of petitioner having already been decided by civil court, could not be agitated in constitutional jurisdiction by concealing relevant facts under the principle of res judicata---Question impliedly or expressly raised before civil court previously could not be re-agitated in constitutional petition---Similarly a question or controversy decided by High Court in constitutional jurisdiction could not be raised subsequently in a civil court---Constitutional petition was dismissed for being without merit.

Qamar Sajjad for Petitioner.

Munawar Iqbal Duggal, Legal Advisor for FESCO.

2011 C L C 912

[Lahore]

Before Sagheer Ahmad Qadri, J

JAHANGIR KHAN----Petitioner

Versus

SAID FAREEN----Respondent

Civil Revision No.208 of 2003, heard on 12th January, 2011.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts.2(d), 70, 71, 72, 73 & 129(f)(g)---General Clauses Act (X of 1897), S.27---Suit for pre­emption---Performance of Talbs---Proof- Talb-e-Muwathibat was the starting point for claiming right of pre-emption--Unless Talb-e-Muwathibat was proved, performance of Talb-e-Ishhad could not be claimed---Factum of receiving knowledge of sale by a person was a fact as defined under Art.2(d) of the Qanun-e-Shahadat, 1984---All facts except contents of a document could be proved by oral evidence under Art.70 of the Qanun-e-Shahadat, 1984---Article 71 of the Qanun-e-Shahadat, 1984 provided that oral evidence must be direct and if such evidence "refers to a fact which could be seen, it must be the evidence of a witness who says he saw it and if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it"---Person from whom plaintiff received knowledge of sale was not examined---Under Art.129(g) of the Qanun-e-Shahadat, 1984 adverse inference could be drawn from non-examination of said person that he might not have supported the plaintiff---Courts below rightly found that performance of Talb-e-Muwathibat was not performed as said person/informer. was not examined---Denial of notice of Talb-e-Ishhad by defendant placed burden of proving the same on plaintiff---Section 13(3) of the Punjab Pre-emption Act, 1991 specifically provided for issuance of notice of Talb-e-Ishhad with emphasis on "under registered cover acknowledgment due" to ensure delivery of such notice to the vendee---Under Art.129 of Qanun-e-Shahadat, 1984, presumption was attached to common course of business---Where a letter was posted, such letter would be presumed to have been delivered to the intended person following, common course of business but such presumption was rebuttable---Plaintiff was bound to follow the procedure specifically provided by S.13(3) of the Punjab Pre-emption Act, 1991 for issuing notice of Talb-e-Ishhad---When law required a thing to have been done in a particular manner such thing must have been done in that manner---Plaintiff did not examine any official of the Postal Department or the postman nor acknowledgment due receipt was put on record to show either its delivery to defendant or his refusal to receive the notice---Courts below correctly decided that plaintiff failed to perform the Talbs---Interference in exercise of revisional jurisdiction by High Court was not warranted---Revision was dismissed.

Muhammad Aslam Parvez v. Mst. Waheeda Anwar and others 2004 MLD 1682 fol.

State v. Zulfiqar Ali Bhutto PLD 1987 Lah. 523; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Ahsan Elahi v. Malik Nasrullah 1994 CLC 1297; Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others PLD 2001 Lah. 194; Amin-ud-Din v. Mst. Zarina 2003 CLC 1775; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Muhammad Yar v. Muhammad Arif and 6 others 2006 YLR 2995; Akhtar Nawaz and others v. Muhammad Nazir and others 2005 YLR 77 and Muhammad Siddique v. Muhammad Shard and others 2005 SCMR 1231 ref.

Sh. Zameer Hussain for Petitioner.

Malik Shehzad Ahmad Khan for Respondent.

Date of hearing: 12th January, 2011.

2011 CLC 929

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ARIF and others----Petitioners

Versus

FEROZ KHAN and others----Respondents

Civil Revisions Nos.624 and 625-D of 2001, heard on 20th December, 2010.

(a) Islamic law---

----Hiba-bil-ewaz---Trial Court decreed the suit---Appellate Court accepted appeal filed by defendant and dismissed the suit---Plaintiffs contended that they were co-sharers in the joint khata and defendants were in possession of the land in excess of their entitlement ands that non-delivery of possession in Hiba-bil-ewaz' was not a valid ground for non-suiting them---Validity---Defendant madeHiba-bil-ewaz' in favour of plaintiff for consideration and such hibba' was equal to sale in the eyes of law---Copy of the sale deed showed that defendant had put his signatures on it--Non-delivery of undivided share in property would not renderHibba-bil-ewaz' invalid---Trial Court appreciated the evidence properly and arrived at just conclusions--Appellate Court having committed material irregularity revision was accepted and impugned judgment and decree were set aside.

Principles of the Muhammadan Law by D.F. Mulla para.168 ref.

(b) Islamic law---

----Gift---Hibba-bil-ewaz'---Nature---Hibba-bil-ewaz' was equal to sale in the eyes of law---Non-delivery of undivided share in property would not render said `hibba' invalid.

Mst. Willayat Jan and another v. Muhammad Sharif and another 1985 SCMR 1131 fol.

1996 CLC 1525 and 1980 CLC 1216 ref.

Malik Muhammad Kabir for Petitioners.

Saeed Mahmood for Respondents.

Date of hearing: 20th December, 2010.

2011 C L C 939

[Lahore]

Before Ijaz Ahmad and Sagheer Ahmad Qadri, JJ

MUHAMMAD YOUSAF----Applicant

Versus

KAMRAN KHAN----Respondent

Review Application No.3-C of 1999, decided on 1st December, 2010.

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

----S. 6---Civil Procedure Code (V of 1908), S.114---Review---Suit for pre-emption---Trial Court decreed the suit---Appellate Court dismissed the suit holding that defendant was tenant on the suit land---Second appeal filed by plaintiff was dismissed by the High Court---Plaintiff filed review petition contending that the Appellate Court misread the evidence produced by defendant---Validity---Plaintiff, through review petition, sought reappraisal and deeper appreciation of evidence which had already been done by the court---Scope of review being limited, review application could not be entertained where attempt to re-argue the main case or reappraise the same material had been made through. such application---Error pointed out through review application must have material bearing upon the fate of the case---Plaintiff, in the present case, could not point out any patent error on the face of the record-Review application was dismissed.

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

----S. 114---Review---Scope---Scope of review was limited---Review application could not be entertained where attempt to re-argue the main case or reappraise the same material had been made through such application---Error pointed out in review application must have material bearing upon the fate of the case.

Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2004 Lah. 145 and Water and Power Development Authority through Chairman WAPDA Lahore and 6 others v. Khalid Pervaiz PLD 2006 Lah. 611 rel.

S. Sharif Ahmed Hashmi v. Chairman, Screening Committee Lahore and another 1981 SCMR 711 and Abdul Rauf and others v. Qutab Khan and others 2006 SCMR 1574 fol.

M. Munir Paracha for Petitioner.

Malik Qamar Afzal for Respondent.

2011 CLC 950

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. TAHIRA TAJ----Petitioner

Versus

HAKIM SHAH----Respondent

Civil Revision No.1010 of 2008, heard on 1st February, 2011.

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

----O. XXXVII, Rr.2, 4 & O. IX, R.13---Limitation Act (IX of 1908), Art.181---Recovery suit---Application for setting aside ex parte decree---Trial Court dismissed defendants' application for leave to defend for non prosecution and decreed the suit against him---Defendant's application for setting aside the ex parte decree was also dismissed---Validity---Plaintiff averred that defendant had purchased TV sets from him and issued in his favour a cheque which was dishonoured leading to registration of F.I.R. against defendant---Averments of plaint and that of F.I.R. differed from each other---Both said documents were available on the court file and court was duty bound to consider the same while passing the ex parte decree---Defendant had specifically objected to illegality of business of money lending carried out by plaintiff without any licence---Trial Court should have considered that no one except the financial institutions or companies authorized by State Bank of Pakistan could do the business of money lending---Trial Court was bound to ascertain whether the illegal lending could be recovered through court---Court being custodian of the right of both the parties, could not ignore facts of the case even in ex parte proceedings---Court could not pass a decree for damages without finding out the loss suffered by the claimant---Application under the special procedure for setting aside the decree even on merit was maintainable under O.XXXVII, R.4, C.P.C. where applicant had succeeded to prove special circumstances for setting aside the decree---Application under O.XXXVII, R.4, C.P.C. was covered by Art.181 of the Limitation Act, 1908 which provided for limitation of three years for such application---Trial Court failed to consider that the plaintiffs' claim was based on money lending without permission by the competent authority---Defendant successfully made out case of special circumstances under O. XXXVII, R.4, C.P.C.---Revision was allowed--Impugned ex parte decree was set aside and case was remanded to Trial Court for decision on defendant's application in accordance with law.

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

----O. XXXVII, R.4---Application for setting aside decree---Maintainability---Application under special procedure for setting aside the decree even on merit was maintainable under O.XXXVII, R.4, C.P.C. where applicant had succeeded in proving special circumstances.?

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

----O. XXXVII, R. 4---Limitation Act (IX of 1908), Art.181---Application to set aside decree---Limitation---Application under O.XXXVII, R.4, C.P.C. was covered by Art.181 of the Limitation Act, 1908 which provided limitation of three years for such application. ?

Zubair Afzal Rana for Petitioner.

Malik Muhammad Nadeem for Respondent.

Date of hearing: 1st. February, 2011.

2011 C L C 961

[Lahore]

Before Mian Shahid Iqbal, J

MUHAMMAD SALEEM----Appellant

Versus

TAHIR ALI QURESHI----Respondent

S.A.O. No.19 of 2010, decided on 13th January, 2011.

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

----S. 13---Specific Relief Act (I of 1877), S.12---Ejectment petition---Trial Court accepted the petition--Appellate Court dismissed appeal of tenant---Tenant denied relationship of landlord and tenant on the basis of agreement to sell with legal heirs of the previous owner in respect of which suit for specific performance was pending-Validity-Execution of agreement to sell did not bar ejectment petition---Tenant did not deny relationship of landlord and tenant with the previous owner---Having purchased the demised property, present owner/landlord had stepped into the shoes of the previous landlord/owner---Courts below rightly held that the relationship of landlord and tenant existed---Appeal was dismissed in circumstances.

PLD 2009 SC 546 fol.

2005 CLC 1758 rel.

Syed Muhammad Hussain Shah Qadri for Appellant Respondent in person.

2011 CLC 969

[Lahore]

Before Ijaz Ahmad, J

BASHARAT ALI KHAN----Petitioner

Versus

MUHAMMAD AKBAR----Respondent

Civil Revision No.644 of 2005, heard on 11th January, 2011.

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

----S. 13---Suit for pre-emption---Talbs, a sine qua non---Trial Court dismissed the suit--Appellate Court accepted the appeal and decreed the suit---Validity---Plaintiff made Talb-e-Ishhad after lapse of three months despite having knowledge of the sale---Witnesses concocted a story and told lies about receipt of information of sale and making Talb-e-Muwathibat and Talb-e-Ishhad---Stance of plaintiff stood falsified---Statements of witnesses could not be relied---Plaintiff residing in the vicinity of suit-land, could have received the news of the sale immediately---Having failed to make `Talbs' which were a sine qua non for success in a suit for possession on the basis of pre-emption, plaintiff was not entitled to the impugned decree which was set aside---Judgment and decree of the Trial Court were upheld---Revision was accepted.

Muhammad Tariq and 4 others v. Asif Javed and another 2009 SCMR 240 ref.

Yar Muhammad Khan v. Bashir Ahmed PLD 2003 Pesh. 179 distinguished.

Sheikh Zameer Hussain for Petitioner.

Mian Inamul Haq for Respondent.

Date of hearing: 11th January, 2011.

2011 C L C 976

[Lahore]

Before Sagheer Ahmad Qadri, J

SHEIKHAN WALA CITIZEN COMMUNITY, KHANEWAL through Chairman ----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (COMMUNITY DEVELOPMENT) KHANEWAL and 2 others----Respondents

Writ Petition No.13897 of 2010, decided on 25th January, 2011.

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

----S. 193---Constitution of Pakistan, Art.199-Constitutional petition---Agreement between the parties showed that construction work was assigned to the petitioner/Community Board by District Government which was to be completed within stipulated period---Petitioner Board failed to complete the work within said period---Office bearers of Community Board (petitioner) had embezzled amount and on basis of said reported embezzlement, matter was forwarded to Anti-Corruption Establishment for registration of criminal case for investigation---Counsel for the petitioner Board had contended that Board being not "public servant" but being non-profitable organization, authorities were not authorized to take any action against the Board or any of its members---Counsel prayed that authorities be restrained from initiating any action/inquiry against the Board---Validity---Board, was registered with Community Development Department, which was the registration authority, in accordance with Punjab Local Government Ordinance, 2001---Board under S.193 of Punjab Local Government Ordinance, 2001, fell within the definition of `public servant' as provided under S.21 of Penal Code, 1860---High Court, in exercise of extraordinary constitutional jurisdiction could not restrain the authorities to take action, order investigation or inquiries, until and unless, it was found to have been done by a public functionary, without any jurisdiction or lawful authority.

Nida-e-Millat, Citizen Community Board, Multan through Chairman v. Director, Anti-Corruption Establishment, Multan Region, Multan and 8 others 2010 YLR 643 ref.

Rao Muhammad Arif Khan for Petitioner.

Mubashir Latif Gill, A.A.-G.

Maqsood Ahmad, District Officer, Social Welfare and M. Sarfraz Malik, Dy. Director. ACE.

2011 C L C 986

[Lahore]

Before Ijaz Ahmad and Sagheer Ahmed Qadri, JJ

ISLAMIC REPUBLIC OF PAKISTAN and others----Appellants

Versus

Haji SULTAN MEHMOOD through Legal Heir----Respondent

R.F.A. No.39 of 2000, decided on 23rd December, 2010.

Limitation Act (IX of 1908)---

----Arts. 116 & 149--Civil Procedure Code (V of 1908), O. XXXVII, R.2 & O. VII, R.11---Suit for recovery of money as compensation for breach of contract---Trial Court rejected the plaint on the ground of limitation---Validity---Suit was filed by plaintiff eleven years after the breach of the contract or accrual of cause of action whereas suit for compensation for breach of contract in writing, registered or unregistered, had to be instituted within six years---Present suit fell within the definition of a suit as given under Art.116 of the Limitation Act, 1908---Article 149 of the Limitation Act, 1908 being a residual Article, would not apply to the present case in presence of specific Article of Limitation Act, 1908 applicable to the suit---Suit was time-­barred-Trial Court rightly rejected the plaint---Appeal was dismissed in circumstances.

Union of India v. R.C. Jall of Indore and another and AIR 1958 Madhya Pradesh 425 and Government of Pakistan, Ministry of Defence, Rawalpindi through Station Commander (HQ) Sialkot v. Muhammad Bashir PLD 2005 Lah. 177 distinguished.

Babar Ali, Standing Counsel for Appellants.

Nemo for the Respondents.

Proceeded ex parte vide order dated 30-9-2010.

Date of hearing: 20th December, 2010.

2011 CLC 1040

[Lahore]

Before Ijaz Ahmed, J

Mst. REHANA REHMAN----Petitioner

Versus

FAMILY JUDGE and Others----Respondents

Writ Petitions Nos.5029 and 3946 of 2010, decided on 2nd March, 2011.

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

----S. 5 & Sched.---Pensions Act (XXIII of 1871), S.11---Civil Procedure Code (V of 1908), S.60(j)(g) & O.XXI---Pakistan Army Act (XXXIX of 1952), 5.171---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dowry articles and maintenance by wife and minors---Trial Court decreed the suit ex parte---Application for setting aside the ex parte decree was dismissed---Pension of defendant was attached due to discontinuance of payment of maintenance---Additional District Judge dismissed defendant's appeal---Trial Court recalled order of attachment of pension in that connection---Plaintiff contended that the Trial Court could not recall its order in view of dismissal of appeal against that order and pendency of the constitutional petition regarding the same matter before the High Court---Defendant contended that his pension could not be attached for execution of decree---Validity---Defendant having challenged the judgment and decree of the Appellate Court through constitutional petition, had no locus standi to submit applications before the executing court---Defendant having succeeded in obtaining the order of recalling the attachment of pension by concealing the pendency of the constitutional petition, could not be allowed to avail two remedies simultaneously---Remedy by way of filing a review petition was the creation of statute and the same did not vest in a court unless provided by law---Order of Trial Court recalling attachment was passed without jurisdiction---Legislature provided for various modes of execution of decree and allowed attachment of lands, houses, goods, money, bank-notes, cheques, bonds, sureties etc. but exemption was granted to certain belongings, necessary tools, dwelling houses including the stipends, gratuity and pension etc. from attachment under S.60(j)(g), C.P.C., S.171 of the Pakistan Army Act, 1952 and the Pensions Act, 1871---Decree-holder had a right to have the decree executed but the judgment-debtor had a right to save his pension from attachment etc. for satisfaction of any decree or order passed by any court---Constitutional petition of defendant was accepted to the extent of setting aside the order of attachment of pension--Executing Court was at liberty to adopt the measures permissible under the law and satisfy the decree according to the provisions of S.60 and O.XXI, C.P.C.

2008 PCr. LJ 782 ref.

Syed Zulfiqar Abbas Naqvi for Petitioner (in Writ Petition No.5029 of 2010 and for Respondent No.1 in Writ Petition No.3946 of 2010).

Mehmood Azam Awan and Sardar Muhammad Ishaque for Respondent No.2 (in Writ Petition No.5029 of 2010 and for Petitioner in Writ Petition'No.3946 of 2010).

2011 C L C 1070

[Lahore]

Before Syed Mansoor Ali Shah, J

AZIZ AHMAD MALIK----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another----Respondents

Writ Petition No.15055 of 2010, decided on 8th March, 2011.

Punjab Rented Premises Act (VII of 2009)---

----S. 8---Oral existing tenancy---Provision of S.8 of the Punjab Rented Premises Act, 2009 is applicable to oral existing tenancy only but not to written existing tenancy---Where the case pertained to oral existing tenancy, landlord was entitled to the benefit of the comfort period provided in S.8 of the Act.

Majid Khan through Special Attorney and 2 others v. Mst. Naseem Bibi and 9 others PLD 2010 Lah. 389 and Muhammad Usman and another v. Additional District Judge, Lahore and 2 others PLD 2010 Lab. 281 fol.

Messrs Wateen Telecom (Pvt.) Ltd. through Attorney v. Malik Abdul Ahad and 2 others PLD 2009 Lah. 429 distinguished.

Malik Noor Muhammad Awan for Petitioner with Petitioner in person.

Respondent No.2 in person.

2011 C L C 1117

[Lahore]

Before Ijaz-ul-Ahsan and Muhammad Farrukh Irfan Khan, JJ

Malik MUHAMMAD ASHRAF and 3 others----Appellants

Versus

NATIONAL HIGHWAY AUTHORITY and another----Respondents

Regular First Appeals Nos.296, 297 of 2010, 597 and 598 of 2009, decided on 13th December, 2010.

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

----S. 23---Acquisition of land---Compensation, determination of---Principles---Land in question was being used for commercial purposes and was fast developing as a residential area---Affected owners to be paid compensation keeping in view the value of the similar lands situated in the same locality and the future potentialities evident from the evidence brought on record and increased price of land between the period when notification under S.4 of Land Acquisition Act, 1894 was issued and the year when the award was announced.

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

----S. 23---Acquisition of land---Compensation, determination of---Factors to be considered---Reasonable amount of compensation---Price of the acquired property at the time of publication of notification under S.4, Land Acquisition Act, 1894 was only one factor---Other factors were equally important including future potentialities of acquired property, which became evident from any price escalation occurring between the period of publication of the notification and announcement of the award and any developments affecting the nature and value of the property that took place in the meantime---Court in terms of award, was not to focus on the price, but to adequately compensate the citizen, who had been forced, against his will to give up his property and in that regard factors mentioned in S.23, Land Acquisition Act, 1894 also had to be kept in mind---Principles illustrated.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 fol.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Chairman WAPDA and others v. Sarfraz Khan and another 2007 SCMR 1054; Mst. Amtul Haseen and another v. Land Acquisition Collector, Highway Department, Lahore and 3 others PLD 2009 Lah. 524; Murad Khan through his widow and others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Haji Abdul Wahid and others v. WAPDA and others 2005 CLC 1453; PLD 1992 FSC 398; 1993 SCMR 1700; 1993 CLC 179; 1992 CLC 267; PLD 1991 Lah. 337 and PLD 1990 Peshawar 83 and Chairman WAPDA and others v. Sarfraz Khan 2007 SCMR 1054 ref.

Imran Anjum Alvi for Appellants.

Jahanzeb Khan Bharwana for Respondents.

Date of hearing: 20th September, 2010.

2011 C L C 1154

[Lahore]

Before Nasir Saeed Sheikh, J

AMIR SOHAIL----Petitioner

Versus

T.M.A. CHAKWAL and others----Respondents

Writ Petition No.3490 of 2010, decided on 15th March, 2011.

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

----Ss. 146-D, 53(3) & 193, Eighth Sched., Cl.(8)---Constitution of Pakistan, Arts.199, 4 & 24---Constitutional petition---Petitioner challenged seizure of his generators by the Tehsil Municipal Administration---Authorities contended that petitioners installed the generators outside his shop which constituted encroachment---Validity--No orders of seizure or confiscation of the generators were brought on record by authorities---Notices issued to petitioner did not specifically mention that the installation of generators constituted encroachment---Authorities acted with absolute arbitrariness and sheer illegality in taking the generators forcibly---If petitioner had committed encroachment, he showed have been proceeded against in accordance with Cl.(8) of the Eighth Schedule to the Punjab Local Government Ordinance, 2001 which provided for charging of tickets---Authorities did not pass any order against the petitioner under S.146-D of the Punjab Local Government Ordinance, 2001---Members and servants of the Local Government, constituted under the provisions of the Punjab Local Government Ordinance, 2001, were public servants under S.193 of the Punjab Local Government Ordinance, 2001---Such members and servants were holders of public office and could not be allowed to proceed against citizens without adopting procedure provided by the Punjab Local Government Ordinance, 2001 and the Rules made thereunder---Show-cause notice was the minimum requirement for taking action against any citizen by a Public Officer---Generators were private property of the petitioner who was illegally deprived of the same---Under Art.4 of the Constitution every individual had to be dealt with in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person could be taken except in accordance with law--Article 24 of the Constitution specifically prohibited from depriving any person of his property save in accordance with law---Authorities were directed to hand over the generators to petitioner referring the matter to the Commission constituted under Punjab Local Government Ordinance, 2001 for taking strong action against the concerned officials---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 24---Scope of Art.24 of the Constitution---Article 24 of the Constitution specifically prohibited from depriving any person of his property save in accordance with law.

Asif Ali Malik for Petitioner.

Ch. Imran Hassan Ali for Respondents.

Razzaq A. Mirza, Addl. A.-G.

2011 C L C 1172

[Lahore]

Before Ch. Muhammad Tariq, J

PAKISTAN TELECOMMUNICATION EMPLOYEES TRUST----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Religious Affairs

Zakat and Usher Division----Respondent

Writ Petition No.119 of 2004, heard on 10th August, 2010.

Zakat and Usher Ordinance (XVIII of 1980)---

----S. 2(xxiii)(i)---Zakat (Collection and Refund) Rules, 1981, Chap. III---Societies Registration Act (XXI of 1860), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner, Pakistan Telecommunication Employees' Foundation, challenged deduction of Zakat by the orders of the Ministry of Religious Affairs---Validity---Petitioner Trust, being not registered as a charitable trust under Societies Registration Act, 1860 or as a company under the Companies Ordinance, 1984, could not be allowed the benefit of exemption from Zakat---Petitioner/Foundation was not covered by Chapter III of the Zakat (Collection and Refund) Rules, 1981---Section 2(xxiii) of Zakat and Usher Ordinance, 1980 did not exempt pension funds of the government entities and statutory corporations from payment of Zakat---No interference of the High Court was called for---Constitutional petition was dismissed.

Shakarganj Sugar Mills Limiteds' case Writ Petitions Nos.3354 and 3387 of 1996 distinguished.

Shahzada Mazhar for Petitioner.

Attique-ur-Rehman Kiani, Standing Counsel.

2011 C L C 1216

[Lahore]

Before Tariq Javaid, J

BAREEHA ZAINAB----Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES and others----Respondents

Writ Petition No.7848 of 2009, decided on 23rd April, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioner was denied admission to the M.B.,B.S. on the quota reserved for disabled persons while another candidate placed in a different category of the same disability was allowed admission---Validity---Opinion of successive Medical Boards did not show marked difference between the disability suffered by the petitioner and the said other candidate---Deficiency expressed in terms of 'near normal' and 'power loss present' conveyed almost the same meanings referring to the same function by different modes---Disability suffered by both the candidates appeared to be similar in nature---Petitioner was placed in category 'A' of the disability in order to deny her admission and benefit the said other candidate who was admitted to the M.B.,B.S.---Petition was allowed with direction to authorities to admit the petitioner to the M.B.,B.S. class

Nafeez Ahmad Ansari for Petitioner.

Javaid Saeed Pirzada, A.A.-G. for Respondents.

2011 C L C 1218

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD AKHTAR----Petitioner

Versus

Mst. SIANI----Respondent

Civil Revision No.D-468 of 1992, heard on 26th October, 2010.

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

----Ss. 58(a)(c) & 60---Limitation Act (IX of 1908), Art.148---Specific Relief Act (I of 1877), S.42---Suit for declaration---Mortgage by conditional sale---Scope---Plaintiff/mortgagee contended that defendant/mortgagor having failed to return the mortgage money, he had become owner of the mortgaged land---Validity---Mortgages of different kinds were governed by S.58 of the Transfer of Property Act, 1882---Under S.58(a) of the Transfer of Property Act, 1882, mortgage was the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability---Mortgage was transfer of interest in immovable property and was not transfer of ownership---Document of mortgage, in the present case, showed that the transaction was mortgaged by conditional sale as defined by clause (c) of S.58 of the Transfer of Property Act, 1882---Under S.60 of Transfer of Property Act, 1882 mortgagor had right to redeem the property any time if the principal money had become due provided that his/her right had not been extinguished by the act of parties and by decree of the court---Section 60 of Transfer of Property Act, 1882 affirmed the right of redemption in all mortgages and no clog could be put against the statutory right---Right of redemption available under S.60 of the Transfer of Property Act, 1882 could not be controlled by an agreement between the mortgagee and the mortgagor---Transaction between the parties was a mortgage by conditional sale and the right of redemption would continue even after the expiry of 6 months as mentioned in the mortgage deed---Mortgagor could redeem her property any time within the period of limitation prescribed in Art.148 of Limitation Act, 1908---Appellate Court dismissed the suit for declaration on the ground that the same was not maintainable on the basis of mortgage deed---Plaintiff/mortgagee had not become owner of the mortgaged land---Revision was dismissed.

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

----S. 60---Right of mortgagor to redeem---Nature and scope---Section 60 of the Transfer of Property Act, 1882 affirmed the right of redemption in all mortgages and no clog could be put against such statutory right---Right of redemption available under S.60 of the Transfer of Proper Act, 1882 could not be controlled by an agreement between the mortgagee and the mortgagor.

In Vernon v. Bethell (1762-1-Eden-113) ref.

Malik Abdul Khaliq for Petitioner.

Mazhar Jamil Qureshi for Respondent.

Date of hearing: 26th October, 2010.

2011 C L C 1235

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD MANZOOR through Legal Heirs and others ----Petitioners

Versus

PROVINCE OF PUNJAB through District Officer Revenue, Vehari and others----Respondents

Civil Revision No.644 of 2005, heard on 14th December, 2010.

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

----Ss. 30(2) & 36---Civil Procedure Code (V of 1908), O.VII, R.11---Acquisition of proprietory rights---Jurisdiction of civil court---Scope--Plaintiff challenged through civil suit order passed by Member, Board of Revenue, whereby conveyance deed in favour of plaintiff was set aside and matter was remanded to the District Officer, Revenue---Trial Court rejected the plaint holding that the civil court had no jurisdiction to adjudicate the matter---Validity---Where the order passed by an authority was within power of such authority, jurisdiction of civil court was ousted under S.36 of the Colonization of Government Lands (Punjab) Act, 1912---Under S.30(2) of the Act, Board of Revenue was competent to resume the land---Member, Board of Revenue had passed the order after hearing the parties and making due inquiry---Both the forums below correctly found that civil court had no jurisdiction under Ss.30 and 36 of the Colonization of Government Lands (Punjab) Act, 1912---Revision was dismissed.

PLD 1993 Lah. 114; 1993 MLD 1929; 2004 YLR 1175; 2001 SCMR 953; 2008 SCMR 521; PLD 1983 Lah. 294; 2003 CLC 1922; 1988 MLD 413; 1998 CLC 401; 2006 PTD 219 and 2000 YLR 2888 ref.

Mian Muhammad Akram for Petitioners.

Mirza Muhammad Saleem, Addl. A.-G. for Respondents Nos.1 and 2.

Ch. Abdul Ghani for Respondent No.3.

Date of hearing: 14th December, 2010.

2011 C L C 1251

[Lahore]

Before Syed Kazim Raza Shamsi, J

SHEHZAD JAVED----Petitioner

Versus

JAMSHAID AKHTAR and others----Respondents

Writ Petition No.5256 of 2011, decided on 19th May 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(b), 2(l), 15, 22 & 28---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Ejectment of tenant---Leave to defend by co-owner---Scope---During pendency of ejectment petition co-owner of premises was impleaded as respondent but his right of defence was closed by Rent Tribunal on the ground that no petition for leave to defend was filed by him---Plea raised by landlord was that constitutional petition was not maintainable against interlocutory order---Validity---Order of Rent Tribunal closing right to file leave to defend the petition had become final within the meaning of S.2(b) of Punjab Rented Premises Act, 2009, to the extent of co-owner---Although appeal could be preferred under S.28 of Punjab Rented Premises Act, 2009, by co-owner but that remedy of appeal was neither adequate nor efficacious, therefore, constitutional petition was maintainable before High Court---Rent Tribunal ignored the material fact that co-owner was claiming to be the landlord of tenant and both were having lease agreement---Co-owner could be joined as co-petitioner in ejectment matter---Co-owner could not be treated as co-tenant with tenant because he did not fulfil conditions of being tenant as enunciated in S.2(l) of Punjab Rented Premises Act, 2009, therefore, provisions of S.22 of Punjab Rented Premises Act, 2009, were not applicable, and he could not be directed to file leave to contest without there being its filing within ten days---Remedy of placing on record their protest or objections, Rent Tribunal might resort to general principles of civil law and required a written statement so that picture of other side could also be viewed for safely administering justice---Such remedy to co-owner was available in addition to any other remedy provided to him by law---Courts below had committed illegality in asking for leave application under S.22 of Punjab Rented Premises Act, 2009, from co-owner and thereafter penalizing him by closing his defence---High Court, in exercise of constitutional jurisdiction, set aside the orders passed by the courts below and case was remanded to Rent Tribunal for decision afresh after providing opportunity to co-owner to file written statement---Petition was allowed accordingly.

Ch. Muhammad Sadiq Sindhu for Petitioner.

2011 C L C 1292

[Lahore]

Before Asad Munir, J

ASGHAR ALI----Petitioner

Versus

Mst. AMTAL BIBI and 2 others----Respondents

Writ Petition No.4314 of 2011, decided on 11th March, 2011.

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

----S. 5 & Sched. Entry No. 9 of Part-I---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Gold ornaments, recovery of---Words "personal property and belongings of a wife"---Scope---Suit was filed by wife against her husband, for recovery of gold ornaments---Family Court dismissed the suit on the ground that matter was of civil nature---Lower Appellate Court allowed the appeal and decreed the suit in favour of wife---Plea raised by husband was that appeal before Lower Appellate Court was not competent as no court fee was affixed by wife---Validity---Family Court had jurisdiction under S.5 of West Pakistan Family Courts Act, 1964, to entertain, hear and adjudicate upon matters specified in Part-I of the Schedule to West Pakistan Family Courts Act, 1964, while the Schedule had specified "personal property and belongings of a wife" in respect of which a family suit could be brought---Witness for husband did not state that gold ornaments were with wife but stated in his examination-in-chief that he did not know in whose possession the gold ornaments were lying---Such testimony of husband's witness was crucial and tilted balance in favour of finding that gold ornaments were with husband---No illegality or irregularity was found in judgment and decree passed in favour of wife to call for interference of High Court in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Zafar Iqbal Chohan for Petitioner.

2011 C L C 1319

[Lahore]

Before Asad Munir, J

MUHAMMAD SHARIF----Petitioner

Versus

AZIZ BIBI and 6 others----Respondents

Writ Petition No.16424 of 2005, decided on 30th March, 2011.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.42 & 54--- Constitution of Pakistan Art.199---Constitutional petition---Suit for declaration and permanent injunction---Land jointly owned by donor with plaintiff in equal share---Gift of his half share in suit-land by donor in favour of his daughter---Plaintiff remaining in possession of gifted land challenged such gift to be invalid for want of delivery of possession to donee---Joint application by donor and donee for rejection of plaint---Refusal of Trial Court to reject plaint on ground that delivery of possession being a question of fact could not be resolved without evidence---Rejection of plaint by Revisional Court for not disclosing any cause of action or right to sue---Validity---During life time of donor, no person except donor had any right to challenge gift even if such person remained in possession of gifted land---Absence of delivery of possession would not invalidate gift as donor in written statement had fully supported gift in favour of his daughter---Plaintiff despite in possession of gifted land had no right or cause of action or locus standi to object or challenge such gift---Trial Court had refused to exercise jurisdiction under O.VII, R.11, C.P.C, to reject plaint for not disclosing cause of action---Impugned order of Revisional Court was within scope of its powers---High Court dismissed constitutional petition in circumstances.

Mst. Bilqees Begum v. Haji Ghulam Rasool 1994 CLC 2296; Messrs Sunley Developers (Private) Ltd. v. Messrs Umari Associate and 3 others 2009 CLC 708; Zakariya M. Fazil v. Messrs United Bank Limited Karachi 1997 CLC 705; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 5221 and Muhammad Hussain Munir and others v: Sikandar and others PLD 1974 SC 139 ref.

Fazal Ahmad v. Rakhi PLD 1958 Lah. 218; Muhammad Bukhsh and others v. Hosseni Bibi and others ILR 15 Cal. 684; Kali Das Mullick v. Kanhaya Lal Pundit and others ILR 11 Cal. 121; Mian Muhammad Akram and others v. Muhammad Rafi 1989 CLC 15; Atta Muhammad Khan and another v Lasbela Cement Limited 1999 CLC 1795; Mst. Bilqees Begum v. Haji Ghulam Rasool 1994 CLC 2296 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 rel.

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

----O. VII, R. 11---Rejection of plaint---Scope---Court for such purpose could consider even material outside plaint or produced in defence.

Nazir Ahmad v. Ghulam Mehdi 1988 SCMR 824 and Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878 rel.

Zakariya M. Fazil v. Messrs United Bank Limited Karachi 1997 CLC 705 distinguished.

Riaz Ahmad Kasuri for Petitioner.

Masood Akhtar Sheikh for Respondents.

2011 C L C 1342

[Lahore]

Before Ijaz ul Ahsan and Muhammad Farrukh Irfan Khan, JJ

LAND ACQUISITION COLLECTOR, and another----Appellants

Versus

Mst. IQBAL BEGUM through Legal heirs----Respondent

Regular First Appeal No.596 of 2009, decided on 13th December, 2010.

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

----Art. 133 -- Specific factual assertions made in examination-in-chief by a witness not cross-examined---Effect---Such assertions would be accepted.

A.E.G. Carapiet v. A.Y. Derderian" AIR 1961 Cal. 359; State v. Bhola Singh AIR 1969 Raj. 219; Mst. Noor-Nisa v. Abdus Salam and others PLD 1982 Pesh. 42; Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111; Kabool Khan v. Shamoon through Legal heirs and another 2001 YLR 51; Messrs Habib Bank Ltd. v Messrs Publix Industries Ltd. 1991 CLC 1907; Messrs Kausar and Co. v. Messrs Universal Insurance Co. (Pvt.) Ltd. 1991 MLD 1774; Muhammad Sadiq v. Federation of Pakistan through Chairman, Pakistan Railways Board 1991 MLD 1; Abdul Mannan and others v. Sikandar Khan 1992 CLC 505; Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 MLD 810; Muhammad Anwar v. Haji Muhammad Ismail and others 1992 MLD 860; Ramzan and 2 others v. Lara through Legal Heirs and another 2001 MLD 957 and Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

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

----Ss. 4 & 23---Value/price of acquired land, determination of---Scope---Relevant date for such determination would be the date on which notification under S. 4 of Land Acquisition Act, 1894 was issued.

Mt. Sukhraji Bhiy v. Calcutta State Transport Corporation AIR 1966 Cal. 620; State v. Bhola Singh AIR 1969 Rajasthan 219; Sachindranath Chatterjee v. Sm. Nilima Chatterjee AIR 1970 Cal. 38; Mst. Noor-Nisa v. Abdus Salam and others PLD 1982 Pesh. 42; Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111; Muhammad Sadiq v. Federation of Pakistan 1991 MLD 1; Abdul Mannan and others v. Sikandar Khan 1992 CLC 505; Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 MLD 810; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Mt. Shubratan v. Shabbir Ali and others AIR 1940 Oudh 268; Bajranglal Paddar v. Sitaram Kadia AIR (36) 1949 Cal. 467; Kansi Ram v. Jai Ram AIR 1956 Him Para-4; Muhammad Rafique v. Muhammad 1989 CLC 1318; Mst. Kamina and another v. Al-Amin Goods Transport Agency through Legal Representatives and 2 others 1992 SCMR 1715; AIR 1999 SC 1341; Muhammad Abdullah v. Yatim Khana Khalqia Sargodha through Manager and others 2004 SCMR 471; Province of Punjab through Collector Shcikhupura and others v. Akbar Ali and others 1990 SCMR 899; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870 and Muhammad Saeed and others v. Collector, Land Acquisition and others 2000 SCMR 470 ref.

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

----Art. 129(g)---Best evidence, non-production of---Effect---Adverse inference could be drawn against defaulting party.

Jahanzeb Khan Bharwana for Appellants.

Ch. Mushtaq Masood for Respondent.

Date of hearing: 16th September, 2010.

2011 C L C 1369

[Lahore]

Before Umar Ata Bandial and Asad Munir, JJ

RIAZ AHMAD----Appellant

Versus

MANZOOR AHMAD and others----Respondents

Intra-Court Appeal No.832 of 2009, decided on 12th April, 2011.

Illegal Dispossession Act (XI of 2005)---

----S. 4---Remedy under the Illegal Dispossession Act, 2005, is not confined to the case of land grabbers and land mafia---Such a remedy may also be available against a party in possession of a property that does not have its lawful ownership--Unless the contending parties are at odds in civil litigation regarding title of the disputed property, illegal acquisition of possession of disputed property is a matter that can be taken cognizance of even though no land grabbers or land mafia are involved.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Shahabuddin v. The State PLD 2010 SC 725 fol.

Zahoor Ahmad's case PLD 2007 Lah. 231 and Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 ref.

Mian Mahmud Ahmad Kasuri for Appellant.

Ch. Masood Ahmad Zafar for Respondent No.1.

2011 C L C 1430

[Lahore]

Before Ijaz ul Ahsan, J

HABIB BANK LIMITED through Authorized Attorneys----Plaintiff

Versus

AZAM MAJEED---Defendants

Civil Original Suit No. 191 of 2010, heard on 15th March, 2011.

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

----Ss. 13 & 14---Limitation Act (IX of 1908), Art. 117---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 29---Suit for recovery of Bank loan with interest on basis of foreign judgment and decree---Validity---Plaintiff-Bank having a Branch Office in foreign country was established and registered under laws of Pakistan---Defendant-guarantor was residing within jurisdiction of Banking Court---Relationship of customer and banker existed between parties as defendant stood guarantor for loan granted by Bank through its Branch Office in foreign country---Defendant after having been duly served had contested suit in foreign court, which granted him opportunity to defend himself through counsel---Foreign court of first instance consisting of three Judges on 26-11-2002 had passed judgment/decree against defendant after proper trial and examining all relevant documents and evidence produced by parties and found him liable for payment of suit amount---Foreign Appellate Court consisting of six Judges after hearing defendant had dismissed his appeal on -28-11-2004, whereagainst no further appeal was filed---Bank had produced certified copies of judgments and decrees passed by foreign court of first instance and foreign Appellate Court with its translation---Nothing was available on record to show that foreign judgment/decree fell within any exceptions mentioned in S.13, C.P.C.---Such foreign judgment/decree for being conclusive and binding on defendant could furnish cause of action and basis to Bank to maintain present suit against defendant (guarantor)---Judgment/decree of initial foreign court had merged in foreign appellate decree---Limitation of six years provided under Art. 117 of Limitation Act, 1908 for filing suit on basis of foreign judgment would start from 28-11-2004, when defendant's appeal was dismissed by foreign Appellate Court---Present suit filed on 25-11-2010 was, thus, within time---Defendant, in the present suit not served in person, but his service effected through publication of citations in newspapers would be deemed to be valid service---Defendant despite service had neither entered appearance nor filed application for leave to defend suit, thus, allegations of fact in plaint would be deemed to be admitted---Bank's claim with interest was supported by duly attested statements of accounts---Recovery of interest on finance was prohibited under Islamic modes of finance---Recovery of interest on foreign loans was permissible by virtue of Circular No.13, dated 30-6-1984 issued by State Bank of Pakistan, Banking Control Department---Suit amount had been decreed by foreign court under its law on basis of loan agreement executed between parties, for repayment of which defendant stood guarantor--- Foreign courts had passed a valid and legally enforceable judgments and decrees in favour of Bank and against defendant---Banking Court had jurisdiction to entertain present suit---Suit was decreed for amount finding mention in foreign judgments and decrees.?

Emirates Bank International Ltd. v. Messrs Osman Brothers and 9 others 1990 MLD 1779; Habib Bank Ltd. v. Messrs Virk House Trading Company Ltd. 2009 CLD 451; United Bank Limited v. Naeem Ullah Malik and 2 others 2009 CLD 1459; Chairman Board of Mining Examination and Chairman Inspector of Mines v. Ramjee AIR 1977 SC 965; Messrs Farm and Foods International through Attorney v. Hamid Mahmood 2006 CLC 492; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Baijnath Karnani v. Vallabhdas Damani AIR 1933 Madras 511 and Messrs Ahmad Autos and another v. A.B.L. PLD 1990 SC 497 rel.

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

----Ss. 13 & 14---Limitation Act (IX of 1908), Art. 117---Suit on basis of foreign judgment---Execution of foreign decree---Limitation---Execution of foreign decree could not be filed in Pakistan, if same had not attained finality for being under challenge before foreign Appellate forum---Period of six years provided under Art. 117 of Limitation Act, 1908 for filing such suit on basis of foreign judgment/decree would start running from date when such decree attained finality after dismissal of such appeal---Illustration.?

Chairman Board of Mining Examination and Chairman Inspector of Mines v. Ramjee AIR 1977 SC 965; Messrs Farm and Foods International through Attorney v. 'Hamid Mahmood 2006 CLC 492 and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 rel.

Barrister Usman G. Rashid for Plaintiff.

Ex parte for Defendant.

Date of hearing: 15th March, 2011.

2011 C L C 1448

[Lahore]

Before Kh. Imtiaz Ahmad and Amin-ud-Din Khan, JJ

Syed NAJAM ALI SHAH----Appellant

Versus

MUHAMMAD HAJI----Respondent

R.F.A. No.38 of 2001, decided on 17th May, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of money on the basis of promissory note---Proof---Presumption---Finger print expert report---Defendant had not only signed but also affixed his thumb impression on promissory note as well as on the receipt but Trial Court dismissed the suit---Validity---Signatures of defendant could be disputed but finger prints had more sanctity, authenticity and reliability than the signatures---Report of finger print expert as well as presumption attached to promissory note under S.118, Negotiable Instruments Act, 1881, were in favour of plaintiff---Trial Court did not properly appreciate the evidence of parties which required interference---High Court in exercise of appellate jurisdiction set aside the findings recorded by Trial Court and, suit was decreed in favour of plaintiff---Appeal was allowed in circumstances.

Raja Muhammad Sohail Iftikhar for Appellant.

Pirzada Muhammad Afzal Nizami for Respondent.

Date of hearing: 17th May, 2011.

2011 C L C 1464

[Lahore]

Before Syed Kazim Raza Shamsi, J

MUHAMMAD BASHIR----Appellant

Versus

YASEEN and others----Respondents

S.A.O. Nos.91 and 107 of 2004, heard on 3rd June, 2011.

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

----Preamble---Civil Procedure Code (V of 1908), Preamble---Code of Civil Procedure, 1908 is not applicable to the proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959---Rent Controller can adopt any procedure to reach at a just decision in the matter.

Ananta -Kumar Majumdar and others v. Gopal Ghandra Majumdar and others PLD 1961 Dhaka 65; Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375; Pakistan through Secretary to Government of Pakistan, Ministry of Railways, Islamabad and another v. Messrs Rajasthan Alloys and Steel (Private) Limited through Aftab Enterprises, Lahore PLD 2000 "Lah. 157 and Faqir Muhammad Khurshid and others v. Chief Administrator of Auqaf PLD 1987 SC 60 ref.

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

----O. XX, R.5 & O. XIV --Judgment on issues---Contention that court had decided only one issue out of ten issues and no findings were given on the rest of the issues, as such the judgment of the court was in violation of O. XX, R. 5, C. P. C. was repelled as appellant had failed to invoke the provisions of O.XIV, C.P.C. requesting the court for framing of necessary issues as said provision had been promulgated by the legislature for the said purpose.

Ananta Kumar Majumdar and others v. Gopal Ghandra Majumdar and others PLD 1961 Dhaka 65; Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375; Pakistan through Secretary to Government of Pakistan, Ministry of, Railways Islamabad and another v. Messrs Rajasthan Alloys and Steel (Private) Limited through Aftab Enterprises, Lahore PLD 2000 Lah. 157 distinguished.

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

----Preamble---Ordinance being a special statute providing its own procedure for deciding the cases filed thereunder, special statute shall have the overriding effect over the general law.

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

----S. 42---Record of rights---Jamabandi---Presumption of correctness is attached to jamabandi.

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

----S. 13-Ejectment of tenant---Landlord and tenant, relationship of---Scope---Tenant is debarred under the law to challenge the title of landlord---If, however, the plea of the ownership of the disputed property has been taken by the tenant, then it is his duty to establish through documents having evidentiary value---Where the tenant failed to establish such assertion, concurrent findings of fact by both the courts below being based upon sound appreciation of evidence as well as record, High Court took no exception against said findings.

Nauman Qureshi for Appellant.

Mian Subah Sadiq Klasson for Respondent.

Date of hearing: 3rd June, 2011.

2011 C L C 1471

[Lahore]

Before Mamoon Rashid Sheikh, J

SAMIA BIBI----Petitioner

Versus

ABDUL HAMEED and 2 others----Respondents

Writ Petition No.5140 of 2009, decided on 26th May, 2011.

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

----S. 14 (2) (b) & (c)---Constitution of Pakistan, Art.199---Constitutional petition--- Appeal--- Maintainability--- Pecuniary jurisdiction---Suit for recovery of dowry was decreed by Family Court in favour of wife in a sum of Rs.30,000/- in lieu of dowry articles---Lower Appellate Court allowed the appeal and suit for recovery of dowry articles was dismissed--- Plea raised by wife was that in view of S.14(2)(b) and (c) of West Pakistan Family Courts Act, 1964, no appeal was maintainable before Lower Appellate Court---Validity--- Lower Appellate Court lost sight of the provisions of S.14 of West Pakistan Family Courts Act, 1964; judgment and decree passed by Lower Appellate Court was against the express provisions of the statute and the same was passed in excess of the jurisdiction and without lawful authority and was liable to be declared as such---High Court set aside the judgment and decree passed by Lower Appellate Court and restored that of Family Court---Petition was dismissed in circumstances.

Muhammad Aslam Chaudhary for Petitioner.

Muhammad Zubair Saeed for Respondent No.1.

2011 CLC 1479

[Lahore]

Before Nasir Saeed Sheikh, J

NAHEED SIKANDER----Petitioner

Versus

NAEEM IJAZ and others--Respondents

Civil Revision No.97 of 2010, decided on 14th March, 2011.

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

----Arts. 117 & 120---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Gift---Onus to prove---Shifting of onus---Concurrent findings of fact by courts below, setting aside of---Plaintiff denied making any gift and assailed mutation of gift attested in favour of defendants who were her real brothers---Both the courts below had concurrently dismissed the suit and appeal filed by plaintiff---Validity---Plaintiff produced two witnesses who were in possession of disputed Havelies as tenants of plaintiff---Defendants in their written statement admitted that they were not in possession of suit property which had been forcibly taken away by plaintiff-Defendants only produced one witness who was their attorney but no witness of mutation was produced by defendants---Attorney of plaintiff was not produced by defendants in their evidence to prove making of gift by plaintiff through the attorney---Defendants failed to discharge the onus which shifted upon their shoulders after positive evidence having been produced by plaintiff of denying execution of general power of attorney as well as of making the gift by her in favour of defendants---Merely because two courts below recorded concurrent findings, the same did not make the judgments and decrees sacrosanct and legal requirements of proving the making of valid gift and discharge of onus of even proving execution of a valid general power of attorney shifted towards defendants which they failed to discharge---Concurrent findings of facts which were contrary to law and were also not in consonance with correct appreciation of evidence as well as circumstances of the case were not sustainable--- High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two courts below and the suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2006 Lah. 619; Muhammad Saeed v. Muhammad Siddique and 10 others 2010 MLD 855 and Mst. Naseem v. Mst. Shehla Durrani and 2 others 2010 CLC 1861 ref.

Adul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318; Baqar v. Allah Ditta and others 2003 SCMR 780; Muhammad Boota v. Mst. Rashidan Bibi and others 2008 SCMR 343; Abdul Rahim and others v. Muhammad Hayat and others 2004 SCMR 1723 and Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 rel.

Muhammad Ilyas Sheikh for Petitioner.

Zaheer Bashir Ansar and Tariq Mehmood for Respondents.

Date of hearing: 9th March, 2011.

2011 C L C 1498

[Lahore]

Before Syed Kazim Raza Shamsi, J

RUKHSANA JABEEN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, and others----Respondents

Writ Petitions Nos.7416 and 7417 of 2010, decided on 19th May, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy of appeal or revision, non-availing of---Effect---Bar on filing constitutional petition without availing alternate remedy could be ignored in exceptional cases in order to administer substantial justice between the parties.

Farzand Raza Naqvi and 5 others v. Muhammad Din and others 2004 SCMR 400 rel.

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

----Ss. 13 & 15(6)---Constitution of Pakistan, Art.199---Order of ejectment from shop passed by Rent Controller set aside by Appellate Authority---Constitutional petition filed by pardanasheen landlady instead of filing second appeal in the High Court---Maintainability---Such orders passed by courts below were neither void nor suffered from any jurisdictional defect---Petitioner being a pardansheen lady was not accustomed with legal procedure and working of court---Filing of constitutional petition instead of filing of appeal in High Court could be on the basis of mistaken advice to petitioner or her ignorance of court working and procedure to be adopted---Law gave preferential treatment to women folk---Non-entertaining of constitutional petition would have resulted in maintaining impugned order and petitioner had to face rigour of fresh litigation under new law and all her efforts to have justice from courts for last more than four years would have proved futile---High Court entertained constitutional petition in circumstances---Instances of special treatment given under law to women folk highlighted.

Farzand Raza Naqvi and 5 others v. Muhammad Din and others 2004 SCMR 400 rel.

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

----S. 13(2)---Tenancy agreement, expiry of---Effect---Tenant, in such a situation would become statutory tenant and could not be evicted from demised premises without due process of law---In absence of fresh agreement, tenancy would be governed by terms of expired agreement.

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

----S. 13---Punjab Rented Premises Ordinance (XXI of 2007), S.19---Ejectment petition---Law available at the time of institution of ejectment petition would govern the same.

Khurram Shehzad Malik for Petitioner.

Zaheer-ud-Din Chaudhry for Respondent.

Date of hearing: 19th May, 2011.

2011 C L C 1503

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Ch. MUHAMMAD SHAHZAD ASLAM NAZ----Petitioner

Versus

SPECIAL JUDGE (RENT), MULTAN and another----Respondents

Writ Petition No.1422 of 2010, decided on 8th February, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5 & 17---Premises, letting out of---Obligation of landlord---Scope---Landlord is under legal obligation under Ss.5 & 17 of Punjab Rented Premises Act, 2009, to let out premises to rent by way of written agreement, which is registerable by Rent Registrar.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5, 8 & 9--- Existing tenancy---Term "entertains" as used in S.9 of the Act---Scope---Non-registration of tenancy agreement-Effect--Parties are not exempted from registration and after promulgation of Punjab Rented Premises Act, 2009, registration of tenancy is mandatory but two years time is available to them for registration---If parties do not get registered the tenancy agreement, they have to pay penalty as provided in law if they want to get the matter adjudicated from the Rent Tribunal---Relaxation given in S.8 of Punjab Rented Premises Act, 2009, enables the court to pass a conditional order at the time of final conclusion of ejectment petition---Rent Tribunal can order that eviction/ejectment order is executable subject to payment of deposit in terms of S.9 of Punjab Rented Premises Act, 2009---Word "entertain" used in S.9 of Punjab Rented Premises Act, 2009, is &rectory in nature unless time provided in S.8 of the Act, has expired but registration is mandatory.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 22---Ejectment of tenant---Leave to contest---Attaching of affidavits---Object, purpose and scope---Filing of affidavits of witnesses as well as parties has been introduced in Punjab Rented Premises Act, 2009, only to curtail lengthy procedure for summoning witnesses---Rent Tribunal while deciding application for leave has to assess facts for allowing or disallowing application of leave---To give credence and sanctity to rent petition it has been made obligatory for tenant to supplement his pleadings with his affidavit, reason for attaching affidavits is to help Rent Tribunal to decide application to defend without recording oral evidence---Tenant, under the procedure of Punjab Rented Premises Act, 2009, in first instance has to cross barrier of permission to defend the petition, that is the reason it has been made obligatory for landlord to file his own affidavit of facts as well as affidavits of his two witnesses---Where facts are controversial, witness has to appear in witness box for cross-examination---Necessity for filing affidavit along with petition is only to the extent of evaluating grounds of tenant for leave to defend.

(d) Punjab Rented Premises Act (VII of 2009)---

---Ss. 15, 19 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Procedure---Affidavits, non-attaching of-Leave to contest, grant of---Effect---Tenant sought dismissal of ejectment application on the ground that landlord did not attach affidavits with his application---Validity---Words used in S.19(4) of Punjab Rented Premises Act, 2009, showed that leave was to be granted to tenant only if he had shown sufficient cause for recording oral evidence---Tenant had to establish that objections raised in ejectment application were not covered under pleadings of parties and for proving the same, recording of oral evidence was necessary---Once leave to defend was allowed, landlord had to prove his case and his witnesses as well as landlord himself had to go through the process of cross-­examination---Submission of affidavits with rent petition were necessary for deciding leave application of tenant and in case of failure of landlord to submit affidavit, Rent Tribunal could allow the tenant to defend petition and it was the maximum penalty which could be gathered for such violation-Tenant while filing affidavits did not controvert the contents of affidavits of two witnesses through their counter affidavits etc. but Rent Tribunal allowed permission to tenant to defend ejectment petition---Objection of non filing of affidavits became norm-existent after grant of leave to defend and rent petition was to be decided by recording oral evidence---Rent Tribunal had rightly decided that non filing of affidavit by landlord was not fatal and he rightly allowed him to file his own affidavit in examination-in-chief---High Court in exercise of constitutional jurisdiction declined to interfere in the ejectment proceedings pending before Rent Tribunal---Petition was dismissed in circumstances.

Muhammad Usman and another v. Additional District Judge, Lahore and 2 others PLD 2010 Lah. 281; Messrs Wateen Telecom (Pvt.) Ltd. through Attorney v. Malik Abdul Ahad and 2 others PLD 2009 Lah. 429; Muhammad Fiaz and another v. Ch. Yaqoob Hussain and another PLD 2010 Lah. 197; Younas Siddique v. Mst. Tahira Jabeen PLD 2009 Lah. 469; Divisional Superintendent P. W.R. Multan v. Abdul Khaliq 1984 SCMR 1311 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 ref.

Mian Muhammad Jamal for Petitioner.

Mian Habib-ur-Rehman Ansari for Respondent.

Date of hearing: 8th February, 2011.

2011 C L C 1521

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ASLAM and others----Appellants

Versus

ABSAR FATIMA and others----Respondents

R.S As. Nos.3 of 2011 and 26 of 2005, decided on 7th June, 2011.

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

---Ss. 202 & 203---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Judgment not challenged--Irrevocable power of attorney---Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court dismissed the same---Plea raised by plaintiff was that question pertaining to consenting written statement and issuance of power of attorney by the owner of suit property had already been decided by High Court and the same was not assailed, therefore, finding of High Court had attained finality---Validity---Judgment passed by High Court was never challenged or set aside by Supreme Court, therefore, points which were decided in that appeal could not be re-agitated before any forum subordinate to High Court or even in High Court, therefore, Lower Appellate Court fell in error while recording findings in contradiction to that judgment---In case of simple power of attorney in favour of agent, the agent was bound to seek permission to transfer property in favour of his near relatives but when irrevocable power of attorney was given to agent, it meant that no interest or proprietary right were left in the property of. principal---Owner of suit property had given all her rights to the attorney and under the language of power of attorney all rights were transferred in favour of the agent, therefore, agreement of plaintiffs with irrevocable power of attorney holder was valid one---Findings recorded by Lower Appellate Court were contrary to law and misinterpretation of documentary evidence on record and were set aside---High Court restored the findings recorded and judgment and decree passed by Trial Court and the suit was decreed in favour of plaintiff---Second appeal 'vas allowed in circumstances.

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

----Art. 133---Fact not cross-examined---Presumption---If witness is not cross-examined, then statement of such witness recorded in chief is presumed to have been admitted by other party.

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

----Ss. 202 & 203---Power of attorney---Irrevocable power of attorney---Effect---When a person gives an irrevocable power of attorney, no rights of principal are left in that property.

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

----S. 100---Second appeal---Concurrent findings of fact by two courts below-Appellate powers, exercise of---Principle---Concurrent findings of Courts below cannot be set at naught by High Court unless it is established that the same are perverse or erroneous---When no jurisdictional error or misreading or non-reading of evidence has been pointed out, High Court declines to interfere in circumstances.

Raja Muhammad Sohail Iftikhar for Appellant (in R.S.A. No.3 of 2011).

Ijaz Ahmad Ansari for Appellant (in R.S.A. No.26 of 2005).

Nadeem Iqbal Ch. for Respondents.

2011 CLC 1526

[Lahore]

Before Umar Ata Bandial, J

FAISAL HAYAT----Petitioner

Versus

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

Writ Petition No.21697 of 2009, decided on 24th January, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suits for maintenance amount and restitution of conjugal rights---Maintenance amount Rs.3000 payable by defendant husband to his plaintiff wife as determined by the Family Court was increased by Appellate Court below to Rs.5000---Appellate Court by same judgment reversed decree of restitution of conjugal rights passed in favour of the defendant by the Family Court on the ground Oat defendant did not take such plea in his written statement---Validity---Defendant took such plea in the written statement on the basis of which issue in that respect was framed and evidence was recorded---Finding given by the Appellate Court on that point, in circumstances, was contrary to the record which was set aside by High Court---Remaining judgment of the Appellate Court was ordered to stand and the parties would be entitled to seek enforcement of their rights given in the raid judgment.

Ch. Shahid Tabassam for Petitioner.

Rana Ijaz Ahmad for Respondent.

2011 C L C 1531

[Lahore]

Before Syed Mansoor Ali Shah, J

Kh. SUHAIL AHMAD and others----Petitioners

Versus

Mst. SHABANA----Respondent

Civil Revision No.3657 of 2010, decided on 10th March, 2011.

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

----S. S & Sched.---Civil Procedure Code (V of 1908), O. VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration with permanent injunction praying that plaintiff be declared owner of the property in question in terms of Iqrar Nama Kabeen (document of settlement of dower)---Defendants moved application under O. VII, R.10, C.P.C., contending that subject matter of the suit being recovery of dower, which fell within the exclusive jurisdiction of the Family Court; therefore, civil court had no jurisdiction to hear the suit--Held, under S.5 of the West Pakistan Family Courts Act, 1964, Family Court enjoyed exclusive jurisdiction to try matters enumerated in the First Schedule and dower being an item mentioned in the Schedule, the exclusive jurisdiction to entertain the suit was with Family Court---Jurisdiction vested in courts under special law i.e. West Pakistan Family Courts Act, 1964 ousted the plenary jurisdiction of civil courts---Said jurisdictional boundaries had to be maintained and any proceedings before a forum lacking jurisdiction could not be permitted to continue, therefore proceedings before the civil court were coram non judice and void ab initio---Application of defendant, under O. VII, R.10, C.P.C. was allowed and plaint was returned to the plaintiff to file the same before Family Court of competent jurisdiction---High Court observed that it was painful to note that the suit of the plaintiff was filed in the year, 2004 and it was now being returned for lack of jurisdiction in the year 2011 after almost seven years; had the civil court examined the plaint judiciously and diligently parties could have been put on proper course seven years ago.

Feroze-ul-Lughat ref.

(b) Words and phrases---

---- "Iqrar Nama Kabeen "---Meaning.

Feroze-ul-Lughat ref.

Dr. Hameed Ahmed Ayaz for Petitioners.

Rana Abdul Waheed Khan for Respondent.

2011 C L C 1534

[Lahore]

Before Syed Kazim Raza Shamsi, J

BABAP ENTERPRISES----Appellant

Versus

UNITED BANK LIMITED and others----Respondents

S.A.O. No.4 of 2010, heard on 10th June, 2011.

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

----S. 13---Qanun-e-Shahadat (10 of 1984) Art.78---Ejectment of tenant by Bank---Filing of ejectment proceeding against a tenant by the Bank as not a matter covered by day to day routine business of the Branch of Bank and if any objection in such a case was raised about the competency of the officer of the Bank instituting ejectment proceeding against a tenant of the Bank, burden fell upon the Bank to establish that the ejectment proceeding was authorized by the Bank in that behalf---If the burden was not discharged then the ejectment petition was not maintainable---In the present case, examination of the statement of the person who instituted the ejectment petition did not show that he was authorized by the Bank by an instrument to lodge proceedings against its tenant; he did not tender original documents in this behalf, so that he could be subjected to cross-examination by the counsel of the tenant to check the validity of authorization---Ejectment petition, also did not mention that person filing the same had been duly authorized by the Bank in that behalf nor he had referred to any power-of-attorney executed in his favour in the petition---Such documents could not be exhibited in the statement of the counsel for the Bank but were required to be tendered in the statement of person instituting the proceedings where its admissibility and relevancy was to be determined by the court as well, after providing opportunity of cross-examination of the witness---Tenant, to such extent, had been condemned unheard as all such exercise was done illegally at his back---Rent Controller, before keeping said documents on the file was duty bound to see that the documents were yet to be proved through evidence and could not be exhibited without formal proof---person instituting the petition, in circumstances, was not competent to file the same on behalf of the Bank as such, ejectment petition was not maintainable---All the proceedings taken therein were of no significance and were without jurisdiction.

Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472 fol.

Messrs A.M. Industrial Corporation Limited v. Aijaz Mahmood and others 2006 SCMR 437; Maqbool Ahmad v. Pakistan Agricultural and others 2006 SCMR 470; Mian Muhammad Abdullah v. Sheikh Nawab Din 1971 SCMR 336; Irfanullah Shah v. Wahabdullah Shah 2003 YLR 1195; Akhtar Ali Qureshi v. Qari Amir Alam NLR 2006 Civil 492; Tariq Ali Sheikh v. Rent Controller Mr. Khalid Nawaz, Lahore and another 1998 CLC 460 and Reckitt and Colman of Pakistan Limited v. Saifuddin G. Lotia and others 2000 SCMR 1924 ref.

Akbar Ali Shad and Abid Saqi for Appellant.

Nisar Ahmad Nisar for Respondent.

Date of hearing: 10th June, 2011.

2011 C L C 1545

[Lahore]

Before Kh. Imtiaz Ahmad, J

Haji MUHAMMAD RAMZAN----Petitioner

Versus

Mst. NASEEM MAI and 4 others----Respondents

Writ Petition No.7781 of 2009, decided on 23rd February, 201.1.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance of minors---Legitimacy---Presumption---Wife filed suit for recovery of maintenance for minors but husband denied their parentage on the ground that prior to the birth of both the minors he was away in Saudi Arabia---Validity---Husband in his written statement and evidence admitted that before birth of minors he came to Pakistan and remained with, his wife, where he came to know about the birth of daughter and thereafter in his absence his wife left the house---When the husband remained with his wife, it could be presumed that the birth of minors was quite natural---Both the Courts below had taken into consideration the evidence that the children and their mother had also gone to Saudi Arabia---All criminal proceedings initiated by the husband were after the institution of the suit for maintenance, thus the same was to avoid the maintenance---Marriage subsisted and both the Courts below had committed no illegality while awarding maintenance to the minors---High Court declined to interfere in concurrent findings of fact recorded by two Courts below---Petition was dismissed in circumstances.

Lata Devi v. Kunta Bai and another 1986 MLD 1483; Mst. Aziz Begum v. Faiz Muhammad PLD 1965 (W.P.) Lah. 399 and Zala Din and another v. Muslim Shah PLD 1968 Pesh. 87 distinguished.

Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275 and Lata Devi v. Kunta Bai and another 1987 MLD 1483 ref.

Sardar Ghazi Raza Khan Lund for Petitioner.

Saifullah Khan for Respondents.

Date of hearing: 22nd February, 2011.

2011 C L C 1549

[Lahore]

Before Syed Kazim Raza Shamsi, J

BATA PAKISTAN LIMITED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.23539 of 2010, heard on 26th May, 2011.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 15(a), 19 & 22---Ejectment petition---Expiry of period of written tenancy---Leave to defend, application for---Plea of tenant (a Public Limited Company) that tenancy was orally extended for another three years---Validity---Such company could not be presumed to have orally agreed to alleged extention---Original tenancy was in written form, thus, extention thereof should have been in same manner and could not be extended orally by any stretch of imagination---Such plea was repelled in circumstances.

PLD 2009 SC 789 ref.

Sher Zaman Khan for Petitioner.

Muhammad Saleem Chaudhary-I for Respondents.

Date of hearing: 26th May, 2011.

2011 C L C 1552

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD TAHIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-II, BAHAWALNAGAR and 5 others----Respondents

Writ Petition No.3269 of 2011/BWP, decided on 16th June, 2011.

(a) Constitution of Pakistan---

----Art. 2A---Objectives Resolution, Cl.IV----Muslims must adhere to the ordains of Holy Quran in letter and spirit as practised by the Holy Prophet (S.A.W.) to ensure dispensation of justice to the individuals as well as to the society.

Verse Nos.2, 6 and 10 of Surah An-Nisah, Chapter No.4, of the Holy Quran quoted.

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

----Ss. 43 & 47---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Application for cancellation of guardianship certificate of guardian, by brother of minor alleging that guardian had misappropriated finances of the minor---Case of misappropriation, prima facie, had been made out in view of the statements of guardian at fault and the surety---Provisions of S.43, Guardians and Wards Act, 1890 were _attracted in . circumstances---Surety having deposited the amount which he had illegally received from the guardian, his surety was discharged---Guardian Judge directed the guardian at fault to deposit the remaining misappropriated Amount in two equal instalments and was ordered to be sent to the jail---Validity---Order of Guardian Judge was neither illegal nor unlawful exercise of his jurisdiction---Counsel of petitioner (guardian at fault) had not been able 'to point' out any illegality or unlawful exercise by the Guardian Judge---Application of the brother of minor for cancellation of guardianship certificate was pending before the Guardian Judge and order passed in terms of S.43, Guardians and Wards Act, 1890 being appealable under S.47(i) of the Act, thus efficacious remedy of appeal was available to the petitioner (guardian at fault) and his constitutional petition against the said order of the Guardian Judge was not maintainable---Constitutional petition was dismissed, in circumstances.

Syed Muhammad Arfah Sheraz Bokhari for Petitioner.

2011 C L C 1556

[Lahore]

Before Muhammad Ameer Bhatti, J

Hafiz MUHAMMAD JAFFAR----Petitioner

Versus

MUHAMMAD AMEER and 6 others----Respondents

Writ Petition No.6661 of 2011, heard on 10th June, 2011.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Delay alone could not be considered as a ground for refusing amendment.

1986 SCMR 1799 rel.

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

----S. 42---Civil Procedure Code (V of 1908), O. VI, R.17---Suit for declaration---Plaintiff claimed that suit-land belonged to his grandfather, who died in year 1962, whereafter about 31/32 years, suit mutation was sanctioned on 22-1-1989 depriving him of the inheritance of his grandfather---Defendant in written statement had stated that plaintiff's 'grandfather had died before the year 1962---Application for amendment of plaint after recording of evidence to the effect that words "in year 1962" mentioned in plaint be substituted by words "before year 1962"---Validity---Such mistake had' inadvertently occurred by not using words "before 1962" while drafting written statement ---No prejudice would be caused to defendant by allowing such amendment---Such application was accepted in circumstances.

2011 CLC 130;' 2008 SCMR 654; 2005 SCMR 1945; 1986 SCMR 1799; 1988 SCMR 322; 1995 MLD 290 and 1984 CLC 2386 ref.

Malik Muhammad Imtiaz Mahal for Petitioner.

Syed Iqbal Hussain Shah Gillani for Respondents.

Date of hearing: 10th June, 2011.

2011 CLC 1561

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD RAHID SHARIF----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman----Respondent

Writ Petition No.10742 of 2011, decided on 23rd May, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Administration of justice---Admission fee, deposit of---Petitioner was Principal of the school and he deposited admission fee on behalf of his students---Plea raised by Education Board was that Principal of school had no authority to submit admission form or deposit admission fee on behalf of his students---Validity---Proper place of procedure in any system of administration of justice was to help and not to thwart redress of genuine grievance---Statutory obligation on High Court demanded dispensation of justice by way of exercising Constitutional jurisdiction---If the students were not allowed to sit in examination, it would amount to wasting of their one year and that too without any justification, when High Court on the statement of the Board in earlier petition allowed the students to sit in the examination---It made no difference as to who deposited the fee and submitted the forms---Board was making an effort to wriggle out from the earlier commitment made before High Court which it could not be permitted to do---High Court directed the Education Board to issue Roll number slips to all such students and allow them to appear in the examination---Petition was allowed in circumstances.

Petitioner in person.

Dr. M. Mohy-ud-Din Qazi, Legal Advisor, BISE for Respondent.

2011 C L C 1564

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SHAMSHAD BEGUM----Appellant

Versus

AKHTAR HUSSAIN ANJUM----Respondent

S.A.O. No.3 of 2006, heard on 31st May, 2011.

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

---Ss. 13 & 22---Second appeal---Ejectment of tenant---Title, determination of---Tenant denied relationship of landlord and tenant but Rent Controller allowed the application and passed eviction order---Lower Appellate Court reversed the findings and dismissed ejectment application---Validity---Lower Appellate Court did not rebut findings recorded by Rent Controller but travelled beyond its jurisdiction while going into the matter of ownership of the property in question---During pendency of appeal landlord died and his legal heirs were impleaded as party in which his son for which the tenant took the plea that said son of landlord was in possession of rented premises also became party---Nigh Court set aside the judgment passed by Lower Appellate Court and that of Rent Controller was restored---Second appeal was allowed in circumstances.

Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 ref, Ch. Naseer Ahmad for Appellant.

Nemo for Respondent.

Date of hearing: 31st May, 2011.

2011 C L C 1566

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NASIR ALI SHAH through L.Rs.----Petitioners

Versus

AHMAD YAR through L.Rs.----Respondents

Civil Revision No.717-D of 1992, decided on 8th February, 2011.

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

----S. 19---Transfer of Property Act (IV of 1882), Ss.52 & 54---Specific Relief Act (I of 1877), S.12---Suit for specific performance of prior agreement of sale after grant of proprietary rights to vendor in State land---Subsequent vendee claimed to be bona fide purchaser for value after grant of proprietary rights to vendor without having notice of prior agreement and pendency of suit filed by plaintiff (prior purchaser); that prior agreement in favour of plaintiff was void as permission under S.19 of Colonization of Government Lands (Punjab) Act, 1912 was not obtained; and that suit filed on 7-10-1982 on basis of prior agreement dated 6-4-1977 was time-barred---Validity---Vendor in prior agreement had undertaken to execute sale-deed in favour of plaintiff on grant of proprietary rights---Vendor had agreed to sell corpus of property to plaintiff, which would come into operation after grant of proprietary rights---According to terms of such prior agreement, plaintiff was carrying a risk to loose his money, if proprietary rights were not granted to vendor---According to such prior agreement, in case of failure of vendor to execute sale-deed after grant of proprietary rights, he was bound to pay to plaintiff amount specified therein in addition to earnest money already paid---Such prior agreement did not necessitate obtaining of prior permission under S.19 of Colonization of Government Lands (Punjab) Act, 1912---Agreement of sale of immovable property would not itself create any interest in or right or title to or charge over property---Evidence on record showed that plaintiff remained in possession of suit-land since year 1982, which was sufficient to establish notice of sale in favour of subsequent vendee---Subsequent vendee had not stated a single word in examination-in-chief that he had either inquired from Revenue Record about status of land or asked plaintiff about status of his possession over suit-land---Proprietary rights were granted to vendor on 27-2-1982, thus, suit filed on 7-10-1982 was within time---Subsequent vendee had purchased suit-land on 20-12-1982 i.e. during pendency of suit, thus, same was hit by principle of lis pendens---Subsequent vendee had not established on record that any fraud was committed with him---Suit was decreed in circumstances. ?

Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254 and Abdul Aziz and others v. Collector/Deputy Commissioner, Rahimyar Khan and others PLD 1981 Lah. 457 ref.

Sher Muhammad Khan and others v. Ilam Din and others 1997 SCMR 470; Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254; Hakam Ali and others v. Atta Muhammad and others 1981 SCMR 993 and Kamal Hassan Shah v. Member Board of Revenue (Colony) West Pakistan and 2 others PLD 1987 SC 212 rel.

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

----S. 54 ---Contract of sale of immovable property---Such contract would not itself create any interest in or right or title to or charge over such property.

Pir Masood-ul-Hassan Chishti for Petitioners.

Hameed Azhar Malik, Waseem Mumtaz and Mian Tahir Iqbal for Respondents.

Date of hearing: 20th January, 2011.

2011 C L C 1582

[Lahore]

Before Nasir Saeed Sheikh, J

TALAT MEHMOOD----Petitioner

Versus

DISTRICT REGISTRAR----Respondent

Writ Petition No.1364 of 2010, decided on 6th April, 2011.

Stamp Act (II of 1899)---

----S. 29 & Sched. I, Serial No.31(b), [as substituted by Punjab Finance Act, 1997]---Constitution of Pakistan, Art.199---Constitutional petition---Exchange deed---Stamp duty---Petitioner exchanged their properties and presented exchange deed for registration---Objection raised by Registrar was that stamp duty upon exchange deed was to be paid in respect of valuation of both the properties---Validity---Stamp duty was to be determined under Item No.31(b) of Schedule I of Stamp Act, 1899 as substituted by Punjab Finance Act, 1997, which provided determination of stamp duty value on the basis of property of the greatest value---Petitioners were liable to pay stamp duty on the basis of valuation of the property having more value---Petitioner had already deposited stamp duty with authorities according to the greatest value of the property, thus authorities did not have any lawful authority either to demand stamp duty on the basis of aggregate value of two properties Or to refuse to return the exchange deed instrument to petitioners, if they had paid stamp duty in accordance with the property carrying the greatest value---Act of Registrar demanding stamp duty on exchange deed of petitioners on the basis of aggregate value of two properties was declared to be illegal and without lawful authority---Petition was allowed accordingly.

Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 rel.

Sadaqat Ali Khan for Petitioner.

Razzaq A. Mirza, Addl. A.-G.

2011 CLC 1591

[Lahore]

Before Kh. Imtiaz Ahmad, J

NASARULLAH KHAN----Petitioner

Versus

Mst. AQSA DURRANI and 5 others----Respondents

Writ Petition No.1543 of 2011, decided on 10th February, 2011.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition--Maintenance of minors-Quantum-Family Court as well as Lower Appellate Court fixed Rs.15000/- per month as maintenance allowance for three minor children---Plea raised by father of mi ors was that quantum of allowance was excess---Validity---Even if it was presumed that father of minors was Setting Rs.34,000/- per month as salary, even then for three children, Rs.15,000/- per month was not excessive amount---If children would have been residing with father, even then he was bound to spend such amount on three children, as they not only needed education but they also needed food, clothes and other articles---When prices of everything had gone sky high, Rs.5000/- per month per minor child was not sufficient amount to meet entire expenditure---Keeping in view the devaluation in the Rupee and increase in prices, the annual. increase awarded by the courts below was also not excessive since the prices had gone very high---In the light of evidence and even in view of own admission of father of minors it was dear that his financial position was such that he could pay the amount to minors as awarded by both the Courts below---High Court declined to interfere in the maintenance fixed by the Courts below--Petition was dismissed in circumstances.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 ref.

Ch. Asif Karim for Petitioner.

2011 C L C 1610

[Lahore]

Before Syed Kazim Raza Shamsi, J

MUHAMMAD IRFAN----Petitioner

Versus

TARIQ MEHMOOD and others----Respondents

Writ Petition No.6720 of 2009, decided on 31st May, 2011.

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

----S. 13---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Void order---Fraud and misrepresentation---Judgment, setting aside of---Petitioner claimed to be owner in possession of property in question and sought setting aside of eviction order alleging that it was a result of fraud and misrepresentation---Rent Controller dismissed the application under S.12(2), C.P.C. filed by the petitioner on the ground that provisions of Civil Procedure Code, 1908, were not applicable to proceedings before Rent Controller---Order passed by Rent Controller was maintained by Lower Appellate Court---Validity---Proceedings taken by Rent Controller, after recording statement of attorney of petitioner, became without lawful authority as the attorney had performed an act for which he was never authorized, thus order of ejectment was procured by practising fraud upon the Court---Though Civil Procedure Code, 1908, was not applicable to rent proceedings but fact remained that Rent Controller should follow equitable principles contained in Civil Procedure Code, 1908, for the reason that no wrong could be left un­remedied---Every court or tribunal had inherent jurisdiction to rescind or recall a void order passed by itself---Order of eviction passed against petitioner was a void order as the same was procured fraudulently and by making misrepresentation---Every court or tribunal had the power to even suo motu recall or review an order obtained from the Court by fraud on general principle that fraud vitiated the most solemn proceedings and no party should be allowed to take advantage of his own fraud---High Court declared the order passed by both the Courts below as ineffective and void and the same was set aside---High Court directed Rent Controller to follow the rule laid down by superior courts and to proceed in accordance with law---Petition was allowed accordingly.

PLD 1991 SC 997 fol.

Ahmad Shahzad Farooq Rana for Petitioner.

Mian Muhammad Nawaz for Respondents.

2011 C L C 1723

[Lahore]

Before Amin-ud-Din Khan, J

AHMED NASAR ULLAH and others----Petitioners

Versus

SHAHDAT ALI and others----Respondents

Writ Petitions Nos.1874 and 1941 of 2011, decided on 25th May, 2011.

Specific Relief Act (I of 1877)---

----Ss. 12 & 44---Civil Procedure Code (V of 1908), O.XL, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance of contract---Appointment of receiver---Plaintiffs along with suit, filed application for appointment of receiver---Trial Court declined application for appointment of receiver, but defendants were directed to furnish security equivalent to the alleged consideration amount---Validity---When defendants were owners of suit property; and no right in the suit property had been declared or created by any order or decree of the court, application for appointment of receiver was not competent---Relief granted to the plaintiffs by imposing a condition on defendants to furnish security equivalent to the alleged consideration was also without jurisdiction---Agreement to sell did not create a right or interest in the suit property, except a right to file a suit for specific performance---Jurisdiction exercised by the Appellate Court, while dismissing the revision petition was also without jurisdiction---Orders passed by the courts below, being without jurisdiction, High Court, under constitutional jurisdiction, had powers to scrutinize and see their validity---Order passed by the Trial Court and that by Appellate Court, were quashed---Application for appointment of receiver moved by the plaintiffs, would be deemed to be dismissed in toto, in circumstances.

Sh. Karim-ud-Din for Petitioners.

Murad Ali Malik for Respondents.

2011 C L C 1756

[Lahore]

Before Abdus Sattar Asghar, J

MANZOOR AHMED----Appellant

Versus

QAMAR UL ZAMAN----Respondent

Regular First Appeal No.97 of 2003/BWP, decided on 19th May, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Stamp Act (II of 1899), Ss.12, 35, 36 & 61---Suit for recovery of money on basis of pro note---Execution of pro note and its receipt proved by production of its scribe and marginal witnesses---Dismissal of suit by Trial Court on ground that pro note was inadmissible in evidence due to non-cancellation of one of adhesive stamps of value fifty (50) paisas at time of its execution---Validity---Purpose of cancellation of stamps would be to avoid its re-use and not to punish beneficiary of pro note---Pro note was not under-valued---Perusal of pro note would show that tail of signatures of its scribe had touched edge of questioned adhesive stamp, which he perhaps had considered sufficient for purpose of its cancellation---Benefit of such doubt should go to plaintiff---Section 35 of Stamp Act, 1899 was curative provision---According to S.36 of Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of proceedings on ground for not being duly stamped except under S.61 thereof---Defendant in written statement had not raised objection regarding non-cancellation of questioned stamp---Plaintiff could not be non-suited on technical ground especially when execution of pro note and its receipt had been duly proved---High Court accepted appeal and decreed suit in circumstances.

Muneer Ahmed Kahloon v. Rana Muhammad Yousaf PLD 2003 Lah. 173 and Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 rel.

Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 579 distinguished.

Mian Muhammad Sultan Watoo for Appellant.

Raja Muhammad Sohail Iftikhar for Respondent.

Date of hearing: 19th May, 2011.

2011 C L C 1771

[Lahore]

Before Syed Kazim Raza Shamsi, J

Mst. ZAHIDA AZAM----Appellant

Versus

SOHAIL RAFIQUE and others----Respondents

S.A.O. No.87 of 2010, heard on 15th July, 2011.

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

----S. 13(6)---Arrears of rent---Determination---Rent Controller, jurisdiction of---Landlady asserted that rate of rent per month was Rs.46,948 while tenant claimed it to be 17,716 per month but Rent Controller assessed tentative rent as Rs.30,000 per month and the same was deposited by tenant---Rent Controller passed eviction order without determining the arrears and rate of rent, which order was maintained by Lower Appellate Court---On application of tenant, the Rent Controller ordered to return the excess amount deposited by him---Validity---Held, it was the duty of Rent Controller to determine arrears of rent even after decision of ejectment petition---Rent Controller did not become functus officio after disposal of ejectment petition---Rent Controller while granting withdrawal of excess rent did not hold any inquiry nor proceeded to determine arrears of rent, as such the order of Rent Controller was of no legal efficacy---Lower Appellate Court while dismissing the appeal of landlady did not take into consideration that the rate of rent was not finally decided by Rent Controller and the order of Lower Appellate Court needed modification to that extent---High Court modified the order of Lower Appellate Court to the extent that Rent Controller would determine the arrears of rent after holding proper inquiry into the matter and the case was remanded to Rent Controller---Appeal was allowed accordingly.

1974 SCMR 504 rel.

Muhammad Akram Khawaja for Appellant.

Shahid Shabbir for Respondents.

Date of hearing: 15th July, 2011.

2011 C L C 1774

[Lahore]

Before Abdul Waheed Khan, J

Haji Mian MUHAMMAD ALI through L.Rs. and others----Appellants

Versus

Mian MUHAMMAD LATIF through L.Rs. and others----Respondents

Regular Second Appeal No.138 of 2006, decided on 29th June, 2011.

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

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.14 & O.XXII---Pre-emption---Right of legal heirs---Talb-e-Muwathibat---Time of Talb-e-Muwathibat, non-mentioning in plaint---Death of pre-emptor---Effect---Original pre-emptor did not mention time of Talb-e-Muwathibat in his plaint and he died during the proceedings of trial---Plea raised by vendees was that after death of pre-emptor the suit had abated and pre-emptor failed to prove Talb-e-Muwathibat---Validity---With the death of pre-emptor the suit would not abate but legal heirs of deceased had no right on the date of sale and thus they could not improve their right after the sale by inheritance as the cause of action had already come into existence---Subsequent qualification by inheritance could not vest legal heirs of pre-emptor with superior status after the accrual of the cause of action---Omission to mention the time, date and place of making Talb-e-Muwathibat in plaint was fatal to the suit of pre-emption---High Court declined to resolve the dispute between parties as to whether or not the pre-emptor possessed superior right of pre-emption because, pre-emptor failed to meet the requirements of plaint---High Court declined to interfere in the judgment passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Aziz-ur-Rehman v. Muhammad Nawaz PLD 1988 SC 384; Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478; Khyber Khan and another v. Haji Malik Aman Ullah Khan 2007 SCMR 1036 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through legal heirs and others PLD 2007 SC 302 fol.

Ch. Muhammad Arshad Ramay for Appellants.

Mian Javed Rasheed for Respondents Nos.1 to 3.

Malik Ijaz Ahmad for Respondent No.4.

2011 C L C 1779

[Lahore]

Before Syed Kazim Raza Shamsi, J

ROBINA YASMEEN and others----Petitioners

Versus

Rana JAVED IQBAL and others----Respondents

Writ Petition No.6279 of 2011, heard on 5th July, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Interim order---Leave to defend, grant of---Extension of time---Non-filing of affidavit---Rent Tribunal granted leave to defend the case on the application filed by tenant beyond statutory period of ten days which was not accompanied by any affidavit---Plea raised by tenant was that constitutional petition was not maintainable against interim order---Validity---Although a Constitutional petition against an interim order passed by Special Court was not maintainable yet it was not an absolute rule, and facts of each case had to be considered before proceeding to determine question of maintainability of Constitutional petition---Rent Tribunal had proceeded against mandatory provision of law, which had to be checked at early stage instead of waiting for passing of a final order---If such practice of not checking interim orders at proper stage was not discarded that would lead to the wastage of public time and would also multiply the litigation between the parties---Petition having been filed beyond the period prescribed by law, the Court should have taken the notice of such fact before granting leave to contest the ejectment petition---None of the Courts had jurisdiction to extend the time beyond ten days for filing the leave application thus the Court had proceeded wholly against the mandatory provisions of S.22(2) of Punjab Rented Premises Act, 2009---Tenant did not file affidavit with his application for leave to defend and purpose for enacting such provision of law was to require a tenant to make out a ground for contesting the ejectment petition and if the Court deemed that the tenant had raised a plausible defence then the Court could allow the leave application, which would subsequently be treated as written statement---While not taking the proceedings in accordance with the spirit of S.22(3) of Punjab Rented Premises Act, 2009, the Rent Tribunal committed grave illegality which needed interference of High Court in its supervisory jurisdiction---High Court declared the order passed by Rent Tribunal as illegal having been passed without lawful authority and of no legal consequences and the same was set aside---High Court directed the Rent Tribunal to proceed to pass an order under S.22(6) of Punjab Rented Premises Act, 2009, as the leave application was not filed within the prescribed time---Petition was allowed accordingly.

2010 CLC 1590 rel.

Imtiaz Ahmad Chauhan for Petitioners.

Qadeer Ahmad Rana for Respondents.

Date of hearing: 5th July, 2011.

2011 C L C 1782

[Lahore]

Before Ijaz Ahmed Chaudhry, CJ

Mst. MALIKA and 6 others----Applicants

Versus

HUMAYUN KHAN----Respondent

Transfer Application No.205-C of 2011, decided on 16th June, 2011.

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

----Ss. 20, 24 & O. XXXVII, R. 2---Suit for recovery of money on basis of promissory note---Transfer application by defendant on ground that Trial Court at place "J" had no jurisdiction to entertain same as he was residing in District "R"; that three of defendants being female could not pursue suit filed at place "J"---Validity---Money suit could be filed either at place where cause of action as a whole or fraction thereof had accrued to plaintiff or before court in whose jurisdiction defendant was residing or had ordinary place of business---Cause of action in favour of plaintiff had firstly arisen at place "J", where witnesses of promissory note were residing and whose production at place "R" would be inconvenient for plaintiff---Plaintiff was struggling for recovery of suit amount since year 2006, which he had paid to predecessor-in-interest of defendants in year 2003, thus, he could not be further burdened by transferring suit from place "J" to place "R"---Acceptance of such application would further multiply plaintiffs difficulties---Court at place "J" had jurisdiction to try present suit---High Court dismissed such application while directing Trial Court to decide suit within shortest possible time without caring for technicalities etc.

Khawaja Mehmood Hassan and another v. Zubair Ahmad and another 1988 CLC 1914; Pakistan Kuwait Investment Company (Pvt.) Ltd. v. Saadullah Khan and Brothers and 14 others 2010 CLD 760; Messrs Pak Suzuki Motor Co. Ltd. v. Muhammad Jumshad Saeed 2009 CLD 503 and Shehzad Hamayun v. Muhammad Akram 1991 MLD 530 ref.

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

----S. 20---Money suit, place of institution of---Scope---Plaintiff could file such suit either at place where cause of action as a whole or fraction thereof had arisen to him or before court in whose jurisdiction defendant was residing or had ordinary place of business.

Sheikh Mushtaq Ali for Petitioners.

Abid Saqi for Respondent.

2011 C L C 1803

[Lahore]

Before Muhammad Yawar Ali, J

USMAN YOUSUF and another----Petitioners

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 3 others----Respondents

Writ Petition No.8402 of 2011, decided on 13th July, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Using unfair means in examination---Disqualification---Petitioners, who were found cheating while appearing for Annual Examination, were served with show-cause notice and were given a personal hearing by Disciplinary Committee---Petitioners were found to be guilty and were disqualified for 1st year (two chances); and from appearing in any university examination---No mala fide was proved on the part of invigilating staff to have registered a false and unfair means case against the petitioners---Petitioners had been given every opportunity to defend themselves---No leniency could be shown in such-like cases---Constitutional petition was dismissed.

Azeem ul Haq Pirzada for Petitioners.

Malik M. Tariq Rajwana, Legal Advisor for Bahauddin Zakariya University, Multan.

2011 C L C 1810

[Lahore]

Before Kh. Imtiaz Ahmad, J

Mian ABDUL HAMEED----Appellant

Versus

Malik MUHAMMAD RIAZ and others----Respondents

S.A.O. No.2 of 2011, decided on 5th April, 2011.

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

----S. 13---Ejectment petition---Default in payment of rent, ground of---Tenant's plea that he used to pay rent through money orders before filing of ejectment petition---Proof---Tenant had failed to produce in evidence receipts of money order---Tenant had not confronted landlord with receipts exhibited in evidence of tenant that those were issued by landlord---Rent deposit order directing tenant to deposit rent for specified months would show that tenant had defaulted in payment of rent for such months---Ejectment petition was accepted in circumstances.

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

----Ss. 13 & 15---Ejectment petition---Sub-letting of demised premises, ground of---Denial of such ground by tenant---Ejectment order passed by Rent Controller upheld by Appellate Court---Tenant's plea that Rent Controller had not framed issue regarding sub-letting---Validity---Rent Controller had framed a general issue, whether landlord was entitled to relief prayed for---Evidence of landlord consisted of statement of photographer having taken photographs of demised premises showing its sub-letting by tenant---Tenant stated on oath that his petrol pump installed at demised premises was sealed by authority; and that he had not sublet demised property to property dealer or for keeping cattle there---All this would show that tenant was aware of controversy and he led evidence accordingly---Mere non - framing of issue would not matter in circumstances---High Court dismissed appeal in circumstances.

Shakeel Javed Chaudhry for Appellant.

2011 C L C 1815

[Lahore]

Before Syed Kazim Raza Shamsi, J

Ch. MUHAMMAD KABIR----Petitioner

Versus

Mst. FARRAH DEEBA through L.Rs. and others----Respondents

Writ Petition No.13038 of 2010, heard on 28th June, 2011.

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

----Ss. 13 & 15---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment---Application challenging the ejectment order on allegation of fraud and misrepresentation---Ejectment petition was accepted by Rent Controller on consenting statement of the tenant---Intervener filed application under S.12(2), C.P.C. challenging ejectment order, which application was dismissed by the Rent Controller and upheld by Appellate Court---After death of the intervener, his legal heirs filed fresh application under S.12(2), C.P.C.---Rent Controller dismissed said application being barred by law on the ground that in case of same subject-matter, against same decree, earlier application having finally been dismissed and proceedings had attained finality---Appellate Court, however, accepted said application on the ground that application was decided by the Rent Controller without framing issues and recording evidence of the parties and remanded the case for doing the needful---Validity---Order dismissing application filed under S.12(2), C.P.C., earlier passed having attained finality, same could not be re-opened subsequently by the successors-in-interest of the intervener---Decision of dismissal of previously filed application under S.12(2), C.P.C. by the intervener, and its maintainability was properly adjudged by the Rent Controller and subsequently the same was also dismissed against which a revision petition was filed, which was also dismissed---Orders passed by the court in the first round of litigation were final against the intervener and for all times to come against his successors-in-interest and could not be re-opened in the subsequent proceedings on the same grounds---Appellate Court had proceeded against the law while accepting appeal and remanding the case to the court below for further proceedings, which was not maintainable---Decision of Appellate Court below was declared illegal and of no legal consequence---Judgment of Appellate Court was set aside and that of the Rent Controller restored, in circumstances.

Malik Muhammad Nadeem for Petitioner.

Mushtaq Ahmed Chaudhry for Respondents.

Date of hearing: 28th June, 2011.

2011 C L C 1822

[Lahore]

Before Sh. Ahmad Farooq, J

YASIR MUNIR and others----Petitioners

Versus

CHAIRMAN, PEC and others----Respondents

Writ Petition No.19705 of 2010, decided on 15th July, 2011.

(a) Pakistan Engineering Council Act 1975 (V of 1976)---

----Ss. 10, 13, 14, 15 & First Schedule---Constitution of Pakistan, Art.199--- Constitutional petition--- Accreditation of engineering qualification--- Procedure--- Remedial exams, condition of---Petitioners had qualified B.Sc. Telecommunication Engineering Course from Government College University Faisalabad during academic session 2004-08---Petitioners had sought accreditation of their degrees from Pakistan Engineering Council---Plea raised by authorities was that the university was not accredited during the session when petitioners had completed their degree, therefore, petitioners had to appear in remedial exams conducted by the Council for grant of accreditation to them---Validity---Accredited engineering qualifications were included in the First Schedule of the Pakistan Engineering Council Act, 1975 and if not so included could be included in the Schedule through a notification in official Gazette---Before such notification, Pakistan Engineering Council was required to organize a comprehensive program of accreditation according to criteria approved by Governing Body---For such purpose, the curricula of courses of studies, minimum level and standard of such courses including lectures, laboratory, design, drawing and field work had to be examined and scrutinized by Pakistan Engineering Council through accreditation committees and Governing Bodies---Authorities had already granted conditional accreditation to Government College University Faisalabad for the students of session 2004-08 and the requirement of petitioners had borne fruit---Condition of qualifying the remedial exam imposed by the Council for registering the degrees of petitioner for B.Sc. Telecommunication Engineering was in accordance with law---High Court directed the Council to hold a remedial exam for the intake batch of 2004-08 only, at the earliest and recognize as well as register B.Sc. Telecommunication Engineering degrees of petitioners, in case they were able to qualify the remedial exam.---Petition was disposed of accordingly.

Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others PLD 2009 Lah. 22 ref.

(b) Constitution of Pakistan---

----Art. 25---Equal protection is conferred under Article 25 of the Constitution to the persons who are similarly placed.

Kh. Basit Waheed for Petitioners.

Mushtaq Ahmad Malik and Ch. M. Javed Pansoota, Zakir Hussain, Vice-Chancellor, Sh. Muhammad Akram, Registrar and Capt. (R) Muhammad Afzal Sipra, Head of Department, Government College University, Faisalabad for Respondents.

Date of hearing: 30th June, 2011

2011 C L C 1830

[Lahore]

Before Sagheer Ahmad Qadri, J

SHER AFGAN----Petitioner

Versus

SHER BAHADUR----Respondent

Civil Revision No.665-D of 2010, decided on 28th June, 2011.

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

----S. 13---Making of Talbs---Plaintiff, in the plaint, had only given date when he came to know the sale in question, and failed to mention the time and place of the Majlis before whom he came into knowledge of the sale as well as performance of 'Talb-e-Muwathibat'---Pre-emptor must disclose the date, time and place of pronouncement of Talb-e-Muwathibat without any ambiguity, unless such details were provided in the plaint, subsequent evidence to prove the performance of 'Talb-e-Muwathibat' was not acceptable---Mandatory for pre-emptor to prove performance of three Talbs, i.e. 'Talb-e-Muwathibat', 'Talb-e-Ishhad' and 'Talb-e-Khusumat' to exercise his right of possession through pre-emption in respect of sale---While giving details of performance of 'Talb-e-Muwathibat' i.e. date, time and place was to be recorded in the plaint and until and unless such details were provided in the plaint, no suit for pre-emption was maintainable.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977 rel.

Tahir Masood Qazi for Petitioner.

2011 C L C 1836

[Lahore]

Before Ijaz Ahmad, J

SADAM JAVED----Petitioner

Versus

JUDGE FAMILY COURT, MIAN CHANNU DISTRICT KHANEWAL and 2 others----Respondents

Writ Petition No.3750 of 2011, decided on 31st March, 2011.

(a) West Pakistan Family Courts Rules, 1965---

----R. 4---Civil Procedure Code (V of 1908), O.V, Rr.14 & 15---Omission or irregularity in signing and verification of pleadings and presentation of plaint---Effect---Plaint could not be rejected or suit could not be dismissed for such omission or irregularity for being rectifiable at subsequent stage---Principles.

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

----S. 5, Sched. Ss.10 & 18---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.22---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on basis of Khula filed through attorney/mother---Appearance of plaintiff in pre-trial conciliation proceedings through her attorney---Suit decreed by Family Court on failure of conciliation efforts upheld by Appellate Court---Validity---Party could not be deprived of his right to appear and defend suit through his/her attorney as such representation was permitted and recognized by S.22 of Legal Practitioners and Bar Councils Act, 1973 and S.18 of West Pakistan Family Courts Act, 1964---Right of a pardahnashin lady under S.18 of West Pakistan Family Courts Act, 1964 to appear through a duly authorized agent applicable to a person in general would apply to a party to suit also---Presence of parties in person in pre-trial conciliation proceedings was not obligatory, thus, their non-presence in person would not vitiate proceedings---Defendant, in the present case himself had not participated in such proceedings, thus, he could not object to appearance of plaintiff through her attorney---High Court dismissed constitutional petition in limine.

Shahida Perveen and another v. Sher Afzal and 2 others 2006 MLD 1752; Abdul Majid v. Mukhtar Begum and another PLD 1979 Note 50; Mst. Saeeda v. Lal Badshah 1981 SCMR 395; Khalid Mehmood Syed v. Razi Abbas Bokhari and another PLD 1979 Lah. 217 rel.

Sadiq Ali v. Mst. Bashiran and another 1979 CLC 647 ref.

Malik Muhammad Latif Khokhar for Petitioner.

2011 C L C 1839

[Lahore]

Before Syed Iftikhar Hussain Shah, J

AAMNA ABDULLAH----Petitioner

Versus

JUDGE FAMILY COURT, MULTAN and another----Respondents

Writ Petition No.10933 of 2010, decided on 24th May, 2011.

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

----Ss. 5, Sched. & S.10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula---Failure of pre-trial conciliation effort and passing of decree by Family Court subject to return of Rs.500 and 5 tolas gold ornaments paid to plaintiff as dower---Validity---Entry in Nikahnama showing payment of such dower to plaintiff at time of her marriage had not been challenged by her before any competent forum---Family Court under S.10(4) of West Pakistan Family Courts Act, 1964 was bound to pass decree upon restoration of dower to husband---Family Court therefore, had passed decree strictly in accordance with law---Plaintiff had filed constitutional petition after lapse of four years, thus, she was guilty of contumacious lethargy, inaction, laxity and gross negligence in enforcement of her right---High Court dismissed constitutional petition for being devoid of merits and suffering from laches.

Muhammad Zafar v. Judge, Family Court and another 2005 CLC 1844; Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531; Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others 2004 SCMR 400; S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126 and Masooda Begum through legal heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90 distinguished.

Mst. Rahmat v. Additional District Judge-II Muzaffargarh and 2 others PLD 2010 Lah. 308; Tayyab Iqbal v. Member (Colonies) Board of Revenue, Punjab, Lahore and 3 others 2005 CLC 1447; Shams Din v. Aman Ullah and 3 others 1987 PLD Lah. 471; Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072; Babar Islam v. Mst. Sheeba Bashir and another 2006 CLC 1662 and Abdul Haq Shahid v. District Judge, Toba Tek Singh and 2 others 2008 CLC 587 ref.

S.A. Jameel v. Secretary to the Government of the Punjab Cooperative Department and other 2005 SCMR 126 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Effect.

Khalil-ur-Rehman Mayo for Petitioner.

Rana Muhammad Javed Iqbal for Respondents.

2011 C L C 1862

[Lahore]

Before Abdul Waheed Khan, J

Mst. ENID NAJMUDDIN and 2 others----Petitioners

Versus

Mst. SURRIYA MALL and others----Respondents

Civil Revision No.826 of 2004, heard on 24th June, 2011.

Partnership Act (IX of 1932)---

----Ss. 39 & 48---Specific Relief Act (I of 1877), S.44---Limitation Act (IX of 1908), S.12 [as amended by Limitation (Amendment) Act (XIII of 1991)]---Suit for dissolution of partnership, rendition of accounts and appointment of receiver---Suit had been decreed by the Trial Court, appeal thereagainst was dismissed being barred by time---Decree sheet in the case was not drawn on the same day when it was passed, but was drawn after about one and half months from passing of the same---Application for obtaining copy of decree was filed by the defendant in the Copying Agency, 12 days after it was passed---No intimation or notice was given to the defendant to the effect that copy of decree had been prepared which could be collected from the Copying Agency---Defendant procured the copy of decree after more than 3 months from filing of application for its procurement and defendant thereafter filed appeal after about 13 days from obtaining same, which appeal was dismissed being barred by time---Validity---Under S.12 of Limitation Act, 1908, period requisite for obtaining of certified copies had to start from the date of application and was to be counted up to the date of delivery, regarding which date or intimation had to be given by the Copying Agency to the applicant about the preparation of the certified copy---In the present case, there was no material before the Appellate Court to ascertain that any information or intimation was given to the defendant that copy of the judgment and decree was ready for delivery---After deducting the period commencing from the date of filing application for obtaining certified copy up till delivery of copies, appeal filed by the defendant was well within the period of limitation---Appeal was held within time and Appellate Court was not justified to dismiss same on the point of limitation.

Ch. Mushtaq Masood for Petitioner.

M. Iqbal for Respondent No.1.

Respondents Nos.2 (i to iv) ex parte vide order dated 26-2-2007).

Date of hearing: 24th June, 2011.

2011 C L C 1891

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ALTAF HUSSAIN QAMAR and 2 others----Petitioners

Versus

IMRAN RASOOL and 5 others----Respondents

Civil Revision No.56 of 2011, decided on 25th May, 2011.

(a) 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---Non-compliance of condition---Dismissal of suit---Trial Court granted interim injunction with a condition to deposit balance consideration amount and failure to deposit the same would result into dismissal of the suit---Validity---Trial Court had rightly granted a stay order however to the extent that it directed that in case of failure of plaintiffs to deposit remaining sale price, the suit would stand dismissed, was beyond its jurisdiction while deciding an application under O.XXXIX, Rr.1 & 2, C.P.C.---Direction to deposit remaining sale price as a condition to grant temporary injunction might be justifiable but Trial Court could not direct that in the event of non-compliance of such requirement, the suit would stand dismissed---Business before Trial Court, on the date of passing the order in question, was to consider passing judgment on application under O.XXXIX, Rr.1 and 2, C.P.C. and the main suit was not fixed for such date and the Court could not take up the question of dismissal of the suit---High Court deterred that if the Courts below would be allowed to proceed to pass orders without or in excess of their jurisdiction and taking the parties by surprise, the same would play havoc with the scheme of Civil Procedure Code, 1908---Plaintiffs had filed the suit averring that there was an agreement to sell between the parties, which might be specifically enforced while the defendants had denied the existence of any such agreement, therefore, Trial Court could only decide the suit after framing of issues and recording of evidence---High Court, in exercise of revisional jurisdiction, modified the interim injunction/order to the extent that if remaining sale price would not be deposited in Court within the stipulated period, the order for grant of interim injunction would stand recalled---Revision was allowed accordingly.

1992 MLD 1699; PLD 1990 Lah. 82 and Qazi Muhammad Tariq v. Hasin Johan and 3 others 1993 SCMR 1949 rel.

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

----O. XXXIX, Rr.l & 2---Interim injunction---Condition, imposition of---Principle---Trial Court may grant interim injunction under O.XXXIX, Rr.1 & 2, C.P.C. as it thinks fit, which may include imposing of any condition keeping in view the criteria of presence of prima facie arguable case; factor of irreparable loss; and balance of inconvenience.

Ch. Muhammad Akram for Petitioners.

Ch. Abdul Sattar Goraya for Respondents.

2011 C L C 1912

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. JAMAL and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, JATOI, DISTRICT MUZAFFARGARH and another----Respondents

Writ Petition No.1870 of 2008, decided on 24th May, 2011.

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

----S. 25---Custody of minor boy and girl aged 2 & 3 years respectively---Contest between father and maternal-grandmother of minors---Father had murdered mother of minors in their presence---Father had contracted second marriage and had children from second wife---Father had not paid maintenance to minors despite passing of its decree in favour of minors and pendency of its execution against father---Father was not interested in welfare of minors and had filed application for custody only after filing of suit for maintenance by minors---According to statement of father's brother recorded in other proceedings, minors were studying in a Madrissa and School---Maternal grandmother and her sons owned land and she was bearing expenses of minors from her sources and money paid by her sons---Nothing was available on record to prove that maternal-grandmother had deployed minors in beggary; and that minors were not admitted in school---Under Islamic Law, in absence of real mother, mother's mother had right of "Hizanat" qua minor girl till attaining age of puberty and minor son till attaining age of seven years---Paramount consideration in such case would always be welfare of minors---Court while determining welfare of minor would keep in mind all available material and prevailing circumstances of each case---Father's application for custody of minors was dismissed in circumstances.

2004 SCMR 1382 ref.

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

----S. 25---Welfare of minor---Determining factors---Scope---Court while determining welfare of minor would keep in mind all available material and prevailing circumstances of each case.

Muhammad Akhtar Khawaja for Petitioners.

Abdul Rehman Khan Laskani for Respondent No.2.

2011 C L C 1923

[Lahore]

Before Syed Kazim Raza Shamsi, J

KHALIDA PERVAIZ----Appellant

Versus

CITY EDUCATION BOARD through Chairman City Public School Katchary Road, Sialkot and 7 others----Respondents

S.A.O. No.164 of 2004, decided on 29th June, 2011.

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

----Ss. 13 & 15(6)---Appeal---Ejectment of tenant---Relationship of landlord and tenant---Determination---Ownership of premises was decided by Supreme Court in favour of respondents, therefore, ejectment application and appeal filed by appellants against occupant of the premises were concurrently dismissed by Rent Controller and Lower Appellate Court---Plea raised by appellants was that possession of the premises was not handed over to the respondents, therefore, till that time the occupant would be treated as his tenant---Validity---Respondents were holding title under the orders of Supreme Court and by acting upon those orders of Supreme Court, Settlement Authorities issued Permanent Transfer Order in their favour---Respondents were not only owners of property in dispute but were also landlords for such purpose while the occupant was holding possession of demised premises on behalf of respondents who were in symbolic possession of disputed property---Concurrent findings of both the Courts below were based upon sound appreciation of evidence on the record and no interference was required by High Court in the same---Petition was dismissed in circumstances.

Muhammad Ismail Qureshi through his legal heirs v. Gulab Din and others 1988 SCMR 1001 rel.

Ms. Aaliya Neelum for Appellant.

Mian Zahad-ur-Rehman and Mian Rafi-ud-Din for Respondents.

Date of hearing: 14th June, 2011.

2011 C L C 1933

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. ZANIB BIBI through L.Rs. and others----Petitioners

Versus

PROVINCE OF PUNJAB through District Collector Lodhran and others----Respondents

Civil Revision No.202-D of 1995, heard on 14th June, 2011.

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

----Art. 33---Specific Relief Act (I of 1877), S.42---Declaration of title---Admission by referee---Scope---During the pendency of suit, matter was referred to a third person on the proposal of the counsel for the parties and on the statement of referee the suit was dismissed---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Plea raised by plaintiffs was that referee had no personal knowledge of the facts and they did not want to decide the matter on the statement of the referee---Validity---When a party to dispute referred the matter to a third person for opinion in the matter, the statement of that third person was binding on the parties and was to be considered as a statement of the parties---Referee in question had no personal knowledge about the matter and he got his statement recorded on the basis of hearsay evidence, therefore, he could not be termed as referee---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and matter was remanded to Trial Court for deciding the same on merits after recording of evidence of the parties---Revision was allowed accordingly.

1996 MLD 674; PLD 1970 SC 241; 2005 CLC 1949; 2003 CLC 161; 1989 SCMR 1083; PLD 2002 Lah. 190; 1996 CLC 1932; 1994 SCMR 1171; 1998 SCMR 468; Alamgir Khan and another v. Rashid 1988 CLC 1171; Ali Hussain v. Rafiquddin and 9 others PLD 1977 Lah. 418 and Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah. 672 ref.

Ch. Muhammad Hussain Jehanian and Ch. Saghir Ahmad for Petitioners.

Syed Izhar-ul-Haq Gillani for Respondents Nos.4 and 5.

Mian Tahir Iqbal and Makhdoom Syed M. Mumtaz Hussain Shah for Respondents Nos.6 to 10.

2011 C L C 1941

[Lahore]

Before Ch. Shahid Saeed, J

SHAHBAZ RASOOL and 4 others----Petitioners

Versus

AAMIR IMRAN and 7 others----Respondents

Civil Revision No.384 of 2011, heard on 4th July, 2011.

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

----S. 11---Competency of minors to enter into contract---Scope---Any contract or transaction entered into with minors, was void for being unauthorized---Section 11 of the Contract Act, 1872, would make the minors incompetent to enter into any contract---Law had forbidden enforcement of such transaction, even if minor was to ratify the same after obtaining majority---Minors could not be burdened with liability of a void contract.

Muhammad Ali through L.Rs. and another v. Manzoor Ahmed 2008 SCMR 1031; Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCMR 1629; Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 and Pervez Alam Khan and 15 others v. Muhammad Mukhtar Khan 2001 CLC 1489 rel.

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

----S. 115---Revision---Scope---Suit was concurrently dismissed by the Trial Court and Appellate Court---Courts below while passing the impugned judgments and decrees had taken into consideration all the material aspects of the case---Findings of both courts below on question of fact and law based on proper appreciation of oral as well as documentary evidence led in the suit, were not susceptible to review to be upset or substituted in revisional jurisdiction---Findings of the courts below based on material, on record would not be amenable to interfere with in revisional jurisdiction.

Taqi Ahmed Khan for petitioners.

Sh. Naveed Shahryar for Respondents.

Date of hearing: 4th July, 2011.

2011 C L C 1949

[Lahore]

Before Ijaz Ahmad, J

KOHINOOR TEXTILE MILLS LTD.----Petitioner

Versus

RAWALPINDI CANTONMENT BOARD, RAWALPINDI----Respondent

Writ Petition No.323 of 2007, decided on 6th July, 2011.

Cantonments Act (II of 1924)---

----Ss. 178-A, 179, 180, 181(6) & 273---Civil Procedure Code (V of 1908), O.XLIII, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Building plan---Statutory notice, non-issuance of---Appearance of counsel of Cantonment Board---Effect---Cantonment Board issued notice to petitioner company to demolish construction alleged to have been raised unauthorizedly---Petitioner contended that it had submitted all required documents and the Board had informed that offence of unauthorized construction had been compounded subject to payment of composition fee---Plea raised by the Cantonment Board was that construction raised prior to issuance of the notice was illegal and the same was liable to be demolished, further contended that petition was not maintainable as no prior notice under S.273 of Cantonments Act, 1924, had been issued by petitioner---Validity---Prior notice under section 273 of Cantonments Act, 1924, was synonymous to the provisions of O.XLIII, R. 3 C.P.C. and the latter mentioned provisions of law required sending of a notice before presenting an appeal against an order---If respondent or defendant in case of any such omission opted to appear in court of law, such appearance would amount to waiver of the notice---Any omission in verification of pleadings was rectifiable and the cause could not be quashed on account of the omission to verify pleadings at the foot---After receipt of first notice and elapse of one month and after elapse of 15 days more, the Cantonment Board was deemed to have given sanction to erection or re-erection of the building and that too unconditionally---Amount for composition of any offence if committed had to be fixed at a level that could discourage repetition of the offence and could not be fixed at such an exorbitant rate to facilitate local council to amass the wealth and to make fortune---Notice in question issued by the Board was illegal and the same was set aside resultantly the building plan after elapse of 30 days and 15 more days of receipt of first notice was declared to have been sanctioned by the Board unconditionally---Petition was allowed in circumstances.

State Life Insurance Corporation of Pakistan through Chairman and another v. Director General Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 1777 fol.

Raja Muhammad Akram and Malik Ghulam Sabir for Petitioner.

Mirza Viqas Rauf for Respondent.

2011 C L C 1959

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Petitioner

Versus

FAISAL TAHIR and 3 others----Respondents

Civil Revision No.428 of 2003, decided on 17th June, 2011.

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

----Arts. 117, 120 & 124---Missing person---Presumption---Date of death---Onus to prove---Person who has not been heard for seven years is presumed to be dead---If date of his death is claimed that has to be proved by the person who is claiming.

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

----Art. 124---Missing person---Presumption of death---Relevant persons---Principle---Relevant persons about presumption of death of a person are those who could naturally hear about the person as if he had been alive---Wife as well as sons and daughters are the first persons who can claim refuge under Art.124 of Qanun-e-Shahadat, 1984.

(c) Succession Act (XXXIX of 1925)-

----S. 381---Qanun-e-Shahadat (10 of 1984), Art.124---Succession certificate---Presumption of death---Insurance claim---Legal heirs filed application for issuance of succession certificate on the ground that their predecessor-in-interest was kidnapped 12 years ago and his whereabouts were not known, therefore, he should be presumed to be dead---Succession certificate issued by Trial Court in favour of legal heirs was maintained by Lower Appellate Court---Insurance company assailed the certificate on the plea that insurer could not pay the claim unless it was established that the insured had died---Validity---After elapse of 12 years no one had claimed that he had seen the insured person and insurance company was not claiming that it had evidence about fact that the insured was alive---It was a proven fact that insured was dead, insurance policy was covered against death of insured and as such insurance company was bound to pay insurance claim to legal heirs of insured in terms of succession certificate issued by competent court of law---Insurance claim had matured from the date of expiry of seven years which commenced from the date of kidnapping---High Court, in exercise of revisional jurisdiction declined to interfere in succession certificate issued by the courts below and insurance company was bound to pay the insurance claim to legal heirs of insured---Revision was dismissed in circumstances.

Gul Zaman v. Sher Zaman and others PLD 1972 Azad J&K 26 ref.

(d) Insurance Ordinance (XXXIX of 2000)---

----S. 122---Insurance Tribunal---Powers---Insurance Tribunal, in exercise of jurisdiction under S.122 of Insurance Ordinance, 2000, enjoys powers in respect of claim filed by policy holder against insurance company in respect of or arising out of a policy of insurance.

Jahanzaib Khan Bharwana for Petitioner.

Khalid Aseer Chaudhary for Respondents.

2011 C L C 1989

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. MUSARRAT ANDLEEB----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and 3 others----Respondents

Writ Petition No.2462 of 2008, decided on 26th May, 2011.

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

----S. 5 & Sched.---Dowry articles, recovery of---Proper parties---Scope---Jurisdiction vested in Family Court is determined on the basis of subject-matter and not on the basis of persons, permitted or entitled to invoke such jurisdiction---No provision was available in West Pakistan Family Courts Act, 1964, which classifies or in any way limits category of persons entitled to be a party to proceedings before Family Court.

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

----Ss. 2(d), 5 & Serial 8 of Schedule---Constitution of Pakistan, Art.199---Constitutional petition---Dowry articles, recovery of---Word "party"---Connotation---Plaintiff, after the death of her husband filed suit for recovery of dowry articles against relatives of her deceased husband---Both the Courts below concurrently dismissed the suit and appeal filed by plaintiff on the ground that such suit was only maintainable between spouses---Validity---Word "party" had a very wide meaning and was not necessarily confined to spouses and it included "any person" which in the "consideration" of Family Court was "necessary" for "proper decision" of the "dispute" and whom the Family Court might add as a party to dispute---Any suit of a subject-matter covered by the Schedule to West Pakistan Family Courts Act, 1964, could be instituted before Family Court---Claim of plaintiff for recovery of dowry was available at Serial number 8 of the Schedule to West Pakistan Family Courts Act, 1964, Family Court had jurisdiction to try and adjudicate upon the matter---High Court, in exercise of Constitutional jurisdiction, set aside the judgments and decrees passed by two courts below and case was remanded to Family Court for decision afresh---Petition was allowed in circumstances.

Muhammad Anwar and another v. Additional District Judge (Miss Uzma Akhtar Chughtai) and 2 others 2003 YLR 365; Manzoor Ahmad v. Muhammad Nawaz Siddiqui and others PLD 1975 Lah. 739 and Khan Asadullah Khan another v. Sheikh Islamud Din PLD 1978 Lah. 711 rel.

Mumtaz Hussain Malik for Petitioner.

Sardar Riaz Karim for Respondents Nos.3 and 4.

2011 C L C 1999

[Lahore]

Before Syed Kazim Raza Shamsi, J

Rana MUHAMMAD ASHRAF----Petitioner

Versus

TANVEER KAUSAR and others----Respondents

Writ Petitions Nos.4309 and 9469 of 2009, decided on 24th June, 2011.

West Pakistan Family Courts Act (XXXV of 1964)-

----Ss. 5 & 17-A---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance of minors---Annual increase---Family Court at the time of fixing monthly maintenance of minors imposed a condition of ten per cent annual increase in the maintenance---Validity---Levy of ten per cent increase in maintenance allowance by court was not supported by any statute---Provisions of West Pakistan Family Courts Act, 1964, did not provide levy of rate of enhancement while granting maintenance even to minors---Although S.17-A was added to West Pakistan Family Courts Act, 1964, which was subsequently further amended in the year, 2010, by directing courts to fix interim maintenance of minors at first date of hearing and in case of failure by father to provide the minors before 14th of each month, decree should follow forthwith but legislature did not add any levy of increase in maintenance annually---Legislature might add levy of rate of enhancement of maintenance allowance but this was intentionally not done---Without statutory sanction, Court had no jurisdiction to itself impose any condition of enhancement in the rate of maintenance---High Court set aside the levy of ten per cent per annum on the grant of maintenance allowance and decree passed by Family Court for maintenance allowance was accordingly modified---Petition was allowed accordingly.

Syed Samar Hussain Shah for Petitioner.

Syed Muhammad Shah for Respondent No.1.

2011 C L C 1

[Peshawar]

Before Sardar Shaukat Hayat and Yahya Afridi, JJ

FAHAD KHAN and 2 others---Petitioners

Versus

PRESIDENT, CECOS UNIVERSITY OF IT AND EMERGING SCIENCES and 2 others---Respondents

Writ Petition No. 2990 of 2009, decided on 31st August 2010.

(a) Constitution of Pakistan---

----Art. 199(5)---"Person" under Art. 199(5) of the Constitution, determination of---Essential criteria stated.

Three essential criteria to be fulfilled by any organization or authority or a body corporate, which can be learned as a "person" under Article 199, are: (i) exercising sovereign power, (ii) control of the organization or person is substantially in the hands of the Government, and (iii) the funds for the said organization are being provided by the State.

However, in cases where the administrative control of the Government over an organization is substantial in nature, in such cases the lack of financial contribution by the Government to the said person is not deemed to disregard the said organization as a "person".

University of Dacca v. Zakir Hussain PLD 1965 SC 90; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitchison College v. Muhammad Zubair PLD 2002 SC 326; Maqsood Ahmad Toor v. Federation of Pakistan 2000 SCMR 928; Pakistan Red Crescent Society ("PRCS") v. Syed Nazir Gilani PLD 2005 SC 806 and Pakistan Telecommunication v. Muhammad Zahid 2010 SCMR 253 rel.

(b) CECOS University of Information Technology and Emerging Sciences Ordinance (XXI of 2001)---

----Ss. 3, 4, 79, 18, 27 to 31, 40, 42 & 43--- Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Educational institution---Unfair means in examination--Holding of enquiry into such charge by Unfair Means Committee of the University---Imposition of penalty of cancellation of answer books by the Committee---University established in private sector was having control over its financial and administrative functioning and affairs through its officers and authorities---Provincial Government had no direct or substantial control over running or management of affairs of University---Powers of Governor of the Province as Patron-in-Chief of University. were restricted only to preside over convocation and confer honorary degrees---President of University was Managing Director of CECOS Educational Institutions (Pvt.) Ltd., Peshawar---President of the University had powers to approve Statutes, Rules and Regulations to be framed under CECOS University of Information Technology and Emerging Sciences Ordinance, 2001---University had to generate its funds from income, fees, donations, trust endownments, grants and contributions---Ownership of properties and assets moveable and immovable of University were vested in the company---Such University was not a "person" as envisaged under Art. 199(1)(a)(i) of the Constitution but was a "person" as envisaged under Art.199(1)(c) thereof---Rules and Regulations of such University framed under the Ordinance, by Board of Governors with approval of President of the University were not statutory---Provincial Government had no role in framing or approving such Rules and Regulations---Violation of Examination Regulations of the University, for not being statutory, would not be amenable to judicial review or enforcement under Art.199 of the Constitution---University had provided complete opportunity to petitioner to plead his defence to charges and offered him personal hearing---Competent authority had given reasons in support of impugned order and acted as a parental authority while allowing him to join special short coaching classes---High Court dismissed constitutional petition in circumstances.

Anushka's case PLD 2007 Lah. 568; Professor Wali Khan v. Hamdard University 2006 PLC 437; Iftekhar Hussain v. Lahore School of Management 2006 YLR 1216; Tehmina Iqbal v. The Principal 1994 SCMR 958; Rabia's case PLD 2005 Lah. 616; Mst. Kanee's case 2009 YLR 1462; University of Dacca v. Zakir Hussain PLD 1965 SC 90; Muhammad Shahid v. University of Peshawar PLD 1991 Pesh. 71; Mst. Saleha v. University of Peshawar PLD 2003 Pesh. 69; Mian Mohsin Shah's case PLD 1995 Pesh. 43; Muhammad Jamil v. University of Peshawar 2000 CLC 1112; Mushtaq Ali Shah v. NED 2010 SCMR 705; Chairman Syndicate of Peshawar 2007 SCMR 703; Khalid Khan v. Gomal University PLD 1991 Pesh. 7; Aitchison College's case PLD 2002 SC 326 and Pakistan Telecommunication's case 2010 SCMR 253 ref.

Chairman WAPDA v. Jamil Ahmad 1993 SCMR 346 and Muhammad Yousaf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 rel.

(c) University of Peshawar Act (XXXI of 1950)---

----S.3---Constitution of Pakistan, Art.199---University of Peshawar--Treating University of Peshawar as a "person" as envisaged under Art.199 of the Constitution---Scope---Creation of said University by a statute---Direct, substantial and effective role of provincial government in affairs and running of such University---Governor of the Province having powers to approve statutes of such University---Chancellor (Governor) having authority to remove any person from membership of any authority of University---Syndicate of University having Education Secretary as a member having powers of supervision over affairs and management of property of University---Generation of fund by University from its own income, fee, donation, trust, endowment, grants and other sources including funds being channelled from provincial Government---Government Auditor having authority to approve annual statements of accounts of University---Committee consisting of Vice-Chancellor and Education Secretary having powers to settle dispute about membership of any person of any authority of University---Chancellor having powers to give directions to remove any difficulty in implementation of provisions of University of Peshawar Act, 1950---Such University, held was a "person" as envisaged in Art.199 of the Constitution.

(d) Constitution of Pakistan---

----Art.199---Provisions of Art. 199(1)(i), Art.199(1)(c) and Art.199(5) of the Constitution---Distinction between the provisions highlighted.

(e) Constitution of Pakistan---

----Art. 4 & 199---Constitutional jurisdiction of High Court---Scope---Excess of a statutory body---Absence of statutory rules---Blatant violation of Fundamental Rights of a citizen or a breach of due process of law as protected under Art.4 of the Constitution---High Court in such case would not remain silent over excess of a statutory body, but would come to rescue of aggrieved person.

(f) Constitution of Pakistan---

----Art. 199(1)(a)(i)---Term "law" as used in Art.199(1)(a)(i) of the Constitution---Scope---Such term not restricted to merely statute law.

Government of West Pakistan v. Begum Agha Abdul Karim Suresh Kashmiri PLD 1968 SC 14 and Mrs. Aneesa Rehman v. PIAC 1994 SCMR 2232 rel.

Abdul Latif Afridi for Petitioners.

Shomail Ahmad Butt for the Respondents.

Date of hearing: 12th August, 2010.

2011 C L C 42

[Peshawar]

Before Zia-ur-Rehman Khan, J

NADIR KHAN---Petitioner

Versus

IMAM GUL---Respondent

Civil Revision No. 901 of 2005, decided on 9th August, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court dismissed suit filed by the plaintiffs, but Appellate Court, setting aside judgment of the Trial Court decreed suit---Plaintiff had totally omitted to mention in his examination-in-chief the necessary details of time, date, place and witnesses of making Talb-e-Muwathibat and had simply mentioned the name of the informer---Attesting witnesses of the notice of Talb-e-Ishhad were silent about their presence with the informer at the place from where the plaintiff was telephonically informed about the sale in question by the informer---Witnesses had also not stated about the observance of first formality of Talb-e-Muwathibat by the plaintiff, nor they had given the requisite details in their examination-­in-chief---Pre-emptor not only was required to give the requisite details in his plaint, but he also was required to substantiate the said details through his evidence as well, but the plaintiff had failed to do that---First formality of Talb-e-Muwathibat stood unfulfilled and the suit of the plaintiff could not be decreed, in circumstances---On date when notice of Talb-e-Ishhad was scribed and purportedly was given by the counsel on behalf of the plaintiff; no Wakalatnama was on the record on behalf of the plaintiff in favour of the counsel, meaning thereby that on said date neither counsel was authorized to scribe said notice on behalf of the plaintiff nor said attorney was delegated with any power to instruct the counsel for doing so---Whatever was done on behalf of the plaintiff was without any authority and same, in absence of any proof, could not be given ratification retrospectively---Impugned judgment and decree recorded by Appellate Court being perverse in nature and based on summaries and conjectures, was set aside and decision of the Trial Court was restored and suit filed by the plaintiff was dismissed, in circumstances.

2007 SCMR 962; 2009 SCMR 488; 2008 SCMR 934 and Muhammad Fazal Paracha v. Mst. Fauzia Begum PLD 2003 Pesh. 40 ref.

Abdul Sattar Khan for Petitioner.

Abdul Samad Khan Zaida for Respondent.

Date of hearing: 28th April, 2010.

2011 C L C 83

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

AUQAF DEPARTMENT through Administrator, Auqaf, N.-W.F.P. Peshawar and another---Petitioners

Versus

Mian JAMIL SHAH, and 18 others---Respondents

Write Petition No. 1448 and Civil Revision No. 1082 of 2005, decided on 22nd October, 2010.

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

----O. VII, R.11---Rejection of plaint---Application for---Scope---Application under O. VII, R.11, C.P.C., no doubt, could be considered at very preliminary stage of the suit and the purpose behind the same was burial of an incompetent suit at its inception, but the said provision could only be invoked when bare reading of the plaint did not disclose any cause of action or the same was barred by law---When the plaint referred to certain facts alleged in the plaint which required further probe through recording of evidence and considering of other material available on the record, in that case, application under provisions of R.11 of O. VII of C.P. C. was not maintainable.

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

----S. 42---Civil Procedure Code (V of 1908), O. VII, R.11--Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Rejection of plaint---On filing suit by the plaintiff, defendants in their written statement raised question of jurisdiction of civil court and filed application for rejection of plaint filed by the plaintiffs---Said application had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Plaint as well as written statement of defendants, did not disclose the material facts; whether the suit property was the waqf property or not; whether it was the ownership of plaintiffs as alleged by them or the notified waqf property as claimed by the defendants---When such facts still had to be determined, in that situation, one could not determine such question without the help of other material in the shape of evidence on record---Defendants had alleged bar of jurisdiction of civil court and the decision of the Trial Court on their application would reveal that the question of jurisdiction had not been decided by the Trial Court rather their application had been dismissed as premature and meritless---Findings in that regard given by Trial Court appeared to be well within the framework of law; and the revision against the same was also rightly dealt with being barred by law of limitation as well as on merits---High Court in exercise of jurisdiction under Art.199 of the Constitution could not intervene to help out the defendants, in the given circumstances.

Abdul Sattar Khan for Petitioners.

Altaf Ahmad for Respondents.

Date of hearing: 23rd September, 2010.

2011 CLC139

[Peshawar]

Before Yahya Afridi, J

LIAQAT ALI---Petitioner

Versus

ABDUL WADOOD---Respondent

Civil Revision No. 1552 of 2004, decided on 15th October, 2010.

North-West Frontier Province Pre-emption Act (I of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.5---Pre-emption right---Pleadings---Talb-i-Muwathibat---Non-mentioning of time and place in plaint---Concurrent findings of fact by two courts below---Suit and appeal filed by pre-emptor were dismissed by Trial Court and Lower Appellate Court respectively on the ground that he did not mention time and place of Talb-i-Muwathibat in his plaint---Plea raised by pre-emptor was that time and place of Talb-i-Muwathibat was though not mentioned in the plaint but the same was mentioned in notice of Talb-i-Ishhad---Validity---Failing to mention essential particulars about a fact in pleadings would result in depriving that person to prove the same in evidence---No person could go beyond his pleadings---Judgments and decrees passed by two courts below were maintained by High Court---Revision was dismissed in circumstances.

Sabahuddin v. Mir Ali Jan 2001 SCMR 543; Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Pesh. 189; Haji Din Muhammad v. Mst. Hajra Bibi PLD 2002 Pesh. 21; Roohul Qadoos v. Muhammad Rafique 2002 CLC 379; Hikmatullah Shah v. Mst. Meera 2000 CLC 336; Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219; Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Khadim Hussain v. Ghulam Eissa 2009 SCMR 488; Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 and Altab Hussain v. Abdul Hamid 2000 SCMR 314 ref.

Fazal Din v. Muhammad Inayat 2007 SCMR 1; Fazal Subhan v. Mst. Sahib Jamal PLD 2005 SC 977 and Haji Muhammad Salim v. Khuda Bukhsh PLD 2003 SC 315 rel.

M. Tariq Javed for Petitioner.

Sher Dil Khan for Respondent.

Date of hearing: 12th October, 2010.

2011 C L C 164

[Peshawar]

Before Liaqat Ali Shah and Syed Sajjad Hassan Shah, JJ

PESCO through Chief Executive, WAPDA House, Peshawar and 4 others---Petitioners

Versus

Mts. TARIQ COLD STORAGE through Managing Director and 3 others-Respondents

Writ Petition No. 519 of 2009, decided on 14th September, 2010.

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

---Ss. 114, 151, O. VIII, R. 10, O. IX, R. 13 & O. XLVII, R. 1---Striking off defence of defendant for non filing of written statement despite availing numerous opportunities---Dismissal of review petition for non-prosecution filed by defendant against striking off his defence---Order of ex parte proceedings against defendant for non­appearance---Application under O. IX, R. 13 read with S. 151, C.P.C., for setting aside order of ex parte proceedings accepted by Trial Court on payment of cost while permitting defendant to file written statement---Validity--Conduct of defendant throughout proceedings of case had been contumacious and negligent---Order of striking off defence for not being challenged in appeal had attained finality---Review, though dismissed for non prosecution, was not competent against order of striking off defence for not falling within purview of S. 114 read with O. XLVII, R. 1, C.P.C.---Permission to file written statement in wake of provision of S. 151 C.P.C., was illegal exercise of powers, thus, was without jurisdiction and coram non judice---Powers under S. 151, C.P.C. could not be exercised in case of availability of other adequate remedies or applicability of express

provision of law---Trial Court had no power to sit on its own order of

striking off defence as an Appellate Court and pass impugned order---Defendant in his application had not prayed for relief of filing written statement---Impugned order was suffering from illegality, irregularity and jurisdictional defect---High Court set aside impugned order in circumstances.

Muhammad Farid v. Mst. Shahnaz Begum and 5 others PLD 1987 AJK 44; M/s. Conforce Limited v. Syed Ali Shah and others PLD 1997 SC 599; Mrs. Mehar Sultan Jung v. Qurban Hussain 1972 SCMR 73 and Mardan Shah v. Sittara and others PLD 1954 Lah. 87 rel.

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

----S. 151-Power under S. 151, C.P.C., exercise of---Scope---Such power was not exercisable in case of availability of other adequate remedies or applicability of any express provision of law---Principles.

Trial Court under section 151, C.P.C., enjoying no power to exercise, when other adequate remedies are available.

Section 151, C.P.C., is enabling provision, intent and purpose of the law maker was that inherent powers only to be exercised when there is no express provisions of law applicable, the court is empowered to resort to the powers for advancement of cause of justice, therefore, under this section omnibus and indiscriminate exercise of powers by a court of law in adjudication of lis not permissible, amounts the violation and over stepping of prescribed parameters of the law, not only amounts to misuse of powers but thereby promoting, facilitating and encouraging an indolent party to suit, who has failed to exhaust the remedies provided under law.

While exercising the powers under section 151, C.P.C., the court must be at guard that the powers exercised for furtherance of cause of justice not misused or causing injustice to other party or having the overriding effect over the express provisions contained in law, no order can be passed while exercising such inherent powers whenever there is other remedy available to the party to redress the wrong so suffered.

Muhammad Farid v. Mst. Shahnaz Begum and 5 others PLD 1987 AJK 44; M/s. Conforce Limited v. Syed Ali Shah and others PLD 1997 SC 599; Mrs. Mehar Sultan Jung v. Qurban Hussain 1972 SCMR 73 and Mardan Shah v. Sittara and others PLD 1954 Lah. 87 rel.

(c) Administration of justice---

----Act done in a manner other than provided under law would be unlawful --- Principles.

The act must be done in the manner as provided under the law or not at-all.

If doing of an act is made lawful in a particular manner, if performed in any other manner not provided under the law would be unlawful.

Qayum Nawaz and 128 others v. The State PLD 2002 Pesh. 36 and PLD 2002 Pesh. 50 rel.

Gul Nazir Azam for Petitioners.

Khalifullah Khalil for Respondents.

Date of hearing: 14th September, 2010.

2011 C L C 186

[Peshawar]

Before Zia-ur-Rehman Khan, J

SULTAN AHMAD and others---Petitioners

Versus

LATIF AHMAD and others---Respondents

Civil Revision No. 186 of 2003, decided on 11th October, 2010.

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

----S.42---Transfer of Property Act (IV of 1882), S.41---Declaration of title---Ostensible owner---Proof---Right / title of vendee is dependent upon the strength or weakness of title of seller, who cannot confer better title than he himself holds---Purchaser in order to invoke provisions of section 41 of Transfer of Property Act, 1882, must prove his bona fide purchase through convincing evidence that his transferor was ostensible owner.

Muhammad Shamim through Legal Heires v. Mst. Nisar Fatma 2010 SCMR 18 rel.

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

----Art. 129 (e)---West Pakistan Land Revenue. Act (XVII of 1967), S.42---Entries in revenue record---Presumption---Once entries of revenue record are held and declared to be based upon no legal title, the same cannot be treated as sacrosanct because such-like entries must be product of some unlawful ownership.

Misri v. Muhammad Sharif 1997 SCMR 338 rel.

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

----S.42---Declaration of title---Co-owners---Limitation---Concurrent findings of fact by two Courts 'below-Plaintiffs claimed to be owners of suit land and sought rectification of revenue record---Trial Court and Lower Appellate Court decided the matter in favour of plaintiffs---Plea raised by defendants was that suit filed by plaintiffs was barred by limitation---Validity---Plaintiffs were proved to be owners to the extent of 4/11 shares, therefore, they were co-owners in suit Kimura numbers with defendants and being so the :question of limitation was not attracted---Factum of any inaction or omission on the part of defendants was termed by the Courts below to be the result of their being minors at that time---Both the Courts below, after scanning and subjective examination of entire material available on the record had rightly admitted claim of plaintiffs by passing decree in their favour and did not commit any irregularity or illegality in recording the judgments---Judgments of lower courts were not vulnerable to any attack and exception---Revision was dismissed in circumstances.

Amir Gulab Khan for Petitioners.

Muhammad Saeed Khan Shangla for Respondents.

Date of hearing: 11th October, 2010.

2011 CLC 208

[Peshawar]

Before Sardar Shaukat Hayat, J

WASIF ULLAH and others---Appellants

Versus

FAQIR MUHAMMAD and others---Respondents

Civil Revision No. 365 of 2010, decided on 6th September, 2010.

Civil Procedure Code (V of 1908)---

----O.XIV, R.1---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Trial Court dismissed the suit---Appellate Court dismissed appeal---Plaintiff contended that suit was not hit by doctrine of res judicata as neither plaintiffs nor their predecessors were parties to the earlier suit---Validity---Trial Court decided the questions of limitation and res judicata without framing the issues and recording evidence whereas it should have framed preliminary issues---High Court set aside judgments of courts below and remanded the case to Trial Court for decision afresh after framing of issues and recording of evidence.

2008 SCMR 1037; 2001 MLD 1785; 2003 SCMR 1284; AIR 1943 Pesh. 83; 1989 CLC 1571 and PLD 1985 SC 153 ref.

Riaz Ali Khan for Appellants.

Sherzada Khan Khattak for Respondents.

Date of hearing: 27th August, 2010.

2011 CLC227

[Peshawar]

Before Sardar Shaukat Hayat, J

IRSHAD BEGUM and another---Petitioners

Versus

HIDAYATULLAH and others---Respondents

Civil Revision No. 509 with C.M. No. 517 of 2010, decided on 30th August, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13---Suit for recovery of rent---Trial Court struck off defendants' right to produce evidence and decreed the suit ex pane-Appellate Court also dismissed the appeal for being time barred---Validity---Defendants remained extremely negligent and absented themselves from the proceedings of the case; they failed to produce evidence despite several opportunities given by the court distentiling themselves to any leniency---Revision was dismissed in circumstances.

Muhammad Saleem and others v. Mukhtar Ahmad 1996 SCMR 596; Ghulam Rasool and others v. Ahmad Yar and others 2006 SCMR 1458 and Shahid Pervez v. Muhammad Ahmad Amin 2006 SCMR 631 fol.

Barrister Adnan Saboor Rohaila for Petitioners.

Muhammad Javed Yousafzia for Respondents.

2011 C L C 244

[Peshawar]

Before Abdul Aziz Kundi and Zia-ur-Rehman Khan, JJ

PRESTON EDUCATION PESHAWAR PVT. LTD. through Vice-Chancellor Preston University---Appellant

Versus

YOUSAF SHAH---Respondent

R.F.As. Nos. 243 and 202 of 2010, decided on 14th October, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13 --- Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Informer's name not mentioned in notice of Talb-e-Ishhad or in plaint, rather his name introduced during evidence, whereas witness to notice of Talb-e-Ishhad not claimed during evidence to be informer of suit sale---Validity---Performance of both such Talbs would serve as a foundation for exercise of a valid right of pre­emption---Right of pre-emption being a feeble right and even a single legal infirmity in its exercise would be sufficient to non-suit pre­emptor---Plaintiff (pre-emptor) could not substantiate and prove any fact beyond scope of pleadings, thus, evidence brought on record regarding such fact would be ignored and discarded---Apart from other details, informer's name must not only be specifically mentioned in notice of Talb-e-Ishhad and plaint, but must be meticulously proved by pre-emptor through tangible and concrete evidence---Pre­emptor had. failed to prove first formality of Talb-e-Muwathibat being sine qua non in such suit---Performance of second formality of notice of 'Talb-e-Ishhad, even if believed to have been proved, became inconsequential iv such circumstances---Pre-emptor was not entitled to grant of decree, thus, his suit was dismissed in circumstances---Principles.

2003 MLD 870; 2006 CLC 604; 2009 CLC 880; 2010 SCMR 1796; Khadim Hussain v. Ghulam Isa 2009 SCMR 488; Muhammad Anwar v. Muhammad Sultan 2008 SCMR 934; Ahmad Hassan v. Muhammad Aslam 2007 SCMR 962; Haji Muhammad Salim v. Khuda Bakhsh PLD 2003 SC 315; 2009 SCMR 678 and Muhammad Iqbal v. Ali Sher 2004 SC 1682 rel.

(b) Pleadings---

----Plaintiff could not substantiate and prove any fact beyond scope of pleadings, thus, evidence brought on record in respect of such fact would be ignored and discarded.

Muhammad Iqbal v. Ali Sher 2004 SC 1682 rel.

Abdul Sattar Khan for Appellant.

M. Rafiq Khan for Respondent.

Date of hearing: 14th October, 2010.

2011 C L C 265

[Peshawar]

Before Zia-ur-Rehman Khan, J

HASNAIN FARAZ---Petitioner

Versus

CHAIRMAN through B.I. S. E. and others---Respondents

Civil Revision No. 886 of 2010, decided on 18th October, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Plaintiff sought correction in his date of birth in record of Board of Intermediate and Secondary Education (defendants)---Trial Court dismissed suit and Appellate Court dismissed the appeal---Validity---Evidence produced by the Board could not rebut plaintiff's date of birth mentioned in birth certificate---Plaintiff, a young college student, could not be presumed to have instituted the suit in order to gain any undue advantage to the detriment of anyone else---Concurrent findings of courts below could not be treated as sacrosanct if the High Court had come to the irresistible conclusion that such findings were perverse, fanciful or arbitrary---Concurrent findings of lower courts had resulted in grave miscarriage of justice and the same could not be sustained---Revision petition was accepted, judgments and decrees of courts below were set aside.

2009 YLR 1296; 1997 CLC 262; 1994 MLD 2008 and Haji Muhammad Amin v. Messrs Frontier Ceramics Peshawar Ltd. PLD 2005 Pesh. 69 rel.

2008 SCMR 713 distinguished.

Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 fol.

Mehmood Alam Khan for Petitioner.

Miss Shakila Begum for Respondents.

Date of hearing: 15th October, 2010.

2011 C L C 275

[Peshawar]

Before Syed Sajjad Hassan Shah, J

RAHIM ULLAH and 8 others---Petitioners

Versus

MUHAMMAD SIDDIQUE and 9 others---Respondents

Civil Revision No. 1242 of 2004, decided on 29th June, 2010.

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

---Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.127---Plaintiffs filed suit for declaration along with permanent injunction and possession on the ground that plaintiffs being legal heirs of the deceased were entitled to their shares in the disputed property and urged mutation of gift and sale transaction to be cancelled and correction of revenue record to the extent of their shares---Defendants contested suit on the ground that gift mutation was attested after completion of all the formalities required for a valid gift and transfer of land after payment of sale consideration---Trial Court partially decreed the suit to the extent of prayer for cancellation of gift mutation while dismissed rest of the suit---Appellate Court, on appeals, filed by both the parties, dismissed the partial judgment and decree passed by Trial Court---Validity---Evidence available on record showed that possession had not been delivered to the donee, moreso, the acceptance of gift had not been proved on behalf of the donee---Conduct of the defendants showed that no such gift was made by the deceased---Disputed property was susceptible to the delivery of actual possession, despite that the defendants got possession after the death of the donor---Non-delivery of possession had made the alleged gift invalid---Nothing had been brought on record to rebut the evidence produced by the defendants in support of mutation of sale and good faith of defendants as mandated by Art.127 of Qanun-e-Shahadat, 1984---Defendants had failed to discharge onus of proof placed on them under the law---High Court partially allowed the revision petition and declared the disputed mutation unlawful, unlslamic and void and ordered to be cancelled and entries made in revenue record on the strength of the said mutation were directed to be corrected---Judgment and decree passed by Appellate Court were modified and set aside to such extent and the judgment and decree passed by Trial Court were restored.

Sardar Ahmed Khan v. Mst. Zamroot Jan PLD 1950 Pesh. 45; Barkat Ali v. Mst. Barkat Bibi and another 1991 MLD 2707 and Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339 rel.

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

----S. 6(h)---Contract Act (IX of 1872), S.2(g)---Gift---Validity---Transfer of disputed property vide impugned mutation had not been made for lawful object and consideration but to deprive legal heirs of the party from their legal rights in the property of their father---Gift apparently did not fulfil the prerequisites of a valid gift---Transaction of gift could not be saved under the law.

(c) Islamic law---

----Gift---Validity---Held, in the wake of frivolous gift, the females in the family deprived of, the course of inheritance prevalent at present time, the courts were not divested of powers to scrutinize the reasons and justifications for a gift so that no injustice was done to the rightful owners.

Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339 rel.

Principles of Muhammadan Law by D.F. Mulla section 150 ref.

(d) Islamic law---

----Gift---Validity---Any transaction whereby the rightful heir was deprived of her/his propositus or any other person deriving the advantage of the legal incapability and old age of a close relative, the transaction would be hit by Islamic law and the provisions of Art.127 of the Qanun-e-Shahadat, 1984; S.6 of the Transfer of Property Act, 1882 and S.2(g) of the Contract Act, 1872 and could be declared as unlawful and nugatory to the principles of Islamic law.

Principles of Muhammadan Law by D.F. Mulla section 150 ref.

(e) Islamic law---

----Gift--- Validity--- Validity of gift transaction was subject to the completion and fulfilment of the prerequisites of a valid gift.

Principles of Muhammadan Law by D.F. Mulla S. 150. ref.

Abdul Sattar Khan for Petitioners.

S.M. Attiq Shah for Respondents.

Date of hearing: 29th June, 2010.

2011 C L C 284

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

ABDUL QAYYUM---Petitioner

Versus

Mst. GOHAR BEGUM and others---Respondents

Civil Revision No. 599 of 2004, decided on 8th October, 2010.

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

----S. 115---Limitation Act (IX of 1908), S. 3---Revision---Suit involving issue of limitation---Dismissal of suit by Trial Court while finding suit to be within time---Non filing of cross-objection by defendant against findings on such issue in appeal filed by plaintiff-Acceptance of plaintiff's appeal by Appellate Court without reversing findings on such issue---Remand of case by High Court in revision for recording additional evidence by Trial Court---Dismissal of suit by Trial Court again while keeping intact its previous findings on such issue-Non-filing of cross-objection by defendant against findings on such issue---Acceptance of plaintiff's appeal by Appellate Court---Defendant's plea in revision that suit was time-barred---Validity---Appellate Court had once again kept intact findings on issue of limitation already recorded in plaintiff's favour---Findings regarding such issue had attained finality, which could not be re-opened at such belated stage---High Court repelled such plea.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 117---Suit for declaration---Sale mutation attested on 25-3-1976 in favour of defendant-vendee by vendor (predecessor-in-interest of plaintiff) was alleged to be forged as vendor was insane and admitted in Mental Hospital on 8-4-1952 and died there on 28-1-1981---Proof---Record of Hospital produced in court did not carry any entry regarding discharge of vendor in between 8-4-1952 and 28-1-1981, whereas Record Keeper showed his inability regarding such entry---Record-Keeper expressed his ignorance as to whether vendor was discharged from Hospital from time to time or whether he remained indoor patient during such period----History Sheet of vendor produced in court showed check-up report on 22-6-1972 and 29-10-1977, but did not contain any entry regarding his periodical discharge from Hospital or medicine suggested to him---Case of vendee was not that vendor's insanity was having a history of lucid intervals---Vendee's son instead of vendee examined himself as witness, who was neither an eye-witness to suit mutation nor familiar with vendor---Vendee during course of his evidence neither mentioned in list of witnesses nor examined one marginal witness and identifier of suit mutation, who was alive then---Court refused to issue summons against Patwari Halqa and Naib Saddar Qanungo for not being named in list of witnesses of vendee, but provided him a chance to produce them, and he failed to do so---Vendee neither examined private witnesses mentioned in his list of witnesses nor did produce any evidence from locality or relatives of vendor to establish that at time of attestation of suit mutation, vendor was in senses and not insane---Burden was on vendee as beneficiary of suit mutation to establish that suit land had validly been sold to him by vendor while in full senses, but he miserably failed to do so---Plaintiff had established complete insanity of vendor during period right from 8-4-1952 till his death on 28-1-1981 in Mental Hospital---Suit was decreed in circumstances.

AIR 1932 Rangoon 24; AIR 1938 Nagpur 204; PLD 1954 Pesh. 52; PLD 1963 Dacca 253; PLD 1982 SC 46 and 1994 MLD 747 ref.

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

----O. I, R. 9---Mis-joinder or non joinder of appropriate parties, ground of---Validity---Plaintiff, if found entitled to grant of requisite decree, would not be refused same merely on such ground.

PLD 1954 Pesh. 52 ref.

Abdul Sattar for Petitioner.

Haji Raz Mehmood, Attorney for Respondents.

Date of hearing: 22nd September, 2010.

2011 C L C 309

[Peshawar]

Before Ejaz Afzal Khan, C.J., and Mazhar Alam Khan Miankhel, J

SAID AMIN---Appellant

Versus

Mst. NAYAB and others---Respondents

R.F.A. No. 5 of 2010, decided on 24th November, 2010.

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

----Arts. 72, 117 & 120---Document, proof of---Principle---Onus to prove---Where execution of document is denied by other party then heavy burden lies on the beneficiary of that document not only to prove execution of the document butalso its contents---Beneficiary is also required to prove that such document was executed by the person with his free will, without any undue influence and coercion.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 72, 117 & 120---Specific performance of agreement to sell---Proof---Old and sick person---Extraordinary measures---Effect---Plaintiff claimed to have entered into agreement to sell the suit property against payment of consideration---Suit filed by plaintiff was dismissed by Trial Court---Validity---Agreement in question revealed that vendor of suit property (since deceased) signed the document twice without any reason---Notary public attesting the document also confirmed that vendor had signed and thumb impressed the deed in his presence---Back of the agreement, which was separately exhibited in the statement of stamp vendor again revealed that the same was signed twice and thumb impressed by deceased vendor of property and again his signatures and thumb impression were verified by Oath Commissioner---Such factors too would be sufficient to cast serious doubts regarding extraordinary measures taken by plaintiff, as in routine nothing of the sort was done in such a manner---Entry of register of petition writer also reflected such like precautionary measures that he completely incorporated the agreement to sell in his register---Petition writer also made entry with regard to date, time and serial number of purchase of stamp paper by also writing name of stamp vendor---Such fact reflected that some extraordinary measure and care was taken to present the document like a genuine one executed by the vendor with his free will and independent advice without any coercion and undue influence---Plaintiff failed to prove genuineness of agreement to sell and payment of sale consideration through cogent and reliable evidence in absence of which claim of plaintiff could not be entertained---High Court in exercise of appellate jurisdiction declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Mst. Marrayum Bibi v. Khan Muhammad (deceased) through Legal Heirs and others 2004 YLR 288 and Muhammad Nazir v. Khurshid Begum 2005 SCMR 941 rel.

Amjad Ali for Appellant.

Muhammad Shoaib Khan for Respondents.

Date of hearing: 24th November, 2010.

2011 CLC 334

[Peshawar]

Before Sher Muhammad Khan, J

FAZAL ELLAHI---Appellant

Versus

AKHTAR ALI---Respondent

Regular First Appeal No. 27 of 2009, decided on 17th September, 2010.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss. 4 & 13-7-Money suit on basis of promissory note signed by two marginal witnesses---Maintainability---Suits on basis of negotiable instruments including promissory note under O. XXXVII, R. 2, C.P.C., might be instituted by presenting a plaint in prescribed forum---For purposes of deciding question as to whether document relied upon by a plaintiff was a negotiable instrument and trial under O. XXXVII, C.P.C., only contents thereof would be taken into consideration---Where contents of such document fell under definition of S. 13 of Negotiable Instruments Act, 1881, then plaintiff would have option to file suit in ordinary civil court or special court exercising powers under O. XXXVII, C.P.C.---Promissory note relied upon by plaintiff, which was duly entered in register of petition writer and exhibited in evidence, clearly indicated that defendant had given undertaking to plaintiff that he had secured loan of suit amount from him in presence of witnesses and would pay same on demand to plaintiff when, where and to whom he desired---Such undertaking squarely fell under definition of promissory note given in S. 4 of Negotiable Instruments Act, 1881---Special Court exercising powers under O. XXXVII, C.P.C. had the jurisdiction to decide such suit on merits.

Khalil ur Rahman v. Muhammad Shafee 1993 MLD 1144; Abdur Rauf v. Farooq Ahmad and another PLD 2007 Lah. 114; 2007 CLD 114; Muhammad Asghar v. Mian Muhammad Hussain 2010 CLC 22; Aamir Tofail v. Muhammad Siddique and another 2006 CLD 91; Altaf Sarwar v. Shamas Din 2005 YLR 2614; PLD 2007 Lah. 121; 1973 SCMR 332 and 1973 SCMR 595 ref.

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

----O. XXXVII, R.2---Qanun-e-Shahadat (10 of 1984), Art. 61---Money suit on basis of promissory note and its receipt bearing signatures and thumb impressions of defendant---Validity---Signature could be disputed, but finger prints had more authenticity and reliability than signatures.

Ahmad Ali Khan for Appellant.

Malik Muhammad Asad for Respondent.

Date of hearing: 23rd July, 2010.

2011 C L C 355

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Pir MUHAMMAD AZAM---Petitioner

Versus

Pir AZIZULLAH and 2 others---Respondents

C.R. No. 795 of 2008 with C.M. No.257 of 2010, decided on 14th June, 2010.

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

----S. 12(2)---Allegation of fraud and forgery---Proof---Essentials---Applicants challenged the judgment and decree of Trial Court under S.12(2), C.P.C. on the grounds of fraud and collusion and contended that registered power of attorney on their behalf was fake and fictitious and neither the sale transaction in respect of disputed property was made by them nor possession of the same was delivered to the decree-holder---Trial Court accepted application of the applicants and set aside the impugned judgment and decree---Re visional Court returned memo of revision for want of pecuniary jurisdiction---Respondent asserted that before deciding application under S.12(2), C.P.C. the Trial Court had not provided opportunity to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law---Validity---Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with letter and spirit prescribed under the law---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law---Judgment and order passed by Trial Court was illegal and derogatory to the principle that no body should be condemned unheard---High Court allowed revision petition and remanded the case to Trial Court to decide the same under the law, after affording opportunity to produce evidence to both parties and further to decide the application within a period of three months without trial, after receipt of record.

Mrs. Anis Haider and others v. S. Ameer Haider and others 2008 SCMR 236; PLD 2005 Pesh. 214; Muhammad Akram Malik v. Dr. Ghulam Rabbani PLD 2006 SC 773; 2006 CLC 236; 2003 CLC 1472; 2002 SCMR 1761; 2001 SCMR 46; 2006 SCMR 531; PLD 2003 Pesh. 46; 2007 YLR 1739 and 2003 SCMR 1471 ref.

Mrs. Anis Haider and others v. S. Ameer Haider and others 2008 SCMR 236; PLD 2005 Pesh. 214 and Muhammad Akram Malik v. Dr. Ghulam Rabbani PLD 2006 SC 773 rel.

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

----S. 12(2)---Allegation of fraud and forgery---Proof---No provision of law existed whereby the pleadings of the parties would be considered as prima facie proof of allegations made therein, unless the facts mentioned in the pleadings had not been proved and in support, thereof, the maker of the document appeared before the court and testified that the document had been scribed at his instance and furnished the particulars of fraud and proof thereof stood to the test of cross-examination, in absence whereof, pleadings were not sufficient to substantiate the claim of party to the suit, if the party to suit did not appear to testify about the pleadings not to be considered as the proof of facts mentioned therein, same had always been excluded.

PLD 1972 SC 21 rel.

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

----S. 12(2)-Allegation of fraud and forgery made in the pleadings could not be considered as gospel truth, unless proved in accordance with the letter and spirit prescribed under the law.

Mrs. Anis Haider and others v. S. Ameer Haider and others 2008 SCMR 236 rel.

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

----S. 12(2)---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, muchless mere allegations could not partake proof required under the law.

Mrs. Anis Haider and others v. S. Ameer Haider and others 2008 SCMR 236 rel.

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

----S. 12(2)---Allegation of fraud and misrepresentation---Requirements---While deciding the questions of fraud and misrepresentation, the recording of evidence was the requirement of law, therefore, in the light of evidence any order could be passed, but not to dismiss the complaint summarily and to short circuit the proceedings in haste in uncalled and indecent manner.

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

----Ss. 5 & 14---Civil Procedure Code (V of 1908), Ss.12(2) & 115---Limitation---Condonation of delay---Application for---Misconceived advice of counsel---Effect---Contention of the applicant that the revision petition was filed in good faith before a wrong forum on account of mistaken advice of the counsel, the delay could be condoned under Ss.5 and 14 of the Limitation Act, 1908 as the order questioned in the petition was patently illegal and unlawful, which would gravely affect the precious rights of the applicant in the suit property, therefore, the delay might be condoned and the petition decided on merits---Revision petition was filed within 90 days, the applicant had diligently prosecuted remedy in the revisional court, no objection was raised at the time of its admission as well as at any time during its pendency, however, respondent was summoned and after joining the proceedings he raised objection that on account of pecuniary jurisdiction the petition could not be adjudicated upon by the said revisional court, therefore, it was returned to the applicant and the same was filed before the High Court without further delay---Had it been returned on the first date of hearing for want of pecuniary jurisdiction, the applicant could have filed the same within period of limitation before the High Court, it could not thus be. ignored that the time was consumed on account of act of the court---Where question of right was seriously contested by the applicant and in case it would be attended on technical grounds then the applicant might not suffer to his right without any fault on his part---Applicant could not be deprived of his legal remedy on technical knock out as he had endeavoured to proceed with the case diligently, therefore, the delay was condoned.

Mst. Bas Khana and others v. Muhammad Raees Khan PLD 2005 Pesh. 214 rel.

Barrister S. Mudasir Aamir S. Javed A. Khan for Petitioner.

Saifullah Khalil for Respondents.

Date of hearing: 11th June, 2010.

2011 C L C 373

[Peshawar]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hassan Shah, JJ

ASHIQ HUSSAIN---Petitioner

Versus

SIKANDAR SHAH and 14 others-Respondents

Writ Petition No. 3429 of 2010, decided on 7th October, 2010.

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

----S. 13(5)(b)---Civil Procedure Code (V of 1908), S. 115 & O. XVIII, R. 18---Constitution of Pakistan---Constitutional petition---Ejectment order against petitioner tenant on ground of reconstruction of demised premises---Refusal of landlord to restore possession of reconstructed premises to petitioner---Execution application by tenant under S.13(5)(b) of West Pakistan Urban Rent Restriction Ordinance, 1959 for restoring him possession of re-constructed premises---Acceptance of such application after restoring possession of premises to petitioner on 19-6-2010 and consignment of execution proceedings to Record Room by Executing Court on 21-6-2010---Objection petition by intervenor on 7-7-2010 before Executing Court alleging to be in possession of demised premises, wherein his stock of medicines was lying---Rejection of objection petition by Executing Court and filing of revision petition thereagainst by intervenor---Intervenor's application during pendency of revision petitions for spot inspection to ascertain existence of his medicines in premises accepted by Revisional Court---Validity---Revisional Court before passing impugned interim order had not checked maintainability of objection petition having been filed when nothing was pending before Executing Court---Question of spot inspection and other alike questions could only be considered by court after coming to conclusion that matter before court was maintainable and court entertaining such matter had got lawful jurisdiction in such regard---Before deciding and giving findings on question of maintainability, consideration of allied matters like appointment of commission would be an exercise without jurisdiction and lawful authority---Impugned interim order for being against law and suffering from infirmities could be interfered with by High Court in exercise of constitutional jurisdiction---High Court set aside impugned order and remanded case back to Revisional Court for decision of revision petition within specified time.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Impugned interlocutory order, if against law and suffering from infirmities, could be checked and interfered with by High Court.

Misbahullah Chamkani for Petitioner.

Hikmatullah Jan for Respondents.

Date of hearing: 7th October, 2010.

2011 C L C 384

[Peshawar]

Before Abdul Aziz Kundi and Liaqat Ali Shah, JJ

Mst. AMINA BIBI---Petitioner

Versus

ATTAULLAH WAZIR and 3 others---Respondents

Writ Petition No. 1844 of 2007, decided on 23rd November, 2010.

Civil Procedure Code (V of 1908)---

----O.IX, R. 13 & S. 115---Constitution of Pakistan, Arts. 199 & 203---Application for setting aside of ex parte decree---Service of plaintiff in such application through proclamation in newspaper---Non-appearance of plaintiff and non-availability of concerned Civil Judge on relevant date---Application by defendant to District Judge for placing application for setting aside ex parte decree before Senior Civil Judge for passing thereon appropriate orders due to absence of plaintiff---Order of District Judge referring application for setting aside ex parte decree to Senior Civil Judge for its immediate disposal while dispensing with issuance of notice to plaintiff due to her service through previous proclamation in newspaper---Order of Senior Civil Judge allowing application for setting aside ex parte decree and consigning file to Record Room---Constitutional petition under Arts. 199 & 203 of the Constitution by plaintiff after gaining knowledge of impugned orders and in alternative to treat same as revision petition---Validity---While accepting defendant's application without issuing its notice to plaintiff, Senior Civil Judge had only bypassed relevant provisions of law, but had been misled by previous proclamation in newspaper for appearance of plaintiff in court of Civil Judge---Senior Civil Judge had erred in law by consigning file to Record Rood instead of restoring original suit and putting same for trial afresh---Impugned orders of Courts below being against law on subject could be struck down even in constitutional petition---Revision petition on its face was barred by time --Question of limitation or any alike technicality would never be a hurdle in exercise of suo motu powers by High Court under S. 115, C.P.C., while doing justice and undoing such illegal, unlawful and orders which were without jurisdiction---High Court converted constitutional petition into revision petition and set aside impugned orders with direction to Senior Civil Judge to decide application for setting aside ex parte decree afresh after appearance of parties.

Sadaqat Ali Khan through L.Rs. and others v. Land Acquisition Collector, and others PLD 2010 SC 878 rel.

Syed Asif Shah for Petitioner.

Chaudhary Masood Ahmad Ghuman for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing: 23rd November, 2010.

2011 C L C 413

[Peshawar]

Before Abdul Aziz Kundi and Imtiaz Ali, JJ

MEERAN SHAH---Petitioner

Versus

SAMEEN ULLAH KHAN and 5 others---Respondents

Writ Petition No. 1616 of 2010, decided on 19th October, 2010.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on the grounds of default in payment of rent, subletting, installation of electricity and gas connections without landlord's permission, causing nuisance to neighbours who sued the landlord---Rent Controller accepted the ejectment petition---Appellate Court dismissed appeal of tenant---Validity---Trial Court did not frame the vital issue regarding suit filed by the neighbours against landlord on account of nuisance caused by tenant---Evidence was not tendered in the form of affidavits to be used as examination-in-chief---In. the absence of alleged sub-lettee, allegation of subletting the rented property by tenant, could not be decided---Case having not been tried in accordance with settled principles of law, High Court while accepting the constitutional petition, remanded the case to Trial Court for decision afresh after framing necessary issues properly and submission of affidavits in accordance with law.

Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 fol.

Iftikhar Ali Qadir for Petitioner. Qazi Nabi Gul for Respondents:

Date of hearing: 19th October, 2010.

2011 C L C 430

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

MUHAMMAD KHALIL KHAN---Appellant

Versus

SALAH-UD-DIN---Respondent

R.F.A. No. 7 of 2008, decided on 20th September, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Art. 59---Suit on basis of promissory note---Signature on promissory notice and cheques denied by defendant in written statement and evidence---Report of Handwriting Expert showing signatures of defendant on promissory note not in conformity with his Specimen Signature Card of Bank---Validity---Statutory presumption of truth was attached to promissory note unless same was rebutted---Burden lay on defendant to prove that promissory note was forged---Expert opinion was that signature on promissory note was not that of defendant and was forged---Nothing on record to prove that opinion of expert was otherwise---Cheques had become irrelevant due to failure of plaintiff to prove promissory note---Suit was dismissed in circumstances.

Rustam Khan Kundi for Appellant.

S. Mastan Ali Zaidi for Respondent.

Date of hearing: 14th September, 2010.

2011 CLC 449

[Peshawar]

Before Abdul Samad Khan and Mian Fasih-ul-Mulk, JJ

ARIF KHAN TAREEN---Appellant

Versus

QATAR AIR LINES and others---Respondents

F.A.O. No. 16 of 2009, decided on 27th May, 2010.

Civil Procedure Code (V of 1908)---

----S. 19, O. VII, R.10 & O.XLIII, R.1(a)---Suit for recovery of amount towards compensation for wrong---Territorial jurisdiction of court---Return of plaint---Plaintiff filed suit in court at place H'---Defendant company along with written statement filed application for return of plaint on the ground that branch office of the defendant-company' was at place "I"; and that it had no business with territorial limits ofH'; and that court at had no jurisdiction in the matter---Trial Court allowed application filed by the defendant and ordered return of plaint---Validity---Section 19, C.P.C. related to all types of suits arising out of wrong to the person or movables, however, same could be filed at the option of the plaintiff; i.e. either in the court within local limits of whose jurisdiction the wrong was committed or within the local limits of whose jurisdiction the defendant resided, carried on business or worked for gain, regardless of where the cause of action accrued---Address of defendant had been given therein to be at place "I"---Exercise of jurisdiction respecting return of plaint, was perfectly in accordance with law---Choice of the plaintiff to see. wherever he desired; and that, too, in disregard of provisions contained in the statute, would never prevail, particularly when there was no uncertainty regarding determination of jurisdiction of the court---No illegality or irregularity had been committed by the court below in returning the plaint---Well reasoned judgment and order of the court below could not be upset, in circumstances.

Muhammad Iqbal Khan for Appellant.

Malik Manzoor Hussain for Respondents.

Date of hearing: 27th May, 2010.

2011 C L C 477

[Peshawar]

Before Liaqat Ali Shah and Syed Sajjad Hassan Shah, JJ

AZIZ-UR-REHMAN---Petitioner

Versus

QURBAN ALI and 2 others---Respondents

W.Ps. Nos. 390, 420 and 539 of 2009, decided on 15th September, 2010.

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

----Ss. 13(2)(vi), 13-A & 2(c)---Constitution of Pakistan, Art.199---Constitutional petition---Eviction proceedings---Premises required for reconstruction by landlord---Landlord'---Meaning---Rent Controller accepted ejectment petition---Appellate Court upheld the order of Trial Court---Tenant contended that the landlord never apprised him of the partition of demised premises in his favour---Validity---Suit shops were hundred years old and were in dilapidated condition dangerous for human occupation---Landlord was consistent in his deposition as to bona fide personal need of the demised property for reconstruction--Tenant having very weak right in demised property was not entitled to deny the landlord reconstruction or improvement in such property---Landlord was one of the joint owners of the demised property . and had been receiving rent collected on his behalf by his brother who admitted to the existence of family partition---Clause (c) of S.2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 did not restrict the meaning of the wordlandlord' only to the person who actually received rent but also included a person eligible to receive rent though he might never have received rent in past---Landlord and any other person collecting rent on his behalf were entitled jointly or severally to institute eviction proceedings under S.13 of the West Pakistan Urban Rent Restriction Ordinance, 1959---Having not agitated the ownership of the landlord at the time of framing the issues, tenant could not raise the plea of framing issue to determine the existence of relationship of landlord and tenant---Notice under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was required only where landlord had sought eviction on the ground of default in payment of rent by the tenant---Landlord did not agitate default in rent while tenant acknowledged the ownership of landlord, so verbal demand by landlord was sufficient to inform the tenant about his exclusive ownership and personal need of the demised property---Tenant had no right to question the suitability of rented property to a particular personal use---Statement of landlord on oath consistent with his averments was sufficient to establish his bona fide personal need---Tenant's objection to the legality of reconstruction of demised property was a matter to be decided by the municipality which issued approved site plan and permission of reconstruction---Law did not provide for any specific mode to evaluate the bona fide personal need of the landlord; satisfaction of Rent Controller was the criterion for determining the bona fide personal need of the landlord---Rent Controller's conclusion that the demised property was genuinely required by the landlord for reconstruction was based on solid evidence---Tenant's petition was dismissed in circumstances.

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

----S. 2(c)-'Landlord'-Meaning-Definition-Clause (c) of S.2 of West Pakistan Urban Rent Restriction Ordinance, 1959 did not restrict the meaning of the word `landlord' only to the person who actually received rent but also included a person eligible to recover rent though he might never have received rent in the past.

PLD 1983 Pesh. 67; Syed Amjad Ali Shah v. Muhammad Afzal and others PLD 1987 Lah. 280 and 1985 MLD 1485 rel.

F.K. Rani and Co. v. Begum Feroze 1996 SCMR 1178; Jumma Sher v. Sabz Ali 1997 SCMR 1062; Gul Muhammad v. Nasir Ahmed and others 1989 SCMR 1847; Bahadar Khan and others v. Ch. Muhammad Hussain others 1991 SCMR 429 and Iqbal Book Depot and others v. Khitab Ahmed and 6 others 2001 SCMR 1197 ref.

Muhammad Jamil Khan for Petitioner.

Mian Nisar Muhammad Khan for Respondents.

Date of hearing: 15th September, 2010.

2011 CLC 490

[Peshawar]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hussan Shah, JJ

MUHAMMAD RAHIM---Petitioner

Versus

Malik DAUD KHAN and 6 others---Respondents

C.Ms. Nos. 651 of 2010, 627 of 2009 and W.P. No. 1842 of 2009, decided on 28th September, 2010.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.53 & 172(2)(vi)---Civil Procedure Code (V of 1908), O. VII, R.11---Plaintiff filed suit for declaration on the ground that he was owner in possession of the disputed property and entries of sale mutations in favour of defendants were wrong and based on fraud---Defendants contested suit and filed an application under O. VII, R.11, C.P.C. and contended that the suit was barred by the provisions of S.172(2)(vi) of the West Pakistan Land Revenue Act, 1967---Trial Court dismissed application of the defendants while the revisional court allowed the same and rejected plaint of the suit being barred by law---Validity---Section 42 of the Specific Relief Act, 1877 and S.53 of West Pakistan Land Revenue Act, 1967 provided a remedy to an aggrieved person to approach civil court through a suit for declaration for any wrong entry in the record of rights affecting his rights---Exercise of jurisdiction by the revisional court under O. VII, R.11, C.P.C. regarding bar of jurisdiction of civil court under S.172 of the West Pakistan Land Revenue Act, 1967 on the face of it appeared to be against the law which was not maintainable---Matter involving question of fact requiring proof through production of evidence should not be rejected summarily but after framing of issues and recording of evidence pro and contra which had not been done---High Court allowed constitutional petition and set aside impugned order of rejection of plaint and remanded the case to Trial Court to decide the matter in the light of said observations.

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

---S. 172(1)(2)(vi)---Jurisdiction of Civil court---Scope---Civil court, if had taken in .hand the function assigned to the revenue courts regarding discharge of their functions in that case its jurisdiction would be barred.

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

----S. 172(1)(2)(vi)---Jurisdiction of civil court---Scope---Civil court would have no jurisdiction in the matter wherein the Government, the Board of Revenue or any Revenue Officer was empowered by the West Pakistan Land Revenue Act, 1967 to dispose of or to take cognizance of the matter in which Government, the Board of Revenue or any Revenue Officer exercised any powers vested in it or him by order under the Act.

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

----S. 172(1)(2)(vi)---Specific Relief Act (I of 1877), S.42---Jurisdiction of civil court---Scope---Function of the Revenue Court, Revenue Officers etc. was to prepare and maintain the revenue record and jurisdiction of civil court was barred to interfere in their functions specially explained in S.172 of the West Pakistan Land Revenue Act, 1967 whereas the job of the civil court was to determine the civil rights and questions of title of the person before the court---Section 42 of the Specific Relief Act, 1877 conferred right upon an aggrieved person to seek such declaration from the civil court---Section 53 of the West Pakistan Land Revenue Act, 1967 also empowered a person feeling aggrieved of the entries of the record-of-rights regarding any right in the property, to approach the civil court and seek declaration under Specific Relief Act, 1877.

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

---O. VII, R.11---Matter involving question of fact requiring proof through production of evidence should not be rejected summarily but after framing of issues and recording of evidence pro and contra.

Muhammad Riaz Mohmand for Petitioner.

Haji Abdur Raziq Khan for Respondents.

Date of hearing: 28th September, 2010.

2011 C L C 499

[Peshawar]

Before Attaullah Khan, J

AMIR ABDULLAH---Appellant

Versus

ZAFAR KHAN---Respondent

C.R. No. 276 of 2005, decided on 15th October, 2010.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 59---Suit for declaration-Gift-Validity-Ingredients-Plaintiff claiming to be owner of suit land and alleged gift mutation attested by his predecessor in favour of defendant to be fraudulent---Proof---According to report of Handwriting Expert, thumb impression of donor on suit mutation was different from one available on his Identity Card---Patwari Halqa as witness showed his inability to say as to whether donor had appeared at time of attestation of suit mutation, and whether his statement was recorded through Local Commissioner or not---Patwari Halqa further deposed that at time of attestation of suit mutation, attestation of sale mutations were prohibited---According to deposition of Girdawar Halqa, he scribed name of donor in his office, but recorded his statement at spot---Such conduct of Girdawar created doubt about genuineness of recording statement of donor---Defendant as witness deposed that he had purchased suit land from donor, but as sale mutations were prohibited during relevant time, therefore, gift mutation was attested---Defendant further deposed that he did not transact sale with donor, but he purchased suit land from another person---Suit land was owned by donor, thus, transaction effected with another person instead of donor had made sale itself defective---Defendant had not proved ingredients of a valid gift i.e. offer, acceptance and delivery of possession---Suit was decreed in circumstances.

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

----S. 115---Revision---Concurrent findings of fact by courts below--Interference by High Court in such findings---Scope---Such findings could not be set at naught by High Court without establishing by cogent and convincing evidence that same were perverse, fanciful or erroneous.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Rustam Khan Kundi for Appellant.

Noor Gul Khan Marwat and Qureshi Muhammad Tariq for Respondent.

Date of hearing: 18th October, 2010.

2011 CLC 508

[Peshawar]

Before Attaullah Khan, J

SAJID MUNEER---Petitioner

Versus

Doctor MUHAMMAD ABDULLAH KHAN---Respondent

C.R. No. 369 of 2005, decided on 12th November, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S. 115, O. XIV, Rr. 1, 3 & O. XX, R. 5---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Suit for specific performance of contract, in alternative recovery of amount paid to defendant jeweller for preparation of golden ornaments---Denial of defendant to have executed receipt in favour of plaintiff for alleged amount---Non-framing of an issue by Trial Court regarding such objection---Suit decreed by Trial Court upheld by Appellate Court---Validity---Bone of contention between parties was signatures of defendant on disputed receipt---Trial Court had failed to perform its duty to frame an issue regarding such objection---Trial Court-had not sent disputed signatures for comparison and verification to Handwriting Expert---Receipt relied upon by plaintiff created financial liability---Execution of receipt was denied by defendant, thus, burden shifted to plaintiff claiming thereunder to prove receipt by calling attesting witnesses thereof---High Court framed additional issue regarding such objection and remanded case to Trial Court for its decision afresh after recording evidence thereon and hearing parties.

Saleemullah Khan Ranazai for Petitioner.

Muhammad Zafar Nawaz Sikandri for Respondent.

Date of hearing: 12th November, 2010.

2011 C L C 516

[Peshawar]

Before Miftah-ud-Din Khan, J

KHAN AFSAR---Petitioner

Versus

SHAN MUHAMMAD---Respondent

Civil Revision No. 377 of 2005, decided on 8th December, 2010:

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), S. 115 & O. XLI, R.27(a)---Revision---Pre-emption suit---T'alb-i-Muwathibat and Talb-­i-Ishhad, performance of---Proof---Pre-emptor's explanation for non-producing witnesses of notice of Talb-i-Ishhad was that one witness had died while whereabouts of other were not known---Dismissal of suit by Trial Court and Appellate Court---Application by pre-emptor to Re visional Court for allowing him to produce son of deceased informer as additional evidence---Validity---Death of deceased informer being already in knowledge of pre-emptor could not be a discovery of a new fact, which came into his knowledge during revision after expiry of more than eleven years---Non-making such request before Trial and Appellate Courts and non-showing any plausible cause therefor would operate as waiver on part of pre-emptor---Such request was not only unjustified, but was made at belated stage to fill up lacunas in evidence of pre-emptor---High Court dismissed such application in circumstances.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R. 17---Pre­emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of--Proof-Notice of Talb-i-Ishhad not finding mention name of informer of sale, date, time and place of T'alb-i-Muwathibat---Plaint not finding mention name of informer, date, time, place of Talab-i-Muwathibat, and witnesses of notice of Talb-i-Ishhad---Filing of suit on very next (lay after sending notice of Talb-i-Ishhad without confirming its receipt by vendee---Introducing such details after two years through amended plaint---Dismissal of suit by Trial and Appellate Courts---Validity---Name of informer of sale, date and time of performance of Talb-i-Muwat/tibat were not in pre-emptor's knowledge at time of filing suit---Pre-emptor had introduced in amended plaint name of a dead informer just to fulfil requirement of Talb-i-Muwathibat---Evidence of single attesting witness of notice of Talb-i-Ishhad was not sufficient to prove same---Pre-emptor had produced in evidence photocopy of notice of Talb-i-Ishhad, but had not examined its author or two truthful witnesses thereof---High Court dismissed revision petition in circumstances.

2003 CLC 504; PLD 2002 Lah. 48; 2000 CLC 296; 2004 CLC 555; PLD 2005 Kar. 478; PLD 2001 Lah. 9; PLD 2010 Lah. 341; 2009 SCMR 488; PLD 2003 Pesh. 53 and 2008 SCMR 269 ref.

2009 SCMR 488; 2003 CLC 504 and 2004 YLR 115 rel.

Khurshid Khan for Petitioner.

Mehboob Ahmad Khan for Respondent, Date of hearing: 8th December, 2010.

2011 CLC 525

[Peshawar]

Before Attaullah Khan, J

AKHIYA JAN---Petitioner

Versus

Mst. HAMIDA BEGUM and others---Respondents

Civil Revision No. 174 of 2005, decided on 15th October, 2010.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Civil Procedure Code (V of 1908), S. 35-A---Suit for specific performance of agreement of oral sale---Proof---Examination of one witness by plaintiff besides himself to prove such agreement between parties and payment of earnest money to defendant thereunder---Admission of plaintiff's witness in cross-examination that civil suit filed against him by defendant was pending---Validity---Such admission rendered evidence of plaintiff's witness as doubtful for having become an interested witness---Such statement of plaintiff's witness could not be believed as he had recorded statement in favour of plaintiff in another suit---Plaintiff had not produced any receipt regarding payment of earnest money---Oral sale agreement had not been reduced into writing---Plaintiff had failed to produce two witnesses of sale agreement with defendant, which was a necessary requirement of law---Plaintiff had failed to show as to on what date he paid earnest money to defendant---Burden to prove such agreement through cogent convincing evidence was on plaintiff, which he had failed to discharge---Every person had a right to sue other for enforcement of an oral agreement---Mere failure of plaintiff to prove his claim would not entitle defendant for costs under S. 35-A, C. P.C.-Suit was dismissed without awarding such costs to defendant.

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

----S. 35-A---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement of oral sale---Failure of plaintiff to prove his claim---Compensatory costs under S. 35-A, C. P. C. award of scope---Every person had a right to sue another person for enforcement of such agreement---Failure of plaintiff to prove his claim would not entitle defendant for such costs---Very cogent and convincing reasons would be required to be given for awarding such costs.

Sajid Nawaz Khan Sodozai for Petitioner.

Sheikh Iftikharul Haq for Respondents.

Date of hearing: 15th October, 2010.

2011 C L C 529

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan, J

AMAN ULLAH and another---Petitioners

Versus

PAKISTAN TOBACCO BOARD, PROVINCE OF KHYBER PAKHTUNKHWA, through Secretary and another---Respondents

Writ Petition No. 2633 of 2010, decided on 15th July, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Auction of contract for collection of Tobacco Cess-Cancellation of auction---Contract for the collection of Tobacco Cess was auctioned in which the petitioners were highest bidders, but same was cancelled and advertised afresh-Bidders were again invited to participate in the process scheduled to be held on 28th, 29th and 30th June, 2010---On 28th June petitioners and respondent were marked present, but on that date no auction proceedings had taken place---On 29th June only three persons were shown to have been present including one of the respondents; and on that date bid offered by said respondent being highest, was shown to have been accepted---Proceedings of auction, in circumstances could not be said to be transparent, when the earlier. one had been cancelled without any tenable reason---Three dates were given in the advertisement i.e. 28th, 29th and 30th June, 2010, for auction, but it was concluded on 29th June, 2010---Unnecessary haste in the matter had not been explained---Auction proceedings were set aside and authorities were directed to re-auction the same after fulfilling the codal formalities within a fortnight.

S.M. Kausar for Petitioners.

Abdul Latif Afridi for Respondents.

Date of hearing: 15th July, 2010.

2011 CLC 536

[Peshawar]

Before Sardar Shaukat Hayat, J

ZARBALI---Petitioner

Versus

MUHAMMAD ISMAIL---Respondent

Civil Revision No. 527 of 2010, decided on 17th September, 2010.

North-West Frontier Province Pre-emption Act (I of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Sale through deed registered on 3-4-2007---Plaintiff's plea in plaint was that on 11-6-2007, he came to know about sale deed and sent notice to defendant on same date---Proof---Plaintiff's statement during cross-examination that before making Talb-i-Muwathibat, he on 25-5-2007 made application for getting attested copy of sale deed, which was delivered to him on 26-5-2007; and that he got knowledge of sale four days before making such application---Validity---Such statement of plaintiff made clear that plaintiff came to know about the suit sale on 21-5-2007 i.e. much prior to date mentioned in plaint---Plaintiff had, thus, not performed Talb-i-Muwathibat soon after acquiring knowledge of suit sale on 21-5-2007---Omission to perform such talb soon after getting knowledge about suit sale was clear-cut violation of S. 13 of North-West Frontier Province Pre-emption Act, 1987---Suit was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780 rel.

Shahab Khattak for Petitioner.

Fazli Haq Kohidamani for Respondent.

Date of hearing: 17th September, 2010.

2011 CLC 543

[Peshawar]

Before Yahya Afridi, J

Haji SHARAF HUSSAIN and 5 others---Petitioners

Versus

Haji TOR GUL and 7 others---Respondents

Civil Revision No. 134 of 2009, decided on 15th December, 2010.

Civil Procedure Code (V of 1908)---

----O. XXVI, Rr. 9 & 10---Commission for local inspection, issuance of---Commission report, objections to----Scope---Court had to decide that which factual controversy would require physical inspection through its agent---Principles of natural justice would attract to such objections, if raised by a party, and same would be considered under R.10 of O. XXVI, C.P.C.---Prior decision of such objections would not be necessary, where court while passing final judgment addressed same and rendered definite findings thereon---Passing of final judgment without effectively addressing such objections would prejudice case of concerned party.

Muhammad Yousaf v. Khudadad 2004 MLD 1107; Ali Hassan v. Sher Muhammad 2007 CLC 969; Muhammad Sharif v. Additional District Judge 1994 MLD 507 and Faqir Muhammad v. Karam Ceramics (Pvt.) Ltd. 1988 PLC 213 ref.

Riaz Ahmad Khan for Petitioners.

Date of hearing: 15th December, 2010.

2011 CLC 550

[Peshawar]

Before Sardar Shaukat Hayat, J

PINEEN KHAN---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No. 1160 of 2010, heard on 18th October, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O. XLI, R. 27---Suit for declaration, possession and permanent injunction---Sale-deed in favour of defendant regarding suit land alleged by plaintiff to be forged--Plaintiff's application for summoning marginal witness of sale deed---Dismissal of suit by Trial Court without passing any order on such application---Plaintiff's application along with appeal to Appellate Court for production of additional evidence supported by affidavit of marginal witness denying to be signatory of disputed sale deed---Dismissal of appeal by Appellate Court without passing any order on such application---Validity---Trial Court had dismissed suit for plaintiff's failure to prove sale deed to be forged--Appellate Court though ordered to hear application and appeal together, but had decided appeal without passing any order on such application qua affidavit filed by marginal witness to sale deed---Appellate Court was required to have considered and decided such application, which appeared to have direct bearing on an important issue in suit particularly in view of affidavit filed by marginal witness---If court would be of opinion that controversy was not likely to be resolved without taking further evidence, then court must take additional evidence in order to render a just decision in the case---High Court set aside impugned judgment and decree and remanded case to Appellate Court for its fresh decision on merit after dealing with such application.

Syed Muhammad Hassan Shah and others v. Mst. Bint-e-Fathima and another PLD 2008 SC 564 and Muhammad Azam v. Muhammad Abdullah through L.Rs 2009 SCMR 326 rel.

Muhammad Shoaib Khan for Petitioner.

Mohibullah for Respondents.

2011 C L C 556

[Peshawar]

Before Sardar Shaukat Hayat, J

TEHSIL MUNICIPAL OFFICER---Appellant

Versus

GUL SADBAR and others---Respondents

Civil Revision No. 1049 of 2010, decided on 19th October, 2010.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Appreciation for setting aside of ex parte decree---Limitation---Passing of order of ex parte proceedings on 8-11-2008 and ex parte decree on 2-3-2009---Appearance of defendant in execution proceedings on 30-10-2009 and filing of such application on 23-11-2009---Defendant's plea was that he for the first time came to know about decree on 30-10-2009; and that he was not served with summons in the suit---Dismissal of such application by Trial Court for not showing cogent reason for such default and not explaining delay therein---Validity---Trial Court had proceeded ex parte against defendant after issuing him notice for first time and holding that he was served, but had not effected upon him substituted service---Trial Court was required to issue substituted service against defendant in best interest of justice---Trial Court had dismissed such application without giving chance to defendant to lead evidence in support of his pleas---Trial Court had passed ex parte decree without discussing evidence on record and looking into the matter that whether suit without impleading--Government as party was maintainable, and whether a valid decree could be passed on basis of assertions made in plaint---Negligence of defendant in filing such application was apparent---Valuable rights of defendant were involved in suit---Inadequacy of sufficient cause should not stand in way of justice on merits---Objective of courts would be to do full and substantial justice in cause after allowing due opportunity of hearing to parties---Cases should be decided on merits and technical knock out be resorted to sparingly---High Court set aside impugned order and ex parte decree on payment of cost of Rs. 5,000 and directed Trial Court to allow defendant to proceed with trial of suit.

Hamidullah Khan and another v. Ch. Muhammad Jameel and others 2003 SCMR 995 and Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337 rel.

(b) Administration of justice---

----Objective of courts would be to do full and substantial justice in cause after allowing due opportunity of hearing to parties---Cases should be decided on merits and technical knock out be resorted to sparingly.

Hamidullah Khan and another v. Ch. Muhammad Jameel and others 2003 SCMR 995 and Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337 rel.

S. Sardar Hussain for Appellant.

Muhammad Siddiqu Haider, Qurashi for Respondents.

Date of hearing: 19th October, 2010.

2011 C L C 563

[Peshawar]

Before Miftah-ud-Din Khan, J

FAIZ KHAN and another---Petitioners

Versus

Haji MUHAMMAD ASHRAF---Respondent

Civil Revision No. 352 of 2010, decided on 18th December, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XIV, Rr.1, 2, 3 &, 5---Suit for declaration-Non-framing of issues---Defendant in his written statement had pleaded point of limitation as well as dismissal of suit of the plaintiff on account of non-impleading of necessary parties---Trial Court though framed six issues, but ignored said two material issues as raised by the defendant in his written statement---Trial Court decreed suit of the plaintiff, but Appellate Court remanded case after framing said two issues with direction to the Trial Court to take additional evidence---Validity---Contention of the counsel for the plaintiff was that framing of issues was not mandatory under O.XIV, R.3, C.P.C. and that there was no legal justification for remand of the case---Contention of counsel for the plaintiff was repelled, because once material issues were raised by the defendant in his written statement; specifically, the issue of limitation, which was a mixed question of law and fact, then it was the duty of the Trial Court to frame specific issues raised in order to enable the parties to lead pro and contra evidence to set the controversy at rest once for all---No doubt the Trial Court after realizing material irregularity, had made discussion on point of limitation, but such discussion without framing of specific issue and allowing an opportunity to the parties to lead evidence in that connection, was not legal, proper and justified---Trial Court before passing decree should have resorted to the provisions of O.XIV, R.5, C.P.C. and avoided the decision without framing issues---Appellate Court, in circumstances, was quite justified to fill up the legal flaw by framing the relevant issues and remanding the case to the Trial Court with the direction to decide those issues after recording evidence of the parties over the same---Impugned order of the Appellate Court, was neither illegal nor based on improper appraisal of facts and evidence--Impugned order warranted no interference in exercise of revisional jurisdiction of High Court.

PLD 2003 SC 271; 2000 SCMR 258; 2008 MLD 259; 2007 CLC 357; PLD 1994 Pesh. 60; PLD 1995 SC 629; 1989 SCMR 1719 and 2003 YLR 24 and 801 ref.

Haji Ghulam Basit for Petitioners.

Khalid-ur-Rehman Qureshi for Respondent.

Date of hearing: 11 November, 2010.

2011 CLC 570

[Peshawar]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD RAUF and others---Petitioners

Versus

KHURSHID ALAM and others---Respondents

Civil Revision No. 308 of 2009, decided on 7th June, 2010.

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

----O. VII, R. 11---Rejection of plaint---Scope---Partial rejection of plaint is unlawful.

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

----S. 115---Revision---Maintainability---Second revision petition is not maintainable.

Sahibzada Ahmad Jan for Petitioners.

Gul Sadbar for Respondents.

Date of hearing: 7th June, 2010.

2011 C L C 578

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Mst. CHAND SANOOBER---Petitioner

Versus

GHULAM NOORANI---Respondent

Civil Revision No. 216 of 2004, decided on 3rd December, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Plaint and notice of Talb-i-Ishhad found mention that plaintiff came to know about suit sale in house of her uncle, where she made Talb-i-Muwathibat---Non-appearance of plaintiff as witness in support of plaint and performance of such talbs, but she was represented by her special attorney---Effect---Suit was dismissed in circumstances.

Fazlur Rehman v. Mst. Zavedi Jan alias Zureda Jan 2005 CLC 1415; Yar Muhammad Khan v. Bashir Ahmed PLD 2003 Pesh. 179; Muhammad Younas v. Mst. Mehr Afzoon PLD 2002 Pesh. 109 and Muhammad Karim and others v. Zuljalal and another PLD 2010 Pesh. 73 ref.

Muhammad Younas v. Mst. Mehr Afzoon PLD 2002 Pesh. 109; Muhammad Karim and others v. Zuljalal and another PLD 2010 Pesh. 73; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Amir Badshah v. Amin ul Haq and 4 others 2005 CLC 325 and Falak Omar Khan and another v. Mir Qalam Khan 1995 CLC 1077 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Proof--- Minor discrepancies in statements of such talb ignorable.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Amir Badshah v. Amin ul Haq and 4 others 2005 CLC 325 and Falak Omar Khan and another v. Mir Qalam Khan 1995 CLC 1077 ref.

Fazlur Rehman v. Mst. Zavedi Jan alias Zureda Jan 2005 CLC 1415 and Yar Muhammad Khan v. Bashir Ahmed PLD 2003 Pesh. 179 rel.

Dildar Ahmad Lughmani for Petitioner.

Muneer Hussain Lughani for Respondent.

Date of hearing: 3rd December, 2010.

2011 C L C 589

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD AMIN----Petitioner

Versus

IBRAHIM and 9 others----Respondents

Writ Petition No.147 of 2007, decided on 27th October, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. S & 31---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration and pre-emption---Limitation---Date of attestation of sale mutation alleged by plaintiff to have been fraudulently altered in order to defeat his right of pre-emption on ground of limitation---Defendant's application under O. VII, R. 11, C. P. C., for rejection of plaint for being time barred as per date of attestation appearing on suit mutation---Order of Trial Court holding such application to be premature, but dismissal of suit by Re visional Court---Validity---Plaintiff's allegation regarding fraudulent alteration of date of attestation of suit mutation by Revenue Officer and concerned parties could not be adjudged without recording evidence of parties and concerned officials---High Court remanded case to Trial Court for decision of such application after recording necessary evidence.

Muhammad Anwar Awan for Petitioner.

Zain-ul-Aabidin for Respondents.

Date of hearing: 27th October, 2010.

2011 C L C 606

[Election Tribunal Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD IBRAHIM QASMI----Petitioner

Versus

Syed AQIL SHAH and 5 others----Respondents

Civil Miscellaneous No.6 in E.P. No.257 of 2009, decided on 25th January, 2010.

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

----Ss. 52, 64 & 76---Civil Procedure Code (V of 1908), O.IX, R.9---Application for restoration of election petition dismissed in default of appearance---Wrong noting of date of hearing in case diary by petitioner's Counsel, ground of---Such application accompanied with relevant pages of case diary of Counsel supported by un-rebutted affidavit---Validity---Record showed that petitioner and his counsel had been pursuing his case regularly---Such ground for being un-rebutted seemed to be genuine and sufficient---Decision of case on merits was cherished goal of law---Superior Courts, had discouraged technical knock-out of litigants---Election Tribunal restored election petition to its original on payment of costs of Rs.10,000 in circumstances.

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

----Ss. 52, 64 & 76---Civil Procedure Code (V of 1908), O.IX, R.8---Restoration of election petition dismissed in default of appearance---Powers of Election Tribunal---Scope---Election Tribunal having all powers of' a civil court under C.P.C., would be deemed to be a civil court, thus, could pass order for restoration of such petition under relevant provisions thereof and also in exercise of its inherent powers--Principles.

As per section 76 of the Representation of the People Act, 1976, Election Tribunal under its authority can dismiss the petition, if the petitioner makes no appearance. However, the entire Act and its rules contain no provision for setting aside or restoration of the election petition dismissed in default. From the bare reading of section 64 of the Act regarding the powers of Election Tribunal, it becomes absolutely clear that Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and shall be deemed to be a civil court. While keeping in view powers under section 64, it can safely be held that Election Tribunal while assuming the jurisdiction under the Act, has all the powers under the C.P.C., and as such can pass any order according to the circumstances of the case including dismissal of application and restoration of the same under the relevant provisions of C.P.C., and no such bar or embargo is there in the Act. There always exists an implied and inherent power in the Election Tribunal to set aside the order passed in default of appearance of the parties unless any specific provision of law barring such exercise of power is there in the relevant law.

The Election Tribunal has got vast powers under the Code of Civil Procedure for making an order for restoration of a petition dismissed in default.

(c) Administration of justice---

----Decision of case on merits being cherished goal of law, technical knock-out of litigants to be discouraged by courts.

Naveed Maqsood and Nek Nawaz Khan for Petitioner.

Qazi Muhammad Anwar for Respondent No. 1.

2011 C L C 625

[Peshawar]

Before Abdul Aziz Kundi and Sardar Shukat Hayat, JJ

AQEEL AHMED ABBASI----Petitioner

Versus

Mst. SURIYA DURRANI through L.Rs.----Respondents

Writ Petition No.3365 of 2009, decided on 25th March, 2010.

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

----S. 13---Transfer of Property Act (IV of 1882), S.54---Specific Relief Act (I of 1877), S. 12---Ejectment petition---Default in payment of rent---Agreement to sell demised premised in favour of respondent prior to its sale to petitioner through registered deed by its previous owner ---Pendency of respondent's suit for specific performance of such agreement---Denial of relationship of landlord and tenant between parties---Validity---Such agreement did not contain any stipulation that after its execution, relationship of landlord and tenant would come to an end---Ejectment petition was accepted in circumstances.

1983 SCMR 1064; 1991 CLC 72; 2000 SCMR 577; 2006 CLC 1860; 2002 CLC 143; 2006 SCMR 1068 and 2005 CLC 1758 ref.

Barkat Masih v. Manzoor Ahmad (deceased) through L.Rs. 2001 SCMR 1068 and Hafiz Altaf Ahmad v. Haji Ahmad Din 2005 CLC 1758 rel.

Allauddin Khan Qureshi for Petitioner.

Abd-uz-Zakir Tareen for Respondents.

Date of hearing: 25th March, 2010.

2011 C L C 638

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

Mst. MARYAM BIBI and another----Petitioners

Versus

SENIOR MEMBER, BOARD OF REVENUE, N.-W.F.P. and 8 others----Respondents

Writ Petition No.138 of 2007, decided on 4th November, 2010.

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

----Ss. 44, 53 & 172(2)(iv)---Constitution of Pakistan, Art.199---Constitutional petition---Correction of entry in record of rights---Senior Member Board of Revenue passed an executive order addressed to Collector directing him to correct the revenue record in favour of legal heirs of respondent---Collector being subordinate of Senior Member Board of Revenue, without applying his independent mind, directed authority below to comply with said executive order and field staff changed the revenue record as per direction of Senior Member Board of Revenue---Review petition filed by the petitioner against order passed by the Senior Member Board of Revenue was dismissed without providing opportunity of hearing---Validity'---Revenue Officers, in terms of S.172(2)(iv) of West Pakistan Land Revenue Act, 1967, though were empowered to order correction of entry in record of rights, but such powers were restricted to correction of entry which was patently wrong---Revenue officers could not exercise said powers with regard to entry which involved question of rights determinable by civil court within scope of S.53 of West Pakistan Land Revenue Act, 1967 or entry which was longstanding.

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

----Ss. 44, 52 & 53---Determination of disputes arising during the course of making revision or preparation of rights---Presumption in favour of entries in record of rights---Section 44 of West Pakistan Land Revenue Act, 1967 related to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI of the West Pakistan Land Revenue Act, 1967 relating to record of rights and periodical record---Once the inquiry was made; or the entries were recorded in the revenue record, a presumption of truth was attached to it under S.52 of West Pakistan Land Revenue Act, 1967, until the contrary was proved or the new entries were substituted---To dislodge said presumption a remedy was provided under S.53 of West Pakistan Land Revenue Act, 1967, which had provided that if any person considered himself aggrieved by an entry in the record of rights or in periodical record as to any right of which he was in possession, he could institute a suit for declaration of his rights under S.42 of Specific Relief Act, 1877.

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

----Ss. 4 & 5---West Pakistan Land Revenue Act (XVII of 1967), Ss.7(a), 44 & 163---Constitution of Pakistan, Art.199---Functions and powers of Board of Revenue---Correction of entry in revenue record---Functions and powers vested in Board of Revenue, were for the purpose to supervise, monitor and streamline the performance of subordinate hierarchy---Senior Member, Board of Revenue, was not supposed to grab or usurp the powers of other functionaries bestowed upon them by West Pakistan Land Revenue Act, 1967---Even under S.163 of West Pakistan Land Revenue Act, 1967, Senior Member, Board of Revenue had to pass order after issuing notice and providing opportunities of hearing to the other side---Impugned order passed by Senior Member, Board of Revenue, whereby he directed by an executive order the subordinate authorities to correct revenue record, could not be considered as judicial order as it was sketchy, non-speaking and without reason; and it had been passed without giving opportunity of audience to the other side; and through that order had deprived Pardah observing lady of her valuable rights---Senior Member, Board of Revenue also snatched statutory right of appeal and revision of the petitioners---Changing longstanding revenue entries through such like executive orders by the highest hierarchy of the Revenue Department, without any feed-back report and recommendations from the field staff, left no doubt about the illegality, un-justifiability and incorrectness of the order---Factual controversy between the parties, required thorough probe through recording of evidence from both the sides---Deciding the dispute between the parties in hasty and summary manner, was not only illegal, unlawful, but also was an injustice with the parties---Entire proceedings conducted by Senior Member, Board of Revenue and authorities below were declared illegal, arbitrary, without lawful authority and of no legal effects---Constitutional petition was allowed.

Nawab Khan and other v. Saith Karim Khan and others 1997 SCMR 1840 ref.

Muhammad Younas Khan Teheem for Petitioners.

Rustam Khan Kundi for Respondents Nos.8 and 9.

Date of hearing: 23rd September, 2010.

2011 C L C 656

[Peshawar]

Before Sher Muhammad Khan, J

HABIB ULLAH KHAN----Petitioner

Versus

NADIR KHAN----Respondent

Civil RevisionNo.60 of 2005, decided on 6th December, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Registered sale deed finding mention of wrong Khasra number of suit land---Plaint containing correct description of suit land except its such Khasra number---Validity---Clerical mistake in plaint regarding such Khasra number was due to its wrong entry in such deed---Suit on account of such mistake could not be treated as a suit of partial pre-emption.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat, performance of--Importance highlighted.

The very right of pre-emption is not activated unless Talb-e-Muwathibat is performed. It should not be dubbed as a mere technicality, at times it requires such dimension that it becomes more important than the superior right, because it essentially is sine qua non of the right of pre-emption. The latter might exists, but is useless unless the former is performed.

Mentioning of the performance of Talb-e-Muwathibat with reference to time, date and place in the plaint and in notice of Talb-e-Ishhad is the requirement of law and it is also mandatory to be proved during trial like any other fact in the same pattern and style as mentioned in the plaint and notice.

Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Muhammad Hussain v. Manzur Hussain 2004 SCMR 737 rel.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat, performance of---Proof---Plaint and notice of Talb-e-Ishhad finding mention that plaintiff on 27-9-2003 came to know about sale deed of suit land through his brother and drafted notice of Talb-e-Ishhad on 28-9-2003 and sent the same on 29-9-2003 to vendee---Statement of plaintiff's brother during cross-examination that a day before drafting such notice, he received information about such deed and conveyed such information to plaintiff on following day---Validity---Right of pre-emption could not be activated without performing Talb-e-Muwathibat---Mentioning of performance of Talb-e-Muwathibat with reference to date, time and place in plaint and notice of Talb-e-Ishhad and then proving same during trial in same pattern and style as mentioned in plaint was mandatory for plaintiff---As per such statement of plaintiff's brother, day before drafting such notice fell on 27-9-2003, when he had received such information and conveyed to plaintiff on following day i.e. 28-9-2003---Plaintiff's stance that he had performed Talb-e-Muwathibat on 27-9-2003 stood negated by his brother's statement that he had informed plaintiff on day when such notice was drafted i.e. 28-9-2003---Plaintiff had failed to prove Talb-e-Muwathibat in accordance with law---Suit was dismissed in circumstances.

Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Muhammad Hussain v. Manzur Hussain 2004 SCMR 737 rel.

Malik Muhammad Bashir for Petitioner.

Haji Zafar Iqbal Khan for Respondent.

Date of hearing: 6th December, 2010.

2011 C L C 672

[Peshawar]

Before Syed Sajjad Hassan Shah, J

RAHIM SHAH and 3 others----Petitioners

Versus

FAZAL MULA and 11 others---Respondents

Civil Revision No.1461 of 2007, decided on 23rd December, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Both Trial Court and Appellate Court concurrently dismissed the suit---Claim of the plaintiffs was that they being successors-in-interest of owners of the suit property, were in possession thereof since the time of their predecessors-in-interest---Plaintiffs had asserted that defendants had no right to claim the ownership of suit property; and that entries made in the revenue record in the name of the defendants, were illegal, fraudulent and collusive and were ineffective against the rights of the plaintiffs---Plaintiffs had claimed that inheritance mutation in respect of suit property in favour of the defendants, was also unlawful and ineffective on the rights of the plaintiffs---Defendants, disputed claim of the plaintiffs, contending that plaintiffs had failed to prove their ownership regarding the suit property; which never remained in possession of the plaintiffs---Witnesses examined by the plaintiffs in proof of their claim, gave contradictory and inconsistent statements, hardly to be sufficient to believe the long standing entries made to the settlement record and in the record of rights---Entries made in the revenue record had not been challenged by the plaintiffs in the life time of their predecessor-in-­interest, but such entries were challenged after the death of their predecessor-in-interest---Plaintiffs had no locus standi to challenge the entries of revenue 'record supporting the ownership of the predecessor of the defendants and after demise of their father, the defendants were recorded as owners of the property---Presumption of truth was attached to the record of rights in favour of the defendants and strong evidence was required to rebut the same which was absent in the case---Conduct of the plaintiffs making departure from averments made in the plaint, was sufficient to hold that suit was based upon no evidence--Concurrent findings of the both courts below, not suffering from any illegality or irregularity, jurisdictional error, were maintained.

Allah Dad v. Government of Pakistan and 53 others 1989 CLC 1571; Anayat Ali v. Muhammad alias Tota and others 1993 MLD 2367; Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278; Walayat and others v. Allah Ditta and others PLD 1982 Azad J&K 54; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 ref.

Abdul Sattar Khan for Petitioner.

Mian Iqbal Hussain for Respondents.

Date of hearing: 12th November, 2010.

2011 CLC 697

[Peshawar]

Before Miftah-ud-Din Khan and Syed Sajjad Hassan Shah, JJ

Haji MUHAMMAD TAHIR SIDDIQUI----Petitioner

Versus

KHALID PERVEZ and 3 others----Respondents

Writ Petition No.1454 with C.M. No.436 of 2010, decided on 14th January, 2011.

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

----Ss. 2(c)(i), 13(2)(i) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Rent Controller in the light of divergent pleas of the parties framed preliminary issues to the effect whether the relationship of landlord and tenant existed between the parties and the court had the jurisdiction to entertain the ejectment petition---Rent Controller accepted application filed by the petitioner (landlord) and passed the decree for ejectment of the respondents (tenants)---Appellate Court, however, set aside judgment of Rent Controller---Validity---Petitioner (landlord) could not prove the preliminary issue regarding the existence of relationship of landlord and tenant---Appellate Court while deciding the appeal, had rightly set aside the findings of Rent Controller after undertaking the review of entire material on the record, which could not be interfered with by High Court; as without determination of ownership, question of tenancy of demised premises, could not be decided---Decree passed by Appellate Authority, was in accordance with law not suffering from any illegality or jurisdictional error, was maintained---Constitutional petition was dismissed.

Rehmat Ullah v. Ali Muhammad 1983 SCMR 1064; Umer Hayat Khan v. Inayat Ullah Butt and others 1994 SCMR 572; Syed Aijaz Hussain v. Azeem Ullah 1984 CLC 2908 and PLD 1981 SC 246 ref.

Haji Maqsood Ahmed for Petitioner.

M. Abdul Aziz Qureshi for Respondent.

Date of hearing: 14th January, 2011.

2011 CLC 717

[Peshawar]

Before Miftah-ud-Din Khan and Syed Sajjad Hassan Shah, JJ

QAMAR ZAMN----Petitioner

Versus

Haji KHAN RAZIQ and 2 others----Respondents

Writ Petition No.1674 of 2010, decided on 13th January, 2011.

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

----S. 13(2)(i)-Ejectment of tenant on ground. of default in payment of rent---Landlord had alleged that the tenant was chronic defaulter---Burden rested on the tenant to prove that monthly rent was being regularly paid by him in accordance with terms and conditions of rent agreement, but default in payment of monthly rent had candidly admitted by the tenant himself as well as his witness---Both Rent Controller and Appellate Authority, in circumstances, had rightly accepted ejectment application of landlord and passed order of ejectment of tenant and recovery of outstanding rent from the tenant.

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

----S. 13(3)(ii)(4)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of bona fide personal need of landlord---Landlord sought ejectment of tenant on the ground that premises in question were required for occupation of his son who being unemployed required the shops and godown for his personal bona fide need---Both Rent Controller and Appellate Authority. ordered ejectment of tenant---Landlord by leading sufficient evidence, had proved the ground of personal need---Tenant had himself admitted that son of landlord was not occupying any separate shop or carrying on business independently in said premises---Tenant had failed to prove that any other shop was lying vacant in the market of landlord---Even if any shop was lying vacant, that aspect of the case was not sufficient to hold that need of landlord was not bona fide, because in case he failed to occupy the premises sought to be vacated by the landlord within specified period in terms of S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, the tenant had the remedy to seek the recovery of possession; and landlord could be punished for non-occupation of premises in question---Since landlord appeared in person before the Rent Controller and made the statement on oath, he had successfully proved his bona fide personal need and the tenant had failed to dispel the bona fide requirement of landlord---Finding of both Tribunals below, not suffering from any material illegality or irregularity, non-reading or misreading of evidence, muchless jurisdictional error, were maintained.?

Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Hasan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832; Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296 and Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 ref.

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

----S. 13(3)(ii)---Good faith---Concept---Requirements---Concept of good faith as provided under S.13(3)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959, merely required that demand of landlord must be based upon honesty and might be reasonable and it was not sufficient to doubt the bona fide personal need of the landlord that other premises let out by landlord before initiating the ejectment proceedings; or during the pendency of the same---Landlord had the choice to select the shop for his occupation.?

S. M. Noor-ud-Din 9 others v. Saga Printers 1998 SCMR 2119; Mansoorul Haq v. Akbar Ali 1994 CLC 48; Sardar Khan v. Riaz Ahmed 1986 SCMR 1981; Allah Ditta v. Mst. Rasollan Bibi 1976 SCMR 459; Muhammad Latif v. Hakim Nisar Ahmed 1986 SCMR 650; Dildar Hussain Nayar v. Niaz Muhammad Dar 1985 SCMR 1769; Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523 and Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmoodul Hassan and 3 others NLR 1982 SCJ 23 ref.

S.M. Attique Shah for Petitioner.

Waheedur Rehman for Respondent.

Date of hearing: 13th January, 2011.

2011 C L C 748

[Peshawar]

Before Sher Muhammad Khan, J

MUHAMMAD NASIR and 9 others----Petitioners

Versus

ABDUL HAKIM KHAN and 10 others---Respondents

Civil Revision No.109 of 20110, decided on 20th December, 2010.

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

----O. XLI, R.24---Suits Valuation Act (VII of 1887), S.11---Suit for rendition of accounts, declaration, possession and mandatory injunction---Power of Appellate Court to frame additional issue and direct Trial Court to take additional evidence---Trial Court passed preliminary decree in favour of plaintiffs---Appellate Court remanded the case to Trial Court after framing additional issue for determining proper value of the suit and returned the appeals to be presented to the court of competent jurisdiction---Plaintiff contended that the forum of appeal had to be determined on the basis of valuation made by the plaintiff and Appellate Court should have dismissed the application of defendant under S.11 of the Suits Valuation Act, 1887---Defendants contended that the Appellate Court wrongly returned the appeal on the ground of lack of jurisdiction---Validity---Wrong valuation of suit did not cause any prejudice to the defendants who remained silent spectator for seven years without explaining the delay---Having framed the additional issue, Appellate Court was obligated to determine whether the additional issue required further evidence or not---Where evidence on record was sufficient ,for Appellate Court to pronounce judgment, O.XLI, R.24, C.P.C., empowered Appellate Court to finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal had been preferred had proceeded wholly upon some grounds other than that on which the Appellate Court proceeded---Provisions of O.XLI, R.24, C.P.C. were meant to reduce the prolongation, of the agony of the parties---Order of remand could reopen another chain of litigation entailing unnecessary expense of parties and delay in disposal of cases---Order of the Appellate Court was self-contradictory in that the court on the one hand framed the issue directing the Trial Court to determine the same while on the other hand returned the appeals to appellants for want of jurisdiction---Where a forum lacked jurisdiction, such forum could not pass any other order except order of return of the plaint/appeal---Impugned order/judgment was set aside---Case was remanded to Appellate Court for decision on additional issue framed by it and other issues decided by the %'vial Court as the case fell within exclusive jurisdiction of the Appellate Court according to the valuation made by the plaintiffs---1f evidence on the file of the Trial Court was found deficient, Appellate Court could direct the Trial Court to record evidence on the issue of valuation and return the case file to the Appellate Court for decision.?

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

----O. XLI, R.24---Scope and object of O.XLI, R.24, C.P.C.---Power of the Appellate Court to finally determine the suit after settling the issues---Where evidence on record was sufficient for Appellate Court to pronounce judgment, O. XLI, R.24, C.P.C. empowered the Appellate Court to finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal had been preferred had, proceeded wholly on some grounds other .than that on which the Appellate Court proceeded.?

(c) Jurisdiction---

----Where a forum lacked jurisdiction, such forum could not pass any other order except the order of return of the plaint or appeal.?

Muhammad Afzal Khan v. Muhammad Hayat Khan 2000 MLD 1616; Government of Pakistan v. Messrs Allah Bakhsh 2000 CLC 1598 and Shah Wazir Khan v. Abdur Razaq PLD 2004 Pesh. 109 rel.

Akbar Khan v. Mst. Khair Khanum 1999 SCMR 399 and Habibullah. v. Azmatullah PLD 2007 SC 271 fol.

S. Mastan Ali Zaidi for Petitioners.

Muhammad Asghar Khan Kundi for Respondents.

Date of hearing: 20th December, 2010.

2011 CLC 765

[Peshawar]

Before Attaullah Khan, J

SARFARAZ KHAN----Petitioner

Versus

WAPDA through Chairman and 6 others----Respondents

Civil Revision No.321 of 2009, decided on 27th September, 2010.

Electricity Act (IX of 1910)---

----Ss. 24 & 54-C---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908) O.XXXIX, Rr.1 & 2---Notice of disconnection of electricity connection---Suit for declaration and permanent injunction---Plaintiff's application for granting of interim injunction , to restrain such disconnection---Acceptance of such application subject to deposit of assessed electricity charges in court---Plaintiff's plea that before issuing impugned notice, defendant did not issue notice under S. 24 of Electricity Act, 1910, thus, order of deposit of assessed charges was illegal---Validity---Under S.54-A of Electricity Act, 1910, issuance of interim injunction was depended upon deposit of disputed amount in count---Plaintiff had not raised plea of non-issuance of notice under S.24 either in such application or plaint, wherein only assessed charges were denied---Omission to mention in plaint non-service of notice under S.24 of the Act would disentitle plaintiff to raise such plea---Had notice under S.24 not been issued, then such fact would have been mentioned in plaint, thus, presumption would be that same had been issued---Plaintiff was bound to deposit assessed charges, whereafter stay order would become operative--High Court dismissed revision petition in circumstances.

1990 MLD 999 rel.

Malik Muhammad Bashir for Petitioner.

Muhammad Jamil Khan for Respondent.

Date of hearing: 29th September, 2009.

2011 C L C 776

[Peshawar]

Before Attaullah Khan, J

NOOR MUHAMMAD and 3 others----Petitioners

Versus

Haji SHER AKBER KHAN----Respondent

Civil Revision No.61 of 2005, decided on 18th October, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat---Date, time and place of making such Tall not mentioned in plaint, but plaintiff mentioned such facts during his evidence---Validity---Mentioning of such facts in plaint was necessary---Such Talb had not been performed in accordance with provisions of S. 13 of North-West Frontier Province Pre-emption Act, 1987---Suit was dismissed in circumstances.

2000 SCMR 329 ref.

PLD 2007 SC 302 rel.

Malik Muhammad Bashir for Petitioners.

Muhammad Daud Khan for Respondents.

Date of hearing: 18th October, 2010.

2011 C L C 790

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD AFZAL----Petitioner

Versus

Mst. BAKHTO and 8 others----Respondents

Civil Revision No.245 of 2005, decided on 22nd November, 2010.

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

----S. 42---Mutation---Allegation of fraud---Burden of proof---Plaintiff alleging suit mutation to be fraudulently attested would be bound to prove same and not defendant---Principles.

2002 SCMR 1114 and 2007 SCMR 368 ref.

1969 SCMR 299 and PLD 1969 SC 169 rel.

Muhammad Ayaz Khan Qasuria for Petitioner.

Muhammad Khalid Chaudhry for Respondents.

Date of hearing: 22nd November, 2010.

2011 CLC 796

[Peshawar]

Before Attaullah Khan, J

Mst. MUREED BATOOL----Petitioner

Versus

USMAN and 3 others----Respondents

Civil Revision No.337 of 2005, decided on 10th December, 2010.

(a) North-West Frontier Province Chashma Right Bank Canal Project (Control and Prevention of Speculation in Land) Ordinance (V of 1971)---

----Ss. 1(3), 4 & 12---Sale of project land through sale-deed dated 16-2-1972 without obtaining permission from Commissioner---Validity---Ban imposed on alienation of project land with effect from 6-10-1971 remained in force till 6-10-1986 i.e. till expiry of fifteen years---Such sale was void for having been made during period when same was banned.

PLD 1980 Pesh. 165 and 1969 SCMR 254 rel.

(b) North-West Frontier Province Chashma Right Bank Canal Project (Control and Prevention of Speculation in Land) Ordinance (V of 1971)---

----Ss. 4 & 12---Limitation Act (IX of 1908), Art.120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Sale of project land---Limitation through sale-deed dated 16-2-1972---Suit challenging such deed filed on 27-9-1995---Plaintiff's plea that last/fresh entry in record of rights made in June, 1994 on basis of such deed gave him fresh cause of action, thus, suit was within time---Validity---Cause of action would arise to a person on basis of entries in record of rights, when he was owner or in possession of land---Parties had not acted upon such deed---Plaintiff was neither owner nor in possession of suit-land, thus, cause of action would not accrue to him from date of such fresh entry---Cause of action on basis of such deed was available to plaintiff from date of its execution i.e. 16-2-1972 and he could file suit on or before 16-2-1978 i.e. within six years---Ban imposed on alienation of project land with effect from 6-10-1971 remained in force till 6-10-1986 i.e. till expiry of fifteen years---Such sale was void for having been made during period when same was banned---Date of accrual of cause of action, if calculated on basis of expiry of such fifteen years, then plaintiff was required to file suit on or before 6-12-1992---Suit filed on 27-9-1995 being time-barred was dismissed in circumstances.

PLD 1980 Pesh. 165; 1969 SCMR 254; 2003 CLC 1521 and 2002 CLC 264 rel.

(c) Pardanashin lady---

----Pardanashin lady not accompanied and identified by any of her relative while executing sale-deed---Effect---Such deed would become doubtful.

S. Abid Hussain Shah Bokhari for Petitioner.

Rustam Khan Kundi for Respondents.

Date of hearing: 29th November, 2010.

2011 C L C 870

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. MEHR ZARI and others----Petitioners

Versus

GHULAM HAIDER SHAH and others----Respondents

Civil Revisions Nos.220 and 299 of 2002, decided on 20th December, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Suit for possession, declaration and permanent injunction---Plaintiffs claiming themselves to be the owners in possession of the suit properties to the extent of their respective Sharai shares, had challenged the sale of said property through registered sale-deed (by an infirm of 93 of age) in favour of the defendant---Trial Court and Appellate Court had dismissed suit filed by the plaintiffs-Two courts below mainly discussed the failure of the plaintiffs to prove the factum of fraud alleged by them in respect of said sale of property in favour of the defendant---Registration of the sale-deeds only was considered as persuasive factor to hold that impugned sale-deeds being registered deeds had got presumption of truth and correctness; thereby shifting the burden on the plaintiffs to prove the factum of fraud---Courts below had totally. ignored that in such like situation, when alienation of property was made through sale by an old and infirm of 93 years of age the burden of proof of alienation was on the beneficiary of said transaction who was the defendant, irrespective of fact that such transaction was effected through registered deed---Whenever authenticity of a registered deed was questioned, then beneficiary of the deed alone, under the law, was required to prove genuineness of the transaction embodied in the registered deed through cogent, reliable and confidence inspiring evidence---Judgment and decrees of Appellate Court in both the appeals were set aside and cases were sent back to the court below to re-write the judgment on the available record by giving opportunity of hearing to both the sides.

Abdul Majeed and others v. Muhammad Subhan and others 1999 SCMR 1245; Lutuf-ur-Rehman and others v. Zahoor and others NLR 1999 SCJ page 433 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 ref.

Muhammad Javed Yousafzai for Petitioner.

Syed Wilayat Ali Shah Bokhari for Respondents.

Date of hearing: 20th December, 2010.

2011 C L C 886

[Peshawar]

Before Attaullah Khan, J

QAMAR FEROZ KHAN and another----Petitioners

Versus

WAPDA through Chairman and 2 others----Respondents

Civil Revision No.175 of 2009, decided on 4th January, 2011.

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

----S. 12---Contract Act (IX of 1872), S.11---Civil Procedure Code (V of 1908), S.79---Suit against statutory corporation for specific performance of agreement signed without permission by its authorized officer ---Maintainability ---Such agreement was not legally signed---Plaintiff, if aggrieved of the non-execution of the agreement, could sue such officer in his personal capacity who signed it---Suit was dismissed in circumstances.

(b) Land Acquisition Act (I of] 894)---

----S. 18---Land acquisition---Compensation---Compensation could be considered by filing a reference after issuance of award.

Muhammad Younis Thaheem for Petitioner.

S. Aabid Hussain Shah Bokhari for Respondents.

Date of hearing: 4th January, 2011.

2011 CLC 899

[Peshawar]

Before Attaullah Khan, J

SAMANDAR KHAN----Petitioner

Versus

KHAN HAKIM----Respondent

Civil Revisions Nos.320 to 325 of 2010, decided on 24th September, 2010.

(a) North-West 'Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit against several sale mutations---Talb-e-Muwathibat, performance of---Proof---Date, time and place of performance of such Talb mentioned in plaint, but failure of pre-emptor and his witness to point out during evidence place where such Talb was made---Pre-emptor's admission during cross-examination that he did not remember that how many times he made such Talb---Effect---Mentioning of date, time-and place of performance of such Talb in plaint and evidence was necessary, if anyone of them was missing, then such Talb would be incomplete---Plaintiff was required to make such Talb in respect of each sale mutation---Nothing on file and in pre-emptor's evidence was available to show that as to how many times such Talb was made by him---Plaintiff had failed to prove performance of such Talb in accordance with law---Suit was dismissed in circumstances.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-e-Ishhad, notice of---Copies of such notice, postal receipt and AD card annexed with plaint---Denial of vendee to have received such notice---Failure of pre-emptor to examine Postman---Effect---Burden in case of such denial shifted to pre-emptor to prove service of such notice upon vendee---Pre-emptor had failed to produce Postman to prove due service of such notice---Suit was dismissed in circumstances.

Ahmad v. Ghulam Rasool 2010 SCJ 643 rel.

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

----S. 115---Revision---Scope---Concurrent findings of courts below---Such finding could not be set at naught by High Court without establishing same to be either perverse or erroneous.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 29 rel.

Faqir Mehboob-ul-Hameed Khan for Petitioner.

2011 C L C 921

[Peshawar]

Before Syed Sajjad Hassan Shah, J

GHULAM ISHAQ KHAN and another----Petitioners

Versus

SHAFI ULLAH KHAN and 9 others----Respondents

Civil Revision No.252 of 2005, decided on 7th February, 2011.

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

----O. XII, R. 6---Qanun-e-Shahadat (10 of 1984), Art.113---Specific Relief Act (I of 1877), S.42---Suit for declaration---Judgment on admission---Plaintiffs sought declaration to the effect that suit property was the ownership of the predecessor of the parties, which was privately partitioned as per their shares---Plaintiffs alleged that transfer of property by one defendant through gift-deed in favour of another defendant was ineffective and inoperative on the rights of the plaintiffs---Trial Court and Appellate Court had concurrently decreed the suit---Validity---Evidence on record had established that suit property was owned by the predecessor of the parties and after his death, all his legal heirs were entitled in his legacy in accordance with their shari shares---Claim preferred by the plaintiffs in their plaint had been admitted by the defendants in their written statement and same had not been disputed in their statement before the court---Such claim of plaintiffs, in circumstances enjoyed the legal sanction as enshrined in Art.113 of the Qanun-e-Shahadat, 1984 as well as under O.XII, R.6, C.P.C.---Defendant could not deviate from his pleadings---Plaintiffs produced their evidence which was authentic and confidence ­inspiring---None of the witnesses, who had narrated the facts of the case in examination-in-chief had been cross-examined on behalf of the defendants---Evidence produced by the plaintiffs had also been admitted by the defendants---Findings rendered by the Trial Court were examined by Appellate Court and arrived at the conclusion that judgment and decree passed by the Trial Court, were in accordance with law obtained on the record---No interference could be made with concurrent findings of the two courts below on the question of fact, as those were not suffering from any misreading, non-reading of evidence, much less jurisdictional error---Interferenece was declined.

Mst. Kharo and 2 others v. Sher Afzal alias Shery 1992 SCMR 1844 and Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1995 SCMR 2018 ref.

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

----Arts. 132 & 133---Statement or its portion if not cross-examined, it ' would be deemed that said statement had been accepted by the other party---Where fact had not been challenged by the other party during cross-examination, it would be presumed that the statement had been admitted as correct.

Muhammad Ayaz Khan Qasuria and Noor Gul Khan Marwat for Petitioners.

Haji Zafar Iqbal for Respondents.

Date of hearing: 7th February, 2011.

2011CLC 944

[Peshawar]

Before Dost Muhammad Khan and Yahya Afridi, JJ

Hafiz AMJED ALI----Petitioner

Versus

Mst. NASREEN and 4 others----Respondents

Writ Petition No.323 of 2011, decided on 10th February, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower amount and maintenance allowance---Obligations of husband to render dower to his wife---Scope---When wife would demand her dower from the husband, the refusal or delay in payment thereof, would entitle the wife to seek maintenance from the husband till payment thereof-Rights of wife to demand and be paid maintenance was well established in Islam---Principles---In the present case dower deed was produced by the plaintiff/wife without. any objection or protest by the defendant/ husband---Even the stamp vendor and one marginal witness to the said dower deed, were also produced, who stood by the assertions of the plaintiff---Plaintiff, no doubt, had admitted that she had received five Tolas of gold ornaments at the time of her `Rukhsati', but she had further stated that same were taken back by the defendant and never returned---Later part of her statement, went totally unrebutted by the defendant which would be accepted as admitted, in circumstances---Courts below had exercised their discretion properly, keeping within the bounds of safe administration of justice; and judiciously considering the claim of parties and the supporting evidence produced in support thereof---Award of maintenance and quantum so fixed by the Family Court and confirmed by Appellate Court, was in accord with Islamic Injunctions---In absence of any jurisdictional error or misreading or non-reading of evidence in the decisions of the courts below which were well reasoned, same could not be interfered with by High Court in constitutional petition.

(b) Islamic law---

----Maintenance to wife---Obligations of husband to render dower to his wife and to maintain his wife according to Quran and Sunnah, explained.

The Holy Qur'an Verse No.3 of Surah An-Nisa; Verse 232 of Surah Al-Baqrah; Muhammadon Law Chapter XV titled "Rights and Duties of the Married Parties; Farah Naz v. Judge Family Court PLD 2006 SC 457; Muhammad Asad v. Humera Naz 2000 CLC 725; Muhammadon Law by Mulla, Section 284; Rahilan v. Sanaullah PLD 1959 Lah. 470; Nooruddin Ahmad v. Masooda Khanam PLD 1957 Dhaka 242; Mst. Muhannadi v. Jamaluddin PLD 1960 (W.P.) Kar. 663 and Ishtiaq Mehmood v. Zarin Gul 2002 CLC 1838 ref.

Haji Sardar Ali for Petitioner.

Nemo for Respondents.

Date of hearing: 10th February, 2011.

2011 C L C 959

[Peshawar]

Before Ziaur Rehman Khan and Sardar Shaukat Hayat, JJ

MUQADDAR KHAN----Petitioner

Versus

FARID KHAN and 2 others----Respondents

Writ Petition No.844 of 2008, decided on 28th June, 2010.

Limitation---

----Question of limitation---Mixed question of law and fact---Determination of limitation in factual controversy, required evidence to be adduced by both the parties and it would not be safe and in the interest of justice to decide such issue without giving opportunity to the parties to adduce their evidence in that regard as it was cherished goal of law to decide the cases on merits instead of technicalities.

Mukhtiar Ahmad Khan for Petitioner.

Syed Khurshid Ali for Respondent No.1.

2011 C L C 973

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR----Petitioner

Versus

KIRAN AZEEM and others---Respondents

Civil Revision No.1343 of 2010, decided on 1st February, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Correction of date of birth---Suit for declaration and perpetual injunction and correction of date of birth---Plaintiff sought declaration that her date of birth as recorded in record of Board of Intermediate and Secondary Education as 18-2-1981 was wrong, which in fact was 18-2-1984---Plaintiff had also prayed for perpetual injunction against the defendants---Suit had concurrently been decreed by the Trial Court and Appellate Court---Validity---Admission form was filed and submitted by the plaintiff under her signature and said entry had been challenged by the plaintiff belatedly for which no explanation had been offered---School leaving certificate also revealed that the date of birth of the plaintiff was 18-2-1981---Birth certificate relied upon by the plaintiff and accepted in the impugned judgment of two courts below was not confidence inspiring---Concurrent findings of the two courts below were based on misreading and non-reading of evidence open to interference by High Court in its revisional powers---Date of birth recorded in the school where the plaintiff was studying and record of Board of Intermediate and Secondary Education, prevailed upon the birth certificate relied upon by the plaintiff---Impugned judgments and decrees of the two courts below were set aside and suit of the plaintiff was dismissed with costs.

1999 CLC 1166 and 2008 SCMR 713 ref.

Ms. Shakeela Begum for Petitioner.

Hizar Hayat for Respondent No.1 on pre-admission notice.

2011 C L C 989

[Peshawar]

Before Yahya Afridi, J

IHSANULLAH and others----Petitioners

Versus

KHWAJA MUHAMMAD and others----Respondents

C.M. No.373 of 2010 in Civil Revision No.353 of 2009, decided on 21st February, 2011.

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

----Arts. 100 & 126---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and possession---Burden of proof---Thirty years old document, presumption of truth to its execution---Plaintiffs instituted suit to the effect that they were owners in possession of suit-land; and in the alternate they prayed for possession thereof---Defendants admitted that suit-land was originally owned by the predecessor-in-­interest of the plaintiffs, but subsequently same was sold by him to the predecessor-in-interest of the defendants, which was duly reflected in the revenue record---Defendants also asserted that with the transfer of title, possession of suit-land was also transferred to the defendants---Both Trial Court and Appellate Court had dismissed the suit---Validity---Defendants by producing revenue record had fully proved that land in dispute was in their continuous possession---Veracity of entries in revenue record, had been confirmed---Once it was established that suit-land was in the possession of the defendants, then the onus to prove ownership thereof was shifted upon the plaintiffs to prove that defendants were not the actual owners of suit-land---Basic written instruments with regard to sale of suit-land to predecessor-in-interest being thirty years old documents, were protected under Art.100 of Qanun-e-Shahadat, 1984 which vested a presumption of truth to its execution---Said presumption was not rebutted by the plaintiffs---Execution of the documents required no further proof---Suit filed by the plaintiffs, in circumstances, was rightly concurrently dismissed by the courts below---Said concurrent judgment of courts below could not be interfered with in revisional jurisdiction of High Court.

Syed Tawakal Hussain v. Mst. Shammim Rizvi 1999 MLD 1; Mst. Bhag Bhari v. Muhammad Khan 2010 CLC 240; Bhambhar v. Mst. Nooria 1999 YLR 2078; Muhammad Darvesh v. Haji Muhammad Hussain 1999 CLC 106; Ghulam Haider v. Wali Muhammad 2008 SCMR 1428; Sameen Khan v. Haji Mir Azad 2002 CLC 754; Muhammad Hussain v. Khuda Bukhsh 1989 SCMR 1563; Shumail Begum v. Gulzar Begum 1994 SCMR 818; Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 and Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26 ref.

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

----S. 115---Revisional jurisdiction---Scope---Courts below had the jurisdiction to adjudicate upon the matter and while exercising the said jurisdiction they had applied their conscious mind to the facts of the case and correctly applied and interpreted the applicable law---Both courts below had rendered their concurrent findings; which were not arbitrary, capricious or outrightly absurd---Interference was declined by High Court in revision.

Rahmatullah for Petitioner.

Abdul Sattar Khan for Respondent.

Date of hearing: 21st February, 2011.

2011 C L C 1034

[Peshawar]

Before Syed Sajjad Hassan Shah, J

LIAQAT ALI and others----Petitioners

Versus

HUKAM KHAN----Respondent

Civil Revision No.483 of 2007, decided on 11th June, 2010.

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 10, 12, 14, 15 & 17---Civil Procedure Code (V of 1908), S.9 & O.XXI, Rr.97 & 98---Suit for possession through redemption---Jurisdiction of the court to decide the matter---Trial Court dismissed the suit, but on filing appeal, judgment and decree passed by the Trial Court was set aside and suit was decreed in favour of plaintiffs---Section 12 of Redemption and Restitution of Mortgage Lands Act, 1964, had empowered the Collector to declare and enforce orders in favour of mortgagor---Said Act had provided remedy of appeal and revision and had empowered the Collector to deliver possession on redemption during execution as vested in the civil court under Rr.97 and 98 of O.XXI, C.P.C.---Section 17 of Redemption and Restitution of Mortgaged Lands Act, 1964, had barred the jurisdiction of civil court---Appellate Court while deciding the appeal had travelled beyond the parameters of its jurisdiction as prescribed under the law, because when a remedy was available to a litigant under the special law, he had the right to invoke the jurisdiction of said Special Tribunal or court established under the special law because of the reason of S.9, C.P.C., which had expressly prohibited the cognizance of suit barred by law---Visualizing the judgment of Appellate Court, in the light of said provision of law it was evident that the exercise of jurisdiction was not permissible under the law---Appellate Court had not taken to advert and comprehend the true intent and purpose of law, and failed to apply the same to the facts of the case---Since Appellate Court restituted the mortgage being the subsisting usufructuary mortgage not less than twenty years old, findings were in contravention of provisions of S.10 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964---Plaintiff had not sought the decree for possession through restitution of mortgage of suit property, but Appellate Court outrightly granted the decree to the plaintiff---Appellate Court, in circumstances exercised jurisdiction against law---Judgment and decree passed by Appellate Court were set aside and case was remanded to Appellate Court to decide the same afresh on its merits.

S. Muhammad Attiq Shah for Petitioners.

Gharib Gul Kashkar for Respondent.

Date of hearing: 11th June, 2010.

2011 C L C 1054

[Peshawar]

Before Yahya Afridi, J

MUHAMMAD RAEES----Petitioner

Versus

SABZ ALI and others----Respondents

Civil Revision No.1398 of 2010, decided on 28th February, 2011.

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

----S. 115---Revision---Suit for pre-emption---Courts below in the case while exercising jurisdiction, had applied their mind to the facts of the case and correctly applied and interpreted the applicable law---Both courts below in the case had rendered their concurrent findings and High Court did not find the same as arbitrary, capricious or outrightly absurd to invoke its revisional jurisdiction---Revision was dismissed.

Roohul Qadoos v. Muhammad Rafique 2002 CLC 379; Muhammad Ayub Khan v. Muhammad Zaman PLD 1990 Pesh. 181; Mst. Kharo v. Sher Afzal 1992 SCMR 1844; Asif Rashid Khan Durrani v. Hail Hazrat Gul 2010 CLC 27; Sardar Ali v. Mst. Sardar Bibi 2010 SCMR 1066; Sultan Muhammad v. Muhammad Qasim 2010 SCMR 1630; Muhammad Aslam v. Mst. Inayat Bibi 1995 CLC 1572; Muhammad Ishaq Khan Kundi v. Abdul Ghafoor 1987 CLC 2134; Muhammad Ali v. Jawad Iqbal Nabi PLD 2009 Lah. 49; Murid Hussian v. Muhammad Sharif 1996 CLC 161; Gul Taj Begum v. Lal Hussain (PLD 1980 SC (AJK) 60; Naseeb Khan v. Inayat Jan 2003 CLC 1336; Muhammad Mehraban v. Sadruddin 1995 CLC 1541; Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105 and Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 ref.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Suit for pre-emption---Making of Talb through attorney---Talb-e-Khusumat was filed by the plaintiff through attorney who had been appointed by the plaintiff through deed---Contents of said deed revealed that plaintiff had only delegated general authority to said attorney to institute and proceed with, on his behalf, cases of civil nature---No express authority was vested in said attorney to exercise the right of the plaintiff in relation to the 'Talbs' in accordance with S.13 of North-West Frontier Province Pre-emption Act, 1987---Power of attorney had to be construed strictly and the terms provided therein could not be extended to imply a meaning which was not expressly provided therein---Under provisions of S.14 of North-West Frontier Province Pre-emption Act, 1987 a validly appointed "agent" could make the requisite talbs on behalf of the "principal"---Attorney who did not have express authority of the "principal "/pre-emptor to institute or exercise the "talbs", could not proceed to do so on his behalf---If such attorney would proceed, all actions taken by him, within the express authority of the "principal", would be a nullity in the eyes of law.

Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Muhammad Ishaq Khan Kundi v. Abdul Ghafoor 1987 CLC 2134; Sardar Ali v. Mst. Sardar Bibi 2010 SCMR 1066; Muhammad Mehraban v. Saddruddin 1995 CLC 1541; Muhammad Islam v. Inayat Bibi 1995 CLC 1572; Murid Hussain v. Muhammad Sharif 1996 CLC 161; Eagle Star Ensurance Company Ltd. v. Usman Sons PLD 1969 Kar. 123; Murid Hussain v. Muhammad Sharif 1996 CLC 161; Naseeb Khan v. Inayat Jan 2003 CLC 1336 and Nawab Ali v. Javed Iqbal PLD 2009 Lah. 49 ref.

(c) Interpretation of documents---

----Written instruments were to be interpreted in terms stated therein---Intention of parties would only be considered, when the terms and words implied therein were vague and could not be given any meaning.

Chun Jha v. Ebadat Alp A1R 1954 SC 345 ref.

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

----Art. 117---Burden of proof---Initially, the burden of proving one's cause was on the person who knocked at the door of law.

Sultan Muhammad v. Muhammad Qasim 2010 SCMR 1630; Shumail Begum v. Gulzar Begum 1994 SCMR 818 and Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 ref.

Abdul Mabood Khattak for Petitioner.

Nasir Mehmood for Respondents.

Date of hearing: 28th February, 2011.

2011 C L C 1078

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Haji SIKANDAR WALI----Petitioner

Versus

Shahzada MOHIYUDDIN and another----Respondents

Civil Revision No.474 of 2001, decided on 20th September, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Contract Act (IX of 1872), Ss.2(d), 126, 127, 128 & 145---Suit for recovery of amount---Contract of guarantee, consideration for---Liability of surety---Surety's right to indemnity---Defendant/borrower obtained loan from bank and the plaintiff stood surety to the repayment of said loan to the bank---According to letter of lien, plaintiff/surety took to repay the loan amount with interest accrued thereto and he also authorized the bank to appropriate from his account in the same bank, any amount that could be necessary to adjust the loans taken by the borrower, without any reference to the plaintiff/surety---Borrower having failed to repay amount of loan to bank, same was recovered/adjusted by the bank from account of plaintiff surety---Plaintiff filed suit for recovery of said amount against defendant borrower---Said suit was dismissed by the Trial Court, but lower Appellate Court set aside judgment and decree passed by the Trial Court and decreed the suit---Validity---Recovery of amount having been made from the account of plaintiff, in the light of the terms and conditions of the letter of lien, proceedings between the bank and plaintiff were blessed with statutory sanction as provided under S.126 of Contract Act, 1872---Plaintiff being surety had paid loan amount to the bank on failure of borrower to pay the same---Plaintiff had legal right to demand the return of amount which he paid/adjusted towards the payment of loan obtained by the borrower---Under provisions of S.145 of Contract Act, 1872 borrower had to indemnify the surety and the surety was entitled to recover from the borrower the amount which had been paid by the surety---Right of plaintiff had sufficiently been protected under the law---Surety was entitled for the amount paid by him to the bank as surety of the borrower---Defendant borrower was bound to pay the disputed amount to the plaintiff surety---Judgment and decree passed by lower Appellate Court, which was lawful and not suffering from any illegality, irregularity and jurisdictional error, was maintained.

UBL v. Shahryar Textile Mills and others 1996 CLC 106; (Raja) Jagannath Bakhsh Singh v. Chandra Bhukhan Singh and another AIR 1937 Oudh 19; (1894) 2 QB 885 and Muthu Raman Chetty v. Chinna Vellayan Chetty AIR 1917 Madras 83 ref.

Mazullah Barkandi for Petitioner.

Abdul Sattar Khan for Respondent.

Date of hearing: 20th September, 2010.

2011 C L C 1143

[Peshawar]

Before Yahya Afridi, J

RAHMANULLAH----Petitioner

Versus

AMIR FARAZ----Respondent

Civil Revision No.361 of 2010, decided on 25th March, 2011.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 13 & 12---Suit for pre-emption---Making of Talbs---Waiver---Suit was resisted on three grounds; i.e. that plaintiff had not fulfilled the essential requirements of the Talb; that suit was time-barred; and that plaintiff had waived his right of pre-emption---Sale-deed in respect of suit property was registered on 28-12-2004 while Talb-e-Khusumat was made on 25-4-2005---Suit, in circumstances was within the prescribed period of limitation and was not barred as claimed by the defendant---Defendant had claimed that suit property was offered to the plaintiff, but he refused to purchase the same and in that respect plaintiff had waived his right of pre-emption---Defendant had to prove the notice as envisaged under S.12 of North-West Frontier Province Pre-emption Act, 1987, which he had failed to do so---Defendant thus could not rely upon the general defence of "waiver"---Plaintiff had fulfilled the essential requirements of Talbs as prescribed under S.13 of North-West Frontier Province Pre-emption Act, 1987, Appellate Court had rightly decreed the suit---Order of Appellate Court could not be interfered with by High Court, in circumstances as same was not arbitrary, capricious or outrightly absurd.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 15 & 12---Waiver of right of pre-emption---Essential requirements--Bar of exercising right to seek pre-emption---Scope---'Waiver', was required to be specific and definite actions or inactions, indicative of the true intention of the pre-emptor---Evasive actions or inactions which did not manifest the intention of the persons would not fulfil the requirement of S.15 of North-West Frontier Province Pre-emption Act, 1987---Mere presence during the proceedings of sale of property or knowledge thereof would not constitute 'waiver'---'Waiver' was a more general defence than the notice of option to buy as provided under S.12 of North-West Frontier Province Pre-emption Act, 1987, which was taken up against the pre-emptor---Where there was specific stance of having offered the property to pre-emptor prior to the actual sale, the notice of offer of purchase had to be proved through notice as provided under S.12 of North-West Frontier Province Pre-emption Act, 1987.

Mian Shoukat Hussain for Petitioner.

Khalid Mehmood for Respondent.

Date of hearing: 25th March, 20117'0

2011 C L C 1165

[Peshawar]

Before Attaullah Khan, J

Qureshi MEHR DIN alias ALLAH MEHR and others----Petitioners

Versus

Haji MUHAMMAD SHAFI through Legal Heirs and others----Respondents

Civil Revision No.5 of 2010, decided on 18th March, 2011.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), S.42---Suit for declaration---Revision---Scope---Suit had concurrently been decreed by the Trial Court and lower Appellate Court---Impugned judgments and decrees of the courts below were based on correct legal footing---Two courts below had recorded concurrent findings based on facts which could not be set at naught by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless it was proved through cogent and convincing evidence available on record that such findings were either perverse, erroneous or had resulted into miscarriage of justice.

2003 SCMR 41; 2004 MLD 875; Abdur Rahman and another Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Muhammad Waheed Anjum for Petitioners.

Ahmad Ali Khan for Respondents.

Date of hearing: 18th March, 2011.

2011 C L C 1206

[Peshawar]

Before Yahya Afridi, J

Mst. NASREEN AKHTAR----Petitioner

Versus

MOHSIN ALI----Respondent

Civil Revision No.484 of 2011, decided on 4th April, 2011.

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

----O. XVIII, R.17 & O.XLI, R.27---Recalling witness for examination and production of additional evidence---Scope---Provisions of O.XVIII, , R.17, C.P.C. relating to recalling a witness by the Trial Court and allowing additional evidence before Appellate Court under O.XLI, R.27, C.P.C. were an exception to the general rule of not allowing the same---Rationale behind said provisions was to ensure that parties produce their evidence in one-go and not in piecemeal, yet provided discretion to a court of law to allow evidence to be produced only in order to render complete justice---Such clear and vast authority with the court of law should not be exercised to allow one party to improve his case or to provide a second chance to him to fill up the lacunas in the case---Allowing party to produce additional evidence of calling witness again, would surely be providing him an opportunity of improving his case and filling up the lacuna in his case.

Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143 ref.

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

----S. 115---Revisional jurisdiction---Scope---Court below having jurisdiction to adjudicate upon the matter, while exercising said jurisdiction it had applied its conscious mind and rendered its findings on the issue---Findings of the court below were not arbitrary, capricious or outright absurd---Same warranted no inference---Revision petition being devoid of legal merit, was dismissed, in circumstances.

Shumail Begum v. Gulzar Begum 1994 SCMR 818; Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 and in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26 rel.

Roohul Amin for Petitioner.

Nemo for Respondent (being motion case).

Date of hearing: 4th April, 2011.

2011 C L C 1231

[Peshawar]

Before Attaullah Khan, J

Mst. AWAL JANA alias LAL JANA and 2 others----Petitioners

Versus

Mst. TOTIA and others----Respondents

Civil Revision No.275 of 2005, decided on 18th March, 2011.

(a) North-West Fronteir Province Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----Preamble---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Deceased owner of suit-land left behind three sons and three daughters---During the days of death of the owner, customary law of inheritance being in force, suit property of deceased was devolved upon said three sons, while his daughters were excluded from his legacy---North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 was given retrospective effect vide which all the legal heirs of the deceased including his daughters were held entitled to such legacy---Deceased was deemed to have been died under the domain of Islamic Law, irrespective of the fact that he died prior to the promulgation of North-West Fronteir Province Muslim Personal Law (Shariat) Application Act, 1935---Depriving females from the legacy of their propositus under the customary law ceased to remain in force---Under custom those females who were married at the time of their propositus though were excluded from his legacy, but since no evidence was on record to prove that plaintiffs were married at the relevant time, both courts below had rightly found them entitled to their shares in the legacy of their deceased father, to which no exception could be taken---Courts below had correctly reached the conclusion that claim of the plaintiff was within time for the reason that time would be counted from the date of mutation---Impugned judgments and decrees being based on sound appreciation of materials brought on record, were upheld, by High Court.

1998 SCMR 996 and PLD 2004 Lah. 1 ref.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of courts below based on facts and arrived at after correct appreciation of evidence brought on record, could not be set at naught by High Court under S.115, C.P.C. , unless same were proved and established through cogent and convincing evidence, to be perverse, fanciful or erroneous.

2000 SCMR 346; PLD 1994 SC 291 and PLD 2002 SC 293 ref.

Saleem Ullah Khan Ranazai for Petitioners.

S. Mastan Ali Zaidi for Respondents.

2011 C L C 1295

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

SAHIB NOOR----Appellant

Versus

Pir NASEER-UD-DIN through Legal Heirs----Respondents

Regular First Appeals Nos.4 and 5 of 2007, decided on 25th January, 2011.

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

----O. XIV, R.1---Framing of issues---Trial Court had power to frame any issue arising out of the pleadings or the other material, if it appeared that it was essential for complete and conclusive adjudication of the controversy between the parties---Court could frame any issue, even if not raised in the pleadings, nonetheless, it would come to the notice of the court during the course of evidence, in order to resolve the controversy between the parties---For a fair and proper adjudication, the issues must be framed regarding the controversy existing between the parties, so that it might be decided to ward off further litigation; and any sort of controversy between the same parties.

Mst. Sughran Bibi and others v. Jamila Begum and others 2001 SCMR 772; Muhammad Yasin Khan and others v. Akhtar Nawaz Khan and others 2000 CLC 2008 and Bakht Zaman v. Said Majid 1989 SCMR 1719 ref.

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

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Arts.17, 79 & 80---Suit for recovery of amount---Trial Court had not considered the necessary requirements for proving a document involving financial transaction---Such document was covered under Art.17 of Qanun-e-Shahadat, 1984---Provisions of Arts.17 & 79 of Qanun-e-Shahadat, 1984, had not been taken into consideration by the Trial Court---Court believed only one marginal witness and nothing was available on record showing the reason of not examining or producing the second witness as required by Art.80 of Qanun-e-Shahadat, 1984---Trial Court was required to consider said aspect and other lapses---Since common question of law and fact were involved in both rival suits, Trial Court was fully competent to have consolidated and framed consolidated issues in both the suits to avoid the conflicting judgments---Trial Court could not decide independently the common question of payment of sale consideration of the item in question---High Court allowing appeal, set aside the impugned judgments and decrees passed in both suits and remitted the cases to the Trial Court to decide the same.

Mst. Sughran Bibi and others v. Jamila Begum and others 2001 SCMR 772 and Muhammad Yasin Khan and others v. Akhtar Nawaz Khan 2000 CLC 2008 ref.

Ghulam Muhammad Sappal for Appellant.

Muhammad Jamil Khan for Respondent.

Date of hearing: 25th January, 2011.

2011 C L C 1314

[Peshawar]

Before Mian Fasih-ul-Mulk, J

KALA----Petitioner

Versus

Mst. KAMO BEGUM----Respondent

Civil Revision No.339 of 2006, decided on 28th February, 2011.

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

----S. 41---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Temporary allotment of evacuee land in favour of plaintiff as Kashmiri refugee---Cancellation of plaintiff's allotment and re-allotment of suit-land to first defendant (vendor) and its further sale to second defendant (vendee)---Claim of second defendant (vendee) to be entitled to protection of S. 41, Transfer of Property Act, 1882---Validity---Evacuee land or property once allotted even temporarily to a refugee could not be cancelled for being out of compensation pool and not remaining in ownership of Government of Pakistan---Settlement Department and others could neither cancel temporary allotment in favour of plaintiff nor could re-allot same to some one else---Second defendant (vendee) would survive or sink with first defendant (vendor), who had failed to keep his entitlement alive---Such claim of second defendant (vendee) was bound to be rejected---Suit was decreed in circumstances.

Noor Muhammad through L.Rs. v. Mst. Muzaffar Bibi and others 2006 SCMR 25; Muhammad Bibi v. Province of Punjab through Collector, Gujranwala and others 2006 CLC 586 and Ghulam Muhammad and another v. Ahmad Khan and another PLD 1991 SC 391 ref.

Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549 rel.

Rasheedul Haq Qazi for Petitioner.

Abdul Lateef Khan for Respondents.

Date of hearing: 28th February, 2011.

2011 C L C 1339

[Peshawar]

Before Yahya Afridi, J

JAVED AKHTAR and 6 others----Petitioners

Versus

MUHAMMAD ISRAR----Respondent

Civil Revision No.1107 of 2004, decided on 11th April, 2011.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Making of talbs---Suit was concurrently dismissed by the Trial Court and lower Appellate Court on the ground that 'talbs' provided under S.13 of North-West Frontier Province Pre-emption Act, 1987 were not performed in accordance with law---Plaint had revealed that same lacked particulars regarding the time, place and witnesses of 'Talb-i-Muwathibat'---Mentioning of time, date and place of the first 'talb' was a sine qua non of proving the 'talbs' as required under S.13 of North-West Frontier Province Pre-emption Act, 1987---Non-mentioning of particulars regarding date, time and place etc. being fatal, suit was rightly dismissed by the courts below.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Altab Hussain v. Abdul Hameed 2000 SCMR 314; Haji Muhammad Salim v. Khuda Bukhsh PLD 2003 SC 315 and Fazal Subhan v. Mst. Sahib Jamala PLD 2005 SC 977 ref.

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

----O. VI, R.1---Pleadings---Failing to mention essential particulars about a fact in the pleadings, would surely result in depriving the said person to prove the same in evidence---Person could not go behind his pleadings.

Fazal Din v. Muhammad lnayat 2007 SCMR 1 and Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 ref.

M. Jamil for Petitioners.

M. Alam and M. Fakhre Alam for Respondent.

Date of hearing: 11th April, 2011.

2011 C L C 1473

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MISAL KHAN----Petitioner

Versus

MANAGING DIRECTOR CORPORATE MEMBER, KARACHI STOCK EXCHANGE

and 2 others----Respondents

Civil Revision No.1371 of 2007, decided on 25th April, 2011.

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

----Ss. S & 14---Civil Procedure Code (V of 1908), O. VII, Rr.2 & 10---Suit for recovery of amount---Return of plaint---Limitation---Condonation of delay---Suit was returned by the civil court for want of jurisdiction; plaintiff filed the same in the court of Judge Banking Court, which was again returned on the question of jurisdiction holding that Banking Court had no jurisdiction, being a civil matter---Plaintiff again in compliance of order of Banking Court filed suit in civil court, which was rejected by the court declaring same to be time ­barred---Validity---Plaintiff while acting in good faith, complied with the decision of the courts/civil and Banking Court---Decision of the courts regarding return of plaint, consumed sufficient time---Delay, in the case, in no way could be attributed to the plaintiff, who in peculiar circumstances of the case, was entitled for condonation of delay under S.14 of Limitation Act, 1908---Legal rights of the plaintiff, who remained the rolling stone since May, 2003, could not be refused on the question of limitation---Plaintiff who had been knocked down on mere technicalities, had acted in good faith and pursued his case with due diligence---Plaintiff could not be refused the benefit of S.14 of Limitation Act, 1908 as object of said section was to protect a litigant against bar of limitation who was pursuing his case bonafidely and in good faith, but was unable to get his case decided on merits on account of defect in jurisdiction of court---Judgments/orders of the courts below were set aside and case was remanded to the court of Senior Civil Judge, with the direction to decide the same on merits, in accordance with law.

Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Kar. 151; Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277; Messrs Pakistan Agro Forestry Corporation Ltd. v. T.C. PAF Pakistan Pvt. Ltd. and others PLD 2003 Kar. 284; Tanveer Jamshed and another v. Raja Ghulam Haider 1986 CLC 456; Riaz-ur-Rehman Khan v. Lufthansa German Airlines, Quaid-e-Azam International Airport, Karachi PLD 2002 Kar. 434; Bahadar Alam and others v. Abdul Razzak and others 2001 YLR 331; Salawal Khan v. Wali Muhammad and others 2002 SCMR 134 and Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144 ref.

Mst. Qudsia Begum through L.Rs. v. Hazoor Ahmad Khan and another 1989 MLD 1073; Mst. Khalida Begum and 2 others v. Mst. Yasmeen and 4 others 2000 CLC 1290; Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Kar. 151; Muhammad Nawaz Khan and another v. Mst. Farrah Naz PLD 1999 Lah. 238; Sardaraz Khan and 36 others v. Amirullah Khan and 34 others PLD 1995 Pesh. 86 and Mst. Hawabai and 6 other v. Abdus Shakoor and 8 others PLD 1981 Kar. 277 distinguished.

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

----O. VII, R.10---Return of plaint---Filing of fresh plaint---If after return of plaint the plaintiff had a sufficient time prescribed under the law of limitation, then there was no need to annex the returned plaint; as the same was not the requirement of law---Filing of fresh plaint and non filing of previous plaint, at the most could be held as a technicality, which could not be allowed to hinder and get in the way of dispensation of justice.

Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277 rel.

(c) Administration of justice---

----Act of court---Right of litigant could not be left to suffer because of technicalities and act of court---Act of court would prejudice no man.

Sajawal Khan v. Wali Muhammad and others 2002 SCMR 134 ref.

Atiqur Rehman for Petitioner.

Zahid Iqbal for Respondents Nos.2 and 3.

Date of hearing: 25th April, 2011.

2011 C L C 1488

[Peshawar]

Before Syed Sajjad Hassan Shah, J

LAND ACQUISITION COLLECTOR/DISTRICT COLLECTOR, MARDAN and 5 others----Appellants

Versus

Mst. MUQESHA BEGUM widow and 4 others----Respondents

R.F.A. No.127 of 2007, decided on 7th December, 2010.

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

----Ss. 4, 12, 17, 18, 23 & 54---Constitution of Pakistan, Art.24---Acquisition of land---Protection of property rights---Scope---Determination of amount of compensation---Enhancement of amount by Referee Court---Market value of acquired land determined by Acquisition Collector, Rs.1250 per Marla, having been enhanced by the Referee Court to Rs.5000 per Marla, Acquiring Authority had assailed the same---Validity---Landowner sought enhancement of market value of acquired land on the ground that suit land was situated at the main road and was in the middle of Abadi surrounded by Commercial Market---Collector, Land Acquisition, while determining the compensation of acquired property, had failed to take into consideration the location of suit property and its surroundings---Possession of suit property was taken in 1993, while award was announced in the year 2002, about nine years of taking the possession---Compensation was worked out by the Collector without any material before him and just relied upon one year average of the suit property---Fair and proper determination of market value hardly could be made on the basis of one year average of similar situated property in proximity of the acquired property---Lawful owner having been compelled to part with his property, must be paid proper and adequate compensation---Provisions of Art.24 of the Constitution, dealt with the compulsory acquisition of property by State for public purpose---State was under obligation to pay the fair and just compensation of the property so acquired---Enhancement of amount of compensation from Rs.1250 per Marla to Rs.5000 per marla, by the Land Acquisition Judge/Referee Judge was supported by the available evidence---Findings rendered by Referee Court, not suffering from any illegality, irregularity or misreading or non-reading of evidence, were maintained by High Court.

Murad Khan V. Land Acquisition Collector 1999 SCMR 1647; Premier Sugar Mills Limited v. Hayatullah Khan PLD 1956 (W.P.) Pesh. 67; The Land Acquisition Collector, Rawalpindi v. Lieut. General Wajid Ali Khan Burki PLD 1960 (W.P.) Lah. 469; Province of West Pakistan and another v. M. Salim Ullah and others PLD 1966 SC 547; Jogendra Nath Chatterjee and others v. State of West Bengal AIR. 1971 Calcutta 458; Pakistan and another v. Rehm Dad and another 1980 CLC 574; Pakistan v. Din Muhammad and others 1983 CLC 1281; Mst. Khatu and others v. Barrage Mukhtiarkar, Thatta PLD 1977 Kar. 203; Din Muhammad v. General Manager, Communication and others PLD 1978 Lah. 1135; Province of Punjab v. Sher Muhammad and another PLD 1983 Lah. 578; Fazalur Rehman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Government of Pakistan v. Maulvi Ahmed Saeed 1983 CLC 414; Central Government of Pakistan v. Sardar Fakhar-e-Alam and another 1985 CLC 2228; Raza Muhammad Abdullah through his Legal Heirs v. Government of Pakistan and others 1986 MLD 252 and Abdul Wahid and others v. The Deputy Commissioner 1986 MLD 381 ref.

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

----S. 23---Enhancement of compensation, consideration for---Question of enhancement of compensation of the property acquired for public purpose---Guidelines for assessment of the compensation stated.

Murad Khan v. Land Acquisition Collector 1999 SCMR 1647 fol.

Zahid Yousaf Qureshi, A.A.-G. for Appellants.

Qazi Jawad Ehsanullah for Respondent.

Date of hearing: 7th December, 2010.

2011 C L C 1579

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

MUHAMMAD HASHIM----Petitioner

Versus

ABDUL QAYYUM and 2 others----Respondents

Writ Petition No.57 of 2010, decided on 25th November, 2010.

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

----Ss. 13(2)(i)(ii)(9)(3)(ii),(6) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent, subletting and personal need---Tentative rent order, non-compliance of---During proceedings before Rent Controller, tenant vide tentative rent order was directed to deposit monthly rent of shop in question before 15th of every month---Tenant having failed to comply with said tentative rent order, landlord filed application for striking off defence of tenant---Rent Controller instead of striking off defence of tenant," preferred to decide the case on merits and ejectment application filed by landlord was dismissed---Appellate Court below, passed ejectment order against tenant on the ground that tenant who had failed to comply with tentative rent order passed by the Rent Controller was liable to be ejected---Tenant had deposited the outstanding monthly rent for the month of August, September and October on 15-10-2008---Under the provisions of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, tenant as required to deposit the rent of August, 2008 before 15th of September, 2008 and the rent for the month of September before 15th of October, 2008--Word used "before 15th of each month" did not carry any other meaning except the one that the payment should be made earlier than that date---Deposit of rent on the 15th of calendar month would constitute non-compliance with the Rent Controller's order---In the present case delay could be condoned for the month of August, but the tenant not only defaulted in depositing rent of month of August, but also failed to deposit the rent of September, for which no reason or unavoidable circumstances had been shown---No illegality, perversity or jurisdictional defects were found in the order of the Appellate Court below warranting interference of High Court in its extraordinary constitutional jurisdiction---Constitutional petition was dismissed.

Hayat Ali v. Miss Aziza Mahmud 1980 SCMR 298 ref.

Burhan Latif Khaisori for Petitioner.

Ahmad Ali Khan for Respondent.

Date of hearing: 25th November, 2010.

2011 CLC 1586

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Malik MUMTAZ KHAN----Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY PAKISTAN through Chairman WAPDA, LAHORE and 4 others----Respondents

R.F.As. Nos.5 and 9 of 2010, decided on 29th April, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4, 9, 15, 18, 25 & 54---Acquisition of land---Rule as to determination of amount of compensation---Amount of compensation of acquired land was determined by the Collector as Rs.5000 per Kanal---Said amount was enhanced by Referee Court from Rs.5000 to Rs.25,000 per Kanal with severance charges and compulsory acquisition charges etc.---Feeling aggrieved from the impugned judgment and decree both parties had filed appeals---Landowner had contended that local commission appointed by the court assessed the market value of the acquired property as Rs.80,000 per Kanal, but Referee Court had given no reasons to discard the assessment of the local commission and prayed for enhancement of the rate of compensation as Rs. 80,000 as assessed by the local commission---Validity---Pursuant to notification under S.4 of Land Acquisition Act, 1894, appellant along with other landowners claimed Rs.25,000 per Kanal as compensation of his land---Appellant, in circumstances, had waived his right to claim at rate of Rs.80,000 which was more than the amount which he himself claimed before the Collector---Where the party had claimed certain amount before the Collector in pursuance of S.9 of the Land Acquisition Act, 1894, he could not claim the larger amount than he had claimed before the Collector---Determination of compensation by the court was subject to the provisions of S.25 of Land Acquisition Act, 1894---Appellant was not legally entitled for seeking the amount of compensation of acquired property more than that which he had claimed before the Collector which was Rs.25,000. per Kanal. ?

Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCMR 45; Muhammad Sharif v. Afsar Textile Mills Ltd. and another 1985 SCMR 1181 and Secretary of State v. C.R. Subramnia Ayyar AIR 1950 Mad. 576 ref.

Ghulam Hur Khan Baloch for Appellant.

Abdur Rashid Ishrat for Respondents.

Date of hearing: 29th April, 2011.

2011 C L C 1787

[Peshawar High Court]

Before Syed Sajjad Hassan Shah, J

SARDAR ALI SHAH and others----Petitioners

Versus

GHUFRAN ULLAH and others----Respondents

Civil Revision No.93 of 2008, decided on 1st December, 2010.

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

----Ss. 12 & 35---Suit for specific performance of agreement to sell---Plaintiff filed suit with regard to area measuring 16 Kanals, 10 Marlas, but Trial Court decreed suit to the extent of 5 Kanals and 8 Marlas---Appellate Court modified the decree and added 9 Kanals and 4 Marlas to the area as was decreed by the Trial Court and the plaintiff was directed to deposit a sum of Rs.75,000 in the court within a period of one month---Predecessors of the plaintiff filed revision petition against said modified judgment wherein they sought the deduction in the sale consideration of the suit property---Said revision petition having been dismissed, decree-holder filed application seeking the permission of the Appellate Court to deposit said amount of Rs.75,000, which application was dismissed by Appellate Court---Validity---Section 35 of the Specific Relief Act, 1877, had not provided any consequence for non-deposit of the balance amount of sale consideration, therefore, Appellate Court did not mention any such condition in the impugned order---Law did not provide dismissal of suit for non-deposit of the balance sale consideration---Parties could proceed further in the matter for seeking extension in the time for deposit of the balance amount---Decree in the suit for specific performance of agreement was a preliminary decree in nature and not final decree and the court passing the decree, would not stand functus officio---Court had seisin over the decree passed by it and could entertain application on behalf of the plaintiff/decree-holder for extension of time to deposit the balance amount---Plaintiffs put all efforts to comply with the order of deposit of balance amount---At the time when application for deposit of balance amount was filed, the contract between the parties was subsisting and was not rescinded---Appellate Court had ample power to pass the order of deposit, but court refused without legal and plausible justification---Appellate Court, in circumstances had committed gross illegality amounting to miscarriage of justice to the plaintiffs/decree-holders---Impugned order passed by Appellate Court was set aside and application filed by the decree-holders for deposit of the balance amount of sale-consideration was accepted---Decree-holders were directed to deposit the amount in question within a period of 30 days, in circumstances.

PLD 1994 Lah. 380 and Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464 ref.

Israf Ali alias Israfudin Modal PLD 1967 Dacca 557 and Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR 46 MAD. 148; Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464; Manicka Gounder v. Samikannu Gounder AIR 1967 Mad. 397; 1973 Calcutta 439; Amjad Malik v. Muhammad Saleem 1992 MLD 31; Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Bom. 104 and Shmt. Sarpi and others v. Har Gian and others AIR 1975 Punjab and Haryana 231 rel.

Muhammad Iqbal v. Bashir Ahmed and 19 others PLD 2002 Lah. 88; Abdul Hameed and another v. Islam Din and another 2000 CLC 290; Farmaish Ali Bhatti v. Mst. Sajida Amjad Khan and others 2005 YLR 2357; Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177; Amjad Malik v. Muhammad Saleem 1992 MLD 31; Muhammad Riaz v. Umer Din and 3 others 1985 CLC 474; Bashir Ahmed and another v. Hussain Industries (Pvt.) Ltd. 2003 YLR 55; Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464 and Amjad Malik v. Muhammad Saleem 1992 MLD 31 distinguished.

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

----S. 35---Recession of contract---Court could pass an order for recession of a contact, if purchaser would fail to pay the purchase money or other sums, which the court had ordered him to pay.

Mian Muhibullah Kakakhel for Petitioners.

Asif Ali Shah for Respondents.

Date of hearing: 1st December, 2010.

2011 C L C 1805

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD AYUB and 8 others----Petitioners

Versus

MUHAMMAD YOUNAS through Legal Heirs and others----Respondents

Civil Revision No.16 of 2011, decided on 9th June, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.44---Declaration of title---Partition of property---Minor age of one of the co-sharers---Concurrent findings of fact by two Courts below---Approbation and reprobation, principle of---Applicability---Plaintiffs assailed partition of suit properties on the ground that when partition deed was executed, then one of the plaintiffs was minor---At one stage plaintiffs admitted grant of property to predecessor - in - interest of defendants as matter of respect and at second juncture, plaintiffs denied the same right to them which had given to their predecessor-in-interest on the strength of the same partition deed---Both the Courts below had concurrently dismissed the suit and appeal filed by plaintiffs---Validity---Partition deed had either to be accepted in total or to be denied completely and plaintiffs could not be allowed to pick and choose, therefore, findings of two Courts below were in accordance with material available on record---If one of the plaintiffs was a minor at the time of execution of partition deed, under the law he was required to file a suit for declaration within three years of attaining the age of majority as provided under the law but he filed the suit beyond three years and objection regarding his age was raised for the first time before High Court, which could not be raised---Findings of two Courts below were in accordance with law and concurrent findings of facts were against plaintiffs which could not be interfered with unless it was established that the same had been based on misreading or non-reading of material evidence available on the record or the Courts below had failed to exercise the jurisdiction provided under law---Plaintiffs failed to make out a case within the framework of S.115, C.P.C. High Court declined to interfere in concurrent findings of Courts below---Revision was dismissed in circumstances.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Kalu Khan and another v. Ghulam Siddiq and 4 others PLD 1991 Pesh. 111; Abdul Majeed and another v. Muhammad Amin 2008 CLC 751; Khadim Muhammad and others v. Tilla Muhammad and others 2005 YLR 2370 and Ghulam Hussain v. Khawaja Muhammad Iqbal and another 2006 YLR 361 ref.

Naeemuddin for Petitioners.

Fazli Ghafoor for Respondents.

Date of hearing: 9th June, 2011.

2011 C L C 1884

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD RAFIQ and 6 others----Petitioners

Versus

ASHIQ BADSHAH or ZAHAWAR SHAH----Respondent

Civil Revision No.268 of 2008, decided on 9th June, 2011.

(a) Tort---

----Malicious prosecution---Suit for damages---Necessary ingredients---Plaintiffs had filed a suit against defendant for recovery of Rs.3,00,000 as damages on account of institution of suit against them by the defendant, on grounds that same was false, illegal and without any entitlement---Necessary ingredients of suit for damages were that the plaintiff was under the onus to show that he was prosecuted by the defendant in a false litigation; that prosecution terminated in favour of the plaintiff; that prosecution was malicious; that the prosecution was without reasonable and probable cause; that the proceedings had interfered with the plaintiff's liberty and had also affected his reputation and that the plaintiff had suffered damages---Was incumbent upon the plaintiffs to prove all said requirements, but they failed to substantiate the same through reliable evidence---Plaintiffs also did not bring on record any proof that suit filed by the defendant against them was based upon mala fide or any malice---Plaintiffs had not pleaded and said anything during their deposition before the court that defendant had filed the suit without reasonable and probable cause and was based on malice---Mere allegation that the suit of the defendant was false, against the law and without any rhyme or reason, was not sufficient to meet the requirement of law---Trial Court had not considered the pleadings as well as evidence for arriving at a conclusion that the grant of damages for malicious prosecution was justified or not---Plaintiffs besides their own statement, could not produce any other documentary and oral evidence to substantiate their claim of award of damages---Appellate Court, in circumstances had rightly dismissed the suit of plaintiff---No illegality or material irregularity having been committed by Appellate Court while deciding the appeal; judgment of Appellate Court could not be interfered with, in circumstances.

Abdur Rauf. v. Abdur Razaq and another PLD 1994 SC 476 and Mst. Amna v. Nizamuddin 1985 MLD 271 rel.

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

----S. 115---Revisional jurisdiction, exercise of---While hearing revision petition under S.115, C.P.C., High Court had to satisfy itself on three matters; that order of the lower court was within its jurisdiction; that case was one in which the court ought to exercise jurisdiction; and that in exercising the jurisdiction, the court had not acted illegally.

Khalil Khan Khalil and M. Muhammad Younas Shah for Petitioner.

Hidayatullah Khattak for Respondent.

Date of hearing: 9th June, 2011.

2011 C L C 1906

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD SHER and another----Petitioners

Versus

ALI MUHAMMAD and 6 others----Respondents

Civil Revision No.12 of 2011, decided on 7th June, 2011.

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

----Ss. 39 & 52---Entries in the revenue record, per se were not the evidence of title---Entries in the revenue record and specially the entries in the first ever settlement record, however, had got a presumption of truth attached to the same, which could be used as a piece of evidence and the other party would be legally bound to rebut the same entries with a strong and cogent evidence.

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

----Ss. 39 & 53---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Specific Relief Act (I of 1877), S.42---Suit for declaration---Ownership of suit property---Burden of proof---Plaintiff alleged to be the owner of suit property, therefore, it was for the plaintiff to have proved the same---Question of limitation being related with the cause of action, whenever an attempt on the right of the party was made, the aggrieved party would get a fresh cause of action---Each and every wrong entry in the revenue record would provide fresh cause of action, but that would require to be established on the record through evidence---Mere assertions in the plaint without evidence, would not be sufficient to clothe the plaintiff with decree in his favour.

Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840, Shafiq Ahmad v. Malik Wazir and others PLD 1991 Pesh. 76 and Umar Hakim and others v. Deputy Commissioner Dir and others PLD 1990 Pesh. 91 distinguished.

Hakim Khan and another v. N.-W.F.P. Government through Deputy Commissioner, Bannu and 8 others PLD 1983 Pesh. 44; Amanat Khan and another v. Noor Rehman and another 2006 SCMR 1622; Atta Muhammad v. Nasir-ud-Din PLD 1993 Pesh. 127; Syed Tawakal Hussain and others v. Mst . Shamim Fatima Rizvi and others 1999 MLD 1 and Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 ref.

Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840 rel.

Fazli Ghafoor for Petitioner.

Mian Hussain Ali for Respondent.

Date of hearing: 7th June, 2011.

2011 C L C 1916

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Haji MUHAMMAD RIAZ-UL-HASSAN and 9 others----Appellants

Versus

WAPDA through Chairman, WAPDA, LAHORE and 4 others----Respondents

R.F.A. No.11 of 2011 with C.M. No.3 of 2011, decided on 3rd May, 2011.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr.2 & 3 & O.IX---Land Acquisition Act (I of 1894), Ss.18 & 54---Striking off right for production of evidence---Appeal against---Trial Court to which reference petition under S.18 of Land Acquisition Act, 1894 was forwarded, struck off right of appellants for production of evidence---Proceedings in the case were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of appellants, who had deposited his diet money---Patwari Halqa who appeared in the court, was examined in a piecemeal manner for a sufficient amount of time, but on one date when he did not appear, notice under O.XVII, R.3, C.P.C. was given to the appellants, though the case was fixed for recording the statement of Patwari Halqa---Validity---Trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as Patwari was official witness and required to be summoned by the court---Case was adjourned for recording of evidence and on the date so fixed for the evidence of Patwari and the oral evidence of the appellants, neither the appellants attended the court nor evidence was produced---Court, in such eventuality, could proceed under Rule 2 of O.XVII, C.P.C., instead of resorting to provision of R.3 of O.XVII, C.P.C.---Trial Court had incorrectly applied provisions of R.3 of O.XVII, C.P.C. because statement of Patwari was yet to be completed---No material was available on record to dismiss the suit as said provisions were not mandatory, but were permissible and discretionary in nature---Said provisions being penal, must be strictly construed and to be sparingly applied to the cases; and that too where all the requirements prescribed under the law had been fulfilled---Trial Court, in absence of the appellants, at the most, could dismiss the suit under O.IX, C.P.C. or pass any other order as it deemed fit---Since the precious rights were involved in the case, which required adjudication on merits, appellants could not be deprived of their rights on the mistaken legal advice and for the act of the court---Appeal was accepted on payment of cost and impugned order was set aside and the matter was remanded to the Trial Court for decision on merits in accordance with law within a period of two months.

Muhammad Haleem and others v. Muhammad Naim and others PLD 1969 SC 270; Haji Muhammad Waris v. Muhammad Hayat 2006 CLC 1680; 1999 SCMR 105; Sarwar Khan v. Muhammad Yousaf 1988 MLD 2035 and Mst. Bas Khana and others v. Muhammad Raees Khan and others PLD 2005 Pesh. 214 rel.

Qurban Ali Khan for Appellants.

Amir Muhammad Baloch for Respondents.

2011 C L C 1927

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. ASMAT ARA----Petitioner

Versus

Mst. RUKHSANA SHAHEEN and others----Respondents

Civil Revision No.8 of 2010, decided on 8th April, 2011.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Allegation of fraud and misrepresentation---Scope of S.12(2), C.P.C.---Plaintiffs had based their claim of ownership on the basis of a private partition deed and also had challenged the decree in favour of the defendant under S.12(2), C.P.C.---Validity---Anybody feeling aggrieved of a judgment and decree on the ground of fraud, misrepresentation or want of jurisdiction, had to file an application under S.12(2), C.P.C. before the court which had passed the final judgment and decree or order; S.12(2), C.P.C. then would bar filing of a separate suit in that regard---In presence of S.12(2), C.P.C., decree could not be challenged through a civil suit---Concurrent findings of two courts below, whereby suit filed by the plaintiff was decreed were based on unlawful and irregular exercise of jurisdiction, which had resulted into illegality---Judgments and decrees of two courts, were set aside, in circumstances.

Abdul Rehman and others v. Mst. Sahib Bibi and another 2011 SCMR 191; Sarfaraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 ref.

Gul Rehman Mohmand and Irfan Bangash for Petitioner.

Qaisar Jan for Respondents.

Date of hearing: 4th April, 2011.

2011 C L C 1938

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ZAMIR KHAN----Petitioner

Versus

Mst. TASLEEM BEGUM and 3 others----Respondents

Civil Revision No.605 of 2011, decided on 13th May, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff, a pardanashin lady---Suit had concurrently been decreed, both by the Trial Court and Appellate Court below---Plaintiff who claimed to be owner in possession of suit house had challenged alleged sale mutation in respect of said house in favour of defendant, being based on fraud, misrepresentation, without consideration having no adverse effects on her rights---Suit property was originally owned by the plaintiff---Impugned mutation reflected a transaction of sale by the plaintiff in favour of the defendant who, happened to be her real brother---Plaintiff was an issueless parda-observing widow---Transaction with illiterate, old age persons/illiterate parda-observing ladies required to be considered with great care and caution and in transaction with such persons, it would become the bounden duty of the beneficiary of its transaction to prove with cogent and reliable evidence that the transaction was with the free-will, without any undue influence and was with consideration---In the present case both identifying witnesses as well as the Local Commissioner, were not related to the plaintiff---No well wisher of the plaintiff was present at the relevant time when her alleged statement was being recorded---Identifying witness also admitted that no sale consideration was paid to the plaintiff in his presence---Defendant himself in his cross-examination submitted that there was no witness regarding payment of sale consideration as he himself had paid the sale consideration to the plaintiff---Burden to prove the genuineness of the transaction was on the defendant, but he failed to discharge the same---Findings arrived at by the courts below, in circumstances, were correct and in accordance with law---Being concurrent findings of facts, in absence of any misreading and non-reading of evidence on record, High Court in exercise of its revisional jurisdiction, could not interfere just to substitute its own view---Petition was dismissed.

2011 C L C 1946

[Peshawar]

Before Syed Sajjad Hassan Shah, J

SULTAN----Petitioner

Versus

SHAFIULLAH and others----Respondents

Civil Revision No.116 with C.M. No.64 of 2011, decided on 22nd June, 2011.

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

----O. VII, R. 11(d)---Rejection of plaint on basis of bar of limitation---Scope---Question of limitation was not a pure question of law, but was a mixed question of law and facts, which could not be resolved in absence of evidence---Plaint involving factual controversy requiring evidence to prove same could not be rejected on basis of bar of limitation---Court could decide question of limitation and all other involved questions after framing of issues and recording evidence of both parties in support of their respective stance taken in their pleadings---Principles.

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

----O. VII, R. 11 & O. XXXIX, Rr. 1, 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Temporary injunction, grant of, application for---Rejection of plaint by Trial Court while hearing such application after filing of written statement---Validity---Trial Court should have confined itself to such application and should not have rejected plaint suo motu without notice to plaintiff particularly when defendant had filed written statement---Impugned order would not serve purpose of law, rather same would augment agonies of litigants and gear up pendency of unnecessary litigations---Impugned order was set aside in circumstances.

Rashid Ali for Petitioner.

2011 C L C 1985

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Messrs GAGGAN CATERING SERVICE----Petitioner

Versus

Messrs BALANA RESTAURANT through Authorized Partner and others----Respondents

Civil Revisions Nos.998 and 1053 of 2011, decided on 8th September, 2011.

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

----Ss. 42 & 54---Public Procurement Regulatory Authority Rules, 2004---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Catering contract, award of---Plaintiff's plea that Pakistan International Airlines Corporation had awarded such contract to defendant without floating tenders in electronic and print media whereby plaintiff had been deprived of an opportunity of fair competition through tendering process---Plaintiff's application under O.XXXIX, Rr.1 & 2, C.P.C., to restrain Airlines Corporation from acting upon such contract---Trial Court dismissed such application, while Appellate Court suspended operation of letter of intent---Validity---Questions as to whether plaintiff was informed of bidding process or not and whether Airlines Corporation had violated Public Procurement Regulatory Authority Rules, 2004 or not, would be determined after recording pro and contra evidence of parties----Granting of stay order would amount to grant of full relief as sought in the suit---Total relief could not be granted in garb of interim relief---Airlines Corporation could not make out a prima facie case and satisfy other essential ingredients for issuance of interim injunction---High Court set aside impugned order and restored that of Trial Court with directions to decide suit within specified period.

Tauseef Corporation Private Limited v. Lahore Development Authority and others 2002 SCMR 1269; Oil and Gas Development Corporation v. Lt.Col. Shujauddin Ahmad PLD 1970 Kar. 332 and Shah Jehan v. Fazlur Rehman (2001 CLC 1695 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Interim injunction, relief of---Scope---Total relief could not be granted in garb of such relief.

Qazi Jawed Ehsanullah for Petitioner.

Alam Zeb and Abdul Zakir Tareen for Respondents.

Date of hearing: 8th September, 2011.

2011 C L C 1994

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

MOSAM KHAN and 2 others----Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Finance Department N.-W.F.P. and Secretary Excise and Taxation Department, Peshawar and 4 others----Respondents

Writ Petition No.217 of 2008, decided on 29th March, 2011.

North-West Frontier Province Finance Act (I of 1996)---

----S. 11 [as amended by North-West Frontier Province Finance Act (VI of 2004)]---Pakistan Tobacco Board Ordinance (I of 1968), S.9---Constitution of Pakistan, Arts.4, 148, 151 & 199---Constitutional petition---Levy of tobacco development cess by Government of N.-W.F.P. on harvests of tobacco transported in Dera Ismail Khan Division from Punjab Province---Validity---Two types of tobacco cess were being presently collected i.e. one called Federal Tobacco Cess being collected by Federal Tobacco Board on behalf of Federal Government, and other was provincial levy collected by Provincial Government through Excise and Taxation Department---Provincial Government had legally levied such cess at specified rates on persons, other than tobacco factories, dealing in tobacco business and transporting tobacco from Punjab Province---Collection of such cess by Federal Government and Provincial Government would not amount to double taxation and was not violative of Art. 151 of the Constitution---Federal Tobacco Cess being collected by Pakistan Tobacco Board on behalf of Federal Government was not divisible under Finance Distribution Formula---Impugned cess levied by Provincial Government would not amount to double taxation and was not violative of Arts.4, 148 & 151 of the Constitution---Petitioner by alleging impugned cess to be double taxation had challenged Federal Levy being collected by such Board, which being a necessary party had not been impleaded in constitutional petition, which was a defect---Petitioner had impugned North-West Frontier Province Finance Act, of 2004 without challenging same in constitutional petition---High Court dismissed constitutional petition in circumstances.

Pakistan Tobacco Co. Ltd. v. N.-W.F.P. through Secretary Law, Government of N.-W.F.P., Peshawar and 9 others 2002 CLC 1910; PLJ 2002 SC 625 (sic) and PLD 2005 Kar. 55 rel.

Rustam Khan Kundi for Petitioners.

Sanaullah Khan Shamim Gandapur, D.A.-G. for Respondents.

Date of hearing: 29th March, 2011.

2011 C LC 73

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

MUHAMMAD SALEEM and 5 others---Appellants

Versus

MUHAMMAD EHSANUL HAQUE GHAURI---Respondent

Civil Miscellaneous Appeal No. 5 of .2002, decided on 22nd September, 2010.

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

----O. IX, R.13 & O. V, R.20---Limitation Act (IX of 1908), Art.164---Trial Court decreed the suit for recovery and damages ex parte---Defendants filed application for setting aside the ex parte decree which was dismissed by the Trial Court---Defendants contended that plaintiff committed fraud and misrepresentation by procuring the effecting of service of summons in a less prominent newspaper preventing them from having knowledge of the ex parte decree which they came to know about through notice of the Executing Court which issued the order of attachment of their property---Defendants, thus, sought retrial and decision of the case on merits---Validity---Record revealed that defendants mentioned the same address as in the present case- in litigation pending between the parties before the court in another city---Defendants filed suits against plaintiff in said other city which showed that they were fully aware of the decree and order of the Trial Court against them and knowingly filed application for setting aside the ex parte decree with considerable delay---Under Art.164 of the Limitation Act, 1908, where summons was not served properly, limitation would run from the date from which applicant came to know about the decree---Record evidently established that defendants tried to impede the proceeding pending for execution in said other city---Defendants could not establish misrepresentation as fraud, therefore, case could not be remanded to Trial Court which had correctly assessed the material and arrived at right conclusion---Appeal was dismissed in circumstances.

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

----Art. 164---Limitation---Under Art. 164 of the Limitation Act, 1908, where summons was not served properly, limitation would run from the time when applicant came to know about the decree.?

Mian Badar Munir for Appellants.

Shaukat Rakhshani for Respondent.

Date of hearing: 24th May, 2010.

2011 C L C 200

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

KHALIQ DAD---Petitioner

Versus

Bibi SAHIRA and 10 others---Respondents

Civil Revision Petition No. 51 of 2006, decided on 9th September, 2010.

Specific Relief Act (I of 1877)---

----S. 42--Suit for declaration---Trial Court dismissed the suit---Appellate Court set aside the order of Trial Court and decreed the suit---Defendant contended that the Appellate Court failed to take into account that he was owner in possession since 1941 whereas plaintiffs were not legal heirs of his deceased brother who died issueless---Validity---Oral/hearsay evidence as to identity of the plaintiffs was not sufficient to establish that they were daughters of the deceased brother of defendant---No documentary evidence was available on record in original to establish the identity of sisters of plaintiffs living in India and arrayed as defendants; photocopy of any such document could not serve the purpose---Nothing was available on record to prove that the deceased brother of defendant ever got married---Trial Court rightly assessed the material while Appellate Court erroneously relied on oral evidence without evaluating the same---Property in question was in possession of the defendant till date---Identity of plaintiffs who were represented by attorney remained doubtful while their attorney could not produce the power of attorney---Appellate Court had arrived at a conclusion which was not supported by material on record---Impugned judgment of Appellate Court was set aside while decision of Trial Court was upheld.

Khawaja Tariq Mehmood for Petitioner.

Respondents Nos. 3 to 11 proceeded ex parte.

Date of hearing: 21st May, 2010.

2011 CLC 601

[Quetta]

Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ

CHAKAR ALI KHAN RIND----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary and 3 others----Respondents

Constitutional Petition, No.635 of 2009, decided on 31st December, 2010.

(a) Constitution of Pakistan---

----Arts. 9, 24 & 199---Civil Procedure Code (V of 1908), O.I, R.8---Constitutional petition--Petitioner sought direction to authorities for construction of protective wall to save the residents of the area from floods caused by construction of a dam---Validity---Objection raised by respondents as to representative capacity of petitioner in filing the petition was technical in nature---Petitioner had been representing the people of the area for redressal of the grievance---State was under constitutional obligation to protect the life, liberty and property of the people under Arts.9 & 24 of the Constitution---Inhabitants of the area were faced with genuine threat to their life and property by floods which had led the Government to undertake construction work on the protective wall---Subjects were entitled to compensation and rehabilitation by the State in case of any loss, damage or destruction in consequence of floods etc.---However, loss suffered by petitioner could not be determined by the court in its constitutional jurisdiction---Petitioner was at liberty to file suit for redressal of his grievance in the court of competent jurisdiction---Petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 9 & 24---State was under constitutional obligation to protect the life, liberty and property of people under Arts.9 & 24 of the Constitution.

Petitioner in person.

Abdul Aziz Khan Khilji, Addl. A.-G. for Respondents Nos.1 and 2.

Ms. Iram Mehmood for Respondents Nos.3 and 4.

Date of hearing: 20th October, 2010.

2011 C L C 615

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

NAZAR MUHAMMAD----Petitioner

Versus

NIAZ MUHAMMAD and 2 others----Respondents

Civil Revision No.398 of 2010, decided on 3rd January, 2011.

Civil Procedure Code (V of 1908)---

----S. 48, Part II [Ss. 36 to 74], O. XX, R.14(1) & O.XXI---Limitation Act (IX of 1908), Art.181---Suit for pre-emption---Trial Court decreed the suit---Appellate Court upheld the order of Trial Court directing plaintiffs to pay the sale price as per market value---Plaintiff challenged appellate court's order in revision which was dismissed---Supreme Court allowed plaintiff's petition directing Additional District Judge to specify the amount of suit property and time of payment---After assessing the market value of the property, Additional District Judge ordered plaintiff to pay the purchase money---Defendant assailed the Additional District Judge's order specifying the purchase money before High Court which suspended the impugned order---Executing court, however, entertained plaintiff's application for execution of decree directing Revenue Authorities to effect mutation entries in favour of plaintiffs.. Defendant's appeal against order of the executing court was dismissed by the Appellate Court---Defendant contended that the executing court could not entertain the application for execution while the matter of assessment of sale price was still pending before the High Court and that the application for execution was barred by limitation---Validity---Courts below failed to appreciate the importance of issue of limitation which was significant to the maintainability of the application---Section 48, C.P.C. and Art.181 of the Limitation Act, 1908 had to be read together---Under provisions of S.48, C.P.C. and Art.181 of the Limitation Act, 1908, a decree-holder had to approach the court for execution of decree within three years from the time when right to apply had accrued---Any number of fresh applications for execution of decree could be filed within 6 years whereafter no fresh application was maintainable but for the exceptions provided in S.48, C.P.C.---Trial Court failed to comply with the provisions of O.XX, R.14(1), C.P.C. which provided for dismissal of suit for pre-emption where plaintiff failed to pay the purchase money---Executing court passed order to effect mutation entries in favour of plaintiffs/decree holders while Additional District Judge's order specifying the amount of purchase money was still pending before High Court---Appellate Court committed error by upholding the order of executing court while payment of entire purchase money had yet to be ascertained---Executing court had to adopt the procedure laid down by O.XXI, C.P.C. and Part II, C.P.C. which comprised Ss. 36 to 74---In suit for pre-emption, title to suit property would accrue in favour of plaintiff only after payment of purchase money as assessed by the court---Issue of assessment of purchase money being still pending before High Court, therefore, decree, to the extent of purchase money had not attained finality---Right to apply for execution had not accrued to plaintiffs/decree holders---Courts below committed error by entertaining application for execution---Impugned order of courts below were set aside---Petition was accepted in circumstances.

?

Syed Ayaz Zahoor for Petitioners.

Mujeeb Ahmed Hashmi for Respondents.

Date of hearing: 17th August, 2010.

2011 C L C 1062

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

GANJ BIBI----Appellant

Versus

MUHAMMAD YOUNAS and another----Respondents

Guardian Appeal No.2 of 2009, decided on 1st February, 2011.

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

----Ss. 7, 19(b), 25 & 47---Appointment of guardian of minor---Application by mother of minor son for appointing her as the guardian of minor had been dismissed---Minor aged 7 -years was in custody of the applicant (mother), while respondent was father of the minor---Nothing was on record that any step was taken by father of minor to deprive the mother from custody of the minor---Despite having custody, mother was trying to get herself appointed as guardian of the person of the minor---Validity---Section 19 of Guardians and Wards Act, 1890, provided certain instances whereby the court was restrained to appoint or declare a guardian of property or person of minor---Main consideration, while appointing a person as guardian of a minor, was the welfare of the minor---In the present case, nothing was on record, nor even asserted by the applicant (mother) on basis of which the respondent (father) could be considered unfit to be guardian of person of minor son---Under Islamic Law, mother was entitled only for custody of her minor son till her attained age of 7 years---Situation was quite different in the present case as applicant being mother of minor, was already in custody of the minor, but now she intended to get herself appointed as his guardian---Mother, in view of S.19(b) of Guardians and Wards Act, 1890 had to establish that father was unfit to become guardian of person of minor, but she had completely failed to disclose any reason, nor she had placed on record any material on account of which father had been disqualified to become guardian of his minor son---Applicant had failed to make out any case in her favour---In absence of any irregularity or illegality in the judgment of the Trial Court, same could not be interfered with---Impugned judgment was upheld, in circumstances.

Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 604 ref.

Shams-ur-Rehman for Appellant.

Abdul Wadood for Respondent No.1.

Date of hearing: 15th October, 2010.

2011 C L C 1105

[Quetta]

Before Muhammad Noor Maskanzai, J

OBAIDULLAH----Petitioner

Versus

Haji SHER MUHAMMAD----Respondent

Civil Revision No.195 of 2005, decided on 24th December, 2010.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Both the Trial Court and lower Appellate Court had concurrently dismissed the suit---Trial Court after proper appraisal of material available on the record had drawn justifiable conclusion---Appellate Court upheld judgment and decree passed by the Trial Court considering evidence available on record.--Both the courts below after proper appraisal of evidence, had reached at concurrent findings of fact which neither reflected misappreciation of evidence, nor suffered from any legal infirmity---Such concurrent findings of fact were not liable to be disturbed by High Court in exercise of its revisional jurisdiction, even if upon reappraisal, another view was possible.

Abdul Jalil Khan for Petitioner.

Amanullah Kakar for Respondent.

Date of hearing: 11th October, 2010.

2011 C L C 1150

[Quetta]

Before Muhammad Noor Meskanzai, J

NIAZ GUL---Appellant

Versus

Malik MUNIR AHMED----Respondent

First Appeal from Order No.12 of 2009, decided on 30th July, 2010.

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

----Ss. 13 & 15---Ejectment of tenant on ground of default in payment of rent---Tenant though had been depositing rent with Civil Nazir of the court, but had not been depositing rent according to actual rate---Actual rate of rent was Rs.500 p.m., but tenant had been depositing rent at Rs.150 p.m.---Receipt document produced by the tenant had been tampered with and scratched---Tenant had intentionally depositing less rent than the original rent liable to be paid---Rent Controller had rightly accepted ejectment application filed by landlord on ground of default in payment of rent---Counsel for the tenant had failed to point out any misreading or non-reading of evidence on record, nor any legal infirmity, impropriety or perversity could be pointed out---Rent Controller had properly appreciated evidence on record---Conclusions drawn by Rent Controller being legal and justified, could not be interfered with in appeal---Same were upheld, in circumstances.

Muhammad Yaqoob Khan for Appellant.

Ayaz Sawati and Aamir Ehsan for Respondent.

Date of hearing: 28th May, 2010.

2011 C L C 1211

[Quetta]

Before Jamal Khan Mandokhail and Mrs. Syeda Tahira Safdar, JJ

ATTIQ AHMED KHAN----Petitioner

Versus

NOOR-UL-SABA and another----Respondents

Review Application No.4 of 2010 in Constitutional Petition No.595 of 2007, decided on 11th April, 2011.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on ground of 'Khula'---Re-union after dissolution of marriage---Review of the judgment by High Court, application for---Suit filed by the plaintiff for dissolution of marriage on ground of Khula was decreed by the Family Court---Defendant challenged judgment and decree of the Family Court in constitutional petition, which petition having been dismissed by the High Court, the defendant had filed application for review of the judgment and decree on the ground that parties had decided for re-union---Plaintiff on whose request marriage was dissolved on the ground of Khula, conceded the request of defendant and stated that parties had settled their dispute and decided to re-union and were no more willing to implement the decree of 'Khula'---Pronouncement of 'Khula' by the court was a single divorce, as the defendant husband never accepted it voluntarily---Such kind of dissolution of marriage was known as "Talaq-ul-Ba'ayen"---Before re-union in such-like cases "Halala" was neither condition precedent nor the decree of 'Khula' was a hurdle in the way of re-union---No provision of law precluded the spouses from re-union, however, only condition was to perform a fresh 'Nikah'---Since, re-union of the parties after decree of 'Khula' was a result of a fresh contract, the judgment and decree had no restraining effect upon re-marrying---Review of the judgments and decrees was not needed in circumstances---When the judgments and decrees attained finality, same would automatically become operative---Marriage having been dissolved, the judgments and decrees had become past and closed transactions---Once the judgment and decree had been implemented, those would not remain in field---No question of review thus would arise, in circumstances.

Fazal-e-Subhan v. Mst. Sabereen and others PLD 2003 Pesh. 1691 and Mst. Naila Parveen and otherrs v. The State and 2 others PLD 2011 Lah. 37 ref.

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

----O. XLVII, R.1---Constitution of Pakistan, Art.199---Review of judgment passed in constitutional jurisdiction---Constitutional jurisdiction of High Court being an original jurisdiction, broad rules of the Civil Procedure Code were applicable---Right of review was a substantive right, provided by the Code, enabling correction of an error or a mistake in a judgment, to prevent injustice being done by the court---Such was a step towards correction of a decision, but in no case it was a rehearing on merits---Judgment passed in constitutional jurisdiction could be reviewed subject to the grounds, contemplated under O.XLVII, R.1, C.P.C. ---Review of an order or decree could be sought on discovery of new and important matter or evidence, on account of some mistake or error, apparent on the face of record or for any other sufficient reasons---Compromise arrived at between the parties, after a decision, would not come within any of grounds for review---Judgments and decrees could not be reviewed on basis of a compromise between the parties.

Talal Rind for Petitioner.

Nemo for Respondents.

2011 CLC 1379

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

AKHTAR MUHAMMAD and another----Petitioners

Versus

Malik ABDUL HAMEED and another----Respondents

Civil Revision No.529 of 2009, decided on 11th April, 2011.

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

----S.15---Civil Procedure Code (V of 1908), S. 91, O.I, R. 8 & O. VII, R.11(d)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Right of way over defendant's land being enjoyed by plaintiff for last 27 years alleged to be obstructed by defendant by raising cons(ruction thereon---Existence of alleged right of way over suit land denied by defendant---Defendant's application under O. VII, R.11, C.P.C., for rejection of plaint on ground that matter in issue fell within definition of public nuisance, thus, suit was not maintainable for having been filed without prior written consent of Advocate-General under S.91, C.P.C., and without fulfilling requirements of O.I, R.8 thereof---Order of rejection of plaint passed by Trial Court upheld by Appellate Court---Validity---Plaintiff had claimed right of way as an easement to his private extent over suit land owned by defendant, but had not claimed any right of public at large in respect of a recognized lane or public road or highway---Act offending sentiments of and causing annoyance to a particular person would not constitute an act of public nuisance---Private person, if suffered special damage, could maintain suit for a public nuisance without written consent of Advocate-General---Present suit was not hit by provision of S. 91, C.P.C.---Existence of right of easement in favour of plaintiff in respect of suit land and fact of physical existence of disputed road/thoroughfare was yet to be established by plaintiff during trial---High Court accepted revision petition, set aside impugned orders and remanded case to Trial Court for its decision in accordance with law.

2003 PLD Kar. 495; 2003 CLC 632; PLD 2004 SC 633 and 2004 MLD 1107 ref.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

(b) Words and phrases---

---"Nuisance"--Meaning.

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

----S. 91---Penal Code (XLV of 1860), S.268---Term "public nuisance "---Connotation---Act of encroachment made on public roads or path ways would include within act of public nuisance---Principles.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

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

----S. 15---Penal Code (XLV of 1860), S. 268---Right of way claimed under provision of Easements Act, 1882, denial or obstruction of---Validity---Such denial or obstruction would amount to nuisance within meaning of S.258, P.P.C.-Such matter could be dealt with under criminal law as well as under civil law.

Abdul Sattar Kakar and Muhammad Asif Baloch for Petitioners.

Ajmal Khan Kakar for Respondents.

Date of hearing: 28th October, 2010.

2011 C L C 1606

[Quetta]

Before Muhammad Hashim Khan Kakar, J

MEHMOOD KHAN----Appellant

Versus

MUHAMMAD IBRAHIM and another----Respondents

F.A.O. No.125 of 2009, decided on 17th May, 2011.

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

----S. 13---Ejectment of tenant---Pleadings---Bona fide personal need---Non-mention of intended business---Effect---Eviction application cannot be dismissed on the ground that specific business, intended to be started and carried on in premises in question, is not specifically given in memorandum of eviction application---Landlord is not required to mention in his application the nature / sort of business, nor is required to give source of capital.

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

----S. 13---Ejectment of tenant---Bona fide personal need---Old age of landlord---Allegation of selling the property by landlord---Ejectment application was filed by landlord on the ground of personal need and the same was allowed by Rent Controller passing eviction order against tenant---Plea raised by tenant was that landlord was an old man who was not capable to start or run a business rather he had intention to sell the premises---Validity---Nothing was available on record to show that landlord had become too old and that it would be difficult for him to do any business---Landlord had four sons and his bona fides could not be doubted on the grounds that he had grown old and he would be assisted by his son in conjunction of whom he would start business in disputed shop---Even if landlord had expressed his desire to sell out the disputed shop that should not be permitted to come in his way in getting his tenant ejected, if tenant had succeeded otherwise, in establishing his case on the ground of personal requirement---It was proved that landlord's demand for vacation of disputed premises had been made in good faith---High Court declined to interfere in eviction order passed by Rent Controller against tenant---Appeal was dismissed in circumstances.

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

----S. 13---Ejectment of tenant---Bona fide personal need---More than one properties---Choice of landlord---Scope---Landlord is entitled to choose or pick anyone of his shops for his personal use and occupation---Suitability or/ sufficiency of accommodation for landlord cannot be determined by tenant or Rent Controller---Landlord can desire to retain specific property for his use and occupation without any legal difficulty in his way and it is not the tenant's business to tell the landlord to keep particular property for his use and let out the other one.

W.N. Kohli for Appellant.

Saleem Lashari and Munir Langove for Respondents.

Date of hearing: 13th May, 2011.

2011 C L C 1613

[Quetta]

Before Abdul Qadir Mengal, J

Haji HUSSAIN KHAN and another----Petitioners

Versus

Haji ABDULLAH JAN and another----Respondents

Civil Revision No.74 of 2011, decided on 27th May, 2011.

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

----S. 13---Ejection of tenant---Relationship of landlord and tenant---Determination---Powers of Rent Controller---Scope---Rent Controller is not bound in every case to dismiss ejectment petition of landlord for the reason that title of landlord had been challenged or any party has claimed that there is no relationship of landlord and tenant---Rent Controller was duty bound to properly evaluate material which has come in evidence or has been brought on record.

PLD 1973 Quetta 1; 2004 SCMR 1738 and 2005 YLR 1383 distinguished.

2005 SCMR 843 ref.

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

---S. 13---Civil Procedure Code (V of 1908), S.115---Ejection of tenant---Relationship of landlord and tenant---Determination---Subletting of premises---Tenant without permission of landlord sublet the premises and put petitioners in possession of shop/tin question--Ejectment application filed by landlord was allowed by Rent Controller and eviction order was passed against petitioners---Plea raised by petitioners was that Rent Controller had no jurisdiction to decide the question of title of property---Validity---Findings of Rent Controller were related to relationship of landlord and tenant, in which, it had fully been established that tenant had violated. provisions of section 13(2)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959, and without permission or written consent had transferred or sublet shop in question to petitioners and petitioners were not allowed to make redundant or emasculate the law of West Pakistan Urban Rent Restriction Ordinance, 1959, to raise any fictitious or concocted claim for non-existence of relationship with landlord as a tenant---Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, related to hierarchy of resolving civil nature of disputes and any ancillary or offshoot of any tenancy agreement in respect of title or relationship could be seen and resolved in respect of that tenancy agreement---However, in any distant, intricate and complicated question of title or any question of illegally grabbing property, not related to tenancy agreement, Rent Controller had no jurisdiction to independently try the question and give any finding related to the same because it was only the civil court which could entertain such disputes, after proper proof and evidence to decide the matter---Rent Controller did not exercise a jurisdiction which had not been vested in it by law or failed to exercise his jurisdiction so vested in him or he did not exercise his jurisdiction, illegally or with material irregularity---High Court declined to interfere in eviction order passed by Rent Controller against petitioners---Revision petition was dismissed in circumstances.

Abdul Ghani Mashwani for Petitioners.

Samand Khan Mandokhail for Respondents.

Date of hearing: 20th May, 2011.

2011 C L C 1734

[Quetta]

Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ

Malik GHULAM AKBAR KHAN through L.Rs. and others----Appellants

Versus

Al-Haaj ABDUL RAZIQ KHAN and another----Respondents

R.F.As. Nos.5 and 6 of 2001, decided on 1st July, 2011.

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

----O. VII, R.1---Plaint---Non-mentioning of specific cause of action and relief claimed in the plaint---Such relief could not be granted.

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

----O. VI, R.1---Pleadings---Evidence produced beyond pleadings was inadmissible.

(c) Islamic law---

----Gift---Preferential gift---Exclusion of other co-heirs---Scope---Claim of preferential gift in exclusion of other co - heirs is something which should have been proved by donees and not by other co-heirs---Preferential gift, which culminates in deprivation of rights of other legal heirs, requires to be proved in stricto sensu.

(d) Islamic law---

----Gift---Proof---Attorney, statement of---Non-appearance of donees---Defendants claimed to be the owners in possession of suit property on the basis of gift executed in their favour by their predecessor-in-interest---Validity---Statement of attorney of defendants lacked fulfilment regarding prerequisites of gift, who himself was neither a witness of gift i.e. verbal or written nor for that matter in his statement he stated that offer by donor was made and the same was accepted by donees pursuant to which properties were gifted nor possession was delivered---Lack of such version in statement of attorney enfeebled the instance of donees who did not appear before Court to verify and confirm their claim regarding gift---High Court discarded and disbelieved the whole ocular evidence produced by donees as they failed to prove execution of gift in their favour and directed to distribute the properties among all heirs of deceased owner in accordance with their Sharai shares.

Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Muhammad Faisal v. State Life Insurance Corporation 2008 SCMR 456; Nusrat Zohra v. Azhra Bibi PLD 2006 SC 15; 2007 SCMR 635 and PLD 1990 SC 1 ref.

2010 SCMR 342 rel.

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

----S. 42---Gift---Revenue record---Entries---Proof of ownership---Scope---Revenue entries effected as per S.42 of West Pakistan Land Revenue Act, 1967, are a report i.e. factum of acquisition of any right in an estate to Patwari and is a mere ministerial act which do not confer or extinguish any right in property---No witness or respectable is required either to accompany the person to report acquisition of such an interest to Patwari nor presence of two witnesses are necessary while entering of a mutation under section 42 of West Pakistan Land Revenue Act, 1967---Even if donor of gift himself does not go to Patwari for such purpose, the same is of no consequence.

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

----S. 42(7)---Attestation of mutation---Procedure---Presence of the person whose right has been acquired and identification of such person by at least two persons i.e. Lumbardar or Member of Union Council etc. is inevitable.

2005 SCMR 911 rel.

(g) Islamic law---

----Gift---Proof---Revenue record---Scope---Except exhibition of revenue record none of the witnesses of alleged gift were produced by donees---Validity---To prove factum of gift donees did not state as to the persons before whom attestation as contemplated by S.42(7) of West Pakistan Land Revenue Act, 1967, had died or were not available---Gift was doubtful in circumstances.

2000 SCMR 346 rel.

(h) Islamic law---

----Gift---Preferential gift---Proof---Plaintiffs were illiterate and Pardanashin ladies who were co-sharer in gifted properties---In the garb of revenue entries, unless defendants proved that not only the entries in revenue record but ingredients of gift were satisfied by procuring independent, confidence inspiring and cogent evidence, plaintiffs could not be deprived of their ancestral rights in circumstances.

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

----S. 42---Revenue entries---Determination of title---Scope---Revenue entries itself do not confer any right or title to a person in whose favour the same have been rendered.

2004 SCMR 1502 rel.

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

----S. 42--- Declaration of title--- Limitation--- Co-sharers--- When plaintiffs and defendants are co-owners in the legacy of their predecessor-in-interest, no limitation would run in such cases.

Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 and Muhammad Saddique v. Raj Begum 2008 CLC 61 distinguished.

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

----S. 42---Declaration of title---Gift, non-assailing of---Effect---Plaintiffs sought recovery of their legal shares from the properties left by their predecessor-in-interest---Defendants contended that suit properties were gifted in their favour and as the gifts were not assailed therefore, plaintiffs did not have any cause of action---Validity---Plaintiffs could not be non-suited merely because gifts had not been challenged---To ascertain the plaint, not only form but frame and substance of the plaint was to be taken into consideration and adhered to.

(l) Administration of justice---

----Relief, moulding of---Scope---Court is competent to mould any relief if party is found entitled in accordance with his/their rights.

2006 SCMR 688 rel.

Malik Azmatullah Khan Kasi for Appellants.

M. Aslam Chishti and Behlal Kasi for Respondents.

Date of hearing: 4th April, 2011.

2011 C L C 1844

[Quetta]

Before Jamal Khan Mandokhail, J

MAHESH KUMAR CHAWALA----Petitioner

versus

Haji ABDUL KARIM----Respondent

F.A.O. No.87 of 2009, decided on 19th July, 2011.

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

---Ss. 13(2)(ii)(a), (3)(a) & 15---Ejectment of tenant on grounds of subletting by tenant and personal bona fide need of landlord for his son---Landlord had not mentioned as to which of his sons was jobless, for whom the shop was required, because the name of the son had not been mentioned in the ejectment application; nor the witnesses and the landlord in their statements before the Rent Controller disclosed the same---No proper person had been specified for the purpose of getting the possession of the shop, if an eviction order was passed, it could not be implemented for the reason that who would get the possession---Son for whom the shop in question was required did not appear before the Rent Controller---Since the application was for the personal bona fide use and occupation of the son of landlord, his appearance before the court and recording his statement was necessary being the proper person to explain his requirement---Without recording the statement of the son for whom the shop was required, it was not possible for the landlord to prove the personal bona fide need of his son and also the requirement could not be judged---Landlord did not make the alleged sublessee as party to the ejectment application; nor had stated in his application as to when the shop in question had been sublet---By not impleading the sublessee as a party, the ground of subletting, could not be agitated, nor it could be proved---Impugned order passed by Rent Controller was set aside and ejectment application filed by the landlord was dismissed, in circumstances.

Syed Mumtaz Hussain Baqri for Appellant.

Habib Tahir for Respondent.

Date of hearing: 20th May, 2011.

2011 C L C 1953

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

Messrs AL-MAKKAH CNG STATION through Proprietor----Petitioner

Versus

GOVERNMENT OF PAKISTAN MINISTRY OF PETROLEUM AND NATURAL

RESOURCES through Secretary and another----Respondents

Constitutional Petition No.(S)51 of 2011, decided on 18th August, 2011.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 6---Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992---Constitution of Pakistan, Arts.4, 18, 158 & 199---Constitutional petition---Establishment of CNG Filling Station in Sibi (Balochistan)---Grant of Provisional licence for such station and obtaining of NOC from Municipal Administration, Chief Inspector of Explosives and the Gas Company---Completion of such station by spending huge amount---Pre-commissioning inspection of such station by consultant of OGRA and payment of dues of SSGC by petitioner---Refusal of OGRA to grant CNG Marketing Licence to petitioner in view of subsequent ban imposed by Prime Minister on new gas connections---Validity---Impugned ban would apply only to new industrial connections---Petitioner did not fall within ambit of impugned ban for having been granted permission by SSGC much prior to its imposition---Petitioner in pursuance of provisional licence after having obtained NOCs from various authorities and deposited dues of Gas Company, had a vested right for grant of marketing licence---Oil and Gas Regulatory Authority was legally bound to issue licence for putting petitioner's station into operation---Petitioner's fundamental right to conduct lawful business of such station had been infringed---So long a trade or business was lawful, a citizen eligible to conduct same could not be deprived from undertaking the same---High Court, in exercise of its powers of judicial review, could examine prohibition, if any, imposed on such right---Every citizen had a fundamental right to be dealt with in accordance with law---Refusal of Oil and Gas Regulatory Authority to issue marketing licence to petitioner was illegal, thus, he had not been dealt with in accordance with law---Policy decision of Federal Cabinet was that supply of gas would remain uninterrupted in gas producing areas including Balochistan---Article 158 of the Constitution had provided that a Province, in which a well-head of natural gas was situated, shall have the precedence over other part of Pakistan in meeting the requirements from the well-head, subject to the commitments and obligations as on the commencing day---Oil and Gas Regulatory had neither pleaded that gas produced a Balochistan was more than its requirements nor placed on record any agreement regarding commitment---When statutory functionary acted mala fide or in a partial, unjust and oppressive manner, then High Court could issue appropriate directions---High Court accepted constitutional petition with special cost of Rs.20,000 and directed the Authority to issue marketing licence to petitioner immediately.

Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When statutory functionary acted mala fide or in a partial, unjust and oppressive manner, then High Court had the power to appropriate directions.

Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 rel.

H. Shakeel Ahmed for Petitioner.

Malik Sikandar Khan, Dy. A.-G. for Respondent No.1.

Saleem Ahmed Lashari for Respondent No.2.

Date of hearing: 11th August, 2011.