CLC 2012 Judgments

2012CLC220

[Board of Revenue Punjab]

Before Jehanzeb Khan, Member (Judicial-11) MUNIR AHMED----Petitioner

Versus

MUHAMMAD MUNIR----Respondent

R.O.R. No.111 of 2007, decided on 24th September, 2011.

West Pakistan Land Revenue Rules, 1968---

---R. 17---West Pakistan Land Revenue Act (XVII of 1967), 5.164---Appointment of Lambardar---Criteria---Post fell vacant on demise of Lambardar---District Officer (R) appointed the petitioner---Aggrieved by said order, respondent filed appeal before Executive District Officer (R) who accepted the same, set aside order of District Officer (R) and appointed the respondent as Lambardar of the village---Merits and demerits of the parties were examined and discussed in the order of Executive District Officer (R) and factual and legal position of the case had also been considered---Respondent; in view of criteria far appointment as contained in R.17 of the West Pakistan Land Revenue Rules, 1968, had an edge over the petitioner so far as factors to be determined in the appointment of Lambardar---Hereditary status of both the petitioner and respondent seemed to be equal, however respondent was a matriculate having more land than the petitioner, which was sufficient to meet the requirements of "Zare-Bharat "---District Officer (R) appointed the petitioner as permanent Lambardar against the law/criteria laid down on the subject, without comparison of the contesting candidates---Order of District Officer (R) was rightly set aside by Executive District Officer (R) as appellate forum after hearing the parties and considering the merits and demerits of the case---Petitioner had produced no material evidence in rebuttal to the findings of Executive District Officer (R) given in the impugned order---Petitioner had failed to bring out any legal or factual infirmity in the appointment of respondent as Lambardar of village---Impugned order which was based on facts and good reasons, could not be interfered with in revision by Board of Revenue and same was upheld.

Qadeer Ahmad Rana for Petitioner

Liaquat Ali Butt for Respondent

2012 C L C 1365

[Punjab Board of Revenue]

Before Dr. Allah Bakhsh Malik, Member (Judicial-VIII)

Ch. WAJID HUSSAIN----Petitioner

Versus

Ch. MAQSOOD AHMED and another----Respondents

R.O.Rs. Nos.226 and 227 of 2012, decided on 22nd May, 2012.

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

----Ss. 161, 162 & 167---Limitation Act (IX of 1908), S.29(2)---Appeal---Delay, condonation of---Scope---West Pakistan Land Revenue Act, 1967 provided special period of limitation, thus, such delay could not be condoned by virtue of S.29 of Limitation Act, 1908 and S.167 of West Pakistan Land Revenue Act, 1967.

PLD 1981 Revenue 34 ref.

1989 CLC 124 rel.

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

----Ss. 42 & 172---Gift mutation, attestation of---Irregularity or infirmity---Jurisdiction of civil court---Scope---Civil Court would be appropriate forum to challenge such mutation.

1986 MLD 608; 2004 SCMR 604 and PLD 1985 Revenue 194 rel.

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

----Ss. 161, 162 & 167---Limitation Act (IX of 1908), S.5---Civil Procedure Code (V of 1908), S.115---Appeal---Delay, condonation of---Duty of Presiding Officers of subordinate Revenue Courts stated.

The subordinate Revenue Courts' Presiding Officers must keep in mind the provisions of law especially about the law of limitation until and unless there are extenuating circumstances like fraud, forgery or mis­representation determined by the law and guided by the judgments of superior courts. The subordinate courts must keep in mind the provisions of section 5 of the Limitation Act, 1908 and section 115 of the Civil Procedure Code, 1908. Delay of each day has to be satisfactorily explained. As Presiding Officers of the Revenue Courts, they shall be cognizant of the impact of their decisions on the valuable rights of the people. Before adjudication of matters of rights, utmost care and diligence shall be exercised by the Revenue Court.

PLJ 1975 Revenue 188(sic) and 2003 YLR 1295 rel.

Ch. Rab Nawaz for Petitioner with petitioner in person.

Sameer Ijaz for Respondents (in both Revision Petitions).

Shafeeq-ur-Rehman, Patwari Halqa along with Record.

2012 C L C 1593

[Board of Revenue Punjab]

Before Dr. Allah Bakhsh Malik, Member Judicial-VIII

Mst. SAIRA YOUSAF and another----Petitioners

Versus

SHER MUHAMMAD----Respondent

ROR No.1583 of 2011, decided on 4th July, 2012.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Succession---Death of son of the propositus before the opening of succession---Inheritance share of the widow and grand-daughter of the propositus in such circumstances---Principles---Inheritance mutation was incorporated into the revenue record and propositus' widow (appellant) was given 1/8 share of the propositus and grand-daughter (appellant) was given remaining 7/8 share---Validity---Grand-daughter of the propositus was entitled to the share equivalent to the one which her deceased-father would have received, if alive, at the time of opening of succession, therefore, she was entitled to 1/2 share of the propositus' property, which her pre-deceased father would have inherited, if he had been alive---Widow of the propositus was entitled to 1/8 share and the rest would go to the relatives according to the law of inheritance---Revision petition was dismissed, accordingly.

PLD 1983 Lah. 546 and 1999 CLC 1216 ref.

Qutab-ud-Din v. Mst. Zubaida Khatoon 2009 CLC 1273; Allah Dewaya v. Muhammad Hussain 2007 CLC 1787; Muhammad Rauf v. Siddique Ali 2007 MLD 1978; Rashida Bibi v. Maqbool Begum 2006 MLD 1138; Muhammad Khan v. Muhammad Ishaque 2005 CLC 1240; Fazeelat Jan v. Sikandar PLD 2003 SC 475; Bashir Ahmed and others v. Atta Muhammad Khan and others 2005 SCMR 1271; Mst. Kaneezan Bibi v. Muhammad Ibrahim 2005 SCMR 1534; Rehman Ghani v. Shehzad Khan 2010 CLC 610; Haji Muhammad Hanif v. Muhammad Ibrahim 2005 MLD 1; Ghulam Haider v. Mst. Nizam Khatoon 2002 YLR 3245; Allah Rakha and others v. Federation of Pakistan PLD 2000 Federal Shariat Court 1; Zaheer ud Din v. the State 1993 SCMR 1718; M.A. Hameed Faizi v. The State 2005 SCMR 1537; Rehman Ghani v. Shahzad Khan 2010 CLC 610 and Mian Imran Masood v. Haji Nasir Mehmood 2010 CLC 613 rel.

Ch. Imran Hassan for Petitioners.

Ch. Tauseef Ahmed for Respondent.

2012 C L C 1803

[Board of Revenue Punjab]

Before Dr. Allah Bakhsh Malik (Member (Judicial-VIII)

SHER AFGHAN----Petitioner

versus

MUHAMMAD RAFIQ and another----Respondents

R.O.R No.2141 of 2011, decided on 6th July, 2012.

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

----Ss. 136 & 164---Sale of share out of shamilat land---Scope---Sale of share out of shamilat land was uncalled, unwarranted and unjustified as shamilat land of village was meant for the future requirements of the community of villagers---Shamilat land was meant for the use of common welfare and amelioration i.e., Schools, colleges, graveyard, funeral rites, grazing and community centres---Land in shamilat deh, was not only the ownership of the villagers living in that village, but also the ownership of the coming generations following in succession---Misuse, sale and illegal occupancy of such land would deprive the future generations of their due inheritance and social rights---Section 136 of West Pakistan Land Revenue Act, 1967 had clearly imposed restriction and limitations on the partition of shamilat land---In the present case, while attesting the mutation of shamilat deh, all co-sharers had not been consulted, which was mandatory---Revenue Officer was obliged to summon all interested parties and stakeholders for consultation before attestation of such mutation---If the sale of shamilat deh was not checked, there was every probability that soon the village would be deprived and to protect the interest of future generation, mutation was ordered to be cancelled---Conscientious understanding of the principles of sustainability demanded that the present generation should at least, maintain or preserve the social belonging and community assets, they had inherited from the previous generations.

1985 CLC 796 and 2003 SCMR 1857 ref.

Khalid Naveed Bhatti for Petitioner.

Respondents proceeded ex parte.

2012 C L C 1685

[Election Tribunal (AJ&K)]

Before Munir Ahmed Chaudhary, J

Sardar MUHAMMAD HUSSAIN KHAN----Petitioner

Versus

Dr. MUHAMMAD NAJEEB NAQI KHAN and 12 others----Respondents

Election Petition No.12 of 2011, decided on 11th May, 2012.

Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---

----Ss. 51, 59 & 60---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Verification of petition etc.---Scope---Returned candidate against whom election petition was filed, submitted application for dismissal of Election petition on ground that verification of Election petition was not in accordance with the provisions of S.51(3) of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---Under S.51(3) of the Ordinance verification of election petition, schedules or annexures attached thereto had to be verified in the manner as laid down by O.VI, R.15, C.P.C.---Election Tribunal, had got all the powers of the civil court trying the suit under the Code of Civil Procedure under S.60 of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---Civil Procedure Code, 1908 and the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 were simultaneously applied during trial of election petition---Verification rendered a responsibility on the party making different averments in the petition---In the present case, affidavit duly attested by the Oath Commissioner had been appended with the petition, through which the petitioner had sworn that the contents mentioned in the petition were correct to the best of knowledge and belief of the petitioner---Petitioner through the verification had taken upon him the responsibility of the truth of the pleadings and version taken by the petitioner before the Court/Tribunal---No penalty was provided for non-compliance of verification by C.P.C.---Penal provisions mentioned in Ss.59 & 60 of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 would not be strictly applicable---Defect to that extent could be treated as one of a minor character and it would be too technical and unreasonable to dismiss the election petition---No material difference existed between a verification on oath and a verification through an affidavit separately appended with the petition---Both would be read and treated in juxtaposition---Mandatory provisions of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 having duly been complied with, no reason was available for the Tribunal to dismiss the Election petition on the objection raised by the returned candidate.

1987 MLD 1372, 1995 CLC 150-394, 1997 CLC 1167, 2003 YLR 2784; PLD 2005 SC 600; Ch. Arshad Hussain v. Rukhsar Ahmed and others Civil Appeal No.90 of 2006 dated 19-11-2009 ref.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 and 2007 MLD 153 rel.

Asghar Ali Malik for Petitioner along with Sardar Muhammad Hussain Khan, Advocate/Petitioner in person.

Kh. Muhammad Naseem for Respondent No.1.

2012 C L C 469

[Election Tribunal Balochistan]

Before Justice Mrs. Syeda Tahira Safdar, Election Tribunal

Haji ATTAULLAH BALOCH----Petitioner

Versus

ASADULLAH BALOCH----Respondent

Election Petition No.2 of 2008, decided on 14th January, 2012.

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

----Ss. 9, 24, 42, 52, 78 & 83---Election petition---Challenging election of returned candidate on allegations of committing illegal and corrupt practice and using of undue influence---Main allegation of the petitioner was that Presiding Officer being real uncle of respondent/returned candidate his appointment was made due to the influence exercised by the respondent; that Presiding Officer had used illegal means to get the respondent successful and for that purpose the Polling Agent of the petitioner was turned out and votes were cast without observing legal formalities and that statement of count was also not prepared in presence of the Polling Agent of the petitioner---Burden to prove all such allegations was on the petitioner but most of the evidence produced by petitioner was circumstantial in nature---No direct evidence was available to the effect that Presiding Officer himself cast the votes and committed the acts favourable to the respondent and disallowed the petitioner and his agents to participate in the legal process of the election, as alleged by the petitioner---Blood relationship though existed between the respondent and the Presiding Officer, but mere existence of such relationship, would not by itself invalidate the election process and the result thereof; it was to be established that the Presiding Officer was appointed without approval of the Election Commissioner by using undue influence, with intention to obtain favourable result by the respondent---Existence of such blood relationship was not a disqualification, but it could be a circumstance for establishing the act of illegal or corrupt practice, for which some more evidence was required---Petitioner had also alleged that result of the questioned Polling Station was withheld with mala fides, while on initial result the petitioner was found successful and declared as such---No evidence was available to the effect that the result was withheld and thereafter changed---None of the witnesses had spoken about the same---Section 24 of Representation of the People Act, 1976 specifically provided that absence of the candidate or his authorized Agent would not invalidate the acts done in the election process---Petitioner was not able to establish the case of illegal or corrupt practice---Evidence produced by the petitioner was not of such level to fulfil the requirement of law---Petitioner had failed to establish using of undue influence by the respondent for appointment of Presiding Officer, thereby inducing him to act on his behalf for obtaining a favourable result---Petitioner having failed to make out a case in his favour to entitle him for grant of relief as prayed for, his election petition was dismissed, in circumstances.

Mian Shah Jehan v. Haji Lal Karim 1993 CLC 929; Rehmatullah Khan v. Dilawar Khan 1987 MLD 1395; Dr. Haji Misal Khan v. Maulana Gohar Rehman 1987 MLD 1321; Riaz Ameer alias Abdul Haq v. Aamar Sultan Cheema 1991 CLC 870, Abdul Hafeez Pirzada v. Agha Ghulam Ali Buledi 1991 CLC 2093 and Nawab Ali Khan v. Syed Inayat Ali Shah 1987 CLC 535 ref.

Abdullah Baloch for Petitioner.

Kamran Murtaza for Respondent.

Date of hearing: 5th October, 2011.

2012 C L C 449

[Election Tribunal Lahore]

Before Justice Sh. Azmat Saeed, Election Tribunal

NAZAR MUHAMMAD FATIANA----Petitioner

Versus

WALAYAT SHAH and 6 others----Respondents

Election Petition No.136 of 2008, heard on 22nd June, 2011.

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

----Ss. 52, 68, 99(1)(cc) & 14(5)---Election petition---Provincial Assembly Election---Petitioner, who was one of the candidates called in question the said election, inter alia, on the ground that respondent (returned candidate) did not possess the requisite educational qualification to contest the election; that in view of letter from Punjab University dated 28-10-2002, he was disqualified from appearing in any examination before the annual examination of 2005; that in support of his educational qualification, while submitting his nomination papers, he relied upon the degree of Bechelor of Business Administration (BBA) allegedly issued by Al-Khair University, Azad Jammu and Kashmir with respect to session 2001-2003 and that not only he was disentitled to appear in the said examination in view of the letter of the Punjab University dated 28-10-2002 but also the BBA's degree from Al-Khair University of Azad Jammu and Kashmir was invalid, and not recognized as such in Pakistan by the Higher Education Commission---Petitioner prayed that election of returned candidate to the Provincial Assembly, be declared illegal and the petitioner be declared to be the successful returned candidate---Contention of the returned candidate was that an objection petition filed by another person about his educational qualification was decided in his favour and appeal thereagainst was also dismissed, thus, matter pertaining to his educational qualification had been finally settled by the said judgment and present election petition was not maintainable---Validity---Petitioner was never arrayed or heard before the said judgment was passed, in circumstances, by virtue of the principle of res judicata or otherwise, the petitioner could invoke the jurisdiction of Election Tribunal through the election petition---Disqualification imposed by the Punjab University and would be applicable to the examinations to be conducted by the said University and would not extend to any other University or be binding thereupon---Returned candidate was not debarred in law from sitting for an examination from any other University during the period of the disqualification---Validity of BBA degree from Al-Khair University AJK relied upon by the returned candidate must necessarily be decided on its own merit without reference to disqualification imposed by the Punjab University---No doubt the provision pertaining to educational qualification to be a Member of the Provincial Assembly as provided in section 99(1)(cc) Representation of the People Act, 1976 had been deleted by the Election Laws (Amendment Act), 2009 change of law having occurred during pendency of the proceedings, any alteration in substantive law during the pendency of the proceedings would not affect the rights of the parties and such proceedings must be decided in accordance with law applicable when the same commenced, unless the new or the amending statute disclosed a clear intention to the contrary---Election Laws (Amendment Act), 2009 was promulgated on 23rd of October, 2009, and section 1(2) thereof provided that the said Act would come into force with effect from 21st of April, 2008---Election in question was held in February, 2008---Legislature in its wisdom deliberately chose not to protect the general elections of 2008 nor sought to apply the Amending Act to the said election; in fact there was a clear intention to the contrary---Election must be declared void if the returned candidate was disqualified from being elected as a Member on the nomination day---In the present case, returned candidate did not possess the requisite educational qualification on the nomination day---Subsequent amendment in the law was irrelevant---Consequently, the election of the returned candidate as Member of the Provincial Assembly was declared void, and Election Tribunal directed that fresh elections be held from the said constituency in accordance with law.

Mian M. Azam Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449 and Nasir Mehmood and others v. Federation of Pakistan PLD 2010 SC 1389 ref.

Hafiz Khalil Ahmad for Petitioner.

Shahid Karim and Riaz Hussain Khan for Respondents.

Date of hearing: 22nd June, 2011.

2012 C L C 1806

[Election Tribunal, Punjab]

Before Nasir Saeed Sheikh, J

Mian SAIF-UR-RAHMAN----Petitioner

versus

Malik IQBAL AHMAD LANGRIAL and 4 others----Respondents

Election Petitions Nos.142 and 139 of 2008, heard on 8th August, 2012.

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

----Ss. 52, 68, 69 & 70---Election petition---Declaration of election of returned candidate as void---Eligibility of returned candidate had been assailed by the petitioners/unreturned candidates in their election petition, alleging that returned candidate claimed to be holder of B.A. degree on the basis of sanads of two religious Madrassas, were not recognized by Higher Education Commission---Validity---Returned candidate had submitted his Nomination Papers to contest the election of National Assembly by producing documents claimed to be holder of B.A. Educational Certificate, but the documents produced before Returning Officer were forged and fabricated---Said candidate was declared to be an imposter and cheater, by Election Tribunal---Returned candidate was not holder of "Sanads" from Religious Madrassas duly recognized by Higher Education Commission---Two Sanads from Dini Madrassas as claimed by the returned candidate were fraudulently manufactured by him through dishonest means of forgery and fabrication---Returned candidate had not passed the two additional subjects as per law---In view of said fraud and fabrication methodology adopted by the returned candidate, he was not only ineligible to contest the election, but was also not a righteous or honest or an "Ameen" person---Election of returned candidate, was declared to be illegal and void; and accordingly notification of his being a returned candidate, was set aside and was ordered to be cancelled---None of the petitioners/unreturned candidates could be declared as a successful candidate as the substantial majority of the votes did not cast their votes in favour of the either---Election Commission was directed to immediately arrange for holding of election in the constituency in accordance with the conditions and the Election Laws.

Sardar Asmatullah Khan v. Moulvi Muhammad Sarwar and others 2011 SCMR 107 ref.

Muddasar Qayyum Nahra v. Bilal Ijaz and others 2011 SCMR 80 and Ch. Bilal Ijaz v. Mudassar Qayyum Nahra and 4 others 2010 CLC 1692 rel.

Rustam Khan Padhiar for Petitioner.

Tipu Salman Makhdoom for Respondent No.1.

Muhammad Akbar Cheema and Ch. Muhammad Waseem for other Respondents.

Date of hearing: 8th August, 2012.

2012 C L C 39

[Election Tribunal Sindh]

Before Faisal Arab, J

WAHID BUKHASH KHAN BHAYO----Petitioner

Versus

GHOUS BUKHASH MAHER and others----Respondents

Election Petition No.211 of 2008, decided on 23rd September, 2011.

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

----Ss. 53, 103 & 103-AA---Election petition---Fair, just and transparent elections---Election Commission, duty of---Rigging at polling stations---Re-elections---Petitioner had alleged that there was a pre-poll rigging in the form of change of Returning Officer as well as change of polling stations just a few days before election and the same was done on the behest of respondent/returned candidate and that ballot-paper books were also found their way into the hands of the agent of respondent/returned candidate which resulted into vote count of 83% of registered voters in 47 disputed polling stations---Validity---Election Commission, on a complaint lodged by candidate or his agent or polling staff or any other person, under sections 103 and 103-AA read with section 52 of Representation of the People Act, 1976, if it found that it would not be possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, after holding summary inquiry, could declare election in a constituency as a whole void and could direct re-polling in the entire constituency---If the rigging was confined only to some of the polling stations, then the Election Commission could direct re-polling at such polling stations only---Assessment of polling results of 47 polling stations was sufficient to satisfy Election Commission that fair, just and transparent elections had not taken place in those polling stations---Election Tribunal declared results of disputed 47 polling stations as void, as large scale rigging was committed there---Authorities were directed by Election Commission to hold re-polling on disputed 47 polling stations within the period prescribed by law and after consolidation of final results of disputed polling stations with the result of previous results of other undisputed polling stations, name of successful candidate should be announced afresh---Election petition was allowed in circumstances.

Aftab Shahban Mirani's case PLD 2008 SC 779 rel.

1986 CLC 2463, 1993 CLC 929; 1999 CLC 2039; 1989 CLC 88; 2005 CLC 1493 and PLD 2005 SC 600 ref.

Anwar Mansoor Khan along with Muhammad Ishaque Khan for Petitioner.

Abdul Sattar Pirzada for Respondent No.1.

Nemo for Respondents Nos.2 to 6.

Dates of hearing: 9th, 10th March and 9th May, 2011.

2012 C L C 1221

[Gilgit-Baltistan Chief Court]

Before Jalal-ud-Din, C.J and Muzaffar Ali, J

GILGIT-BALTISTAN HIGH COURT BAR ASSOCATION through President and 6 others----Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, G.B. and 10 others----Respondents

Writ Petition No.108 of 2011, decided on 19th December, 2011.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71(2)--- Writ petition--- Restrictions/bans and other administrative coercive measures imposed in the district due to security reasons---Lawyers community feeling aggrieved by such measures filed present writ petition with the contention that directives should be issued to the government and concerned administrative authorities to exempt the lawyers from the said measures---Validity---Said security measures did create irritations and disturbances among the citizens but they were inevitable and forces could not be directed to ignore their duties---Deployed forces could be directed to maintain good behaviour with the citizens while watching for illegal activities of the miscreants---Chief Court gave directions that lawyer's community was to be dealt with a respectful manner upon showing their identity as members of the bar, but without compromising the basic security measures---Members of the bar were also directed to keep their dignity and honour by extending their cooperation with the law enforcing agencies---Writ petition was disposed of accordingly.

Ehsan Ali and Nafeeza for Petitioners.

Assistant Advocate-General for Respondents.

2012 C L C 1264

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

SAFDAR ENTERPRISES PVT. (LIMITED) through Javed Hussain and 8 others----Petitioners

Versus

NATIONAL BANK OF PAKISTAN through President and 5 others----Respondents

Criminal Writ Petition No.38 of 2011, decided on 14th December, 2011.

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

----S. 2(b)(ii) & 22---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.69 & 71(2) ---Writ petition---Suit for recovery of loan---Jurisdiction of Chief Court to entertain suit filed under Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope--- Intra-court appeal before Chief Court--- Scope---Bank(respondent) had filed a recovery suit against the defaulters (petitioners), and since the claim exceeded fifty million rupees, as envisaged under section 2(b)(ii) of Financial Institutions (Recovery of Finances) Ordinance, 2001, Chief Judge of the Chief Court entrusted the suit to a Judge of the Chief Court---Defaulters filed a writ petition against such order of the Chief Judge with the contentions that nomination and entrustment of the suit to any Judge of the Chief Court, was derogatory to section 2(b)(ii) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which section only envisaged "High Court" and not the "Chief Court", and that the Chief Court had no concept of Intra-court appeal and if the nominated Judge passed any decree against the defaulters, they would be deprived of their right to Intra-court appeal---Validity---Chief Court assumed and exercised all the powers of a "High Court" under general laws extended to Gilgit-Baltistan---Chief Court had been empowered to entertain the suits under the Financial Institutions (Recovery of Finances) Ordinance, 2001, as a "High Court"---Chief Judge exercised jurisdiction of the Banking Court under the Ordinance and did not act as a Judge of the High Court in its ordinary jurisdiction, therefore, any order/judgment/ decree passed by him could be appealed against before the Chief Court under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, notwithstanding the fact that the Chief Court had no rules of Intra-court appeal---Chief Court directed the competent authority having legislative power to look into the serious consequences of the issue and to introduce necessary amendments to the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Order accordingly.

2002 SCMR 496 rel.

Malik Shafqat Wali and Javed Ahmed for Petitioners.

Hassan Rashid Qamar and Raja Zia-ur-Rehman for Respondents.

Ehsan Ali, President High Court Bar Association Gilgit-Baltistan present on Court notice as friend of the Court.

2012 C L C 1403

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, J

SHABAN ALI----Petitioner

Versus

Mst. ZAINABA and 6 others----Respondents

Civil Revision No.18 of 2003, decided on 29th May, 2012.

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

----O. VI, R. 17---Application for amendment of written statement---Opposite party had obtained decree in its favour---Effect---Contention of the defendant (petitioner) was that while filing the written statement, his counsel, inadvertently could not mention some preliminary objections and factual points which were necessary for determination of real points in the controversy between the parties---Validity---Case had been lingering on for a long time and the plaintiffs (respondents) had obtained concurrent findings/decrees in their favour---Defendant had remained silent till the stage when rights had accrued in favour of the opposite party, which could not be ignored or defeated---Court was bound to keep in view the bona fides and intention of a party besides the real requirement of the amendment, for determination of controversy between the parties---Plea taken by the defendant for the amendment was illogical and fanciful and the intention was to delay the matter---Defendant had initially taken the defence of "Amanat", and was trying to adopt the defence of gift, without any piece of document in his favour---Revision petition was dismissed and application of the defendant for amendment in his written statement was also dismissed, in circumstances.

PLD 1987 AJ&K 170; 1990 CLC 1095; 1980 CLC 1866; 1994 CLC 882 and 1994 CLC 955 ref.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Any amendment which was likely to change the nature of the suit, cause of action or both was not likely to be allowed---Amendment in the pleadings was not permissible where on account of an omission to raise a plea in the pleadings, valid rights had accrued to the opposite party---Court was also under a duty to watch the bona fide/mala fide of the party seeking the amendment.

Muhammad Isa for Petitioner.

Haji Mirza Ali and Manzoor Ahmed for Respondents.

2012 C L C 1429

[Gilgit-Baltistan Chief Court]

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

Mst. KHUSHAB JUMA through Legal Heirs----Appellant

Versus

GOVERNMENT OF PAKISTAN through Defence Secretary, Rawalpindi and 3 others----Respondents

C.F.A. No.8 of 2001, decided on 8th May, 2012.

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

----S. 42---Allotment of land to the deceased son of the plaintiff (appellant)---Land in question occupied by the Armed Forces---Compensation for such occupation paid to the defendant (respondent) who had allegedly with the collusion of the revenue field staff, managed to prepare fake and fictitious documents in his favour, whereafter the officials attested mutation of the disputed land in his favour---Plaintiff filed suit against the defendant for declaration with consequential relief; for recovery of compensation from the defendant, and for attestation of mutation in respect of the disputed land in favour of the plaintiff---Said suit was dismissed by the civil court finding same to be vague and not proved---Validity---Land in question had been allotted to the deceased son of the plaintiff---Original allotment order was available on record and the competency of the authority which sanctioned the allotment had not been questioned by the defendant---Defendant relied on certain documents to establish that the land in question had been allotted in his favour at a later stage but no specific order was exhibited which was passed by any competent authority which might have cancelled the allotment made in favour of the deceased-son of the plaintiff or which might have allotted the land in favour of the defendant---Land in question had been transferred to the defendant vide the impugned mutation, wherein the land had been shown as Khalisa sarkar'---Impugned mutation disclosed that the sole reason for its attestation was on the basis of entry in theKhasra Girdawary', which reason negated the story of allotment of the land in the written statement of the defendant---Attestation of impugned mutation by the Naib­-Tehsildar involving considerable quantity of nautr land' without any allotment by the competent authority under the nautr rules prevailing at the time was nothing except for an illegal act by an unauthorized officer---Preparation of compensation papers in favour of the defendant and passing of an award on the basis of such papers by the Collector was illegal and without authority, as the defendant had no legal title or ownership of the land---Defendant exhibited a judgment of theWafaqi Mohtasib' wherein the defendant had asked for enhancement of compensation for the land in question, but said judgment had been delivered on the basis of documents presented before the `Mohtasib' by the defendant and neither the dispute of title was agitated therein nor the plaintiff was made party to the proceedings---Findings of the civil court were without the force of law, therefore, they were set aside and it was held by the Chief Court that the compensation paid to the defendant on the basis of illegal award was payable to the plaintiff from the defendant; that prayer for attestation of mutation of land in question in favour of the plaintiff could not be acceded to as the land had been acquired by the government after payment of due compensation; that mutation of land in question should be entered and attested in favour of the Armed Forces, if not previously done, and that costs of the case were payable to the plaintiff by the defendant.

Haji Mirza Ali for Appellant.

Assistant Advocate-General for Respondents Nos.1 to 3.

Manzoor Ahmed for Respondent No.4.

2012 C L C 495

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD SADIQ----Petitioner

Versus

ALLAH DITTA and 6 others----Respondents

Civil Revision No.44 of 2010, decided on 2nd January, 2012.

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

----O. XLI, R.27---Production of additional evidence---Scope---Parties to an appeal, would not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court---However, if the court from whose decree an appeal was preferred refused to admit evidence, which ought to have been admitted, or the Appellate Court required any document to be produced to enable it for disposal of the controversy, the Appellate Court could allow such evidence or documents to be produced.

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

----O. XLI, R.27---Production of additional evidence---Appellate Court below dismissed the application to produce additional evidence---Validity---Earlier, during pendency of the suit before the Trial Court, petitioner did not submit any application to produce the documents sought to be produced as additional evidence, despite same were available before filing of the suit and he could file the same with plaint, but he failed to tender those documents---Petitioner, in circumstances was not entitled to be allowed to produce the said documents at later stage---Appellate Court below had recorded his findings based on sound and cogent reasons, which needed no indulgence by the High Court in exercise of its revisional jurisdiction---Petition was dismissed.

1988 CLC 22; 1988 SCMR 1653 and Maqsood Hussain v. Muhammad Hussain 2000 CLC 1272 ref.

Maqsood Hussain v. Muhammad Hussain 2000 CLC 1272 rel.

Ch. Muhammad Afzal for Petitioner.

Sahadat Ali Kiani for Respondents.

2012 C L C 520

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SUFI and another----Appellants

Versus

SAIN MUHAMMAD and another----Respondents

Appeal No.40 of 2007, decided on 23rd December, 2011.

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

----S. 9---Suit for recovery of possession---Appeal or review---Scope---Suit was dismissed by the Trial Court---Appellate Court below had upheld judgment and decree passed by the Trial Court---Validity---Section 9 of Specific Relief Act, 1877 had expressly prohibited an appeal from any order or decree passed in any suit instituted under said section---Power of review was also similarly taken away in respect of any such order or decree---Intention of the lawmakers clearly seemed to be to give finality to orders and decrees passed in suits under S.9 of Specific Relief Act, 1877---Said section had provided a quick remedy for the recovery of possession, where a person was dispossessed from immovable property, otherwise than in due course of law---Plaintiff was not required to establish his title to the property and he could succeed by merely showing previous possession and wrongful dispossession---Object of S.9 was clearly to discourage forcible dispossession---Proceedings under said section did not constitute a bar against either of the parties suing to establish its title to the property and to recover possession thereof---Party adversely affected under S.9, had an alternate remedy by way of regular suit for establishing title and recovery of possession---Trial Court after considering documentary and oral evidence of the plaintiffs, had rightly come to the conclusion that they had failed to prove possession over the disputed land---Counsel for the plaintiffs had failed to point out any misreading or non-reading on the part of the Trial Court---Plaintiffs, in circumstances, had got no case on merits.

Dilbar Hussain v. Muhammad Saleem and another 1995 CLC 777 and Mst. Jhali and others v. Lal Khan and another1992 CLC 2320 ref.

(b) Administration of justice---

----Question of law, could be raised at any time for safe administration of justice---Contention that question not raised in the court below could not be permitted to be raised, was devoid of force.

Mir Tanveer Hussain for Appellants.

Sheikh Abdul Aziz for Respondents.

2012 C L C 540

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

MUHAMMD ILYAS----Petitioner

Versus

CHIEF ELECTION COMMISSIONER AZAD KASHMIR SCHOOL TEACHERS

ORGANIZATION, MUZAFFARABAD and 17 others----Respondents

Writ Petition No.723 of 2010, decided on 8th December, 2011.

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

----S. 44---Writ jurisdiction of High Court, invoking of---Essential conditions---Party invoking such jurisdiction must be an aggrieved person and that direction, prohibition or declaration must be sought against a person performing functions in connection with affairs of State of Azad Jammu and Kashmir.

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

----S. 44---Writ petition---Maintainability---Election for office-bearers of Azad Kashmir School Teacher Organization---Notification of successful candidates issued by such organization alleged to be illegal mala fide and without lawful authority---Petitioner's plea that such organization was registered with government, thus, same was functioning in connection with affairs of the State---Validity---Neither such organization had statutory backing nor had its rules been framed by government---Such organization being a body politic/corporate was not performing functions in connection with affairs of State of Azad Jammu and Kashmir---High Court dismissed the petition in limine.

Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Pakistan International Airline Corporation and others v. Tanweer ur Rehman and others PLD 2010 SC 676 and Azad Government of the State of Jammu and Kashmir v. Ansar Burney 1994 SCR 243 rel.

Syed Nazir Hussain Shah Kazmi for Petitioners.

Syed Shahid Bahar for Respondents Nos.1, 4 and 12.

2012 C L C 817

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

AHMED DIN----Petitioner

versus

HAQ NAWAZ and 15 others----Respondents

Revision Petition No.440 of 2010, decided on 6th February, 2012.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction---Grant and cancellation of interim injunction---Plaintiff filed separate application for grant of interim injunction, which was allowed---Trial Court cancelled said interim injunction on objections by the defendants---Appellate Court upheld the order of Trial Court---Validity---Road had been constructed by the Local Government Department some years before for the benefit of the general public including the plaintiff---All the owners of the village had left the land for the construction of said road---People of the area were utilizing the road since last five to six years---Plaintiff had also left some land for the construction of said road, but later on he closed the said road---Trial Court appointed a Local Commission to inspect land in dispute and to make a report for the same---Commission, made a report after inspection and no objection was raised by the plaintiff before the Trial Court regarding appointment and report of the Commission---Plaintiff who had also participated in the construction of said road reserving his own land for the road, was debarred to raise any objection on the construction of said road---Plaintiff had not sought declaration of his ownership in the suit regarding the disputed land, so no consequential relief of permanent or interim injunction could be granted to him---If the plaintiff was not willing to leave his land for the construction of the road, he had got a right to claim for the compensation regarding his land from the concerned authorities---Petition was dismissed.

2002 CLC 571 rel.

Bostan Chaudhary for Petitioner.

Abdul Razzaq Chaudhary for Respondents.

2012 C L C 1627

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD ADIL KIANI and 41 others----Appellants

Versus

COLLECTOR LAND ACQUISITION, MANGLA DAM RAISING PROJECT ZONE-II, MIRPUR and 61 others----Respondents

Civil Appeal No.269 of 2011, decided on 12th May, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 23, 18 & 30---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Acquisition of land---Determination of amount of compensation---Interim injunctions, vacation of---Land in question was acquired in accordance with the provisions of Land Acquisition Act, 1894---Compensation was assessed by the Collector in the names of appellants as well the respondents to the extent of their shares and ownership regarding the acquired land---Respondents had purchased the acquired land since long, but the appellants did not challenge relevant sale-deeds, mutations and revenue entries made in the names of the respondents---Compensation assessed and determined, was in terms of millions---If at all, any additional right was established in favour of appellants regarding acquired land by any proper forum in future, the appellants would have a legal right to approach the concerned forum for their redressal---No hurdle existed in the way of the appellants to receive the compensation determined in their names, but the respondents had been deprived to receive the compensation in their names in presence of interim injunction---Balance of convenience lay in favour of the respondents; and if the interim injunction was not vacated, respondents would suffer an irreparable and painful loss---Interim injunction respondents, was vacated, in circumstances.

Sahadat Ali Kiani for Appellants/applicants.

Bostan Chaudhary, Sardar Muhammad Azam Khan, Khalid Yousuf and Sardar Abdul Razaq for Respondents.

2012 C L C 1723

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ABDUL AZIZ----Appellant

Versus

UNIVERSAL INSURANCE COMPANY through Secretary and 2 others----Respondents

Civil Appeal No.89 of 2005, decided on 14th May, 2012.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S.42---Rejection of plaint---Suit for declaration---Shares purchased by plaintiff from the defendant-company at place 'I', having been transferred and allotted at place 'L' in the "Registered Office of the company", contention of defendants was that Branch of company functioning at place 'M' had no concern with the transaction of the shares and prayed to reject the suit filed by the plaintiff---Trial Court rejected the suit under O.VII, R.11, C.P.C. and declared that matter pertained to transfer of the shares and same could be heard at where the Registered Office of the company was established---Validity---Company was functioning at place 'M' through its branch office and the plaintiff purchased the shares of the company at place 'M' branch office through an approved stock broker, who was also performing his functions at place "M"---Trial Court at "M" had jurisdiction to try the case regarding shares of the company---Findings recorded by the Trial Court, being not in accordance with the facts and provisions of the law, were not sustainable---Judgment and decree passed by the Trial Court were set aside with direction to dispose of the matter in accordance with provisions of law.

PLD 2011 Kar. 416 rel.

Muhammad Siddique Chaudhary for Appellant.

Mian Sultan Mehmood and Kamran Tariq for Respondents.

2012 C L C 1734

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD SIDDIQUE----Appellant

versus

ABDUL RAUF and 10 others----Respondents

Civil Appeal No.38 of 2010, decided on 18th May, 2012.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S.42---Suit for declaration---Application for amendment of pleadings---Essentials---Plaintiff proposed in the amendment that Survey No. of the property be replaced by another Survey No.---Proposed amendment, in circumstances, would change the nature of the suit and cause of action---Proposed amendment in the pleadings, should be fair and bona fide; not inconsistent and in conflict with the pleadings sought to be amended; should not introduce a new cause of action or defence rendering visible change in the character and complexion of the case and should not amount to defeat a legitimate right of the opposite party---Proposed amendment in the present case, would fully change the nature and complexion of the suit and even the cause of action---Appeal was dismissed.

2007 CLC 441 ref.

1985 CLC 1650 and PLD 1987 SC (AJ&K) 93 rel.

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

----S. 42---Suit for declaration---Oral sale---Effect---Oral sale would not create any title or ownership in the property, until the same was completed in accordance with provisions of law.

Malik Muhammad Asghar for the Appellant.

Malik Muhammad Mansha Khan for the Respondents.

2012 C L C 1759

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ABDUL RAUF----Appellant

versus

COLLECTOR LAND ACQUISITION MANGLA DAM RAISING PROJECT, MIRPUR ZONE-II and 13 others----Respondents

Civil Appeal No.67 of 2011, decided on 16th May, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Acquisition of land---Reference to Referee Court---Vacation of interim injunction---Appeal had been filed against the judgment and decree passed by Referee Court through which reference filed by the appellant was dismissed by the Referee Court---Appellant through separate application, had prayed to issue an interim injunction, which was issued subject to objections from the other side---Appellant and respondents were real brothers and sisters and estate of their deceased father was never partitioned privately or legally and all of them were legal heirs of their deceased father---Compensation of the acquired land legally owned by all of the legal heirs having been assessed in their names, all of them were entitled for the compensation assessed to the extent of their legal shares in the acquired land---Appellant who claimed to be sole owner of the acquired land, had got no arguable case---Balance of convenience did not lie in his favour and if the interim injunction was issued against the officials and respondents, then respondent brothers and sisters of the appellant would suffer an irreparable loss; they could not be deprived of the compensation for which they had been declared entitled by the authorities---If the version of the appellant was accepted by any competent forum he would be at liberty to approach any proper forum for his rederssal---Interim injunction issued against the respondents was vacated, in circumstances.

Liaqat Ali Khan for Appellant.

Sardar Muhammad Razzaq Khan, Ch. Muhammad Jamil and Syed Gohar Abbas for Respondents.

2012 C L C 1861

[High Court (AJ&K)]

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

TALHA SARFRAZ----Petitioner

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 16 others----Respondents

Writ Petition No.530 of 2012, decided on 6th June, 2012.

Pakistan Medical and Dental Council Rules, 2010---

----R. 9---Conditions for Admission in MBBS Course and House Job Regulations, 2010, Regln.9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writs of mandamous and certiorari---Prerequisites---Educational Institutions---Admission in Medical College---Petitioner had solicited writs of certiorari and mandamus, contending that merit list prepared for admission in Medical College against quota seats reserved for the Overseas Kashmiri candidates, was issued without lawful authority; against the Pakistan Medical and Dental Council Rules, 2010, could be struck down; that respondents who were not eligible to be considered as the sons of Overseas Kashmiris, their admission could be declared illegal, having been issued without lawful authority---Validity---Parents of the petitioner who were serving abroad, had died there; and after their death the petitioner shifted to Pakistan and passed F.Sc. Premedical from Board of Intermediate and Secondary Education Mirpur (Azad Kashmir)---Claim of the petitioner was that on the basis of resident permit he being entitled to reside abroad till 2017, he was included in the definition of "Overseas Kashmiris"---Said resident permit did not allow the petitioner to reside abroad as claimed by the petitioner---Petitioner had failed to produce the VISA which was a basic document for stay abroad---After death of parents of the petitioner, he was not fulfilling the criteria laid down for determination of admission against reserved seats for Overseas Kashmiris---Prerequisite for issuance of writ of certiorari and mandamus was that petitioner must be aggrieved within the meaning of S.44(1)(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Writs of mandamus and certiorari could be issued on the application of any aggrieved party and not as a pro bono publico---Petitioner who himself was not fulfilling the criteria prescribed for admission against seats reserved for Overseas Kashmiris, was not an aggrieved party and no writ could be issued as prayed for by the petitioner.

Writ Petition No.103 of 2012 titled Farwa Batool and others v. Azad Government and others; Abdul Razzaq v. Mohammad Qasim and another 1995 CLC 1123; Muhammad Boota and others v. The Commissioner Sargodha Division and others PLD 1973 Lah. 580; Raja Iqbal Rashid Minhas, Advocate v. Azad Jammu and Kashmir Council and 3 others PLD 2002 SC (AJK) 1 and Syed Shaukat Hussain Gillani v. Abdul Rehman Abbasi and others 1992 SCMR 369=1992 PLC (C.S.) 438 rel.

Sardar K.D. Khan for Petitioner.

Raja Muhammad Haneef Khan for Respondents Nos.1 to 7 and 11.

Shakawat Hussain for Respondents Nos.8, 9, 12, 14, 16 and 17.

Nemo for Respondents Nos.10, 13 and 15.

2012 C L C 1887

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

URFAN QURESHI----Petitioner

versus

Chaudhary SHOUKAT AZIZ----Respondent

Revision Petition No.15 of 2008, decided on 3rd August, 2012.

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

----Ss. 152, 153 & O.XLI---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.46---Azad Jammu and Kashmir Courts and Laws Code, 1949, S.35---Amendment of judgment and decree or orders---Scope---Defendant had impugned the order passed by the Trial Court, whereby an application for correction of judgment and decree pertaining to description of suit property was allowed---Remedy of appeal which was available to the defendant under O.XLI, C.P.C., had not been availed by him; and after expiry of period for filing appeal, had filed revision petition---Validity---Under S.46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and S.35 of Azad Jammu and Kashmir Courts and Laws Code, 1949 for doing complete justice, powers of superintendence and control, could be exercised by High Court, where the interest of justice so demanded---Defendant having failed to avail remedy of appeal available to him, without any lawful reason, question of exercising inherent powers, would not arise in the case, when no gross injustice was committed in the case by the Trial Court---No illegality having been committed by the Trial Court while passing the impugned order, revision petition was dismissed, in circumstances.

Fazal Din v. Rehabilitation Commissioner (Lands) and 2 others 1987 CLC 1053; Pakistan Day/Memorial Committee and another v. Mian Abdul Khaliq and Co., Lahore 1987 CLC 1169; Muhammad Yasin and 8 others v. Abdul Hameed and 21 others 2010 CLC 230; Anees A. Sheikh v. Co1. (Retd.) Ghulam Masood Qureshi 2005 SCMR 977; Muhammad Saleem v. Azad Government and 4 others 2006 SCR 88; Piran Ditta v. Fazal Nabi PLD 1992 SC (AJ&K) 1; Mst. Miran v. Mir Hussain and another 1980 CLC 549; Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154; Fazalur Rehman v. Muhammad Ilyas and 2 others 1991 MLD 2178; AJ&K University v. Mir Alam and 43 others 2002 YLR 549 and Mir Zaman Abbasi and 7 others v. AJK Government and 2 others 1997 CLC 1722 ref.

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

----Ss. 152 & 153---Amendment of judgments, decrees and orders and correction of errors in judgments, decrees and orders---Scope---Section 152, C.P.C. related to correction of errors in judgments, decrees or orders; whereas S.153, C.P.C. had empowered a court to amend any defect or error in any proceedings in a suit---Purpose of said statutory law was that by enabling amendment of the proceedings, multiplicity of litigation could be avoided---Said powers could be exercised at any time, even after passing the judgment and decree---Under S.153, C.P.C., incorrect description of a party and property, even in the pleadings could be corrected---Plaintiff in the present case, was not guilty of gross negligence, but description of property was given by him in the plaint due to mistake of the defendant in the agreement to sell---Refusal of solicited relief to the plaintiff would tantamount to granting premium to the defendant of his wrong, prima facie, consisting of mens rea and malice---Court was not restricted to correct the mistake under Ss.152 & 153, C.P.C.

Piran Ditta v. Fazal Nabi PLD 1992 SC (AJ&K) 1 and Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451 rel.

(c) Administration of justice---

----Rules of procedural law---Purpose---All the rules of procedural law had been enacted for the purpose of administration of justice---Basic purpose of all the rules was to serve the administration of justice and those should be subordinate to it---Principle of jurisprudence that procedural law should not be construed strictly so as to put the parties to undue inconvenience, because principal object behind all legal formalities was to safeguard the paramount interest of justice---No one should be defeated merely on the basis of technicalities, unless offering insurmountable hurdles---Legal technicalities should not be allowed to stand in the way of justice, which might lead to unsettlement and uncertainty of law.

Sardar K.D. Khan for Petitioner.

Tahir Aziz Khan for Respondent.

2012 C L C 1933

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, CJ

PERVEZ IQBAL----Petitioner

Versus

MUHAMMAD SHAFIQUE and 2 others----Respondents

Writ Petition No.1430 of 2012, decided on 30th July, 2012.

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

----S. 44---Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986), S.18---Writ jurisdiction---Scope---Petitioner/tenant had challenged orders passed by Rent Controller and District Rent Controller/Appellate Authority---Order under challenge had been passed by Appellate Authority on a revision petition---Revisional jurisdiction, in Azad Jammu and Kashmir, was initially vested in the High Court, however, due to an amendment made in 1972, Appellate Authority was also vested with the same powers, which had authorized said Authority to examine the orders passed by the subordinate courts in which no appeal lay---Question for determination was as to whether, the Rent Controller was a court subordinate to Appellate Authority, designated under Azad Jammu and Kashmir Rent Restriction Act, 1986---Under subsection (7) of S.18 of Azad Jammu and Kashmir Rent Restriction Act, 1986, order of the Rent Controller subject to the result of an appeal, was final and could not be assailed in any court of law including the High Court by way of a suit, appeal or otherwise---Jurisdiction of High Court, in circumstances, was totally barred---Writ petition was liable to be dismissed, in circumstances---Order passed by the Rent Controller having attained finality, same could not be called in question in writ jurisdiction of High Court.

Shaikh Khalid Mahmood v. Malick Muhammad Irfan PLD 1983 SC (AJ&K) 204 rel.

Sajjad Ahmed Khan for Petitioner.

Tahir Aziz Khan for Respondents.

2012 C L C 236

[Islamabad]

Before Riaz Ahmad Khan, J

Messrs M.A. ALEEM KHAN & SONS (PVT.) LTD. ----Plaintiff/Claimant

Versus

PAKISTAN TELECOMMUNICATION EMPLOYEES TRUST---- Defendant/Objector

Civil Suit No.70 of 2011, decided on 30th November, 2011.

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

----S. 29---Interest on award---Award of interest by arbitrator. with effect from date of award till payment of amount---Validity---Award was ammended by High Court to the extent that interest awarded was to be considered upto the date of award and not beyond that.

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

----S. 28 & Sched.1, Condition 3---Power to court only to enlarge time for making of award---Defendant's objection to award having beenissued after six months of completion of arbitration_ proceedings---Validity---Both the parties having participated in the proceedings and defendant having admitted that no prejudice had been caused by issuance of the award at a later stage, objection was repelled by High Court.

1998 SCMR 816; PLD 1990 SC 359 and AIR 1949 All 399 ref

(c) Stamp Act (II of 1899)---

----S. 3, Sched.l & Art.12---Arbitration Act (I of 1940), S.14---Award---Stamp duty--Award issued on stamp paper not properly valued---Defendant had objected that the award was issued on stamp paper, which was not properly valued---Validity---Award showed that same was written on a stamp paper of proper value---Objection was repelled.

Bilal A. Khawaja and Muhammad Nasir Khan for Plaintiff/Claimant

Sajid A. Qureshi for Defendant/Objector

Date of hearing: 30th November, 2011.

2012 C L C 447

[Islamabad]

Before Riaz Ahmad Khan, J

IFTIKHAR MEHMOOD BUTT----Appellant

Versus

FEDERAL GOVERNMENT EMPLOYEES' HOUSING FOUNDATION through Director General/Chairman and another----Respondents

Regular Second Appeal No.9 of 2004, heard on 10th May, 2011.

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

----S. 49---Specific Relief Act, (I of 1877), Ss.42 & 54---Suit for declaration, permanent and mandatory injunction---Allotment of plot, cancellation of---Employee of Capital Development Authority (CDA) was allotted a plot but said allotment was cancelled as he had already been allotted a plot in the past---Allottee with the contention that he had deposited whole of the sale consideration and lease agreement as well as registered deed were executed in his favour, filed suit for declaration, permanent and mandatory injunction which was dismissed by Trial Court and Appellate Court below---Validity---Allottee was earlier allotted a plot and he had submitted a false affidavit for the allotment of the second plot when according to the rules he was not entitled for the second allotment---Allotment in favour of allottee was provisional and the same had not conferred any right upon him---Both Courts below had properly appreciated the legal as well as factual position---Appeal was dismissed accordingly.

Appellant in person.

Syed Wajid Ali Gillani for Respondent No.1.

Ms. Shaheena Akbar for Respondent No.2.

Date of hearing: 10th May, 2011.

2012 C L C 533

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Dr. HABIB-UR-REHMAN----Petitioner

Versus

QUAID-I-AZAM UNIVERSITY through Vice-Chancellor and 2 others----Respondents

Writ Petition No.2096 of 2011, decided on 30th September, 2011.

(a) Interpretation of statutes---

----Procedural law---Retrospective effect---Principle---Only exception to retrospective operation of a procedural law is that if by giving it retrospective operation, vested right of a party is impaired, then to that extent it operates prospectively---Alterations in the form of procedure through legislation is always retrospective, unless there is some good reasons to hold otherwise, because nobody has vested right in procedure---If new legislation affects vested rights of any person, the same cannot be made applicable retrospectively.

(b) Interpretation of statutes---

----Courts, duty of---Scope---Courts while interpreting a law do not legislate or create a new law or amend existing law---Courts through interpretation only declare true meanings of law which already existed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Estoppel, principle of---Applicability---Change in procedure---Grievance of petitioner was that he could clear viva voce as the authorities had changed procedure of examination---Validity---Only procedure regarding examination was amended/revised and petitioner had also appeared under revised rules without any protest at relevant time---No vested right of petitioner was infringed---Petitioner started litigation only when he could not qualify viva voce and, therefore, his conduct created an estoppel against his action---None could be allowed to take altogether different positions---High Court declined to interfere in result of petitioner---Petition was dismissed in circumstances.

2007 CLC 1926 and PLD 1963 Dacca 886 ref.

PLD 2001 SC 482; 1972 SCMR 173;1992 SCMR 372 and PLD 2001 (?) 452 rel.

M. Shabbir Ahmad Nasir for Petitioner.

Muhammad Munir Peracha for Respondents.

Date of hearing: 21st September, 2011.

2012 C L C 662

[Islamabad]

Before Shaukat Aziz Siddiqui, J

PAKISTAN MEDICAL COOPERATIVE HOUSING SOCIETY

versus

AZRA LATIF and others

Writ Petition No.2354 of 2011, decided on 16th December, 2011.

Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 56---Constitution of Pakistan, Art. 199---Constitutional petition---Dispute pertaining to business of Society---Petitioner-Society assailed orders of Registrar's nominee and Appellate Authority whereby respondent's petition against cancellation of the respondent's membership of the Society and allotment of plot by the Society, was accepted and appeal and revision filed by Society against said order were dismissed by the Appellate Authority---Contention of the Society was that the respondent's membership and provisional allotment of plot were cancelled since she failed to clear dues and same was done with the approval obtained in the Annual General Meeting of the Society----Validity---Held, there was a clash and an issue of ego between the management committee of the Society and the husband/ counsel of the respondent which led the Society to act with ulterior motives---Such observation could be substantiated from part of the letter, on record, written by the Society to the respondent with the return of her cheque, that proved the venom the management committee of the Society had against the respondent and which prompted the Society to cancel the respondent's membership----Dispute between the parties did not merely relate to the payment of instalments for the plot----Order of Registrar's nominee revealed that the respondent had paid an amount to the Society and valuable right created in favour of respondent had been taken away on feeble grounds----Authorities passed the impugned orders with lawful authority by adopting proper procedure and after affording fair opportunity of hearing to both sides that did not call for interference of High Court in its constitutional jurisdiction---Society, throughout, demonstrated a cryptic approach, dubious conduct and an enigmatic stance instead of showing grace and respect to the respondent ---­Management of any cooperative society was considered as custodian of the rights of its members---Society took the ultimate step without affording an opportunity of hearing to the respondent, which was an act against the golden principle of audi alteram partem---High Court observed, with concern, that most societies established for the betterment and welfare of their members, were found napping in doing so and members of management committees of such societies were involved in activities synonymous to those of property dealers and real-estate agents---High Court could not harbour persons ,who for their own benefit, endangered the interests and rights of others, and took undue advantage and demonstrated polluted mannerisms for the advancement of personal vendetta---Constitutional petition was dismissed with the direction to the Society to implement the impugned orders of the Authorities concerned.

Sardar Arshad Mehmood Khan for Petitioner.

2012 C L C 825

[Islamabad]

Before Riaz Ahmad Khan, J

Messrs THE BRANDS----Petitioner

versus

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

Writ Petition No.1241 of 2010, decided on 21st February, 2012.

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

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment petition filed by landlord company through a person not having any authorization letter/resolution of the Board of the company---Maintainability---Tenant (petitioner) assailed concurrent findings of the courts below ordering the ejectment of tenant from the premises---Contention of the tenant was that the landlord was a private limited company and the ejectment petition was filed through the Secretary of the company who had no authorization letter to move said ejectment petition---Validity---Landlord had filed ejectment petition, but along with said petition, no resolution passed by the Board of the landlord company was attached---Constitutional petition also did not mention as to through whom the ejectment petition was filed and that he was authorized by the Board of the landlord company through any resolution---Constitutional petition was not even signed by the person through whom the ejectment petition was filed---Authorization letter produced during the course of evidence, was actually issued by the person through whom the ejectment petition had been filed and on the basis of such letter he simply authorized a witness to give a statement in evidence during the proceedings---Said letter was not a resolution passed by the Board of landlord company---Ejectment petition being not maintainable, in circumstances, orders of the courts below were set aside---High Court, however, observed that the landlord would have right to file a fresh ejectment petition in accordance with the law, rules and procedure, and that the acceptance of the tenant's constitutional petition by the High Court would not come in the way of the landlord filing a fresh ejectment petition---Constitutional petition was allowed, accordingly.

PLD 2005 Kar. 478; PLD 2008 Kar. 540; PLD 1991 Lah. 381; PLD 1971 SC 550 and 2009 SCMR 846 ref.

2006 SCMR 437 fol.

Raja Muqsit Nawaz Khan for Petitioner.

Syed Javed Akbar Shah for Respondent No.3.

Date of hearing: 15th February, 2012.

2012 C L C 840

[Islamabad]

Before Shaukat Aziz Siddiqui, J

NOORISH SABAH----Petitioner

versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and 2 others----Respondents

Writ Petition No.3304 of 2011, decided on 23rd January, 2012.

Competitive Examinations Rules, 2010---

----Rr. 7(v) & 18---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner appeared in the written examination of Central Superior Services (CSS), and cleared the same---Process of verification of documents of the petitioner, revealed that domicile certificate and permanent resident certificate submitted by the petitioner at the time of applying for the examination were bogus---After issuing the petitioner the show-cause notice, she was disqualified for competitive examination and was debarred from employment under Government---No authentic proof was available to establish that decision taken on the proceedings commenced from show-cause notice was communicated to the petitioner---Bona fide of the petitioner was evident from the aspect that she herself approached the respondent authorities concerned for holding of an inquiry regarding issuance of domicile certificate and permanent resident certificate---Deputy Commissioner, on inquiry, issued direction of fresh domicile and permanent resident certificate to the petitioner---No mens rea existed on the part of the petitioner, her career was required to be protected, if she otherwise had qualified---Order disqualifying the petitioner for competitive examination and debarring her from employment under Government, was set aside, with direction to the authorities to take into consideration, the inquiry report of domicile issuing authority and issuance of permanent resident certificate and domicile to the petitioner and pass a fresh order in accordance with law.

Haris Azmat for Petitioner.

Kamran Raffat, Asstt. Director, FPSC and Mumtaz Hussain Shaukat, Asstt. Director FPSC for Respondents.

Date of hearing: 23rd January, 2012.

2012 C L C 849

[Islamabad]

Before Shaukat Aziz Siddiqui, J

NAKHARA through L.Rs. and others----Petitioners

versus

CHIEF FEDERAL LAND COMMISSIONER, ISLAMABAD and 9 others----Respondents

Writ Petition No.3321 of 2011, decided on 2nd February, 2012.

Land Reforms Regulation, 1972 (MLR 115]---

----Para. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Allotment of land to respondents while judgment and decree passed in favour of the petitioners by court of competent jurisdiction, was holding the field---Validity---Making the judgment and decree of a Court redundant by the Land Reforms authorities was nothing, but a colourable exercise of authority, an abuse of process of law, sham, unprecedented, illegal, disgusting and contemptuous---Judicial, quasi-judicial and executive authorities, were under obligation to show respect to any decision passed by the courts of law; and aggrieved person of such order, judgment and decree, could agitate the same in accordance with the procedure prescribed for the same---Impugned order was set aside, in circumstances.

Ch. Abdul Khaliq Thind and Hafiz Munawar Iqbal for Petitioners.

Hafiz Hifz-ur-Rehman Syed for Respondent No.1.

Fida Hussain, ALA and Sh. Muhammad Awais for Respondents Nos.2, 3, 4, 7, 8 and 9.

Date of hearing: 2nd February, 2012.

2012 C L C 861

[Islamabad]

Before Iqbal Hameed-ur-Rehman, C.J.

DIGITAL MEDIA SOLUTIONS PRIVATE LIMITED through Company Secretary----Applicant

versus

WARID TELECOM PRIVATE LIMITED through Faisal Saeed----Respondent

C.M. No.260-S of 2011 in C.A. No.1 of 2011, decided on 21st March, 2012.

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

----O. VII, R. 11 & O. XXIX, R. 1---Copyright Ordinance (XXXIV of 1962), Ss.2(l) & 39---Suit for infringement of copyright by company---Application for rejection of plaint---Subscription and verification of pleadings---Respondent (company) had filed suit against applicant (company) for infringement of respondent's copyrights over certain licensed music content---Applicant filed present application under Order VII, Rule 11, C.P.C for rejection of respondent's plaint with the contention that suit had not yet been filed by the duly authorized person in accordance with law; that respondent only had the right to sell and distribute the licensed content and was not the owner of copyright, therefore, it had no cause of action and locus standi to file the suit, and that respondent had filed an application before the Copyrights Office, but same was pending and the request had not yet been granted---Validity---Contention of applicant that plaint had not been verified by duly authorized person, same was a formal defect which could be cured subsequently and the plaint could not be rejected on such ground---Mere failure on part of respondent to get the copyright registered did not invalidate or impair the copyright nor destroyed the right to sue for copyright infringement---Contentions of applicant raised crucial and substantial questions of facts and law which were to be adjudicated at the trial of the suit and same could not be decided without recording of evidence---Respondent had properly pleaded the cause of action in the plaint and at present stage the contents of the same were admitted to be true---Lack of proof or weakness of proof in the circumstances of the case did not furnish any justification for coming to the conclusion that there was no cause of action or locus standi shown in the plaint---Rejection of plaint on technical grounds would have amounted to depriving the respondent from his legitimate right of availing legal remedy---Plaint of respondent could not be rejected under Order VII, Rule 11 of C.P.C, and, consequently, application for rejection of plaint was dismissed.

Shadoo Muhammad Khan v. Ganmoon 1989 MLD 4624; Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited 2011 CLD 408 and Messrs Ferozesons Pvt. Ltd. v. Dr. Col. Retd. K.U. Kureshi 2003 CLD 1052 rel.

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

----O. VII, R. 11, O.III, R.4, O.VI, Rr.14 & 15, O.XLI, R.1 & O. XXIX, R. 1---Copyright Ordinance (XXXIV of 1962), Ss.2(l) & 39---Suit for infringement of copyright by company---Rejection of plaint--- Scope---Defects in pleadings, application and memorandum of appeal with regard to presentation, signing and verification being technical irregularities relating to matter of procedure, could be rectified at any stage of proceedings and could not furnish basis for rejection of plaint, application or memorandum of appeal.

Shadoo Muhammad Khan v. Ganmoon 1989 MLD 4624 quoted.

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

----O. VII, R. 11---Copyright Ordinance (XXXIV of 1962), Ss.2(l) & 39---Suit for infringement of copyright by company---Rejection of plaint--- Scope---For decision of application under Order VII, Rule 11, C.P.C, the facts as alleged in the plaint were to be looked into and nothing extraneous could be seen and where the plaint, prima facie, disclosed a cause of action, same could not be rejected.

(d) Administration of justice---

----Prime object and purpose of establishing courts was to dispense justice to the parties before it in accordance with the law and discourage adjudication on technicalities.

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

----O. VII, R.11 & O. XXIX, R.1---Copyright Ordinance (XXXIV of 1962), Ss.2(l) & 39---Suit for infringement of copyright by company---Application for rejection of plaint---Trial Court, inadvertently, did not frame issues regarding objections taken in the written statement of the applicant (defendant)---High Court, while dismissing application for rejection of plaint gave directions to Trial Court to add such issues.

Sophia Khan along with Sardar M. Ishaq for Applicant/Defendant.

Babar Ali Khan for Respondent/Plaintiff.

2012 C L C 884

[Islamabad]

Before Iqbal Hameed-ur-Rahman, C.J.

Syed SAIF-UR-REHMAN----Petitioner

versus

FEDERATION OF PAKISTAN through Muhammad Sadiq Sanjrani, Member (PMIC) Prime Minister Secretariat (Public) (Public Grievances Wing) Islamabad and 5 others----Respondents

Writ Petition No.216 of 2011, decided on 13th March, 2011.

(a) Public functionaries---

----Inaction of---Effect---Nobody could be penalized by inaction of public functionaries, whose primary duty being to protect rights of public and bound to act in quasi judicial manner.

(b) Administration of justice---

----Litigant could not be knocked out on basis of technicalities as duty of court was to do substantial justice and meet ends of justice.

PLD 1961 Lah. 664; PLD 1961 SC 192; 2007 SCMR 1209 and 2009 SCMR 644 ref.

Rafiq R. Sanjrani for Petitioner.

Tariq Mahmood Jahangiri, Dy. A.-G. for Respondents.

2012 C L C 899

[Islamabad]

Before Muhammad Azim Khan Afridi and Riaz Ahmad Khan, JJ

SAIF ULLAH----Appellant

versus

WAQAR-UL-HAQ and 2 others----Respondents

First Appeal from Order No.28 of 2010, decided on 12th December, 2011.

(a) Administration of justice---

----Person or party had a right of hearing in his cause; and orders passed without affording or extending an opportunity of hearing, adversely affecting the interest of such person or party, would tantamount to condemnation of such person or party without hearing.

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

----O. XLI, R.31---Judgment---Requirements of---Provisions of O.XLI, R.31, C.P.C. required of a Judge to give reasons while taking decision---Mere opinion or decision, without reasons, would not qualify as a judgment as contemplated under O.XLI, R.31, C.P.C.---Impugned order was set aside with direction that matter would be decided after affording an opportunity of hearing to both the parties.

Imran Awan v. Ali Zafar 2007 YLR 2265; Ziauddin Siddique v. Mrs. Rana Sultana 1990 CLC 645; Iqbal Ahmad Sabri v. Fayaz Ahmad 2007 CLC 1089; Zulfiqar Ali v. Muhammad. Zikria and others 1998 CLC 900; Noor Ahmad v. Meraj Bibi 1994 CLC 479; Sirbuland v. Allah Loke and others 1996 SCMR 575; Muhammad Yaqoob v. Hameeda Begum and 4 others 2005 CLC 870; Mst. Nusrat Bibi v. Muhammad Ashraf Mehr 2007 YLR 41; Shah Muhammad alias Manna v. State 1990 PCr.LJ 1057; Aga Wazir Abbas v. The State 2003 PCr.LJ 1353; Muhammad Bashir and others v. Sher Muhammad 2008 YLR 147 and Muhammad Ramzan v. Rana Talib Hussain and 6 others 2005 SD 274 ref.

Ch. Mushtaq Hussain for Appellant.

Maqbool Ellahi Malik and Raja Inaam Amin Minhas for Respondent No.1.

Date of hearing: 29th November, 2011.

2012 C L C 939

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Messrs KING CLOTHING----Petitioner

versus

MUHABAT KHAN and others----Respondents

Writ Petition No.259 of 2010, decided on 20th December, 2011.

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

----S. 17--- Constitution of Pakistan Art.199--- Constitutional jurisdiction---Scope---Bona fide personal need of landlord---Ejectment petition of landlord was allowed by Rent Controller and such order was upheld by Appellate Court and concurrent findings of the courts below were assailed by the tenant (petitioner)---Validity---Tenant had moved a civil miscellaneous application before the High Court with the constitutional petition seeking ad-interim injunction, which was granted and the petitioner was directed to deposit up-to-date rent with the Executing Court---Such order of High Court had not been complied with by the tenant in letter and spirit---Tenant had tried his best to linger on proceedings and succeeded in the same and no rent was deposited by the tenant in the Executing Court for almost two years---Contention of tenant that no application was pending in Executing Court was nothing but chicanery---Tenant, in order to show bona fide, was required to seek permission to deposit rent in the court, if any difficulty was ever faced by him--- High Court , in its constitutional jurisdiction was required to observe the demeanour of the parties and to satisfy itself whether any litigant had invoked the jurisdiction of the High Court with clean hands---Court was not to sit as a spectator if any party tried to gain undue advantage---Duty of the court was to provide shield to a victim of such designs---Constitutional jurisdiction of the High Court was always discretionary, and he who seeks equity must come with clean hands---Landlord (respondent) had proved his case on merits---Courts below had appreciated the evidence in its true perspective which did not call for interference---High Court directed tenant to make the outstanding payment of rent to the Deputy Registrar of the High Court---Constitutional petition was dismissed, accordingly.

Javaid Ahmed v. Muhammad Imran Malik PLD 2011 Islamabad 30; M/s Zaki-ud-Din Siddiqui v. ADJ, Islamabad 2011 CLC 652 and Muneer Khan v. Uzma Ufaq 2011 CLC 846 ref.

Muhammad Saee v. Mst. Sharif Elahi and another 2010 SCMR 1358; Tasnim Jalil and others v. Deputy Director, A.N.F. 2010 SCMR 72 and Syed Kamal Shah v. Government of N.-W.F.P 2010 SCMR 1377 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court, in its constitutional jurisdiction was required to observe the demeanor of the parties and to satisfy itself whether any litigant had invoked the jurisdiction of the court with clean hands---Court was not to sit as a spectator if any party tried to gain undue advantage---Duty of the Court was to provide shield to a victim of such designs---Constitutional jurisdiction of High Court was always discretionary, and he who seeks equity must come with clean hands.

Muhammad Saee v. Mst. Sharif Elahi and another 2010 SCMR 1358; Tasnim Jalil and others v. Deputy Director, A.N.F. 2010 SCMR 72 and Syed Kamal Shah v. Government of N.-W.F.P 2010 SCMR 1377 rel.

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

----Art. 133---Cross-examination---If any part of a testimony of a witness remained unchallenged through cross-examination, said part was tantamount to admission.

Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Mst. Sahab Bibi v. Lal 1992 CLC 807; Jan Muhammad v. Mulla Abdul Rehman 1999 CLC 266; Abdul Sattar and others v. Mst. Sardar Begum 2003 CLC 1294; Ali Yousaf v. The State 1999 YLR 2604; Ghulam Rasool and others v. The State 2002 YLR 1996; Muhammad Akram v. Muhammad Rauf 2001 MLD 1277 and Arshad Mehmood Siddiqui v. Muhammad Haroon, 1992 MLD 810 rel.

Abdul Rauf Rohaila for Petitioner.

Khalid Zaman for Respondents Nos.1 to 8.

2012 C L C 1063

[Islamabad]

Before Muhammad Azim Khan Afridi, J

MUHAMMAD KHUSHAL and another----Petitioners

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, C.D.A., Islamabad and 2 others----Respondents

Civil Revision No.676/D of 2009, decided on 13th March, 2012.

Islamabad Displaced Persons Rehabilitation Policy, 1984---

----Cls. 4A & 2(2)---Specific Relief Act (I of 1877) Ss.42 & 55---Suit for declaration and mandatory injunction---Suit of plaintiffs was dismissed concurrently by the courts below---Contention of the plaintiffs was that under the policy of the Capital Development Authority, predecessor-in-interest of the plaintiffs was entitled to a residential plot which was not allotted to him---Validity---Predecessor-in-interest of the plaintiffs was living in a jointly owned house and was also owner of other land acquired by the Capital Development Authority, therefore he could not be termed as a person owning only built-up property in shape of a separate or independent house which would therefore, neither be a "family unit" for the purpose of the Islamabad Displaced Persons Rehabilitation Policy, 1984 nor he would be entitled to claim a plot in view of clause (4A) of the said Policy---Plaintiffs had lodged a claim in addition to the allotment of property to their uncles in lieu of the "family unit" to which the predecessor-in-interest of the petitioners was a member---Revision was dismissed.

2003 CLC 110 and 2002 SCMR 114 rel.

Sh. Muhammad Khizer-ur-Rasheed for Petitioners.

2012 C L C 1088

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Mian MUHAMMAD AJMAL----Petitioner

versus

Syed NAZAR HUSSAIN SHAH BUKHARI (deceased) and 5 others----Respondents

Civil Revision No.1192 of 2010, decided on 22nd March, 2012.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), Ss.2(2), 47, O.XXIII, R.3 & O. XXI, R. 11---Suit for specific performance of sale agreement---Suit property being mortgaged with Bank---Suit for recovery of loan amount by Bank pending against vendor in Banking Court---Compromise between vendor, Bank and vendee recorded by Banking Court that amount claimed by Bank from vendor would be deemed to be a decree against vendee and payable by him, whereas vendor would admit vendee's claim in his present suit---Statement of vendor in present suit for passing decree therein in favour of vendee in terms of such compromise---Compromise decree passed by civil court directed Capital Development Authority (CDA) to substitute in its record name of vendee as allottee of suit property in place of vendor---­Execution of compromise decree---Objection petition by Bank that compromise decree was not executable without payment of its loan amount---Order of Executing Court dismissing objection petition upheld by Appellate Court---Validity---­Vendee himself had agreed to passing of decree in terms of such compromise and not beyond that---Compromise decree passed by civil court was in continuity of such compromise arrived at between parties before Banking Court---Such compromise could not be excluded from compromise decree---Vendee could not be permitted to pick and choose his favourable parts of such compromise without obeying compromise decree---Execution of compromise decree would be illegal without incorporating therein all terms of such compromise---Executing Court was bound to determine all questions arising between parties---High Court set aside impugned orders and remanded case to civil court for deciding afresh objection petition filed under S.47, C.P.C.

1988 CLC 2236; 1990 CLC 11; 2004 CLC 1979; 1994 SCMR 22; 2007 SCMR 368; 2007 SCMR 236; 2006 SCMR 1304; 2008 YLR 867; 2008 YLR 875; 2006 YLR 476; 2005 YLR 1324; 2005 YLR 2286; 2005 YLR 2752; 2005 YLR 2529; 2005 YLR 3084; 2005 CLC 368; PLD 2004 Lah. 488 and 2004 CLC 441 ref.

M. Mahboob Alam for Petitioner.

Muhammad Safeer Mughal and Raja Abdul Qayyum for Respondent.

2012 C L C 1129

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

NUSRAT BATOOL----Petitioner

versus

D.G. N.A.R.C. and 2 others----Respondents

Civil Revision No.22 of 2012, decided on 20th March, 2012.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 10 & 11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Suit of plaintiff was disposed of by Trial Court with the observation that the plaintiff was entitled to retain possession of official house for a period of two months only---Said order was assailed by plaintiff on the ground that same had been passed without touching the merits of the case---Validity---Civil Procedure Code, 1908 had a prescribed procedure for disposal of suit by either dismissing the same after final adjudication or the suit could be rejected under Order VII, Rule 11 of the C.P.C.; and disposal of the suit with only an observation (as in the present case) finds no mention in the law---Such disposal of the suit with an observation; was an order without jurisdiction and without proper application of judicial mind---Trial Court was under duty to examine the plaint for the purpose of determining whether the plaint should be returned or rejected under Order VII, Rr.10 & 11 of the C.P.C.---Order for rejection of a plaint should be speaking order and a civil suit could not be disposed of by writing a few lines only---Orders of courts below being in violation of the law, High Court set aside impugned orders---Revision was allowed, accordingly.

2012 CLC 229 and 2012 CLC 246 ref.

2003 YLR 2224; 2000 CLC 1363 and 2003 MLD 109 rel.

Ali Murad Baloch for Petitioner.

2012 C L C 1209

[Islamabad]

Before Muhammad Azim Khan Afridi, J

SHAZIA MANZOOR----Petitioner

Versus

ESTATE OFFICE, through Estate Officer, Islamabad and 3 others----Respondents

Civil Revision No.46 of 2011, decided on 6th March, 2012.

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

---Ss. 42, 54 & 55---Suit for declaration, permanent and mandatory injunction---Dispute over allotment of an official house---Suit filed without having possession of disputed house---Competency---Plaintiff was out of possession of the disputed house and her prayer in the suit for declaration and injunction was to the effect that she was in lawful possession of the house and was entitled to allotment of the same---Section 42 of the Specific Relief Act. 1872, provided that a person entitled to any legal character or to any right as to any property might institute a suit against any person denying or interested to deny his/her title to such character or right and the court might grant such declaration if such person was found entitled to the same--- Essential requirement and pre-requisite/criterion for declaration sought by the plaintiff was the availability of possession over the house, which requirement was missing on facts, and in such an eventuality no assertion, contention or action for declaration was maintainable---Prayer of plaintiff for mandatory and perpetual injunction had also become redundant as same could not be pleaded without possession---Plaintiff had vacated the disputed house under an order of competent authority after which her suit was no longer competent and courts below had correctly categorized the suit as infructuous---No illegality or material irregularity had been committed or pointed out in the impugned orders of courts below---Revision petition of plaintiff was dismissed, in circumstances.

Umer Verdag for Petitioner.

Date of hearing: 6th March, 2012.

JUDGEMENT

MUHAMMAD AZIM KHAN AFRIDI, J.--- Learned counsel for the petitioner argued that Quarter No.53/6-D, Street No.39, F-6/1, Islamabad was allotted to Manzoor-ul-Haq and, thereafter to his wife being teacher in a Government school who retired on 20-9-2004.

1. That the petitioner, being Trained Under Graduate Teacher (TUGT) in BPS-14 and serving in educational department of the Federal Directorate of Education was appointed on contract, period of which was extended from time to time and, vide order dated 17th September, 2008, her services were regularized w.e.f. 1-7-2008. That the mother of the petitioner made numerous correspondence for the allotment of the said quarter to the petitioner but the same remained inactioned and subsequently, vide notice dated 29-11-2006, vacation of the said quarter was asked for within 24 hours which necessitated the institution of a civil suit for declaration, permanent and mandatory injunction. That temporary injunction was granted by the Court of learned Civil Judge and appeal against the same was dismissed vide order dated 13-7-2007 by the learned Additional District Judge, Islamabad. However, the said order was set aside by this Court vide order dated 17-6-2009. That the august Supreme Court of Pakistan vide orders dated 19-6-2009 directed that no adverse action should be taken against the petitioner but in spite of the same, the petitioner was forcibly evicted.

2. That the august Supreme Court of Pakistan observed that ante status quo cannot be granted and that the suit be expeditiously disposed of. That the learned trial Court dismissed the suit of the petitioner without affording an opportunity of hearing on the plea that the petitioner has been dispossessd from disputed quarter and hence, the suit has become infructuous. Special costs to the tune of Rs.15,000/- were also imposed against the petitioner and deduction of the same was ordered from the pay/G.P. Fund of the petitioner. That the said judgment was impugned before the learned appellate Court who partially accepted the appeal of the petitioner to the extent of setting aside costs of Rs.15,000/- and deduction thereof from the pay of the petitioner. However, remaining part of the appeal was dismissed vide impugned judgment and order dated 27-1-2011.

3. Learned counsel further argued that the learned trial Court as well as learned appellate Court had failed to appreciate the facts of the case as ouster of the petitioner from the said quarter had not justified dismissal of the suit of the petitioner as the same was also containing prayer of declaration and mandatory injunction.

4. Arguments of the learned counsel for the petitioner heard and record perused.

5. The august Supreme Court of Pakistan vide order dated 19-6-2009 directed that the matter pertains to ejectment of widow lady, therefore, till next date of hearing no adverse action should be taken against her. The CPLA was adjourned for further hearing to 22-6-2009. On the said date, the august Supreme Court of Pakistan had observed that it would not be appropriate to pass an order status quo ante as the possession was taken over from the petitioner on the orders passed by the competent authority. Directions for expeditious disposal of the matter were issued by the august Supreme Court of Pakistan while dismissing the petition for leave to appeal. Since the possession of the said quarter was not with the petitioner at the time of passing of the restraint order by the august Supreme Court of Pakistan as evident from its order dated 22-6-2009, as such the petitioner cannot justifiably assert that she was forcibly dispossessed in spite of restraint order passed in her favour by the august Supreme Court of Pakistan.

6. Petitioner is admittedly out of possession of the said quarter. Her prayer in suit for declaration and injunction was to the effect that being in lawful possession of the said quarter she was entitled to the allotment of the same and that the demand of the respondents for vacation of the said quarter was unlawful, illegal and without lawful authority.

7. According to section 42 of Specific Relief Act, 1877, a 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/her title to such character or right and the Court may grant such declaration if such a person is found entitled to the same. Pre-requisite for declaration sought by the petitioner would be availability of possession of the petitioner over the property which requirement and criterion, though essential. is missing and in such eventuality no assertion, contention or action for declaration would be maintainable.

8. Similarly the prayer of mandatory injunction to direct respondent No.1 to allot the said quarter to her being in lawful possession of the same has also become redundant as mandatory injunction for allotment of the quarter on the basis of lawful possession cannot be pleaded without possession. Same would be the case for issuance of perpetual injunction seeking restraint order for debarring the respondents from interfering in such lawful possession.

2012 C L C 1257

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

NADEEM ASGHAR----Petitioner

Versus

Dr. Sheikh SIRAJ-UL-HAQUE and 4 others----Respondents

Writ Petition No.1724 of 2009, decided on 21st March, 2012.

Islamabad Rent Restriction Ordinance (IV of 2001)-

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need---Proof---Tenant, rights of---Ejectment application filed by landlord was allowed by Rent Controller and eviction order was maintained by Lower Appellate Court---Validity---If averments in ejectment application were not shaken or disproved in rebuttal during cross-examination, the same was sufficient to prove that need was bona fide and Courts did not question such need---Landlord had prerogative to get his premises vacated for his personal need and petitioner/landlord who was doctor intended to get his premises vacated for construction of hospital for his own and his daughter's use, who was also a doctor, therefore, landlord could not be deprived of his such right---If it would appear that tenant was ejected from rented premises or building, or premises was not being used for the purpose, it was got vacated in any manner, then tenant would be re-inducted in the premises on making an application to Rent Controller under section 17(6) of Islamabad Rent Restriction Ordinance, 2001---High Court in exercise of Constitutional jurisdiction declined to interfere in concurrent orders passed by two courts below---Petition was dismissed in circumstances.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Allies Book Corporation through L.Rs v. Sultan Ahmad and others 2006 SCMR 152; Mst. Ashraf Alia v. Dr. Asif Majeed 1991 CLC 53; Sohail Ahmad Bajwa through Special Attorney v. Muhammad Riaz 2005 MLD 1184; Messrs Captain PQ Chemical Industries (Pvt.) Ltd v. Mrs. Romana Amjad and another 2010 SCMR 837; Major (Rtd.) Ahsan-ul-Haque v. Muhammad Ejaz 2011 SCMR 487; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Mehmood Khan v. Muhammad Ibrahim and another 2011 CLC 1606 and Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others 2006 SCMR 145 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court for Petitioner.

Syed Ishtiaq Haider, Advocate Supreme Court for Respondents Nos.1 to 3.

Date of hearing: 15th March, 2012.

2012 C L C 1308

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Homoeopathic Dr. JAMIL AKHTAR GHAURI and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petitions Nos.817 to 820 of 2012, decided on 29th March, 2012.

Unani, Ayurvedic and Homoeopathic Practitioners Act (II of 1965)---

----Ss. 3, 5 & 13---General Clauses Act (X of 1897), Ss.20 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Locus poenitentiae, principle of---Applicability---National Council for Homoeopathic---Nomination of members, recalling of---Petitioners were nominated as members of National Council for Homoeopathic and when they went to attend the meeting of the Council, they were informed that they had been replaced by respondents---Validity---Mere issuance or communication of order, notification or bye-laws as provided by sections 20 and 21 of General Clauses Act, 1897, did not mean that it had taken final effect---Only the doctrine of "locus poenitentiae" would apply, when such order or notification issued or communicated to the party concerned, had fully acted upon, then the authority who issued it, could not rescind or cancel the same---Petitioners were nominated in view of section 5 (a) and (d) of Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965, by concerned authority and the same was merely withdrawn without its implementation---Petitioners never commenced their duties in pursuance to the notification and only in first meeting, when petitioners were required to appear, before that, the notification was rescinded by the Authority---Nomination was the prerogative of Authority coupled with the fact that notification in respect of nomination of petitioners had not taken effect, therefore, the same could not be termed as "acted upon"---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Petition was dismissed in circumstances.

Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443; Ch. Khushi Muhammad v. Government of Punjab and another 1981 CLC 392; Syed Muneeb Nazir Shah v. Azad Kashmir Government and others PLD 1985 (AJ&K) 17; Rehan Hassan Naqvi v. Pakistan Defence Officers Housing Authority through Secretary 2000 CLC 1535; Mahmooda Begum v. District Magistrate, Sialkot and 2 others PLD 1991 Lah. 230 and Homoeopathic Doctor Muhammad Zahir v. Federation of Pakistan through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2011 CLC 427 distinguished.

Amir Abdullah Abbasi for Petitioners.

2012 C L C 1973

[Islamabad]

Before Muhammad Azim Khan Afridi, J

MUHAMMAD JAMEEL----Petitioner

Versus

NASEER AHMAD BHUTTA and 2 others----Respondents

Writ Petition No.1484 of 2012, decided on 13th June, 2012.

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

----Ss. 17, 24 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application--- "Service effected"-Scope---Ex parte ejectment order for non-appearance, setting aside of---Application of tenant for setting aside the ex parte order had concurrently been dismissed by the Rent Controller and Appellate Court---Validity---No evidence was on record to show that the tenant was either served or having knowledge of the ejectment petition filed' against him-Daily newspaper in which alleged notice was published, was a publication of limited circulation, and not normally read and it seemed that the publication was ordered and aimed at accomplishing the formality of effecting service---Such service could not be termed as "service effected" as required under S.25 of Islamabad Rent Restriction Ordinance, 2001---Proceeflings in the case, held thereafter, could not be considered to have been held after affording opportunity of hearing to the tenant, in circumstances---Section 24 of Islamabad Rent Restriction Ordinance, 2001, had explicately provided that no order in respect of increase of rent; or interference with the amenities enjoyed by the tenant; or order for carrying out necessary repairs; or eviction of tenant, were to be made by the Rent Controller, except after holding an inquiry; and affording to the parties an opportunity of hearing---Without effecting service .as required, order passed by the Rent Controller for ejectment of tenant, would be violative of the provisions of S.24 of Islamabad Rent Restriction Ordinance, 2001---Tenant having not been served by the Rent Controller in the prescribed manners, ex parte order of ejectment passed against the tenant without affording reasonable opportunity of hearing to the tenant would not sustain---Constitutional petition was accepted subject to payment of costs with the direction to the Rent Controller to expeditiously dispose of the ejectment petition after affording opportunity of hearing to the tenant in the prescribed manner, in circumstances.

PLD 1975 Quetta 39; PLD 1964 (W.P.) Lah. 536; PLD 1968 Kar. 589; PLD 1978 Kar. 238; PLD 1979 Lah. 132 and 1995 CLC 315 rel.

2012 SCMR 377 ref.

Gul Nawaz Ahmed Abbasi for Petitioner.

Ch. Muhammad Javed Gujjar for Respondents.

Date of hearing: 13th June, 2012.

2012 C L C 1998

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Syed KAMRAN HUSSAIN----Petitioner

Versus

P.T. C.L. and another----Respondents

Civil Revision No.106 of 2011, decided on 30th May, 2012.

Civil Procedure Code (V of 1908)--

----0. VII, R.11 & 0.XXXIX, Rr.1 & 2---Specific Relief Act (I of '1877), Ss.42, 54 & 55 ---Suit for declaration and injunction---Application for grant of temporary injunction---Rejection of plaint by Trial Court while hearing such application relying upon documents produced in support of written statement by defendant---Appellate Court in appeal upheld such order of Trial Court---Validity---Trial Court had not considered questions as to whether relief claimed and statement made in plaint was barred by law---Trial Court could consider such questions either itself or on application under O. VII, R.11, C.P.C.---Rejection of plaint would not be legal while hearing application under O. XXXIX, Rr. 1 & 2, C.P.C.-High Court set aside impugned orders and remanded case to Trial Court for its afresh scrutiny.

2010 YLR 1725 ref.

1987 MLD 511; 1995 MLD 332; 2003 PLC (C.S.) 56; 2008 YLR 1405 and 2005 CLC 1740 rel.

Sheikh Khizer-ur-Rasheed for Petitioner. Khurram Shahzad Chugtai for Respondent No.1.

Nazeer Abbasi Standing Counsel, Iftikhar Ahmed (Allottee) and Qaiser Mehmood, Joint Estate Officer.

Date of hearing: 22nd May, 2012.

2012 C L C 4

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABDUL RAZZAK----Petitioner

Versus

LAL BUX and another----Respondents

Constitutional Petition No.D-480 of 2006, decided on 21st September, 2011.

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

---S. 47---Constitution of Pakistan, Art.199---Constitutional petition---Execution of decree---Decree attaining finality---Executing Court, powers of---Grievance of decree holder was that decree attained finality but Lower Appellate Court in exercise of revisional jurisdiction, set aside order of execution of decree and dismissed execution application---Validity---Provision of section 47 did not bar remedy but only regulated forum for enforcement of rights relating to execution, discharge or satisfaction of decree---Executing Court was only empowered to exercise its jurisdiction on the matters concerned with execution, discharge or satisfaction of an existing decree between the same parties---Function of Executing Court was to execute decree as it was---Executing Court could neither go behind it nor could reopen matters which had been heard and decided in proceedings in which decree was passed---Outcome and end result of the order passed by Lower Appellate Court tantamount to setting aside judgment and decree for which an appropriate remedy was available to judgment-debtor to file an appeal which was his statutory right but such vested right was not exercised or availed---Instead of challenging validity of judgment and decree, judgment-debtor only filed revision application against the order of Executing Court which was not a rational or appropriate remedy---High Court, in exercise of Constitutional jurisdiction set aside the order passed by Lower Appellate Court---Petition was allowed in circumstances.

Muhammad Tariq Khan v. Khuwaja Muhammad Javad Asami 2007 SCMR 818 and Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202 rel.

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

----Ss. 96 & 115---"Appellate" and "revisional" jurisdictions---Distinguished---Powers conferred upon revisional court under S.115, C.P.C. are confined to conditions and eventualities where it appears that subordinate court has exercised jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity---If court has jurisdiction, it has jurisdiction to decide one way or the other and erroneous conclusion of law and fact can be corrected in appeal but revision is not competent---Provision of S.115, C.P.C. is applied only to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction but it cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of court---Revision and appeal are two different fields, appeal is the continuation of original suit and appellate court has got ample power to thrash out the entire evidence and scrutinize available documents in the light of arguments advanced by respective parties---On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in impugned judgment---Scope of revision under section 115, C.P.C. is limited.

GuI Rehman v. Gul Nawaz Khan 2009 SCMR 589 rel.

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

----S. 115---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Revisional order---Scope---High Court in its Constitutional jurisdiction does not normally exercise its powers to interfere with revisional order but such rule is not absolute and is subject to exceptions---If order passed in revisional jurisdiction is based on gross misreading or non-reading of evidence and reasons given are absolutely perverse, not supported by law or evidence or material available on record, such order cannot be merely termed as erroneous on facts or law rather such order is an order without lawful authority---Judicial forum in dispensation of justice has no authority to decide rights of parties according to its whims, caprice or imagination---In performing essential and primary obligation of doing justice, the court of law is supposed to and duty bound to read, consider and conceive the evidence of case available on record accurately---Court has to apply correct law and to justly administer the rights and remedies of citizens which duty is fundamental to and enshrined in the concept of administration of justice.

Ghulam Shabbir Dayo for Petitioner.

Respondent in person.

Date of hearing: 10th August, 2011.

2012 C L C 16

[Sindh]

Before Faisal Arab and Imam Bux Baloch, JJ

SHABBIR HUSSAIN----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), LARKANA and 5 others----Respondents

Constitution Petitions Numbers D-850 of 2010 along with Constitution Petitions Nos.D-255, 260, 262, 263, 264, 265, 266, 296, 366, 389, 390, 391, 392, 393, 479, 511, 644, 687, 715, 734, 735, 736, 766, 795, 804, 815, 816, 818, 819, 846, 847, 848, 849, 851, 852, 858, 861, 862, 863, 864, 865, 866, 867, 873, 880, 881, 882, 883, 884, 885, 886, 901, 902, 903, 913, 915, 918, 919, 921, 922, 923, 924, 925, 926, 927, 932, 936, 940, 941, 942, 943, 944, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 965, 973, 974, 975, 976, 977, 978, 979, 984, 986, 992, 993, 995, 1007, 1009, 1010, 1012, 1015, 1018, 1021, 1022, 1028, 1030, 1078, 1081, 1089, 1096, 1107, 1111, 1125, 1129, 1139, 1148, 1157, 1195, 1217, 1224, 1262, 1283, 1301, 1302 1303, 1343, 1365, 1360, 1383, 1444, 1445, 1463, 1464, 1465, 1466, 1467, 1469, 1470, 1471, 1472, 1473, 1474, 1475, 1485, 1569, 1573, 1607, 1614, 1640, 1653, 1764, 1765, 1768, 1844, 1853, 1868, 1889, 1926, 1939, 1950, 2009, 2013, 2050, 2078, 2116, 2156, 2288, 2209 of 2010 and Constitutional Petitions Nos.D-36, 130, 192, 240, 242, 246, 263, 265, 272, 290, 314, 355, 401, 522, 550, 599, 609, 615, 632, 645, 647, 663, 664, 676, 700, 701, 725, 767, 801, 813, 825, 885, 906, 922, 936, 944, 954, 971, 1025, 1042, 1063, 1079, 1124, 1135, 1143, 1154, 1176, 1184, 1186, 1217, 1241, 1242, 1243, 1262, 1263, 1265, 1266, 1268, 1283, 1284, 1285, 1288, 1294, 1295, 1296, 1300, 1302, 1303, 1307, 1311, 1321, 1322, 1323, 1324, 1334, 1335, 1339, 1340, 1345, 1346, 1347, 1348, 1349, 1350, 1351, 1355, 1356, 1358, 1361, 1362, 1364, 1372, 1374, 1376, 1377, 1379, 1380, 1390, 1392, 1396, 1804 and 1805 of 2011, decided on 8th July, 2011.

(a) Constitution of Pakistan---

-----Art. 199---Constitutional petition---Civil service---Recruitment policy---Implementation---Petitioners were unsuccessful candidates who applied for the posts in question but were not appointed---Plea raised by petitioners was that criteria for selection, which was advertised in newspapers was not followed---Validity---Employer had every right to fix minimum criteria for selecting an employee---If selection process, apart from award of marks in written test, had also given certain weight to a candidate's academic and professional qualifications as well as the place of domicile then the selection process could not be said to be unfair merely because in advertisement the entire selection criteria was not disclosed---As long as process of selection was transparent, fair and based on reasonable classification, the court could not compel an employer not to apply its recruitment policy merely because it was not published in its entirety in advertisement through which applications were invited---Criteria for selection and appointment provided under Recruitment policy was fair, just and reasonable---Any selection or appointment made in violation of the criteria laid down in the policy or findings given in the decision were declared by High Court to be unlawful and of no legal effect---High court directed concerned District Recruitment Committees to strictly follow the procedure laid down in Recruitment Policy as interpreted by High Court and prepare revised merit lists within sixty days---Petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 19-A---Freedom of information---Scope---Every citizen of Pakistan has right to access to information in all matters of public importance.

Ghulam Dastagir Shahani, Rafiq Ahmed Abro, Asif Ali Abdul Razak Soomro, Habibullah Ghori, Inayatullah Morio for Petitioner.

The counsel for rest of the petitioners not named have adopted the arguments of above mentioned Advocates.

Abdul Hamid Bhurgri, Addl. A.-G., assisted by Mr. Ameer Ahmed Narejo, State Counsel.

Date of hearing: 2nd June, 2011.

2012 C L C 29

[Sindh]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

SULTAN AHMAD SIDDIQUI and 12 others----Petitioners

Versus

PROVINCE OF SINDH through, Chief Secretary, Government of Sindh and 3 others----Respondents

Constitutional Petition No.D-2325 of 2009, decided on 27th September, 2011.

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

----Preamble---Transfer of property---Nature of transaction---Principle---Where statute requires that particular kind of transfer should be effected by particular kind of instrument, such provision must be enforced with stringency---Court must give effect to the Act and must judge the particular transaction according to its provisions.

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

---- S. 105--- "Lease"--- Essential elements.

Following are the essential elements constituting a lease:

(a) right must be one as to immovable property;

(b) right must be that of enjoyment of immovable property;

(c) there must be a transfer of such right;

(d) right of transfer is an interest in property;

(e) transfer must be made for a certain time express or implied, or in perpetuity;

(f) transfer must be one for consideration; and

(g) consideration must be of particular kind namely, premium or rent, as defined by section either or both of them.

Essential feature of lease is transfer of interest to enjoy property with exclusive possession given to transferee of the property and conveyed in consideration of price paid or promised etc.

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

----S. 105----Finance Act (V of 1989), S.7(2)(CA)(a)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Lease deed---Capital Value Tax, levy of---Petitioners assailed levy of Capital Value Tax on their plot at the rate of Rs.50/- per square yard of the landed area, on sub-lease deed executed in their favour---Validity---For all intents and purposes, consideration for granting lease was a price paid which was subsequently defined and called premium, therefore, for effecting transaction of lease of immovable property, only three indispensable components were required to be fulfilled, i.e. the "lessor", "lessee" and consideration was the "price paid" which was called premium---In order to decipher document of lease, it was essential to perceive what consideration had been made known in the document of lease itself including its tenure---Sub-lease in question granted in favour of petitioners was for a period of 99 years, which was in fact a lease in perpetuity and lessor had clearly incorporated consideration which was occupancy value and or price paid by sub-lessee to lessor before execution of sub-lease in their favour---Document of lease in question endowed with and imparted record on which petitioners had already paid Capital Value Tax at the rate of 2%, therefore, petitioners were not accountable to pay Capital Value Tax on their plot at the rate of Rs.50/- per square yard of the landed area---Demand raised by authorities for payment of additional amount on account of Capital Value Tax was declared to have been raised and issued without any lawful authority and it had no legal effect---Petition was allowed in circumstances.

2010 PTD (Trib.) 1046 rel.

Khaleeq Ahmed for Petitioners.

Kafil Ahmed Abbasi for Respondents.

Umar Hayat Sandhu, Dy. Attorney-General.

Saifullah, Asstt. A.-G., Sindh.

Dates of hearing: 17th January, and 19th September, 2011.

2012 C L C 62

[Sindh]

Before Salman Hamid, J

SAUDI PAK INDUSTRIAL AND AGRICULTURAL INVESTMENT COMPANY (PVT.) LIMITED----Plaintiff

Versus

NATIONAL BANK OF PAKISTAN----Defendant

C.M.As. Nos.2808 of 2005 and 3014 of 2004 in Suit No.B-40 of 2000, decided on 31st May, 2011.

Civil Procedure Code (V of 1908)---

----O. XII, R.6---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9---Recovery of bank loan---Judgment on admission---Principle---Banking Court granted leave to defend the suit and framed issues---Plaintiff sought passing of judgment under O.XII, R.6 C.P.C. on the ground that defendant had allegedly made admissions with regard to claim of plaintiff---Validity---Issues were framed with regard to liability to pay under guarantees and circumstances under which guarantees had been executed, it could not be said that it was a case of admission and the case could not be decided on the decision of two issues referred by plaintiff---Dispute between the parties could not be decided without first resorting to leading of evidence on all issues including those two which were subject-matter of application under O.XII, R.6, C.P.C.---Application was dismissed in circumstances.

Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. 1996 SCMR 696; Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; G.R. Syed v. Muhammad Afzal 2007 SCMR 433 and State Life Insurance Corporation of Pakistan v. Wali Muhammad Akbar Ji and others 1985 CLC 2879 distinguished.

Izzat Khan and another v. Ramzan Khan and others 1993 MLD 1287; Muhammad Zaki and another v. Muhammad Taqi PLD 1995 Kar. 416 and Gerry's International (Pvt.) Limited through Managing Director v. Qatar Airways through Area Manager PLD 2003 Kar. 253 rel.

Mansoor A. Shaikh for Plaintiff.

Zubair Qureshy for Defendant.

2012 C L C 72

[Sindh]

Before Salman Hamid, J

MANSOOR AHMED MUGHAL----Plaintiff

Versus

NOOR QADIR TAWAQAL and 3 others----Defendants

Suit No.833 of 2006, decided on 11th May, 2011.

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

----O. XII, R.6 & O.XXIX, R.1---Recovery of money---Admissions---Plaintiff sought recovery of money against company and its chief executive---Validity---Defendant-company being a juristic person was a legal entity, separate from its shareholders, the admission of liability by defendant/chief executive of the company could not be treated as admission of liability by defendant-company---Defendant-company despite filing of written statement, chose not to lead any evidence, challenging the claim of plaintiff against it---Nothing on record had been brought by defendant-company not to accept the claim of plaintiff against it---Liability to pay was not denied by defendant company on the one hand and liability to pay was admitted by defendant / chief executive, thus suit was decreed in terms that both the defendants would pay to plaintiff jointly and severally the amount claimed, with markup at latest prevailing bank rate---Suit was decreed accordingly.

(b) Words and phrases---

----"Jointly and severally"---Connotation---Jointly and severally means that when two or more members of a company declare themselves jointly and severally bound to render themselves liable to a joint action against all as well as to a separate action against each in case conditions of bond are not complied with.

Raja Qureshi for Plaintiff.

Shafiq Ahmed for Defendants Nos.1 and 2.

Nemo for Defendants Nos.3 and 4.

Date of hearing: 3rd May, 2011.

2012 C L C 88

[Sindh]

Before Gulzar Ahmad and Salman Hamid, JJ

MUHAMMAD ABU BAKAR----Petitioner

Versus

DEPUTY DIRECTOR/SENIOR EXCISE AND TAXATION OFFICER, (EXCISE), KARACHI through Secretary to Government of Sindh, Excise and Taxation and 2 others----Respondents

C.P. No.D-2597 of 2011, decided on 13th October, 2011.

Sindh Excise Manual, Volume-I---

----Paras. 100 & 282-A(19)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.17 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Liquor licence---Change of premises---Petitioners sought restraining order against authorities for issuance of liquor licence to respondent on the ground that it was against the will and wishes of petitioner and of the people of locality---Validity---Requirement of paragraphs 100 and 282-A(19) of Sindh Excise Manual Volume-I, were complied with; there was no allegation that terms and conditions of the licence were violated by respondent---Mere allegation of petitioner which upon rebuttal were not denied must not come into the way of respondent in pursuing his business under the licence---Only event where business of liquor could be prevented was when the licencee had violated the provisions of licence and fell within the mischief of Art.19 of Prohibition (Enforcement of Hadd) Order, 1979---Respondent was not found violating any provision of Constitution and/or provisions of Prohibition (Enforcement of Hadd) Order, 1979, and such violations were not present in the matter and the licence was subsisting and was issued after overcoming rigours thereof---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

PLD 1981 FSC 245 and 1988 SCMR 1417 ref.

Naleymitho alias Muhammad Ishaque for Petitioner.

Jhamat Jethanad for Respondent No.2.

Adnan Karim, A.A.-G. for Respondents Nos.1 and 3.

Khursheed Javed for Contemnor.

Date of hearing: 5th October, 2011.

2012 C L C 101

[Sindh]

Before Aqeel Ahmed Abbasi and Salman Hamid, JJ

MUHAMMAD KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Communication, Islamabad and 4 others----Respondents

Constitutional Petition No.D-402 of 2010 and M.As. Nos.6473, 6479 and 922 of 2010, decided on 28th April, 2011.

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

----S. 3(f)---"Public purpose"---Scope---Public purpose is always to be deciphered according to requirements of a given acquisition and it cannot be unyielding---Public purpose depends upon the facts and circumstances of each case, as per the need of the communal.

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

----Ss. 4 & 6(3)---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Public purpose---Petitioner assailed diverting of road from previous position to new position and sought that land of respondents be not acquired for construction of road on new position---Validity---Declaration of public purpose could not be challenged in court, which was conclusive---Whether a purpose amounted to public purpose, entirely rested on the decision of government and its satisfaction to that effect---Such decision was not questionable, except on the ground that same was mala fide; was fraud on the statute and was an outcome of colourable exercise of power---Concern of an individual could not be paramount to the interest of general public and therefore, interest of general public should reign over the interest of an individual---Land in question was acquired for public purpose and that germane notification under section 4 of Land Acquisition Act, 1894, had been issued when the petition was still pending, to which no objections were preferred by petitioner---Notification issued under section 4 of Land Acquisition Act, 1894, would take its own course and the petition had lost its efficacy on such ground---Petitioner expressed his grievance to the extent of diversion of highway from originally envisaged position and therefore, it could not be allowed and land of petitioner be not acquired---Design of highway had already been changed for public purpose and their interest to which petitioner could not point out any mala fide or abuse of process of law on the part of public functionaries---High Court, in exercise of Constitutional jurisdiction, declined to interfere in the decision taken by authorities with regard to construction of highway---Petition was dismissed in circumstances.

Athar Abbas Solangi for Petitioner.

Khalid Iqbal Memon for Respondents Nos.1 to 3/NHA.

Muhammad Ismail Bhutto, D.A.-G.

Abdul Hamid Bhurgri, Addl. A.-G.

2012 C L C 117

[Sindh]

Before Mushir Alam, C.J. and Aqeel Ahmed Abbasi, J

Messrs SUPER DRIVE-IN-LTD. Through Managing Director and others----Petitioners

Versus

PROVINCE OF SINDH through Member (L.U.) and others----Respondents

Constitutional Petitions Nos.D-3078 of 1992 and D-230 of 1993, decided on 19th September, 2011.

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

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Breach of conditions---Penalty, imposition of---'Show-cause notice' and 'notice of attendance'---Distinction---Public functionaries---Duties of---Grievance of petitioners was that their lease was terminated without fulfilling the mandatory requirement of statutory notice to be issued under S.24 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Before passing any order of cancellation, imposing penalty or resumption of tenancy of land, show-cause notice was required to be issued to lessee requiring him to rectify breach within a reasonable time, which should not be less than one month to be stated in the notice---In spite of remand of matter by Board of Revenue, Deputy Commissioner did not issue any show-cause notice in terms of section 24 of Colonization of Government Lands (Punjab) Act, 1912, whereas only a notice of hearing was issued which was not proper compliance of provisions of S.24 of Colonization of Government Lands (Punjab) Act, 1912---Revenue Authorities did not conduct themselves fairly, honestly and in a transparent manner, which was required from any public functionary, while discharging their public functions---Orders passed by revenue authorities were not sustainable in law and facts and the same were set aside and matter was remanded to concerned authority---High Court directed the concerned authority holding charge over subject-matter to provide opportunity to petitioners in terms of S.24 of Colonization of Government Lands (Punjab) Act, 1912, and after issuing notice to all concerned, to pass appropriate orders strictly in accordance with law---Petition was allowed accordingly.

The Horticultural Society of Pakistan and another v. Province of Sindh and others 2005 CLC 1877; Shah Muhammad v. Administrator 1993 CLC 902 and Abdul Haque Indhar and others v. Province of Sindh 2000 SCMR 907 rel.

Waryam v. Province of Punjab 2006 MLD 1290; Muhammad Khawaja Hassan v. Karachi Development Authority 1991 CLC 436; Sindh Industrial Trading Estate Ltd. v. Kemia Industries Ltd.1999 CLC 1076 and Abdul Haq and others v. Province of Sindh PLD 2000 Kar. 224 ref.

Mushtaq A. Memon and Shahid Ali Ansari for Petitioners (in C.P. No.D-3078 of 1992).

Mian Khan Malik for Petitioner (in C.P. No.D-230 of 1993).

Sher Muhammad K. Sheikh and Haleema Khan, A.A.-Gs. for Respondent No.1.

Munir-ur-Rehman for Respondent No.4.

Mirza Adil M. Baig for Applicant/Intervenor.

Date of hearing: 22nd August, 2011.

2012 C L C 131

[Sindh]

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

BROOKES PHARMACEUTICAL LABORATORIES (PAKISTAN) LTD., KARACHI through Authorized Director----Petitioner

Versus

KARACHI BUILDINGS CONTROL AUTHORITY (KBCA) through Chief Controller and 5 others----Respondents

Constitutional Petition No.D-513 of 2010, decided on 6th October, 2011.

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

----S. 6(3)---Constitution of Pakistan, Art.199---Constitutional petition---Building, use of---Grievance of petitioner was that a residential building in residential area was being used by government functionaries for commercial purposes---Validity---Subject property was situated in purely residential area and building plan was also approved for residential purpose---Property in question was described in lease and tenancy agreement as residential property---High Court directed the authorities to immediately take action against use of subject property for a purpose other than residential purpose---Petition was allowed accordingly.

(b) Constitution of Pakistan---

----Arts. 5 & 199---Constitutional petition---Loyalty to State and obedience to Constitution and law---Applicability---Duty of Court---Provision of Art. 5 of the Constitution mandates and bound-down unequivocally all and sundry to obey Constitution and law---Public functionaries who are custodians of public right and property are also duty bound to respect, obey and follow the mandate of Constitution and law---If anyone including any public functionary more particularly, which is responsible to stamp out crime and wrong from the society transgress their limits and or are found to be in breach of their duty, it is the duty of Court of law to discipline such erring functionary and remedy the wrong by issuing appropriate writ.

(c) Constitution of Pakistan---

----Art. 5---Loyalty of State and obedience to Constitution and law---Every person and authorities alike, howhighsoever, are mandated by Constitution to perform their duties and discharge their function within the limits prescribed by law, respect and obey the Constitution and law in letter and spirit, it is only then anarchy, chaos and disorder in the society can be eliminated.

Khalid Javed and Malik Muhammad Asghar for Petitioner.

Khursheed Javed for Respondent No.1.

Muhammad Ishaque Memon for Respondents Nos.5 and 6.

Nemo for Respondents Nos.2, 3 and 4.

2012 C L C 143

[Sindh]

Before Muhammad Tasnim, J

Syed ABID ALI----Petitioner

Versus

GHULAM MOINUDDIN KHAN and 2 others----Respondents

Constitutional Petition No.S-650 of 2010, decided on 23rd June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Findings of fact---Different view---Interference by High Court---Principles---Findings on facts recorded by competent tribunal can be interfered with by High Court in exercise of Constitutional jurisdiction, if the same was based on no evidence or was recorded by ignorance of material evidence on record---Findings of facts cannot be interfered with by High Court in its Constitutional jurisdiction merely on the ground that different view on the basis of the same evidence was possible---If any misreading or non-reading is noted which has caused serious prejudice to a particular party, in that event jurisdiction under Art.199 of the Constitution is to be invoked and illegality committed by the court below is to be rectified---If it is found that findings of courts below are in accordance with law and also in line with the evidence on record, normally no interference is called for.

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

----S. 15---Ejectment application---Maintainability---Invalid power of attorney---Power of attorney was executed by landlord in year, 2003, whereas property in question was purchased by landlord in February, 2005---Effect---Landlord was neither owner of the property nor landlord of tenant in year, 2003, hence he had no authority to appoint attorney for filing of rent case against tenant.

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

----S. 18---Scope and object of S.18, Sindh Rented Premises Ordinance, 1979---Change of ownership--- Notice--- Object, scope and purpose--- Mandatory under section 18 of Sindh Rented Premises Ordinance, 1979, on the part of new owner,, to serve notice under registered post upon his tenant and if the latter, upon receipt of such notice, pays rent due within thirty days from the date when intimation should, in normal course, have reached the tenant, he is not be deemed to have defaulted---Section 18 is a beneficial provision, designed and intended for benefit of tenants and the same has to be construed liberally so that it may suppress the mischief aimed at, and may advance remedy---Notice in terms of section 18 of Sindh Rented Premises Ordinance, 1979, is mandatory even when transfer of ownership pertains to partial interest---If new owner of premises fails to serve notice on his tenant and if the latter, without having knowledge of transfer of ownership continues to pay rent to his previous landlord, such tenant is not liable to pay rent to new owner for the period, for which tenant might have paid rent to the previous owner.

Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400 rel.

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

----Ss. 15 & 18---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Change of ownership---Notice---Default in monthly rent---Proof---After change of ownership, previous owner did not provide address of new owner, therefore, tenant had been depositing rent in Court---Rent Controller and Lower Appellate Court dismissed ejectment application and appeal respectively, filed by landlord on the ground that default was not proved against tenant---Validity---Neither postal receipt was brought on record nor any other material was placed before Rent Controller which could establish service of notice under S.18 of Sindh Rented Premises Ordinance, 1979, upon tenant by landlord---Rent deposited by tenant from March, 2005, till service of notice of ejectment application upon tenant was a valid tender as tenant did not know whereabouts of landlord and he had tendered rent to previous landlady and on her refusal it was deposited in court---After service of ejectment application, rent for January, 2006, was tendered through money order to landlord but on his refusal, tenant started depositing the same in court---Tenant was not a wilful defaulter in payment of rent---High Court declined to interfere in exercise of power under Art. 199 of the Constitution, as landlord failed to point out any illegality in the judgments passed by two courts below---Petition was dismissed in circumstances.

Messrs Habib Bank Limited v. Sultan Ahmad and another 2001 SCMR 678; Saifullah v. Muhammad Bux and others 2003 MLD 480; Ghulam Nabi through Attorney v. Noushad Ali and others 2010 MLD 1543; Hirjibhaui Behrana Dar-e-Meher v. Messrs Bombay Steel Works 2001 SCMR 1888; Abdul Ghani v. Abrar Hussain 1999 SCMR 348; Pakistan State Oil Company Ltd., Karachi v. Pirjee Muhammad Naqi 2001 SCMR 1140; Qamar Zaman v. IInd Additional District Judge, Karachi and another 2008 CLC 431; Syed Feroze Ali v. The IVth Additional District and Sessions Judge and others 2006 CLC 1416; Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCMR 1501; Reckitt & Colman of Pakistan Ltd. v. Saifuddin G. Lotia and others 2000 SCMR 1924; Mehmood Lakhani v. Syeda Zubaida Khatoon and others 2009 YLR 1083 and Muhammad Aslam Pervaiz v. Al-Mustafa Welfare Society and others 2010 MLD 222 distinguished.

Messrs John Traders and others v. Ahmed Ali 1986 CLC 561; Philomena Mathew and others v. Miss Abida Riasat Rizvi 1993 CLC 2307; State Life Insurance Corporation of Pakistan, Karachi v. Messrs Siddique Tailors through its sole proprietor PLD 1993 Kar. 642; Muhammad Akhtar v. Mst. Manna and others 2001 SCMR 1700; Miss Zohra Masud v. Aftab Ahmed PLD 1993 Kar. 293; Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214; Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others 1992 SCMR 505, Mrs. Tahira Dilawar Ali Khan through Attorney and 2 others v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50 ref.

M. Niamat Ali Randhawa for Petitioner.

Adnan Ahmed for Respondent No.1

Date of hearing: 3rd June, 2011.

2012 C L C 229

[Sindh]

Before Gulzar Ahmed and Muhammad Ali Mazhar, JJ

Messrs UNITED BANK LIMITED through Attorneys and 2 others---Appellants

Versus

Messrs PLASTIC PACK (PVT) LIMITED and 4 others----Respondents

First Appeal No.35 of 2009, decided on 11th November, 2011.

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

----S. 151---Inherent jurisdiction---Object, scope and extent---Court has inherent powers under section 151, C.P.C. to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court---Such are enabling provisions and powers thereunder can be exercised by Court to cover ostensibly impossible situations for complete dispensation of justice, for which Civil Procedure Code, 1908, has been designed but despite the best efforts of draftsman to cater for all possible situations, if it is found lacking in meeting some eventualities, the court can act ex delicto justitiae, supply the omission in the procedure, adopt methodology for effectually carrying out the purpose in view.

PLD 1993 SC 418 rel

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

----Ss. 48, 151, O.IX, Rr.8 & 9---Execution application, restoration of---Inherent powers---Applicability---Provision of O.IX, R. 9 C.P.C. is designed for restoration of suit wholly or partly dismissed under O.IX, R.8 C.P.C. and it does not speak anything about restoration of application dismissed in default---Absence of necessary provisions do not necessarily lead to absence of jurisdiction in a civil court for restoration of execution application dismissed in default upon proof of sufficient cause---Execution application can be restored'in exercise of inherent powers.

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

----S. 22---Civil Procedure Code (V of 1908), Ss.48, 151, O.IX, Rr.8 & 9---Appeal--- Execution application, restoration of--- Inherent jurisdiction---Execution application filed by decree-holder was dismissed for non prosecution and application for restoration of execution was also dismissed for non prosecution, thereafter application for restoration of the application for restoration was also dismissed for non-prosecution-Held, while deciding second restoration application, Executing Court was only obliged to see whether any case was made out for restoration of earlier application but instead of considering the crucial question whether any sufficient cause had been made out or not, second restoration application was dismissed without considering the reasons for non-appearance mentioned in personal affidavit of the counsel filed in support of restoration of application---High Court set aside the order dismissing second application for restoration of execution application and the same was restored to its original position --Appeal was allowed accordingly.

Abdul Haleem Siddiqui for Appellants. Nemo for Respondents.

Date of hearing: 11th November, 2011.

2012 C L C 264

[Sindh]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

ABID IQBAL and 2 others----Appellants

Versus

EXPORT PROCESSING ZONES AUTHORITY through Chairman----Respondent

High Court Appeal No.46 of 2010, heard on 26th April, 2011.

Arbitration Act (X of 1940)---

----S. 34---Export Processing Zones. Authority Ordinance (IV of 1980), S.24--- Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15--- Specific Relief Act (I of 1877), S.42--- High Court appeal---Suit for declaration--- Arbitration clause--- Stay of proceedings--- Basis of dispute, non-mentioning of--- Single Judge of High Court, on application by defendant Authority, stayed the proceedings of suit filed by plaintiff and referred the matter to arbitrator--- Plea raised by plaintiff was that basis of dispute was not mentioned in arbitration clause of agreement between the parties, therefore, application should have been stayed--- Validity--- Suit was filed not on the basis of agreement between the parties but was covered by Export Processing Zones Authority Ordinance, 1980, therefore, it was not necessary that disputes were specifically highlighted as from reading of all pleadings--- As to what the dispute was and that whether such disputes were covered by arbitration clause in Export Processing Zones Authority Ordinance, 1980, or not was clear, and as the dispute was covered by arbitration clause, therefore, arbitration application was rightly allowed by Single Judge of High Court--- Division Bench of High Court declined to interfere in the order passed by Single Judge of High Court--- High Court appeal was dismissed. [p. 2711 A

Novelty Cinema, Lyalpur v. Fidaus Films and another (PLD 1958 (WP) Lah. 208 distinguished.

Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498; Messrs Cosmplitan Development Company v. Messrs SO DI.ME,-S.P.A. and another 1987 MLD 2832; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350; Mst. Zohra Begum v. Messrs Abdul Razak and Co. and 10 others 1984 CLC 1643; Union of India v. Birla Cotton Spinning and Weaving Mills Ltd. AIR 1967 SC 688; M/s National Small

Industries Corporation Ltd., New Delhi v. M/s Punjab Tin Printing and Metal Industries Ajraunda, Faridabad (Haryan t) and others AIR 1979 Delhi 58 and 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.

2012 C L C 295

[Sindh]

Before Arshad Siraj Memon, J

MUHAMMAD KAMRAN KHAN----Petitioner

Versus

PRESIDING OFFICER and another----Respondents

Constitutional Petition No.S-134 and C.M.A. No.789 of 2009, decided on 15th May, 2009.

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

----Ss. 5, Sched. & 7, 8, 14---Constitution of Pakistan, Art.199---Suit for maintenance---Failure of defendant to appear and filing of written statement---Family Court debarred the defendant from filing written statement---Affidavit filed for re-calling of said order, had merely narrated the non-attendance on behalf of the defendant's counsel and no reason for his absence on the date or for not filing written statement was given---Factum of non-attendance of defendant's counsel was not supported by personal affidavit of the counsel---Application for recalling of said order was rightly dismissed for negligence on the part of the defendant---Orders passed by two courts below being unexceptionable were maintained.

Maqsood Ahmed v. Judge, Family Court, Burewala 2001 CLC 567 and Kh. Muhammad Ahmad Qasim v. Mst. Kaneez Fatima 2006 MLD 1128 ref.

S. Amir Haider Naqvi for Petitioner.

Lajpat Rai for Respondent No.2 with Respondent No.2 in person.

2012CLC324

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

KHAN MUHAMMAD----Appellant

Versus

ABDUL WAKEEL KHAN and 6 others----Respondents

H.C.A. No.84 of 2010, decided on 13th October, 2011.

Contract Act (IX. of 1872)---

----S. 65---Law Reforms Ordinance (XII of 1972), S.3---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---High Court appeal---Void contract---Recovery of money---Pagree, payment of---Proof---Plaintiff was tenant in shop owned by defendant and was evicted in accordance with law---Single Judge of High Court dismissed the suit on the ground that terms of Pagree were not maintainable under the Rent laws---Validity---Was yet to be proved by way of leading evidence in the suit, if there was in vogue the system of Pagree in the market, where the shop was located or whether Pagree was received by deceased father of defendants for the shop---Single Judge . of High Court was misguided in holding that as Pagree was akin to Rent laws, the same could not be agitated---Plaintiff's case was that under section 65 of Contract Act, 1872, the defendants were under obligation to compensate plaintiff for the benefit they derived under void agreement (receiving of Pagree)---Division Bench of High Court set aside the judgment passed by Single Judge of High Court and suit was restored---High Court appeal was allowed in circumstances.

Pakistan v. American President Lines Ltd. and others PLD 1962 (W.P.) Kar. 87; Eastern Federal Union Insurance Company Ltd. v. Bawany Industries Ltd., Karachi 1979 CLC 321; Hyderabad Municipal Committee v. Jaweed Murtaza Khan 1986 MLD 1410; Abdul Razzak & Company v. Assistant Collector of Customs (Appraisement), Karachi and another PLD 1993 Kar. 227; Mustafa Kamal and others v. Daud Khan and others 2009 SCMR,221; Afaq Ahmed v. Government of Punjab and another PLD 1992 FSC 286; Shehnaz Begum v. Ikhlas Ahmed 1990 CLC 904 and Muhammad Sharif v. Iftikhar Hussain Khan 1996 MLD 1505 rel.

Kazi Abdul Hameed Siddiqui for Appellant.

M. Abdul Karim Siddiqui for Respondents.

Date of hearing: 28th September, 2011.

2012 C L C 350

[Sindh]

Before Salman Hamid, J

ABDUL SALAM ANSARI and 6 others----Plaintiffs

Versus

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

Suit No 116 of 2010, decided on 12th October, 2011.

Cooperative Societies Act (VII of 1925)---

----S.70---Cooperative Societies Rules, 1927, R.48---Civil Procedure Code (V of 1908), O. VII, R.11---Specific Relief Act (I of 1877), Ss. 42 & 54---Allegation of mismanaging the affairs of Co-operative Society---Suit for declaration and injunction---Statutory notice, non-issuance of---Rejection of plaint---Plaintiffs were elected office-bearers of cooperative society, who were allegedly involved in mismanaging the affairs of the society, therefore, authorities took-over the charge and appointed Administrator--- Validity--- Requirements of R.48 of Cooperative Societies Rules, 1927, were fulfilled, when plaintiffs or the society was required to explain their position as to embezzlement of funds of the society as reflected in audit report/balance sheet---Despite passage of considerable long time no explanation plausible or otherwise had come forth, thus Administrator was appointed---Mandatory requirements of section 70 of Cooperative Societies Act, 1925, having not been complied with and because of such non-compliance, plaint could have been rejected by exercising power under O. VII, R.11 C.P.C.-High Court was empowered under O. VII, R.11 C.P.C. to reject the plaint even without any application being made by defendant---In addition to rejection of plaint, suit was also liable to be dismissed inasmuch as section 70 of Cooperative Societies Act, 1925, restrained filing of any suit---Suit was dismissed in circumstances.

Haji Khuda Bukhsh and 9 others v. Deputy Registrar Cooperative Society Punjab Lahore and 2 others PLD 2007 Lah: 341 distinguished.

Muhammad Ali Memorial Cooperative Housing Society Karachi v. Syed Sibt-e-Hassan Kazmi PLD 1975 Kar. 428; Zia-ur-Rehman Alvi v. Allahabad Cooperative Society Limited and 2 others PLD 1995 Kar. 391; Mst: Atia Khanum v. Messrs Saadabad Cooperative Housing Society Ltd. and others 2002 MLD 209; Mst. Agila Begum and another v. Pakistan Employees Cooperative Housing Society Ltd. and others PLD 2004 Kar. 1; Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others 2004 CLC 587 and Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd. and others PLD 2002 SC 660 ref.

Kazi Khalid Ali for Plaintiffs.

Ms. Farkhuda Mangi State Counsel for Defendants Nos. 1 and 2.

Zubair Hashmi for Defendant No.3.

Date of hearing: 16th September, 2011.

2012CLC369

[Sindh]

Before Mushir Alam, C.J. and Nisar Muhammad Shaikh, J

THATTA CEMENT COMPANY EMPLOYEES UNION through General Secretary----Appellant

Versus

REGISTRAR TRADE UNIONS, HYDERABAD REGION and 2 others----Respondents

High Court Appeal No.205 of 2009 and Constitutional Petitions Nos. S-245 and S-282 of 2008, decided on 29th August, 2011.

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

---S. 3, proviso---Industrial Relations Ordinance (XCI of 2002), Ss. 3, 4, 5, 6, 7, 8 & 9(5)---Intra-court appeal---Maintainability---Registration of trade union---Right of appeal---Order of registration of trade union, was assailed by employer company and the same was maintained by Single Judge of High Court---Plea raised by respondent trade union was that intra-court appeal was incompetent on account of bar contained in proviso to S.3 of Law Reforms. Ordinance, 1972, as order under appeal was passed in Constitutional petition under Art.199 of the Constitution, which had arisen out of the proceedings commenced before Registrar, trade unions on application of respondent 'trade union and order for grant of such certificate of registration of trade union, issued by Registrar in favour of respondent trade union was an original order passed in such proceedings, in which right of appeal was provided under S.9(5) of Industrial Relations Ordinance, 2002---Validity---Bar contained in proviso to S.3 of Law Reforms Ordinance, 1972, was applicable---Intra-court appeal was dismissed in circumstances.

Workers' Union of PIA, Institute of Planetaria, Karachi v. Fida Muhammad Khan and another Civil Appeal No.365 of 1993 and Abdul Sattar v. Messrs S.G.S. Pakistan (Pvt.) Ltd. and another PLD 2011 Sindh 40 rel

(b) Industrial Relations Ordinance (XCI of 2002)---

---Ss. 3, 4, 5, 6, 7 & 8---Civil Procedure Code (V of 1908), S.11---Constitution' of Pakistan, Art.199---Constitutional petition---Res judicata, principle of---Applicability---Registration of trade union---Petitioner trade union assailed registration of respondent trade union before High Court in exercise of Constitutional jurisdiction---Similar petition filed by employer company had already been dismissed by,.. High Court---Effect---Grant of certificate in issue in respect of respondent trade unions, issued by Registrar, trade unions stood maintained on dismissal of Constitutional petition and appeal filed against such decision had also been dismissed, therefore, grant of the registration could not be cancelled or set aside by High Court in subsequent petition, especially when there were no exceptional circumstances reasonable ground or justification even to revive/reverse such earlier decision by taking contrary view of giving conflicting finding on the same subject-matter---Proceedings could not commence in Constitutional jurisdiction, as it could happen in exercise of ordinary original jurisdiction, therefore, no fresh inquiry in the matter could be conducted in detail by recording evidence etc.---By way of decision recorded earlier in exercise of Constitutional jurisdiction, the cause had already been determined between the same parties---High Court declined to repeat the same especially when general principle of res judicata was also attracted to the petition---Petition was dismissed in circumstances.

Shahenshah Hussain for Appellant.

Syed Aijaz Ali, Assistant Director,' Labour for Respondent No.l.

Muhammad Shafique Qureshi for Respondent No.2.

Chaudhry Muhammad Ashraf Khan for Respondent No.3.

Dates of hearing: 1st September, 6th December, 2010 and 15th August, 2011.

2012 C L C 389

[Sindh]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

DANISH KANERIA----Petitioner

Versus

PAKISTAN and others----Respondents

Constitutional Petition No.2377 of 2011, decided on 10th November, 2011.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Territorial jurisdiction--- Residence of petitioner---Petitioner was a cricketer and his grievance was that he was dropped from an international tour on the basis of complaint with Integrity Committee of Pakistan Cricket Board---Plea raised by petitioner was that he was residing at place "K" and he received all correspondence at place "K", therefore, partial cause of action had arisen at place "K"---Validity---Central Office of Pakistan Cricket Board was located at place "L" and petitioner had to attend the Central Office of the Board at place "L" for appearing before Integrity Committee and not before sub-office, which was located at place "K" and all correspondence had taken place at place "L"---Plea raised by petitioner regarding part of cause of action was without any substance---Petitioner had to attend Integrity Committee at place "L" where Central Office of the Board was housed and all actions were taken by Integrity Committee there---No action or correspondence was initiated against petitioner at place "K" to confer jurisdiction on High Court under Art.199 of the Constitution---High Court at place "K" had no jurisdiction to entertain the petition at place "K"---Constitutional petition was dismissed in circumstances.

The Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Dacca v. Ataul Huq PLD 1965 SC 201; Mst. Shahida Maqsood v. President of Pakistan through Secretary, Law Justice and Human Rights Division and another 2004 CLC 565; Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others PLD 1986 Kar. 525; R. v. Disciplinary Committee of the Jockey Clubm, ex parte Massingberd-Mundy (All England Law Reports Page 2007); Mts. Nadia Ghee Mill (Pvt.) Limited v. The Federation of Pakistan 1992 MLD 2154; M/s. Ibrahim Fibers Limited v. Federation of Pakistan through Secretary/Revenue Division and 3 others PLD 2009 Kar. 154; Election Commission, India v. Saka Venkata Rao AIR 1953 SC 210; A.R. Khan & Sons (Pvt.) Ltd. v. Federation of Pakistan 2010 CLD 1648; Nawabzada Muhammad Shahabuddin v. Chairman Federal Land Commission 1996 CLC 539; Mehboob Ali Malik v. The Province of West Pakistan and another PLD 1963 (W.P.) Lah. 575; Asghar Hussain v. The Election Commission of Pakistan and others PLD 1968 SC 387; Trading Corporation of Pakistan (Pvt.) Limited v. Pakistan Agro Forestry Corporation (Pvt.) Limited 2000 SCMR 1703; Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan, Islamabad PLD 1997 Lah. 643; Itehad Cargo Services, National Hotel, Lahore v. Rana Rafaqat Ali and 3 others PLD 2002 Kar. 420 and The Collector, Customs and Central Excise, Peshawar and others v. M/s. Rais Khan Limited through Muhammad Hashim 1996 SCMR 83 ref.

M/s. Al-Iblagh Limited, Lahore v. the Copyright Board, Karachi and others 1985 SCMR 758; Ghulam Haider Badini' and 520 others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another 1995 CLC 1027; Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126; Chaudhry Akbar Ali v. Secretary, Ministry of Defence Rawalpindi and another 1991 SCMR 2114; Secretary, Ministry of Religious Affairs and-Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue, Islamabad 1997 SCMR 1874 and M/s. Fecto Belarus Tractors Limited Karachi v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives, Islamabad and others PLD 2006 Kar. 479 distinguished.

(b) Constitution of Pakistan---

----Art. 19---Constitutional petition' andcivil suit'---Distinction---Provisions under Art.199 of the Constitution are not suits, which provide for extraordinary remedies by a special procedure and give powers of correction to High Court over person and authorities and such special powers have to be exercised within the limits set for them.

Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others PLD 1997 SC 334; Mst. Shahida Magsood v. President of Pakistan and another 2005 SCMR 1746; Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others 1979 SCMR 555 and Lt. Col. Khajoor Singh v. Union of India and another AIR 1961 SC 532 rel.

(c) Dominant jurisdiction principle--

----Meaning.

Black's Law Dictionary rel.

Dr. Muhammad Farogh Naseem for Petitioner.

Taffazul Hussain Rizvi for Respondent No.1.

Date of hearing: 20th October, 2011..

2012 C L C 415

[Sindh]

Before Syed Hasan Azhar Rizvi, J

M. YOUSUF ADIL SALEEM & CO. CHARTERED ACCOUNTANTS through Partner and 5 others----Plaintiffs

Versus

MUHAMMAD SALEEM and another----Defendants

Suit No.8 and C.M.As. Nos.62 and 1048 of 2011, decided on 3rd October, 2011.

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

----Ss. 42 & 54---Partnership Act (IX of 1932), S.32---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Partnership concerned---Retirement of partner---Procedure---Plaintiffs claimed that according to Circular Resolution defendants were suspended from management of the firm---Validity---Where partnership deed had provided mode of retirement, such mode should be adopted for retirement alone---If a thing was required to be done in particular manner then it must be done in that manner alone---Mode of retirement was provided in the partnership deed and case fell within the ambit of S.32(1)(b) of Partnership Act, 1932---Circular Resolution had not been passed by 3/4th majority of votes, as the defendants had 29.07% share in the partnership firm---Defendant was not only the partner of the firm but he was Deputy Managing partner as well as member of the Board---Managing partner or Deputy Managing partner was for a period of 5 years and it was prerogative of partners' general meeting to choose the Managing partner in case of demise or retirement of the Managing partner---Neither the Managing partner died nor taken retirement from the partnership firm, therefore, another partner could not become Chief Executive of the firm without having the post of Chief Executive in the partnership deed in question---Circular Resolution regarding suspension of defendants had been passed after passing of interim orders by civil court at other cities for which defendants had filed contempt application which was pending---Plaintiffs had no prima facie case and balance of convenience was also not in favour of plaintiffs as great inconvenience would be caused to defendants in exercising their legal rights to deal with the subject-matter as per law---No irreparable loss would be caused to plaintiffs, if injunction was refused because the loss, if any could be compensated in shape of damages---High Court declined to grant interim injunction in favour of plaintiffs---Application was dismissed in circumstances.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314; Bashir Ahmed and 3 others v. Muhammad Aslam and 6 others 2003 SCMR 1864; Iqbal Ahmad Sabri v. Fayyaz Ahmad and another 2007 CLC 1089; Nem Das and others v. Kunj Behari Lal and another AIR 1928 Oudh 424; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; S. Azhar-ul-Hassan Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754; Muhammad Ramzan v. Trustees of Port of Karachi 1990 CLC 1086; House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19; Islamic Republic of Pakistan v. Muhammad Zaman Khan and others 1997 SCMR 1508; Messrs K.G. Traders and another v. Deputy Collector of Customs and 4 others PLD 1997 Kar. 541; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Regional Commissioner of Income Tax Corporate Region Karachi v. Shafi Muhammad Baloch 1998 SCMR 376; Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others 2001 PLC (C.S.) 623; Puri Terminal Ltd. v. Government of Pakistan and 2 others 2004 SCMR 1092; M/s. Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh and 4 others 2007 MLD 2019; M. Yousuf Adil Salim & Co. and 7 others v. Hamid Masood 2007 CLD 916; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61; ERIN Estate, Galah Ceylon v. Commissioner of Income Tax, Madras AIR 1958 SC 779; Mrs. Dino Majekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693; Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others PLD 1983 Kar. 303; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others PLD 1990 Kar. 1; Imdad Magsi and others v. Karachi Water and Sewerage Board and others PLD 2002 SC 728; Hussain A. Haroon v. Mrs. Laila Sarfaraz and others 2003 CLC 771; and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan PLD 2010 SC 483 ref.

Syed Khurshid Sohail v. Aziz Hami and 4 others 1988 MLD 381 and Law of Partnership, 10th Edn. p.44 by Lindley rel.

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

----O. XXXIX, Rr.1 & 2---Interim injunction, relief of---Principles---Relief of injunction is discretionary and court is not bound to grant it in every case and it is not to be granted unless the court is satisfied as to its real need---Discretion is to be exercised in accordance with reasons and sound judicial principles---Court while dealing with application for grant of injunction has to look and to assess all circumstances obtaining the suit and moreso, to equitable relief---Discretion vested in a court of law has to be exercised judicially and equitably ensuring all the times, that twain of law and justice are adequately applied and dismissed.

Rasheed A. Rizvi, Ravi Pinjani and Laila Bhgatia for Plaintiffs Nos.3 and 5.

Munir A. Malik and Chaudhry Atif for Defendant No.2.

Date of hearing: 11th May, 2011.

2012 C L C 507

[Sindh]

Before Munib Akhtar, J

Haji RIAZ AHMED through Attorney----Plaintiff

Versus

Messrs HABIB BANK LIMITED through President and 2 others----Defendants

Civil Suit No.751 of 2009 and C.M.A. 8164 of 2011, decided on 25th November, 2011.

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

----Ss.16, 17, 20, 120 & O.VII, R.10---Territorial jurisdiction---Original civil jurisdiction of High Court---Scope---Customer of bank filed suit against bank at place "K", before High Court where head office of the bank was situated---Plea raised by defendant-bank was that the concerned branch was located at place "P", in another Province, therefore, the suit should be returned for filing the same before appropriate court---Validity---Original civil jurisdiction of High Court must also be regarded as extending to the situation where the defendant ordinarily resided, or worked for gain, at place "K"---If a corporation had its principal office or head office at place "K", High Court at "K" would also have jurisdiction, and the same was regardless of whether the cause of action had accrued at place "K" or not---Any other view would necessarily result in a loss and curtailment of the Court's jurisdiction and that was not a result that the law countenanced by applying section 120 C.P.C. to High Court---Head office of defendant-bank was situated at place "K", therefore, it necessarily followed that plaintiff could bring the suit at place "K" and file it on the original side of High Court, notwithstanding that cause of action had accrued entirely at place "P"---High Court declined to return the plaint to plaintiff, as the court had jurisdiction in the matter---Application was dismissed in circumstances.

Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others PLD 2010 Kar. 261; Muhammad Naveed Aslam and others v. Ayesha Siddiqui and others 2011 CLC 1176; Shaikh Muhammad Amin & CO. v. Provincial Industrial Development Corporation 1991 CLC 684; West Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. PLD 1964 Kar. 11l Wajid Hussain Farouqui v. Shahida Shahnwaz and others 2007 CLC 394; Gulfam and others v. Bibi Qudsia Begum and others 2003 CLC 1183; WAPDA and others v. Mian Ghulam Bari PLD 1991 SC 780; Agricides (Pvt.) Ltd. v. Ali Agro Supply Corporation Ltd. 1988 CLC 59 and Muhammad Bachal v. Province of Sindh and others 2011 CLC 1450 ref.

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

----Ss. 16, 17 & 20---Jurisdiction of courts---Discretion of court---Scope---One of the key requirements of jurisdictional rules is that the rules must be certain and this must be so, whether they are statutory in nature or judicially evolved---Such is so because such rules affect, regulate and control exercise of judicial power at the most fundamental level---Leaving matters to discretion of the court introduces, an unacceptable uncertainty in the law all rules must of course be interpreted but that is an entirely different matter.

Raja Maroof Khan for Plaintiff.

Aziz-ur-Rehman for Defendant.

Date of hearing: 21st September, 2011.

2012 C L C 545

[Sindh]

Before Mushir Alam, C.J. and Nisar Ahmed Shaikh, J

FEROZ ABDUL KARIM----Appellant

Versus

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

High Court Appeals Nos.176, 177 and 178 and C.M.A. No.906 of 2009, decided on 12th October, 2011.

(a) Tort---

----Malicious prosecution---Suit for compensation---Limitation---Rejection of plaint---Suit for damages against alleged wrongful dismissal was filed after more than 9 years from the said dismissal order along with application under S.5 of Limitation Act, 1908 for condonation of delay---Grounds disclosed by the plaintiff for condonation of said inordinate delay in filing suit were far from satisfactory---Applications for condonation of delay were dismissed, in circumstances---Appeals, otherwise being barred by time, were dismissed, in circumstances.

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

(b) Interpretation of statutes---

----Where special provision was applicable, general provision, would not apply.

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

Umer Hayat Sandhu for Appellant.

Imran Khan for Respondent.

Date of hearing: 12th October, 2011.

2012 C L C 556

[Sindh]

Before Munib Akhtar, J

JANGOO----Plaintiff

Versus

FASAHATULLAH KHAN and others----Defendants

Suit No.787 of 2007 and C.M.As. Nos.9705 and 9706 of 2009, decided on 9th December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Civil Procedure Code (V of 1908), O.IX, Rr.8 & 9---Limitation Act (IX of 1908), S.5---Suit for declaration, perpetual injunction and cancellation of document---Dismissal of suit for non-prosecution---Restoration of---Matters fixed on that date when suit was dismissed, were of interlocutory nature---No substantive step or proceedings in the suit itself was contemplated or required to be undertaken on that date---Even the notices issued to the plaintiff were for the purposes of interlocutory matters---Court at the most could deal with the interlocutory matters and not the suit itself in its entirety---Unless the suit had been fixed for some substantive hearing or proceedings, it could not have been dismissed for non-prosecution---Since the order dismissing the suit itself ought not to have been made at all, issue of limitation could not arise in the case and was not a bar to consider the application for restoration of suit on its merits---Suit should have been restored---Order dismissing the suit for non-prosecution, was set aside and the same was restored to its position as on that date.

Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733 rel.

Muhammad Tariq for Plaintiff.

Kashif Nazir along with Fazle Ghani for Defendant No.1.

Muhammad Jamil for Defendant No.2.

Date of hearing: 16th November, 2011.

2012 C L C 577

[Sindh]

Before Munib Akhtar, J

PAKISTAN STEEL MILLS CORPORATION (PRIVATE) LIMITED through Corporate Secretary----Plaintiff

versus

KARACHI WATER AND SEWERAGE BOARD through Chief Executive and 2 others---Defendants

Suit No.146 of 2007, decided on 2nd December, 2011.

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

----O. XXXIX, Rr.1 & 8---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Plaintiff, a steel mill (public sector entity), in a suit for declaration, cancellation, injunction and damages, filed application seeking interim injunction against Water and Sewerage Board stating therein that for the purpose of its operations, the plaintiff needed huge quantity of water on a daily basis (running into millions of gallons per day), for which it was billed by the Water and Sewerage Board---Basic contention of the plaintiff was that the water being supplied to it came from, or belonged, to the Provincial Government and that the Water and Sewerage Board was not entitled to charge for the same and that in addition to the water charges claimed by the Board, it also charged for Sewerage and Conservancy and for fire fighting purposes, thus the bills raised and demands made from time to time by the Water and Sewerage Board had four distinct elements---Plaintiff's case was that (for the various reasons stated in detail) it was not liable to make payment to the Board in respect of any of said charges---Plaintiff also claimed that it was entitled to continued supply of water, thus the interim relief sought was that its water supply should not be disrupted for any alleged non-payment of the billed amounts---Validity---High Court disposed of the application in the terms that the Water and Sewerage Board, the City District Government and the Provincial Government were restrained from preventing, restricting or hindering the supply of water to the plaintiff in any manner interfering in or with the same subject to the terms that the plaintiff was liable to make payment of water charges as per the Agreement, and the Board was empowered to bill for and collect the same; that plaintiff and the Board shall be at liberty to compute the amount payable up to the date of present order on the stated basis, and if there had been (according to the plaintiff) any overpayment, or (according to the Board) any underpayment, then the concerned party shall be entitled to make an appropriate application for such orders as the Court may deem appropriate; that Rs.200 million earlier deposited by the plaintiff and withdrawn by the Board shall be deemed adjustable against the water charges; that plaintiff shall continue to make timely payment of the water charges in terms of future billing---Water and Sewerage Board, City District Government Provincial Government were restrained from recovering, demanding or collecting any amount by way of sewerage or conservancy charges, whether by way of arrears thereof as on the date of present order, or on account of any future billing---Future billing by the Board may continue to reflect these elements, and the plaintiff shall be entitled, without prejudice to its case, to deposit the billed amount(s) with the Nazir of the High Court, which amounts shall be dealt with in terms of such orders or directions as may be given by the Court---If at all any such amounts were deposited, then the Nazir shall immediately invest the same in some profit bearing scheme---Plaintiff shall be obligated to make payment of the arrears of the "fire" element of the billing up to the date of present order, which payment shall be made in six equal monthly instalments (and payable each month thereafter accordingly), and which shall be deposited with the Nazir of the Court---City District Government (or any successor entity) shall be entitled to withdraw the same by making an appropriate application to the court---Future billing by the Board shall not contain any such element, and the Board was restrained from in any manner collecting, demanding or recovering any such amount from the plaintiff---City District Government (or any successor entity) may recover, demand and collect the "fire tax" in future in accordance with any applicable law for the time being in force.

Karachi Municipal Corporation v. Karimi and Co. PLD 1967 Kar. 371; Karimi and Co. v. Karachi Municipal Corporation 1974 SCMR 440; S.Z. Mehdi v. Government of Sindh and others 1990 CLC 352; ABN Amro Bank v. Karachi Water and Sewerage Board 2009 YLR 775; ABN Amro Bank v. Chairman, Karachi Water and Sewerage Board 2006 CLC 597 and Nazir Ali v. Karachi Water and Sewerage Board 2004 CLC 578 ref.

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

----S. 2(d)---Consideration---Act or omission which serves as the consideration for the promise, need not come from the promisee; it may move from "any other person".

(c) Precedent---

----Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found---Case is only an authority for what it actually decides and cannot be quoted for a preposition that may seem to follow logically from it.

Quinn v. Leatham [1901] AC 495 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Abdul Rehman for Plaintiff.

Emad-ul-Hasan for Defendant No.1.

Ali Azam for Defendant No.2.

Khizar Zaidi, A.A.-G.

Dates of hearing: 22nd September and 13th October, 2011.

2012 C L C 612

[Sindh]

Before Muhammad Tasnim, J

Mst. ZESHAN ZEHRA----Appellant

versus

MUHAMMAD ABDUL SALAM and 5 others----Respondents

Second Appeal No.1 of 2010, decided on 30th November, 2011.

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

----Ss. 12 & 54---Suit for specific performance of agreement to sell and injunction---Pardahnashin lady---Sale agreement---Proof---Concurrent findings of fact by two courts below---Suit filed by plaintiff was concurrently decreed in his favour by Trial Court as well as by Lower Appellate Court---Plea raised by defendant was that sale agreement was not proved by plaintiff as she was a Pardahnashin lady---Validity---Cheques handed over to defendant were part payment of total sale consideration and the same were deposited by her into her account and through banking channel proceeds were deposited into her account---Payment of Rs.325,000/- through cheques stood proved by examination of bank witnesses and documents produced by them during the course of their deposition---Defendant was English knowing lady and was maintaining her bank account which she operated under her signature in English language---Plaintiffs proved that agreement to sell was executed by defendant after contents of the agreement were read over to her and brother of her husband was also present at the time of execution of the agreement---Defendant appeared before Notary Public who read over the contents of the agreement to her, thereafter she again put her signatures on the agreement and so did the plaintiff---Defendant was accompanied by brother of her husband and her son and in their presence the agreement was attested by Notary Public---Defendant might be a Pardahnashin lady but she had understood contents of the agreement which were read over to her and thereafter she put her signature on such document, which act was performed by her on two occasions---High Court declined to interfere in judgments and decrees passed by both the courts below as the same were unexceptional---Second appeal was dismissed in circumstances.

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Raj Bibi and others v. Province of Punjab through District Controller, Okara and 5 others 2001 SCMR 1591; Munir Hussain and 7 others v. Raja Mushtaq Ahmad PLD 2006 Lah. 48; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 and Baggu v. Mst. Rahiman Bibi 1996 MLD 377 distinguished.

Azizullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Mali Nasim Ahmad v. Additional District Judge, Dera Ghazi Khan and 3 others 1991 SCMR 1877; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Muhammad Amir through L.Rs v. Muhammad Sher and others 2006 SCMR 185; Haji Sultan Ahmad v. Naeem Raza and 6 others 1996 SCMR 1729 and Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amirunnissa and 4 others PLD 2011 Kar. 183 ref.

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

----Arts. 72, 117 & 120---Document, execution of---Pardahnashin lady---Proof of---Onus---Whether a lady is Pardahnashin, is a question of fact---Burden in respect of a document purported to have been executed by Pardahnashin woman affecting her right or interest in immovable property is on the person claiming that right or interest under a document and it is for that person to establish affirmatively that the document was substantially understood by the lady and it was really her free and intelligent act.

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

----S. 100---Second appeal---Power of High Court, exercise of---Principle---Concurrent findings recorded by the courts below cannot be interfered with by High Court while exercising jurisdiction under section 100 C.P.C.---How so erroneous the findings may be, unless concurrent findings have been arrived at by the courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence, High Court would not interfere in the concurrent findings in second appeal.

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

----S. 100(1)(b)--- Second appeal--- Expression "material issue"---Scope---Question of materiality that is, whether or not an issue is of material nature, depends upon whether ultimate decision of court of first appeal would have been different if omitted issue was determined by it---Appellant, in order to succeed in second appeal on cl.(b) of section 100(1), C.P.C., an appellant would have to show that the court of first appeal would have reached a different conclusion, had it not failed to decide issue of law or usage specified in cl.(b) of section 100(1), C.P.C.

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

----S. 100(1)(c)---Term, "substantial error or defect in the procedure"---Scope---Appellant has to show firstly that there has been a substantial error or defect in procedure and secondly that such substantial error could have resulted in an erroneous or defective decision of case.

Jhamat Jethanand for Appellant.

Qamar Mehmood Baig for Respondents Nos.1 and 2.

Allah Bachayo Soomro, Addl. A.-G. for Respondents Nos.3 to 6.

Dates of hearing: 17th October, 14th November, 2011.

2012 C L C 655

[Sindh]

Before Shahid Anwar Bajwa and

Muhammad Ali Mazhar, JJ

IKRAMUL HAQ and 11 others----Petitioners

versus

PROVINCE OF SINDH through Secretary, Revenue Department and 3 others----Respondents

Constitutional Petition No.D-115 of 2008, decided on 30th November, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Acquisition of land---Compensation, non-payment of---Land owned by petitioners was acquired by authorities and award was announced---Grievance of petitioners was that authorities did not pay them compensation as declared in the award---Validity---Concerned authority, without any lawful reason and/or justification, had been delaying payment of compensation since 10-7-2007 and petitioners were deprived of their legitimate right of compensation---No concrete or cogent reasons were assigned which might give 'good reason' for not implementing the award---Provisions of Art. 199 of the Constitution had cast an obligation upon the High Court to act in aid of law, protect the rights of citizens within the framework of the Constitution against infringement of law and Constitution by Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and actions of State functionaries, claimed to be in the larger interest of the Society---Executive acts which were in violation of law, an appropriate order could be granted which could relieve the citizens of the effects of illegal action---Where a statutory functionary had acted mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its Constitutional jurisdiction had ample power to grant relief to aggrieved party---High Court directed the authority concerned to make payment of compensation to petitioners within a period of one month, in terms of award dated 10-7-2007---Petition was allowed accordingly.

2001 SCMR 794; PLD 2002 SC 84; Land Acquisition Collector v. Mst. Iqbal Begum PLD 2010 SC 719 and Province of Punjab v. Sh. Hassan Ali and others PLD 2009 SC 16 ref.

PLD 2004 SC 271 rel.

Jamshed Ahmed Faiz for Petitioners.

A.M. Mobeen Khan for Respondents Nos.3 and 4.

Imtiaz Ali Soomro, Asstt. A.-G. for the State.

Date of hearing: 20th September, 2011.

2012 C L C 667

[Sindh]

Before Syed Hasan Azhar Rizvi, J

FAISAL through L.Rs.----Plaintiff

versus

Mrs. KHALIDA BANO and 2 others----Defendants

Suit No.1316 of 2004 and C.M. No.735 of 2006, decided on 16th November, 2011.

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

----Ss. 42 & 54---Insurance Ordinance (XXXIX of 2000), S.72---Suit for declaration and permanent injunction---Nomination by insurance policy holder---Error in court order---­Resemblance in names of insurance policy holder and nominee---Insurance policy was issued in the name of the deceased but due to resemblance in names of deceased and his mother, court while disposing of the suit, made the mistake of declaring that insurance policy was issued in the name of the deceased's mother, which deprived deceased's widow from her share of insurance policy and share of his minor child was reduced significantly---Insurance Corporation had filed written statement in which it categorically stated that deceased at the time of purchasing Life Insurance Policy nominated his mother as his nominee but after his marriage he changed his nomination and nominated his wife as his nominee---Neither the fact of filing written statement by Insurance Corporation was brought to the notice of the court nor any application for rectification/recalling of erroneous order had been filed---Error having occurred into the assessment of shares of legal heirs of deceased, High Court in the interest of justice, ordered issuance of notice to all the legal heirs of the deceased.

(b) Act of court---

----Error in court order---No one shall suffer on account of an error of Court.

(c) Insurance---

---Insurance policy, benefit of---Interest of minors---Duty of court---Court is obliged to look after and protect interests of a minor, on its own.

Abdus Salam Baloch for Plaintiffs.

Ms. Shabana Ishaq for Defendant No.1.

Date of hearing: 6th October, 2011.

2012 C L C 704

[Sindh]

Before Munib Akhtar, J

HABIB BANK LIMITED----Plaintiff

versus

Syed JAFFAR ABBAS----Defendant

Suit No.908 of 2003, decided on 17th December, 2011.

Civil Procedure Code (V of 1908)---

----S. 13 & O.XI, R.1---Foreign judgment---Suit for recovery of bank loan---Interrogatories, delivery of---Plaintiff-Bank filed recovery suit against defendant on the basis of decree passed by a foreign court against same defendant and in favour of same plaintiff---Defendant filed application under O.XI, R.1, C.P.C. to serve interrogatories on plaintiff-Bank---Validity---All questions put to plaintiff-Bank by defendant related to evidence, to be led by plaintiff---If at all, plaintiff-Bank would choose to lead evidence in respect of original cause of action, then defendant was entitled to cross-examine plaintiff's witnesses and to examine and challenge any document that they might produce and proposed questions could be put to such witnesses---No party was entitled to serve interrogatories to find out the facts constituting the other side's evidence and proposed questions of defendant fell in such category---Defendant should, therefore, wait for the trial to put such questions to plaintiff's witness, if the latter would choose to lead evidence on original cause of action---Inappropriate for defendant to serve proposed interrogatories on plaintiff-Bank at present stage---Application was dismissed in circumstances.

Hamza I. Ali for Plaintiff.

Akhtar Mehmood for Defendant.

Date of hearing: 13th December, 2011.

2012 C L C 714

[Sindh]

Before Munib Akhtar and Sayed Hasan Azhar Rizvi, JJ

ALL PAKISTAN MUSLIM LEAGUE through

Chief Organizer Sindh----Petitioner

versus

GOVERNMENT OF SINDH through

Home Secretary and 3 others----Respondents

Constitutional Petition No.D-101 of 2012, decided on 20th January, 2012.

(a) Constitution of Pakistan---

---Arts. 4, 16, 17, 19 & 199---Police Act (V of 1861), Ss. 30, 31 & 32---Constitutional petition---Right of individuals to be dealt with in accordance with law, freedom of assembly, freedom of association, freedom of speech, regulation of public assemblies and processions, police to keep order in public roads---Permission to hold political meeting---Petitioner (political party) wanted to hold a political meeting in a district where police and local authorities feared creation of law and order situation if such meeting was held---Authorities had expressed certain views regarding disapproval or even dislike of the President of the petitioner political party by at least some of the people in the district, where meeting was to be held---Articles 16 and 17 of the Constitution were fully applicable in the case---Traditional and best known means adopted by political parties to propagate their views was to hold political meeting at which the views, aims and objectives espoused by the political party are articulated and placed before the public, not merely of the locality where the meeting is being held but in this day and age of the mass media and instant communication also the nation at large---Expression of views at a political meeting is one form of speech and Article 19 of the Constitution not only protects speech that the listener may approve of or agree with, but also speech that he may disagree with or even hate---Sections 30, 31 and 32 of Police Act 1861 were not relevant or applicable to the present case---Section 30(1) of Police Act 1861, regulated the "conduct of all assemblies and processions on the public roads or in the streets or thoroughfares" but activity proposed by petitioner was a public meeting and not a procession or assembly on any public road, street or thoroughfare---Authorities had shown no factual basis as to why they apprehended some sort of law and order situation to develop---Constitutional petition was allowed with direction to authorities to provide all such protection as, in their own discretion and independent judgment, was reasonable in the facts and circumstances of the present case, in order to enable the meeting of the political party to take place.

Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 473 ref.

(b) Constitution of Pakistan---

---Art. 4---Right of individuals to be dealt with in accordance with law---Scope---State has to prevent a person from doing any act to show that such act is specifically prohibited by law.

(c) Constitution of Pakistan---

----Part II, Chapter 1 (Arts.8 to 28)---Fundamental rights---Scope and Interpretation---Each fundamental right is a separate and distinct right enforceable as such, but all the fundamental rights conferred by the Constitution also constitute an interconnected whole and it may be the case that in any given situation, two or more fundamental rights may simultaneously be applicable---Fundamental rights are not to be merely considered and applied separately, they must in appropriate cases, be regarded in their totality and applied as such--- Fundamental rights, taken together, may be likened to a rope that anchors the fundamental constitutional protections of the citizens.

(d) Constitution of Pakistan---

---Art. 17---Freedom of association---Political party---Meaning and purpose---Ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organization, and using all available channels of mass communication, to propagate its views in relation to the whole complex of the administrative machine, including the Legislatures, in respect of matters which appear to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself.

Abul A'la Maudoodi and others v. Government of West Pakistan and another PLD 1964 SC 673 quoted.

(e) Constitution of Pakistan---

----Art. 19---Freedom of speech---Scope and Interpretation---Fundamental rights have been placed in the Constitution not merely to protect acts, conduct and views that one may approve of but also, and especially, to protect views with which one may disagree or which even find unpleasant or unacceptable---Expression of views at a political meeting is one form of speech and Article 19 of the Constitution not only protects speech that the listener may approve of or agree with, but also speech that he may disagree with or even hate.

(f) Constitution of Pakistan---

----Arts. 16 & 17---Freedom of assembly, freedom of association---Reasonable restrictions imposed by law---Scope and principles---Political parties---Restorations---Extent---Rights embodied in Articles 16 and 17(2) of the Constitution are not absolute but are subject to reasonable restrictions imposed by law---Under Article 16 reasonable restrictions may be imposed in the interest of public order, while in the case of Article 17(2) reasonable restrictions may be imposed in the interest of sovereignty or integrity of Pakistan---State when wishes to deny to its citizens the enjoyment of Article 16 and 17(2) of the Constitution, three things must be shown: Firstly that the restriction in question has been imposed by law, thus, it is entirely irrelevant and insufficient for the executive to assume for itself a general power in this regard simply for the reasons of, for example, administrative expediency or convenience and something expressly stated in a statutory provision must be shown to exist; secondly, the court must be satisfied that the restriction so imposed by law is reasonable, and thirdly, the restriction must be relatable to the matter specifically provided for in relation to the fundamental right in question---Right of all the citizens to assemble peacefully and without arms under Article 16 of the Constitution, can only be affected if the State shows some express restriction imposed by law, which is reasonable and which relates to the interests of public order---Restriction, in case of political parties must be relatable to what is stated in Article 17(2) of the Constitution.

Muhammad Siddiq Mirza for Petitioner.

Allah Bachayo Soomro, Addl. A.-G. along with D.S.P. Agha Bashir Khan on behalf of S.S.P. Shaheed Banazirabad for Respondent.

2012 C L C 721

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Messrs SYNERGY ADVERTISING (PVT.) LIMITED through Manager

Administration--Applicant

versus

ALL PAKISTAN NEWSPAPER SOCIETY through Executive Director and 3

others----Respondents

C.M.As. Nos.10906 and 11009 of 2011 in Suit No.1307 of 2011, decided on 24th November, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2, Ss.94 & 151---Specific Relief Act (I of 1877), Ss.42 & 54---Injunction, grant of---Scope---Application for grant of interim injunction in a suit for declaration, permanent injunction and recovery by plaintiff, an advertising agency, under O.XXXIX, Rr.1 & 2 read with Ss.94 & 151, C.P.C. seeking suspension of the operation of Circular/Letter along with provisional no objection certificate issued by "All Pakistan Newspaper Society" in favour of defendant, the advertiser, and further restrain the said defendant, its officials, officers, office-bearers, assigns, successors or agents from conducting any business, inter alia, including publication of advertisements in print and electronic media through another advertising agency until the outstanding amount was deposited with the "All Pakistan Newspaper Society" and "Pakistan Broadcasting Association"---Held, relief of injunction was discretionary and court was not bound to grant the same in every case and it was not to be granted unless the court was satisfied as to its real need---Discretion was to be exercised in accordance with reasons and sound judicial principles---Court, while dealing with application for grant of injunction, had to look and to assess all the circumstances obtaining the suit and moreso, to equitable relief---Discretion vested in a court of law had to be exercised judicially and equitably ensuring all the times, that twain of law and justice were adequately applied and administered---Plaintiff, the advertising agency, in the present case, had itself defaulted by not submitting his claim in time and approached the court when the advertiser (defendant) desired to discontinue its services and when the advertiser had requested the "All Pakistan Newspaper Society" and "Pakistan Broadcasters Association" for issuance of NOC/clearance certificate, plaintiff never raised issue of "financial charges", which act of the plaintiff clearly showed its mala fide against the advertiser---Tentative assessment of material available in the record showed that plaintiff had no prima facie case at the present stage; balance of inconvenience was also not in favour of the plaintiff as great inconvenience would be caused to the defendants in exercising their legal rights to deal with the subject matter as per law, if injunction was granted---No irreparable loss would be caused to the plaintiff, if injunction was refused, because the loss, if any, could be compensated in shape of damages---Application for injunction was dismissed with no order to cost and interim order passed was vacated.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; Dollar Industries (Pvt.) Ltd. v. Nisar Traders and 7 others 2011 CLD 847; Islamic Republic of Pakistan v. Muhammad Zaman Khan and others 1997 SCMR 1508; M/s. Pakistan State Oil Company Limited v. Federation of Pakistan and 4 others 2010 CLC 1843; Pakistan International Airlines Corporation v. M/s. Hazir (Pvt.) Limited and another PLD 1993 Kar. 190; Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. and 4 others PLD 2004 SC 860; Citibank v. Tariq Mohsin Siddiqui and others PLD 1999 Kar. 196; Habib Bank Limited v. M/s. Farooq Compost Fertilizer Corporation Ltd. and 4 others 1993 MLD 1571; Province of West Pakistan v. M/s. Mistri Patel and Co. and another PLD 1969 SC 80; Laxmi Ginning v. Amrit AIR 1962 Punjab 56; Jainarain Ram v. Surajmull AIR (36) 1949 FC 211; Muhammad Yakoob v. Health Officer, Municipal Committee Hyderabad and another 1973 SCMR 184; Province of Sindh and 2 others v. Ghazi Khan 1983 CLC 1318; VIP Haider Estate v. Picic Commercial Bank Ltd. 2002 MLD 952; Daewoo Pakistan Motorway Services Limited v. Sun Shine Services 2009 CLC 406; Adhunik Steel Ltd. v. Orissa Manganese AIR 2007 SC 2563; Allah Ditta v. Abdul Khalique 2006 CLC 1152; Nigah-e-Karimee Enterprises v. Trust Investment Bank Ltd. 2005 CLC 912; Allied Bank of Pakistan v. Asisha Garments 2001 MLD 1955; National Development Finance Corporation v. Moona Liza Fruit Juices Limited 1999 YLR 500; Fatehchand v. Balkishan Das AIR 1963 SC 1405; Jewan and 7 others v. Federation of Pakistan and 2 others 1994 SCMR 826; Samar Gul v. Central Government and others PLD 1986 SC 35; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

Abid S. Zuberi, Haseeb Jamali and Ayan Memon for Applicant.

Salahuddin Ahmed and Atif Chaudhry for Respondent No.1.

Khalid Anwer, Rashid Anwer, Anas Makhdoom, Mustafa Ali and Ameen Bandukda for Respondent No.2.

Tasawur Ali Hashmi for Respondent No.3.

Ms. Saman Rafat Imtiaz for Respondent No.4.

Date of hearing: 21st November, 2011.

2012 C L C 754

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

GHULAM ABBAS and 9 others----Petitioners

versus

DILSHAD AHMED and 5 others----Respondents

Constitutional Petition No.D-69 of 2009, decided on 24th November, 2011.

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

----S. 161---Constitution of Pakistan, Art.199---Constitutional petition---Appeal---Maintainability of---Appellant neither filed original nor appellate order while filing appeal against impugned orders and Appellate Authority without adverting to that crucial question of law, not only entertained appeal, but passed an order in his appellate jurisdiction, which was totally against the provisions of law---Appellant in the memo. of appeal had already mentioned that earlier appeal filed by them was pending adjudication without any order---Instead of simply issuing the direction to Deputy District Officer to decide the pending appeal, District Officer himself assumed the jurisdiction, entertained the said appeal and allowed the same in contradiction of law, though he had observed in the impugned order that appeal was pending before the Deputy District Officer, who did not pass any order---Appeal under S.161 of West Pakistan Land Revenue Act, 1967, was competent only from an original and appellate order of the Revenue Officer and there was no original or appellate order before the District Officer, he therefore, wrongly exercised jurisdiction in the matter---Proper exercise of jurisdiction by the District Officer was to simply issue directions to the Deputy District Officer to decide the pending appeal and not to pass any order by his own---Impugned order was set aside by High Court and Deputy District Officer was directed to decide appeal, within one month.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---If there was any error on the point of law by the courts below or tribunal and the decision was based on violation of the provisions of law or was based on misreading or insufficient or inadmissible evidence, then in order to advance the cause of justice, superior courts had the jurisdiction to come to the rescue to an aggrieved party---Failure on the part of statutory functionary or a court to make a visible effect with diligent application of mind to objective assertion or to strive in search of truth for the sake of jurisdiction, the same was tantamount failure to exercise jurisdiction in the eye of law---Where order passed suffered from any jurisdictional defect or would violate any provision of law and if the error was so glaring and patent, that same could not be acceptable, invocation of constitutional jurisdiction was justified.

PLD 2001 SC 149 rel.

Ghulam Dastagir A. Shahani and Ghayoor A. Shahani for Petitioners.

Kashif Noor Khan Pathan for Respondent No.1.

Aziz-ul-Solangi, Asstt. A.-G.

Date of hearing: 27th October, 2011.

2012 C L C 761

[Sindh]

Before Salman Hamid, J

Mst. GULNAZ----Petitioner

versus

Mst. AMINA and others----Respondents

Constitutional Petition No.S-1036 of 2011, decided on 21st November, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Habeas Corpus---Custody of minors---Welfare of minors---Better economic conditions---Petitioner was mother of two minor children and her grievance was that after death of her husband, she was turned out of the house by her mother-in-law (paternal grandmother of minors) and she was deprived of the custody of her children---Plea raised by grandmother of minors was that she had better economic conditions than that of petitioner, therefore, welfare of minors was living with grandmother---Validity---Petitioner had a right of custody of minors of which she was entitled to the same and in no circumstances so long as welfare of the minors was not jeopardized, paternal grandmother of minors could retain custody of minors---Mother of minors was alive and able to take care of her minors and there could be no better cradle for the minors than their mother's lap, denying such natural right would be utter cruelty and grave injustice---Petitioner had not re-married and minors were of tender age and they could very well again be adjusted with mother though at the moment they might be under the influence of paternal grandmother and uncles and raise hue and cry in joining their real mother---Ultimately it would be best and in the interest and welfare of the minors that they were rejoined with their mother as there could be no better substitute of the minors than the mother herself---High Court directed the grandmother of minors to forthwith hand over the custody of minors to petitioner---Petition was allowed accordingly.

Ms. Sultana Parveen for Petitioner.

Ali Akbar for Respondents.

Date of hearing: 17th November, 2011.

2012 C L C 779

[Sindh]

Before Salman Hamid, J

Mst. BUSHRA through Attorney----Petitioner

versus

Mst. BUSHRA and 2 others----Respondents

Constitutional Petition No.S-1097 of 2010, decided on 25th November, 2011.

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

----S. 15(2)(vii)---Sindh Chief Court Rules (O.S.), Rr.105, 106 & 107---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Ex parte order---Service of process---Refusal to accept process---Rent Controller passed ex parte eviction order against tenant, as she intentionally did not join proceedings---Validity---Statement of bailiff showed that sons of tenant categorically refused to accept the court notice and under law such refusal was good service---To give full opportunity to tenant to safeguard her interest in the case, publication was also made but tenant did not come forward---Whatever was claimed by landlord, had gone un rebutted and Rent Controller was left with no choice, except to proceed further ex parte and pass eviction order---Tenant was aware of the case and was watching it closely and remained under the mirage that she would be able to delay proceedings and that once the order would be passed, she would come up with the plea that such was not in her knowledge but she failed in her anticipation and plans---Nothing was stated on oath in supporting affidavit to the application for setting aside ex parte order, regarding knowledge of the case or otherwise and in such circumstances application was dismissed by Rent Controller---Tenant had deliberately and willfully and with mala fide intentions kept herself away from the case, despite service---High Court, in exercise of Constitutional jurisdiction, declined to give any grace or latitude by upsetting concurrent findings of the courts below---Petition was dismissed in circumstances.

Muhammad Irfan for Petitioner.

Muhammad Noman Khan for Respondent No.1.

Date of hearing: 18th November, 2011.

2012 C L C 793

[Sindh]

Before Syed Hasan Azhar Rizvi, J

ABDUL FAYYAZ KHAN----Petitioner

versus

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

Constitutional Petition No.S-26 of 2009, decided on 29th November, 2011.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord---Principle---Word "good faith"---Connotation---Landlord has the option to seek ejectment of his tenant for his personal use but personal use of landlord is clipped with the words "good faith"---Apart from honesty, it is to be also ascertained that there is absence of malice and absence of design to defraud or to seek an unconscionable advantage---Mere desire, wish or whim on the part of landlord is not sufficient and adequate to justify ejectment of a tenant on the ground of personal requirement.

Sara Bai v. S. Anisur Rehman 1989 SCMR 1366 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application---Maintainability---Non-filing of resolution of Trust---Premises was owned by a Charitable Trust and ejectment application was filed by a person claiming to be Chief Trustee---Eviction order passed by Rent Controller against tenant was maintained by Lower Appellate Court---Plea raised by tenant was that ejectment application was not competently filed---Validity---Both the courts below erred by not considering the fact taken at preliminary stage that the person claiming to be the Chief Trustee had no authority/resolution of the Charitable Trust to file the case---Even the person claiming to be Chief Trustee stated during evidence that he could produce the Trust Deed if required but failed to produce the same---On failure to produce Trust Deed, the names of trustees of the Trust could not be ascertained and therefore, photocopy of the resolution filed by the said Chief Trustee with his affidavit-in-evidence before Rent Controller, which was not admissible otherwise, had no value or sanctity---Rent Controller and Lower Appellate Court committed jurisdictional error by not giving any findings on the authority of the person who filed the ejectment case---High Court, in exercise of Constitutional jurisdiction, found glaring irregularities, infirmities, illegalities, misreading, non-reading of evidence and jurisdictional error in orders of both Rent Controller as well as Lower Appellate Court and set aside eviction orders passed by both the courts below and ejectment application was dismissed---Petition was allowed in circumstances.

1970 SCMR 471; 1994 CLC 1487; 1999 CLC 892; 2003 MLD 131; 2006 CLC 379; Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472; Messrs A.M. Industrial Corporation Limited v. Aijaz Mehmood and others 2006 SCMR 437 and Bahir Ahmed v. Messrs Roots School Netword and others 2011 SCMR 290 ref.

Khawaja Shamsul Islam for Petitioner.

K.A. Wahab and Khadim Ali Metlo for Respondent No.3.

Date of hearing: 20th October, 2011.

2012 C L C 830

[Sindh]

Before Irfan Saadat Khan, J

Mst. MAQBOOL and others----Applicants

versus

Mst. FARIDI and others----Respondents

R.A. No.152 and IInd Appeal No.12 of 2003, decided on 24th December, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Partition Act (IV of 1893), Ss.2 & 4---Suit for declaration, injunction, partition---Original owner of suit property died leaving behind two sons who were having equal share in the properties left by their father---One of the sons of deceased died leaving behind his legal heirs, namely, his widow, daughter and a son---Legal heirs of deceased's son filed a suit for declaration, injunction and partition against defendant/other son of deceased---Plaintiff not only prayed for half-share in the property left by the original owner, but also claimed half share in the business of defendant---Trial Court decreed the suit of the legal heirs insofar as share in the property was concerned and disallowed the share in business---Both parties aggrieved with the order of the Trial Court filed appeals, which were dismissed by the Appellate Court below---Validity---Claim of defendant was that half portion of property of the plaintiff had already been gifted by the defendant and his deceased brother to wife of the defendant; so question of claiming any share in respect of said portion of property was not justified---Two authorities below had reached to a joint consensus that the legal heirs were entitled to their share in the entire building left by original owner---Alleged gift-deed in respect of portion of property, which was the primary document, had not been produced by the defendant to show that said portion had been gifted away by two brothers/sons of original owner to wife of the defendant---Defendant could not adduce cogent material to show that plaintiffs were not entitled to the share in respect of the entire building---Claim of defendant was rejected and plaintiffs were held entitled to have 1/2 share in the entire property left by original owner---Business in question was run exclusively by the defendant and documents submitted in that regard had also fully supported the same---Counsel for the plaintiff had failed to produce any document showing the involvement of the deceased father of the plaintiff in said business---Findings and the decision given by two courts below rejecting claim of gift transaction, not suffering from any legal infirmity, appeal against such concurrent judgments, was dismissed, in circumstances.

Kishanchand for Applicant (in R.A. No.152 of 2003).

Jhamat Jethanand for Respondents Nos.1 to 3.

Raja H.R. Naurang for Respondents Nos.4 to 6.

Jhamat Jethanand for Appellant (in IInd Appeal No.12 of 2003).

Kishanchand for Respondents (in IInd Appeal No.12 of 2003).

Date of hearing: 6th December, 2010.

2012 C L C 876

[Sindh]

Before Mushir Alam, C.J. and Ahmed Ali Shaikh, J

ABSAR AHMED and others----Petitioners

versus

GOVERNMENT OF SINDH and others----Respondents

Constitutional Petition No.D-3547 of 2011, decided on 22nd November, 2011.

Pakistan Nursing Council Act (XXVI of 1973)---

----Ss. 2(F), 12, 15, 19, 23 & 24---Constitution of Pakistan, Art.199---Constitutional petition---Admission in unrecognized Institution---Petitioners who claimed to be admitted and studying in the Institution, had sought directions against the authorities to allow the petitioners to be enrolled in the forthcoming session of examinations, scheduled to be held under their supervision---No date of admission and that of payment of admission fee etc. was mentioned in the admission cards of petitioners---Petitioners themselves had stated that they had learnt that the Institution was not affiliated with the Pakistan Nursing Council, yet they claimed that they continued to attend the classes---Details of qualification for General Nursing and Post Graduate Nursing was mentioned in the schedule to Pakistan Nursing Council Act, 1973 which had provided that unless the Institution was recognized, it could not extend any certificate or diploma or course as provided in the Pakistan Nursing Council Act, 1973---Under S.15 of Pakistan Nursing Council Act, 1973, no person was entitled to be enrolled in the register as nursing and midwifery etc. in the Institution which was not recognized---Petitioners were pursuing their education in the Institution which had not yet received any recognition, or which had been declined registration thrice in the past for serious deficiencies, they would be further wasting their valuable time, energy and resources---Constitutional petition filed by the petitioners being merit less was dismissed, leaving the petitioners to claim refund of the fees and other charges in addition to damages from the Institution, which was also prohibited from admitting any such student.

S. Ishrat Ghazali for Petitioners.

Muhammad Ashraf Mughal, D.A.-G. along with Ms. Fouzia Mushtaque, Deputy Registrar, Pakistan Nursing Council, Islamabad for Respondent No.2.

Saifullah A.A.-G. along with Ms. Zarina, Director Nursing Government of Sindh for Respondent No.3.

2012 C L C 912

[Sindh]

Before Muhammad Ali Mazhar, J

MOAR through Legal Heir----Applicant

versus

MEMBER BOARD OF REVENUE, SINDH HYDERABAD and others----Respondents

Civil Revision No.132 of 2004, decided on 21st November, 2011.

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

----S. 10---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XLI, R.31---Grant of State land on permanent tenure---Revoking of grant---Plaintiff filed suit for declaration and permanent injunction that State land in question was placed in Schedule for disposal to Haris/Small Khatidars, but was granted to different persons by the Colonization Officers on permanent tenure---Compromise was arrived at between the parties and defendant/grantee surrendered land in favour of the plaintiff and subsequently it was duly granted to the plaintiff by the Authority---Plaintiff was peacefully enjoying the possession over the suit-land, but after about 18 years, the Member, Board of Revenue, without providing opportunity of hearing to the plaintiff revoked said grant of land in his favour and directed the Colonization Officer to take further action in the matter---Trial Court dismissed suit by the plaintiff and appeal against judgment of the Trial Court was also dismissed---Validity---Appellate Court below instead of framing the points for determination, only reproduced the issues framed by the Trial Court---Appellate Court below though had recognized the grant of land in favour of the plaintiff, but without examining evidence or any Policy document, simply affirmed the order of Member, Board of Revenue that the land was within 20 chains of the village and same was disposed of against the land grant policy---Nothing had been said in the appellate judgment that Appellate Court had examined the legality, validity and propriety of the impugned judgment---Impugned judgment was set aside and the matter was remanded to the Appellate Court to decide the appeal afresh after hearing the parties.

Allahyar and others v. Jiand and others 2010 CLC 1931; Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772 and Muhammad Sadiq v. Secretary to the Government of Pakistan, Ministry of Religious Affairs Zakat and Ushr and Minority Affairs 2002 CLC 1049 ref.

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

----Ss. 161 & 164---Appeal and revision---Section 161 of West Pakistan Land Revenue Act, 1967, was only relevant to appeals and it had nothing to do with the provision of revision proceedings under S.164 of the said Act.

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

----O. XLI, R.31---Object of O.XLI, R.31, C.P.C.---Judgment of Appellate Court---Contents---Scope---Judgment of the Appellate Court would state the points for determination, decision thereon and the reasons for decision---Such rule was mandatory in nature and should be followed to enable the Appellate Court to decide the matter in accordance with law---When Appellate Court overlooked, ignored, failed to consider evidence on record or the order lacked application of mind, same would amount to failure to comply with the mandatory provisions of the rule---Judgment passed by Appellate Court must show that it had made a sincere endeavor to make proper appraisement of merits of the case put forward by the parties---Object of O.XLI, R.31, C.P.C. was to focus the attention of court and parties on specific rival contentions---Appellate Court should discuss evidence on record and its judgment must be supported by reasons.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings could not be considered sacrosanct or sacred in a situation where the rights of the parties were not determined in accordance with law and the judgments of the courts below were perverse or based on misreading or non-reading of evidence---Revisional jurisdiction as a matter of fact was meant to rectify the errors made by subordinate courts.

David Lawrence for Applicant.

Gianchand Keswani for Respondents.

Imtiaz Ali Soomro, A.A.-G.

Date of hearing: 6th October, 2011.

2012 C L C 958

[Sindh]

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

INFORMATION SYSTEMS ASSOCIATES LIMITED through (CEO)----Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Information Technology and Telecommunication Division Ministry of Information Technology and another----Respondents

Constitution Petition No.D-1488 of 2010 and C.M.As. Nos.5906 of 2010 and 18468 of 2011, decided on 24th January, 2012.

(a) Constitution of Pakistan---

----Art. 18---Right of citizen to choose and conduct any lawful trade, business, occupation or profession---Object and scope of such right stated.

Article 18 of the Constitution consists of two parts. The first, which confers upon a citizen a right to choose his profession and business, etc. and is objected towards enabling the citizen to explore and adopt the best for his future and the means of his living and earning; and the best for his expression and recognition of his skill and the ability. However, this right is not absolute and unqualified; rather this Article itself permits the State through proper legal means to impose certain qualification for the exercise of the right without possessing which it cannot be so exercised. Such qualification may also be prescribed for a person who intends to conduct a particular business or trade, which may involve some special skill and the expertise. The second part of this Article permits only such profession or business etc., which is "lawful". Meaning thereby that any unlawful profession etc., shall not be protected under this Article. The expression "lawful" appearing in this Article has been used in contradistinction to the word "unlawful".

(b) Constitution of Pakistan---

----Arts. 4, 8, 18, 184(4) & 199(2)---Fundamental rights guaranteed by the Constitution---Nature and importance of such rights and duty of superior courts in case of breach thereof by State stated.

The fundamental rights are primordial in nature, which are imperative and essential for the very existence, development, progress, prosperity of the citizens of the State, and are necessary for the growthand expression of their personalities. These are the basic in character, because they enable a citizen to chalk out his own life in the manner he likes the best; these are the rights which a citizen possesses as a creature of the nature, and are natural in form. However, for the precise identification, extent, guarantee and the enjoyment of such rights in an orderly democratic society, such as ours; the whole nation entered into a contract and by a unanimous resolution endorsed the right in the Constitution on account of the above, the political powers of the State stood security for the sanctity and inviolability of these rights; enabling the citizens to successfully resist the political authority in the State and assert his rights in the case of breach. The provisions of Article 4 of the Constitution has made these rights inviolable and inalienable by conferring a right upon every individual to be dealt with in accordance with law and by specifically providing that "No person shall be prevented from or be hindered in doing that which is not prohibited by law".

It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of these rights. And in case of any violation, encroachment thereof, the judiciary specially the superior courts of the country by means of Articles 199(2) and 184(4), have been made responsible to provide remedy to those citizens whose rights have been encroached by the State or its functionaries. The importance of fundamental rights can also be gauged from the provisions of Article 9 of the Constitution, which declares that any existing law, which is inconsistent with these rights shall be void, and further prohibits the State from enforcing any law which takes away or abridges such rights.

It is thus clear that every citizen shall have the right to choose and conduct any profession, occupation, trade or business, but subject.to the requisite qualifications, if any, prescribed by the law in that behalf and that further such profession etc., has not been declared unlawful or forbidden by any law. The validity of such prescribed qualification or the prohibition can still be examined by the superior courts in exercise of the power of the judicial review on the touchstone of other fundamental rights including Article 19 and other provisions of the Constitution and the law.

Ayaz Textile Mills Ltd. v. Federation of Pakistan and another PLD 1993 Lah. 194; K.B. Threads (Pvt.) Ltd. and others v. Zila Nazim, Lahore and others PLD 2004 Lah. 376 and Arshad Mehmood and others v. Government of Punjab and others PLD 2005 SC 193 ref.

Salman Talibuddin for Petitioner.

Sibtain Mahmud and Ali Akber Sahto for Respondent No.2.

Date of hearing: 19th December, 2011.

2012 C L C 985

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABID ALI BAIG----Petitioner

versus

ZAFFAR ALI and 5 others----Respondents

Constitutional Petitions Nos.389 of 2007 and D-84 of 2009, decided on 22nd February, 2012.

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

----S. 8---Review of orders by the Provincial Board of Revenue----Scope---Section 8 of West Pakistan Board of Revenue Act, 1957, had empowered a person aggrieved by a decree or order passed by the Board of Revenue, and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge; or could not be produced by him at the time when the decree was passed or the order was made; or on account of some mistake or error apparent on the face of the record; or for any other sufficient reason, could apply for a review---Special provision of S.8 of West Pakistan Board of Revenue Act, 1957 was introduced to provide additional remedy to an aggrieved person to move for review on discovery of new and important matter or evidence, which could not have been produced by him at the time when earlier order was passed---Powers of review of Board of Revenue, were very limited and could be invoked only for specific points, namely discovery of new and important matter for evidence, which after exercise of due diligence, was not within the knowledge of the petitioner; or could not be produced by him at the time when the decree was passed or order was made; on account of some mistake or error apparent on the face of record; or for any other sufficient reasons---If power of review was exercised by the Board of Revenue for rectifying the decision of a Member of Board of Revenue, which suffered from incorrect interpretation or application of law or non-appreciation of facts, it would lead to an un attending cycle of litigation---Such power, in the circumstances, was not available to any successor to adjudge the validity of order of his predecessor; it was not every cause which would make the remedy by way of review available, but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of the record---Scope of review was limited and could be invoked and allowed only on the grounds specifically provided in the provision of law; and was not to be mistaken with appeal---Power to review could be exercised where there was a mistake or error of law or fact apparent on the face of record---To find out such error, one had not to scrutinize the record or evidence, but it should be self-evident from the perusal of record itself; and could be pinpointed without elaborate examination.

Muhammad Din v. Muhammad Amin reported in (PLD 1994 SC 288; 1991 SCMR 2307 and Muhammad Amin, Member (Consolidation) Board of Revenue Punjab 1992 CLC 2338 rel.

Jamshed Ahmed Faiz and David Lawrence for Petitioner (in C.P. No.D-389 of 2007 and for Respondent No.1 in C.P. No.D-84 of 2009).

Shaikh Abdul Ghani for Petitioner (in C.P. No.D-84 of 2009 and for Respondent No.1 in C.P. No.D-389 of 2007).

Imtiaz Ali Soomro, Asstt. A.-G., Sindh.

Date of hearing: 22nd November, 2011.

2012 C L C 1019

[Sindh]

Before Faisal Arab, J

Shaikh WASEEM----Petitioner

versus

Dr. Mrs. TAHIRA HUSSAIN through Legal Heirs and others----Respondents

Constitutional Petition No.S-467 of 2009, decided on 31st January, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S.12(2), C.P.C.---Duty of Court while entertaining such application---Important aspects to be examined by court highlighted.

While entertaining application under section 12(2), C.P.C., the first and foremost thing which is to be examined is whether the application comes within the scope of the provisions of section 12(2) C.P.C. Once this aspect is examined by the court and in case it is found that it falls within the scope of the provisions of section 12(2), C.P.C., then the next thing that is to be examined is whether the plea of fraud or misrepresentation or want of jurisdiction can only be decided after evidence is recorded or the application under section 12(2), C.P.C. can be summarily decided on the basis of available record without going into the long process of recording evidence. In case the controversy cannot be resolved without recording evidence, then after framing of issues opportunity to the parties is to be given to record evidence, but before taking any other step it is to be examined whether the application under section 12(2), C.P.C. was entertainable.

Zia-ul-Haq Makhdoom along with Azher Mehmood and Faisal Aziz for Petitioner.

Abdul Qadir Khan for Respondents.

2012 C L C 1028

[Sindh]

Before Mushir Alam, C.J. and Nisar Muhammad Shaikh, J

Mrs. GULSHAN AFROZE through Legal Heirs and 9 others----Appellants

versus

MUHAMMAD JAMAL and 4 others----Respondents

High Court Appeal No.150 of 2007, decided on 14th February, 2012.

Specific Relief Act (I of 1877)---

---- Ss. 39, 42 & 54--- Civil Procedure Code (V of 1908), O.II, R.2 & O.VII, R.11---Law Reforms Ordinance (XII of 1972), S.3--- Suit for cancellation of document, declaration and injunction---Intra-court appeal---Relinquishing of claim---Rejection of plaint---Gift deed in question was executed in year 1993, and two relinquishment deeds were also executed in the same year---Plaintiff, in her earlier suit assailed relinquishment deeds but the suit was rejected on the ground that it was barred by time---Plaintiff, in subsequent suit, assailed gift deed with same object/purpose as was claimed/alleged by plaintiff in her earlier suit---Single Judge of High Court rejected the subsequent suit as the same was barred under O.II, R.2, C.P.C.---Validity---Object and purpose of both the suits was the same i.e. for execution of three documents, therefore, alleged violation or infringement of such understanding constituted one and the same cause of action in respect of whole of the claim and any portion of which could not be omitted but plaintiff in her earlier suit did not mention anything about the portion of her claim relating to gift deed---While omitting claim regarding gift deed, plaintiff made claim in respect of relinquishment deeds, therefore, portion of claim so omitted from earlier suit, could not be claimed afterwards by way of second suit---Plaintiff did not claim that at the time of filing her first / earlier suit she was not aware of her alleged right to the portion of the claim so omitted by her---Second/subsequent suit was rightly found by single Judge of High Court to be hit by Order II, Rule, 2, C.P.C. and was barred by limitation and accordingly plaint was rejected---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court---Intra-court appeal was dismissed, in circumstances.

Abdul Ghafoor Qureshi for Appellant No.1.

Habib-ur-Rehman for Respondent No.1.

Nemo for Respondents Nos.2 to 5.

2012 C L C 1040

[Sindh]

Before Munib Akhtar, J

AHMED KULI KHAN KHATTAK----Plaintiff

versus

CREEK MARINA (SINGAPORE) PVT. LTD. Through Chief Executive Officer and 5 others----Respondents

Suit No.911 and C.M.A. No.7630 of 2011, decided on 24th February, 2012.

(a) Sale of Goods Act (III of 1930)---

----S. 2(3)---Companies Ordinance (XLVII of 1984), S.2(35) ---Shares in company---Legal nature---Scope---Shares of company are regarded as constituting a bundle of rights that shareholder has in, and against, company (and as appropriate against other shareholders as well)---Of these, by far the most, valuable rights are the rights to participate and vote in a members' meeting (such as the annual general meeting or an extraordinary general meeting) and to receive dividends---Share certificates, in English Law are only evidence of a shareholder's title to such rights, whereas under Sale of Goods Act, 1930, share certificates are, in addition, goods as well.

(b) Sale of Goods Act (III of 1930)---

----S. 2(3)---Companies Ordinance (XLVII of 1984), S.2(35)---Shares in company---State of goods---Scope---State of goods in context of shares is not limited to their physical condition---Shares mean and include the document i.e. transfer deed duly executed by seller, without which buyer cannot enjoy benefit of goods that he is acquiring.

Official Assignee, Bombay v. Madholal Sindhu AIR 1947 Bombay 217 and Ghulam Mustafa v. Officer on Special Duty, Federal Land Commission and another 1984 CLC 824 ref.

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

----O. XXXIX, Rr.1 & 2---Sale of Goods Act (III of 1930), S.2(3)--- Specific Relief Act (I of 1877), S.12--- Suit for specific performance of agreement to sell---Interim injunction, grant of---Shares purchase contract---Plaintiff and two others entered into agreement with defendant, for purchase of entire shareholding of defendant company---Defendants resisted interim injunction on the plea that plaintiff failed to make payment in terms of agreement---Validity---Payment of a sum of USD 1.5 million under one clause of agreement was not in dispute---Plaintiff claimed that another payment of USD 1.5 million under other clause of agreement was made but the same was denied by defendants---High Court for the purposes of application for interim injunction, proceeded on the basis that tentatively the payment was made by plaintiff---Plaintiff had made out a prima facie case and conduct of defendants in the matter and in relation to transaction and before High Court left a lot to be desired---Equities were in favour of plaintiff and against defendants---Undisputedly a large portion of sale consideration remained unpaid and therefore, defendants' interest must also be protected---High Court directed plaintiff to furnish bank guarantee in sum of USD 5.25 million or its equivalent Pakistani Rupees and interim injunction was granted---Application was allowed accordingly.

Guandong Overseas Construction Group Company Ltd. v. Creek Marina (Pvt.) Ltd. PLD 2011 Kar. 304; 2011 CLC 648; Seth Essabhoy v. Saboor Ahmed PLD 1972 SC 39; Jaffar Khan v. Muhammad Achar PLD 1961 Kar. 335; Ziaulkhalique and others v. Tanveer Ismail and others 1989 MLD 3940; Kulkarni v. Manor Credit (Davenham) Ltd. [2010] EWCA 69; [2010] 2 Lloyd's Rep 431; R.V. Ward Ltd. v. Bignall [1967] 2 All ER 449; Attorney-General of Belize v. Belize Telecom Ltd. [2009] UKPC 10 and [2009] 2 All ER 1127 ref.

Abid S. Zuberi with Muhammad Haseeb Jamali and Ayan M. Memon for Plaintiff.

Arshad Tayebaly with Amel Khan Kansi for Defendants Nos.1 to 5.

2012 C L C 1083

[Sindh]

Before Salman Hamid, J

AVARI HOTELS LIMITED----Appellant

versus

FEDERATION OF PAKISTAN through Secretary, Information and Broadcasting and another----Respondents

IInd Appeals Nos.73, 74 and 77 of 2009, decided on 1st February, 2012.

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

----S. 33---Pakistan Electronic Media Regulatory Authority Rules, 2002, Rr.2(e) & 2(1)---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 56---Suit for declaration---Notice issued by Pakistan Electronic Media Regulatory Authority (PEMRA) demanding plaintiff to obtain a license for Cable Television (CTV) operations in its hotel---Plaintiff claimed not to be falling within meaning of CTV Operator as he was not "transmitting" and/or "broadcasting" through "head-end" channels in its hotels as alleged in the impugned notice---Defendant's application under O.VII, R. 11, CPC seeking rejection of plaint for not being maintainable under Ss. 42 & 56(d)(i)(j) of Specific Relief Act, 1877---Order of Trial Court rejecting plaint upheld by Appellate Court---Validity---Evidence would be required for deciding questions as to whether plaintiff was "transmitter" and/or "broadcaster" through "head- end" or engaged in business of transmission or re-transmission of audio visual programs by cables or MMDS, and whether such were services licensable under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and Pakistan Electronic Media Regulatory Authority Rules, 2002---Trial Court while granting interim injunction had come to conclusion that admittedly appellant was providing hotel management services to its guests, thus, he was not involved in transmission and distribution of programs to subscribers, rather he was using TV Channels to ensure availability of programs to its guests---Appellant had a legal character to invoke jurisdiction of court for a declaration that provisions of Pakistan Electronic Media Regulatory, Authority Ordinance, 2002 and Rules were not applicable---Plaintiff's case prima facie fell into pail of S.42 of Specific Relief Act, 1877---High Court set aside impugned order in circumstances.

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

----S. 42---Expression "legal character" as used in S.42 of Specific Relief Act, 1877---Meaning stated.

The expression "legal character" as used in section 42 of the Specific Relief Act, 1877 is equivalent to a legal status and legal status is a legal right when it involves a peculiarity of the personality arising from any thing unconnected with the nature of the act itself which the person of inherence can enforce against the person of incident.

S.M. Awan for Appellants (in Appeals Nos.73 and 74 of 2009).

Zahid F. Ebrahim for Appellants (in Appeal No.77 of 2009).

Pir Riaz M. Shah, Standing Counsel for Respondent No.1.

Kashif Hanif for Respondent No.2.

2012 C L C 1124

[Sindh]

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

EXIDE PAKISTAN LIMITED----Petitioner

versus

CANTONMENT BOARD CLIFTON and another----Respondents

Constitutional Petition No.D-3559 of 2010, heard on 6th October, 2011.

(a) Cantonments Act (II of 1924)---

----Ss. 200, 2(xxx), 2(viii)---Constitution of Pakistan, Art.199---Constitutional petition---Cantonment Board, powers of---Petitioner assailed the imposition of "Shop Board Fee" by the Cantonment Board on the ground that such a levy could not be imposed by the Cantonment Board---Validity---Power of the Cantonment Board under section 200 of the Cantonments Act, 1924 to impose "stallage , rent and fees" was not unqualified, but could only be used with the prior approval and sanction of the competent authority (the Chief of Army Staff or any other officer appointed by the Government as per Section 2(viii) of the Cantonments Act, 1924)---Nothing on record was available to show that such levy had the approval of the competent authority-­--Cantonment Board could exercise its authority to levy "stallages, rents and fees" in respect of shops situated in public markets as defined in section 2(xxx) of the Act, however shop of the petitioner was not situated in public market but in the private commercial premises---"Shop Board Fee" appeared to be an entirely different genre of fee more akin to advertisement/sign-board of the shop which did not fall within the contemplation of "stallages, rents and fees" within the sanction of Section 200 of the Cantonments Act, 1924---Cantonment Board had no authority to grant or approve the "Shop Board Fee"---High Court struck down impugned demand of "Shop Board Fee" and observed that the Cantonment Board had no authority to collect "Shop Board Fee" from a private commercial premises---Imposition of shop board fee was held to be without lawful authority---­Constitutional petition was allowed.

Rajkumar v. Hyderabad Cantonment Board 2006 MLD 549; Munawar Younus and others v. Karachi Cantonment Board 2011 MLD 1006 and Station Commander Chaklala Cantonment v. Col. (R) Muhammad Abbas Malik 2006 CLC 1674 rel.

(b) Constitution of Pakistan---

----Art. 77---Tax to be levied by law only---Government or Authority could not compulsorily extract money from any class of person either in the form of tax, charge or levy, unless specifically authorized under law.

(c) Interpretation of Statutes---

----Fiscal and charging statutes were to be strictly construed.

Ch. Muhammad Arif for Petitioner.

Jamaluddin Ansari for Respondent No.1.

M. Hanif Kashmiri for Respondent No.2.

2012 C L C 1195

[Sindh]

Before Salman Hamid, J

Haji MUHAMMAD SAEED----Petitioner

Versus

Mst. BANO BEGUM and 2 others----Respondents

Constitutional Petitions Nos.S-300 and S-301 of 2009, decided on 30th November, 2011.

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

----Ss. 10 & 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need of landlord---Eviction of tenant (petitioner) was allowed concurrently by the courts below---Validity---No notice of application under S.10(3) of the Sindh Rented Premises Ordinance, 1979 was issued to the landlord for depositing the rent with the Rent Controller and the landlord was not informed of the same---Section 10(3) of the Ordinance gave a machinery as to how, upon refusal of the landlord to accept the rent, the rent could be tendered---Due rent had not been tendered to the landlord and the rent was deposited with the Rent Controller without any refusal to accept rent by the landlord, therefore, the same amounted to "default" inasmuch as the stipulations of Ss.10(3) & 10(4) of the Ordinance had not been complied with by the tenant---Section 10(4) of the Sindh Rented Premises Ordinance, 1979 clearly demanded that written acknowledgement, postal money order or receipt shall be produced and accepted as proof for payment of rent, and the same was not proved by the tenant---Personal need of the landlord could not be dislodged by the tenant---Courts below, in circumstances, came to the correct conclusion---High Court while exercising jurisdiction under Article 199 of the Constitution may interfere only when it was necessary and a wrong or illegal conclusion had been drawn by the courts below---High Court in its constitutional jurisdiction was not to sit as a court of appeal on questions and findings of facts, recorded by a competent court and would not interfere in the same in its constitutional jurisdiction in a routine---Constitutional Petition was dismissed.

(b) Constitution of Pakistan---

---Art. 199---Constitutional Jurisdiction, of High Court---Scope---High Court while exercising jurisdiction under Article 199 of the Constitution, may interfere only when it was necessary and a wrong or illegal conclusion had been drawn by the courts below---High Court, in its constitutional jurisdiction, was not to sit as a court of appeal on questions and findings of facts, recorded by a competent court and would not interfere in the same in its constitutional jurisdiction in a routine.

A. Wajid Wyne for Petitioner.

Badarudduja Khan for Respondent No.1.

Date of hearing: 22nd November, 2011.

2012 C L C 1202

[Sindh]

Before Muhammad Ali Mazhar, J

MUZAFAR AHMED----Applicant

Versus

IRSHAD AHMED CHAUDHARY and another----Respondents

Revision Application No.197 of 2010, decided on 30th March, 2011.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908) O.IX, R.6---Suit for declaration, specific performance of oral agreement to sell immovable property and permanent injunction---Defendants despite service, did not appear and were proceeded against ex parte---Suit of plaintiff was dismissed concurrently thereafter on, inter alia the grounds that the whole suit was based on an oral agreement to sell and the plaintiff had failed to produce any documentary evidence or witnesses to prove his claim---Validity---Law did not require that an agreement or contract of sale of immovable property should only be in writing, however, where a party came forward to seek a decree for specific performance of contract of sale of immovable property on basis of an oral agreement alone, heavy burden lay on the party to prove that there was consensus ad idem between the parties for a concluded oral agreement and an oral agreement was required proved clearly and most satisfactorily---Order IX, Rule 6, C.P.C. empowered the Trial Court to proceed ex parte and pass a judgment even without the recording of evidence, however, the court of law was not expected to shut its eyes and mechanically pass an order and decree in favour of the plaintiff---When a court struck off the defence of defendant, it had further to decide in the exercise of discretion whether it should decree the claim against the defendants after recording of evidence or without recording of evidence and like all discretion vested in the court, such discretion must be exercised judicially---Plaintiff had to stand on its own legs to satisfy the conscious of the court as to the existence of any right---Trial Court had stated that the plaintiff failed to produce any single witness but on the contrary the plaintiff had categorically stated that the plaintiff produced the witnesses in court but the Trial Court suggested that in ex parte proceedings there was no need to produce evidence---High Court observed that it would advance the cause of justice to allow an opportunity to the plaintiff to produce evidence and witnesses of the alleged oral agreement, payment and possession of the suit property and directed that the matter be remanded to Trial Court for decision afresh---Revision was disposed of accordingly.

Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others 2000 YLR 1513; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan PLD 1991 SC 363 and Messrs Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi 1970 SCMR 251 rel.

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

----O. IX, R. 6---Order IX, Rule 6, C.P.C. did not provide any arbitrary authority or blatant discretion towards decrees by closed eyes---Spirit of law demanded that when a Trial Court did not find it necessary to examine evidence, reasons must be recorded for showing justification for deciding the claim without taking further proceedings and without recording of evidence.

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

----O. IX, Rr. 6 & 13---Judgment passed against defendant in a suit under Order IX, Rule 6, C.P.C.---Application under Order IX, Rule 13, C.P.C. for setting aside ex parte decree, would be competent in addition to the appeal which was available under law against such a decree

Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan PLD 1991 SC e63 and Messrs Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer, "N" Division, Karachi 1970 SCMR 251 rel.

(d) Administration of justice---

----Spirit of law demanded that when Trial Court did not find it necessary to examine evidence, reasons must be recorded for showing justification for deciding the claim without taking further proceedings and without recording of evidence.

Ahmed Dawood Sardar for Applicant.

Nemo for Respondents.

Date of hearing: 30th March, 2012.

2012 C L C 1230

[Sindh]

Before Shahid Anwar Bajwa and Nisar Muhammad Shaikh, JJ

SAFEHAVEN MARINE LTD. Through duly constituted Attorney----Petitioner

Versus

KARACHI PORT TRUST----Respondent

Constitutional Petition No.D-4168 of 2011, decided on 13th March, 2012.

(a) Public Procurement Rules, 2004---

----Rr. 33, 36 & 38---Constitution of Pakistan, Art.199---Constitutional petition---Public procurement---Financial bid---Vested right of bidder---Scope---Port Trust (KPT) invited bids for procurement of two Pilot Boats and petitioner claimed to be the lowest bidder having vested right to its bid to be accepted but KPT did not award contract---Validity---At the end of bidding, there were only two bids left; one by petitioner and other by another bidder---Petitioner's bid was for Glass Reinforced Plastic (GRP) hull and that of the other bidder was for steel hull, therefore, prima facie the two were apples and oranges and could not be compared with each other---In tender documents, type of material for hull, GRP or Steel was not specified, therefore, it could be either---Even if the two bids remaining in field were treated as comparable and therefore, should have been compared with each other, in presence of only two bids, there could be a "lower" bid and a "higher" bid but there could not be " the lowest bid", which adjective being in superlative degree and not in comparative degree required at least three to be compared with each other---High Court declined to interfere in the order passed by authorities---Petition was dismissed in circumstances.

Mst. Shabnam v. Federation of Pakistan through General Manager/Operations Pakistan Railways Headquarters Office, Lahore and 3 others 2009 PLC (C.S.) 327; Kamaluddin Qureshi v. Ali International Co. PLD 2009 SC 367; Muhammad Kaleem Asif v. Additional District Judge PLD 2009 Lah. 484; Muhammad Usman and another v. Additional District Judge, Lahore PLD 2010 Lah. 281; City Schools (Pvt.), Lahore Cantt. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150; Afzal Motors Company (Pvt.) Limited v. Province of Sindh and others 2009 SCMR 659; Petrosin Corporation (Pvt.) Ltd. Singapore and 2 others v. Oil and Gas Development Company Ltd. through Managing Director, Islamabad 2010 SCMR 306 and Messrs Bagh Construction Company v. Federation of Pakistan and others 2001 YLR 2791 ref.

(b) Public Procurement Rules, 2004---

----R. 33---Bid, cancellation of---Discretion of authorities---Scope---Public functionaries are trustees of public power and are required to act fairly, justly and for valid reasons and are not required to act whimsically, capriciously or arbitrarily.

Khurram Rashid for Petitioner.

Badar Alam for Respondent.

Date of hearing: 6th March, 2012.

2012 C L C 1293

[Sindh]

Before Nadeem Akhtar and Muhammad Shafi Siddiqui, JJ

ARSHAD NASEEMUDDIN AHMED----Appellant

Versus

JAVED BALOCH and 3 others----Respondents

High Court Appeal No.22 of 2010, decided on 2nd May, 2012.

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

----S. 12 & Art.151---Intra-court appeal---Limitation---Exclusion of time spent in obtaining certified copy of impugned order dated 3-11-2009---Appellant applied for such certified copy on 19-11-2009, and copyist estimated its cost on 25-1-2010, and appellant paid same on 29-1-2010 and filed appeal on 3-2-2010---Respondent's plea that due to failure of appellant to pursue the matter of the copy vigilantly, he was responsible for such inordinate delay in estimation of its cost---Validity---Estimation of cost was within discretion and power of concerned copyist, and appellant had neither any role to play therein nor had power to have got cost estimated---Time taken by copyist in estimation of cost could not be attributed to appellant, rather same would be excluded from time taken by him in filing appeal---Appeal was not time-barred in circumstances.

Mst. Jamila Khatoon v. Mst. Tajunnisa and others PLD 1984 SC 208 and Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157 distinguished.

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

----S. 47, O. XXI, Rr, 95, 100 & 103---Execution proceedings---Objection petition---Recording of evidence by court to decide such petition---Scope---Provisions of S.47, O. XXI, Rr.95, 100 & 103, C.P.C. did not require court to decide such petition always by recording evidence despite finding same to be frivolous and meant to delay and drag such proceedings---Determination of question whether or not recording of evidence would be necessary for deciding such petition would depend upon facts and circumstances of each case.

Muhammad v. Hussain and 2 others 1986 CLC 2600; Ghulam Qadir v. Haji Munir Ahmed 1989 MLD 2503; Shahida Parveen v. Saeed Mirza 1990 CLC 938 and Surayya Begum v. Muslim Commercial Bank PLD 1990 Lah. 4 distinguished.

Munir-ur-Rehman for Appellant.

Malik Naeem Iqbal for Respondent No.1.

Nemo for Respondent No.2.

Ch. Khalid Rahim Arain for Respondents Nos.3 and 4.

Date of hearing: 14th April, 2012.

2012 C L C 1329

[Sindh]

Before Salman Hamid, J

SHAHOOR AHMED SIDDIQUE----Petitioner

Versus

Mst. ZUBAIDA BEGUM and 2 others----Respondents

Constitutional Petition No.591 of 2010, decided on 10th January, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of maintenance allowance and dower---Husband (petitioner) assailed concurrent findings of the courts below whereby suit of wife was decreed---Contention of the husband, inter alia, was that the wife (respondent) left the husband on her own accord, and that the husband had divorced the wife, therefore she was not entitled to maintenance---Validity---Husband had brought nothing on record to substantiate such alleged divorce and it remained unproved---Wife, whose husband had attempted to kill her and caused bullet injuries to her, would remain under constant threat---Wife, still had a bullet stuck in her, and leaving the husband in such precarious conditions, was nothing out of the ordinary, especially when husband was of short-temper and had a harsh attitude---Wife was not living away from husband on her own accord, but for unavoidable reasons , and therefore, the husband's claim that the wife remained away from the husband on her own accord, did not seem logical---Orders of courts below did not require any interference and the same were based on appreciation of evidence and no non-reading or misreading of evidence was brought forward---Constitutional petition was dismissed.

Abdul Hamid for Petitioner.

M. Imtiaz Agha for Respondent No.1.

Date of hearing: 21st December, 2011.

2012 C L C 1372

[Sindh]

Before Mushir Alam, C.J. and Nisar Muhammad Shaikh, J

PROVINCE OF SINDH through Secretary (LU) and 3 others----Appellants

Versus

Haji GHANO KHAN JATOI and 3 others----Respondents

High Court Appeal No.157 of 2009, decided on 21st March, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.80 & O.VII, R.10---Suit for declaration and permanent injunction---Plaintiff claimed to be purchaser of suit land from defendants (Provincial Government & City District Government) on basis of contract of sale, whereunder they were bound to issue NOC for its sale in his favour---Suit decreed by Trial Court for failure of defendants to file written statement and counter affidavit---Validity---Defendants, after service with summons were given four weeks time in routine for filing written statement---Proceedings in suit before expiry of such time remained pending for passing order on an interlocutory application and had never been fixed for filing of written statement by defendants as one other defendant was not served with summons---Trial Court had not fixed proceedings on relevant date for final hearing or disposal---No notice under S. 80(1), C.P.C. had been issued to defendants prior to filing of suit, thus, they, for filing of written statement were entitled to be granted mandatory period of three months, which could not be curtailed in any case---Trial Court had decreed suit within two months of service of summons, which had not been effected upon all defendants---Trial Court had acted arbitrarily while passing impugned decree at a premature stage of hearing an interlocutory application---High Court set aside impugned decree and remanded case for its decision according to law after allowing one month time to defendants for filing written statement.

Adnan Karim and Ahmed Pirzada, A.A.-G. Sindh for Appellants.

Shaiq Usmani for Respondent No.1.

Zakir Hussain Khaskhali for Respondent No.2.

Sardar Muhammad Yousuf for Respondent No.4.

Dates of hearing: 26th August, 2010 and 20th February, 2012.

2012 C L C 1409

[Sindh]

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

PROVINCE OF SINDH through Chief Secretary Sindh and 2 others----Appellants

Versus

MUHAMMAD SADIQ and 5 others----Respondents

H.C.A. No.110 of 2011, decided on 8th May, 2012.

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

----S. 5---Delay, condonation of---Obligations of person seeking such condonation stated.

Law favours the diligent litigant and not the negligent. It is the duty and obligation of the aggrieved person to pursue his legal remedy with diligence and satisfy conscious of the court or quasi-judicial authority for approaching respective forums beyond prescribed limitation coupled with the fact that in case the aggrieved person has not availed remedy within the prescribed period, then the vested right had accrued to the other side, which cannot be taken away lightly even if objection to that effect were not raised by the opposite party. Not only this, it is the duty and obligation of the aggrieved person seeking condonation of delay must have to justify each day's delay.

(b) Limitation---

----Short order/judgment not containing detailed reasons passed by superior courts---Limitation, starting of---Scope---Limitation for filing appeal or review against such order would start running from the date of its passing---Principles.

The short order even not elucidating the reasons which has been signed and it finally disposes of the matter and thus the court does not retain any control over the lis, for all intents and purposes is the final judgment/order of the court; the party aggrieved of such order/judgment intending to assail the same in appeal or review must avail its remedy within the prescribed period of limitation from the date of short order etc., rather than waiting for the detailed reasons and allowing the limitation to pass by, however, in such a situation a right can be reserved to add to the ground of attack as and when the reasoned judgment is made available.

Muhammad Sadiq and others v. Ali Asghar Khan and others 1995 CLC 1529 ref.

(c) Undertaking (statement)---

----Undertaking and/or statement given in court by a party or Government officer---Validity---Retraction from such undertaking could not be allowed, otherwise same would cause distrust of public in judiciary---Principles.

Any statement/undertaking given by a party in the court of law has to be given sanctity, because on the one hand there is a legal estoppel, and on the other moral and ethical grounds against it. Retraction from such undertaking cannot be allowed, because the same would result in distrust of the public litigants in the judiciary and would tarnish the sacred image of the judicial officers before whom once a consent is given by making a statement/undertaking and later on withdrawn, therefore, it would become a mockery of law and facts. If such practice is allowed to prevail and is ignored by the courts, it cannot add to the trust of public litigants in the judiciary and judicial system, but would reflect on lack of trust in the judiciary, which cannot be permitted, because sanctity to the judicial proceedings has to be preserved at any cost. In the present case, the undertaking given by high profile Government officers before the court and not by a lower formation officials or private litigants and now they retract from their undertaking, what can be expected from general litigant. High Court directed the Government Officials to be more careful in future while making statement and/or giving undertaking before the court.

Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361; Petrosin Corporation Pvt. Ltd. v. OGDC PLD 2011 SC 235; Abdul Rashid v. Director-General, Post Offices, Islamabad and others 2009 SCMR 1435 and Farzana Rasool and 3 others v. DR. Muhammad Bashir and others 2011 SCMR 1361 ref.

Sarwar Khan, Addl. A.-G., Sindh and Sahifullah, Asstt. A.-G. Sindh for Appellants.

Abrar Hassan, Syed Masroor Ahmed Alvi and Syed Jehangir Akhtar for Respondents Nos.1 and 2.

Taha Ali Zai for Respondent No.3.

Shahzad Qureshi for Respondent No.4.

Dates of hearing: 13th October, 2011 and 2nd April, 2012.

2012 C L C 1434

[Sindh]

Before Munib Akhtar, J

Messrs SHAHEEN CONSTRUCTION COMPANY through Proprietor----Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and another----Defendants

Civil Miscellaneous Applications Nos.821 and 1929 of 2012 in Civil Suit No.103 of 2012, decided on 16th May, 2012.

Public Procurement Rules, 2004---

----Rr. 2(1), 3 & 4---Procurement of goods/services/works by Government through a Procuring Agency---Fundamental principles governing such procurements stated.

The fundamental principle which governs the application of the Public Procurement Rules, 2004, is that the Procuring Agency should obtain "value for money" and that the procurement process is economical and efficient consistently with the requirement that the agency acts in a fair and transparent manner.

The general rule is and must remain that a Procuring Agency abide by the Rules, but those Rules must be viewed and applied consistently with their spirit and not be allowed to become a straitjacket by focusing only on the letter.

Malik Naeem Iqbal and Khalil Ahmed Siddiqui for Plaintiff.

Khalid Javed Khan for Defendant No.1.

Munir A. Malik for Defendant No.2.

Dates of hearing: 9th and 17th April, 2012.

2012 C L C 1453

[Sindh]

Before Ahmed Ali M. Shaikh, J

Dr. BABUR HUSSAIN, ADVOCATE----Appellant

Versus

Ch. ISLAMUDDIN----Respondent

F.R.A. No.30 of 2011, decided on 21st May, 2012.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Arts.137 & 138---Ejectment petition on ground of default in payment of rent and bona fide personal need of landlord was allowed by Rent Controller---Denial of relationship of landlord and tenant---Contention of the appellant (tenant) was that he had purchased the premises from the landlord---Validity---Appellant had refused to accept court summons after the ejectment petition was filed; and the matter was adjourned several times, in the interest of justice; and subsequently the impugned order was passed against the appellant---Presumption, in circumstances, under Arts.137 & 138 of the Qanun-e-Shahadat, 1984; was that the appellant had no defence at all---Appellant had filed no receipt, agreement or deed to substantiate his stand of being a bona fide purchaser of the premises---Where relationship of landlord and tenant was denied on the ground that the tenant had purchased the property in question and that he was no more the tenant; then he had to vacate the premises and file a suit for specific performance of agreement to sell whereafter he would be given easy access to the premises---Appeal was dismissed.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678; Muhammad Hussain Afzal v. Ziaullah PLD 2003 SC 625; Shamshad Ali Qureshi v. Addl. Collector of Rents PLD 1996 Kar. 470; Tanveer Ahmed v. Nasarullah Khan 1993 MLD 657 and Anita Subhan Khan v. Jamaluddin Ansarie 1990 CLC 1224 distinguished.

Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320 rel.

Muhammad Aqil for Appellant.

Sabira Qaiser for Respondent.

Date of hearing: 11th April, 2012.

2012 C L C 1477

[Sindh]

Before Muhammad Ali Mazhar, J

Mst. FARASA AIJAZ----Applicant

Versus

Messrs QAMRAN CONSTRUCTION (PVT.) LTD. through authorized officer and another----Respondents

Civil Revision Application No.262 of 2010, decided on 19th April, 2012.

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

----O. I, R.10---Necessary party and proper party---Object, purpose and scope---Only those persons are necessary and proper party to proceedings, whose interests are under challenge in suit and without their presence matter cannot be decided on merits---Necessary party is one who ought to have been joined and in whose absence no effective decision can take place---Object of Order I, Rule 10, C.P.C. is to avoid multiplicity of proceedings and litigation and to ensure that all proper parties are before court for adjudication on merits---Once court comes to conclusion that a person applies for becoming a party is a necessary party then, court ought to pass order directing such person to be impleaded as party in proceedings.

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

----S. 42---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration---Necessary party---Stage of impleading---Petitioner filed application to be impleaded as party to proceedings before Lower Appellate Court---Lower Appellate Court dismissed application on the ground that applicant failed to file any proof of purchase of property in question from defendant and the application was filed at belated stage when judgment had already been passed---Validity---Powers conferred upon court under Order I, Rule 10, C.P.C. could be exercised by Court at any time and any stage of proceedings, if presence of party was necessary to effectually and completely adjudicate upon and settle questions involved---Mere delay in making application was not sufficient to dismiss application without examining gist of right or claim compelled a party to move application for becoming a party to safeguard his right and interest---Petitioner claimed to be proper and necessary party on the basis of document produced by him, it would be in the interest of justice that a chance should have been afforded to him to submit the documents before Lower Appellate Court to decide the application under Order I, Rule 10, C.P.C.---High Court set aside the order passed by Lower Appellate Court and remanded the case to Lower Appellate Court to consider entire material produced by petitioner and to decide the application afresh---Revision was allowed accordingly.

Khalid Mahmood v. Asghar Ali Bhatti 2005 CLC 1821 and Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217 ref.

Miss Shazia Ashraf v. Municipal Committee, Sahiwal and another 2006 CLC 1018; Mst. Marium and others v. Haji Ali and others PLD 1985 Kar. 705 and Abdullah and others v. Muhammad Haroon and others 2010 CLC 14 distinguished.

Waseem Akhtar for Applicant.

Dildar M.S. Shaikh for Respondent No.1.

Muhammad Khalid Akhtar for Respondent No.2.

Date of hearing: 19th April, 2012.

2012 C L C 1508

[Sindh]

Before Muhammad Shafi Siddiqui, J

SOORTY ENTERPRISES (PVT.) LTD.----Plaintiff

Versus

KARACHI ELECTRIC SUPPLY COMPANY LTD. and another----Respondents

Suit No.485 and C.M.A. No.4605 of 2012, decided on 18th June, 2012.

(a) Electricity Act (IX of 1910)---

----S. 20---Consumer Service Manual, Chap.7, 8 & 14---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 55---Suit for declaration and mandatory injunction---Failure of electricity company to provide steady and regular power supply for its industrial use forced plaintiff to set up Captive Power Plant for continuing its business activities---Notices issued by company to disconnect plaintiff's electric supply and/or captive generators for non-utilizing sanctioned load or keeping same as standby---Application under O.XXXIX, Rr.1 & 2, C.P.C. by plaintiff seeking restraint orders against company---­Validity---Provisions of Electricity Act, 1910 including its S.20 and Chap.7, 8 & 17 of Consumer Service Manual did not provide any occasion to disconnect electric supply in such case---Mere "non-use" or non-usage" of electricity would not be included in word "use" finding mention in Cl.8.1 of Chap.8 of Consumer Service Manual---Purpose for which load had been sanctioned was for its usage by plaintiff and since such purpose was not being observed by him, thus, he could not be said to be using electric connection for another purpose---­Primary source of electric supply by plaintiff was not which company was supplying to him, but was through captive power plant---Electricity of plaintiff could be disconnected on account of under-usage and only extended load beyond sanctioned load---Keeping sanctioned load as standby by an industrial consumer would mean that he had kept same for purpose other than for which same was sanctioned and such non-usage would be violative of Proviso (ii) of Clause 8.1 of Ch. 8 of Consumer Service Manual---Plaintiff's plea raised in response to impugned notices was that he was using sanctioned load as a standby and not as main source, thus, company was well within their right to disconnect his electricity---Plaintiff had no prima facie case and balance of convenience did not lie in his favour---Plaintiff's plea was that use of sanctioned load from company was causing colossal losses, thus, he would not suffer irreparable loss in case of dismissal of such application---Application for interim injunction was dismissed in circumstances.

(b) Words and phrases---

----"Use"---Meaning.

(c) Words and phrases---

----"Purpose" and "purposeless"---Meaning.

Amal Khan Kansi along with Khurram Ashfaq for Plaintiff.

Ayan Mustafa Memon for Defendant No.1.

Nemo for Defendant No.2.

2012 C L C 1532

[Sindh]

Before Salman Hamid, J

MASTER ENTERPRISES (PVT.) LTD. Through G.M. Administrator and Finance----Petitioner

Versus

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

Constitutional Petition No.S-1355 of 2011, decided on 11th January, 2012.

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

----Ss. 10 & 15---Constitution of Pakistan, Art.199---Constitutional petition---Tenant, during cross-examination, had admitted that he had, for a certain period of time, discontinued the payment of rent---Contention of the tenant that there was no wilful default in payment did not hold much field, since, if the landlord had refused to receive payment of rent, such rent could have been deposited with the Rent Controller under S.10 of the Sindh Rented Premises Ordinance, 1979 after being tendered through money order and refusal of the same---No money order was ever sent to the landlord by the petitioner, and therefore, there was wilful and deliberate default on the part of the tenant---If even once the rent was not accepted by the landlord, the tenant was duty bound to deposit the rent in court under S.10 of the Sindh Rented Premises Ordinance, 1979 which the tenant did not do---Constitutional petition was dismissed.

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

----S. 15---Contract Act (IX of 1872) S.188---Constitution of Pakistan, Art.199--- Constitutional petition--- Agent's authority--- Scope---Contention of the tenant (petitioner) was that the ejectment petition was filed by an unauthorized person---Validity---Section 188 of the Contract Act, 1872 stipulated that the agent had the authority to do every lawful thing which was necessary in order to do such act, and the person through whom the case had been filed, was authorized to do so and pursue the case---Ejectment case was filed with the authorization of the principal---No objection had been raised by the principal/landlord company; which showed that they had ratified the act of filing the ejectment case---While the leading of evidence and cross-examination tenant had not raised any point with regard to the authority of the said person---Constitutional petition was dismissed.

M. Umer Lakhani for Petitioner.

Khalid Mehmood Siddiqui for Respondent No.2.

Date of hearing: 11th January, 2012.

2012 C L C 1551

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD YOUSUF KHAN----Petitioner

Versus

Mrs. SAEEDA SALEEM and 2 others----Respondents

Constitutional Petition No.S-394 of 2011, decided on 9th June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Findings of facts recorded by competent Tribunal, could be interfered with by the High Court in exercise of constitutional jurisdiction, if the same was based on no evidence, or was recorded by ignorance of material evidence on record---Findings of fact could not be interfered with by High Court under constitutional jurisdiction merely on the ground that different view on the basis of the same evidence was possible.

Mst. Mobin Fatima v. Muhammad Yamin and others PLD 2006 SC 214; Abdul Razzaq v. Messrs Ihsan Sons Limited and others 1992 SCMR 505; Mrs. Tahira Dilawar Ali Khan and others v. Mst. Syeda Kaneez Sughra and others PLD 2007 Kar. 50 rel.

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

----Ss. 15(2)(ii), 18 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Notice for change of ownership of the premises---Ejectment application filed by respondent/landlady against tenant having concurrently been allowed by the Rent Controller and Appellate Court below, tenant had filed constitutional petition---Petitioner originally was tenant of husband of landlady, who had gifted out premises under registered instrument to landlady---Notice under S.18 of Sindh Rented Premises Ordinance, 1979 for change of ownership was duly served by landlady on the tenant---Rent for the month of April, 2009 was paid by the tenant to husband of landlady, rent for the month of May, 2009 was sent by the tenant to landlady, who accepted the same and acknowledged the same through a receipt---Tenant, thereafter, started depositing rent in court in the name of both the husband and wife/landlady---Case of landlady was that after paying rent to her for the month of May, 2009, the tenant should not have deposited the rent in the joint name of former landlord/husband of landlady and the landlady, despite receiving notice of change of ownership of the premises---Once the rent was tendered by the tenant to landlady, rent deposited by the tenant in joint name of husband and wife to whom premises was gifted out, was not a valid tender---Tenant, in circumstances, had committed default in payment of rent for relevant period---Findings recorded by both the courts below were strictly in accordance with law and evidence available on record, which could not be interfered with, in circumstances.

Messrs Habib Bank Limited v. Sultan Ahmad and another 2001 SCMR 678 rel.

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

----Ss. 15(2)(vii), 18 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of bona fide personal need of landlady---Change of ownership---Landlady in ejectment application had claimed that she was residing at her husband's parents house and intended to live with her old and sick husband in her own house---Such claim of the landlady in her ejectment application and affidavit-in-evidence, had gone unchallenged, which in law would be deemed to be accepted by the opposite party---Even otherwise, genuine need of landlady was not challenged by the tenant in cross-examination---Findings on issue of personal need had been recorded by courts below in line with evidence on record and settled law---Case of the landlady remained consistent throughout and was not shaken in cross-examination or rebutted by some convincing evidence to prove mala fides on the part of landlady---Findings of courts below could not be interfered with, in circumstances.

Mst. Begum Jan v. Abdul Rasool 1984 CLC 755; Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117; Mrs. Tahira Dilawar Ali Khan and others v. Mst. Syeda Kaneez Sughra and others PLD 2007 Kar. 50; Abdul Razzaq v. Messrs Ihsan Sons Limited and others 1992 SCMR 505; Mst. Mobin Fatima v. Muhammad Yamin and others PLD 2006 SC 214; Messrs Kwality Food Products v. Mst. Sehba Nishat Haq 1991 MLD 1331; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28; Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671; Abdul Rahman through Legal Heirs others v. Pakistan State Oil Company Ltd. and another PLD 2004 SC 921 ref.

Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117 rel.

Mufti Muhammad Bashir for Petitioner.

Muhammad Ishaque Memon for Respondent No.1

Date of hearing: 30th May, 2011.

2012 C L C 1599

[Sindh]

Before Munib Akhtar, J

Malik SOHAIL KHAN through his Lawful Attorney----Plaintiff

Versus

PROVINCE OF SINDH, LAND UTILIZATION DEPARTMENT through Secretary and 8 others----Defendants

C.M.As. Nos.755, 1850, 1851 and 2078 of 2012 in Civil Suit No.81 of 2012, decided on 12th April, 2012.

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

----Ss. 10 & 24---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Suit for cancellation of document, declaration and injunction---Interim injunction, grant of---Breach of conditions of lease---Cancellation of lease hold rights---Suit-land was given on lease to plaintiff but it was cancelled on the allegation of violating terms of lease agreement---Plea raised by plaintiff was that on the date of presentation of plaint possession of suit land was with him---Validity---Prima facie order, whereby land of plaintiff was resumed, was tainted by material illegality and there had been complete violation of proviso to S.24 of Colonization of Government Lands (Punjab) Act, 1912---Manner in which defendants acquired land being claimed by them and use to which they were putting that land was also open to serious question and doubt---Entire transaction suffered impropriety and illegality and it appeared that relevant provisions of Colonization of Government Lands (Punjab) Act, 1912 and conditions prescribed there under had been flouted---All such emerged from documents and record relied upon by defendant themselves---Distinct liability was on record that suit property overlapped at least in substantial part with land being claimed by defendants---Plaintiff had made out a case for interim relief as he had been unlawfully denied land to which he was entitled by way of leasehold rights---Land might well be in the hands of other persons, who were putting it to use that could render it unusable for plaintiff and contrary to law---Balance of convenience was in favour of plaintiff and against defendants---Plaintiff would suffer irreparable loss and injury if interim relief was not granted---High Court granted interim injunction in shape of status quo order---Application was allowed in circumstances.

Super Drive-in Ltd. v. Province of Sindh and others 2012 CLC 117; Horticultural Society of Pakistan and another v. Province of Sindh and others 2005 CLC 1877; Abbasia Cooperative Bank and another v. Hakeem Muhammad Ghaus and others PLD 1997 SC 3; Imam Buksh v. Collector and others1982 SCMR 149; Pir Bux v. Muhammad Moosa and others SBLR 2007 Sindh 734; Muhammad Nazir Khan v. Ahmad and others 2008 SCMR 521; Abdul Rab and others. v. Wali Muhammad and others 1980 SCMR 139; Usman Punjwani and another v. Government of Sindh and another 1996 CLC 311; Raunaq Raza v. Province of Sindh and others 1994 CLC 317 and Anjuman Talim-Ul-Islam v. WP Punjab Province PLD 1983 Lah. 294 ref.

Naleymitho alias Muhammad Ishaq Kubar for Plaintiff.

Muhammad Yousaf Moulvi for Defendants Nos.8 and 9.

Nafees Ahmed Usmani, A.A.-G.

Dates of hearing: 28th March and 12th April, 2012.

2012 C L C 1621

[Sindh]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

MUHAMMAD AKRAM KHAN----Petitioner

Versus

ABRAR AHMED and 4 others----Respondents

Constitutional Petition No.D-618 of 2012, decided on 19th April, 2012.

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

----S. 12(2)---Judgment, setting aside of---Framing of issues and recording of evidence---Principles---Remedy under S.12(2), C.P.C. may not always be available like a regular suit and court may dispose of application under S.12(2), C.P.C. without framing issues, recording evidence of parties and following procedure for trial of suit---Where court finds that further inquiry by way of recording evidence is required for determination of an issue in application under S.12(2), C.P.C., it may frame issues and record evidence but if in the opinion of Trial Court no inquiry is required then it can be dispensed and Court may proceed to decide application without undergoing the process of recording of evidence.

Messrs Dada Bhai Cement Industries Limited v. NDFC Karachi PLD 2002 SC 500; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Mst. Nasra Khatoon and another v. Mst. Ayesha Bai and others 2003 SCMR 1050 and Muhammad Yousuf v. Lal Din and others 2006 YLR 677 rel.

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

----Ss. 12(2) & 47---Constitution of Pakistan, Art.199---Constitutional petition---Applicability of S.47, C.P.C.---Scope---Concurrent findings of fact by two courts below---Setting aside ex parte decree---Questions to be determined by Executing Court---Trial Court passed ex parte decree in favour of petitioner and during pendency of execution proceedings, respondent got ex parte decree set aside by Trial Court in exercise of powers under S.12(2), C.P.C., which order was maintained by Lower Appellate Court---Plea raised by petitioner was that matter could have been decided under S.47 C.P.C. by Executing Court---Validity---For application of S.47, C.P.C. it was necessary that all questions arising between the parties to the suit, in which decree was passed were determined by Executing Court---Prima facie the respondent was not a party in suit and questions did not pertain to execution, discharge or satisfaction of decree but passing of judgment and decree itself by Trial Court by playing fraud and misrepresentation and the only court that could look into such affairs was the court which had passed such judgment and decree---Provisions of S.47, C.P.C. was not applicable to the proceedings---Concurrent findings of two courts below were on record and it had not been established that such findings were perverse, coram non judice, without jurisdiction and without lawful authority, so as to enable High Court to assume jurisdiction---Concurrent findings of courts below could not be successfully assailed in Constitutional jurisdiction of High Court unless courts below had exceeded its jurisdiction which had not been urged by petitioner---Trial Court had directed the petitioner to file amended plaint by incorporating respondent as party and thereafter suit would proceed and disposed of on merits after providing opportunity to parties to record evidence in support of their claim---High Court in exercise of Constitutional jurisdiction declined to interfere in concurrent findings of two courts below---Petition was dismissed in circumstances.

1993 MLD 1258 and PLD 1981 Kar. 720 distinguished.

Chaman Lal Sighma for petitioner.

Date of hearing: 19th April, 2012.

2012 C L C 1674

[Sindh]

Before Munib Akhtar, J

HUMAYUN AKHTAR JALIL and others----Plaintiffs

Versus

CAPITAL ONE EQUITIES LIMITED and others----Defendants

C.M.A. No.11562 of 2009 in Suit No.886 of 2009, Suits Nos.887 to 890 and 938 of 2009, decided on 4th July, 2011.

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

----O. XXIII, R. 3---Decision of suit on basis of an agreement between debtor and creditors---Scope---Court could set aside fraudulent preference given by a debtor to some of its creditors---Agreement, if being inequitable in the sense of granting something, but not to all of creditors, would not necessarily be fraudulent, rather objector would be bound to make out a clear cut in such regard.

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

----O. XXIII, R. 3 & S.151---Agreement between parties seeking decision of suit in terms thereof---Powers of court to refuse enforcement of such agreement---Scope---Court had inherent jurisdiction/power to refuse enforcement of a lawful agreement, which shocked conscious that its enforcement would be either inequitable or work substantial injustice if given effect to---Court would not enforce an agreement either to be void able on its face or found to be void able on basis of undisputed/admitted facts---Word "shall" as used in latter part of O.XXIII, R.3, C.P.C. would not be read as requiring court to mandatorily and mechanically pass a decree on a compromise application made on basis of a "lawful agreement", rather same would be interpreted in softer sense of "may"---Refusal of court to pass a decree on basis of a lawful agreement would be an exception rather than rule---Principles.

Hukam Chand and others v. Raja Ran Bahadur Singh and another AIR 1919 Patna 146 and Muhammad Shujauddin and others v. Muhammad Haroon and others 1989 CLC 930 ref.

Sajida Sultana and another v. Eastern Traders and others PLD 1971 Kar. 109 rel.

Kazim Hasan for Plaintiff (in all Suits).

Hasan Akbar for Defendant No.1.

Ghulam Murtaza for Defendant No.2.

Naveedul Haq for CDC.

Ijaz Sherazi for Defendant No.3 (in Suits Nos.886 to 890 of 2009).

Asif Ali for Defendant No.5.

Khurram Rasheed for SECP.

Dates of hearing: 27th April and 24th May, 2011.

2012 C L C 1711

[Sindh]

Before Shahid Anwar Bajwa, J

PROVINCE OF SINDH through Secretary, Food Department Government of Sindh and another----Appellants

Versus

Messrs JAKHARNI ROLLER FLOUR MILL, JACOBABAD through Manager----Respondent

First Civil Appeal No.3 of 2011, decided on 22nd March, 2012.

(a) Sale of Goods Act (III of 1930)---

----Ss. 35 & 36---Delivery of goods in absence of an express agreement/contract between the parties---Scope---Date, place and time of delivery is to be decided by express contract between the parties, but where there is no express contract, delivery will be governed by sections 35 and 36 of the Sale of Goods Act, 1930, and in such a case it is the duty of the buyer to apply for delivery, however it is available to the seller to deliver the goods without any application in that behalf by the buyer, but the seller is also entitled to wait until buyer applies for the delivery---Seller is not bound to deliver the goods unless the buyer applies for delivery but when the buyer applies for delivery, he must demonstrate that he was ready and willing to perform his part of the contract.

Alapaty Ramamoorthy and others v. Polisetti Satyanarayana AIR(sic), Andhra Pardesh 550; Syed A. and M. Wazir Ali v Haji Abu Baker PLD 1957 (W.P) Kar. 913; Seth Mangoomal Jessassing v Hansraj Kooverjee & Co. AIR 1935 Rangoon 166; Messrs Muhammad Amin Muhammad Bashir Ltd. v. Messrs Muhammad Amin Bros. Ltd. PLD 1969 Kar. 233 and Kamruddin Kadibhair and Co. v. Municipal Committee, Anjangaon, AIR (38) 1951 Nagpur 148 rel.

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

----O. XLI, R. 6---Appeal filed against decree which has been executed---Maintainability---In view of 0. XLI, R. 6, C.P.C, where appeal is filed against a decree and no stay order is granted, though the decree may be executed, but the appeal does not abate.

(c) Sale of Goods Act (III of 1930)---

----S. 35---Buyer to apply for delivery---Scope---Language of the section clearly indicates that the provision is intended for the benefit of the seller---Seller, may, if he chooses, deliver the goods without any application in that behalf by the buyer, but he was also entitled to wait until the buyer applies for delivery, unless he has contracted himself out of this right.

Alapaty Ramamoorthy and others v. Polisetti Satyanarayana, AIR(sic) Andhra Pardesh 550 quoted.

(d) Sale of Goods Act (III of 1930)---

----S. 35---Contract for sale of goods---Buyer to apply for delivery---Scope---Section 35 of Sale of Goods Act, 1930, imports into all contracts of sale of goods, a term that the seller is not bound to deliver the goods until the buyer applied for delivery, which may be negative only by the actual words used in the bargain between them or a true consideration of those words.

Alapaty Ramamoorthy and others v. Polisetti Satyanarayana, AIR(sic)Andhra Pardesh 550 quoted.

Abdul Hamid Bhurgi, Addl. A.-G. Sindh for Appellants.

Inayatullah Morio for Respondent.

Date of hearing: 2nd February, 2012.

2012 C L C 1738

[Sindh]

Before Syed Hasan Azhar Rizvi, J

AL-ABID SILK MILLS LTD.----Plaintiff

versus

KARACHI ELECTRIC SUPPLY COMPANY LTD. and another----Defendants

Suit No.366 and C.M.As. Nos.3649, 3666 and 3667 of 2012, decided on 10th May, 2012.

(a) Words and phrases---

---Transmit---Meaning.

Black's Law Dictionary rel.

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

----Ss. 42 & 54---Electricity Act (IX of 1910), Ss. 22, 41, 43 & 44---Pakistan Electric Power Regulatory Authority Ordinance (XLV of 1997), Ss.2(19) & 2(27)---Constitution of Pakistan, Art.9---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Supply of electricity---Right to life---Plaintiff-company owned two industrial plots and one of the plots an industrial unit was established and in the other electric generating unit was installed---Plea raised by plaintiff company was that it was a Captive Power Producer and authorities could not restrain supply of electricity from its one plot to the other---Validity---Supply of electricity was essential to life of people and its denial amounted to infringement of right to life guaranteed by Article 9 of the Constitution---If injunction was declined to plaintiff, no purpose would be served except enhancing unemployment, which was already very high in country---Plaintiff made out a prima facie case and balance of convenience was also in its favour, as great inconvenience would be caused to plaintiff in case of refusal---Electric Supply Company would not suffer any harm by providing electricity as it would be paid every month fixed charges irrespective of whether or not plaintiff used any electricity---Application was allowed accordingly.

Muhammad Aslam v. KESC 2006 MLD 1540; Erum Heights Residents Welfare Association v. KESC 2001 CLC 321; Muhammad Jawaid v. KESC HCA 54 of 2012; Haji Sher Muhammad v. WAPDA PLD 1988 Lah. 511; WAPDA v. Amin Ice Factory 2001 MLD 1287; PLD 1993 Kar. 190; PLD 2011 Lah. 349; 2006 SCMR 989; PLD 1969 SC 14; 1998 CLC 44, PLD 2008 Kar. 458 and 2010 MLD 518 distinguished.

Rashid Anwar for Plaintiff.

Muhammad Ali Lakhani for Defendant No.1.

2012 C L C 1762

[Sindh]

Before Nadeem Akhtar, J

ABBAS ALI and another----Plaintiffs

versus

ASIF ABBAS and 3 others----Defendants

Civil Suit No.1699, C.M.A. No.12126 of 2010 and C.MA. No.1012 of 2011, decided on 1st August, 2012.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dishonoured cheque---Application for grant of leave to defend suit filed by one defendant along with his affidavit, whereas other two defendants by filing separate statements in court adopted contents of such application without filing their affidavit in support thereof---Validity---If leave to defend was granted to other two defendants, then they would be entitled to file their duly verified written statement, and valid and required procedure would be adopted without committing any illegality---High Court declined to non-suit such two defendants for non- filing of their affidavit in support of such application.

Sahibzada Anwar Hamid v. Messrs Topworth Investments (Macau) Limited, through Chairman and 5 others 2004 CLD 399 and Umer Khan v. Haji Musa Jan 2009 SCMR 1101 rel.

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

----O. XXXVII, Rr. 2 & 3---Specific Relief Act (I of 1877), S.39---Suit for recovery of amount on basis of dishonoured cheque---Application for grant of leave to defend suit---Defendants' plea that plaintiff had forcibly obtained their signatures on disputed cheques while they were in custody of police officials, regarding which they had filed against him complaint before police authorities and suit for cancellation of disputed cheques---Validity---Defendants had not denied execution of disputed cheques---Defendants' suit was prior in time to plaintiff's suit and both such suits were still sub judice against each other---Allegations and counter-allegations made by parties against each other in their respective suits could not be decided without allowing them to lead evidence in support thereof---Defendants were, thus, entitled to grant of leave to defend present suit---High Court accepted such application subject to furnishing of surety in sum of suit amount either by executing personal bonds by defendants or by furnishing surety of another person to be an income tax assessee.

Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659; Meraj Agro Chemical (Pvt.) Ltd., Multan through Chief Executive v. Muhammad Siddique 2011 CLD 1058 and Fine Textile Mills Ltd. Kairachi v. Haji Umar PLD 1963 SC 163 rel.

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

----S. 148 & O. XXXVII, Rr. 2, 3---Limitation Act (IX of 1908), Ss.4, 5 & Art.159---Suit for recovery of amount on basis of dishonoured cheque---Application for grant of leave to defend suit---Limitation---Summons through Courier Service received by defendant on 15-11-2010 and summonses were published in newspapers on 11-1-2011, whereas he filed leave application on 31-1-2011---Defendant's application under S.148, C.P.C. filed on 21-1-2011 seeking extension in time for filing leave application on ground that he did not receive copies of plaint and its annexures along with summonses---Validity---Prescribed period of limitation of ten days for filing leave application had commenced with effect from 15-11-2010, when defendant was personally served with summonses through Courier Service---Defendant filed application under S.148, C.P.C., when time for filing leave application had already expired on 25-12-2010---Winter vacations of High Court commenced w.e.f. 26-12-2010, thus, defendant could file leave application on 9-1-2011 i.e. opening day after winter vacations---While computing period of limitation from date of publication of summonses in newspaper on 11-1-2011, ten days' time for filing leave application had expired on 21-1-2011---Defendant had not filed leave application either on 25-12-2010 or 21-1-2011, but had filed the same on 31-1-2011 much after expiration of prescribed period of ten days---Time-barred leave application was not entertainable for not being accompanied with application for condonation of delay---Defendant's plea was that copies of plaint and its annexures were not attached with summonses and he did not receive the same, but he became aware of suit on 15-11-2010 and could approach the court promptly for obtaining such copy---Defendant had filed application under S.148, C.P.C. on 21-1-2011 after five weeks of service of summonses, thus, same was not bona fide---Plaintiff would become entitled to a decree in case of failure of defendant to obtain leave to defend in response to summonses served in Form-IV in Appendix-B to C.P.C. or refusal of court grant him such leave---High Court dismissed leave application and application under S.148, C.P.C. and decreed suit against defendant with costs in circumstances.

Naveed Haider v. Messrs Noman Abid Co. Limited 2009 CLC 1123; Asif Nadeem v. Messrs Bexshim Corporation 2001 CLC 653; Messrs United Steel Corporation and 4 others v. Muslim Commercial Bank Ltd. 1999 YLR 2071; Abdul Karim Jaffarani v. United Bank Limited and 2 others 1984 SCMR 568; Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749 and Messrs Sargroh Services (Pvt.) Ltd. v. Messrs Hoechst Pharmaceuticals Pakistan (Pvt.) Ltd. 1989 SCMR 1834 ref.

Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, through President, and 3 others 1999 SCMR 2353; Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 rel.

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

----O. V, Rr. 10 & 10-A---Summonses issued to defendant through bailiff and Courier Service---Validity---Service of summonses effected through anyone such mode would be considered good service.

Messrs Ahmed Autos and another v. Allied Bank of Pakistan Ltd. PLD 1990 SC 497 rel.

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

----O. XXXVII, R. 3---Limitation Act (IX of 1908), S.5 & Art.159---Time-barred leave application filed without application for condonation of delay---Effect---Such leave application could not be entertained in any case.

Messrs Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Limited, through President, and 3 others 1999 SCMR 2353 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of negotiable instrument---Failure of defendant to obtain leave to defend suit in response to summonses served upon him in Form-IV provided in Appendix-B to C.P.C. or refusal of court to grant him leave to defend---Effect---Plaintiff would become entitled to a decree against defendant.

Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 rel.

Mehar Khan for Plaintiffs.

Ghulam Mujtaba for Defendants Nos.1 to 3.

Muneer Ahmed Khan for Defendant No.4.

2012 C L C 1780

[Sindh]

Before S. Hasan Azhar Rizvi and Muhammad Shafi Siddiqui, JJ

ADAM SUGAR MILLS LIMITED----Petitioner

versus

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

Constitutional Petition No.D-2188 of 2012, decided on 10th July, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public contract---Judicial review, powers of---Scope---If action of public functionary in awarding contract lacks transparency, Constitutional petition would lie, as it has been their Constitutional obligation to act fairly and justly while performing administrative functions---If any unfair or arbitrary actions are complained of or discrimination is agitated, such grievances can be dealt with in exercise of its powers of judicial review under Art. 199 of the Constitution, if High Court is otherwise satisfied that action complained of is arbitrary and unfair and the same can be struck down.

Reliance Consultancy v. Federation of Pakistan 2010 CLC 1046 and Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627 rel.

(b) Public Procurement Rules, 2004---

----R. 48---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy---Petitioner sought declaration that categorization of petitioner as defaulter and action taken by authorities on that basis was perverse, arbitrary and unjustified and petitioner had been deprived to participate in tenders for all times to come---Validity---Such situation was not dealt with by Rule 48 of Public Procurement Rules, 2004---Procurement agency itself formulated committee under Rule 48 of Public Procurement Rules, 2004, and the same did not provide efficacious and alternate remedy---Petition was maintainable in circumstances.

(c) Public Procurement Rules, 2004---

----R. 48---Constitution of Pakistan, Arts.18, 25 & 199---Constitutional petition---Public tender, awarding of---Defaulter---Determination---Petitioner-company was excluded by Corporation calling for tenders from participating in bidding pursuant to public tender on the ground of its being defaulter---Validity---Petitioner on payment of outstanding dues in terms of award, could not be termed as defaulter and could not be ousted to participate in tender process---Act of ousting of petitioner to participate in tender lacked authority and jurisdiction and was violative of Articles 18 and 25 of the Constitution---Such acts and decisions of public functionaries were amenable to Constitutional jurisdiction and petitioner had rightly challenged arbitrary and unjustified decision---Tendering Corporation was a public functionary / procuring agency and was obliged to procure such service by means of open competitive biddings in fair and transparent manner and discretion that such public authorities enjoyed, could not be exercised in an arbitrary and capricious manner---Open competitive bidding was invariably the best method for ensuring transparent and unobjectionable process---Petitioner had been wrongly ousted from participating in tender and its categorization as permanent defaulter was not sustainable under law---Petitioner was entitled to participate in bid and was also entitled for required quota of 10,000 Metric Tons for which it had submitted its bid---Petition was allowed accordingly.

2010 CLC 1810; 2006 CLD 674; 1999 MLD 1238; PLD 1967 SC 530; 2009 MLD 1399; PLD 1996 SC 109; PLD 1998 Kar. 79; Messrs Huffaz Seamless Pipe Industries v. Allied Bank of Pakistan Limited 2001 CLC 713; 2010 CLD 1829; 1998 CLC 221; 2010 CLD 1838; 2001 MLD 1876; Gatron (Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072; Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68; Gul Ahmed Textile Mills v. Collector of Customs (Appraisement) 1990 MLD 126; 1990 CLC 1044; PLD 2003 SC 322; Hydri Ship Breaking Industries v. Sindh Government and others 2007 MLD 770; Messrs S. Abdulla and Co. v. Collectors of Customs (Appraisement) PLD 1992 Kar. 258; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police PLD 1992 Kar. 283; SBLR 2011 Sindh 1249; Mehmoodul-Hassan v. Government of Sindh 2011 PLC 258; BP Pakistan Exploration and Production Inc. v. Additional Commissioner Karachi 2011 PTD 647; Muhammad Akbar Shah v. Federation of Pakistan and others 2011 MLD 1484; Messrs KSB Pumps Company Ltd. v. Government of Sindh 2011 MLD 1876; Pakistan Barmah Shell Ltd. v. Mrs. Nasreen Irshad and others 1989 SCMR 1892 and 2006 PCr.LJ 263 ref.

Yousuf Ali Sayeed for Petitioner.

Sadaqat Ali Khan Standing Counsel for Respondent No.1.

Rafique Kalwar for Respondent No.2.

Nemo for Respondent No.3.

Date of hearing: 2nd July, 2012.

2012 C L C 1829

[Sindh]

Before Munib Akhtar, J

JAHANGIR MOGHUL and 5 others----Plaintiffs

versus

KARACHI GYMKHANA through Secretary----Defendant

Suit No.1357 and C.M.A. No.11244 of 2011, decided on 26th December, 2011.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX Rr.1 & 2---Suit for declaration impugning order of Management Committee of an unincorporated social Club, (Karachi Gymkhana), whereby it decided that the number of permanent members of the Club be increased---Plaintiff sought interim injunctive relief in the form of suspension of said order and contended that said decision of the Management Committee was contrary to the Club Rules---Maintainability---Case turned primarily and essentially on the determination of the true meaning and interpretation of the relevant provisions of the Club Rules; which comprised of a written text and sought to establish and regulate the affairs of the Club---Determination of the true meaning and interpretation of a written text or document such as the Rules of the Club was a question of law, which ultimately fell within the jurisdiction of the courts---Such jurisdiction could not be denied since the courts were ultimate arbiters of all questions of law---Jurisdiction of the courts could not be ousted in relation to authoritatively pronouncing upon the legal meaning and interpretation of a document such as the Club Rules and the grievance of the plaintiffs was that the Management Committee had wrongly interpreted the said Rules; therefore it would not be proper to require them to approach the Management Committee in such regard---Matter fell within the jurisdiction of the court since it called for an authoritative

interpretation of, and pronouncement upon, the Rules of the Club.

D.M. Malik Jockey Club of Pakistan and others PLD 1960 Karachi 325 distinguished.

Baker v. Jones and others [1954] 2 All ER 553 rel.

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

----O. XXXIX Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Temporary injunction, grant of---Suit for declaration impugning order of Management Committee of a social Club, (Karachi Gymkhana") whereby it was decided that the number of permanent members of the Club be increased---Plaintiff sought interim injunctive relief in the form of suspension of said order on the ground that the same was contrary to the Club Rules---Validity---High Court, on interpretation of the Club Rules, found that the impugned decision of the Management Committee was prima facie, contrary to the Club Rules and concluded that, prima facie, it appeared that under the said Rules, unless they were suitably amended, no additional permanent member could be inducted---Application for an interim injunctive relief suspending said order was allowed, in circumstances.

(c) Estoppel---

----Scope---Estoppel could arise if there was a representation of fact by one person to another, and the latter changes his position or acts in a manner to his detriment on basis of the said representation.

Sarkar's Law of Evidence, Vol. 2 (15th Edition), pg. 1868 ref.

(d) Social Club---

----Club Rules, interpretation of---Minutes of meetings---Scope---Members of any association and especially a body such as a club (Karachi Gymkhana Club in the present case) were entitled to proceed on basis that the Rules made available to them were the Rules of their Association---Certainty was of paramount importance and members ought not be vexed by claims that the Rules as made available did not accord with the "sense" of the meeting at which they were passed or modified---Drafting of minutes of a meeting was invariably more imprecise than the language incorporated in a formal document such as Rules of a Club and it would be reasonable to assume that greater care was taken in the drafting of the Rules (or any amendment therein) than in settling the language used in the minutes of the Meetings---For testing validity of Club Rules, which were cast in a specific language and incorporated in a formal document, it would be hazardous to do so on the anvil of imprecisely drafted minutes, which themselves may not have a readily apparent meaning and may be open to multiple interpretations.

(e) Interpretation of documents---

----Rules of an uncorporated Social Club---Court was duty bound to determine the true and correct interpretation of a written text such as Rules of an unincorporated social club in a dispute raised before it, and must not be deterred by any possible fallout from such interpretation.

Abid Zuberi, Haseeb Jamali, Saad Siddiqui and Ayyan Memon for Plaintiffs.

Muhammad Farogh Naseem and Munawar Hussain for Defendant.

Dates of hearing: 13th, 16th and 19th December, 2011.

2012 C L C 1878

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed IMDAD HUSSAIN SHAH NAQVI----Plaintiff

versus

REHMAT KHAN VARDAG and 3 others----Defendants

Civil Suit No.105 of 2010 and C.M.A. No.2506 of 2012, decided on 4th June, 2012.

Court Fees Act (VII of 1870)---

----S. 13---Application for return of court-fee---Compromise between the parties after about two months of filing the suit---Contention of the plaintiff was that since the matter had been compromised between the parties and no issues had been framed as such, they were entitled for return of the court-fee, and that the suit was filed in the month of January, 2010 and was disposed of as compromised in March, 2010, therefore, the court had only consumed two months, on basis of which the plaintiff was entitled for the return of the court-fee---Validity---Suit in question was filed on 25-10-2010, whereafter notices and summonses were issued---On 27-10-2010 the bailiff's report was returned with the endorsement that one of the defendant's had refused to receive notice and as such bailable warrants were issued on 27-10-2010---On 29-10-2010 the plaintiff was able to obtain an order by which the court directed the Judicial Magistrate to take over possession of the containers belonging to the plaintiff, which had been allegedly unauthorizedly retained by the defendants and prepare an inventory and park the said containers in the court premises---On 8-2-2010 it was ordered that the defendants might file written statements and counter affidavits within four days with advance copy to the plaintiffs who in turn might file a copy of the rejoinder, whereafter the matter was adjourned---Plaintiff moved an urgent application on 29-2-2010, and as such the matter was heard on three subsequent dates, ending in a compromise as appearing in the order dated 4-3-2010---Court had spent its valuable time in examining the case, in hearing the arguments and in deliberation, therefore, it could not be said that the court had not consumed its valuable time---Plaintiff had achieved what he could through his prayer in the plaint---Decree in terms of the order dated 4-3-2010 was passed by the High Court whereby the rights of the parties were determined---Relevant factors which went against the contentions of the plaintiff were the initiation of the proceedings by the court, hearing of the matter and the benefit derived by the party-- Application for return of court-fee was dismissed, in circumstances.

Basit Rasool Qadir and others v. First General Leasing Model (2004 CLC 430 distinguished.

Ms. Naureen Shaikh for Plaintiff.

2012 C L C 1897

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD PARVAIZ----Petitioner

versus

MUHAMMAD HANIF and others----Respondents

Constitutional Petitions Nos.S-776 to 778 of 2012, decided on 9th July, 2012.

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

----S. 15---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Eviction order, setting aside of---Jurisdiction---Ejectment application filed by landlord was allowed by Rent Controller and eviction order was assailed by tenant upto High Court but it remained undisturbed---Petitioner filed application under section 12(2), C.P.C. for setting aside of eviction order before Rent Controller, on the plea of want of knowledge---Application under section 12(2), C.P.C. was dismissed by Rent Controller for want of jurisdiction and the order of dismissal was maintained by Lower Appellate Court---Validity---Last in series of judgments / decrees and orders, which was no longer further alterable and which had acquired finality, that court would be the court of passing judgment / decree or orders finally and, therefore, application under section 12(2), C.P.C. was maintained in that court for the reason that judgments / decrees and order passed by courts below merged in judgments/orders passed by last court, therefore, courts below were not competent to set aside or alter judgments or orders passed by Appellate Court---High Court declined to interfere in the matter, as Rent Controller and Lower Appellate Court had rightly dismissed application under section 12(2), C.P.C. and appeal from that order---Petition was dismissed in circumstances.

2011 SCMR 1854 distinguished.

Sardar Sher Afzal Khan for Petitioner.

Date of hearing: 9th July, 2012.

2012 C L C 1902

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mst. SHAGUFTA NOOR----Plaintiff

versus

Mst. ISHRAT JEHAN and another----Defendants

C.M.As. Nos.5051 of 2010 and 1951 of 2011 in Civil Suit No.1761 of 2008, decided on 17th August, 2012.

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

----O. XXVI, Rr. 1 & 2---Commission to examine witness(es), issuance of---Scope---Court could issue such Commission either on its own motion or on application supported by an affidavit of any party to suit or witness to be examined---List shown in O.XXVI, R.1, C.P.C. was not exhaustive or limited, rather court had jurisdiction to decide whether any miscarriage would be done by not issuing such Commission under particular facts and circumstances of case---Justice would not be done by not appointing a Commissioner, rather justice could be done if substantive right of parties were decided at its earliest---Appointment of Commissioner otherwise under O.XXVI, R.2, C.P.C. would not be barred or unlawful or unjustified.

1997 SCMR 260; PLD 1998 SC 161; 2011 YLR 2770; 2009 CLC 459; PLD 2008 Kar. 239; 1981 SCMR 336; 1990 CLC 155; 2004 YLR 1876; AIR 1975 Cal. 303 and AIR 1964 SC 993 ref.

(b) Administration of justice---

---Delay in deciding cases---Delay in deciding a case is caused on account of accumulative effect of overall functioning of various sections of society, who are concerned with litigation including litigants themselves.

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

----Ss. 12 & 39---Suit for specific performance of sale agreement by vendee---Rival suit by vendor for cancellation of such agreement still pending---Payment of Rs. five million by vendee to vendor at time of execution of such agreement, while deposit of remaining sale consideration of Rs. eighty-five million in response to court's order passed on vendor's application---Vendor was still enjoying possession of suit property---Application by vendee for giving direction to vendor to deposit in court amount of Rs. five million received by him---Vendor's plea that on account of default committed by vendee, earnest money had already been forfeited---Validity---Court after framing issues had yet to determine whether Rs. five million was liable to be forfeited or vendor was liable to specifically perform such agreement---Token money of Rs. five million could not be believed for a property worth Rs.13,500,000/----Such Rs. five million had not been established to be a token money paid by vendee at time of execution of such agreement---Vendor, since execution of such agreement, had not been enjoying only possession of suit property, but also part of sale consideration i.e. Rs. five million---Purpose of payment of token money primarily would be that if buyer showed his desire of not purchasing property, then same would be forfeited---Such purpose could be achieved at any stage even if Rs. five million remained with Nazir of Court---High Court accepted vendee's application and directed vendor to deposit Rs. five million with Nazir for its deposit by him in a profit bearing scheme, which profit would be subject to final decision of suit.

PLD 2003 Kar. 691; 2004 SCMR 436, AIR 1960 Pun. 51; PLD 1967 Kar. 714; 1996 CLC 883; 2009 CLC 883; 2000 MLD 251 and PLD 1969 Kar. 318 ref.

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

----S. 54---Agreement for sale of property---Token money, payment of---Purpose stated.

The token money is primarily meant for the purpose that in case the buyer shows his desire of not purchasing the property, the token amount that has been paid should be forfeited.

Hassan K. Hashmi for Plaintiff.

Haseeb Jamali for Defendants.

Date of hearing: 6th August, 2012.

2012 C L C 1928

[Sindh]

Before Syed Zakir Hussain, J

Syed ALEEMUDDIN----Applicant

Versus

Messrs PAKISTAN AGRO-MECH INDUSTRIES (PVT.) LTD. through Director and another----Respondents

Civil Revision Application No.17 and C.M.A. No.617 of 2010, decided on 2nd September, 2010.

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

----O. V11, R. 2---Suit for recovery of money was dismissed concurrently---Contention of plaintiff was that he had entered into an agreement with the defendant under which the return of said loan was to be within fifteen days and in case of default by the defendant, an equal amount of penalty would be payable by the defendant---Validity---Plaintiff had failed to prove the payment before the courts below; or his story of making the alleged payment and entering into the agreement in question; which were held doubtful and could not be given any weight---Plaintiff thus failed to show legitimacy of the agreement---Agreement pertaining to the payment of loan and repayment of the loan with the penalty equal to the amount of the loan; was not covered by any law as the same did not match with principles of equity of fairness and was rather a show of cruel conduct and unwarranted exorbitant amount of profit against a loan and therefore, the alleged agreement was nothing but a posture of wrongful gain by exploitation of a needy person---Said alleged agreement also stood hit by the law and rules relating to the business of dealing with lending money as loan or financial facility against profit or interest; which amounted to money lending business or banking, and penalty in alleged contract amounted to claiming illegally a forceful interest against a friendly loan, which of itself, was not fair in terms of law and equity---Such agreement or contract, legally speaking, was void in nature and was not open to be enforced through a court of law---Revision was dismissed, in circumstances.

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

----S. 2(j)---Void contract---Agreement pertaining to the payment of loan and repayment of the loan with the penalty equal to the amount of the loan; was not covered by any law as the same did not match with principles of equity of fairness---Such agreement or contract, legally speaking, was void in nature and was not open to be enforced through a court of law.

S.M. Salam Kazmi for Applicant.

Date of hearing: 2nd September, 2010.

2012 CLC 1941

[Sindh]

Before Farooq Ali Channa, J

Mst. FATIMA----Petitioner

Versus

Mst. SHARIFA BAI and another----Respondents

C.M.As. Nos.3479 and 231 of 2012 in Constitutional Petition No.S-1203 of 2011, decided on 18th July, 2012.

Civil Procedure Code (V of 1908)---

----S. 114---Review---Scope---Court had inherent powers to rectify/review its own judgments or orders, if there appeared any error on the face of judgment or order, if requested to be reviewed---Much difference existed between the "review of order" and "recalling the order", whereby the matter was disposed of finally---By "review of the order", the matter finally disposed of, could not be reargued in the garb of review; and the court could not hear the matter as an appeal against its own judgment or order, even if the question of law and facts was involved, whereas by recalling the order of disposal of case finally, like the ex parte order or disposal of matter in non-prosecution, the parties were allowed to reargue the matter and place their case afresh.

Raees-ud-Din v. Nasreen Anwar and others 2011 SCMR 998; Mst. Aziz Latif and others v. Lahore Development Authority 2011 SCMR 1494; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Rahim Jan v. Mrs. Z. Ikram Gardezi and others PLD 2004 SC 752; Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah. 942 ref.

Shamshad Ali Qureshi for Petitioner.

M.S. Qureshi for Respondent No.1.

2012 C L C 1962

[Sindh]

Before Sajjad Ali Shah and Muhammad Shaft Siddiqui, JJ

JUNAID and another----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Constitutional Petitions Nos. D-3876 and D-3877 of 2011, decided on 5th September, 2012.

(a) Constitution of Pakistan---

----Arts. 18 & 25--- Discriminatory legislation--- Reasonable classification---Scope---Such classification permissible under Art.25 of the Constitution' would protect rights of people as a class, thus, same must be based on intelligible differentia distinguishing persons grouped together from those left out---Mere differentiation and non- equality of treatment, unless mala fide or arbitrary, would not per se amount to discrimination---Legislation or policy formulated thereunder would not be discriminatory, unless substantiated by applying well settled principles on subject of discriminatory legislation.

2002 PTD 2850 ref.

Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Charanjit Lal v. Union of India (AIR (38) 1951 SC 41 and N.-W.F.P. Public Service Commission v. Muhammad Arif 2011 SCMR 848 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy decision of Government--Interference in such decision by High Court in constitutional jurisdiction---Scope---Besrjudge in matter of policy decision would be Government for the same falling within domain of its jurisdiction---High Court would not interfere in such matter, unless same appeared to be arbitrary or mala fide on account of colourable exercise or abuse of power---Illustration.

Shahzad Riaz V. Federation of Pakistan 2006 YLR 229 rel.

Ornair Nisar for Petitioners.

Mrs. Sheeraz Iqbal Standing Counsel for Respondent No.l.

?Nasrullah Awan for Respondent No.2.

Shakeel Ahmed for Respondent No.3.

Date of hearing: 24th August, 2012.

2012 C L C 1

[Lahore]

Before Abdul Waheed Khan, J

GHULAM AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA, District Sheikhupura and 6 others----Respondents

Writ Petition No.20722 of 2010, decided on 11th July, 2011.

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

----S. 24---Civil Procedure Code (V of 1908), S.148---Deposit of 1/3rd of sale price---Suit filed on 11-8-2006, but its plaint put up before court on 2-9-2006---Order of Trial Court requiring plaintiff to make such deposit before 11-9-2006---Plaintiff's application dated 7-9-2006 for further extension of time accepted by court while directing him to make such deposit by 16-9-2006---Defendant's application for dismissal of suit for plaintiffs failure to make such deposit within 30 days of filing of suit---Validity---Date of institution of suit would be the day when plaint was presented to ministerial staff of court and an endorsement was made thereon about its receipt---Period for such deposit would be reckoned from day when suit was registered and court took its cognizance at first time and not from day when same was received by its ministerial staff---Plaintiff had made such deposit within 30 days of taking cognizance of suit by court on 2-9-2006---Defendant's application was dismissed in circumstances.

Muhammad Yaqoob Sindhu for Petitioner.

Khalil Ahmad for Respondents Nos.5 to 7.

K.J. Khattak for Respondents Nos.3 and 4.

2012 C L C 24

[Lahore]

Before Asad Munir, J

MUHAMMAD ZAMAN----Petitioner

Versus

UZMA BIBI and 4 others----Respondents

Writ Petition No.4240 of 2010, decided on 27th July, 2011.

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

----S. 14---Appeal against order of Family Court---Maintainability---Order, if not final or definite, could be described as an interim or interlocutory order---Order could not be treated as an interim or interlocutory order, if same did decide finally an issue of maintainability of suit or jurisdiction of Family Court---Illustration.

Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others 1996. CLC 94 rel.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage and recovery of maintenance by wife---Husband's application seeking dismissal of suit by Family Court in Pakistan for lacking jurisdiction to try the same as parties were citizens of State of Azad Jammu and Kashmir---Family Court dismissed such application---Order of Appellate Court dismissing husband's appeal not to be competent against such order of Family Court for lacking of an interim nature---Validity---High Court could address question of legality of order impugned in such appeal.

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

----Ss. 1(2), 5, Sched. & S.10(4)---West Pakistan Family Courts Rules, 1965, R.6---Civil Procedure Code (V of 1908), S.83---Pakistan Citizenship Act (II of 1951), S.14(b)---Constitution of Pakistan, Arts.1(2) & 199---Constitutional petition---Suit for dissolution of marriage on ground of Khula and recovery of maintenance---Husband's application seeking dismissal of suit by Family Court in Pakistan for lacking jurisdiction to try, same as parties were citizens of State of Azad Jammu and Kashmir---Dismissal of such application and passing of decree for dissolution of marriage by Family Court for failure of pre-trial conciliation efforts---Validity---According to S.14(b) of Pakistan Citizenship Act, 1951, a permanent resident of State of Azad Jammu and Kashmir having migrated to Pakistan would be regarded as citizen of Pakistan---Subjects of the State holding Pakistani passports would be deemed to be citizens of Pakistan---Section 83, C.P.C. provided that an alien, if not falling within definition of an "alien" enemy, could sue in Pakistan---Under S.1(2) of West Pakistan Family Courts Act, 1964, residence of one party would give jurisdiction to Family Court in Pakistan to entertain such suit even though marriage not solemnized in Pakistan---Suit for dissolution of marriage according to R.6 of West Pakistan Family Courts Rules, 1965 could be filed in Family Court within whose local limits wife was ordinarily residing, while suit for recovery of maintenance could be filed in Family Court within whose local limits cause of action had arisen wholly or in part---Record showed that wife and her children residing since long in Pakistan were registered citizens of Pakistan holding national identity cards---Cause of action as stated by wife had arisen to her in Pakistan---Wife and her children could invoke and avail jurisdiction of Courts in Pakistan including Family Courts---High Court dismissed constitutional petition in circumstances.

Mst. Naseem Akhtar v. Director General Immigration and Passport and others PLD 2006 Lah. 465 and Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus 1991 SCMR 681 rel.

Rehmat Ullah v. Mst. Shamim Akhtar and another 1997 CLC 16 and Mst. Amira Bokhari v. Faqir Syed Jameel-ud-Din Bokhari and 2 others PLD 1994 Lah. 236 distinguished.

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

----Ss. 1(2), 5 & Sched.---Civil Procedure Code (V of 1908), S.83---Suit for dissolution of marriage or recovery of maintenance---Parties either both or one of them neither citizen of Pakistan nor did their marriage was solemnized in Pakistan---Jurisdiction of Family Court in Pakistan---Scope---While determining question of jurisdiction of Courts in Pakistan, question of citizenship or nationality of parties would not be relevant---According to S.83, C.P.C., even an alien, if not falling within definition of an alien enemy, could sue in Pakistan---Residence of one party or accrual of cause of action wholly or in part within local limits of a Family Court in Pakistan would give the court jurisdiction to entertain such suit---Principles.

Abdul Qadeer Warraich for Petitioner.

Ch. Muhammad Akbar Warriach for Respondents Nos.1 to 3.

Miss Yasmin Sehgal, D.A.-G.

2012 C L C 51

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Sheikh MUHAMMAD KHALID----Appellant

Versus

MUHAMMAD RAFIQ ANWAR----Respondent

S.A.O. No.103 of 1997, decided on 13th June, 2011.

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

----Ss. 13(6) & 15(6)---Ejectment petition---Default in payment of rent, ground of---Denial of relationship of landlord and tenant---Construction of commercial market by landlord on land measuring eleven (11) Marlas transferred to him by Settlement Department after getting approval for its building plan from Municipal Corporation---Written tenancy of a shop on ground floor in such market made by landlord in favour of tenant---Tenant's plea that he paid rent to landlord for more than four years, whereafter Supreme Court declared land underneath suit shop to be non-evacuee and a lady was declared its owner, who started to receive its rent from him after entering into a rent agreement---Landlord's pleas were that tenant had obtained possession of shop from him as his tenant; that said lady had no interest in the land under suit shop and tenant could not attorn her as his landlady; that he was not party before Supreme Court, thus, its judgment in favour of such lady was not binding on him and that his review petition against such judgment was pending before the Supreme Court---Order of Rent Controller directing tenant to deposit arrears and future rent in Government Treasury while restraining landlord to withdraw the same---Striking off defence of tenant and passing of ejectment order by Rent Controller for his failure to comply with such rent deposit order---Dismissal of tenant's appeal by Appellate Authority---Validity---Tenant claimed to have purchased subsequently land under shop from such lady through registered deed---According to judgment of Supreme Court, land transferred to such lady was 6 Kanals, 13 Marlas and 6 sq. ft.---Question as to whether land under the shop was part of the land of such lady or not, was yet to be determined---Rent deposit order in question was shelter for tenant as Rent Controller had framed issues and deferred question of existence or non-existence of tenancy till recording of evidence---Compliance of such rent deposit order was mandatory under law---Rent Controller through such rent order had fully protected rights of tenant as he had to deposit rent and in case he succeeded after recording of evidence to prove non-existence of relationship of landlord and tenant, then rent so deposited would be refundable to him---Tenant had failed to comply with such rent deposit order and failed to avail opportunity allowed to him by Rent Controller---Landlord had constructed market on suit-land---Superstructure of suit shop at time of taking its possession by tenant undisputedly belonged to landlord---No suit for partition had been filed by landlord or such lady---In case tenant wanted to claim ownership of superstructure of shop on basis of sale-deed, then he had to first vacate shop and restore its possession to landlord and if he succeeded to prove himself to be its owner, then landlord would be bound to restore its possession to him---Courts below had rightly passed eviction order against the tenant---High Court dismissed second appeal while allowing one month's time to tenant to vacate shop.

Fazal Muhammad Chaudhari v. Ch. Khadim Hussain and 3 others 1977 SCMR 1368; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Syed Izhar-ul- Hassan Rizvi v. Mian Abdur Rahman and others 1992 SCMR 1352; Amir Ahmed v. Irshad Ahmed 1993 CLC 1074; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Muhammad Hanif Khan v. Muhammad Khan and others 2003 SCJ 702; C.P.L.As. Nos.845-L and 846-L of 1993 and Mst. Maryam Bibi alias Kumari Anneballah Kaul v. The Custodian Evacuee Property Punjab and 166 others 1996 SCMR 1483 ref.

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

----S. 13---Ejectment proceedings---Dispute between parties about ownership of property---Effect---Rent Controller being a tribunal of limited jurisdiction could not decide question of title.

Ahmad Awais for Appellant.

Jahangir A. Jojha for Respondent.

Dates of hearing: 16th April, 2010 and 13th June, 2011.

2012 C L C 69

[Lahore]

Before Rauf Ahmad Sheikh, J

TALIB HUSSAIN----Appellant

Versus

ABDUL SHAKOOR----Respondent

R.F.A. No.40 of 2004, heard on 20th September, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118(a)---Suit for recovery of amount on the basis of Promissory Note---Petition for leave to defend suit---Words "until the contrary was proved" occurring in S.118(a), Negotiable Instruments Act, 1881---Connotation---Maker of the promissory note furnished an unconditional undertaking to pay on demand or at a fixed or determinable future time the amount mentioned therein---Under S.118(a) of the Negotiable Instruments Act, 1881, a presumption was attached to the negotiable instrument that it was for consideration---Words "until the contrary was proved" as used in S.118 of Negotiable Instruments Act, 1881, had revealed that said presumption was rebuttable and the maker of instrument, even if he admitted the execution and had signed the same, could lawfully prove that the same was without consideration---Onus to prove the same would lay on the maker---In the present case, defendant had categorically contended that the promissory note and the cheques were obtained as guarantee on account of mutual trust and same were without consideration---No counter-affidavit in that regard was filed along with the reply---Trial Court, in circumstances, should have not declined to grant the leave to defend as cogent reasons for allowing the same did exist---Whenever the court was satisfied that plausible defence had been put forth by the defendant, then the grant of leave to defend under O.XXXVII, R.3, C.P.C. was necessary and expedient for ends of justice---By disallowing the petition for leave to defend and consequently on passing the impugned judgment and decree, Trial Court had committed material illegality causing gross miscarriage of justice---Impugned judgment and decree were set aside, and petition for leave to defend moved by the defendant was accepted, in circumstances.

Muhammad Azizur Rehman v. Liaquat Ali 2007 SCMR 1820 and Altaf Sarwar v. Shamas Din 2005 YLR 2614 ref.

Rao Jamshaid Ali Khan for Appellant.

Tariq Zulfiqar Ahmad Choudhary for Respondent.

Date of hearing: 20th September, 2011.

2012 C L C 79

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD SULEMAN----Petitioner

Versus

RASHEEDA BIBI and 7 others----Respondents

Civil Revision No.1278 of 2006, heard on 8th July, 2011.

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

----Ss. 214, 215, 218 & 226---Transfer of Property Act (IV of 1882), S.41 ---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Contention of plaintiff was that sale mutation attested by plaintiff's attorney in favour of defendant was without his permission; that attorney had fraudulently obtained registered power of attorney from plaintiff and sold the suit-land at a price less than its purchase price and that attorney had not paid him sale price of suit land---Defendant's plea was that suit was not maintainable; that he was transferee of suit-land in good faith for valuable consideration and that plaintiff had purchased suit-land through pre-emption suit, wherein inflated price was given to protect sale from pre-emption---Validity---Plaintiff had cancelled power of his attorney just after six days of sanctioning of mutation and filing of present suit---Lamberdar and Naib Tehsildar had deposed that plaintiff's attorney had received the present sale price of suit-land from defendant---According to deposition of plaintiff's son, his father (plaintiff) was in need of money; someone in need of money would be expected to sell his assets even at lesser rates---Attorney once appointed would be as good as principal for purposes of transaction mentioned in his power of attorney---Evidence on record showed that plaintiff at the relevant time was in good health with sound eyesight---Plaintiff had filed suit himself and remained alive for one year thereafter---Plaintiff had given power of attorney to his attorney with his free consent, which was duly registered and was not result of fraud or forgery---Power of attorney once proved to have been issued validly by a principal, then powers exercised by attorney would also be valid till power of attorney remained in field---Plaintiff's attorney was holding powers at time of suit sale, which he had validly exercised, thus, attorney was not required to get further permission from plaintiff---Sale transaction once completed would be deemed to be within knowledge and with permission of plaintiff/principal and legal and lawful---Defendant being a bona fide purchaser from attorney could not be held responsible for defect, if any, in power of attorney---Defendant had no concern with dispute regarding obtaining of permission by attorney from plaintiff before entering into suit agreement---Suit mutation had been sanctioned validly and with consent of plaintiff through his attorney---Plaintiff in such circumstances had no cause of action---Suit was dismissed for being not maintainable in circumstances.

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

----Ss. 188, 215 & 226---Agent's authority, extent of---Scope---Attorney once appointed would be as good as principal for purposes of transaction mentioned in his power of attorney, and in such case attorney would not be required to get further permission from principal---Power of attorney once proved to be executed by principal validly, then powers exercised by attorney within its ambit would be valid till its revocation---Sale transaction once completed through attorney would be deemed to be within knowledge and with permission of principal and would be legal and lawful.

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

----O. VI, R. 8---Power of attorney in favour of attorney alleged by plaintiff to be forged---Plaintiff's plea in plaint to the effect that "if the power of attorney is genuine"---Validity---Such plea would be an implied admission of plaintiff that such power of attorney was genuine and true document.

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

----S. 115---Revision by High Court---Scope---Concurrent findings of law and facts by courts below---Material irregularity would be deemed to have been committed by courts below, if they had either overlooked material facts or reached at an erroneous conclusion---High Court in such cases could reverse such findings.

Sajawal v. Mst. Sobia Hameed and other 1994 CLC 1328 and Shah Gul and others v. Mst. Shamim Akhtar and others 1990 SCMR 110 rel.

A.K. Dogar for petitioner.

Muhammad Rafique Ch. For Respondents.

Date of hearing: 8th July, 2011.

2012 C L C 94

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD SARWAR KHAN through Legal Heirs----Petitioner

Versus

SALAMAT ALI and 2 others----Respondents

Civil Revision No.943 of 2003, decided on 19th July, 2011.

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

----Arts. 17(2) & 79---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Execution of sale agreement by brother (male defendant) for himself and as general attorney of his real sister/co-owner (female defendant) in suit-land---Execution of sale agreement admitted in written statement by male defendant on his behalf as well as on behalf of female defendant by mentioning her name therein without obtaining her signatures thereon---Plaintiff in support of his claim examined himself, and scribe and one marginal witness of sale agreement---Non-production of evidence by male defendant---Suit decreed by Trial Court upheld by Appellate Court in appeal filed thereagainst by male defendant impleading therein female defendant---Validity---Examination of scribe would not fulfil mandatory requirement of attestation by him separately---Plaintiff must have produced marginal witnesses to prove execution of sale agreement---Male defendant had admitted execution of sale agreement, but his such admission could not apply to female defendant---Male defendant was neither general attorney of female defendant nor did she give any consent to him for entering into sale agreement---Female defendant had not filed written statement and no proof of her service was available on record---Duty of plaintiff before entering into sale agreement was to verify existence or validity of general power of attorney as claimed by male defendant on behalf of female defendant---Courts below were duty bound to take due care and caution in matters relating to ladies especially illiterate ones---Courts below had decreed suit by relying upon admission of male defendant and had given property of female defendant to plaintiff without any consideration, her consent and giving her an opportunity of hearing---Female defendant was not party to sale agreement, thus, her land could not be transferred to plaintiff in garb of sale agreement executed by male defendant---High Court upheld impugned decrees to extent of male defendant, but set aside same to extent of female defendant and dismissed suit to her extent, in circumstances.

PLD 2011 SC 241; PLD 2011 SC 323; 2008 SCMR 1639; 2009 YLR 289; 2007 CLC 1885 and 2011 SCMR 286 ref.

PLD 2011 SC 241 rel.

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

----Art. 79---Sale agreement, execution of---Proof---Scope---Examination of scribe would not fulfil mandatory requirement of attestation by him separately---Marginal witnesses must be produced for such purpose.

PLD 2011 SC 241 rel.

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

----Art. 79---Admitted document, execution of---Proof---Such document would exclude from fulfilment of requirement of Art.79 of Qanun-e-Shahadat, 1984.

PLD 2011 SC 241 rel.

Muhammad Riaz Sathi and Ch. Sohail Arif Sandha for Petitioner.

Muhammad Hussain Awan for Respondent No.1.

Mehmood Ali Khan for Respondents Nos.2 to 4.

Date of hearing: 14th July, 2011.

2012 C L C 105

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Mst. RAZIA BEGUM----Petitioner

Versus

JANG BAZ and 3 others----Respondents

Writ Petition No.315 of 2009, heard on 7th September, 2011.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession of house given to wife in lieu of dower by her husband and father-in-law or in alternative for recovery of Rs.3,00,000/- as its present market value---Suit decreed by Family Court for possession of house or in alternative for recovery of Rs.10,000/- as its price mentioned in Nikahnama was modified by Appellate Court granting same only for recovery of Rs.10,000/----Husband's plea that such house was not owned by him, thus, no decree against his father could be passed---Validity---Nikahnama did not find mention any condition to the effect that in case of failure to give such house to wife, husband would pay her Rs.10,000/----Value of such house mentioned in Nikahnama was its market value at time of marriage---Wife was entitled to decree for possession of such house or in the alternative, for recovery of amount equivalent to its present market value---Duty of Family Court was to pass decree after determining prevalent market value of such house, but its omission to do so would not render its decree ineffective or illegal as such value would be determined by Executing Court during execution proceedings---Wife could validly file suit for recovery of dower against her father-in-law, if he either stood surety or guaranteed its payment, thus, he would be liable to pay dower as bridegroom himself---Father-in-law of petitioner was party to Nikahnama containing his thumb-impression as "Wakeel" of bridegroom, thus, Family Court had validly passed decree against him---High Court modified impugned judgments/decrees by declaring that wife was entitled to recovery of possession of such house or in the alternative to its price equivalent to its present market value to be determined by Executing Court during execution proceedings.

Amjad Hussain and another v. Mst. Shagufta and 2 others PLD 1996 Pesh. 64; Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122 and Mst. Hussana and others v. Mst. Ghufrana and others 2003 YLR 250 ref.

Anjum Firdous v. Additional District Judge and others 2007 CLC 1433 and Mst. Shahenaz Akhtar v. Fida Hussain and 2 others 2007 CLC 1517 rel.

Export Promotion Bureau and others v. Qaiser Saifullah 1994 SCMR 859 and Javed Masih and others v. Additional District Judge, Lahore and others 2010 SCMR 795 distinguished.

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

----S. 5 & Sched. Items Nos.2 & 9---Suit for recovery of possession of immovable property given to wife in lieu of dower---Jurisdiction of Family Court to entertain such suit ---Scope---Such suit could be validly filed before Family Court as Items Nos.2 & 9 of Sched. of West Pakistan Family Courts Act, 1964 clearly brought such suit within ambit of its jurisdiction---Illustration.

Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122 rel.

(c) West Pakistan Rules under the Muslim Family Laws Ordinance, 1961---

----Rr. 8, 9 & 10---Qanun-e-Shahadat (10 of 1984), Arts.85 & 87---Nikahnama, certified copy of---Admissibility in evidence---Scope---Duty of Nikah Registrar and system of remuneration payable to him would make him a 'public officer'---Nikahnama being a public document could safely be relied upon---Such certified copy could be produced in evidence and would hold field in absence of rebuttal thereof.

Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978 and Amjad Hussain and another v. Mst. Shagufta and 2 others PLD 1996 Pesh. 64 rel.

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

----S. 5 & Sched.---Suit for possession of immovable property given to wife in lieu of dower by her father-in-law---Maintainability---Wife could validly file suit for recovery of dower against her father-in-law, if he either stood surety or guaranteed its payment, thus, he would be liable to pay dower as bridegroom himself---Illustration.

Mst. Shahenaz Akhtar v. Fida Hussain and 2 others 20O7 CLC 1517 rel.

Malik Muhammad Saeed for Petitioner.

Agha Muhammad Ali Khan for Respondents Nos.1 and 2.

Date of hearing: 7th September, 2011.

2012 C L C 217

[Lahore]

Before Ch. Muhammad Tariq, J ALLAH RAKHA and others----Petitioners

Versus

MEMBER (J-I), BOARD OF REVENUE, PUNJAB, LAHORE and others----Respondents

Writ Petition No.1234 of 2011, decided on 21st January, 2011.

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

---Ss.. 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Revenue authorities---Powers---Lawful order---Concurrent findings of fact by the Courts below---Suits filed by landlords for ejectment of tenants and recovery of arrears of rent were concurrently decreed in favour of landlords by all revenue Courts below---Plea raised by tenants was that suit for recovery of arrears and for ejectment at the same time was not maintainable---Landlords filed suit for arrears of rent before Revenue Authority with powers of Collector Grade-I, who was very much competent to proceed with the matter, therefore, order passed by the Revenue Authority was legal, binding and enforceable against tenants---Plea raised by tenants was misconceived, •landlords could seek the remedy of recovery of arrears of rent and ejectment of tenants on the ground of default or non-payment of rent---No bar to collect both the remedies in one suit---Grounds raised by tenants before High Court were already agitated before Board of Revenue and other revenue Courts, who had dealt with the matter elaborately---Order passed by the Courts below was well reasoned and there were concurrent findings of four Courts below against petitioners---Relationship of landlord and tenant was admitted between the parties---All such matters could not be looked into in Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Ch. Iqbal Ahmad Khan for Petitioner.

2012 C L C 225

[Lahore]

Before Ch. Muhammad Tariq and Rauf Ahmad Shaikh, JJ

Ltd. Col. (R) MUNIR HUSSAIN KHAN and others----Appellants

Versus

ZAFARULLAH KHAN and others----Respondents

Intra-Court Appeals Nos.255 and 256 of 2006, heard on 22nd November, 2010.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Law Reforms Ordinance (XII of 1972), S.3(2)---Intra-Court Appeal--Maintainability-Right of appeal---Allotment of excess land made in favour of respondents was cancelled by Settlement Authorities vide order dated 26-2-1973 and vide order dated 28-8-1991 authorities permitted to allot excess land to informers---High Court in exercise of Constitutional jurisdiction set aside the order passed by authorities and petition was allowed---Plea raised by respondent was that Intra-Court Appeal was not maintainable as order dated 26-2-1973, was assailed in Constitutional petition, when evacuee laws were not repealed and provision of appeal was available with appellant---Validity---Constitutional petition had arisen out of proceedings with regard to transfer of property in dispute inasmuch as original order was passed on 26-2-1973, which was subject to appeal, when the same was passed---Such was sufficient to satisfy requirement of section 3 (2) of Law Reforms Ordinance, 1972, which was attracted---Intra-Court Appeal was not maintainable as barred by section 3 (2) of Law Reforms Ordinance, 1972---Intra-Court Appeal was dismissed in circumstances.

Mst. Wazir Begum and others v. Member Board of Revenue/Chief Settlement Commissioner and others (2000 SCMR 989 distinguished

Mst. Karim Bibi and others v. Hussain Bukhsh and others PLD 1984 SC 344 and Ch. Nazir Ahmed v. Molvi Masood-ur-Rehman Khan and 6 others PLD 2008 Lah. 405 rel.

Muhammad Asadullah Siddiqui for Appellants Muhammad Shahzad Shaukat for Respondents Date of hearing: 22nd November, 2010.

2012 C L C 234

[Lahore]

Before Abdul Waheed Khan, J NASRULLAH KHAN and others----Petitioners

Versus

Mst. BASHIRAN BIBI and others----Respondents

Writ Petitions Nos.24897 and 24898 of 2010, decided on 27th September, 2011.

Civil Procedure Code (V of 1908)---

----0. XIII, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Application of plaintiffs, after closing of oral evidence, seeking permission to produce documents, which they could not append with the plaint inadvertently---Documents sought to be produced, not only were appended with the plaint but were also not mentioned in the list of reliance in compliance of O.XIII, R.1, C.P.C.---Inadvertence, could not be considered a good cause to allow the production of documents, which were neither relied upon in the list of reliance nor appended with the plaint---Plaintiffs had failed to show any good cause for their failure to append the documents with the plaint---Trial Court had rightly dismissed application filed by the plaintiffs for production of documents and revisional court was not justified to accept revision against judgment of the Trial Court---Order passed in revision was set aside, in circumstances.

Shahid Nawaz Langrial for Petitioners.

Mian Abdul Quddous for Respondents. Date of hearing: 27th September, 2011.

2012 C L C 238

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL REHMAN----Petitioner

Versus

Mst. KARAM MAI----Respondent

Civil Revision No.258 of 2009, heard on 20th June, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Contention of the plaintiff was that she never sold the suit land to the defendant and that alleged sale-deed was forged and a fictitious document---Thumb-impressions on the impugned sale-deed, were admitted by the parties and by the witnesses---Even the plaintiff when appeared as her witness, had admitted that she affixed thumb-impression on the sale-deed, but had stated that same was obtained under coercion---Thumb-impression on sale-deed having been admitted, suit for declaration was not competent, however, suit for cancellation of the sale-deed, was required to be filed---Son and nephew of the plaintiff were with the plaintiff' when sale-deed was executed and attested--=Nephew of the plaintiff who was attesting witness of sale-deed had not even denied his signature on the sale-deed---Evidence of the plaintiff, was contradictory to her pleadings, whereas the defendant had produced Lambardar of the Mauza and other witnesses one of whom who was Petition Writer, who also proved the sale-deed and stated that plaintiff affixed her thumb-impression on the sale-deed with her free-will and consent---Documentary evidence thus had also proved the transaction---Findings recorded by both the courts decreeing the suit of the plaintiff were result of misreading, non-reading and misinterpretation of documentary evidence produced by the parties---Defendant had fully proved the execution of impugned sale-deed and the plaintiff had failed to lead cogent evidence against evidence produced by the defendant---. Form of the suit was also not correct---Impugned judgments and decrees passed by both the courts below, were set aside and suit filed by the plaintiff was dismissed, in circumstances.

Saeed Anwar Chaudhry for Petitioner. Sh. Najam Ali for Respondent.

Date of hearing: 20th June, 2011.

2012 C L C 246

[Lahore]

Before Syed Iftikhar Hussain Shah, J

FATEH ULLAH----Petitioner

Versus

NOOR AHMAD----Respondent

Civil Revision No.624-D of 2011, decided on 8th June, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.92---Suit for declaration and permanent injunction---Plaintiff had sought declaration to the effect that he being husband of deceased lady, was entitled to inherit from her estate; that mutation, whereby he had been deprived of the inheritance was illegal and ineffective qua his rights and that defendant should be permanently restrained from alienating the property in dispute---Trial Court and Appellate Court, had concurrently decreed the suit---Plaintiff by producing the trustworthy evidence had proved that deceased was his wife---Entry regarding death of deceased was made in the register of death entries wherein the plaintiff had been shown as husband of the deceased---Said entry which remained unrebutted was 50 years old and presumption of truth was attached to the same, unless proved otherwise---Register of birth was a public document and certified copy thereof was admissible in evidence under Art.92 of Qanun-e-Shahadat, 1984; and could be safely relied upon---After death of deceased lady, the plaintiff had become a co-sharer in her property along with the remaining legal heirs and a co-sharer was deemed to be in possession of the joint property along with other co-sharers---Objection of the counsel for defendant that possession as a consequential relief had not been claimed by the plaintiff, had got no force---Concurrent findings advanced by courts below, were just and had -been passed in a lawful manner---No interference in exercise of revisional jurisdiction was called for in the concurrent findings of the courts below, when same did not suffer from misreading or non-reading of evidence and there was no illegality or material irregularity in the said findings.

Muhammad Saeed v. Muhammad Siddique. and 10 others 2010 MLD 855 and Abdur Razzaq and others v. Zahoor Ahmad and others 2005 CLC 556 ref.

Alamgir Khan through L.Rs. and others v. Haji Abdul Sattar Khan and others 2009 SCMR 54 and Amir Abdullah v. Kafaitullah Khan 2008 SCMR 756 rel.

Ch. Khawar Saddique Sahi for Petitioner.

2012 C L C 250

[Lahore]

Before Ijaz Ahmad, J

PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION through Managing Director----Petitioner

Versus

UNITED BANK LTD. and 3 others----Respondents Civil Revision No.404 of 1992, decided on 16th March, 2011.

(a) Appeal---

----Finding not challenged---Effect---If finding of Trial Court on an issue is not challenged before Lower Appellate Court; the same cannot be challenged before High Court subsequently.

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

----0. VI, Rr. 14, 15 & O.XXIX, R.1---Suit by corporation---Authorized person---Scope---Plaintiff company filed suit for recovery of money but the same was dismissed by Trial Court on the ground that plaintiff did not produce Article or Memorandum of Association of the company to show that its Director Marketing was authorized to file the suit---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Provisions of Order VI, rules 14, 15 and Order XXIX, rule, 1 C.P.C. were neither contradictory nor exclusive of each other,---Both the provisions were complementary to each other and should' ?e read and interpreted in a manner that would facilitate the litigants to press the law for advancement of justice---Both the said provisions should not be interpreted in a manner that would retard or jeopardize or complicate the .course of law and itinerary to justice---Pleadings were signed and verified by Director Marketing and the same fulfilled the requirements of Order VI, rules lft, 15 and Order XXIX, rule 1, C.P.C.---High Court in exercise of revisional jurisdiction set aside the concurrent judgments and decrees passed by two courts below and the suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

Modern Cotton Ginning and Pressing Factory (Private) Limited v. Eastern Federal Union Insurance Company Limited 1996 CLC 1064; Emirates Bank International Ltd. v. Super Drive-In Limited and others 1990 MLD 538 and Javedan Cement Limited through Chief Operating Officer v. Province of Sindh 2008 CLC 1057 rel.

Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367 ref.

Muhammad Tufail Alvi for Petitioner. Ch. Abdul Hakeem for Respondent No.3.

2012CLC261

[Lahore]

Before Syed Muhammad Kazim Roza Shamsi, J

ABDUL KARIM----Petitioner

Versus

SHAKEEL AHMAD and others----Respondents

Writ Petition No.21238 of 2010, decided on 29th November, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 19 & 22(2)---West Pakistan General Clauses Act (VI of 1956), Ss.8 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application---Application for leave to defend---Said application was dismissed by the Rent Controller followed by order of ejectment---Appeal filed by the tenant against the ejectment order was allowed by the Appellate Court and the case was remanded to Special Judge Rent for decision afresh---Rent Controller on the post remand proceedings, allowed the leave application permitting the tenant to contest the ejectment petition---Counsel for landlord had contended that leave application having been filed by the tenant with a delay of one day, Rent Controller was not justified in granting the permission to tenant to contest the ejectment petition---In the present case provisions of Limitation Act, 1908 had not been made applicable to the matter for the reason that special law had itself provided the timeframe for conducting proceedings thereunder and for availing further remedies---Section 8 of West Pakistan General Clauses Act, 1956 had provided the exclusion of the first day in calculating the period of limitation---Said provision, more particularly was applicable to the statutes to which the Limitation Act, 1908 was not applicable---If the time of 10 days prescribed for filing leave application was counted according to the provisions of S.8 of West Pakistan General Clauses Act, 1956, application filed by the tenant was well within time---Application filed by the tenant for contesting the ejectment petition, was within the statutory period in view of that beneficial interpretation of S.8 of West Pakistan General Clauses Act, 1956.

Muzammil Akhtar Shabbir for Petitioner.

M. Waheed Hassan for Respondents.

2012CLC271

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ALLAH DITTA---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and 5 others----Respondents

Civil Revision No.1238 of 2008, decided on 21st June, 2011.

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

----S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo mote and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S.115, C.P.C. by aggrieved person is 90 days.

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

----S. 115, proviso I & II---Expression "copies of pleadings, documents and order"---Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis. of copy provided by the court---Court which passes the order only has to provide the copy of impugned order.

Mst. Banori v Jilani through legal heirs and others PLD 2010 SC 1186 and Riasat Ali v. Muhammad Jafar Khan and 2 others 1991 SCAM 496 rel.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Interim injunction---Plaintiff claimed to be the bona fide purchaser of an exempted plot for valuable consideration but Development Authority wanted to cancel the same---Trial Court issued interim injunction for maintaining status quo but Lower Appellate Court set aside the order passed by Trial Court---Validity---Plaintiff was claiming himself to be the bona fide purchaser for value and he had to prove his case before civil court---Trial Court had rightly held that issuance of status' quo would be in the interest of both the parties but Lower Appellate Court had ignored pleadings of parties and as such order setting aside the interim injunction was erroneous---High Court in exercise of revisional jurisdiction set aside the order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918 and Reasat Ali Khan v. Mahfuz Ali Khan and others AIR 1929 Lah. 771 ref.

Muhammad Hussain Chotya for Petitioner.

Mian Hafiz-ur-Rehman and Mian Muzaffar Hussain for 'Respondents..

2012 C L C 284

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD SARWAR----Petitioner

Versus

AHMAD KHAN through L.Rs. and 2 others----Respondents

Writ Petition No.7063 of 2006, heard on 15th July, 2011.

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

----S. 6---Civil Procedure Code (V of 1908), O. VII, R.11(d)---Constitution of Pakistan, Art.199---Constitutional petition-Pre­emption suit---Copy of suit mutation annexed with plaint showing sale of occupancy. rights in suit property---Filing of written statement by defendant and framing of issues by Trial Court---Defendant's application under O. VII, R.11, C.P.C., seeking rejection of plaint on ground that suit sale was not pre-emptable for being a sale of occupancy rights and not a, sale of ownership rights was dismissed by Trial Court and accepted by Revisional Court---Plaintiff's plea that after year 1952, sale of occupancy rights was a sale of ownership rights and not occupancy rights; and that Re visional Court was not competent to reject plaint in exercise of its revisional jurisdiction under S.115, C.P.C.---Validity---Order of Revisional Court showed that plaint had been rejected merely by appreciating contents of suit mutation---Trial Court had already , framed an issue about the controversy, thus, Re visional Court was not justified in appreciating itself a document which had not yet been brought on record as a piece of evidence---Suit mutation had to be seen by Trial Court and not by Revisional Court to determine whether suit sale was about transfer of occupancy rights or ownership rights---Power to reject plaint vested with Civil Court and not Re visional Court, which was entrusted only with revision petition and not the suit under S.24, C.P.C.---Revisional Court while passing impugned order had committed gross illegality---High Court set aside impugned order, dismissed such application and remanded case to Trial Court for its decision on merits within specified time.

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

----S. 115 & O. VII, R.11---Rejection of plaint by Revisional Court---Validity---Power to reject plaint vested only with Civil Court and not Revisional Court---Principles.

Sh. Naveed Sheharyar for Petitioners. R.M. Raizaq for Respondents.

Date of hearing: 15th July, 2011.

2012 C L C 292

[Lahore]

Before Ch. Muhammad Tariq and Sayyed Mazahar Ali Akbar Naqvi, JJ "

Mst. SABIRA BIBI and others----Appellants

Versus

HIKMAT KHAN and others----Respondents

Regular First Appeal No.82 of 2011, decided on 5th July, 2011.

Civil Procedure Code (V of 1908)---

----0. XX, R. 18(2) & S.96---West Pakistan Civil Courts Ordinance (II of 1962), S. 18---Suits Valuation Act (VII of 1887), S. 3---Suit for partition of immovable property---Jurisdiction value of suit property mentioned in plaint to be Rs.10,00,000-Appeal, forum of---Passing of preliminary decree by Trial Court while directing Local Commission to report as to whether suit property was partitionable, if so, then suggest its mode of partition, otherwise assess its market value---Report of Local Commission showing market value of suit property to be Rs. 3,17, 50, 000---Appellant's plea was that according to market value of suit property assessed by Local Commission, only the High Court had jurisdiction to entertain such appeal and not the District Judge---Validity---For ascertaining forum of appeal, value of original suit as determined under S.3 of Suits Valuation Act, 1887 would be taken into consideration for purposes of jurisdiction and not market value or sale price, of subject matter of suit---Forum of appeal would be determined according to value of suit mentioned in plaint unless same was specifically denied and issue was framed and Trial Court had taken a different view---Defendant had not specifically denied value of suit property mentioned in plaint---Value of suit property assessed by Local Commission was tentative and would not alter forum of appeal---High Court sent the appeal to District Judge for its decision on merit.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394; Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284; Ilahi Baldish and others v. Mst. Bilqees Begum PLD 1985 SC 393 and Suba Khan v. Rehmat Din and 2 others 1980 CLC 589 ref.

Sh. Zameer Hussain for Appellants.

Abdul Jabbar Awan and Raja Muhammad Kamran for Respondents.

2012 C L C 298

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD HUSSAIN and 2 others----Petitioners

Versus

GHULAM QADIR and 9 others----Respondents

Civil Revision No.218-D of 1994, heard on 29th November, 2010.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)----

----S. 2-A---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Inheritance mutation attested in favour of issueless widow in year 1945 as limited owner after death of her husband in year 1944---Attestation of inheritance mutation of suit-land in favour of brother of widow after death of widow in year 1979---Plaintiff being brother of deceased (last male owner of suit-land) claimed that he and deceased were Shia by faith; that according to Fiqa Jafaria, issueless widow was not entitled to inherit estate of her deceased husband; that widow contracted second marriage and after repeal of custom, suit-land reverted back to deceased husband (last male owner), thus, defendant as brother of deceased widow was not entitled thereto---Defendant's plea that plaintiff was present at time of attestation of inheritance mutation in favour of widow, thus, he was estopped from challenging same---Validity---Both husband and wife had died issueless---Evidence on record showed that deceased husband was Shia Muslim by faith; that both plaintiff and his deceased brother participated in Muharram procession---According to Shia Law of Inheritance, issueless widow was not entitled to inherit any share in immovable property of her deceased husband---Widow had contracted second marriage, thus, her legal heirs were not entitled to suit-land, rather plaintiff as brother of deceased became entitled thereto---Evidence on record showed that plaintiff remained in possession of suit-land from time of death of his deceased brother---Defendant had not proved presence of plaintiff at time of attestation of mutation in favour of widow---Defendant in absence of evidence of Revenue Officer, who attested mutation in favour of widow, could not claim that same. was with plaintiff's consent and knowledge---Widow being issueless was not entitled to suit-land according to Shia Law and as such any transfer or alienation by her was against rights of plaintiff---Suit was decreed, in circumstances.

(b) Islamic Law---

----Inheritance---Shia Law---Issueless Shia widow would not take any share from immovable property of deceased husband except share in his personal estate including household effects, trees and buildings etc.---Principles.

Mahomedan Law by D.F. Mulla's revised by Zafar Hussain Chaudhry; "Muhammadan Law", Volume, II by Syed Amper Ali and Succession it the Muslim Family by N.J. COULSON ref

(c) Islamic Law---

----Inheritance---Law of limitation, applicability of---Scope---Legal heirs of deceased become owners of share in estate of deceased just on opening of succession without getting any declaration from any court---Question of limitation would not arise in such case.

Mian Habib-ur-Rehman Ansari for Petitioners.

Mirza Aziz Akbar Baig for Respondents.

Date of hearing: 29th November, 2010.

2012CLC308

[Lahore]

Before Rauf Ahmed Sheikh, J

BARKAT ALI through L.Rs. and others-Petitioners

Versus

TANVIR ABBAS TABISH and others----Respondents

Civil Revision No.574 of 1992, heard on 26th May, 2011.

(a) Counsel and client---

----Power of attorney---Scope---Power of attorney executed in favour of counsel bears an authority in favour of counsel to make statement about compromise, arbitration or decision on special oath.

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

----S. 21---Reference to arbitrator---Term "apply in writing"---Scope---Categorical and unambiguous joint statement was made on oath by counsel for parties, one of the plaintiff and attorney of one of the defendant---Effect---Requirement of law had been dilly fulfilled and for all intents and purposes it would be deemed that parties had applied in writing within the meaning of S.21 of Arbitration Act, 1940.

Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lah, 829; Tariq Hussain and another v. Additional District Judge, Vehari and 2 others 2006 CLC 514; Messrs Ahmed Constructions through Sole Proprietor v. Messrs Neptune Textile Mills and another PLD 1990 Kar. 216; Murad khan and another v. Dildar Khan and others PLD 1966 (W.P.) Pesh. 173 and Messrs U.I.G. (Pvt.) Limited through Director and 3 others v. Muhammad Imran Qureshi 2011 CLC 758 rel.

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

----S. 28---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---Reference to arbitrator---Award beyond prescribed period---During proceedings before Trial Court, matter was referred to arbitrator with the consent of parties---Arbitrator without getting extension in time, announced the award beyond the period prescribed by Trial Court---Validity---Trial Court had ample powers under section 28 of Arbitration Act, 1940, to enlarge time for making of award but the time was not extended---No clause existed in the agreement empowering the arbitrator to enlarge time so all proceedings conducted by him after expiry of fixed date were without authority, as he had become functus officio---Award made by arbitrator after expiry of prescribed date without formal enlargement of time by court or clause in written agreement empowering him in such behalf was void and was not binding on the parties---Disputed award suffered from such legal infirmity and could have not been made rule of the court--Arbitrator passed ex parte decree in. favour of plaintiffs and against defendants, who was not authorized to pass judgment and decree in favour of either of the parties as the award did not operate to create any right unless the same was made rule of the court and a decree was passed in terms of the same, which fell within the domain of the court only---Award in question was not sustainable and the same was rightly set aside by Lower Appellate Court---High Court declined to interfere in the judgment passed by Lower Appellate Court as it did not suffer from any illegality or infirmity---Revision was dismissed in circumstances.

Syed Mukhtar Hussain Naqvi v. Mst. Hajiani Zubeda and another 2003 YLR 3289 and Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 ref.

Ch. Muhammad Ashraf for Petitioners.

Malik Muhammad Latif Khokhar for Respondents.

Date of hearing: 26th May, 2011.

2012 C L C 321

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

GHULAM MUHAMMAD----Petitioner

Versus

PARVEEN AKHTAR and others----Respondents

Writ Petition No.7229 of 2006, heard on 25th November, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, maintenance allowance and grant of share in property---Jurisdiction of Family Court---Claim of plaintiff (wife) in her suit for dissolution of marriage and maintenance was that defendant (husband) at the time of Nikah agreed to transfer 1/3rd share in a plot in her name, but he had failed to abide by said term of Nikah---Defendant denied claim of the plaintiff and contended that Entry in. Column No.17 of Nikah Nama was fabricated and interpolated subsequently---Family Court decreed the suit and Appellate Court maintained findings of the Family Court, observing that Family Court had jurisdiction to entertain the suit in respect of claim of share in plot as it was personal property of the plaintiff---Averment contained in the plaint had manifested that there was a promise of the defendant to bequeath 1/3rd share in the plot to the plaintiff---Said promise remained unfulfilled and plaintiff was yet to acquire ownership of the share in the plot claimed in the suit---Such promise did not constitute personal belonging of the plaintiff for attracting S.5 and Schedule of West Pakistan Family Court Act, 1964--- Forum for determination of such right, in circumstances, was not the Family Court, but the courts enjoying plenary jurisdiction---Courts below had misinterpreted the law as contained in S.5 of West Pakistan Family Courts Act, 1964 holding that the claim of the plaintiff was actionable before the Family Court---Judgment and decree recorded by the courts below were declared as illegal, without lawful authority and of no legal consequences and were set aside---Suit of the plaintiff to the extent of claim of 1/3rd share in plot in question, was dismissed, in circumstances.

Muhammad Akram v. Mst. Hajira Bibi PLD 2007 Lah,. 515 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel

Nasrullah v. District Judge PLD 2004 Lah. 588 distinguished.

Ch. Abdul Majeed for Petitioner.

Nemo for Respondent No.1.

Date of hearing: 25th November, 2011.

2012 C L C 329

[Lahore]

Before Abdul Waheed Khan, J

Mst. SIBGHAT IQBAL----Petitioner

Versus

MUHAMMAD ISHAQUE NADEEM----Respondent

Civil Revision No.1887 of 2011, heard on 28th June, 2011.

West Pakistan Family Courts Act (XXXV of 1964)-

----S. 5, Sched. & S.17---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O. VII, Rr.10, 11 & S.11---Suit for declaration---Rejection of plaint---Res judicata, principle of---Earlier suit for dissolution of marriage and recovery of dowry articles filed by the petitioner against the respondent was decreed---Respondent filed appeal against judgment and decree of the Family Court with the prayer that decree-holder be directed to return the gold ornaments and piece of land to him---Said appeal was dismissed and the respondent filed suit for declaration in the civil court---Application filed by the petitioner under O. VII, R.11, C.P.C. with the assertions that the Family Court had the exclusive jurisdiction to try the said suit, the plaint was liable to be rejected, the Trial Court returned the plaint under O. VII, R 10, C.P. C. to be presented before the proper forum; and said order ihe Trial Court having been upheld by the Appellate Court below, respondent had filed second suit for declaration in the Family Court with same averments as were made in his earlier suit=--Petitioner filed application under Ss.11, 1:71, C.P. C. and under S.17 of the West Pakistan Family Courts Act, 1964 for dismissal of the suit---Family Court accepting said application rejected the plaint---Appellate Court below vide impugned judgment, set aside judgment of the Family Court and directed the parties to appear before the Trial Court---Suit for dissolution of marriage, earlier filed by the petitioner was decreed on the ground of cruelty, non-payment of maintenance allowance and also on the basis of Khula; and Family Court had observed that respondent could seek remedy through civa suit---Said judgment of the Family Court having been upheld by Appellate Court below, had attained finality---Respondent could not claim the gold ornaments and the property through a subsequent suit, filed either before the civil court or the Family Court---Family Court, in circumstances, had rightly rejected the plaint-Impugned judgment of the Appellate Court below, was set aside and plaint filed by the respondent stood rejected, in circumstances.

Muhammad Siddique Garwah for Petitioner.

Mian Muhammad Nawaz for Respondent.

Date of hearing: 28th June, 2011.

2012 C L C 347

[Lahore]

Before Ch. Muhammad Tariq, J

Dr. MUHAMMAD BASHIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI and 5 others----Respondents

Writ Petition No.12336 of 2010, decided on 2nd February, 2011.

(a) Administration of justice-

----When law requires an act to be done in a particular manner, doing otherwise renders the same nullity in the eye of law.

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

----S. 5 & Sched.---Constitution of Pakistan Art.199---Constitutional petition---Family dispute---Reference to arbitrator---Suit for recovery of dowry articles, maintenance and dower amount was filed by wife---Family Court instead of proceeding with the matter according to procedure provided under West Pakistan Family Courts Act, 1964, referred the matter to arbitrators, who announced the award---Family Court in the light of award announced the judgment and the same was maintained by Lower Appellate Court---Validity---Provision of arbitration was not provided under West Pakistan Family Courts Act, 1964, therefore, Family Court could not refer the dispute pending before him to arbitrators---Judgments and decrees passed by two Courts below were not sustainable in the eye of law as arbitrators could not be directed to decide matter pending before competent forum---High Court in exercise of Constitutional jurisdiction set aside concurrent judgments and decrees passed by two Courts below and case was remanded to Family Court for decision afresh---Petition was allowed accordingly.

(c) Jurisdiction---

----Jurisdiction cannot be conferred by mutual consent of the parties.

(d) Administration of justice---

----Illegality committed in good faith cannot be legalized.

D Ch. Muhammad Tariq Manj for Petitioner.

Syed Muhammad Ali Gillani for Respondents Nos.3 to 6.

2012 C L C 366

[Lahore]

Before Ch. Muhammad Tariq, J

SHAHNAZ AKHTAR and` others----Petitioners

Versus

RIAZ HUSSAIN and others----Respondents

Civil Revision No.658. of 2002, heard on 22nd March, 2011.

Specific Relief Act (I of 1877)---

----S. 8---Partition---Possession, recovery of-Proof-Land in question was jointly owned by both the parties and plaintiffs sought recovery of possession on the basis of partition of land between them---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court and the suit was decreed in favour of plaintiffs---Validity---Plaintiffs during evidence neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession to their predecessor-in-interest nor "Tatimma" made in favour of plaintiffs as a result of partition was produced---Plaintiffs relied more on "Naqsha Jeem" but such document was not signed by revenue officer or any other competent authority---Entries on the mutation were also not countersigned by competent authority---Mere entry in Register of Mutations did not have any sanctity in the eye of law---Plaintiffs failed to prove that suit-land was partitioned and possession of land was handed over to predecessor-in-interest of plaintiffs---Judgment and decree passed by Lower Appellate Court was set aside and that of the Trial Court was restored---Revision was allowed in circumstances.

Sh. Zameer Hussain for Petitioners.

Muhammad Noman Munir 'Paracha Vice Counsel for Respondents.

Date of hearing: 22nd March, 2011.

2012CLC386

[Lahore]

Before Ch. Muhammad Tariq, J

KHURSHID ANWER and others-'---Petitioners

Versus

Ch. AKBAR and others----Respondents Writ Petition No.376 of 2006, heard on 22nd March, 2011.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.11S---Constitutional jurisdiction---Scope-Constitutional petition cannot be a substitute of second revision petition when a revision petition had already been dismissed by Lower Appellate Court on the same ground.

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

----S. 47---Constitution of Pakistan, Art.199---Constitutional petition--- Compromise decree---During execution of decree passed in favour of petitioners, they sought enforcement of compromise arrived at between the parties before the court---Compromise decree, was in fact, a contract with super added command of a Judge which matter could not be resolved by an Executing Court while exercising its jurisdiction under S.47, C.P.C.-Executing Court had wrongly held that execution petition could be treated as a suit while Lower Appellate Court in exercise of revisional jurisdiction had rightly set aside the order of Executing Court---High Court declined to interfere in the order passed by Lower Appellate Court---Petition was dismissed in circumstances.

2004 YLR 1180; 2001 CLC 707 and 2004 YLR 1180 distinguished.

Muhammad Amir Butt for Petitioners.

Syed Ijaz Hussain Hamdani for Respondents.

Date of hearing: 22nd March, 2011.

2012 C L C 411

[Lahore]

Before Ch. Muhammad Tariq, J

Malik MUHAMMAD NIAZ----Petitioner

Versus

MUHAMMAD AYUB and others----Respondents

Civil Revision No.376 of 2008 and F.A.O. No.40 of 2010, heard on 15th March, 2011.

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

----0.1, R. 10, O.XII, R. 6, O.XLIII, Rd .& O. XLVII, R.1---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---Admission by attorney---Principal, resiling from admission---Recalling of judgment---Procedure---Plaintiff filed suit against defendant for specific performance of agreement to sell in his favour---On the basis of conceding statement made by special attorney of defendant, suit was decreed in favour of plaintiff---Judgment and decree passed by Trial Court was recalled on the same day after its announcement---Validity---If any party had made an unconditional conceding statement after having been satisfied with the situation or terms and conditions of a compromise, Court was bound to pass a decree under 0. XII, R.6, C.P.C.-Defendant showed his lack of confidence in the attorney and at the same time, he filed application under 0.1, R.10, C.P.C. for impleading him as a party---Defendant also raised number of objections in that regard, therefore, provisions of 0. XII,. R. 6, C.P.C. were not strictly attracted---After signing of judgment and announcement of order, Trial Court was left with no authority to recall that order on verbal request of other party---Defendant should have filed either an appeal under 0.XLIII, R.1, C.P.C. or at least an application for review under O.XLVII, C.P.C.---Trial Court had travelled beyond its jurisdiction because once Court / Judge signed and pronounced judgment in open Court, thereafter he ceased to exercise jurisdiction in the matter as he had become functus officio--Orders passed by Trial Court were set aside by High Court and case was remanded to Trial Court for decision afresh---Appeal was allowed in circumstances.

1990 CLC 1609; 2003 SCMR 1261; 2004 YLR 1775 and PLD 1983 Kai. 393 ref.

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

----0. XX, R. 5, 0. XLI, R. 30, 0. XLVII, R.1, Ss.12, 30 & 114---Judgment, announcement of-- Principles--- Alteration ? and amendment---Procedure---While drawing judgment; Judge must apply his judicial mind with a reasonable depth so that points in controversy are fairly determined with reasons---Any alteration and amendment thereafter in judgment is not permissible because such practice, if allowed, would bring the system of justice to disarray---Exception however, is allowed by law itself under the provisions of S.114, 12 and O. XLVII, C.P.C.

Muhammad Ilyas Sheikh for Petitioner.

Malik Shabbir Akhtar Awan for Respondent No.1.

Date of hearing: 15th March, 2011.

2012 C L C 441

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD NADEEM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BHAKKAR and others----Respondents

Writ Petition No.2020 of 2007, decided on 3rd November, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Arbitration Act (X of 1940), Ss.20, 30, 34 & 39----Contract Act (IX of 1872), S.73---Constitution of Pakistan, Art.199---Constitutional petition--- Suit for declaration and permanent injunction--- Arbitration proceedings--- Award, objection to--- Damages---Entitlement ---Plaintiff who was distributor of defendant-company, his distributorship having been terminated by defendant, he filed suit for declaration and permanent injunction---Defendant, during pendency of suit, filed an application under S.34 of the Arbitration Act, 1940 for settlement of dispute through arbitration as provided in one of the clauses of the agreement---With consent of the parties, Trial Court referred the matter to arbitrator---Both the parties made a joint statement before the arbitrator that they would abide by the award made by the arbitrator---After hearing the parties, the arbitrator held the plaintiff entitled to get amount of Rs.16,49,033 as damages---No objection was raised by defendant before the arbitrator with regard to scope of reference or upon the jurisdiction of the arbitrator---Parties raised no objection on the credibility or jurisdiction of the arbitrator---When arbitrator award was made and announced, the defendant-company, seeing the award unfavourable to it, took certain objections with regard to scope of reference for determination of the dispute---Validity---Defendant, at that stage could not be allowed to point out any lacuna, whatsoever in the order of reference or the jurisdiction of the arbitrator---When the plaintiff submitted his claim for damages before the arbitrator who also framed issues on that point, ample opportunity was available to the defendant to take objections that neither scope of reference nor agreement allowed the award of damages, but defendant completely failed to do so---Under S.73 of the Contract Act, 1872, damages could be claimed even if there was no clause in the agreement---Award of the arbitrator was in accordance with law and same could not be set aside---Courts below were not justified in law while setting aside the award---Constitutional petition filed by the plaintiff was allowed and impugned judgments passed by courts below were set aside, in circumstances.

Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. PLD 1985 SC 69; Messrs Sirmur Chemical and General Industries Ltd. Nahan v. The Union of India and others AIR 1958 Himachal Pradesh 20; Syed Arif Ali Sabir v. Abdul Samad through LRs and 2 others 2008 YLR 2309 and Messrs Farooq & Co. v. Federation of Pakistan and 3 others 1996 CLC 2030 ref.

Messrs Quality Builders Ltd. v. Karachi Metropolitan Corporation 1999 CLC 1777; WAPDA and another Messrs Khaznzada Muhammad Abdul Haque Khan Khattak and Co. PLD 1990 SC 359 and Messrs Agrimpex Trading Company Ltd. v, Trading Corporation of Pakistan (Pvt.) Ltd. 2004 MLD 477 rel.

Syed Shahab Qutab for Petitioner.

Muhammad Iqbal Akhtar for Respondents.

Date of hearing: 25th October, 2011.

2012 C L C 498

[Lahore]

Before Muhammad Khalid Mehmood Khan and Syed Mansoor Ali Shah, JJ

MUHAMMAD AHMED SHEIKH and 2 others----Appellants

Versus

J.S. BANK LIMITED through Branch Manager----Respondent

E.F.A. No.391 of 2011, decided on 5th October, 2011.

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

----O. XXI, Rr. 67, 69 & 72---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree---Auction of mortgaged property---Decree-holder's offer to purchase such property at reserved price made after postponement of auction proceeding by court-auctioneer due to non-availability of any bidder---Confirmation of sale in favour of decree-holder by court---Validity---Decree-holder had not obtained permission of court before making such offer---Court-auctioneer was legally bound to require decree-holder before entertaining its offer to obtain permission from court---Court before confirming any sale would decide its validity and after coming to conclusion that sale was valid, only then court might confirm same---Decree-holder had only made an offer to purchase such property and that too without permission of court, thus, there was no sale, which could be confirmed by the court---According to O.XXI, R.69(2), C.P.C., where court or court-auctioneer adjourned sale for a longer period than seven days, then fresh proclamation under R.67 thereof would be required to be made except in case of waiver of right by judgment-debtor---Court, in the present case had not issued notice under O.XXI, R.67, C.P.C. for re-conducting sale---Court had ignored mandatory requirement of law while confirming sale on a single offer of decree-holder and that too against reserved price---Execution proceedings had been commenced under C.P.C. and not under S.19 of Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court set aside impugned order for being illegal.

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

----O. XXI, R. 72---Property to be sold in execution of decree---Purchase/sale of such property by/to decree-holder without permission of court---Scope---Such purchase/sale would be voidable if not void in absence of consent of judgment-debtor---Principles.

Under Order XXI, Rule 72, C.P.C. if decree-holder intends to participate in auction proceedings, then decree-holder has to obtain permission of executing court.

The perusal of Rule 72, O.XXI, C.P.C. shows that decree-holder will not be permitted to participate in auction proceedings, meaning thereby the law only binds the decree-holder for obtaining permission and it is silent for the permission of judgment-debtor, this clear distinction in law is intentional. The judgment-debtor if will purchase the property, he will offer maximum price as the maximum price will be in his benefit for discharging the liability under the decree, whereas the decree-holder may try to purchase land on lesser price, that is the reason the legislator has taken care of slightest possibility of unfairness which may cause loss to the judgment-debtor, hence the logical conclusion under the provision of Order XXI, Rule 72, C.P.C. is, if the decree-holder intends to participate in auction, he is bound to obtain permission of court and any sale in favour of decree-holder without court's permission will be voidable if not void in the absence of judgment-debtor's consent.

(c) Administration of justice---

----Cognizance of a matter taken by court under one procedure---Effect---Proceedings once commenced under such procedure would be finalized thereunder---No pick and choose authority would be available in law to court in law.

Waqar Mushtaq for Appellants.

Ahmad Pervaiz for Respondent.

2012 C L C 517

[Lahore]

Before Ijaz Ahmad, J

MUMARAZ KHAN----Petitioner

Versus

RAKHSHANDA BIBI----Respondent

Civil Revision No.386-D of 2011, decided on 14th December, 2011.

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

----S. 5, Sched. (Part I) & S.17---Civil Procedure Code (V of 1908), S.11---Specific Relief Act (I of 1877), S.21---Suit for specific performance of agreement between spouses---Second suit---Maintainability---Res judicata, principle of---Applicability---Scope---Earlier suit filed by petitioner for custody of children had been dismissed by Family Court and attained finality uptil the Supreme Court---Second suit instituted by petitioner to determine right of visitation based on an agreement between spouses fell within the exclusive jurisdiction of the Family Court---Petitioner had not agitated right of visitation in the earlier suit but it was deemed to have been directly and substantially in issue in the earlier suit---Principle of res judicata applied in the case and court seized with second suit could not try the same in view of section 11, C.P.C.---Second suit was also not maintainable in view of section 21 of Specific Relief Act, 1877 as it was based on an agreement which contained a promise by respondent to arrange meeting of petitioner with minors till an indefinite period---Both courts below having rightly dismissed the suit and appeal, revision was dismissed with costs.

Khan Baig Janjua for Petitioner.

2012 C L C 525

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ZUBAIR alias MUHAMMAD JAVAID----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, BUREWALA DISTRICT VEHARI and 2 others----Respondents

Writ Petition No.3508 of 2011, decided on 17th October, 2011.

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

----S.5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of maintenance allowance and dowry articles---Concurrent findings of Trial Court and Appellate Court by which decree for maintenance of minor son, recovery of dowry articles and maintenance for iddat period was passed in favour of the wife (respondent)---Husband (petitioner) contended that list of dowry articles was not proved in accordance with law and same were taken by wife to her parent's house and the rate of maintenance was beyond his means---Validity---Husband did not refute wife's contention to the extent that dowry was given to her by her parents but contended that its value was less than what she claimed---Wife had contended that list of dowry articles was not thumb-marked by her but her brother had put thumb-impressions and signatures on it and she had given full details of the articles and prices thereof in her statement---Husband's contention that wife took dowry articles to her father's house was not substantiated by any cogent evidence---Minor's rate of maintenance was very reasonable and being real son of petitioner, he had unlimited and unqualified right to get maintenance from his father---Rate of maintenance for period of iddat in favour of wife was also not excessive---Concurrent findings of Trial Court and Appellate Court below being unexceptional, husband's petition was dismissed.

2006 MLD 555 distinguished.

Muhammad Ehsan Alvi for Petitioner.

Tariq Zulfiqar Ahmad Chaudhary for Respondents Nos.2 and 3.

2012 C L C 528

[Lahore]

Before Amin-ud-Din Khan, J

SAGHEER AHMED----Petitioner

Versus

SECRETARY MINORITY AFFAIRS----Respondent

Writ Petitions Nos.3119, 3120, 3122, 3123 and 3124 of 2006, decided on 7th July, 2011.

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

----Ss. 8 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Property entered as Mandar in revenue record in ownership of a Hindu---Transfer of such property through permanent transfer deed and registered sale deed in favour of petitioner by Settlement Department---Declaration of such property as evacuee trust property by Chairman Evacuee Trust Property Board on the basis of such revenue record and report of lower staff---Validity---Chairman had no jurisdiction to claim such property to be evacuee in absence of any trust deed or evidence showing its attachment to a religious charitable or educational trust---Evacuee property could not be declared as evacuee trust property just on the basis of entry in revenue or settlement record---Transfer of such property in favour of petitioner by Settlement Department would be deemed to have been validly made---Vested right available with a person could not be taken without any legal justification---Sufficient material, sound evidence and full jurisdiction would be required for denial of any vested right, which were absent in the present case---Valuable rights of petitioner could not be taken on the basis of such report or entry in record, which had no basis---High Court set aside impugned order, in circumstances.

Chairman, Evacuee Property Trust Board v. Munir Khan and others NLR 1992 AC 204; Deputy Administrator Evacuee Trust Property Lahore v. A.R. Chaudhary and 4 others 1981 CLC 1006 ref.

Government of Pakistan through Secretary Religious and Minority Affairs, Islamabad and another v Nizamuddin through Legal Heirs and another 1994 SCMR 1908 rel.

Anees Ahmed v. Secretary Ministry of Minorities and Religious Affairs, Government of Pakistan and others 2010 SCMR 1078 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 9 ---Constitutional jurisdiction---Scope---Bar of jurisdiction with regard to courts contained in special statutes---Effect---Such bar would be referable to courts established under general law---High Court exercising constitutional jurisdiction would not come within the ambit of 'court', thus, its jurisdiction could not be curtained by any other law.

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

----S. 9---Provisions of a statute barring jurisdiction of civil court---Effect.

The civil court has jurisdiction to check the validity of any order passed by any authority judicial, quasi judicial or any tribunal on the touchstone whether these orders have been passed with jurisdiction provided with official, authority or tribunal in accordance with jurisdiction given in the statute or not, in spite of the fact barring provisions of jurisdiction of civil court is available in that statute.

Raja Muhammad Sohail Iftikhar for Petitioner.

Muhammad Sarwar and Khalil Babar for Respondent.

Date of hearing: 7th July, 2011.

2012 C L C 548

[Lahore]

Before Mehmood Maqbool Bajwa, J

SHAHIDA PARVEEN and others----Petitioners

Versus

RIZWANA SHAHEEN and others----Respondents

Civil Revision No.2469 of 2011, heard on 5th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr, 1, 2 & O. XVII, R. 3---Closing of defendant's evidence for his failure to produce evidence---Defendant's plea that he was granted one adjournment for production of evidence and one witness appeared on the relevant date, while other witnesses sought to be summoned through court were not present, though he had already deposited diet money and summonses in their names as per order of Trial Court, which was bound to procure their attendance, thus, his evidence could not be closed for non-issuance/non-service of summonses---Validity---Receipt issued by Ahlmad of court showed that defendant had deposited diet money and summonses in names of witnesses and process fee on same day when his application for summoning them was allowed by court---Defendant had liquidated his responsibility, thus, Trial Court was bound to issue process in the names of such witnesses---Summonses of such witnesses returned as unserved would not be sufficient to non-suit defendant---Trial Court was not competent to close defendant's evidence on ground of decision of suit being delayed by him as order for deposit of diet money had been made by court itself and had been deposited along with process fee for summoning witnesses for the date on which further adjournment was refused to him---Impugned order was suffering from vice of non-exercise of jurisdiction vested in Trial Court---High Court accepted revision petition and set aside impugned order and directed Trial Court to issue summonses to witnesses by making specific order regarding their service either under R.7(a) or R.8 of O.XVI, C.P.C.

Ch. Muhammad Sharif Arain for Petitioners.

Shahzad Bashir for Respondents.

Date of hearing: 5th October, 2011.

2012 C L C 562

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ARSHAD ALI----Petitioner

Versus

CIVIL JUDGE IST CLASS-CUM-RENT CONTROLLER, MULTAN and 2 others----Respondents

Writ Petition No.4628 of 2002, heard on 15th March, 2011.

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

----S. 11---Res judicata, principles of---Applicability---Essential ingredients.

The rule of res judicata is a rule of universal law, the crux of the said rule is that there should be an end to litigation. For attracting the rule of res judicata, it is necessary that there should be final judgment rendered by a court of competent jurisdiction as it is the merits which finally settle the rights of parties. The principle of res judicata is that the cause of action in the suit merges in the judgment and as such second suit on the same cause of action could not be brought before the court again for determination. The basic rule thus is that there should be an end of litigation between the parties concerned. The rule shows that dispute should be heard and finally decided. This means the litigation with respect to cause of action should be finally decided, thus it is clear that for applying the rule of res judicata, the following ingredients should be present:---

(1) Forum or the competence of court of law.

(2) Parties and their representatives.

(3) Matter in issue.

(4) Matter which sought have been made ground for defence or attack in the former suit or

(5) The final decision.

The most important words used in section 11 are "finally decided". [p. 566] A

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

----Ss. 13 & 15---Civil Procedure Code (V of 1908), O.XVII, R.3---Ejectment petition---Dismissal of ejectment petition for failure of landlord to produce evidence by applying provision of O.XVII, R.3, C.P.C.---Validity---Rent Controller in his discretion, if thought proper for regulating rent proceedings, could adopt procedure of C.P.C., which otherwise was not applicable thereto---Provisions of O.XVII, R.3, C.P.C. being not available to Rent Controller, order of dismissal of ejectment petition passed thereunder would not become appealable under C.P.C.

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

----Ss. 13 & 14---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XVII, R.3---Ejectment petition---Grounds of default in payment of rent by tenant for 18 months and personal need of premises by landlord---Denial of relationship of landlord and tenant between the parties---Dismissal of ejectment petition under O.XVII, R.3, C.P.C. for failure of landlord to produce evidence on sole ground of non-existence of relationship of landlord and tenant---Second ejectment petition by landlord on same grounds claiming period of default to be 24 months---Application by tenant under O.VII, R. 11, C.P.C. seeking rejection of second petition for being barred by principle of res judicata---Dismissal of such application by Rent Controller challenged in appeal, which was dismissed by Appellate Authority for being incompetent---Validity---Rent Controller in his discretion could adopt procedure of C.P.C., which otherwise did not apply to rent proceedings---Order of dismissal of ejectment petition passed by applying provisions of O.XVII, R.3, C.P.C. would not become appealable---According to provisions of S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959, Rent Controller could dismiss ejectment petition summarily, if raised therein grounds mentioned in S.13(2)(3) thereof, which were finally decided in earlier proceedings---Words "finally decided" as used in S.14 of the Ordinance would mean to finalize inquiry after recording of evidence on merit---Rent Controller had dismissed earlier ejectment petition on technical ground without conducting any inquiry and had not touched such two grounds---Second ejectment petition was, thus, not barred in terms of S.11, C.P.C.---Such application under O.VII, R.11, C.P.C. was not maintainable in view of provision of S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959---Order passed on such application was, thus, not appealable---High Court dismissed constitutional petition and directed Rent Controller to decide second ejectment petition within specified time.

Mursleen v. Ghulam Sarwar and others (PLD 1987 Quetta 8 rel.

Abdul Qadir and 6 others v. Haji Shakar Khan Barech 1987 CLC 1816; Rana Zahid Ali Khan and 5 others v. Ehsan Elahiee PLD 1977 Lah. 538; Abdul Hamid and others v. Hafiz Abdullah PLD 1969 Kar. 82; Abdul Wahid v. Eid Muhammad and 2 others 1990 SCMR 747; Rajab Ali Syal v. Mst. Ahmadi Begum and another 1982 SCMR 568; Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCMR 261; Nasim Javed v. National Bank of Pakistan, I.I. Chundrigarh Road Karachi PLD 1985 Pesh. 91; Zardad Khan v. Muhammad Ayaz Khan 1997 CLC 1825; Sufi Ghulam Mohy-ud-Din v. Khushi Muhammad and others 1997 CLC 636; Hoshair Ali v. Ghulam Sabir 1993 CLC 2476 and Rahat Mahmood v. Tariq Rashid and another PLD 1993 Kar. 648 distinguished.

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

----S. 14---Words "finally decided" as used in S.14 of West Pakistan Urban Rent Restriction Ordinance, 1959---Scope---Final decision would mean to deliberate on an issue either accepting or rejecting same after conducting full inquiry---Such words would mean to finalize inquiry after recording of evidence on merit.

Mian Habib-ur-Rehman Ansari for Petitioner.

Nemo for Respondents.

Date of hearing: 15th March, 2011.

2012 C L C 573

[Lahore]

Before Abdul Waheed Khan, J

AHMAD WASEEM----Petitioner

Versus

MUHAMMAD AYUB and others----Respondents

Civil Revision No.87 of 2003, heard on 1st November, 2011.

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

----Ss. 6, 13 & 14---Civil Procedure Code (V of 1908), O.XXXII, Rr.2, 3---Suit for pre-emption was filed in the name of minor through his next friend, who was not related to the minor---Performance of Talbs by next friend---Scope---Suit was dismissed by the Trial Court and the dismissal order was upheld by Appellate Court---Talb-e-Muwathebat could be made on behalf of the minor pre-emptor by his guardian or the agent---Next friend through whom suit was filed by the minor; did not say that he had legal authority and duty to care for the person and property of the minor because of his infancy, incapacity or disability he by no means could be considered to be guardian of minor pre-emptor---Next friend of the minor had himself admitted in his examination-in-chief that he was a remote relative of the minor and stated that the plaintiff was his Khalazad, but he could not tell the name of the Khala---No court had authorized said person to file suit for possession through pre-emption and to pursue the same---Contention for counsel for the plaintiff that said person was guardian ad litem, was misconceived---Person who had no direct relationship with the minor, had no legal authority or duty to minor's property because of his infancy, incapacity and disability; he could neither make any Talb under Ss.13 & 14 of Punjab Pre-emption Act, 1991, nor file any suit for possession through pre-emption, especially when the mother of the plaintiff was alive at the time of sale transaction---Elder brother of minor was also major and was capable of looking after the interest of the minor---Person/plaintiff was neither his natural guardian, nor guardian appointed by the court under the provisions of O.XXXII, C.P.C. or guardian appointed by the Guardian Court under the provision of Guardians and Wards Act, 1890---Suit was rightly dismissed by courts below---No interference was called for.

(b) Words and phrases---

----"Guardian" defined and explained

(c) Words and phrases---

----'Guardian ad litem', defined and explained

Muhammad Amir Butt for Petitioner.

Muhammad Atif Farzauq Raja for Respondent.

Date of hearing: 1st November, 2011.

2012 C L C 605

[Lahore]

Before Nasir Saeed Sheikh, J

IRFAN and 5 others----Petitioners

versus

SURRIYA JABEEN and 4 others----Respondents

Civil Revision No.537 of 2011, decided on 9th June, 2011.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for recovery of possession and declaration of title---Concurrent findings of fact by two courts below---Thirty years old document---Property Tax record---Reliance---Plaintiffs claimed to be owners of suit property on the basis of registered gift-deed executed in favour of their predecessor-in-­interest---Suit and appeal were decided in favour of plaintiffs, by Trial Court and Lower Appellate Court respectively---Validity---Two courts below recorded concurrent findings of facts in accordance with evidence as well as under the law---Gift-deed in question was a thirty years old document and had not been assailed by defendants during last more than thirty years---Claim raised by defendants in respect of house in question with respect to entries of Register of Property Tax-I in favour of one of the defendants could not be described as title deed nor it was authentic document as well---Entries of register of Property Tax-I pertained to years 2002 to 2010 and were only relevant for the purposes of tax recovery and unless and until such entry was based upon some title deed in favour of defendant in whose name the entries in register of Property Tax-I were incorporated, such person could not be declared to be the owner of subject property on the basis of simple entries in register Property Tax-I---Defendants did not raise any plea with respect to gift-deed being illegal, fraudulent or unauthorized in their written statement, therefore, oral contention in evidence produced by defendants about legality or otherwise of gift-deed carried no legal force---Defendant in whose name there were entries in property tax register, neither filed any suit nor raised claim in her favour of subject property---Two courts below had decided the matter in accordance with law on the basis of evidence---Suit instituted by plaintiffs was based upon bona fides and defendants had entangled them in frivolous litigation by depriving them of the benefit of possession over subject property for so many years---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.

Muzaffar Khan v. Sanchi Khan and another 2007 SCMR 181; 2007 SCMR 568; Sheikh Muhammad Afzal v. Virbai through Legal Heirs 1993 CLC 1702 and Raja Ajaib Khan v. Soofi Allah Ditta and 4 others 2002 YLR 2723 ref.

Mubeen Ahmad Siddiqui for Petitioners.

Sardar Muhammad Ramzan for Respondents.

2012 C L C 625

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD YAQOOB----Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, ATTOCK and others----Respondents

Writ Petition No.912 of 2011, decided on 27th October, 2011.

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

----S. 5 & Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance ---Appeal of petitioner against ex parte decree of Trial Court was dismissed on the ground that the petitioner did not comply with order of Appellate Court to deposit surety bond for suspension of the ex parte decree of Trial Court---Validity---Purpose of submission of surety bond as required under the impugned order of Appellate Court was to pass an order of the operation on judgment and decree of Trial Court for recovery of maintenance allowance, and had nothing to do with the main appeal which was to be decided on merits---Matters between the parties are to be decided on merits rather than technicalities---From bare reading of S.14 of the West Pakistan Family Courts Act, 1964 it was clear that in order to file an appeal against decision or decree passed by Trial Court, it had not been provided as a condition precedent to deposit the decretal amount or to submit any surety or security---In the present case, petitioner had prayed for suspension of the operation of decree passed by Trial Court, and the Appellate Court had directed him to submit a surety bond within a stipulated period that was only to secure the execution of the decree and had nothing to do with the filing of the appeal or for its disposal under S.14 of the West Pakistan Family Courts Act, 1964---No provision being available under S.14 of the Act, in that behalf, dismissal of appeal by Appellate Court was an exercise of a jurisdiction which did not vest such power to the Appellate Court---Order of Appellate Court, in circumstances, was nullity in the eye of law which was set aside and the case was remanded to the Appellate Court for disposal of the appeal on merits---Constitutional petition was allowed, accordingly.

Muhammad Aslam v. Mst. Khursheed Begum and 6 others 2005 YLR 136 ref.

Muhammad Abdullah v. Mst. Zubaida Begum and another 1985 CLC 1542 rel.

Raja Zafar Ullah for Petitioner.

Raja Muhammad Farooq for Respondent No.3.

2012 C L C 640

[Lahore]

Before Ch. Shahid Saeed, J

MUBASHIR HASSAN and others----Appellants

versus

GHULAM SARFRAZ and others----Respondents

Regular Second Appeal No.284 of 2010, heard on 20th September, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.II, R.2---Suit for rendition of accounts---Plaintiff claimed to be the owner to the extent of 27/48 share, while defendants to the extent of 21/48 shares out of total joint property---Plaintiff proceeded abroad in the year 1979 and remained there till 1991, for about 12 years---Disputed property consisted of 7 shops remained in possession of defendant who received rent of said shops for about 12 years---Plaintiff on his return in 1991 demanded his share of rent of said shops, but defendant refused---Maintainability of suit filed by the plaintiff was objected to on grounds of limitation and under O.II, R.2, C.P.C., contending that plaintiff was obliged to file one suit for partition and rendition of accounts---Validity---Cause of action had accrued to the plaintiff when his share was refused by the defendant in 1991 and not from the year 1979, when the plaintiff proceeded abroad---Suit in circumstances was fully within time and was not barred by limitation---Order II, R.2, C.P.C. had restricted filing different suits for various reliefs coming out of one cause of action; situation in the present case was different---Partition of the property, was one cause of action when someone would feel aggrieved about the same, while rendition of accounts regarding mesne profits/rendition of accounts of the same provided another cause of action to an aggrieved party---Defendants were enjoying the possession of the suit shops and were in receipt of the mesne profits since 1979---Whenever the right was refused, the present cause of action was created; and in the present case there was recurring cause of action as the defendants were still denying the share of the plaintiff in the rent of the shops---Partition of the property and mesne profits/rendition of accounts were different causes of action and could be filed separately and O.II, R.2, C.P.C. would not bar the same in any manner---Concurrent findings of law and facts existed against the defendants, who had failed to repel the assertions of the plaintiff---In absence of any illegality, misreading or non-reading of evidence, impugned judgments and decrees, were maintained.

Ch. Muhammad Naeem and Ali Azfar Tirmizi for Appellants.

Muhammad Rafiq and Ghulam Mujaddid Rabbani for Respondent No.1.

Date of hearing: 20th September, 2011.

2012 C L C 651

[Lahore]

Before Abdul Waheed Khan, J

ALLAH DIWAYA----Petitioner

versus

FARRUKH ABBAS and another----Respondents

Civil Revision No.2737 of 2011, decided on 19th September, 2011.

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

----S. 13---Suit for pre-emption---Making of Talbs---Plaintiff claimed that he had superior right of pre-emption qua the vendee/defendant in his capacity as co-sharer, on the basis of contiguity of the land and the common passage---Defendants in their written statement denied the superior right of pre-emption and so also fulfilment of talbs by the plaintiff---Suit filed by the plaintiff was dismissed mainly for the reason that the plaintiff did not appear before the Trial Court as his own witness; and had failed to fulfil the requirements of Talb-e-Muwathibat and Talb-e-Ishhad---Appeal by the plaintiff against judgment of the Trial Court had been dismissed---Validity---Plaintiff did not appear in the court to prove the fact that he came to know about the sale transaction on a particular date, time and place and that he made an immediate demand i.e. Talb-e-Muwathibat---Non-appearance of plaintiff before the court to prove said facts was fatal to his suit---When there were certain facts and circumstances in the knowledge of a party, an adverse inference could be drawn from its non-appearance---Plaintiff could not give cogent and plausible reasons for his failure to appear in the court to prove the fact of making the talbs and his superior right of pre-emption---Witnesses of plaintiff did not say that the plaintiff was sick or he was unable to appear before the court for making his statement---Plaintiff who did not enter the witness box, neither could prove that he made Talb-e-Muwathibat nor he had any superior right qua the suit-land, his suit was rightly dismissed by the courts below.

Muhammad Hafeez v Muhammad Hanif Khan and another 1991 MLD 1576 and Abdul Qayum v. Muhammad Sadiq (2007 SCMR 957 rel.

Muhammad Safdar Abbas Khan for Petitioner.

2012 C L C 679

[Lahore]

Before Malik Shahzad Ahmad Khan, J

AMANULLAH KHAN----Petitioner

versus

DISTRICT JUDGE and 3 others----Respondents

Writ Petition No.25494 of 2011, decided on 8th December, 2011.

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

----S. 5, Sched., Ss.13 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Execution of decree---Suit for recovery of maintenance allowance filed by the plaintiff having finally been decreed, plaintiffs filed execution petition, which was allowed---Execution proceedings remained pending for a considerable period due to delaying tactics of the judgment-debtor---Petitioner, who was father of the judgment-debtor stood surety for payment of decretal amount---Petitioner paid Rs.10,000 and undertook to pay the remaining decretal amount in case of non-payment by the judgment-debtor---Later on decretal amount having not been paid by the judgment-debtor or the petitioner/surety, judgment-debtor was finally arrested---Application filed by the petitioner/surety for discharge of his surety, had been dismissed by the Family Court and Appellate Court---Validity---Petitioner's contention was that as he himself was not judgment-debtor and was merely a surety of judgment-debtor, on arrest of judgment-debtor, no further action could be taken against him, when he had performed his duty by producing the judgment-debtor before the court---Contention of the petitioner was misconceived as petitioner did not stand surety for appearance of judgment-debtor, but he stood surety for the payment of decretal amount---Petitioner, could not be absolved of his liability on account of arrest of judgment-debtor---Action for recovery of decretal amount could validly be taken against petitioner/surety---No interference was required by High Court in impugned orders passed by the Family Court and Appellate Court below---Petition was dismissed.

Nawazo v. The State 2004 SCMR 563; Ghulam Qadir Siyal v. The State 1997 PCr.LJ 554 and Mst. Maqsooda Mai v. Bukhat Ali and another 2007 MLD 1264 distinguished.

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

----S. 14(3)---Constitution of Pakistan, Art.199---Constitutional petition---Appeal against interim order---Petitioner in his constitutional petition had challenged an interim order of Executing Court---When the legislation had specifically prohibited the filing of appeal or revision against an interim order, filing of constitutional petition against such order would amount to defeating and diverting the intent of the legislature---Constitutional petition was dismissed.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Muhammad Sabir v. Mst. Azra Bibi and 2 others 2011 CLC 417 and Muhammad Irfan v. Judge, Family Court, Sargodha and 2 others 2008 CLC 582 rel.

Kh. Muhammad Saeed for Petitioner.

2012 C L C 699

[Lahore]

Before Amin-ud-Din Khan, J

BASHIR AHMAD KHAN and others----Petitioners

versus

GHULAM SADAR-UD-DIN KHAN and others---Respondents

Civil Revision No.490 of 2001, decided on 13th June, 2011.

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

----Ss. 42 & 54---Mutation---Nature and correctness of---Scope---Mutation by itself, did not create title and a person deriving title thereunder had to prove that same was duly entered and attested---Any person who was acquiring title through mutation, the burden of proving transaction embodied in the mutation, was upon him---Mutation was not a part of record of rights---Scope---No presumption of correctness was attached to the mutations and entries, till the time those entries were proved through independent and cogent evidence---Entry in violation of S.42 of West Pakistan Land Revenue Act, 1967, were void and nullity in the eyes of law---Mutations by itself, did not create or confer title; it was an entry in the Revenue Record on the basis of any instrument or decree etc.---Person claiming a title through mutation, burden of proving the transaction embodied in the mutation, upon such person.

Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832 and Muhammad Ali and 2 others v. Barkat Ali and 5 others 2000 CLC 814 rel.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.39, 42, 52, 53---Suit for declaration---Limitation---Presumption in favour of entries in record-of-rights---Scope---No doubt, the plaintiffs had to prove their case on the basis of their own evidence, but the beneficiary of the mutation was bound to prove the transaction and valid attestation of the mutation, which the defendants had failed to do---Even the possession of the plaintiffs, had not been denied by the defendants---Mutation proceedings being not judicial proceedings, those would not provide starting point of limitation---Even otherwise, for wrong mutation, there was no bar of limitation against co-sharers or co-owners in the suit---Plaintiffs were owners in the suit Khata---Limitation, in case of declaratory suit, would start from the date of threat to the title of the plaintiff---Every entry in the succeeding Jamabandi would give cause of action; and would be presumed a last attack on the plaintiff's right or denial thereof---When the plaintiffs were co-sharers in the Khata, they could not be knocked out---No doubt Jamabandi had attached presumption of correctness, but it was rebutable presumption; it could also be scrutinized, as to how that entry came into Jamabandi---When mutations were not valid ones, presumption of correctness, was not available in that case---Findings recorded by both the courts below, were set aside and suit filed by the plaintiffs, stood decreed in their favour, in circumstances.

Moolchand and 9 others v. Muhammad Yousaf (Udhamdas) and 3 others PLD 1994 SC 462 and Haji v Shuka Yar PLD 1987 SC 453 rel.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 distinguished.

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

----S. 115---Revisional jurisdiction---Scope---High Court had jurisdiction to see as to how concurrent findings had been recorded by both the courts below---High Court, had power under S.115, C.P.C., even to scrutinize full evidence of the parties and could not blindly endorse concurrent findings---Rule that concurrent findings of fact could not be interfered with in the revisional jurisdiction was not a hard and fast one.

Faqir Muhammad Khurshid and others v. Chief Administrator of Auqaf PLD 1987 SC 60 distinguished.

Mumtaz Mustafa for Petitioners.

Bashir Ahmed Chaudhary and Junaid Khan, Tehsildar, Rahimyar Khan for Respondents.

Date of hearing: 13th June, 2011.

2012 C L C 712

[Lahore]

Before Ijaz Ahmad, J

FATEH SHER----Petitioner

versus

DISTRICT COORDINATION OFFICER, VEHARI and 44 others----Respondents

Writ Petition No.5060 of 2011, decided on 28th April, 2011.

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

----S. 10---Constitution of Pakistan, Art.199---Constitutional petition---Leasing out land for fixed period---Resumption of land---Land in question was leased out to father of the petitioner for the crops of Kharif 1988 and Rabi 1989---Contentions of the petitioner were that after enjoying the lease of two crops, he had a right to perpetually possess and cultivate the land in question and that petitioner was being dispossessed and land was being resumed without serving of any notice to him---Contentions were repelled as land in question was leased out for fixed period in an open auction and fixation of duration of two crops specified the terms of possession of the petitioner and after the elapse of said period, the petitioner would be deemed to be a trespasser under the civil as well as criminal law---Any extension in the lease could be effected through an open auction only where the others desiring to have it on lease would have an equal chance of success---High Court could not contribute to wrong and bestow it the perpetuity---Trespasser was always at notice that he would have vacated the land---Constitutional petition was dismissed.

Abdul Rehman Khan Laskani for Petitioner.

2012 C L C 748

[Lahore]

Before Abdul Waheed Khan, J

ABDUL MUNAF----Petitioner

versus

MUHAMMAD ASHFAQUE and others----Respondents

Civil Revision No.628 of 2011, heard on 12th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2, 3---Suit for recovery of amount on the basis of a cheque---Application for leave to defend suit---Defendant was summoned through ordinary notice and summons---Defendant filed written statement and court struck off right of defendant to defend suit on the ground that he did not file application for condonation of delay in filing application for leave to defend suit---Specific procedure had been laid down for summary suits under O.XXXVII, C.P.C.---Notices and summons were issued to the defendant as if it was an ordinary suit for recovery of amount---Under provisions of Sub-rule 1, 2 of R.2 of O.XXXVII, C.P.C., in all suits upon bills of exchange, hundies or promissory notes, a plaint would be presented in the form prescribed and the summons would be on the Form No.4 in Appendix 'B' of Schedule to C.P.C.---When the notices/summons were not issued on the prescribed form available in the Schedule of C.P.C., defendant would not be at fault---Maxim "Actus curiae neminem gravabit" (no act of the court would prejudice no man), was fully engrained in the system of administration of justice---Trial Court could treat the written statement as an application for leave to appear and defend the suit to meet the ends of justice---Impugned order was set aside with observations that written statement filed by the defendant, would be treated as an application for leave to appear and defend the suit, and in support whereof, the defendant could file an affidavit.

Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146 rel.

Mian Ahmed Khan for Petitioner.

Muhammad Asad Shaikh for Respondents.

Date of hearing: 12th October, 2011.

2012 C L C 764

[Lahore]

Before Syed Mansoor Ali Shah, J

Ch. MUHAMMAD NAZIR CHEEMA----Petitioner

versus

MUJAHID SHER DIL, DCO/CHAIRMAN, DISTRICT TASK FORCE, SIALKOT and 3 others----Respondents

Writ Petition No.25686 of 2011, decided on 28th November, 2011.

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

----Ss. 117 & 122---West Pakistan Land Revenue Rules, 1968, R.67-B---Constitution of Pakistan, Art. 199---Constitutional petition---Dispossession---Executive order---Petitioner was declared owner of land in question up to Supreme Court against respondent---Grievance of petitioner was that revenue authorities dispossessed him from his land through an executive order and handed over the same to respondent---Validity---Landowner could be evicted under Rule 67-B of West Pakistan Land Revenue Rules, 1968 read with sections 117 and 122 of West Pakistan Land Revenue Act, 1967, if the landowner was found in wrongful possession of a land as a result of demarcation proceedings taken under section 117 of West Pakistan Land Revenue Act, 1967---Authorities hearing application under section 122 of West Pakistan Land Revenue Act, 1967, could direct fresh demarcation proceedings or order eviction of landowner who was in wrongful possession of the land---Such power of Collector was qualified by the proviso to Rule 67-B (5) of West Pakistan Land Revenue Rules, 1968, which provided that where proceedings involved substantial question of title or an intricate question of law, the Collector would refer the matter to civil court---Possession of land in question was ordered to be restored to petitioner forthwith and order passed by revenue authorities was set aside---High Court also set aside the notifications issued by Board of Revenue to the extent of private lands and private disputes, as having been issued without lawful authority---Petition was allowed accordingly.

Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Federation of Pakistan and another v. Irfan Tariq and others 2009 SCMR 1018; Tariq Aziz-ud-Din and others' case 2010 SCMR 1301; Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799; Iman Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266; Abdul Haq and 2 others v. The Resident Magistrate, Uch Sharif, Tehsil Ahmedpur East, District Bahawalpur and 6 others PLD 2000 Lah. 101; Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Province of Sindh through Secretary, Home Department and others v. Roshan Din and others PLD 2008 SC 132; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others 2007 YLR 1618 and M.D. Tahir, Advocate v. Federal Government and others PLD 1999 Lah. 409 ref.

(b) Constitution of Pakistan---

----Arts. 4 & 10A---Rule of law---Principle---Every citizen and every person for the time being in Pakistan enjoys protection of laws of the land---Such laws and the Constitution are like a protective shield guarding life, liberty, reputation, body and property of persons within Pakistan---Any action adverse to rights of a person must, therefore, be through the mechanism or in accordance with laws which protect such persons---To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the person in the first place---Right to fair trial under Art.10-A of the Constitution further buttresses Art.4 of the Constitution---Right to fair trial provides for determination of civil rights and obligations of a person through a fair trial and due process---Dispossession of a person from property without recourse to available law or in accordance with law also offends Art.10A of the Constitution and deprives him of his right to fair trial and due process.

(c) Good governance---

----Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless those are backed by law---In a country governed by laws and not by men, good intentions of the Executive must follow the law.

Rizwan Mushtaq for Petitioner.

Syed Nayyar Abbas Rizvi, Asst. A.-G., Punjab.

Ahmad Zaman Khan for Respondent No.4.

Waseem Mukhtar, Member (Colonies), Board of Revenue, Punjab.

Sheraz Manzoor, Assistant Commissioner, Sialkot.

Date of hearing: 28th November, 2011.

2012 C L C 784

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Mst. RASHEEDAN BIBI----Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.26532 of 2010, decided on 9th December, 2011.

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

----Ss. 17 & 25---Custody of minors---Important factors requiring consideration by court---Scope---Mere entitlement of father as natural guardian of minors would not be sufficient to decide such question---Prime consideration while deciding custody of minors would be their welfare keeping in view character and capacity of their proposed guardian.

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

----Ss. 12, 17 & 25---Custody of minor son and daughter---­Contest between minors' maternal grandmother and their father serving in Pakistan Rangers having second wife---Validity---­While deciding question of custody of minors, prime consideration would be their welfare while keeping in view character and capacity of proposed guardian---Mere entitlement of father as natural guardian of minors would not be sufficient to decide such question---Minors had developed profound attachment with their grandmother as they were born in her house and had been living with her since death of their mother---­Father for serving in Pakistan Rangers had admitted to be visiting house with interval of 1-1/2 months---Minors in absence of father would be at mercy of step-mother, from whom good treatment towards them could not be expected---Lap of maternal grandmother for minors would be better than lap of step mother---Grandmother being of middle age was neither suffering from any ailment nor unable to look after minors properly---Father had filed guardian petition after coming to know about decree passed against him for recovery of maintenance of minors---Father had paid maintenance to minors after a considerable period and that too after issuance of warrants of his arrest in execution of such decree---Evidence on record showed that when one foot of minor son was to be operated, then father refused to pay his medical expenses on ground that there was no need for the same---Such earlier conduct of father would be a relevant factor for deciding question of custody and welfare of minors---Non-payment of maintenance to minors would be one of the factors requiring consideration while deciding question of welfare of minors---Father had not given reasonable justification for non-payment of maintenance to minors for a considerable long period---Non-payment of maintenance without any justification would be considered a valid ground to disentitle father from custody of minor children---Grandmother, if not having source of income, would not become disentitled to have custody of minor grand children as father was bound to maintain them wherever they might be living---Character and capacity of father in circumstances had disentitled him to have custody of minors---Maternal grandmother would be preferred over real father as interest of minors would be well saved in her custody---Father was refused custody of minors, but was allowed to have meeting with minors within court's premises on Ist Saturday of each month subject to furnishing surety bond and payment of Rs.500/- as traveling expenses for each meeting.

Bashir Ahmad v. Mst. Rehana 1978 SCMR 192; Mst. Saddan v. Muhammad Nawaz and another 1991 CLC 1238; Karim Bakhsh v. Muhammad Bakhsh 1997 CLC 316; Muhammad Iqbal v. Additional District Judge, Bhalwal and 2 others 2000 CLC 108; Sharifan Bibi v. Judge, Guardian Court, Daska and 3 others 2005 CLC 529; Mst. Jamila Bibi v. Shabbir Ahmad and 2 others 2006 CLC 207 and Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR 744 ref.

Bashir Ahmad v. Mst. Rehana 1978 SCMR 192; Karim Bakhsh v. Muhammad Bakhsh 1997 CLC 316; Zahoor Ahmad v. Mst. Rukhsana Kausar(?) and 4 others 2000 SCMR 707; Muhammad Iqbal v. Additional District Judge and 2 others 2000 CLC 1264; Muhammad Iqbal v. Additional District Judge, Bhalwal and 2 others 2000 CLC 108 and Mst. Saddan v. Muhammad Nawaz and another 1991 CLC 1238 rel.

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

----Ss. 17 & 25---Custody of minor children---Non-payment of maintenance to minors by father without reasonable justification---Effect---Such non-payment would be a valid ground to disentitle father from custody of minor children---Illustration.

Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR 744 ref.

Muhammad Iqbal v. Additional District Judge, Bhalwal and 2 others 2000 CLC 108 rel.

Mehr Khalid Meraj for Petitioner.

Chaudhry Masood Ahmad Zafar for Respondent No.3.

2012 C L C 805

[Lahore]

Before Ijaz Ahmad, J

ZAFAR ALI and others----Petitioners

versus

REGISTRAR COOPERATIVES PUNJAB, LAHORE and others----Respondents

Writ Petition No.3050 of 2011, decided on 8th December, 2011.

Supreme Court Employees Cooperative Housing Society Election Rules---

----Rr. 2(1)(d), 3, 4 & 5---Supreme Court Employees Cooperative Housing Society Bye-Laws, Cls.4, 6, 7(7), 13(3) & 47(i)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Eligibility to be candidates in the election---Contention of the petitioners was that they were the regular members of the society and being not defaulter towards the dues, were eligible voters; and qualified to be the candidates in the election under R.3 of Supreme Court Employees Cooperative Housing Society Election Rules---Respondents refuted the claim of the petitioners on the ground that they were never the voters and they had never objected to the voters list displayed before every election and that the petitioners did not even submit any objection to the present voters list---Respondents had asserted that petitioners were not entitled to inclusion of their names in the voters list at the stage when only two days were left in the polling process---Validity---Silence of the petitioners in the past over the non-inclusion of their names in the voters list, did not amount to acquiescence and did not furnish a ground to non-suit them---Petition filed after 27 days of publication of schedule, could not be said to be suffering from laches---Petitioners having been admitted to the membership of the society, they had purchased the plots offered to them, they would be deemed to be the members of the society as good as the others---Clause 6 of the Bye-Laws had left no room for further classification among the members or for discrimination between them; or for difference between their rights and liabilities---Right of franchise had to be extended and expanded so that the collective will of all the members which might pave way for good decisions destined to promote the economic interests of its members, particularly for providing them a place to nest in---Respondents were directed to include the names of all the petitioners of the society in the electoral roll, except those who were defaulter towards the dues of the society.

Mst. Halima Rasheed v. Registrar Cooperative Housing Society and 32 others 2010 YLR 2497 rel.

Malik Ghulam Mustafa Kandwal for Petitioners.

Munir Ahmad Paracha for Respondents.

Rashid Hafeez, A.A.-G.

Rana Dilnawaz Ahmad Khan, Asstt. Registrar, Cooperative, Rawalpindi.

2012 C L C 820

[Lahore]

Before Sagheer Ahmad Qadri, Kh. Imtiaz Ahmad and Ch. Muhammad Younis, JJ

Malik MUHAMMAD SAMEEN KHAN----Appellant

versus

RETURNING OFFICER and others----Respondents

Election Appeal No.1 of 2012, decided on 10th January, 2012.

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

----S. 14(3)(c) & (5-A)---Nomination papers, rejection of---Amount of loan availed by appellant from Zarai Taraqiati Bank Ltd. (ZTBL) not correctly mentioned in his statement of assets and liabilities---Effect---Appellant had not been alleged by anyone to have defaulted in payment of any loan including the loan secured from ZTBL---Appellant had provided approximate information about such loan and had not concealed factum of securing the loan---Nominal difference of Rs.45,000/- between information provided by appellant and information received from ZTBL could not be treated as concealment by him or a substantial defect in his nomination papers---Rejection of nomination papers was a penalty provided for commission of an offence or violation of certain provisions of law---Penal provisions could be imposed on a person on committing certain acts or omissions with mens rea, which element was missing in the present case---High Court accepted appeal and set aside impugned order in circumstances.

Umar Ayub Khan v. Returning Officer NA-19 N.-W.F.P. District Haripur/Additional District and Sessions Judge, Haripur and another. 2003 MLD 222 and Haji Khuda Bux Nizamani v. Election Tribunal and others 2003 MLD 607 rel.

(b) Mens rea---

----Penal provisions could be imposed on a person on committing certain acts or omissions with mens rea.

Umar Ayub Khan v. Returning Officer NA-19 N.-W.F.P. District Haripur/Additional District and Sessions Judge, Haripur and another. 2003 MLD 222 and Haji Khuda Bux Nizamani v. Election Tribunal and others 2003 MLD 607 rel.

Syed Intekhab Hussain Shah for Appellant.

Sheikh Zameer Hussain for Respondent No.2.

Sadaqat Ali Khan, Addl. A.-G.

Muhammad Nadeem Khan, Returning Officer, Attock.

Date of hearing: 10th January, 2012.

2012 C L C 828

[Lahore]

Before Ch. Shahid Saeed, J

PRINCIPAL GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL, SHAHDARA TOWN, LAHORE and 3 others----Petitioners

versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another----Respondents

Writ Petition No.22075 of 2011, decided on 25th January, 2012.

Civil Procedure Code (V of 1908)---

----O. XVIII, R.17 & O.XLI, R.27---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery---Power of court to recall/re-summon witness--­-Petitioner's application to re-summon witness two years after the closing of the petitioner's right to cross-examine said witness, was dismissed by Trial Court---Validity---Order XVIII, R.17, C.P.C. was an independent provision of law by virtue of which the court had ample powers to re-summon any witness at any stage of the case before the pronouncement of the final decision---Said proposition may further be elaborated as any party may produce any witness or re-summon any witness at any stage prior to disposal of the case such as at the initial stage when the list of witnesses was provided, at the time when the evidence was recorded or at any time during pendency of the appeal or revision as provided under O.XLI, R.27, C.P.C.---Discretion of the courts to exercise their jurisdiction to provide justice to the parties---Courts below had treated the petitioner's application as a review after closing of the right of cross-examination, which was not justified---Impugned orders of the courts below were set aside with the direction to re-summon the witness of the petitioner as court-witness---Constitutional petition was allowed, accordingly.

Muhammad Azeem Malik, Addl. A.-G. for Petitioners.

M.R. Najmi for Respondent.

2012 C L C 837

[Lahore]

Before Abdul Waheed Khan, J

Mst. ZEENAT BIBI----Petitioner

versus

MUHAMMAD HAYAT and 2 others----Respondents

Writ Petition No.20915 of 2009, decided on 18th January, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance, dowry and compensation for unjustified divorce---Suit of petitioner (wife) was dismissed by Appellate Court after remand from High Court and same was assailed in the constitutional petition---Perusal of record revealed that the respondent (husband) had filed a suit for restitution of conjugal rights which indicated that he had been making efforts for reconciliation and requiring the petitioner to join him---Petitioner had failed to bring on record any material that would indicate that she made any effort for reconciliation in order to join her husband---Petitioner had failed to preform her marital obligations, and in such circumstances, she was not entitled to any maintenance allowance---Claim of petitioner for compensation for the alleged unjustified divorce was not actionable under law---Any condition imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce had been declared to be against the basic principle of law---Constitutional petition was dismissed, in circumstances.

PLD 2011 SC 260 and 2008 SCMR 186 fol.

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

----S. 5 & Sched.---Award of damages on account of alleged unjustified divorce---Any condition imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce was against the basic principle of law and such claim was not actionable before the court.

PLD 2011 SC 260 and 2008 SCMR 186 fol.

Zafar Iqbal Chohan for Petitioner.

Sh. Naveed Shehryar for Respondent No.1.

2012 C L C 844

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD RAMZAN----Petitioner

versus

MUHAMMAD JAHANGIR and another----Respondents

Civil Revision No.1024 of 2009, heard on 13th January, 2012.

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

----O. XVIII, Rr. 8, 14 & O. XLI, R. 23---Evidence of parties recorded by Reader of Court in presence of their counsel under supervision of Judge without his certificate as required under law---Remand of case by Appellate Court for recording evidence of parties afresh---Validity---Such omission on part of Trial Court could not be termed as an illegality in absence of any prejudice caused thereby to any party or inaccuracy of record---Re-recording of evidence at such belated stage would provide them an opportunity to fill up lacunas in the case--- High Court set aside impugned order of remand and directed Appellate Court to decide appeal on merits within specified time.

Bahadur Ali v. Syed Ghulam Sabir Gilani 1990 MLD 588 and Ghulam Mustafa and other v. Abdul Malik PLD 2008 Lah. 4 ref.

Bahadur Ali v. Syed Ghulam Sabir Gilani 1990 MLD 588 rel.

(b) Administration of justice---

----Unnecessary technicalities should not be allowed to deter due process of law on trifling grounds particularly in absence of any prejudice likely to be caused to any litigant---Procedural environment must be made conducive to facilitate flow of stream of justice.

Kashwar Naheed for Petitioner.

Nazir Ahmed Javed for Respondents.

Date of hearing: 13th January, 2012.

2012 C L C 853

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD TAJ----Petitioner

versus

ALI AKHTAR----Respondent

Civil Revision No.41 of 2011, decided on 18th January, 2012.

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

----Ss. 2(d) & 5---Pre-emption suit---Question was whether transaction was "exchange" or "sale"---Evidence of plaintiff was based on hearsay as none of the witnesses were present at the time of the alleged bargain between the previous owner and the defendant---No tangible proof was produced to establish if any consideration was paid by the defendants---Mutations clearly showed that the defendant transferred part of the land from the disputed land situated in the same village---Contention of the plaintiff that the defendant had admitted that the land given by him was at a longer distance from the village and so there was no reason for the change/exchange of the disputed land with the said land did not prove that no exchange had taken place as everyone had his own preference, and kept in mind his own convenience---­Land was given for the land and there was nothing on the record to prove that any money had passed from the defendant---Intention of parties was to be gathered from the contents of the documents and the ostensible transaction should not be disbelieved unless it was established positively that the same was in fact sale within the meanings of S.2(d) of the Punjab Pre-emption Act, 1991 and was wrongly shown as an exchange---Right of pre-emption arise only in case of "sale" of the immovable property as defined under S.2(d) of the Act and exchange was not pre-emptible---Revision was dismissed.

Mujeeb-ur-Rehman Kiani for Petitioner.

2012 C L C 856

[Lahore]

Before Ch. Shahid Saeed, J

SUGRA and another----Petitioners

versus

IMAM KHAN through L.Rs.----Respondent

Civil Revision No.2247 of 2002, heard on 20th October, 2011.

Qanun-e­-Shahadat (10 of 1984)---

----Arts. 100 & 101---West Pakistan Land Revenue Act (XVII of 1967), S.42---Specific Relief Act (I of 1877), S.42---Suit for declaration---Thirty years old document---Relationship between parties---Proof­---Plaintiff relied upon mutation of inheritance in his favour attested on 20-5-1960 but both the courts below relying on Pedigree Table dismissed the suit and appeal filed by plaintiff---Validity---Mutations in question were more than fifty one years old and under Arts.100 & 101 of Qanun-e-Shahadat, 1984, any document having age of more than thirty years was presumed to be true, if it had come from proper custody---Mutations in question were part of revenue record and were never denied by defendants, therefore, execution of mutations in question was beyond any shadow of doubt and admitted by both sides---When it stood proved that mutations in question pertaining to year, 1960, wherein plaintiff had been mentioned as son of predecessor-in-interest of parties were true, then there was nothing to disbelieve otherwise---Defendants relied on a Pedigree Table, though it was much older than mutations in question but its veracity was disputed and doubtful as no one had testified the Pedigree Table---Only a stamp of Central Record Office on the Pedigree Table was present, which was not sufficient when contents of the same were doubtful---Both the Courts below failed to properly appreciate the evidence available on record, especially when they had relied more on Pedigree Table and did not give proper weight to mutations in question attested on 20-5-1960, wherein plaintiff had been mentioned as son of predecessor-in-interest of parties---High Court, in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two courts below and decreed the suit in favour of plaintiff---Revision was allowed in circumstances.

Ch. Mushtaq Ahmed Khan and Ashfaq Qayyum Cheema for Petitioners.

Shahid Mahmood Mehar for Respondent.

Date of hearing: 20th October, 2011.

2012 C L C 867

[Lahore]

Before Syed Mansoor Ali Shah, J

Messrs RIAZ BOTTLERS (PVT.) LIMITEDthrough Tax Manager----Petitioner

versus

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

Writ Petition No.4715 of 2012, heard on 15th March, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Allegations made in constitutional petition and supported by a sworn affidavit of petitioner found by High Court to be incorrect and baseless---Effect---Person filing such petition must first ascertain and verify facts to the best of his ability and then venture to swear an affidavit in support thereof---Petitioner had abused process of High Court for having filed such petition without making any such effort---High Court dismissed the petition with compensatory costs of Rs.35,000/-.

Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Province of Sindh through Secretary, Home Department and others v. Roshan Din and others PLD 2008 SC 132; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others 2007 YLR 1618 and M.D. Tahir, Advocate v. Federal Government and others PLD 1999 Lah. 409 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Filing of affidavit in support of facts stated in constitutional petition---Duty of petitioner stated.

Approaching the court of law and more particularly invoking the constitutional jurisdiction of High Court is a solemn and serious affair. Before filing a writ petition, the petitioner must verify the facts to the best of his ability and then venture to swear an affidavit in this regard.

Ch. Anwaar-ul-Haq for Petitioner.

Ch. Sikandar Khan, Ali Adnan Khan, DCIT, for Respondents.

Date of hearing: 15th March, 2012.

2012 C L C 880

[Lahore]

Before Abdus Sattar Asghar and Amin-ud-Din Khan, JJ

PRINCIPAL, SADIQ PUBLIC SCHOOL,BAHAWALPUR----Appellant

versus

DIRECTOR (M&I), EMPLOYEES OLD-AGE BENEFITS INSTITUTION, MULTAN and 3 others----Respondents

Intra-Court Appeal No. 93 of 2010/BWP in Writ Petition No.3499 of 2000/BWP, heard on 12th December, 2011.

(a) Words and phrases---

----Word "Establishment", defined and explained.

Black's Law Dictionary (Sixth Edition) ref.

(b) Words and phrases---

----"Organization", defined and explained.

Black's Law Dictionary (Sixth Edition) ref.

(c) Employees Old-Age Benefits Act (XIV of 1976)---

----Ss. 2(e), 11, 33, 34 & 35---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Employees Old-Age Benefits Act, 1976---Nature and applicability of---Scope---Appellant, a school, had impugned the order passed by Single Judge of High Court under its constitutional jurisdiction, wherein the constitutional petition of school was disposed of with the direction to the appellant/petitioner that he should avail alternate remedy under Ss.33, 34, 35, Employees Old-Age Benefits Act, 1976---Contention of counsel for the appellant was that school in question did not fall within the purview of terms "establishment" or 'organization' and authorities had no lawful authority to register the appellant school under S.11(3) of Employees Old-Age Benefits Act, 1976, and that impugned certificate of registration and subsequent letter pertaining to assessment of Employees Old-Age Benefits contribution, were against the law and facts, without lawful authority and liable to be set aside---Validity---Employees Old-Age Benefits Act, 1976, was a beneficial legislation, aimed to give benefit to employees in their old-age---Contention of counsel for the appellant, was devoid of force for the simple reason that clubs, hostels and messes included in the definition of the "Establishment" given in the Employees Old-Age Benefits Act, 1976, did not work for profit or gain---Keeping in view the beneficial and remedial spirit of legislation, appellant school, could not be excluded from the purview of "establishments" or "organizations"---Scheme of legislation in the Employees Old-Age Benefits Act, 1976, did not make the benefits under said Act dependant to availability or non-availability of benefits of the like nature to the employees of an 'establishment' or 'organization' falling within the purview of the Act---By providing some other benefits to its teachers and employees, appellant school, could not be absolved of the liability to pay the contribution under the Act as appellant school fell within the mischief of Employees Old-Age Benefits Act, 1976---In case of any question or dispute in that regard, appellant school had got efficacious remedy under Ss.33, 34, 35 of the Act---Appellant, in circumstances, could not invoke the constitutional jurisdiction of High Court---Constitutional petition filed by the petitioner, was not maintainable, in circumstances---Intra-court appeal was dismissed.

Black's Law Dictionary (Sixth Edition) rel.

Shabbir Ahmed Bhutta for Appellant.

Muhammad Bilal Bhatti and Mumtaz Hussain Bazmi for Respondent.

Date of hearing: 12th December, 2011.

2012 C L C 888

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ASAD MALIK----Petitioner

versus

RENT CONTROLLER, BAHAWALPUR and others----Respondents

Writ Petition No.4847 of 2011/BWP, decided on 12th October, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 9(b)---Constitution of Pakistan Art.199---Constitutional petition---Non­-deposit of fine for non-compliance---Effect---Section 9(b) of the Punjab Rented Premises Act, 2009 was directory in nature, and it was the fundamental duty of the court to first determine the amount and give the landlord the chance to deposit the same within a specified period---Rent Tribunal had not ordered the landlord to deposit the said fine under S.9(b) of the Punjab Rented Premises Act, 2009---Deposit of fine was a matter between the landlord seeking ejectment, and the State; as such the tenant could not take benefit of such non-compliance under the Constitutional jurisdiction of High Court---Constitutional petition was dismissed.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 22---Constitution of Pakistan Art, 199---Constitutional jurisdiction---Scope----Ejectment petition---Leave to contest, application for---Tenant (petitioner) assailed order of Rent Controller whereby tenant's application for grant of leave to contest ejectment petition was dismissed and ejectment petition of landlord was allowed---Contention of tenant was that there was relationship of landlord and tenant between the parties as the property, after litigation, was attached by Executing Court and tenant had acquired the same after auction proceedings---Validity---Tenant's stance in application for leave to contest was not an honest stance---Admitted position was that at the time of filing of the ejectment petition, the .landlords (respondents) were owners of the property and tenant (petitioner) was in possession of the same as a tenant---Fundamental rule was that once a tenant, always a tenant---Tenant, put in possession of the property, could not afterwards deny the relationship of landlord and tenant---Legal position previous to the filing of the ejectment petition by the landlord was that the property was attached in execution of a decree and was put to auction, which was quashed---Landlords were and remained owners and landlords of the property---Tenant tried to remain in possession of the property for a long period without payment of rent under the umbrella of litigation between the landlords and other parties---First and foremost principle for the High Court to exercise jurisdiction under Article 199 of the Constitution in favour of any party was that the party seeking indulgence of the High Court, must come to the High Court with clean hands---Tenant had not come to the High Court with clean hands and failed to show any jurisdictional defect in the order of the courts below --­Constitutional petition was dismissed.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---First and foremost principle for the High Court to exercise jurisdiction under Art.199 of the Constitution in favour of any party was that the party seeking indulgence of the High Court, must come to the High Court with clean hands.

Ch. Manzoor Ahmad for Petitioner.

Muhammad Akhtar Qureshi for Respondents Nos.3 and 4.

2012 C L C 895

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Sh. SALEEM-UD-DIN and others----Petitioners

versus

FEROZE DIN and others----Respondents

Writ Petition No.16282 of 2011, heard on 10th October, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Application seeking leave to contest ejectment petition---Limitation---Tenant entered into proceedings by filing application for file inspection along with 'Wakalatnama' of his counsel about 22 days prior to the date case was fixed for appearance of tenant---Landlord had contended that limitation of 10 days for filing application for leave to contest ejectment petition, would commence from the date when he filed the application for file inspection---Validity---Law governing the matter did not acknowledge any step taken by a party to join the proceedings prior to the date fixed in the notice---Such intention of law was evident from the plain reading of S.22(2) of Punjab Rented Premises Act, 2009---In the present case tenant though had joined the proceedings with the Rent Tribunal by filing an application seeking permission to inspect the case-file, but, since the law did not provide specifically that the limitation of 10 days would start from the date of joining the proceedings, contention of counsel for the landlord, was untenable---Application and Wakalatnama filed by the tenant prior to the date fixed in the case, could not be taken into consideration for fixing the time for filing the application under S.22 of Punjab Rented Premises Act, 2009.

(b) Words and phrases---

----"Appearance", defined and explained.

(c) Administration of justice---

----When an act was to be performed as provided by the law, then it should be performed in such a manner.

(d) Interpretation of statutes---

----Law should be liberally and beneficially construed where two interpretations were possible.

Kh. Saeed-uz-Zafar for Petitioners.

Naseem Ahmad Khan for Respondent.

Date of hearing: 10th October, 2011.

2012 C L C 903

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD HASSAN----Petitioner

versus

Mst. ULFAT and others----Respondents

Civil Revision No.871-D of 1996, heard on 14th December, 2011.

Limitation Act (IX of 1908)---

----Ss. 5 & 12(5)---High Court Practice and Procedure Rules, R.7(xxii)---Civil Procedure Code (V of 1908), Ss.96 & 115---Appeal against judgment and decree passed by the Trial Court---Limitation---Condonation of delay---Suit filed by the petitioner dismissed on 14-11-1995 and petitioner applied for certified copies of the judgment and decree of the Trial Court on the very next day i.e. on 15-11-1995---Petitioner was asked by Copying Agency to collect the copy on 21-11-1995, and on the said date when the petitioner came to collect the copy, he was informed that copies had not been prepared---Petitioner kept on visiting the Copying Branch for the collection of the copies, which were handed over to him on 7-1-1996 and appellant filed appeal two days after the obtaining of copies on 9-11-1996---Appeal filed by the appellant along with application of condonation of delay, had been dismissed by the Appellate Court below---Validity---Actual date intimated to the appellant to collect the copies was 21-11-1995 and on that date when appellant visited Copying Agency, he was informed that copies were not prepared and no specific extended date was given for the collection of the copies; and there was vague statement of the official that he asked the appellant to come after three days which had clearly shown that no actual date was communicated after 21-11-1995 to the appellant for collection of the copy---Appellate Court, in circumstances, had committed illegality by dismissing appeal for condonation of delay and dismissed the appeal as time-barred---Impugned judgment of the Appellate Court below was set aside and presumption would be that the appeal was still pending---Since appeal was not disposed of on merits, revisional court could not assume the role of Appellate Court---Matter was remanded to the Appellate Court for deciding the appeal on merits.

Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Lands and others 2005 SCMR 973 ref.

Kanwar Intizar Muhammad Khan for Petitioner.

Muhammad Aurangzeb for Respondent.

Date of hearing: 14th December, 2011.

2012 C L C 918

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD RAFIQUE through Legal Heirs and others----Petitioners

versus

ZAFAR IQBAL and others----Respondents

Civil Revision No.723 of 2005, decided on 13th October, 2011.

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

----S.11, O.I, Rr.3, 8 & O.VII, R.11---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declatation and possession in representative capacity---Plaintiff claimed to be owner of shamilat deh on basis of statements made by four co-sharers surrendering entire suit-land in favour of plaintiff---Defendants' plea that plaint in earlier suit for adverse possession filed by plaintiff was rejected, thus, present suit was hit by principle of res judicata; and such four co-sharers were authorized to surrender entire shamilat deh in favour of plaintiff on behalf of other co-sharers therein---Validity---Statement of such four co-sharers would be binding on them to the extent of their unpartitioned share in shamilat deh, for which they were not required to get permission from other co-sharers including the defendants---Such unpartitioned share of said four co-sharers became ownership of plaintiff---Plaint in earlier suit for adverse possession had been rejected after Shariat Court declared the right of adverse possession as repugnant to Injunctions of Islam---Plaintiff had rightly filed the present suit after his right of adverse possession came to an end by operation of law---Plea of defendants was overruled, in circumstances.

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

----O. VI, R.17---Amendment in plaint---Scope---Order of Trial Court disallowing amendment in plaint on ground that suit was at final stage---Validity---Amendment in plaint could be allowed even at final appellate stage i.e. Supreme Court---Finding of Trial Court being against law, High Court set aside impugned order in circumstances.

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

----O. I, Rr. 3 & 8---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declaration and possession in representative capacity---Ownership of shamilat deh in village "K" claimed by plaintiff on basis of statements of four co-sharers therein---Defendants' objections that disputed shamilat deh initially being part of village "K" was later on made part of village "S", whereas plaintiff had not impleaded owners of shamilat deh of village "S"---Validity---Record showed that at the time of making such statements, only village "K" was in existence and village "S" was its part---Village "S" had been separated from village "K" at the time of institution of suit by plaintiff---Plaintiff at time of filing suit had knowledge that village "S" was a different village and was not part of village "K"---Plaintiff, if wanted to extend his claim to land of village "S", was bound to implead its owners in suit---Objection of defendants was upheld, in circumstances.

Abdul Hameed vice-counsel of Rana Muhammad Sarwar for Petitioners.

Naveed Shaheryar Sheikh for Respondents.

Date of hearing: 27th September, 2011.

2012 C L C 945

[Lahore]

Before Mehmood Maqbool Bajwa, J

Syed SAQLAIN ABBAS----Appellant

versus

Syed HAYAT SHAH----Respondent

F.A.O. No.35 of 2010, heard on 29th September, 2011.

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

----Ss. 5 & 14---Appeal---Scope and application of Ss.5 & 14, Limitation Act, 1908---Time spent in approaching wrong forum, condonation of---Scope---Provision of S.14 of Limitation Act, 1908 would not apply to an appeal---Provisions of S.14 read with S.5 of Limitation Act, 1908 would come in support of a party if conditions mentioned in S. 14 thereof existed---­Principles.

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

----Ss. 3, 5 & 14---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Appeal to High Court from an interim order of civil court after dismissal of appeal filed before District Judge for not being pressed by appellant for want of pecuniary jurisdiction---Application for condonation of time spent in court of District Judge---Appellant's plea that he handed over case to his counsel for filing appeal in proper forum, but he filed appeal in court of District Judge instead of High Court, thus time was not intentionally spent before District Judge---Validity---Provision of S.14 of Limitation Act, 1908 would not apply to an appeal---Application did not disclose circumstances which compelled appellant's counsel not named therein to file appeal before District Judge despite clear provision of S.18 of West Pakistan Civil Courts Ordinance, 1962---Appellant's counsel being a legal expert not only must have knowledge about pecuniary jurisdiction of forum of appeal, but could have known about law relating thereto by exercising due care and attention---Counsel while filing appeal before District Judge had acted negligently, and not in good faith and with due diligence---Application for condonation was not supported by an affidavit of counsel, who filed appeal before District Judge---Cause shown in the application was not sufficient for condoning such delay---High Court dismissed appeal for being barred by time.

Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94; Furqan Habib and others v. Government of Pakistan and others 2006 SCMR 460; Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 and Muhammad Azhar Khan and another v. Assistant Commissioner/Collector, Toba Tek Singh and others 2006 SCMR 778 ref.

Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94; Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144 and Furqan Habib and others v. Government of Pakistan and others 2006 SCMR 460 rel.

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

----S. 14 --- Phrase "due diligence" as used in S.14 of Limitation Act, 1908---Connotation.

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

----O. XLIII, R. 3---Appeal against an interim order---Non-service of notice of appeal on respondent prior to its filing---Appearance of respondent's counsel in response to court's notice---Effect---Objection regarding non-service of such notice became immaterial.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 and Salahud Din v. Syed Mansoor Ali Shah and others 1997 SCMR 414 rel.

Liaqat Ali Malik for Appellant.

Syed Faiz-ul-Hassan for Respondent.

Date of hearing: 29th September, 2011.

2012 C L C 977

[Lahore]

Before Mehmood Maqbool Bajwa, J

Rana MUHAMMAD ABAD KHAN----Petitioner

versus

Mst. TALAT ZAHID and 2 others----Respondents

Civil Revision No.732 of 2011, decided on 30th November, 2011.

Civil Procedure Code (V of 1908)---

----O. II, R. 2 & O. VI, R. 17---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Amendment of pleadings---Alienation of a portion of suit land by vendor in favour of subsequent vendee---Plaintiff's application for amendment of plaint to challenge sale in favour of subsequent vendee for being illegal, without consideration and inoperative against rights of plaintiff---Dismissal of such application by Trial Court---­Validity---Subsequent vendee had been made party in suit---­Plaintiff could not be granted relief of specific of performance in suit without questioning genuineness of sale in favour of subsequent vendee---Proposed amendment sought against subsequent vendee would not change nature and complexion of suit, rather same was essential for determining real controversy between the parties---In case of refusing proposed amendment, plaintiff would be debarred by virtue of O. II, R. 2, CPC to question later on legality of sale in favour of subsequent vendee---Delay itself would not be sufficient to decline proposed amendment---Trial Court while passing order had failed to exercise jurisdiction vested in it---High Court set aside impugned order and accepted such application in circumstances.

Mst. Imam Hussain v. Sher Ali Shah and others 1994 SCMR 2293; Mst. Suraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Mst. Ghulam Nabi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

Imran Ahmad Malik for Petitioner.

Mushtaq Mehdi Akhtar for Respondents.

2012 C L C 994

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD AZAM BUTT and 4 others----Petitioners

versus

Mst. SHAMA MALIK and another----Respondents

Civil Revision No.1235 of 2008, decided on 6th August, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Amenity plot---Proof---Concurrent findings of fact by courts below---Plaintiffs claimed to be owners of plots in question and assailed order passed by defendants, wherein the plots were claimed to be amenity plots and defendants intended to dispossess the plaintiffs---Judgment and decree passed in favour of plaintiffs by Trial Court was maintained by Lower Appellate Court---Validity---Defendants did not succeed in establishing the fact that either a scheme had been duly approved by authorities or plots were reserved for the purpose of open space or amenity plots---Defendants did not produce much evidence to discharge onus of proof placed on them---Authorities had never sanctioned any scheme for development of alleged open space nor was any lawful order, site plan or notification made or issued in such regard---Plots in question belonged to plaintiffs who were bona fide purchasers / owners of the same and those did not fall within the definition of amenity plots---Findings recorded by two courts below were legal, valid and supported by record and no illegality or irregularity on the part of Trial Court or Lower Appellate Court had been pointed out by defendants---Both the courts below did not misread or ignore any evidence---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Nemo for Petitioners.

Malik Muhammad Nadeem for Respondents.

2012 C L C 1015

[Lahore]

Before Muhammad Ameer Bhatti, J

SAEED AHMAD----Petitioner

versus

NIAZ AHMAD and 3 others----Respondents

Civil Revisions Nos.1880 and 1832 of 2011, heard on 20th September, 2011.

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

----Ss. 9, 42 & 54---Arbitration Act (X of 1940), Ss.8, 21 & 23---Suit for possession, declaration and permanent injunction---Appointment of referee---Rival parties had filed suits against each other---Plaintiffs had filed a suit for possession against the defendant; and during pendency of said suit, the defendant had filed a suit for declaration and permanent injunction---Both rival suits were consolidated---On the appeal of the defendant, two persons were nominated for appointment as referees; and the Trial Court appointed a referee, who submitted his report in compliance of the order of the Trial Court---Trial Court, on the basis of said report, decreed the suit of plaintiffs and dismissed the suit of the defendant---Said judgment and decree was effected and Appellate Court, having dismissed the appeal, the defendant had assailed the said order---Grounds taken in the revision petition by the defendant could not be considered as the referee had been appointed with the consent of the parties; and High Court not only had approved the appointment of said referee, but had also issued the direction to decide the fate of the suit on the basis of the statement of the referee---Question arising during pendency of the suit which stood decided and settled under order of a Revisional Court, could not be allowed to be reagitated in appeal filed against the decree---Courts below had rightly passed the judgment and decree in accordance with the report of referee available on record---Revision, was dismissed, in circumstances.

Baqa Muhammad v. Muhammad Nawaz and others PLD 1985 Lah. 476 and Shamshad Khan and others v. Arif Ashraf Khan and 2 others 2008 SCMR 269 rel.

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

----Ss. 8, 21, 22 & 23---"Arbitrator" and "Referee"---Distinction---Referee was the one who would make statement according to his own knowledge, but the arbitrator, after obtaining the material and recording the statement of the parties, would draw his conclusion and on the basis of that material, he got his statement recorded; and he was also liable to cross-examination.

PLD 1988 Lah. 250 and PLD 1977 Lah. 672 rel.

Nemo for Petitioner.

Moiz Tariq for Respondents.

2012 C L C 1023

[Lahore]

Before Ijaz-ul-Ahsan, J

MUHAMMAD ASLAM----Petitioner

versus

SANA ULLAH through Legal Heirs----Respondent

Civil Revision No.2161 of 2001, decided on 8th December, 2010.

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

----Ss. 42 & 54---Limitation Act (IX of 1908), Art.120---Suit for declaration and injunction---Limitation, computation of---Plaintiff was allotted 4 Kanals of land, in year 1957, after consolidation proceedings but somehow 3 Kanals of land was entered into Register Haqdaran Zamin maintained by Revenue Authorities---Disputed entry in Revenue Record was assailed by plaintiff in year, 1995---Trial Court dismissed the suit being barred by time but Lower Appellate Court decreed the same---Validity---Record or evidence of parties did not make it clear that plaintiffs were aware of wrong entries in Revenue Records before the year, 1995---Document relied upon by defendant was neither exhibited nor the question of plaintiffs having signed that document in year, 1978 was decided on the touchstone of cross-examination, therefore, it could not be said with certainty whether or not the predecessor-in-interest of plaintiffs actually signed the document---Sufficient material was available on record to indicate that plaintiffs had all along been in possession of four Kanals of land and continued to be in possession of the same, which fact was not denied by defendant---Lower Appellate Court was justified in holding that suit filed by plaintiffs was not barred by time---Lower Appellate Court did not act illegally or with material irregularity--- Neither misreading nor non-reading of evidence was on record and Lower Appellate Court had properly appreciated evidence in its true perspective and applied correct principles of law on the subject---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Rehman v. Yara through L.Rs. and others 2004 SCMR 1502 rel.

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

----Ss. 42 & 45---Disputed entries in Revenue Record---Cause of action, accrual of---Such entry is neither a document of title nor a presumptive evidence of title---Any person may not feel aggrieved of any entry in Revenue Record and cause of action in such case would not accrue without there being in field an order, original, appellate or revisional---Cause of action accrue when a person concerned feels himself aggrieved of the situation when he would feel necessary to approach a court of law for relief which he considers fit and proper in accordance with law to better safeguard his interest.

Hamid Ali Mirza for Petitioner.

Irfan Ahmad Ch. for Respondent.

2012 C L C 1034

[Lahore]

Before Muhammad Qasim Khan, J

ATIA KANWAL----Petitioner

versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor and 11 others----Respondents

Writ Petition No.6009 of 2010/BWP, decided on 21st April, 2011.

(a) University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

----Ss. 35 & 36---Prospectus of University of Health Sciences, Lahore Rules and Regulations For Various Categories of Seats, Cls. (d) & (g)---Constitution of Pakistan, Art.199---Constitutional petition---Admission to medical college---Reserved seats for disabled persons---Disability, percentage of---Grievance of petitioner (candidate) was that despite producing disability certificate issued by Chairman, Assessment Board for Disabled Person, the University (respondent) refused her admission on the ground that she did not fulfil the criteria of 20% disability, when minimum percentage fixed by the University for the eligibility of admission against seats reserved for disabled candidates was neither mentioned in the advertisement or admission form nor in the Prospectus---Validity---Objection of petitioner was not tenable, as according to clause (d) of Rules and Regulations for Various Categories of Seats, the Medical Board constituted by the Chairman Admission Board was final authority to make the final decision about suitability of the candidate for admission against reserved seats and according to clause (g) of the said Rules and Regulations, the Medical Board constituted under the Regulations was to fix the minimum disability for the purpose of admission in medical college by considering as to what level of disability would deprive a candidate to compete with the other normal colleagues in carrying out day to day work and impediments faced by disabled persons in getting their professional education---Such power had been rightly exercised by the experts and the threshold of disability had been properly judged by the Medical Board, according to the structures criteria made by the Experts---Record showed that even candidates with 19% disability were not considered for admission, as compared to the petitioner who only caried 15% of disability---Petitioner had not challenged her percentage of disability declared by the Medical Board and neither it was contended in the constitutional petition nor argued before the Court that members of the Board were inimical towards the petitioner, or that same had been refused admission on account of some mala fide or ulterior motives---University authorities having neither committed any illegality, irregularity nor having violated any of the terms and conditions set down in the Prospectus, constitutional petition was dismissed accordingly.

(b) University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

----Ss. 35 & 36---Prospectus of University of Health Sciences, Lahore Rules and Regulations For Various Categories of Seats, Cls.(b), (c), (d) & (j)---Constitution of Pakistan, Art.199---Constitutional petition---Educational institution---Admission to medical college---Reserved seats for disabled persons---Competency of Medical Board to determine disability---Principle of estoppel---Grievance of petitioner (candidate) was that she was declared disabled by Chairman, Assessment Board for Disabled Person by issuing her a disability certificate, which document had to be considered by the University (respondent) as conclusive proof of disability---Validity---Petitioner had applied for admission against the reserved seats for disabled persons, being fully acquainted with the conditions/regulations mentioned in the Prospectus---Petitioner's contention that against disabled seats only a certificate issued by District Assessment Board for Disabled Persons was relevant, had no force at all, for the reason that according to the Prospectus, the certificate of District Assessment Board for Disabled Persons was only for the purpose of eligibility for applying against such quota, and final decision regarding disability was to be determined by the Medical Board constituted by the Chairman Admission Board---Petitioner herself applied for admission in the presence of such condition set down in the Prospectus, therefore, principle of "estoppel" would apply to her case and she could not raise any objection now---University authorities having neither committed any illegality, irregularity nor having violated any of the terms and conditions set down in the Prospectus, constitutional petition was dismissed accordingly.

(c) University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

---Ss. 35 & 36---Constitution of Pakistan, Art.199---Constitutional petition---Rules and Regulations---Educational institution---Admission to medical college---Reserved seats for disabled persons---Candidate from different District---Clerical error in merit list---Grievance of petitioner (candidate) was that one of the candidates (respondent) whose name appeared in the merit list belonged to a different district and for such reason was disentitled for admission, but he had still been accommodated---University and respondent candidate had clarified that it was just a clerical error, which error had been subsequently rectified by the University---Constitutional petition was dismissed accordingly.

Mukhtar Ahmad Malik for Petitioner.

Abdul Manan for Respondent No.6.

2012 C L C 1067

[Lahore]

Before Umar Ata Bandial, J

TAYYAB AHMAD KHAN and others----Petitioners.

versus

SECRETARY COOPERATIVES and others----Respondents

Writ Petition No.1650 of 2012, decided on 10th February, 2012.

Cooperative Societies Act (VII of 1925)---

----Ss. 16 & 44-D---Constitution of Pakistan, Art.199---Constitutional petition---Bye-laws of Co-operative Society, amendment of---Approval by Registrar---Petitioners assailed order passed by the Provincial Government upholding order under section 44-D of Cooperative Societies Act, 1925, passed by Registrar Cooperative Societies---Validity---Only basis on which amendment resolution by Annual General Meeting of Society could be opposed at the time of consideration under section 16 of Cooperative Societies Act, 1925, was either factual or legal criteria valid on the touchstone of fairness and relevance in relation to cooperative movement and like principles---If case of petitioners would succeed on such criteria there was no ground for the Registrar Cooperative Societies to deny approval pretending that consent given under the order (dated 21-11-2005), was not review able---Both the Registrar Cooperative Societies and Provincial Government were right in holding that exemption from bye-law in question which had imposed embargo on third term of office-bearers of the Society could not be granted---Authorities were wrong in denying Managing Committee of the Society from proposing to its members in General Meeting for amendment of bye-law in question---Request by petitioners that they be allowed interim relief to contest for third term in Annual General Meeting scheduled for 26-2-2012, presumed that a resolution passed by members in general meeting revoking byelaw in question had been approved by the Registrar---High Court declined to make such presumption unless the event so occurred and directed the Registrar to allow the Society to call a special general meeting to consider a proposal by Managing Committee to delete byelaw in question from the Constitution of the Society---Petition was allowed accordingly.

Abid Aziz Sheikh for Petitioner.

Zaka-ur-Rehman Awan, Addl. A.-G. for Respondent.

Iftikhar Ahmad Mian for Respondent No.4.

Javaid Iqbal Bhatti for Applicant (in C.M. No.343 of 2012).

2012 C L C 1071

[Lahore]

Before Ch. Shahid Saeed and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ZUBAIR and 5 others----Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary Health, Islamabad and 22 others----Respondents

Writ Petitions Nos.22713, 23187, 22099, 21305 C.Ms. Nos.3734, 3735, 3788, 3790, 3884, 3885, 3891, 3907, 3914, 3932 to 3941, 3943, 3957, 3966 and 3971 of 2011, decided on 15th November, 2011.

(a) Constitution of Pakistan---

----Art. 25---"Equal protection of law"---Scope---Equality is always amongst the equals and it should be between persons who are placed in same set of circumstances---Conception of 'equality before law' does not involve idea of absolute equality among human beings which is physically impossible---Equal protection of law envisaged in Art. 25 of the Constitution means that no person or class of persons would be denied same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their live, liberty, property or pursuit of happiness---Persons similarly situated or in similar circumstances are to be treated in same manner---Principle of equality does not apply mathematically.

Pakistan Petroleum Workers Union through its General Secretary v. Ministry of Interior through its Secretary, Islamabad and another 1991 CLC 13 and Mubarak Ali Khan and 7 others v. Government of the Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and another 1990 CLC 136 rel.

(b) Educational institution---

----Admission in medical college---Vested right---Student who passes F.Sc. (pre-medical) has no vested right to get admission in M.B.B.S.---Such student has to get through conditions or merit, whatsoever, set by that institution or controlling authority.

(c) Educational institution---

----Admission in medical college---Merit---Object, scope and purpose---Merit, conditions or policy, whatever it be named, is necessary and inevitable and cannot be termed against law or as a process of depriving those who remain unsuccessful therein---Strict application of merit for eligibility always improves quality and standard, which is essential and should continue in all spheres of life in its true spirit.

(d) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S.33 (2)---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Equality before law---Scope---Admission in medical college---Entry test---Merit list, preparation of---Principle of estoppel---Applicability---Petitioners appeared in entry test for admission in medical college but remained unsuccessful---Petitioners were aggrieved of 50% weightage given to marks in entry test for admission to medical college---Validity---Pakistan Medical and Dental Council was fully competent to make rules and regulations including weightage criteria for admission in medical colleges/universities for keeping uniformity among all medical institutions throughout Pakistan---Petitioners, in the present case, appeared in Entry test without raising any objection on weightage criteria or merit and when they could not perform well in entry test, they had come to High Court, so the principle of estoppel was fully applicable upon them---Equality was only possible amongst persons who were placed in same set of circumstances---High Court directed Pakistan Medical and Dental Council to convene a meeting of all stake holders and reconsider weightage criteria for admissions in future as marks percentage given to entry test was on much higher side---Petition was dismissed accordingly.

Aqib Rasheed and 3 others v. Government of Punjab through Secretary Health and 4 others PLD 2011 Lah. 1; Pakistan Petroleum Workers Union through its General Secretary v. Ministry of Interior through its Secretary, Islamabad and another 1991 CLC 13; Mubarak Ali Khan and 7 others v. Government of the Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and another 1990 CLC 136; Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; K.F. Shaifta v. Setllement and Rehabilitation Commissioner Lahore and another 1974 SCMR 465 and Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 ref.

Muhammad Azhar Siddique, S. Shamil Paracha, Ch. Yaseen and Muhammad Irfan, for Petitioners.

Zia Ullah Khan and Ch. Waqar Ahmed Hanjra for Petitioners (in Writ Petition No.21305 of 2011).

Ch. Anwar ul Haq Pannun, Ch. Sohail Arif Sandhu, Shakeel Ahmad Pasha and Mian Khurshid Ali Zafar for Petitioners (in Writ Petition No.22099 of 2011).

Abdul Sadiq Chaudhry for Petitioners (in Writ Petition No.23187 of 2011).

Amir Ranjha for Applicants (in C.M. No.3971 of 2011).

Mian Belal Ahmed, Basharat Ali and Ahmed Tariq for Respondents Nos.24 to 34 and for Applicants in (C.Ms. Nos.3891 of 2011 and 3966 for 2011

Barrister Ch. Muhammad Umar, Mufti Ahtasham-ud-Din Haider and Ch. Muhammad Atiq for Respondent (P.M.D.C.).

Rasaal Hasan Syed, Usman Dawood and Imran Muhammad Sarwar for Respondent (University of Health Sciences (UHS)).

Dr. Asad Zaheer, Acting Registrar, Mr. Muhammad Atif Director Media Publications for Respondent and Zahid Mahmood, Planning Officer, P&D Department, UHS.

Ch. Muhammad Shabbir Gujjar, A.A.-G., Muhammad Aslam, Section Officer (ME), Health Department Punjab for the State.

2012 C L C 1138

[Lahore]

Before Ijaz Ahmed Chaudhry, C.J.

MUHAMMAD AZAM MALIK----Petitioner

versus

PAKISTAN ELECTION COMMISSION EMPLOYEES' COOPERATIVE HOUSING SOCIETY, LIMITED, LAHORE through Secretary and 3 others----Respondents

Writ Petition No.12370 of 2011, decided on 26th October, 2011.

Cooperative Societies Act (VII of 1925)---

----S. 43---Constitution of Pakistan, Art.199---Constitutional Petition---Laches---Inquiry that was conducted within the purview of the Cooperative Societies Act, 1925 concluded that petitioner had availed a loan from the Society and failed to pay back the same and on basis of such inquiry, the Society was directed to recover the amount from the petitioner---Appeal of petitioner against order for recovery was dismissed---Contention of the petitioner was that he was neither associated with the inquiry proceedings nor was given an opportunity to defend himself; and no documentary proof was available on record to show that petitioner had borrowed the said amount from the funds of the Society---­Validity----Inquiry report and order for recovery were based on record of the Society as well as statements of ex-members---Petitioner being member of Managing Committee at the relevant time, was responsible to make good for any loss---Petitioner had not denied that he never availed said finance, but his stance was that no agreement in that respect was on record---Books of accounts of the Society were valid pieces of evidence and their entries had been rightly relied upon by the Society---Order dismissing petitioner's appeal was passed on 2-8-2010 while the constitutional petition was filed on 27-4-2011, thus petition being beyond the period of six months was hit by the principle of laches---Law favours the vigilant and not the indolent---Petitioner failed to point out any illegality justifying interference of High Court in the exercise of its jurisdiction under Art.199 of the Constitution---Constitutional petition was dismissed, in circumstances.

2012 C L C 1141

[Lahore]

Before Muhammad Ameer Bhatti and Muhammad Khalid Mehmood Khan, JJ

MUHAMMAD YASIN----Appellant

versus

Sheikh MUHAMMAD PERVAIZ----Respondent

Regular First Appeal No.126 of 2008, heard on 29th February, 2012.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of pro note---Application for leave to defend suit---Suit decreed after dismissal of such application---Defendant's plea was that he was not served in terms of provisions of R. 2 of O.XXXVII, C.P.C.; and that his counsel appeared on 19-12-2007, but court did not warn him that same was the last day for filing leave application, rather adjourned proceedings to 10-1-2008 for filing power of attorney and written statement---Validity---Record showed that neither defendant was served with summons in Form IV, Appendix-B nor was copy of plaint attached thereto---­Underlying purpose of issuance of summons in Form IV accompanying plaint and reflecting principal amount due, interest thereon and cost upon defaulting party would be to intimate defendant of his rights in law in suit under special provisions of law---Delay or default in filing of leave application within prescribed period could not be attributed to a defendant, unless he was informed in required statutory mode and manner---Trial Court on 19-12-2007 had not handed over copy of plaint to defendant for filing of leave application, rather had adjourned proceeding for 10-1-2008 for filing written statement---Filing of leave application on 10-1-2008 could not be said to be time-barred due to negligence on his part, rather he had been victim of such act of Trial Court---Requirements of law had not been fulfilled while serving summons upon defendant---Defendant alone could not be made to undergo penal consequences in face of contributory negligence on part of Trial Court---Impugned decree was nullity in the eye of law---Trial Court had not exercised its jurisdiction in accordance with law---High Court set aside impugned decree and directed Trial Court to decide leave application on merits in accordance with law.

(b) Act of Court---

----Act or omission of court---No person should suffer for an act or omission of court---Act of court should not prejudice anyone.

Mian Muhammad Talah Adil v. Mian Muhammad Lutfi 2005 SCMR 720 rel.

Mian Shah Abbas for Appellant.

Muhammad Akram Khawaja for Respondent

2012 C L C 1145

[Lahore]

Before Rauf Ahmad Sheikh and Nasir Saeed Sheikh, JJ

ANJUMAN-I-MUTASREEN KHSHATKARAN RAVI RIVER through General Secretary Anjuman----Appellant

versus

PROVINCE OF PUNJAB through Secretary Irrigation and Power Department, Lahore through Director-General and another----Respondents

Regular First Appeal No.180 of 2003, heard on 8th December, 2011.

(a) Suit for damages---

----Construction of embankments, sewage water and soil erosion causing damage to land, houses, trees and crops---Allegation of construction of embankments to save a politician's land---Suit for damages filed by appellants had been dismissed by the Trial Court---Grievance of appellants was that embankments constructed on river had diverted the river course and due to the flood in the year 1976, these embankments were washed away, causing heavy flooding and damage, and that due to diversion and speedy flow caused by inclusion of sewage water of authorities and other canals, their lands had eroded and were covered by river water---Appellants produced Patwaris of the concerned areas as their witnesses, who produced statements (Naqsha Chant) of the lands, which were underneath water due to erosion--Authorities contended that embankments were constructed in good faith and no loss had been caused to the appellants and produced copies of judicial record to show that suits filed by some of the appellants, related to the present matter had been dismissed---Effect---Flood in the year 1976 was one of the biggest floods of the Indo-Pak Sub-continent and it could not be controlled---Provincial Government or Development Authority could not be held responsible for the flood as it was beyond human power to control tides and heavy floods---Said flood spread towards both the sides of the river by running over the embankments, so the appellants could not claim that they were made to suffer so that village of a politician could be saved---Floods and erosions had caused loss to the inhabitants of the area on both banks of the river and was not confined to the appellants---Statements (Naqsha Chant) produced by Patwaris did show the land which was eroded, but such statements did not prove that the authorities were responsible for the same in any manner and one of the appellants in his cross-examination had admitted that embankments were constructed in good faith for welfare of the people and his further admission that loss suffered by appellants was due to the floods in the year 1976, also showed that authorities were not responsible for the same---Trial court had rightly appreciated the evidence on record and its findings did not call for any interference---Appeal was dismissed with costs accordingly.

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

----S. 91---Public nuisance---Scope---Whether permission of the Advocate-General was necessary to file the suit---Construction of embankments, sewage water and soil erosion causing damage to land, houses, trees and crops---Allegation of construction of embankments to save politician's land---Trial Court had decided that permission of Advocate-General was necessary before filing the suit---Validity---Section 91. C.P.C., provided that a suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with the permission of the Advocate-General, however, there was an exception to said principle under section 91(2), C.P.C., which provided that provisions of section 91(1), C.P.C., would not limit or otherwise affect any right of suit, which may exist independently---Appellants' contention being that they had suffered losses due to construction of embankments to save the lands of a Minister, they had independent right to sue on the basis of such averments, and permission of the Advocate-General was not required for filing the suit---Findings of Trial Court on the issue, therefore, were not sustainable and were reversed.

(c) Suit for damages---

---Force majeure, effect of---Losses caused due to flood---Damages caused due to force majeure cannot be claimed---Losses having been caused by flood, authorities could not be held responsible for the same---Appeal was dismissed with costs accordingly.

Raja Muhammad Munir for Appellant.

Khadim Hussain Qaisar, A.A.-G. for Respondent No.1.

Nayyar Iqbal Ghauri for Respondent No.2 L.D.A.

2012 C L C 1158

[Lahore]

Before Ijaz Ahmad, J

MUHAMMAD SALEEM KHAN----Petitioner

versus

ADDITIONAL DISTRICT JUDGE, TAXILA and others----Respondents

Writ Petition No.245 of 2011, decided on 23rd December, 2011.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2 (a), 15 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Term "rented land"---Definition---Brick kiln---Default in payment of rent---Rented premises was a brick kiln along with 60 rooms constructed over the land, against which ejectment order was passed by Rent Tribunal in favour of landlord---Plea raised by tenant was that premises was a factory, therefore, proceedings under Punjab Rented Premises Act, 2009, were not maintainable---Validity---Place where trade and business of buying and selling of bricks was done on rented land, the same fell within the definition of "rented land" as given in Punjab Rented Premises Act, 2009-­--Molding and baking of bricks could not be said to be production of goods in a factory primarily through machines---Place where business and trade took place was included in definition of "rented land" under Punjab Rented Premises Act, 2009---Brick kiln, even if was taken to be a factory, the latter had not been excluded from subject matter of Punjab Rented Premises Act, 2009---Agreement in favour of previous tenant had expired and tenant had only stepped into the shoes of first tenant---Reduction in lease area but maintaining previous quantum of rent was only adjustment to bring ever increasing rate of rent in compatibility with the size of leased land---Tenant failed to prove that he had entered into a new lease agreement with landlord for the same term that was to start running afresh, therefore, petition was not premature---High Court in exercise of its constitutional jurisdiction, declined to interfere in ejectment order passed by Rent Tribunal--- Petition was dismissed in circumstances.

Abdul Hamid v. Muhammad Rafique Chaudhry and 2 others PLD 1987 Lahore 599; Raja Khurshid Ali v. Dr. Abdul Malik 1991 SCMR 1944; Ghanshiam Das v. Debi Prasad and another AIR 1966 SC 1998; Prabhulal Potadia v. State 1966 Cr.LJ 228 Uttamchand v. S.M. Lalwani AIR1965 SC 716; Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240; Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149" Ch. Mussarat Ahmad v. Ch. Fazal Ahmad 2004 YLR 2905 and Zhange Gougen v. Mst. Jahanzeba Begum W.P.No.372 of 2009 ref.

(b) Interpretation of statutes---

----Jurisdiction---Determination---Principle---While interpreting matter related to jurisdiction of Tribunal or Court, approach towards extended jurisdiction has to be adopted.

(c) Punjab Rented Premises Act (VII of 2009)---

----S. 15---Wilful default---Scope---Payment, made a year after it was due, cannot be termed anything but wilful default in payment of rent.

Muhammad Arshad Khokhar vs. Mrs. Zohra Khanum and others 2010 SCMR 1071; Abdul Hamid v. Muhammad Rafique Chaudhry and 2 others PLD 1987 Lah. 599; Inayat Ullah v. Zahoor-ud-Din and another 1987 SCMR 1313 and L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Karachi 307 distinguished.

Muhammad Akram Sheikh and Sajeel Sheheryar for Petitioner.

2012 C L C 1172

[Lahore]

Before Ijaz Ahmad, J

FATEH MUHAMMAD through Legal Heirs and others----Petitioners

versus

BAKHSHAU and 14 others----Respondents

Civil Revision No.723-D of 1992, decided on 5th October, 2011.

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

----S. 115---Limitation Act (IX of 1908), S.12---Revision petition---Limitation---Revision petition which had been submitted after 95 days, ostensibly had been filed five days after the expiry of the period of limitation---Copies of impugned judgment and decree were received by the petitioner, five days after filing application for issuance of copies of said judgment and decree---Day when the judgment and decree was passed, and five days spent in obtaining the copies, if excluded, the revision was filed after 89 days of the pronouncing of the judgment and drawing of the decree which would be deemed to have been filed within period of limitation as S.12 of the Limitation Act, 1908 was made applicable to proceedings under S.115, C.P.C.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705 and City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 distinguished.

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

----Ss. 5 & 12---Civil Procedure Code (V of 1908), S.115---Condonation of delay and deduction of time spent in legal proceedings---Scope---Scheme and purpose of condonation of delay under S.5 of Limitation Act, 1908, and deduction of the days under S.12 of the Act, were altogether different from each other---First was the discretion of the court which was variable according to the circumstances of the case---Second was not one variable dependent on the discretion of the court---Party had a right founded on the provision of law---Deduction allowed under S.12 of Limitation Act, 1908 was applicable in case of a revision petition as well.

City District Government Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 767 rel.

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

----O. XLI, R.27 & S.115---Production of additional evidence---Application for---Revision petition---Application seeking the production of the documents had already been refused by the Appellate Court---Petitioner had a stigma on his right, if he had any, to produce the additional evidence---First application was dismissed by Appellate Court as not pressed with the specific prayer that the same be dismissed which also led to the dismissal of the second application---Same stigma would be carried to the application made before that court---Petitioner's right to produce the additional evidence was closed by the Trial Court under O.XVII, R.3, C.P.C.---Said hump being still in the way, petitioner could not ask at revision stage to be allowed to produce the additional evidence which was complementary in nature to the original evidence---Production of the additional evidence was rightly disallowed by the Appellate Court below.

Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; Iqbal Ahmad and others v. Khurshid Ahmad and others 1997 SCMR 744; Mohabbat v. Asadullah Khan and others PLD 1989 SC 112; Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782; Shtamand and others v. Zahir Shah and others 2005 SCMR 348; Noor Muhammad and 8 others v. Mst. Sheran Bibi and another 1998 SCMR 789; Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Abdul Rehman and another v. Mst. Saleem Bibi 2007 YLR 1643; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 and Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671 ref.

Irshad Ali v. Islamic Republic of Pakistan and 2 others 1981 CLC 111 distinguished.

City District Government Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 767 and Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671 rel.

Ch. Muhammad Ashfaq Khan for Petitioners.

Islam Ali Qureshi for Respondents.

2012 C L C 1178

[Lahore]

Before Mehmood Maqbool Bajwa, J

JAVED SADIQ MALIK----Appellant

Versus

Lt. Gen. (R) MUHAMMAD AFZAL NAJEEB----Respondent

First Appeal from Order No.431 of 2010, decided on 30th January, 2012.

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

----Ss. 17 & 24---Ejectment of tenant---Wilful default in payment of monthly rent---Change of ownership notice---Object and purpose---Premises was a residential house and after the death of landlady, tenant did not tender any rent to her legal heir but deposited rent in the name of deceased landlady---Validity---Wisdom and object of issuance of notice by new landlord was to apprise tenant regarding transfer / change of ownership / landlord enabling him to liquidate his liability regarding payment of rent---Expression "wilfully" meant intentionally and purposely as distinguished from "accidentally"---Approaching Rent Tribunal by tenant while making application for permission to deposit rent arraying original landlady (since dead) as respondent, attributing malice to her and then depositing rent in her favour though with permission of Rent Tribunal was intentional act and was not result of lack of knowledge or information regarding status of landlady---Deposit of rent in the name of dead person who initially was landlady, was neither proper nor valid or legal tender of rent---Tenant committed wilful default in payment of rent---Findings of Rent Tribunal on issue of default were not based on proper appreciation of evidence and were result of misreading and non-reading of evidence and were set aside resultantly ejectment application was allowed---Appeal was allowed in circumstances.

Sardar Muhammad Yaqoob v. Muhammad Saleem 2000 CLC 274; Thekedar Jehagir v. Izat Fazeel and others 2010 CLC 64; Rukhsana Jabeen v. Additional District Judge and others 2011 CLC 1498; Sabz Ali Khan v. Bismillah Khan and another 1997 SCMR 1781 and Syed Hamid Hussain v. Mst. Humaira Ghias 1986 CLC 1873 ref.

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

----S. 17(6)---Ejectment of tenant---Bona fide personal need of landlord---Proof---Statement of landlord/landlady on oath deposing personal need and in view of provisions of S.17(6) of Cantonments Rent Restriction Act, 1963, sufficiently safeguarding interest of tenant is sufficient to prove bona fides of landlord/landlady claiming occupation of residential premises.

Anwaar Hussain and Mehr Muhammad Iqbal for Appellant.

Amer Iqbal Basharat and Muhammad Umar Malik for Respondents.

Date of hearing: 30th January, 2012.

2012 C L C 1188

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD AKRAM----Petitioner

Versus

WAPDA through Chairman, WAPDA and 3 others----Respondents

Civil Revision No.1297 of 2012, decided on 2nd May, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Electricity Act (IX of 1910), S.24(1)---Specific Relief Act (I of 1877), S.42---Plaintiff (petitioner) had filed a suit for declaration against the Authority (respondent) on the ground that the latter with mala fide intention disconnected the electricity connection of the plaintiff and got registered a criminal case against him with the allegation that the plaintiff had committed theft of electricity---Authority issued a detection bill to the plaintiff, who along with the declaratory suit filed an application under O.XXXIX, R.1 & 2, C.P.C, but same was dismissed by the Trial Court---Appeal against order of the Trial Court was allowed by the First Appellate Court subject to the plaintiff depositing half the amount of the impugned detection bill within one month, and furnishing a surety bond for the remaining amount before the Trial Court---Contentions of the plaintiff were that the F.I.R. registered against him had been cancelled after thorough investigation, and that notice under section 24(1) of the Electricity Act, 1910, had not been given to him before disconnecting his meter---Validity---Record revealed that F.I.R. against the plaintiff regarding theft of electricity had not been cancelled as yet but same was only recommended for cancellation---Ingredients required for grant of temporary injunction were lacking in the case---Question of fact was involved in the matter which could not be decided without recording evidence---Order of First Appellate Court was reasonable and the court had rightly accepted the application of the plaintiff subject to deposit of one half of the impugned detection bill and to furnish surety bonds for the remaining amount---Discretionary relief had already been granted to the plaintiff and High Court found no illegal or material irregularity in the impugned order---Revision petition was dismissed, in circumstances.

Mian Tariq Ahmed for Petitioner.

Barrister Muhammad Ahmed Pansota and Muhammad Iqbal Javed, SDO Mansorabad, Faisalabad for Respondents.

2012 C L C 1200

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

WARIS ALI----Petitioner

Versus

MUKHTAR AHMED and 4 others----Respondents

Civil Revision No.2731 of 2010, decided on 4th November, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for declaration---Temporary injunction, grant of---Application of petitioner for grant of temporary injunction restraining renewal of lease-hold rights in favour of respondent over suit land and from dispossessing petitioner from residential Ahata, was allowed by Trial Court---Appellate Court partially accepted appeal of respondent with the modification that Patadari rights in favour of respondent be renewed while restraining the respondents from dispossessing petitioner from residential Ahata---Held, that petitioner was not able to substantiate any illegality or irregularity in the order of Appellate Court and failed to controvert the fact that suit land already stood transferred in the respondents' name and that the respondents were in possession of the same while the petitioner was only in possession of the residential Ahata---Appellate Court had aptly modified the order of the Trial Court, and revision was dismissed accordingly.

Muzzammil Qureshi for Petitioner.

Riaz Arshad Khan Niazi for Respondents.

2012 C L C 1223

[Lahore]

Before Syed Kazim Raza Shamsi, J

Mrs. YASMIN RAZI-UD-DIN and another----Appellants

Versus

Mst. TEHMINA----Respondent

Second Appeal from Order No.82 of 2003, heard on 16th May, 2011.

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

----S. 13---Civil Procedure Code (V of 1908), S.11---Ejectment of tenant on grounds of nuisance and use of premises for purposes other than that for which it was leased---Denial of relationship of landlord and tenant by tenant---Res judicata---First ejectment petition of appellant (landlady) was dismissed for want of evidence whereafter second and third ejectment petitions were dismissed due to bar created by principle of res judicata---Contention of appellant was that grounds taken in subsequent petitions were not those taken in the first ejectment petition , therefore S. 14 of the Ordinance does not apply and that denial of relationship by tenant was an evasive plea---Validity---Appellant was duty bound to establish relationship of landlord and tenant first, for giving jurisdiction to Rent Controller to proceed further in the matter---In the present case, appellant failed to do so despite numerous opportunities---Appellant had to establish the relationship, whereafter he may have asserted other grounds available to him, therefore, subsequent ejectment petitions filed by appellant could not be considered and entertained---Argument that Rent Controller had passed order to deposit monthly rent under section 13(6) of the Ordinance but itself had reviewed the same having no power to do so; was untenable for the reason that where no specific jurisdiction was granted by special statute then general principles come into play---Authority having jurisdiction to pass an order also enjoyed powers to recall the same---No benefit of order passed by the Rent Controller under S.13(6) could be extended to landlady as the tenant had denied the relationship of landlord and tenant---Contention that section 14 of the Ordinance did not apply to the present case was not correct as same went against the principle of finality of judgment as enunciated in S.14 of the Ordinance as well as S.11, C.P.C.---Courts below rightly dismissed application of landlady as she had failed to establish relationship of landlord and tenant---No interference was called for in the concurrent findings of courts below, and accordingly, appeal was dismissed.

Muhammad Yousaf v. Khalifa Asghar Hussain 1980 SCMR 886; Rab Nawaz v. Haji Muhammad Iqbal and 2 others 2003 SCMR 1476; Ghulam Rasool v. Mian Khurshid Ahmad 2000 SCMR 632; Gulistan and others v. Muhammad Akram 1983 CLC 2808; Saifuddin and another v. Senior Civil Judge/Rent Controller-VIII Karachi (South) and 7 others 2007 SCMR 128; Aadil Nadeem Rizvi v. Gohar Siddique and others 2004 SCMR 738; Khalid Ghouri v. Mrs. Tazeen Chaudhary 2000 SCMR 1209; Ahmad Ali alias Ahmad v. Nasar-ud Din and another PLD 2009 SC 453; Safeer Travels Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs PLD 2007 SC 504; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Fazalur Rahman v. Mst. Sarwari Begum and others 1986 SCMR 1156; Abdul Qayyum Paracha v. Ghulam Hussain and others 1985 SCMR 580; Begum Cap. Mirza Ghulam Sarwar and another v. District Judge; Jhelum 1987 SCMR 25 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 distinguished.

Sh. Muhammad Umer for Appellants.

Nemo for Respondent.

Date of hearing: 16th May, 2011.

2012 C L C 1236

[Lahore]

Before Syed Mansoor Ali Shah, J

SHABBIR AHMED----Petitioner

Versus

KIRAN KHURSHEED and 8 others----Respondents

Writ Petition No.18645 of 2011, decided on 10th April 2012.

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

----Ss. 124 (2), 195 & Sixth Schedule, item 64---Punjab Local Council (Property) Rules, 2003, Rr. 9 (2) (e), 16 (c) & 18---Punjab Local Councils (Contract) Rules, 1981, R.4---Constitution of Pakistan, Arts.4, 10-A, 18, 23 & 199---Lease---Enhancement of rent---Forcible dispossession---Grievance of petitioners was that there had been a valid lease of plot in question in their favour since 1961, but Tehsil Municipal Administration forcibly dispossessed them from plot in question---Plea raised by authorities was that lease in question was executed in violation of the provisions of Punjab Local Council (Property) Rules, 2003 and petitioners were not paying rent according the market rate which had made out a case for enhancement of rent against the petitioners---Validity---Petitioners were entitled to a "reasonable notice" for enhancement of rent (variation in the terms of the lease) and in the case of their non-acceptability, for cancellation of their lease---Authorities had woken up (it is not clear whether TMA woke up on its own motion or was driven by some other vested interest) from a long slumber with a shuddering realization to immediately protect and safeguard interest of Tehsil Municipal Administration and public exchequer but in their overzealousness, insensitively trampled upon due process and rule of law guaranteed to the petitioners under the Constitution---Tehsil Municipal Administration had offended fundamental and constitutional rights of petitioners, bypassing the process provided under section 195 and the schedule to Punjab Local Government Ordinance, 2001, and violating the protections guaranteed under Articles 4, 10A, 18 and 23 of the Constitution---Rushing directly to auction leasehold rights without giving notice to existing tenants i.e. petitioners, in terms of the Schedule (which enjoyed higher legislative status than the Rules), was unabashedly unconstitutional and a blatant violation of Punjab Local Government Ordinance, 2001---Initiation of auction proceedings and resulting auction was in violation of Punjab Local Council (Property) Rules, 2003---High Court, in exercise of Constitutional jurisdiction declared such auction to be illegal and set aside the same---Petition was allowed accordingly.

Olga Tellis and others v. Bombay Municipal Corporation and others AIR 1986 SC 180; Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. PLD 1965 (W.P.) Lah. 82; Black's Law Dictionary; Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Lt. Col. (R) Muhammad Aslam v. Defence Housing Authority (DHA) through Administrator and 2 others PLD 2008 Lah. 261; Muhammad Arif v. District Coordination Officer Khushab and another 2009 MLD 1160; Indus Valley Construction Company Ltd. v. Comentation Intrafor Ltd. 1982 SCMR 1127; Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab, Lahore and 3 others 2001 CLC 9; Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others 2010 PLD Lah. 605; Ronald D Rotunda and John E Novak-Treatise on Constitutional Law Vol-2 pp.579-580; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408; Tariq Aziz-ud-Din and others in Re: 2011 PLC (C.S.) 1130; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Nadeem Ahmed, Advocate and others v. Federation of Pakistan and others PLD 2010 SC 1165; Wajid Ali v. Rent Registrar/Special Judge Rent, Lahore and another PLD 2010 Lah. 463; Zainab Garments (Pvt.) Ltd. through Chief Executive and others PLD 2010 Kar. 374; Farooq Saleh Chohan and 2 others v. Government of Pakistan, Ministry of Interior through Secretary/Section Officer, Islamabad and 4 others v. Federation of Pakistan an another PLD 2010 Kar. 394 and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

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

----S. 195 & Sixth Schedule, item, 64---Lease agreement---Change in terms and conditions---Reasonable notice---Scope---Protection has been provided in section 195 read with item 64 of Sixth Schedule to Punjab Local Government Ordinance, 2001, which has provided that unless "reasonable notice" is issued to lessee, terms and conditions of lease cannot be altered.

(c) Constitution of Pakistan---

----Arts. 10-A & 4---Right of fair trial and due process of law---Scope---Article 10-A of the constitution mandates that civil rights and obligations of citizens can only be determined through fair trial and due process---Provisions of Article 10-A of the Constitution, morphs Article 4 of the Constitution into a more robust fundamental right, covering both substantive and procedural due process---Substantive due process provides a check of legislation and ensures protection of freedoms guaranteed to a person under the Constitution---Provisions of Article 10-A of the Constitution is not limited to a judicial trial in its strict sense but requires fairness from any forums which determines the rights of a person.

(d) Interpretation of statutes---

----Schedule annexed to a statute enjoyed higher legislative status than the Rules.

Ch. Imran Raza Chadher for Petitioner (in Writ Petitions Nos.18645 and 16843 of 2011 and for Respondent No.11 in Writ Petition No.18356 of 2011).

Pervaiz Inayat Malik for Petitioner (in Writ Petition No.18356 of 2011 and for Respondent No.8 (in Writ Petition No.18645 of 2011) and for Respondent No.7 (in Writ Petition No.16843 of 2011) and for Respondent No.6 (in Writ Petition No.20259 of 2011).

Sh. Anwar-ul-Haq for Petitioner (in Writ Petition No.20259 of 2011) and for Respondent No.7 (in Writ Petition No.18356 of 2011).

Mehmood A. Sheikh and Niaz Ahmad Khan for Respondent T.M.A. (except on 29-11-2011).

Khawaja Salman Mehmood, Asstt. A.-G., Punjab.

Kiran Khursheed, Administrator T.M.A. and Muhammad Masood Tamana, Tehsil Municipal Officer, T.M.A., Sheikhupura.

Research Assistant by Mian Muhammad Kashif, and Lahore High Court Research Centre (LHCRC).

Date of hearing: 29th November, 2011.

2012 C L C 1278

[Lahore]

Before Ch. Shahid Saeed, J

LEHRASIB KHAN----Appellant

Versus

UMEED ALI and another----Respondents

Regular Second Appeal No.182 of 2011, decided on 5th March, 2012.

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

----Ss. 30, 13 & 5---Performance of talbs prior to the registration of sale-deed---Vendee had obtained physical possession of the property before registration of sale-deed---Effect---Suit of plaintiff was decreed concurrently---Contention of the defendant was that limitation under section 30(a) of the Punjab Pre-emption Act, 1991 would start from the date of the registration of the sale-deed and not prior to the same; and plaintiff having performed talbs prior to the registration of sale-deed, had no cause of action in filing the suit---Validity---Talb-i-mawathibat and talb-i-ishhad were performed in accordance with law---Limitation would start from the date when the defendant being the vendee had obtained physical possession of the property and the limitation would not wait to start from the date when the document was registered---Under section 13 of the Punjab Pre-emption Act, 1991 a pre-emptor had to act forthwith and not wait even for a moment while making immediate demand after attaining knowledge of the sale to which he wished to pre-empt and also take further steps within the prescribed time limit---Talbs, after the gaining of knowledge of sale, could be performed in accordance with law even after the sale had in fact taken place by way of vendee having received the consideration money and the delivery of possession of the suit land, even if the sale-deed had not been registered at that time---Cause of action accrued to the plaintiffs when their right was infringed by the signing of the sale agreement by the vendor and the vendees---Agreement, if executed, but not having been gotten registered for a long time, did not mean that the person aggrieved by such transaction would be deprived from agitating his right provided by the law---Date, time and place were crucial in a pre-emption suit and jumping demand was required for performance of talbs---If a pre-emptor did not disclose his intention of exercising his pre-emptive right; he would be ousted as having not fulfilled the requirement of immediate demand as mentioned in S.13 of the Act---Concurrent findings of the courts below could not be interfered with---Appeal was dismissed.

Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others PLD 2003 SC 818 rel.

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

----Ss. 13 & 30---Filing of suit for pre-emption and performance of talbs prior to registration of sale-deed---Principles/effect---After attaining knowledge of sale of property in dispute, pre-emptor was required to act promptly and perform talbs accordingly; and there was no need to wait for registration of the sale-deed document; which commenced to operate from the time from which the same would have commenced to operate from if no registration thereof had been required or made.

Ch . M Lehrasib Khan Gondal for Appellant.

Sh. Naveed Shehryar for Respondents.

Date of hearing: 5th March, 2012.

2012 C L C 1290

[Lahore]

Before Ijaz ul Ahsan, J

MUHAMMAD AHSAN ALAM----Petitioner

Versus

MUHAMMAD HUSSAIN and 8 others----Respondents

Civil Revision No.2215 of 2001 and C.M. No.1-C of 2008, decided on 8th October, 2010.

Civil Procedure Code (V of 1908)---

----Ss.115, 151 & O.IX, R.9---Limitation Act (IX of 1908), S.5---Revision petition dismissed for non-prosecution---Application for restoration---Cause list, non-receipt of---Not a reasonable cause---Revision petition was dismissed for non-prosecution and application for restoration of the same was filed about 2 years and 7 months later, without any application for condonation of delay---Plea raised by petitioner was that his absence on the day fixed was due to non-receipt of cause list regarding fixation of the petition by his counsel---Validity---Application for restoration was barred by time and neither application for condonation of delay under section 5 of Limitation Act, 1908, had been filed nor application disclosed reasonable cause or sufficient cause for condonation of delay---Non-supply of copy of cause list to advocate of petitioner did not constitute a valid ground for condonation of delay---Application was dismissed in circumstances.

PLD 2000 SC 820; 2002 SCMR 1405; 2004 SCMR 615 and 2000 SCMR 127 rel.

Dr. Abdul Basit for Petitioner.

Muhammad Aslam Qadri for Respondent.

2012 C L C 1300

[Lahore]

Before Ijaz Ahmed Chaudhry, C.J.

ISLAMIC LAWYERS MOVEMENT through Tahir Farooq alias Allah Bakhsh Leghari----Petitioner

Versus

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

Writ Petitions Nos.10392, 11559 and 16615 of 2010, decided on 28th February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Social networking website "facebook"---Religious sentiments---Petitioners were aggrieved of the posting of derogatory and objectionable material on the website "Facebook", injuring religious sentiments of Muslims---Effect---Nobody could deny importance of use of internet in different spheres but the same should not be at the cost of religious disharmony, as such exercise would not only create chaos amongst members of society at national as well as international level but also would disintegrate efforts being made towards international peace and tranquillity---High Court formulated guidelines for immediate action by authorities.

Following guidelines were formulated by the High Court:---

(i) that inter Ministerial Committee constituted by the then Prime Minister in year, 2006, would keep vigilant eye on websites and in eventuality of any objectionable material concerning religious faith of any group would take prompt action before it could reach to public at large and in case of failure concerned persons would be taken to task while initiating disciplinary action against them and government would also include some members from amongst private persons in that Committee;

(ii) that Crisis Cell working in Services division ICT Directorate and Enforcement Division should be used as a tool to unearth such material and to block relevant website/URL forthwith and in case of failure stern action be taken against delinquents;

(iii) that the government should agitate the matter before United Nations through its permanent delegate for legislation at international level against such acts and convey reservations of the Muslims of world in general and that of Pakistan in particular regarding publication of such objectionable material;

(iv) that the government should bring the matter before Organization of Islamic Countries (OIC) in consultation with other member countries and would adopt clear-cut via media to halt repetition of such incidents;

(v) that the government should also see viability of permanent blocking of websites involved in unethical and illegal activities in the event that such material was again presented on internet;

(vi) that the government should strive for legislation in such regard on the lines already adopted by other Islamic countries in addition to China;

(vii) that the government should impart awareness amongst public through different modes e.g. print and electronic media regarding use and misuse of such like websites; and

(vii) that in case of repetition, government should sue the concerned authorities before appropriate forums.

Ch. Zulfiqar Ali for Petitioner (in Writ Petition No.10392 of 2010).

Muhammad Azhar Siddique, Advocate/Petitioner (in Writ Petitions Nos.11559 and 16615 of 2010) in Person.

Naveed Inayat Malik, Deputy Attorney-General for Pakistan with Fawad Ahmad Khan Niazi, Senior Project Manager (Business) Ministry of Information and Technology.

Waqas Qadeer Dar, Assistant Advocate-General with Pervaiz Hussain Butt, D.S.P.

Asim Akram for PTA (in Writ Petitions Nos.10392 and 11559 of 2010).

Saith Abdur Rehman for PTA (in Writ Petition No.16615 of 2010).

2012 C L C 1326

[Lahore]

Before Sagheer Ahmad Qadri and Syed Iftikhar Hussain Shah, JJ

ALLIED BANK LIMITED through Tariq Mehmood Sheikh SAM and Mujtaba Gillani AVP-SAM Branch authorised Attorney----Appellant

Versus

Messrs SHAHABAD TEXTILES (PVT.) LTD. through Chief Executive and Director----Respondent

Regular First Appeal No.345 of 2008, heard on 4th October, 2011.

Limitation Act (IX of 1908)---

----Ss. 5 & 29(2)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.22---Appeal to High Court---Application for condonation of delay of 32 days---Impugned decree was passed on 24-4-2008---Certified copy of decree was applied on 13-5-2008 and supplied on 23-5-2008, while appeal was filed on 5-6-2008---Contents of application revealed that appellant himself was not certain that whether appeal was well in time or not---Appellant had knowledge of day on which decree was passed and he could file appeal within 30 days---Limitation for present appeal was prescribed by Financial Institutions (Recovery of Finances) Ordinance, 2001, thus, by virtue of S.29(2) of Limitation Act, 1908, provision of S.5 thereof would not attract thereto---High Court dismissed appeal for being time-barred.

Industrial Development Bank of Pakistan v. Rehmania Textile Mills (Pvt.) Ltd. 2006 CLD 81; Protein and Fats International (Pvt.) Limited v. Capital Assets Leasing Corporation Limited 2005 CLD 857; Sikandar Hayat v. Agricultural Development Bank of Pakistan 2005 CLD 870; Abdul Rasheed and another v. Bank of Punjab 2004 CLD 800 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

Imran Aziz Khan for Appellant.

Waqar Mushtaq for Respondent.

Date of hearing: 4th October, 2011.

2012 C L C 1336

[Lahore]

Before Asad Munir, J

VICE-CHANCELLOR, KING EDWARD MEDICAL COLLEGE/UNIVERSITY, LAHORE and another----Petitioners

Versus

NADIA RIAZ CHATHA----Respondent

Civil Revision No.2613 of 2010, decided on 28th November, 2011.

Pakistan Medical and Dental Council Regulations---

----Clause 4(b)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction--- Educational institution--- Term "provisionally allowed" in interim order---Connotation---Failure to pass First Professional MBBS examination in four chances---Plaintiff candidate was student of MBBS and under interim order passed by Trial Court, she passed her First Professional examination in fifth attempt but ultimately suit was dismissed by the Trial Court---Lower Appellate Court allowed the appeal and decreed the suit in favour of plaintiff---Plea raised by plaintiff was that she was prejudiced by act of court---Validity---Trial Court passed interim order and "provisionally allowed" plaintiff to appear in examination and that too "subject to final decision of controversy by the court"---Plea of plaintiff had no relevance in view of unambiguous terms of interim order which was sought by plaintiff herself---If plaintiff had passed the examination, suit would have automatically stood decreed in her favour without being decided on merits---Plaintiff could have benefit of interim order upon passing examination only if she was able to succeed in her suit by establishing her right to appear in examination for the fifth time and not otherwise---Medical student who had made four unsuccessful attempts to pass MBBS First Professional examination, could not be allowed to continue his or her medical education even if he or she had passed the examination in a later attempt pursuant to a court's interim order where he or she had no case on merits---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Miss Asma Ghafoor v. Principal King Edward Medical College, Lahore and 3 others C.A. No.591 of 2006; Akhtar Ali Javed v. Principal, Quaid Azam, Medical College, Bahawalpur 1994 SCMR 532; Munaza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790; Principal, Quaid-e-Azam Medical College, Bahawalpur v. Nasim Ahmad and another 1997 SCMR 583 and Ali Yousaf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others 2000 SCMR 1222 rel.

Riaz-ul-Haq v. Selection Committee, Bolan Medical College through Secretary, Principal Bolan Medical College, Quetta 1997 SCMR 1845; Hamza Khan v. Province of Balochistan and others 1995 SCMR 711 and Miss Salma Mughal v. Selection Committee, Bolan Medical College 1993 SCMR 2023 distinguished.

Jawad Hassan, Addl. A.-G. along with Ejaz Farrukh Senior Law Officer, K.E.M.C.U. for Petitioner.

Nadeem-ud-Din Malik for Respondent.

Date of hearing: 16th November, 2011.

2012 C L C 1361

[Lahore]

Before Ayesha A. Malik, J

MUHAMMAD NADEEM----Petitioner

Versus

JUDGE FAMILY COURT and 2 others----Respondents

Writ Petition No.9386 of 2012, decided on 6th June, 2012.

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

----Ss. 17A, 11, 9 & 5---Constitution of Pakistan, Arts.199 & 10A---Constitutional petition---Suit for recovery of maintenance allowance and dower---Family Court had struck off the right of the husband (petitioner) to file written statement and cross-examine witnesses of the wife---Contention of the husband was that on account of his failure to file a written statement, the Family Court could not deny him the right to cross-examine the witnesses of the wife---Validity---Family Court had struck off the husband's right to file written statement which was contrary to the provisions of the West Pakistan Family Courts Act, 1964---No provision for striking off the right to file written statement existed in the Act---Statutory right to strike off the defence of the defendant was only available under S.17-A of the Act, which was for interim maintenance---If the husband failed to file a written statement in accordance with the order of the Family Court, the Family Court may strike off his defence; and the case would then proceed in evidence and in terms of S.11 of the Act, the wife would lead evidence----At the time of recording evidence, the husband who had not filed his written statement, had a right to cross-examine the wife's witnesses---Such right was a valuable right and was prescribed in S.11(3) of the West Pakistan Family Courts Act, 1964---Family Court, in the present case, could strike off husband's right to file a written statement, right of defence, but could not close his right to cross-examine the witnesses of the wife---Denial of said right would render the procedure adopted by the Family Court as unfair and against the right to a fair trial---High Court set aside impugned orders, remanded the case to Family Court with the direction to provide one more opportunity to the husband to file written statement and produce evidence---Constitutional petition was allowed, in circumstances.

Muhammad Ramzan v. Fazal Wahid and 5 others 2004 YLR 1050 ref.

Faiz-ul-Hassan v. Mst. Jan Sultan and 2 others 2001 SCMR 1323; Abdul Rasheed v. Judge Family Court, Mian Channu and another 2010 CLC 797 and Manzoor Elahi v. Zulaikhan Bibi and another PLD 2009 Islamabad 4 rel.

Muhammad Rafique Shad for Petitioner.

Muhammad Saleem Anjum for Respondents.

2012 C L C 1369

[Lahore]

Before Mian Saqib Nisar, Sh. Azmat Saeed and Umar Ata Bandial, JJ

BROTHERS SUGAR MILLS LIMITED and others----Petitioners

Versus

PUNJAB COOPERATIVE BOARD FOR LIQUIDATION and others----Respondents

Writ Petitions Nos.24049 of 1998, 8567 of 2000, 3725 of 2007, 12434, 13672, 16847, 16873, 16875, 16874, 15371, 18075, 18811, 18785 of 2009, Miscellaneous Petition 15/C of 1996, Writ Petitions Nos.17678, 18101, 18102 and 19792 of 2009, decided on 14th October, 2009.

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

----Preamble---Constitution of Pakistan, Art.199(4)---Constitutional petition against an order of a Cooperative Judge---Maintainability---Contentions of the petitioners were that constitutional petition against an order of the Cooperative Judge was maintainable, and that a Judge of the High Court, while exercising jurisdiction under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, acted as a persona designata, therefore, constitutional petition under Art.199 of the Constitution against his order could be competently filed---Validity---Cooperative Judge while exercising his power under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, was a persona designata and against his orders, a constitutional petition could be maintained---Where a decision had been rendered by a persona designata under the special law, even by a Judge of the High Court, such court came within the purview of the connotation of the "person" defined under Art.199(4) of the Constitution and an appropriate writ should be available to an aggrieved party---Constitutional petitions were maintainable, accordingly.

The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567; Asghar Ali and another v. The State 1999 SCMR 654; Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 ref.

The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567 and Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel.

Writ Petitions Nos.22768 of 2000 and 20237 of 2002 held did not conform with the ratio of judgment of the Supreme Court.

Munawar-us-Salam for Petitioner.

Muhammad Ilyas Khan for Respondent No.1.

2012 C L C 1379

[Lahore]

Before Amin-ud-Din Khan, J

RAIS GUL MUHAMMAD and others----Appellants

Versus

MUHAMMAD ABDULLAH KHAN----Respondent

Regular Second Appeal No.17 of 2006/BWP, heard on 1st November, 2011.

(a) Administration of justice---

----Plaintiff in order to succeed in his case must stand on his own legs.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 4---Pre-emption suit---Duty of pre-emptor claiming superior right of pre-emption---Scope---Plaintiff would be bound to prove such version with quality and quantity of evidence.

(c) Punjab Pre-emption Act (I of 1913)---

----S. 4---Civil Procedure Code (V of 1908), O.XVIII, R.1---Pre-emption suit---Deceased plaintiff filed suit on 4-3-1969 claiming to be joint owner in suit Khata---Plaintiff died on 8-1-1971 and defendant died on 14-11-1968---Non-appearance of deceased plaintiff as his own witness---Statements of legal heirs of plaintiff recorded after remand of case by Appellate Court without asserting that their deceased father was having superior right of pre-emption---Validity---Legal heirs of plaintiff were made party in suit after his death, thus, they were bound to prove superior right of pre-emption of their father, who filed suit---Statements of legal heirs of plaintiff to effect that they had superior right of pre-emption, would not prove such right at the time of filing of suit---Statements of such legal heirs recorded in rebuttal could not be read in affirmative evidence---One legal heir of plaintiff in his statement admitted deceased vendee to be owner in suit estate---Legal heirs of plaintiff had failed to prove right of pre-emption, which was available to deceased plaintiff at time of filing of suit---Suit was dismissed in circumstances.

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

----O. XVIII, Rr. 1 to 3---Statement recorded in rebuttal could not be read in affirmative evidence.

(e) Punjab Pre-emption Act (I of 1913)---

----S. 4---Pre-emption, right of---Scope---Such right must be asserted within prescribed period of limitation and could not be asserted after its expiry---Principles.

(f) Punjab Pre-emption Act (I of 1913)---

----S. 4---Civil Procedure Code (V of 1908), O.VI, R.17 ---Pre-emption suit---Amendment of plaint---Scope---General principles relating to grant of amendment of plaint would not be applicable in suit for pre-emption---Amendment of pleadings, if allowed in other cases, would take effect retrospectively from date of filing of original plaint, but in suit for pre-emption, same would take effect from date of its allowing.

(g) Punjab Pre-emption Act (I of 1913)---

----Ss. 3(5) & 4---Transfer of Property Act (IV of 1882), S.54---­Pre-emption suit---Pre-emptor claimed to have acquired title in suit estate through oral mutation---Validity---Pre-emptor on basis such title acquired in violation of S.54 of Transfer of Property Act, 1882 could not claim right of pre-emption.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 ref.

Muhammad Bux v. Zia Ullah and others PLD 1971 B.G. 42 and Jangi v. Jhanda and others PLD 1961 (W.P.) B.G. 34 rel.

Ijaz Ahmad Ansari for Appellants.

Masood Ahmad Bajwa for Respondents.

Date of hearing: 1st November, 2011.

2012 C L C 1392

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD SADIQ----Appellant

Versus

IFTIKHAR HUSSAIN and 6 others----Respondents

Regular Second Appeal No.64 and Writ Petition No.3937 of 2010, heard on 25th April, 2012.

Specific Relief Act (I of 1877)---

----S. 39---Civil Procedure Code (V of 1908), S.148---Suit for cancellation of agreement---Earlier suit for specific performance of agreement to sell was decreed in favour of defendant / vendee but he did not deposit balance consideration amount and resorted to delaying tactics---Plaintiffs/vendors filed suit for cancellation of agreement to sell and both the courts below, concurrently decreed the suit in their favour---Plea raised by defendant/vendee was that there was some mistake in decree passed by earlier court and time was sought for correction of the same---Validity---Defendant/vendee was well aware about order of the court regarding deposit of balance sale consideration from the very inception but he intentionally and deliberately used delaying tactics in order to get more and more time---After about one year of expiry of target date, defendant/vendee moved application for amendment of decree but did not seek extension in time deliberately---When that application was allowed after two years, then defendant/ vendee filed application under S.148, C.P.C. for extension in time which could not be allowed keeping in view the conduct of defendant/vendee---No specific terminus a quo for cancellation of agreement to sell was there, but the point when facts compelled plaintiffs/vendors for such action---When defendant/vendee failed throughout to comply with his obligation and was enjoying possession against payment of only about one-third price of suit property and reaping its fruits, plaintiffs/vendors could ask for to rescind agreement to sell which agreement, was not being complied with by defendant/vendee himself even after having passed a conditional decree dated 6-1-2000---Concurrent findings of law and fact against defendant/vendee, who badly failed to point out any illegality in judgment/decree/order, therefore, High Court declined to interfere in the same---Second appeal was dismissed, in circumstances.

Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 and Mst. Samera Butt v. Hussain Ahmad Nasir and 3 others 2009 MLD 942 distinguished.

Syed Kaleem Ahmed Khursid for Appellant.

Zaheer Zulfiqar for Respondents.

Date of hearing: 25th April, 2012.

2012 C L C 1407

[Lahore]

Before Ayesha A. Malik, J

MUHAMMAD IQBAL----Petitioner

Versus

Mst. NASREEN AKHTAR----Respondent

Writ Petition No.8293 of 2012, decided on 16th April, 2012.

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

----Ss. 5, Sched. & S.17---Constitution of Pakistan, Art.199---Constitutional petition---Suits for recovery and enhancement of maintenance allowance of minors---Maintainability---Suit for recovery of maintenance allowance was decreed concurrently against the husband (petitioner) and thereafter wife filed another suit for enhancement of the maintenance allowance---Contention of the husband was that the decree of the Family Court had attained finality and the wife could not file another suit for enhancement of the maintenance allowance under the principle of res judicata under section 17 of the West Pakistan Family Courts Act, 1964---Validity---Contention that the principle of res judicata will apply to the original decree of the Family Court was legally flawed---Principle of res judicata would not apply to the subsequent suit for enhancement of maintenance allowance---Issues pertaining to the enhanced maintenance were not in issue between the parties in the previous suit---No bar in law existed against filing a fresh suit for enhancement of maintenance allowance due to change in circumstances, change in cost of living and additional needs of minors---Suit for enhancement of maintenance allowance was also maintainable under the Schedule to West Pakistan Family Courts Act, 1964---High Court observed that there were bound to be changes in the requirements of children and as children grow, their needs would grow; and that, the approach of fixing maintenance allowance throughout the growing period of a minor or considering 5 per cent increase in the same as sufficient, was unrealistic---Constitutional petition was dismissed accordingly.

Muhammad Ashraf v. Mst. Nusrat Bibi and 3 others 2010 CLC 1411; Muhammad Akram v. Additional District Judge and others PLD 2008 Lah. 560 and Mir Muhammad v. Mst. Iram Iltimas and 4 others 1999 CLC 1668 rel.

Muhammad Ehsan Gondal for Petitioner.

2012 C L C 1424

[Lahore]

Before Ch. Muhammad Younis, J

ARIF MUMTAZ----Petitioner

Versus

THE STATE and another----Respondents

Writ Petition No.9447/Q of 2011, decided on 16th January, 2012.

West Pakistan Pure Food Ordinance (VII of 1960)---

----Ss. 16, 23(1)(c) & 32---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of Inspectors--- Scope--- Complaint, filing of---Competence---Quashing of order---Assistant Commissioner while exercising powers of Price Magistrate lodged F.I.R. against accused (petitioner) after taking samples of red chillies from the shop of the accused, which were found to be not in conformity to the standard as laid down in the Punjab Pure Food Ordinance, 1960---Contention of prosecution that Officers of the Local Administration were empowered through a notification to take necessary steps against adulterators etc., so the proceedings of the F.I.R. could not be quashed---Validity---Provincial Government through said notification never authorized the Officers of the District Administration to take the law in their hands---Proper course of the Local Administration was to confer powers of Inspector Health on the Assistant Commissioner or the Magistrate through a notification published in the Official Gazette, but same was not done---Provincial Government could by notification in the Official Gazette authorize any other officer to work as Inspector within the limit of their jurisdiction, but no such notification had been placed before the High Court, whereby, the Provincial Government may have empowered the Assistant Commissioner/Price Magistrate to perform the functions as Inspector under the Punjab Pure Food Ordinance, 1960---Complaint could be filed by an authorized Inspector and not the Assistant Commissioner or any other officer not authorized in such behalf---Court could not take cognizance of any offence punishable under the Punjab Pure Food Ordinance, 1960, unless complaint/F.I.R. was lodged by a Health Officer or an Inspector authorized in such behalf---Proceedings against accused including lodging of F.I.R. were without jurisdiction and had no legal effect---Constitutional petition was allowed and proceedings against accused, including the lodging of F.I.R., were quashed.

Muhammad Akram v. The State 1991 MLD 4761 and Muhammad Ali v. The State 1996 PCr.LJ 404 rel.

Rao Jamshed Ali Khan for Petitioner.

Rana Muhammad Hussain A.A.-G.

Muhammad Abdul Wadood, D.P.-G.

Muhammad Ramzan, A.S.-I. and Khizar Hayat, Senior Clerk O/o of A.C. City Multan.

2012 C L C 1464

[Lahore]

Before Abdus Sattar Asghar, J

UZMA SHAHZAD----Petitioner

Versus

PRINCIPAL SCHOOL OF NURSING, BAHAWAL VICTORIA HOSPITAL (BVH), BAHAWALPUR and 2 others----Respondents

Writ Petition No.66 of 2012/BWP, heard on 16th February, 2012.

(a) Nursing Educational Institutions Rules, 2001---

----R. 4---Constitution of Pakistan Arts.199 & 10-A---Constitutional Petition---Educational Institution---Petitioner assailed order of the Principal of Educational Institution whereby her name was struck off from the school rolls, and the petitioner was blacklisted and ordered to deposit (return) the stipend amount; on the ground of obtaining admission illegally, by the tampering and misstating of marks obtained in intermediate examination---Validity---Respondent (Principal) of the Institution was directed by Fact Finding Committee that the alleged illegal admission of the petitioner should be dealt with as per the Nursing Educational Institutions Rules, 2001---Termination/striking off from the rolls, and being declared "blacklisted" amounted to a major penalty---For imposition of such major penalty, a duly constituted disciplinary committee comprising of Chairperson and Members was bound to follow the procedure as laid down in Rule 4.2 of the Nursing Educational Institutions Rules, 2001---Respondent (Principal) took the impugned actions without adopting the due process of law as contemplated in the said Rules, and being the Principal, she was not competent to impose such major penalty---When the law required a thing to be done in a particular manner, the same must be done accordingly, and if prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law---Record showed that the due process of law was not observed---Article 10-A of the Constitution furnished a fundamental right to every citizen of Pakistan to have a fair trial and due process---Question of fact or liability conclusively presumed without having recourse to procedural due process could not be said to have been determined under the due process of law---Respondent, in her capacity as the Principal, while passing impugned order acted as coram non judice---High Court set aside impugned order---Constitutional petition was allowed.

(b) Administration of Justice---

----When the law required a thing to be done in a particular manner, the same must be done accordingly, and if prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law.

(c) Administration of justice---

----Due process of law---Question of fact or liability conclusively presumed without having recourse to procedural due process could not be said to have been determined under the due process of law.

Mian Faiz-ul-Hassan for Petitioner.

Muhammad Iqbal Sial, Legal Advisor along with Sanjeda Irshad, Principal School of Nursing Bahawal Victoria Hospital, Bahawalpur for Respondents.

Date of hearing: 16th February, 2012.

2012 C L C 1497

[Lahore]

Before Ijaz ul Ahsan, J

Mst. ZAHIDA PERVEEN----Petitioner

Versus

Mst. PERVEEN AKHTAR----Respondent

Civil Revisions Nos.12 and 11 of 2007, heard on 25th October, 2011.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Suit for possession through pre-emption---Talb-e-Muwathibat---Proof---Failure to produce the informer of sale---Presumption---Pre-emptor did not produce the person who informed her about sale in question and she also failed to produce any independent witness to prove Talb-e-Muwathibat---Suit and appeal filed by pre-emptor were dismissed by Trial Court and Lower Appellate Court respectively---Validity---Non-production of the person, from whom pre-emptor received knowledge of sale could lead to an adverse inference to be drawn that he might not have supported the pre-emptor, if he had been produced as a witness---Performance of Talb-e-Muwathibat by making jumping demand was not established on account of failure on the part of pre-emptor to produce credible evidence and withholding the best available evidence without any explanation---Neither plaintiff appeared in person nor she produced informant, who was her real brother to substantiate her claim of performing Talb-e-Muwathibat---Solitary statement of attorney of pre-emptor was not supported by any independent and credible evidence, therefore, performance of Talb-e-Muwathibat was not proved---Findings recorded by Lower Appellate Court did not suffer from any illegality or material irregularity and there was no misreading or non-reading of evidence---Findings recorded by Lower Appellate Court were well reasoned, based upon record and founded on correct interpretation of relevant provisions of Punjab Pre-emption Act, 1991---High Court in exercise of revisional jurisdiction declined to interfere in findings of fact recorded by Lower Appellate Court---Revision was dismissed in circumstances.

Israr Ahmad v. Ghafoor Khan 2004 YLR 655; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Haji Hassan Ali v. Haji Abdullah and another 2006 CLC 1311; Mst. Chan Sanoober v. Ghulam Noorani 2011 CLC 578; Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Jahangir Khan v. Said Fareen 2011 CLC 912 ref.

Muhammad Aslam Shah v. Amanullah Khan 2006 YLR 1194; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Ghulam Akbar and another v. Bashir Ahmad 2006 YLR 2390 and Amin ud Din v. Mst. Zarina 2003 CLC 1775 rel.

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

----S. 13---Pre-emption right---Proof---Requisite Talb---Value---Pre-emption right is a feeble right and unless it is proved through credible and cogent evidence that each of the Talb was preformed strictly in accordance with law, the right of pre-emption is lost.

Mujeeb-ur-Rehman Kiyani for Petitioner.

Muhammad Arshad Tabraiz for Respondent.

Date of hearing: 25th October, 2010.

2012 C L C 1541

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD RAMZAN through L.Rs.----Petitioner

Versus

SHAMAS-UD-DIN through L.Rs.----Respondent

Civil Revision No.343 of 1998/BWP, heard on 30th April, 2012.

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

----S. 12---Suit for specific performance of agreement to finance litigation was decreed by Appellate Court---Defendant denied the existence of the agreement and contended that the Appellate Court had erred---Validity---­Minute perusal of written statements revealed that the defendant did not specifically deny the execution of the agreement and the plaintiff had proved the execution of the agreement by examining independent witnesses---Defendant had admitted his signatures over the receipt---Appellate Court had come to the right conclusion that the plaintiff had proved the existence of the agreement between the parties---Revision was dismissed.

2008 MLD 265; 2011 SCMR 1162; PLD 2011 Lah. 522; 1997 CLC 1231; PLD 2004 Lah. 330; 1987 CLC 1608; 1989 CLC 1310; 1998 CLC 27; 1993 SCMR 145 and 2009 CLC 1070 ref.

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

----S. 23---Contract/agreement to finance litigation---Not opposed to public policy---Scope---Such contracts were not prohibited and had been explained under S.23 of the Contract Act, 1872---Every agreement to finance litigation per se was not opposed to public policy rather there may be a case in which it would be in the furtherance of law, equity, justice and would be necessary to resist oppression---Where a litigant who had absolute title to a property but no means to retrieve, such agreement would be lawful and justified---Such agreemen4 had to be carefully scrutinized and when found to be unconscionable, unjust and inequitable, for improper object, against law, oppressive or leading to vexatious litigation, the same should be treated against public policy.

Khadim Hussain Khan Khaskhaili for Petitioner.

Muhammad Aslam Khan Dhukhar for Respondent.

Date of hearing: 30th April, 2012.

2012 C L C 1546

[Lahore]

Before Mehmood Maqbool Bajwa, J

BASHIR AHMED----Petitioner

Versus

Messrs SKYLINE LAHORE (PVT.) COMPANY through Chief Executive----Respondent

Civil Revision Petition No.478 of 2009, decided on 25th January, 2012.

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

----O. XXXVII, R.1---Leave to appear and defend the suit, grant of---Principles:---

Following focal points can be formulated to be kept in view while deciding the question of grant of leave to appear and defend the suit.

(1) If any kind of defence is made out, either plausible or illusory, leave is to be granted to defend the suit;

(2) If leave is to be granted to the defendant to defend the suit, it can be conditional or unconditional, depending on the strength of defence set up by defendant. If a plausible defence, either on facts or in law, is made out, unconditional leave is to be granted while deciding question of plausible defence, following points can be taken into consideration amongst others (a) substantial question of law and fact; (b) jurisdiction of court doubtful; (c) complex question of limitation; (d) Instrument not properly stamped; (e) Instrument allegedly not attested by two witnesses; (f) Document issued without consideration; (g) Allegation of fraud requiring inquiry;

(3) Even if the defence is plausible but the conduct of the defendant is mala fide or is clothed with suspicion, leave may not be granted unconditionally;

(4) If no defence is made out, on factual or legal premises, leave may be refused, resulting in decretal of suit; and

(5) If the defence set up is not plausible leave to defend be granted but conditionally, either on condition of furnishing security or deposit of amount.

Fine Textile Mills Ltd. v. Haji Umar PLD 1963 SC 163; Muslim Commercial Bank Ltd. v. Tayyab Sharif 1975 SCMR 393; Mian Rafique Saigol and another v. Bank of Credit and Commerce International Overseas Ltd. and another PLD 1996 SC 749; Azmat Wali v. Hassan Al-Adawi and 2 others 1983 CLC 546; Shahzad Ice Factory v. Special Judge, Banking PLD 1982 Lah. 92; Dur Muhammad Pracha v. Judge Special Court Banking 1982 CLC 1625; Habib Bank Ltd v. Karachi Properties Investment Co. Ltd. PLD 1984 Kar. 257; Habib Bank Limited v. Messrs Pazhong Traders and 12 others 1986 CLC 1086; Raja Saeed Ahmad Khan v. Sabir Hussain 2000 CLC 199; Asif Khurshid v. Saeed Ahmad 2000 CLC 913; Sheikh Muhammad Ayub v. Muhammad Yousuf PLD 2005 Lah. 197; Asif Javed and others v. Ghulam Shabbir 2007 YLR 187; Umer Khan v. Haji Musa Jan 2009 SCMR 1101 and Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 SCMR 1747 rel.

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

----O. XXXVII, Rr.1 & 2---Suit for recovery of money---Leave to defend the suit, grant of---Plausible defence---Scope---Trial Court granted conditional leave to defend the suit to defendant subject to submission of surety bond---Defendant failed to submit surety bond as Trial Court declined to extend time for the same---Plea raised by defendant was that as he had raised plausible defence, therefore, leave should have been granted unconditionally---Validity---Defendant wrote name of plaintiff company in his own hand, put his signatures but amount in words and figures was written by one of his companion---Plausible defence was offered by defendant while seeking leave to appear and defend the suit---Prima facie, malice could not be attributed to defendant in order to decline him leave unconditionally, in view of dates of institution of other suits and private complaint by brother of defendant---Substantial question of law and facts was raised by defendant, entitling him to get leave to appear and defend the suit unconditionally---Trial Court, though noted down facts but did not consider such aspect and as such order passed by Trial Court granting conditional leave suffered from jurisdictional defect, therefore, declining extension of time for submission of surety bond was also legally not sustainable---High Court in exercise of revisional jurisdiction, set aside order passed by Trial Court and application for leave to appear and defend the suit was allowed unconditionally---Revision was allowed in circumstances.

Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; Crystal Seeds (Pvt.) Ltd., Lahore through Chief Executive and 2 others v. Crescent Commercial Bank Limited Lahore through Branch Manager 2007 CLD 229 and Sarwar Khan v. Mehran Bibi and others 2005 SCMR 521 ref.

Muhammad Safdar Shaheen Pirzada for Petitioner.

Nisar Ahmad Kausar for Respondent.

2012 C L C 1565

[Lahore]

Before Altaf Ibrahim Qureshi and Sardar Tariq Masood, JJ

GHULAM MUSTAFA----Appellant

Versus

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

I.C.A. No.122 of 2010 in Writ Petition No.2427 of 2010, decided on 4th April, 2012.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---lntra-court appeal---Policy matter---Constitutional jurisdiction of High Court---Scope---Appellant was aggrieved of the policy introduced by Punjab Government, whereby subjects of science and mathematics were to be taught in English language and Government schools were converted into English medium schools---Validity---Policy in question was introduced for enhancement of standard of education as compared to private institutions, which could not be interfered with under Constitutional jurisdiction, as the same was a policy decision of Government---In order to maintain balance in every sphere of life, Legislator was to legislate; Executive to implement and Judiciary to interpret the law and Constitution---High Court could not assume the role of policy maker or that of a law maker---Single Judge of High Court did not commit any illegality while dismissing the petition filed by appellant---Intra-court appeal was dismissed in circumstances.

Rana Muhammad Aslam Javed for Appellant.

Mirza Muhammad Saleem Baig, Addl. A.-G., Arshad Ali Qureshi, Assistant Director (Litigation), Office of EDO (Edu.), Mu!tan for Respondents

2012 C L C 1571

[Lahore]

Before Ijaz Ahmad and Sagheer Ahmad Qadri, JJ

Khawaja JAVED AKHTAR and others----Appellants

Versus

D.G. MINES AND MINERALS PUNJAB, LAHORE and others----Respondents

Intra-Court Appeals Nos.5 and 6 of 2010, decided on 24th May, 2011.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal--- Factual controversy--- Mining contract--- Extension---Constitutional jurisdiction of High Court---Scope---Dispute related to mining and quarrying lease, which lease was cancelled by the authorities to save the area---Validity---Contract of three years in favour of appellants had already come to an end and extension granted was withdrawn---No contract existed in favour of appellants, who had no locus standi to file constitutional petition---Single Judge of High Court had rightly held that it was not a matter of mere interpretation of contract, there were disputed questions of facts which the parties controverted and needed to be resolved---High Court in exercise of Constitutional jurisdiction, could not resolve disputed questions of fact---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed, in circumstances.

Muhammad Akram Shaikh and Tanveer Iqbal Khan for Appellants.

Sadaqat Ali Khan, A.A.-G. with Muhammad Aslam, Director Mines and Minerals Department, Punjab, Lahore and Muhammad Zafar Javaid, Deputy Director, Mines and Mineral, Rawalpindi Region for Respondents.

Date of hearing: 19th May, 2011.

2012 C L C 1581

[Lahore]

Before Shahid Waheed, J

SAKHI MUHAMMAD through L.Rs. and 9 others----Petitioners

Versus

ASHRAF ALI and 3 others----Respondents

Civil Revision No.452-D of 2005, heard on 14th May, 2012.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17 & Schedule, Appendix "A" Serial Nos.47 and 48---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Amendment of pleadings---Principles---Suit filed by plaintiffs was dismissed by Trial Court and during pendency of appeal before Lower Appellate Court plaintiff filed application to amend prayer---Lower Appellate Court dismissed application and appeal---Validity---Application for amendment of plaint so as to add only prayer for a decree of specific performance of agreement could not be allowed as plaintiffs in the suit did not assert mandatory fact of readiness and willingness as per forms of pleadings prescribed in the Schedule, Appendix "A" at serial Nos.4 and 48, C.P.C. and agreement to sell remained unproved during evidence---Proposed amendment only in prayer without bringing any change in body of plaint showed mala fide of plaintiffs so as to deprive defendants of their property which they purchased for valuable consideration, as such proposed amendment in prayer was inconsistent with contents of plaint and plaintiffs could not be allowed to substitute cause of action so as to prejudice valuable rights of defendants who were bona fide purchasers of suit property---High Court declined to interfere in judgments passed by Courts below and application under O.V1, R.17, C.P.C. was rightly dismissed---Revision was dismissed in circumstances.

Beli Ram and Brothers v. Ram Lal and others AIR 1925 Lah. 644; Lal Chand v. Sohan Lal and others AIR 1938 Lah. 220; Abdul Sattar v. Muhammad Khan and others 1981 CLC 791; Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623; Sakhi Muhammad v. Munshi Khan PLD 1992 SC 256; Memon Educational Board v. Munawwar Hussain 2001 YLR 1241; Messrs Pakistan Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD 1563; Mst. Mariam and 5 others v. Haji Ali and 3 others PLD 1985 Kar. 705; Dwipal Chandra Bardhan v. Jiban Debi and others AIR 1931 Cal. 574; Shyam Lal Bhat v. Ahmat Bhat and others AIR 1957 J&K 23; Province of the Punjab through Collector District Khushab Joharabad and others v. Haji Yaqub Khan and others 2007 SCMR 544; Fazal Begum and another v. Municipal Corporation, Lahore and 5 others 1983 CLC 1643 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Sahibzada Mehboob Ali Khan for Petitioners.

Naved Ahmad Khan and Ch. Munir Alam for Respondents.

Date of hearing: 14th May, 2012.

2012 C L C 1597

[Lahore]

Before Rauf Ahmad Shaikh, J

Mst. NASEEM AKHTAR----Petitioner

Versus

SHAHZAD MASIH and 2 others----Respondents

T.A. No.438/C of 2011, decided on 20th June, 2012.

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

----S. 25-A---West Pakistan Family Courts Rules 1965, R.5---Divorce Act (IV of 1869) S.3(2)---Wife sought transfer of her petition for dissolution of marriage filed under the provisions of the Divorce Act, 1869 from place "S" to place "R"; where her suit for recovery of maintenance allowance and dowry was pending---Contention of the wife was that she is living and earning her livelihood at place "R"---Validity---Suit for recovery of maintenance allowance could be filed in the court in the territorial jurisdiction of which the cause of action wholly or partly arose or where the parties resided or lastly resided together---Original School Certificate of the son of the parties showed that he was studying at place "R"---Contention of the wife that she was living at place "R" was not without force in circumstances, and non-payment of maintenance gave rise to cause of action and from such angle, the Family Court at place "R" was competent to hear the suit --- Convenience of females was to be kept in view in matrimonial disputes and family disputes as they stood on weaker footings in the society---While deciding application under section 25A of the West Pakistan Family Courts Act, 1964 the realities of life must be kept in view---In order to avoid conflicting verdicts, the matters between the parties be heard by one court---Application for transfer of petition to place "R" was allowed, in circumstances.

1990 MLD 2089; 1999 MLD 3401; 1999 CLC 1863 and PLD 1967 Lah. 731 ref.

Rana Khalid Ishaq for Petitioner.

Agha Muhammad Arshad Sabir for Respondent No.1.

2012 C L C 1613

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Messrs K.A. GASES (PVT.) LTD. Through Managing Director----Petitioner

Versus

Messrs PAK ARAB FERTILIZERS LIMITED through Managing Director----Respondent

Civil Revision No.849 of 2010, decided on 7th June, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908) O. XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Plaintiff company was engaged in business of carbon dioxide gas and defendant company was the supplier of raw material---Grievance of plaintiff was that defendant had raised demand in violation of terms and conditions of agreement executed between the parties---Validity---Execution of agreement was admitted between the parties and parties were bound to comply with terms and conditions of that agreement-- Plaintiff was ready to honour terms and conditions and even proposal made by High Court in order to run its business but mala fide of defendant was apparent on the face of record that as it had itself entered into the business of supply of carbon dioxide and then bent upon to destroy business of plaintiff by imposing conditions which were prima facie alien to contractual relationship between the parties---Dispute between the parties regarding interpretation of certain conditions of agreement could only be resolved after recording of evidence---Prima facie plaintiff had a good arguable case---As ingredients of prima facie case and irreparable loss were in favour of plaintiff, thus balance of convenience automatically tilted in plaintiffs favour---High. Court in exercise of revisional jurisdiction, set aside the order passed by Lower Appellate Court and restored interim injunction granted by Trial Court in favour of plaintiff---Revision was allowed in circumstances.

Mehmood Ashraf Khan for Petitioner.

Malik M. Rafique Rajwana for Respondents.

2012 C L C 1634

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. ASHRAF BIBI----Petitioner

Versus

MUHAMMAD AMIN and 14 others----Respondents

Civil Revision No.1350 of 1991, decided on 13th June, 2011.

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

----S. 115---Revision---Maintainability---Concurrent findings of Courts below holding fraud alleged not to be proved---High Court could not interfere in such findings in revision.

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

----Art. 117---Mutation alleged to have been got attested by defendant fraudulently---Burden of proof---Defendant for being beneficiary of suit mutation would be bound to prove genuineness of transaction.

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

----S. 115---Revision---Delay, condonation of---Impugned judgment was passed on 24-1-1990, application for its certified copy was made on 25-1-1990, which was delivered on 22-2-1990, but revision was filed on 14-5-1991---Validity---Revision remained pending for about ten years without any objection on part of respondent---Order of High Court dismissing revision as withdrawn was set aside by Supreme Court---Revision after remand remained pending up to 19-1-2006, when respondent raised objection of limitation, which he had not raised earlier before High Court and Supreme Court---Respondent had never been serious about objection of limitation, which he was bound to raise at the time of entertaining revision petition but had failed to do so---High Court in exercise of suo motu revisional jurisdiction could correct acts of courts below---High Court overruled respondent's objection qua limitation and condoned such, delay in circumstances.

Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; Mst. Najma Begum v. Rehmat Ali and 19 others 2004 MILD 620; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385; Manzoor Ahmad v. Haji Hashmat Ali through Legal Heirs 2000 CLC 419; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Siddiq and others v. Muhammad Sharif and others 1992 SCMR 2260, Raghab Hussain and 5 others v. Muzaffar Hussain and 6 others 2005 YLR 2605; Ijaz Ahmad and others v. Akbar Ali and 6 others 2002 YLR 2086; Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230; Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995 SCMR 868; Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Fazal Din v. Rehabilitation Commissioner (Land) and others 1988 MLD 2401; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Assistant Administrator, Evacuee Trust Property v. Muhammad Ayyub and others 2003 SCMR 841 ref.

Government of N.-W.F.P through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 rel.

Mian Subah Sadiq Klasson for Petitioner.

Mian Muhammad Hanif for Respondents Nos.1 to 4.

Ch. Muhammad Amin Javed for Respondents Nos.5 to 7.

Date of hearing: 30th May, 2011.

2012 C L C 1651

[Lahore]

Before Amin-ud-Din Khan, J

Mst. MUGHLANI BIBI and others----Petitioners

Versus

MUHAMMAD MANSHA and others----Respondents

Civil Revision No.559-D of 2005/BWP, heard on 28th June, 2011.

(a) Islamic Law---

----Gift/Tamleek through mutation---Proof---Beneficiary of tamleek transaction would be bound to prove first event of tamleek prior to attestation of its mutation---Mere attestation of such mutation would not be sufficient.

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

----S. 42---Gift through mutation by person of unsound mind, deaf and dumb---Attestation of---Scope---Attesting Officer would be bound to refer such matter to court of competent jurisdiction for getting permission with regard to transfer of property by such person.

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

----S. 42---Mutation---Evidentiary value---Mutation itself would not create or confer any right, but same being an instrument to incorporate in record of right an event recorded therein.

Ahmad Mansoor Chishti for Petitioners.

Nadeem Iqbal Chaudhary for Respondents.

Date of hearing: 28th June, 2011.

2012 C L C 1663

[Lahore]

Before Shahid Waheed, J

MUHAMMAD AMEER and others----Appellants

Versus

Mst. FAJJAN and others----Respondents

Regular Second Appeal No.46 of 2009, heard on 12th June, 2012.

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

----S. 24-A---Speaking order---Scope---Judicial order must be a speaking order maintaining by itself that court has made an endeavour to sift grains from chaff for resolution of issues involved for their proper adjudication---Ultimate result may be reached at by diligent effort but if final order does not bear imprint of that effort and in contrary discloses arbitrariness of thought and action, such justice has neither been done nor seems to have been done is inescapable.

Muhammad Akhtar v. The State PLD 1957 SC 297; Mollah Ejahar Ali v. Government of Pakistan and others 20 DLR 221=PLD 1970 SC 173; Gouranga Mohan Sikdar v. The Controller of Imports and Exports and 2 others PLD 1970 SC 158 and Ms. Clare Benedicta Conville and others v. Mst. Sabahat Idrees and others 2009 SCMR 851 ref.

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

----Ss. 96, 100 & O. XLI, R.31---Specific Relief Act (I of 1877), S.42---Suit for declaration---Judgment of Appellate Court---Necessary ingredients---Suit was decreed by Trial Court and Lower Appellate Court in favour of plaintiff---Plea raised by defendant was that Lower Appellate Court did not consider evidence on record and did not come to independent conclusions---Validity---Court of first appeal was duty bound to deal with all issues, as first appeal was a valuable right in which both questions of law and facts were to be considered and judgment in first appeal was to address itself to all issues of law and facts and decide it by giving discrete reasoning---Appeal under section 96 C.P.C. was a substantive right conferred by statute and it was continuation of proceedings, which had come entirely upon first appellate court, carrying with it a right of rehearing of law and facts as well as reviewing pleadings and evidences afresh---Duty was cast upon Lower Appellate Court to re-examine pleadings and evidence on record and then determine relevant issues---Lower Appellate Court had to marshal facts and evidence in both cases of reversal as well as affirmance---Where judgment of Lower Appellate Court was of reversal the Appellate Court should consider all relevant and material evidence on record and give reasons for its decision---Where judgment was of affirmance it was not necessary that every piece of evidence was considered once again but there must be sufficient discussion to show that the court had reassessed facts and circumstances of the case---High Court, in the present case, declined to reappraise evidence and come to his own conclusion, as it was for Lower Appellate Court to give its finding after a proper appreciation of evidence---Judgment and decree passed by Lower Appellate Court was set aside and appeal was remanded for decision afresh in accordance with law.

Devram Bilve v. Indumati (2000) 10 SCC 540; Shiv Shati Cooperative Housing Society, Nagpur v. Swaraj Developers and others (2003) 6 SCC 659; Ramchandra Sakharan Mahajan v. Damodar Trimbak Tanksale (dead) and others (2007) 6 SCC 737; Haryana State Industrial Development Corporation v. Cork Manufacturing Co. (2007) 8 SCC 120; Messrs Farooq International v. The Chief Controller of Imports and Exports and 4 others 1985 CLC 1780; Allah Bakhsh and others v. Noor Khan and others 1980 CLC 498; Mst. Inayat Bibi v. Nazir Ahmad and others 1991 CLC 1660; Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499; Trustees of the Port of Karachi and others v. Faqir Muhammad 1992 MLD 1782; Imam Dino and others v. Nawaz Ali Shah 2003 CLC 1889; Abdur Razzaq Sabar Khan 2004 CLC 950; Mst. Sabahat Idrees and another v. Ms. Clare Benedicta Conville and 4 others 2007 MLD 1732; Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795; Sailajananda Pandey v. Lakhichand Sao AIR 1951 Pat. 502; Ujagar Singh and others v. Gopal Singh and others AIR 1952 Pepsu 57; Mst. Anita M. Harretto v. Abdul Wahid AIR 1985 Bom. 98; Ram Lal Dutt Sarkar v. Dhirendra Nath Roy and others AIR 1943 PC 24; Mubarak Hussain v. Syed Shah Hamid Hussain AIR 1916 Pat. 262; Anbor Ali v. Nichar Ali AIR 1950 Assam 79; Mahabir Prasad v. Mahadeo Prasad and others AIR 1916 All. 260; Balwant Singh v. Baldev Singh and others AIR 1921 Lah. 119; Mahant Gyan Prakash Das v. Mt. Dakhan Kuar and others AIR 1938 Pat. 69 and Bhagwan Das and others Shamsher Singh AIR 1918 Lah. 135 rel.

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

----O. XLI, R.31---Judgment in appeal---Principles to be followed by appellate court enumerated---Judgment which was not "proper judgment", identified.

According to O.XLI, R.31, C.P.C., appellate Court was required to follow the following principles:---

(i) to state in its judgment the points that arise for determination;

(ii) in order to understand and note what the points for determination relate to and why they were raised, it is absolutely essential to mention the facts of the case. It is not sufficient to state that the facts are given in the judgment of the trial Court;

(iii) the points for determination must cover all the important questions involved in the case;

(iv) the points for determination must not be general and vague.

In view of afore-stated requirements of law the following are not the proper judgments:---

(a) a mere statement that a point is proved or not proved;

(b) that counsel admits that certain evidence is the best evidence;

(c) that the arguments of plaintiff's counsel represent the correct view of the case;

(d) that the point is absurd or ridiculous or worthless;

(e) that the judge is in agreement with the court below;

(f) judgment based on mere conjunctures and presumptions;

(g) judgment based on evidence not legally admitted; and

(h) judgment not based on independent application of mind to the facts and evidence of the case.

Devram Bilve v. Indumati (2000) 10 SCC 540; Shiv Shati Cooperative Housing Society, Nagpur v. Swaraj Developers and others (2003) 6 SCC 659; Ramchandra Sakharan Mahajan v. Damodar Trimbak Tanksale (dead) and others (2007) 6 SCC 737; Haryana State Industrial Development Corporation v. Cork Manufacturing Co. (2007) 8 SCC 120; Messrs Farooq International v. The Chief Controller of Imports and Exports and 4 others 1985 CLC 1780; Allah Bakhsh and others v. Noor Khan and others 1980 CLC 498; Mst. Inayat Bibi v. Nazir Ahmad and others 1991 CLC 1660; Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499; Trustees of the Port of Karachi and others v. Faqir Muhammad 1992 MLD 1782; Imam Dino and others v. Nawaz Ali Shah 2003 CLC 1889; Abdur Razzaq Sabar Khan 2004 CLC 950; Mst. Sabahat Idrees and another v. Ms. Clare Benedicta Conville and 4 others 2007 MLD 1732; Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795; Sailajananda Pandey v. Lakhichand Sao AIR 1951 Pat. 502; Ujagar Singh and others v. Gopal Singh and others AIR 1952 Pepsu 57; Mst. Anita M. Harretto v. Abdul Waihd AIR 1985 Bom. 98; Ram Lal Dutt Sarkar v. Dhirendra Watii Roy and others AIR 1943 PC 24; Mubarak Hussain v. Syed Shah Hamid Hussain AIR 1916 Pat. 262; Anbor Ali v. Nichar AIR 1950 Assam 79; Mahabir Prasad v. Mawdeo Prasad and others AIR 1916 All. 260; Balwant Singh v. Baldev Singh and others AIR 1921 Lah. 119; Mahant Gyan Prakash Das v. Mt. Dakhan Kuar and others AIR 1938 Pat. 69 and Bhagwan Das and others Shamsher Singh AIR 1918 Lah. 135 rel.

(d) Constitution of Pakistan---

----Art. 10-A---Fair trial, opportunity of---Judicial proceedings---Scope---Judge should accord fair and proper hearing to person sought to be affected by his orders and give sufficiently clear and explicit reasons in support of orders made by him---Such right has become a fundamental right under Art.10A of the Constitution.

Lahore Development Authority, Lahore and others 2003 YLR 1579 rel.

(e) Administration of justice---

----Judicial power, exercise of---Scope---When judicial power is exercised by an authority normally performing executive or administrative functions, superior courts insist upon disclosure of reasons in support of the order on two grounds: one that party aggrieved in proceedings before court has opportunity to demonstrate that reasons which persuaded authority to reject his case were erroneous; the order that obligations to record reasons operates as deterrent against possible arbitrary action by executive authority with judicial power---Such principle is also applicable to judicial officers who are trained to look at things objectively and therefore, supposed to excel in such trait of character in view of sacred and sensitive nature of his duties.

Malik Javed Akhtar Wains for Appellants.

Sagheer Ahmad Bhatti for Respondent No.1.

Malik Bashir Lakhesir, A.A.-G. for Respondent No.2.

Nemo for Respondents Nos.3(a) to 3(e).

2012 C L C 1679

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shahid Waheed, JJ

MUHAMMAD HUSSAIN----Appellant

Versus

Malik ALLAH YAR KHAN----Respondent

Regular First Appeal No.418 of 2006, decided on 24th April, 2012.

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

----O. XXXVII, Rr.1 & 2---Suit for recovery of money---Pro note, consideration of---Proof---Suit filed by plaintiff on the basis of pro note was dismissed by Trial Court---Plaintiff did not produce any witness to prove payment of consideration amount---Pro note was proved to be without consideration and no decree on the basis of such pro note could be passed, as plaintiff had no cause of action against defendant---High Court declined to interfere in judgment passed by Trial Court---Appeal was dismissed in circumstances.

Pakistan v. Abdul Ghani PLD 1964 SC 68; Messrs Ch. Brothers Ltd. v. Jaranwala Central Cooperative Bank Ltd and others 1968 SCMR 804 and Amir Shah v. Ziarat Gul 1998 SCMR 593 ref.

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

----O. XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), S.13---Stamp Act (II of 1899), S.35 & Art.49 [as amended by Punjab Finance Act (VI of 1995)]---Negotiable instrument---Deficient stamp---Admissibility in evidence---Principle---Pro note is liable to be stamped under Article 49 of Stamp Act, 1899 and by virtue of amendment made by Punjab Finance Act, 1995, stamp of an amount of Rs.100/- is payable if amount exceeds Rs.500,000/----Provision of proviso (a) to section 35 of Stamp Act, 1899, is curative and covers situation according to which if any instrument is not stamped or insufficiently stamped would be admitted in evidence on payment of penalty---Payment of stamp duty is a matter between a citizen and the State and an adversary cannot be permitted to capitalize on a technicality which otherwise is not fatal to suit.

Muhammad Akram v. Muhammad Saleem PLD 1971 SC 561; Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279; Rehmat Ali v. Wahid Bux NLR 1979 Civil SC 809 and Sirbaland v. Allah Loke and others 1996 SCMR 575 ref.

Amir Abdullah Khan Niazi for Appellant.

Nemo for Respondent.

Date of hearing: 24th April, 2012.

2012 C L C 1707

[Lahore]

Before Ijaz Ahmad, J

Mian MUHAMMAD SHER and 3 others----Petitioners

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 12 others----Respondents

Writ Petition No.10581 of 2011, decided on 21st March, 2012.

Land Acquisition Act (I of 1894)---

----S. 4---West Pakistan Land Revenue Act (XVII of 1967), S.163---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Review jurisdiction under S.163, West Pakistan Land Revenue Act, 1967---Scope---Petitioners had become owners of land on the basis of agreement to sell dated 3-9-1973 and decree dated 15-10-1980 was passed in their favour---All rights enjoyed by judgment-debtors devolved on petitioners as decree-holders from the date of agreement to sell---Revenue authorities, relying on notification for acquisition of land declined to issue alternative land to petitioners which orders were maintained by appellate authority and Board of Revenue---Validity---Mere issuance of notification under section 4 of Land Acquisition Act, 1894, did not divest original owners, as the notification simply expressed need of land and had specified public purpose---Land was not vested in Government, unless possession was taken over---Power of review provided under section 163 of West Pakistan Land Revenue Act, 1967, was limited in scope and could only be exercised on discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of revenue officer or could not be produced at the time when order was passed---No such new piece of evidence or matter had been hinted at in the order passed by revenue authorities---Order under review was a deliberate decision with application of judicial mind and circumstances justifying review were not available that too after lapse of 25 years---Order passed by Board of Revenue was not speaking order and did not confirm to the standard prescribed by law---Respondents were allottees under temporary scheme whereas petitioners were allottees under permanent scheme and enjoyed precedence over the respondents---High Court in exercise of Constitutional jurisdiction set aside the orders passed by revenue authorities---Petition was allowed in circumstances.

Mst. Daulat Bibi (represented by Legal Heirs) and 4 others v. Multan Improvement Trust, Multan PLD 1977 Lah. 665 and Haq Nawaz Khan and others v. Rab Nawaz and others 1992 SCMR 993 rel.

Muhammad Ilyas Baig v. Government of the Punjab 2010 CLC 1432; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Ahmad and 5 others v. The State 2002 SCMR 1611; Ahmad and 5 others v. The State 2002 SCMR 1611; Nadeem Butt v. Special Court Constituted under Anti-Terrorism Act, 1997 2000 SCMR 1086 and Abdul Khaliq and 8 others v. Assistant Collector/Notified Officer, District Bakhar and 11 others PLD 2004 Lah. 521 ref.

Malik Noor Muhammad Awan for Petitioners.

Malik Munsaf Awan for Respondents Nos.4 to 13.

WaqarAhmad Chaudhry, A.A.-G.

2012 C L C 1729

[Lahore]

Before Shahid Waheed, J

Mian AURANGZEB NOOR----Petitioner

versus

RENT CONTROLLER, LAHORE and another----Respondents

Writ Petition No.23023 of 2010, heard on 10th May, 2012.

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

----S. 13(2)---Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment---Tenant (petitioner) assailed order of Rent Controller, whereby, his defence was struck off due to non-production of evidence---Validity---Tenant sought repeated adjournments for cross-examination of witnesses and adopted dilatory tactics such as change of counsel and filing of miscellaneous applications---Tenant, despite numerous opportunities to produce evidence and in spite of two last warnings by the Rent Controller, did not produce evidence and the Rent Controller struck off defence of the tenant for non-production of evidence---"Reasonable opportunities" were, therefore, allowed to the tenant in terms of the provisions of section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the Rent Controller could not wait for an indefinite period for the tenant to produce evidence more specifically when dispute between the landlord and tenant was required to be settled not only quickly but also in accordance with guidelines provided by the Supreme Court for curtailing the delay in the disposal of such cases---High Court observed that although the Rent Controller was not bound to follow the C.P.C., yet he substantially complied with the provisions of O.XVII, Rule 3 of the C.P.C. as the tenant despite warnings and a fine, did not produce evidence ---Constitutional petition was dismissed.

Muhammad Aslam and others v. Muhammad Yousaf 1980 CLC 467; Messrs Nazir Muhammad and Brothers and others v. Islamic Republic of Pakistan 1990 CLC 729; Munawar Hussain v Additional District Judge Jehlum and 3 others 1998 SCMR 1067 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition against interim order---Maintainability---When a statute did not provide an appeal against an interlocutory/interim order then the same could not be challenged by way of constitutional petition as allowing such an order to be impugned through a constitutional petition would amount to negating the provisions of the statute which did not provide for an appeal against an interlocutory order---Court would not act in a manner by which the object of a statute was defeated and the same was rendered nugatory---Remedy which was not directly available could not be sought through indirect means---Statute excluding a right of appeal from interim orders could not by bypassed by bringing under attack such interim orders in the constitutional jurisdiction of High Court---Party affected by such an order had to wait till it matured into a final order and then could attack the same in the proper exclusive forum created for the purpose of examining such orders---Where a statute, under which the impugned order was made, itself provided a remedy, High Court should be loathed to bypass the Statute and embark upon a judicial review---Argument that the petitioner in a constitutional petitioner had no other adequate efficacious remedy than to assail the validity of interlocutory/ interim order had not force---Constitutional petition was dismissed.

Syed Saghir Ali Naqvi v. Province of Sindh and others 1986 SCMR 1165; Muhammad Iftikhar Muhammad v. Javed Muhammad and 3 others 1998 SCMR 328 and Muhammad Saeed v. Mst. Saratual Fatima and another PLD 1978 Lah. 1459 rel.

Muhammad Saeed v. Mst. Saratual Fatima and another PLD 1978 Lah. 1459 quoted

(c) Constitution of Pakistan---

---Art. 199---Constitutional petition---Laches---Aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within "reasonable time" and "reasonable time" had been interpreted as 90 days.

Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and others PLD 2011 SC 676 rel.

M. Javaid Iqbal Qureshi for Petitioner.

Muhammad Younas Ch. for Respondent No.2.

Date of hearing: 10th May, 2012.

2012 C L C 1776

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

NASIM BEGUM----Petitioner

versus

FARAH ABSAR and 7 others----Respondents

Civil Revision No.801 of 2011, heard on 18th July, 2012.

(a) Pleadings---

----Amendment of pleadings---Scope---Although courts were supposed to be liberal in granting amendments in pleadings but such liberty was not to be stretched to such an extent that parties were allowed to adopt a complete U-turn from what had originally pleaded; particularly in absence of any justifiable reason for getting the original pleadings amended---No amendment prejudicial to the interest of a party who, by means of the original pleadings, had accrued some rights; could be allowed under the law---Party to a proceedings, if once taken a particular stand, it was estopped to effect a change in the same and admissions made in pleadings could not be permitted to be retracted subsequently.

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

----Ss. 384 & 383--- Succession certificate--- Revision---Maintainability---Application of the respondent-Bank for amendment in its written reply in relation to the Bank Account of the deceased was allowed by the Trial Court---Said order of Trial Court was assailed by the petitioners---Contention of the respondent Bank was that revision against said order was not maintainable---Validity---Proceedings under the Succession Act, 1925, even if carried out by Civil Court, were always deemed to be proceedings before the District Judge---Right of appeal was available under section 384(1) of the Succession Act, 1925 in cases of granting , refusing or revoking of a certificate; whereas by virtue of section 383(3) the High Court was provided the right to entertain revision from an order of District Judge in cases other than the ones mentioned in section 384(1), Succession Act, 1925---Revision was therefore, competent.

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

----S. 383(3)---Revision---Jurisdiction of the High Court---Scope---High Court had inherent powers to look into and call for the record of any case which had been decided by any court subordinate to the High Court in which no appeal lay and if such subordinate court appeared to have exercised a jurisdiction not vested in it by law or to have acted in exercise of its jurisdiction illegally or with material irregularity.

Ch. Imran Hassan Ali for Petitioner.

Muhammad Amin Jan and Malik Abdul Jalil for Respondents Nos.1 to 6.

Raja Tahir Mehmood for Respondent No.7.

2012 C L C 1798

[Lahore]

Before Ch. Muhammad Younis, J

Raja HABIB-UR-REHMAN----Appellant

versus

Malik ASAD MEHMOOD KHOKHAR----Respondent

Regular Second Appeal No.9 of 2011, decided on 16th July, 2012.

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

----S. 100 & O.VII, R.2---Second appeal---Scope---Concurrent findings of fact by two courts below---Suit for recovery of money was filed by plaintiff alleging that despite payment of money, defendant did not supply goods as per agreement---Suit filed by plaintiff was concurrently decreed in his favour by two courts below---Validity----Second appeal did not lie on a question of fact and High Court was bound by findings on questions arrived at by lower Courts---Findings of fact being supported by evidence on record the same could not be questioned before High Court---Trial Court as well as Lower Appellate Court had pointed out some material discrepancies and contradictions in evidence produced by defendant, which shattered veracity of his witnesses---Defendant failed to produce any receipt or other document to establish delivery of goods to plaintiff---Judgments and decrees passed by two courts below did not suffer from any legal infirmity or illegality and none of the grounds mentioned in section 100 C.P.C. was available to defendant to challenge decree and judgment passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Hidayatullah and 7 others v. The State and others 1994 PCr.LJ 20; Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Kar. 17; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Ejaz Mehmood alias Nanna v. The State 1992 SCMR 305; Ch. Muhammad Yagoob and others v. The State and others 1992 SCMR 1983 and Ghulam Mohayyuddin and another v. Sher Khan and 4 others 1970 SCMR 200 ref.

(b) Administration of justice---

----Evidence and precedents of superior courts---Applicability---Principles laid down by superior courts have to be followed in letter and spirit in the light of facts and circumstances of each case---Contradictions on material points in testimony of witnesses cannot be ignored altogether merely by saying that the same were result of slip of tongue because in that eventuality evidence would have to be discarded and cannot form basis of decision.

Maqbool Hussain Gill for Appellant.

Nadeem Ahmad Shah for Respondent.

Date of hearing: 16th July, 2012.

2012 C L C 1846

[Lahore]

Before Umar Ata Bandial and Ayesha A. Malik, JJ

MUHAMMAD YOUNAS----Appellant

versus

WARIS BAIG and 2 others----Respondents

Regular First Appeal No.585 of 2009, heard on 31st May, 2012.

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

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.VI, R.4---Lease of land---Suit for possession, declaration and injunction---Fraud, plea of---Details of fraud, non-mentioning of---Plaintiff claimed to be owner of suit-land and alleged that he did not sell the land to defendant who committed fraud and cheating with him---Suit was decreed by Trial Court in favour of plaintiff---Validity---No detail of fraud and no date as to when he gained knowledge of fraud was on record---Plaintiff failed to explain why defendant had been depositing rent with authorities since year, 2001---Plea of plaintiff that lease was non-transferable was contrary to lease agreement, which allowed a transfer of lease hold rights subject to permission by the authorities---Basis of case of plaintiff was not in accordance with lease agreement---Plaintiff failed to prove his case of fraud and if no case of fraud was established then case of plaintiff on forgery also failed---Even though plaintiff denied signature on documents in question, he did not justify deposit of transfer fee, receipt of partial payment, refund of security deposit or the fact that defendant had deposited rent for five years---Plaintiff failed to make out case of fraud and as such was not entitled to possession---High Court in exercise of appellate jurisdiction, set aside judgment and decree passed by Trial Court and suit filed by plaintiff was dismissed---Appeal was allowed in circumstances.

2007 SCMR 1719; 2007 SCMR 1884; PLD 1971 SC 838; PLD 1989 SC 335 and Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703 ref.

(b) Evidence---

----Facts, proof of---Principle---Evidence must relate to facts pleaded by a party as its purpose is to prove that fact---Evidence makes existence of fact or its non-existence more probable or less probable---Weightage given to evidence is based on its strength to prove fact or set of facts.

Nadeem-ud-Din Malik and Hamid Khan for Appellants.

Sharjeel Adnan Sheikh for Respondent No.1.

Sardar M.S. Tahir for Respondent No.3.

Date of hearing: 31st May, 2012.

2012 C L C 1854

[Lahore]

Before Muhammad Khalid Mehmood Khan and Muhammad Ameer Bhatti, JJ

Mian AFTAB A. SHEIKH and 2 others----Appellants

versus

MODARBA through Trust Management Services (Pvt.) Ltd. and another----Respondents

First Appeal from Order No.268 of 2010, decided on 5th March, 2012.

(a) Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980)---

----Ss. 2(h), 25, 26 & 28(2)---Civil Procedure Code (V of 1908), S.47---West Pakistan Land Revenue Act (XVII of 1967), Ss.4(2)(14), 79, 80 & 81---Money decree, execution of---Objection petition under S.47, C.P.C. by judgment-debtor that Modaraba Tribunal lacked jurisdiction to execute such decree as same was executable by Collector as arrears of land revenue---Validity---Land revenue being a kind of rent imposed by State and payable by landowner, which if remained unpaid would become arrears of land revenue---Procedure for recovery of land revenue was provided under Ss.79 to 81 of West Pakistan Land Revenue Act, 1967, but not for recovery of decretal amount---Impugned decretal amount was an outcome of dispute arisen out of a business agreement between two parties having no nexus with land---State was not party in such agreement, thus, decretal amount could not be termed as land revenue and judgment-debtor could take refuge under Ss.79 to 81 of the Act---Word "as" used in S.28(2) of Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 and omission of word "Collector" therefrom would denote that decretal amount would be recoverable by Tribunal as arrears of land revenue, but not by Collector---Tribunal could exercise all powers available to Collector under S.80 of the West Pakistan Land Revenue Act, 1967---Tribunal being a court had option to execute its decree either under O.XXXVII, C.P.C. or by adopting procedure under West Pakistan Land Revenue Act, 1967---Tribunal once having opted to execute its decree under C.P.C. could not adopt procedure under West Pakistan Land Revenue Act, 1967 and vice versa---Objection petition was dismissed in circumstances.

Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451; First Grindlays Modaraba v. Pakland Cement Ltd. and 2 others 2000 CLC 2017; Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2009 SC 249; Tahir Farooq v. Judge Family Court and others 2002 MLD 1758 and Enmay Zeb Publications (Pvt.) through Director-General v. Sindh Labour Appellate Tribunal through Chairman and 2 others (2001 SCMR 565 ref.

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

----Preamble, Ss. 1 & 4---Application of special statute to Civil Procedure Code, 1908---Scope---Where special statute provided for application of C.P.C. without debarring specifically any provision thereof, then C.P.C. as a whole would become applicable thereto.

Muhammad Shahzad Shaukat and Barkat Arif Chaudhry for Appellants.

Muhammad Aqil Malik for Respondents.

Date of hearing: 13th February, 2012.

2012 C L C 1871

[Lahore]

Before Ch. Shahid Saeed, J

Syed RASHID ARSHAD----Petitioner

versus

FAZAL-E-AZEEM and 3 others----Respondents

Civil Revision No.1639-D of 1992, heard on 25th January, 2012.

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

----S. 42---Suit for declaration was dismissed concurrently---Contention of the plaintiff was that his attorney had fraudulently sold the land to the defendants---Validity---Neither party had denied that the suit-land was given to the plaintiff in lieu of his land in his village---Claim of the defendant was that the attorney of the plaintiff had sold the suit-land to the other defendant who had alienated the same to him whereas the plaintiff contended that the attorney had committed forgery in connivance with the defendants---Alleged attorney had denied that he had signed the alleged sale-deed and according to the record of the Development Authority the plaintiff was the owner of the suit-land; and that the onus to prove the sale shifted on the beneficiary and it became incumbent upon him to prove that he had purchased the property from its lawful owner against consideration---Other defendant who claimed to be a bona fide purchaser of suit property failed to make any effort to know as to who was the real owner of the property and he had neither produced the original sale-deeds or marginal witnesses; and as such did not appear to be a bona fide purchaser---Sale-deed allegedly made by the attorney was a result of fraud, and was invalid, as well as void ab initio---When basic sale-deed was void, the subsequent sale-deed would also be void as where the basic document was not proved, and declared null and void; the whole structure, whatsoever, built upon the same would automatically collapse---High Court set aside orders of the courts below and decreed the suit of the plaintiff---Revision was allowed, in circumstances.

(b) Sale-deed---

----Void deed---Proof---When basic sale-deed was void, the subsequent sale-deed would also be void as when the basic document was not proved, and declared null and void; the whole structure, whatsoever, built upon it would automatically collapse.

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

----Arts. 142 & 144---Specific Relief Act (I of 1877), S.42---Suit for declaration of title---Limitation---Limitation in the case of alleged fraud, would start from the date of knowledge---Cause of action accrued to the plaintiff in the year 1978 when he came to know about the alleged sale---Suit was filed on 4-6-1986 was in time and not barred by law.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Rehman and others v. Ghulam Muhammad through LRs and others 2010 SCMR 978 and Rahim Shah and another v. Din Muhammad through LRs and others 2006 YLR 2829 rel.

Muhammad Ali Lashari for Petitioner.

Ch. Khurshid Ahmed for Respondent No.3.

Date of Hearing: 25th January, 2012.

2012 C L C 1881

[Lahore]

Before Nasir Saeed Sheikh, J

SHAMIM ARA----Petitioner

versus

BAKHTAWAR GUL and 2 others----Respondents

Writ Petition No.9938 of 2012, decided on 19th April, 2002.

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

----S. 17---Civil Procedure Code (V of 1908), Preamble---Application for review/recall of order passed by Family Court---Maintainability---Provision of the West Pakistan Family Courts Act, 1964 nowhere provided for review or recall of order passed by the Family Court---Application for recall of order passed by the Family Court was not legally competent---Provisions of the Civil Procedure Code, 1908 had been specifically excluded from application to the proceedings under the West Pakistan Family Courts Act, 1964.

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

----S.5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance of minors was decreed concurrently---Enforcement of decree---Petitioner, the paternal grandmother of the minor, had stood surety for the judgment-debtor (her son) and contended that the said surety was limited to the amount which was due at the time of furnishing surety bond by her and that she should be released from any further liability---Validity---Petitioner had not produced all the orders referred to by the Appellate Court and that in order to save the skin of her son and for denying recovery of maintenance allowance in favour of the minor had sought recourse to different applications and proceedings which were repeatedly rejected by the courts bellow---Petitioner, without producing a copy of the judgment and decree passed in the matter by the Family Court, had sought the setting aside of the orders of the courts blow---Petitioner had not come to the court with clean hands---Surety bond executed by the petitioner was without any restrictions and covered the entire decretal amount recoverable from her son/judgment-debtor Constitutional petition was dismissed.

Shaw Wallace & Co. v. Sundar Singh AIR 1930 Lah. 575 and Jayappa Lokappa Narsinganawar v. Shivangouda Dyamangouda Patil AIR 1928 Bombay 42 distinguished.

Ch. Abdul Majeed for Petitioner.

2012 C L C 1900

[Lahore]

Before Shahid Waheed, J

Mian SHOAIB AKRAM----Petitioner

versus

JUDGE FAMILY COURT and 4 others----Respondents

Writ Petition No.9621 of 2012, decided on 17th April, 2012.

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

----S. 14(3)---Constitution of Pakistan, Art.199---Constitutional Jurisdiction---Scope---Constitutional petition did not lie against an interim order as under section 14(3) of the West Pakistan Family Court Act, 1964; no appeal or revision was competent against an interim order of the Family Court.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Principles---When a statute did not provide for an appeal against an interlocutory order, then the same could not be challenged by the way of a Constitutional petition as allowing such an order to be impugned by way of a Constitutional petition would amount to negating the provisions of the statute which did not provide for an appeal against an interlocutory order.

Syed Saghir Ahmed Naqvi v. Province of Sindh 1996 SCMR 1165 rel.

(c) Interpretation of Statutes---

----Court would not act in a manner by which the object of a statute was defeated and by which the same was rendered nugatory.

(d) Administration of justice---

----When no appeal was provided against an interlocutory order, then the same could only be challenged in the appeal to be filed against the final court judgment.

Muhammad Iftikhar Muhammad v. Javed Muhammad and 3 others 1998 SCMR 328 rel.

Ch. Saeed Sabir, Advocate.

2012 CLC 1951

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ILYAS----Petitioner

Versus

Mst. MUNIRI and another----Respondents

Civil Revision No.428 of 2010, heard on 25th June, 2012.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967) S. 42---Gift---Suit for declaration of title was decreed by Appellate Court---Contention of the defendants was that a valid gift in their favour was proved and mutation was attested in their favour and they were in possession of the suit property---Validity---One of the donees had admitted the claim of the plaintiff and there was no reason with the alleged doner lady (plaintiff) for transferring the suit property in favour of her brother and nephew when she was a widow and had seven sons---Scrutiny of evidence showed that it was an effort to grab the property of the plaintiff which was admittedly acquired by her through the inheritance from her father---When there were glaring discrepancies as well as major flaws in the process of the incorporation of the mutation, and its attestation, it had been rightly observed by the Appellate Court that all the proceedings were against the mandatory provisions of section 42 of the West Pakistan Land Revenue Act, 1967---Such violations were sufficient to hold that the impugned mutation did not create rights in favour of the defendants---Ingredients of gifts; "offer", "acceptance" and delivery of possession" were missing from the pleadings or evidence---Revision was dismissed.

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

----O. XLI, R.25---Non-framing of issues by Appellate Court---Effect---Framing or non-framing of issues by Appellate Court did not make any difference, when a party led its evidence; its case was in its mind---Parties, in the present case, had not claimed any prejudice by non-framing of proper issues by the Appellate Court and when the parties had led evidence to prove their pleadings, therefore, there was no need to frame further issue in the case and remand it.

Malik Noor Muhammad Awan for Petitioner.

Malik Amjad Pervaiz for Respondent.

Date of hearing: 25th June, 2012.

2012 C L C 1955

[Lahore]

Before lbad-ur-Rehman Lodhi, J

FAZAL DIN-Appellant

Versus

AMJAD ALI----Respondent

Second Appeal from Order No.23 of 2009, decided on 6th September, 2012.

Punjab Rented Premises Act (VII of 2009)--

----Ss. 13, 15, 19 & 28---Ejectment application---Allegation of default in payment of rent and damage to rented property---Not less than 52 documents and mostly receipts of rent showing deposit of rent, either directly to the landlord or through the process of deposit in the court, were placed by the tenant on record, but none of such receipt, had shown the payment of rent for alleged period (five months) for which default had been alleged---When the rent in question became due, there seemed to be no attempt on the part of the tenant to tender such rent by any substituted modes, either through money order or by depositing of the same before the court of Rent Controller---Landlord who appeared in the court, was subjected to lengthy cross-examination, but he was never confronted with the alleged practice of receiving rent periodically in lump sum after considerable gaps of time---Wilful default in payment of rent for period in question having been established on record, and there being no serious denial by the tenant with regard to the damage to the property, findings arrived at by the forums below, being justified, called for no interference---Appeal was dismissed.

Mehrban Ali v. Haji Muhammad Qasim PLD 1976 Lah. 1052 distinguished.

Malka Begum v. Mehr Ali Hashmi 1984 SCMR 755 and Mahmood Ahmed v. Muhammad Nawaz Ahmed, Advocate 1984 CLC 1067 rel.

Mian Abdul Aziz for Appellant. Zafar Ali Shah for Respondent.

Date of hearing: 6th September, 2012.

2012 C L C 1976

[Lahore]

Before Shahid Waheed, J

MUHAMMAD ANWAR and another----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH and 4 others----Respondents

Writ Petition No.22883 of 2012, decided on 17th September, 2012.

(a) Civil Procedure Code (V of 1.908)---

----0. VI R. 17---Specific Relief Act (I of 1877), S.42---Constitutional petition---Amendment in plaint---Suit for declaration of title---Plaintiff's application for amendment in plaint was allowed by Appellate Court---Contention of the defendant was that amendment sought could not be allowed as the same would change the nature of the suit and that after conclusion of evidence, amendment in plaint could not be allowed---Validity---Defendants did not resist amendment to the extent of correction of square number of suit property but only objected to the addition of prayer of possession in the prayer clause; which would neither change the nature of suit nor cause of action would be affected---Relief for possession was a consequential relief for a suit for declaration---Constitutional petition was dismissed.

Karamat Ali and another v. Muhammad Younas Haji and others PLD 1963 SC 191 and Mst. Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240 rel.

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

----S. 42---Civil Procedure Code (V of 1908), O. VI, R.17---Interpretation of S.42, Specific Relief Act, 1877---Suit for declaration---Amendment of plaint---Consequential relief of possession---Scope---Plaintiff's right to maintain a suit for declaratory decree was not affected by the fact that during pendency of the suit,i right to possession had also accrued to the plaintiffs---If original relief claimed becomes by reason of any subsequent change of circumstances, inappropriate, it was open for court to take notice of such events as they happened after the institution of suit and to mold its decree according to the circumstances as they stood at the time when the decree was made---Court was not obliged to dismiss a suit if it was bad under proviso to section 42 of the Specific Relief Act, 1877 as it did not authorize the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title, omits/fails to do so---Said section only forbade the court to make declaration, the prayer for which was not coupled with a prayer for consequential relief---Suit which was defective under section 42 should not, therefore, be dismissed for failure on part of the plaintiff to pray for further relief and Court should allow the plaintiff to amend the plaint; and it was a settled rule of practice not to dismiss suit for non-compliance of the provisions of section 42 of Specific Relief Act, 1877 but rather to allow the plaintiff to make necessary amendments.

Mian Niaz Hussain and another v. Imdad Hussain PLD 1965 Lah. 172 rel.

M. Anwar Sipra for Petitioners.

2012 C L C 1984

[Lahore]

Before Kh. Imtiaz Ahmad, J

Agha ALI ABDI QAZILBASH----Petitioner

Versus

JUDGE FAMILY COURT, RAWALPINDI and 2 others----Respondents

Writ Petition No.1649 of 2012, decided on 18th September, 2012.

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

----S. 25---West Pakistan Family Courts Act (XXXV of 1964) S.7(2)--- Constitution of Pakistan, Art.199---Constitutional petition---Suit for custody of minor---Contest between father and mother---Production of witnesses at later stage---Father's application for production of two - witnesses, a doctor and Hospital Administrator, was dismissed concurrently---Contention of father was that said witnesses would prove that the mother had Hepatitis-C, therefore, said witnesses were necessary for determining welfare of the minor---Validity---Guardian Court exercised parental jurisdiction and in order to determine welfare of minor, there was no prohibition upon the Guardian Court to collect all available evidence so that welfare of minor could be determined---Father had specifically alleged that mother was suffering from Hepatitis-C and the doctor and as well as Hospital Administrator were mentioned in the plaint and there was no denial that documents with regard to the disease were placed on record---Mother had denied having the disease and it would be in the interest of the minor that evidence required to be produced by the father come on record and value of such evidence would be determined by the Trial Court at the final hearing--Under section 7(2) of the West Pakistan Family Courts Act, 1964 it was specifically provided in the proviso that parties may, with the permission of the court call any witness at any later stage if the court considered such evidence expedient in the interest of justice---Such discretion on the courts should be liberally exercised in a beneficial manner---High Court set aside orders of courts below and accepted the application for production of witnesses---Constitutional petition was allowed, in circumstances.

Mst. Anwar Bibi v. Muhammad Akram and others 2012 MLD 614; Muhammad Akram v. Judge, Family Court and others 2009 CLC 269; Malik Irfan Ahmed Gheba v. Zubi Irfan and 4 others 2004 MLD 635 and Wajid Asgher Cheema v. Mst. Anshka and another PLD 2011 Lah. 534 rel.

Muhammad Faisal Butt for Petitioner.

Javed Akhtar Bhatti for Respondent.

2012 C L C 136

[Peshawar]

Before Nisar Hussain Khan, J

MUHAMMAD SHAFIQUE and 30 others----Petitioners

Versus

TAJ MUHAMMAD and 34 others----Respondents

Civil Revision No.826 of 2002 and Civil Revision No.31 of 2003, decided on 7th October, 2011.

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

----Ss. 8, 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), Ss.39 & 52---Suit for declaration, perpetual injunction and recovery of possession---Plaintiffs sought declaration to the effect that they were owners in possession of suit property on two grounds firstly of being "seri khor" and secondly that of adverse possession---Seri Khor---Concept---Validity---Possession of "seri Khor" was a permissive possession which could never be termed as adverse to the proprietary body of owner of the village---Background of the "seri Khor" was that village proprietary body used to reserve some part of common property for "Imam of the Mosque" for the religious service to be rendered---Imam of Mosque, apart from payment of grain and other kind, was given that piece of Seri land which was reserved for Mosque to meet his needs of daily life, out of sheer respect, so that he could not feel deprived of the requirements of daily needs---No rent or share of produce was received from the Imam---Produce of 'Seri' land was as remuneration of office of Imam and nothing more than that---As 'Seri Khor' were and used to be in permissive possession of the 'Seri Land', so they could not claim ownership of the property due to non-payment of rent or share of produce for any length of time, howlongsoever that could be---Plaintiffs, in the present case, had been holding permissive possession of the suit property as they were recorded in column of cultivation as 'tenant at will'; and as per entry of column of lagan, they had not been paying rent on account of enjoying the suit land as 'Seri'---Mere non-payment of rent for any length of time on the part of tenant, would not constitute his possession as adverse to the owner; specially, when non-payment of lagan was clearly mentioned as being 'Seri' which was also a permissive; and concession on the part of the owner---Such permission and concession, could not entitle the plaintiffs to claim ownership of the suit land on the basis of adverse possession---Appellate Court below had rightly set aside judgment and decree of Trial Court, whereby the Trial Court had decreed the suit of the plaintiff---No misreading or non-reading of evidence, any illegality or material irregularity, having been pointed out which could warrant interference in the findings of the Appellate Court below, which was based on sound reasons and proper appraisal of evidence, same could not be interfered with.

Azizur Rehman and another v. Atta Khan and 6 others PLD 1976 Pesh. 60 ref.

Hakeem Shah and 16 others v. Sawab Khan and 17 others PLD 2002 SC 200; Muhammad Salim Shah and 80 others v. Aziz-ur-Rehman Shah and 43 others PLD 2002 SC 280; PLD 1990 SC 629 and Mian Tayyib-ud-Din and others v. Muhammad Atiq through Legal Heirs and others PLD 2004 SC 321 rel.

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

----Ss. 39 & 52---Entries made in the revenue record---Presumption of correctness---Entry made in the revenue record during the settlement proceedings, would carry high degree of correctness, which would require strong evidence to cast aspersion and rebut the same; because the entries during settlement were made at the spot after thorough inquiry and verification of the locals---When entries of column of lagan were irreconcilable with column of cultivation, then later would prevail---Entries of ownership column would prevail against column of cultivation.

Abdul Sattar Khan for Petitioners.

A. Zakir Tareen and Miss Neelam A. Khan for Respondents.

Date of hearing: 3rd October, 2011.

2012 C L C 160

[Peshawar]

Before Shah Jehan Khan Yousafzai and Syed Sajjad Hassan Shah, JJ

MISKEEN AHMED----Petitioner

Versus

Mst. SAJIDA and 2 others----Respondents

Writ Petition No.1974 of 2010, decided on 12th September, 2011.

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

----S. 13---Decree for recovery of maintenance allowance, execution of---Powers of Family Court---Scope---Family Court could summon judgment-debtor to pay decretal amount and in case of his refusal could adopt coercive measures against him---Family Court would not be bound by any particular procedure, but could direct such recovery in a manner laid down in S. 13(3) of West Pakistan Family Courts Act, 1964---Principles.

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

----S. 5, Sched & S.13---Civil Procedure Code (V of 1908), O.XXI, R.33---General Clauses Act (X of 1897), S.20---Constitution of Pakistan, Art.199---Constitutional petition---Execution proceedings---Suit for recovery of past maintenance by wife and husband's prayer in written statement for restoration of conjugal rights decreed by Family Court by one and the same judgment---Applications by both parties for execution of their respective part of decree---Order of Family Court attaching decreed allowance till satisfaction of decree of conjugal rights by wife---Recalling of such attachment order by Family Court and directing husband to pay decreed allowance as same could not be attached to compel wife to obey decree of conjugal rights passed in his favour---Dismissal of husband's appeal by Appellate Court filed against recall order---Validity---Court in interest of justice could recall or modify a patently illegal and unlawful order---According to O.XXI, R.33, C.P.C., Executing Court while executing decree for conjugal rights could not attach decree passed for such allowance in favour of wife---Husband would be legally bound to maintain his wife, if her refusal to live with him was justified by reasonable cause---Wife in present case, had been found to be entitled to past maintenance as husband had contracted second marriage, thus, she (first wife) was legally justified to live apart and he was bound to pay her maintenance---Family Court had no jurisdiction to pass such attachment order and had power to vary, modify and rescind same---High Court dismissed constitutional petition in circumstances.

Mian Arif Mehmood v. Mst. Tanvir Fatima and another PLD 2004 Lah. 316 and 1990 CLC 297 rel.

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

----S. 20---Power of Court to recall or modify its order---Scope---Where an order was patently illegal and unlawful, then court in interest of justice could exercise such power.

Naqibullah Khan Khattak for Petitioner.

Rehmanullah Khan for Respondent No.1.

Date of hearing: 12th September, 2011.

2012 C L C 165

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. BIBI BAGHDIYA----Petitioner

Versus

ABDULLAH KHAN and others----Respondents

Civil Revision No.1248 of 2011 with Civil Miscellaneous No.1066 of 2011 decided on 23rd September, 2011.

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

----S. 42---Mutation---Evidentiary value---Mutation would not create or destroy title as same was maintained for keeping the record right.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Scope---Party desiring to produce such evidence could be permitted only for specific reasons mentioned in O.XLI, R.27, C.P.C.

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

-----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of courts below---High Court, in such jurisdiction, for being limited one, could not interfere with such findings in absence of illegality, irregularity or misreading or non-reading of evidence---Principles.

Ghulam Mohyuddin Malik for Petitioner.

2012 C L C 175

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD NAEEM----Petitioner

Versus

MUHAMMAD JAVED IQBAL----Respondent

Civil Revision No.121 of 2010, decided on 23rd June, 2011.

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

---O. XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), S.5 & Art.159---Suit for recovery of money lent on basis of pro note---Delay in filing leave application---Defendant's plea was that such application was within time as Trial Court was closed for nine days due to winter vacations---Order of Trial Court granting leave to defend suit subject to furnishing of surety bond by defendant for suit amount---Validity---Delay of each and every day had to be explained sufficiently, otherwise object of summary trial being speedy disposal of cases as envisaged under O.XXXVII, C.P.C., would be defeated---Failure to explain delay sufficiently would result in refusal of leave application---Defendant was served by Process Server on 16-12-2009, while winter vacations started on 24-12-2009---Leave application filed on 5-1-2010 had to be filed on 4-1-2010 i.e. within ten days of such service---Defendant could file leave application within seven days available to him before starting of winter vacations---Exclusion of nine days of winter vacations was doubtful as only Presiding Officer of Trial Court happened to be on leave, while office remained open for institution during such period---Defendant had failed to justify such delay in leave application---Defendant had not filed application under S.5 of Limitation Act, 1908, which he was required to file within ten days---High Court set aside impugned order.

1998 CLC 1135; Syed Sarwar Hussain Zaidi v. Abdul Hameed 1999 MLD 2931 and Bagh Ali v. Habib Bank Limited and 2 others PLD 1986 Lah. 124 rel.

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

----O. XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), S.5 & Art.159---Suit for recovery of money lent on basis of pro note---Delay in filing leave application, condonation of---Scope---Delay of each and every day had to be explained sufficiently, otherwise object of summary trial being speedy disposal of cases as envisaged under O.XXXVII, C.P.C., would be defeated---Application under S.5 of Limitation Act, 1908 must be filed within ten days of service---Failure to explain delay sufficiently would result in refusal of leave application.

1998 CLC 1135; Syed Sarwar Hussain Zaidi v. Abdul Hameed 1999 MLD 2931 and Bagh Ali v. Habib Bank Limited and 2 others PLD 1986 Lah. 124 rel.

Saleemullah Khan Ranazai for Petitioner.

Muhammad Khurshid Qureshi for Respondent.

Date of hearing: 23rd June, 2011.

2012 C L C 185

[Peshawar]

Before Mazhar Alam Khan Miankhel and Azmat Ullah Malik, JJ

Mian MUHAMMAD ASLAM SHAH and others----Petitioners

Versus

ZAHIR SHAH and others----Respondents

Writ Petition No.2757 of 2009, decided on 13th September, 2011.

(a) Review---

----Jurisdiction of review---Scope---Powers of review, if not available to a court or authority under relevant law, could not be exercised as an inherent power under law --- Principle stated.

Review is the jurisdiction to be exercised by a court/authority, if the powers of review are available to such court/authority under the relevant law, which cannot be exercised as an inherent power under the law. Once a court/ authority exercises its jurisdiction, then that becomes functus officio and cannot re-open and re-enter into the matter. The scope of review is very limited in nature; it is not like an appeal. By exercising the jurisdiction under review, matters already discussed cannot be re-considered and similarly entire case cannot be reopened in review. It is only possible when there is discovery of new and important matter or evidence which after the exercise of due diligence was not in the knowledge of the party asking for review or some mistake or error apparent on the record of the case. Any such order lacking the above requirements would be nothing, but an order unlawful and without jurisdiction.

Unless there is any new and important matter or evidence, which was not within knowledge of the party or the same could not be produced at the relevant time when the order was being made or any other mistake or error apparent on the face of the record, review of earlier order cannot be made.

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

----S. 163---West Pakistan Board of Revenue Act (XI of 1957), S.8---Powers of Board of Review to review its own order---Scope---No such powers available to Board of Revenue under S.163 of West Pakistan Land Revenue Act, 1967 except S.8 of West Pakistan Board of Revenue Act, 1957 whereunder Board could review its own order/decree after giving notice to other side---Jurisdiction of review provided under S.8 of West Pakistan Board of Revenue Act, 1957 was of limited scope and could not allow the Board to act arbitrarily by flouting provisions of law---Principles.

Mian Mohibullah Kakakhel for Petitioners.

Shakeel Ahmad for Respondents.

Date of hearing: 13th September, 2011.

2012 C L C 196

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

HAMEED GUL and others----Petitioners

Versus

TAJ GUL and others----Respondents

Civil Revisions Nos.454 and 948 of 2010, decided on 26th September, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 15---Pre-emption suit---Sale through mutation---Presence of pre-emptor at time of attestation of mutation of sale not waiver by pre-emptor---Scope---Mere such presence would not constitute waiver of a right of pre-emption, if pre-emptor at such moment just after getting knowledge of sale declared his intention to pre-empt sale---Question of waiver could only be pressed against pre-emptor when he actively took part in completion of sale---In case of failure of pre-emptor to perform Talb-e-Muwathibat at time of getting knowledge of sale, he would be deemed not only to have waived, but extinguished his right of pre-emption---Illustration.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 2(d) & 30---Pre-emption suit---Sale through mutation---Limitation---Defendant's plea that suit was time-barred as sale was completed much prior to attestation of mutation and delivery of possession to him under sale was a notice to public at large including pre-emptor---Validity---Sale of immovable property would be complete, if transfer of its ownership took place in exchange for a consideration---Sale could be oral or through attestation of mutation or registered deed---Period of limitation according to S.30 of Khyber Pakhtunkhwa Pre-emption Act, 1987, would be reckoned from date of attestation of mutation or registration of sale-deed or taking over physical possession of suit property---In absence of completion of sale through anyone of such three modes, period of limitation would be reckoned from date of knowledge in case of sale without physical possession---Attestation of mutation would have no relevance with completion of sale---Belated attestation of sale mutation would not constitute evidence of sale prior to its attestation---Mere alleging completion of sale prior to attestation of mutation would not ipso facto mean to have been proved---Defendant had not led any specific evidence that he was put into physical possession of suit-land prior to attestation of mutation---Such plea of defendant was repelled in circumstances.

Saifur Rehman and another v. Khamid Gul 1991 SCMR 916; Ghulam Nabi and another v. Mst. Bibi Amrezan 1995 CLC 543 and Ch. Hakim Ali v. Sultan Khan and 3 others 2001 MLD 563 ref.

Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 21---Vendee's claim for compensation for improvements made in suit property---Validity---Vendee would be entitled to such improvement, if same were made prior to receipt of notice of Talb-e-Ishhad---Evidence on record did not prove that built-up property was constructed by vendee or same already existed in suit property and its sale was made with appurtenances attached thereto---Vendee had not proved planting of trees in suit property---Any built-up property and trees in such circumstances would be presumed to be existing at time of sale---Had vendee made construction/improvements with permission of court at his own risk and costs, then he would have been entitled to remove same---Vendee had failed to prove alleged improvements with specific dates and time, thus, he was not entitled for compensation thereof, rather he had to surrender all what he had received under sale.

Jan Muhammad Khan for Petitioners.

Ahmad Ali for Respondents.

Date of hearing: 26th September, 2011.

2012 C L C 206

[Peshawar]

Before Nisar Hussain Khan, J

MASAL KHAN and others----Petitioners

Versus

Mst. SHAH TARINA and another----Respondents

Civil Revision No.1501 of 2005, decided on 26th September, 2011.

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

----Preamble, S. 5 & Sched.---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff claimed to be owner in possession of suit property by virtue of unregistered Dower Deed executed by her father-in-law---Defendants' objection (i.e. husband and father-in-law of plaintiff) that civil court had no jurisdiction to entertain such suit---Validity---Family dispute between spouses and not with any outsider could be tried by Family Court---Father-in-law of plaintiff had denied her title, but not her husband---Recovery of dower, which was not prayed for in the plaint by plaintiff, would have brought present suit within domain of Family Court---Such objection, was misconceived, in circumstances.

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

----Ss. 129 & 123---Transfer of property by Muslim husband in favour of his wife in lieu of dower through unregistered Dower Deed---Validity---Such transaction for being Hiba-bil-Ewaz would not require registration---Non-registration of Dower Deed would not affect its legal value---Principles.

Fazal-ur-Rehman v. Mst. Sosan Jan and others 1989 SCMR 651; Inayatullah v. Mst. Parveen Akhtar 1989 SCMR 1871 and Mst. Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399 rel.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff claimed to be owner of four (4) Kanals of land on basis of un-registered Dower Deed executed by defendant (her father-in-law)---Defendant's plea that he was owner of only two (2) marlas in suit-land, thus, dower deed for being nullity in eye of law was not binding on him---Suit dismissed by Trial Court, but decreed by Appellate Court by awarding price of land mentioned in dower deed as such land was not owned by defendant according to revenue record---Defendant's plea that plaintiff could not be awarded price of suit-land for not having been claimed in plaint---Validity---Plaintiff at time of marriage had reposed trust in her father-in-law (defendant) and bonafidely believed in entries of Dower Deed---Had defendant disclosed actual factual position of his ownership, then plaintiff or her parents would have asked for arrangement of other property---Defendant had deceived plaintiff by making her believe that she had been given four kanals of land in lieu of dower---Plaintiff had entered into marriage on basis of such civil contract---Defendant had deceived, cheated and defrauded plaintiff, thus, he was responsible to make-up any fault or deficiency in entries of Dower Deed---Plaintiff in prayer clause of plaint had prayed for any other relief to which she was found entitled in interest of justice---Such phrase of prayer clause encompassed required relief granted to plaintiff---Party would not be denied a relief on account of any formal defect in pleadings, if he/she was found entitled thereto in interest of justice and circumstances of case---Denying such relief to plaintiff on technical ground would tantamount putting premium on deceptive tactics practised by defendant on his own daughter-in-law---Impugned judgment/decree did not suffer from any illegality or material irregularity---High Court dismissed revision petition while directing Executing Court to determine market value of suit-land according to its kind incorporated in Revenue Record on basis of one year average sales and after its determination direct plaintiff to pay ad valorem court-fee and execute decree within specified time.

Samar Gul v. Central Government and others PLD 1986 SC 35 and Mst. Maimoona Nabi v. Saad Sethi and 2 others C.P.No.769-P of 2003 rel.

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

----O. VII, Rr. 7 & 8---Relief not asked for in plaint---Duty of court---Scope---Party would not be denied a relief on account of any formal defect in pleadings, if he/she was found entitled thereto in interest of justice and circumstances of case---Duty of court would be to advance cause of justice by providing relief to a party entitled thereto and to suppress mischief of denying such relief on ground of unnecessary technicalities---Illustration.

Samar Gul v. Central Government and others PLD 1986 SC 35 rel.

Gul Sadbar Khan for Petitioner.

S.M. Attique Shah for Respondents.

Date of hearing: 26th September, 2011.

2012 C L C 212

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MASRUR ANWAR----Petitioner

Versus

Haji RABNAWAZ and 3 others----Respondents

Civil Revision No.379 of 2009, decided on 6th May, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 31 & 32---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for pre-emption---Application for rejection of plaint---Suit was filed after prescribed period of 120 days---Defendants moved application under O.VII, R.11, C.P.C. seeking rejection of plaint being time-barred which was accepted and plaint was dismissed---Appeal against judgment of the Trial Court was also dismissed by the Appellate Court---Validity---Period of limitation for filing pre-emption suit had been prescribed as 120 days under S.31 of Khyber Pakhtunkhwa Pre-emption Act, 1987---No extension in period of limitation for filing the suit, had been provided in the said provision---Pre-emptor was required to file the suit within said period of 120 days and if he would fail to file the same within said period, his suit would not be maintainable---Non-issuance of notice by vendor for intention to sell would not create any right in favour of plaintiff as no consequence had been provided in law for failure to issue said notice---Non-issuance of such notice had no link or overriding effect over provisions of S.31 of Khyber Pakhtunkhwa Pre-emption Act, 1987, wherein the time limit for pre-emption suit was provided---Delay in filing suit for pre-emption was not only apparent, but was also admitted by pre-emptor in his replication---Provisions with regard to public notice by the Revenue Officer in case of mutation and by Registrar in the case of registered deed had no nexus with the period of limitation for filing a suit regarding sale transaction made through the attestation of mutation---Judgments of the courts below were quite in accordance with law and did not suffer from any legal infirmity or illegality---Same were maintained by High Court, in circumstances.

2004 SCMR 1941 ref.

Muhammad Wahid Anjum for Petitioner.

Zain ul Abidin Afridi for Respondents Nos.1 to 3.

2012CLC241

[Peshawar]

Before Khalid Mehmood Khan, J

ABDUL AZIZ through L.Rs. and another----Petitioners

Versus

Malik AMAN and 3 others----Respondents

Writ Petition No.577 of 2010, decided on 21st September, 2011.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)-

--Ss. 6, 13 & 21---Civil Procedure Code (V of 1908), S.47--Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Execution of decree---Question to be determined by the court executing the decree---Trial Court dismissed the suit, but on appeal against judgment and decree of the Trial Court, Appellate Court below decreed the suit---High Court on appeal, modified order passed by Appellate Court below to the effect that plaintiff/pre-emptor was liable to pay the amount of Rs.47, 845 within two months, as cost of construction over the suit property as made by defendants/vendees, failing which the suit would stand dismissed---Said judgment of High Court was upheld by the apex court---Plaintiff/decree-holder filed execution petition along with an application for appointment of Commission to determine the cost of improvement with an application under S.47, C. P. C., contending that all disputes between the parties could be resolved during execution proceedings---Validity---Decree passed by the Trial Court was upheld by the Supreme Court and had attained finality after its passing---Trial Court had become functus officio after passing the decree---Decree could be altered/modified or set aside only by filing an appeal/revision or through review before the same court---Contention of decree-holder was wrong, incorrect and illegal on two scores, firstly that executing court could not re-determine or go beyond the decree and executing Court was bound by the decree and had to execute as per terms and conditions of decree and secondly to consider whether on the basis of report of bailiff, executing Court could alter or determine the improvements which had been upheld by the Supreme Court assessed by the Local Commissioner---Executing Court could only decide the dispute arising out of the decree passed, but not beyond the decree---Executing Court had illegally based its decision on report of bailiff which was neither produced by the bailiff nor it was exhibited, such a document had no evidentiary valve in the eye of law---Executing Court wrongly and illegally modified the decree regarding the improvements---Decree-holder having violated the terms and conditions of decree, upheld upto apex court, the withdrawal of amount deposited for mutation fee and illegally modifying and altering the decree, the suit filed by the plaintiff stood dismissed and subsequent mutation executed by decree-holder, after passing of decree, also stood cancelled.

Province of Punjab v. Burewala Textile Mills 2001 SCMR 397; Iltaf Hussain v. Nawaz 2001 SCMR 405; Dr. Ilyas v. N.L.C. 2002 CLC 1609; Muzaffar v. Ali Khan 1989 CLC 2342 and Ishar Singh v. Pashawari Rai AIR 1924 (Lahore) 384 rel.

Mahzullah Barkandi for Petitioners.

Respondents in person

Date of hearing: 21st September, 2011.

2012 C L C 280

[Peshawar]

Before Miftah-ud-Din Khan, J

HAKIM KHAN and 13 others----Petitioners

Versus

COLLECTOR LAND ACQUISITION, DISTRICT SWABI and 62 others----Respondents

Civil Revision No.314 of 2006, decided on 14th November, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiffs instituted a suit for declaration, to the effect that they were entitled to 1/3rd share in property of the common predecessor of the parties, while the remaining 2/3rd share had to be received by the respondents as legal heirs of sons of said common predecessor---Trial Court dismissed the suit and judgment and decree passed by the Trial Court was upheld by the Appellate Court---Validity---Trial Court had totally ignored the long-standing entries in Revenue papers right from 1961-62 till date, wherein the plaintiffs had been shown to be owners of suit property as legal heirs of one of the sons of the common predecessor--On mere fact that no inheritance mutation to that effect was sanctioned, despite the fact that no such inheritance mutation even existed in favour of the defendant, the Trial Court had totally overlooked the unchallenged and unrebutted entries in the Revenue papers in favour of the plaintiffs---Both courts below had non-suited the plaintiff on the mere plea of the defendant that in the pedigree table, the predecessor of the plaintiff had been shown as "Pisr-e-Mutabanna "---Trial Court was obliged to effectively adjudicate each and every issue in controversy between the parties and to frame, a specific issue in that connection and thereafter invite evidence of the parties on the same and decide the controversy in accordance with the evidence produced in that connection---M the present case all that having not been done, judgments and decrees of the two courts below, were set aside and case was remanded to the Trial Court, with the direction to frame a specific issue as to whether, the predecessor of the plaintiffs was real son or "Pisr-e-Mutabanna", and thereafter invite the evidence of the parties on the same and decide the case on merits, in accordance with. law.

2010 SCMR 882, 1994 SCMR 559; 2002 YLR 3375 and 2004 SCMR 1524 ref.

Abdul Zakir Tareen for Petitioners.

Lal Jan Khan Khattak, A.A.-G. for Respondent No.l.

S.M. Attique Shah for rest of the Respondents.

Date of hearing: 14th November, 2011.

2012 C L C 303

[Peshawar]

Before Syed Sajjad Hassan Shah and Khalid Mehmood Khan, JJ

MUHAMMAD IBRAHIM and 9 others----Petitioners

Versus

RASOOLAN BEGUM and 7 others----Respondents

Writ Petition No,52 of 2008, decided on 6th September, 2011.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art.79---Specific Relief Act (I of 1877),: Ss.42 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration and perpetual injunction---Setting aside judgment and decree . on the ground of fraud and misrepresentation---Defendant, allegedly had appeared before the court through his general attorney, who filed cognovits and suit accordingly was decreed in favour of the plaintiff---Legal heirs of deceased defendant after about twenty years of passing of said decree in favour of plaintiff/predecessor of the petitioners, filed application under S.12(2), C.P.C. but for setting aside judgment and decree passed b, the Trial Court, where they alleged that neither they nor their predecessor/defendant had appointed anybody, as their attorney and that judgment and decree passed by the Trial Court was result of fraud and misrepresentation---Trial Court dismissed 'application filed under S.12(2), C.P.C., Appellate Court, set aside judgment and decree passed by the Trial Court---Validity---Main bone of contention in the case was the proof of general power of attorney given by the defendant---Onus to prove the general power of attorney lay on the beneficiary who were petitioners duty bound to produce the attesting witnesses of the said general power of attorney which was mandatory provision under Art.79 of Qanun-e-Shahadat, 1984---Petitioner could not discharge that onus---Impugned judgment/order passed by the Appellate Court, was well reasoned, according to law and facts of the case, which needed no interference---Impugned order was upheld and constitutional petition having no footing to stand with, was dismissed.

Mst. Najma Begum v. Rehmat Ali and 19 others 2004 MLD 620 and Illahi Bakhsh v. Sheikh Muhammad Sadiq and 2 others 2005 CLC 1704 rel.

Muhammad Waheed Anjum for Petitioners.

Abdul Qayyum Qureshi for Respondents.

Date of hearing: 6th September, 2011.

2012 C L C 334

[Peshawar]

Before Syed Sajjad Hassan Shah, J

SHER GHULAM----Petitioner

Versus

GHULAM JAN and another----Respondents

Civil Revision Petition No.12 of 2006, decided on 5th September, 2011.

(a) Khyber Pakhtunkhwa Province Pre-emption Act (X of 1987)---

----S. 13---Performance of Talbs---Mandatory---Performance of Talb-e-Muwathibat and Talb-e-Ishhad, was mandatory and non-performance thereof was sufficient to non-suit tl a plaintiff/pre-emptor---Incumbent for the plaintiff to prove the performance of Talbs by adducing confidence inspiring and cogent evidence of truthful witnesses because without performance of said Talbs by the plaintiff the right ,of pre-emption would not be deemed to have come into existence---Right of pre-emption being the feeble right, formalities required for its enforcement must be strictly observed---Talbs for enforcement of right of pre-emption, were not only essential requirements but also a fundamental rule of Islamic Law, which required performance of three Talbs viz Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat in the manner prescribed by law, otherwise, right of pre-emption would get extinguished.

(b)Khyber Pakhtunkhwa Province Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Making of Talbs---Plaintiff examined as witness had testified that the notice was signed by two witnesses---One of said witnesses who was examined, had refused to give statement on oath and also deposed in dubious manner---Said. witness had also stated that he was not in the knowledge of notice of Talb-e-Ishhad and in his cross-examination he admitted that he was unaware of notice of Talb-e-Ishhad---Such statement of the witness was not sufficient to substantiate that plaintiff had succeeded to prove the performance of Talb-e-Ishhad---Proof, as required under the law to establish the notice of Talb-e-Ishhad by producing two truthful witnesses was altogether missing from the case and in absence thereof the suit of the plaintiff was. not liable to be decreed---Pre-emptor though could not be knocked out on the basis of technicalities, but there was nothing to suggest that non-compliance of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 was a technicality, which was not fatal to the pre-emption suit---Requirements of Talbs were sine qua non for exercising right of pre­emption---In the present case, requirement of producing evidence of two truthful attesting witnesses had not been fulfilled which deficiency had affected the very root of the case of the plaintiff---Evidence of witness produced by' the plaintiff, was contradictory, sketchy and dubious in nature, which had no evidentiary value in the eye of law---Courts below, in circumstances, were not justified in decreeing the suit in favour of the plaintiff---Judgments and decrees of the courts below, being not sustainable in the eye of law, were set aside and suit of plaintiff was dismissed, in circumstances.

Sardar Ali v. Mst. Sardar Bibi alias Sardaran 2010 SCMR 1066; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Rahimzada v. Muhammad Ayub Khan and others PLD 2003 Pesh. 53; Sahib Rasool v. Saeedullah Khan and 2 others 2004 YLR 115; Abdul Jabbar v. Muhammad Ajmal 2010 CLC 1850; Hayatullah Jan and 6 others v. Jan Alam and 7 others 2003 MLD 625; Mukhtar Ali alias Mumtaz Ali v. Mumtaz Ahmad and others 2007 SCMR 221 and Muhammad Tahir v. The State PLD 1984 Pesh. 56 ref.

Bashir Ahmad and another v. Mushtaq Ahmad 2007 SCMR 895; Muhammad Akram v. Mst. Zainali Bibi 2007 SCMR 1086; Abdul Sattar and another v. Muhammad Iqbal PLD 2009 Lah. 407 rel.

Syed Mastan Ali Zaidi for Petitioner.

Muhammad Ayaz Khan Qasuria for Respondents.

Date of hearing: 5th September, 2011.

2012 C L C 360

[Peshawar]

Before Nisar Hussain Khan, J

Mst. BAKHT RANA----Petitioner

Versus

MUHAMMAD ZUBAIR KHAN and others----Respondents

Civil Revision No.128 of 2011, decided on 9th September, 2011.

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

----Ss. 11, 12(2) & O. VII, Rr.10, 11(d)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance mutation of deceased attested in favour of his son by depriving his four daughters including plaintiff---Plaintiff's claim in the present suit for her share in property left by her father after one of her sisters obtained decree in a similar prior suit, wherein plaintiff was a party---Plea of defendant-brother that the. suit was barred by S.11, C.P.C., thus, its plaint was liable to be rejected as plaintiff was party to prior suit---Application by plaintiff for converting her plaint into application' under S.12(2), C.P.C.-Dismissal of both such applications by Trial Court---Revision petition filed by defendant dismissed by Re visional Court while converting the plaint into application under S.12(2), C.P.C., with direction to Trial Court to determine firstly its forum of filing---Order of Trial Court returning application under S.12(2), C.P.C., for its presentation before proper forum upheld by Appellate Court---Validity---Claim of plaintiff's sister in prior suit was that she along with other sisters including plaintiff were entitled to their legal share in legacy of their father---Decree in prior suit passed in favour of plaintiff's sister had declared the suit property as legacy of her father, which was to be succeeded by all legal heirs including plaintiff---Decree in prior suit challenged by defendant-brother was upheld in appeal by Appellate Court and in revision by High Court---Plaintiff was not justified to file present suit after passing of decree in prior suit, wherein rights of all legal heirs were determined and declared---Plaintiff could have approached revenue authorities for enforcement of decree in prior suit by acknowledging her legal rights---Decree in prior suit did not contain any adverse findings against plaintiff, thus, her present suit was not hit by S.11, C.P.C. ---Plaintiff was not required to file application under S.12(2), C.P.C., to challenge decree in prior suit, which acknowledged rights' of all legal heirs including her---Trial Court, even Appellate Court or Re visional Court was competent to pass decree in prior suit in favour of all legal heirs including plaintiff as their relation with deceased was not disputed---Revisional Court was not required to convert plaint into application under S.12(2), C.P,.C., by exercising suo motu powers---High Court set aside impugned orders, restored original plaint and remanded case to Trial Court for its decision in accordance with law.

PLD 2010 SC 580 ref.

AIR 1932 Mad. 541; Muhammad Qasim Khan and others. v. Mst. Mehbooba and 6 others 1991 SCMR 515 and Allah Dad and others v. Abdul Ghani and others PLD 2010 SC 580 rel.

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

----S. 11---Decree in favour of a party containing any adverse findings against him---Effect---Such decree would not operate as res judicata.

(c) Administration of justice---

----Procedural laws or technicalities could not create hurdle in dispensation of substantial justice---Duty of Court stated.

Procedural technicalities should not be allowed to prevail on dispensation of substantial justice. Procedural laws are meant to advance the cause of justice and not to thwart it. The rules of procedure are not made for purpose of hindrance in providing justice nor can cause of justice be made hostage to the procedural technicalities. Rather the procedural laws are enacted for the advancement of cause of justice.

The Courts are under legal obligation to remove hurdle whether technical or procedural in imparting justice and to provide remedy by any means if the party if found entitled thereto.

Mst. Arshan Bibi v. Maula Bakhsh 2003 SCMR 31,8; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 rel.

Qazi Midrarullah for Petitioner.

Mian Ali Khan for Respondents.

Date of hearing: 7th September, 2011.

2012 C L C 377

[Peshawar]

Before Shahjehan Khan and Syed Sajjad Hassan Shah, JJ

ZAHIR HUSSAIN and 4 others----Petitioners

Versus

BASHIR MUHAMMAD and 5 others----Respondents

Writ Petition No.1969 of 2010, decided on 29th September, 2011.

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

----S. 9---Suit for possession---Prerequisites stated.

While deciding the suit under section 9 of the Specific Relief Act, 1877, the following prerequisites must be followed for arriving at lawful conclusion:

(i) That the person suing must have been dispossessed;

(ii) that such dispossession must be of immovable property;

(ii) that such dispossession should be without consent and should be otherwise than in due course of law and

(iv) that the suit is to be brought within the period of six months from the date of dispossession.

In order to succeed in the suit filed under section 9, the plaintiff must prove that he was in possession of the suit property and he has been dispossessed by the defendant otherwise than in due course of law, which dispossession took place within six months of filing of the suit. No question of title can be raised or looked into in a case filed under section 9 of the Act.

The limitation is one of the essential prerequisites as prescribed under section 9 of the Act.

Wazir Ahmed through Legal Heirs v. Naseem-ur-Rehman through Legal Heirs 2002 MLD 645 rel

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

---Art. 2(1)(c)(ii)---Document produced in evidence by a party---Effect---Such party would have to suffer consequences arising out of such document---Illustration. [p. 382] B

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

----Arts. -117, 118 & 119---Burden of proof---Scope---Party liable to discharge burden of proof would not stand absolved from such liability by ambiguous statement of his witness---Illustration. [p. 382] C

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

----S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable suo motu by High Court under 5.115, C.P.C.---Principles.

The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit, because a waiver by court of question of limitation is not permissible even when the period of limitation is prescribed by a Special or Local Law. Thus, a wrong decision on limitation will not debar the High Court from revising the said decision as it is within its power and jurisdiction under section 115, C.P.C., to suo motu take-up for consideration the question of limitation, if the material available on record is sufficient to establish that the suit has been filed after the expiry of the limitation.

The Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678; Noor Muhammad v. Abdul Hamid 1984 CLC 23; Umar v. Afridai and others PLD 1954 Pesh. 96; Wazir Ahmed through Legal Heirs v. Naseem-ur-Rehman through Legal Heirs 2002 MLD 645 and Kundo Mal and others v. Daulat Ram-Vidya Parkash, Firm AIR 1940 Lah. 75 rel.

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

--Ss. 8, 9 & 54---Civil Procedure Code" (V of 1908), S.2(12), 0.11, R.6 & O. VI, R. 16---Suit for possession under S.9 of Specific Relief Act, 1877 together with relief of permanent injunction and recovery of mesne profit---Maintainability---Court under S.9 of Specific Relief Act,1877 could decide only claim of possession and was not required to decide title, right or legal character of claimant or mesne profit---In a suit seeking possession under S.9 together with all such relief, if any cause of action included therein could not be tried, then court could strike out unnecessary pleadings causing delay in its fair trial---Person dispossessed illegally, if interested to claim damages and mesne profits together with possession, would have to file suit under S.8, Specific Relief Act, 1877---Present suit was not in proper form.

Foujmal Manaji v. Bikhibai and another AIR 1937 Sind 161 rel

Khan Hussain for Petitioners.

Muhammad Humoyun for Respondents.

Date of hearing: 21st September, 2011.???????????

2012 C L C 463

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

NATIONAL HIGHWAY AUTHORITY----Appellant

Versus

Messrs PUT SARAJEVO GENERAL ENGINEERING COMPANY and another----Respondents

First Appeals against Order Nos.52 of 2010 and 1 of 2011, decided on 5th July, 2011.

Contract Act (IX of 1872)---

----Ss. 23 & 28---Civil Procedure Code (V of 1908), S.20(c)---Arbitration Act (X of 1940), Ss.2(c), 14(2), 17, 31 & 39---Making award rule of court---Territorial jurisdiction of court---Award having been announced by the sole arbitrator, contractor company moved the court for making the award rule of the court---Court at place "P" allowed the petition by partially making the award rule of court---Appellant had raised objection with regard to jurisdiction of the court, contending that as the contract/agreement was executed at place "I" and Head Office of the appellant as well as respondent-company being located at places "I" and "L", the court at "P" had no territorial jurisdiction over the matter---Plea of respondent-company was that relevant clause of the agreement had merely fixed the venue at place "I" for the purpose of arbitration only, which had nothing to do with conferring of an exclusive jurisdiction in the courts at place "I"---Agreement between the parties was executed at place "I" for a work to be done within Districts "P" and "N"---Agreement provided a clause for referring the dispute to adjudicator and then to the sole arbitrator---Agreement further provided that arbitration between the parties would be made at "I"---Where there were many courts having the jurisdiction to entertain the dispute between the parties under the agreement, and the parties with their mutual consent agree to refer their dispute to any such court or courts, such consent agreement between the parties was also not against the provisions of S.23 or 28 of the Contract Act, 1872---In the present case no such clause of agreement conferring jurisdiction in any one court except the one that the arbitration would be held in "I" in given circumstances, dispute between the parties could be referred to the courts having the jurisdiction under the general law---Head Office of respondent-company being at place "L", a suit regarding any dispute against respondent could be filed at place "L"---Work being done was within the territorial jurisdiction of the court at "P" and dispute between them also cropped up there---Sub-offices of both the parties were also situated at place "P"---Such a dispute between the parties regarding the subject-matter situated within the territorial jurisdiction of courts at "P" could well be referred and agitated before the court at "P" as cause of action wholly or partly, within the meaning of S.20(c), C.P.C. arose there---No bar existed in the agreement that the courts at "P" would have no jurisdiction---Court at place "P" could well entertain the dispute---Finding of the courts below were set aside directing the office to send both the cases to the court of Senior Civil Judge at place "P", who would decide the matter between the parties at its earliest.

Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; Messrs Trade Masters (Pvt.) Ltd. through Chief Executive v. Messrs Shell Pakistan Ltd. through Chief Executive 2010 CLD 670; Messrs Unitrade Impex and others v. Federation of Pakistan and others 2010 CLC 1267; Special Communication Organization through Director-General, Rawalpindi v. Messrs IBELL (Pvt.) Ltd., Lahore 2007 CLC 248; Food Corporation of India and another v. Great Eastern Shipping Co. Ltd. AIR 1988 Supreme Court 1198; Messrs Nanak Chand Shadurain v The Tinnelvelv-Tuticorin Electric Supply Co. Ltd., Calcutta AIR 1975 Mad. 103; Messrs Salem Chemical Industries v. Messrs Bird and Co. (P) Ltd., Calcutta AIR 1979 Mad. 16; Messrs Road Transport Corporation and others v. Messrs Kirloskar Brothers Ltd. and others AIR 1981 Bom. 299; Messrs Angils Insulations v. Messrs Ashmore India Ltd. and another AIR 1995 SC 1766; Rajasthan High Court Advocates Association v. Union of India and others AIR 2001 SC 416; Ravi Glass Mills Limited v. I.C.I. Pakistan Powergen Limited 2004 YLR 2503 and Special Communication Organization v. Messrs IBELL (Pvt.) Ltd., Lahore 2007 CLC 248 ref.

Zahid Idrees Mufti for Appellant.

Omar Faruk Adam for Respondents.

Date of hearing: 5th July, 2011.

2012 C L C 503

[Peshawar]

Before Mazhar Alam Khan Miankhel and Nisar Hussain Khan, JJ

RAZIA SULTANA----Appellant

Versus

SHAHID DURRANI----Respondent

R.F.A. No.80 with C.M. No.103 of 2010, decided on 22nd September, 2011.

Defamation Ordinance (LVI of 2002)---

----Ss. 3, 9 & 13---Suit for damages for defamation---Plaintiff had alleged that the defendant wrote baseless and frivolous letter to the high-ups of the plaintiff; and for that matter proper inquiry was initiated against the plaintiff and after proper inquiry she was exonerated of the charges levelled against her by the defendant and that letter/complaint of the defendant had injured the reputation of the plaintiff in her department and in her family, which resulted into physical and mental torture for her and her family---Trial Court dismissed the suit---Validity---Plaintiff under the law was required to prove the issuance/writing of letter by defendant to high-ups of the plaintiff with a malice to defame her in the eyes of her high-ups, colleagues and other friends and family members, but evidence on record led by the plaintiff was deficient in that regard---Very letter/complaint, which was the bone of contention of the suit of the plaintiff, had not been brought on the record as same was not tendered in evidence---Plaintiff had failed to prove that in consequence of inquiry, she remained suspended---Under the law the plaintiff was required to serve the defendant with a notice within two months of the knowledge of defamatory material came into her knowledge, but that had not been done---Mere assertion in the pleadings would not absolve the plaintiff from her obligation when same had been denied by the defendant---Very foundation of the suit thus was not in accordance with law---Available evidence and material on the record could in no way be termed as sufficient for grant of decree for damage in favour of the plaintiff---Claim of the plaintiff being baseless, was not tenable, in circumstances.

Appellant in person.

Tariq Javed for Respondent.

Date of hearing: 22nd September, 2011.

2012 C L C 537

[Peshawar]

Before Attaullah Khan and Khalid Mehmood Khan, JJ

TEHSIL MUNCIPAL ADMINISTRATOR, TEHSIL MUNICIPAL ADMINISTRATION, LAKKI MARWAT----Petitioner

Versus

THE STATE and 5 others----Respondents

Writ Petition No.610 of 2011, decided on 11th August, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Jurisdiction of Sessions Judge to issue administrative order---Scope---Respondent filed application before Sessions Judge regarding load shedding and overloading of private transport---Sessions Judge vide impugned order directed the petitioner and other government functionaries to challan the vehicles for overloading and to remove extra seats from the private vehicles---Sessions Judge had travelled beyond his jurisdiction as he had no authority to take cognizance of the complaint---Sessions Judge had not mentioned in his order as to under what provision of law he had proceeded with the case and under what authority he had passed impugned order directing the petitioner and other government functionaries regarding the administrative work which had become under the domain of the petitioner as prescribed in Khyber Pakhtunkhwa Local Government Ordinance, 2001---Proceedings and orders passed on application/complaint of respondent were set aside, in circumstances.

Meraj Ahmad Khan v. Syed Masoom Shah and 9 others PLD 2005 Pesh. 96 rel.

Abdur Rashid Khan for Petitioner.

D.A.-G. for the State.

Date of hearing: 11th August, 2011.

2012 C L C 551

[Peshawar]

Before Mazhar Alam Khan Miankhel , J

MUHAMMAD RASOOL----Petitioner

Versus

ASLAM KHAN and another----Respondents

Writ Petition No.760 of 2011, decided on 7th October, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 31 & 32---Suit for pre-emption---Limitation---Starting of limitation---For the purpose of computation of period of limitation, the time prescribed would start from the date of registration of the sale-deed---Issuance of notice under S.32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 by the officials attesting the mutation or registering the sale-deed, was directory in nature and not mandatory provisions of law having some penal consequences for its non-compliance---Sale of suit property in the case was effected through registration of sale-deed prior to more than 8 months from date of attestation of mutation in respect thereof---Sale-deed was incorporated in Revenue Record through said mutation and reference of said registered deed had also been given in the mutation---Effect of registered sale-deed would be a notice to public at large; and in that analogy, law had also provided the start of limitation from the date of registration of sale-deed---Pre-emptor was required to file his suit within 120 days of the registration of sale-deed and not from date of attestation of mutation.

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

----O. VI, R.1---Pleadings---Party could not build up a case on the grounds which were not raised in the pleadings---Such evidence could not be considered in favour of the party.

Walid Dad v. Gul Bab Khan 2005 MLD 1668 distinguished.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

Syed Muhammad Attiq Shah for Petitioner.

Aqeel Khan Khattak for Respondents.

Date of hearing: 7th October, 2011.

2012 C L C 569

[Peshawar]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

IKRAM ULLAH----Petitioner

Versus

Mst. FARKHANDA HABIB and 3 others----Respondents

Writ Petition No.1098 of 2011, decided on 17th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr.1, 10 & 12---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration and permanent injunction---Summoning and attendance of witnesses through process of court---Defendant filed application for summoning the witnesses mentioned in the list of witnesses through process of the court---Said application was dismissed by the Trial Court and Appellate Court below on the ground that the defendant was just trying to prolong the matter; and that said witnesses residing at different places, their service could not be procured for one and the same date---Validity---Courts had been given powers to compel the attendance of witnesses to give evidence where they did not respond to summons ordinarily or where they were availing appearance---Courts below without following the law on the subject refused to accede to the request made by the defendant as there was no sanction of law for refusing such a request---Court could, in exercise of its inherent powers to prevent abuse of the process of the court, declare to accede to such a request where on the face of record it was found that the party was deliberately seeking to prolong the case to the disadvantage of other side; and that the evidence sought to be adduced had no bearing on the decision of the case---No provision was available in the C.P.C., whereunder the responsibility could be put on a party to produce its evidence on pain of using its right to produce that evidence---Even, in a case where a party undertook to produce its own evidence, but then reported its inability to do so; and applied for process of the court for the attendance of its witnesses, there was no sanction in law for refusing such request---Record had shown that the documents relied upon by the defendant were to be proved on some cogent evidence because he was the beneficiary of the same---No one could be deprived of legal rights to defend his case by affording proper opportunities---Policy of early disposal of cases could not be supreme to substantial justice an inviolable principle of justice would hold the highest pedestal---No cogent reasons for its refusal having been given, same could not hold the field---Orders passed by courts below being illegal, same were set aside---Trial Court was directed to summon the desired witnesses of the defendant through court process as contained in O.XVI, C.P.C.

Asad Jan for Petitioner.

Javed Ali for Respondents.

Date of hearing: 17th October, 2011.

2012 C L C 629

[Peshawar]

Before Mazhar Alam Khan Miankhel

and Nisar Hussain Khan, JJ

Syed MUHAMMAD ZUHAIR SHAH BANORI----Petitioner

versus

Syed MUHAMMAD ZAHID SHAH BANORIand 10 others----Respondents

Writ Petitions Nos.72 and 73 of 2004, decided on 22nd September, 2011.

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

----Ss. 3 & 4---Civil Procedure Code (V of 1908), O.II, R.2---Constitution of Pakistan, Art.199---Constitutional petition---Suit for partition of property---Withdrawal of suits with the permission to file fresh suit---Suit properties were owned by the common predecessor of the parties---Plaintiffs who had inadvertently filed two separate suits regarding two separate properties, sought withdrawal of said two suits with the permission to file fresh one on the ground that their suits were barred by the provisions of O.II, R.2, C.P.C.---Trial Court allowed the plaintiffs to withdraw said suits, with costs, but on filing revision by the defendants against judgment of the Trial Court, Appellate Court below set aside judgment of the Trial Court by directing the Trial Court to consolidate two suits and to frame consolidated issues---According to law, both the independent suits regarding two separate properties were maintainable as entire claim of partition for each separate property was being sought in both the courts---Filing of two separate suits was not a matter to be hit by the provisions of O.II, R.2, C.P.C., but for fair dispensation of justice and to avoid further legal complications both the suits could have been consolidated---Another possibility of said claims was in the shape of single suit by referring to both the properties---Either of the way was permissible under the law, but for such a short matter, parties had suffered so much---Order of Trial Court showed both the suits were withdrawn and fresh suit was also filed much prior to the decision of the revisional court---Besides the filing of fresh suit by the plaintiff, defendants had also received costs---Receiving of costs by other party would be an act of acquiescence with the act/order for which it received cost---Said act under the law would bar said party to question said order in higher forum under the law of estoppel---Filing of revision petition after receiving costs, was an act not permissible under the law and jurisdiction thus exercised would become nullity in law---Decision given by the revisional court appeared to be useless and was set aside, in circumstances---Trial Court was directed to decide main caste at the earliest.

Pehlawan and others v. Haji Muhammad Murad and others 2005 SCMR 1405; Ismail v. (1) Fida Ali and (2) Syed Iqbal Shabbir PLD 1965 SC 634; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab PLD 2003 SC 979; Qamar Zaman and others v. Musammir Shah 2000 SCMR 1730 and Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) 1982 CLC 2616 ref.

Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) 1982 CLC 2616 rel.

(b) Costs---

----Estoppel---Acquiescence---Receiving of costs by other party would be an act of acquiescence with the act/order for which it received cost---Said act under the law would bar the party to question said order in higher forum under the law of estoppel---Filing of revision petition after receiving costs, was an act not permissible under the law and jurisdiction thus exercised would become nullity in law.

Pehlawan and others v. Haji Muhammad Murad and others 2005 SCMR 1405; Ismail v. (1) Fida Ali and (2) Syed Iqbal Shabbir PLD 1965 SC 634; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab PLD 2003 SC 979; Qamar Zaman and others v. Musammir Shah 2000 SCMR 1730 and Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) 1982 CLC 2616 ref.

Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) 1982 CLC 2616 rel.

(c) Revision---

----Revision---Filing of revision petition after receiving costs, was an act not permissible under the law and jurisdiction thus exercised would become nullity in law.

Abdul Sattar Khan for Petitioner.

Qazi Muhammad Jamil for Respondents.

Date of hearing: 22nd September, 2011.

2012 C L C 637

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD RASOOL----Petitioner

versus

ASLAM KHAN and 3 others----Respondents

Civil Revision No.739 of 2011, decided on 7th October, 2011.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 8, 9 & 20---Suit for pre-emption---Distribution of suit property, in case of more than one person equally entitled---Class or group of persons could jointly exercise their right of pre-emption and in case where more than one person had the same right of pre-emption, then the suit property would be equally distributed amongst all such persons---Provisions of S.8 of North-West Frontier Province Pre-emption Act, 1987 related to the pre-emptors (more than one) having the similar rights could jointly and severally claim their rights of pre-emption---When pre-emptor and the vendee had equal and similar rights of pre-emption, then the property under pre-emption would require to be distributed between them equally---When there was one pre-emptor and one vendee having similar right of pre-emption, then the provisions of S.20 of North-West Frontier Province Pre-emption Act, 1987 could be applied by distributing the property in two equal shares---When there were more than one pre-emptor and more than one vendee on the same pedestal, then property between all the persons on the same footing would be distributed between them in equal shares, and not in the ratio of 1/2 + 1/2 in favour of pre-emptors and the vendees by ignoring their total strength---In the present case there being one pre-emptor and four vendees, the simple distribution of the property in two equal shares between them would not be correct approach and not permissible under the law---All of them would get equal shares as per capita---Petition was dismissed.

Muhammad Hayat v. Faiz Ali and another 2002 MLD 938 and Muhammad Khan and 9 others v. Ameer Khan Gaddi Baloch 2008 YLR 296 ref.

Abdul Latif v. Shaukat Ali and 2 others 2006 MLD 735; Sarfaraz Khan v. Niamatullah Khan 2002 SCMR 751 and Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

Syed Muhammad Atliq Shah for Petitioner.

Aseel Khan Khattak for Respondents.

Date of hearing: 7th October, 2011.

2012 C L C 686

[Peshawar]

Before Nisar Hussain Khan, J

Mst. HEEMAT JEHAN and another----Petitioners

versus

ATTAULLAH SHAH----Respondent

Civil Revision No.136 of 2011, decided on 16th December, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 113---Pre-emption suit---Admitted fact---Talb-e-Ishhad---Proof---Vendee contended that notice of Talb-e-Ishhad was not proved as pre-emptor failed to produce 'Acknowledgement Due Cards' of postal service---Validity---Such contention of vendee was misconceived as vendee had admitted receipt of notice of Talb-e-Ishhad in his written statement---Admission of vendee was binding on him and in terms of Art. 113 of Qanun-e-Shahadat, 1984, admitted fact needed no proof.

(b) Words and phrases---

----'During'---Defined.

Black's Law Dictionary 6th Edition and Chambers Concise 20th Century Dictionary ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Transfer of Property Act (IV of 1882), S. 52---Constitution of Pakistan, Art. 23---Pre-emption suit---Talbs---Proof---Right to acquire property---Principle of lis pendens---Applicability---Vendee transferred suit property to his wife, one day prior to filing of suit by pre-emptor---During trial pre-emptor impleaded wife of vendee also as defendant---Plea raised by vendee was that no requisite Talbs were performed by pre-emptor to enforce his right of pre-emption against subsequent transferee---Contention of pre-emptor was that principle of lis pendens was applicable to subsequent transfer in favour of wife of vendee---Validity---Principle of lis pendens was an equitable doctrine to protect property under lis from any prospective decree in suit---Every individual citizen had got fundamental right to acquire, hold and dispose of property in accordance with law in terms of Art.23 of the Constitution---Subsequent transfer deed was executed one day prior to filing of the suit and was registered on the next day i.e. when the suit was filed, therefore, principle of lis pendens was not applicable---Pre-emptor did not perform Talb-e-Muwathibat or Talb-e-Ishhad regarding subsequent sale nor he alleged any such Talb in his plaint---Plaintiff also did not adduce any evidence in such regard which was sine qua non for successful exercise of right of pre-emption---Subsequent sale was an independent transaction, which was required to be pre-empted in accordance with law of pre-emption---Both the courts below by misreading of evidence and misapplication of law, wrongly exercised jurisdiction while decreeing the suit of pre-emptor in his favour---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and dismissed the suit---Revision was allowed in circumstances.

(d) Pre-emption---

----Avoiding pre-emption---Administration of justice---Permission of law---Scope---Whatever is not prohibited by any law, is deemed to be permitted by all implications---Any lawful device to save oneself from a prospective pre-emption is valid.

(e) Registration Act (XVI of 1908)---

----S. 47---Registered document---Effectiveness---Registered document, under section 47 of Registration Act, 1908, takes effect from the date of its execution and not from the date of registration.

Ghulam Rasool and others v. Akbar Ali and others" 2011 SCMR 794 rel.

(f) Appeal (Civil)---

----When appeal is filed before Appellate Court, the whole case is reopened and all legal and factual questions can be agitated---Legal point can be raised at any stage of proceedings.

Zahid-ul-Haq for Petitioners.

Gul Diaz Wazir for Respondents.

Date of hearing: 16th December, 2011.

2012 C L C 709

[Peshawar]

Before Waqar Ahmad Seth, J

Mian MUHAMMAD ALI SHAH----Petitioner

versus

SANGEEN SHAH and others----Respondents

Civil Revision No.70 of 2009, decided on 12th December, 2011.

Civil Procedure Code (V of 1908) ---

----O. XVII, R. 3---Specific Relief Act (I of 1877), Ss.8, 42, 54 & 55---Suit for possession, declaration, permanent and prohibitory injunction---Failure of the plaintiff to produce evidence---Plaintiff, during trial had failed to produce his evidence on various occasions, as the case was repeatedly adjourned on the request of the plaintiff---Lastly warning under O.XVII, R.3, C.P.C. was given to the plaintiff to produce evidence, failing which his right of producing evidence would be struck off---Despite such clear cut direction, plaintiff failed to produce his evidence and on crucial date sons of the plaintiff preferred an application for impleading them in the suit, just to delay the disposal of case---Trial Court was constrained to apply the provisions of O.XVII, R.3, C.P.C. by striking down the defence of plaintiff, which culminated in dismissal of suit as well as application for impleadment---Appellate Court upheld judgment of the Trial Court---Record was suggestive of the fact that the plaintiff had not pursued his cause by producing his evidence in time---Courts below, in circumstances, had rightly non-suited the plaintiff---Both the courts below had recorded concurrent findings on question of law and fact to which no exception could be taken---No illegality, irregularity or jurisdictional defect had been pointed out by counsel for the petitioners in the impugned findings, which could justify interference by High Court in its revisional jurisdiction.

Yousaf Ali for Petitioner.

Gul Sadber for Respondents.

Date of hearing: 12th December, 2011.

2012 C L C 743

[Peshawar]

Before Nisar Hussain Khan, J

ANWAR KHAN----Petitioner

versus

LAL QADIR and others----Respondents

Civil Revisions Nos.285 and 327of 2011, decided on 1st December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction---Locus poenitentiae, principle of---Applicability---Contract for collection of taxes---Non-participant in bidding, right of---Plaintiff participated in bidding and was awarded contract of tax collection in different disciplines---Later on authorities introduced defendant and intended to award him the contract, as he offered more bid than the plaintiff---Validity---Plaintiff got a good prima facie case, as he had taken over the charge since 1-7-2011 and was collecting taxes in pursuance thereof---Plaintiff had also deposited all the dues of Authorities till date, therefore, balance of convenience also leaned in his favour---Plaintiff was registered contractor and participated in auction proceedings and succeeded in obtaining contract after due compliance of all the codal formalities---Valuable right had accrued in favour of plaintiff, after taking decisive step of issuance of work order and taking over charge by the plaintiff, the same could not be taken away by the authority on the principle of locus poenitentiae---Plaintiff was collecting taxes for last six months and had also deposited the agreed taxes and thereby had discharged the contractual obligation---Award of contract to defendant was a vividly colourful exercise of power and High Court declined to approve the same on any ground---While almost half of the period of contract of plaintiff had already expired, so at such stage by dislodging him from his position would tarnish his image as a professional contractor, for the cause of a person, who did not participate in auction proceedings at all, as such the same would cause him an irreparable loss of goodwill of plaintiff and the same could not be compensated in terms of money---Both the courts below had rightly passed the orders of temporary injunction in favour of plaintiff---High Court declined to interfere in the injunction orders as no misreading and non-reading of evidence or any illegality or material irregularity had been pointed out, which could warrant interference of High Court---Revision was dismissed in circumstances.

Sher Muhammad Khan for Petitioner.

Zahidul Haq for Respondent.

Date of hearing: 1st December, 2011.

2012 C L C 752

[Peshawar]

Before Azmatullah Malik, J

TAWEEZ BADSHAH----Petitioner

versus

ABDUL NAWAZ----Respondent

Civil Revision No.451 of 2011, decided on 4th October, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.XIV---Suit for recovery of amount obtained as Qarz-e-Hassana---Suit filed by the plaintiff had concurrently been decreed by the Trial Court and Appellate Court---Contention of the defendant was that issues were not framed in the case according to the pleadings of the parties and that by misreading and non-reading, courts below had passed impugned judgments without any cogent reasons---Plaintiff, though opposed the contention raised by the defendant, but he failed to clarify whether the issues were framed by the Trial Court according to the pleadings of the parties---Counsel for the plaintiff half-heartedly accepted that issues were not properly framed---High Court, in view of said admission of the plaintiff, deemed it proper to remand the case to the Trial Court with directions to frame the issues afresh according to the pleadings of the parties and after recording pro and contra evidence of the parties to decide the case strictly in accordance with law. [p. 753] A & B

M. Qasim Khan Khattak for Petitioner.

Behlol Khattak for Respondent.

Date of hearing: 4th October, 2011.

2012 C L C 759

[Peshawar]

Before Dost Muhammad Khan and Azmatullah Malik, JJ

ARIF SAEED----Petitioner

versus

HUMAIRA QAZI and 2 others----Respondents

Writ Petition No.1580 of 2009, decided on 29th September, 2011.

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

----S. 25---Custody of minor son and daughter---Contest between father having second wife and real/divorced mother of minors---Father had children from second wife---Minors' mother had not contracted second marriage, rather wanted to devote her entire life to the minors---Mother was seeking custody of minors for their physical well-being and curriculum activities---Mental health of minors would be of paramount importance for their balanced personality---Possible preferential attitude of step-mother towards her real children would develop a sense of deprivation to step-minors---Nothing would match to pure love and affection of a real mother, thus, minors should not be deprived from her love and care---Custody of children under law was indefeasible right of real mother as compare to father being a natural guardian---Mother was serving as Executive Manager in a hotel, having sound financial position to meet needs of minors---­Father's application seeking custody of minors was dismissed in circumstances.

Muhammad Ali for Petitioner.

Date of hearing: 29th September, 2011.

2012 C L C 773

[Peshawar]

Before Yahya Afridi and Nisar Hussain Khan, JJ

SHAHZADA----Petitioner

versus

KHAIRULLAH and others----Respondents

Writ Petition No.1162 of 2008, decided on 11th October, 2011.

(a) Malicious prosecution---

----Suit for damages on basis of malicious prosecution arising out of civil litigation---Conditions essential to constitute a cause of action for such suit stated.

Condition precedents for a person to have a cause for damages on the basis of malicious prosecution arising out of civil litigation are that (i) the plaintiff was prosecuted by the defendant; (ii) the prosecution ended in plaintiffs favour; (iii) the defendant acted without reasonable and probable cause; (iv) the defendant was actuated by malice; (v) the proceedings had interfered with plaintiffs liberty and had also affected his/her reputation; and finally (vi) the plaintiff had suffered damage.

Muhammad Amin v. Jogendia Kumar Bannerjee AIR 1947 Priyy Council 108; Haji Muhammad Shafi v. Mst. Hamidan Bibi 1990 MLD 597 and Ali Asghar v. Fazal Akbar 1988 CLC 147 ref.

Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28 fol.

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

----O. VII, R. 11---Rejection of plaint---Powers of court---Scope---Court could reject plaint even without an application by defendant---Principles.

The plain reading of the provision contained in Order VII, Rule 11, C.P.C. clearly provides that there is no express requirement for the defendant to file an application to seek the rejection of the plaint. The court has the authority under the said provision to reject the plaint even without any application made by an interested party.

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

----O. VII, R. 11---Rejection of plaint---Essential considerations--­Court would consider only plaint and not plea raised in written statement, if same was beyond pale of what was contained in plaint.

Jewan v. Federation of Pakistan 1994 SCMR 826; Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878; Nazir Ahmad v. Ghulam Mehdi 1988 SCMR 824 and Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif PLD 2008 SC 371 rel.

Muhammad Aman Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 11th October, 2011.

2012 C L C 870

[Peshawar]

Before Khalid Mehmood and Yahya Afridi, JJ

Mst. MEH JABEEN and others----Petitioners

versus

Mst. MARYAM MUSHTAQ and others----Respondents

Civil Revision No.645 of 2011, decided on 8th December, 2011.

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

----O. XXVI, R. 4, & O. V, R. 8---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Suit for declaration, perpetual injunction, possession of suit house, recovery of rent and damages---Summoning of official witnesses and appointment of Local Commission for recording statement of defendant who was bed-ridden---When after recording evidence of plaintiff, evidence of defendants was in progress, defendants applied for summoning of two official witnesses; and appointment of Local Commission for recording statement of one of the defendants, who was bed-ridden on account of amputation of his both legs due to diabetes---Trial Court turned down the application of the defendants---Validity---Defendant for whom application for appointment of Local Commission was filed, his disability was admitted by both the parties and said defendant being petition writer was important witness and it would be just and proper to record his statement by the Presiding Officer in presence of parties and their counsel on a date and place so fixed by the Trial Court---Defendants wanted to examine both the official witnesses through process of court of law as they were government servants; and official witnesses could only be produced through authority of the court to unearth and brought on record the real facts and official record for just and proper decision of the case---Valuable rights of the parties being involved in the case, equity and administration of justice demanded that official witnesses be produced through authority of the court---Impugned order and order of the Trial Court, was set aside---Defendants were allowed to examine two official witnesses through process of court of law.

Umar Hayat v. Additional District Judge and others 2004 SCMR 1367 and WAPDA v. Oazi Muhammad Irshad 2006 MLD 1532 rel.

(b) Administration of justice---

----Every order for resolving the controversy, should have been based on reason---Order without any rhyme or reason, was nullity in the eye of law.

Rashidul Haq Qazi for Petitioners.

Mushtaq Ali Tahirkheli for Respondents.

Date of hearing: 8th December, 2011.

2012 C L C 891

[Peshawar]

Before Syed Sajjad Hassan Shah and Nisar Hussain Khan, JJ

HUMA SAAD----Petitioner

versus

CHAIRMAN, JOINT ADMISSION COMMITTEE, MEDICAL/DENTAL COLLEGES, K.P.K., PESHAWAR and 6 others----Respondents

Writ Petition No.224-B of 2011, decided on 19th January, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission in Medical College---Reserved seat for FATA---IN/OUT quota---Object and scope---Candidate received her education from school situated outside Federally Administered Tribal Area (FATA) but applied for admission on the basis of quota fixed for schools situated inside FATA---Validity---Admission to candidate was declined on 10% reserved seats of IN quota, as she was not eligible to the same---Object and purpose of various provisions as enumerated in Prospectus, regarding reserved seats, meant for backward areas, was that students who had studied in institutions located "INSIDE" FATA, with relatively less facilities and could not compete with students, who studied in school equipped with better facilities and staff, might be accommodated---Students qualifying for 10% "INSIDE" reserved seats could not be deprived of their right, without any lawful justification therefore, High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Mst. Attiya Bibi Khan's case 2001 SCMR 1161 ref.

Anwar-ul-Haq and Saadullah Khan Wazir for Petitioner.

Shoaib Jally and Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 19th January, 2012.

2012 C L C 906

[Peshawar]

Before Khalid Mahmood and Yahya Afridi, JJ

Dr. ABDUL BASIT----Petitioner

versus

ADDITIONAL DISTRICT JUDGE-II, ABBOTTABAD and 2 others----Respondents

Writ Petitions Nos.451 and 452 of 2011, decided 9th February, 2012.

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

----Ss. 13 (3) & 13(4)---Constitution of Pakistan, Art. 199---Constitutional Petition---Ejectment of tenant on ground of bona fide personal need of landlord---Concurrent dismissal of ejectment petition---Good faith---Contention of the landlord (petitioner) was that he required the premises for his son who intended to run a business in the premises---Validity---Term "good faith" was the prime and essential ingredient for ejectment of a tenant---Mala fide intention of landlord for ejectment on the ground of personal need could only be ascertained if it was proved that the landlord was in fact not "needy" but was rather "greedy" and only desired to enhance the rent according to his own will or wanted to rent the premises out to another person on higher rent---Trial Court had non-suited the landlord on the sole ground that son of the landlord had obtained education in law from abroad, and had no experience in the field for which he had prayed for bona fide personal need---Only on the simple knowledge , any resourceful person through management of experts, could establish his business in any field---Son of the landlord had a right and it was his prerogative to choose a profession according to his own choice, temperament, family and social compulsions---Personal requirement for occupation of premises for landlord's son seemed to be based on bona fide grounds---Tenants had failed to prove that the petitioner was not a "needy" but a "greedy" person---Landlord, it had been established, required the premises for bona fide personal need of his son in good faith and the courts below had wrongly and illegally declined such relief to the landlord Constitutional petition was allowed, accordingly---High Court, however, observed that in case the petitioner (landlord) did not occupy the premises within one month of eviction, or rented it out to any other tenant after two months of obtaining possession, then under S.13(4) of the West Pakistan Urban Rent Restrictions Ordinance, 1959 the tenant could apply to the Rent Controller for restoration of possession---Rights of the tenant were also protected if the suit premises after eviction were not taken into possession by the landlord for running his own business.

Iqbal Book Depot v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

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

----S. 13(3)(a)---Ejectment of tenant on ground of bona fide personal need of landlord---Principles "Good faith"---Connotation---Term "good faith" was the prime and essential ingredient for ejectment of a tenant---Mala fide intention of landlord for ejectment on the ground of personal need could only be ascertained if it was proved that the landlord was in fact not "needy" but was rather "greedy" and only desired to enhance the rent according to his own will or wanted to rent the premises out to another person on higher rent.

Mehboob Hussain Chaudhry for Petitioner.

Saeedur Rehman for Respondents.

Date of hearing: 9th February, 2012.

2012 C L C 953

[Peshawar]

Before Waqar Ahmad Seth, J

Messrs TARIQ COLD STORAGE-Petitioner

versus

PESCO----Respondent

C.O.C. No.19 of 2012 with C.M. No.51 of 2011(N) with Review Petition No.104 of 2011 in Civil Revision No.809 of 2011, decided on 6th February, 2012.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Revision---Review---Scope---Rights of appeal and revision petition, were fully exhausted by the petitioner in the case and in support of the respective contentions of the parties, arguments were advanced which were duly incorporated in the judgment and taken into consideration by the court while .deciding revision---Nothing new had been brought on record to show as to what were important questions of law or facts, which had not been taken into consideration by High Court--Effect---Review would be competent on discovery of new and important matter, or evidence which after the exercise of due efforts, or diligence, was not in the knowledge of a party; and that too, if the same was in existence at the time when the lis was sub judice before a court; and at the time of its decision---Review jurisdiction would not be applicable to a case, if the important material for evidence had come into existence after the matter was decided by the court---Party would also show to the court that he was never negligent and the new material discovered must have a direct nexus with the matter under review, which, if taken into consideration, would directly affect the judgment or order under review---If there was some mistake or error apparent on the record of the case that could also be a ground for review---In the present case, no such material had been brought on record to warrant interference in review jurisdiction---Grounds of review must be something which existed at the time of the decree or order; and no authority existed that review could be granted because of the happening of some subsequent events---Judgment in revision, in the present case, had been announced after hearing the counsel for the parties and scanning the entire evidence on record, specially the circumstances that the Appellate Court remanded the same; and High Court also held the remand order correct; and the evidence was to be recorded---Such matter was not open to review, unless and until material was brought on record; or it was pointed out that some important document had not been considered by High Court while deciding the revision petition.

1920 Nagpur 70; AIR 1919 Calcutta 287; PLJ 1986 SC 67(sic) and PLD 2008 Pesh. 25 rel.

Abdul Sattar Khan for Petitioner.

Abdur Rauf Rohaila and Gul Nazeer Azam for Respondents.

Date of hearing: 6th February, 2012.

2012 C L C 982

[Peshawar]

Before Khalid Mahmood, J

SALAH-UD-DIN KHAN----Petitioner

versus

BASHIR and others----Respondents

Civil Revision No.288 of 2010, decided on 10th February, 2012.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----Ss. 2(viii), 48 & 49---Civil Procedure Code (V of 1908), O.VII, R.10---Specific Relief Act (I of 1877), Ss.42 & 54----Suit for declaration and permanent injunction---Maintainability---Plaintiff had sought declaration to the effect that after the death of the predecessor-in-interest of the defendants, (who was a tenant in suit land) the defendants were not entitled to claim tenancy of suit land---Trial Court returned plaintiff's plaint under O.VII, R.10, C.P.C. on the ground that the same did not fall within jurisdiction of civil court---Validity---Admittedly, predecessor-in-interest of the defendants was a tenant at will on the suit land and the defendants were in possession of the suit land in such capacity as well---According to S.2(vii) of the Khyber Pakhtunkhwa Tenancy Act, 1950; tenant and landlord shall include predecessors and successors-in-interest of a tenant, and landlord respectively, and therefore, the defendants had tenancy rights in the suit land, being heirs of their predecessor-in-interest who was a tenant of the plaintiff---No court should take cognizance of such dispute or matter arising out of tenancy except the revenue hierarchy---Civil court had no jurisdiction in the matter, and had rightly rejected the plaint---Plaintiff could seek remedy before the revenue hierarchy---Concurrent findings of fact recorded by courts below were unexceptionable---Revision was dismissed.

Lt. Col. (R.) Abdul Quddus for Petitioner.

Iftikhar Afzal for Respondents.

Date of hearing: 10th February, 2012.

2012 C L C 1113

[Peshawar]

Before Nisar Hussain Khan, J

RASHEED KHAN----Petitioner

versus

MUHAMMAD KHAN and others----Respondents

Civil Revision No.22-B of 2012, decided on 21st February, 2012.

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

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.56(d)---Constitution of Pakistan, Arts.33, 37 & 38---Grant of injunction against a government department---Scope---Dispute over location of proposed water supply scheme---Plaintiffs (respondents) had filed a suit seeking declaration and perpetual injunction to the effect that Government Department and a politician were not entitled to shift a water supply scheme, approved for inhabitants of plaintiff's village and to install the same at another village for the welfare of the defendant (petitioner)---Application for grant of temporary injunction by plaintiff against the execution of the said water supply, was accepted by the Trial Court and temporary injunction was granted, and appeal thereagainst before the appellate court was dismissed---Validity---Record revealed that a politician had proposed the water supply scheme for the new village, which was to be implemented through a Government Department, same being the executing agency---Site for construction of the scheme was selected by the said Department after preparation of a feasibility report---Two tube-wells already existed in the plaintiff's village which would have been sufficient enough for the population of the village, and that was why the third tube-well was being proposed to be installed in the new village, which had sufficient scattered population around the proposed site---Two tube-wells installed in the plaintiff's village were not deficient for their requirements---Proposed scheme was not the exclusive personal property of the plaintiff, but all the inhabitants of his village and other surrounding hamlets would take benefit therefrom---Politician who proposed the scheme was the elected representative of the area, who knew better than anyone else as to where the scheme should be installed, as he would have to go to the same electors again in the future---Concerned Department had also given its technical approval to the scheme---Nothing had been brought on record to substantiate the fact that the scheme was sanctioned for plaintiff's village and was later on shifted to the new village---Proposed scheme was being installed in the property of the defendant, but same would never be his personal property, rather it would be for the public at large, including the plaintiff's village and surrounding population---Inhabitants of surrounding areas would face inconvenience by issuance of a temporary injunction and stoppage of installation work and there was every likelihood of lapsing of the funds or transfer of the scheme to some other place, which would not provide any benefit to the plaintiff, rather would cause an irreparable loss to the defendant---By virtue of the Constitution every individual had equal right of access to and enjoyment of a public facility provided through the State machinery and nobody could be discriminated on the ground of cast, creed, sex or strength---Constitution also discouraged parochial prejudices and promoted social justice and eradication of social evils, and applying the same principle, High Court did not agree with the proposition of the plaintiff that proposed scheme should not be installed in the new village for the benefit of a single house and surrounding population---Section 56(d) of the Specific Relief Act, 1877, also clearly prohibited the grant of temporary injunction and interference with public duties of Government departments---Court would refrain from issuing an injunction against a public department unless some compelling reason demanded the issuance of an injunctive order---Revision petition was allowed, the impugned orders of both the courts below were set aside and the application of the plaintiff for grant of temporary injunction was dismissed.

Khutba Hajjat-ul-Widha ref.

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

----S. 56(d)---Temporary injunction interfering with the public duties of any Government department---Scope---Section 56(d) of the Specific Relief Act, 1877, clearly prohibited the grant of temporary injunction and interference with public duties of Government departments---Court would refrain from issuing an injunction against a public department unless some compelling reason demanded the issuance of an injunctive order.

Muhammad Shah Nawaz Khan Sikandri for Petitioner.

Baghdad Khan and Asghar Nawaz Khan for Respondent.

2012 C L C 1152

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Mst. NIAZ MANA----Petitioner

versus

Lady Doctor SHAMIM ARA and 6 others----Respondents

Civil Revision No.170 of 2006, decided on 20th December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Transfer of Property Act (IV of 1882), S.122---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for declaration, perpetual injunction and cancellation of gift-deed---Plaintiff had sought cancellation of gift mutation attested in favour of defendant with respect to the property which allegedly was result of fraud, collusion, illegal and void---Plaintiff also prayed for perpetual injunction---Suit had concurrently been dismissed by the courts below---Validity---Burden of proving material issues was on the shoulder of the plaintiff, but it had not been discharged by the plaintiff by producing convincing, cogent and reliable evidence---Plaintiff had failed to bring on record evidence supporting her version regarding fraud, etc. as alleged in the plaint---Particulars of fraud had also not been given in the plaint nor proved on record by the plaintiff as required under O.VI, R.4, C.P.C., because if the fraud was alleged, it must be particularized with date, time and by all necessary details---Gift mutation produced on behalf of the plaintiff having not been questioned, same would deemed to be proved and require no further proof---Gift had been proved by overwhelming evidence and also that the same was acknowledged by the owner in favour of the donee who died after 10 years of execution of gift---Had there been any fraud committed in attestation of gift mutation or completion of gift transaction, he had every right to challenge the same---Judgments and decrees of the courts below were quite in accordance with law and did not suffer from any illegality, or material irregularity warranting interference by High Court in exercise of revisional jurisdiction.

2000 CLC 399; 2003 SCMR 286; PLD 2011 Pesh. 208; Mst. Chhanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1997 SC 28 and Abdul Majeed v. Abdur Rashid and 3 others 2006 CLC 819 ref.

Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28; Abdul Majeed v. Abdur Rashid and 3 others 2006 CLC 819 and PLD 1984 Pesh. l278 rel.

Muhammad Yousaf Khan for Petitioner.

Muhammad Daud Khan and Sh. Iftikhar-ul-Haq for Respondents.

2012 C L C 1190

[Peshawar]

Before Khalid Mahmood, J

MUHAMMAD NAZIR AWAN----Appellant

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Local Council Board, N.-W.F.P., Peshawar and 3 others----Respondents

Regular First Appeal No.110 and C.M. No.177 of 2005, decided on 3rd February, 2012.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of money---Plaintiff was government contractor and entered into water rate contract with authorities but the authorities cancelled the contract and confiscated earnest money of plaintiff---Plaintiff filed suit for recovery of money but the same was dismissed by Trial Court---Validity---Trial Court did not properly appreciate record/evidence and conduct of parties---Failure of authorities to trace out admitted 43 water connections and to recover outstanding amount from 146 defaulters suggested that plaintiff was not at fault, hence, authorities due to their own inefficiency and fault could not cancel the contract---Trial Court ignored that only one month and 6 days were left for completion of contract and meagre amount was outstanding against plaintiff, which could easily be adjusted against security if outstanding amount was not paid, cancellation of contract in such circumstances was based on mala fide or due to some other grounds concealed by authorities---High Court set aside judgment passed by Trial Court and suit was decreed in favour of plaintiff---Appeal was allowed in circumstances.

A.R. Khan v. P.N. Boga PLD 1987 SC 107 and Municipal Committee, Mansehra and others v. Syed Makhan Shah (C.A.No.442 of 2002) rel.

Tahir Hussain Lughmani for Appellant.

M. Nawaz Khan Swati, A.A.-G. for the State.

Khan Afzal Khan for the Remaining Respondents.

Date of hearing: 3rd February, 2012.

2012 C L C 1212

[Peshawar]

Before Mazhar Alam Khan Miankhel and Waqar Ahmad Seth, JJ

MIANGUL BADSHAH and 7 others----Appellants

Versus

LAND ACQUISITION COLLECTOR, DEPUTY COMMISSIONER, SWAT and 5 others----Respondents

Regular First Appeal No.299 of 2010, decided on 5th April, 2012.

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

----S. 23---Acquisition of land---Determination of amount of compensation of acquired land---Landowners, whose property was acquired, after issuance and publication of notification under S.4 of Land Acquisition Act, 1894, were paid the compensation of their property on the basis of negotiations between the two parties and the rate of compensation thereby was fixed as Rs.22,000 per Kanal in the year 1990---Department then completed the acquisition process, started in the year 1988 by publication of notification and after a deep slumber of more than twelve years fixed the market value of land in the year 2000 at the same rate which was paid to the landowners in the year 1990---Market value prevailing in the year prior to publication of notification under S.4, was only one of the criteria for fixation of the compensation; and that too when acquisition process was strictly in accordance with the provisions of Land Acquisition Act, 1894---When the acquisition process was delayed, then the market value prevailing twelve years ago at the time of publication of notification, could in no way be held to be market value---Verdict of the referee court also reflected that it lacked the application of a judicial mind and it kept in mind the provisions of S.23(1) of Land Acquisition Act, 1894 and totally ignored the delay in acquisition process, potential value of acquired land and its future prospects---Judgment and decree of referee court, was set aside with the direction to fix the compensation of acquired property at the rate of Rs.80,000 per Kanal with 6% simple interest from the date of possession along with 15% compulsory acquisition charges.

Mst. Abida Aman-e-Room and others v. Government of N.-W.F.P and others Writ Petition No.718 of 2008 rel.

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

----S. 23---Acquisition of land---Determination of compensation---Criteria for fixation of market value---Provisions of S.23 of Land Acquisition Act, 1894, was not the sole criteria for fixation of market value---Factor of potential and future value of the acquired land had also to be kept in mind while determining the compensation of the acquired property---Escalation of price between the period of publication of notification under S.4 of Land Acquisition Act, 1894, and the announcement of award, was yet another aspect of the case---Delay of two or three years between the two dates, had been considered as a factor for enhancing the compensation and even the inflationary trend and depreciation in the currency of the country, between the two dates, could not be ignored.

N.-W.F.P. through Collector Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Ministry of Defence through Secretary, Government of Pakistan and others v. Syed Wajid Rizvi 2009 SCMR 105; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD. 2010 SC 719 and Malik Muhammad Ashraf and 3 others v. National Highway Authority and others 2011 CLC 1117 rel.

Mian Abdul Aziz Qureshi for Appellants.

Raza-ud-Din for Respondents.

Date of hearing: 5th April, 2012.

2012 C L C 1227

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

MANZOOR ELLAHI QURESHI through Legal Heirs----Petitioner

Versus

MUHAMMAD BILAL ABBAS and 2 others----Respondents

Writ Petition No.237 of 2010, decided on 15th December, 2011.

Limitation Act (IX of 1908)---

----Art. 181---Civil Procedure Code (V of 1908), S.48---Constitution of Pakistan, Art.199---Constitutional petition---Second application for execution of decree---Limitation---Scope---"Fresh application" as mentioned in S.48, C.P.C.---Connotation---Plaintiff (respondent) had filed suit for recovery of amount which was decreed ex parte in his favour but application for execution of the decree was filed after a period of four years, six months and twenty-four days, which execution application was dismissed---Plaintiff filed second application for execution of the said decree against which defendant (petitioner) filed a rejection application with the contention that same was time-barred, but both the courts below dismissed such application of the defendant---Validity---Application for execution of decree of civil court was governed by Article 181 of the Limitation Act 1908, prescribing a period of three years and any subsequent or fresh application for execution was governed by the six years time limit prescribed by section 48, C.P.C---Expression "fresh application" had been construed to mean application for execution after the disposal of the first execution application---Plaintiff had filed application for execution of ex parte decree after a long and unexplained period of more than four years, six months and twenty-four days, which application was barred by time and both the courts below had wrongly stretched the law of limitation in favour of the plaintiff---No legal embargo prevented the plaintiff from filing execution application before the executing court, even when defendant unsuccessfully tried to set aside the ex parte decree passed in favour of the plaintiff---Law favoured the vigilant and not the indolent---Plaintiff was bound under the law to approach the Trial Court within three years for execution of the ex parte decree---Conduct of plaintiff in remaining silent for a long, inordinate and unexplained period was by itself sufficient to deprive him from the fruits of the ex parte decree in his favour---Both the courts below had illegally accepted the time-barred application of the plaintiff for execution of the ex parte decree---Constitutional petition was accepted, impugned orders of both the courts below were set aside and second execution application of the plaintiff was dismissed on the ground of limitation.

Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 fol.

Muhammad Imran Khan and Miss Farhana Jabeen for Petitioner.

Fazlur Rehman for Respondent.

Date of hearing: 15th December, 2011.

2012 C L C 1255

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Waqar Ahmad Seth, J

M.S. QURESHI FLOUR MILLS through Shehzad Qureshi----Petitioner

Versus

REGIONAL MANAGER, UTILITY STORE CORPORATION, PESHAWAR and 4 others----Respondents

Writ Petition No.2535 of 2011, decided on 25th October, 2011.

Civil Procedure Code (V of 1908)---

----S. 36, O.XXXIX, Rr. 1 &2, O.XL R. 1---Constitution of Pakistan, Art.199---Constitutional Petition---Execution of interlocutory order, when main suit was dismissed as withdrawn---Scope---Application for temporary injunction and appointment of receiver---Maintainability---Contention of the petitioner was that the main suit stood dismissed as withdrawn, therefore, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver could not remain executable under law, and prayed that respondent's application under Section 36, CPC for execution of said order be dismissed---Validity---Record revealed that the petitioner's application for temporary injunction and appointment of receiver was declined---Order declining the prayer of the petitioner was in no way executable as no order in terms of the Section 36 of the CPC was passed---Even if it was assumed that there was such an executable order, then the same stood merged into the main order, whereby the suit of the petitioner was dismissed as withdrawn---No executable order had been passed in the case---Orders of courts below were without jurisdiction and lawful authority and were set aside---Constitutional petition was allowed, accordingly.

Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 and Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306 distinguished.

Khawaja Zaffar Jehangir and Khawaja Aurangzaib Alamgir for Petitioner.

Fida Gul for Respondents.

Date of hearing: 25th October, 2011.

2012 C L C 1272

[Peshawar]

Before Miftahuddin Khan and Waqar Ahmed Seth, JJ

Syed ABU TALIB SHAH and 9 others----Petitioners

Versus

Mst. BIBI RUKHSAR ZAHRA and 2 others----Respondents

Writ Petition No.1840 of 2010, decided on 13th March, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan Art.199---Constitutional petition---Suit for recovery of maintenance allowance and dower was decreed concurrently by courts below---Husband (petitioner) contended that the wife had herself left the house and was not entitled to maintenance---Validity---Husband was bound to maintain his wife and he was not absolved of his liability to maintain her even though she was no longer residing with him; provided that the wife had a lawful excuse or legal right to refuse to live with her husband on account of non-payment of prompt dower---Dower, in the present case, had not been paid to the wife, and therefore, she was justified in living apart from the husband---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional jurisdiction, exercise of---Scope---When the courts below, had the jurisdiction and lawful authority to decide a matter on merits; same was not open to interference by the High Court in its constitutional jurisdiction, unless and until, miscarriage of justice was established by the party in the constitutional petition---High Court would not interfere in judgment and decree passed by court of competent jurisdiction for the reason that when the matter was within the exclusive jurisdiction of the Family Court, and the Judge Family Court was to believe and disbelieve the evidence and give reasons to support a conclusion---Constitutional petition was not competent where the evidence had been properly appreciated and analyzed.

Zeeshan Ali Kiyani for Petitioners.

Malik Jarar Hussain for Respondents.

Date of hearing: 13th March, 2012.

2012 C L C 1316

[Peshawar]

Before Yahya Afridi, J

TAJ MUHAMMAD KHAN through L.Rs. and 13 others----Petitioners

Versus

COLLECTOR LAND ACQUISITION, GHAZI BAROTHA HYDRO POWER PROJECT, GHAZI and 17 others----Respondents

Civil Revision No.254 of 2011, decided on 3rd February, 2012.

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

----Ss. 4, 6, 10, 11, 12, 18 & 23---Acquisition of land---Public purpose---Provisions of Land Acquisition Act, 1894, comprehensively regulated issues relating to acquisition of land for public purpose, including the manner and mode of the classification and fixing the area of land to be acquired; the determination of compensation for the said land; the appointment and payment of the compensation so determined; the objection of 'persons interested" on the said determination in the award; and finally the mode and manner of resolution of all the disputes thereof that arose between the parties, or deemed appropriate or necessary by the Collector---General scheme envisaged in the Land Acquisition Act, 1894 could be best categorized into four stages; viz. request is made for acquiring property for public purpose, and a notification in that regard is made to the public; Collector determines the class and area to be acquired, the compensation to be made and the apportionment and payment of the said compensation for the said proposed acquired property; all "persons interested" who had an objection upon the terms determined in the Award, file their objections to the Collector, who in turn refers the same to the Referee Court and the reference so filed by the Collector is to be decided by the Referee Court.

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

----Ss. 18, 30 & 53---Civil Procedure Code (V of 1908), O.VI, R.17---Reference to Court---Dismissal of application seeking amendment in Reference---Referrers sought amendment of their objections, which went to the very root of their title over their acquired property---Referrers ought to be provided an opportunity to produce evidence to support their claim; they could not be denied the right to produce evidence in support thereof---Referrers sought amendment soon after filing of their objections to the Collector and no long protracted delay was taken in seeking the amendment, it could therefore, safely be stated that they did not intend to abuse the process of law or were indolent in protecting their rights and interest---Amendment sought, was neither expressly barred by any provision in Land Acquisition Act, 1894 nor did it affect the Government Policy or the Public Exchequer---Provision for amendment as provided in Civil Procedure Code, 1908 would be applicable as was stated under S.53 of Land Acquisition Act, 1894---Spirit behind provisions of O.VI, R.17, C.P.C. governing amendment, was to serve and advance justice and thereby to preserve the valuable rights of the parties---Procedure should never be the altar, where justice and rights of the parties were to be sacrificed---In fact, technicalities had to be avoided, if not brushed aside for advancing justice to the parties---Impugned judgment and order passed by the Referee Court whereby application for amendment was dismissed, was set aside, with direction to Referee Court to allow the objectors to amend the reference.

Mir Mazar v. Azim PLD 1993 SC 332; Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Shakir Muhammad and another v. The State PLD 1985 SC 357; Lalzada and another v. Gul Bakhsh Singh and 15 others PLD 1987 Pesh. 59; Muhammad Sherin Sahibzada v. Lal Badshah and 5 others PLD 1987 Pesh. 62; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Abdul Majeed v. Khalid Yasin and 2 others 2002 CLC 468; Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81; Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others PLD 1993 Pesh. 87; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311; Mst. Fatima and others v. Shah Muhammad and others PLD 1975 SC 318; Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Ihsan Illahi and others v. Hukam Jan PLD 1967 SC 200; H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; S.M. Jaffar v. A.Q. Shaukat and another PLD 1969 SC 70; Ghulam Muhammad v. Khan Muhammad Sabar Lal PLD 1969 SC 71; Muhammad Inayat v. Ch . Muhammad Saleem and 2 others PLD 1979 Lah. 154; Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Government of West Pakistan (Now N.-W.F.P. and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109; Mehrban v. Abdul Hamid alias Majid and others PLD 1983 SC 117; Muhammad Sharif v. Afsar Textile Mills Ltd. and an other 1985 SCMR 1181 and 1985 SCMR 1865; Zafrullah Khan v. Punjab Public Service Commission and others 1985 SCMR 1193 ref.

Fazal Muhammad and 3 others v. Co1lector, Land Acquisition and 9 others PLD 1973 Note 2 Lahore; Deputy Commissioner, Karachi v. Seth Sadiq Ali and 9 others PLD 1973 Note-3 Karachi; Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Government of West Pakistan (Now N.-W.F.P.) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109; Mehrban v. Abdul Hamid alias Majid (Hamidullah) PLD 1983 SC 117; Ch. Muhammad Sharif v. Afsar Textile Mills Ltd. and another 1985 SCMR 1181; Muhammad Rafique v. the State PLD 1985 SC 207; Ms. Khurshid Bibi v. Allah Ditta 1985 SCMR 1097; Afsar Textile Mills Ltd. v. Muhammad Sharif and another (1973 Law Notes NUC 334 Lahore distinguished.

M.A. Tahir Kheli for Petitioners.

Fida Muhammad Khan for Respondents.

Date of hearing: 3rd February, 2012.

2012 C L C 1333

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NIJAT ALI----Petitioner

Versus

SHARIF KHAN through L.Rs.----Respondents

Civil Revision No.1047 of 2004, decided on 13th March, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Genuineness of gift --- Ingredients---Plaintiff had sought declaration to the effect that he was the owner of the suit land on the basis of a gift deed executed in his favour and that the possession had also been delivered to him at that time---Validity---Plaintiff alleged himself to be the owner of the suit land on the basis of gift made in his favour but did not refer to any details as to when and where said gift was made---Evidence on record was deficient in proving said gift to be true and genuine and evidence of the scribe of the alleged gift deed was not sufficient enough to discharge the burden on the plaintiff of proving the genuineness of the gift----Oral gift made by a Muslim was valid, but when a deed in regard to such a gift was executed, then the same required compulsory registration --- Mere proof of execution of deed, in circumstances, would not be sufficient to discharge said burden unless transaction embodied in the deed was proved through cogent and trustworthy evidence---Basic ingredients of a genuine gift such as offer, acceptance and delivery of possession of the property under gift were required to be proved by the donee --- Said gift deed was not referred to in a previous suit for declaration instituted by the father of the plaintiff and had strangely been referred for the first time on the filing of the present suit---Gift deed in question would not be sufficient to be relied upon by ignoring the real heirs of the suit land--- Revision was dismissed.

Muhammad Ijaz and others v. Khalida Awan and another 2010 SCMR 342 rel.

Amir Gulab Khan for Petitioner.

Abdul Halim Khan for Respondent.

Date of hearing: 13th March, 2012.

2012 C L C 1345

[Peshawar]

Before Dost Muhammad Khan, C.J. and Mian Fasihul Mulk, J

PESHAWAR HIGH COURT BAR ASSOCIATION (PHCBA) through Secretary General, PHCBA, Peshawar----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary to Governor Khyber Pakhtunkhwa and 16 others----Respondents

Writ Petition No.1653 of 2011, decided on 1st February, 2012.

(a) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition ---Prayer for establishment of Khyber Law University by upgrading the existing Khyber Law College, Peshawar---Validity---Not a single University out of 25 Universities was imparting higher legal education in Province of Khyber Pakhtunkhwa---No meaningful effort had been made during last 65 years after independence of Pakistan to promote legal education by enhancing capacity and capability of Law Institutions and make such education easily available and accessible within country---More than 95% lawyers could not afford to get higher legal education from abroad---Majority of Private Law Colleges running on commercial basis were lacking required standard---Sharp decline in legal standard, knowledge, skill, capacity and capability of lawyers had made difficult task of recruiting Judges in subordinate judiciary and elevation of senior lawyers as Judges of the High Court---Government had introduced various specialties in each profession, but had not created any special faculty and specialized fields of legal profession---Courts of law, if assisted by specialized lawyers in a particular specialty, would be able to reduce delay in delivery of justice---Quality of legal education could not be enhanced without establishing a Law University consisting of specialized faculties in different branches of law and providing higher professional education including LLM & Ph.D.---Up-grading present Khyber Law College to status of Law University had become necessary---Government had already upgraded many other colleges to status of Universities with all allied facilities and faculties, but had not given attention to legal education resulting into discriminatory treatment thereto---High Court directed Government and all authorities to immediately draft Bill for establishment of Khyber Law University and place the same before Provincial Assembly for its enactment as a law after making Chief Justice of High Court as Chairman of its Senate---Principles.

(b) Bar Association---

----Status of---Bar Associations are nursery for subordinate and higher judiciary in a Province---Principles.

(c) Khyber Pakhtunkhwa Judicial Academy Act (IV of 2012)---

----Preamble---Training in the Judicial Academy---Scope---Goals and targets set out in Charter of the Academy could not be achieved without changing its curriculum drastically---Principles.

(d) Legal education---

----Law graduates of high quality, creation of---Measures suggested by High Court for bringing changes in curriculum of LL.B. course stated.

Ameen-ur-Rehman for Petitioner.

Naveed Akhtar, A.A.-G. and Waseem-ud-Din Khattak for Respondents.

Date of hearing: 1st February, 2012.

2012 C L C 1397

[Peshawar]

Before Khalid Mahmood, J

MUSHARRAF KHAN and 5 others----Petitioners

Versus

ABDUL MANNAN and 17 others----Respondents

Civil Revision No.340 of 2010, decided on 7th May, 2012.

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

----Arts. 117 & 120---Fact---Onus to prove---When a party alleges a specific factual point then that party is bound to prove the same by supporting evidence.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Concurrent findings of two courts below---Plaintiffs assailed mutations in question on the plea of fraud---Validity---Material contradictions existed and suit was filed by a dead person and there was forged power of attorney which had been ignored by both the courts below---Suit was filed after delay of 18 years, deviation from pleadings without amendment in pleadings, forged power of attorney, filing of suit on behalf of dead person, common witness had admitted mutations as correct by one of the executants---High Court, in exercise of revisional jurisdiction, on the basis of material contradictions in the statements of plaintiff's witnesses, set aside the judgments and decrees passed by two courts below---Revision was allowed in circumstances.

Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCMR 1992 ref.

Abdul Latif Khan for Petitioners.

M. Bashir Mughal for Respondents.

Date of hearing: 7th May, 2012.

2012 C L C 1418

[Peshawar]

Before Nisar Hussain Khan, J

RESHAM JAN----Petitioner

Versus

KHANI JAN and others----Respondents

Civil Revision No.74-B of 2006, decided on 4th April, 2012.

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

----S. 20---Transfer of Property Act (IV of 1882), S.58---Possession of mortgaged property---Effect---When mortgagee is in possession of such property and receives usufruct, the same is deemed not only the payment of mortgage money but it is an acknowledgement as well---Receipt of every such usufruct gives a fresh cause of action on each successive harvest for the purposes of computation of limitation.

Abdul Haq v. Ali Akbar and others 1999 SCMR 2531 ref.

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

----S. 114---Review---Scope---Any person aggrieved of an order or decree, can file review petition before the same court, whether right of appeal against the same is provided in Civil Procedure Code, 1908, or not.

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

----O. XLVII, R.1---Review---Scope---Aggrieved party may apply for review of judgment to the court, which has passed the decree or made the order on account of some mistake or error, apparent on the face of record or for any other sufficient reason.

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

----Ss. 114, 115 & O.XLVII, R.1---Transfer of Property Act (IV of 1882), S.60---Review of judgment---Rectifying of error apparent on the face of record---Suit for redemption of mortgaged property was partially decreed by Trial Court in favour of plaintiff but Lower Appellate Court allowed the appeal of defendants and dismissed the suit---Lower Appellate court, on application by plaintiff, reviewed its judgment and decreed the suit in favour of plaintiff---Validity---Mutation dated 15-3-1945 was mentioned and the same was duly produced in evidence but it escaped notice of Lower Appellate Court---Such was a mistake and error apparent on the face of record, which resulted into a judgment against plaintiff and dismissal of his suit, causing grave miscarriage of justice---If entry in revenue record, floating on the record, was earlier considered by Lower Appellate Court, the result would have been different­---Provisions of S.114 and O.XLVII R.1, C.P.C., conferred a statutory right on the party aggrieved from order or judgment of court, significance of which could be seen from the fact that it had made a substitute of right of appeal, as well and the same could not be taken lightly, when a substantial right of a party was involved---Lower Appellate Court had committed no illegality or any material irregularity in exercise of its review jurisdiction for rectifying its own error---High Court declined to interfere in the order passed by Lower Appellate Court in exercise of review jurisdiction---Revision was dismissed in circumstances.

Taj Muhammad Khan for Petitioner.

Masood Iqbal Khattak for Respondents.

Date of hearing: 4th April, 2012.

2012 C L C 1471

[Peshawar]

Before Khalid Mahmood, J

JOHAR ALI (RAKI) and another----Petitioners

Versus

DISTRICT CO-ORDINATION OFFICER (D.C.O.) and 9 others----Respondents

Writ Petition No.214 of 2011, decided on 22nd May, 2012.

Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----S. 116 [as amended by North-West Frontier Province Local Government (Amendment) Ordinance (II of 2005), S.53] & S.127---Constitution of Pakistan, Art.199---Constitutional petition---Taxes to be levied---Imposition of local tax---Petitioners were importers of goods from China through dry port Sust Gilgit---Grievance of petitioners was that local government was not entitled to recover Kohistan Development Fee-Cess---Validity---Collection of tax under S.127 of Khyber Pakhtunkhwa Local Government Ordinance, 2001, was meant for Provincial tax levied by Provincial Government---No publication before levying of tax had been produced vide which objections from public were invited nor any legal procedure for imposition of disputed tax had been brought on record---Government had abolished Octroi/Zilla tax on transportation of articles so transported within the country from one district to another---High Court in exercise of Constitutional jurisdiction declared Kohistan Development Fee-Cess, illegal and void---Petition was allowed in circumstances.

Ch. M. Ashraf Gujjar for Petitioners.

Muhammad Nawaz Khan Swati, A.A.-G. and Abdul Qayyum, P.S. to D.C.O. for Respondents.

Date of hearing: 22nd May, 2012.

2012 C L C 1503

[Peshawar]

Before Qaiser Rashid Khan, J

Haji LAL SHAH----Petitioner

Versus

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

Civil Revision No.224 of 2011, decided on 21st May, 2012.

(a) Administration of justice---

----Technicalities---Scope---Cases should be decided on merits and in accordance with law after recording pro and contra evidence of parties and technicalities should be avoided.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction---Rejection of plaint---Fact not mentioned in plaint---Concurrent findings of fact by two courts below---Suit filed by plaintiff was rejected by Trial Court as well as by Lower Appellate Court---Validity---Trial Court found in the order rejecting plaint that the suit was instituted by plaintiff through his attorney, whereas the plaint was duly verified by plaintiff himself and not through some attorney---As to from where the Trial Court gathered such information or for that matter presence of alleged power of attorney was not gleaned from available record---Such was a glaring irregularity committed by both the courts below---Courts of law were not supposed to be swayed by oral submissions of parties while rejecting plaints by invoking provisions of O.VII, R.11, C.P.C. but strictly on the basis of what was brought on record with the plaint or written statement---Proper course in case of controversial questions of facts or law, for a court was to frame issues on such questions and decide the same on merits in the light of evidence---Any departure from such course would amount to deprive a person from his legitimate right---Order of rejecting the plaint passed by both the courts below was set aside and case was remanded to Trial Court for decision afresh on merits after affording opportunity of recording pro and contra evidence and hearing arguments of both the parties---Revision was allowed accordingly.

Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Jewen v. Federation of Pakistan 1994 SCMR 826 rel.

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

----S. 115---Revisional jurisdiction, exercise of--- Principles---Concurrent findings of fact by the Courts below are normally not interfered with in revisional jurisdiction---If the courts below have committed error of law, which has caused grave injustice resulting in miscarriage of justice itself, then the High Court can interfere while sitting in its revisional jurisdiction.

Malik Atta Muhammad Khan for Petitioner.

S. Zulfiqar Hussain Shah and Kamran Khan Niazi for Respondents.

Date of hearing: 21st May, 2012.

2012 C L C 1528

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

JANAT GUL and 4 others----Petitioners

Versus

HABIB-UR-RAHIM and another----Respondents

Civil Revision No.842 of 2010, decided on 10th February, 2012.

Civil Procedure Code (V of 1908)---

----O. XX, R. 18(2), O. XXI, Rr. 1, 2 & 23-A---Suit for possession through partition---Dismissal of appeal filed against preliminary decree---Defendant's application seeking dismissal of plaintiff's application for passing of final decree by Trial Court on the ground that parties after dismissal of appeal, had effected a compromise outside court through intervention of elders of locality, whereunder plaintiff had received his due share in disputed house---Dismissal of defendant's application by Trial Court and Appellate Court refusing to accept such compromise---­Validity---Compromise deed signed and thumb-marked by many persons of locality was required to be proved to achieve ends of justice by allowing parties to lead pro and contra evidence---Trial Court had committed an irregularity by not providing chance to defendant to prove such compromise---Court could adopt a suitable way just to secure ends of justice and decide controversy between parties once for all---Court in case of frivolous objection/defence could impose compensatory costs or could get undertaking from party regarding compliance of decree in case of failure of his objection---High Court set aside impugned orders and allowed the defendant to produce evidence within a month positively after giving undertaking to Trial Court that in case of his failure to do so, he would have to pay the decretal amount in lump sum and hand over possession of 1/2 share in disputed house without fail.

Mian Hussain Ali for Petitioners.

Abdul Halim Khan for Respondents.

Date of hearing: 10th February, 2012.

2012 C L C 1536

[Peshawar]

Before Mian Fasihul Mulk and Mazhar Alam Khan Miankhel, JJ

ANWAR HAYAT and 4 others----Petitioners

Versus

Mst. DURRE SAMIN and 4 others----Respondents

Writ Petition No.1082 of 2011, decided on 24th May, 2012.

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

----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition----Dismissal of application under S.12(2), C.P.C. without recording evidence---Scope---No element of fraud or misrepresentation due to compromise---Effect---Not necessary for the Trial Court to record pro and contra evidence in such circumstances---Dispute over property between legal heirs---Declaratory suit filed in the civil court against male legal heirs---Written compromise made between the heirs---Civil court granted decree in terms of the compromise---Subsequently legal heirs 'D' and 'H' (respondents) filed application under S.12(2), C.P.C, challenging the validity of the decree on grounds of fraud and misrepresentation, which application was dismissed by the Trial Court without recording evidence by holding that compromise between the parties had been duly signed by the husbands of 'D' and 'H', who were duly nominated for such purpose---Revision petition filed against order of Trial Court was accepted and case was remanded to the Trial Court to decide the same by recording pro and contra evidence---Validity---Legal heirs D' and 'H', through their husbands, had entered into a compromise with the other legal heirs by recording a joint statement for their due share in the inheritance and the suit was decreed in view of the terms of the compromise---Application filed by legal heirs D' and 'H', in such circumstances, had been rightly dismissed by the Trial Court---Other legal heirs had approached the competent court for grant of succession certificate, wherein D' and 'H' were again represented by their husbands and admitted the genuineness of the compromise---Not necessary for the Trial Court to record pro and contra evidence when there appeared to be no element of fraud and misrepresentation---Intention of the legal heirs 'D' and 'H' was to drag the other legal heirs by filing frivolous applications---Impugned order of court below was not sustainable, in circumstance---Constitutional petition was accepted, impugned order of court below was set aside and that of the Trial Court was restored.

Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Warraich Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 rel.

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

----S. 12(2)---Application under S.12(2), C.P.C---Non-framing of issues and non-recording of evidence by the Trial Court---Validity---Not obligatory for the court to frame issues and record evidence in every case and such an application could be decided on the basis of available evidence and relevant record, if considered sufficient by the court.

Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296; Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Warraich Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 ref.

Zia-ur-Rehman, Rashid Ali and Mujahid Farooq for Petitioners.

Gohar Ali Khan for Respondents.

Date of hearing: 24th May, 2012.

2012 C L C 1568

[Peshawar]

Before Syed Sajjad Hassan Shah, J

TAJ REHMAN and others----Petitioners

Versus

JEHANGIR KHAN and others----Respondents

Civil Revision No.588-P with C.M. No.493-P of 2012, decided on 4th July, 2012.

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

----Ss. 42 & 54---Suit for declaration and injunction---Concurrent findings of two courts below---Plaintiffs claimed that they were owners in possession of suit-land on the basis of sale-deed dated 8-9-1964---Both the courts below concurrently dismissed suit and appeal filed by plaintiffs---Validity---Plaintiffs could not refer to any piece of evidence adduced by them, which was either misread or not read by courts below---Purchase of property in dispute by plaintiffs could not be proved through evidence on record as to be false---Fact that defendants were occupying suit property in their capacity as tenants remained unsubstantiated, especially when no trustworthy evidence either oral or documentary was adduced in that behalf---High Court declined to interfere in concurrent judgments and decrees passed by two courts as the courts below did not commit any factual, legal or jurisdiction error---Revision was dismissed in circumstances.

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

----Ss. 100 & 115---Second appeal and revisional jurisdiction---Concurrent findings of fact by two courts below---Misreading and non-reading of evidence-- Effect---Concurrent findings of fact by two courts below cannot be disturbed by High Court in second appeal much less in exercise of revisional jurisdiction under S.115 C.P.C., unless two courts below while recording finding of fact have either misread the evidence or have ignored any material piece of evidence on record or finding of fact recorded by two courts below is perverse---Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction under S.115, C.P.C. is still narrower---Under revisional jurisdiction, High Court only corrects jurisdictional errors of subordinate courts---Fact that High Court while reappraising evidence on record reached conclusion different from those arrived at by two courts below, can never be a ground justifying interference with a findings of fact muchless concurrent finding recorded by two courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under S.115, C.P.C.

Umar Dad Khan v. Tilla Muhammad Khan PLD 1970 SC 288; Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504; Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005 ref.

Waqar Ahmed Khan for Petitioners.

Respondents (Motion).

Date of hearing: 4th July, 2012.

2012 C L C 1618

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Mst. YASMIN----Petitioner

Versus

MUHAMMAD JAMIL KHAN and 2 others----Respondents

Civil Revision No.1785 of 2010, decided on 9th July, 2012.

Specific Relief Act (I of 1877)---

----Ss. 54 & 56---Refusal of injunction---Co-sharer---Property in question not partitioned---Effect---Rights and privileges of co-sharers---Plaintiff claimed to be owner in possession of suit land and alleged that defendants being stranger should be restrained from claiming themselves as owners of suit land---Validity---Co-sharer in possession of suit property even on entire Khasra number in cultivation column would be deemed to have joined the same right and privilege to which other co-owners were entitled---Plaintiff could not claim that she was on better pedestal as compared to other co-owners because all co-owners had right to occupy their possession till the time partition was taken place by its metes and bounds---Defendants were co-owners in property in dispute, no restraint could be imposed on their rights to transfer their shares---None of the parties was supposed to interfere with each other's possession, till they along with other joint property in possession of other co-owners were partitioned by metes and bounds---Both the courts below had rightly dismissed suit and appeal filed by plaintiff and the judgments were free from misreading or non- reading of evidence and the same were not open to any exception---High Court in exercise of revisional jurisdiction maintained judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Haji Khan Muhammad and others v. Yaqub Khan and others PLD 1956 W.P. Pesh. 96 and Muhammad Muzaffar Khan v.-Muhammad Yousaf Khan PLD 1959 SC (Pak.) 9 rel.

Ijaz Ahmad Malik for Petitioner.

Syed Walayat Ali Shah for Respondents.

Date of hearing: 9th July, 2012.

2012 C L C 1630

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Mst. JAN ARA and others----Petitioners

Versus

MUHAMMAD ZUBAIR and others----Respondents

Civil Revision No.175 of 2009, decided on 26th June, 2012.

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

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration---Rejection of plaint---"Cause of action"---Connotation---Plaintiffs sought declaration to the effect that one of the defendants was not daughter and the other was not widow of the deceased, therefore, both the defendants could not claim benefit of their relationship---Trial Court, on the application by defendants, rejected plaint but Lower Appellate Court dismissed application filed under O.VII, R.11, C.P.C.---Validity---Averments made in plaint prima facie disclosed cause of action, therefore, provisions of O.VII, R.11, C.P.C. could not be attracted to the facts---Averments made in plaint were to be considered in its entirety and there from cause of action could be determined---Word "cause of action" denoted those bundles of facts if traversed by opposite party, it was the plaintiff to prove the same for grant of decree in his favour---Single fact was not sufficient to arrive at the conclusion that cause of action existed or not---Trial Court erred to pass order of rejection of plaint, which order was justly and lawfully set aside by Lower Appellate Court and restored the suit of plaintiffs with direction to Trial Court to decide same on merits---High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

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

----O. VII, R. 11---Rejection of plaint---Administration of justice---Provision of O.VII, R.11, C.P.C. being penal, be construed strictly by considering statements made in plaint in the light of law applicable thereto and not to be resorted to unless conditions for exercise of such drastic powers are fully satisfied---If plaint is suffering from any legal infirmity entailing its rejection, in such eventuality, plaintiff has the right to amend his plaint for clarity of vagueness appearing in pliant, so that it may conform with relevant provisions of law---Cherished goal of law is that matters to be decided on merits so that litigants are not deprived of their valuable rights in the wake of their technical knockout.

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

----S. 42---Negative declaration---Scope---Where in plaint, relief sought for is in negative form of declaration its refusal is not justified, as there is no absolute bar contained anywhere in law.

Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lah. 113 rel.

Ahmad Saleem Khan for Petitioners.

Sadiq Ali for Respondents.

Respondents Nos.2 and 3 placed ex parte.

Date of hearing: 26th June, 2012.

2012 C L C 1690

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD AKRAM KHAN----Petitioner

Versus

MUHAMMAD IQBAL KHAN and 4 others----Respondents

Civil Revision No.103 of 2011, decided on 14th May, 2012.

(a) Islamic Law---

----Gift (hiba), validity of---Failure to prove essentials of a valid gift---Concept of abdication from estate---Recognition under Islamic law---Scope---Donor and donee residing together at the time of gift---Revenue officer and officials, who entered, registered and attested the gift mutation not examined---One of the donees/defendant making an alternate claim of having purchased the property---Effect---Suit for declaration, perpetual injunction and possession through partition---Controversy between the parties, revolved around the impugned gift-deed, made by predecessor of the parties in favour of one of his sons and grandsons (defendants/appellants)---Plaintiff (petitioner), who was also a son of the predecessor, filed suit to claim his inheritance share in the disputed property, contending therein that his father/donor was not in his proper senses at the time of impugned gift, therefore, he could not have alienated the suit property through gift deed and mutation---Defendants (respondents) contested the suit contending that the donor had abdicated the plaintiff (declared plaintiff as "Aaq") due to his disobedience---Suit of plaintiff was dismissed by the civil court and First Appellate Court---Validity---Only reason shown by the defendants for transfer of entire property in their favour, to the exclusion of all other legal heirs including the plaintiff, was the abdication of the plaintiff---Said reason was not recognized under Islamic law---Transferee/defendants were obliged to have proved the transfer in their favour as voluntary , with free consent of the donor and free from doubts, fraud and fabrication---No evidence was available on record to show that offer, acceptance and delivery of possession had been made by the donor to the donee, which were the essential requirements of a valid gift---Free and independent consent of the donor was not proved---Testimonies of the Revenue Officer, Sub-Registrar, Patwari, Lumberdar and Local Councillor, all having played a pivotal role in registration and execution of the gift deed and mutation, were not obtained---Plaintiff had made a detailed statement before the Trial Court alleging fraud and illegal exclusion of the legal heirs including the plaintiff from the legacy of their father, but no cross-examination was conducted on behalf of the defendants, which clearly denoted the admission of the claim of the plaintiff---Donor/father resided with the donee/defendants at the time of the gift mutation---During examination one of the defendants, who was son of the donor, stated that he had purchased the property for a sale consideration---Such statement was difficult to believe because on one hand the defendants claimed the property was transferred in their favour by the donor and on the other one of the defendants claimed to have purchased the same by incurring his own expenses---Impugned gift was the result of fraud as it involved or implied injury to person or property of another---Impugned gift was void ab initio---Impugned judgments and decrees of courts below were set aside and suit of the plaintiff was decreed.

Muhammadan Law by Syed Ameer Ali Fifth Edition by Raja Said Akbar Khan ref.

Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others 2002 SCMR 1938; Muhammad Yaqoob through legal heirs v. Feroze Khan and others 2003 SCMR 41 and Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658 rel.

(b) Islamic law---

----Act---Nature and validity---Incapacity to perform an act/ obligation---Effect.

Every legal act under Islamic law was regarded as an obligation and validity of every obligation depended on the faculty or capacity of the persons doing the act to consider freely and rationally the consequences resulting therefrom. Where the person was by virtue of an inherent or super imposed and accidental disqualification, incapable of exercising his volition in a rational manner with perfect reasoning, then, any obligation entered into by him was null and void.

(c) Islamic law---

----Gift---Validity---Proof.

Donee had to prove by leading all available evidence that the propositus departed with his property by his free will and the transaction of gift was free from all doubts, fraud and fabrication.

(d) Islamic law---

----Gift made with intention to defraud creditors could not be declared as lawful one.

Section 140 of D.F. Mulla's Principles of Muhammadan Law ref.

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

----Art. 119---Document---Allegation of fraud, collusion and coercion---Validity and legality---Burden of proof---Scope.

When a document was challenged on the grounds of fraud, collusion, coercion or was the result of undue influence and mala fide, it was the bounden duty of the beneficiary of the document to prove the same by leading all available convincing and cogent evidence.

Muhammad Waheed Anjum for Petitioner.

Muhammad Khurshid Qureshi for Respondent.

Date of hearing: 14th May, 2012.

2012 C L C 1726

[Peshawar]

Before Syed Sajjad Hassan Shah, J

QAYUM NAWAZ through L.Rs.----Petitioner

Versus

ALLAH NAWAZ through L.Rs.----Respondent

Civil Revision No.138-D of 2012, decided on 7th June, 2012.

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

----O. VII, R. 11---Specific Relief Act (I of 1877) S.12---Rejection of plaint---Principles---Suit for specific performance of oral agreement to sell immovable property---Plaint of the plaintiffs was rejected concurrently---Validity while rejecting the plaint, the court had only to see the averments in the plaint and if on admitting all the grounds mentioned therein as correct, the plaintiffs are not found to be entitled for the decree in their favour, the plaint was liable to be rejected but if the grounds as pleaded in the plaint require leading of evidence in support thereof the plaint could not be rejected---Cause of action was also to be taken into consideration while rejecting the plaint, but without specifying in the impugned order as to how the plaintiff had no cause of action to file the suit, the plaint had been rejected---Oral agreement, in the present case, was stated to have been entered between the parties and terms of the said agreement had been specified by the plaintiffs; which were essential constituting the cause of action---Plaintiffs as such, had a cause of action and the suit was maintainable---High Court set aside the impugned orders and remanded the case---Revision was allowed, accordingly.

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

---Art. 113---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell immovable property was rejected on the ground that same was time barred---Computation of time for limitation---Scope---Filing of suit for specific performance was controlled by Article 113 of the Schedule to the Limitation Act, 1908; which provided that where no time for completing the sale transaction was fixed under the said Article; the time was to run from when the plaintiff had noticed that the performance was being refused---No time for the performance of the agreement had been fixed, in the present case, and therefore, the time would be computed from the date of the refusal to perform the agreement; by the defendants---Revision was allowed.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 and Haji Abdul Ghafoor through legal heirs v. Muhammad Hayat through legal heirs 2007 YLR 875 ref.

Muhammad Anwar Awan for Petitioner.

Malik Muhammad Bashir and Muhammad Arshad Kabir for Respondent.

Date of hearing: 7th June, 2012.

2012 C L C 1932

[Peshawar]

Before Waqar Ahmad Seth and Shah Jehan Akhunzada, JJ

ZAHOOR AHMAD and another----Petitioners

Versus

Mst. FAHIMA HAFEEZ and 2 others----Respondents

Writ Petition No.313-B of 2012, decided on 16th August, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Father (petitioner) of the minor assailed concurrent findings of the courts below whereby custody of the minor was allowed to remain with the mother---Contention of the father was that mother had a contagious disease---Validity---Concurrent findings of courts below on the question of welfare of minor could not be interfered with in the Constitutional Jurisdiction of High Court---Age of minor was about four years and therefore, mother was entitled to the custody as a matter of right under Islamic Law up to the age of Hizanat---Constitutional petition was dismissed, in circumstances.

Shakeel Ahmad for Petitioners.

2012 C L C 1937

[Peshawar]

Before Qaiser Rashid Khan, J

GHULAM SARWAR----Appellant

Versus

ATTIQUE-UR-REHMAN----Respondent

First Appeal from Order No.41 of 2011, decided on 23rd April, 2012.

Civil Procedure Code(V of 1908)---

----O. XXXVII & S.2(2)---Suit for recovery---Decree---Definition---Scope---Execution when monetary suit was settled privately between the parties---Scope---Suit was settled as a result of a compromise, and on basis of said compromise, an order was drawn up by the Trial Court----On failure of the defendant to pay the settled amount, the plaintiff filed an execution petition, maintainability of which was assailed by the defendant---Validity---Trial Court disposed of the suit in terms of compromise, albeit without decreeing the suit as such in favour of the plaintiff against the defendant but instead consigned the file to the record room after its completion---Where no decree sheet was drawn and the suit was merely disposed of, then the said order did not fall within the definition of the "decree" under section 2(2) of the C.P.C.---Order of Executing Court was set aside---Appeal was allowed, in circumstances.

Faqir-ur-Rehman for Appellant.

Muhammad Ali Khan Jadoon for Respondent.

Date of hearing: 23rd April, 2012.

2012 C L C 1944

[Peshawar]

Before Nisar Hussain Khan, J

MOSAM KHAN----Petitioner

Versus

SARFRAZ KHAN through L.Rs. and otherss----Respondents

Civil Revision No.89-B of 2011, decided on 2nd May, 2012.

(a) Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----Ss. 3(2) & 4---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), Ss.2 & 3---Transfer of Property Act (IV of 1882), S.41---Specific Relief Act (I of 1877), S.42---Succession to legacy of Muslim females on termination of their limited interest---Attestation of mutation of inheritance of last male owner on 22-2-1920 in favour of his daughter and widow---Transfer of suit property to defendant (sole son of brother of last male owner) after remarriage of his daughter and widow through mutation dated 22-3-1927 and its sale by defendant---Plaintiffs being legal heirs of daughter of last male owner claimed their Islamic share in suit-land by way of setting aside such mutations and sales---Defendant's plea that mutation in his favour was attested on 22-3-1927 much prior to promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, thus, same being past and closed transaction could not be re-opened after more than eighty years---Validity---Both Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 and West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had retrospective effect and deceased last male owner would be deemed to have died under domain of Muslim Law, even if his death had taken place before coming into force of both the Acts---On occasion of remarriage of widow, land belonging to last male owner was liable to be distributed amongst his legal heirs i.e. his widow 1/8 share, his daughter 1/2 share and residue to his nephew (son of his deceased brother)---Such daughter was entitled to 1/2 share in suit-land, which entitlement of her could not be extinguished by mutation---Daughter for being co-sharer in suit-land would be deemed to be in possession thereof---Co-sharer in possession of joint land would be deemed to be in possession thereof on behalf of all co-owners---Limitation would not run against co-sharer---Every successive adverse entry in revenue record would give a fresh cause of action---Question of limitation would not arise in matters of inheritance, thus, volume of span of time elapsed would become immaterial---Illegal act or wrong entry would not become legal with efflux of time howsoever long same might be---Purchaser of suit-land before purchasing same were bound to inquire about title of his vendor-defendant---When vendor-defendant himself had no title/right in suit-land, then he could not transfer same to its transferee---Deprived legal heirs had not entered into any conscious transaction with defendant, thus, they could not be made liable to compensate his transferee---Principle of bona fide purchaser for being based on equity could not be invoked in a manner to cause injustice to others---Such transferee could claim adjustment of his right from defendant-transferor from his own Islamic share in suit-land or from his property acquired from his father, but not from share of plaintiffs---Suit was decreed in circumstances.

Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others PLD 1991 SC 93; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 rel.

(b) Co-sharer---

----Limitation---Co-sharer in possession of joint property would be deemed to be in possession thereof on behalf of all co-owners---Limitation would not run against co-sharer.

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

----O. VII, R.1(e)---Every successive adverse entry in revenue record would give a fresh cause of action.

(d) Islamic Law---

----Inheritance---Limitation---Question of limitation would not arise in matters of inheritance---Illegal act or wrong entry would not become legal with efflux of time howsoever long same might be.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCMR 515 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 rel.

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

----S. 41---Purchaser claiming protection of S.41 of Transfer of Property Act, 1882---Essential conditions---Purchaser must inquire about title of his vendor and then enter into any transaction with him.

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

----S. 41---Nobody could transfer a better title than that he himself possessed---Vendor, if having no right in property, could not transfer same to transferee.

Abdul Hameed through L.Rs and others v. Shamsuddin and others PLD 2008 SC 140 rel.

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

----S. 41---Bona fide purchaser, principle of---Applicability---Scope---Such principle for being based on equity could not be invoked as a rule of thumb and in a manner to cause injustice to others---Principles.

Muhammad Ayaz Khan Qasoria and Haji Zafar Iqbal for Petitioners.

Muhammad Farooq Khan Marwat and Muhammad Aslam Khan Machan Khel for Respondents.

Date of hearing: 2nd May, 2012.

2012 C L C 1980

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

OMAR ALI and 4 others----Petitioners

Versus

MUHAMMAD SHOAIB and 2 others----Respondents

Civil Revision No.$09 of 2003, decided on 25th June, 2012.

Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of

1994)---

----Ss. 3 & 4---Specific Relief Act (I of 1877), S.42---Suit for declaration---Suit _ filed by the plaintiffs under Provincially Administered Tribal Areas Regulations II of 1975 was dismissed by the Trial Court and court of appeal and the revisional forum---On filing constitutional petition by the plaintiffs, case was sent back to the Trial Court for decision afresh---Before the announcement of any verdict by the Trial Court after remand of case, Provincially Administered Tribal Areas Regulations, 1975 were declared repugnant to Art.25 of the Constitution by High Court; thereafter Regulations II of 1994 Provincially Administered Tribal Areas (Nifaz-e-Shariah) 1994 was promulgated---Consequent upon repeal of Provincially Administered Tribal Areas. Regulations, 1975, and promulgation of Regulations, 1994, which later on was also repealed, cases which were not finally concluded, before Provincially Administered Tribal Areas Courts under Regulations II of 1975, were transferred to courts working under Provincially Administered Tribal Areas Regulations, 1994---After such transfer, the transferee court was supposed to decide the cases in accordance with prevailing law (Regulations 1994), but Trial Court in the present case, without adopting the legal procedure for trial or getting the consent of the party for their reliance on the already recorded evidence, dismissed the suit, and appeal against the same also met the same fate=--Validity---On transfer of case to ordinary civil court working under Regulations II of 1994 (Nifaz-e-Nizam-e-Shariah), transferee court did not carry out fresh trial under the law, but relied on the consent of parties given before the set up performing functions under the repealed' Regulations, 1975---Such findings, in the circumstances, could not be said to be under the law---High Court set aside the findings of the courts below and case was remanded to the court of Civil Judge for trial de novo.

Muhammad Irshad and others v. Assistant Commissioner Swat and others PLD 1990 Pesh. 51; Ghulam Rahim and 11 others v. Nauroz and 39 others 2001 CLC 414; Government of N.-W.F.P. v. Muhammad ' Irshad PLD 1995 SC 281; Abdul Samad and others v. Painda Muhammad and others PLD 1997 Peshawar 35 and Abdul Malik v. Yar Muhammad and others in Writ Petition No.1216 of 1999 ref.

Sher Muhammad Khan for Petitioners.

Said Taher Khan for Respondents.

Date of hearing: 19th June, 2012.

2012 C L C 1994

[Peshawar]

Before Mazhar Alam Khan Miankhel and Khalid Mehmood, JJ

MUHAMMAD HAMAYOON KHAN----Petitioner

Versus

D.C.O./COMMANDANT LEVIES and others----Respondents

Writ Petitions Nos.252 and 263 of 2012, decided on 28th June, 2012.

(a) Malakand Levies Rules 1962---

----Rr. 2 & 3---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Civil service---Request for assignment of charge---Petitioner impugned request for assignment of charge to respondents made by the District Coordination Officer---Validity--- No order detrimental to the rights of the petitioner was passed by any Authority and the petitioner had impugned a request made by the Chief Coordinator to the Prime Minister Secretariat which would not termed as an order affecting rights of the petitioner---Petitioner had no locus standi to file the constitutional petition---Constitutional petition, being not maintainable, was dismissed.

(b) Malakand Levies Rules 1962--

----Rr. 2 & 3---Constitution of Pakistan, Art.199---Constitutional petition---Subedars---Malakand Levies Rules, 1962 were not the statutory rules governing the service of (he parties (subedars), and Constitutional petition, in circumstances, was not maintainable.

Suo Motu Case No.24 of 2010 etc., PLD 2011 SC 277; Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad. v. Gul Muhammad and others 2011 SCMR 295; Executive Council, Allama Iqbal Open University, Islamabad, through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Muhammad Mubeen-us-Salam and 24 others v. Federation of Pakistan through Secy. M/o Defence Government of Pakistan and others 2010 SCMR 1904 and Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253 rel.

Muhammad Yar Malazai for Petitioner.

A.A.-G. for Respondents.

Date of hearing: 28th June, 2012.

2012 C L C 12

[Balochistan]

Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ

PAKISTAN MOBILE COMMUNICATION LTD., (MOBILINK) ISLAMABAD through Authorized Representative----Appellant

Versus

NAIMATULLAH ACHAKZAI and 3 others----Respondents

Civil Miscellaneous Appeal No.1 of 2011, decided on 22nd August, 2011.

Arbitration Act (X of 1940)---

----S. 34---Specific Relief Act (I of 1877), S.42---Arbitration agreement---Stay of proceedings---Suit for declaration and recovery of damages---Defendant filed application for stay of proceedings on the ground that parties had arbitration clause in their agreement---Application filed by defendant was dismissed by Trial Court----Plea raised by defendant was that dispute had arisen out of the agreement, therefore, despite termination of agreement between the parties, matter should be referred to arbitrator---Validity---Plaintiff did not dispute execution of agreement and its arbitration clause---Once, the parties agreed to decide their dispute in a particular manner, then unless and until any strong and sufficient reason was shown, parties must surrender themselves to the forum voluntarily chosen by them with their free will and consent---Defendant, being co-signatory with plaintiff to arbitration agreement, had the option to compel plaintiff to abide by arbitration clause before commencement of legal proceedings---Application under section 34 of Arbitration Act, 1940, filed by defendant without taking any step of participating into legal proceedings showed his intention to exercise his option to enforce arbitration agreement---Plaintiff failed to show any sufficient reason as to why the matter should not be referred to arbitrator---Termination of agreement was a result of dissatisfaction of defendant and alleged violation of terms and conditions of the agreement, therefore, dispute was outcome of the agreement, which ought to have been decided by invoking arbitration clause---Intention of parties to include arbitration clause, was to specify the forum to resolve future differences or dispute arising out of the agreement, including its termination---Arbitration clause was an independent agreement between the parties which could be invoked, if a dispute or difference had arisen between the parties, therefore, termination of agreement would not supersede it---Irrespective of non-existence of agreement, the arbitration clause survived and arbitrator had the power to resolve the dispute---High Court in exercise of appellate jurisdiction, set aside the order passed by Trial Court and application under section 34 of Arbitration Act, 1940, filed by defendant was accepted resultantly proceedings before Trial Court were stayed---Appeal was allowed in circumstances.

Ali Raza and Noorullah Kakar for Appellant.

Qahir Shah and Saleem Lashari for Respondents.

Date of hearing: 15th June, 2011.

2012 C L C 125

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Moulvi NAQAL-UD-DIN----Appellant

Versus

ABDULLAH and 2 others----Respondents

Civil Miscellaneous Appeal No.4 of 2009, decided on 28th July, 2011.

(a) Balochistan Civil Disputes (Shariat Application) Regulation, 1976--

----S. 4---Pre-emption right---Talbs, performance of---Talb-e-Muwathibat and Talb-e-Ishhad---Object and scope---Transaction not sale---Exchange of land---Pre-emptor assailed transaction in question asserting his superior right of pre-emption but Trial Court dismissed the suit---Pre-emptor contended that transaction between the parties was sale but in order to defeat his pre-emptive right the same had been shown as an exchange---Validity---No person was entitled to right of pre-emption unless he had made requisite Talbs in accordance with law---Talb-e-Muwathibat meant jumping demand on behalf of pre-emptor showing his intention to assert the right immediately on receiving information of sale without any loss of time---Pre-emptor was required to prove performance of Talb-e-Ishhad referring expressly to the fact that Talb-e-Muwathibat had already been made in a manner indicating that at relevant time, he had expressed in time his right of pre-emption in presence of witnesses---Talb-e-Muwathibat and Talb-e-Ishhad were not mere formalities and were to be strictly observed and followed---Pre-emptor during cross-examination admitted transaction between the parties as exchange---Transaction in question was exchange and not pre-emptible---Pre-emptor failed to prove factum of right of pre-emption and his evidence was not up to the mark---Pre-emptor also failed to point out any illegality, error or jurisdictional defect in judgment passed by Trial Court---High Court declined to interfere in the judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Malik Nazar Muhammad v. Haji Abdul Rauf and others PLD 1992 Quetta 9 rel.

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

----S. 54---'Sale'---Essential elements---Four essential elements of sale the parties, the subject-matter, the transfer of or conveyance and price and consideration---If any of the elements is missing, it cannot be transaction of sale---For a transaction to be a sale, it is necessary that price in cash must have been paid for things sold---Ownership in a thing on one side and cash price for it on the other must exist.

Gohar Yaqoob Yousafzai for Appellants.

Iqbal Ahmed Kasi for Respondents.

Date of hearing: 1st July, 2011.

2012 C L C 168

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

STUDENTS OF GOVERNMENT GIRLS COLLEGE, KUCHLAK----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education, Quetta and 2 others----Respondents

Constitutional Petition No.577 of 2011, decided on 12th September, 2011.

(a) Constitution of Pakistan---

----Arts. 22(3)(b), 24(1) & 199---Suo motu notice, issuance of---Infringement of fundamental rights---Matter of public importance---State land earmarked for construction of Government Girls College---News report about encroachment upon sizeable portion of such land by influential persons---Such news report could be considered complaint of girls of Balochistan including of the area concerned and would be deemed an application submitted by them as aggrieved persons in terms of Art. 199 of the Constitution having no other adequate remedy under law---Record showed that such land belonging to Provincial Government was leased out to Education Department for a period of 99 years for constructing thereon such College---No right could flow from letter of Deputy Commissioner addressed to Commissioner recommending allotment of some land to certain individuals, which letter was reported to have been withdrawn---Photographs placed on record by Department and letter issued by Executive Engineer would show that inhabitants of area had recently constructed a metalled road right through centre of such land without permission---Such illegal act could not create any right in anyone---According to Google Satellite image of such land, same was a continuous whole and without any road running therein---Status quo order in respect of such land issued by civil court in a suit filed by private respondents was neither confirmed nor continued---Mere pendency of such suit would not deprive Department of such land in respect whereof they had produced ownership documents---Executive Engineer had assured construction of boundary wall around College to ensure against any attempt of land grabbing---No one had any right, title or interest in such land, which belonged to Department and was meant for College---People could not be deprived of their fundamental rights guaranteed in the Constitution merely because they might be unaware of them or might not have wherewithal to approach High Court---Encroachment upon such land could be deemed to be a denial of access to such College being constructed out of public revenue---Department had failed to perform its duty to protect such land meant for use and benefit of girl students---Such matter was of public importance and involved taking away and abridging of Fundamental Rights of a segment of the population---Inaction on part of High Court in such matter would have resulted in a public college being deprived of its valuable property and robbed girl students of benefit thereof---High Court directed Department to repossess entire land of such College, construct boundary wall around its parameters and directed Police to provide necessary assistance in case of obstruction, hindrance or interference by any person.

(b) Constitution of Pakistan---

----Arts. 25-A, 34, 37 & 38---Right of every man and woman to acquire ability to read and write and attain knowledge without discrimination---Mandate of Islam and Constitution stated.

Surah (No.96) Al-Aalaq of Holy Quran rel.

Arthur Victor along with Wazir Ahmed.

Muhammad Azeem along with Syed Lal Muhammad.

Tariq Ali Tahir and Abdul Aziz Khan Khilji, Addl. A.-G.

Azizullah Gharsham, Deputy Secretary, Higher Colleges and Technical Education.

Abdullah, Deputy Director Judicial (Colleges).

Muhammad Hashim, Naib Tehsildar, representative of the Deputy Commissioner, Quetta.

Muhammad Qasim, Deputy Director Claims.

Tariq Mehmood, Executive Engineer, Muhammad Umar, Sub-Engineer, Communications and Works Department.

Date of hearing: 12th September, 2011.

2012 C L C 179

[Balochistan]

Before Abdul Qadir Mengal, J

Syed AHMED JAN and others----Petitioners

Versus

ANJUMAN-E-ISLAMIA, BALOCHISTAN through Manager and others----Respondents

F.A.Os. Nos.94, 95, 99, 117, 120, of 2009, 3, 4, 6, 7, 8, 9 10, 11, 12, 13 and 14 of 2010, decided on 14th September, 2011.

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

----Ss. 4, 13(6) & 15---Ejectment petition---Bona fide personal need of demised land by landlord for constructing thereon multi-storeyed building---Letter of Municipal Administration permitting landlord to construct proposed building---Tenants' plea that 40 years ago, they got disputed open land on rent and constructed thereon shops with their expenses and spent considerable amount on installing therein machineries for their business, whereas landlord instead of compensating them was ruining their business---Order of Rent Controller directing tenants to vacate premises within four months while directing landlord to give shops to tenants in newly-constructed building equal to an area of existing shops in possession of each tenant---Validity---None of the tenants had denied ownership of landlord, its such requirement and obtaining of such letter of permission---Landlord had fully established its requirement---Landlord had obtained necessary sanctions for constructing proposed building, thus, tenants' grievance was not acceptable for being no more than to stop pace of development---Impugned order did not suffer from any illegality---Khasra number of shop in possession of tenant did not find mention in such letter of permission, but he had not disputed that his shop was not part of demised premises---Tenants would suffer irreparable loss and would be deprived of their livelihood on account of demolition of superstructure of existing shops and removal of such machineries therefrom---Landlord being a welfare society serving the general public had no resources to compensate tenants for demolition of their superstructure---Rent Controller while passing impugned order had not determined or fixed fair rent in respect of proposed new building, wherein landlord had to accommodate tenants---High Court dismissed appeals while directing landlord to charge from tenants 30% less rent in proposed new building to that of rent prevailing in market at time of accommodating them.

1997 SCMR 1819 and PLD 1971 Lah. 210 rel.

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

----S. 15---Civil Procedure Code (V of 1908), S.96---Appeal against ejectment order passed by Rent Controller---Powers of Appellate Court---Scope---Such appeal was an appeal from an original decree under S.96, C.P.C.---Appellate Court had same powers and would perform same duties imposed by courts of original jurisdiction.

1984 SCMR 504 rel.

Rauf Ahmed Hashmi for Appellant (in F.A.Os. Nos.94 and 95 of 2009).

Sher Shah for Respondent No.1 (in F.A.Os. Nos.94 and 95 of 2009).

Munir Langove for Appellant (in F.A.O. No.99 of 2009).

Sher Shah for Respondent No.1 (in F.A.O. No.99 of 2009).

Gul Hassan for Appellant (in F.A.O. No.117 of 2009).

Sher Shah for Respondent No.1 (in F.A.O. No.117 of 2009).

Baz Muhammad Kakar for Appellant (in F.A.O. No.120 of 2009).

Sher Shah for Respondent No.1 (in F.A.O. No.120 of 2009).

Mian Badar-e-Munir for Appellant (in F.A.Os. Nos.3, 4, 6, 7, 8, 9, 10, 11, 12 and 13 of 2010).

Sher Shah for Respondent No.1 (in F.A.Os. Nos.3, 4, 6, 7, 8, 9, 10, 11, 12 and 13 of 2010).

Kamran Murtaza for Appellant (in F.A.O. No.14 of 2010).

Sher Shah for Respondent No.1 (in F.A.O. No.14 of 2010).

Date of hearing: 9th September, 2011.

2012 C L C 190

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

ALI AKBAR ZEHRI----Petitioner

Versus

Syed GUL SHAH and 2 others----Respondents

Civil Revision No.168 of 2011, decided on 10th October, 2011.

(a) West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)---

----S. 4(1)---Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009, Rr.5, 6(4), 8(5) & 11(4)---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.9---Suit for declaration and permanent injunction---Official residence owned by Provincial Government---Plaintiff being husband of retired allottee of such residence claimed to be entitled for its allotment and sought restraining his dispossession therefrom---Plea of official defendant that plaintiff was in possession of such residence for last 20 years; that he being an employee of another Department could not be accommodated; and that plaintiff had already been transferred to another District----Validity---Such residence had been allotted to private defendant prior to filing of present suit---Plaintiff had not denied factum of his transfer to another District---According to provision of S.4(1) of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 and R.11(2) of Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2009, allotment of official residence would stand revoked on transfer of allottee to another station ---Allotment made in favour of plaintiff remained no more in field after order of his transfer to another District---Plaintiff had to establish his legal entitlement to such allotment as per provisions of Residential Accommodation at Quetta (Procedure of Allotment) Rules, 2009 providing a proper procedure therefor---Plaintiff was claiming his right on basis of R.11(4) of the Rules, whereas in R. 6(4) thereof, a proper remedy was provided to an aggrieved person before approaching a court of law---Right to sue would accrue to plaintiff after establishing such right before competent authority and its denial by authority---Plaintiff without availing his remedy before competent authority could not seek declaration in his favour of a right to be established before competent authority---Such suit for being not competent was dismissed in circumstances.

(b) West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)---

----S. 10---Civil Procedure Code (V of 1908), S.9 & O.XXXIX, Rr.1, 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction regarding land or building owned by Government---Jurisdiction of civil court to entertain such suit---Scope---Provision of S.10 of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 pertained to grant of temporary/interim injunction and did not create a bar on institution of a suit for declaration of a right in respect of such land or building.

Najmuddin for Petitioner.

Nadir Ali Chalgari for Respondent No.1.

Amanullah Tareen, Addl. A.-G. for Official Respondent.

Date of hearing: 27th September, 2011.

2012 C L C 202

[Balochistan]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

Messrs LAHORE DIOCESON TRUST ASSOCIATION LTD. Through Attorney and 2 others----Appellants

Versus

SHAFI JOHN and 10 others----Respondents

R.F.A. No.9 of 2005, decided on 29th September, 2011.

Civil Procedure Code (V of 1908)---

----O. IX, R. 8 & O.XVII, R.3---Dismissal of suit for non- prosecution on a date fixed for arguments on plaintiff's application for production of certain documents in evidence---Validity---Record showed that plaintiff had made such application after framing of issues and recording of statements of his four witnesses---Trial Court on relevant date had to decide such application, which could have been dismissed for non-appearance of plaintiff, but not suit for want of interest by pressing into service provision of O.IX, R.8 or O.XVII, R. 3, C.P.C.---Trial Court under O.XVII, R.3, C.P.C., was required to decide suit on basis of material available on record---High Court set aside impugned order/decree for being illegal and void ab initio and remanded case to Trial Court with directions to dispose of such application and then proceed with suit and decide the same within specified time.

Miss Tehmeena Samad for Appellants.

H. Shakeel Ahmed for Respondents.

Abdul Aziz Khilji Addl. A.-G. on Court notice.

Date of hearing: 21st September, 2011.

2012 C L C 254

[Baluchistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD MUSSA and 3 others----Petitioners

Versus

HAMID ALI----Respondent

Civil Revision No.146 of 2009, decided on 2nd December, 2011.

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

----S. 115---Revision---Term "case decided "---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in "any case which has been decided"---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term "case" has been used, thus the meaning cannot be restricted only to a final decision of a case---Term "case decided" is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of `case decided'---Powers conferred under section 115 C.P.C. cannot be restricted only to the extent of final decision of the case, rather it includes interlocutory orders also against which no appeal is provided.

Messrs National Security Insurance Company Limited v. Messrs Hoechst Pakistan Limited 1992 SCMR 718 and Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board 1998 SCMR 1798 rel.

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

----0. XIII, Rr.1 & 2 & S.115---Specific Relief Act (I of 1877), Ss-42 & 54---Suit for declaration and injunction---Documentary evidence, production of---Delay in seeking permission---Defendants resisted he suit on the plea of being owners in possession of suit property---Defendants claimed that half portion. of the property was already in their ownership, while remaining half portion was gifted to them by the owner---Defendants filed application under O.XIII, Rr.1 and 2 C.P.C. to produce will/gift deed executed by the donor in favour of defendants, which application was dismissed by Trial Court---Validity---Mandatory for the parties to file all documents relied upon at the first date of hearing of the suit and in case of failure they were restrained from producing the same at later stage---Exception to such rule was provided under O.XIII, R.2, C.P.C. whereby discretion lay with the court to allow production of a document, subject to the condition that a good cause was shown to the satisfaction of the court for non production of the document at required stage---If at the time of filing of written statement, defendants were not in custody of the document but they were surely in knowledge of it, there was no explanation that what restrained them from obtaining copy of the same from concerned office during all those years---Defendants failed to show any reasonable cause to allow them for production of a document, which surely was in their possession and shown to be filed along with written statement---Jurisdiction vested in court, under section 115, C.P.C. was limited to the extent provided therein and the party aggrieved had to make out a case within the provided ambit to get an order by High Court under section 115, C.P.C.-Defendants did not establish any illegality or material irregularity committed by the court below, while exercising its discretion under 0.XIII, Rr. 1 and 2, C.P.C.---High Court declined to interfere in the order, as Trial Court had properly assessed the application and recorded findings, which did not suffer from any illegality or irregularity---Revision was dismissed in circumstances.

Muhammad Afzal v. Khushal PLD 2004 Azad (J&K) 43; Muhammad Hanif v. Mst. Parsan Bibi 1996 MLD 1158; Mian Muhammad Luqman v. Farida Khanam 1994 SCMR 991; Haji Baz Muhammad v. Mst Humera alias Shireen Taj PLD 2003 Quetta 128; Nawabzada Malik Habibullah Khan v. The Paki Cement Industries Limited 1969 SCMR 965 and Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964 ref.

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

----S. 115 & 0.XIII, Rr.l & 2-Non-production of document in time---Revision---Scope.

Muhammad Afzal v. Khushal PLD 2004 Azad (J&K) 43; Muhammad Hanif v. Mst. Parsan Bibi 1996 MLD 1158; Mian Muhammad Luqman v. Farida Khanam 1994 SCMR 991; Haji Baz Muhammad v. Mst Humera alias Shireen Taj PLD 2003 Quetta 128; Nawabzada Malik Habibullah Khan v. The Paki Cement Industries Limited 1969 SCMR 965 and Muhammad Umar Mirza v. Waris Iqbal 1990 SCMR 964 ref.

Mian Badar-a-Munir for Petitioner. Adnan Basharat for Respondents.

Date of hearing: 29th November, 2011.

2012 C L C 287

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

Mst. JAMILA NARGIS----Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY AFFAIRS DIVISION, ISLAMABAD and 10 others----Respondents

Constitutional Petition No.61 of 2001, decided on 30th November, 2011.

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

---S. 30---Scheme of Management and Disposal of Urban Evacuee Trust Properties, 1977, Chapter III(B) & S.19---Constitution of Pakistan, Art.l99---Constitutional petition---Plot in question was allotted to father-in-law of the petitioner by order of Deputy Custodian, Evacuee Trust Property, who constructed a shop on the said plot and rented out the same to predecessor-in-interest of respondents---Authorities, without carrying out the survey, allotted said shop to the predecessor-in-interest of the respondents/tenant; which transfer was challenged and finally the Supreme Court decided the case in favour of predecessor-in-interest of the petitioner---After death of husband of the petitioner, she submitted application for restoration of tenancy in her name and her request was acceded to and District Magistrate directed to get the vacant possession of shop in question to the petitioner---Predecessor-in-interest of respondents, after lapse of about ten years, raised an objection that under the Scheme of Management and Disposal of Urban Evacuee Trust Properties, 1977, property in question could not be transferred in the name of the petitioner, objection was allowed, which resulted in setting aside the tenancy and direction for auction of the same---Validity---Matter having ultimately been finalized by the Supreme Court while dismissing the petition filed by predecessor­in-interest of respondents, there was no ground available with the Authority to set aside the order whereby, after death of husband of the petitioner, tenancy was restored to her---Impugned orders were in violation of judgment of the High Court and the Supreme Court---Such order was set aside and Administrator was directed to get shop vacated from private respondents and put the petitioner into possession.

(b) Administration of justice---

----Entire dispute between the parties should be decided on merits; and no one should be allowed to take benefits of technicalities.

Syed Ayaz Zahoor for Petitioner.

Kamran Murtaza and Adnan Ejaz for Respondent No.3.

Saleem Ahmed Lashari for Respondents Nos.4 to 11.

Date of hearing: 2nd November, 2011.

2012 C L C 316

[Balochistan]

Before Abdul Qadir Mengal, J

Malik SARDAR MUHAMMAD QASIM----Appellant

Versus

Malik Haji ABDUL GHAFFAR----Respondent

Regular First Appeal No.6 of 2006, decided on 18th November, 2011.

Arbitration Act (X of 1940)---

----Ss. 13, 17, 32 & 39---Specific Relief Act (I of 1877), Ss.12, 42 & 54---Suit for performance of arbitration agreement---Parties entered into an agreement through which the parties referred their disputes to panel of arbitrators to decide the same out of court---Terms of agreement showed that if any of the parties failed to comply with the decision of the arbitrators, said party only could be allowed to sue the other party after payment of Rs.5,00,000 (Rupees five lac) as a fine---Arbitrators inspected the place in question, heard both the parties, collected necessary information from the general public and thereafter through their judgment or award directed the defendant to remove his four grinding machines within a week from the site pertaining to the plaintiff-Both parties accepted the decision of arbitrators by signing along with the arbitrators the decision in presence of the witnesses---Criminal case pending against the defendant, on account of said settlement arrived at between the parties, was also withdrawn---Defendant, after withdrawal of said case, not only failed to remove his four grinding machines, but also refused to accept the arbitration award---Plaintiff filed suit before Majli-e-Shoora for performance of. agreement arrived at between the parties---Said suit was decreed and defendant was permanently forbidden for interfering in the land in dispute and defendant was also directed to remove the four grinding machines from the decreetal site---Defendant filed appeal against judgment of Majlis-e-Shoora, on two grounds; firstly that suit filed by the plaintiff was not maintainable against an arbitration agreement or award; secondly that as value of the suit for specific performance was Rs.60,000 but no court fee had been deposited by the plaintiff--Validity-Arbitration award passed out of the court on the basis of a valid authorized document though could not be executed or treated as 'award' or 'decision' like that passed by . court under Arbitration Act, 1940, but where the parties on account of an agreement declared to adopt a particular way to solve their dispute and in that respect they by their mutual consent, executed written agreement by authorizing the third person as an arbitrator to decide their dispute, in consequence of said written agreement, if arbitrators after holding inquiry, taking evidence and hearing the parties, had decided the dispute, which the parties had accepted, then law of estoppel would apply to such kind of award and parties would not be allowed to go back by such award/decision---Order sheet had shown that plaintiff had paid the required court-fee-No illegality or impropriety having been found in the impugned judgment by the Majlis-e-Shoora, appeal was dismissed by High Court.

PLD 1978 Lah. 1252 and PLD 1971 SC 516 ref.

Iqbal Ahmed Kasi for Appellant.

W.N. Kohli for Respondent.

Date of hearing: 11th November, 2011.

2012 C L C 341

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

KAMALUDDIN and 2 others----Appellants

Versus

Syed MUTEEBULLAH----Respondent

First Appeal from Order No.80 of 2009, decided on 28th November, 2011.

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

---S. 2(c)---Term "Landlord", meaning and scope---"Landlord" in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959, was used in a very wide sense---Person may be owner of the property, but he may not have attained title of landlord, or a person may be landlord, but may not be owner of the property, subject to the condition that he is entitled to receive the rent---Ownership is to be seeti t' o that extent only.

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

----Ss. 2(c)(i), 13 & 15---Application for ejectment of tenant---Relationship of landlord and tenant---Tenants denied existence of relationship of landlord and tenant and claimed to be lawful owners of the premises in question---There being complete denial of existence of tenancy on the part of the tenants, before going into merits of the case, first point, which was needed to be decided was the existence of relationship of landlord and tenant between the parties---Rent Controller, without first deciding said issue, allowed ejectment application and directed tenants to hand over vacant possession of the premises to the landlord---No specific evidence was available before the Rent Controller to establish the fact that premises in question was ever rented out to tenants in terms as asserted by landlord in the ejectment application---Serious doubt existed in respect of ownership of the landlord in respect of property in question in view of revenue entries---Rent Controller should have disallowed the ejectment application and ordered the parties to get established their title from a court of competent jurisdiction---Findings arrived at by the Rent Controller, were without basis and being erroneous, were set aside---Impugned judgment of Rent Controller was set aside and ejectment application, was dismissed.

Pervaiz v. Amir Aziz 2005 CLC 594, and Mst. Wakeelan Begum v, Additional District Judge, Gujranwala 2006 CLC 1866 ref.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064 rel.

Ms. Syeda Tehmeena for Appellants.

Abdul Nasir Kakar for Respondent.

Date of hearing: 25th May, 2011.

2012 C L C 669

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Haji TOR KHAN and others----Petitioners

versus

GOVERNMENT OF BALOCHISTAN through

Secretary Irrigation and Power Department, Quetta----Respondent

Civil Revision No.315 of 2005, decided on 14th December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Suit for possession, declaration and injunction---Plaintiff who claimed ownership of land in question had contended that possession of the defendants over the said land was unauthorized and illegal---Existence of entry in Revenue Record in favour of the plaintiff, was not denied by either of the parties---Suit-land existing in the name of plaintiff, which initially had proved case of the plaintiff, and burden, therefore, shifted on the defendants to establish existence of a legal title in respect of land in question in their favour---Defendants claimed their right in respect of land in question adverse to the plaintiff, with the plea that they had purchased said land from the owners thereof and were occupying the same in their own right---Defendants, on the first instance had to establish a legal transaction effected between them and previous owners from whom the defendants had allegedly purchased the suit-land---To establish themselves to be bona fide purchasers of the land in question, the defendants had not placed on record any title deed in favour of said vendors---Defendants had pleaded that said vendors were recorded owners in Revenue Record, but the defendants had failed to produce any entry made in favour of the vendors---Agreements which were produced by the defendants, were of less help to them---No other title deed was produced by the defendants, which could establish that they had any title in respect of suit-land, which could legally pass on to them on the basis of sale transaction as asserted by the defendants---Mere possession of defendants over suit-land, would not prove the existence of a legal title in favour of them---Relevant entry in Revenue Record existed in favour of the plaintiff coupled with the fact that there was no denial of title of the plaintiff on the part of the defendants, which established that the defendants were in full knowledge and had recognized the title of the plaintiff over the suit-land---Defendants could not be allowed to take a contrary stand---Defendants had failed to establish their contention---No instances of misappreciation and non-appreciation of evidence and material by the courts below were established, which needed interference by High Court in revision petition---Petition was dismissed.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Zarshad through legal heirs v. Shah Gul PLD 2003 SC 650; Sher Baz Khan v. Mst Malkani Sahibzadi Tiwana PLD 2003 SC 849; Messrs Basf Pakistan (Pvt.) Ltd. v. Messrs Tanocraft Limited PLD 2003 Kar. 598; Habib Khan v. Mst. Bakhtmina 2004 SCMR 1668; Chief Engineer, Irrigation Department N.-W.F.F. Peshawar v. Mazhar Hussain PLD 2004 SC 682; Ansar Mehmood v. Allah Bakhsh 2005 YLR 34; Pakistan Industrial and Commercial Leasing Ltd. v. Haq Knitwear (Pvt.) Ltd. PLD 2009 Lah. 52; Mst. Rasheeda Begum v. Mst Saeeda 1993 CLC 1236 and 2003 CLC 660 distinguished.

Ch. Muhammad Arshad, Syed Iqbal Shah for Petitioners.

Nasrullah Achakzai, Addl. A.-G. for Respondent.

Date of hearing: 1st June, 2011.

2012 C L C 692

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

REHMAT ALI and 4 others----Petitioners

versus

ABDUL SAMAD----Respondent

Civil Revision No.60 of 2010, decided on 2nd January, 2012.

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

----Art. 133---Specific Relief Act (I of 1877), S.42---Suit for declaration---Re-examination of witness---Scope---Suit of plaintiff was dismissed by Trial Court, but the same was decreed by Appellate Court---­Defendant assailed orders of Appellate Court, inter alia, on the ground that the Appellate Court erred in law while relying on the statement of the material witness of the plaintiff as Trial Court had allowed the plaintiff to re-examine said material witness without allowing the defendants to cross-examine him--­-Validity---Appellate Court failed to consider the relevant provisions of law in Art.133 of the Qanun-e-Shahadat, 1984---Re-examination conducted on statement of the plaintiff's material witness was not made in relation to the matter referred in the preceding cross-examination, but absolutely new facts were suggested to the witness by the plaintiff's counsel without the permission of the Trial Court ---Even otherwise, if counsel for the plaintiff was allowed to suggest such new facts to the said witness by the Trial Court, even though there was no such order on record, even then the adverse party was required to be allowed to again cross-examine said material witness---Such re-examination of the said material witness was a complete failure of compliance with Art.133 of the Qanun-e-Shahadat, 1984---No reliance could have been made on the statement of the said material witness during re-examination---Appellate Court had also not assessed the material on record properly and recorded findings which were contrary to the record---High Court set aside order of Appellate Court and restored the order of the Trial Court with modifications---Revision was accepted accordingly.

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

----S. 115---Revisional Jurisdiction, exercise of---Scope---Material and record were to be considered and findings were required to be given on conflicting orders of the courts below.

H. Shakeel Ahmed for Petitioners.

Muhammad Riaz Ahmed for Respondent.

Date of hearing: 20th June, 2011.

2012 C L C 809

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

IBRAR HUSSAIN----Appellant

versus

ABDUL KARIM and another----Respondents

First Appeal from Order No.1 of 2009, decided on 22nd February, 2012.

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

----Ss. 2 & 13---Ejectment proceedings---Appellant alleging husband and wife to be his tenants, sought their eviction from first floor of demised premises---Denial of relationship of landlord and tenant by wife claiming to be owner of land underneath demised premises purchased and built with her finances by husband, who sold the same to appellant later on---Proof---Evidence on record showed that husband had left suit premises, while wife was still in its possession prior to its sale by husband to appellant---Husband had never appeared in court to rebut sale of suit premises to appellant and contest ejectment proceedings---Appellant in addition to ownership had to prove his status of landlord and wife and husband to be his tenants in suit premises---As per definitions of "landlord" and "tenant" contained in S.2 of West Pakistan Urban Rent Restriction Ordinance, 1959, entitlement of a person to receive rent of a premises would be deciding factor about his status of being a landlord or otherwise---Right of tenancy being an heritable asset would devolve on wife and children of a tenant only in case of his death, but not during his life time---Only a person liable to pay rent would become a tenant and his mere physical possession would be immaterial as premises could be occupied by a person as licensee or trespasser---Appellant as per his own assertion derived status of landlord after purchase of suit premises from husband, but wife had ipso facto not become tenant of subsequent owner/petitioner as she was claiming to be in its possession in her own right of ownership---Appellant had failed to discharge burden to prove the wife to be his tenant by leading evidence regarding any rent agreed between them or its payment to him or its demand by him and refusal by her or service of any notice upon her demanding its payment---None of appellant's witnesses had witnessed any payment of rent to him by wife or her refusal to pay rent---Wife had filed suit for declaration of her title and cancellation of sale mutation effected in favour of appellant by husband---Appellant must have first got his title declared from a competent court, and then might have filed ejectment petition against wife---Ejectment petition was dismissed in circumstances.

Munir Ahmed Langove for Appellant.

Barrister Iftikhar Raza for Respondent No.2.

Date of hearing: 26th September, 2011.

2012 C L C 1002

[Balochistan]

Before Abdul Qadir Mengal, J

YAQOOB and 3 others----Petitioners

versus

SAWALI and another----Respondents

Civil Revision No.218 of 2005, decided on 30th December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 31, 42 & 54---Suit for declaration, permanent injunction and correction of Revenue Record---Both the Trial Court as well as Appellate Court had failed to consider the evidence, which had come on record from the side of the plaintiff---Both courts on account of wrong assumption had discussed extraneous legal and factual positions contrary to the evidence, or statements which had come on record from the side of plaintiff---Such was one of the clear-cut cases where orders of both the courts were not based on any evidence and decrees were passed arbitrarily, and injustice had creped out as a result of the said judgments and decrees---No doubt, concurrent findings, normally could not be disturbed in a revisional jurisdiction, but, when any court acted illegally, or with material irregularity and its judgment was based on no evidence or on inadmissible evidence, and resulted injustice, then justice demanded that such judgment be corrected---Both courts having failed to read the evidence, and decisions/findings were based on no evidence, such findings were not immune from interference---Judgments and decrees by Qazi/Trial Court and by Majlis-e-Shoora/Appellate Court were set aside and suit of plaintiff was decreed as the same was established and proved.

Abdul Sattar v. Mrs. Sardar Begum, 2003 CLC 1294; Muhammad Hassan v. Liaqat Ali Khan 2001 CLC 1743; Abdul Rahim v. Muhammad Ilayat 2004 SCMR 1723 and Habibullah v. Abdul Hakim 1997 SCMR 1139 ref.

1989 SCMR 34 and Muhammad Nawaz v. Jiand Rai, 1981 CLC 867 rel.

Muhammad Wassay Tareen for Petitioners.

Ali Ahmed Kurd for Respondents.

2012 C L C 1104

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

LIAQUAT----Appellant

versus

Haji ALLA-UD-DIN----Respondent

F.A.O. No.64 of 2009, decided on 12th March, 2012.

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

----Ss. 13(2)(i) & 15---Ejectment of tenant on ground of default in payment of rent---Initial burden was on the landlord---Default was wilful---Landlord and his witnesses had deposed on oath that there was default in payment of rent on part of tenant---On that assertion on oath the burden shifted to the tenant, but he failed to discharge such burden---Tenant had asserted that he paid the rent regularly, then he sent rent due through money order, which having been refused by the landlord, he deposited the rent in the court in the name of the landlord---Tenant had produced the receipts, but he failed to produce the representative of the Post Office to establish his claim, and to place on record the statement of the Postman, that there was refusal on the part of landlord receiving the money orders sent by the tenant---Burden was on the tenant to establish that the rent was timely tendered and deposited in the court, but there was complete failure on his part---Tenant was under obligation to pay the agreed rent due within the provided period to the landlord, but the tenant had failed to discharge his part of obligation that too without any reason---Default in payment of rent by the tenant was established, in circumstances---Findings of the Rent Controller to the extent of default in payment of rent, was upheld, in circumstances.

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

----Ss. 13(3)(ii) & 15---Ejectment of tenant on ground of bona fide personal need of landlord---Landlord sought ejectment of tenant on ground that shop in question was bonafidely required for his son who wanted to start a business therein---Tenant, in rebuttal, took plea that landlord was in the habit of instituting ejectment proceedings, against his tenants, and after succeeding, rented out the premises, so vacated on higher rent---Tenant had referred to four other ejectment applications filed by the landlord against his tenants on grounds of wilful default and bona fide use of his sons---All said applications were filed on identical grounds, even the date of alleged default was the same in all said applications---Such fact had shown the mala fide on the part of the landlord---Son for whom, the shop in question was required in the case, never appeared before the Trial Court to support the contents of ejectment application---Such conduct of landlord had disentitled him for vacant possession of shop in question on ground of personal need---Findings of the Trial Court that shop in question was required by the landlord in good faith for his son, were contrary to facts and also in contravention of the relevant provisions of law which could not remain in field---Order accordingly.

Syed Israr Alam v. S.M. Hussain 1983 CLC 468; Khurshid Ahmed v. Nadeem lqbal 1985 SCMR 40; Dildar Hussain Nayyar v. Niaz Muhammad Dar 1985 SCMR 1769 and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.

Syeda Tehmina Samad for Appellant.

Azmatullah Kasi and Ghous-ud-Din Kakar for Respondent.

2012 C L C 1165

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

SECRETARY BOARD OF REVENUE, GOVERNMENT OF BALOCHISTAN, QUETTA and 2 others----Petitioners

versus

QADIR BAKHSH and 6 others----Respondents

Civil Revision No.57 of 2007, decided on 29th February, 2012.

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

----S. 5 & Art. 152---First appeal by Government Department---Delay, condonation of---Plea was that filing of appeal beyond prescribed period was due to official procedure---Validity---Such plea was no ground for condonation---Appeal was dismissed for being time-barred.

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

----S. 3---Specific objection was that suit having been filed beyond prescribed limitation thus not maintainable---Duty of Trial Court and Appellate Court---Scope---Appellate Court would be obliged to consider legality of findings rendered on issue of limitation by Trial Court---Where issue of limitation was found by Appellate Court to have been wrongly decided by Trial Court, then suit would become non-maintainable and decision made in respect of merits of case would be of no legal effect.

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

----S. 120---Qanun-e­-Shahadat (10 of 1984), Art.117---Specific Relief Act (I of 1877), S.42---Suit for declaration of title and correction of mutation entry filed beyond prescribed period of limitation---Plaintiff's plea was that he came to know of suit mutation two months before filing of suit---Burden of proof---­Plaintiff in order to bring suit within prescribed period had to establish that he was ignorant of such entry at the relevant time, which recently came into his knowledge.

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

----Ss. 3 & 5---Time-barred suit---Validity---Time-barred relief could not be granted to a party that slept over its right and that too without showing any genuine cause for condonation of delay caused in filing of case.

(e) Possession---

----Mere possession would not create any title in favour of a person.

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

----S. 42---Mutation entry in revenue record---Evidentiary value---­Such entry for not being a title document would not create or extinguish title or right of a person in respect of land, rather same would amount to declaration of his title---Cogent evidence would be required to rebut such entry.

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

----S. 56(1)(e)---Ownership of waste land---Presumption---Scope---Such presumption would arise in favour of Provincial Government, but could be rebutted by a person by establishing his clear title.

Tariq Ali Tahir Addl. A.-G. for Petitioners.

Nemo for Respondents.

2012 C L C 1268

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

AZIZ ULLAH----Petitioner

Versus

Mst. HAMEEDA BEGUM and another----Respondents

Civil Revision No.346 of 2011, decided on 2nd January, 2012.

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

----S. 41---Specific Relief Act (I of 1877), S.42---Transfer by ostensible owner---Benefit---Scope---Suit for declaration of title was decreed concurrently by the courts below---Contention of the defendants was that they were bona fide purchasers of suit property, therefore, benefit of S.41 of the Transfer of Property Act, 1882, must have been extended to them---Validity---Person claiming right and benefit under section 41 of the Transfer of Property Act 1882 was bound to establish that the person from whom the suit property had been transferred to him was an ostensible owner, while transfer so made was with the consent of the real owner, either express of implied---Said transfer must have been made for some consideration and the person being transferee or purchaser must have acted in good faith and taken all reasonable care and steps before entering into said transaction for transfer---Defendants had to establish that they had taken all reasonable care before entering into sale transaction for suit property -----Contents of the sale agreements in favour of the defendants for the suit property, in the present case, were in contradiction with the written statements of the defendants---No evidence was available to the effect that the defendants were not in knowledge of the fact that the suit property belonged to the plaintiff, and had purchased the property without confirming ownership---Pleadings of the defendants were contrary to their contentions in the revision petition---Defendants, in circumstances, could not ask for benefit of S.41 of the Transfer of Property Act, 1882----Revision was dismissed.

Abdul Ghani Mashwani for Petitioner.

Date of hearing: 15th November, 2011.

2012 C L C 1353

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

JAMALUDDIN and 3 others----Appellants

Versus

Haji GUL KHAN and 6 others----Respondents

Civil Miscellaneous Appeal No.14 of 2010, decided on 27th March, 2012.

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

----Ss. 135, 141 & 172---Suit for partition---Shamilat land---Jurisdiction of civil court---Plaintiffs who claimed themselves to be joint owners of suit-land filed suit in representative capacity, praying that suit-land be declared as joint property and be partitioned between the joint owners; so that they could be able to get their respective shares---Defendants resisted the suit claiming that from the last twenty years they were in possession of 1/4th of the suit-land, which devolved on them as their share during course of private partition---Defendants raised objection with regard to jurisdiction of the civil court to decide the matter---Plaintiff claimed relief of partition, but the parties were asserted to be the shareholders with no denial of title---Suit property which was shown to be jointly owned, not only by the parties to the suit, but by other shareholders was Shamilat---Relief of partition, in view of pleadings of the parties, could only be granted while adopting the mode and observing the procedure as provided in West Pakistan Land Revenue Act, 1967---Party interested in partition of his share in suit property, had to make an application for partition of the land to a Revenue Officer as per provisions of S.135 of West Pakistan Land Revenue Act, 1967---Section 141 of West Pakistan Land Revenue Act, 1967 had described the procedure for disposal of the questions as to the title in the property---Matters pertaining to partition of landed property, exclusively vested with Revenue Officer, in circumstances; and complete bar on jurisdiction of civil courts as provided in S.172 of West Pakistan Land Revenue Act, 1967 would be in the way---Question of title during course of partition, could only be decided by a civil court under provisions of S.145 of West Pakistan Land Revenue Act, 1967, otherwise it lacked jurisdiction in the matter---Trial/civil court, in circumstances had no jurisdiction in the matter---Judgment and decree passed by Majlis-e-Shoora/Trial Court, having no legal effect, were set aside and suit filed by the plaintiffs was dismissed.

Ghulam Hussain v. Khan Muhammad PLD 1954 Lah. 655 ref.

Manzoor Ahmed Rehmani for Petitioners.

Asadullah Khan for Respondents.

Date of hearing: 16th November, 2011.

2012 C L C 1457

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

SULEMAN and others----Petitioners

Versus

PIR BAKHSH and others----Respondents

Civil Revisions Nos.408 to 414 of 2008, decided on 4th June, 2012.

(a) Suits Valuation Act (VII of 1887)---

----S. 3---Civil Procedure Code (V of 1908) O.VII, R.1(i)---Specific Relief Act (I of 1877), Ss.42 & 54---Value of suit for jurisdictional purposes---Suit for declaration and permanent injunction was dismissed by Trial Court---Appeal against the said dismissal was returned to the plaintiffs on the ground that the same was beyond the pecuniary jurisdiction of the Appellate Court---Validity---Suit could not be rejected if the same was undervalued or insufficiently stamped until and unless opportunity was given to the plaintiff to make good the deficiency and in case of his failure, the Trial Court shall reject the plaint---Neither the Trial Court came to the conclusion that there was a deficiency in the payment of court-fee or that the suit was undervalued; nor any opportunity was given to the plaintiffs to make the deficiency good despite the fact that the defendants specifically disputed the valuation of the subject-matter---For the purposes of ascertaining the forum of appeal, value of the original suit as determined under Suits Valuation Act, 1887 would be taken into consideration for the purposes of jurisdiction, and not market value, sale price or compensation amount of subject-matter of the suit---Forum of appeal would be determined according to the value of the suit mentioned in plaint unless same was specifically denied and issue was framed and the Trial Court had taken a different view---High Court remanded the case to the Trial Court with the direction for fresh disposal of the case with the framing of issues regarding suit valuation and court-fee---Revision was allowed, in circumstances.

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

----O. I, R.1, Ss.151 & 107---Powers of Court to implead necessary parties---No rule existed in the C.P.C. to limit or restrict the jurisdiction or authority of the court in impleading a person, having interest in the result of a suit or an appeal, though not party to the suit---Courts, in such cases, should resort to its inherent jurisdiction under S.151, C.P.C. and order that such a person may be made a party Necessary condition was that the court must be satisfied that a party was obviously interested in the result of the suit or appeal and not otherwise---Appellate Court while exercising powers, postulated in S.107, C.P.C. read with Order I, Rule 10, C.P.C. could implead any party.

Abdullah Baloch for Petitioners.

S.A.M. Qaudri Merab Khan Gichki and Nadir Ali Chalgari for Respondents.

Amanullah Tareen, Addl. A.-G. for the State.

Date of hearing: 28th May, 2012.

2012 C L C 1483

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

Haji ABDUL MAJEED and others----Appellants

Versus

AMJAD KHAN and others----Respondents

Regular First Appeals Nos.46 and 47 of 1999, decided on 14th May, 2012.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Entries of first ever settlement record of a revenue estate---­Presumption of truth---Scope---Presumption of truth of highest degree would attach to such entries---Strong evidence would be required in order to dislodge such presumption.

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

----S. 55---Time as essence of the contract relating to immovable property---Scope---Where a substantial performance of such agreement had been made, then time specified for performance of remaining part of liability would not generally be treated as essence of the contract, rather intention of parties would look into while construing such document---Discretion exercised by court would not be ordinarily interfered with.

Flt. Lt. (Retd.) Mumtaz Khan v. Mst. Amtul Batool 1984 CLC 3462 and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 rel.

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

----Art. 79 ---Proof of execution of document---Scope---Where a document by law was required to be attested, then in case of denial of its execution, production of attesting witness, if alive, would be mandatory requirement---Where a document was not required by law to be attested by a witness, then there would be no legal requirement to produce witness to prove same.

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

----Art. 79---Proof of execution of document---Non-production of an attesting witness---Effect---Where party could otherwise prove execution of a disputed document, then non-production of an attesting witness simplicitor would not warrant drawing of an adverse inference.

Abdullah Baloch for Appellants (in both cases).

Kamran Murtaza for Respondents (in both cases).

Date of hearing: 26th November, 2011.

2012 C L C 1577

[Balochistan]

Before Jamal Khan Mandokhail, J

DATSUN MOTORS through Proprietor----Appellant

Versus

Syed AIN ULLAH AGHA----Respondent

F.A.O. No.61 of 2009, decided on 22nd June, 2012.

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

----S. 15---Civil Procedure Code (V of 1908) S.2(2)---Ejectment petition of tenant on ground of bona fide personal need of landlord was accepted---"Decree"---Definition---Abatement---Scope---Contention of the tenant (appellant) was that since the landlord had died after the order of the Rent Controller; his legal heirs could not get the benefit of the impugned order of the Rent Controller---Validity---Deceased landlord had succeeded in the ejectment petition on ground of bona fide personal need and the Trial Court/Rent Controller had ordered the tenant to vacate the premises---Decree had been defined in S.2(2) of the C.P.C. as a formal expression of adjudication, determining the rights of the parties to the suit etc.---Word "party(s)" shall include his/their legal representative(s), who represent(s) the estate of the deceased and stepped into his/her/their shoes---Decree was a declaration of a right of a party, which entitled it to get such a right---Decree in favour of the landlord, entitled him to get possession of the disputed property, therefore, upon his death, the decree did not abate---Once a right was accrued in favour of a decree-holder, after his death, it automatically devolved upon his legal heirs and they had the right to defend the decree and were entitled to contest the appeal---Appeal was dismissed.

(b) Abatement---

----Principle---Decree in favour of the landlord, entitled him to get possession of the disputed property, therefore, upon his death, the decree did not abate---Once a right was accrued in favour of a decree-holder, after his death, it automatically devolved upon his legal heirs and they had the right to defend the decree and were entitled to contest the appeal.

Muhammad Mehmood Khokar for Appellant.

Mujeeb Ahmed Hashmi for Respondent.

Dated of hearing: 18th May, 2012.

2012 C L C 1645

[Balochistan]

Before Muhammad Noor Meskanzai, J

INSPECTOR-GENERAL OF POLICE, BALOCHISTAN, QUETTA and 4 others----Petitioners

Versus

GHULAM RASOOL----Respondent

Civil Revision No.60 of 2007, decided on 19th June, 2012.

(a) Document---

----Proof---Unless document is tendered in evidence and exhibited, the same cannot be taken into consideration.

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

----Arts. 18, 70 & 72---Fact in issue, proof of---Principle---In order to prove case, statement of plaintiff must confirm and verify contents of plaint in its totality---Any repugnancy, inconsistency or conflict in statement and plaint is sufficient to damage the case and claim.

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

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for possession, declaration and injunction---Judgment at variance---Plaintiff claimed to be lawful owner of land in question and Provincial Government illegally, unlawfully and without any legal justification encroached upon his land---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Findings of Lower Appellate Court on the issue of possession were contrary to record and entries were in favour of Provincial Government---Continuous and uninterrupted possession of Provincial Government over suit property was established, therefore, findings of Lower Appellate Court on relevant issue were reversed and that of Trial Court were maintained---Lower Appellate Court committed material irregularity in reversing the decree, misread evidence and misapplied law by considering a document which had not been tendered in evidence nor had been proved---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Tariq Ali Tahir, Addl. A.-G. for Petitioners.

Jaffar Raza Khan for Respondent.

Date of hearing: 1st June, 2012.

2012 C L C 1699

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

BIBI AMINA and others----Appellants

Versus

MUHAMMAD IQBAL and others----Respondents

R.F.A. No.108 of 2010, decided on 30th May, 2012.

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

----Arts. 59 & 72---Stamp Act (II of 1899), Ss.33 & 35---Registration Act (XVI of 1908), S.17---Specific Relief Act (I of 1877), Ss.12 & 42---Suit for specific performance of agreement and declaration---Document, proof of---Opinion of Handwriting Expert---Unregistered document---Impounding of document---Plaintiffs claimed that their grandfather took possession of shop in question and sale agreement in his favour was executed on 9-11-1999---Agreement to sell was an unregistered document, therefore, Trial Court sent the same to Handwriting Expert for opinion---Handwriting Expert reported that signatures on the agreement were forged---Suit filed by plaintiffs was dismissed by Trial Court---Validity---Act of Trial Court, sending the agreement for expert opinion and declaring such act of Trial Court was rational, logical, legal and amounted to having a positive approach for resolving legal intricacies---Claim of plaintiffs valuing Rs.25 lacs was based on a document which was not registered, therefore, the same was incapable to create any right in property and no decree could be passed on such illegal and unwarranted document---Agreement to sell was inadmissible in evidence in view of section 35 of Stamp Act, 1899 and the same was liable to be impounded as per provisions of section 33 of Stamp Act, 1899---Claim of plaintiffs was concocted, fictitious, baseless and without substance---Plaintiffs failed to prove their case and Trial Court had rightly dismissed the suit---High Court in exercise of appellate jurisdiction maintained the judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Maqsood Ahmed and another vs. Muhammad Razzaque and 9 others PLD 2009 SC (AJ&K) 13; Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others 2009 MLD 1314 and Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.

Abdullah Baloch for Appellants.

Hadi Shakeel Ahmed for Respondents.

Date of hearing: 28th March, 2012.

2012 C L C 1911

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

Dr. SAEEDULLAH JAFFAR and 3 others----Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE, TRAFFIC, QUETTA and 2 others----Respondents

Constitutional Petition No.298 of 2007, decided on 27th October, 2010.

Balochistan Local Government Act (V of 2010)---

----Ss. 111 & 126---Balochistan Local Government Ordinance (XVIII of 2001), S.124(1)---Constitution of Pakistan, Arts. 23, 24 & 199---Constitutional petition---Land of old Bus Stand and additional land acquired for amalgamation therewith for construction thereon a New Bus Terminal---Proposal of Municipal Corporation to construct Shopping Complex containing 786 shops and offices & Bus Stand on such land comprising of (1) basement for parking, (2) ground floor with shops, lifts, staircase for access to other floors and a fully covered area for Buses, (3) mezzanine floor partly covered with shops, (4) first floor covered with office, (5) second floor fully covered with offices and (6) third floor with restaurant---Petitioners' plea was that construction of a multi-storeyed building on such land by Municipality leaving only a small portion of built up area for use of proposed Bus Terminal would tantamount to change amenity use status of such land---Validity---Proposed Bus Terminal was not open to sky and not having ventilation for fumes generated by buses and for being encircled with shops and buildings had only small openings for entry and exit of buses---Leaving such a small portion of built area for use of proposed Bus Terminal would tantamount to changing Old Bus Stand's amenity status and conversion of public land into private use---Public interest for being supreme could not be discarded by public functionaries by transferring to private persons public land designed for amenity use---Such land for being public land and acquired and designed for a public amenity use of new Bus Terminal could not be permitted to be used for private commercial use by constructing thereon shops, offices and restaurant for its disposal to private parties---Entrance and exit of buses from Bus Terminal would become difficult due to insufficient parking place provided in proposed Project for visitors and owners of shops/offices---Basic planning requirements for designing of a Bus Terminal had not been met by Municipality nor had taken safeguards against prevailing risk---Impugned action of Municipality of converting public land into private use was violative of S.124(1) of Balochistan Local Government Ordinance, 2001 and Balochistan Local Government Act, 2010 and the Constitution---High Court accepted constitutional petition in circumstances.

Ali Ahmed v. Municipal Committee, Talagang 2001 SCMR 585 ref.

PLD 2010 SC 759; Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; 2010 SCMR 885 and Pervaiz Oliver v. St. Gabrial School PLD 1999 SC 26 rel.

Muhammad Riaz Ahmed for Petitioners.

Additional Advocate-General for the State.

H. Shakeel Ahmed, Syed Iqbal Shah, Mujeeb Ahmed Hashmi, for Respondents.

Date of hearing: 15th June, 2010.

2012 C L C 1958

[Baluchistan]

Before Mrs. Syeda Tahira Safdar, J

Mst. FAIQA ABDUL HAYEE----Petitioner

Versus

CHAIRMAN, BALOCHISTAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, QUETTA----Respondent

Civil Revision No.409 of 2011, decided on 5th September, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration seeking correction of date of birth on secondary school certificate and on the record of Board of Secondary Education---Limitation---Suit was dismissed concurrently---Contention of the plaintiff was that statements of her parents were authentic evidence which could not be disbelieved---Validity---No explanation was given by plaintiff and her parents as to when she was in the knowledge about the wrong entry pertaining to her date of birth or why did her parents and she remained silent for a period of 23 years---Plaintiff did not tender into evidence the diaries she alleged were the source of her knowledge as to her correct date of birth, and suit was correctly assessed by courts below to be time-barred---Statements of parents, although were basic and best evidence in respect of date of birth, but mere assertion of parents could not be completely relied upon---Such statements needed corroboration by accompanying facts and .independent evidence---No extract from Birth Register of Municipal Corporation, or Form-B of Data Registration Authority were produced---No relief could be claimed on such unspecific evidence---Revision was dismissed, in circumstances.

Sher Baz Khan v The State PLD 2003 SC 849 and No such reference found PLD 2008 Lah. 659 ref.

Nasir Khan Yousafzai for Petitioner.

Nemo for Respondent.

Date of hearing: 24th July, 2012.

2012 C L C 1988

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Mir MITHA KHAN----Petitioner

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---- Respondents

Civil'Revision No.35 of 2012, decided on 4th July, 2012.

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

----S. 20(c) & O. VII, R. 11---Specific Relief Act (I of 1877), S.42 ---Suit for declaration calming right of the plaintiff to be eligible for appointment at place "I"---Rejection of plaint---Territorial jurisdiction---Cause of action---Plaint was rejected on ground of lack of territorial jurisdiction of Trial Court---Validity---Cause of action for the purpose of the present case would mean the legal demand of a right for which the suit was filed---Advertisement appeared for the post in newspaper published at place "Q"; and in response thereof, the plaintiff submitted his application for the post through proper channel from place "Q"---Cause of action, therefore, partly accrued at place "Q", and the suit was rightly filed before the Trial Court---Courts below had erred while arriving at the conclusion that there was a lack of territorial jurisdiction.

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

----S. 42---Suit for declaration claiming right of the plaintiff to be eligible for appointment and refraining the authorities from appointing any other person to the post---Maintainability---Plaintiff had to show that he had some legal character, whereby he was entitled for relief as claimed in the suit to cover it within the ambit of section 42 of the Specific Relief Act, 1877; but he failed---Exclusive authority vested with the authorities advertising the post seeking appointment of a person in the service---No violation of law was pointed out, and the plaintiff may have been a candidate, but such fact did not create any legal character in his favour to file a suit for declaration---Suit was not maintainable---Revision was dismissed, in circumstances.

Manzoor Ahmed Rehmani for Petitioner.

Rauf Atta, Standing Counsel and Amanullah Tareen, Addl. A.-G. for Respondents.

Date of hearing: 11th April, 2012.

2012 C L C 1386

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

LIAQUAT HUSSAIN----Appellant

Versus

ZIL-E-HUMA and another----Respondents

Civil Appeal No.47 of 2011, decided on 7th February, 2012.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Dissolution of marriage on ground of Khula'---Considerations---Plaintiff wife (married when she was minor) filed suit for dissolution of marriage against defendant (husband) on the ground of option of puberty, cruelty and in the alternative on the ground of 'Khula'---Family Court passed a decree for dissolution of marriage on ground of 'Khula' without any consideration---Validity---If a wife would fail to prove all the grounds taken by her in the plaint for the dissolution of marriage, even then a decree on the basis of 'Khula' could be passed in her favour, keeping in view the peculiar facts and circumstances of the case---Record, in the present case, had proved that the plaintiff could not prove the factum of cruelty, but had averred in the plaint that she could not live with the defendant at any cost---Plaintiff had also levelled certain allegations against the character of the defendant---Keeping in view the difference of age between spouses, the court below had rightly found that the plaintiff had developed a fixed aversion against the defendant; and that it was impossible for them to live a happy life within the limits ordained by Allah and rightly passed a decree for dissolution of marriage on ground of 'Khula'---When a tie of marriage was annulled on the ground of 'Khula', the wife had to pay the husband full or part of the consideration, she had received from her husband at the time of the contract of marriage as determined by the court---Plaintiff in the present case had admitted that dower amounting Rs.1,82,781 was fixed at the time of marriage which was paid to her in shape of ornaments; she however, averred that said amount was snatched away by the defendant which was in his possession---Defendant had refuted the claim of plaintiff and contended that said ornaments were still in her possession---Burden of proof of said fact was upon the plaintiff, but she failed to produce the cogent, sufficient and reliable evidence to discharge the burden of proof---Evidence of the plaintiff was vague and fictitious which could not be relied upon---Held, that the ornaments were still in possession of plaintiff which had to be returned to the defendant---Impugned decision and decree was set aside to the extent that the defendant was entitled to receive Rs.1,82,781 the dower amount as consideration for 'Khula'---Order accordingly---[2004 CLC 1186 overruled].

2004 CLC 1186 overruled.

Makhdoom Hussain v. Mst. Habiba Begum and others 1993 SCR 330; Muhammad Khalil v. Shazia Iqbal and 2 others 2006 CLC 1033; 2007 CLC 1771 and Muhammad Shafiq v. Mst. Gul Taj PLD 2007 SC (AJ&K) 56 rel.

Liaquat Hussain Mughal for Appellant.

Raja Muhammad Arif Khan for Respondents.

2012 C L C 644

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J.

and Raja Saeed Akram Khan, J

MUHAMMAD NAZIR KHAN----Appellant

versus

MUHAMMAD AMEER----Respondent

Civil Appeal No.14 of 2007, decided on 17th January, 2012.

(On appeal from the judgment of the High Court, dated 3-11-2006 in Civil Appeal No.5 of 2006).

(a) Malicious prosecution---

----Suit for recovery of amount on the ground of false and malicious prosecution---Plaintiff filed a suit for recovery of amount on the ground that defendant had instituted a false and baseless private complaint, which was dismissed by the Trial Court and Appellate Court below---Plaintiff claimed that due to said false complaint he was entitled to recovery of suit amount because prosecution was malicious---Defendant in his written statement had denied all the allegations stating that he had correctly filed the complaint against the plaintiff---Trial Court had considered the contents of plaint, written statement and evidence produced by the parties and after detailed examination of evidence, concluded that plaintiff had failed to prove his case---Findings of the Trial Court were upheld by the Appellate Court below and High Court---Validity---Nothing was in the statements of witnesses wherefrom it could be ascertained that the prosecution of the plaintiff was malicious---Only evidence which was produced by the plaintiff was that he was acquitted in said private complaint filed by the defendant/complainant---From mere acquittal, it could not be said that prosecution of the plaintiff was malicious one; it was necessary for the plaintiff to prove in the suit for damages that his prosecution was without reasonable cause and malicious---If a person had got reasonable and probable cause, the prosecution could not be described as malicious because he had got enmity---Whatever was stated by the plaintiff or his witnesses, the defendant cross-examined the witnesses and no material point was left in cross-examination---Plaintiff also failed to prove that he had suffered damages due to prosecution and that the proceedings had interfered with his liberty and affected his reputation---Appeal was dismissed by Supreme Court.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Haji Muhammad Latif Khan v. Muhammad Hanif 2007 SCR 125; Muhammad Arif v. Muhammad Boota and 4 others 2007 SCR 363; Muhammad Latif Khan and 2 others v. Muhammad Afsar Khan PLD 2000 SC (AJ&K) 31; Naber Shaha v. Shamsuddin and others PLD 1964 Dacca 11 and Muhammad Mantazuddin v. Shamsur Rahman PLD 1964 Dacca 618 rel.

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

----O. VIII, R.5---Specific denial---If the allegation in the plaint was not denied by the defendant in clear terms or by necessary implication; and if there was evasive denial, such denial could not be considered; and allegation in the plaint, would be considered to be correct.

Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109 ref.

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

----Art. 133---Cross-examination of a witness---Cross-examination of witness was a right of adverse party; and if a particular portion of the statement of a witness was not cross-examined, that would be deemed to be admitted true---If the statement of any witness would go against the defendant and he failed to cross-examine on that point, then the point would be deemed to be admitted.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

Asghar Ali Malik, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent.

Date of hearing: 10th January, 2012.

2012 C L C 928

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KASHMIR FREE BLOOD BANK AND WELFARE CENTRE (REGISTERED) through Attorney

versus

MIRPUR DEVELOPMENT AUTHORITY, MIRPUR

through Chairman and 6 others

Civil Appeal No.32 of 2009, decided on 23rd December, 2011.

(On appeal from the judgment of the High Court, dated 27-11-2008 in Writ Petition No.58 of 2004).

Azad Jammu and Kashmir Mirpur Development Authority Ordinance, 1974---

----S. 11---Transfer of plot---Creation of plot at the place where plot originally transferred, was situated---Plot was transferred in the name of appellant---Application filed by appellant for approval of Building Plan was not approved and it came to the knowledge of appellant that a new plot of different number had been created in place of plot transferred to him in the Sector---High Court dismissed writ petition applying the principle of estoppel on the ground that appellant in his application had admitted the factual position of making of a new plot---Appellant, however, in his application had not admitted the creation of new plot, he had only mentioned the alteration in the size of the plot---High Court had not correctly applied the principle of estoppel in the case---Impugned judgment of High Court, was not maintainable---View point raised in the writ petition was of vital legal importance, which required detailed deliberation, which was possible after regular hearing of the parties---Authority under S.11 of Azad Jammu and Kashmir Mirpur Development Ordinance, 1974 could make alteration as per actual requirement, but no provision existed in the said Ordinance that Master Plan could be amended or varied---Authority could only modify the Master Plan by getting approval of the Government---Case was remanded to the High Court for decision after notice to the parties.

Jamil Akhtar v. M.D.A. Mirpur through its Chairman and 4 others 1996 CLC 1464; Riaz Ahmed v. M.D.A. and 4 others 2000 YLR 2050; Residents of Hamidpur Colony Chakswari v. Mst. Fazeelat Begum and 5 others 2000 MLD 1305 and Walayat Begum v. Revising Authority MDA and 3 others 1999 MLD 1549 rel.

Mirza Qama-uz-Zaman, Advocate for Appellant.

Muhammad Reaz Alam, Advocate for Respondents Nos.1 to 3.

Ch. Muhammad Anwar, Advocate for Respondents Nos.5 and 7.

Ch. Muhammad Mushtaq, Ex-Town Planner, Sarfraz Alam, Town Planner, Muhammad Akram, Assistant Town Planner and Khurshid-ul-Hassan Shah, Head Draftsman, M.D.A. in person on Court Notice.

Date of hearing: 29th November, 2011.

2012 C L C 1097

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

SAFDAR ALI KHAN----Petitioner

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others----Respondents

Civil Review Petition No.23 of 2010, heard on 3rd February, 2012.

(In the matter of review from the judgment of this Court, dated 23-4-2010 in Civil Appeal No.11 of 2009).

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

----O. VII, R.2 & O.XLVII, R.1---Arbitration Act (X of 1940), S.14---Limitation Act (IX of 1908), Arts.158 & 178---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Azad Jammu and Kashmir Supreme Court Rules, O.XLVI---Review of Supreme Court judgment---Money suit---Arbitration proceedings---Objection to report/award of the Arbitrator---Limitation---Parties having agreed for appointment of an arbitrator, Trial Court appointed arbitrator who filed report in presence of the parties---None of the parties filed objection on the report submitted by the arbitrator with stipulated period of 30 days---Later on after about 2-1/2 months, plaintiffs filed objection to the said report and prayed for setting aside the award---Court rejected the objection which was filed beyond the period of limitation and passed decree in terms of award submitted by the arbitrator---Feeling aggrieved from the judgment and decree of the Trial Court, the plaintiff filed appeal in High Court---High Court modified the judgment and decree of the Trial Court to the extent of finding regarding overpayment to the plaintiff, and rest of the judgment and decree was upheld---Appeal filed before the Supreme Court having been dismissed the plaintiff had filed review petition---Award/report having been submitted by the arbitrator in presence of counsel for the parties, written notice was not the requirement of law---Plaintiff having failed to point out any error apparent on the face of record in the judgment under review, no case for review was made out---Review petition was dismissed by the Supreme Court in circumstances.

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

----O. XLVII, R.1---Azad Jammu and Kashmir Supreme Court Rules, O.XLVI---Review of Supreme Court judgment---Supreme Court could review its judgment under O.XLVI of Supreme Court Rules on the grounds similar to those mentioned in O.XLVII, C.P.C., which postulated that the review was permissible on the ground of error apparent on the face of record on discovery of some new evidence or fact; but the review was not permissible, if a party would argue that a different interpretation of law was possible.

Ramnath Agarwal v. G.S. Iyer, Collector of Customs, Kandla and another AIR 1961 Gujarat 51, Ratnawa v. Gurushiddappa Gurushantappa Magavi and others AIR 1962 Maysoor 135 and Col. (Rtd.) Muhammad Aslam vs. Haji Muhammad Shaft and another PLD 1993 Lah. 11 distinguished.

Rashida Awan v. District Education Officer and 8 others 2007 SCR 406; Azad Government v. Muhammad Suleman and 6 others 2003 SCR 423 and Mst. Nasreen Gulab v. Mst. Tasleem Akhtar and 4 others 2010 SCR 375 ref.

Messrs Shafi Corporation Ltd. Karachi v. Government of Pakistan through Director-General of Defence Purchase PLD 1981 Kar. 730 rel.

Tahir Aziz, Advocate for Petitioner.

Abdul Waheed Durrani, Advocate for Respondents.

2012 C L C 1118

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD QASIM----Appellant

versus

RAZIA BEGUM and 5 others----Respondents

Civil Appeal No.38 of 2009, decided on 1st March, 2012.

(On appeal from the order of the High Court, dated 27-9-2008 in Revision Petition No.284 of 2006).

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

----O. XXXIX, Rr.1, 2 & 4---Issuance or vacation of stay order---Necessary ingredients---For issuance or vacation of a stay order, three necessary ingredients had to be considered; prima facie cases; balance of convenience and irreparable loss---Plaintiff should not necessarily prove that he would succeed in the case in all circumstances, but he had to establish only a prima facie case---If a prima facie case was established, then the other two ingredients had to be seen.

Fojdar Khan and another v. Azad Government and others 2001 CLC 920 and Muhammad Rasab and another vs. Muhammad Siddique Chaudhry 1998 MLD 2045 rel.

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

----O. XXXIX, Rr.1, 2 & 4---Specific Relief Act (I of 1877), S.42---Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deh Act, 1966, Ss.5 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for perpetual injunction---Grant or vacation of stay order---Trial Court vacated the stay order on the ground that previous suit filed by the plaintiff was dismissed and the shamilat land was reserved for common purpose and High Court restored the said judgment---High Court had not considered the necessary ingredients for issuance of stay order---Plaintiff from the record appeared to be in possession of disputed survey numbers of land and was yet to be established, whether said survey number fell in shamilat deh reserved for common purpose or not---Till that time, a good prima facie arguable case appeared to exist in favour of the plaintiff---When the plaintiff had got a good prima facie arguable case, then the other two necessary ingredient, i.e. balance of convenience and irreparable loss, had to be seen---Where a good prima facie case was established by the plaintiff, if in such an eventuality, he would be evicted from land in dispute, irreparable loss would occur to him---Plaintiff being in possession of land, the balance of convenience also appeared in his favour and was entitled to remain in possession---Possession of plaintiff was proved on record---Judgment of High Court was set aside and that of Appellate Court below was restored.

Fojdar Khan and another v. Azad Government and others 2001 CLC 920 rel.

Ch. Muhammad Mehfooz, Advocate for Appellant.

Ch. Muhammad Suleman, Advocate for Respondent No.1.

2012 C L C 1131

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

NAVEED FARID----Appellant

versus

RAHEELA RAZZAQ----Respondent

Civil Appeal No.46 of 2011, decided on 7th February, 2012.

(On appeal from the judgment of the Shariat Court, dated 26-3-2011 in Civil Appeal No.40 of 2010).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, R.13---Limitation Act (IX of 1908), S.5---Suit for recovery of dower amount and maintenance allowance---Ex parte decree---Application for setting aside ex parte decree---Condonation of delay---Scope---Limitation---Defendant (husband) having failed to appear before the Trial Court, ex parte proceedings were ordered against him and after recording evidence, ex parte decree was passed in favour of the plaintiff (wife)---Application for condonation of delay in filing application, which under R.13 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, was 30 days, was filed after 3-1/2 months, which was time-barred---Azad Jammu and Kashmir Family Courts Act, 1993, was a special law, which had provided limitation under the Rules and there was no concept of condonation of delay under R.13 of the said Rules---In presence of clear provisions in the special law, the provisions of S.5 of the Limitation Act, 1908, were not applicable to the proceedings before the Family Court---Application for condonation of delay being time-barred, was rightly dismissed, in circumstances.

Muhammad Arshad Khan v. Muhammad Kaleem Khan PLD 2007 SC(AJ&K) 14; Syed Lal Hussain Shah v. Lal Muhammad and 6 others 2005 CLC 107; Syed Tanveer Hussain Shah v. Mst. Perveen Akhtar and 2 others 1999 MLD 216 and Mst. Zareena Begum v. Nisar Hussain and another 1996 SCR 82 distinguished.

Muhammad Arshad Khan vs. Muhammad Kaleem Khan [PLD 2007 SC(AJ&K) 14 and Saifullah Hanif vs. Bushra Bano [Civil Appeal No.55 of 2010 rel.

Khalid Rasheed Chaudhry, Advocate for Appellant.

Malik Muhammad Zarait Khan, Advocate for Respondent.

2012 C L C 1218

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD MIRZA KHAN---Appellant

Versus

MUHAMMAD SHAFI KHAN and 54 others---Respondents

Civil Appeal No.108 of 2009, decided on 18th August, 2011.

(On appeal from the judgment of the High Court dated 13-3-2009 in Civil Appeal No.197 of 2005).

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

----Ss. 42 & 44---Civil Procedure Code (V of 1908), O.XLI, R.18---Appeal against order of High Court, whereby appeal was dismissed for non-compliance of the court order---During the proceedings of the appeal an interim order was recorded to the effect to deposit process fee and furnish fresh address of one of the respondents---Two respondents died, during the proceedings and appellant had not filed application for impleading their legal heirs---Sufficient time was given to the appellant to file fresh addresses of said respondents, deposit of process-fee and impleading of legal heirs of deceased respondents---More than sufficient time was granted to the appellant to do the needful, but despite passage of more than two years, he had failed to do the needful---Appellate Court, under O.XLI, R.18, C.P.C. was vested with express powers to the effect that where on the day fixed, or any other day to which the hearing could be adjourned, it was found that the notice to the respondent had not been served in consequence of the failure of the appellant to deposit, within period fixed, the sum so required to defray the cost of serving the notice, the court could make an order that appeal be dismissed---Numerous adjournments were granted for said purpose, and even last and final opportunity on cost was also granted, but the order of High Court had not been complied with---Impugned order of High Court, in circumstances, was in accordance with codal provisions as well as the principles of justice---Appellant having failed to make out any legal ground for interference of Supreme Court, appeal was dismissed.

Ashfaque Hussain Kiani Advocate for Appellant.

Kh. Muhammad Nasim Advocate for Respondents.

Date of hearing: 14th June, 2011.

2012 C L C 1274

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

ALLAH DITTA and others---Appellants

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Appeal No.6 of 2008, decided on 18th November, 2011.

(On appeal from the judgment of the High Court dated 23-10-2007 in Civil Appeal No.228 of 2006).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Specific Relief Act (I of 1877), S.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for possession---Contents of judgment---Scope---Suit was dismissed by Trial Court and Appellate Court below, but on second appeal, High Court remanded case to Appellate Court for decision afresh---Validity---Provisions of R.31 of O.XLI, C.P.C., relating to contents of judgment of Appellate Court, were mandatory---First Appellate Court was also a court of facts, and it was enjoined upon the said court to decide each and every issue after discussing the evidence---If decision of appeal was possible after recording the finding on one or more issues, then it was not necessary to record finding of all the issues---In the present case Appellate Court below had not recorded findings issue-wise, but only resolved the question of limitation and question as to whether suit was hit by O.II, R.2, C.P.C., was not resolved---No issue was framed whether the suit was hit by O.II, R.2, C.P.C.---Appellate Court below delivered the judgment in a telegraphic manner without discussing the facts or evidence on record---Appellate Court was obliged to record findings on each and every issue when the decision on the basis of findings on one issue was not possible---Two issues were crucial in the suit and without deciding said issues, appeal could not be decided---High Court, in circumstances, had correctly remanded the case to Appellate Court below for resolving of issues.

Azad Government and another v. Mujahid Hussain Naqvi 2002 SCR 302 ref.

Dr. Syed Ali Sajjad Bukhari and 6 others v. Sabir Ali Shah and 4 others 1987 CLC 229; Haji Abdul Jalil v. Anjuman Jame Masjid Haquani 1996 MLD 818 and 1997 CLC 1337 distinguished.

Ch. Shah Wali Advocate for Appellants.

Raja Saadat Ali Kayani Advocate for Respondent No.1.

Date of hearing: 25th October, 2011.

2012 C L C 1283

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan and Chaudhry Muhammad Ibrahim Zia, JJ

Mst. ZAMEER BEGUM and 2 others---Appellants

Versus

SHAKEELA BEGUM and 7 others---Respondents

Civil Appeal No.88 of 2006, decided on 10th January, 2011.

(On appeal from the judgment and decree of the High Court dated 18-4-2006 in Civil Revision No.22 of 2005).

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

----Chap. XI [Ss.135 to 150]---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Partition of land---Plaintiffs had challenged the order of Revenue Assistant on the ground that partition-deed in respect of suit land was contrary to the partition order passed by Revenue Assistant and that partition-deed issued by Revenue Assistant was without hearing the plaintiffs, without notice, against law, mala fide and in violation of the provisions of West Pakistan Land Revenue Act, 1967---Jurisdiction of civil court---Scope---Section 9, C.P.C. had conferred jurisdiction upon the civil court to hear, determine and adjudicate a cause by exercising their judicial power and authority---Civil court is granted general jurisdiction to try all suits of civil nature, unless their cognizance was specifically or impliedly barred---For the purpose of determining the question of jurisdiction, the recitals in the plaint had to be considered and the question be decided on the basis of facts alleged in the plaint---Section 9, C.P.C. had conferred wide powers in the civil court to determine whether court of special jurisdiction had acted in accordance with law; and limits imposed upon it by law---When the jurisdiction of civil court was expressly barred and conferred upon special tribunal, civil court being courts of ultimate jurisdiction had the jurisdiction to examine the acts of such forum, whether those were in accordance with law; within sphere allotted to it by such law; illegal, mala fide or contrary to principles of natural justice---Civil court could determine whether a judgment was obtained on the basis of fraud and a functionary had exceeded its jurisdiction; and its order was nullity in the eyes of law---Where the statutory provision had not been complied with, the civil court could set aside such judgment---Under Chapter XI of West Pakistan Land Revenue Act, 1967, Revenue Courts had exclusive jurisdiction to decide the question relating to the partition of land; and the civil court could not question the correctness of the decision of Revenue Court based on law and valid exercise of jurisdiction; in that case the jurisdiction of the civil court was ousted, but if the decision was in violation of law, procedure, mala fide, based on fraud, against the statutory provisions, in violation of principles of natural justice, the civil court would have jurisdiction to entertain the suit and decide the same---Had the plaintiffs challenged the correctness of the partition-deed without alleging said facts of mala fide etc., then S.172 of the West Pakistan Land Revenue Act, 1967, should have come in operation; and in that case civil court had no jurisdiction to entertain the suit---Plaintiffs had challenged the decision of the Revenue Authorities on the grounds which attracted the jurisdiction of the civil court; no ouster clause was attracted---Civil court, in circumstances, had the jurisdiction to entertain and decide the suit.

Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75 distinguished.

Military Estate Officer and another v. Syed Qamoos Shah and 20 others PLD 2004 SC (AJ&K) 40; Syed Shah v. Khuda Bakhsh known as Maulvi Shah and others PLD 1954 Lah. 606; Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) PLD 1960 SC 113 and Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671 rel.

Ch. Jahanadad Khan Advocate for Appellants.

Ch. Lal Hussain Advocate for Respondents.

Date of hearing: 30th September, 2010.

2012 C L C 1445

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmed, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD YOUNIS ARVI----Appellant

Versus

MUHAMMAD ASLAM and 16 others----Respondents

Civil Appeal No.80 of 2006, decided on 28th April, 2011.

(On appeal from the judgment of the High Court dated 27-4-2006 in Civil Appeal Nil of 2005).

Civil Procedure Code (V of 1908)---

----O. VII, R. 11--- Rejection of plaint--- Considerations---Main consideration for rejection of plaint under O.VII, R.11, C.P.C. was the contents of plaint keeping in view the peculiar facts of the case---Some undisputed or admitted material, any documents available, which according to the nature of the averments of the plaint, could be considered as part of plaint, could also be considered---In the present case, on appreciation of the averments of the plaint and documents annexed with it, it could not be concluded that the plaintiffs had no cause of action, or the suit was barred by law---Plaintiffs had claimed multiple remedies in their prayer clause---If any one of the prayer could not be granted, that would not mean that the suit would be treated barred for all other claimed remedies---Under the provisions of O.VII, R.11, C.P.C. plaint could only be rejected, if all the reliefs claimed, were barred under the law---If some of the reliefs claimed were available the plaint could not be rejected, because under the codal provisions, there was no concept of piecemeal rejection of the plaint---Parties in the case were at variance on question of fact, which could not be resolved without recording the evidence---Rejection of plaint, in such state of affairs, was not justified---Trial Court was equipped with the powers to the effect that after framing issues, the plaint could be disposed of partly or in toto by deciding the purely legal issues---Rejection of plaint was not justified without framing issues or providing opportunity of hearing, and leading evidence to the parties in the peculiar facts and circumstances of the case---Impugned judgment of High Court, not suffering from any legal infirmity, was upheld.

2003 YLR 1788 distinguished.

Haji Allah Bakhsh's case 1995 SCMR 459; 2008 SCMR 1037; 2010 SCR 295; 2003 SCMR 1284; 1992 SCMR 1199; Kh. Muhammad Akbar's case 2000 SCR 211 and Azhar Muhammad v. Messrs Memon Housing Services 2009 MLD 1378 rel.

Muhammad Younas Arvi, Advocate for Appellant.

Muhammad Reaz Tabassum, Advocate for Respondents.

Date of hearing: 3-2011 (sic).

2012 C L C 1521

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Sub Retd. MUHAMMAD AZIZ KHAN----Appellant

Versus

MUHAMMAD HANFI and others----Respondents

Civil Appeal No.60 of 2003, decided on 12th October, 2011.

(On appeal from the judgment of the High Court dated 30-11-2002 in Civil Appeal No.46 of 1993).

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

----Ss. 39 & 42---Transfer of Property Act (IV of 1882), S.122---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for declaration and cancellation of gift-deed---Plaintiffs in their plaint had averred that alleged gift-deed in respect of suit property was obtained by the defendant fraudulently, secretly and without delivery of possession of the gifted property---Plaintiffs had alleged that defendant/alleged donee, kept the alleged gift-deed secret till the death of the donor; and after almost 14 years' period, the mutation on the basis of that alleged gift-deed in favour of the defendant was got entered and attested in the Revenue Record---Trial Court decreed the suit, but Appellate Court below set aside the findings of the Trial Court---High Court, on remand from the Supreme Court, through impugned judgment, accepted the appeal of the plaintiffs by setting aside the judgment of the Appellate Court below, while cancelling the gift-deed declaring the same to be ineffective due to non-delivery of possession---Validity---Witnesses produced by the plaintiffs had unanimously stated that the plaintiffs and the donor were inter-related---Plaintiffs through oral and documentary evidence, had established the fact that they being descendants of the true grandfather of the deceased donor, were legal heirs---Descendants of true grandfather according to Shariah Law would inherit as residuaries---One of the plaintiffs being real sister of deceased donor, was entitled for one half as sharer, whereas the other plaintiffs in whose favour decree had been passed by the High Court being the descendants of true grandfather, were entitled for one half of inheritance of deceased, as residuaries---Alleged gift-deed was registered in 1970, but the defendant donee for the first time in the year 1984, after death of the donor, after a period of almost 14 years got entered and attested mutation regarding said gift-deed---Such conduct of the defendant/donee, was sufficient to create preponderance of probability that the fact of execution of gift-deed had been intentionally kept secret till the death of the donor---Trial Court and High Court had rightly treated the suit of the plaintiffs with limitation---Defendant/donee's possession relating to the suit property had never been recorded---Findings recorded by the High Court and the Trial Court on the delivery of possession, were well-reasoned according to the facts and record of the case---Well-reasoned and comprehensive judgment of the High Court, could not be interfered with, in circumstances.

Dhaman and others v. Ghulam Sarwar and others 1985 SCMR 947; 2010 SCR 231; 1982 CLC 1309 and PLD 1981 SC (AJ&K) 118 rel.

(b) Administration of justice---

----Findings to be recorded in favour of the party in whose favour the material brought on record created preponderance of probability.

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

----O. VI, R.1---Pleadings---Question of fact, which had not been raised in the pleadings, could not be looked into by the courts, because in civil cases, the courts were bound to decide the cases in the light of the assertion of the parties as brought on record in their pleadings.

Appellant in Person.

Sardar Rafique Mehmood Khan, Advocate for Respondents.

Date of hearing: 8th June, 2011.

2012 C L C 1655

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

GHULAM RASOOL and another----Appellants

Versus

SAID AHMED and others----Respondents

Civil Appeal No.124 of 2003, decided on 19th March, 2012.

(On appeal from the judgment of the High Court dated 29-4-2003 in Writ Petition No.259 of 1999).

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

----Ss. 52-A(5) & 42---Transfer of land---Appellants submitted application before the Prime Minister claiming that they were owners of land which adjoined to Forest Land and that they wanted to exchange same with Forest Land---Prime Minister issued direction for process of the case and after some process allowed the exchange prayed for---Respondents who were permanent residents and the owners of land in the same village, challenged propriety of said order of the Prime Minister in writ petition and High Court granted writ prayed for---Validity---Under provisions of S.52-A(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974, transfer of land by the Government or the Council would be regulated by law---Government or other Public Authorities had no discretion to distribute the State property as charity---Appellants had failed to refer any other provision of law empowering the Government to transfer the land to private person---Government, without making law according to spirit of S.52-A(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974, could not transfer the State land to any person or exchange the same.

(b) Azad Jammu and Kashmir Land Acquisition Rules, 1994---

----Rr. 14, 15 & 16---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.52-A(5)---Transfer of acquired land---Government, under Azad Jammu and Kashmir Land Acquisition Rules, 1994, was only empowered to transfer the acquired land to such legal person for whom it was empowered to acquire the land---Once the land was acquired by the Government for public purpose, or for company or industry, it could not be utilized against the public interest; or for the individual's benefit---First condition was that the acquired land could only be used for the purpose it was acquired; land could not be acquired for any individual's personal interest or benefit---If the land was acquired for a company, the company could not sell the same without express approval of the Government, such condition was laid down with spirit that public interest was supreme---Government would have to watch the interest of public---If the property was not acquired for the public purpose, or not used for the purpose for which it was acquired, the same would be resumed and restored to the original owners, or their heirs from whom it was acquired; and if there was no such eventuality, the land would be utilized or disposed of by the Board of Revenue, in accordance with the Policy of Government regarding disposal of the land---Scheme and spirit of the Azad Jammu and Kashmir Land Acquisition Rules, 1994 was in consonance with the constitutional provision as expressed under the provision of S.52(A) of Interim Constitution Act, 1974----Without any express and specific legislation, no one was empowered to transfer the Government land to any person in an arbitrary manner---Neither any provision dealing with "Khalsa Land" or the "Shamilat Land" nor any other provision of any enforced law existed or empowered the Government to execute transaction of sale or exchange of State land in the interest of private person---Government, even otherwise was not empowered to transfer such land through notification to any individual person---Powers bestowed upon the Government under Land Acquisition Rules, were conditional only to the extent of acquired land, and that too could only be transferred to such a person for whom under the law, the Government could acquire the land---Whole transaction in the case, in circumstances, was without lawful authority.

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

----S. 13---Shamlat-e-Deh---"Shamlat-e-Deh" land, is a common land of the villagers and the Government or any other State authority is not empowered to transfer said land---Such-like transfer is violative to the constitutionally guaranteed fundamental rights of property.

(d) Administration of justice---

----Things should be done according to prescribed mode and not otherwise---If a thing was to be done in a particular way, it should be done in that way and manner as prescribed, or should not be done at all.

2004 SCR 23 rel.

(e) Administration of justice---

----Act without lawful authority, would not create any interest or legal rights in favour of the beneficiaries.

Kh. Muhammad Nasim for Appellants.

M. Yaqoob Khan Mughal for Respondents.

Date of hearing: 20th December, 2011.