CLC 2013 Judgments

2013 C L C 667

[Board of Revenue Punjab]

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

AMJAD ALI----Petitioner

Versus

Haji MANZOOR HUSSAIN----Respondent

R.O.A. No.77 of 2012, decided 15th January, 2013.

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

----Ss. 36 & 161---West Pakistan Land Revenue Rules, 1968, Rr.16 & 17---Appointment of Lambardar---Lambardar of the village having died, petitioner applied for his appointment against vacant post---Additional District Collector appointed petitioner as Lambardar, but on filing appeal by respondent against said appointment, Commissioner set aside order of Additional District Collector---Validity---Position of Lambardar was of a very high eminance and erudition according to the prevalent and traditional norms in rural economy---Decision to appoint a person as a Lambardar in a Revenue Estate was of pivotal importance since it was a leadership position and the very conferment of title appointment as Lambardar entitled to certain privileges including high social status in the locale and a respectful identity with dignity in rural society---Personal influence, character, ability and freedom from indebtedness were prerequisites for the appointment of Lambardar---Additional District Collector did not appreciate the mandatory provisions of S.36 of West Pakistan Land Revenue Act, 1967 and instructions in Rr.16 & 17 of West Pakistan Land Revenue Rules, 1968---Commissioner had rightly held that Additional District Collector should have appointed Lambardar in the light of the statutory provisions and instructions of the Board of Revenue---Revision petition filed by the petitioner was dismissed and the decision of the Commissioner was upheld by Board of Revenue, in circumstances.

1984 CLC 2873; 1992 SCMR 1977; PLD 1950 (Revenue) Punjab 4; 1996 MLD 120; PLD 1991 SC 531; 2004 CLC 197; PLD 1999 SC 484; 2007 YLR 702; 2007 CLC 354; 2000 CLC 492; 1988 MLD 744 and 2003 MLD 157 ref.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, Rr.16 & 17---Appointment of Lambardar---Conditions for first appointment of village lambardar---Hereditary claim of candidate---Scope.

Conditions for first appointment of village Headman/Lambardar are as follows:--

(a) The hereditary claims of the candidate;

(b) Extent of property in the estate, if there are no sub-divisions of the estate, and in case there be sub-divisions of the estate the extent of the property in the sub-divisions of the estate the extent of the property in the sub-division for which appointment is to be made possessed by the candidate;

(c) Service rendered to the Government by him or by his family;

(d) His personal influence, character, ability and freedom from indebtedness;

(e) The strength and importance of the community from which selection of a headman is to be made;

(f) His ability to undergo training in Civil Defence in the case of headmen in Tehsil situated along the Border.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, Rr.16 & 17---Appointment of Lambardar---Importance of office of Lambardar and its intrinsic and extrinsic values and general externalities in terms of social recognition in an agro-based community in village.

It is incumbent upon the District Collectors, to be cognizant of the importance of office of Lambardar and its intrinsic and extrinsic values and general externalities in terms of social recognition in an agro-based community in villages. The Lambardar in a Village or Revenue Estate shall have the following qualifications, attributes and accoutrements:--

(i) He/She shall be literate and the higher qualification of the candidate should be a plus point and clear competitive advantage.

(ii) He/She shall be a person of impeccable moral and financial integrity.

(iii) He/She shall not be a convict in any case from any court of competent jurisdiction in Pakistan or abroad.

(iv) He/She has not committed or engaged or had been engaged in the past in smuggling, theft, robbery, dacoity or any other crime or involved in anti-social activities reported to the Police; tentamounting to disturb the repose of society.

(v) He/She shall own the property in the revenue estate and shall be permanent resident of the village. Due weight should be given to the extent of land holding by the candidate when compared to other candidates from the village revenue estate.

(vi) He/She shall enjoy good reputation and shall have established eminence and erudition as a responsible member of the society.

(vii) He/She should have positive mental wiring and tapestries of mind have positive attitude toward the general public and landowners.

(viii) His/her contribution towards the welfare of the community must be weighted in quantifiable and verifiable terms, judged from independent sources by the District Collector.

(ix) He/She must enjoy the privilege of commanding respect and trust in his/her person as a member of the community in a revenue estate.

(x) He/She should have the right potential to prefer evidence based on truth and assist the district administration while operating against anti-social and anti-State elements.

(xi) He/She should be neutral and apolitical person.

Sameer Ijaz for Petitioner.

Rana Shahid Mehmood for Respondent.

2013 C L C 1362

[Board of Revenue Punjab]

Before Muzaffar Mehmood, Member (Judicial-VII)

MUHAMMAD AMIN KHAN----Petitioner

Versus

GHULAM FAREED and 8 others----Respondents

R.O.R. No.1755 of 2012, decided on 25th February, 2013.

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

----S. 10---Consolidation of proceedings---No one agitated against Muswada Scheme---Musawada Scheme indicating area reserved for Boys School while Girls School was located within Abadi Deh, whereas deficiencies of landowners would be met from another khasra---Such Scheme was confirmed by the Board of Revenue accordingly.

Muhammad Tufail Ali for Petitioner.

Muhammad Latif Mirza for Respondents.

2013 C L C 1743

[Board of Revenue Sindh]

Before Muhammad Ayub Shaikh, Member (Judicial-I)

CHATOON through Legal Heirs----Appellant

Versus

PIRBHO and others----Respondents

S.R.O.A No.147 of 2006, decided on 11th October, 2012.

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

----Ss. 42, 53, 161 & 164 ---Inheritance mutation attested 86 years ago, setting aside of---Jurisdiction of Revenue Authorities---Scope---Such mutation attested in year 1920 was challenged in year 1962 in appeal, which was dismissed on 12-6-1962 by Deputy Commissioner (Revenue) for lack of jurisdiction---Appeal against such order dated 12-6-1962 was filed before District Officer (Revenue) in year 2004, which was dismissed for not being maintainable while directing appellant to seek his remedy before Civil Court---Executive District Officer (Revenue) set aside such mutation after accepting revision petition filed thereagainst in year 2006---Validity---Such order of Deputy Commissioner dated 12-6-1962 for not being challenged in appeal had attained finality---Executive District Officer had no jurisdiction to set aside such order passed in year 1962 after 42 years---Revenue authorities were not competent to undo such long-standing entries at such belated stage---Such matter would fall within jurisdiction of Civil Court---Board of Revenue set aside such order of Executive District Officer in circumstances.

PLD 1986 Rev. 22; 1986 PLD Rev. 131; 2005 YLR 890; 1994 MLD 2254 and PLD 1986 Rev. 150 rel.

Abdul Sattar Sarki for Appellant.

Rohan partner of Bhimraj for Respondents Nos.1 to 4.

2013 C L C 956

[Election Tribunal (AJ&K)]

Before Mr. Justice Munir Ahmed Chaudhary, Election Tribunal

Sardar FAROOQ AHMED TAHIR----Petitioner

Versus

AKHTAR HUSSAIN RABBANI and 7 others----Respondents

Election Petition No.11 of 2011, decided on 31st January, 2013.

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

----Ss. 51(3), 59 & 60---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Non-verification of election petition, its annexures and documents relied upon by petitioner---Petitioner's plea was that affidavit filed in support of contents, same was liable to be read as part and parcel of pleadings---Validity---Provision of S.51(3) of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 provided for verification of election petition and its annexures in manner laid down in O.VI, R.15, C.P.C.---Election Tribunal could exercise powers of civil court under C.P.C.---Provisions of C.P.C. and the Ordinance could be applied simultaneously during trial of election petition---Petitioner by filing duly attested affidavit with election petition had taken upon him responsibility of pleadings, thus, both would be read in juxta position---Complete absence of verification would be fatal to election petition---Tribunal while trying election petition could allow amendment at any stage to cure defect of formal nature in order to determine real controversies between parties---Petitioner had sufficiently complied with mandatory requirements of the Ordinance--- Defect in verification would be treated as one of minor character not justifying dismissal of election petition---Tribunal repelled such objection in circumstances.

PLD 2005 SC 600 and Ch. Arshad Hussain v. Rukhsar Ahmed and others Civil Appeal No.90 of 2006 ref.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; 2007 MLD 153 and AIR 1984 Patna 167 rel.

Sardar Abdul Sammie Khan for Petitioner.

Sardar Pervaiz Akhtar Khan for Respondent No.1.

2013 C L C 494

[Election Tribunal Balochistan]

Before Jamal Khan Mandokhail, J

Dr. ASHOK KUMAR----Petitioner

Versus

HEAMAN DASS and 3 others----Respondents

Election Petition No.2 of 2012, decided on 5th October, 2012.

(a) Senate (Election) Act (LI of 1975)---

----Ss. 31 & 32---Representation of the People Act (LXXXV of 1976), S.39(6)---Constitution of Pakistan, Arts.199 & 225---Constitutional petition---Election dispute---Forum---Words "except by an election petition"---Scope---Petitioner was aggrieved of election result and sought recounting of votes---Respondent raised objection to maintainability of petition---Validity---Provision of S.31 of Senate (Election) Act, 1975, put bar on filing of election petition before any court or authority, other than Election Tribunal with regard to recounting of votes in election of Senate---To the contrary, Art.225 of the Constitution had assigned power only to Election Tribunal through election petition in respect of election dispute---Provision of Art.225 of the Constitution which started with negative word and phrase "except by an election petition" was purposely used to show intention of legislature, which clearly ousted jurisdiction of any forum, other than Election Tribunal---When Constitution had barred jurisdiction of any forum and directed resolution of any election dispute through election petition through Election Tribunal, then restriction imposed upon filing of election petition by S.31(2) of Senate (Election) Act, 1975, was inconsistent with Art.225 of the Constitution, therefore, bar contained in the section in no way ousted jurisdiction of Election Tribunal---Forum provided by the Constitution alone had jurisdiction to adjudicate election dispute because Constitution would prevail to the extent of conflict---Election Commissioner was administrative head of the Commission having power of appeal with regard to recounting of votes under Senate (Election) Act, 1975---Such power of the Commissioner was not a substitute of Election Tribunal rather it was equivalent to the power assigned to Returning Officer under S.39(6) of Representative of the People Act, 1976---Aggrieved candidate could avail such remedy and his decision in administrative capacity would be final, however it could be challenged before Election Tribunal---Availing and non-availing of remedy under S.32 of Senate (Election) Act, 1975, did not debar a candidate from filing of election petition, nor it excluded jurisdiction of Election Tribunal---Objection was overruled in circumstances.

Syed Mukhtar Hussain Shah v. Waseem Sajjad 1986 PLD SC 178 and Syed Murad Ali Shah v. Chief Election Commissioner of Pakistan 1995 MLD 1326 rel.

(b) Words and phrases---

----Dispute---Defined.

Oxford English Dictionary rel.

(c) Interpretation of statutes---

----Constitution and sub-Constitutional legislation---Inconsistency---Principle---Constitution is supreme, therefore, no legislation and any of its provision should be inconsistent with any provision of the Constitution---If any provision of any Act is found inconsistent with any provision of Constitution, in that case, Constitution having an overriding effect, must prevail.

Baz Muhammad Kakar for Petitioner.

Kamran Murtaza for Respondent No.1.

Muhammad Saleem Ansari for Respondent No.3.

Arshad Ali Rajput for Respondent No.4.

Date of hearing: 29th September, 2012.

2013 C L C 1297

[Election Tribunal Balochistan]

Before Muhammad Hashim Khan Kakar and Naeem Akhtar Afghan, JJ

Mir HAMAYUN AZIZ KURD and another----Appellants

Versus

PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and another----Respondents

Election Appeals Nos.95 and 96 of 2013, decided on 17th April, 2013.

(a) Constitution of Pakistan---

----Art. 62---Qualifications of membership of Majlis-e-Shoora---Object and scope---Persons, desiring to engage themselves in the process of law making for the country, must themselves be possessed with high qualities of personal character and moral values---Legislator, who indulges in unfair means in earning or procuring his educational documents cannot be termed to be sagacious, righteous or ameen.

Muddasar Qayyum Nahra v Ch. Bilal Ijaz, 2011 SCMR 80; Civil Miscellaneous Application No.1712 of 2013 in Civil Appeal No.191-L and 409 of 2010; Malik Iqbal Ahmad Langrial v. Jamshed Alam PLD 2013 SC 179 and Obaidullah v Senator Mir Muhammad Ali Rind PLD 2012 Balochistan 1 rel.

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

----Ss. 14(5), 78(3)(d), 82 & 99---Constitution of Pakistan, Arts.62 & 63---Nomination papers--- Scrutiny--- Disqualification--- Corrupt practice---False statement---Fake educational degree---Acquittal from criminal court---Appellant was aggrieved of rejection of his nomination papers by Returning Officer---Plea raised by appellant was that he had been acquitted by criminal court in the case of holding fake educational degree---Validity---Merely because appellant secured acquittal from criminal court, would not mean that he had become graduate---Criminal court had no power to grant degree or determine whether degree was to be recognized in Pakistan; it was only recognized institution, i.e. Higher Education Commission, which could determine validity or otherwise of a degree---Any person might have attended college or university, which was not recognized by Higher Education Commission, and in such circumstances, such person could not state that paper in his possession was a 'graduation' degree in Pakistan---To hold otherwise would grant criminal courts jurisdiction to determine matter of recognition of degrees, affiliation of colleges/universities, equivalency or otherwise of `degree'---Such were the matters in respect of which criminal courts had no jurisdiction nor they had necessary expertise---Appellant by stating that 'degree' was a degree that was recognized in Pakistan made "false statement" or submitted "false or incorrect declaration" in respect of his "educational qualifications" as stipulated in section 78 (3) (d) of Representation of the People Act, 1976, by making/submitting false declaration in respect of his educational qualifications, and the same amounted to corrupt practice, for which penalty had been provided in S.82 of Representation of the People Act, 1976 and further the offence was cognizable under S.94 of Representation of the People Act, 1976---As determination of Higher Education Commission with regard to validity of degree of appellant stood the appellant was guilty of corrupt practice, therefore, in spite of his acquittal, he was not eligible to participate in elections---Appeal was dismissed in circumstances.

Muhammad Rizwan Gill v. Nadia Aziz 2010 PLD SC 828 and Nawabzada Iftikhar Ahmed v. Chief Election Commissioner PLD 2010 SC 817 ref.

Syed Ayaz Zahoor for Appellants.

Muhammad Haroon, Law Officer, Provincial Election Commission, Balochistan, Quetta for Respondents.

Date of hearing: 10th April, 2013.

2013 C L C 271

[Election Tribunal Punjab]

Before Ijaz Ahmad, Muhammad Qasim Khan and Altaf Ibrahim Qureshi, JJ

RIZWAN ZOUQ----Appellant

Versus

RETURNING OFFICERS NA-162 SWL-III, SAHIWAL and another----Respondents

Election Appeal No.2 of 2012, decided on 18th October, 2012.

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

----Ss.7, 11, 14(3), 57, 99 & 100---Constitution of Pakistan, Arts. 62(1)(f), 63(1)(c) & 224---Election appeal---Nomination papers, acceptance of---Disqualification---Determination---Respondent was Member of National Assembly but he was declared disqualified by Supreme Court on the allegation of having dual nationality, therefore, his seat fell vacant---Respondent again filed his nomination papers with the declaration that he was not holding nationality of any other country and Returning Officer accepted his nomination papers---Appellant filed objection against nomination papers of respondent alleging that he had made a wrong declaration and did not deposit emoluments received by him during the period for which he was declared disqualified by Supreme Court---Validity---Money ordered to be refunded had not been calculated and ascertained and as such respondent could not be held having not complied with the order passed by Supreme Court---Returning Officer passed order rejecting objection petition of appellant and accepting nomination papers of respondent in view of record which did not hint that respondent was undergoing a disqualification under Arts.62 & 63 of the Constitution or corresponding sections 99 and 100 of Representation of the People Act, 1976, or had been declared by a court of law not to be sagacious, righteous, non-profligate, honest and Ameen and had not complied with orders passed by Supreme Court---Disqualification, if any, incurred by respondent could after production of evidence be considered by Election Tribunal appointed by Election Commission under section 57 of Representation of the People Act, 1976, in election petition---Returning Officer neither flouted the judgment passed by Supreme Court nor omitted to perform his functions and duties entrusted to him under sections 7 and 14 of Representation of the People Act, 1976---Election Tribunal declined to interfere in the order passed by Returning Officer---Appeal was dismissed in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others C.P.No.5 of 2012 and Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 ref.

Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others 2006 SCMR 1356 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 rel.

Mian Abbas Ahmad and Ch. Abdul Sattar Goraya, for the Appellant.

Mehmood Ashraf Khan and Muhammad Nadeem Kanju for Respondent No.2.

Khawaja Noor Mustafa, Dy. Attorney-General, Pakistan.

Rana Javed Akhtar, Standing Counsel for Federation of Pakistan.

Muhammad Sohail Bhatti, Addl. A.-G., Punjab.

Muhammad Aslam Assistant Election Commissioner/Returning Officer.

2013 C L C 984

[Election Tribunal, Punjab]

Before Ijaz ul Ahsan, J

Malik UMAR ASLAM AWAN----Petitioner

Versus

Mst. SUMAIRA MALIK and others----Respondents

Election Petition No.104 of 2008, decided on 5th April, 2013.

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

----S. 78(3)(d)---Election petition---Educational qualification/degree allegedly obtained by way of impersonation---Proof---Allegation against winning candidate (respondent) was that she procured a fabricated degree of Bachelor of Arts (B.A.) from a University by arranging for some other lady to sit for the examination in her place, and hence her election was liable to be declared as void---Plea on behalf of petitioner that during her cross-examination winning candidate was unable to recall correctly the subjects that she had offered and the content of the subjects that she studied to take the examination, which established that somebody else sat in her place during the examination; that she did not exactly remember which books she had read and which paper carried how many marks; that her photograph on the admission form as well as the roll number slip was not her photograph but that of a different lady, and that her signatures on the admission/registration form differed from her signatures on other documents---Validity---Specific allegation made by the petitioner in the present petition was that there was neither an application form nor registration record or any other record indicating that winning candidate actually sat for the examination, thus, she procured a fake and bogus degree, and that the record, if any, available with the University was falsely created under direct and unlawful influence of the winning candidate's husband---Subsequently during course of trial petitioner changed his stance from fabrication of the record and absence of application form and registration record to a case of impersonation---Allegation of impersonation was levelled by the petitioner against the winning candidate for the first time in the year 2002 by way of an application before the University---Said charges were not proved and after due inquiry in which both parties participated, the degree of winning candidate was found to be valid and the charge of impersonation was found to be baseless by a committee of the University---Said proceedings were not only initiated by the petitioner but he also participated in the same and was fully aware of the recommendations of the Committee and decision of the University---Petitioner never challenged findings of the University Committee before any forum, and waited for another six years till winning candidate filed her nomination papers for elections in 2008, to question the validity of her graduation degree again---University and three impartial officers of the University, who conducted two different inquiries on two different applications filed by the petitioner, did not find any fabrication or impersonation on part of winning candidate---During such inquiries not only was the winning candidate summoned and examined but her signatures and specimen handwriting were compared with the record and answer-sheets, and her photograph on the admission form was also compared with her national identity card---Inability of winning candidate to recall the details relating to her examination and subjects studied was natural and understandable---Admittedly, winning candidate had hurriedly prepared to appear in the B.A. examination and had used helping books, question-answer material, commercially available on the basis of pattern of papers of previous examination to appear and attempt her papers; she did not claim to have attended a college and studied for the said examination for two whole academic years to have assimilated the course work through in-depth study---Even otherwise, winning candidate appeared as a witness at least eight years after she sat for her B.A. examination and her inability to answer specific and detailed questions could not be understood to show that she had never appeared in the examination---Petitioner had a long history of political rivalry with the winning candidate and both were pitched against each other during at least two previous elections---Winning candidate prevailed over the petitioner in previous two elections---Political rivalry between both parties has also led to long drawn litigation between them which had gone to various fora---Petitioner failed to discharge the onus of proving that winning candidate had procured her degree in an unlawful manner by way of impersonation and that some other lady sat in her place during the examination---Election petition was dismissed in circumstances.

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

----S. 78(3)(d)---Election petition---Educational qualification/degree allegedly obtained by way of impersonation---Proof---Judging validity of a candidate's educational degree on the basis of his/her ability to recall correctly minute details regarding contents of examination and subjects studied by him/her---Validity---Testing the validity of a person's educational qualifications on the basis of his/her ability to answer questions relating to minute details about the courses studied, books read, number of sections in each question paper etc. many years after acquiring a particular qualification was fraught with risks and pitfalls--- Such an exercise would not only open a Pandora's box but would also set a bad precedent---Stripping a person of his educational qualifications was a serious matter and required availability of a reasonable amount of documentary and other credible evidence---Failure to recall minute and specific details was not enough to establish that a person had not qualified or sat for an examination at all.

Imtiaz Rashid Siddiqui and Sheharyar Kasuri for Appellant.

Dr. Z. Babar Awan, Syed Ijaz Qutab and Mubeen-ud-Din Qazi for Respondents.

Date of hearing: 3rd April, 2013.

2013 C L C 1017

[Election Tribunal Punjab]

Before Rauf Ahmad Sheikh, Ijaz Ahmad and Muhammad Qasim Khan, JJ

Mian SAIF-UR-REHMAN JOIYA----Appellant

Versus

RETURNING OFFICER PP-226, SAHIWAL-VII, SAHIWAL and 16 others----Respondents

Election Appeal No.3 of 2012, decided on 5th November, 2012.

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

----Ss. 14(5), 99(1)(f) & 91(1A)---Constitution of Pakistan, Arts.62(1)(f) & 63---Qanun-e-Shahadat (10 of 1984), Art.3---Appeal before Election Tribunal---Bye-election---Provincial Assembly, seat of---Filing of nomination papers---Appellant's objection was that respondent-candidate was not a righteous, honest or Ameen person as he was disqualified earlier by Election Tribunal to contest elections in years 2002 and 2008 for having produced fake and forged degrees---Rejection of appellant's objection petition by Returning Officer---Validity---Tribunal in earlier election petitions filed against respondent in years 2002 and 2008 had declared him as imposter due to filing forged degrees---Respondent despite disqualified by Tribunal in year 2002, instead of repenting and mending his ways after year 2002, had repeated same wrongful act in election of 2008---Election Tribunal accepted appeal, resultantly appellant's objection petition stood accepted and respondent's nomination papers stood rejected in circumstances---Principles.

Malik Iqbal Ahmed Langrial v. Jamshaid Alam and others Civil Appeals Nos.812 and 813 of 2012 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others C.P.No.5 of 2012 ref.

Muhammad Ramzan Khalid Joiya for Appellant.

Khalid Masood Ghani and M.A. Hayat Hiraj for Respondent No.2.

Muhammad Ishfaq Bajwa, Deputy Election Commissioner and Tanveer-ul-Hassan, Election Officer with record.

2013 C L C 1024

[Election Tribunal Punjab]

Before Rauf Ahmad Sheikh, Ijaz Ahmad and Muhammad Qasim Khan, JJ

SAQIB NASEEB----Appellant

Versus

RETURNING OFFICER, PP-226, SAHIWAL VII and another----Respondents

Election Appeals Nos.5 and 6 of 2012, decided on 5th November, 2012.

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

----S. 14(3)(4)---Constitution of Pakistan, Arts.63(1)(d)(e) & 260---Punjab Irrigation and Drainage (Pilot Area Water Board) Rules, 2005, Rr.14, 15(2), 18 & 20---Punjab Irrigation and Drainage Authority Act (XI of 1997), Preamble---Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005, Rr.16 & 17---Appeal before Election Tribunal---Bye-election---Provincial Assembly, seats of---Nomination papers filed by respondents contested by appellant through objection petition---Appellant's objection was that first respondent was Member of Area Water Board constituted under Punjab Irrigation and Drainage Authority (Pilot Area Water Board) Rules, 2005, whereas second respondent was elected Chairman of "Khal Panchayat" under Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005 framed under Punjab Irrigation and Drainage Authority Act, 1997, thus, both being covered by definition of "civil servant" had been disqualified by Election Tribunal to contest election in year 2008; and that such judgment of Tribunal had been upheld by Supreme Court---Order of Returning Officer accepting nomination papers of respondents was assailed---Validity---Sole purpose of legislature to frame Rules was to involve farmers of an area in irrigation system in order to fetch better output---Neither authority had appointed respondents nor were they employee of authority or holding such offices for wholetime, rather they had been performing their functions as elected members of farmers---Nothing was available on record to show that respondents had been paid any remuneration---Respondents could not be termed to be in "service of Pakistan" in terms of Art. 260 of the Constitution---Election Tribunal dismissed appeal in circumstances.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 rel.

Masud Ghani for Appellant.

Mian Abbas Ahmad for Respondent No.2.

2013 C L C 1177

[Election Tribunal Punjab]

Before Justice Rauf Ahmad Sheikh, and Justice Mamoon Rashid Sheikh, Members

SHAHID ORAKZAI----Appellant

Versus

RETURNING OFFICER NA-52, RAWALPINDI and 2 others----Respondents

Election Appeal No.114 of 2013, decided on 12th April, 2013.

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

----Ss. 14 (5) & 99---Constitution of Pakistan, Art.63(1)(c)---Nomination papers---Scrutiny---Disqualification---Foreign citizenship of spouse and children---Appellant was aggrieved of acceptance of nomination papers of respondent by Returning Officer---Validity---Person whose spouse or children/dependents had acquired citizenship of foreign country was not disqualified to be member of Majlis-e-Shoora (Parliament) under Art.63(1)(c) of the Constitution---Order passed by Returning Officer did not suffer from any illegality or infirmity---Appeal was dismissed in circumstances.

Appellant in person.

2013 C L C 1193

[Election Tribunal Punjab]

Before Shahid Waheed and Nasir Saeed Sheikh, JJ

MUHAMMAD ASHRAF----Appellant

Versus

RETURNING OFFICER, CONSTITUENCY NO.NA-95/DISTRICT AND SESSIONS JUDGE, GUJRANWALA and 3 others----Respondents

Election Appeal No.74/R of 2013, decided on 10th April, 2013.

(a) Words and phrases---

----"Black money"---Defined.

Collins English Dictionary; Rafiq's Law Dictionary and American Heritage Dictionary rel.

(b) Words and phrases---

----"Summary proceeding"---Defined.

Blacks Law Dictionary 8th Edition p.1242 rel.

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

----Ss. 12, 14(5) & 99---Constitution of Pakistan, Art.62(f)---Sagacious and righteous---Nomination papers, scrutiny of---Concealing sources of income---Returning Officer rejected nomination papers of appellant for concealing his sources of income---Validity---Appellant had concealed his source of income regarding accretion as claimed by him and did not disclose in column of nomination papers specified for agricultural income any assets---Declaration of assets for year 2012, filed by appellant before Income Tax authorities, was also outcome of suppressing source of his acquisition of valuable property running into lac of Rupees---All such circumstances deprived appellant of necessary eligibility criteria prescribed in Art.62(f) of the Constitution---Returning Officer was fully justified in rejecting nomination papers of appellant---Election Tribunal maintained the order passed by Returning Officer---Appeal was dismissed in circumstances.

Haji Ghulam Sabir Ansari v. The Returning Officer and others PLD 1997 SC 290, Fahad Malik v. Mir Mumtaz Hussain Jakhrani 2008 CLC 457 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 distinguished.

Muhammad Ahsan Bhoon for Appellant.

Raja Muhammad Arif, Addl. A.-G. for Respondents.

2013 C L C 1230

[Election Tribunal Punjab]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

MUBASHIR KAMAL ABBASI----Appellant

Versus

RETUNRING OFFICER (NA-50) DISTRICT RAWALPINDI and another----Respondents

Election Appeals Nos.24 and 125 of 2013, decided on 15th April, 2013.

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

----S. 14(5) & (5A)---Representation of the People (Conduct of Election) Rules, 1977, R.5---Appeal---Maintainability---Appellant was elector of constituency concerned and had filed objections against candidature of respondent before Returning Officer at the time of scrutiny of nomination papers---Validity---Appeal was competent by virtue of S.14(5) of Representation of the People Act, 1976, read with R.5 of Representation of the People (Conduct of Election) Rules, 1977---Even otherwise information placed before Election Tribunal by appellant under S.14(5A) of Representation of the People Act, 1976, warranted examining of case of respondent on merits---Appeal was maintainable in circumstances.

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

----Ss. 14(5) & 99---Constitution of Pakistan, Arts.62(1)(e) & 63(1)(k)---Nomination papers---Scrutiny---Disqualification---Service of Pakistan or statutory body---Respondent was advisor to Infrastructure Project Development Facility (IPDF) and resigned few weeks before filing of nomination papers---Validity---Respondent was in service of corporate body wholly owned and controlled by government and two years had not elapsed since resignation as Advisor to IPDF---Candidature of respondent was hit by provisions of Art.62(1)(e) read with Art.63(1)(k) of the Constitution---Respondent was not qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament)---Election Tribunal directed to delete name of respondent from list of validly nominated candidates of the constituency concerned and rejected his papers of nomination---Appeal was allowed in circumstances.

Ghulam Sarwar Khan and another v. Muhammad Naseem and others 2004 CLC 521; Mrs. Neelam Yasmin Abbasi v. Returning Officer and 2 others 2010 MLD 527; Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others PLD 1994 SC 60; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Umrao Singh v. Darbara Singh AIR 1969 SC 262 and K.B. Rohamare v. Shanker Rao AIR 1975 SC 575 ref.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 fol.

Malik Qamar Afzal for Appellant (in E.A. No.24 of 2013).

Manzoor Hussain Malik for Appellant (in E.A. No.125 of 2013).

Mujeeb-ur-Rehman Kiani, Malik Waheed Anjum and Syed Qamar Hussain Sabzwari for Respondent No.2.

2013 C L C 1439

[Election Tribunal Punjab]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

ATTA UL MUSTIFA JAMIL----Appellant

Versus

CHIEF ELECTION COMMISSIONER and others----Respondents

Election Appeal No.108 of 2013, decided on 17th April, 2013.

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

----Ss. 12 & 14---Constitution of Pakistan, Arts.62 & 63---Appellant impugned the order whereby nomination papers of the respondent were accepted by the Returning Officer---Contention of the appellant was inter alia that the respondent had misdeclared and concealed facts and information relating to his assets and liabilities and that according to information available with the State Bank of Pakistan, the respondent was a defaulter as well---High Court called for a report from the Regional Office of the State Bank of Pakistan, and Chief Manager of the State Bank of Pakistan presented a certificate in the court which stated that the respondent had returned the full amount that was overdue before filing his nomination papers---On basis of said certificate, case of candidate was not hit by the Arts.62 and 63 of the Constitution, appeal was dismissed.

Muhammad Farooq Bedar for Appellant.

Muhammad Siddique Awan and Syed Abu Zar Pirzada for Respondent No.3.

Abdul Ghafoor, Accounts Officer, State Bank of Pakistan, Rawalpindi. Obaid-ur-Rehman, Assistant Director, State Bank of Pakistan, Rawalpindi.

2013 C L C 1521

[Election Tribunal Punjab]

Before Nasir Saeed Sheikh and Shahid Waheed, JJ

USMAN IBRAHIM----Appellant

Versus

RETURNING OFFICER NA-95 GUJRANWALA-I and 2 others----Respondents

Election Appeal No.15-R of 2013, decided on 9th April, 2013.

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

----Ss. 12 & 99---Nomination papers---Scrutiny---Interview by Returning Officer---Scope---Questions put by Returning Officer regarding Islamic provisions of the Constitution were not justified and were uncalled for---Failure to give correct replies of such questions could not form basis for rejecting nomination papers of candidate in election.

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

----Ss. 12, 14(5) & 99---Constitution of Pakistan, Art.62(f)---Sagacious and righteous---Nomination papers, scrutiny of---Nomination papers of appellant were rejected by Returning Officer on the allegation of concealing true facts---Validity---Figures of income declared by appellant did not tally with total income declared by him in Column No.12 of nomination papers---Appellant also declared an increase into his assets in year, 2012, as per detail given in column of assets of nomination papers but there was no explanation for such increase as to wherefrom source of such increase came---Scrutiny conducted by Returning Officer and perused by Election Tribunal reflected that appellant did not truly reflect his sources of income in different papers which did not even tally with each other---Such contradictions were of substantial nature and reflected seriously upon personal character of appellant---Provision of Art.62(f) of the Constitution had made fundamental qualification for being elected as member of Majlis-e-Shoora for a person that he should be a sagacious, righteous, non-profligate, honest and Ameen---Appellant was rightly adjudged by Returning Officer to be suffering from lack of qualifications mentioned in Art.62(f) of the Constitution---Appeal was dismissed in circumstances.

Malik Iqbal Ahmad Langrial v. Jamshed Alam and others PLD 2013 SC 179; Muddasar Qayyum Nahra v. Ch. Bilal Ijaz and others 2011 SCMR 80; Ch. Bilal Ijaz v. Mudassar Qayyum Nahra and 4 others 2010 CLC 1692; Mian Saif-ur-Rahman v. Malik Iqbal Ahmad Langrial and 4 others 2012 CLC 1806 and 2011 SCMR 80 rel.

Muhammad Saeed Ansari and Sh. Muhammad Akram for Appellant.

Raja Muhammad Arif, Addl. A.-G. and Muhammad Iqbal Reader, Sessions Court, Gujranwala with record for Respondents.

2013 C L C 1653

[Election Tribunal Punjab]

Before Justice Rauf Ahmad Sheikh andJustice Mamoon Rashid Sheikh, Members

NADEEM KHADIM----Appellant

Versus

RETURNING OFFICER, PP-26, JHELUM-III and another----Respondents

Election Appeal No.77 of 2013, heard on 15th April, 2013.

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

----Ss. 14 & 12---Constitution of Pakistan, Arts.62 & 63---Disqualification for membership of Majlis-e-Shoora (Parliament)---Rejection of nomination papers on ground of being a dual national---Appellant's nomination papers were rejected on the ground that he had concealed that he was a dual national of both United Kingdom and Pakistan, and as a result of said concealment, the appellant could not be considered as sagacious, righteous, honest and "ameen" in terms of Art.62(1)(f) of the Constitution---Validity---Appellant's Declaration of Renunciation of his British citizenship was accepted by United Kingdom Border Agency/Home Office on 17-8-2012, therefore, at the time of filing his current nomination papers, the appellant did not hold British citizenship---In absence of a declaration by a court of law that the appellant could not be held otherwise than sagacious, righteous, non-profligate, honest and "ameen" person---High Court set aside impugned order and directed that the name of the appellant be placed on the list of validly nominated candidates for his constituency---Appeal was allowed, in circumstances.

Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others PLD 2010 SC 817; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Ch. Nisar Ali Khan v. Ghulam Sarwar Khan and 3 others 2003 CLC 442 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054 and ref.

Rizwan Zouq v. Returning Officer NA-162 SWL-III, Sahiwal and another 2013 CLC 271 rel.

Gohar Ali Khan for Appellant.

Date of hearing: 15th April, 2013.

2013 C L C 1667

[Election Tribunal Punjab]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

AMMIR SOHAIL----Appellant

Versus

RETURNING OFFICER (PP-20) and another----Respondents

Election Appeal No.123 of 2013, decided on 16th April, 2013.

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

----Ss. 12 & 14---Constitution of Pakistan, Arts.62 & 63---Acceptance of nomination papers---Appellant impugned acceptance of respondent's nomination papers on the ground that the respondent had in election held in the year 1996 declared himself to have passed the intermediate level of education, however, he had in the current year, declared himself to be Matriculate, and was therefore not sagacious, righteous, honest and ameen in view of Art.62(1)(f) of the Constitution---Validity---Appellant had been unable to show any declaration/ conviction/order of any court of law against the respondent in relation to the allegations that had been levelled against him---Appellant had also been unable to show that the Retuning Officer had passed an order by exercise of excess jurisdiction or that the same was perverse---Appeal was dismissed, in circumstances.

Rizwan Zouq v. Returning Officer NA-162 SWL-III, Sahiwal and another 2013 CLC 271 rel.

Malik Qamar Afzal for Appellant.

Malik Muhammad Kabir and Sakhi Muhammad Kahot for Respondent No.2.

2013 C L C 1279

[Election Tribunal Sindh]

Before Faisal Arab and Munib Akhtar, JJ

Dr. FAHMIDA MIRZA and another----Appellants

Versus

Syed ALI BUX SHAH and another----Respondents

Election Appeals Nos.94 and 155 of 2013, decided on 22nd April, 2013.

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

----S. 14(3)(5)---Constitution of Pakistan, Arts. 62(1)(f), 63 & 199---Provincial Assembly, election of---Academic disqualification---Respondent was alleged to have submitted fake degrees in previous election of local bodies and general election---Acceptance of respondent's nomination papers by Returning Officer---Validity---Returning Officer had no jurisdiction to hold that bar contained in Art.62(1)(f) of the Constitution was applicable to respondent---Jurisdiction of Election Tribunal was co-extensive with that of Returning Officer, but neither greater nor more extensive than his---Election Tribunal being a statutory appellate forum having limited jurisdiction under and for purposes of S.14(5) of Representation of the People Act, 1976 was not a "Court of law" within meaning of Art.62(1)(f) of the Constitution, thus, bar contained therein could not be invoked against respondent in proceedings before Tribunal in absence of declaration to contrary by a court of law in relation to him---Tribunal dismissed appeal in circumstances---Principles.

Neelofar Shah and another v. Ofspace (Pvt) Ltd. and others 2013 CLD 114 rel.

Muhammad Jamil v. Aamir Yar and others PLD 2010 Lahore 583 distingushed.

(b) Jurisdiction---

----Court of appeal, jurisdiction of---Scope---Court of first appeal would have same jurisdiction as vested in forum below---Jurisdiction would become narrower and not broader as a matter moved along judicial hierarchy---Court of second appellate jurisdiction could entertain only questions of law.

(c) Discretion---

----Exercise of---Scope---Discretion must be exercised in accordance with law and on basis of well-established principles---Discretion exercised properly and in accordance with law ought to be respected.

Anwar Mansoor Khan for Appellant (in E.A. No.94 of 2013).

Malik Naeem Iqbal for Appellant (in E.A. No.155 of 2013).

Yousaf Moulvi for the Contesting Respondent (in both appeals).

Syed Rashid Hussain, Law Officer for Election Commission.

Date of hearing: 17th April, 2013.

2013 C L C 1342

[Election Tribunal Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

RIAZ AHMED LUND----Petitioner

Versus

SAJID AHMED and others----Respondents

Election Petition No.4-(Khi-NA) of 2013, decided on 2nd July, 2013.

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

----S. 52(1)---Election petition---Maintainability---Election petition challenging an election filed by a person who was not a candidate of the concerned constituency---Effect---Section 52(1) of the Representation of the People Act, 1976 clearly mandated that only a candidate could file an election petition under the said section to call in question an election---Petitioner in the present case, being not a candidate for the election of the concerned constituency, which was sine qua non for an election petition, his petition was not legally maintainable and the same should have been returned to the petitioner when it was presented before the Election Commission---Election petition was not maintainable in such circumstances and was accordingly dismissed as withdrawn.

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

----S. 73(2)---Election petition dismissed as withdrawn---No order as to costs---Petitioner admitted to non-maintainability of the election petition on the first date of hearing and without wasting a single moment filed an application for withdrawal of the same---Permission was granted to petitioner as provided under S.73(2) of the Representation of the People Act, 1976 and election petition was dismissed as withdrawn---Petitioner having outrightly admitted the legal position (regarding non-maintainability of the election petition) on the first date of hearing when respondents had not been issued any notice, therefore, there was no justification to pass any order as to costs---Election petition was accordingly dismissed as withdrawn.

2013 C L C 1461

[Election Tribunal Sindh]

Before Faisal Arab and Munib Akhtar, JJ

General (R.) PERVEZ MUSHARRAF----Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and another----Respondents

Election Appeal No.59 of 2013, decided on 16th April, 2013.

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

----S. 14---Constitution of Pakistan, Art.62(1)(f)---National/Provincial Assembly, election of---Powers of Returning Officer to reject nomination papers of contesting candidate for not being honest/ ameen---Scope---Returning Officer on basis of his summary inquiry or on objection raised by an entitled person could not reject nomination papers of a contesting candidate for not being honest or ameen in absence of a declaration to contrary by a court of law in relation to him---Principles.

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

----S. 14---Constitution of Pakistan, Art.62(1)(f)---Election appeal---Election to National Assembly---Nomination papers, rejection of---Order of Returning Officer that Supreme Court in its judgment had declared appellant's act of suspending Constitution on 30-11-2007 and detaining Judges of superior Courts as mala fide and ultra vires to the Constitution---Validity---Appellant on 3-11-2007 had attempted to appropriate himself delegated sovereign power in its entirety by putting the Constitution in abeyance---Supreme Court in its judgment had described such act of appellant as a gross misappropriation, which was an abuse of sacred trust---Supreme Court in its judgment had declared that appellant while doing so had not acted as an ameen within meaning and for purposes of Art.62(1)(f) of the Constitution---Appellant was not a person qualified to be elected a member of National Assembly---Election Tribunal dismissed appeal in circumstances---Principles.

Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 fol.

(c) Constitution of Pakistan---

----Arts. 2-A & 62(1)(f)---Objectives Resolution and word "ameen" as used in Art.62(1)(f) of the Constitution---Scope---Exercise of delegated sovereign power by representatives chosen by people of Pakistan being in nature of sacred trust, thus, its exercise for any personal gain/benefit/advantage etc., would be a breach and violation of such sacred trust---An "ameen" would mean someone who could be trusted with such delegated sovereign power and its exercise within bounds as set by the Constitution ---- Principles.

Objectives Resolution was adopted in 1949 and has served as the Preamble to all the Constitutions enacted in the country. (It is of course now also an Annex to the Constitution and has substantive effect accordingly). The Objectives Resolution embodies (indeed, begins with) one of the founding principles of the State of Pakistan: "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust". In this constitutional concept of sovereignty differs markedly from secular polities. There, sovereignty, in its entirety, vests ultimately in the people and though they may have chosen to place limitations on themselves in the exercise of it (e.g., in the shape of fundamental rights) in the end it is they alone who are the sovereign. Not so with Pakistan. Here the people of Pakistan act as delegates of Allah, Who alone is the Sovereign, and act as trustrees of what has been delegated to them. Thus, the very enactment of the Constitution and the exercise of the delegated sovereign power through or under it (by means of the people's representatives) are in the nature of a sacred trust. This is the choice of the people of Pakistan, freely made and adopted, in absolute and humbly submission to the Will of Allah Almighty.

Any exercise of the delegated sovereign power for any personal gain or arising from a desire for some personal benefit or advantage or to escape or prevent any perceived personal threat or danger, is a breach and violation of the sacred trust. It is, in other words, a betrayal of the trusteeship that lies at the very core and heart of the delegated sovereign power. The word "ameen" this is used in Article 62(1)(f) also has the core meaning of trustworthiness. An "ameen" is above all else, someone who is trustworthy and can and must mean some one who can be trusted with (and therefore entrusted) the delegated sovereign power, and the exercise of it within the bounds and limitations as set by the Constitution.

Khawaja Naveed Ahmed for Appellant.

Syed Rashid Hussain, Law Officer of the Election Commission.

Date of hearing: 15th April, 2013.

2013 C L C 1869

[Federal Shariat Court]

Before Shahzado Shaikh, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Dr. MAHMOOD-UR-REHMAN FAISAL and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad and others---Respondents

Shariat Petitions Nos. 24/I, 34/I, 38/I, 44/I, 45/I of 1990, 1/I, 2/I of 1991, 1/K, 2/K of 1993, 9/I of 1994 and 14/I of 1996, decided on 7th January, 2013.

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

----Ss. 2(xxiii) & 3(1)(5)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat from person who is a "sahib-e-nisab"---Exemption of non-declaration of total financial position of "sahib-e-nisab"---Exemption of current bank accounts from deduction of Zakat---Said exemptions did not mean that "sahib-e-nisab" had been exempted from payment of Zakat---Liability and duty for payment of Zakat, as prescribed under the Injunctions of the Holy Quran and Sunnah of the Prophet (P.B.U.H.) remained in force and intact, against the "sahib-e-nisab"---Said exemptions had limited implication/application only to the reference and extent of the relevant provisions of the Zakat and Ushr Ordinance, 1980, and it remained incumbent upon the "sahib-e-nisab" to discharge the liability and duty of payment of due Zakat, loyally and faithfully, under his own arrangements---Federal Shariat Court observed that the present system of deduction and distribution of Zakat lacked confidence of public at large and as such, they tended to opt for exemptions on one ground or other----Federal Shariat Court directed that the Ministry of Finance and Law in consultation with Islamic Ideology Council as well as Provincial Governments should take necessary steps, within the legal framework, in the light of Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.) to bring uniformity and clarity in the system of deduction of Zakat through banks and should ensure the transparent distribution of Zakat strictly according to the Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.)---Petition was dismissed accordingly.

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

----S. 3(3)---Constitution of Pakistan, Art. 203-D--- Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Refund of excess or undue amounts deducted as Zakat to non-Muslims and foreigners---Such refund was quite reasonable and apparently logical and not repugnant to Injunctions of Islam as all undue amounts deducted in excess must be refunded to the legitimate/ legal owners of such amount---Petition was dismissed accordingly.

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

----S. 3(3)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat on General Provident Fund of Government employees---General Provident Fund was a saving, which was liable to deduction of Zakat---Charge and collection of Zakat on General Provident Fund was not repugnant to Injunctions of Islam---Petition was dismissed accordingly.

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

----Ss. 2(xxxii) & 3---Constitution of Pakistan, Art. 203-D---Charge and collection of Zakat in month of Ramadan---Lunar calendar---Scope---Zakat deducted thrice during two years on the basis that month of Ramadan came three times during two years---Validity---Zakat was applicable within the Lunar calendar---Apparently, in the present case, occurrence of Islamic month of Ramadan had been mistakenly counted in the Solar calendar instead of Lunar---Petition was dismissed accordingly.

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

----S. 3(1)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat not deducted from maturity/surrender value of an asset/investment maintained in foreign currency and the return on which and the value on encashment redemption or withdrawal of which, was payable in foreign currency---Foreign currency was not the local legal tender---Most money in present times was fiat money, i.e. that which had been declared to be legal tender by a government and would not be regarded as such without government backing---Zakat and Ushr Ordinance, 1980 covered a very limited segment in banking system using local legal tender, and it did not reckon all wealth and assets in which Zakat was legitimately leviable under the Injunctions of the Quran and Sunnah of the Holy Prophet (P.B.U.H.)---Petition was dismissed accordingly.

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

----S. 1(2)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat not deducted from Companies with more than 50% of their shares owned by non-Muslims or foreigners---Majority shares in a Company showed its character or nature of investment and its overall financial composition---Share of local Muslim investor could possibly be reckoned for levy of Zakat by him as the present system did not comprehend all possible sources qualifying for levy of Zakat---Zakat and Ushr Ordinance, 1980 had not introduced an all comprehensive Zakat system in the country---Petition was dismissed accordingly.

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

----Ss. 2(xxiii), 3 & First Sched.---Constitution of Pakistan, Art.203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat deducted on maturity of investments on 1st of Ramadan---Plea was that First Schedule of Zakat and Ushr Ordinance, 1980 provided that Zakat would be deducted on the date on which the first return is paid on date of withdrawal or date of maturity, whereas in Islam Zakat became payable on the date when one year had passed over the assets---Validity---Practice of levying Zakat on yield when it became mature/available on a time line (i.e. 1st of Ramadan) within a time frame (Lunar year) was quite in conformity with Islamic practice---Petition was dismissed accordingly.

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

----Preamble---Constitution of Pakistan, Arts. 203B(c) & 203D(1)--- Jurisdiction of Federal Shariat Court---Scope---Muslim personal law---Zakat and Ushr Ordinance, 1980 was not a Muslim personal law and was amenable to the jurisdiction of Federal Shariat Court.

Mian Khalid Rauf v. President of Pakistan and another PLD 1982 FSC 237; Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 and PLD 1991 FSC 35 distinguished.

PLD 1994 SC 607 ref.

Nemo for Petitioners (in all the Petitions).

M. Nazir Abbasi, Standing Counsel for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. A.-G. Punjab for Province of Punjab.

Muhammad Kasim Mirjaat, Addl. A.-G. Sindh for Province of Sindh.

Muhammad Azam Khan, Addl. A.-G. Balochistan for Province of Balochistan.

Aziz-ur-Rehman for Province of Khyber Pakhtunkhwa.

Barrister Feroz Jamal Shah Kakakhel: Amicus Curiae.

Dr. Raja Muhammad Hanif, Dy. Administrator General, Zakat, Islamabad for Administrator-General Zakat.

Date of hearing: 20th November, 2012.

2013 C L C 460

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUMTAZ AHMED CHISHTI and another----Appellants

Versus

Mir FAZAL-UR-REHMAN and 22 others----Respondents

Civil Appeal No.296 of 2010, decided on 19th December, 2012.

Specific Relief Act (I of 1877)---

----S. 8 & 42---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), Arts.120 & 127---Suit for possession, declaration and rendition of accounts---Limitation---Dismissal of suit being barred by time---Rejection of plaint---Plaintiffs and defendants being legal heirs of deceased owner of suit properties were entitled to obtain their legal shares according to law of sharia from suit property---One of the defendants, by practising fraud executed a false and forged power of attorney and on basis of that power-of-attorney, whole suit property pertaining to the plaintiff was transferred to their names---Plaintiffs being legal heirs of deceased owner of suit property filed suit against the defendants, but same was dismissed by the Trial Court under O.VII, R.11, C.P.C. on the ground that same had been filed after 11 years of execution of said forged power-of-attorney, and was barred by limitation---Validity---Plaintiff who had settled abroad, was defrauded by the defendants time and again---After return from abroad when plaintiff came to know about the fraud, she filed suit---As dispute pertained to enforcement of a right of share from legacy of the parties, Art.127 of Limitation Act, 1908 providing 12 years for filing suit was applicable and not Art.120 of Limitation Act, which provided 6 years---Suit filed by the plaintiff, was within time which, however was without prejudice to the final decision of the issue of limitation, which could be decided after taking into consideration the evidence that parties could lead---Impugned judgment and decree, were set aside and case was remanded to the Trial Court for disposal in accordance with law.

Dr. Hasan Ara and 6 others v. Mian Tajammal Husain and 12 others 1982 CLC 653; Mst. Janntan and others v. Taggi through L.Rs. and others PLD 1998 SC 1512; Mst. Janntan. and others v. Taggi through L.Rs. others PLD 2006 SC 322; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Mst. Sharifian Bibi v. Abdur Rauf Khan and others 1992 CLC 1480; Riffatullah Khan Lodhi v. Mukhtar Ali Khan Lodhi and 12 others 1992 CLC 1117; Zakria and others v. Amanullah and others 2008 CLC 1291 ref.

Muhammad Akram Mughal for Appellants.

Sahadat Ali Kiani for Respondents.

2013 C L C 684

[High Court (AJ&K)]

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

SHERIJ KHAN and 3 others----Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 12 others----Respondents

Writ Petition No.1829 of 2012, decided 31st December, 2012.

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

----S. 44---Writ jurisdiction of High Court---Fundamental condition---Applicant invoking such jurisdiction must be an aggrieved person, but not essential in the cases of writ of quo warranto and habeas corpus---Principles.

The constitutional jurisdiction has been conferred on the High Court by section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, subject to the other provisions of the Act and restrictions imposed by section 44 of the said Act. One of the fundamental conditions and requirement is that in order to invoke the jurisdiction of the High Court under the above mentioned section; an applicant must be an aggrieved person. Only two exceptions are provided by the section itself i.e. section 44(2)(b)(i) and (ii), which deals with writ of Quo Warranto and Habeas Corpus.

To qualify as an aggrieved person, a right in strict juristic sense may not vest in a person, yet he must at least show that he has some interest that respondent(s) should act in accordance with law.

Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir etc. PLD 1980 SC AJK 5; Muhammad Malik v. Karam Elahi and another PLD 2011 SC (AJK) 1; Umer Din Kiani v. Azad Government and 2 others 1995 SCR 166 and PLD 2002 SC (AJ&K) 1 rel.

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

----S. 44---Writ petition---Medical Colleges, admission in---Notification dated 31-1-2012 issued by Government reserving quota in such Colleges for Overseas Kashmiris and doctor's children---Validity---Authority had annexed merit list along with written statement indicating nominations of candidates against their respective quota including quota in question---No writ could be issued against the nominated candidates without affording them opportunity of hearing---Two petitioners (candidates) had got admission in relevant session---Other two petitioners (candidates) could not be admitted even after declaring impugned quota as ultra vires of the Constitution and added same in general merit or district wise quota---Petitioners for not being aggrieved persons could not be granted any relief---High Court dismissed writ petition and directed the Government to revisit impugned notification to the extent of impugned quota in view of law laid down in Attiyya Bibi's case reported as 2001 SCMR 1161.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education) Civil Secretariat, Islamabad and others 2001 SCMR 1161; Muhammad Malik v. Karam Elahi and another PLD 2011 SC (AJK) 1; Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others 2010 SCR 17; Asif Hussain v. Azad Government and 47 others 2008 SCR 619; Raja Iqbal Rasheed Minhas v. AJ&K Council and 3 others PLD 2002 SC (AJ&K) 1; Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Azad Government of the State of J&K and others v. Haji Summandar Khan and others 1995 MLD 1350; Summandar Khan's case 1995 SCR 259, 1996 SCR 7, 1993 SCMR 168, 2010 SCR 215; 2000 SCR 97; 2010 SCR 186 and 1999 PLC (C.S.) 93 ref.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education) Civil Secretariat, Islamabad and others 2001 SCMR 1161 fol.

Raja Amjad Ali Khan for Petitioners.

Sardar Shahid Hameed Khan for Respondents Nos.1 to 6.

Abdul Rasheed Abasi for Respondents Nos.7 to 13.

Mansoor Sultan for PM&DC

2013 C L C 1246

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

MUHAMMAD RIAZ and 14 others----Appellants

Versus

KALA KHAN and 18 others----Respondents

Appeal No.105 of 2012, decided on 24th April, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 8---Suit for declaration, permanent injunction and possession of immovable property--- Inheritance--- Limitation---Estoppel---Applicability---Scope---Contentions of plaintiffs were that they being legal heirs of deceased were entitled from the legacy of deceased but the defendants through fraud have got entered the whole estate in their name---Suit was dismissed by the Trial Court on the ground of limitation and for want of proof but same was decreed by the Appellate Court---Validity---Legal heirs of persons who were entitled to inherit under the law could not be deprived from their right of inheritance on speculation and they would be deemed in the constructive possession of the suit-land and could not be non-suited on the basis of limitation and estoppel.

Ghulam Haider v. Hafiz Allah Bakhsah 1985 SCMR 1218; Boota and others v. Provisional Government and others 1986 MLD 2366; Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282 rel.

Muhammad Yaqoob Khan Mughal for Appellants.

Ch. Muhammad Ismail for Respondents.

2013 C L C 1345

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

Sardar RAZA MUHAMMAD KHAN----Appellant

Versus

MUHAMMAD ASHRAF KHAN----Respondent

Civil Appeal No.61 of 2010, decided on 20th May, 2013.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of sale agreement---Limitation, starting point of---Scope---When period for registration of sale-deed was fixed in the agreement, then limitation provided under Art.113 of Limitation Act, 1908 would start running after its expiry, otherwise from date of refusal of defendant to perform his part under agreement---Illustration.

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

----Ss. 12 & 42---Suit for declaration and specific performance of sale agreement---Maintainability---Simultaneous claims for declaration of title to suit-land on basis of family settlement and specific performance of sale agreement---Validity---Both such claims were contradictory in nature---Sale agreement would not create a title in plaintiff's favour, rather created an opportunity for title of suit-land---Plaintiff could file suit only for specific performance of sale agreement, but his remedy to extent of declaration was not competent under law.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a) & 79---Suit for specific performance of sale agreement---Proof---Plaintiff examined scribe of sale agreement and one marginal witness thereof, who deposed that neither same was written in his presence nor was read over to him---Plaintiff was legally obliged to have proved sale agreement by examining two marginal witnesses thereof---Perusal of stamp paper would show that same was basically sold for an affidavit, which had later on been converted to purpose of sale agreement with different handwriting---Non-affixation of signature by Stamp Vendor on such altered phrase had rendered sale agreement to be highly doubtful---Plaintiff had failed to prove his case---Suit was dismissed in circumstances.

1989 CLC 1498 and 2006 SCR 243 ref.

Ayaz Ahmed Hashmi for Appellant.

Sardar Anwar Khan for Respondent.

2013 C L C 1355

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Mir AQEEL-UL-ISLAM----Petitioner

Versus

AZAD JAMMU AND KASHMIR INTERMEDIATE AND SECONDARY EDUCATION BOARD, MIRPUR and another----Respondents

Writ Petition No.2004 of 2011, decided on 20th May, 2013.

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

----S. 44---Writ petition---Failur to issue result card of Matriculation Examination to petitioner as a successful candidate by Board of Intermediate and Secondary Education---Validity---Controller of the Board had returned to petitioner his admission form for reappearing in one subject by issuing him script that he by getting 471 marks had passed such examination---Controller while summoned by High Court had admitted factum of returning such admission form to petitioner---Such admission of Controller would be binding on Board and they could not be allowed to blow hot and cold in same breath---High Court repelled Board's plea that petitioner was mistakenly declared as passed and he was not entitled to result card---No one could suffer on account of an order of an Authority passed illegally or without lawful authority---Had the Board not returned to petitioner his admission form, he would have passed such examination three years before---Equity would demand issuance of necessary directions to Board for issuance of result card to petitioner---High Court accepted writ petition by directing Board to issue to petitioner his result card forthwith.

Muhammad Saleem v. Azad Government and 4 others 2006 SCR 88; College of Physicians and Surgeons Pakistan v. Wafaqi Mohtasib and others PLD 2003 Kar. 667; Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298; Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537 and Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another PLD 1994 Lah. 3 rel.

(b) Administration of justice---

----Order passed by an Authority illegally or without lawful authority---Remedy of aggrieved person satated.

No one can suffer on account of the act of the Authority, who had to pass an order which was illegal or without lawful authority. The person who has been wronged on account of such action of Authority be entitled to be restored to the same position as of right to the maximum possible extent, which he would have occupied.

Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others 2004 SCR 298; Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537 and Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another PLD 1994 Lah. 3 rel.

Maqbool-ur-Rehman Abbasi for Petitioner.

Syed Nazir Hussain Shah Kazmi for Respondents.

2013 C L C 1634

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

TANVIR AHMED CHOUDHARY----Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 10 others----Respondents

Writ Petition No.2113 of 2012, decided on 6th June, 2013.

(a) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)---

----Ss. 19 & 30-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44(2)---Writ petition---Refusal of authority to issue licence to petitioner to establish and operate FM-107 Radio Channel at Mirpur---Validity---Existence of alternate adequate remedy of appeal would oust jurisdiction of High Court---Petitioner against impugned order could avail remedy of appeal, thus, writ petition was hit by S.44(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974.

Faqir Muhammad and others v. Custodian Evacuee Property and others 1996 SCR 349; Muzaffar Hussain v. AJK University and 4 others 1999 PLC (C.S.) 939; Abdul Rehman Mayat and another v. Wealth Tax Officer and others 1988 SCMR 1722; Hari Kishan Dass v. Chairman, WAPDA PLD 1983 Quetta 61 and Muhammad Farooq Textile Mills Ltd. v. Special Court (Banking) of Sindh and 2 others PLD 1985 Kar. 1 rel.

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

----S. 44(2)---Writ petition---Alternate remedy of appeal against impugned order, availability of---Effect---Constitutional jurisdiction in presence of such remedy could not be invoked---Principles.

The existence of another adequate remedy is a rule of law, which ousts the jurisdiction of High Court, and no exception can be taken to the view that in presence of alternate remedy of appeal, the writ jurisdiction cannot be invoked.

Faqir Muhammad and others v. Custodian Evacuee Property and others 1996 SCR 349; Muzaffar Hussain v. AJK University and 4 others 1999 PLC (C,S,) 239; Abdul Rehman Mayat and another v. Wealth Tax Officer and others 1988 SCMR 1722; Hari Kishan Dass v. Chairman, WAPDA PLD 1983 Quetta 61 and Muhammad Farooq Textile Mills Ltd. v. Special Court (Banking) of Sind and 2 others PLD 1985 Kar. 1 rel.

Mir Abdul Latif for Petitioner.

Sardar M.R. Khan, Addl. A.-G. and Khursheed Anwar Mughal for Respondents.

2013 C L C 1752

[High Court (AJ&K)]

Before Abdul Rashid Sulehria, J

MUHAMMAD ALAM and 4 others----Appellants

Versus

HAQ NAWAZ KHAN and 3 others----Respondents

Civil Appeal No.19 of 2002, decided on 12th June, 2013.

(a) Islamic Law---

----Gift with regard to possession could be challenged only by donee and not a stranger.

Muhammad Bashir and others v. Muhammad Yaqoob and others 1993 CLC 1084 rel.

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

----S. 100---Second appeal---Concurrent findings of fact by courts below---Validity---Such findings would be conclusive in second appeal---Exceptions stated.

Second appeal can only lie on the grounds mentioned in section 100 of C.P.C., which do not envisage a second appeal against a concurrent finding of fact. A finding of fact is conclusive in second appeal, unless it is arrived at by committing an error of law or procedure. The same principle apply with greater force in the case of concurrent findings of fact by two courts, therefore, such findings are conclusive in second appeal, unless an error of law or procedure is committed in arriving at the findings. A litigant who seeks reversal of findings in second appeal, which have been arrived at by the Trial Judge and after having been carefully affirmed in appeal, comes always with a very heavy burden upon his shoulder. Concurrent findings of fact arrived at by the lower court and affirmed by the first Appeallate Court cannot be disturbed by the High Court in second appeal under section 100, C.P.C.

2001 CLC 920; 2006 SCR 92; 2007 SCR 468; 2008 SCR 207 and 2009 SCR 158 ref.

Sardar Muhammad Azam Khan for Appellants.

Ch. Lal Hussain for Respondents.

2013 C L C 1827

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

WAPDA through Chief Engineer, Raising Project Mangla Dam and others----Appellants

Versus

TAJ BEGUM and others----Respondents

Civil Appeals Nos.572, 573 of 2009, decided on 21st May, 2013.

Land Acquisition Act (I of 1894)---

----Ss. 18, 12 & 23---Reference to court---Limitation---Enhancement of compensation---Referee Judge enhanced the compensation price to the extent of Rs.7,00,000/- Hael, Rs.6,00,000/-Maira Awal and Rs.7,00,000/- for Ghair Mumkin Aabadi, per Kanal along with compulsory acquisition charges @ 15%---Validity---Neither the appellants and others were present at the time of announcement of award nor any notice was issued---Collector forwarded the reference treating the same within time---Referee Judge had rightly decided that reference having been filed within six months was within limitation---Referee Judge had not resolved the issue as to under what method and scale or principle the compensation was enhanced---Resolution with regard to enhancement of compensation was upheld by the High Court and market value was calculated as Rs.1251462/- Hael, Rs.1151462/- Maira Awal and Rs.1251462/- for Ghair Mumkin per Kanal including compulsory acquisition charges @ 15%---Impugned order was modified and appeal was accepted and that of Department dismissed.

Muhammad Jan and 4 others v. AJ&K Government through Chief Secretary and 7 others 1996 CLC 1534; Faiz Akbar Khan and others v. Azad Government and others and Azad Government and others v. Faiz Akbar Khan and others 1996 SCR-132; Azad Government and 2 others v. Sahibzada Muhammad Dawood Shah and 3 others 2000 YLR 1046; Ch. Muhammad Siddique and 3 others v. Azad Government and 4 others Civil Appeal No.25 of 2010 decided on 17-5-2011 and Muhammad Mehrban v. WAPDA and 3 others. Civil Appeal No.98 of 2011 decided on28-2-2013 ref.

Zakria Bhatti for Appellants.

Ch. Muhammad Afzal for Respondents.

Muhammad Jamil for Collector Land Acquisition.

Muzaffar Ali Zafar, Addl. A.-G. for Azad Government.

2013 C L C 1908

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., M. Tabassum Aftab Alvi, Abdul Rasheed Sulehria, Sardar Abdul Hameed Khan, Ch. Jahandad Khan and Azhar Saleem Babar, JJ

ABDUL MAJID KHAN, Member Azad Jammu and Kashmir Legislative Assembly and 10 others----Petitioners

Versus

SPEAKER AZAD JAMMU AND KASHMIR LEGISLATIVE ASSEMBLY, MUZAFFARABAD and 3 others----Respondents

Writ Petition No.1100 of 2013, decided on 16th August, 2013.

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

----Ss. 18, 25(1)(a), (4) & 44---Rules of Procedure of Azad Jammu and Kashmir Legislative Assembly, R.29(1)(2)---Writ petition---Resolution for vote of no confidence moved against Prime Minister in Legislative Assembly---Letter of Speaker of Assembly addressed to Chief Election Commissioner for initiating proceedings under S.25(1) of Azad Jammu and Kashmir Interim Constitution Act, 1974 against three Members of Assembly, whose seats were declared as vacant after acceptance of their resignations---Denial of petitioners to have resigned published in newspapers alleging themselves to be sitting Members of Assembly---Petitioners' prayer for quashment of such letter of Speaker while directing him to summon session of Assembly to finalize process of such vote of no confidence---Validity---Record did not show personal tendering of resignations by petitioners nor did such letter of Speaker disclose person through whom same had been tendered---Record revealed that Speaker, after receiving resignations had verified petitioners' signatures on same date from record of Assembly and accepted same---Petitioners could not be believed to have resigned a day after filing such resolution against Prime Minister, thus, Speaker was obliged to have inquired personally from them about their resignations---Role of Speaker was not like a Postman, rather he as a custodian of House on being informed about such resignations was obliged to hold an inquiry to ascertain true position as to its genuineness and voluntary nature and provide petitioners right of hearing before sending their cases to Commissioner---Speaker had not performed his legal and constitutional role in a fair, transparent and judicious manner---Petitioners' resignations for not bearing any date appeared to have been obtained from them before issuance of tickets by their Party, thus, they could not delegate power to resign at time of its execution---Petitioners' resignations could not be construed as resignations contemplated by S.25(1)(a) of Azad Jammu and Kashmir Interim Constitution Act, 1974---High Court declared impugned order of Speaker to be without lawful authority and of no legal effect.

Muhammad Younis Tahir and another v. Ch. Shaukat Aziz and others PLD 2012 SC (AJ&K) 42 ref.

Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Abdul Razique Khan v. The Province of Sindh through the Chief Secretary, Government of Sindh, Karachi and 3 others PLD 1994 SC 79; Muhammad Naeem Akhtar and 2 others v. The Speaker, Sindh Provincial Assembly and others 1992 CLC 2043; Munawar Khan v. Speaker, N.-W.F.P Provincial Assembly and 2 others 1992 MLD 2065; Vikram Singh v. Shri Ram Ballabhji Kasat and others AIR 1995 Madhya Pradesh 140; Parliamentary Procedure by Subhash C. Kashyap page 86; Syed Qaim Ali Shah's case 1993 MLD 1127 and Wukala Mahaz Barai Tahafaz Dastor v. Federation of Pakistan PLD 1998 SC 1263 rel.

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

----S. 25---Resignation tendered by Member of Legislative Assembly---Essential conditions to be fulfilled before acceptance of resignation by Speaker stated.

When resignation of a Member of the Assembly is received by Speaker, notwithstanding any specific procedure, it is enjoined upon him to ensure before acceptance of the resignation that following conditions have been fulfilled:---

(i) The resignation is in writing under his hand and has been addressed to the Speaker;

(ii) The resignation has been delivered by the Member personally or through any other means;

(iii) If the letter of resignation is delivered personally, then the Member should inform the Speaker that the resignation is voluntary and genuine;

(iv) If the resignation is delivered by any other means, then the Speaker shall make inquiry into the genuineness of the resignation and ascertain whether it is voluntary or not;

(v) The Speaker after being satisfied that the resignation is genuine and voluntary, shall inform the Legislative Assembly and then the seat shall be declared vacant;

(vi) The date of resignation of a Member shall be the same as specified in the letter of resignation or if no date has been given, then the date of its receipt by the Speaker.

Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Abdul Razique Khan v. The Province of Sindh through the Chief Secretary, Government of Sindh, Karachi and 3 others PLD 1994 SC 79; Muhammad Naeem Akhtar and 2 others v. The Speaker, Sindh Provincial Assembly and others 1992 CLC 2043; Munawar Khan v. Speaker, N.-W.F.P Provincial Assembly and 2 others 1992 MLD 2065 and Syed Qaim Ali Shah's case 1993 MLD 1127 rel.

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

----S. 18---Rules of Procedure of Azad Jammu and Kashmir Legislative Assembly, R.17---Resolution for vote of no confidence moved against Prime Minister in Legislative Assembly---Power of Speaker to summon Session of Assembly---Scope---No embargo placed in the Constitution on move of such resolution by 1/4th of total membership of Assembly---Speaker had inherent power to meet a situation not expressly provided in the Constitution and Rules of Procedure of Azad Jammu and Kashmir Legislative Assembly---Speaker could summon such Session notwithstanding the fact that such resolution was signed by 1/4th of members of Assembly---Principles.

Raja Muhammad Hanif Khan, Sadaqat Hussain Raja, Anjum Nisar Mir and Raja Sajjad Ahmed for Petitioners.

Mushtaq Ahmed Janjua, Ch. Shaukat Aziz and Sardar M.R. Khan, A.A.-G. for Respondents Nos.1 to 3.

Nemo for Respondent No.4.

Abdul Rasheed Abbasi as amicus curiae.

2013 CLC 24

[Islamabad]

Before Noor-ul-Haq N. Qureshi and Shaukat Aziz Siddiqui, JJ

Messrs INDUS RAGS through Proprietor and 3 others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Ministry of Finance, Islamabad and 4 others----Respondents

Intra-Court Appeals Nos.176/W in Writ Petition No.3412 of 2009 and, 177-W, 185/W to 204/W, 208/W, 230/W and 231/W of 2012, decided on 28th May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Agreement in between two countries---Constitutional jurisdiction could not be invoked to challenge such agreement, unless same was made under the law of the land.

Messrs Sh. Abdur Rahim, Allah Ditto v. Federation of Pakistan and others PLD 1988 SC 670; Messrs Usmania Glass Sheet Factory v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Muzaffar Khan and Others v. Evacuee Trust Property through Deputy Administrator 2002 CLC 1819; Commissioner of Income Tax, Karachi v. Messrs Grindlays Bank PLC, Karachi 2010 PTD 2012; Messrs American Express Bank Limited, Karachi v. Commissioner of Income Tax, Coys-I, Karachi 2009 PTD 1791; Commissioner of Income Tax v. Ghazi Brotha Construction 2004 PTD 1994; 1993 SCMR 39; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Seciete Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division Islamabad 2002 SCMR 1694; Nishat Mills Limited v. Federation of Pakistan through Secretary, Finance Division, Federal Secretariat and 2 others 2005 PTD 495; Sandalbar Enterprises Pvt. Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Income Tax Officer and another v. Messrs Chappal Builders 1993 SCMR 1108; Collector of Sales Tax v. Muhammad Tahir and others 2004 PTD 2217; Commissioner of Income-Tax, Coys-II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Collector of Customs and another v. Maple Leaf Cement Factory Limited and others 2012 PTD 541 and Messrs M.Y. Electronics Industries Pvt. Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404=1998 PTD 2728 ref.

(b) Interpretation of statutes---

----Conflict between treaty and settlement between two countries---Effect---Law of the land would prevail.

(c) Interpretation of statutes---

----Legislation by issuing notification---Status---Act would prevail over such legislation.

Shafqat Mahmood Chohan, Munam Sultan, Barrister Babar Ali Khan and Ch. Arshad Mahmood for Appellants.

Rana Muhammad Shamim and Raja Muhammad Iqbal for Respondents.

Date of hearing: 21st May, 2012.

2013 CLC 76

[Islamabad]

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

MUHAMMAD MASUD KHAN----Petitioner

Versus

MUHAMMAD NEROZE KHAN and 3 others----Respondents

Civil Revision No.340 of 2003, heard on 22nd December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Contract Act (IX of 1872), S.62---Suit for declaration and injunction---Agreement to sell and sale-deed---Novation of contract---Plaintiffs relying on agreement to sell claimed their right over suit property and asserted that sale-deed referred by defendants was registered in furtherance of agreement to sell in question---Validity---Agreement to sell in question was executed between vendor and plaintiffs, whereas registered sale-deed was executed between vendor and defendants---Purchasers mentioned in agreement to sell and registered sale-deed were different persons except plaintiffs---Sale-deed, nowhere mentioned that the same was executed in furtherance or in consequence of agreement in question, therefore, registered sale-deed in question was not outcome of the agreement---Even if sale-deed in question was executed in pursuance of sale agreement, then too according to section 62 of Contract Act, 1872, after execution of registered sale-deed, the same did not require its performance and sale agreement had no binding effect and plaintiff could not ask for any relief---Findings of two Courts below did not suffer from jurisdictional defect nor the same were result of misreading and non-reading of evidence and did not call for interference---Plaintiffs failed to point out any illegality, irregularity or jurisdictional defect in the judgments of the courts below warranting interference by High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

PLD 1956 (W.P.) Lah. 934; PLD 1987 SC (AJ&K) 93; PLD 1982 Baghdad-ul-Jadid 33 and 1994 CLC 2272 ref.

Aurangzeb through legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236 rel.

Syed Asghar Hussain Sabzwari for Petitioner.

Gul Hussain Jadoon for Respondent No.1.

Date of hearing: 22nd December, 2011.

2013 CLC 108

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SANYA SAUD----Petitioner

Versus

Khawaja SAUD MASUD and others----Respondents

Writ Petition No.373 of 2012, decided on 18th May, 2012.

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

---S. 7---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R.3(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Talaq (divorce)---Wife residing aboard---Serving of notice on wife, effectiveness of---Arbitration Council, jurisdiction of---Proceedings for dissolution of marriage, custody of minor and equitable distribution of property initiated by wife (petitioner) in the foreign court---Husband (respondent) was alleged to have prepared a forged divorce deed in Pakistan with the intention to frustrate said proceedings before foreign court---Contentions of wife were that she was residing out of Pakistan and was not served notice of Talaq by Arbitration Council in accordance with section 7 of Muslim Family Laws Ordinance, 1961, and that Arbitration Council, had failed to appreciate her objection about her non-residence within its territorial jurisdiction---Validity---Perusal of reply affidavit submitted by wife before foreign court showed that she had knowledge about pronouncement of Talaq and proceedings before the Arbitration Council in Pakistan---Rule 3(b) of West Pakistan Rules under Muslim Family Laws Ordinance, 1961, clearly provided that where at the time of pronouncement of Talaq, wife was not found available in any part of Pakistan, then the Union Council or Town, where she last resided, would have jurisdiction for the purposes of notice, therefore, contention of wife regarding jurisdiction needed no further discussion---Constitutional petition was dismissed accordingly.

Abbas Khan and 3 others v. Mst. Sat Bherai and others 1993 CLC 2181; Romana Zahid v. Chairman, Arbitration Council/Nazim, Union Council and another PLD 2010 Lah. 681; Syeda Wajiha Haris v. Chairman, Union Council No.7, Lahore 2010 MLD 989; Inamul Islam v. Mst. Hussain Bano and 4 others PLD 1976 Lah. 1466; Batool Tahir through Nominee v. Province of Sindh through Secretary, Local Government Sindh and 3 others PLD 2005 Kar. 358 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 ref.

Raja Inam Ameen Minhas and Ch. Muhammad Waqas for Petitioner.

Rizwan Faiz Muhammad Malik for Respondent.

Date of hearing: 27th April, 2012.

2013 CLC 141

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Messrs KARACHI STEEL MILLS and others----Petitioners

Versus

WAPDA and others----Respondents

Writ Petitions Nos.2972, 3168, 3208, 3235, 3243, 3366, 3422, 3453, 3480 of 2011, 127, 164, 165, 166, 212, 499, 501, 519, 530, 650, 651, 714 and 1373 of 2012, decided on 24th October, 2012.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 7(6) & 31(2)---Constitution of Pakistan, Art.199---Constitutional petition---Powers and functions of Regulatory Authority---Scope---Protection of interest of consumers---Scope---Electricity bills---Fuel Adjustment Charges ---Levy and demand of such charges in electricity bills as arrears with retrospective effect---Legality---Electric Power Regulatory Authority was under a statutory obligation to protect the interest of consumers as well, instead of allowing the power distribution companies to raise demand of Fuel Adjustment Charges in a mechanical fashion---Scope and levy of Fuel Adjustment Charges could not be expanded and had to remain within the variations in the prices of fuel---High Court declared levy and demand of Fuel Adjustment Charges as arrears with retrospective effect as unconstitutional and against the applicable law and principles of natural justice---Power distribution companies were directed to issue amended bills and in case consumers had already paid the bills in question, then to adjust excessive amount received accordingly in the bills of coming months---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Arts. 3 & 199---Constitutional petition---Exploitation---Public functionary---Arbitrary exercise of authority---Interference by High Court---Scope---Constitution did not permit exploitation of any kind or form, therefore, it casted a duty upon the High Court to protect any person from being exploited and to shield the socio-economic fibre of the country from being disrupted at the hands of executive functionaries---Consumers/citizens could not be left at the mercy of bodies, which were in an advantageous position---Arbitrary exercise of authority, mala fide actions and illegal demands were always checked by Superior Courts---Constitutional petition was allowed.

Malik Qamar Afzal, Mian Mehmood Rashid, Babar Ilyas Chatha, Nabeel Rehman, Syed Ishfaq Hussain Naqvi, Ms. Zainab Effendi, Ms. Rehana Zaman, Rao Hamid Rehman, Niazullah Khan Niazi, Ms. Mehraj Tareen, Kh. Manzoor Ahmed, Shahzad Rabbani, Barrister Momin Ali Khan, Bilal Akbar Tarrar, Faqir Hussain Majrooh, Muhammad Akram Naveed, A. Salam Qureshi, Tariq Mehmood, Muhammad Siddique Mughal, M. Anum Salim, Ch. M. Tahir Mehmood, Ch. Muhammad Abdul Latif Gujar, Arif Mehmood, Jawed Mehmood Pasha, M. Rehan Sameer, M. Waseem Chaudhry, Rana Ali Akbar Khan, Muhammad Nawaz, Ghulam Farid Chaudhry, Mushtaq Ahmed Kamboh, Muhammad Rehan Sarwar, Malik Mumtaz Hussain Khokhar, Muhammad Siddique Qazi, Muhammad Waqas Malik, Mian Muhammad Hussain Chotiya, Zulqarnain Hamid and Ch. Mumtaz-ul-Hassan for Petitioners in their respective petitions.

Kh. Ahmed Tariq Rahim and Sh. Muhammad Ali for M/O Water and Power, Islamabad.

Shamshad Ullah Cheema along with Muhammad Shafique, Legal Advisor for NEPRA.

Munawar-us-Salam and Muhammad Usman Sahi for LESCO.

Syed Kazim Hussain Kazmi along with Muhammad Siddique Malik, Director Legal (GEPCO) for GEPCO and IESCO.

Fazal-ur-Rehman, Muhammad Shakeel Abbasi, Muhammad Asif Khan and Saeed Raza for IESCO.

Rana Asif Saeed on behalf of MEPCO, GEPCO, NTDC and FESCO.

Asad Jan along with Shakeel, AD Legal for PESCO.

Noman Munir Peracha for HESCO.

Muhammad Khalid Zaman for FESCO.

Dates of hearing: 8th, 15th and 22nd October, 2012.

2013 C L C 288

[Islamabad]

Before Muhammad Azim Khan Afridi, J

MUHAMMAD ZAMAN and others----Petitioners

Versus

ABDUL REHMAN and others----Respondents

Civil Revision No.813 of 2005, decided on 12th June, 2012.

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

----S. 36---Specific Relief Act (I of 1877), S.12---Suit for specific performance of sale agreement---Suit plot allotted to vendor by Development Authority in lieu of his acquired land cancelled from his name after such agreement---Dismissal of suit by Trial Court upheld by Appellate Court---Validity---When party to a contract became incapable to perform its part thereunder due to reason beyond its control, then contract, even though valid and enforceable initially, would become invalid and un-enforceable---Neither void contract could be enforced nor would suit for its enforcement be entertainable---Such overt act of Development Authority was as an act beyond control of vendor---Impugned judgments were not suffering from any illegality or material irregularity---High Court dismissed revision petition in circumstances.

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

----S. 36---Specific Relief Act (I of 1877), S.12 ---Valid contract subsequently becoming invalid---Suit for enforcement of such contract---Maintainability---When party to a contract became incapable to perform its part thereunder due to reason beyond its control, then contract, even though valid and enforceable initially, would become invalid and unenforceable---Neither void contract could be enforced nor would suit for its enforcement be entertainable.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Where court below either exercised jurisdiction not vested in it or failed to exercise jurisdiction so vested or exercised vested jurisdiction illegally or with material irregularity, then High Court could interfere in its judgment or set aside same.

Sana Ullah Zahid for Petitioners.

2013 C L C 678

[Islamabad]

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

Dr. ABDUL GHAFOOR KHAN----Petitioner

Versus

Haji MUHAMMAD TAJ and others----Respondents

Writ Petition No.2971 of 2011, decided 27th October, 2011.

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

----S. 17---Constitution of Pakistan Art.199---Constitutional petition---Ejectment of tenant---Denial of relationship of landlord and tenant---Sub lessee, rights of---Ejectment petition was allowed concurrently---Tenant (petitioner) had denied the relationship of landlord and tenant on the ground hat he had obtained the premises from the other respondent and had no lease agreement with the landlord---Validity---Sale-deed produced by the landlord clearly showed that he had purchased the premises from the other respondent and the tenant could not prove that the sale-deed was not a valid document---Record proved that the premises were given to the other respondent who subsequently sublet the same to the tenant, and under the law, the sub-lessee had no legal right to remain in possession of the premises---Concurrent findings of courts below could not be interfered with---Constitutional petition was dismissed, in circumstances.

Aadil Nadeem Rizvi v. Gohar Siddique and others 2004 SCMR 738; Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638 and Mst.Nasim Fatima through legal heirs and others v. Sh.Ala ud Din and others PLD 2005 SC 445 rel.

Zahid Mahmoud Raja for Petitioner.

2013 C L C 714

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Makhdoom M. NIAZ INQLABI, ADVOCATE and others----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.668 of 2013, decided on 2nd February, 2013.

(a) Constitution of Pakistan---

----Arts. 218, 213 & 199---Constitutional petition---Appointment of Chief Election Commissioner and Members of the Election Commission of Pakistan---Laches---Doctrine of necessity---Applicability---Scope---Petitioners impugned the appointment of the Chief Election Commissioner as well as the Members of the Election Commission of Pakistan on the ground that such appointments were not made in accordance with Art.213 and Art.218 of the Constitution and contended that holding of elections in the near future should not come in the way of making a declaration that the appointments were made without following the prescribed procedure and that the Supreme Court of Pakistan buried the "doctrine of necessity"---Validity---Petitioner had not impleaded the necessary parties as respondents in the present petition, therefore, the constitutional petition had an inherent defect---Impugned appointments were made on 11-8-2011 and 16-7-2012 whereas the present constitutional petition was filed in 2013, therefore, the same was hit by laches---Contention of petitioners that they only came to know about the impugned appointments recently through the electronic media was nothing but a fallacy, and was without force---High Court observed that timing of the present Constitutional petition required attention and a sensitive approach; and in the light of the fact that the tenure of the National and Provincial Assemblies was coming to an end soon, therefore, even if the argument of the petitioners was accepted, even then, at the present stage, High Court shall refrain from issuing a writ; that undoubtedly the Supreme Court had buried the "doctrine of necessity" for all times to come, and that superior courts had become more vigilant in appreciating the intent of any party in bringing any matter before the courts---Constitutional petition, being without merit, was dismissed, in circumstances.

Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan and others; Haji Saif Ullah's case PLD 1989 SC 166 and PLD 2009 SC 879 rel.

(b) Constitution of Pakistan---

----Art. 199(b)(1)---Constitutional jurisdiction of High Court---Issuance of writ of "quo warranto"---Scope---Non-joining of necessary parties---Effect---For purpose of "requiring any person", particulars of such person were necessary, and if "any person" preferred a Constitutional petition, then the person to be called upon had to be impleaded as a respondent in the Constitutional petition---No petition could be maintained without necessary parties, who were likely to suffer the outcome of any proceedings.

Makhdoom M. Niaz Iqlabi, M. Zahid Aziz Alvi and Asghar Ali Mubarak for Petitioners.

2013 C L C 963

[Islamabad]

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

ZHANGE GUOGEN----Petitioner

Versus

Mst. JAHANZEBA BEGUM and others----Respondents

Writ Petition No.1728 of 2009, heard on 16th March, 2011.

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

----Ss.10, 11 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Wilful default---Penalty, non-payment of---Increase in rent---Rent Controller and Lower Appellate Court passed eviction order mainly on the ground that according to terms of agreement, tenant failed to pay fine to landlady for delay in payment of rent and also did not pay increased rent---Plea raised by landlady was that tenant had not paid increased rent which stood automatically enhanced after 3 years of tenancy at the rate of 25% as provided under section 10 of Islamabad Rent Restriction Ordinance, 2001---Validity---Condition of payment of Rs.500/- per day was penalty and it could not be considered as additional rent---Such penalty was specifically prohibited by section 11 of Islamabad Rent Restriction Ordinance, 2001, and agreement to that extent was void ab initio---Landlady did not show any notice issued to tenant requiring him to pay statutory rent nor any application had been moved to strike off the defence of tenant, therefore, statutory ground could not be pressed into service---High Court in exercise of Constitutional jurisdiction set aside eviction orders passed by Rent Controller and Lower Appellate Court resultantly ejectment application was dismissed---Petition was allowed in circumstances.

Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Inayat Ullah v. Zahoor ud Din 1987 SCMR 1313; Muhammad Shaban v. Judge Family Court and another 2003 YLR 2708; Sarfraz Ahmad Khan v. District Judge, Multan and 2 others 2003 CLC 44; Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19; M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196; Muhammad Tariq v. Sardar Khan and 9 others 1998 CLC 1054; Black's Law Dictionary; Advanced Law Lexicon Dictionary by P. Ramanatha Aiyar; Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071; Messrs Habib Bank Limited v. Naseer Ahmed 1998 MLD 1765; National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others PLD 1997 SC 564 and Ch. Mussarat Ahmad v. Ch. Fazal Ahmed 2004 YLR 2905 ref.

Muhammad Akram Sheikh, Barrister Natalya Kamal and Barrister Sajeel Sheryar for Petitioner.

Mian Abdul Rauf and Rana M. Irshad Khan for Respondent No.1.

Date of hearing: 16th March, 2011.

2013 C L C 1036

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

OCEAN PAKISTAN LTD.----Applicant

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.S. No.51 and C.M. No.218 of 2012, decided on 19th February, 2013.

Specific Relief Act (I of 1877) ---

----Ss. 42 & 54---Contract Act (IX of 1872), S.73---Civil Procedure Code (V of 1908), O.VII, R.11(d) & O.XXXIX, Rr.1, 2---Income Tax Ordinance (XLIX of 2001), Ss.122(5-A), 122(9) & 227(i)---Suit for declaration, permanent injunction, damages and set-off---Transfer of working interest and rights in petroleum concession agreement by plaintiff---Show-cause notice issued under S. 122(9) read with S.122(5-A) of Income Tax Ordinance, 2001 demanding from plaintiff income tax payable on such transfer---Plaintiff's plea was that new owner of such interest was liable for due taxes and such transfer of interest for being intangible was not taxable---Application by revenue-authority under O.VII, R. 11, C.P.C., seeking rejection of plaint for being barred by law---Validity---High Court had already dismissed plaintiff's constitutional petition challenging such notice/demand by observing that same was not mala fide, without jurisdiction or void---Supreme Court had upheld such judgment of High Court---Plaintiff's second constitutional petition for suspending such notice/demand had already been dismissed by High Court---Plaintiff had failed to establish before High Court mala fides or want of jurisdiction on part of revenue-authority in issuing such notice/demand---Plaintiff's appeal against such notice/demand was still pending before Income Tax Appellate Authority, and against its decision he could avail remedies under Income Tax Ordinance, 2001---Question as to whether such working interest was immovable property or intangible asset, would be decided by Inland Revenue Authorities---High Court rejected plaint in circumstances.

1973 SCMR 282; 2003 YLR 196; 2012 PTD 1590; 2009 SCMR 1279; PLD 1994 SC 693 and 2002 SCMR 1694 ref.

M. Bilal, Senior Advocate Supreme Court, Tariq Shamim and Babar Bilal Advocates Supreme Court for Applicants.

Mansoor Usman for Respondent.

2013 C L C 1077

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

FARRUKH ZIA----Petitioner

Versus

Mst. BUSHRA BEGUM and others----Respondents

Writ Petition No.4835 of 2010, decided on 24th January, 2011.

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

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on grounds of bona fide personal need of landlord and expiry of lease agreement---Ejectment petition was allowed, concurrently---Contention of tenant (petitioner) was that lease agreement between the parties had not expired and had been extended for five years---Validity---No evidence was on record to establish that the lease agreement had expired---After expiration of term fixed by lease agreement, tenant would lose the right to continue to occupy or hold over premises---Right of landlord, in such circumstance, to seek eviction of tenant on grounds specified in S.17 of the Islamabad Rent Restriction Ordinance, 2001 would remain unaffected---Evidence about the bona fide personal need of landlord had not been negated successfully by the tenant, therefore, findings of courts below were correct---Constitutional petition, being without merit, was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, while sitting in its Constitutional jurisdiction, could dilate only upon strong points of law or glaring illegalities only.

Sardar Tariq Mehmood for Petitioner.

Ch. Azmat Ullah for Respondents Nos.1 and 2.

2013 C L C 1085

[Islamabad]

Before Riaz Ahmad Khan, J

SHAKEEL HUSSAIN SHAH----Petitioner

Versus

BUSHRA HAMEED and others----Respondents

Writ Petition No.334 of 2012, heard on 21st February, 2013.

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---Contention of husband was that he had stated before the Family Court that dower had been paid to the wife on the wedding night, therefore, findings of courts below were incorrect---Validity---Mere statement before Family Court could not be considered as proof of payment of dower and the husband was bound to prove the same through evidence---In absence of cogent evidence, simple statement could not be considered as a proof, and in such a case, the onus would not shift to the wife to disprove the claim of the husband---Dower in fact was a debt against the husband in case the dower amount is not paid, the wife would have right to refuse the performance of her marital obligations---Once it was proved that the dower had not been paid, the wife would be entitled to stay away from the husband and the husband would be bound to pay maintenance to the wife---Husband, in the present case, did not prove that he had paid dower to his wife, therefore, the wife was entitled to receive maintenance allowance---Constitutional petition was dismissed accordingly.

Jan Muhammad Khan for Petitioner.

Syed Wajid Ali Gillani for Respondent No.1.

Date of hearing: 21st February, 2013.

2013 C L C 1095

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Syed WAQAR HUSSAIN GILLANI----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Writ Petitions Nos.2222 of 2008 and 2401 of 2009, decided on 13th March, 2013.

(a) Capital Development Authority Ordinance (XXIII of 1860)---

----S. 14-A---Playgrounds, parks, green belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located---Such places come in the joint ownership and constructive possession of all citizens, which is a constitutionally guaranteed right.

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

----Ss. 11 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Place meant for playground, subsequently carved out for purported allottees---Effect---Planning Department of CDA, without caring about the Master/Sector Plans, conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination could be described as bona fide act and lawful device---Allotments made in favour of allottees were cancelled.

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

----Ss. 11 & 12---Carving out of plots meant for playground---Plots carved out were not in the area of cricket ground, rather outside the playing area of the same---Effect---Ground of any sport, more particularly cricket were not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis/squash courts, swimming pool, pavilion, dressing room, spectators place are essential---Capital Development Authority was bound to add such facilities instead of shrinking the areas of playground by carving out plots in the same---Places belonging to public at large are like trust which cast delicate duty upon the civic body to protect and preserve such properties.

(d) Constitution of Pakistan--

----Arts. 9, 26 & 199---Capital Development Authority Ordinance (XXIII of 1960), Ss.11 & 12---Constitutional petition---Disposal of public property---Plots reserved for playground, carved out and allotted to purported allottees---Validity---Act of Capital Development Authority's officials was not less than offence, like criminal breach of trust, cheating and fraud---Civic body was to initiate criminal proceedings and take disciplinary action against the culprits, who for personal benefit, gain and interests, sold the assets of nation---Such type of arbitrary decisions, polluted acts and corrupt practices was deprecated---Places like parks and playgrounds were necessary for healthy life and to convert such places to commercial use and residential purpose was an infringement of Fundamental Rights guaranteed by the Constitution, more particularly Art.9---Act of carving out of plots was declared as unconstitutional by High Court and said allotments were cancelled.

Pervaiz Oliver's case PLD 1999 SC 26; New Murree Project's case 2010 SCMR 361; Moulvi Iqbal Haider's case PLD 2006 SC 394; Ardeshir Cowasjee's case 1999 SCMR 2883; Shehla Zia's case PLD 1994 SC 693 and Manzoor Bhatti's case PLD 2002 Lah. 412 rel.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Mian M. Hanif, Advocate Supreme Court with Umar Hanif Khichi for CDA.

Ch. Haseeb Ijaz Buttar for Respondent No.5-A.

Malik Muzaffar Khan for Respondent No.5-C.

Date of hearing: 13th March, 2013.

2013 C L C 1191

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J. and Shaukat Aziz Siddiqui, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED (PTCL) and others----Appellants

Versus

Mst. NAIMA AYUB and others----Respondents

Regular First Appeal No.1 of 2013, decided on 13th March, 2013.

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

----O. XVII, R.3---Closure of evidence---Dismissal of suit without pronouncement of judgment and giving issue-wise findings---Effect---Not permissible under the law to proceed straightway to dismiss the suit while closing the evidence of the party without pronouncing judgment and giving issue-wise findings.

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

----O. XVII, R.3---Closure of evidence---Phrase, "proceed to decide the suit forthwith" in O.XVII, R.3, C.P.C.---Connotation---Words "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith", court may proceed with the suit notwithstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken---Word "forthwith" means without any further adjournment yet it cannot be equated with the word "at once pronounce the judgment".

Muhammad Aslam's case 2008 SCMR 942 ref.

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

----O. XVII, Rr.3 & 2---Closure of evidence---Dismissal of suit forthwith---Non-production of witness by the party---Before dismissing the suit forthwith, party should have been asked to come in the witness box for the purpose of recording of statement and provision of O.XVII, R.2, C.P.C. should have been invoked.

(d) Words and phrases---

----Expression "proceed to decide the suit forthwith"---Meaning.

(e) Words and phrases---

----"Forthwith"---Meaning.

Mian Abdul Razzaq for Appellant.

Fida Hussain Mirza for Respondents Nos.1 and 2.

2013 C L C 1351

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Ms. ANBER JAVED----Petitioner

Versus

BAHRIA UNIVERSITY and others----Respondents

Writ Petition No.740 of 2012, decided on 23rd April, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Award of Gold Medal on achieving high academic standards---Petitioner having highest "Cumulative Grade Point Average" (CGPA) was expecting award of Gold Medal---Gold Medal was awarded to another batchmate of the petitioner having CGPA lower than the petitioner---Validity---No doubt that CGPA of the petitioner was highest in comparison to CGPA achieved by respondent but petitioner achieved this score in two attempts whereas respondent achieved the same in one go---Reasonable distinction was created between petitioner and respondent---Decision of the University could not be termed as arbitrary, perverse and unreasonable---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policies and procedures of the University---Policy made by the University for award of gold medal---Interference by court---Scope---Making rules and regulations to run the affairs of University and interpretation of the same was the prerogative of the University authorities, and the courts normally avoid interference in such like matters, unless a case of grave injustice was pointed out---Award of gold medal to a student was a sign of excellence and inspiration yet the authorities had to examine the case of each student in the perspective of University rules and regulations made from time to time.

Muhammad Aslam Khaki for Petitioner.

Shafiq-ur-Rehman Dab for Respondent No.1.

2013 C L C 1364

[Islamabad]

Before Riaz Ahmad Khan and Noor-ul-Haq N. Qureshi, JJ

Sardar MUHAMMAD YAQOOB KHAN NASAR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and another----Respondents

Writ Petition No.1688 of 2013, decided on 23rd May, 2013.

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

----Ss. 42A(3) & 50---Constitution of Pakistan, Art.199---Constitutional petition---Filing of election expenses---Once candidate was declared returned and was notified, that would mean that return of election expenses filed by him were accepted by Election Commission, as such requirement of S.50(2) of Representation of the People Act, 1976, was fulfilled and thereafter proceedings against returned candidate could not be initiated against him---High Court set aside the order passed by Election Commission, as petitioner could not be prosecuted for non-filing of election expenses---Petition was allowed in circumstances.

Muhammad Munir Paracha assisted by Nauman Munir Paracha for Petitioner.

Ch. Ali Muhammad for Respondent No.2.

Date of hearing: 14th May, 2013.

2013 C L C 1441

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Ch. MUHAMMAD YASIN----Petitioner

Versus

WAFAQI MOHTASIB (OMBUDSMAN) and others ----Respondents

Writ Petition No.1356 of 2013, decided on 26th April, 2013.

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art. 9(a)---Constitution of Pakistan, Art.199---Constitutional petition---Wafaqi Mohtasib, jurisdiction of---Decision of court---Scope---Petitioner was aggrieved of status quo order passed by Wafaqi Mohtasib on complaint filed by respondent---Validity---Petitioner got published proclamation in newspaper for auction of petrol pump in question and respondent while concealing all facts about litigation between parties submitted petition before Wafaqi Mohtasib, who issued order to maintain status quo---Respondent entangled petitioner in litigation which commenced when he instituted civil suit on 5-3-2003 and that culminated when Supreme Court dismissed his petition on 11-10-2011---Rights, liabilities and obligations of parties having been fully determined by decision rendered by courts of law, exercise of jurisdiction by Wafaqi Mohtasib was illegal---Controversy about subject-matter of petition had already been settled upto Supreme Court and as per Art.9(a) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, Wafaqi Mohtasib had no jurisdiction to pass status quo order---Petition was allowed accordingly.

Syed Naeem Bukhari, Advocate Supreme Court and M. Imad Khan for Petitioner.

Muhammad Munir Paracha, Advocate Supreme Court and Noman Munir Paracha for Respondent No.2.

Atta Ullah Hakim Kundi for Respondent No.3.

Muhammad Ramzan Joya,Director (Admn.), C.D.A.

Muhammad Ali Director (HRD-I) C.D.A.

Date of hearing: 26th April, 2013.

2013 C L C 1841

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD SADIQ----Petitioner

Versus

CHAIRMAN, CAPITAL DEVELOPMENT AUTHORITY and others----Respondents

Writ Petition No.14504 of 2000, decided on 5th June, 2013.

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

----S. 12---Constitution of Pakistan, Art.199---Constitutional petition---"No objection certificate" for raising construction, issuance of---Demarcation report---Objection---Scope---Contention of petitioner was that he was owner of land measuring 26 Kanals and 15 Marlas and according to demarcation report land measuring 15 Kanals and 17 Marlas belonging to him was found to be 300 feet within the boundary of Capital Development Authority---Capital Development Authority was debarred from raising any objection with regard to the ownership of the petitioner as the same had attained finality in civil proceedings and the same had been admitted before the High Court in a constitutional petition and conceded in unequivocal terms before the High Court---Objections with regard to demarcation report had lost its significance when Authority was served with the notice and it failed to represent and deputed no official to attend the proceedings of the Commission appointed for demarcation---Authority was at liberty to depute any officer to attend the proceedings of demarcation but no reason or justification had been advanced for not deputing the same---Joint Commission was appointed with the consent of the parties---Authorities had failed to point out any legal infirmity or defect in the demarcation report which was in accordance with the provisions of law---Objections were rejected and Authority was directed to issue "no objection certificate" accordingly.

Ch. Mushtaq Ahmed Khan for Petitioner.

Mian Muhammad Hanif for Respondents.

Dates of hearing: 14th and 19th March, 2013.

2013 CLC 6

[Sindh]

Before Nadeem Akhtar, J

Messrs JAWAID FLOUR AND GENERAL MILLS through owner----Plaintiff/applicant

Versus

FOOD DEPARTMENT through Secretary Food, Government of Sindh and 3 others----Defendants/Respondents

C.M.A. No.6792 of 2012 in Suit No.640 of 2011, decided on 15th August, 2012.

(a) Administration of justice---

----Subsequent events---Power of court---While lis is pending, court can take notice of subsequent events and pass appropriate orders in order to do substantial justice.

(b) West Pakistan Food Grains (Licensing Control) Order, of l957---

----Clauses 8, 9 & 10---Civil Procedure Code (V of 1908), S.151 & O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Interim relief---Resumption of operation of mills and restoration of quota---Plaintiff was running flour mills and he filed application for direction to authorities to resume operation of his mills and restoration of wheat quota allocated for the month of Ramadan---Validity---Plaintiff had not only applied for renewal of his license within time but had also requested authorities to issue him a challan for payment of renewal fee---Authorities did not issue challan to plaintiff nor they had accepted or rejected his application but kept the same pending without assigning any reason or ground---Defendants were licensing authority and it was their statutory duty and obligation under West Pakistan Food Grains (Licensing Control) Order, 1957, to promptly issue challan to plaintiff or at least to inform him about reasons for not doing so, or to issue him mandatory notice under clause 10(i) of West Pakistan Food Grains (Licensing Control) Order, 1957, if he had contravened any of the terms and conditions of license so that he could have defended himself---Authorities did not discharge their statutory duties and functions under the provisions of West Pakistan Food Grains (Licensing Control) Order, 1957, and had become judges of their own cause by declaring plaintiff as defaulter without giving him any opportunity of hearing and also without waiting for trial and outcome of suit---High Court directed the authorities that after renewal of plaintiff's license, future wheat quota/stocks would be allocated/ allowed/supplied to him by authorities without any discrimination and in accordance with law---High Court further directed the authorities that in case of any legal bar or impediment in issuing challan and renewing license, proper reasons and grounds should be communicated in writing by authorities by a notice to plaintiff, providing him full opportunity of hearing in accordance with law---Application was allowed accordingly.

Lt. Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98 and Gul Khan v. Government of Balochistan PLD 1989 Quetta 8 distinguished.

New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 and Government of N.-W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others 1997 SCMR 1804 rel.

Abdul Haleem v. The State and others 1982 SCMR 988; Lahore Metropolitan Corporation, Lahore and others v. Ahmad Ali and another 1998 PSC 987; Messers Abdul Khaliq Ice Factory v. Karachi Electric Supply Corporation Ltd. 1984 CLC 2720; Haji Sher Muhammad v. WAPDA through Chairman and 2 others PLD 1988 Lah. 511 and S.A. Abbasi v. Chairman, District Council Gulshan-e-Iqbal, Karachi PLD 1985 Kar. 400 ref.

Khalid Jawed Khan for Plaintiff/Applicant.

Mrs. Haleema Khan, A.A.-G. along with Bashir Ahmed Qazi, D.F.C. (Food Department) and Syed Raziuddin S.O.(W) Food Department for Defendants/Respondents.

Dates of hearing: 31st July and 1st August, 2012.

2013 CLC 63

[Sindh]

Before Shahid Anwar Bajwa and Aziz-ur-Rehman, JJ

ABDUL LATIF----Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government Department and 5 others----Respondents

Constitutional Petition No.D-682 and M.As. Nos.3118 and 3576 of 2012, decided on 17th August, 2012.

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

----Ss. 4, 6 & 7-A---Constitution of Pakistan, Art.199---Constitutional petition---Building construction, re-construction, modification of or alteration in---Scope---Such construction, re-construction, modification or alteration as a rule must be on basis of approved plans to be in consonance with relevant scheme spreading over a specific area---Local Authority operating in such area would be obliged to ensure strict observance and implementation of law, rules and regulations ---Construction raised pursuant to plan approved by Town Municipal Officer, but not in accordance with original plan issued by Chairman of Municipality would be illegal and liable to be demolished by Building Control Authority---Principles.

Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi through Authorized Director v. KBCA through Chief Controller and 5 others 2012 CLC 131 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Violation of rules and regulations by statutory bodies---Constitutional jurisdiction of High Court, interference in such matter in---Scope---Any violation by such bodies required under law to give effect to rights and/or interests by enforcing their rules and regulations could be challenged in such jurisdiction by aggrieved person---Existence of rights stricto sensu would not be necessary for a person invoking such jurisdiction.

Jagdish R. Mullani for Petitioner.

Nusrat Mehmood Gill for Respondents Nos.4 and 5.

Shamsuddin Sehto for Respondent No.6.

Date of hearing: 1st August, 2012.

2013 CLC 88

[Sindh]

Before Abdul Rasool Memon, J

WASIUDDIN SIDDIQUI----Petitioner

Versus

MUHAMMAD NAWAZ MANDOKHEL and 2 others----Respondents

Constitutional Petition No.S-593, M.As. Nos.2621 and 2622 of 2012, decided on 16th August, 2012.

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

----S. 54---Sale agreement regarding demised property in favour of tenant by its owner---Validity---Such agreement would not confer any title on tenant, unless same was determined by court of competent jurisdiction and would not authorize non-payment of rent by tenant from date of its execution.

Mst. Bor Bibi and others v. Abdul Qadir 1996 SCMR 877 and Khawaja Amir Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74 rel.

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

----S. 15---Transfer of Property Act (IV of 1882), S. 54--- Qanun-e-Shahadat (10 of 1984), Arts.113 & 115---Ejectment petition---Default in payment of rent by tenant---Denial of relationship of landlord and tenant on basis of sale agreement executed in favour of tenant by owner of demised premises---Validity---Such agreement would not confer any title on tenant, unless same was determined by court of competent jurisdiction---Such agreement would not authorize non-payment of rent by tenant from date of its execution---Tenant had not filed suit for specific performance of such agreement---Tenant in his cross-examination admitted that in suit for permanent injunction filed in respect of demised premises, he mentioned himself to be its tenant---Once a person acknowledged himself to be tenant of a landlord, then by virtue of Art.115 of Qanun-e-Shahadat, 1984, he could not deny such title as a tenant---Relationship of landlord and tenant between parties had been admitted by tenant during cross-examination, thus, same being a fact admitted would not need to be proved---Tenant denying such relationship on basis of such agreement would be bound first of all to deliver possession of demised premises to landlord and then contest his proprietary rights therein and after getting decree from court could enforce same against landlord---Ejectment petition was accepted in circumstances.

Mst. Bor Bibi and others v. Abdul Qadir 1996 SCMR 877; Khawaja Amir Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74 and Barkat Masih v. Manzoor Ahmed 2006 SCMR 1068 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be exercised in case of any glaring misreading or non-reading of any material on record.

Roomi Iqbal for Petitioner.

Khalid Ahmed Siddiqui for Respondent No.1

2013 CLC 119

[Sindh]

Before Faisal Arab, J

MUHAMMAD AKRAM and 2 others----Petitioners

Versus

ZIAULLAH CHAUDHRY and 2 others----Respondents

Constitutional Petition No.S-679 of 2003, decided on 7th August, 2012.

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

----Ss. 10(2) & 10(3)---Constitution of Pakistan, Art.199---Constitutional petition---Payment of rent---Procedure---Deposit of rent in court---Scope---Mandatory obligation of tenant to first offer rent directly to landlord before depositing the same in court---Ejectment of tenant (respondent) was sought on grounds of default in payment of rent and personal bona fide need of landlord (petitioner)---Tenant contended that he had deposited the rent in court within the prescribed period by law and that during pendency of case another apartment owned by landlord fell vacant but same was not occupied, therefore, personal need of landlord was not established---Landlord contended that tenant did not offer rent directly to him and straightaway deposited the same in court---Validity---Tenant was under an obligation to tender rent directly to landlord, which emanated from section 10(2) of Sindh Rented Premises Ordinance, 1979---Said obligation could not be termed as directory but was mandatory and condition precedent for continuation of tenancy rights---Course to remit rent through money order or depositing the same in court was to be adopted only when the landlord refused to accept the rent---If rent deposited in court, without it first being offered to the landlord, was accepted as valid tender then it would cause tremendous inconvenience to the landlord and would create hurdles in the timely receipt of monthly rent, which could not be permitted---Tenant, in the present case, had committed default in the payment of rent by not offering the same directly to the landlord---Another apartment had fallen vacant in the same building, personal need of landlord in such a case, would not be treated as bona fide unless it came on record that vacant premises was not suitable or was insufficient for the needs of the landlord---Constitutional petition was allowed and tenant was given six months' time to vacate the premises and hand over its vacant possession to the landlord.

2001 SCMR 1140 rel.

PLD 1993 Kar. 50; 2008 CLC 1499 and 2008 CLC 1598 ref.

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

---Ss. 10(2) & 10(3)---Payment of rent---Procedure---Deposit of rent in court---Scope---Tenant was under an obligation to tender rent directly to landlord---Course to remit rent through money order or depositing the same in court was to be adopted only when the landlord refused to accept the rent.

2001 SCMR 1140 rel.

Ch. A. Rasheed for Petitioners.

Imtiaz A. Gondal for Respondent No.1

2013 CLC 154

[Sindh]

Before Syed Muhammad Farooq Shah, J

TAJ MUHAMMAD BROHI through Legal Heir----Applicant

Versus

Mst. FARIDA AHMAD MUHAMMAD AHMED SIDDIQUI through Attorney and 3 others----Respondents

Civil Revision Application No.238 of 2011 and C.M.A. No.5742 of 2012, decided on 13th August, 2012.

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

----O. XLVII R. 1 & S.115---Review---Revision---Scope---Applicant sought revision of order of Appellate Court whereby his application under Order XLVII, Rule 1, C.P.C. for review of judgment of Trial Court was dismissed---Contention of the applicant was that impugned judgment was against law and fact---Validity---No plea of error of jurisdiction, illegal assumption, non-exercise or irregular exercise in the present case was noticed, revisional jurisdiction could not be invoked against conclusion of law and fact which did not in any way affect jurisdiction of the Court, no matter, however wrong or perverse, the decision might be either on a question of fact or law---Revisional jurisdiction did not confer any substantive right as the right to move a revision application is merely on the ground of assumption of illegal jurisdiction---Revision was dismissed in circumstances.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504 rel.

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

----O. XLVII, R. 1---Review---Scope---Order XLVII, R.1, C.P.C. an enabling provision only---Court having jurisdiction could decide rightly or wrongly, and said jurisdiction could be a ground for appeal but not for review---Only an error which was apparent on the face of the record and by which the court had been misled into making the order which was contrary to a statute, would form a good ground for review---Review of judgment on the ground of mistake or law or wrong decision on merits was not contemplated by Order XLVII, Rule 1 of the C.P.C.

Lt. Col. Nawabzada Muhammad Ameer Khan's case PLD 1962 SC 335 rel.

Fareed Ahmed for Applicant.

Irfan Hassan for Respondent No.1.

2013 CLC 164

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mst. SHABANA YASMEEN----Plaintiff

Versus

PROVINCE OF SINDH through Member Board of (Revenue), Karachi and 7 others----Respondents

C.M.As. Nos.9321, 10423 of 2009 and 1346 of 2010 in Suit No.1440 of 2009, decided on 27th August, 2012.

Civil Procedure Code (V of 1908)

----O. XXXIX, Rr.1 & 2---Application for grant of temporary injunction---Determination of arguable/prima facie case, existence or absence---Test.

For the purpose of existence or absence of a prima facie case in relation to exercise under Order XXXIX, Rules 1 and 2 C.P.C. the facts canvassed by both sides have to be examined, and it is on preponderance of facts based on documentary material and averments in the way of affidavits that concept of arguable case has to be determined. In addition, while deciding application under Order XXXIX, Rules 1 and 2, C.P.C., court is required to travel beyond four corners of plaint to determine, though tentatively, as to on what facts, finding is to be based. Thus, spectrum of Order XXXIX, Rules 1 and 2, C.P.C. is broader and more comprehensive.

Malik Naeem Iqbal for Plaintiff.

Nafeez Ahmed Osmany, A.A.-G.

Faisal Kamal and Fazlur Rehman for Defendant No.8.

Idress Alvi for CDGK.

2013 CLC 178

[Sindh]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

ABDUL GHAFOOR KHAN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Rawalpindi and 7 others----Respondents

Constitutional Petition No.D-2008 of 2006, decided on 3rd July, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Flyover bridges---Object, purpose and scope---Petitioner was aggrieved of use of land under flyover bridges for commercial purposes---Validity---Land in question was acquired and had been utilized for public purposes i.e. construction of flyover bridge and had become part of public road, therefore, could not have been utilized for any commercial activity by either of the parties---Purpose of constructing flyover bridges in cities was to release traffic congestion and inconvenience to commuters nearby and in case commercial activity was allowed beneath flyover bridges it would negate very purpose of such construction---Commercial activity beneath flyover bridges would add to traffic congestions and inconvenience to nearby commuters---High Court observed that flyover bridges in Karachi city, due to negligence of concerned authorities, either were encroached for commercial activity or with their tacit approval such activities were allowed---Authorities were directed to remove all construction beneath flyover in question and land situated between the flyover and adjacent localities---High Court further directed the authorities to remove all encroachments beneath other flyover bridges in Karachi city and also consider to plan and develop spaces underneath flyover bridges for public parks as had been done in other cities, for or other public recreation purposes but no commercial activity could be carried out therein nor any permanent construction should be raised---Petition was allowed in circumstances.

Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer Bahawalpur and others 2006 SCMR 219; Shehri: Citizen for a Better Environment and others v. Government of Pakistan and others 2009 YLR 1137; Dr. Insaf Ahmed v. Medical Superintendent C.M.C. Hospital, Larkana 2001 YLR 1088; Habib-ur-Rehman Unar and others v. Government of Sindh and others PLD 2004 Kar. 728 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 rel.

Raja Qasit Nawaz Khan for Petitioner.

Irshad Ahmed Kehar, D.A.-G. for Respondent No.1.

Muhammad Asif Malik along with Accountant of Respondent No.3, for Respondents Nos.2 and 3.

Manzoor Ahmed and Azra Moqeem for Respondents Nos.4 and 5.

Muhammad Aqil for Respondent No.6.

Syed Amjad Hussain for Respondent No.7.

Dates of hearing: 24th February, 14th June, 2012.

2013 CLC 191

[Sindh]

Before Syed Zakir Hussain, J

Mst. QASIMA BEGUM and 2 others----Applicants

Versus

ABDULLAH through Legal Heirs and others----Respondents

Civil Revision No.10 of 1998, decided on 27th November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 9---Limitation Act (IX of 1908) Art.142---Suit for recovery of possession of specific immovable property and by person dispossessed of immovable property---Limitation---Suit under section 9 of the Specific Relief Act, 1877 could be brought by any person who had been illegally dispossessed against illegal occupation, within six months of such dispossession and he would not be questioned as to the title but simply he would be required to prove his prior possession and dispossession without due course of law and such a suit for recovery of possession could even be brought against the actual owner of the suit property---Where a suit was brought by an encroacher against any person other than the actual owner, on the basis of prior possession and illegal dispossession, the same was maintainable under section 8 of the Specific Relief Act, 1877 within a period of twelve years in terms of Article 142 of the Limitation Act, 1908---Suit by an encroacher against another encroacher is maintainable but not against the actual owner as the prior possession by itself, was a title by application of the maxim/principle "possession follows title; title follows possession against the whole world except the actual owner".

Muhammad Ali Jan for Applicants.

Miss Rakshanda for Respondents.

2013 C L C 254

[Sindh]

Before Nadeem Akhtar, J

IRSHAD AHMED SHAD----Applicant

Versus

PERVEZ AKHTAR and 2 others----Respondents

C.M.As. Nos.8320 and 8321 of 2011 in Suit No.1480 of 2007, decided on 19th November; 2012.

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

----S. 5---Suit of plaintiff was dismissed for non-prosecution---

Application for restoration of suit---Limitation---Condonation of delay---Contention of plaintiff was that he had suffered paralyses and was bed ridden and during that period could not contact his counsel--Validity-Said contention could 'not be accepted---When a party engaged counsel to represent it, the matter became the responsibility of the counsel and it was not the duty of the client to follow up his case in order to apprise the counsel---Plaintiff was not entitled to discretionary relief of the court----Applications for restoration of suit and condonation of delay were dismissed , in circumstances.

Muhammad Nawaz and 3 otliiers v. Mst. Sakina . Bibi and 3 others 1974 SCMR 223; Zahid Ahmed v, Deputy Director Adjudication and 2 others PLD 2006 Kai. 252 and Khalid Saigal v. National Investment Trust Ltd. and 2 others 1984 CLC 182 rel.

(b) Counsel and Client---

----Parties were bound by the acts and omissions of their counsel---In case of any negligence on part of the counsel; parties could not claim that they were not to be held responsible.

(c) Administration of Justice---

----When a matter was dismissed or any adverse order was passed, valuable rights accrued in favour of the other side, which could not be taken away unless a justifiable, strong or sufficient cause was shown.

Badarul Alam for Applicant.

2013 C L C 280

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD ISLAM----Petitioner

Versus

SAEED AHMED BUTT and 2 others----Respondents

Constitutional Petition No.S-280 of 2011, decided on 2nd October, 2012.

(a) Pleadings---

----Person failing to prove alleged facts would not become a liar---Illustration.

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

----S. 15---Constitution of Pakistan, Art 199---Constitutional petition---Ejectment petition---Grounds---Default in payment of rent---Bona fide personal need of demised premises by landlord for his son---Concurrent findings of fact by two courts below---Constitutional petition challenging such concurrent findings--- Maintainability--- Question pertaining to appreciation of facts could not be resorted to by High Court in exercise of constitutional jurisdiction---Impugned findings being findings of fact, High Court dismissed constitutional petition in circumstances.

Saifullah v. Muhammad Bux and others 2003 MLD 480 rel.

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

----S. 15---Ejectment petition---Grounds---Bona fide personal need of demised premises by landlord---Scope---Landlord had the choice of choosing which property out of many properties he thought was suitable for his personal use.

Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 rel.

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

----Ss. 7 & 15---Ejectment petition---Pugree-holder tenant---Tenant claiming to have paid pugree to landlord---Effect---Payment of pugree, if proved, would .be treated as fixed advance and tenant would be entitled to its refund at time of his eviction.

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

----S. 10 ---Alleged refusal of landlord to receive rent---Deposit of rent in court by tenant---Validity---Tenant had not sent rent to landlord through money order before depositing rent in court---According to Ss.10(2) & 10(3) of Sindh Rented Premises Ordinance, 1979, tenant was bound to make every effort to pay rent to landlord directly, and in case of his refusal to accept rent, same must be sent to him through postal money order and in case of refusal of landlord to accept money order, tenant would be at liberty to deposit rent in court---Tenant could not deposit rent in court straightaway on refusal of landlord to accept rent without sending same to him through money order.

Muhammad Hanif v. Muhammad Ahmad PLD 1986 Kar. 16; Muhammad Ismail v. Mst. Bushra Fayyaz 1993 MLD 702; Messrs Eastern Express Co, Ltd. Karachi v. Tariq Hameed PLD 1986 Kar. 84; Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504; Messrs Abdul Ghani & Brothers v. Ghulam Nabi and others 2005 YLR 319; Shahnaz Begum v. Ikhlas Ahmad 1990 CLC 904; Islamuddin v. IV ADJ and Sessions Judge, Karachi East and others PLD 2008 Kar. 166; Hussaini v. Mukarram Ali 2006 SCMR 1483 and Muhammad Yousuf v. Mst. Quresha Begum PLD 1993 Kar. 502 ref.

S.M. Aqil Zaidi for Petitioner.

Laiq Ahmed for Respondent No.1.

Date of hearing: 24th September, 2012.

2013 C L C 291

[Sindh]

Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah, J

Mst. ISHRAT JEHAN and another----Appellants

Versus

Syed ANIS-UR-REHMAN and another----Respondents

H.C.A. No.149 of 2008, decided on 12th October, 2012.

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

----O. IX, Rr.6, 7 & O.VIII, R. 1---Order of ex parte proceedings against defendant---Filing of written statement by defendant without making application for recalling ex parte order and also remaining absent thereafter---Validity---No order for recalling ex parte order had been passed, thus, such written statement would have no legal sanctity.

Shah Bashir Alim's case 1997 MLD 2308 rel.

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

----O. XX, R. 5---Judgment of Trial Court not containing findings on issues framed---Validity---Such judgment would not be sustainable.

(c) Tort---

----Negligence---Negligence due to one's own fault---Effect---Each person, for being bound to exercise all reasonable care, would be responsible for his own fault.

(d) Tort---

----Negligence---Burden of proof---Scope---Initial onus to prove negligence would lie on plaintiff---Where evidence adduced by plaintiff found to be sufficient to call defendant to reply, then defendant would be bound to lay material facts before court---Onus of proving negligence by plaintiff would stand discharged in case of failure of defendant to do so.

(e) Tort---

----Negligence---Negligence of manufacturer and builder---Effect---Manufacturer would be liable to a person injured by his negligence---Builder of defective premises might be liable in negligence to a person having suffered injury thereby.

(1977) 2 All ER 492 (HL) and Shah Bashir Alam and 2 others v Messrs Arokey Chemical Industries Limited 1997 MLD 2308 rel.

(f) Administration of justice---

----Law leans towards adjudication on merits---Rules of procedure being meant to advance justice and preserve rights of litigants would not be interpreted in a way as to hamper administration of justice.

Police Department v. Javed Israr 1992 SCMR 1009 rel.

Farrukh Usmani for Appellant.

Abdul Wajid Wyne for Respondent No.1.

Muhammad Ishaque Memon for Respondent No.2.

Date of hearing: 14th September, 2012.

2013 C L C 316

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mrs. NAJMA VASEEM ADENWALLA----Plaintiff

Versus

Mrs. ABIDA JAWED----Defendant

Suits Nos.1702 of 2000 and 1151 of 2008, decided on 12th November, 2012.

Specific Relief Act (I of 1877)---

----Ss. 12, 39, 42 & 54---Suit for specific performance of agreement to sell, cancellation of document, declaration and injunction---Balance consideration of sale, non-deposit of---Plaintiff sought specific performance of agreement to sell and conversely defendant sought cancellation of agreement on the plea that plaintiff failed to deposit balance consideration---Validity---Mere non-deposit of balance amount in Court though would not be considered as breach of agreement but plaintiff prima facie should have come forward and deposited balance sale consideration, particularly when she was enjoying possession of suit property---Defendants were not under obligation to complete registration of sale-deed by any particular time and it was such reason that possession of suit property was handed over to plaintiff on partial payment, which constituted 60% of sale consideration, as agreed---None of the parties committed any serious breach of "terms of agreement" which could be fatal for their contractual rights---High Court deemed it proper to grant specific performance of agreement subject to payment of unpaid 40% of sale consideration on the basis of "current value" of the property, as the same was the amount which remained unpaid and defendant should not suffer on account of such delayed payment as she was neither enjoying possession of the property nor could enjoy final balance amount at relevant time---Similarly plaintiff also could not get away by paying balance amount to defendant realizing the fact that not only she enjoyed the possession of property but also enjoyed fruits of balance consideration---Suit was decreed accordingly.

Muhammad Siddiq v. Muhammad Akram 2000 SCMR 533 rel.

Muhammad Arif along with Liaquat Hussain for Plaintiff.

M. Shahid Qadeer Suharwardy and Muhammad Idrees Sukhera along with Zahid Abbas for Defendant.

Dates of hearing: 15th and 27th August, 2012.

2013 C L C 331

[Sindh]

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

ANWAR KHAN and 2 others----Appellants

Versus

FOUZIA KHAN and another----Respondents

H.C.A. No.143 of 2010, decided on 9th October, 2012.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 2, O. IX R. 9 & O.VII, R.26---Suit was dismissed for non-prosecution and application for restoration of the suit was also dismissed---One of the plaintiffs had died during pendency of suit --- Abatement of suit---Scope---Question as to whether after death of the plaintiff, proceedings would abate, primarily depended on the nature of the cause of action---Any action might abate on death of a party but cause of action might survive---Suit in the present case, was filed by three plaintiffs, one of which had died during pendency of suit, and as such right to sue remained alive---Dismissal of suit for non-prosecution, therefore, seemed to be illegal and contrary to the express provisions of Order XXII, Rule 2, C.P.C.---Provisions of Order XXII, R.2, C.P.C. had to be strictly construed and entire suit would not be taken to have abated simply because some of the plaintiffs had died whereas the legal representatives had not been brought on record---Court itself was competent to bring on record legal representatives of deceased plaintiff as list of legal heirs was attached with plaint in terms of Order VII, Rule 26, C.P.C.---High Court set aside the impugned orders---Intra-court appeal was allowed in circumstances.

Ms. Shabana Ishaque for Appellants.

Mirza Saeed Baig for Respondent No.1.

Rafiullah for Respondent No.2.

Date of hearing: 9th October, 2012.

2013 C L C 339

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD SHAFIQ---In the matter of

S.M.A. No.207 of 2008 and C.M.A No.730 of 2012, decided on 1st October, 2012.

Succession Act (XXXIX of 1925)---

----S. 278---Letter of administration, petition for---Application under S.278 was allowed, and letter of administration was ordered to be issued, after which two legal heirs of the deceased died---Effect---Application for impleading heirs of deceased after order of issuance of Letter of Administration was passed---Applicant contended that letter of administration could not be issued without impleading legal heirs of the two deceased heirs---Validity---Contention that since Letter of Administration had not been issued therefore succession application be treated as pending was incorrect---Order on the succession application was final and conclusive and issuance of Letter of Administration was merely compliance of said order---No amendment in pleadings could be allowed in a disposed matter---Under the law of succession, it was not permissible that a common petition/application be entertained for grant of succession certificate/Letter of Administration pertaining to assets of more than one deceased person, irrespective of the fact that assets were inherited by them from the same person---Under Succession Act, 1925, amendment or addition was permissible in case of subsequent discovery regarding other estate of deceased which could not be mentioned in the original succession petition---In case of death of any legal heir before issuance of Letter of Administration, legal heirs of such deceased person (legal heir) could not be made party or substituted in place of actual legal heir, and a fresh application for issuance of succession certificate is required to be filed in respect of deceased legal heir---Application for impleadment was dismissed, in circumstances.

Rehmat Mehmood v. Tariq Rasheed and others PLD 1993 Kar. 619 distinguished.

S. Masroor Ahmed Alvi for Applicant.

2013 C L C 357

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD----Appellant

Versus

Syed IQBAL HASSAN----Respondent

First Appeal No.66 of 2011, decided on 15th November, 2012.

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

----O. VII, R. 11, O. XXIII, R. 1 & O. XXXVII, Rr. 2 & 3---Subsequent suit on basis of promissory note under O.XXXVII, C.P.C. filed after withdrawing earlier suit from civil court---Defendant's application under O.VII, R. 11, C.P.C. seeking rejection of subsequent suit for having been filed by plaintiff without getting permission from court while withdrawing earlier civil suit, rejection of plaint by Trial Court being barred under O.XXII, R.1(3), C.P.C.---Validity---Defendant without obtaining leave from Trial Court to appear and defend subsequent suit was not entitled to appear and defend same as routine like other civil suits---Trial Court could not decide defendant's application under O.VII, R.11, C.P.C., when his application for grant of leave to defend subsequent suit was pending adjudication---Plaintiff's prayer in application under O.XXIII, R.1, C.P.C. was for withdrawal of earlier suit and filing a fresh summary suit, which had been accepted by civil court---Plaintiff had shown sufficient reasons for withdrawal of earlier suit having technical defects---Withdrawal of earlier suit by plaintiff was not unconditional, thus, he could file subsequent suit---High Court set aside impugned order and directed Trial Court to decide subsequent suit within specified time according to law.

PLD 2001 SC 325 and Farooque Ahmed v. Raza Muhammad PLD 2007 Kar. 182 rel.

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

----O. XXIII, R.1---Filing of fresh suit after withdrawal of earlier suit---Scope---Fresh suit could be instituted when earlier suit had been withdrawn conditionally---Principles.

S. Nasir Ali v. Feroze Din Rana 1969 SCMR 933 and Moula Bux v. Muhammad Zahid and others PLD 1990 SC 596 ref.

Ejaz Ali Hakro for Appellant.

2013 C L C 370

[Sindh]

Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah, J

Mst. RUKHSANA----Petitioner

Versus

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

Constitutional Petition No.D-3969 and Miscellaneous Nos.18559 of 2011, 13877 and 7530 of 2012, decided on 20th September, 2012.

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

----S. 372--- Constitution of Pakistan, Art.199--- Constitutional petition---Succession certificate obtained by concealing names of some of the legal heirs---Death of civil servant during service leaving behind a surviving widow (petitioner) having three children and seven other children from his pre-deceased wife---Obtaining of separate Succession Certificate by surviving widow and children of pre-deceased wife by suppressing each other's certificate---Withdrawal of pay, benevolent fund, gratuity, G.P. fund, pension and other dues of deceased by surviving widow amounting to Rs.8,81,763 on basis of Succession Certificate showing four legal heirs of deceased including herself the only widow---Surviving widow's claim for withdrawal of group insurance of deceased as her nominee---Validity---Surviving widow had obtained Succession Certificate on basis of false information by concealing names of seven surviving legal heirs of deceased, thus, she was not entitled to claim relief for not having come with clean hands---Surviving widow alone, according to rules, was not entitled to pensionary benefit of her deceased husband---High Court dismissed constitutional petition and directed authority to deposit amount of group insurance with Nazir and also directed surviving widow to deposit amount of Rs.8,81,763 (received by her from department) with Nazir, who would distribute the whole amount amongst legal heirs according to their legal shares.

Mst. Amtul Habib and others v. Mst. Mussrrat Parveen and others PLD 1974 SC 185; Mst. Shaista Younus Khan and 3 others v. Mrs. Asia Khatoon and 3 others PLD 1995 Kar. 560 and Fatima Bi v. Mehnar Gul 1999 YLR 759 ref.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 rel.

(b) Islamic Law---

----Inheritance---Succession to estate/property of deceased Muslim, opening of---Scope---Estate/property of a Muslim upon his death would automatically and immediately vest in his surviving legal heirs according to their Islamic shares without any intervention or act on part of any authority---Principles.

According to the Islamic Law of Inheritance, if someone dies, the succession to his property either movable or immovable gets automatically and immediately vested in the heirs and such vesting is not dependent upon any intervention or any act on the part of some authorities or any other estate agency. Such right in inheritance does not extinguish on the death of owner of the property/estate of inheritance; the legal heirs immediately and automatically become co-sharers in the property and would become subject of succession on acquiring ownership/proprietorship rights.

(c) Administration of justice---

----Things required by law to be done in a prescribed manner should be done in such manner---Adoption of any other course for performing such act would be deemed to be unlawful and no sanctity would be attached thereto.

Tariq Khan v. S.H.O. and 3 others 2005 YLR 1041; Messrs Muhammad Ali and Brothers and another v. Director-General L.D.A. and 3 others 2005 MLD 768; Qamar Javed v. Gul Jahan 2005 MLD 1329; Raja Muhammad Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Ijaz Ahmed v. Suriya Akhtar and others PLD 2011 Lah. 42; PESCO through Chief Executive, WAPDA House, Peshawar and 4 others v. Messrs Tariq Cold Storage through Managing Director and 3 others 2011 CLC 164; Shakeel Ahmed Baloch v. Returning Officer and another 2011 CLC 1641 and Miss Ufera Memon v. Liaqat University of Medical and Health Sciences (LUMAS) Jamshoro, through Registrar and 2 others PLD 2011 Kar. 400 rel.

Muhammad Ramzan for Petitioner.

Meeran Muhammad Shah, A.A.-G. for State along with Ali Sher Jakhrani, A.I.-G. Legal for Respondents.

Date of hearing: 16th August, 2012.

2013 C L C 386

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J

IKRAM-UL-MAJEED SEHGAL----Petitioner

Versus

PAKISTAN through Secretary Ministry of Interior and another----Respondents

Constitutional Petition No.D-2817 of 2009, decided on 13th November, 2012.

(a) Private Security Agencies Rules, 2001---

----R. 6(1)(iii)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner's request for his induction as new Director/Chief Executive of "WH" (Security Services Company) for being its shareholder---Petitioner's such request forwarded by Securities and Exchange Commission of Pakistan was rejected by Ministry of Interior on basis of reports of ISI and IB without disclosing reasons therefor---Validity---Rule 6(1)(iii) of Private Security Agencies Rules, 2001 prohibited licensee to employ any person in absence of his clearance by Government agencies including Special Branch ISI/IB---Petitioner had not sought his induction in "WH" as an employee, thus, R.6(1)(iii) of Private Security Agencies Rules, 2001 would not apply to his case---Government could not refuse such request on flimsy grounds and personal desires---Ministry had not produced any material on record to justify its refusal to clear petitioner---Ministry had not applied any such reports to petitioner, who was still working as Chief Executive of another security services company (SMS)---Last renewal of license of SMS in December, 2011 and refusal of petitioner's such request in September, 2011 would prove mala fides on part of Ministry---Mere treatment of proceedings as confidential would not dispense with requirement of S.24-A of General Clauses Act, 1897---Impugned reports lacking reasons were hit by S.24-A of General Clauses Act, 1897 providing for a speaking, well-reasoned and detailed order---High Court struck down reservations of Ministry expressed against petitioner and directed the Securities and Exchange Commission to process matter of change of management of "WH" in accordance with law.

Sindh High Court Bar Association v. Pakistan through Secretary and others Constitutional Petition No.D-3125 of 2011 and Independent Music Group, SMC v. Federation of Pakistan PLD 2011 Kar. 494 rel.

(b) Private Security Agencies Rules, 2001---

----R. 6(1)(iii)---General Clauses Act (X of 1897), S.24-A---Employing a person after getting his clearance by licensee from Government agencies---Scope---Such clearance should be based on sound, logical and reasonable grounds---Mere treatment of proceedings as confidential would not dispense with requirements of S.24-A of General Clauses Act, 1897.

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

----S. 24-A---Non-disclosure of reasons for passing an order---Consequences stated.

If the order is subject to appeal or revision (including special leave petition under Article 185(3) of the Constitution), the necessity of recording reasons is greater as without reason the appellate or revisional authority cannot exercise its power effectively inasmuch as there is no material on which it may determine whether the facts were correctly ascertained or properly applied and the decision was just and based on legal and relevant facts. Failure to disclose reasons amounts to depriving the party of the right of appeal or revision.

Ali Almani and Sameer-ur-Rehman Khan for Petitioner.

Muhammad Ashraf Khan Mughal, D.A.-G. for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 13th November, 2012.

2013 C L C 398

[Sindh]

Before Abdul Rasool Memon, J

AHMAD NASEEM----Appellant

Versus

NAUMAN ZAFFAR and another----Respondents

C.M.A. No.5879 of 2011 in F.R.A. No.35 of 2011, decided on 30th August, 2012.

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

----S. 17---Ejectment petition---Personal bona fide need of premises by landlord---Proof through attorney---Scope---Appearance of attorney of landlord as witness---Validity---Not necessary for landlord to appear in witness box, rather he could examine his attorney in order to prove ground of personal bona fide need of premises---Tenant had cross-examined landlord's attorney at length, but had not put him any question regarding his appointment as attorney---Nothing on record showed any injustice which was caused to tenant due to appearance of landlord's attorney as witness---Tenant's objection was overruled in circumstances.

2002 CLC 526; Malik Muhammad Ramzan v. Messrs General Iron Stores and others 1995 SCMR 1125; Muhammad Farrukh Siddiqui v. Riaz Ahmed Khan 2000 SCMR 1356; New Trading Company v. Trustees of Haji Sir Abdullah Haroon Waqf No.1 through General Attorney and Rent Collector 1997 CLC 640 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.

Javaid Ahmed v. Muhammad Imran Malik PLD 2011 Islamabad 30 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 rel.

M. Zahid Kabeer for Appellant.

Riaz Alam Khan for Respondent No.1.

Date of hearing: 8th August, 2012.

2013 C L C 406

[Sindh]

Before Salahuddin Panhwar, J

AZIZ AHMED----Appellant

Versus

HAKIMZADI and 7 others----Respondents

M.A. No.7 of 2010, decided on 22nd October, 2012.

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

----Ss. 373 & 372----Succession certificate---Procedure---Dispute over legal heirs---Applicant had filed application for succession certificate, which was dismissed on ground that civil court could only determine issues relating to status of legal heirs---Contention of the applicant was that even in case of dispute, Succession Certificate could still be granted under S.373, Succession Act, 1925---Validity---Section 373 of the Act related to extent of share of an applicant and was irrelevant in present case---Proceedings under the Succession Act, 1925 being summary in nature could not help in determining the issue of status of a party hence in the event of dispute regarding status of a party, the proper course would be for parties to approach the competent civil court for declaration of such disputed status and then resort to course provided under the Succession Act, 1925---Applicant, in the present case, had claimed that one of the interveners who appeared in the proceedings and claimed to be legal heir was not the actual wife of the deceased and that the deceased had divorced one of his wives, which issues could not be determined in succession proceedings---Impugnedorder whereby parties had been directed to resort to civil court regarding determination of disputed issues did not suffer from any illegality or infirmity---Appeal was dismissed, in circumstances.

Mst. Jameela Akhtar v. Public-at-Large 2002 SCMR 1544 rel.

Rukhsana Kausar and another v. Additional District and Sessions Judge Khanewal and 11 others 2000 CLC 585; Imtiaz Shamim and others v. Muhammad Irfan-ul-Haq and others 2006 CLC 1189, Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 and Malik Safdar Ali Khan and another v. Public-at-Large and others 2004 SCMR 1219 distinguished.

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

----Ss. 373 & 372---Succession certificate---Nominee is not entitled as owner of the amount subject-matter in the succession matters but is only a representative and legal, duty bound to receive the amount and distribute amongst legal heirs.

Sachal Awan for Appellant.

Agha Kashif Hussain for private Respondents.

Mukhtiar Ahmed Khanzada, State Counsel.

2013 C L C 419

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed AYOOB ALI SHAH----Applicant

Versus

Mst. RABIA BEGUM----Respondent

Civil Revision No.39 of 2006, decided on 19th October, 2012.

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

----O. XLI, R. 31---Findings of Trial Court, setting aside of---Principle---Where Appellate Court had to reverse findings of Trial Court, then same could be done only after meeting with reasoning of Trial Court.

PLD 1969 SC 617 and 2003 MLD 1280 rel.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Sale---Proof---Onus to prove---Buyer is under an obligation to prove positive assertion that money has been paid by producing receipts, pay orders, cheques etc.

PLD 1986 SC 519 rel.

(c) Registration Act (XVI of 1908)---

----Ss. 17 & 60---Qanun-e-Shahadat (10 of 1984), Art.90---Registered document---Presumption---Scope---Presumption attached to registered document goes on to prove merely extent of document having been registered but it is not a conclusive proof that the same has been executed by a particular person when execution thereof is denied by such person.

Muhammad Aslam v. Mst. Sardar Begum 1989 SCMR 704 and Lt. Muhammad Sohail Anjum Khan v. Abdul Rasheed Khan 2003 MLD 1095 rel.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.72 & 90---Suit for declaration and injunction---Execution of registered gift deed---Proof---Pardahnashin lady---Presumption---Plaintiff filed suit on the plea that she was Pardah-observing lady who never appeared before Sub-Registrar and gift deed was result of fraud---Trial Court dismissed the suit but Lower Appellate Court decreed the same---Validity---Privilege and entitlement that a Pardah-observing woman enjoyed were not available to plaintiff and hence it had become for her to prove fraud and she could not find her escape merely by mentioning that she was a Pardah-observing lady---Plaintiff might have been observant but the manner and spirit in which she attempted to utilize it, she was not entitled for such benefit as she had been executing such deeds in favour of her other son---Principles of Paradh-observing ladies were developed during earlier days when women-folks were subservient and they seldom used to come out of their houses and they were entirely dependent on male members and were also under their influence and for such reason definition of "undue influence" was provided in Contract Act, 1872---Judgments regarding Pardah-observant were mostly pronounced in early days by Indian Courts before partition whereafter same principles were followed in 1960s and 1970s by Courts in Pakistan and were still being followed---Basic element hidden in the wisdom of providing benefit to Pardah-observing ladies was element of "undue influence" which in fact could prevail even on women of current era---Element of undue influence could prevail even on men who were subservient of women---Core element was "undue influence" and not just being Pardah-observant---Even well educated women could observe Pardah but that did not mean that they were also entitled for the same principle which benefited Pardah-observing women or victim of undue influence---Plaintiff was living with her other son and plea of undue influence was also missing and therefore, no convincing findings either by Trial Court or by Lower Appellate Court were available---Trial Court failed to frame issue by using required language so that parties at relevant time could have been saddled with responsibilities to discharge their respective burdens---High Court directed Trial Court to frame necessary issues and in exercise of revisional jurisdiction set aside judgments passed by two Courts below and remanded the case to Trial Court---Revision was allowed accordingly.

Muhammad Bakhsh v. Ellahi Bukhsh 2003 SCMR 286; Iqbal Begum v. Muhammad Yousaf PLD 2003 Lah. 255; Arif Zaman v. Pir Dost Ali Shah 2005 MLD 98 and PLD 1982 SC 465 ref.

Nasrullah Khan v. Rasul Bibi 2001 SCMR 1156; Barkat Ali v. Muhammad Ismail 2002 SCMR 1938; Noor Muhammad v. Azmat-e-Bibi 2012 SCMR 1373; Saima Khatoon v. Manzar Hussain 1993 MLD 1542; Nan Fung v. Pir Muhammad Shamsdin PLD 1995 Kar. 421; Muhammad Subhan v. Bilquis Begum PLD 1994 Kar. 106; Abid Hussain v. Kalsum 2003 CLC 110 and Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui 2003 MLD 319 distinguished.

(e) Pardahnashin lady---

----Principles---Development of principles regarding Pardah-observing ladies stated.

Principles of Paradh-observing ladies were developed during earlier days when women-folks were subservient and they seldom used to come out of their houses and they were entirely dependent on male members and were also under their influence and for such reason definition of "undue influence" was provided in Contract Act, 1872. Judgments regarding Pardah-observant were mostly pronounced in early days by Indian Courts before partition whereafter same principles were followed in 1960s and 1970s by Courts in Pakistan and were still being followed. Basic element hidden in the wisdom of providing benefit to Pardah-observing ladies was element of "undue influence" which in fact could prevail even on women of current era. Element of undue influence could prevail even on men who were subservient of women.

Shamsuddin Memon for Applicant.

Naimatullah Soomro for Respondent.

Date of hearing: 19th September, 2012.

2013 C L C 437

[Sindh]

Before Muhammad Ali Mazhar, J

Mrs. SHAHIDA HUSSAIN----Applicant

Versus

KARACHI AMERICAN SCHOOL through President and others----Respondents

C.M.A. No.11083 of 2011 in Suit No.130 of 2008, decided on 8th November, 2012.

(a) Contempt of Court Ordinance (V of 2003)---

----S. 3---Civil Procedure Code (V of 1908), O.XI, Rr.14 & 21---Order for production of document by High Court---Non-compliance with such order---Effect---Neither any adverse inference could be taken nor consequences provided under O.XI, R.21, C.P.C. would apply to non-compliance with such order for being distinct from an order of discovery of document---Courts would pass orders for implementation and execution and not for merely drawing an adverse inference in case of its non-compliance---Order once passed, however, should be implemented/obeyed unless same was set aside, reviewed or recalled, otherwise same would become redundant and meaningless making administration of justice impossible---Non-compliance with such order would amount to contempt of Court---Unconditional apology tendered by contemnor before issuance of show-cause notice was accepted while directing him to comply with such order, otherwise strict action would be taken against him---Principles.

Syed Yousaf Raza Gilani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466; Justice Hasnat Ahmed Khan v. Federation of Pakistan PLD 2011 SC 680; Chinnappan v. Ramachandran AIR 1989 Madras 314 and Sultana Qamar v. Mst. Rasulan 1993 MLD 425 ref.

Chinnappan v. Ramachandran AIR 1989 Madras 314; AIR 1957 Rajasthan 367; 1993 MLD 425 and Naveed Nawazish Malik v. Ghulam Rasool Bhatti and another 1997 SCMR 193 rel.

(b) Administration of justice---

----Order of court, non-compliance with---Effect---Courts would pass orders for implementation and execution and not for merely drawing an adverse inference in case of its non-compliance---Order once passed should be implemented/obeyed unless same was set aside, reviewed or recalled, otherwise administration of justice would become impossible---Principles.

PLD 2012 SC 466; PLD 2011 SC 680 and Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

Iqbal Haider and Malik M. Eijaz for Applicant.

Abdul Ghaffar Khan for Respondents.

Ameer Haider, Advocate.

2013 C L C 450

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD YOUSUF----Petitioner

Versus

Mst. MABEEIA and 2 others----Respondents

Constitutional Petition No.S-294 of 2012, decided on 16th November, 2012.

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

----S. 5, Sched. & S.10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of Khula---Dower (haq-mehr), return of---Scope---Dispute regarding payment of dower (haq-mehr)---Wife admitted payment of dower at the time of marriage but alleged that the same was snatched from her subsequently---Wife filed suit for dissolution of marriage on the basis of Khula, which was decreed by the Trial Court in lieu of payment of dower (haq-mehr), however due to the dispute between parties regarding payment of dower, Trial Court framed an issue to the effect that whether husband had paid dower to the wife---Validity---Wife had admitted that dower was paid to her and that same was later allegedly snatched from her---Once the husband had paid dower to his wife, liability of payment of dower stood fulfilled---Even if dower was subsequently snatched by the husband, it could not be said that dower amount was not paid---Allegation made by wife that her dower amount had been snatched by the husband did not absolve her from the liability of returning the same because once dower amount was paid by the husband, payment of dower attained finality and allegedly snatched amount/article would not be termed as dower amount---Trial Court had passed decree for dissolution of marriage by way of Khula in lieu of dower (haq-mehr) but at the same time also framed an issue to the effect that whether husband had paid dower to the wife---Trial Court in such circumstances should have first decided the issue regarding payment of dower after recording evidence and then should have passed decree for granting Khula or otherwise---Case was remanded to the Trial Court with the direction to first decide the issue regarding payment of dower and then pass appropriate order with regard to grant of Khula---Constitutional petition was disposed of accordingly.

PLD 2011 Kar. 196 and 2008 CLC 587 ref.

Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272 rel.

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

----S. 5 & Sched.---Dissolution of marriage on the basis of Khula---Dower (haq-mehr), return of---Scope---Khula was normally granted subject to the condition that wife waived her right of receiving dower amount if she had not yet received the same, and upon restoration of the same to the husband if she had already received it.

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

----S. 5 & Sched.---Suit for dissolution of marriage on the basis of Khula---Dispute regarding payment of dower (haq-mehr)---Scope---Where there was a dispute as to whether husband had paid dower amount to wife or not, the Family Court was obliged to decide such issue after recording evidence.

Abdul Sattar v. Mst. Kalsoom PLD 2006 Kar. 272 rel.

Muhammad Shafiq for Petitioner.

Mansab Khan Awan for Respondents Nos.1 and 2.

Date of hearing: 8th November, 2012.

2013 C L C 476

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Secretary and another----Appellants

Versus

SHAHEEN CONSTRUCTION COMPANY through Mrs. Zeeshan Fatima and others----Respondents

High Court Appeals Nos.39 and 82 of 2012, decided on 3rd October, 2012.

Public Procurement Rules, 2004---

----R. 15--- Prequalification of prospective bidder--- Scope---Prequalification steps, adoption of---Scope---Mere prequalification of prospective bidder would not create any vested right in him to be selected directly for any prospective bid---Prospective bidder once having meted out prequalification criteria laid down for a particular work could not be ousted from participating in financial bid by knocking him down while changing prequalifying criteria and that too without any lawful justification---Procuring Agency would have discretion to decide either to adopt steps for prequalification or not---Procuring Agency would have same element of discretion even after prequalification had taken place---Illustrations stated.

Suo Motu Case No.5 of 2010 PLD 2010 SC 731; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 and A.R. Khan & Sons (Pvt.) Ltd. through Authorized Officer and 3 others v. Federation of Pakistan through Secretary Ministry of Commerce, Islamabad and 3 others 2010 CLC 1810 ref.

Khalid Javed Khan for Appellant (in HCA No.39 of 2012).

Muhammad Mushaffy for Appellant (in HCA No.82 of 2012).

Shahenshah Hussain for Respondents (in HCA No.39 of 2012).

Khalid Javed Khan for Respondents (in HCA No.82 of 2012).

Muhammad Masood Khan for Respondent No.3 and (in HCA No.39 of 2012) and for Respondents Nos.3 and 4 (in HCA No.82 of 2012.).

Date of hearing: 17th September, 2012.

2013 C L C 507

[Sindh]

Before Salahuddin Panhwar and Ahmad Ali M. Shaikh, JJ

KALI KHAN and others----Petitioners

Versus

BODLO and others----Respondents

Constitutional Petitions Nos.D-2436 of 2010 and D-250 of 2011, decided on 29th November, 2012.

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

----S. 30(b)---Suo motu revisional jurisdiction of Board of Revenue---Scope---Provincial Board of Revenue, in exercise of such jurisdiction could cancel illegal and fraudulent allotment of State land.

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

----S. 9---Jurisdiction of civil court--- Scope---Question of fraud or illegal, void and mala fide exercise of jurisdiction and power by authority concerned could be examined and determined by civil court for being court of ultimate jurisdiction.

Ghulam Muhammad and 8 others v. Sijawal and 7 others 1990 MLD 2412 and Mitho Khan v. Member Board of Revenue Sindh, and others PLD 1997 Kar. 294 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversies requiring evidence and inquiry could not be decided in such jurisdiction.

(d) Constitution of Pakistan---

----Art. 199---Specific Relief Act (I of 1877), Ss.39 & 42---Constitutional jurisdiction of High Court---Scope---Challenge/ cancellation of sale-deed---Remedy against registered sale-deed lay under S.39, Specific Relief Act, 1877, thus, same could not be challenged or cancelled under constitutional jurisdiction.

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

----O. IX, R.13---Ex parte decree in absence of necessary party, passing of---Scope---Such decree for being violative of principles of natural justice could not be passed.

Amir Jamal and others v. Malik Zahoorul Haque and others 2011 SCMR 1023 rel.

Sarfraz A. Akhund for Petitioner (in Constitutional Petition No.D-2436 of 2010).

Nisar Ahmed Bhanbhro for Respondents (in Constitutional Petition No.D-2436 of 2010).

Nisar Ahmed Bhanbhro for Petitioners (in Constitutional Petition No.D-250 of 2011).

Zulfiqar Ali Sangi, State Counsel for Respondents (in Constitutional Petition No.D.250 of 2011).

Date of hearing: 7th November, 2012.

2013 C L C 518

[Sindh]

Before Ghulam Sarwar Korai, J

Messrs SHABIR TILES AND CERAMICS LIMITED through Company Secretary----Applicant

Versus

Messrs CACHE SYSTEMS PAKISTAN through Sole Proprietor----Respondent

Civil Revision Application No.18 of 2009, decided on 24th October, 2012.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of pleadings---Principle---Suit filed by proprietorship concern through its Sole Proprietor---Plaintiff (proprietary concern) sought amendment in title of plaint by correcting its name and description---Trial Court declined said amendment but Lower Appellate Court allowed the same---Validity---Suit was filed by proprietorship concern through its sole proprietor, who also verified the plaint---Application for amendment in title of plaint showed that neither plaintiff was changed therein nor any new party was added or character of suit disturbed---Misdescription in title of plaint appeared to be bona fide typographical error, which could be corrected by amendment in its title even with red link and such amendment would not involve substitution or addition of parties---No legal infirmity was found in judgment passed by Lower Appellate Court, which was well reasoned and did not warrant interference by High Court---Revision application was dismissed in circumstances.

Messrs PUB Corporation v. Water and Power Development Authority through Managing Director and 2 others PLD 2009 Kar. 139 fol.

Altaf Hussain for Applicant.

Khalid Javed for Respondent.

Date of hearing: 24th October, 2012.

2013 C L C 535

[Sindh]

Before Muhammad Ali Mazhar, J

Syed WAQAR HAIDER ZAIDI----Applicant

Versus

Mst. ALAM ARA BEGUM----Respondent

C.M.A. No.3552 of 2009 in Suit No.285 of 2003, decided on 7th December, 2012.

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

----O. XII, R. 6---Judgment on admission, passing of---Scope---Duty of court to examine entire plaint or written statement in order to find out nature of admission---Such admission must be clear, specific, unambiguous, definite, categorical and undeniable---Principles.

Amir Bibi v. Muhammad Khursheed 2003 SCMR 1261; G.R. Syed v. Muhammad Afzal 2007 SCMR 433; Messrs Gerry's International (Pvt.) Limited v. Messrs Qatar Airways PLD 2003 Kar. 253 and McDonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. 1996 SCMR 696 rel.

Naseer Ahmed and another v. Asghar Ali 1992 SCMR 2300; AIR 1941 Bom. 144; 1983 CLC 74 and 1993 MLD 1287 rel.

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

----O. XII, R. 6---Admission in written statement of first suit before its consolidation with the second suit---Judgment in consolidated suits on basis of such admission, passing of---Scope---Party would be bound by admission recorded in pleadings in which same was filed, but not in any other suit---Mere consolidation of suits could not change status of written statements filed separately in both suits as those would remain two distinct and separate written statements---Written statement of first suit could not be utilized in second suit for purposes of O.XII, R.6, C.P.C.---Principles.

Naseer Ahmed and another v. Asghar Ali 1992 SCMR 2300 and AIR 1941 Bom. 144 rel.

Kh. Shams-ul-Islam for Plaintiff.

M.M. Aqil Awan for Defendant.

Date of hearing: 12th October, 2012.

2013 C L C 544

[Sindh]

Before Niamatullah Phulpoto, J

NAVEED ANJUM----Petitioner

Versus

ALI RAZA and 10 others----Respondents

Civil Revision Petition No.S-57 of 2012, decided on 17th December, 2012.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Dismissal of suit for non-production of evidence despite successive adjournments---Scope---Suit of plaintiff was dismissed on the ground of non- production of evidence despite many adjournments under provisions of O.XVII, R.3, C.P.C.---Appellate Court set aside said order of Trial Court, which order of Appellate Court was assailed by the defendants---Validity---From perusal of case diary it was evident that Presiding Officer was on causal leave when the case was adjourned prior to date of dismissal---Application for adjournment was also submitted by plaintiffs on the date of dismissal---Such dismissal of suit under O.XVII, R.3, C.P.C. was not warranted in law as the case was not adjourned on the previous date at the request of the plaintiffs---In the present case, after framing of issues, official witnesses were examined by the plaintiffs and documents were brought on record and therefore, the Trial Court was required to discuss said evidence brought on record by plaintiff but no such finding was given by Trial Court---Appellate Court had rightly set aside order of Trial Court---Revision was dismissed.

Qutub-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 rel.

Abdul Karim Surahio for Petitioner.

Abdul Hameed Khan for Respondents Nos.1 to 8.

2013 C L C 562

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Lt. Col. (R) MUHAMMAD YOUNIS----Appellant

Versus

Mrs. ISMAT MEHDI----Respondent

F.R.A. No.3 of 2012, decided on 18th October, 2012.

(a) Oaths Act (X of 1873)---

----S. 13---Witness---Omission to take oath---Effect---Such omission, being a curable technical irregularity, would not invalidate proceedings or render evidence of such witness inadmissible---Principles.

Mere omission to take oath would not invalidate any proceedings or render the evidence inadmissible and at the most it can be treated as technical irregularity, which is always curable. Section 13 of the Oaths Act, 1873 is only one of the many instances indicating the settled policy of the Legislature to prevent justice being defeated by a technical irregularity. It maintains the legal obligation of a witness to speak the truth, while at the same time it provides against the possible failure of justice through a technical irregularity.

Obaidullah Khan v. Umer Hayat Khan and another 2011 YLR 1731; Jaffar Ali v. Muhammad Tufail 1991 MLD 48; Nazir Ahmed v. District Council 2003 YLR 2052 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 ref.

Adam Limited, Karachi v. Arif 1998 CLC 989 rel.

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

----S. 17---Ejectment petition---Bona fide personal need of demised premises by landlord---Scope---Tenant's plea that landlord owned other properties at other locations---Validity---Landlord would not be required to decide suitability of his/her use and occupation at dictates of tenant or anybody else as same was his/her absolute choice and prerogative.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Muhammad Mujibur Rahman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Muhammad Mohsin Malik v. Mst. Qamar Jehan and 2 others 2009 YLR 289; Mrs. Tahira Dilawar Ali Khan v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50; Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 and Mst. Salaman v. Bashir Ahmed 2007 YLR 2440 ref.

Muhammad Sadiq Hidayatullah for Appellant.

Waqar Muhammad Khan Lodhi for Respondent.

Date of hearing: 30th May, 2012.

2013 C L C 571

[Sindh]

Before Munib Akhtar, J

MUHAMMAD HANIF and others----Applicants

Versus

KARACHI ELECTRIC SUPPLY COMPANY LIMITED and another----Respondents

C.M.As. Nos.3027 and 3055 of 2012 in Suit No.329 of 2012, 3029 and 3057 of 2012 in Suit No.330 of 2012, 3032 and 3059 of 2012 in Suit No.331 of 2012, 3036 and 3061 of 2012 in Suit No.332 of 2012, 3128 of 2012 in Suit No.343 of 2012, 2868 of 2012 in Suit No.315 of 2012; 2865 of 2012 in Suit No.309 of 2012 and 3111 of 2012 in Suit No.359 of 2012, decided on 17th April, 2012.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 20, 45 & 21---Consumer Service Manual, Chapters 8 & 14---Electricity Act (IX of 1910), S.20---Authority of Electricity Supply Company to disconnect supply of electricity to consumers if they use the sanctioned load for standby purposes or to obtain an undertaking from such consumers that they will utilize the sanctioned load up to a stipulated minimum---"Use" of the sanctioned load for standby purposes was just as much "use" as was "use" of the load in the normal course and "use" for standby purposes was not "non-use"---Scope and extent of Chapter 8 clause 8.1 of the Consumer Service Manual was broad enough to include a situation where the power supply from the licensee was being used for standby purposes---In a standby arrangement, the supply of electricity was required, though intermittently and sporadically as and when other power supply falters, fails or needs to be supplanted---Electricity Supply Company could only derive power to disconnect supply to a consumer who was using sanctioned load for standby purpose in clause 8.1 of the Chapter 8 of the Consumer Service Manual which required factual inquiry and called for a proper determination to be made specifically in such regard by the Electricity Supply Company and such determination would have to be a reasoned order---Electricity Supply Company also could not disconnect power supply without giving final notice envisaged in clause 14.10 of Chapter 14 of the Consumer Service Manual---Electricity Supply Company, in circumstances, was in breach of mandatory provisions of law, and principles of natural justice and therefore, the exercise or threat of disconnection was unlawful and improper.

Standard Chartered Bank v. Karachi Electric Supply Corporation Limited PLD 2001 Kar. 344 ref.

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

----S. 20---Power of Electricity Supply Company to disconnect electricity under provisions of section 20 of the Electricity Act, 1910---Scope stated. [p. 589] D

(c) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 45---Interpretation of S.45 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997.

Section 45 must be given a purposive rather than literal interpretation. Legislative intent is clear, anything contained in or done under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was to prevail and have an overriding effect over anything contained in any other law, rule or regulation. The words "cease to have any effect" must be taken to mean only that the earlier provision, to the extent of the inconsistency, goes into abeyance and remains suspended, without being repealed, as long as the provision of the Act or any rule or regulation framed thereunder remains in field, and this suspension arises on and from the date on which the inconsistency arises. This would apply even in the rule of or regulation framed under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 being inconsistent with a provision in primary legislation such as for example the Electricity Act, 1910; the latter would remain in abeyance as long as the rule or regulation continues to be in force.

(d) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 45---Consumer Service Manual, Chapters 8 & 14 ----Electricity Act (IX of 1910), S. 20---Applicability/Scope of S.20 of the Electricity Act, 1910 in view of S. 45 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---When S.20 of the Electricity Act, 1910 was compared with provisions of Chapters 8 & 14 of the Consumer Service Manual, it appeared that there were certain points of inconsistency between them---To the extent that the provision were inconsistent, the provisions of the Consumer Service Manual must prevail and those of S.20 of the Electricity Act, 1910 must be regarded as having been suspended or gone into abeyance---Contention that S.20 of the Electricity Act, 1910 and Chapters 8 and 14 of the Consumer Services Manual independently confer separate and discreet powers upon an Electricity Supply Company could not be accepted---Said provisions have to be read together and in case there was any inconsistency between them, the Consumer Service Manual must be applied---Procedure for disconnection of electricity supply, if a consumer uses the sanctioned load for standby purpose, must be that laid down in the Consumer Service Manual and not section 20 of the Electricity Act, 1910.

(e) Interpretation of Statutes---

----Interpretation of statutes, especially those dealing with technical matters, should be that it was "always speaking", i.e. their meaning should be adapted and developed (if at all possible) to take into account subsequent developments.

(f) Natural Justice, principles of---

----Applicability---Principles of natural justice must be read into every statutory provision and the exercise of any statutory power (unless there were compelling reasons or express provisions to the contrary).

Arshad Tayebaly, Amel Khan Kansi and Taimur Mirza for Plaintiffs (in all suits except Suit No.35 of 2012).

Asim Mansoor for Plaintiff (in Suit No.359 of 2012).

Abid Shahid Zuberi and Ayan Mustafa Memon for KESC (in all suits).

Dates of hearing: 3rd, 5th, 6th and 10th April, 2012.

2013 C L C 606

[Sindh]

Before Shahid Anwar Bajwa and Nisar Muhammad Sheikh, JJ

Ch. FAZAL MUHAMMAD----Appellant

Versus

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

H.C.A. No.7 of 2011, decided on 4th October, 2012.

Arbitration Act (X of 1940)-

----S. 17---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court Appeal---Arbitration award, setting aside of---Arbitrator appointed without authorization and consent of both parties---Effect---Appellant was aggrieved of judgment and decree passed by Single Judge of the High Court, whereby award passed by sole arbitrator against respondent was set aside---Validity---Respondent authority was neither competent nor authorized to appoint sole arbitrator or refer the matter to arbitration without consent of both the parties---Office memorandum in question could not give jurisdiction to sole arbitrator and as such award passed by him on an invalid reference by itself was void---Such award could not become valid merely by reason of knowledge of or appearance in arbitration proceedings---Sole arbitrator had no jurisdiction in the matter of invalid reference, therefore, subsequent proceedings resulting in award were of no legal effect and thus award itself was void having been passed without jurisdiction---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court, whereby award passed by sole arbitrator was set aside---Judgment and decree passed by Single Judge of High Court was maintained---Intra-Court Appeal was dismissed in circumstances.

Chhabba Lal v. Kallu Lal AIR (33) 1946 Privy Council 72 and Deep Narain Singh v. Dhanesh Wari AIR 1960 Patna 201 ref.

Mst. Shamim Akhtar v. Najma Baqai PLD 1977 SC 644 distinguished.

Kamal Azfar for Appellant.

Muhammad Ashraf Khan Mughal, D.A.-G. for Respondents Nos.1, 2 and 4.

Mustafa Lakhani for Respondent No.3.

Yousuf Iqbal for Respondents Nos.5 and 6.

Date of hearing: 6th and 7th March, 2012.

2013 C L C 622

[Sindh]

Before Sadiq Hussain Bhatti, J

AAMIR WAHEED----Appellant

Versus

Mrs. HALEEMA AKHTAR----Respondent

F.R.A. No.9 of 2009, decided on 11th October, 2012.

Cantonments Rent Restriction Act (XI of 1963)-

----Ss. 17(4) & 24---Constitution of Pakistan, Art.23---Ejectment of tenant ---Personal need of landlady---Ejectment of tenant from shops in question was sought on the plea that landlady wanted premises for her own business through her son---Validity---Son of landlady was not a jobless person and had been employed on lucrative salary abroad but landlady was calling him back to start a business for her in demised shops so that he could support and look after her and his father---Placing of any unreasonable restriction on landlady would tantamount to offending her fundamental rights guaranteed under Art.23 of the Constitution---Interpreting provisions of S.17(4)(b)(i) of Cantonments Rent Restriction Act, 1963 in a way that landlady could not file ejectment application for eviction of tenant for using premises jointly with her family members or any other person, would amount to negation of property rights as Pardanashin lady or critically sick person would be deprived of benefits of S.17(4)(b)(i) of Cantonments Rent Restriction Act, 1963---High Court maintained eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Muhammad Yousuf v. Noor Jahan Bi through Attorney 2000 CLC 1252; Ch. Akbar Hussein v. Zehra Bai 2002 SCMR 789 and Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz 1994 SCMR 355 distinguished.

Jehangir Rustam Kakalia through LRs v. Messrs Hashwani Sales and Service (Pvt.) Ltd. 2002 SCMR 241 ref.

Nazar Hussain Dhoon for Appellant.

Munir A. Malik for Respondent.

Date of hearing: 26th September, 2012.

2013 C L C 640

[Sindh]

Before Abdul Rasool Memon, J

WAJI QAMAR-UZ-ZAMAN----Applicant

Versus

NAZIMUDDIN AHMED----Respondent

C.M.A. No.903 of 2011 and Civil Revision Application No.49 of 2011, decided on 25th September, 2012.

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

----S. 12(2), O. XXXVII, Rr. 2 & 3---Suit for recovery of money on basis of document having title of promissory note but also containing the word agreement in its contents---Application for grant of leave to defend suit---Defendant's plea that such document filed was not negotiable instrument, thus, suit on its basis under O.XXXVII, R.2, C.P.C. was not maintainable---Non-appearance of defendant in court after grant of conditional leave resulted in passing of decree by Trial Court on 31-8-2006---Defendant's application under S.12(2), C.P.C. filed on 20-10-2012 for setting aside such decree alleging same to be without jurisdiction---Plaintiff's plea that application under S.12(2), C.P.C. was barred by time---Dismissal of application under S.12(2), C.P.C. by Trial Court---Validity---Defendant had disputed jurisdiction of Trial Court at very initial stage and also after passing of impugned decree through application under S.12(2), C.P.C.---Regarding document in question, which was claimed by the plaintiff to be a negotiable instrument, Trial Court had not given any specific findings neither while assuming jurisdiction under summary chapter nor while dismissing application under S.12(2), C.P.C.---Question whether Trial Court had jurisdiction to pass impugned decree, if found to be correct, would mean that the whole edifice built on such defective proceedings was bound to crumble down---Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand thereagainst---High Court remanded case back to Trial Court to decide question as to whether such document fulfilled requirement of being a promissory note under law.

Government of Sindh through Chief Secretary and others v. Khalil Ahmed and another 1994 SCMR 782; Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; National Bank of Pakistan v. Khairpur Textile Mills Ltd. and others 2001 CLC 1187; Iffat Jabeen v. District Education Officer (MEE), Lahore and another 2011 SCMR 437; Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783 and Jamil Ahmad Sheikh and another v. District Officer (Revenue), Kasur PLD 2006 Lah. 597 ref.

Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842 rel

(b) Jurisdiction---

----Question of---Duty of Court/Tribunal---Scope---Mandatory for Court/Tribunal to attend and decide at first instance such question even if same was not raised by a party to suit---Order passed or act done by court/tribunal not having jurisdiction to entertain suit would be without jurisdiction---Such question could be raised even at a subsequent stage.

Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 rel.

(c) Void order----

----Limitation against---Scope---Limitation would not run against a void order, rather same could be ignored and might not be allowed to stand thereagainst.

Masood Anwar Ausaf for Applicant.

S. Irtaza H. Zaidi for Respondent.

Date of hearing: 6th September, 2012.

2013 C L C 659

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD AQIL through Legal Heirs----Petitioner

Versus

Mst. SHABBAN BIBI through Legal Heirs and 3 others----Respondents

Second Appeal No.78 of 2012, decided on 26th September, 2012.

(a) Specific Relief Act (I of 1872)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.59---Suit for specific performance of sale agreement---Denial of execution of such agreement by defendant alleging same to be manipulated/fake as his thumb-impression thereon was obtained by fraud on pretext of obtaining loan from a Finance Corporation---Report of Handwriting Expert and his statement as a court witness showing that two different typewriters had been used in making such agreement---Effect---Plaintiff had not cross-examined Handwriting Expert despite having availed several opportunities---If use of two different typewriters had been necessitated, then plaintiff should- have stated so in examination-in-chief or at any other stage in evidence -- Plaintiff had not examined person who typed such agreement on two different typewriters---Suit was dismissed on ground that sale agreement was forged and manipulated.

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

----S. 100---Second appeal---Concurrent findings of fact by courts below holding agreement to be fake and fabricated---Effect---Such findings could not be disturbed in second appeal without showing same to be vitiated by an error of law.

Lala Suraj Bhan and others v. Hafiz Abdul Khaliq AIR 1941 Lah. 195 rel.

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

----O. XXIII, R. 1(2)---Withdrawal of suit with permission to file fresh suit, application for---Order of Trial Court disposing of suit as withdrawn---Defendant's objection in fresh suit that Trial Court had not granted permission sought by plaintiff---Validity---Intention of plaintiff was clear from such application that he wanted to file another suit---Omission of Trial Court to mention that permission to file fresh suit was granted, would not be fatal---Fresh suit was not incompetent merely because of such omission---Defendant's objection was overruled in circumstances.

1995 CLC 183; Bhai Chanan Singh v. Committee for Management of Gurdwara Mai Malan through Balbir Singh AIR 1941 Lahore 192; Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141; Mst. Walayat Khatoon v. Khalil Khan and another PLD 1979 SC 821; Zafar Ahmed v. Mst. Hajran Bibi PLD 1986 Lah. 399 and Mst. Hanifan Bibi v. Lal Din through LRs and another 2000 CLC 572 ref.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933 rel.

Mrs. Mehrunnisa for Appellant.

Muhammad Ali Waris Lari for Respondent No.2.

Date of hearing: 19th September, 2012.

2013 C L C 702

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J

Mst. NOOR KHATOON and others----Appellants

Versus

Messrs HABIB BANK LTD. and another----Respondents

First Appeal No.50 of 2012, decided 21st December, 2012.

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

----O. II, R.2---Omitting of claim---Effect---If appellant omits to sue or relinquish any portion of his rights, entitlements and claims, he is precluded from re-agitating such claim or grounds in subsequent proceedings or appeal.

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

----O. XXI, R.89---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree---Setting aside of sale---Principle---Act of Court---Banking Court disposed of all applications while confirming auction proceedings in favour of auction-purchaser and claim of objection petitioner was misconceived---Effect---Inadvertence, mistake, error or irregularity on the part of court could not take away rights of auction-purchaser which accrued in his favour when he deposited bid amount as provided under law---Both applications under Order XXI, Rule, 89, C.P.C. were filed without substantial compliance of Order XXI, Rule 89 1)(a) and (b) C.P.C. and it could be considered as if no such applications had been preferred---High Court declined to interfere in the order passed by Banking Court, whereby objections petitions were dismissed and sale was confirmed in favour of auction-purchaser---Appeal was dismissed in circumstances.

Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan PLD 1987 SC 512; United Bank Limited v. Messrs A.Z. Hashmi (Pvt.) Limited 2000 CLC 1438; Tribhovandas v. Ratilal AIR 1968 SC 372; Unicom Enterprises v. Banking Court No.5 2004 CLD 1452 and Lutfur Rahman v. Mst. Tahera Khatun and others PLD 1961 Dacca 303 ref.

Muhammad Yaseen Azad for Appellants.

Nemo for Respondent No.1.

Ms. Sana Akram Minhas for Respondent No.2.

Date of hearing: 4th December, 2012.

2013 C L C 739

[Sindh]

Before Aftab Ahmed Gorar, J

SINGER PAKISTAN LIMITED----Petitioner

Versus

ARSHAD RIAZ FAZAIL and 2 others----Respondents

Constitutional Petitions Nos.S-167, 168, 169 of 2011, decided 30th November, 2012.

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

----S. 8---Constitution of Pakistan, Art.199---Constitutional petition---Fair rent, fixation of---Concurrent findings of fact by two courts below---Tenant was aggrieved by fixation of fair rent by Rent Controller which was maintained by Lower Appellate Court---Validity---Tenant had been in possession of premises in question since long when cost of land as well as that of construction was so nominal in comparison to prevalent cost of land and construction etc., even taxes were increased and premises was situated in heart of the city---High Court in exercise of Constitutional jurisdiction declined to interfere in concurrent findings of fact by two courts below---Petition was dismissed in circumstances.

PLD 1993 Kar. 137; 1991 CLC 351; 1995 CLC 202; 1991 CLC 351; 2010 CLC 151; 1992 MLD 1588 and PLD 1987 Kar. 541 distinguished.

Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others PLD 2005 Kar. 554 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 rel.

Syed Shahid Hussain for Petitioners.

Khalid Mahmood Dhoon for Respondent No.1.

Date of hearing: 14th November, 2012.

2013 C L C 762

[Sindh]

Before Habib-ur-Rehman Shaikh, J

ARIF NAWAZ----Petitioner

Versus

Mst. RABIA and another----Respondents

Constitutional Petition No.S-501 of 2012, decided 29th August, 2012.

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

----S. 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Failure of pre-trial proceedings---Power of Family Court to pass decree without examining witnesses---Scope---Plaintiff/wife had filed suit for dissolution of marriage (khula) and after pre-trial proceedings had failed, Family Court decreed her suit without examining any witnesses---Contentions of defendant/husband were that Family Court had not considered his written statement and decreed the suit of plaintiff/wife without examining any witnesses, and that his articles were still in possession of the plaintiff/wife---Validity---Family Court was empowered to decide the matter after failure of pre-trial proceedings without examining any witness---Defendant/husband could file a suit for recovery of his articles before the competent court of law---Constitutional petition was dismissed accordingly.

Gulshan R. Dayo for Petitioner.

2013 C L C 767

[Sindh]

Before Muhammad Ali Mazhar, J

BOC PAKISTAN LIMITED----Plaintiff

Versus

NATIONAL GASES (PVT.) LIMITED----Defendant

C.M.A. No.5758 of 2012 in Suit No.1056 of 2010, decided 18th January, 2013.

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

----O. XXXVII R. 3---Arbitration Act (X of 1940), S.34---Suit for recovery of money---Dishonouring of cheque---Stay of proceedings in presence of an arbitration agreement between the parties---"Dispute"---Scope---Defendant-company was proceeded ex parte whereafter it filed application under S.34 of the Arbitration Act, 1940 for stay of proceedings in presence of an arbitration clause in the agreement between the parties---Contention of the defendant was that the agreement between the parties stipulated that all disputes be referred to arbitration, therefore, proceedings of the suit should be stayed---Validity---Defendant, in the application had only relied upon the clause of the agreement which contained general terms and conditions but failed to point out any dispute---Dishonouring of cheque was an independent cause of action and section 34 of the Arbitration Act, 1940 did not apply to stay the suit---Neither the issuance of the cheque was disputed nor its dishonouring and mere dishonouring of cheque due to insufficiency of funds did not create any dispute which was to be resolved through arbitration---When there was no dispute, there could be no arbitration and thus it would be irrational and illogical to stay the proceedings as the dispute was non-existent---Application for stay in proceedings was dismissed, in circumstances.

Associated Agencies Ltd., and another v. Industrija Masina/Tractora PLD 1993 Kar. 459; Messrs Cepcon (Pvt.) Ltd. v. Messrs Rizwan Builders Ltd. 1990 MLD 2027; Mrs. Rubby Hameedullah and 3 others v. Dr. Arif and 4 others and 2010 YLR 3331 Director Housing, A.-G.'s Branch Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988 distinguished.

Mrs. Suriya Waseem Usmani v. L&M International (Pvt.) Ltd. 2002 CLD 624 ref.

Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Asif Cotton Ginners and 5 others 1995 CLC 1024; 2001 CLC 1156; 1999 CLC 1841; PLD 1958 (W.P.) Lah. 208; 1988 CLC 1350 and PLD 1993 SC 42 rel.

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

----S. 34---Application for stay of proceedings in presence of an arbitration agreement between the parties--- Scope--- Essential ingredients---Dispute must be specified in an application under S.34 of the Arbitration Act, 1940---Party making application had to satisfy the court firstly that there was an agreement to refer, secondly that the suit related to any matter agreed to be referred to arbitration and thirdly that there was a "dispute" between the parties which was covered by the agreement; and unless this was shown, the suit could not be stayed---In a dispute that arises on basis of an agreement which contained an arbitration clause, mere fact that the defendant was not prepared to pay the amount for which he was liable under the agreement, did not mean that there was a "dispute" between the parties---When an application is moved under S.34 of the Arbitration Act, 1940 for stay of proceedings and the defendant fails to state the "dispute" between the parties, but makes only a reference to the arbitration clause, said shortcoming was sufficient to cause dismissal of the application---Essential consideration weighing with the court in refusal was on its satisfaction, there were no sufficient reasons for making reference to arbitration and substantial miscarriage of justice would take place or inconvenience would be caused to party if stay is granted.

PLD 1958 (W.P.) Lah. 208; 1988 CLC 1350 and PLD 1993 SC 42 rel.

Atif Choudhry for Plaintiff.

Abdul Qadir for Defendant.

Date of hearing: 11th December, 2012.

2013 C L C 780

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD HUSSAIN----Petitioner

Versus

MUHAMMAD SUFIAN RIYAZ and 2 others----Respondents

Constitutional Petition No.431 of 2010, Miscellaneous Nos.5302 and 5303 of 2012, decided on 5th November, 2012.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Ejectment petition was allowed concurrently---Contention of tenant was that landlord had refused to receive rent after which he deposited the same with Rent Controller; and therefore, he was not a wilful defaulter---Validity---Initially burden of proof would be on the landlord to prove that tenant had not paid rent---Landlord, in the present case, filed affidavit wherein he stated that rent was not tendered to him and in such circumstances when landlord disputed the tender of rent to him, onus of proof shifted to tenant and he was required to affirmatively prove that he had paid rent during the disputed period---Contention of tenant that he had paid rent through money order to landlord's mother which he sought to establish through production of photocopies of money order coupons; did not indicate that the same were delivered to the landlord's mother or that she refused to receive rent---Original coupons of money order were not produced by tenant---Mere receipt of remittance of money order which was a photocopy, could not be treated as an authentic document to prove that money order was remitted---Deposit of rent in office of Rent Controller in absence of any refusal by landlord would not be a valid tender in the eyes of law---Orders of courts below were justified---Constitutional petition was dismissed, in circumstances.

Muhammad Asif Khan v. Shaikh Israr 2006 SCMR 1872 and Bashir Ahmed v. Messers Roots School Network 2011 SCMR 290 ref.

Zafarullah Khan v. Abu Bakar 1995 CLC 23 and Jawaid Ashraf Khan v. Mst. Suriya Begum 1999 MLD 2886 distinguished.

Muhammad Suleman v. Messrs Alvi Brothers 1991 CLC 1068 rel.

Mazhar-ul-Islam for Petitioner.

Shaikh M. Mushtaq for Respondents.

Date of hearing: 4th October, 2012.

2013 C L C 792

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

SHAHNAWAZ MALLAH and 2 others----Petitioners

Versus

RAZA MUHAMMAD BROHI and 8 others----Respondents

Constitutional Petition No.D-338 of 2010 and C.M.A. No.872 of 2010, decided on 19th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed fact could not be resolved in constitutional jurisdiction---Purpose of said jurisdiction was to provide an expeditious remedy against an illegal action of an authority which could be proved without elaborate inquiry into disputed/complicated fact---Principles.

Disputed fact cannot be resolved in writ jurisdiction. Constitutional jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established without elaborate inquiry into the complicated or disputed fact, therefore, one would not be justified in questioning jurisdiction of High Court under Article 199 of the Constitution, when the petitioner, prima facie, established illegality of action of executive or other authority without elaborating any such inquiry.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot meant and used as play ground handed over by Municipal Administration to respondent (private person) on the basis of possession certificates---Construction of commercial plaza on such plot by respondent---Validity---Record showed that respondent had been issued five possession certificates at different times by Administrator Town Committee, Nazim Union Council and Mukhtiarkar---Nothing was available on record to show payment of any sale consideration or deposit of mutation fee in respect of such plot by any body---Government had imposed ban on allotment of State land at relevant time, thus, Administrator, Nazim and Mukhtiarkar, though not having powers to issue such certificates, had issued same illegally during ban period---Administrator had no power to use any amenity plot reserved for public purpose for any other private purpose---Such being a case of malfeasance by Administrator, Nazim and Mukhtiarkar, thus, High Court could correct such illegality and save general public from nuisance of such types of officers, who had no respect of law---Respondent on one hand contended that he had no concern with such plot, while on the other hand he had procured registered sale deed in respect thereof during pendency of constitutional petition---Such certificates had no legal character---Allotment of amenity plot for a purpose other than amenity would be violative of law and negation of right of all citizens, who had right to enjoy and avail benefit of such facility---High Court declared such certificates and subsequent proceedings on basis thereof as illegal and of no legal effect and directed Deputy Commissioner to take over possession of such plot and keep same for playground with all necessary requirements for use of citizens of area and ensure that its status as amenity plot would remain unchanged.

Jam and others v Taluka Nazim Taluka Municipal and others 2010 CLC 860 rel.

Punjab Small Industries Corporation v. Ahmed Akhter Cheema 2002 SCMR 549; M.A. Hamid Ali Bux v. City Government PLD 2003 Kar. 162 and Lahore Cantonment Cooperative Housing Society Limited v. Dr. Nusratullah Choudhery and others PLD 2002 SC 1068 distinguished.

(c) Administration of justice---

----Wrong or an illegality could not be treated as legality---Principles.

An illegality/wrong continues to be an illegality/wrong and multiplicity whereof does not change the character and nature of such an illegality and on any count, it cannot be treated as legality.

(d) Administration of justice---

----Action taken by a person not having the authority to take the same would be null and void under law.

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

----S. 55---Title---One cannot give a better title than what he holds.

(f) Administration of justice---

----What one could not obtain directly, could not get the same indirectly.

(g) Constitution of Pakistan---

----Arts. 189 & 201---Judgment of Supreme Court and High Court---Binding effect---Scope.

Judgment of High Court and Supreme Court to the extent it decides a legal position, question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc., is not only binding on all subordinate courts, tribunals, but is also biding on all public and statutory functionaries etc., unless of course, such decision is revisited by the court in review, revision appeal or a larger bench has taken a different view.

(h) Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot, allotment of---Scope---Allotment of amenity plot for a purpose other than amenity would be violative of law and negation of right of all citizens, who had right to enjoy and avail benefit of such facility.

(i) Administration of justice---

----Superstructure founded on illegality would be bound to collapse.

Pervez Ali Siyal for Petitioners.

Ghulam Shabeer Shar for Respondent No.1.

Liaquat Ali Shar, Addl. A.-G. Sindh, Imtiaz Ali Soomro, Asstt. A.-G. Sindh along with Muhammad Abbass Baloch, Deputy Commissioner, Khairpur, Bashir Ahmed Lashari, Town Officer, T.M.A. Sobhodero, Khalid Hussain Makhdoom, PDSP on behalf of S.S.P., Khairpur, Khalid Memon, S.H.O. Police Station Ranipur.

2013 C L C 804

[Sindh]

Before Syed Zakir Hussain, J

GOVERNMENT OF SINDH through Secretary Home Department and another----Applicants

Versus

M.J.A. GAZDAR through L.Rs. and others----Respondents

Civil Revision Application No.204 of 2005 and C.M.A. No.3366 of 2008, decided on 23rd September, 2010

(a) Suit for damages---

----Forcible and wrongful confinement---Plaintiff who fell in mental sickness was taken to the hospital for treatment, where he remained under treatment for two days---Plaintiff being aggrieved with such treatment and considering the same as confinement, filed suit for damages---Trial Court decreed the suit and granted Rs.24,000 as damages in favour of the plaintiff and against the defendants---Appellate Court below upheld judgment and decree passed by the Trial Court---Validity---Plaintiff remained in hospital for two days and his claim that he was under confinement, was not established---No record was produced by the plaintiff to prove that he was illegally and forcibly taken or admitted in hospital; and he had no mental sickness needing any treatment in the hospital at the relevant time---Defendants appeared to have acted bona fide and no evidence was available against their malice or ill designs thereagainst---Most of the defendants, including the Medical Officers seemed to have had no reason to forcibly keep the plaintiff in the mental hospital and released him of his such presumptive confinement after two days---Bare words of the plaintiff could hardly serve the purpose of law applicable to claim the suit---Trial Court, believed the plaintiff, without applying its mind and looking into the facts leading to the initiation of the suit proceedings, and grounds taken by the Trial Court, did not constitute justifiable reason or ground to decree the suit for damages---Trial Court was not justified in ignoring the main factors requiring consideration before coming to the conclusion arrived at on its part---Nothing was available in the findings of the court to show as to how the assessment of damages was made to the tune of Rs.24,000 particularly when there appeared no evidence led by the plaintiff in that respect---Appellate Court below, was not justified in giving no findings on merits against impugned judgment and decree passed by the Trial Court, in terms of S.96, C.P.C. and norms of law and practice applicable in that regard were sidelined---Law of damages having not properly been considered or appreciated, conclusion arrived at through the judgment and decree impugned in the appeal, were erroneous and said findings of the courts below, were not open to be approved, either on facts or in law---Impugned findings, were set aside, with the result that the suit of the plaintiff stood dismissed, in circumstances.

(b) Tort---

----Maxim: Ubi jus, ibi remedium---Scope.

The case of tort carries following elements as its essentials,-which must co-exist in the circumstances thereof.

(i) A wrongful act committed by the defendant;

(ii) A wrongful act must result in legal damage to another person;

(iii) A wrongful act must be of such a nature as may give rise to a legal remedy in the form of action for damages.

In other words, the defendant in a case of tort must be guilty of wrongful act, which is defined as an act contrary to law and includes omission to perform a legal duty and hence tortuous liability arises out of a breach of duty fixed by the law and wrongful act would finally mean infringement of legal duty as such. The other essential element of tort is the legal damage resulted from wrongful act of the defendant, to the plaintiff and such damage takes place when there is a breach of legal duty or when the plaintiff's legally recognized right stands infringed.

The third essential of tort is legal remedy against such wrongful act meaning thereby that such wrongful act of the defendant which if has infringed the legal right of the plaintiff, must be such as of giving rise to civil action for damages, for a tort is a civil wrong while all civil wrongs, are not necessarily torts. The maxim "Ubi jus ibi remedium" which Means that there is no wrong without. a remedy, is the basis of tort or damages against tortuous act.

Asadullah Baloch, A.P.-G.

Date of hearing: 25th August, 2010.

2013 C L C 816

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD WASEEM----Appellant

Versus

MEHMOOD AHMED and another----Respondents

Civil Miscellaneous Appeal No.12 of 2011, decided on 16th October, 2012.

Civil Procedure Code (V of 1908)---

----O. XLIII, R. 3 & O. IX, R. 13---Appeal against order dismissing application under O.IX, R.13 for setting aside ex parte decree---Non-service of notice to respondent---Effect---Contention of respondent was that service of respondent before filing of appeal was a mandatory requirement of Order XLIII, R.3, C.P.C.---Validity---Requirement of notice would only be applicable where the suit was still pending but not in a case where the suit had already been decreed and if the respondent appeared to defend the claim against plaintiff/petitioner, then such appearance would amount to waiver of notice---Suit, in the present case, was not pending at the time when the appeal was filed and the respondent also appeared which, in circumstances, amounted to waiver of notice even if the same was required to be issued---Appeal was maintainable.

Mrs. Dino Manekji Chinoy and other v. Muhammad Matin PLD 1984 SC 1 and Kohinoor Textile Mills v. Rawalpindi Cantonment Board 2011 CLC 1949 rel.

S. Maroof Ali for Appellant.

S.M. Haider for Respondent No.1.

2013 C L C 824

[Sindh]

Before Nadeem Akhtar, J

Syed ALTAF HUSSAIN through L.Rs.----Plaintiffs

Versus

PROVINCE OF SINDH through Chief Secretary and another----Defendants

Suit No.306 of 2000, decided on 14th December, 2012.

Specific Relief Act (I of 1877)---

----S. 10---Suit for recovery of money and damages---Grievance of plaintiff was that despite completion of project, authorities had withheld his payments---Validity---No specific date for completion of project was mentioned in agreement and there was no other agreement between the parties showing completion period of 18 months---Document showing 18 months was not signed by plaintiff and was not integral part of agreement as it was issued by authorities subsequent to agreement---Authorities had admitted and acknowledged that project was completed by plaintiff in all respects in June, 1996---Evidence produced by plaintiff was unrebutted and no evidence at all was produced by plaintiff in rebuttal---Project was executed by plaintiff in pursuance of terms of contract in June, 1996 and project was ready for handing over of possession by plaintiff to Authorities in June, 1996---Plaintiff started demanding settlement of his disputed running bills and payment of balance retention money immediately upon completion of the project---Unrebutted evidence produced by plaintiff had established that entire amount claimed by plaintiff was withheld by Authorities on such grounds which were not agreed by parties and were beyond the scope of agreement---By not taking over possession of project in June, 1996 upon its completion by plaintiff in all respects and by not paying admitted outstanding amounts of plaintiff's running bills and balance retention money, Authorities committed deliberate and wilful breach of the agreement---High Court directed the Authorities to pay amount of balance outstanding amount of disputed running bills towards balance retention money and also directed to pay damages---Suit was decreed accordingly.

H.A. Rahmani for Plaintiff.

Ms. Afsheen Aman State Counsel for Defendants.

Date of hearing: 8th November, 2012.

2013 C L C 853

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J

IRFAN MERCHANT and others----Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Environmental Protection and others----Respondents

Constitutional Petition No.D-1573 of 2012, decided on 11th November, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Applicability---When public functionaries' acts appear to be mala fide and taken at the back of parties concerned, question of laches is not relevant---Laches cannot be equated with statutory bar of limitation as the latter operates as legal bar for grant of remedy whereas the former operates as bar on equity---Dictate of justice and equity and balance of legitimate right are to be kept in view applying principle of laches.

(b) Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Arts. 5 & 9---Karachi Building and Town Planning Regulations, 2002, Regln.21---Constitution of Pakistan, Art.199---Constitutional petition---Master plan, change in---Procedure---Petitioners were aggrieved of conversion of roads of their residential area into single carriage road for plying commercial/public vehicles---Validity---For bringing any changes in master plan, public hearing was to be given, particularly to all those who would likely to be affected by such act which had not been done---In terms Article 9(2)(ii) of Pakistan Defence Officers Housing Authority Order, 1980, it was only Executive Board which had power to undertake any work in pursuance of any scheme or project---No master plan, planning or development scheme, under Article 9(3) of Pakistan Defence Officers Housing Authority Order, 1980, could be prepared by any local body or agency without prior consultation and with the approval of Executive Board---High Court declined to approve act of Governing Body to implement such conversion without Executive Board's consent---High Court directed Defence Housing Authority to immediately restore original position of roads in question and if any changes in master plan were required for public interest, the same could be done in accordance with law after following procedure and taking all concerned authorities on board and giving public hearing notice to all those who were likely to be affected by such change/conversion---Petition was allowed accordingly.

Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; PLD 2001 SC 415; 1993 SCMR 1798; Shehri-CBE v. Government of Pakistan 2007 CLD 783; Shehri-CBE v. Lahore Development Authority 2006 SCMR 1202 and Nighat Jamal v. Province of Sindh 2010 YLR 2624 ref.

Salman Hamid for Petitioner.

Meeran Muhammad Shah, Addl. A.-G. for Respondents Nos.1, 4 and 5.

Amir Malik for Respondent No.2.

Irfan Hassan for Respondents Nos.6 and 7.

Date of hearing: 6th November, 2012.

2013 C L C 932

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ZAFFAR BAIG----Petitioner

Versus

Mst. AFSHEEN and another----Respondents

Constitutional Petition No.1032 of 2012, decided on 7th December, 2012.

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

---S.5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Award of maintenance allowance---Nikahnama signed with ulterior motives in a hurried manner---Legality---Suit filed by wife (respondent) for maintenance allowance was decreed by Trial Court---Appeal filed by husband (petitioner) against order of Trial Court was dismissed---Husband contended that he was a student of his wife and she requested him to sign the Nikahnama in order to facilitate her in taking revenge from her ex-husband; that Nikahnama and an iqrarnama regarding payment of maintenance were signed out of respect as he was a student of his wife; that said documents were signed in a hurry and on the next day he left the country, and that he was trapped by his wife in order to extort money from him---Wife contended that husband had executed an Iqrarnama wherein he promised to pay maintenance at the rate of Rs. 40,000 per month---Validity---Plea of husband that he signed the Nikahnama and Iqrarnama out of respect and in a hurried manner was of no help to him, since as soon as an adult of sound mind signed the Nikahnama, he entered into a contract, whereby heavy responsibility was cast upon him to provide basic necessities of life to his wife---Contentions made by husband would not absolve him from fulfilling his obligations which had been imposed upon him under Sharia---Trial Court had taken into consideration each and every aspect of the case while deciding quantum of maintenance---Trial Court had already reduced maintenance of Rs.40,000 as agreed upon by husband in the Iqrarnama to Rs. 5000, which was absolutely justifiable---Constitutional petition was dismissed in circumstances.

(b) Islamic law---

----Marriage---Nikahnama, signing of---Effect---As soon as an adult of sound mind signed the Nikahnama, he entered into a contract, whereby heavy responsibility was cast upon him to provide basic necessities of life to his wife.

Ms. Nazia Perveen for Petitioner.

Irfan Ali for Respondent No.1.

Date of hearing: 4th December, 2012.

2013 C L C 980

[Sindh]

Before Aftab Ahmed Gorar, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN----Applicant

Versus

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

Civil Revision Application No.127 of 2009, decided on 28th November, 2012.

Limitation Act (IX of 1908)---

----Art. 110---Sindh Rented Premises Ordinance (XVII of 1979), S.9---Suit for recovery of arrears of rent---Limitation, computation of---Suit of landlord/plaintiff was dismissed on ground that the same had become barred by time---Contention of the landlord/plaintiff inter alia, was that time should be computed from when the first regular appeal of the landlord, for in relation to a suit for fixation of fair rent, was decided---Validity---Contention of the plaintiff/landlord had no force since section 9 of the Sindh Rented Premises Ordinance, 1979 provided that once the time had begun to run, then no subsequent inability to sue will stop it under Art.110 of the Limitation Act, 1908 the period of limitation for claiming arrears of rent was three years from "when the arrears become due", and the word "due" meant the date on which the rent became payable---Last rent, in the present case, was outstanding for the month of October, 1998, and as per tenancy agreement, time available for the plaintiff for claiming the rent for the said month expired on 15-11-1998 and therefore, as per Art.110 of the Limitation Act, 1908, suit for recovery of arrears of rent should have been filed within three years by November, 2001, but the same was filed on 20-7-2002, and was therefore, barred by time---Revision was dismissed, in circumstances.

PLD 1972 Kar. 273 distinguished.

PLD 1990 SC 681; PLD 2003 Kar. 523; 2007 CLD 1456 and 1996 CLC 348 ref.

Mst. Saba and another v. Mrs. Patricia and 2 others 1996 CLC 348 and Anwarul Haq v. Messrs Standard Eastern Inc. 1988 MLD 1170 rel.

Zahid Hussain for Applicant.

Mirza Sarfraz Ahmed for Respondent.

Date of hearing: 15th November, 2012.

2013 C L C 1021

[Sindh]

Before Farooq Ali Channa, J

Mrs. DURRE SHAMIM RAFI----Petitioner

Versus

MUHAMMAD ZUBAIR KHAN and another----Respondents

Constitutional Petition No.607 and C.M.A. No.2854 of 2009, decided on 25th February, 2013.

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

----S. 16(1)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Tentative order of Rent Controller for deposit of time-barred rent if within the jurisdiction of Rent Controller, constitutional petition was not maintainable against such order---Where, however, such order had been challenged on the ground of having been, passed without jurisdiction, same could be set aside under constitutional jurisdiction by High Court.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 distinguished.

Noor Hussain v. Pakistan Steel 1990 CLC 804 rel.

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

----S. 16(1)---Constitution of Pakistan, Art.199---Constitutional petition---Order of Rent Controller for deposit of time-barred rent---Validity---Rent Controller was barred to pass order for depositing the arrears for the period of exceeding three years---Order of Rent Controller passed beyond three years was without jurisdiction or in excess of jurisdiction---Order of Rent Controller was set aside.

(c) Constitution of Pakistan---

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.16(1)--- Constitutional petition--- Maintainability--- Principles---Constitutional jurisdiction generally cannot be pressed into service where the dispute relates to the question of rate of rent or the period of the arrears of rent, if it is within the limitation or the question of relationship between landlord and tenant as these are the disputed question of facts---Where the question is purely legal, constitutional jurisdiction can be pressed into service.

Abdul Latif A. Shakoor for Petitioner.

M. Farooq Hashim for Respondent No.1.

Dates of hearing: 1st, 20th and 25th February, 2013.

2013 C L C 1042

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD NAEEM CHOUDHRY----Appellant

Versus

AZIZ-UR-REHMAN and another----Respondents

First Civil Appeal No.3 of 2012, decided on 26th February, 2013.

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

----O. XXXVII, Rr.1, 2 & Appendix B, Form No.4---Institution of summary suit on negotiable instrument---Summons issued should be in the prescribed form to acquaint the other party with the nature of claim and also to warn him of the limitation imposed upon his right of defence and the period within which application for leave to appear and defend the suit was to be filed.

Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252; Messrs ARK Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976; National Bank of Pakistan v. Messrs Elegzender and Company and 2 others PLD 1987 Lah. 290 and Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 rel.

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

----Art. 159---Limitation---When summons was not in prescribed form, then the question of computing the period of limitation under Art.159 of Limitation Act, 1908 did not arise.

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

----O. XXXVII, Rr.1, 2 & Appendix B, Form No.4---Summons of summary suit on negotiable instrument---When the summons was not in proper form, then there would be no proper service and proceedings would not be legal and proper.

Ali Akbar v. Gulzar Ali Shah PLD 1984 Kar. 252 ref.

Zafar Iqbal Warraich for Appellant.

Moiz Ahmed for Respondent No.1.

Date of hearing: 20th February, 2013.

2013 C L C 1064

[Sindh]

Before Naimatullah Phulpoto, J

Haji ABDUL RASOOL TUNIO----Petitioner

Versus

S.D.O., HESCO, LARKANA and others----Respondents

Civil Revision No.29 of 2011, decided on 18th December, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Revisional jurisdiction---Scope---Waiver, principle of---Applicability---Suit and appeal filed by plaintiff were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Lower Appellate Court came to conclusion that amount shown in disputed bill by way of outstanding, regarding energy as utilized by plaintiff was deposited by him through instalments without any protest---Plaintiff waived his right and he had no cause of action by raising objection at subsequent stage---Objection regarding non-admissibility of attested copies of bill was also considered by Trial Court---Both the Courts below while recording findings of fact neither misread the evidence nor had ignored any material piece of evidence on record---Concurrent findings of fact on the face of record were neither arbitrary nor fanciful or perverse---High Court did not find any scope for interference in exercise of revisional jurisdiction, which was essentially meant for correcting error of law committed by subordinate courts---Such jurisdiction was restricted and narrower one---High Court declined to interfere in concurrent findings of fact recorded by two courts below---Revision was dismissed in circumstances.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

Akeel Ahmed Bhutto for Petitioner.

Nisar Ahmed G. Abro for Respondents.

Date of hearing: 18th December, 2012.

2013 C L C 1110

[Sindh]

Before Irfan Saadat Khan, J

ALEEMUDDIN through Special Attorney----Petitioner

Versus

MADERSA GHOUSIA TALEEM-UL-QURAN AHL-SUNNAT-WAL-JAMAT HANFI through General Secretary and 2 others----Respondents

Constitutional Petitions Nos.S-825 to S-827, S-838, S-841 to S-844 of 2012, decided on 30th January, 2013.

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

----S. 15---Ejectment petition---Filing of petition by landlord-Trust through its attorney/General Secretary---Tenant's objection was that no post of General Secretary existed in landlord-Trust, thus, petition was not filed through an authorized person---Validity---Landlord-Trust had duly authorised its attorney to act on their behalf---None of office-bearers or members of Managing Committee of landlord-Trust had raised any objection that they had not authorised such attorney---Tenant's such objection was repelled.

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

----S. 15---Ejectment petition---Default in payment of rent by tenant---Tenant's plea was that landlord was demanding enhanced rent---Validity---Mere demand of enhanced rent by landlord would not absolve tenant to pay agreed rent.

Oceanic International (Pvt.) Ltd. v. Lalazar Enterprises (Pvt.) Ltd. 2010 SCMR 737; Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453; Muhammad Zaman v. Mst. Sardar Begum 1990 SCMR 990 and Mursaleen v. Ghulam Sarwar 1991 SCMR 2042 ref.

Province of Sindh and 3 others v. Agha Sikandar Ali Khan 1990 CLC 1644 and Yasmin Khan v. Qadir 2006 SCMR 1501 rel.

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

----S. 15---Ejectment petition---Default in payment of rent by tenant---Tenant's plea was that landlord could adjust Pugree amount lying with him against defaulted rent---Validity---Pugree amount in most cases was given as advance rent by tenant while obtaining premises, which had nothing to do with monthly payment of rent---Tenant's such plea was repelled in circumstances.

Mrs. Shamim Bano v. Mrs. Nazir Fatima 2001 SCMR 1552 rel.

Rao Faisal for Petitioner (in C.Ps. Nos.S-825 to 827 of 2012).

Muhammad Hashim Leghari for Petitioner (in C.P. No.S-838 of 2012).

Anwar Jamal for Petitioner (in C.P. No.S841 to 844 of 2012).

Rana Sohail Mehmood for Respondent No.1.

Date of hearing: 21st January, 2012.

2013 C L C 1129

[Sindh]

Before Habib-ur-Rehman Shaikh, J

MUHAMMAD ARSHAD----Petitioner

Versus

Syed ALI HUSSAIN RIZVI and 2 others----Respondents

Constitutional Petition No.S-1341 of 2011, heard on 5th December, 2012.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Wilful default in payment of rent by tenant---Effect---Such defaulter would not be entitled for any relief.

Muhammad Asif Khan v. Sheikh Israr 2006 SCMR 1872 and Feroze Ahmed v. Zehra Khatoon 1992 CLC 735 ref.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Bona fide personal need of premises by landlord---Ejectment order passed by Rent Controller upheld by Appellate Authority---Validity---Landlord in evidence had deposed that demised premises was bonafidely required by him for his personal use---High Court, in exercise of constitutional jurisdiction, could not evaluate evidence and decide such factual controversy---Constitutional petition was dismissed in circumstances.

Qamaruddin v. Hakim Mahmood Khan 1988 SCMR 819 and Muhammad Latif v. District Judge, Karachi (South) 2009 YLR 2234 rel.

Zafaruddin Khan for Petitioner.

Shoa-un-Nabi for Respondent No.1.

Date of hearing: 5th December, 2012.

2013 C L C 1146

[Sindh]

Before Farooq Ali Channa, J

Mst. SHAZIA and 2 others----Petitioners

Versus

INAMUDDIN and 5 others----Respondents

IInd Civil Appeal No.103 of 2010, decided on 6th February, 2013.

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

----Arts. 78 & 82---Agreement of partnership---Proof of document---Agreement to reduce certain terms and conditions of re-construction of building, was not a "partnership deed" registered with the Registrar concerned for creation of firm to carry out business---Article 78 of the Qanun-e-Shahadat, 1984 provided that, if a document was alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents as was alleged to be in that person's hand-writing must be proved to be in his hand-writing---Article 82 of Qanun-e-Shahadat, 1984 stipulated that if the attesting witness denied or did not recollect the execution of the document, its execution may be proved by other evidence.

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

----S. 100---Second appeal---Scope---Concurrent findings of facts---When concurrent findings on the facts admitting the execution of agreement of partnership had been recorded while considering the entire evidence led by the parties in support of their claim, such findings should not be interfered in second appeal unless and until it was shown that two courts below had drawn inference which could not be drawn on proved facts on the record.

Adnan Ahmed for Appellants.

Mirza Sarfaraz Ahmed for Respondent No.1.

Naseer Hussain Jafri for Respondent No.7.

Date of hearing: 23rd January, 2013.

2013 C L C 1155

[Sindh]

Before Mushir Alam, C.J. and Sadiq Hussain Bhatti, J

MUHAMMAD YOUSAF KHAN BUGTI and another----Petitioners

Versus

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

Constitutional Petition No.D-2398 of 2012, decided on 19th February, 2013.

Constitution of Pakistan---

----Art. 199---West Pakistan Land Revenue Act (XVII of 1967), S.172(2)(vi)---Constitutional petition----Petitioners sought correction of entry in the Revenue Record---Petitioners should have exhausted other remedies provided in law to them in the hierarchy of revenue forums before invoking constitutional jurisdiction of High Court---Petition being premature was dismissed.

2004 SCMR 400; PLD 1972 SC 279; PLD 1987 SC 447; 1999 SCMR 1881; 2005 YLR 252; 2006 CLC 1902 and 2009 CLC 990 distinguished.

Mumtaz Ahmed and another v. The Assistant Commissioner and another PLD 1990 SC 1195 rel.

Sibghatullah Patoli and Saleemuddin A. Patoli for Petitioners.

Miran Muhammad Shah, Addl. A.-G. Sindh for Respondents Nos.1 to 4.

Malik Naeem Iqbal for Respondents Nos.5 and 6.

Iqbal for Board of Revenue.

Date of hearing: 22nd January, 2013.

2013 C L C 1164

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD SIDDIQUE----Applicant

Versus

ABDUL REHMAN----Respondent

Civil Revision Application No.53 and C.M.A. No.328 of 2012, decided on 11th March, 2013.

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908), O.VI, R.2---Suit for specific performance and permanent injunction---Pleadings to state material facts---Plaintiff did not plead all the facts regarding private partition and settlement of property held in the year 1980; possession in respect of the disputed land since 1990 and "faisla" held in the year 2005---New facts could not be pleaded before the appellate forum---Parties were bound by their pleadings and they could not be allowed to deviate from their pleading.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Sh. Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 460; Zulfiqar Ali v. Shahadat Khan PLD 2007 SC 582 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 rel.

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

----S. 115---Specific Relief Act (I of 1877), Ss.12 & 54---Revisional jurisdiction---Scope---Findings of both the courts below were concurrent---High Court would not normally go beyond the concurrent findings of facts recorded by the courts below after appreciation of evidence unless it was shown that findings were perverse, patently against the evidence, or so improbable that the acceptance thereof would tantamount to perpetuating a grave miscarriage of justice---Jurisdiction of High Court under section 115 of C.P.C. was narrow---Findings of both the lower courts were based on correct appreciation of evidence---Civil revision application was dismissed.

Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Alamgir Khan through his L.Rs. and others v. Haji Abdul Sattar Khan and others 2009 SCMR 54 and Noor Akbar v. Mst. Gullan Bibi 2005 SCMR 733 rel.

Sartar Iqbal Panhwar for Applicant.

Muhammad Sachal R. Awan for Respondent.

Date of hearing: 21st February, 2013.

2013 C L C 1179

[Sindh]

Before Syed Muhammad Farooq Shah, J

Hakim MAIRAJUDDIN through Legal Heirs----Petitioner

Versus

ABDUL RASHEED and 2 others----Respondents

Constitutional Petition No.S-239 of 2007, decided on 22nd February, 2013.

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

----S. 15---Ejectment petition---Title of ownership was disputed and no evidence was available showing the lease agreement of tenancy between the parties---Rent Controller, having limited jurisdiction in the proceedings, could not decide title of ownership while exercising the special jurisdiction but same required determination by civil court of competent jurisdiction.

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

----S. 15 ---Transfer of Property Act (IV of 1882), S.54---Ejectment petition---Title of ownership was disputed---Vendor could not pass on to the vendee anything better than he himself held---Vendee was to apply maximum care while entering into transaction of sale/purchase---Title of vendee being dependent upon the strength or weakness of the title of the seller, he had to sail, swim or sink with the seller and to pursue him for any loss suffered, if he was ultimately loser.

Muhammad Shamim v. Mst. Nisar Fatima 2010 SCMR 18; Muhammad Iqbal and another v. Mukhtar Ahmad 2008 SCMR 855; Hakim Khan v. Nazeer Ahmed Lughmani 1992 SCMR 1832 and Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition Rent Controller, without having jurisdiction, determined question of law and fact involving ownership in respect of landlord---Constitutional jurisdiction could be invoked if order was perverse and suffered from illegality or irregularity and such jurisdiction could be exercised to interfere with concurrent findings---Findings were based on non-reading of evidence including documentary and wrong and illegal conclusion, drawn by the courts below, was not based on facts---Orders of courts below were suspended by High Court till determination of title of property.

Rehmat Ally M. Rajput for Petitioner.

Gulab Rai Jessrani for Respondents.

Date of hearing: 14th February, 2013.

2013 C L C 1220

[Sindh]

Before Nadeem Akhtar, J

Mst. AFSHAN----Plaintiff

Versus

Syed KAMRAN ALI SHAH and 6 others----Defendants

Suit No.1469 of 2010, decided on 28th November, 2012.

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

----Ss. 8, 54 & 55---Civil Procedure Code (V of 1908), S.151 & O.XXXVIII, R. 5---Suit for possession, mesne profits and injunction---Plaintiff contended that suit property had been gifted to her by its owner (her deceased mother); that defendant was in illegal possession of title documents and ground floor thereof; and that civil court in its decree passed in an earlier suit had declared defendant as trespasser and made him liable to hand over possession and original title documents of suit property to plaintiff and pay her rent and utility charges for entire period of illegal possession---Ex parte evidence led by plaintiff due to non-filing of written statement and non-appearance by defendant---Validity---Suit property was admittedly owned by deceased mother of plaintiff, who was minor and sent to Kaashan-e-Atfaal (orphenage) after death of her mother---Suit property after death of plaintiff's mother had been claimed by three different persons at different intervals to have been gifted to him by plaintiff's mother and all their claims had been rejected by courts at different times by passing different decrees---Plaintiff had established herself to be sole, exclusive and lawful owner of entire suit property including ground floor in possession of defendant---Defendant's stance regarding alleged gift of ground floor of suit property in his favour by plaintiff's deceased mother had been declared to be false by such decree---Defendant had chosen to remain absent and had not cross-examined plaintiff, thus, her evidence had remained unchallenged and unrebutted---Plaintiff had successfully proved her case---Plaintiff could be granted decree for mesne profits, utility charges and taxes for a maximum period of three years---Court in exercise of its inherent powers could attach defendant's property before passing money decree against him in order to save such decree from becoming unexecutable---Defendant had remained in illegal possession of suit property since long without payment of rent and utility charges and taxes to plaintiff---Defendant, if vacated suit property or was evicted therefrom, would not be traceable after passing money decree against him, thus, court in exercise of its inherent powers could attach his articles/ properties---High Court decreed plaintiff's suit by directing defendant to hand over to plaintiff forthwith physical possession of suit property and its original title documents and pay her mesne profits and utility charges and taxes at claimed rates with profit thereon at the rate of 14% per annum, and attached all his assets and articles lying in suit property except his books, clothes, shoes and linen while directed Nazir to complete all such process on same day and restrained defendant permanently from claiming or asserting title in suit property or interfering in her possession.

Mohiuddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119 rel.

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

----O. XXXVIII, R. 5 & S.151---Attachment of defendant's property before passing decree against him in money suit, order of---Inherent jurisdiction of court to pass such order---Scope---Court in exercise of its inherent powers could pass such order in order to save such decree from becoming unexecutable---Principles.

In the cases of money decrees, the biggest and the most difficult task for the decree-holder is to trace out the whereabouts of the judgment-debtor and to furnish the particulars of his assets for the purpose of execution of the decree. Most of the money decrees become inexecutable and the execution proceedings are frustrated for want of the above. In order to avoid such a situation and to safeguard the interest of the plaintiff, the court has inherent power to attach the property of the defendant, so that the same remains available for realization of the decretal amount.

Mohiuddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119 fol.

Ghulam Mujtaba Phull for Plaintiff.

Defendants: Ex parte.

Date of hearing: 31st October, 2012.

2013 C L C 1254

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

MUHAMMAD ESSA----Petitioner

Versus

MUHAMMAD SIDDIQUE and 5 others----Respondents

Constitutional Petition No.2911 of 2012, heard on 5th December, 2012.

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

----O. VII, R.11---Rejection of plaint---Scope---While deciding application under O.VII, R.11, C.P.C., the court was legally required to confine itself to the averments of the plaint and the same were to be taken as true---Court could take into consideration, even defence or documents, brought on record by defence side, but such exception was subject to the limitation that said defence or document should be irrefutable rather admitted---Issue before the court was brought through a cause/issue to be adjudicated by the court and it was the judgment of the court; which determined the rights and liabilities---Rejection of plaint was meant to bury those suits in its inception, which, even, at the end of the day, would fail on account of some legal bar.

S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 ref.

(b) Registration Act (XVI of 1908)---

----S. 17---Transfer of Property Act (IV of 1882), S.53-A---Specific Relief Act (I of 1877), S.9---Unregistered agreement to sell---Validity---Document of agreement to sell does not create any legal title but creates a right to obtain another document i.e. registered sale-deed---Agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed---Agreement to sell does not require compulsory registration.

Muhammad Yousuf v. Munawar Hussain and 5 others 2000 SCMR 204 rel.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.21(a)---Rejection of plaint---Contract not specifically enforceable---Application for rejection of plaint was dismissed by Trial Court---Before insisting upon S.21(a) of the Specific Relief Act, 1877 defendant was to admit the document, which he did not---Defendant, in circumstances, could not claim rejection of plaint by blowing hot and cold in a single breath---Application of S.21(a) of the Specific Relief Act, 1877 could well be examined by the Trial Court at the end of the day.

Ghulamullah Memon for Applicant.

Date of hearing: 5th December, 2012.

2013 C L C 1315

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rahman Shaikh, JJ JAM KHAN SHORO----Petitioner

Versus\

DISTRICT RETURNING OFFICER, HYDERABAD/DISTRICT AND SESSIONS JUDGE, HYDERABAD and 5 others----Respondents

Constitutional Petition No.D-927 of 2013, decided on 9th May, 2013.

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

----Ss. 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Polling stations---Change in location---Pre-conditions---Convenience of voters and law and order situation---Petitioner was aggrieved of change in location of polling station---Validity---Petitioner failed to point out any illegality or mala fide on the part of authorities while changing location of polling stations, which exercise was undertaken in accordance with law and keeping in view convenience of voters at large, after physical examination of polling stations and further to avoid any law and order situation, which was apprehended by voters of the area in written application---Petitioner approached High Court, when there was no time left to examine disputed facts or to make scrutiny of allegations, which did not find support from record as general elections were scheduled after one day of hearing of petition---Any interference by High Court at such belated stage would amount to frustrate election process and to de-franchise voters of the constituency, whose polling stations had already been shifted to new locations as per final list of polling stations published in official gazette---Petition was dismissed in circumstances.

Imdad Ali M. Unar for Petitioner.

Ch. Bashir Ahmed, Asstt. A.-G. Sindh for Respondents.

Shakeel Ahmed Zai for Applicat/Intervenor.

2013 C L C 1332

[Sindh]

Before Aqeel Ahmed Abbasi, J

Haji JAM and 34 others----Applicants

Versus

PROVINCE OF SINDH through D.C.O. TANDO MUHAMMAD KHAN and 4 others----Respondents

Civil Transfer Application No.29 of 2012, decided on 15th April, 2013.

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

----S. 24---Application for transfer of civil suit, dismissal of---Remedy available against impugned action/order already availed---Effect---Applicant sought transfer of civil suit to any other court on the sole ground that judge had dismissed his application under O.VII, R.11, C.P.C. without providing him proper opportunity of rebuttal---Validity---Record showed that applicant had already sought remedy against the order of dismissal, by filing an appeal against it, which was also dismissed ,whereafter a revision application had been filed before the High Court, which was still pending---Applicant failed to show any reasonable cause and had also not raised any valid ground for seeking transfer of case, which was the requirement of S.24, C.P.C.---Application was dismissed accordingly.

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

----S. 24---Transfer of civil suit---Scope---Dismissal of an interlocutory application as a ground for transfer of civil case---Validity---Such ground alone could not be a ground for seeking transfer of a case from one court to another, particularly when the remedy as provided under the law against dismissal of interlocutory order had already been availed by the aggrieved party by filing an appeal or revision against it.

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

----S. 24---Transfer of civil suit---Pre requisites---Parties could not be allowed to seek transfer of a case from one court to another without showing sufficient cause or in the absence of any valid ground(s), as doing otherwise would tend to frustrate and cause delay in lawful proceedings pending before the competent court of jurisdiction and would also cause inconvenience to the other party without any fault on its part.

Abdul Qayoom Pirzada for Applicants.

Ch. Bashir Ahmed, Asstt. A.-G. Sindh for Respondents.

2013 C L C 1376

[Sindh]

Before Aqeel Ahmed Abbasi, J

Messrs RECORDER TELEVISION NETWORK (PVT.) LTD. through Chief Executive Officer----Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through

Director-General----Respondent

M.A. No.10 of 2012, decided on 23rd May, 2013.

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

----Ss. 2(m), 19, 24, 29, 30 & 30A---General Clauses Act (X of 1897), S.24-A--- Failure to operate channel--- License to broadcast, revocation of--- Non-speaking order---Effect---Pakistan Electronic Media Regulatory Authority in year, 2008, granted to appellant license to broadcast satellite television channel and appellant had been seeking extension to start operation of the channel---Finally, in year, 2010, the license was revoked by the Authority on the ground that appellant was not in a position to start operation of channel---Plea raised by appellant was that renewal fee had regularly been paid to authorities and license could not have been revoked---Validity---Authorities failed to establish as to whether appellant was in fact not in a position to start operation or did not have necessary paraphernalia and financial status to make channel operational---Record showed that appellant continued to express willingness to make channel operational provided proper frequency and space was allocated by Cable Operators for such purpose---Authority, in circumstances, was not justified to invoke provision of S.30(1)(c) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, against appellant, particularly without resorting to provisions of S.29 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Order revoking license did not satisfy parameters as contained in S.24-A of General Clauses Act, 1897, as it did not contain any valid reasons---High Court set aside the order revoking license and directed the Authority to restore license of appellant, subject to payment of renewal fee and fulfilment of other codal formalities in that regard---High Court directed appellant to start its operation within thirty days from the date of restoration of its license by the Authority, failing which authorities would be at liberty to proceed against appellant in accordance with law---Appeal was allowed accordingly.

ARY Communication (Pvt.) Ltd. v. Federation of Pakistan 2013 CLD 180; Independent Music Group, SMC (Pvt.) Ltd. and another v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 2011 Kar. 494; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Corporation of Calcutta v. Mulchand Agarwala PLD 1956 SC (India) 231; Independent Newspapers Corporation (Pvt.) Limited v. Pakistan Electronic Media Regulatory Authority (F.A.O. No.47 of 2011 and Civil Appeal No.599 of 2012 and Civil Petition No.1189 of 2012, in the case of Muhammad Akbar Khan, CO Roze (Pvt.) Limited (Roze TV) and another, and Jamiluddin, EO, Zam TV Network and others v. Pakistan Electronic Media Regulatory Authority (PEMRA) and another ref.

Abid S. Zuberi and Muhammad Umer Lakhani for Appellant.

Kashif Hanif for Respondent along with Nasir Ayyaz, G.M. (Legal) and Wakeel Khan, G.M (Technical).

2013 C L C 1420

[Sindh]

Before Faisal Arab and Nadeem Akhtar, JJ

Dr. RAHEELA MAGSI----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 2 others----Respondents

Constitutional Petition No.D-3463 of 2010, decided on 8th October, 2012.

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

----S. 6---Repeal---Effect---Where any provision is repealed and replaced by another provision then unless intention is clear such amendment cannot affect vested right.

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

----Ss. 2(xvi), 35, 37, 87, 150, 159 & 179-A [as inserted by Sindh Local Government (Fifth Amendment) Act (II of 2010)]---General Clauses Act (X of 1897), S.6---Constitution of Pakistan, Arts.2, 2-A, 8, 32, 140-A & 199---Constitutional petition---Local government elections---Repeal of provision---Scope---Contention of petitioner was that representatives elected under Sindh Local Government Ordinance, 2001, were unlawfully removed and were replaced by Administrators through Sindh Local Government (Fifth Amendment) Act, 2010, who were unlawfully utilizing local government funds that could be utilized only after authorization by concerned local councils---Validity---After passing of 18th Amendment in the Constitution, each Provincial Government under Art.140-A of the Constitution, was bound by law to establish Local Government system and devolve political, administrative and financial responsibility and authority to elected representative of local governments---Local government elections in the Province of Sindh became due in year, 2009, and Provincial Government was duty bound to fulfil requirements of Arts.32 & 140-A of the Constitution by holding fresh local government elections under S.159 of Sindh Local Government Ordinance, 2001, immediately when elections became due---Provincial Government violated provisions of Arts.2, 2-A, 8, 32 & 140-A of the Constitution, Ss.150(4) & 159 of Sindh Local Government Ordinance, 2001 and rules made thereunder---Provincial Government also violated valuable voting/fundamental rights of public guaranteed by the Constitution---Valuable voting /fundamental rights of people of Pakistan guaranteed by the Constitution to vote and to elect representatives of their own choice could not be taken away, abridged or sabotaged in any way through any type of legislation or action---High Court directed the Provincial Government to hold local government elections as envisaged under Arts.32 & 140-A of the Constitution, within a period of ninety days---High Court expected that Election Commissioner would be able to compile electoral lists in due course of time to enable Local Government to hold elections within the period of ninety days---Petition was allowed accordingly.

Constitution Petition No.77 of 2010; Human Rights Cases Nos.13124-P of 2011, 40303-P of 2011, 40220-G of 2011; 43103-8 of 2011; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486; Messers Noori Trading (Pvt.) Ltd. and others v. The Federation of Pakistan and others PLD 1997 Kar. 663; Messers Brooke Bond Pakistan Limited through Chief Executive v. Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others 2001 CLC 148; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Aitzaz Ahsan v. Chief Election Commissioner and others PLD 1989 Lah. 1 and Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others, PLD 2007 SC 571 ref.

Shabbir Shah for Petitioner.

Shafi Muhammad Memon, Addl. A.-G., Sindh for Respondents Nos.1 and 2.

Ashfaque Ahmed Tagar, D.A.-G. for Respondent No.3.

Date of hearing: 18th May, 2012.

2013 C L C 1532

[Sindh]

Before Abdul Rasool Memon, J

Mst. KHURSHEED BEGUM and another----Plaintiffs

Versus

HABIB BANK LIMITED through President----Defendant

Suit No.559 of 2010, C.M.As. Nos.4455 and 7403 of 2011, decided on 8th November, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 19, 20 & O.VII, R.10---Return of plaint---Territorial jurisdiction---Plaintiffs sought recovery of their documents deposited with defendant-Bank at place "I" but they filed suit at place "K"---Validity---Plaintiffs claimed to have deposited title documents in respect of their immovable property with defendant-Bank at place "I", where according to plaintiffs, their documents were lying---Suit should have been instituted at place "I" before appropriate forum where subject matter of suit viz. immovable property was situated---High Court returned the suit for presenting the same before appropriate Court at place "I"---Plaint was returned in circumstances.

National Bank of Pakistan v. Khalid Mehmood 2002 CLD 658; Muhammad Naveed Aslam and 3 others v. Mst. Aisha Siddiqui and 2 others PLD 2010 Kar. 261; Bank Alfalah Limited v. Iftikhar A. Malik 2003 CLD 363 and Bankers Equity Limited through Principal Law Officer and 5 others v. Messrs Bentonite Pakistan Limited and 7 others 2003 CLD 931 ref.

Muhammad Naved Aslam v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176 rel.

Mehr Ashiq Hussain v. Citibank, N.A. through Chief Manager and another 2006 CLD 167; Messrs PEL Appliances Limited v. United Bank Limited 2005 CLD 1352; Messrs M.M.K. Rice Mills v. Grays Leasing and others 2006 CLD 1147; Abdul Rehman Allana v. Citibank 2003 CLD 1843; Messrs Shazim International (Pvt.) Ltd. and 6 others v. Messrs First Women Bank Ltd. 2009 CLD 432; Citibank N.A. v. Syed Shahansha Hussain 2009 CLD 1564; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Sajid Saeed v. Inam-ul-Haq 2007 MLD 1622; Messrs Sea Gold Traders through Managing Partner v. Water and Power Development Authority through Chairman and 2 others PLD 2011 Kar. 352; Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited 2012 CLC 507 and Messrs Taha Commodity Export v. Khadim Ali Shah Bukhari 2011 MLD 1898 distinguished.

Agha Zafar Ahmed for Plaintiffs.

Nabeel Kolachi for Defendant.

Date of hearing: 24th September, 2012.

2013 C L C 1541

[Sindh]

Before Aftab Ahmed Gorar, J

Messrs VICTORIA FURNITURE MART through Proprietor----Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 3 others----Respondents

Constitutional Petitions Nos.105, 106 and 107 of 2006, decided on 30th November, 2012.

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

----S. 15----Sindh Cultural Heritage (Preservation) Act (XII of 1994) Ss.7 & 8---Constitution of Pakistan, Art.199---Constitutional Petition---Bona fide personal need of landlord---Scope---Rented premises having status of "protected heritage"---Effect---Ejectment of tenant on ground of bona fide personal need for the reconstruction of the premises was allowed concurrently---Contention of the tenants (petitioners) was that the landlord did not have a personal bona fide need, as landlord planned to sell the premises; and that, the premises had been declared as "protected heritage" under Sindh Cultural Heritage (Preservation) Act, 1994 therefore, the requirement for reconstruction had become infructuous---Validity---Evidence of landlord's witness in relation to bona fide personal need could not be shaken during cross examination and tenants could not establish that the statement of the landlord made on oath was not consistent with the averments made in the ejectment petition---Landlord did not need to renew sanction for reconstruction of the premises every year during pendency of proceedings, as renewal was only a formality, and expiry of period of sanction for reconstruction would not frustrate the cause of action nor render same infructuous---Intention or efforts of landlord to sell out premises would not disentitle the landlord to subsequently seek eviction on the ground of personal bona fide need---Contention that the premises had been declared "protected heritage under the Sindh Cultural Heritage (Preservation) Act, 1994 had no force since that was a matter which had no concern with the tenants and such matter was between the landlord and the concerned authorities---Tenant could not escape eviction on such ground if otherwise he was liable to be evicted under law---Concurrent findings of courts below could not be interfered with--- Constitutional petition was dismissed, in circumstances.

2007 SCMR 46; 2003 MLD 480; PLD 1988 Kar. 164; PLD 1982 Lah. 380 and 1982 CLC 1743 ref.

1992 MLD 1690; 1997 SCMR 1062; 1990 MLD 2182; 1987 CLC 702; 1982 CLC 1743; 1989 CLC 162 and 2004 YLR 3278 distinguished.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Bona fide personal need of landlord---Constitutional Jurisdiction of High Court in such matters was very much limited and confined only to ascertain whether the Appellate Court had not flouted provisions relating to the statute or had failed to follow the law related thereto.

Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 and 2010 SCMR 1025 rel.

Munawar Ghani for Petitioner.

Zahid Hussain for Respondents.

Date of hearing: 20th November, 2012.

2013 C L C 1553

[Sindh]

Before Syed Muhammad Farooq Shah, J

SAEED AKBAR and 4 others----Applicants

Versus

AASHIQUE ALI and 3 others----Respondents

Revision Application No.265 of 2011, decided on 13th December, 2012.

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

----S. 5---Condonation of delay---Principle---Each and every day has to be explained with justification to make out case for condonation of delay.

Nazakat Ali v. WAPDA 2004 SCMR 145 and Khan Sahib Sher Muhammad Mir v. Islamic Republic of Pakistan 1987 SCMR 1992 rel.

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

----Ss. 96 & 115---Limitation Act (IX of 1908), S.5---Appeal---Condonation of delay---Revisional jurisdiction, exercise of---Petitioner filed appeal before Lower Appellate Court which was dismissed as time barred---Validity---No sufficient reason or plausible cause for condonation of delay in filing appeal at belated stage of four months had been satisfactorily explained except that notice of date of announcement of judgment was not served upon parties which was not necessary requirement of law---Duty was cast upon parties and their counsel was to be vigilant to pursue their case, therefore, there was no illegality or irregularity in the order passed by Lower Appellate Court refusing condonation of delay---Revisional jurisdiction could not be invoked merely on procedural defects or technical defect for interfering with orders which otherwise were legal and justified---High Court declined to interfere in order passed by Lower Appellate Court---Revision was dismissed in circumstances.

Nazakat Ali v. WAPDA 2004 SCMR 145; Khan Sahib Sher Muhammad Mir v. Islamic Republic of Pakistan 1987 SCMR 1992; Gul Baran and others v. Abdul Zahir 1988 CLC 65; Messrs Emirates Airlines v. Dr. Professor Haroon Ahmed and others PLD 2006 Kar. 126; Kalim-ur-Rehman v. Mst. Hashiman and others 2009 YLR 1846; Muhammad Islam v. Inspector-General of Police Islamabad 2011 SCMR 8; Muhammad Sami v. Additional District Judge 2007 SCMR 621; NED University of Engineering and Technology v. Ashfaq Hussain Shah 2006 SCMR 453; State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426; Chairman, District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258; S. Sharif Ahmed Hashmi Chairman, Screening Committee Lahore and another 1978 SCMR 367; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak) 104; Punjab Province v. The Federation of Pakistan PLD 1956 FC 72 and Fazal Elahi Siddiqi v. Pakistan PLD 1990 SC 692 rel.

Aijaz Ali Hakro for Applicants.

Abdul Aziz Memon for Respondents.

Allah Bachayo Soomro, Addl. A.-G.

2013 C L C 1561

[Sindh]

Before Muhammad Ali Mazhar, J

MUHAMMAD RAMZAN----Applicant

Versus

MUHAMMAD AKBAR BHATTI and others----Respondents

J.M. No.26 and C.M.As. Nos.6078, 6099, 4939 of 2012, , decided on 2nd November, 2012.

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

----O. XXIII, R.3 & S.12(2)---Suit for declaration of title---Decree on basis of compromise without including one or more defendants in the suit---Defendant/applicant sought setting aside of compromise decree under S.12(2), C.P.C. on the ground that he was not party to said compromise but was party to the suit---Validity---When admitted position was that defendant/applicant was not party to the compromise application, it would be appropriate to set aside compromise decree against the defendant/applicant---High Court directed that suit may proceed against defendant/ applicant in accordance with law and the area which was in possession of the defendant / applicant shall not form part of the compromise decree between the other parties.

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

----S. 12(2)---Application under S.12(2), C.P.C. for setting aside a decree/order---Scope and procedure stated.

Section 12(2) merely postulates an unspecified remedy where a decree suffered from want of jurisdiction or was tainted with fraud or had emerged upon misrepresentation and the court, therefore, has all available options to fashion relief according to the requirement of a situation. In appropriate cases whereupon the recall of the decree, a foreseeable result should follow which may not be different that what could be achieved without setting aside of the decree, a ratification or modification could be ordered. Such relief may even be accorded without any elaborate inquiry and concomitant loss of time. When consent decree was obtained by misrepresentation, the application is maintainable for setting aside the decree obtained by misrepresentation. There is no procedure provided to decide application under section 12(2), C.P.C. Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in suit. Matter is left to the satisfaction of the court, which has to regulate its proceedings, and keeping in view the nature of the allegation in the application, the court may in its discretion adopt any mode for its disposal. Concealment of facts before judicial forum would amount to fraud and misrepresentation. Fraud, misrepresentation and circumvention used to obtain judgment were generally regarded as sufficient cause for the opening or vacating thereof particularly where the judgment was obtained against a person without his knowledge. Justice require that every case once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on the litigants and the parties deriving title from them. The maintenance of pubic order, the repose of society and the quite families required that what has been definitely determined by a competent tribunal shall be accepted as irrefrangibly legal truth. If it were not for the conclusive effect of all such determination, there will be no end of litigation and no security for any person, the rights of parties would be involved in endless confusion and grave injustice would often be done under cover of law. Act of court shall prejudice no one. Courts were required to do justice between the parties in accordance with the provisions of law, as the litigant, who approached Court for relief was bound to substantiate that procedure has been adopted by him in accordance with law because it was elementary principle of law that if a particular thing was required to be done in a particular manner, it must be done in that manner, otherwise it should not be done at all.

PLD 2010 Kar. 400 and Muhammad Akram Shaikh v. Messrs Pak Libya Holding Company (Pvt.) Ltd. and others PLD 2010 Kar. 400 rel.

Shamim Akhtar for Applicant.

Muhammad Iqbal Ch. for Respondents Nos.1 to 10.

Syed Muhammad Akbar for Respondent No.11.

2013 C L C 1597

[Sindh]

Before Aziz-ur-Rehman, J

ASIF----Applicant

Versus

Mst. SANGEETA and 3 others----Respondents

Civil Revision Application No.298 of 2010, decided on 7th December, 2012.

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

----Ss. 39, 42 & 54---Registration Act (XVI of 1908), S.17---Cancellation of document, declaration and injunction---Registered document---Presumption---Concurrent findings of fact---Plaintiff alleged that registered sale-deed in question was result of fraud---Validity---Plaintiff failed to produce any evidence, therefore, both the courts below were justified to give weight to registered sale-deed having been signed and executed before Sub-Registrar---Under law, registered document always attached to its sanctity and in rebuttal strong evidence was required to cast doubt on genuineness of registered document---Plaintiff neither denied signatures on registered sale-deed nor alleged any coercion by defendant---Regarding payment of sale consideration, contents of registered document were presumed to be correct---In registered sale-deed there were clear recitals about receipt of sale consideration by plaintiff---Once document was registered then executant could not wriggle out of its binding effect---No one, under law, could be allowed to approbate, reprobate or otherwise, blow hot and cold in one breath---Registered sale-deed was signed, therefore, plaintiff could not allege coercion or illegal means and stamp paper was purchased prior to registration of sale-deed---High Court declined to interfere in concurrent findings of fact by two courts below---Revision was dismissed in circumstances.

Sughran Bibi v. Aziz Begum and 4 others 1996 SCMR 137; Choudhry Ghulam Rasool v. Mrs. Nusrat Rasool 2008 SCMR 146 and Syed Ahmad through special attorney v. Muzafar Hussain through L.Rs. 2008 CLC 175 distingushed.

Wazeer Khoso v. Province of Sindh, through Secretary Board of Revenue and others PLD 2005 Kar. 43 and Mst. Naseem v. Shahla Durani 2010 CLC 1861 rel.

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

----S. 115---Revisional jurisdiction of High Court---Substituting finding of fact---Scope---Such power under S.115, C.P.C. is primarily intended for correcting errors having been made and/or committed by subordinate court in exercise of its jurisdiction---While exercising jurisdiction under the provision of S.115, C.P.C. court cannot interfere merely just to substitute its findings on the question of fact---Under revisional jurisdiction courts normally do not re-evaluate evidence much less in absence of excess of authority, irregularity or misappreciation of evidence---No matter the decision howsoever erroneous, wrong or perverse, question of fact or law unless the decision falls within the scope of S.115, C.P.C. revisional jurisdiction cannot be invoked.

Shamsuddin Memon for Applicant.

Abdul Aziz Shaikh for Respondents.

2013 C L C 1641

[Sindh]

Before Syed Muhammad Farooq Shah, J

WASEEM QAZI----Applicant

Versus

PROVINCE OF SINDH through Executive District Officer, Revenue, Matiari and others----Respondents

Revision Application No.97 of 2010, decided on 11th December, 2012.

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

----O. VII, R.11---Rejection of plaint---Principle---While deciding application under O.VII, R.11, C.P.C., averments made in the plaint are to be looked into.

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

----Ss. 39 & 42---Civil Procedure Code (V of 1908), O.VII, R.l1---Suit for declaration---Rejection of plaint---Cause of action---Proof---Suit filed by plaintiff was rejected by Trial Court on the ground that it did not disclose cause of action and the suit was barred under Ss.39 & 42 of Specific Relief Act, 1877---Validity---Plaintiff was claiming right of inheritance in suit property and plaint could not be rejected without determining that as to whether plaintiff was claiming his right in the property, which controversy could be resolved by providing fair opportunity to parties to lead evidence in support of their respective claims, as property of deceased owner was inherited by four sons of her two brothers---Question relating to fraudulent sale-deeds could be resolved by adducing evidence---Every averment made in plaint was to be accepted as correct and defence could not be looked into while considering application for rejection of plaint---Every allegation made in plaint had to be accepted as correct while rejecting plaint under O.VII, R.11, C.P.C.---Fact that plaintiff could not ultimately succeed in establishing allegations made in plaint, was not a good ground for rejecting plaint---Orders passed by Trial Court as well as Lower Appellate Court suffered from material irregularity and the fact that no cause of action was in existence at the time suit was filed, needed to be determined by considering effect of sale-deeds and circumstances in which sale-deeds were executed---High Court set aside orders rejecting the plaint, passed by both the courts below and case was remanded to Trial Court to decide the matter on its merits after affording fair opportunity of adducing evidence to both the parties on material issues---Revision was allowed accordingly.

Dr. Syed Hassan Ali through Attorney v. Mst. Tazeen Zahra and another 2008 CLC 1366; Sharjeel Younus v. Salahuddin Mirza 2008 YLR 1523; Major S.M. Hafiz v. Shafqat Ali Qureshi 2008 YLR 1287; Juma Khan and others v. Mst Bibi Zenaba and others PLD 2002 SC 823 and Hamid Ghani v. Muhammad Basit Siddiqui and another PLD 2010 Lah. 487 ref.

Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; Sajawal v. Mst. Saubia Hamid and another 1996 SCMR 1223; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; Jaffar Shah and another v. Mian Yahya Shah and another 1999 SCMR 20 and Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and 8 others PLD 2007 Kar. 392 distinguished..

Rafique Ahmed for Applicant.

Chaudhry Bashir Ahmed, Asstt. A.-G.

Pirbhulal U. Goklani for Respondent No.7.

Muhammad Sulleman Unar for Respondent No.8.

Date of hearing: 27th November, 2012.

2013 C L C 1659

[Sindh]

Before Irfan Saadat Khan, J

ANIS AHMED and 7 others----Appellants

Versus

Mst. ROSHAN ARA BEGUM and 10 others----Respondents

Second Appeal No.125 of 2010, decided on 9th May, 2013.

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

-----S. 11---Res judicata, principle of---Interpreted.

The principle of res judicata debars any Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In the said principle it has also been made clear that the issue subsequently raised should have been heard and finally decided by such Court between the same parties. The only point which requires consideration is whether the issue subsequently raised between the parties was the same and whether the same was heard and finally decided by the Court. The specific word used in the definition of the term "res judicata" is the word "and" and not "or", meaning thereby that the issue which was subsequently raised should also be heard and should also be finally decided by such Court. If any of such conditions is not fulfilled the principle of res judicata would not apply. Moreover, if the issue has been raised and has been heard and not finally decided even in such case principle of res judicata would not apply.

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

----O. XX, R.12 & S.11---Suit for possession of immovable property and recovery of mesne profits and damages---Res judicata, principle of---Applicability---Contention of the plaintiffs was that the defendants were allowed to live in the suit property temporarily and a legal notice was served upon them to vacate the same and thereafter plaintiffs filed a suit for permanent injunction which was disposed of on the undertaking by the defendants that no construction/alterations etc would be made by them in the suit property---Suit was decreed concurrently---Validity---Defendants-petitioners had admitted that no addition/alteration would be made in the suit property without the consent of the plaintiffs-respondents which impliedly meant that the suit property belonged to the plaintiffs-respondents otherwise any person owning a property was fully authorized to make any alteration/addition in his property as were admissible under the law---Controversy with regard to the possession of the suit property was never decided between the parties, therefore, it could not be said that the principle of res judicata was applicable.

Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705 rel.

Muhammad Hassan v. Nazar Muhammad alias Nazir Khan through LRs 2006 YLR 717; Mrs. Laila Sarfaraz and others v. Hussain Haroon and others 2008 YLR 254; Karamat Ali Khan and another v. Sardar Ali and others PLD 2001 SC AJK 30; Messrs China Harbour Engineering Co. v. Water and Power Development Authority and others 2001 YLR 1781; Hashim Khan v. National Bank of Pakistan, Quetta PLD 2001 SC 325 and Messrs Sindh Engineering (Pvt.) through Managing, Director v. OTIS Elevator Company and others 2000 CLC 1524 distinguished.

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

----O. XLI, R. 1---Memorandum of appeal---Non-filing of certified copy of the decree appealed from---Effect---Appellate Court was empowered to dispense with the filing of the judgment but it was mandatory that a copy of the judgment was to be filed with the memorandum of appeal---Non-filing of the copy of the decree appealed from with the memorandum of appeal, or during the period of limitation, was fatal and would render the appeal non-maintainable---Appeal was not maintainable which was dismissed by the High Court.

Abdul Rashid and others v. Abdul Ghani and others 2011 SCMR 1597; Muhammad Anwar and others v. Mst. Soma 1981 CLC 1479; Abdul Majeed and others v. Mst. Haleema and others 1987 CLC 2331; Abdul Rasheed and others v. Abdul Ghani and others 2011 MLD 1597; Muhammad Iqbal and another v. Muhammad Ahmed through LRs 2008 SCMR 855; Bilawan Khan v. Amir Saleem Rehman and others PLD 2013 Pesh. 38; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063; Manager through LRs v. Hashim through LRs PLD 2007 Kar. 174; Messrs Kashmirian (Pvt.) Ltd. through Shomaila Loan Marker and others v. Ghulam Nabi Gujjar and another 2006 CLC 482; Muhammad Mazhar Iqbal v. VIth Additional District Judge and others 2010 MLD 439; Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705 and Pirzada Amin Mosa and others v. Mrs. Shamim Shahnawaz 1984 CLC 3080 rel.

Gul Zameer Solangi for Appellants.

Adnan Usman for Respondents.

Date of hearing: 2th May, 2013.

2013 C L C 1669

[Sindh]

Before Aftab Ahmad Gorar, J

MUHAMMAD TARIQ----Appellant

Versus

Malik BASHIR-UD-DIN and another----Respondents

First Appeal No.40 of 2010, decided on 16th April, 2013.

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

----O. XXXVII, Rr. 2 & 3---Institution of summary suit on negotiable instrument---Leave to defend---Principles---If the defendant had succeeded to show a plausible defence or was able to establish that there was some substantial question of fact or law, then he was entitled to the grant of leave to defend---If it seemed that the defence was vague or unsatisfactory or there was doubt as to its genuineness, even then leave should not be refused but certain conditions could be imposed---Court trying summary suit was required to see that there was bona fide allegation of triable issue which was not illusory and court need not to be satisfied that defence would succeed and it was enough that defence was verified by oath.

PLD 1963 SC 163 and 1995 SCMR 925 rel.

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

----O. XXXVII, Rr. 2, 3 & S.151---Institution of summary suit on negotiable instrument---Application for exemption to furnish bank guarantee---Inherent powers of court---Plaintiff filed suit for recovery of money wherein application for permission to appear and defend the suit was moved which was accepted by the Trial Court and defendant was granted conditional leave to defend the suit by furnishing bank guarantee---Defendant filed application under S.151, C.P.C. for exemption to furnish bank guarantee which was dismissed by the Trial Court---Validity---Trial Court should have allowed the parties to adduce evidence---Defence taken by the defendant was not illusory---Condition of furnishing bank guarantee was based upon the pendency of criminal cases---Triable issue had been raised by the defendant---No sufficient ground existed for imposition of condition of furnishing bank guarantee---Appeal was accepted.

PLD 1963 SC 163 and 1995 SCMR 925 ref.

Sabir Hussain Shah for Appellant.

Mobarak Ahmed for Respondent No.1.

Date of hearing: 2nd February, 2013.

2013 C L C 1679

[Sindh]

Before Mushir Alam, C.J. and Sadiq Hussain Bhatti, J

MUHAMMAD RAFIQ through Attorney----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law and Parliamentary Affairs and 2 others----Respondents

Constitutional Petition No.D-1010 of 2012, decided on 15th March, 2013.

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

----O. XXI, R. 89---Execution of decree---Application for setting aside of order of sale of mortgaged property through auction---Applicant's plea that property had been sold at a low price---Validity---Property sold through auction would never fetch market value---Inadequacy of sale price in court sale would not be a valid ground for setting aside such sale---Such application was dismissed---Principles.

It is very well-known to a person of ordinary prudence that a property sold through auction will not fetch the market value and will always be sold for a price below the market value.

Mere inadequacy of sale price in court sale is no valid ground for setting aside the sale. A buyer is always reluctant to purchase a property in court sale as it involves litigation; it is time consuming and has the element of uncertainty. The court sales do not fetch market price for the reason and sale through auction cannot be set aside on this score alone.

Mumtaz-ud-Din Feroz v. Sheikh Iftikhar Adil and others 2009 CLD 594 ref.

East Yarn Trading Company and others v. United Bank Limited and others 2007 CLD 1555 rel.

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

----O. XXI, R. 94---Execution proceedings---Sale of property through auction, confirmation of---Validity---Ownership right in property would be deemed to have vested in auction-purchaser once such sale was confirmed by court.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition in matters wherein High Court having ultimate appellate or revisional powers under relevant statute---Scope stated.

In matters, where the High Court itself is the repository of the ultimate appellate, revisional or referral power conferred by the relevant statute, it is in the rarest of cases that the High Court may be persuaded to entertain a constitutional petition and to enforce the constitutional remedy in preference to its own appellate, revisional or referral dispensation arising in course of time.

Khalid Mehmood v. Collector of Customs, Custom House, Lahore 1999 SCMR 1881 Mir Zaman v. Mst. Sheda and others 2000 SCMR 1699 rel.

Fiaz H. Shah for Petitioner.

Abdul Shakoor for Respondent No.3.

Ali Raza for Intervenor/Auction-Purchaser.

Date of hearing: 21st February, 2013.

2013 C L C 1691

[Sindh]

Before Muhammad Ali Mazhar, J

KARACHI COOPERATIVE HOUSING SOCIETIES UNION LTD. Through Officiating/Acting Managing Director----Plaintiff

Versus

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

C.M.As. Nos.5013, 5014, 5143, 5126, 5127, 5128, 5402, 6700, 11679 and 13702 of 2012, 1724, 5170 and 6108 of 2013 in Suit No.545 of 2012, decided on 26th June, 2013.

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

----O. I, R. 10---Transposition of parties---Powers of court stated.

In appropriate cases, transposition of the parties may be made, but for that reason each case and its facts have to be examined separately with aims and objectives as to what purpose will be served in case of transposition of parties.

Pir Khan v. Military Estate Officer PLD 1987 SC 485 and Delhi Mercantile Cooperative Society Ltd. v. Registrar Cooperative Societies 2011 YLR 2121 ref.

Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 and Rafaqat Ali v. Government of the Punjab and others PLD 1998 Lah. 441 rel.

(b) Contempt of Court---

----Application for initiation of contempt proceedings---Non-compliance with order of court by contemnor during pendency of suit---Disposal of suit by court subsequently---Effect---Matter of contempt being between court and contemnor, court despite disposal of suit might examine whether its order had been complied with or flouted by contemnor and whether he should be tried or not---Court after hearing both parties would frame issues, if any case for contempt was made out---Court kept such application pending for its decision in accordance with law.

Khawaja Shams-ul-Islam for Plaintiff.

Ahmed Ali Ghumro for Defendants Nos.1 to 4.

Imdad Mughal, Section Officer (Technical) Cooperation Department.

Faisal Siddiqui for Defendant No.5.

Haseeb Jamali for Defendant No.6.

Irfran Aziz for Intervenor.

Dates of hearing: 24th April, 9th 15th and 24th May, 2013.

2013 C L C 1712

[Sindh]

Before Maqbool Baqar and Syed Muhammad Farooq Shah, JJ

ABDUL QADIR PATEL----Petitioner

Versus

CHIEF ELECTION COMMISSIONER and 2 others----Respondents

Constitutional Petitions Nos.D-1207 and 1212 of 2013, decided on 26th April, 2013.

Delimitation of Constituencies Act (XXXIV of 1974)---

----S. 10A---Representation of the People Act (LXXXV of 1976), S.57---Constitution of Pakistan, Art.199---Constitutional petition---Delimitation of constituencies---Election Commission, powers of---Amendments/alterations in constituencies were made by Election Commission on the direction of Supreme Court---Petitioner assailed amendment and alteration/modification in final list of constituencies on the ground that after finalization of voters' list no change in constituencies could be made---Validity---At the dint of section 10A of Delimitation of Constituencies Act, 1974, starting with non-obstante clause, "notwithstanding", Election Commission was fully empowered that it could, at any time, of its own motion, make such amendments, alterations or modifications in final list of constituencies published under S.10A (3) of Delimitation of Constituencies Act, 1974, or in the areas included in a constituency as it would think necessary---In case the petitioner felt that there was any room for interpretation or clarification of the same, High Court observed that it would be appropriate for them to have approached Supreme Court---Any interference in election process at such belated stage would cause interruption in the process and delay the same---High Court could only interfere in election matters if interference was to sub-serve the election, election process and not to interrupt or interfere with election or election process---Petitioners, if permissible under the law and if so advised, could either approach the Supreme Court and or file appeal before Election Tribunal, constituted under S.57 of Representation of the People Act, 1976---Petition was dismissed accordingly.

Wattan Party and others v. Federation of Pakistan and others PLD 2011 SC 997; Joy Joseph and others v. The Electoral Registration Officer and another W.P. (C) No.28832 of 2010; Mathai K.V. v. State of Cooperative Election Commission and others, 2007(2) KLJ 194, W.P. (C) No.8708 of 2007; Dashemsh Sewa Society and another v. Lt. Governor of Delhi and others 2012 IVAD (Delhi) 174 W.P.(C) 4166 of 2011; Jalaluddin Ahmed v. Matiu Rahman and others, C.R.78 of 1988; Om Parkash Tiwari and others v. The Election Commission, C.W.J.C. No.4029 of 2002; Election Commission of India v. Ashoke Kumar and others Manu/SC/0544/2000: (2001) ILLJ 601 SC and Sri Subrata Chatterjee AIR 1983 Calcutta 436 ref.

Dr. Muhammad Farough Naseem along with S.M. Shuja Abbas for Petitioner (in C.P. No.D-1207 of 2013).

G.N. Qureshi for Petitioner (in C.P. No.D-1212 of 2013).

Ashikue Raza and Muneer-ur-Rehman, D.A.-Gs.

Shafi Muhammad Memon, Addl. A.-G.

Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

Dates of hearing: 2nd, 3rd, 8th and 26th April, 2013.

2013 C L C 1727

[Sindh]

Before Abdul Rasool Memon, J

Messrs HILAL TRADING COMPANY through Managing Director----Petitioner

Versus

SWAMI NARAIN TEMPLE ESTATE TRUST BUILDING and 2 others----Respondents

Constitutional Petition No.S-110 of 2007, decided on 12th February, 2013.

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

----Ss. 15(2)(iv) & 3(c)---Ejectment petition---Ground of illegal and unauthorized construction raised over roof of demised premises---Validity---Evidence on record showed that tenant had made addition and alterations in demised premises by constructing rooms over its roof without permission of landlord---Tenant by constructing such rooms had changed very structure of the demised premises without consent of landlord---Such construction would be treated to have impaired value and utility of demised premises---Ejectment petition was accepted in circumstances.

Amina Begum v. Iqbal Hussain 1988 CLC 1816; Shafqat Ali Khan v. Mahboob Alam 1993 MLD 219; Zainab Bai and 2 others v. Shafiuddin PLD 1987 Kar. 116; Mukhtar Ahmed v. IIIrd Additional District Judge, and others 2004 MLD 713; Habib Bank Limited v. Muhammad Raza 1997 MLD 833; Muhammad Saeed v. United Bank Limited, Karachi 1993 CLC 1830; Mushtaq Ahmad and others v. Mehmood Ahmad and others 2005 CLC 1827; Pakistan State Oil Company Limited v. Sikandar A. Karim and others 2005 CLC 3; Mst. Suriya Sultan v. M.I. Malik 1988 MLD 2936; K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332; Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others PLD 1957 SC (Ind.) 346; Mst. Bilqis Sultana v. Settlement Commissioner, Lahore and 2 others PLD 1975 Lah. 185; Danish Iqbal v. Syed Zaheerul Hasan 1986 CLC 981; Anjuman Himayat-e-Islam, Lahore v. Dr. Syed Farooq Hassan PLD 2007 SC 352; Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Abdul Aziz Butt v. Muhammad Arshad and another 1985 MLD 148; M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991 SC 317; Lithocraft Corporation v. A. Habib through his 9 LEGAL heirs 1988 CLC 272 ref.

Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1998 SCMR 689 rel.

(b) Waiver---

----Waiver, plea of---Scope---Such plea for being mixed question of fact and law, if not raised before lower court, could not be raised for the first time in appeal---Principles.

The plea of waiver is a mixed question of fact and law, and unless such plea has specifically been raised before lower court and parties have been given opportunity to lead evidence in rebuttal of such plea, it could not be allowed to be raised for the first time in appeal.

Danish Iqbal v. Syed Zaheerul Hasan 1986 CLC 981 rel.

(c) Waiver---

----Mere silence to claim or enforce a right for sometime would not amount to its waiver---Principles.

Mere silence to claim or enforce a right for sometime does not amount to a waiver of right. The doctrine of waiver would step in only when there is some clear and decisive act or conduct beyond mere silence, as pure silence by a party with regard to a right perfectly known to the other can rarely mislead a man of average intelligence.

Mst. Bilqis Sultana v. Settlement Commissioner, Lahore and 2 others PLD 1975 Lah. 185 rel.

(d) Laches---

----Laches---Legal effect.

Laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as legitimate rights which cannot be denied on the ground of laches, unless it is found that it will cause injustice to the opposite party.

Anjuman Himayat-e-Islam, Lahore v. Dr. Syed Farooq Hassan PLD 2007 SC 352 rel.

Rafiq Ahmed Kalwar for Petitioner.

Neel Keshav for Respondent.

Dates of hearing: 20th November and 11th December, 2012.

2013 C L C 1763

[Sindh]

Before Mushir Alam, C.J. and Nadeem Akhtar, J

MUHAMMAD TARIQ MANSOORI----Petitioner

Versus

ABDUL GHANI MANSOORI and 3 others----Respondents

Constitutional Petition No.D-533 and Miscellaneous 2929 of 2012, decided on 24th April, 2013.

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

----O. IX, R.4---Suit, restoration of---Conditional order of restoration of suit---Non-deposit of cost as ordered by the court---Conditional order of restoration of the suit lost its efficacy and the order of dismissal passed by the Trial Court became final.

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

----Ss. 96 & 115---Revision---Maintainability---Dismissal of suit for non-prosecution---Decree would follow even if the suit was dismissed for non-prosecution and as such only a first appeal should lie under S.96, C.P.C.---Revision filed against the order of dismissal of the suit was not maintainable and impugned order was coram non judice.

Zahid Farooq Mazari for Petitioner.

Mirza Asif Baig for Respondent No.1.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 16th April, 2013.

2013 C L C 1770

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ABID and brothers----Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH AT KARACHI and 2 others----Respondents

Constitutional Petition No.S-648 of 2012, decided on 6th February, 2013.

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

----S. 2(j)---Tenant---Categories---Two categories of tenants i.e. contractual tenant and statutory tenant---Contractual tenant is one who undertakes to pay or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf during contractual period of tenancy---Statutory tenant is one who is bound to pay rent by operation of law such as contractual tenant continuing possession or occupation of premises on expiry of agreed period of tenancy or heirs of tenant in possession or occupation of premises after the death of tenant.

Beejal Mal v. Punaji 1987 CLC 1134 rel.

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

----S. 15---Landlord and tenant, relationship of---Proof---Payment of utility charges-Effect---Such payment, in absence of any specific terms and conditions of tenancy would not be enough to prove existence of relationship of tenant and landlord.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Concurrent findings of fact---Petitioner claimed to be owner in possession of premises and he denied any relationship of tenant and landlord---Ejectment application filed by respondent was allowed by Rent Controller and eviction order was passed against petitioner and the same was maintained by Lower Appellate Court---Validity---Petitioner never admitted that in the year, 1983, he or his father had been induced in demised premises as tenant and since then petitioner had been enjoying possession---No demand of enhancing of rent during 30 years had been made by the landlord and respondent filed ejectment proceedings under S.15 of Sindh Rented Premises Ordinance, 1979, after the petitioner committed wilful default in payment of rent for 3-1/2 years---Though no limitation was provided for filing ejectment application but from such unnecessary delay inference could be drawn adversely against the respondent---Rent Controller and Lower Appellate Court erred in deciding the point relating to existence of relationship of landlord and tenant between parties and Rent Controller had no jurisdiction to entertain ejectment application---High Court in exercise of Constitutional jurisdiction, set aside eviction orders passed by two courts below resultantly ejectment application was dismissed---Petition was allowed in circumstances.

Habib Ahmed v. Liaquat Ahmad PLD 1985 Kar. 741; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Muhammad Akram v. Muhammad Zar and others 1987 SCMR 1788; Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others 1991 SCMR 1376; Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; PLD 2009 SC 453; PLD 1991 SC 242; PLD 2008 Kar. 424; 2002 CLC 876; PLD 2003 Kar. 444 and Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 ref.

Mrs. Shabana Ishaque for Petitioner.

Nadir Burdi for Respondent No.3.

Date of hearing: 28th January, 2013.

2013 C L C 1780

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD IQBAL----Petitioner

Versus

Mst. ZAHIDAN and 2 others----Respondents

Constitutional Petition No.S-1753 of 2012, heard on 15th February, 2013.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Proof in form of list of dowry articles bearing signatures of husband side---Scope---Not possible for a wife to produce such kind of documentary evidence---Reasons stated.

Muhammad Habib v. Mst.Safia Bibi and others 2008 SCMR 1584 and Mirza Arshad Baig v. Additional District Judge 2005 SCMR 1740 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Inference drawn by courts below after proper appreciation of evidence---Not open to interference by High Court---Principles.

The courts below in its original and appellate jurisdiction are competent to draw inference while delivering the judgment, and it is not open to interference in constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by the court of competent jurisdiction for the reason that it was within their exclusive jurisdiction to believe and disbelieve the evidence. No constitutional petition lies when evidence in the case has been properly appreciated and analyzed.

Sohail Ahmed Khoso for Petitioner.

Raham Ali Jatoi for Respondent No.1.

Salahuddin Abro, State Counsel.

Date of hearing: 15th February, 2013.

2013 C L C 1789

[Sindh]

Before Muhammad Ali Mazhar, J

KOHINOOR TOBACCO COMPANY (PVT.) LTD.----Applicant

Versus

S.M. IDREES ALLAWALA----Respondent

C.M.A. No.1690 of 2013 in Suit No.142 of 1996, decided on 2nd May, 2013.

(a) Words and Phrases---

----"Good cause"---Connotation---Phrase "good cause" meant an adequate, sound and genuine reason and depended upon facts and circumstances of an individual case as there was no set formula or criterion to determine as to what constituted "good cause"---Whether a good or sufficient cause was made out or not depended upon the facts of each case.

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

----O. XIII, R. 2---Interpretation of O.XIII, R.2, C.P.C.---Phrase "good cause", connotation---Production of additional evidence at subsequent stage of proceedings---Scope---Phrase "good cause" used in O.XIII, R.2, C.P.C. should be construed liberally to serve the ends of justice and said provision was general provision applicable to both the plaintiff as well as the defendant and benefit of this provision should be made available to them both liberally---Court may in its discretion admit documents at subsequent stage of proceedings to dispense with justice with the sole aim and objective that the function of the court was to do substantial justice and decide the rights on merits rather than technicalities.

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

----O. XIII, R. 2---Production of additional evidence at subsequent stage of proceedings---Object and Scope---Rationale behind O.XIII, R.2, C.P.C. was to prevent fraud and not penalize parties for non-production of documents and in such regard, there was no hard and fast rule but the matter was left open to the discretion of the court to decide on the same based upon sound judicial principles depending upon the facts and circumstances of each case---If there was no doubt as to the authenticity of documents sought to be produced, then an application under O.XIII, R.2, C.P.C. ought not to be discarded lightly as rules and procedure were intended to advance the cause of justice rather than to obstruct same---Mere delay in filing of an application under O.XIII, R.2, C.P.C. would not be a reasonable ground or sufficient cause to disentitle the production of such documents/evidence as the same would amount to a negation of O.XIII, R.2, C.P.C. which was especially designed to remedy such a situation---Application for permission to produce documents and/or additional evidence may be filed at any stage when the genuineness of such documents was beyond any shadow of doubt and the same ought not to be shut out of evidence if produced at a later stage.

Messrs Trading Corporation of Pakistan v. Messrs Rahat & Co. 2005 CLC 1305; The Lahore Improvement Trust v. Messrs Khuda Baksh-Meraj Din PLD 1956 Lah. 252; United Bank Ltd. v. Shabbir Ahmed and another PLD 1981 Kar. 255 and Shabbir Ahmed Abbasi v. United Bank Ltd. PLD 1981 Kar. 596 distinguished.

Muhammad Umair Mirza v. Waris Iqbal 1990 SCMR 964 and Sher Baz Khan v. Mst. Malkani Sahibzadi Tiwana PLD 2003 SC 849 ref.

(d) Administration of Justice ----

----Procedure---Significance---Proper place of procedure in any system of administration of justice was to help and not thwart the grant to the people of their rights---All technicalities had to be avoided unless the same were essential to comply with grounds of public policy---English system of administration of justice upon which system in Pakistan was based, may be to a certain extent technical but defects of English system should not be taken and any system which by granting effect to the form and not the substance and defeated the substantive rights, was defective to such extent---Ideal must always be a system that gave to every person what was his.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

Muhammad Haseeb Jamali for Applicant.

Adnan Iqbal Choudhry for Respondent.

Date of hearing: 2nd April, 2013.

2013 C L C 1800

[Sindh]

Before Muhammad Ali Mazhar, J

Messrs AZMAT TRADING CO. (PVT.) LTD. through Managing Director----Applicant

Versus

NDLC-IFIC BANK LIMITED----Respondent

C.M.A. No.1910 of 2013 in Banking Suit No.B-22 of 2003, decided on 21st May, 2013.

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

----Arts. 76 & 77---Production of secondary evidence, application for---Plaintiff sought to produce photocopies of documents on the ground that the original documents were in possession of a Bank and company outside Pakistan and were therefore out of reach of the plaintiff and not subject to the process of the court---Validity---Secondary evidence was an exception to the general rule and only meant for the purpose of catering to a genuine need and hardship and was not to be allowed in routine or without complying with requirements mentioned in Arts.76 & 77 of the Qanun-e-Shahadat---Contents of documents in evidence could only be proved through secondary evidence if the conditions mentioned under Art.76 were available and which were to be satisfied first---Article 76 of the Qanun-e-Shahadat provided an alternate mode and method of proving a document which for various reasons could not be produced---When primary evidence was not available or produced, then it was permissible under law to produce secondary evidence which remedy was designed for the protection of person who despite best efforts from circumstances beyond his control was unable to produce primary evidence---Such benefit was not intended for a person who intentionally or with some ulterior motives or sinister object refused to produce the document in court which was in his possession, power and control---Court was competent to determine whether sufficient ground had been made out or not for the admission of secondary evidence which discretion was to be exercised keeping in view the parameters and dynamics laid down in Art.76 and the facts and circumstances of each case as secondary evidence was to be given to prove the existence, condition or contents of documents and nothing beyond that---In the present case, purpose for filing application for production of secondary evidence was that the original documents sought to be produced were in possession of a Bank and company outside Pakistan, and were outside the reach of the plaintiff and not subject to process of the Court, which fact had not been denied or disputed by the defendant, therefore, plaintiff made out a prima facie case and deserved permission to lead secondary evidence---Application for production of secondary evidence was allowed, in circumstances.

Kamal Azfar for Applicant.

Nabeel Kolachi for Respondent.

Date of hearing: 21st May, 2013.

2013 CLC 1

[Lahore]

Before Ijaz ul Ahsan, J

JAFFAR ALI and others----Petitioners

Versus

MEMBER (JUDICIAL-IV), BOARD OF REVENUE, PUNJAB, LAHORE and another----Respondents

Writ Petition No.2691 of 2010, decided on 18th September, 2012.

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

----S. 30(2)---Constitution of Pakistan, Art.199---Constitutional petition---Resumption of land---Fraud or misrepresentation---"Condemned unheard", principle of---Applicability---Grievance of petitioners was that authorities had cancelled allotment of land in question alleging that the same was allotted with fraud and misrepresentation---Validity---None of the parties alleged fraud in the matter and the question was taken note of by Member Board of Revenue himself---Member did not lack jurisdiction to examine question of fraud and in case he was satisfied that fraud had been committed, he was required to follow provisions of section 30(2) of Colonization of Government Lands (Punjab) Act, 1912---Parties were to be confronted and were given reasonable opportunity to defend themselves and thereafter an appropriate order would have been passed---Parties were never confronted with question of fraud and Member, Board of Revenue unilaterally and in isolation considered question of fraud and passed order directing resumption of land in question, as such the same constituted illegality, in exercise of jurisdiction and was fatal to the order---Petitioners as well as respondent were condemned unheard and had been presented with fait accompli without having been given reasonable opportunity to present their point of view---High Court set aside order passed by Board of Revenue resuming land in question and directed to confront petitioners as well as respondent with allegation of fraud, grant them reasonable opportunity of showing cause to present their point of view as envisaged by section 30 (b) and other provisions of Colonization of Government Lands (Punjab) Act, 1912 and remanded the matter to Board of Revenue, to pass an appropriate order in accordance with law---Petition was allowed accordingly.

Malik Ghulam Siddique Awan for Petitioner.

Faisal Zaman Khan, Addl. A.-G. for Respondent No.1.

Khalid Mehmood Rana for Respondent No.2.

2013 CLC 21

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD NOMAN BUTT and 11 others----Petitioners

Versus

CHAIRMAN PAKISTAN CRICKET BOARD, LAHORE and 5 others----Respondents

Writ Petition No.21238 of 2012, heard on 18th September, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Regional Cricket Associations---Vote of no confidence---Petitioners were office-bearers of District Cricket Associations who moved vote of no confidence but Election Commission, Pakistan Cricket Board dismissed the resolution because two office-bearers of one Association had lost their status---Subsequently when two new office-bearers had been elected, no confidence resolution was again moved by petitioners but the Commission again dismissed the resolution on the ground that after failure of earlier resolution, second resolution could not be initiated before expiry of 12 months---Validity---Condition of 12 months expiry period could have been imposed, had the motion of vote of no confidence resulted into failure after voting---Election Commission, Pakistan Cricket Board, illegally killed the motion in chamber not only without putting it in the motion but also without affording opportunity of hearing to all concerned i.e. 12 office-bearers of District Cricket Association---High Court declared letter/order of Election Commission, Pakistan Cricket Board having been passed without lawful authority and in disregard of law, rules and regulations as resolution of no confidence could only fail after voting was held---High Court directed the authorities to immediately put motion of no confidence for voting purposes---Petition was allowed accordingly.

Dr. Muhammad Ali Shah v. PCB 2010 MLD 1241 ref.

Ch. Amir Hussain for Petitioners.

Taffazal H. Rizvi for Respondents.

Date of hearing: 18th September, 2012.

2013 CLC 34

[Lahore]

Before Shujaat Ali Khan, J

Messrs NISHAT CHUNIAN LTD. through Chief Officer---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Local Government and 2 others---Respondents

C.M. No.2050 of 2012 in Writ Petition No. 177 of 2008, decided on 17th May, 2012.

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

----Sixth Sched., para 44---Punjab Local Government (Fee for Licensing and Permits and Licensing of Professions and Vocations) Rules, 2002, R.3(iii)(f)---Constitution of Pakistan, Arts. 189 & 199---Constitutional petition---License fee, demand of---Manufacturing of textile products---Supreme Court, decision of--- Judgment in rem---Petitioner was a textile manufacturing company and was aggrieved of notice of demand issued by authorities for recovery of professional fee---Plea raised by authorities was that notice was rightly issued as the matter had already been decided by Supreme Court---Validity---Business of manufacturing textile products fell within the purview of paragraph 44 of Sixth Schedule to Punjab Local Government Ordinance, 2001, read with Rule 3(iii)(f) of Punjab Local Government (Fee for Licensing and Permits and Licensing of Professions and Vocations) Rules, 2002, therefore, notice for demand of license fee was lawfully issued by authorities---Earlier petition filed by petitioner was disposed of in terms of judgment passed in main petition and the same was set aside by Supreme Court, which was judgment in rem, and binding on all in view of Art.189 of the Constitution---Non-filing of appeal in other cases was of no legal consequence---Judgment settling proposition of law and declaring legal position was binding upon petitioner company and as such demand notice was legally issued by authorities under Punjab Local Government Ordinance, 2001--- Petitioner failed to make out a case for holding notice as illegal and without lawful authority---Petition was dismissed in circumstances.

Quetta Textile Mills Limited, Nadir House, G/F-I, I.I. Chundrigar Road, Karachi v. Pakistan through Secretary, Ministry of Finance, Government of Pakistan Islamabad and 2 others 2000 YLR 2683; Income-Tax Officer, Central Circle II, Karachi and another v. Cement Agencies Ltd. PLD 1969 SC 322; Mian M. Azam Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449; Koh-i-Noor Sugar Mills Limited v. Pakistan through Secretary, Ministry of Finance and 2 others 1989 SCMR 2044 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O.XXIX, R.1---Constitutional petition---Corporation/company, locus standi---Pre-condition---Company is not competent to file constitutional petition in absence of certified true copy of resolution and Memorandum of Articles and Association---Such deficiency is fatal and subsequent rectification cannot fill up such lacuna.

Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab through Secretary Local Government and 3 others PLD 2012 Lah. 52; Messrs Sargodha Jute Mills Limited v. Federation of Pakistan and others Writ Petition No.13784 of 2008; Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499; Words and Phrases (Volume 23) published by West Publishing Co.; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Trustees of the Port of Karachi v. Karachi International Container Terminal Limited 2010 CLC 1666; Messrs Sandal Dye Stuff Industries Ltd. v. Federation of Pakistan through Secretary Finance, Pakistan Secretariat, Islamabad and 5 others 2000 CLC 661 and Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 rel.

Malik Ahsan Mahmood for Petitioner.

Ch. Abrar Ahmad and Hafiz Muhammad Naeem for Respondent No.1.

Rana Shamshad Khan, A.A.-G.

2013 CLC 52

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Syed MUHAMMAD BAQIR SHAH----Petitioner

Versus

FARIDA SAJID----Respondent

Civil Revision No.147 of 2003, decided on 8th September, 2011.

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

----Arts. 117 & 118---Transfer of property of pardahnashin lady was challenged on plea of fraud, deception and misrepresentation---Burden of proof---Onus in such case would lie on beneficiary of transaction to establish genuineness and bona fide of document through which such transaction had taken place.

(b) Islamic Law---

----Gift---Gift through mutation in favour of brother was challenged by his sister to be based on fraud, deception and misrepresentation---Proof---Sister in her deposition had categorically denied to have ever appeared before Revenue Officer in connection with suit mutation---Brother, in order to prove genuineness of mutation did not examine Patwari, marginal witnesses of suit mutation and Revenue Officer having attested the same---Brother did not opt to enter into witness box, rather examined his special attorney, who had admitted not to be present at time of attestation of suit mutation---Brother was bound to prove that sister had actually gone to office of Revenue Officer or was present there at time of attestation of suit mutation and was fully aware of suit transaction---Brother had failed to discharge onus to prove genuineness and bona fide of the suit mutation---Sister had established fraud which would vitiate most solemn transaction---Sister's suit was decreed in circumstances.

Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591; Abdul Raheem and another v. Mrs. Jannat Bibi and 13 others 2000 SCMR 346 and Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 rel.

(c) Pardahnashin lady---

----Educated lady who was in service in the past---Status---Such lady, if did observe strict "Pardah" and was reluctant to go to male dominated departments/offices, could be termed as a "Pardahnashin" lady---Illustration.

(d) Islamic Law---

----Inheritance---Property left by deceased to be in exclusive possession of one legal heir---Effect---Such heir would be considered in constructive possession of property on behalf of all legal heirs.

Khair Din v. Mst. Salaman and others PLD 2002 SC 677 rel.

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

----Ss. 8 & 42---Limitation Act (IX of 1908), Art.120---Suit for declaration and possession---Transfer of plaintiff's land in defendant's name through gift mutation was challenged on ground of fraud and forgery---Suit filed on 2-11-2000 challenging gift mutation attested on 31-1-1987---Maintainability---Evidence on record showed that plaintiff had not come to her village in year 1987, rather at time of attestation of suit mutation, she was staying with her husband in another District, where he was posted---Plaintiff's husband had corroborated such statement of plaintiff by deposing that after marriage, she had never come to her village---Defendant's special attorney had shown complete ignorance about visits of plaintiff to her village---As per plaintiff's statement, she came to know about suit mutation when she checked revenue record---Suit was within time from date of plaintiff's knowledge in circumstances.

(f) Islamic Law---

----Inheritance---Limitation---Question of limitation would not arise in cases of inheritance.

(g) Fraud---

----Limitation---Fraud would vitiate most solemn transaction---Any transaction based on fraud would be void and notwithstanding bar of limitation, matter could be considered on merits so as not to allow fraud to perpetuate.

Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642 rel.

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

----O. XIV, R. 1 & O. XX, R. 5---Suit challenging gift mutation on ground of fraud and forgery---Passing of decree by Trial Court without framing issue regarding alleged fraud---Validity---Statement of defendant's special attorney to the effect that no fraud was committed, would show that parties were fully aware of controversy between the parties---Defendant was duly represented through counsel and had not taken objection before Trial Court at relevant time regarding non-framing of such issue---Defendant could not claim to have been prejudiced due to non-framing of such issue---High Court dismissed revision petition.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 and Muhammad Akram alias Raja v. Muhammad Ishaq 2004 SCMR 1130 rel.

Mujeebur Rehman Kiani for Petitioner.

Muhammad Anwar Khan Luqmani for Respondent.

2013 CLC 74

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD JAMEEL----Petitioner

Versus

ABDUL MAJEED and another----Respondents

Writ Petition No.6574 of 2012, decided on 21st May, 2012.

Punjab Rented Premises Act (VII of 2009)---

---S. 21(8)---Constitution of Pakistan, Art. 199---Constitutional petition---Restoration application for petition to leave to contest---Limitation---Scope---Ejectment of tenant on ground of default in payment of rent and expiry of tenancy agreement---Tenant's petition for leave to contest was dismissed for non-appearance and restoration application after said dismissal was also dismissed as being beyond the period of 30 days---Contention of the tenant was that his application for restoration of petition was within time, as the same was within the period of thirty days from the date when he became aware of the dismissal---Validity---For a petition to be moved under section 21(8) of the Punjab Rented Premises Act, 2009, no date of knowledge was made basis as a starting point for counting limitation to enable a person to move restoration application---Limitation started on the date when the petition for leave to contest was dismissed---Constitutional petition was dismissed, in circumstances.

Muhammad Ramzan Qadri for Petitioner.

2013 CLC 82

[Lahore]

Before Rauf Ahmad Sheikh, J

Major (R) FAIZ AHMAD FAIZ----Petitioner

Versus

MUHAMMAD ASHRAF MALIK and others----Respondents

Writ Petition No.2046 of 2008, heard on 29th February, 2012.

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

----O. XVIII, R. 16 & O. III, R.5---Constitution of Pakistan, Arts.199---Constitutional petition---Power to examine witness---Service of process on pleader---Plaintiff (respondent) moved application before Trial Court to fix the suit for an earlier date as one of the prosecution witnesses had to leave for a foreign country, and for that purpose confirmed air ticket of said witness was also shown in the court---Notices were issued to the defendant (petitioner) on several dates and service of the same was effected through counsel of the defendant, who contended that defendant was living in a foreign country so his personal service be effected---Trial Court found that 'Wakalatnama' of counsel of defendant was intact, therefore, service on the counsel was complete, and proceeded on to close the right of 'cross-examination of the witness in question as no one appeared on behalf of the defendant---Revision by defendant against order of Trial Court was also dismissed---Validity---Order XVIII, Rule 16 of C.P.C, clearly provided that if a witness was about to leave the jurisdiction of the court or there was any other sufficient cause available, the court may record the evidence of such witness immediately---Plaintiff had moved application well in time and inspite of repeated notices, personal service of defendant could not be effected but same was effected through the counsel for the defendant---'Wakalatnama' of defendant's counsel was intact so he could not have insisted on defendant's personal service---Order III, Rule 5, C.P.C, provided that process of court could be served on a party through its pleader, and pleader in whose favour the `Wakalatnama' was duly executed by the party could not refuse to accept service on the ground that personal service be ensured---Trial Court had rightly found that service was complete and proceeded on to record the evidence---Defendant had opted to remain away from the court in spite of service through counsel, leaving the Trial Court with no option but to close the right of crossexamination---Impugned order of Trial Court and Court below did not suffer from any illegality or infirmity---Constitutional petition was dismissed, in circumstances.

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

----O. III, R.5---Service of process on pleader---Scope---Order III, Rule 5, C.P.C, provided that process of court could be served on a party through its pleader, and pleader in whose favour the 'Wakalatnama' was duly executed by the party could not refuse to accept service on the ground that personal service be ensured.

Sardar Bilal Firdous for Petitioner.

M. Arshad Majeed Malik for Respondents.

Date of hearing: 29th February, 2012.

2013 CLC 85

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD ADNAN (MUHAMMAD IRFAN)----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Civil Revision No.2275 of 2012, decided on 20th July, 2012.

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

----O. XXXVII, R. 3---Suit for recovery---Direction to the defendant lo deposit disputed amount in court---Scope---Application for leave to defend by the defendant was allowed with the direction to the defendant to deposit the recovery amount in the court---Defendant contended that condition on the defendant for depositing the said amount with the court was arbitrary and therefore, the order of the Trial Court should be set aside to such extent---Validity---Court under O.XXXVII, Rule 3, C.P.C. had the discretion lo grant leave to defend conditionally or unconditionally and could, amongst other things, direct payment of the amount in dispute to be deposited with the court ----No illegality in the impugned order having been found, revision was dismissed.

Bashumal v. Dr. Zahoor Ahmad Sheikh 2008 SCMR 39; Abdul Karim Mengal v. Sultan Badshah 2010 YLR 2596 and Muhammad Azad v. Malik Zahoor 2008 CLD 1128 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Execution of a cheque, prima facie, carried the presumption that the same was issued against some consideration.

Muhammad Azhar Sulehria for Petitioner.

2013 CLC 94

[Lahore]

Before Abdul Waheed Khan, J

HARIS BIN HASSAN AKHTAR JANG----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No.132 of 2012, decided on 27th January, 2012.

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

----S. 10(4), proviso----Constitution of Pakistan, Art.199---Constitutional petition---Haq Mehr (dower) restoration of---Dissolution of marriage on the basis of Khula---Husband (petitioner) assailed order of Family Court, whereby, after dissolution of marriage, under provisions of the proviso to section 10(4) of the West Pakistan Family Courts Act, the Court framed the issues and asked the parties to record evidence in order to resolve the controversy as to whether the Haq Mehr (dower) amount was received by the wife---Validity---From the proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 it could be validly inferred, that if pre-trial reconciliation efforts failed, the Family Court would pass decree for dissolution of marriage forthwith; and would also restore to the husband, the Haq Mehr "received" by the wife---Order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife---Plaint of the wife had specifically mentioned that the Haq Mehr amount that was fixed at the time of the marriage remained unpaid---When the parties had filed divergent pleadings and had contradictory stands about the payment of the Haq Mehr amount, an order for forthwith restoration of Haq Mehr was not justified---Family Court had rightly settled said issue and had required the parties to adduce their evidence in order to resolve the controversy---Constitutional petition was dismissed.

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

----S. 10(4), proviso---Interpretations of S.10(4), proviso of West Pakistan Family Courts Act, 1964---Restoration of Haq Mehr---Proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 provided that it could be validly inferred, that if pre-trial reconciliation efforts failed, the Family Court would pass decree for dissolution of marriage forthwith; and would also restore to the husband, the Haq Mehr "received" by the wife---Order for the restoration of Haq Mehr could not be made mechanically as a matter of routine without first determining if the Haq Mehr was in fact received or not by the wife .

Muhammad Alamgir Khan for Petitioner.

Faisal Hanif for Respondent No.2.

2013 CLC 100

[Lahore]

Before Nasir Saeed Sheikh and Muhammad Ameer Bhatti, JJ

NOOR-UL-HASSAN KHAN----Appellant

Versus

LAHORE DEVELOPMENT AUTHORITY through Chairman and another----Respondents

Intra-Court Appeal No.7 of 2011 in Writ Petition No.12437 of 2010, heard on 10th October, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Policy of a statutory institution or a local body which is unilateral, violative of principles of natural justice and contrary to accepted norms of justice, fair-play and equity, cannot be given protection by High Court.

Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605 and Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 ref.

(b) Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Allotment of plot---Demand notice for additional amount---Appellant was allotted plot in question by authorities and after about 9 years of delivery of its possession, authorities demanded money for extra land alleged to be in possession of appellant---Validity---Amount in question was a price of excess land which formed part of plot in year 1998 when allotment in the name of appellant was made---Nothing prevented authorities from measurement of plot in question in year, 1998 and charged price of excess area at the spot---If such process could have undertaken by authorities in year, 1998, the price chargeable for excess area should not have been more than the price at rate mentioned in allotment letter---Merely because authorities themselves delayed process of measurement of extra land forming part of plot of appellant and took twelve years in raising demand that too after issuing an office order dated 28-5-2001, embodying a policy for assessing prices of future cases by authorities did not clothe the authorities with any lawful authority to raise demand against appellant for recovery of price at 40% above the current rate determined by Deputy Commissioner in locality of the property---Such act of authorities was unjust, unfair and was violative of principles of equity and justice and amounted to applying doctrine of unjust enrichment in favour of authorities---Division Bench of High Court set aside judgment passed by Single Judge and directed the authorities to charge price from appellant of excess area at the price proportionate to one on which plot in question was allotted to appellant in year 1998---Intra-court appeal was allowed accordingly.

(c) Administration of justice---

----Orders and actions---Protection by court---Principle---Any order or action of public authority which thus glitters so colourful that glimpses of arbitrariness cannot be shed away therefrom, such order or action cannot be given protection by courts of law which are relentlessly functioning to administer justice only and solely in accordance with the Constitution and the law.

Taki Ahmad Khan for Appellant.

Hassan Javaid for Respondents.

Date of hearing: 10th October, 2011.

2013 CLC 115

[Lahore]

Before Amin-ud-Din Khan, J

MINA BIBI----Petitioner

Versus

MANAK KHAN and others----Respondents

Civil Revision No.2972 of 2010, heard on 6th June, 2012.

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

----Arts. 87, 117 & 120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Inheritance---Divorce, proof of---Onus---Owner of suit property died issueless and plaintiff was his widow who sought her right in inheritance---Plea raised by defendants was that plaintiff was not entitled to inheritance as she had been divorced by the deceased in his life time---Validity---For proving a fact through positive evidence was the responsibility of defendants, as they had asserted that deceased had divorced the plaintiff and she had negated the fact---Plaintiff made statement on oath before Trial Court that she was never divorced by her husband and she was never conveyed about alleged divorce---Onus to prove divorce shifted upon defendants to prove positive, the factum of divorce and its confirmation---For positive proof of divorce, relevant material was entry of stamp vendor about sale of stamp paper for instrument of "Talaq", original divorce deed, entry in register and statement of writer of alleged divorce deed---Most of the certified copies of documentary evidence were not certified in accordance with Article 87 of Qanun-e-Shahadat, 1984, therefore, were not per se admissible---Original record had not been produced by defendants, therefore, documentary evidence produced by defendants had a little value---Defendants had orally alleged that various departments had also found that plaintiff was divorced by deceased but nothing was proved on record---Findings recorded by Trial Court was in accordance with evidence available on file and were well-reasoned, whereas Lower Appellate Court fell in error while relying upon inadmissible evidence produced by defendant---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.

Mian Ghulam Rasool for Petitioner.

Munir Hussain Punjutha for Respondents.

Date of hearing: 6th June, 2012.

2013 CLC 122

[Lahore]

Before Shujaat Ali Khan, J

Mst. SURRAYA JABIN----Petitioner

Versus

Mst. HAJRAN BIBI and others----Respondents

Writ Petition No.4825 of 2009/BWP, decided on 3rd October, 2012.

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

----O. VII R. 11 & Ss.149 & 115---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Rejection of plaint---Court-fee, deposit of---Defendant had moved application under Order VII Rule 11, C.P.C. before Trial Court for rejecting plaint on ground that requisite court-fee was not furnished by the plaintiffs---Trial Court allowed said application and directed plaintiff to deposit court-fee within a period of thirty days---Revisional Court suspended operation of order of Trial Court, however revision petition remained pending before the Revisional Court---Contention of defendant was that plaintiff was bound to comply with order of Trial Court even when revision petition remained pending---Validity---When the operation of order of Trial Court was suspended by Revisional Court, stipulation regarding furnishing of court-fee was no more in field and remained suspended during the period when revision was pending before Revisional Court and even otherwise under section 149, C.P.C. court had power to extend time---Plaintiffs, therefore, could not be penalized for non-deposit of court-fee within the stipulated period of Trial Court as order of Trial Court became redundant---Constitution petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Concurrent findings of courts below, interference in Constitutional jurisdiction of High Court---Scope---Concurrent findings recorded by courts below could not be upset in the Constitutional jurisdiction of High Court until and unless same were proved perverse or a result of arbitrariness.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

(c) Administration of justice---

----Dismissal of suit on technicalities---Scope---When a party otherwise had a good case, same could not be thrown out on basis of technicalities and the Court should decide the lis between the parties after recording of evidence.

Sardar Abdul Rauf Dasti for Petitioner.

Abdul Qayyum for Respondents Nos.1 to 3.

Shehr Muhammad for Respondent No.4.

2013 CLC 131

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD SHAFI through L.Rs. and another----Petitioners

Versus

AAMIR HAMEED and others----Respondents

Civil Revision No.123 of 2008, heard on 8th June, 2012.

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

----Art. 113---Admitted fact---Scope---Facts admitted by other party need not to be proved as required by law.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art.113---Suit for pre-emption---Talb-e-Ishhad, notice---Proof---Admitted fact---Both the courts below concurrently dismissed suit filed by pre-emptor on the ground that he failed to prove issuance of notice of Talb-e-Ishhad---Plea raised by pre-emptor was that when vendees had admitted receipt of notice of Talb-e-Ishhad, then there was no need to prove the admitted fact---Validity---Production of two witnesses was required in a case where vendees refused to admit performance of Talb-e-Ishhad or deny any service of notice upon them---Pre-emptor, in such case was to produce witnesses who signed the notice and also to prove its dispatch by producing receipts and also acknowledgement due and the postman to show effect of service upon vendees---Vendees themselves, by producing notice in original, had admitted factum of Talb-e-Ishhad, therefore, there was no need to produce any witness to prove performance of Talb-e-Ishhad---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 pre-emptor subject to payment of balance price---Revision was allowed in circumstances.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Munir Hussain and 7 others v. Raja Mushtaq Ahmad PLD 2006 Lah. 48; Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 and Abdul Khaliq (deceased) through L.Rs. v. Ch. Rehmat Ali (deceased) through L.Rs and others 2012 SCMR 508 ref.

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

----S. 115---Revision---Maintainability---Once revision petition has been filed in court in time, it never becomes time-barred unless it is not declared by presiding officer by providing opportunity to remove the objection.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

Salman Mansoor for Petitioners.

S.M. Masud for Respondent No.1.

Sh. Tariq Mehmood, Advocate.

Date of hearing: 8th June, 2012.

2013 CLC 135

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD SHAUKAT and others----Petitioners

Versus

GHULAM MUHAMMAD and others----Respondents

Civil Revision No.304 of 2010/BWP, decided on 12th June, 2012.

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

----O. I, R. 10---Suit for partition---Necessary party, impleading of ---Scope---Application for impleading two new plaintiffs (applicants) was allowed by Appellate Court on ground that gift deed for suit property had been executed in their favour---Validity---Since gift deed was executed during pendency of suit between parties, the ultimate fate of the gift deed depended upon the final outcome of the lis between the parties and prior to that, applicants could not claim that they were necessary parties---Impugned order of Appellate Court was set aside---Revision was allowed, in circumstances.

Muhammad Yaqoob Khan v. Mst. Sahib Khatoon and others 1998 CLC 1576; Col. (R) Sadiq Hassan Sheikh v. Abdul Rasheed and another 1993 MLD 486; Rustam Ali and 2 others v. Haider Bakhsh and another 1988 CLC 779 and Wajed Ali and others v. Sudhir Chandra Das and others PLD 1970 Dacca 467 ref.

Mst. Taniya Syed v. Sh. Imran Jaleel and others PLD 2011 Lah. 539 rel.

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

----O. I, R. 10---"Necessary party"---"Proper party"---Distinction---Party whose presence before the Court was necessary to effectually and completely adjudicate upon and settle all questions could be termed as a "necessary party", whereas a party whose presence before Court was essential for adjudication of all issues involved in a suit was called "proper party".

Muhammad Arif and others v. District and Sessions Judge and others 2011 SCMR 1591 rel.

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

----O. I, R. 10---Non-joinder of necessary parties, objection of---Scope---Objection regarding non-joinder of necessary party was to be taken at the earliest and if it was not taken at an appropriate stage, same would be deemed to have been waived.

Muhammad Arif and others v. District and Sessions Judge and others 2011 SCMR 1591 rel.

Mian Ahmad Nadeem Arshad for Petitioners.

Abdul Ghaffar Khan Chughtai for Respondents.

2013 CLC 158

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD SAQIB ABBASI----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Local Government, Lahore and 2 others----Respondents

Writ Petitions Nos.1065, 1342, 1323, 1468, 1334, 1173, 1174, 1149, 1180, 1209, 1303, 1339, 1359, 1019, 1030, 2998, 1469, 1520, 588 of 2006 and Criminal Original No.29-W of 2012, decided on 21st June, 2012.

(a) Document---

----When basic document on which superstructure is built is void, the whole structure collapses automatically.

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

----Ss. 4, 6 & 17 (4)---Punjab Private Site Development Schemes (Regulation) Rules, 2005, R.3(2)(g)---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---"Public purpose"---Petitioners were landowners who assailed acquisition of land for Army Welfare Housing Scheme, on the ground that the acquisition was not for "public purpose"---Validity---Notifications of acquisition of land themselves denied "public purpose" as it was clearly stated that land was being acquired for welfare of army personnel only and not for general public---Army Welfare Housing Scheme was a scheme of Army Welfare Trust, which was a company but in relevant documents, Army Welfare Trust did not figure anywhere nor any document was produced before court to show if Army Welfare Housing Scheme had any authority to acquire land from the Province directly---Nothing was available on record to show that Army Welfare Housing Scheme for acquisition of land owned 80% land of the total proposed scheme except an affidavit furnished by revenue authorities, which affidavit was controverted by petitioner through counter affidavit---Army Welfare Housing Scheme did not hold 80% land of the total scheme as required under rule 3(2)(g) of Punjab Private Site Development Schemes (Regulation) Rules, 2005, at the time when notification under section 4 of Land Acquisition Act, 1894, for acquisition of land was issued---High Court in exercise of Constitutional jurisdiction declared the notification under section 4 of Land Acquisition Act, 1894, invalid and unlawful---Petition was allowed in circumstances.

Raja Basharat Hussain and 3 others v. Capital Development Authority, Islamabad through Chairman and 3 others 2004 YLR 629 distinguished.

Raja Muhammad Bashir, Imran Shafique, Tahir Malik, Farrukh Arif Bhatti, Muhammad Asif Chaudhry for Petitioners and Lt.-Col. (R) Abdul Qadir in person.

Barrister Gohar Ali Khan for DHA/Army Welfare Housing Scheme.

Rashid Hafeez, Asst. A.-G. and Zahid Sohail A.C. (Saddar) Rawalpindi for the State.

Date of hearing: 20th June, 2012.

2013 CLC 174

[Lahore]

Before Amin-ud-Din Khan, J

SAEED-UD-DIN and others----Petitioners

Versus

Mst. HAFEEZ BEGUM and others----Respondents

Civil Revision No.407 of 2004, heard on 10th October, 2011.

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

----Ss. 15 & 20---Purchaser of State land---Status of such purchaser after his death---Scope---Such purchaser till payment of final dues to Government would be deemed to a tenant for all purposes---Status of such purchaser, for determination of rights inter se his legal heirs, would be that of a purchaser---Co-sharer in possession of a property would be deemed to be in possession on behalf of all co-sharers thereof---Any payment made to Government by a legal heir of such purchaser, if he remained in possession of such land and took produce thereof, would be presumed to be made on behalf of all legal heirs---Provision of S.20 of Colonization of Government Lands (Punjab) Act, 1912 would not apply to such case---Illustration.

(b) Co-sharer---

----Co-sharer in possession would be deemed to be in possession on behalf of all co-sharers.

Bashir Ahmad Chaudhary for Petitioners.

Ch. Muhammad Amjad Khan for Respondents Nos.1 to 6.

Mian Kashif Saleem for Respondents Nos.7 and 8.

Date of hearing: 10th October, 2011.

2013 CLC 185

[Lahore]

Before Abdus Sattar Asghar, J

SHARAFAT KALEEM----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALNAGAR and 11 others----Respondents

Writ Petitions Nos.2039 and 2040 of 2010/BWP, decided on 29th February, 2012.

(a) Punjab Rented Premises Act (VIIof 2009)---

----Ss. 22(2), 22(6), 21(1) & Sched.---Constitution of Pakistan, Arts.199 & 10-A---Constitutional petition---Non-serving of notice to tenant in the form prescribed in the Schedule to the Punjab Rented Premises Act, 2009---Effect---Tenant (petitioner) was served with a general notice to appear and file leave to contest before Rent Tribunal and said notice was not in the form prescribed by the Schedule to the Punjab Rented Premises Act, 2009; whereafter the defence of the tenant was struck of and ejectment petition was allowed---Validity---Words "subject to the Act" used in section 22(2) of the Punjab Rented Premises Act, 2009 bore great importance---Mandatory provision of filing of application for leave to contest within ten days of the first appearance of the tenant before the Rent Tribunal was subject to all other obligatory and ancillary provisions of the Punjab Rented Premises Act, 2009---When no notice in the form prescribed through the Schedule to the said Act, annexed with documents in terms of section 21 of the Act, was served upon the tenant, on filing of the ejectment petition or on their first appearance before the Rent Tribunal; then, the tenants could not be burdened with the consequences of the mandatory provisions of the sections 22(2) and 22(6) of the Punjab Rented Premises Act ,2009---Burdening the tenants with the said consequences would be violative of the principle of audi alteram partem---Word "shall" used in section 21(1) of the Act made it obligatory upon the Rent Tribunal to serve the tenant with a notice in the form prescribed in the Schedule and said notice was to be accompanied by copies of the application and annexed documents---Non-compliance of directory provisions of section 21(1) of the Punjab Rented Premises Act, 2009 amounted to denial of a statutory right of the tenant---In the event of such a denial of statutory right of the tenant, imposition of the penal provisions of section 22(2) of the Act could not said to be in the "due process of law"---Orders of the Rent Tribunal violated the right to fair trial and due process of law protected under Article 10-A of the Constitution---High Court set aside the impugned order and directed the Rent Tribunal to furnish to the tenant a fresh opportunity to file a leave to contest ejectment petition---Constitutional petition was allowed , accordingly.

(b) Constitution of Pakistan---

----Art. 10-A---Due process---Question of fact or liability conclusively presumed without having recourse to the procedural due process could not be said to have been determined under the "due process of law".

(c) Administration of justice---

----When law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law.

Khalil-ur-Rehman and others v. Dr. Manzoor Ahmed and others PLD 2011 SC 512 rel.

Sh. Faisal Munir for Petitioner.

Sh. Karim ud Din and Javed Iqbal for Respondents.

2013 C L C 196

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD ASLAM-- Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.3411 of 2012/BWP, decided on 18th June, 2012.

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

----S. 24---Constitution of Pakistan, Art.199---Constitutional petition--Pre-emption suit---Zar-e-Soam, deposit of---Deposit of Rs.1,60,000 by pre-emptor as zar-e-soam in pursuance of order of Trial Court whereas sale price of suit land mentioned in document was Rs. 6, 00, 000---Vendee's application that pre-emptor had not deposited Rs. 2, 00, 000 as zar-e-soam, thus, his plaint was liable to be rejected---Trial Court dismissed such application, while Revisional Court directed pre-emptor to deposit remaining amount of Rs.40, 000---Validity---Vendee had not challenged order of Trial Court regarding determination of zar-e-soam, thus, pre-emptor could not be blamed for its act---Party having complied with order of court regarding deposit of zar-e-soam could not be knocked out-in view of bar contained in S.24(2) of Punjab Pre-emption Act, 1991---Higher forum could direct deposit of more money, if that fixed by Trial Court was found to be not in accord with material on record---Courts below had rightly declined to reject plaint---High Court dismissed constitutional petition in limine.

Rana Muhammad Boota and another v. Muhammad Amir 2010 YLR 1073 and Mst. Parveen Akhtar and another v. Muhammad Sattar PLD 2006 Lah. 410 ref.

Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091; Tariq Mehmood Anjum v. Allah Dina 2008 CLC 479 and Mst. Nusrat Bibi v. Ghulam Ahmed 2012 YLR 41 rel.

Muhammad Afzal Ch. for Petitioner.

2013 C L C 214

[Lahore]

Before Shujaat Ali Khan, J

BASHIR AHMAD----Petitioner

Versus

QAISAR MEHMOOD and others----Respondents

Civil Revision No.172 of 2011/BWP, decided on 12th October, 2012.

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

----S. 2(2)---Acknowledged decree, types of---Scope---Preliminary decree, final decree and ex parte decree were acknowledged decrees.

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

----O. IX, Rr.6, 13, Ss.12(2), 96(2) & 114---Ex parte judgment and decree, setting aside of---Scope---Ex paste judgment and decree can be challenged by way of filing an application under Order IX,' Rule 13, C.P.C., a review petition, an appeal and in addition to that an application under section 12(2) of C.P.C.---When the legislators had given an option to the aggrieved party to challenge the ex parte judgment and decree by way of filing an application under O.IX, Rule 13, High Court could not give, verdict to the effect that in such matters, appeal was competent and not an application.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; M.S. Engineering Company v. Muhammad Mushtaq and 2 others 1992 SCMR 1294; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; Sikandar Khan alias Makhu v. Barkhurdar and 3 others 1975 SCMR 464; Azizullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lab. 879 and Anser Hussain v. Mst. Shazia Muhammad Hussain PCrLJ 2010 Sh.0 (AJ&K) 125 ref.

Ibrahim v. Mst. Kulsoom Begurn 1973 SCMR 589 rel.

Ch. Abdul Ghani and Fazal ul Mabood Chughtai for Petitioner.

2013 C L C 235

[Lahore]

Before Sagheer Ahmad Qadri, J

Mst. FARAH MEHNAZ and others----Petitioners

Versus

SAFEER HUSSAIN JAFFAR and others----Respondents

Writ Petition No.2442 of 2010, decided on 17th November, 2011.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Minor, welfare of---Minor daughter was living with her mother and Guardian Court declined to interfere in the custody but Lower Appellate Court handed over the minor to her father---Validity---Love and affection of a mother could not be compared with---Welfare of minor was to be given paramount consideration for disposal of such like questions i.e. custody of minors and for that purpose any other consideration, even personal law of the parties was sometimes preferred to be ignored---Whenever any such circumstances existed or controversies were brought before the Court, Judge performed his jurisdiction like parents---Tearing apart the minor from lap of her mother, who at such stage, for the sake and betterment of minor, even was taking risk of her matrimonial life with her second husband, would affect mental, psychological and physical uplift of the minor---High Court in exercise of Constitutional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and restored that of Guardian Court---Petition was, allowed, in circumstances.

Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305; Mst. Fauzia Begum v. Amin Saddruddin Jamal Gonji 2007 CLC 1403; Zohura Begum v. Maimuna Khatun PLD 1965 Dacca 290; Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Pesh.

23; Muhammad Afzal v. Mst Sattleena Akhtar and another 1995 CLC 1519 and Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 rel.

Malik Humayun.Zafar for Petitioner.

Syed Mansoor Hussain Bukhari for Respondent No. I.

2013CLC241

[Lahore]

Before Shujaaf Ali Khan, J

SHAKIL HAIDER and others----Petitioners

Versus

M. TUFAIL and others----Respondents

Civil Revision No.69-D of 1997, decided on 18th June, 2012.

(a) Constitution of Pakistan---

----Art. 201---Findings of Division Bench of High Court---Scope---Single Bench of same court could not substitute such findings.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

---S. 2-A---Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance (IX of 1972), S.2(2)---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.19 & 30 ---Specific Relief Act (1 of 1877), S.42---Suit for declaration---Succession to State-land after death of its tenant---Deceased tenant died in year in 1934 leaving behind a widow, brother and sister---Mutation of inheritance of deceased tenant attested in year 1934 in favour of his widow, who acquired proprietary rights in suit-land in year 1951 through registered sale deed---Brother of deceased tenant claimed that widow was limited owner of the suit-land, and she ceased to be its owner on account, of her re-marriage---Dismissal of brother's first suit for non ­prosecution---Brother's second suit on ground of another marriage by widow dismissed upto High Court---Suit by legal heirs of the brother of deceased tenant (plaintiffs) claiming to be entitled to inherit suit-land by virtue of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962; and that decisions of the previous suits were not binding upon them---Validity---Plaintiffs for being legal heirs of such brother of deceased tenant had stepped into his shoes, thus, they would be bound by decisions of such previous suits and could not claim fresh cause of action due to insertion of S.2-A in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, when their predecessor had not taken any step after insertion thereof---Widow, after getting possession of suit-land had 'transferred same to others through oral gift---Provision of S.2-A of the Act would not apply to a past and closed transaction as the present one---Plaintiffs for not having challenged registered sale deed in favour of widow could not challenge subsequent events---Plaintiffs' claim in the present suit and their predecessor's claim in such previous suits was same, thus, dismissal of such previous suits' had debarred them to file present suit, which was not maintainable on same cause of action---Neither plaintiffs nor their predecessor had filed application in terms of S.2(2) of Punjab Muslim Personal Law. (Shariat) Application (Removal of Doubts) Ordinance, 1972 for making fresh decision of the previous suits/proceedings---Plaintiffs after having based their claim on S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 were neither entitled nor could be allowed to base their claim on S.2(2) of Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972---Present suit filed in year 1983 was time-barred as plaintiffs had challenged entries in revenue record pertaining to year 1964, but had based their claim on Sot of Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 without explaining such delay---Revision petition was dismissed in circumstances.

Mst. Jhando and 6 others v. Muhammad Sharif and 9 others 2006 SCMR 882; Muhammad Yousaf and 2 others v. Mst. Karam Khatoon and 2 others 2003 SCMR 1535; Raja Muhammad Akbar and others v. Iftikhar Jillani PLD 1991 SC 71; Muhammad Bakhsh v. Zenab Bibi and others 1991 SCMR 2397; Nizam Din and others v. Amir and others 1989 SCMR 1958; Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Mst.. Began v. Mst. Bai 1983 SCMR 80; Barkat Ali v. Mst. Sughran Bibi and another NLR 1982 Revenue 110; Allah Rakha v. Siraj Din and others PLD 1967 SC 559 and Ilam Din v. Muhammad Din PLD 1964 SC 842 ref.

Mst.. Fatima Bibi and others v. Mst. Bibi and others 2010 SCMR 760; Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014; Ch. Salah ud Din Khan v. Ali Ahmad and 8 others 1987 CLC 584 and S. Azhar Hussain Shah and others v. Muhammad Arshad and others 1988 SCMR 1320 rel.

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

----S. 115---Concurrent findings of fact by courts below---Interference into such findings by High Court in revisional jurisdiction---Scope---High Court could not upset such findings without proving same to be 'either perverse or arbitrary or based on misreading or non-reading of evidence.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Raja Muhammad Sohail Iftikhar for Petitioners.

Ahmed Mansoor Chishti for Respondents Nos. 1 to 3.

Mian Amir Ahmed for Respondents Nos.4 to 10.

Date of hearing: 18th June, 2012.

2013 C L C 258

[Lahore]

Before Shujaat Ali Khan, J

KHALIL AHMED----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.2091 of 2011, decided on 6th September, 2012.

(a) Punjab Rented Premises Act (VII of 2009)---

---Ss. 8 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Tenant's objection was that ejectment petition filed on 10-3-2010 was not maintainable due to non-bringing of tenancy agreement by landlord in conformity with provisions of S.8 of Punjab Rented Premises Act, 2009---Decision of ejectment petition on 17-4-2010 by Rent Tribunal prior to expiry of grace period---Validity---Tribunal had decided ejectment petition much prior to expiry of grace period (12-11-201) provided under S.8 of Punjab Rented Premises Act, 2009---High Court repelled the objection.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 8 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment petition---Tenancy agreement not registered with Rent Registrar---Non-deposit of 10% of annual rent as fine by landlord while filing ejectment petition---Rent Tribunal accepted ejectment petition without giving any finding regarding non-deposit of such fine---Validity ---Rent Tribunal was obliged to see as to whether such fine was paid or not---Landlord could not be made to suffer for failure of Tribunal to give finding regarding such fine---Payment of such fine being matter between landlord and State, tenant could not take any benefit thereof---Ejectment petition could not be dismissed on ground of non-payment of such fine, rather same could be cured at appellate stage---High Court dismissed constitutional petition while directed the landlord to deposit 10% of annual rent with Rent Tribunal within' specified time, otherwise his ejectment petition would stand dismissed.

Muhammad Usman and another-v. ;Additional District Judge and 2 others PLD 2010 Lah. -281; Messrs Wateen Telecom Pvt. Ltd. v. Malik Abdul Ahad and 2 others PLD 2009 Lah. 429; Shaukat Mehmood v: Prof. Muhammad Yaseen and others 2011 CLC 832; Muhammad Zaman v. Akram Hussain and others 2011 CLC 755; Majid Khan and 2 others v. Mst. Naseem Bibi and 9 others PLD 2010 Lah. 389; Muhammad Asad Malik v. Rent Controller, Bahawalpur and others 2012 CLC 888; Ahmad Hussain Butt v. Robina and 2 others 2010 CLC 1115; Shahid Mustafa v. Munir Ahmad and others 2010 YLR 34 and PLD 1984 SC 289 ref.

Ladha Khan and others v. Mst. Bhiranwan 2001 SCMR 533 and Ghulam Hassan v. Jamshaid Ali and others,2001 SCMR 1001 rel.)

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Civil Procedure Code (V of 1908), O.XIV, R.1---Ejectment petition---Default in payment of rent by tenant, ground of---Framing of issues necessity of---Scope---Framing of issues would not be necessary, if such default was proved ---Principles.

Malik Abdul Aziz Awan and another v. Rana Maqboel Ahmad Khan 2012 SCMR 91 and Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 rel.

(d) Punjab Rented Premises Act (VII of 2009)---

----Ss. 8 & 9---Ejectment petition---Tenancy agreement not brought in conformity by landlord with provision of S.8 of Punjab Rented Premises Act, 2009---Effect---Landlord would be liable to pay 10% of annual rent as fine irrespective of fact whether grace period provided under S.8 of Punjab Rented Premises Act, 2009 had expired or not---Principles.

(e) Constitution of Pakistan-"

-Art. 199---Concurrent findings of facts by courts below---

Interference into such findings by High Court in constitutional jurisdiction---Scope---High Court could upset such findings only case of proving same to be either perverse or result of misreading or non-reading of evidence.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 Sc 45 and Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

(f) Equity---

----Person seeking equitable relief should show his bona fide first.

Nadeem Iqbal Chaudhry for Appellant.

Saeed Anwar Chaudhry for Respondent No.3.

Date of hearing: 6th September, 2012.

2013 C L C 268

[Lahore]

Before Ali Baqar Najafi, J

AYMEN SAFDAR and 4 others----Petitioners

Versus

M.S. ISHRAT SADIQ and others----Respondents

Writ Petition No.3249 of 2012, decided on 20th December, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Eligibility for appearance in Board of Education examination---Internal policy of institution/school regarding minimum criteria for appearance in examination was different from the policy of the Education Board---Propriety---School/respondent did not forward admission forms of students/petitioners to the concerned Education Board for appearance in examination on the basis that they failed to obtain 75% marks in their internal test/send-up exams.---Said percentage of marks was set by the school as part of its internal policy to maintain its reputation---Education Board had set 33% marks as the minimum percentage to be obtained by a student in his/her internal exams. to qualify for appearance in the Board examination---Petitioners contended that they had scored 55% in their internal exams., whereas eligibility as determined by the Education Board was only 33%---Validity---School was entitled to impose only reasonable conditions on its students---Education Board had already accepted admission forms of students as they fulfilled the criteria that had been laid down by it for the examination---School of petitioners was under the misconception that they would increase the standard of the school by ignoring those students who could not do well in their internal exams.---School had to accept the responsibility for the educational standard of its students---Policy of school had to be for the benefit of its students so as to encourage them to work hard and realize their weaknesses---Since Education Board had already accepted admission forms of students, therefore, school was just a post-office meant to forward admission forms of students---School in question was directed to submit admission forms of students to the Education Board, which was directed to accept the said forms and permit students to sit for the examination---Constitutional petition was disposed of accordingly.

Tahir Mehmood Abbasi for Petitioners.

Syed Sajid Shah, Accountant, for Respondents Nos.1 to 4.

2013 C L C 276

[Lahore]

Before Ali Baqar Najafi, J

Mst. MUSSARAT IQBAL NIAZI----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petitions Nos.200 of 2008, 206 and 207 of 2010, decided on 18th December, 2012.

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

----Ss. 10(4), 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Khula---Suit for dissolution of marriage on basis of Khula was decreed and wife was directed to return gold and land received from husband in lieu of decree of Khula---Contention of wife inter alia was that a specific amount of money was mentioned in column 13 of the Nikahnama which was to be the consideration for the Khula and that the gold was a bridal gift whereas the land was not Haq Mehr but a validly made gift in the wife's favour---Validity---Under Islamic Law marriage between a Muslim man and woman could be dissolved on basis of Khula for which some consideration is given in the form of dower which the wife was entitled to receive at the time of demand---Wife was also entitled to receive bridal gifts at the time of marriage which was solely the wife's property---Once gift of land was made, the title/ownership of the same departed from the original doner and vested to the donee which, without consent of the latter, could not be returned---Amount of money was mentioned in column 13 of the Nikahnama in the present case, and consideration for Khula was to be the said amount which was specifically mentioned in the Nikahnama---Gold and land were bridal gifts which were to remain in the ownership of the wife---High Court set aside findings of the courts below and directed that wife be allowed to retain the gold and land---Constitutional petition was allowed, in circumstances.

Tariq Mehmood v. Mst. Farah Shaheen 2010 YLR 349; Perveen Umar and others v. Sardar Hussain and others 2004 SD 215; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

2008 SCMR 186 rel.

(b) Islamic law---

----Gift---Once gift of land was made, the title/ownership of the same departed from the original doner and vested to the donee which, without consent of the latter, could not be returned.

Muhammad Aslam Malik for Petitioner.

Muhammad Amin for Respondents Nos.2-A to 2-G.

2013 C L C 325

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD AKMAL BHATTI----Petitioner

Versus

CHOLISTAN DEVELOPMENT AUTHORITY and others----Respondents

Writ Petition No.2897 of 2012/BWP, decided on 27th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Contractual dispute---Scope---Contract, awarding of---Extension in contract---Grievance of petitioner was that concerned authority had extended contract of respondent in clandestine manner, without recourse to public auction---Plea raised by respondent was that dispute between the parties was contractual in nature---Validity---Auctioning or awarding of contract of national assets through surreptitious and clandestine manner not only would prove to be a bane for society but also caused loss to national exchequer worth millions of rupees---Where departmental process for award of a public contract was laden with personal discretion or infected with personal bias, it could not be termed as transparent, fair or lawful process---Mandate of law and jurisdiction of High Court could not be ousted on the mere ground that dispute between parties was contractual in nature---Act of competent authority to grant extension in contract in favour of respondent invited serious objections regarding conduct of the authority and the same could not hold the field---High Court declared extension granted in favour of respondent and subsequent contract in favour of respondent, as null and void and the same was set aside---High Court directed the petitioner to deposit 30% in excess of lease amount for one year with the authority, who would put the matter to open auction---Petition was allowed accordingly.

Malik Atta Muhammad and another v. Government of the Punjab and others 2007 SCMR 178 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Jurisdiction---Scope---Illegal order---Where order passed by executive authority is patently illegal and unlawful, High Court has the ample power to take judicial notice thereof.

Muhammad Afzal v. Shehzad Asghar Dar and others 2003 SCMR 280 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition-Maintainability---Void order---Effect---Such order cannot be allowed to hold the field just for the reason that the same cannot be challenged before departmental authority---High Court, in such matters, should not hesitate to exercise its Constitutional jurisdiction to put such orders at naught.

Raja Sohail Iftikhar for Petitioner.

Liaquat Sami Khan for Respondent No.1.

Bilal Ahmad Qazi for Respondent No.2.

2013 C L C 333

[Lahore]

Before Shahid Waheed, J

T.M.A., SAMUNDRI through Administrator, and 3 others----Petitioners

Versus

ABDUL GHAFOOR----Respondent

Civil Revision No.2399 of 2012, heard on 17th October, 2012.

(a) Punjab Private Site Development Schemes (Regulation) Rules, 2005---

----Rr. 6 & 8(4)(iii)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Scope---Approval for construction---Principles---Plaintiff started developing housing scheme on his land and submitted layout plan to local government for approval but due to dispute regarding reserving of land for public amenity, authorities did not provide approval for construction---On filing suit by plaintiff, Trial Court as well as Lower Appellate Court granted interim injunction in favour of plaintiff to continue construction---Validity---Construction should be made after obtaining approved layout plan from competent authority and court could not permit construction not duly approved by the Authority---Permission by court would amount to bypassing mandatory requirement of law of obtaining approved plan before raising construction and clothe it with legitimacy under order of court---Public interest was of material and relevant consideration in either exercising or refusing to grant interim injunction; it would be gross violation of law and grave injustice to public-at-large, if a developer was allowed by way of interim injunction to develop housing scheme without wide roads, park, graveyard, school, mosque and other allied facilities---Injunction could not be granted in favour of a person, if he was proceeding to act contrary to law or was trying to make certain constructions which were contrary to granted sanction---Plaintiff failed to make out prima facie case which was an essential ingredient for grant of temporary injunction but such fact was not properly appreciated by courts below while granting temporary injunction in his favour---High Court in exercise of revisional jurisdiction set aside concurrent order passed by two courts below and application under O.XXXIX, rules 1 and 2, C.P.C., filed by plaintiff was dismissed---Revision was allowed in circumstances.

The Engineer in Chief Branch through Ministry of Defence Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Pakistan through The Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Selection Committee/ Principal, King Edward Medical College Lahore and 2 others v. Wasif Zameer Ahmad 1997 SCMR 15; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Tulip Polybag and others v. Additional Collector (Adjudication) Central Excise, Lahore 2002 YLR 1680; Ghulam Akbar Khan v. Haji Sher Jan and others 1989 CLC 1789; Mst. Hawa Bai v. Haji Ahmad and others 1987 CLC 558 and Swet Rajhansh Co-operative Society Ltd. v. Surat Municipal Corporation AIR 1995 Guj. 60 ref.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Public duty---No stay order can be granted, which interferes in performance of public duty, merely for the reason that as a result of act, an individual would suffer monetary loss which can be measured and compensated in terms of money.

Pakistan Water and Power Development Authority through its Project Director v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society Ltd., Islamabad PLD 1993 Lah. 237 and Mst. Khursheed Begum and 92 others v. K.D.A. and others 2003 YLR 1478 rel.

Ms. Sadia Malik for Petitioner.

Muhammad Shehzad Shaukat for Respondent.

Date of hearing: 17th October, 2012.

2013 C L C 395

[Lahore]

Before Ijaz Ahmad and Amin-ud-Din Khan, JJ

MUHAMMAD SULEMAN and others----Petitioners

Versus

PUBLIC-AT-LARGE and others----Respondents

Civil Revision No.342 of 2008, decided on 23rd February, 2012.

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

----S. 372---Succession certificate, issuance of---Entitlement---Sisters as residuaries---Scope---Deceased was unmarried lady survived by two real sisters and sons of her paternal uncle's sons---Sisters of deceased applied for issuance of succession certificate with regard to amount lying in her bank account and claimed the amount as residuary of deceased---Validity---For full sister becoming a residuary it was necessary that she must qualify the exceptions attached at Sl. No.6 of the table of residuaries in order of succession, provided under section 65 of Mohemmadan Law by D.F. Mulla---Sisters did not fulfil any exception, therefore, they being two in number would get 2/3rd share of inheritance, whereas 1/3rd would go to sons of her full paternal uncle's sons---High Court directed Trial Court to issue succession certificate accordingly and set aside concurrent findings of fact by two Courts below---Revision was allowed accordingly.

Barkat Bibi and others v. Mst. Gaman Bibi and others 2005 MLD 280 fol.

Rasoolan Bibi v. Waris Ali and others 2007 MLD 33 dissented from.

(b) Interpretation of statutes---

----Exception governs the rules/enactments.

Sh. Karim-ud-Din for Petitioners.

Raja Muhammad Sohail Iftikhar for Respondents.

Date of hearing: 22nd February, 2012.

2013 C L C 414

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

LUBNA SHUJA----Petitioner

Versus

RENT CONTROLLER and another----Respondents

Writ Petition No.23801 of 2012, decided on 28th September, 2012.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 22, 24 & 28(4) --- Constitution of Pakistan, Art.199---Constitutional petition---Rent Controller granting leave to contest ejectment petition---Deposit of arrears of rent---Scope---Ejectment petition---Default in payment of rent by tenant, ground of---Denial of relationship of landlord and tenant between parties by respondent---Order of Rent Tribunal granting respondent leave to contest ejectment petition---Petitioner's plea that while passing impugned order, Rent Tribunal was obliged to direct respondent to deposit arrears of rent or furnish surety therefor---Validity---Rent Tribunal would be competent to pass final order including order for deposit of arrears of rent only after refusing to grant tenant leave to contest---Rent Tribunal while granting leave to contest could only direct a "tenant" to deposit rent due, but not anybody else not having attained status of tenant---Respondent after denying such relationship had not been declared as tenant, thus, he could not be directed to deposit arrears of rent---Person being treated as tenant by petitioner had been impleaded as respondent in the ejectment petition---Petitioner had not placed on record any material to show respondent to be tenant either under previous owner or the petitioner, who claimed to be new owner of property---No provision existed in Punjab Rented Premises Act, 2009, whereby respondent or tenant could be compelled to furnish a surety or security as a substitute to the deposit of arrears of rent---Impugned order was interlocutory in nature, whereagainst remedy of appeal was not provided under Punjab Rented Premises Act, 2009---Constitutional jurisdiction against interim order would not ordinarily be exercised without showing same to be either perverse or without jurisdiction/lawful authority---Impugned order did not suffer from any such defect---High Court dismissed constitutional petition in limine.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 22 & 30---Ejectment petition---Default in payment of rent by tenant, ground of---Denial of relationship of landlord and tenant between parties by respondent---Petitioner's plea that her status as new owner of property had been admitted by respondent in presence of witnesses---Validity---Petitioner claiming to be new owner of property without first complying with mandatory provision of S.30 of Punjab Rented Premises Act, 2009 could not allege such default on part of respondent who was impleaded as tenant---Plea of petitioner was repelled---Principles.

(c) Constitution of Pakistan---

----Art. 199---Interim order not appealable under relevant statute---Interference in such order by High Court in its constitutional jurisdiction---Scope---Such jurisdiction could not be exercised ordinarily without first showing such order to be either passed without jurisdiction/lawful authority or perverse---Illustration.

Abdul Sami Khawaja for Petitioner.

2013 C L C 434

[Lahore]

Before Shahid Waheed, J

FARMERS' EQUITY PRIVATE LIMITED (FEP) MULTAN through Chief Executive and 3 others----Appellants

Versus

MEHBOOB ALAM----Respondent

First Appeal from Order No.255 of 2004, decided on 26th November, 2012.

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

----O.VII, R.2 & O. XXIII, R. 3---Arbitration Act (X of 1940), Ss.34, 14, 17 & 21 to 25---Suit for recovery---Application of defendant for stay of proceedings in suit in presence of an arbitration agreement between the parties was dismissed---Said arbitration agreement was entered into by the parties after the date of institution of the suit---Effect---Suit after institution was subsequently referred by parties to arbitration without leave of the court through an agreement which was dated after the institution of suit---Section 34 of the Arbitration Act, 1940 was restricted to cases in which the suit had been instituted after agreement to refer to arbitration---Procedure for making reference to arbitration in a pending suit was provided in Ss.21 to 25 of the Arbitration Act, 1940---Reference to arbitration and award procured in a pending suit without intervention of the court were a nullity and such award could not be made rule of the court in accordance with Ss.14 & 17 of the Arbitration Act, 1940---No bar existed on parties to get their case decided by mutual agreement at any time prior to final adjudication under provisions of Order XXIII, Rule 3, C.P.C. under which existence of a lawful agreement was one of the essential prerequisites for the applicability of said provision---Arbitration agreement without orders of a court in pending suit being departure from mandatory provisions of Ss.21 to 25 of the Arbitration Act, 1940 could not be categorized as a lawful agreement and was not enforceable---Application under S.34 of the Arbitration Act, 1940 was therefore rightly dismissed by Trial Court---Appeal was dismissed.

Peruri Suryanarayan & Co. v. Gullapudi China Narsingham and others (4 IC 133) and Vvankatesh Mahadev v. Ramchandra Krishna (27 IC 46 rel.

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

----Ss. 21, 22, 23, 24 & 25---Arbitration agreement entered into in a pending suit without leave of the court---Validity---Arbitration agreement without orders of a court in a pending suit being departure from mandatory provisions of Ss.21 to 25 of the Arbitration Act, 1940 could not be categorized to be lawful agreement and was not enforceable.

Sahibzada Mahboob Ali for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2012.

2013 C L C 444

[Lahore]

Before Mamoon Rashid Sheikh, J

ALI ASLAM MALIK----Petitioner

Versus

ASSISTANT DIRECTOR and others----Respondents

Writ Petition No.21902 of 2011 and C.M. Nos.295 and 3 of 2012, decided on 16th August, 2012.

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

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Exit Control List---Interim relief---Grievance of petitioner was that authorities had placed his name on Exit Control List and denied him permission to travel abroad for treatment of his ailing son---Validity---Right to travel abroad of a citizen of Pakistan was a fundamental right---Petitioner had been denied such right ostensibly on the ground of his being a loan defaulter---High Court allowed one time permission to petitioner to travel abroad subject to furnishing of third party surety, as his son was seriously ill---Application was allowed accordingly.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Mian Tahir Jahangir v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and another 2008 YLR 1857 and Muhammad Khyzer Yousuf Dada v. Federation of Pakistan through Secretary, Ministry of Interior and 5 others PLD 2011 Kar. 546 ref.

Syed Haseeb Azhar v. Mr. K.M. Siddiq Akbar and 2 others Crl. Org. No.1200-W of 2012 rel.

Shazib Masud for Petitioner.

Abdul Rahim for Applicant (in C.M. No.2951 of 2012).

Asad Ullah Malik for Respondent No.2.

Pervaiz Iqbal Gondal, Standing Counsel.

2013 C L C 454

[Lahore]

Before Mamoon Rashid Sheikh, J

Mst. SAEEDA----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.813 of 2011, decided on 11th April, 2012.

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

----O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Principles---Injunction is not to be granted only on the basis that prima facie case existed in favour of plaintiff---Courts are required to take into consideration whether question of balance of convenience or irreparable loss to party seeking such relief co-exists or not---Courts have also to take into consideration whether plaintiff has approached the court with clean hands or not; whether court has been approached promptly or not; whether grant of injunction to a party is against public interest/policy; whether grant of injunction to a party results into undue advantage being given to that party which may perpetuate injustice; and whether party approaching court for interim relief has concealed material facts and or acted in mala fide manner---In case the answer of any of the questions is in affirmative then relief of injunction being discretionary in nature can be declined.

Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and ATCO Lab. (Pvt.) Limited v. PFIZER Limited and others 2002 CLD 120 rel.

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

----S. 42---Civil Procedure Code (V of 1908), S.115, O.XXXIX, Rr.1 & 2---Suit for declaration---Interim injunction, denial of---Concealing of facts---Plaintiff was denied interim injunction by Trial Court and Lower Appellate Court---Validity---Filing of earlier suit was concealed by plaintiff not only in plaint but also in revision petition filed before High Court---Such concealment established that conduct of plaintiff was not above board and she approached the High Court with unclean hands---One who sought discretionary relief was, therefore, required to approach the court with clean hands---One who seeks equity must do equity---Plaintiff was in possession of land in excess of her share and her revision before Board of Revenue was time-barred---During post remand proceedings, plaintiff was given repeated opportunities to present her case but she failed to do so, and consequently her defence was struck off---Plaintiff did not have prima facie case in her favour nor balance of convenience tilted in her favour, and similarly, factor of irreparable loss was also missing---High Court, in exercise of revisional jurisdiction, declined to interfere in concurrent orders passed by two courts whereby interim injunction was refused to plaintiff---Revision was dismissed in circumstances.

Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519; ATCO Lab. (Pvt.) Limited v. PFIZER Limited and others 2002 CLD 120; Syed Kamal Shah v. Government of N.-W.F.P. 2010 SCMR 1377 and Mst. Sharifan Bibi and others v. Muhammad Abid Rasheed 2011 YLR 2396 rel.

Muhammad Younas Sheikh for Petitioner.

Zafarullah Khan Khakwani, Asstt. A.-G., Punjab.

Ch. Saghir Ahmad for Respondents Nos.7 to 11.

2013 C L C 470

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD HAFEEZ----Petitioner

Versus

JUDGE FAMILY COURT and others----Respondents

Writ Petition No.5144 of 2012/BWP, decided on 8th October, 2012.

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

----S. 7---Criminal Procedure Code (V of 1898), S.100---Constitution of Pakistan, Art.199---Constitutional petition---Guardian Judge, jurisdiction of---Custody of minors---Issuance of search warrant by Guardian Judge---Legality---Grievance of petitioner was that Guardian Judge could not issue search warrant under S.100, Cr.P.C. for handing of custody of minor children---Validity---Guardian Judge had no power to appoint anybody as guardian of a ward in absence of a specific application---Guardian Judge, while passing direction regarding handing over custody of minors, had travelled beyond his jurisdiction---High Court set aside the order passed by Guardian Judge---Constitutional petition was allowed in circumstances.

Razia Sultana and 4 others v. Razia Begum and 3 others PLD 200 Lah. 209 and Mst. Kausar Parveen and 3 others v. Ahmed Ali Zaffar, Judicial Magistrate, Kabirwala, District Khanewal and 2 others PLD 1997 Lah, 208 ref.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Alternate remedy, availability of---Principle---Constitutional jurisdiction of High Court cannot be ousted merely on the ground that alternate remedy of appeal or revision is available.

Member (Colonies) Board of Revenue, Punjab, Lahore and others v. Muhammad Shafi and others 2008 SCMR 589; Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L.Rs and 5 others PLD 2005 SC 592; Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others 2006 SCMR 1356; Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28 and Col. (R) S. Maqbool Illahi v. Pakistan Defence Officers Housing. Authority 2009 YLR 282 rel.

Muhammad Naveed Farhan for Petitioner.

Aftab Ahmad Goraya for Respondent No.2.

2013 C L C 487

[Lahore]

Before Ali Baqar Najafi, J

SHOAIB MUSHTAQ----Appellant

Versus

MUHAMMAD QASIM and others----Respondents

Regular Second Appeal No.1 of 2005, decided on 1st February, 2013.

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

----Ss. 99, 9 & Preamble---Specific Relief Act (I of 1877) Ss.54 & 8---Appeal from original decree---Filing of suit through general power of attorney---Non-mentioning in plaint of concise statement to the effect that suit was being filed through plaintiff's attorney---Effect---Suit for possession of immovable property and permanent injunction was filed by plaintiff through his attorney and was decreed by Trial Court---Appellate Court set aside decree on the ground that suit was filed by an incompetent person, as plaint did not contain a concise statement to the effect that the suit was being filed through plaintiff's attorney---Validity---No specific issue was framed regarding question of competency of plaintiffs attorney and no objection in that regard was raised by the defendants in their written statements---General power of attorney was exhibited in evidence before Trial Court---Court, under law, was required to give finding on questions formulated before it in the form of issues---Rules framed in the C.P.C. were made for advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice---Under S.99, C.P.C. mere error or irregularity not affecting merit or jurisdiction was not sufficient for setting aside a decree---Since concise statement not mentioning the name of general attorney was a non-issue, the Appellate Court had committed material irregularity which had resulted in an injustice---High Court set aside impugned order of Appellate Court and restored decree of Trial Court---Appeal was allowed, in circumstances.

Messrs Gotco Trading Limited v. Government of Pakistan, and others 2004 CLC 205(sic); Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Kar. 17; Messrs GETCO Trading Ltd. through Local Agent v. Government of Pakistan through Director-General and 2 others 2003 YLR 3309 distinguished.

Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9; Ismail v. Bashir 1981 SCMR 687; 2003 YLR 3309; PLD 2004 Kar. 17 and PLD 1947 PC 180 rel.

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

----Preamble---Object of Civil Procedure Code, 1908---Rules framed in the Civil Procedure Code, 1908 were made for advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. [p. 492] C

Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9 rel.

(c) Interpretation of Statutes---

----Procedural law---Principles---All procedural laws were meant to foster the cause of justice and not to thwart it as it was more important that substantial compliance of procedural law was made and not its technical observance---Liberal view in procedural matters would save a party from a technical knockout and promote the cause of justice.

Rizwan Niaz for Appellant.

Muhammad Abdul Hayee Alvi for Respondents.

Date of hearing: 29th January, 2013.

2013 C L C 499

[Lahore]

Before Shujaat Ali Khan, J

Mst. ISHRAT BIBI----Petitioner

Versus

Mst. HASHMAT BIBI and others----Respondents

Civil Revision No.456-D of 2012/BWP, decided on 11th December, 2012.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact---Scope---Normally such findings are considered to be immune to any interference in revisional jurisdiction but when verdicts of courts below otherwise are result of misreading and non-reading of evidence, the same can be set aside being never considered as sacrosanct.

Mubarak Ali through L.Rs v. Amroo Khan through L.Rs. 2007 SCMR 1714 rel.

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

----S.42---Specific Relief Act (I of 1877), S.42---Suit, for declaration---Attestation of mutation at the residence of Revenue Office---Validity---Misreading and non-reading of evidence---Plaintiff assailed mutation of gift/Tamleeks in favour of defendants, on the basis of forgery and fraud---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by plaintiff---Validity---To prove valid gift/Tamleek three ingredients viz offer, acceptance and handing over of possession were sine qua non but according to revenue record neither name of defendants had been incorporated in the record as owner nor they were in possession of suit-land---Process of attestation of mutation was completed at residence of Tehsildar (Revenue Officer) concerned which was violation of S.42 of West Pakistan Land Revenue Act, 1967---Entries in Revenue Record in the shape of mutations were not conclusive proof of ownership until and unless transaction on the basis whereof the same were attested was fully established from evidence, which had not been proved by defendants---High Court in exercise of revisional jurisdiction set aside concurrent findings of fact by two Courts below and decreed suit in favour of plaintiff.

Muhammad Ejaz v. Mst. Khalida Awan 2010 CLC 847; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Fida Hussain and others v. Abdul Aziz PLD 2005 SC 343; Zafar Muhammad v. Mst. Anwar Bibi 2004 SCMR 559 and Basir Bibi etc. v. Mst. Mehran Bibi etc. 2003 CLC 1452 ref.

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

----S. 42---Specific Relief Act (1 of 1877), S.42---Suit for declaration of title---Limitation---Fraud, plea of---Effect-- When mutations challenged in suit otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield.

Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR 1543 rel.

Aftab Ahmad Goraya and Ch. Muhammad Sarwar for Petitioner.

Ch. Riaz Ahmad for Respondents Nos.2 to 4.

2013 C L C 512

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD ZIA-UR-REHMAN and others----Petitioners

Versus

UNIVERSITY OF ENGINEERING AND TECHNOLOGY and others----Respondents

Writ Petition No.1941 of 2012, decided on 27th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Dispute over issuance of degree---Change in affiliation status of institution during completion of course--- Responsibility of educational institution---Scope---Students (petitioners) successfully completed their Bachelors course from their College, which claimed to be affiliated with University of Engineering---College in question had changed its affiliation status from University of Languages to the University of Engineering---Students (petitioners) were provisionally registered by the University of Engineering---Subsequently University of Engineering cancelled affiliation with the College and provisional registration of said students were cancelled---Students contended that they took admission in the College with the firm understanding that they would receive a degree from the University of Engineering---Validity---Cancellation of provisional registration by University of Engineering prejudiced the status of students completing their course with a legitimate expectation to receive a degree from the said University---Changed criteria had to be specified prior in time so that students could possibly prepare themselves---Students were (only) expected to pay dues including payment of affiliation fee for appearing in examinations and to achieve required percentage, remaining matters were undoubtedly the responsibility of the institution (College) where they were studying, which was expected to look after their interest---Even otherwise cancellation of affiliation and provisional registration of students by University of engineering was to operate prospectively; more particularly when the actual stakeholders i.e. students were not taken into confidence---Since question of requisite minimum standard of passing marks for a degree was involved, therefore, University of Engineering was directed to identify any discipline which was not studied by the students of the College and, if there was any, said University might put the students to an additional test, whereafter they might be asked to attend classes for awarding of a degree---Constitutional petition was disposed of accordingly.

University of Karachi v. Tariq Hussain and another 2012 SCMR 1694 rel.

(b) Educational institution---

----Change in criteria (of a degree/course)---Responsibility of educational institution---Scope---Changed criteria whether with reference to syllabus or standard of marking of exams. had to be specified prior in time so that students could possibly prepare themselves.

University of Karachi v. Tariq Hussain and another 2012 SCMR 1694 rel.

Raheel Akhter Khan Yousaf Zai for Petitioners.

Ch. Farhat Abbas for respondents Nos.1 to 4.

Malik Muhammad Pervaiz for respondents Nos.5 to 7.

Brig (R) Hubdar Ahmed Madni, Principal APCOMS.

2013 C L C 532

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD RAMZAN and others----Petitioners

Versus

DIRECTOR-GENERAL WILDLIFE and others----Respondents

Writ Petition No.4401 of 2010(BWP), decided on 7th November, 2012.

Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, (II of 1974)---

----S. 2(b)---Constitution of Pakistan, Arts.199 & 18---Notification SOP (WL) 12-13/2001-11, dated 4-5-2010---Constitutional Petition---Unreasonableness, determination of---Petitioners, who were wholesale dealers of quails impugned notification whereby license fee under Punjab Wildlife (Protection, Preservation, Conservation And Management) Act, 1974 was increased---Contention of petitioners was that said increase was unreasonable and against their Fundamental Rights---Contention of Authority was that existing fees, in the present case, were not revised since year 1997 and lower fee may result in excessive demand for license and it was the duty of the Government to preserve rare species from extinction--- Validity--- While determining unreasonableness, the material on the basis of which a notification had been issued, was to be taken notice of and such material would determine whether impugned notification had been issued by the competent authority fairly or was based on mala fide---Authority had not realized that its license-holders would be adversely affected in case of increase in the fees, who were essentially stakeholders---Stance of competent authority did not reflect that any stakeholder was ever taken into consideration---Principle of audi alteram partem made it mandatory for any Authority to provide an opportunity to a person who was going to be affected adversely by its judgment or order---Petitioners also enjoyed fundamental Right of freedom of trade under Art.18 of the Constitution---Impugned notification was unjust and unfair and also violative of Fundamental Right and against the principles of natural justice---High Court set aside impugned notification and observed that competent authority was at liberty to enhance license fee after providing opportunity of hearing to the stakeholders---Constitutional petition was allowed, in circumstances.

Hafiz Shahid Nadeem Kahloon for Petitioners.

Saeed Ahmad Chaudhry, A.A.-G. with Mujahid Kaleem, District Wildlife Officer, Bahawalpur.

2013 C L C 553

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD QASIM ALI and others----Petitioners

Versus

Mst. SURAYYA MASOOD and others----Respondents

Civil Revision No.1218 of 2000 and Writ Petition No.10375 of 2012, decided on 19th November, 2012.

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

----Art. 17(2)(a)---Agreement to sell, attestation of---Scope stated.

An agreement to sell pertaining to future obligation generally proposes fixation of some consideration amount, earnest money if paid at the time of its execution and the remaining to be paid at the later stage or at the time of registration/completion of sale and attested by two marginal witnesses.

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

----S. 19---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a & 79---Transfer of Property Act (IV of 1882), S.54---Civil Procedure Code (V of 1908), O.II, R.2---Specific Relief Act (I of 1877), S.12---State land under Thal Development Authority---Suit for specific performance of agreement to sell in form of an affidavit scribed on stamp paper of Rs.4---Proof---Purpose of issuance of such stamp paper was not mentioned on its backside---Stamp vendor had denied to know the person to whom he had issued such stamp paper---Plaintiff was legally bound to produce two attesting witnesses for proving such affidavit/agreement---One witness to such affidavit/agreement, who had scribed one line on its backside deposed that "he knew the defendant, who had signed in his presence", but had deposed nothing with regard to execution of affidavit/agreement---Other witness to such affidavit/agreement having scribed such sentence was reported to have died, but had not signed same as attesting witness---Such affidavit/ agreement, in absence of its attestation by two marginal witnesses, could not be termed as a valid document in terms of Arts.17(2)(a) & 79 of Qanun-e-Shahadat, 1984---Plaintiff had failed to explain as to why such document had been written in form of an affidavit instead of a proper agreement---Such affidavit/agreement did not show amount of sale consideration and as to how much amount was paid at the time of its execution and how much was to be paid later on, if any---Affidavit in absence of such vital ingredients and for being unregistered could not be read as a sale-deed and could not operate to create any legal consequences---Board of Revenue had declared practice of transfer of State land through affidavit as not regular, while High Court had earlier discarded such type of affidavit---Nothing was available on record to show delivery of possession of suit-land to plaintiff in part performance of such affidavit/agreement---Maneuvering of such affidavit by son of plaintiff for being an employee of Thal Development Authority could not be ruled out---Plaintiff had earlier filed suit for declaration on basis of such affidavit/ agreement, but had withdrawn same, thus, present/subsequent suit on basis of same cause of action was barred by O.II, R. 2, C.P.C.---No decree for specific performance could, in view of such facts, be passed validly in favour of plaintiff---Suit was dismissed in circumstances.

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

----Arts. 17(2)(a) & 79---Words "attestation" and "attesting witness"---Meanings stated.

The word "attestation" means the act of witnessing the actual execution of a document subscribing ones name as witness to that effect. It also means signing of the document to testify that the attester is a witness to the execution of the document. One who signs the document in the presence of the executants after seeing the execution of the document is called an "attesting witness".

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

-----Arts. 17(2)(a) & 79---Transfer of Property Act (IV of 1882), S.54---Sale agreement in form of affidavit, attestation of---Scope---Such affidavit/agreement, in absence of its attestation by two marginal witnesses, could not be termed as a valid document in terms of Arts.17(2)(a) & 79 of Qanun-e-Shahadat, 1984.

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

----O. II, R. 2---Specific Relief Act (I of 1877), Ss.12 & 42---Subsequent suit for specific performance of sale agreement in form of affidavit after dismissal of earlier suit for declaration as withdrawn---Effect---Plaintiff in earlier suit had not sought relief of specific performance of such affidavit/agreement, thus, subsequent suit on basis of same cause of action was not maintainable in terms of O.II, R.2, C.P.C.---Subsequent suit was dismissed in circumstances.

Ch. Khursheed Ahmed for Petitioners.

Ch. Mushtaq Masud for Respondents Nos.1 to 6.

Mian Hameed Ullah Khan for Respondent No.7.

Date of hearing: 19th November, 2012.

2013 C L C 601

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHAUKAT HAYAT KHAN----Petitioner

Versus

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

Writ Petitions Nos.3806 and 2841 of 2009, heard on 10th October, 2012.

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

----S. 5, Sched---Constitution of Pakistan, Art. 199 ---Constitutional petition---Jurisdiction of Family Court----"Personal belongings or property of wife"---Scope---Suit for recovery of dower was partly decreed---Wife (petitioner) had claimed an amount on basis of an alleged "iqrarnama" executed by husband in favour of wife for an amount to be payable to her by the husband in case of certain commissions or omissions by husband---Said claim of wife was denied by Appellate Court---Contention of wife was that said document (iqrarnama) was not objected to by the husband and as such her claim had been proved---Wife further contended that Family Court could adjudicate on her claim since the same fell within the scope of "personal belongings or property of wife" was given in the Schedule to section 5 of the West Pakistan Family Courts Act, 1964---Validity---Document which was exhibited in evidence, must not be a proved document and question of jurisdiction as to the admissibility of claim and nature of document was also to be seen by the court---Commitment or undertakings in the said document/iqrarnama could not attain the status of personal belongings or property of a wife and thus adjudication on basis of such document would fall outside the scope of the jurisdiction of the Family Court---Claim of wife to such extent was rightly denied by Appellate Court---Constitutional petition was dismissed.

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

----Art. 91---Document---Proof of---Production of a document and proof thereof were two distinct incidents---Document which was exhibited in evidence, must not be a proved documents and question of jurisdiction as to the admissibility of claim and nature of document was also to be seen by the court.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Contest between father and mother of minor---Father (petitioner) impugned order of Family Court whereby his petition under S.25 of the Guardians and Wards Act, 1890 for custody of minor was dismissed---Validity---Father had entered into a second marriage while the mother had not entered into a second marriage but devoted her remaining life to her son---After taking of the custody of minor from the real mother, the same could not be handed over to a step-mother---Minor, in the present case, had been with the mother from his birth and at the age of eleven years, a change of custody would damage the minor psychologically, which could not be considered to be in his welfare, as "lap of mother is the lap of God"---Contention that father was entitled to custody of minor on the ground that he was providing maintenance for the minor was no ground for claiming custody of minor as it was the absolute duty of a father to maintain his child, wherever the child lived---Poverty of a mother would not deprive her from the custody of her real child---Findings of courts below were correct---Constitutional petition was dismissed.

Arshad Malik Awan for Petitioner.

Zafar Iqbal Chohan for Respondent.

Date of hearing: 10th October, 2012.

2013 C L C 620

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD ISMAEEL----Petitioner

Versus

CIVIL JUDGE and others----Respondents

Writ Petition No.11964 of 2011, decided on 6th December, 2012.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 28---Constitution of Pakistan, Art. 199---Constitutional petition---No appeal under section 28 of the Punjab Rented Premises Act, 2009 lay against an interlocutory order passed by Rent Tribunal---Constitutional petition against an interlocutory order was not competent as the same was neither appealable nor revisable.

Khalil-ur-Rehman and another v. Dr. Manzoor Ahmad and others PLD 2011 SC 512 and Syed Saghir Ahmed Naqvi v. Province of Singh through Chief Secretary, S&GAD Karachi and another 1996 SCMR 1165 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 22(3)---Application for leave to defend---Non-filing of affidavits of two witnesses---Effect---Once leave to contest had been granted to a tenant, despite non-filing of affidavit of the witnesses by him, his right to prove the case through oral evidence must remain unimpaired.

Ch. Shakil Ahmad Sindhu for Petitioner.

Khalid Ibn-Aziz for Respondent No.2.

Date of hearing: 6th December, 2012.

2013 C L C 632

[Lahore]

Before Shahid Waheed, J

ARSHAD ALI and 6 others----Petitioners

Versus

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

Civil Revision No.2109 of 2010, heard on 11th October, 2012.

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

----S. 11---Res judicata, doctrine of---Object and applicability---Judgment or order having decided a particular issue directly and explicitly would operate as res judicata and bar its trial in subsequent proceedings between the same parties---Where any matter which might and ought to have been made a ground of attack or defence in former proceedings, but was not made so, then such matter in order to avoid multiplicity of litigation and bring finality therein would be deemed to have been constructively in issue and decided---Object of such doctrine would be to uphold rule of conclusiveness of judgments as to points/issues decided earlier in every subsequent suit between the same parties and thereby bring litigation to an end---Principles.

Ghulam Rasool son of Kalu v. Ghulam Rasool and others 2007 SCMR 1924; Abdul Hameed and another v. Dilawar Hussain alias Bhalli and others 2007 SCMR 945; Q.B.E Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others 2008 SCMR 1037; Zahir Shah and others v. Bahadar Khan and others 2001 MLD 1785; Nawab v. Rehmat Khan 1995 MLD 1014; Raja Ghulam Haidar v. Major (R) Jamshaid Alama Khan 1991 MLD 1284; Muhammad Anwar and others v. Mian Noor Ahmad and others 1995 MLD 269; Mehboob Elahi v. WAPDA and others 1994 CLC 1337; Abdul Khaliq and others v. Khuda-e-Dad and others 2008 YLR 781; Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511; Ghulam Muhammad and others v. Muhammad Hussain and others PLD 2006 Lah. 223; Hussain Shah v. Bano Bibi and 9 others 2007 CLC 680; Sardar Menhajudin Ahmad v. Sudhir Kumar Sinha and others PLD 1959 Dacca 316 ref.

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

----Ss. 9 & 11 ---West Pakistan Land Revenue Act (XVII of 1967), Preamble---Orders made by Revenue Authorities under West Pakistan Land Revenue Act, 1967---Validity---Such orders would neither operate as res judicata under S.11, C.P.C. nor bar a party to establish his right or title to immovable property by invoking jurisdiction of Civil Court.

Ghulam Rasool son of Kalu v. Ghulam Rasool and others 2007 SCMR 1924; Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others PLD 1983 Quetta 52; Mst. Gul Parti alias Gulbaro v. Zarin Khan and others PLD 1994 Pesh. 249 and Abdul Khaliq and others v. Khuda-e-Dad and others 2008 YLR 781 ref.

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

----S. 11---Constitution of Pakistan, Arts.189 & 201---Order passed by a statutory or quasi judicial authority upheld by High Court in its constitutional jurisdiction---Effect---Upholding of such order by High Court would be deemed to be its decision rendered on a point of law and would be binding on subordinate courts---Civil Court could not adjudge such order to be illegal and ultra vires---Civil suit challenging validity of such order by re-agitating same issue would be barred on general principle of res judicata---Illustration.

Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan (now Province of Punjab) through Collector, Bahalwapur and 2 others 1971 SCMR 447; Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others PLD 1971 SC 779; Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148; Shahida Perveen v. District Judge, Sialkot and another PLD 1980 Lah. 7; Azad Government of the State of Azad Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC AJK 139; Syed Mir Ahmad Shah v. The Pakistan and 2 others PLD 1979 Lah. 599; Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Saghir Alam and others v. Mst. Kaniz Fatima and others 1982 CLC 68; Muhammad Anwar v. Mst. Nawab Bibi etc. 1989 SCMR 836; Sh. Abdul Aziz v. Mirza and three others PLD 1989 SC AJK 78; Muhammad Ismail v. Province of Punjab through Collector, District Jhang 1986 CLC 340; Mst. Rabia Bibi and others v. Fateh Muhammad through Legal Heirs 1994 CLC 1151 and Khurshid Khan and 7 others v. Sardar Muhammad PLJ 2002 Lah. 1842 ref.

Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148; Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others 1971 SCMR 447; Abdul Majid and others v. Abdul Ghafoor and others PLD 1982 SC 146 and Ch. Rehmat Ali v. Haji Jan Muhammad and others 1983 SCMR 1109 rel.

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

----S. 11 & O. VII, R. 11(d)---Dismissal/rejection of suit on principle of res judicata without framing an issue to such effect---Scope---Court could not pass such dismissal order---Plaintiff must have an opportunity to explain or demonstrate that second suit was based on a different cause of action---Exceptional case illustrated.

Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511; Ghulam Muhammad and others v. Muhammad Hussain and others PLD 2006 Lah. 223; Hussain Shah v. Bano Bibi and 9 others 2007 CLC 680 and Sardar Menhajudin Ahmad v. Sudhir Kumar Sinha and others PLD 1959 Dacca 316 ref.

Muhammad Iqbal Mohal for Petitioners.

Ch. Mushtaq Masud and Muhammad Sultan Kasuri for Respondents.

Date of hearing: 11th October, 2012.

2013 C L C 646

[Lahore]

Before Abdul Waheed Khan, J

AHMAD KHAN NIAZI----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Local Government and Community Development Department and 3 others----Respondents

Writ Petition No.10650 and C.M. Nos.3510, 3511 of 2011, decided on 20th January, 2012.

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

----Ss. 69 & 70---Constitution of Pakistan, Art.199---Constitutional petition---Notice of joint auction of Cattle Mandis by Tehsil Municipal Authorities (TMA)---Petitioner's contention was that the publication of auction notice for holding joint auction of Cattle Mandis by Tehsil Municipal Authorities (TMA) was not permissible under the law as the Secretary, Provincial Government (Authorities) had already held that such an auction was not permitted under the law ---Validity---Law did not prohibit holding of any such joint auction of the Cattle Mandis---Authorities had no power under the law to pass any order to set aside the resolution of Tehsil Municipal Authorities and holding of the joint auction of the Cattle Mandis and it was only the prerogative of the Provincial Chief Executive to set aside such proceedings under the provisions of sections 69 and 70 of Punjab Local Government Ordinance 2001---No prohibition in law existed for holding any Cattle Mandi, therefore, Tehsil Municipal Authorities could not be prohibited from holding any joint Cattle Mandis---Constitutional petition was dismissed accordingly.

(b) Administration of justice---

----Government functionaries, duty of---Presumption of permissibility---Government functionaries are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the law but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law.

Ch. Muhammad Yaqoob Sindhu and Aftab Gul for Petitioner.

Shafqat Hayat Baloch for Respondent No.2.

Dr. Muhammad Mohy-ud-Din Qazi for Respondent No.3.

Muhammad Shehzad Shaukat for Applicant (in C.M. Nos.3510 and 3511 of 2011).

2013 C L C 649

[Lahore]

Before Malik Shahzad Ahmad Khan, J

SAEED AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and another----Respondents

Writ Petition No.2359 of 2010, heard on 18th September, 2012.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Landlord and tenant relationship---Proof---Excise and Taxation record---Ejectment application filed by landlord was dismissed by Rent Controller on the ground that relationship of landlord and tenant was not proved---Lower Appellate Court reversed the findings of Rent Controller and passed eviction order against tenant---Plea raised by tenant was that documents of Excise and Taxation Department about payment of property tax were not sufficient to prove relationship of landlord and tenant between parties---Validity---Though documents of Excise and Taxation Department might not be conclusive evidence to establish relationship of landlord and tenant but at the same time those were not totally irrelevant as the documents indicated ownership and payment of property tax---Oral as well as documentary evidence produced by landlord in shape of sale deed, documents of Excise and Taxation Department regarding payment of property tax of house in question and utility bills of house proved that landlord had ownership in respect of the house and petitioner was tenant under him---Tenant could not take advantage of position to frustrate eviction proceedings on the pretext that property owned by landlord was not determinable, particularly when he himself could not prove his title and there was no other claimant of ownership of the property---High Court declined to interfere in eviction order passed by Lower Appellate Court against tenant---Constitutional petition was dismissed in circumstances.

Muhammad Sharif v. Mukhtara Mai and others 2010 YLR 203; Syed Abdul Ghafoor Shah v. Syed Luqman and others 2009 SCMR 45; Haji Feroze Khan and another v. Ameer Hussain through L.Rs and others 2004 SCMR 1719 and Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 rel.

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

----S. 13---Ejectment of tenant---Landlord and tenant, relationship of---Title of premises---Determination---Jurisdiction of Rent Controller---Scope---Rent Controller is not competent under West Pakistan Urban Rent Restriction Ordinance, 1959, to determine question of title of property, which was job of Civil Court but if tenant fails to produce any title document to support his possession over premises in dispute, Rent Controller or Appellate Court can validly determine relationship of landlord and tenant between parties.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 rel.

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

----S. 13---Tenancy---Scope---Tenancy may not be necessarily through written document and the same can be oral.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 rel.

Syed Athar Hussain Shah Bukhari for Petitioner.

Malik Muhammad Rafiq Rajwana and Malik Muhammad Tariq Rajwana for Respondent No.2.

Date of hearing: 18th September, 2012.

2013 C L C 675

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Chaudhary UMAR AZIZ----Petitioner

Versus

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

Writ Petitions Nos.1387 and 1388 and C.M. No.1110 of 2011, heard on 19th June, 2012.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 4 & 22---Transfer of Property Act (IV of 1882), Preamble & Chapter-V [Ss.105 to 117]--- Constitution of Pakistan, Art.199--- Constitutional petition---Applicability of Transfer of Property Act, 1882 in matters relating to tenancy under the Punjab Rented Premises Ordinance, 2007---Scope---Application of tenant for leave to contest was dismissed and ejectment petition was allowed concurrently---Contention of tenant (petitioner) was that grounds agitated in the application for leave to contest were sufficient for production of oral evidence and for grant of leave---Validity---Courts below had based their findings mainly relying upon provisions of Transfer of Property Act, 1882 and matters of tenancy had been dealt with as if the same were subject to "lease" and Chapter-V of the Transfer of Property Act, 1882 was made applicable to proceedings initiated under the Punjab Rented Premises Ordinance, 2007---Section 4 of the Punjab Rented Premises Ordinance, 2007 provided that the provisions of the Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force and therefore , Punjab Rented Premises Ordinance, 2007 having such overriding effect and being a law promulgated later in time, the provisions of the special law would prevail---In presence of said provision, courts below could not rely upon the provisions of the Transfer of Property Act, 1882 and could not intermingle matters of "tenancy" with those of "lease"---Procedure regulating "lease" could not be applied to the premises under tenancy---Pleadings of parties required framing of issues and production of evidence---Orders of courts below were set aside and leave to contest was granted to tenant---Constitutional petition was allowed, in circumstances.

Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others PLD 2011 SC 512 and Mst. Mumtaz Begum v. Abdul Wahid 1990 CLC 1305 ref.

Ahmad Waheed Khan for Petitioner.

Khalid Saleem for Respondent.

Ch. Aamir Rehman for Applicant (in C.M. No.1110 of 2011).

Date of hearing: 19th June, 2012.

2013 C L C 698

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ISLAM----Petitioner

Versus

Mst. RASHDAH SULTANA and 4 others----Respondents

Writ Petition No.8853 of 2011, decided 14th July, 2011.

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

----S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance for minors---Enhancement in maintenance allowance---Res judicata, principle of---Applicability---Scope---Petitioner assailed order of Family Court whereby he was held liable to pay maintenance to minors at an enhanced rate than the one fixed by Family Court in the earlier suit for maintenance filed in the year 2004---Contention of petitioner was that after passing of the decree for maintenance of minors by the Family Court in the earlier suit in the year 2004, the new suit for enhancement in maintenance allowance of minors was not maintainable as S.11 of C.P.C. was applicable to proceedings before the Family Court through S.17 of the West Pakistan Family Courts Act, 1964---Validity---Rate of maintenance fixed in the year 2004 was insufficient due to acceleration of prices and the growing needs of the minors---As minors were now school-going children, and in accordance with the prices prevailing in the market, sum fixed by Family Court was very reasonable---While it was true that S.11 of the C.P.C. was applicable on proceedings before the Family Court, however, under changed circumstances with the passage of time, suit for enhancement of maintenance allowance and the prayer in that respect, may be accepted by Family Court if the necessity for such an increase in maintenance allowance was made out---Section 11 of C.P.C. was not applicable to the suit for enhancement in the rate of maintenance allowance---Rate of maintenance allowance fixed in the year 2004 appeared to be nominal in the year 2011---Courts below had properly appreciated the evidence and arrived at a just conclusion---Constitutional petition was dismissed, in circumstances.

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

----S. 5, Sched. & S.17---Qanun-e-Shahadat (10 of 1984), Preamble---Suit for recovery of dowry articles---Non-production of receipts for dowry articles---Effect---Provisions of the Qanun-e-Shahadat, 1984 were not applicable in the proceedings before the Family Court in view of S.17 of the West Pakistan Family Courts Act, 1964---Intent of the legislature was clearly to simplify the procedure and the law-makers were aware of the fact that in cases relating to dower, the lists were seldom prepared and receipts were very rarely kept intact as everyone made arrangements for marriage of one's daughter with the hope and prayer that she would lead a happily married life.

Ch. Nazeer Ahmad Zahid for Petitioner.

2013 C L C 731

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SHARIF----Petitioner

Versus

Mst. ALAM BIBI and others----Respondents

Civil Revision No.77 of 1996, decided 17th January, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Declaratory decree, scope of---Suit for declaration of title was decreed concurrently on basis of a partition in accordance with a family settlement/compromise produced before Revenue Officer---Contention of defendants was that said settlement was temporary till issuance of Patta Malkiat in favour of original owners---Validity---Declaratory decree could declare a pre-existing right and a new right could not be created through a decree passed for declaration in a suit filed under section 42 of the Specific Relief Act, 1877---Plaintiffs, in the present suit, demanded a decree in their favour for creation of a right which was not permissible under law---No pre-existing rights of ownership existed in favour of the plaintiffs on basis of any compromise or family settlement when admittedly Patta Malkiat had not been issued in favour of the legal heirs of the alleged original owner----Concurrent findings of courts below were a clear misuse of jurisdiction and were set aside---Revision was allowed, in circumstances.

Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470; Jagpal Kaur v. Surat Singh AIR 1935 Lah. 638 and Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCMR 145 distinguished.

Sardar Muhammad Hussain Khan for Petitioner.

Ch. Naseer Ahmad for Respondents.

Date of hearing: 17th January, 2012.

2013 C L C 746

[Lahore]

Before Sagheer Ahmed Qadri, J

FAUJI FOUNDATION----Petitioner

Versus

Raja GHAZANFAR ALI and others----Respondents

Civil Revision No.1243 of 2010, decided 25th October, 2012.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2), C.P.C.---Limitation---Article 181 of Limitation Act, 1908 would apply to such application and period of 3 years provided thereunder could be calculated from date of knowledge of alleged fraud and misrepresentation committed by a party.

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

----S. 12(2) & O. XX, R. 19---Limitation Act (IX of 1908), Art.181---Preliminary decree in partition suit---Application under S.12(2), C.P.C. filed on 11-11-2010 for setting aside said decree passed on 13-5-2004---Validity---Article 181 of Limitation Act, 1908 would apply to such application and period provided thereunder could be calculated from date of knowledge of alleged fraud and misrepresentation committed by a party---Applicant being defendant in suit had challenged final decree dated 8-11-2006, but failed upto Supreme Court---Applicant had withdrawn his petition from Supreme Court on 17-9-2010---Applicant had made application under S.12(2), C.P.C. on the basis of facts alleged in application dated 6-9-2001 for permission to adduce additional evidence during appeal---Appellate Court had dismissed such application for production of additional evidence on 10-12-2001---Facts alleged in application under S.12(2), C.P.C. were in the knowledge of applicant in September, 2001 much prior to passing of impugned decree on 13-5-2004---Application under S.12(2), C.P.C. was time-barred, thus, calling respondent to file written reply thereto and framing of issue would be a futile exercise---Application under S.12(2), C.P.C. was dismissed in circumstances.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Shamail Masud v. Malik Manzoor Ahmad and 4 others 2007 CLC 1507; Wazir Ali v. Allah Ditta and 6 others 1994 CLC 1135; Mst. Shamim Akhtar and 3 others v. District Judge, Narowal and 9 others 2001 CLC 1265; Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Munir Ahmad Khan v. Sameeullah Khan and 7 others 1986 CLC 2655; Muhammad Aslam and others v. Mst. Kundan Mai and others 2004 SCMR 843; Faiz-ul-Hassan Qureshi v. Hamid Siddiqui 2008 YLR 1931; Noon Muhammad and 17 others v. Rahim Bakhsh and 33 others 2010 CLC 528; Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. 1989 CLC 2117; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Muhammad Khan v. Mst. Akbari and 10 others 1994 CLC 500; Ch. Riaz Ahmed Khan v. Muhammad Anwar Khan and others PLD 2003 SC 484; Mst. Shahida Hakim through General Attorney v. Tanveer Ahmad Khan through General Attorney and others 2008 YLR 119; Mir Taj Muhammad Khan Jamali v. Regional Development Finance Corporation Head Office Ghousia Plaza, 20-Blue Area, Islamabad and 3 others 1999 CLC 350; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Mustafa Kamal and others v. Daud Khan and others; PLD 2004 SC 178 and Secretary Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan 2008 SCMR 287 ref.

Warriach Zarai Corporation v. F.M. United (Pvt.) Ltd. 2006 SCMR 531 rel.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application under S.12(2), C.P.C. being time-barred---Effect---Calling respondent to file written reply and framing of issues in such case would be a futile exercise.

Warriach Zarai Corporation v. F.M. United (Pvt.) Ltd. 2006 SCMR 531 rel.

Hafiz Saeed Ahmad Sheikh for Petitioner.

Noor Muhammad Niazi for Respondents Nos.1 to 9.

Mrs. Sarkar Abbas for Respondents Nos.10 and 11.

2013 C L C 764

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH DITTA----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Revision No.126-D of 1995/BWP, decided 21st October, 2011.

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

----Ss. 3 & 24---West Pakistan Land Revenue Act (XVII of 1967), S.10---Order of resumption of tenancy passed by Assistant Commissioner---Validity---Assistant Commissioner was not a Collector as defined in S.3 of Colonization of Government Lands (Punjab) Act, 1912 or provisions of West Pakistan Land Revenue Act, 1967, thus, he had no power to pass such order.

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

----S. 9---Provision of a statute ousting jurisdiction of civil court---Validity---Civil court being, court of plenary and ultimate jurisdiction, clause ousting jurisdiction of civil court would be available only in respect of order passed by an authority with jurisdiction conferred upon him thereby.

Mian Noor Ali Wattoo for Petitioner.

Naveed Khalil Chaudhary, A.A.-G. with Liaquat Hussain Shah, Tehsildar and Syed Mujahid Ayoub Wasti for Respondents.

Dates of hearing: 14th and 21st October, 2011.

2013 C L C 776

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. SALMA BIBI and others----Petitioners

Versus

MEMBER (JUDICIAL-V) BOR/CHIEF SETTLEMENT COMMISSIONER and others----Respondents

Writ Petition No.66/R of 2012, decided on 25th October, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Interim relief, order of---Validity---Such order passed by Trial Court for a specific date, if not extended through a speaking order, would be of no legal value---Illustration.

Javed Iqbal Qureshi for Petitioners.

Ghazanfar Khalid Saeed for Respondent No.1.

Shaharyar Kasuri for Respondent No.2.

2013 C L C 786

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

GHULAM ALI and another----Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 7 others----Respondents

Writ Petition No.2838 of 2011, decided on 4th August, 2011.

Colony Manual---

---Para. 322(c)---Punjab Delegation Rules, 2006---Constitution of Pakistan, Art.199---Constitutional petition---Lease of land---Village servants (Moeens)---Petitioners were in possession of land in question as village servants (Moeens) but authorities wanted to get the land vacated on the plea of establishing graveyard for newly established housing colonies---Validity---Petitioners' forefathers were allotted disputed land, they had served cause of the State and helped the State for establishing new villages (BARS) and remained active part for bringing barren land into cultivation---Equity demanded that Moeens should be compensated in case the State intended to change character of land from agriculture to urban---Constitution has provided that every citizen is equal before law and enjoys equal rights---Islam the State religion provides that in law, Moeens and landowner/Ziminadar enjoy equal rights---If land to temporary cultivators could be transferred permanently after some time why not Moeens---Resumption of land from Moeens in their possession was violative of the Constitution and the same could not be allowed---High Court declared the orders passed by authorities as without lawful authority and the same were set aside---Petition was allowed in circumstances.

Shafique Ahmad and others v. Muhammad Akbar and others 2001 CLC 340; Ghulam Sarwar and others v. Member (Colonies) and others 1996 SCMR 1379; Muhammad Rafiq and others v. Hashmat Ali and another PLD 1992 SC 37 and Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another 2007 SCMR 1240 ref.

Malik Noor Muhammad Awan for Petitioners.

Inayat Ullah Chaudhary for Private Respondents.

Muhammad Siraj-ul-Islam Khan, Addl. A.-G, Punjab for respondents Nos.1 to 3.

2013 C L C 799

[Lahore]

Before Shahid Waheed, J

Messrs SPRINT ENERGY (PVT.) LIMITED through Advisor----Appellant

Versus

AHSAAN ULLAH and 2 others----Respondents

First Appeal from Order No.262 of 2012, heard on 17th October, 2012.

Civil Procedure Code (V of 1908)---

----O. VII R. 11---Arbitration Act (X of 1940), S.34---Stay of proceedings in presence of an arbitration agreement between the parties---"Step in proceedings"---Scope---Suit for recovery---Defendant had filed application for rejection of plaint under Order VII, R.11, C.P.C. and thereafter made application under section 34 of the Arbitration Act, 1940 for stay of proceedings---Said application under section 34 of the Arbitration Act, 1940 was rejected on the ground that after making application under O.VII, Rule 11, C.P.C. the defendant could not request stay on legal proceedings under section 34 of Arbitration Act, 1940---Validity---Criterion to decide whether an act constituted a step in proceedings was whether an application was made to the court on summons or orally and whether the act was such as would indicate that party was acquiescing to the method adopted by the other side of having the dispute decided by court---Intention of statute was that defendant who wanted to take advantage of an arbitration clause must without any ado, and before submitting to the jurisdiction of the court; inform the court in unequivocal terms that he was going to insist upon implementation of the arbitration clause---Defendant would disentitle himself from protection of section 34 of Arbitration Act, 1940 if he did not take such stand before filing a written statement and such situation was not different if he took steps in proceedings before raising an objection---Defendant had taken steps in the proceedings before moving application under S.34 of the Arbitration Act, 1940 and therefore Trial Court had rightly rejected his application for stay in proceedings---Appeal was dismissed in circumstances.

Director Housing, A.G's Branch, Rawalpindi v. Messrs Makhdum Consultants Engineers an Architects 1997 SCMR 988; ACB (Pvt.) Ltd. v. Ups Worldwide Forwarding Inc. 2007 MLD 1520; Pakistan Telecommunication Corporation Ltd. v. Dr. Waqar Hussain Chaudhary PLD 2007 Lah. 678; Aftab Khalil and 5 others v. Shaukat Hussain 2008 CLC 1592 and Mrs. Rubby Hameedullah and 3 others v. Dr. Arif and 4 others 2010 YLR 3331 ref.

Industrija Masina-i-Traktora v. Bank of Omen Ltd. 1992 MLD 2245; Cepcon (Pvt.) Ltd. v. Messrs Rizwan Builders Ltd. 1990 MLD 2027; Hyderabad Municipal Corporation v. Messrs Columbia Enterprises 1990 CLC 47; Middle East Trading Co v. The New National Mills Ltd. AIR 1960 Bom. 292; Vaisyaraju Subramanyam Raju v. Vaisyaraju Chandramauly Raju and others AIR 1987 Ori. 23; The Province of the Punjab v. Messrs Irfan & Co. PLD 1956 Lah. 442; New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22; Subal Chandra Bhur v Md. Ibrahim and another AIR 1943 Cal. 484; Uzin Export Import Enterprises v. M. lftikhar & Company Ltd. PLD 1986 Kar. 1; G.M. Pfaff A.G. v. Sartaj Engineering Co. Ltd., Lahore and 3 others PLD 1970 Lah. 184; N.-W.F.P. through Collector, Mardan and 2 others v Faiz Muhammad PLD 1984 Pesh. 180 and Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 rel.

Shamshad Ullah Cheema for Appellant.

Tariq Mehmood Sipra for Respondents.

Date of hearing: 17th October, 2012.

2013 C L C 810

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. GHULAM FATIMA through Special Attorney----Petitioner

Versus

NAZIR AHMAD through L.Rs. and others----Respondents

Civil Revision No.943 of 2002, decided on 23rd November, 2011.

Specific Relief Act (I of 1877)---

----Ss. 27(b) & 12---Suit for specific performance of agreement---Plaintiff who purchased suit land on the basis of agreement to sell, paid consideration amount and had obtained possession of suit land---Vendor of suit land in violation of terms of the agreement to sell, subsequently sold the land to subsequent vendees---Plaintiff filed suit against said subsequent sale in favour of the subsequent vendees, praying that said subsequent sale be declared illegal, unlawful, void and inoperative against the rights of the plaintiff---Said suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Subsequent vendees were bound to prove on record that their good faith and lack of knowledge of earlier sale in favour of bona fide vendee after taking reasonable care and that they were entitled to protection under S.27(b) of the Specific Relief Act, 1877---Subsequent vendees had failed to prove on record the efforts made by them to get verify the fact that in what capacity the plaintiff possessed the land---Possession of vendor would constitute a notice to the subsequent vendees, who were required to make careful enquiry in respect of prior transaction---Subsequent vendees were obliged to prove on record, apart from payment of vendees; that they had acted in good faith; that they had no notice of original contract/agreement and that they, in the said two aspects had taken reasonable care---Subsequent vendees had not taken reasonable care to find out any previous agreement or to find out that the land was free from all encumbrances---Mere statement of that fact was not sufficient to hold that subsequent vendees had taken reasonable care---Subsequent vendees, in circumstances were not entitled to get protection of S.27(b) of Specific Relief Act, 1877---Concurrent findings of the courts below were not tenable in the eyes of law as same were based on misreading and non-reading and had misconstrued the provision of law---Judgment and decree passed by the courts below were set aside and suit filed by the plaintiff was decreed.

Rashid Ahmad and 7 others v. Muhammad Bashir and 2 others 2005 YLR 2914; Ghulam Mustafa and others v. Muhammad Shafi and others 2005 YLR 2768 and Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 rel.

Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442 distinguished.

Ch. Muhammad Rafique Warraich for Petitioner.

Ch. Iqbal Ahmed Khan for Respondents.

Date of hearing: 23rd November, 2011.

2013 C L C 820

[Lahore]

Before Abdus Sattar Asghar, J

FAISALABAD DEVELOPMENT AUTHORITY and another----Appellants

Versus

Messrs ORIENT ASSOCIATES ARCHITECTS AND CONTRACTORS (PVT.) LIMITED, FAISALABAD----Respondent

First Appeal against Order No.221 of 1998, decided on 19th December, 2012.

Arbitration Act (X of 1940)---

----Ss. 17 & 30---Judgment in terms of Award---Power of court to remit award/set aside the Award---Scope---Award to be made rule of the Court---Essentials---Appellants impugned order of Trial Court whereby the arbitral award was made Rule of the Court and objections filed thereagainst under S.30 of the Arbitration Act, 1940 by the appellants were dismissed---Contention of the appellants was that the objections raised by them under S.30 of the Arbitration Act, 1940 could not have been dismissed without the framing of issues and recourse to evidence---Validity---Award was to be made Rule of the Court only if the court saw no reason to set it aside or to remit it; and therefore, it was incumbent upon the court to satisfy itself that the Award did not suffer from any illegality or defect necessitating either the setting aside of it or its remission to the Arbitrator---Even in absence of any objection, the court had inherent powers to set aside the Award which exceeded the Arbitrators' jurisdiction or if a material irregularity had appeared on the face of the Award---Appellants, in the present case, had raised serious objections on the Award as well as the conduct of the Arbitrator along with jurisdictional defects and material Irregularities---Respondent-company had filed written reply to such objections, and in view of said circumstances, it was not the case where such objections could have been repelled without the framing of issues and without having recourse to evidence---Impugned order of Trial Court making the Award rule of the Court was violative of law and principles of natural justice and was set aside---Appeal was allowed, in circumstances.

Ashfaq Qureshi v. Municipal Corporation Multan and another 1985 SCMR 597 rel.

Ali Akbar Qureshi for Appellants.

Syed Ejaz Ali Akbar Sabzwari for Respondent.

Date of hearing: 19th December, 2012.

2013 C L C 868

[Lahore]

Before Mrs. Ayesha A. Malik, J

Rana SIKANDER HAYAT----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Irrigation and Power, Punjab and 13 others----Respondents

Writ Petition No.9522 of 2012, heard on 12th February, 2013.

(a) Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005---

----R. 16(2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Disputed questions of fact---Availability of alternate remedy for resolution of dispute---Effect---Dispute concerning election of Chairman of Area Water Beard---Plea of petitioner (candidate for the post of Chairman) was that both he and opposing candidate (respondent) got equal votes during the election, but competent authority declared opposing candidate as the Chairman due to political influence---Plea on behalf of respondents was that petitioner did not even tender his candidacy for Chairmanship of the Board on the day of the election---Validity---Plea of petitioner was denied altogether by the respondents, therefore, disputed questions of fact had arisen, which needed recording of evidence for their resolution---Constitutional jurisdiction of High Court could not be invoked in such circumstances---Even otherwise, Rule 16(2) of Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005 provided a remedy for settlement of disputes, which had arisen during the election process---No such remedy had been availed by the petitioner---Constitutional petition was not maintainable in circumstances and was accordingly dismissed with the observation that petitioner was at liberty to avail the remedy available to him in accordance with the law.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed questions of fact---Where such questions arose, constitutional jurisdiction of High Court could not be invoked.

(c) Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005---

----R. 16(2)---Dispute concerning election of Chairman of Area Water Board---Resolution of such dispute---Scope---Rule 16(2) of Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005 provided a remedy for settlement of disputes, which had arisen during the election process---Such dispute had to be decided by the Authority, a duly authorized officer of the Authority or by a dispute resolution committee constituted by the Authority on the application of an aggrieved person.

Barrister Muhammad Ahmad Pansota for Petitioner.

Ghazanfar Pasha and Javed Akhtar Program Director for Respondents.

Date of hearing: 12th February, 2013.

2013 C L C 880

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

Mst. MUNAWAR SHAHZADI----Appellant

Versus

MUHAMMAD GHAFOOR----Respondent

Regular First Appeal No.97 of 1996, heard on 7th June, 2010.

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

----S. 55---Transfer of Property Act (IV of 1882), S.54---Agreement to sell immovable property---Binding effect.

Agreement to sell in respect of immovable property is never treated to be binding unless and until the intention is also expressed in the agreement that in case the agreement to sell is not specifically enforced within the stipulated and specified period, then the agreement shall cease to exist or be not enforceable after the expiry of the period.

Abdul Hamid v. Abbas Bhai -- Abdul Hussain Sodawaterwala PLD 1962 SC 1; Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600; Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director Bank Square, Lahore v. Messrs Babar & Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193 and Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 rel.

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

----S. 12---Contract Act (IX of 1872), S.55---Suit for specific performance of sale agreement---Vendor's plea was that time was essence of the contract, thus, in case of vendee's failure to pay balance consideration within stipulated time, such agreement stood cancelled---Proof---Agreement did not contain any clause to the effect that in case of its non-performance within stipulated period, agreement would stand revoked---Vendor had neither taken plea in written statement nor led evidence that after expiry of stipulated period, agreement stood revoked and ceased to be enforceable---Vendor had not served any notice upon vendee on account of his alleged neglect that agreement stood revoked due to its non-completion within stipulated period---Vendor had neither served any notice upon vendee nor led evidence to the effect that earnest money stood forfeited due to expiry of stipulated period --- Parties had not intended to treat time as essence of the contract --- Suit was decreed in circumstances.

Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111; Muhammad Sharif v. Mst. Faji and others 1996 CLC 883; Malik Ellahi Bux etc. v. Muhammad Aslam 2002 CLC 433; City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen PLD 2008 Lah. 51; Muhammad Rangoonwala v. Mst. Razia Fatima A. Karim through her attorney 2007 MLD 1949; Moharaj Bahadur Singh v. Suresh Chandra Roy AIR 1921 Cal. 179; Abdul Hamid v. Abbas Bhai --- Abdul Hussain Sodawatenwala PLD 1962 SC 1; Habibullah Khan and others v. Qazi Muhammad lshaq and others PLD 1966 SC 359; Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Abdul Karim v. Muhammad Shafi and another 1973 SCMR 225; Barkat Ullah through Legal Heirs and 12 others v. Wali Muhammad through Legal Heirs and 3 others 1994 SCMR 1737; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar and others AIR 1952 Mad. 389; Muhammad Wazir v. Chaudhari Jahangiri Mal and others AIR (36) 1949 Lah. 72; MuIla Badaruddin v. Master Tufail Ahmed AIR 1963 Madhya Pradesh 31; Jamshed Khoduram Irani v. Burjorji Dhunjibhai AIR 1915 PC 83; Chamarti Suryaprakasarayadu v. Arardhi Lakshminarasimhacharyulu and others AIR 1914 Mad. 462; Osmond Beeby v. Khitish Chandra Acharya Chaudhuri and others AIR 1915 Cal. 13; Government of Punjab (Health Department) through Secretary, Health Lahore and another v. Mussarat Uzma Usmani and others PLD 1987 Lah. 166(1); Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director Bank Square, Lahore v. Messrs Babar & Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193; Muhammad Nawaz Khan and another v. Mst. Farrah Naz PLD 1999 Lah. 238; Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600; Mst. Munawar Bibi v. Mst. Maheen Quddusi 1986 CLC 1887; Muhammad Sharif v. Mst. Faji and others 1996 CLC 883; Abdul Habib Durrani v. Toriali 1999 CLC 207 and Lal Din v. Muhammad Sardar and 3 others 2002 YLR 1482 ref.

Abdul Hamid v. Abbas Bhai -- Abdul Hussain Sodawaterwala PLD 1962 SC 1; Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600; Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director Bank Square, Lahore v. Messrs Babar & Company through Shakir Ali Khan and 2 others PLD 1999 Lah. 193 and Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 rel.

Taffazal H. Rizvi for Appellant.

Amir Rehman for Respondent.

Date of hearing: 7th June, 2010.

2013 C L C 897

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SAIF ULLAH----Petitioner

Versus

MAIMOONA ALMAS and others----Respondents

Writ Petitions Nos.1210 and 1315 of 2011, decided on 4th December, 2012.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance allowance for minor---Admission of father (government employee) to be drawing monthly salary as Rs.9,944/- with periodic increase therein---Maintenance awarded to minor by Family Court @ Rs.3000/- per month with annual increase therein @ 10% upheld by Appellate Court---Father's plea was that no provision existed in West Pakistan Family Courts Act, 1964 for granting maintenance with annual increase therein---Validity---Father in evidence had admitted increase in his pay on periodic basis as well as 50% increase in his earlier basic pay and medical allowance---Courts below on basis of evidence available on record regarding periodic increase in monthly salary/income of father and also considering growing needs of minor along with rampant inflation in currency had rightly awarded 10% annual increase in maintenance of minor---High Court dismissed constitutional petition in circumstances.

Khadeeja Bibi and others v. Abdul Raheem and others 2012 SCMR 671 ref.

Abdul Razzak v. Shabnam Noonari and others 2012 SCMR 976 rel.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of medical expenses incurred by wife on birth of her son---Father claimed that he had defrayed all the expenses incurred at the birth of the minor---Father's plea was that wife had never allowed him to meet minor son, thus, he had to file application for his custody---Suit decreed by Family Court upheld by Appellate Court---Validity---Father had not produced any evidence in form of an official docket or advance cash deposit receipt of hospital to show that he got his wife admitted in hospital---Father in view of his such plea could not be believed to have paid such expenses to wife---High Court dismissed constitutional petition in circumstances.

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

----S. 5, Sched.---Suit for recovery of dowry articles---Husband's plea was that he had returned such articles to wife in presence of witnesses---Proof---Evidence led by husband was contradictory to record of suit filed by him for restitution of conjugal rights, wherein he had admitted that such articles were lying in his house---Wife through cogent evidence had proved herself to be entitled to such articles as per its list---Suit was decreed in circumstances.

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

----S. 5, Sched.---Suit for recovery of gold ornaments by wife---Wife's plea was that such ornaments were in possession of husband, when she was expelled from his house in wearing apparels---Proof---Generally, wife would be deemed to be in possession of such articles, when relationship between spouses were cordial and she on her own had left her husband abode---Husband had neither cross-examined wife on such plea recorded in her affidavit-in-evidence nor denied same in his affidavit-in-evidence nor put any suggestion to her that such articles were in her possession or she took away same with her while leaving his house---Wife was entitled to recover from husband such articles or in alternative its present market price---Suit was decreed in circumstances.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance by wife---Refusal of wife to live with her husband despite having received dower amount on basis of compromise effected between spouses in suit for restitution of conjugal rights filed by husband---Validity---Wife for being disobedient was not entitled to maintenance during period of desertion---Suit was dismissed in circumstances.

Raja Zaheer-ud-Din Babir for Petitioner.

Ms. Ferhana Qamar for Respondents Nos.1 and 2.

2013 C L C 904

[Lahore]

Before Shahid Waheed, J

INAAM-UL-HAQ----Petitioner

Versus

MUHAMMAD ALI SHAHEEN and another----Respondents

Writ Petition No.11336 of 2011, heard on 4th December, 2012.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 22(6) & 21---Constitution of Pakistan, Arts.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and expiration of tenancy period---Application for leave to contest not filed within the stipulated period of ten days---Effect---Rent Tribunal not vested with power to condone delay in filing application for leave to contest ---Application of landlord (petitioner) under section 22(6) of the Punjab Rented Premises Act, 2009 for passing final order on the ground that tenant failed to file application for leave to contest within stipulated time was dismissed---Validity---Written reply filed by tenant was patently beyond the period of ten days prescribed by the Punjab Rented Premises Act, 2009 and the Rent Tribunal did not enjoy any jurisdiction to condone the time for filing application for leave to contest---Rent Controller, therefore, exercised jurisdiction which was not vested with it under mandatory provisions of the statute---High Court set aside impugned order of Rent Controller and directed the Rent Controller to pass an order under section 22(6) of the Punjab Rented Premises Act, 2009---Constitutional petition was allowed, in circumstances.

Tayyab Hussain v. Rent Controller, Gujrat and others PLD 2012 Lah. 41 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 28(2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability--- Interlocutory order under section 28(2) of the Punjab Rented Premises Act, 2009 was not amenable to appeal but if the same was arbitrary or capricious or against well-settled propositions of law, High Court was bound to interfere in Constitutional jurisdiction with the same in order to obviate miscarriage of justice---Principle of non-interference in interlocutory orders of courts below by the High Court was a matter of rule and refusal was an exception.

(c) Constitution of Pakistan---

----Arts. 199 & 203---Powers of High Court while exercising constitutional and supervisory jurisdictions---Principles.

Following are the principles with regard to scope of High Courts' powers under Articles 199 and 203 of the Constitution:--

(a) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of appeal or revision has been excluded are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court;

(b) Certiorari, under Article 199 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction---by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction---by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice;

(c) Supervisory jurisdiction under Article 203 of the Constitution is exercised for keeping the subordinate courts within the boundaries of their jurisdiction, When the subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice of grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction; and

(d) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (1) the error is manifest and apparent on the face the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Ch. Muhammad Arshad for Petitioner.

Ch. Muhammad Afzal Jat for Respondent.

Date of hearing: 4th December, 2012.

2013 C L C 928

[Lahore]

Before Rauf Ahmad Sheikh, J

MUSHTAQ AHMAD----Petitioner

Versus

DISTRICT JUDGE, VEHARI and 2 others----Respondents

Writ Petition No.4772 of 2008, decided on 19th December, 2012.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Family Court---Expression "personal property and belongings of the wife"---Scope---Suit for recovery of maintenance, dower and a certain amount of money which was stipulated in the Nikkahnama as an amount that husband was to pay the wife in case he turned her out of the house or pronounced divorce upon her---Suit was decreed concurrently---Contention of the husband (petitioner) was that condition stipulating payment of certain amount to wife in case he turned her out of the house or divorced in the Nikkahnama was against the basic principles of law and could not be enforced by the Family Court---Validity---Said amount was neither a part of dower nor amounted to personal property of wife , therefore, claim in such regard did not fall within the jurisdiction of the Family Court---Family Court could not adjudicate on the matter as it was purely of a civil nature and fell within the jurisdiction of the civil court---Decree of the Family Court to such extent was not sustainable and was set aside---Constitutional petition was allowed, accordingly.

2008 SCMR 186; 2009 MLD 671; 2007 Lah. 515 and PLD 2004 Lah. 588 ref.

Syed Athar Hassan Bukhari for Petitioner.

Ch. Pervaiz Akhtar Gujjar and Malik Ghulam Muhammad Langrial for Respondent No.3.

2013 C L C 935

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

TANVEER AHMED BHATTI----Petitioner

Versus

TEHSIL MUNICIPAL OFFICER, GUJRAT----Respondent

C.Ms. Nos.762 of 2012 and 2705 of 2011 in Writ Petition No.4927 of 2010, decided on 8th October, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Auction proceedings---Auction of shop by Municipal Administration---Highest bidder (applicant) was declared as the successful bidder and deposited part of the auction price with the Municipal Administration---Shop in question was in possession of a tenant and he challenged the auction proceedings through a Constitutional petition, which was dismissed---Tenant challenged auction proceedings again by filing a second writ petition, arraying an unsuccessful bidder (respondent) as the only party and obtained a consent order fraudulently from the High Court, in the absence of the highest bidder---Contentions of highest bidder were that Auction Committee had recommended confirmation of auction in his favour and he had already deposited part of the auction price; that he was not made a party to the second writ petition intentionally; that unsuccessful bidder in collusion with the tenant and Municipal Administration procured consent order from the High Court by practising fraud, and that representative of Municipal Administration had collusively made a statement before the Court that bid made by unsuccessful bidder was the highest ---Validity---Tenant in spite of dismissal of his first writ petition filed present (second) writ petition without impleading highest bidder as a party and without disclosing his first writ petition---Representative of Municipal Administration stated that due to some typographical mistake his consent was recorded by the High Court as a result of which tenant obtained the consent order---Even if it was admitted that representative of Municipal Administration had not made the consenting statement in Court, question remained as to why on receipt of impugned order of High Court, the Municipal Administration had not filed an application for setting aside the same---Municipal Administration fraudulently issued the letter, wherein bid of unsuccessful bidder was declared as the highest---Recommendations of Auction Committee had not been confirmed or rejected and Municipal Administration had not taken any action for the loss to the Government Exchequer caused due to the fact that shop in question was lying sealed and Municipal Administration was suffering loss of rent---Application under S.12(2), C.P.C. was allowed, impugned order of High Court was set aside, writ petition of tenant was dismissed with costs of Rs.500,000 for minimizing the loss to the Government Exchequer, and application of unsuccessful bidder was also dismissed with costs of Rs.200,000---High Court also issued directions to concerned authority to initiate proceedings against the Municipal Administration and other concerned officials who were instrumental in causing loss to the Government Exchequer.

Haris Azmat for Applicant (in Civil Miscellaneous No.762 of 2012).

Syed Fayyaz Ahmad Sherazi for Applicant (in Civil Miscellaneous No.2705 of 2011).

Dr. Mohy-ud-Din Qazi for Petitioner.

Javed Iqbal, Legal Assistant, T.M.A., Gujrat.

2013 C L C 944

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD JAVED IQBAL----Petitioner

Versus

ADDITIONAL SESSIONS/DISTRICT JUDGE-I, LAHORE and 2 others----Respondents

Writ Petition No.1784 of 2011, decided on 16th January, 2013.

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 dowry articles was decreed concurrently---Plea of non-delivery of dowry articles---Contention of the husband was that only a Nikkah had taken place between the parties and there was no "rukhsati"; and as such no dowry articles were delivered to the husband---Validity---Nikkahnama showed that no one attended the ceremony from the husband's side nor any name was mentioned regarding appointment of "vakeel" from the husband's side; which indicated that at the time of nikah, the husband was all alone---No evidence was available to establish that the family members of the husband attended the ceremony and evidence established that the husband, a day after the nikah, left to resume his job in another city---When the husband after solemnization of nikah went back to his duties to another city, question of delivery of dowry articles did not arise and wife could not produce receipt regarding purchase of dowry articles---Two months after the nikkah, the parties divorced and during this time the husband had not returned to his wife; which proved non-delivery of dowry articles---Courts below had failed to examine the documentary evidence on record and therefore, the findings were liable to be set aside---High Court set aside findings of courts below and dismissed suit for recovery of dowry---Constitutional petition was allowed, in circumstances.

Mst. Allah Rakhi v. Tanvir Iqbal and others 2004 SCMR 1739 rel.

Ms. Ayesha Zahoor for Petitioner.

Muhammad Iqbal Ghani for Respondent No.3.

2013 C L C 960

[Lahore]

Before Syed Mansoor Ali Shah and Muhammad Farrukh Irfan Khan, JJ

MUHAMMAD RAMZAN----Appellant

Versus

Mian MUHAMMAD SALEEM----Respondent

Intra-Court Appeal No.377 of 2011, decided on 30th October, 2012.

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

----S. 15(1)---Civil Procedure Code (V of 1908) S.12(2) & Preamble---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Constitution of Pakistan, Art. 199---Intra-Court appeal---Maintainability---Tribunal constituted under special statute of limited jurisdiction (West Pakistan Urban Rent Restriction Ordinance, 1959) could borrow equitable principles from C.P.C.---Appellant's Constitutional petition against order of Rent Controller on application under S.12(2), C.P.C. was dismissed on the ground that the appellant/petitioner had an alternate remedy of appeal under S.15(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Contention of the appellant/petitioner was that since the application was filed under the provisions of S.12(2) C.P.C., and since no appeal was provided in the C.P.C., therefore, an order passed on such application would be a final order and the provisions of C.P.C. would apply thereto---Validity---West Pakistan Urban Rent Restriction Ordinance. 1959 was a special law and there was no restriction of importing broad principles of equity and civil procedure provided in the C.P.C. to regulate proceedings under special statutes, including the West Pakistan Urban Rent Restriction Ordinance, 1959---As there existed no specific provision for setting aside award of Rent Controller on grounds of fraud, the Rent Controller could assume the jurisdiction and regulate its proceedings by borrowing the broad and equitable principles of S.12(2), C.P.C.---"Original statute" in the present case would be the West Pakistan Urban Rent Restriction Ordinance, 1959, which provided an appeal under S.15(1) to the District Court---In presence of such provision of proviso to S.3(2) of the Law Reforms Ordinance, 1972 was attracted to the case and intra-court appeal was therefore, not maintainable---Intra-court appeal was dismissed in circumstances.

Allah Ditta and others v. Muhammad Hussain PLD 1965 (W.P.) Lah. 29; Mst. Sarwari Begum v. Jabbar alias Lolia PLD 1965 (W.) Lah. 32; Ahmad and others v. The Additional District Judge, Sargodha and others PLD 1990 Lah. 425 and Ch. Shaukat Hussain and others v. Mian Aslam Riaz Hussain and others 1994 MLD 2079 ref.

Masjid Intizamia Committee and others v. Anjuman-e-Falah-o-Bahbood and others 2000 SCMR 540; Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 and Mst. Fehmida Begum v. Muhammad Khalid 1992 SCMR 1908 rel.

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

----Preamble---Special law---Applicability equitable principles from C.P.C.---Scope---Tribunal which was a quasi-judicial forum and a court working under a special statute, could borrow equitable principles from the Civil Procedure Code, 1908 for the dispensation of justice, however it cannot deviate from what had been laid down in special law---Broad equitable principles of C.P.C. could be invoked in special cases but the original and basic provisions of the special statute could not be overridden altogether.

Waqar-ul-Hassan Butt for Appellant.

Muhammad Akhtar for Respondent No.1.

Date of hearing: 30th October, 2012.

2013 C L C 976

[Lahore]

Before Rauf Ahmad Sheikh, J

FARZAND ALI and another----Petitioners

Versus

MUHAMMAD RAFIQUE----Respondent

Civil Revision No.1240-D of 1996, heard on 12th November, 2012.

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

----S. 13---Civil Procedure Code (V of 1908), S.115 & O.IX, R.8---Pre-emption suit---Date, time and place of making Talb-i-Muwathibat, non-mentioning in plaint---Presumption---Suit filed by pre-emptor was decreed to the extent of half of disputed property and judgment was maintained by Lower Appellate Court---Validity---Pre-emptor was required to give date, time and place of attaining knowledge and making of Talb-i-Muwathibat under section 13(2) of Punjab Pre-emption Act, 1991---If anyone of such details was missing, then it would be presumed that the same was not made in accordance with law---Even in witness box, pre-emptor did not give full details of date, place and time of making of Talb-i-Muwathibat---Both the Courts below committed material irregularity in holding that Talbs were made in accordance with law---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two courts below and suit filed by pre-emptor was dismissed.

Mian Pir Muhammad and another v. Faqir Muhammad Through L.Rs. and others PLD 2007 SC 302 rel.

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

----S.115---Revision---Scope---Revision dismissed for non-prosecution---Principles---Civil revision once admitted to hearing could not be dismissed in default because it was the duty of revisional court to see if judgment and decree of subordinate court was based on proper exercise of jurisdiction lawfully vested in it and whether jurisdiction had been exercised legally and without any material irregularity---Even if parties to civil revision did not render necessary assistance, the revisional jurisdiction under section 115 C.P.C. would make it imperative for revisional court to make appropriate order, if the judgment and order were found to be in exercise of jurisdiction not vested in law in it or the Court had failed to exercise jurisdiction vested in it or had acted in exercise of its jurisdiction illegally or with material irregularity.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 ref.

Nemo for Petitioners.

Malik Nazar Hussain Arain for Respondent.

Date of hearing: 12th November, 2012.

2013 C L C 1010

[Lahore]

Before Kh. Imtiaz Ahmad and Muhammad Khalid Mehmood Khan, JJ

ALTAF HUSSAIN----Applicant

Versus

RETURNING OFFICER NA-135 AND 171 (Sangla Hill) and another----Respondents

Election Appeals Nos.223-A and 227-A of 2013, decided on 15th April, 2013.

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

----Ss. 14(5) & 14(5A)---Election appeal---Appreciation of evidence---Rejection of nomination papers---Submission of false declaration---Non-disclosure of true income---Evasion of income tax---Nomination papers filed by candidate (respondent) for seat of Provincial Assembly were accepted---Plea on behalf of appellant was that candidate was running a Compressed Natural Gas (CNG) filling station value of which had been shown as Rs.250,000, which was apparently a false declaration, and the (actual) value of the filling station was more than Rs.50 million; that the monthly gas consumption bill of the filling station for the last month was Rs.24,18,640, which showed that sale against such consumption was Rs.4.3 million; that after deducting all taxes candidate was earning at least Rs.1.2 million per month, whereas he had shown his monthly income as Rs.21,000---Validity---Candidate had shown his monthly income as Rs.21,000 while his bank account was showing a credit balance of Rs.140,52,486, which fact was sufficient to prove that he had not disclosed his true assets and his declaration was based on wrong information, which was submitted on oath---No one could save Rs.140,52,486 against a monthly income of Rs.21,000---Candidate was earning a sizeable amount from the filling station but did not show the same in his income for evading income tax and was unable to explain the fact that if monthly consumption of gas at the filling station was more than Rs.24,00,000, then how sale of Compressed Natural Gas (CNG) would not exceed Rs.43,00,000, and consequently his monthly earning would not (at least) be Rs.1.2 million---Candidate, in circumstances, had intentionally submitted wrong declaration on oath---Appeal was allowed and nomination papers of candidate were rejected.

Barrister Haris Azmat and Syed Tahir Abbas Zaidi for Appellant.

Abid Saqi and Ali Bilal Madni for Respondent No.2.

2013 C L C 1033

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ASHIQ MUHAMMAD KHAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others----Respondents

Writ Petition No.12844 of 2011, decided on 6th November, 2012.

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

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.17---Constitution of Pakistan, Art.199---Constitutional petition---Amendment of pleadings---Non-mentioning of date, time and place of making Talb-i-Muwathibat---Effect---Grievance of pre-emptor was that Trial Court and Lower Appellate Court did not allow him to amend his plaint: by including date, time and place of making of Talb-i-Muwathibat in the plaint---Validity---Right of pre-emption was very feeble right and in order to succeed in the same a pre-emptor had to fulfil requisite Talbs as envisaged in section 13 of Punjab Pre-emption Act, 1991---Pre-emptor, in the present case, did not disclose date, time and place of making Talb-i-Muwathibat, which was fatal in pre-emption suit---In pre-emption suit it was mandatory for pre-emptor to mention requisite particulars of Talbs in plaint and any omission in such regard was fatal and was not defect which could be cured through filing application under O.VI, rule 17, C.P.C.---Trial Court was fully justified in declining application of pre-emptor for amendment of plaint, which was rightly maintained by Lower Appellate Court---Pre-emptor failed to point out any illegality or irregularity in orders warranting interference by High Court in its Constitutional jurisdiction---Petition was dismissed in circumstances.

Mian Pir Muhammad v. Faqir-Muhammad PLD 2007 SC 302; Mst. Bashiran Begum v Nazar Hussain and another PLD 2008 SC 559 and Karamat Ali Shehbaz v. Muhammad Zulqarnain PLD 2009 Lah. 356 ref.

Malik Junaid Farooq for Petitioner.

Sh. Habib-ur-Rehman for Respondents Nos.3 to 5.

2013 C L C 1054

[Lahore]

Before Amin-ud-Din Khan, J

FAIZULLAH----Appellant

Versus

MUHAMMAD SARWAR and another----Respondents

Regular Second Appeal No.34 of 1999, heard on 5th November, 2012.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.85(5)---Mutation attested on basis of registered sale-deed---Scope---Such mutation would remain intact and could not be cancelled till existence of such sale-deed.

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

----S. 42---Land Reforms Regulations, 1972 (M.L.R.115), Para.24---Specific Relief Act (I of 1877), S.42---Suit for declaration---Mutation attested on basis of registered sale-deed subsequently cancelled by Consolidation Officer to be violative of Para.24 of Land Reforms Regulations, 1972---Validity---Sale-deed found mention that defendant (vendor) was selling his whole land in Mouza, and if any part thereof did not find mention therein, then same would be presumed to have been sold and included therein and Revenue Officer would be bound to attest mutation thereof in favour of plaintiff (vendee)---Revenue Officer was legally bound to attest mutation of whole land of defendant in favour of plaintiff---Consolidation Officer had no power to check violation of Land Reforms Regulations, 1972---Land Reforms Authorities could not set aside registered sale-deed---Para.24---Land Reforms Regulations, 1972 had been declared to be violative of Injunctions of Islam---Impugned order was not only absolutely without jurisdiction, but had been passed without notice to plaintiff, who was in possession of suit-land, thus, limitation could not be hurdle against his rights---Defendant could not take benefit of his own wrong---Suit was decreed in circumstances.

Sajwara and others v. Federal Government of Pakistan PLD 1989 FSC 80 rel.

(c) Limitation---

----Order absolutely without jurisdiction and passed without notice to opposite party in possession of suit property---Effect---Limitation could not be a hurdle against rights of such party---Illustration.

(d) Administration of justice---

----Wrongdoer could not be allowed to take benefit of his own wrong---Illustration.

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

----O. XLI, R. 27---Additional evidence, production of---Scope---Such evidence could be allowed, if court itself required same for reaching at right conclusion of case.

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

----O. I, R. 10 & S.100---Second appeal---Defendant/ respondent's application for impleading another person as defendant in suit---Maintainability---Defendant could not move such application and that too at stage of second appeal---High Court dismissed such application in circumstances.

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

----S. 42---Civil Procedure Code (V of 1908), S. 100 & O. VI, R. 17---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration---Suit decreed by Trial Court, but dismissed by Appellate Court---Second appeal by plaintiff before High Court---Defendant/respondent's application for amendment of written statement to raise therein plea of bona fide purchaser of suit-land---Maintainability---Defendant had made such application after 18/19 years---Defendant/respondent could not raise such plea at stage of second appeal---Such plea, if allowed, would change complexion of written statement---High Court dismissed such application for not being maintainable.

Mian Zafar Iqbal Klanauri for Appellant.

Malik Abdul Wahid for Respondents.

Date of hearing: 5th November, 2012.

2013 C L C 1068

[Lahore]

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ATHAR MAQBOOL----Petitioner

Versus

ELECTION TRIBUNAL and others----Respondents

Writ Petition No.9790 of 2013, decided on 23rd April, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(n) & 199---Representation of the People Act (LXXXV of 1976), S.14---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.8---State Bank of Pakistan BPD Circular No.29 of 2002 dated 15-10-2002---Constitutional petition---Disqualification for membership of Parliament (Majlis-e-Shoora)---Written off loan---Bank loan written off legitimately in accordance with law---Effect---Nomination papers of candidate were rejected by the Election Tribunal on the basis that his company got a loan written off---Plea of candidate that he was only a shareholder of the company to the extent of 30% of the total shareholding, and did not have controlling interest in the company; that loan in question was partly written off pursuant to an application moved by the company under BPD Circular No. 29/2002 of State Bank of Pakistan, therefore loan being written off was a legitimate exercise permitted by law---Plea of objector that a Commission had been constituted by the Supreme Court to identify and investigate cases where loans were written off, unlawfully for political considerations or under political pressure; that all loans written off by any of the Circulars including BPD Circular No.29/2002 were under scrutiny by the Commission, therefore candidate was disqualified from contesting elections in terms of Article 63 (1) (n) of the Constitution---Validity---Shareholding of candidate in the company was not more than 30% of the total shareholding, and he did not hold controlling interest in the company---Candidate could not be said to have obtained the loan for himself, in terms of Article 63 (1) (n) of the Constitution---Company was not owned or controlled by candidate's spouse or dependent children, therefore, he could not be held liable for the amounts owed by the company---Commission in question had not made any adverse order or recommendations so far involving the candidate or the company, therefore order through which the loan of the company was written off could not be termed as an unlawful order---Mere fact that a Commission had been constituted, which was examining / scrutinizing matters was not sufficient at present stage to cast any shadow on the validity or legality of the written off loans under BPD Circular No.29/2002---Write-off was availed by the candidate under BPD Circular No.29/2002, which was validly issued by the State Bank of Pakistan--- Said Circular had not been struck down by any court of law and loan written off in the present case, did not fall under the categories of "written off loans" mentioned in section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001, hence no recovery suit under the said section could be instituted against the candidate---Nomination papers of candidate could not have been rejected in such circumstances on basis of disqualification in terms of Article 63(1)(n) of the Constitution---Constitutional petition was allowed, impugned order of Election Tribunal was set aside and Returning Officer was directed to include name of candidate in the list of eligible candidates.

(b) Constitution of Pakistan---

----Art. 63(1)(n)---Disqualification for membership of Parliament (Majlis-e-Shoora)---Written off loan---Scope---Reference to written off loans in Article 63(1)(n) of the Constitution envisaged loan written off due to political consideration or loan lacking bona fide business consideration.

Muhammad Ahsan Bhoon for Petitioner.

Shahram Sarwar Chaudhary for Respondent No.3.

Ch. Fiaz Ahmad Singhairah for ZTBL.

Nasir Javed Ghumman, Standing Counsel.

Rana Muhammad Aslam, Deputy Director, ECP, Ali Akhtar Khan, Law Officer, ECP.

S. Ali Jaffar Abidi, Senior Joint Director, SBP, Karachi.

2013 C L C 1073

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD NADEEM----Petitioner

Versus

KAUKAB WASEEM----Respondent

Civil Revision No.272 of 2013, decided on 1st February, 2013.

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

----Ss. 144 & 151 ----Specific Relief Act (I of 1877) S.39---Application for restitution--- Reversal of decree--- Restoration of possession---Scope---Suit for cancellation for agreement to sell immovable property was decreed in favour of the plaintiff and possession was accordingly handed over to him---Subsequently appeal of defendant thereagaisnt was allowed, and application of the defendant under S.144, C.P.C. was allowed; and possession was restored to the defendant---Validity---Act of the court should not injure rights of any person and S.144 of C.P.C. was based on the same principle---Defendant had lost possession of the disputed property in execution of ex parte decree which was set aside by High Court on appeal, therefore, defendant was entitled to restoration of the possession of the same in accordance with law and parties were to be restored to the same position they were in prior to the decree---Any benefit received by a decree holder under a decree which had been reversed was refundable to the party entitled to such benefit by restoration---Section 144, C.P.C. was applicable irrespective of fact whether restoration had or had not been directed in the Appellate Court's decree---Restoration was a consequential relief on account of reversal of decree for the safe administration of justice---No illegality therefore existed in the impugned order---Revision was dismissed, in circumstances.

(b) Administration of justice---

----Act of the court should not injure rights of any party.

Mian Muhammad Abbas for Petitioner.

2013 C L C 1080

[Lahore]

Before Mrs. Ayesha A. Malik, J

AMMARIS MEHTAB CHAUDHRY----Petitioner

Versus

VICE-CHANCELLOR, SARGODHA UNIVERSITY and others----Respondents

Writ Petitions Nos.30214, 30569, 30570 of 2012 and 2029 of 2013, decided on 22nd February, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional Petition---Educational Institution---Admission---Cancellation of admission tantamount to penalty---Due process---Petitioners impugned cancellation of their admissions at the University, after they had started attending classes and had paid the fee---University had cancelled admissions of petitioners on the ground that same had been made in violation of merit---Validity---Committee formed to review admissions process did not call the petitioners to inquire as to whether they had been involved in any wrongful act to procure admission---Case against the petitioners was based on a presumption that since the Chairman of the Admissions Committee had acted contrary to the rules, hence petitioners must have been involved in gaining admission unlawfully---Once a student was granted admission, a vested right was created in his favour, which could only be cancelled by following the due process of law---Cancellation of admission is tantamount to penalty and in order to impose a penalty, the University officials had to follow due process, which included an inquiry, show-cause notice, hearing and a decision by a competent authority---Admission of petitioners could only be cancelled if they were found guilty of suppression of facts or if it was proved they had obtained admission unlawfully, however, in the present case, the Chairman of the Admissions Committee acted negligently and against policy, but the petitioners could not be held responsible for his actions---Students could not be made liable for mistake or negligence on part of the University---Nothing on record could show that petitioners knowingly got admission to the University contrary to the admissions policy and without such proof, their admissions could not be cancelled---High Court set aside impugned order and directed that the petitioners be allowed to continue their education at the University---Constitutional petition was allowed, in circumstances.

Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others 2012 SCMR 673 distinguished.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 rel.

Mian Jameel Akhtar and Azmat Ali Chohan for Petitioner.

Syed Zulfiqar Ali Bokhari, Mian Muhammad Shahid Nazeer, Prof. Dr. Muhammad Afzal University of Sargodha for Respondents.

Syed Nayyar Abbas Rizvi, Addl. A.-G. on Court's call.

2013 C L C 1088

[Lahore]

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Sardar SARFRAZ AHMAD CHEEMA----Petitioner

Versus

RETURNING OFFICER and others----Respondents

Writ Petition No.9775 of 2013, decided on 23rd April, 2013.

Constitution of Pakistan---

----Arts. 63(1)(n) & 199---Representation of the People Act (LXXXV of 1976), Ss.14 & 12(2), Explanation (ii)---Constitutional petition---Qualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers---Loan of company, written off ---Person having minority interest/shareholding in the company, liability of---Liability of guarantor of company---Scope---Nomination papers of candidate in question were rejected by Returning Officer and Election Tribunal on the ground that he was a shareholder in a company which defaulted in payment of a loan---Validity---Candidate only held 24% shares in the company, therefore, he did not mainly own or hold controlling or majority interest in the company in terms of section 12, Explanation (ii) of the Representation of the People Act, 1976---Considering the language of Article 63 (1) (n) of the Constitution, candidate in question could not be considered to have an unpaid liability of a loan of Rs.2 million or more---Further, admittedly, candidate was a guarantor---Orders passed by Returning Officer and Election Tribunal were set aside and Returning Officer was directed to include name of candidate in list of eligible candidates.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer NA-158, Naushero Feroze and others 1994 SCMR 1299 ref.

Rao Athar Akhlaq for Petitioner.

Nasir Javed Ghumman, Standing Counsel.

Rana Muhammad Aslam, Deputy Director, Election Commission of Pakistan.

Ali Akhtar Khan, Law Officer, Election Commission of Pakistan.

2013 C L C 1101

[Lahore]

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Rai HASSAN NAWAZ----Petitioner

Versus

The ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.9733 of 2013, decided on 2nd May, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(n) & 199---Representation of the People Act (LXXXV of 1976), S. 14---Constitutional petition---Disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers---Maneuvering release of personal guarantee issued to secure finance from a bank---Nomination papers of candidate in question were rejected by Election Tribunal on the basis that he had maneuvered the release of personal guarantee that had allegedly been issued by him to secure finance obtained by a textile mill---Validity---Guarantee had been released with the consent of the bank---Said release had not been challenged by any party before any forum---Banking Court which tried the recovery suit also deleted the name of the candidate from the array of the defendants---Allegation that the guarantee was released and the candidate was released from his obligation as a guarantor, could not at present stage be relied upon in order to attract the provisions of Article 63 (1) (n) of the Constitution---Even otherwise, it was a factual enquiry requiring recording of evidence which could not be undertaken in the constitutional jurisdiction of High Court---Constitutional petition was allowed and impugned judgment of Election Tribunal was set aside.

(b) Constitution of Pakistan---

----Arts. 63(1)(o) & 199---Representation of the People Act (LXXXV of 1976), S. 14---Constitutional petition---Disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers---Non-payment of Government dues---Nomination papers of candidate in question were rejected by Election Tribunal on the basis that he had not paid certain conversion charges and other related dues to Town Municipal Administration in relation to his Housing Scheme---Validity---Record of Municipal Administration showed that candidate had moved an application before the competent authority for approval of the layout plan for his Housing Scheme and payment of conversion charges---Said application was marked by the Town Municipal Officer to the concerned officer, however, no further proceedings were taken on the application and the matter remained dormant for sometime, whereafter a demand notice was sent to the candidate---Town Municipal Officer was not able to show that demand notice was based on a conscious and rational calculation, and was also unable to explain the basis for the various figures mentioned in the demand notice---Request of candidate for reconciliation of calculations had been allowed, which established that an exact figure of the demand raised by the Town Municipal Officer had not been determined---Since demand had not been finalized and demanded from the candidate, it could not be said that he was in default of government dues---Constitutional petition was allowed and impugned judgment of Election Tribunal was set aside accordingly.

(c) Constitution of Pakistan---

----Arts. 62, 63 & 199---Representation of the People Act (LXXXV of 1976), S. 14---Constitutional petition---Qualification/disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers---Concealment of certain assets/properties owned by candidate in his nomination papers---Election Tribunal rejected nomination papers of candidate in question on the basis that he concealed certain properties in his nomination papers---Validity---Suppression of certain properties owned by candidate in his nomination paper, at best constituted misdeclaration which did not in the facts and circumstances of the present case attract disqualification as per criteria laid down in Arts.62 and 63 of the Constitution---Question whether the declaration/ statements of the candidate in his nomination papers were false or incorrect in any material particular, could not be ascertained without carrying out a factual probe, which exercise could not be undertaken in the constitutional jurisdiction of High Court and could not have been gone into by the Returning Officer or Election Tribunal in their summary jurisdiction---Constitutional petition was allowed and impugned judgment of Election Tribunal was set aside accordingly.

Uzair Karamat Bhandari and Mian Muhammad Kashif for Petitioner.

Salman Akram Raja for Respondent No.4.

Nasir Javed Ghumman, Standing Counsel.

Rana Muhammad Aslam, Deputy Director, PECP.

Ali Akhtar Khan, Law Officer, Election Commission of Pakistan.

Shabeer Manzoor, Tehsil Municipal Officer, Chichawatni.

2013 C L C 1121

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD KHALIL AHMAD----Petitioner

Versus

SHABBIR AHMAD----Respondent

Civil Revision No.1078 of 2012, decided on 5th December, 2012.

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

----O. XXXVII, Rr. 1, 2, 4, O. IX, R. 13, O. V, Rr. 6, 18 & 19---Suit upon bills of exchange---Ex parte decree, setting aside of ---Setting aside of a decree passed in a suit under provisions of O.XXXVII, C.P.C. ---Scope---"Special circumstances" as used in O.XXXVII, R.4, C.P.C.---Connotation---Suit for recovery of money was decreed ex parte against defendant, and defendant's application for setting aside ex parte decree was dismissed---Contention of the defendant was that there was a defect in the service effected upon the defendant and requirements of O.V, Rr.18 and 19, C.P.C. were not complied with---Validity---Requirements for effecting service upon the defendant had been duly fulfilled in the present case and the reliance of the defendant on O.V, R.19, C.P.C. was misplaced as the examination of serving officer was only required if the summons was returned under O.V, R.17, C.P.C. which provision dealt with the circumstances as to what procedure was to be adopted when the defendant refused to accept service or when he could not be found---Refusal to accept service or non-finding of the defendant did not happen in the present case---Term "special circumstances" as used in O.XXXVI, R.4, C.P.C. was stricter than the terms "good cause" and "sufficient cause" as used in O.IX, R.13, C.P.C. and a person seeking setting aside of ex parte decree passed under O.XXXVII, C.P.C. had to satisfy the court with regards to existence of "special circumstances"---Petitioner, had failed to demonstrate such v special circumstances for setting aside of ex parte decree---Revision was dismissed.

Nouroz Khan v. Haji Qadoor 2005 SCMR 1877 and Mehmuda Sultana v. Naseem Mumtaz and another 1990 MLD 1028 rel.

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

----O. XXXVII R. 4, O.IX, R.13, O.XLIII, R.1(d) & S.115---Setting aside of ex parte decree passed in a suit under O.XXXVII, C.P.C.---Revisional jurisdiction of High Court---Scope---In view of provisions of O.XLIII, R.1(d), C.P.C, proceedings culminated under provisions of O.IX R.13, C.P.C. were appealable and any final verdict as had been given under O.XXXVII, R.4, C.P.C. primarily was to be considered as an order passed within purview of O.IX, R.13, C.P.C. and revisional jurisdiction against such order would not be available.

Ahmed Raza for Petitioner.

2013 C L C 1125

[Lahore]

Before Abdus Sattar Asghar, J

GHULAM MUSTAFA and another----Petitioners

Versus

DISTRICT JUDGE, JHANG and 3 others----Respondents

Writ Petition No.6121 of 2013, decided on 14th March, 2013.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Amendment in pleadings---Power of legal heirs of defendant to amend pleadings---Scope---Suit for specific performance of agreement to sell immovable property---Petitioners were legal heirs of the original defendant who had denied the execution of alleged sale agreement and instead contended that he had sold the suit property vide another sale-deed in favour of the respondent---Petitioners/defendants sought to amend pleadings and admitted to the execution of the sale-deed denied by their father---Trial Court declined application of defendants/petitioners for amendment in pleadings---Validity---Original defendant, the deceased father of the present defendants, had categorically denied the execution of the agreement to sell in his written statement, and admitted an agreement to sell in favour of another person (respondent), in whose favour a valuable right accrued on basis of the written statement of the deceased---Petitioners being legal representatives could not be permitted to get rid of the admission already made by their father in his written statement in favour of the respondent---Provisions of Order VI, Rule 17, C.P.C. were to be construed liberally however, petitioners/new defendants would not be allowed to abuse law of procedure to favour plaintiff by resiling from the admission made by their deceased father in earlier written statement and putting up a new and inconsistent defence---Admission made by a party in the pleadings could not be revoked without permission of the court---Since a valuable right had been created in favour of the respondent on basis of the admission of the deceased, therefore proposed amendment based on ulterior motives could not be allowed---Constitutional petition was dismissed, in circumstances.

Secretary to Government (West Pakistan), Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 and Muhammad Khan and 6 others v. Ghulam Fatima and 12 others 1991 SCMR 970 rel.

Mehr Ahmad Bakhsh Bharwana for Petitioner.

2013 C L C 1140

[Lahore]

Before Syed Iftikhar Hussain Shah, J

Haji PEERAN DITTA and others----Petitioners

Versus

SHAMS-UD-DIN and others----Respondents

Civil Revision No.471-D of 2001/BWP, heard on 21st June, 2012.

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

----Arts. 100 & 101---Nikahnama, 30 years old document---Presumption of correctness was attached to the signature and contents of a thirty years old document, if produced from proper custody---Person relying on such document need not prove its execution---If a document of 30 years old was produced before the court from proper custody or from the face of it same was free from suspicion, and court may presume its correctness---Age of document, its non-suspicious character, its custody and other circumstances provided foundation to raise presumption of its execution but if the genuineness of the document was in dispute, it was the duty of the court to decide the question of its genuineness and true character.

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

----Arts. 87, 100 & 101---Presumption of correctness of thirty years old document---Age of document, its unsuspicious character, its custody and other circumstances are foundation to raise a presumption of its execution and if a document is proved more than 30 years old, it is permissible in evidence without formal proof, but if the genuineness of such document is disputed, it is the duty of the court to determine the question of its genuineness and true character---Certificate under Art.87 of Qanun-e-Shahadat, 1984 is also a requirement---Court has to decide the authenticity of the document.

Sardar Muhammad Hussain Khan for Petitioner.

Ch. Riaz Ahmad for Respondents.

Date of hearing: 21st June, 2012.

2013 C L C 1150

[Lahore]

Before Ijaz Ahmad, J

Miss ABIDA PARVEEN----Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and another----Respondents

Writ Petition No.9998 of 2012, decided on 21st November, 2012.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Educational institution---Award of degree---Grace marks---Regulation of grace marks could not be termed to be prejudicial to the right of the petitioner or discriminatory in any manner as it was not directed against the petitioner or a class of persons---Law allowed a fair regulation and classification---Constitutional petition was dismissed in circumstances.

Syed Abdur Razzaq Gillani and Muhammad Amin Malik for Petitioner.

Malik Muhammad Rafique Rajwana, Legal Advisor for Respondents.

2013 C L C 1258

[Lahore]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

NAVEED AKHTAR KAHUT----Appellant

Versus

RETURNING OFFICER (NA-60), CHAKWAL and another----Respondents

Election Appeal No.42 of 2013, heard on16th April, 2013.

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

----S. 14 (5) & (5A)---Representation of the People (Conduct of Election) Rules, 1977, R.5(1)---Appeal---Locus standi---Non-filing of objections before Returning Officer---Appellant did not file objections against candidature of respondent before Returning Officer at the time of scrutiny of nomination papers---Validity---No tangible proof was available to show that appellant had filed any objection to nomination of respondent---Only a candidate could file appeal under S.14(5) of Representation of the People Act, 1976, against acceptance of nomination papers of rival candidate---Such right had been given to an elector, who filed objections under R.5(1) of Representation of the People (Conduct of Election) Rules, 1977---Appellant neither filed objections before Returning Officer nor was a candidate so he lacked locus standi to file appeal---Appeal was dismissed in circumstances.

2003 MLD 222; PLD 2011 Lah. II(????), PLJ 2012 Lahore 279, 2000 SCMR 712; 2010 CLC 1444 and Muhammad Afzal Khan Dhandla v. Election Tribunal and 3 others PLD 2010 SC 959 ref.

Malik Qamar Afzal for Appellant.

Muhammad Ameer Butt and Qazi Muhammad Ameen for Respondents.

Date of hearing: 16th April, 2013.

2013 C L C 1276

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD JAVED----Petitioner

Versus

MANAGING DIRECTOR SUI NORTHERN GAS and others----Respondents

Civil Revision No.240 of 2013, decided on 30th January, 2013.

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

----O. XVII, R. 3---Non-production of evidence by plaintiff despite having availed several opportunities with costs and specific warnings---Dismissal of suit by Trial Court for want of evidence---Validity---Law would favour vigilant and not indolent---Party to lis could not be allowed to play hide and seek with court to prolong case and waste its precious time---Plaintiff due to such conduct seemed to be least interested in pursuing his case---Plaintiff had not shown any cogent reason for non-production of evidence on relevant date of hearing---Trial Court had rightly dismissed suit after closing plaintiff's evidence---High Court dismissed revision in circumstances.

Executive Engineer Peshawar v. Messrs Tour Muhammad & Sons and 4 others 1983 SCMR 619 rel.

(b) Administration of justice---

----Object of Rules of Procedure in administration of justice being resolution of dispute between parties in accordance with law and check unnecessary delay in disposal thereof---Party to lis could not be allowed to play hide and seek with court and waste its time and prolong case---Principles.

(c) Administration of justice---

----Law would favour diligent and not indolent.

Muhammad Muzammil Qureshi for Petitioner.

2013 C L C 1310

[Lahore]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

ALLIED BANK LTD. through Authorized person----Petitioner

Versus

INAM ULLAH KHAN and another----Respondents

Election Appeal No.21 of 2013, heard on 13th April, 2013.

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

----Ss. 14(5A) & 99---Constitution of Pakistan, Arts.62 & 63---Loan defaulter---Liability of guarantor---Nomination papers filed by respondent candidate were accepted by Returning Officer during scrutiny---Appellant bank preferred direct appeal before High Court alleging that respondent candidate was wilful defaulter of loan---Plea raised by respondent was that he was guarantor and not principal debtor---Validity---Decree was passed against respondent and the same had been upheld by Supreme Court but it remained unsatisfied---Liability of guarantor was co-extensive with that of principal debtor, therefore, respondent was liable to pay decretal amount---Respondent did not disclose fact of passing of decree against him in his nomination papers---Respondent was not only adjudged defaulter in terms of S.14 (5A) of Representation of the People Act, 1976, but was also guilty of concealment of facts---Candidature of respondent was hit by provisions of Arts.62 & 63 of the Constitution read with S.14 (5A) of Representation of the People Act, 1976---Election Tribunal directed to delete name of respondent from list of validly nominated candidates of the constituency and his nomination papers were rejected---Appeal was allowed accordingly.

Rao Tariq Mehmood v. Election Tribunal, Punjab and another PLD 2003 Lah. 169; Dr. Shaukat Ilahi v. Ch. Mubashar Hussain and another 2008 CLC 341; Sardar Talib Hussain Nakai v. Returning Officer and another 1993 MLD 2485; Haji Ghulam Sabir Ansari v. Returning Officer 1993 MLD 2508; Ch. Muhammad Aslam Kaira v. Returning Officer, PP-96, Gujra-6 1994 MLD 424; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA.158, Naushero Feroze and others 1994 SCMR 1299 distinguished.

Daewoo Corporation v. Messrs Platinum Insurance Company Limited 1997 CLC 1272; Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 and Ch. Mubashar Husssain v. Returning Officer, Kharian, District Gujrat and 3 others PLD 2008 Lah. 134 rel.

Ashar Elahi and Syed Iftikhar Hussain Shah for Appellant.

Dr. Babar Awan, Khalil Ahmad, Waseem Majid Malik and Shahid Ikram Siddiqui for Respondent No.1.

Date of hearing: 13th April, 2013.

2013 C L C 1323

[Lahore]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

AYAZ AMIR----Appellant

Versus

RETURNING OFFICER FOR NA-60, CHAKWAL and 2 others----Respondents

Election Appeal No.2 of 2013, decided on 10th April, 2013.

(a) Interpretation of document---

----Text has to be looked in totality---Words or phrases employed therein if looked at in isolation or out of context are always capable of being interpreted in a manner which does not convey actual meaning of full text.

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

----Ss. 14(5) & 99---Constitution of Pakistan, Arts.62 & 63---Nomination papers filed by candidate (a Journalist)---Disqualification---Injunctions of Islam, violation of---Proof---Column in newspaper by the candidate (appellant)---Interpretation---Returning Officer rejected nomination papers of appellant on the ground that in one of his column published in newspaper, it could be made out that he had tasted liquor and thus had violated Injunctions of Islam---Validity---Writings of appellant/candidate being in literary, metaphorical and allegorical style could not be narrowly interpreted---Even if it were not so, still one could not ignore the fact that individual words had more than one dictionary meaning and were, therefore, open to interpretation---No tangible proof was brought on record or any conviction of appellant for offences he was accused of by respondent from any court of competent jurisdiction to render appellant disqualified under Arts.62 & 63 of the Constitution---Proceedings of scrutiny of nomination papers were summary in nature and roving inquiry could not be conducted to establish if appellant had violated Injunctions of Islam or had called in question ideology of Pakistan---Returning Officer had erred while rejecting nomination papers of the appellant---Election Tribunal directed to place name of appellant in list of validly nominated candidates contesting election from the constituency and set aside order passed by Returning Officer---Appeal was allowed accordingly.

Khalil (Pvt.) Limited through Authorized Officer v. m.v. WALES II and 3 others 2012 CLD 276 ref.

(c) Administration of justice---

----Court, role of---Scope---Courts cannot assume the role of arbiter of morals.

Salman Akram Raja and Sameer Khosa for Appellant.

Khawaja Khalid Farooq and Nayyar Abbas for Respondent No.2.

2013 C L C 1374

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

Syed MUHAMMAD ABBAS SHAH----Appellant

Versus

RETURNING OFFICER and 7 others----Respondents

Election Appeal No.6 of 2013, decided on 10th April, 2013.

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

----S. 14--- Constitution of Pakistan, Art.63(1)(o)--- Rejection of nomination papers---Nomination papers filed by the petitioner were rejected on the ground that he was defaulter of water charges of the water used from canal for irrigation purpose---Contention of the petitioner was that his father owed water charges and that too had been paid by him before passing of impugned order---Validity---Counsel appearing on behalf of the objector had been unable to substantiate the allegation---Petitioner had sworn affidavit that he did not owe any dues to the Government and water rate or penalty payable were owed by the father of the petitioner---Only the default in payment of the Government dues including the water charges by the candidate himself might render candidate ineligible---Impugned order was declared illegal and was set aside.

Malik Muhammad Rafiq Rajwana for Appellant.

Malik Muhammad Latif Khokhar for Respondent No.2.

Muhammad Sohail Iqbal Bhatti, Addl. A.-G.

Javaid Iqbal Hashmi, Standing Counsel on Court call.

Nemo for respondents Nos.3 to 8.

2013 C L C 1392

[Lahore]

Before Shahid Waheed, J

MUHAMMAD HUSSAIN and 2 others----Petitioners

Versus

WALAYAT ALI and 2 others----Respondents

Civil Revision No.842 of 2003, heard on 19th June, 2013.

Punjab Pre-emption Act (I of 1913)---

----S. 28 ---Pre-emption suit---Maintainability---Rival pre-emptors---Suit for pre-emption filed by a pre-emptor without impleading the rival pre-emptor in his suit in violation of S.28 of Punjab Pre-emption Act, 1913---Effect---Such suit shall not be thrown out as being collusive or not maintainable.

Zahoor Alam and others v. Fazal Hussain and others 1991 SCMR 763 rel.

Sh. Naveed Shehryar for Petitioners.

Shaigan Ijaz Chadhar for Respondents.

Date of hearing: 19th June, 2013.

2013 C L C 1406

[Lahore]

Before Rauf Ahmad Sheikh and Mamoon Rashid Sheikh, JJ

Mst. GHAZALA YASMEEN and 3 others----Appellants

Versus

SARFRAZ KHAN DURRANI----Respondent

Regular First Appeal No.511 of 2011, heard on 10th May, 2012.

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

----S. 12---Contract Act (IX of 1872), S.55---Suit for specific performance of sale agreement---Sale agreement found mention that suit property was standing in name of defendant's predecessor, which he was bound to transfer in his name by stipulated date i.e. 30-4-2007; and that in case plaintiff failed to pay balance amount on or before stipulated date, then earnest money would stand forfeited and agreement would stand cancelled---Defendant's plea was that time was essence of the contract, thus, he was not bound by agreement after failure of plaintiff to pay balance amount by stipulated date---Validity---Suit agreement was based on principle of reciprocity as both parties had to fulfil certain conditions---Evidence on record showed that transfer of property in defendant's name from his predecessor was effected on 28-3-2007, but he had not given notice thereof to plaintiff before 30-4-2007 for completing contract by paying him balance money and executing sale-deed in plaintiff's favour---Plaintiff had shown his readiness to perform his part of agreement by depositing balance amount as per order of court---Time was not essence of suit agreement---Suit was decreed in circumstances.

Malik Tanvir Ali and another v. Sardar Ali Imam and 2 others 2010 YLR 1799; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Muhammad Nawaz Khan and another v. Mst. Farrah Naz PLD 1999 Lah. 238 and Haji Barkat Ali v. Tariq Mahmood 2002 YLR 3096 ref.

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

----S. 55---Contract for sale of immovable property---Time as essence of such contract or not, determination of---Test stated.

Normally in cases other than commercial contracts, that is to say, in contracts relating to immovable property even when a date is mentioned for the performance of the contract, time is not of the essence of the contract. In determining whether time is of the essence of the contract or not, the intention of the parties in this behalf has to be gathered from the contents of the contract itself and the facts and circumstances of the case.

Seth Essa Bhoy v. Saboor Ahmad PLD 1973 SC 39; Abdul Hamid v. Abbas Bhai-Abdul Hussain Soda Water Wala PLD 1962 SC 1; rel.

(c) Pleadings---

----Plea not raised in pleadings---Effect---Evidence beyond pleadings could neither be led by a party nor could be allowed by Court---Evidence beyond pleadings if was brought on record, then same could neither be read nor considered---Party could not be allowed to improve his case through evidence, if such fresh stance had not been set up in pleadings---Illustration.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 and Irshad Begum v. Muhammad Rafique PLD 2010 Lah. 649 rel.

Ahsan Shahzad for Appellants.

Ibrar Ahmad for Respondent.

Date of hearing: 10th May, 2012.

2013 C L C 1457

[Lahore]

Before Mrs. Ayesha A. Malik, J

NAZAR ELAHI----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.20018 of 2012, decided on 6th May, 2013.

Constitution of Pakistan---

----Arts. 25, 27 & 34---Punjab Women Empowerment Package, 2012---Constitutional petition---Discrimination---Scope---Petitioner assailed relaxation of three years to female candidates in their upper age limit---Validity---Equal protection of law was guaranteed under Art.25 of the Constitution, to every citizen and also required that the State would undertake action for protection of women and children---Constitution had itself recognized and created classification which needed special protection---Any act of government which aimed to protect women and children was affirmative action and did not offend Art.25(1) of the Constitution---Age relaxation for female candidates met standard of permissible affirmative action, hence was protected under Art.25(3) of the Constitution---Age relaxation offered to female candidates did not violate Art.27(1) of the Constitution and it promoted full participation of women in national life as contemplated under Art.34 of the Constitution, which provided that steps would be taken to ensure full participation of women in all parts of National life--- No discrimination was made out against petitioner on account of the fact that petitioner was not offered three year age relaxation which female candidates were given---Petition was dismissed in circumstances.

Miss Rabia Khan and 3 others v. Province of Sindh 2012 YLR 1801 and Syeda Sadia and 2 others v. Baha-ud-Din Zakria University through Vice-Chancellor and 3 others 2011 YLR 2867 ref.

Rana Muhammad Nawaz for Petitioner.

Waqas Qadeer Dar, Asst. A.-G. for Respondent.

Date of hearing: 18th April, 2012.

2013 C L C 1481

[Lahore]

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

NADEEM SARWAR----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Election Commissioner, Punjab and 3 others----Respondents

Writ Petitions Nos.9708, 9741, 9782, 9985, 9842, 10017, 9749 and 9783 of 2013, decided on 24th April, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(o) & 199---Punjab Agricultural Income Tax Act (I of 1997), Ss.2(1)(a) & (k), 3, 9 & 10---Representation of the People Act (LXXXV of 1976), S.14---Constitutional petition---Disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers on the basis of non-payment of "agricultural income tax"---Scope---Ambiguity in interpretation of an item appearing in the nomination papers, benefit of---Scope---Nomination papers of candidate (petitioner) were rejected by Returning Officer on the basis that he had mentioned the word "NIL" in the column provided on the nomination paper for disclosing "Total Agricultural Income Tax Paid", which indicated that no "agricultural income tax" had been paid by the candidate---Appeal filed by candidate before Election Tribunal was also dismissed---Pleas of candidate were that he was exempted from payment of agricultural income tax under the Punjab Agricultural Income Tax Act, 1997; that in the absence of any assessment by the revenue authorities, he was not liable to pay agricultural income tax---Validity---Third column of Item No.14 appearing on the nomination paper required the candidate to disclose his agricultural income---Word "agricultural income" and "total agricultural income" had been separately defined by Ss.2(1)(a) & 2(1)(k) of Punjab Agricultural Income Tax Act, 1997 respectively---Section 3(3) of the Act provided that agricultural income tax was to be charged on "total agriculture income" and not on "agriculture income"---Third column of Item No.14 appearing on the nomination paper was ambiguous and did not clearly show whether the candidate was to declare his "agricultural income" or "total agricultural income"---Benefit of any ambiguity in the interpretation of the said column had to go to the candidate---For purposes of agricultural tax assessee had to work out the "total agricultural income" and then submit his return which had to be duly assessed by the Collector---Liability of assessee could be determined after assessment of the return, hence the question of default, if any, could only arise post assessment---Where assessee failed to furnish his return, penalties under Ss.9 & 10 of the Punjab Agricultural Income Tax Act, 1997 could only be imposed after a reasonable opportunity was granted to the assessee of being heard---In the present case, neither the assessment had taken place nor any penalty for lack of furnishing a return, had been imposed on the candidate---Statement made by concerned tax official in court made it clear that agricultural tax had not been operationalized in the field---No record was presented in court to establish that agricultural tax was being collected under the Punjab Agricultural Income Tax Act, 1997, therefore, it could not be held with any level of certainty that candidate had committed default in the payment of agricultural income tax---Orders of Returning Officer and Election Tribunal were set-aside in circumstances and Returning Officer was directed to include name of candidate in list of eligible candidates---Constitutional petition was allowed accordingly.

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

----S. 14---Constitution of Pakistan, Art.17(2)---Scrutiny of nomination papers---Ambiguity in interpretation of an item appearing in the nomination papers, benefit of---Scope---Benefit of any such ambiguity had to go to the candidate, whose fundamental right to contest election under Art.17(2) of the Constitution was at stake and just on the basis of the technicalities, he could not be thrown out of the election process.

Workers' Party Pakistan through Akhtar Hussain, Advocate-General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 rel.

Ghulam Farid Sanotra for Petitioner.

Muhammad Ahsan Bhoon for Petitioner (in W.P.No.9741 of 2013).

Rai Bashir Ahmad for Petitioner (in W.P.No.9782 of 2013).

Rana Munir Hussain for Petitioner (in W.P.No.9842 of 2013 and W.P.No.9985 of 2013).

Ch. Anwaar-ul-Haq Pannun for Petitioner (in W.P.No.10017 of 2013).

Malik Noor Muhammad Awan for Petitioner (in W.P.No.9749 of 2013).

Mushtaq Ahmad Mohal for Petitioner (in W.P.No.9783 of 2013).

Nasir Javed Ghumman, Standing Counsel.

Rana Muhammad Aslam, Deputy Director, ECP.

Shamial Ahmad Khawaja, Member (Taxation), Board of Revenue, Punjab.

Muhammad Azhar Siddique for Respondent.

2013 C L C 1491

[Lahore]

Before Mrs. Ayesha A. Malik, J

MUHAMMAD AKHTAR SHERANI----Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 4 others----Respondents

Writ Petition No.13074 of 2013, heard on 10th July, 2013.

(a) Punjab Textbook Board Ordinance (XLI of 1962)---

----Ss. 11, 3 & Preamble---Punjab Curriculum Authority Act (XLIX of 2012) Ss.6 & 2(a)---National Textbook and Learning Materials Policy and Plan of Action (2007 Policy), Clause 2.2---Constitution of Pakistan, Art.199--- Constitutional petition ---Selection, development and regulation of manuscripts for textbooks---Selection of manuscripts by Punjab Curriculum Authority---Role and functions of Punjab Textbook Board---Scope---Petitioner was an employee of the Punjab Textbook Board and sought direction to the effect that the Punjab Textbook Board be allowed to participate in the bidding process for the selection of textbooks to be carried out by the Punjab Curriculum Authority---Contention of the petitioner was, inter alia, that per S.6 of the Punjab Curriculum Authority Act, 2012, the Punjab Textbook Board, as an "agency"; could participate in open competition for selection of manuscripts--- Validity---- Punjab Textbook Board in terms of the Preamble to the Punjab Textbook Board Ordinance, 1962 was a facilitator that was to make arrangements for the production and publication of textbooks, reading materials etc.---Section 11 of the Punjab Textbook Board Ordinance, 1962 did not provide that the Punjab Textbook Board should participate in publication of textbooks itself---Section 6, Punjab Curriculum Authority Act, 2012 provided that the Punjab Curriculum Authority shall approve standards of education and manuscripts produced by any person or agency before such textbooks were prescribed; however the said section did not explain as to when the Punjab Textbook Board could participate for publication of textbooks for selection by the Punjab Curriculum Authority and the same was explained by the National Textbook and Learning Materials Policy ("Policy")---Clause 2.2 of said Policy clearly provided that the Punjab Textbook Board could only participate in the publication of a manuscript if no letter of interest for the same was submitted by a private publisher that too after re-advertisement---Punjab Textbook Board was, therefore, essentially a regulator and facilitator, that had to make schemes for publication of textbooks for all stages for implementation of educational policy---Section 6(1)(b) of the Punjab Curriculum Authority Act, 2012 provided that the Authority could approve standards of education and manuscript of a textbook produced by any person or agency and such ability to produce a manuscript of a textbook should be in accordance with the clear objective laid down in the National Textbook and Learning Materials Policy, 2007---Punjab Textbook Board which was a regulator, should not therefore, for commercial purposes, participate in the publication process and such act of the Regulator/Punjab Textbook Board was in direct conflict with its primary function and would reduce the efficiency and objectivity of its regulatory function--- Scheme of law did not visualize the participation of the Punjab Textbook Board in open competition for selection of manuscripts of textbooks---Ability of employees of the Punjab Textbook Board to put forward their own manuscripts for selection by the Punjab Curriculum Authority also undermined their role as regulators and if the employees of a regulator participate in a commercial venture, then the basic role of the regulator disappears---Petitioner, who was an employee of the Punjab Textbook Board had no right on its own as an employee of the Punjab Textbook Board, which was an agency of the Government of Punjab to participate in an open competition which the Punjab Textbook Board, was to regulate---National Textbook and Learning Materials Policy, 2007 was discussed and approved by Provincial Ministers to ensure the production of standard textbooks through fair competition in their respective Provinces and the role of the Punjab Textbook Board was not to undertake to produce textbooks itself, unless an expression of interest was advertised and no response was received pursuant to the first advertisement and on second advertisement, it was only after the second advertisement that the Textbook Board could produce and publish a textbook---No conflict existed between the National Textbook and Learning Materials Policy, 2007, Punjab Textbook Board Ordinance, 1962 and the Punjab Curriculum Authority Act, 2012---Constitutional petition was dismissed.

Writ Petition No.31842 of 2012 and I.C.A. No.50 of 2013 ref.

(b) Punjab Textbook Board Ordinance (XLI of 1962)---

----S. 3---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Aggrieved person---Petitioner was an employee of the Punjab Textbook Board, and General Secretary of the Punjab Textbook Board Employees Welfare Society, and sought direction for, inter alia, allowing the Punjab Textbook Board to participate in the submission and selection of manuscripts by the Punjab Curriculum Authority---Maintainability of Constitutional petition---Foremost question was whether the petitioner could seek relief for the Punjab Textbook Board which was respondent in the Constitutional petition---Issue of whether the petitioner was an "aggrieved person" or not, could not be simply answered by looking at whether the petitioner was directly or indirectly injured, and instead the question that was to be determined was whether the petitioner had a right to plead a case and seek relief for the benefit of a person who himself was capable and competent to approach the court to plead its own case---Punjab Textbook Board, in the present case, was established under the Punjab Textbook Board Ordinance, 1962 and S.3 of the said Ordinance provided that the Board shall be a body corporate with perpetual succession having a common seal and could sue and be sued in its own name---Constitutional petition by the petitioner/ employee of the Punjab Text Book Board was not maintainable.

Nisar Ahmad and 2 others v. Additional Secretary Food and Agriculture, Government of Pakistan and 3 others 1997 SCMR 299; Muhammad Ayub Khan v. Superintendent, Central Jail and others 1997 SCMR 302 and Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237 rel.

(c) Punjab Textbook Board Ordinance (XLI of 1962)---

----Ss. 3 & 11---Punjab Curriculum Authority Act (XLIX of 2012), Preamble & S.6---National Textbook and Learning Materials and Plan of Action (2007 Policy)---Punjab Textbook Board Ordinance, 1962, the Punjab Curriculum Authority Act, 2012 and the National Textbook and Learning Materials Policy, 2007; were all in consonance with each other and no conflict existed between them.

Hafiz Tariq Nasim for Petitioner.

Mrs. Samia Khalid, A.A.-G. along with Rana Muhammad Younas Aziz, Law Officer, Education Department.

Farooq Amjad Meer for Respondent No.5.

Agha Abul Hassan Arif for Respondent No.3.

Date of hearing: 10th July, 2013.

2013 C L C 1501

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

JAMSHED AHMED KHAN DASTI----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.176 of 2013, heard on 10th April, 2013.

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

----Ss. 94(2), 78(3)(d) & 82---Criminal Procedure Code (V of 1898), Ss.265-C & 265-F---Constitution of Pakistan, Art.10A---Fake educational qualification presented at time of contesting general elections---Appreciation of evidence---Procedural illegalities in conducting of trial---Violation of right to "fair trial" and "due process"---Effect---Setting aside of conviction---Accused was alleged to have presented a fake and bogus educational qualification at the time of contesting general elections held in the year 2008---Private complaint was filed against accused by the Regional Election Commissioner---Trial Court convicted accused under S.82 of Representation of the People Act, 1976 and sentenced him to 3 years' imprisonment with a fine of Rs.5000, while he was acquitted of the charges under Ss.200, 468 and 471, P.P.C.---Validity---Trial Court proceeded with the trial on a day to day basis in order to decide the trial by not later than a fixed date---Proceedings carried out during the trial seemed to be a result of panic and sense of fear and the Trial Judge decided not to follow any statutory law and ignored all settled principles of a fair and just trial---For offences triable under the Representation of the People Act, 1976, the requirement of a "trial" was mandatory in view of S.94(2) of the said Act---Neither complainant got his statement recorded in the present case nor any witness had been produced by the complainant to prove the assertion of the complaint---Only the statement of counsel for complainant was recorded, where-under said counsel produced certain documents in evidence and the Trial Judge got exhibited all such documents without looking into the fact whether such documents were admissible in evidence---Counsel for complainant appeared in the witness box and placed on record all exhibited documents despite the fact that he was not formally given the status of a witness---If the statement of counsel for complainant was not considered as a statement of a witness, then present case was a case of no evidence on behalf of the complainant---Some of the documents inducted in the record were certified copies which were certified by the complainant himself, despite the fact that he had no authority under law to certify them---Most of the documents were private documents and neither their author nor their signatory or custodian were ever permitted to be called to appear in evidence to prove existence of such documents---Right to "fair trial" and "due process" had been completely violated in the present case---Impugned judgment of Trial Court also suffered from self-contradiction, as on one hand accused was convicted of the corrupt practice of presenting a forged educational qualification, whereas for the charges under Ss.200, 468 & 471, P.P.C., i.e. using as true a documents knowing it to be false, forgery for purpose of cheating, and using as genuine a forged document, accused was not only acquitted by Trial Court, but the complainant also seemed to be satisfied with such acquittal and had not preferred any appeal against it---Impugned judgment of Trial Court suffered from illegalities and irregularities---Appeal was allowed and accused was acquitted of the charge.

(b) Evidence---

----"Judicial evidence"---Scope---Judicial evidence included all evidence given by the witnesses in the court.

Rafiq's Law Dictionary by Mohammad Abdul Basit ref.

(c) Words and phrases---

----"Evidence"---Definition---Evidence was a process, by which all the statements were made before the court, which statements the court permitted or which were required to be made before it by the witnesses.

"Law Terms and Phrases" by Sardar Muhammad Iqbal Khan Mokal ref.

(d) Words and phrases---

----"Evidence"---Meaning---Word evidence signified the relevant facts, which were brought before the court through witnesses and documents.

Judicial Dictionary by Daulat Ram Prem ref.

Sheikh Jamshed Hayat for Appellant.

Muhammad Saeed Ahmed Mumtaz, Additional Prosecutor-General for the State.

Javed Iqbal Hashmi, Standing Counsel for the Complainant.

Date of hearing: 10th April, 2013.

2013 C L C 1512

[Lahore]

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD YAQOOB SHEIKH----Petitioner

Versus

ELECTION TRIBUNAL (MULTAN BENCH) and 4 others----Respondents

Writ Petition No.9623 of 2013, decided on 2nd May, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(n) & 199---Constitutional petition---Disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers---Bank defaulter---Writing-off of loans---Writing off loans by Bank with mutual consent but without any bona fide business consideration---Outstanding loans paid after filing of nomination papers---Effect ---Nominations papers of candidate (petitioner) were rejected by Election Tribunal on the basis that he was a bank defaulter---Plea of candidate was that he was majority shareholder of a company, which had taken loans from different banks, however all loan liabilities were settled with mutual consent of both parties through validly executed agreements and arrangements---Plea of objector was that through the agreements between company and different banks substantial parts of the loans were written off, and such write-offs were hit by Art.63(1)(n) of the Constitution---Validity---Candidate had entered into agreements/ settlements with some of the banks through which remaining/ outstanding liability of company was covered through post-dated cheques---Some of the banks had written off loans of the company without any reason, justification or bona fide business considerations---Candidate had also paid some of the overdue amounts much after filing of his nomination papers, therefore Art.63(1)(n) of the Constitution was attracted to the present case---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Arts. 63(1)(n)---Representation of the People Act (LXXXV of 1976), S.12(2)---Disqualification for membership of Majlis-e-Shoora---Bank defaulter---Payment of outstanding loan---Cut-off date for payment of outstanding loan to avoid disqualification under Art.63(1)(n) of the Constitution---Scope---Write-off date for the purposes of Art.63(1)(n) of the Constitution was before the filing of the nomination papers.

(c) Constitution of Pakistan---

----Arts. 63(1)(n)---Representation of the People Act (LXXXV of 1976), S.12(2)---Disqualification for membership of Majlis-e-Shoora---Candidate being a bank defaulter---Outstanding loan---Agreement reached between bank and candidate (defaulter) after filing of nomination paper to settle the outstanding loan---Effect---Fact that such an agreement had been reached after filing of nomination papers, disqualification under Art.63(1)(n) of the Constitution would be attracted.

(d) Constitution of Pakistan---

----Arts. 63(1)(n) & 199---Representation of the People Act (LXXXV of 1976), S.12(2), Explanation (ii)---Constitutional petition---Disqualification for membership of Majlis-e-Shoora---Rejection of nomination papers---Bank defaulter---Loan obtained by a company of which candidate is the majority shareholder---Lifting veil of incorporation---Scope---Nomination papers of candidate (petitioner) were rejected by Election Tribunal on the basis that he was a bank defaulter---Pleas of candidate were that he was majority shareholder of a company, which had taken loans from different banks and that he had not obtained the loans in his own name or personal capacity, therefore, disqualification under Art.63(1)(n) of the Constitution was not attracted---Validity---For purposes of disqualification under Art.63(1)(n) of the Constitution court was free to assess whether the candidate himself or through his business or any other corporate entity had obtained the loan that stood in default thereof---"Veil of incorporation" was what separated the candidate from the business corporate entity i.e. company in which he was the majority share holder---Veil of incorporation could be lifted to determine whether the candidate was the major beneficiary of the loan obtained by the corporate entity---Loan obtained by the company in the present case was to be considered to be the loan obtained by the candidate for the purposes of Art.63(1)(n) of the Constitution---Such a conclusion also drew support from Explanation (ii) provided with S.12(2) of Representation of the People Act, 1976---Constitutional petition was dismissed accordingly.

(e) Constitution of Pakistan---

----Arts. 63(1)(n)---Disqualification for membership of Majlis-e-Shoora---Scope---Bank defaulter---Loan obtained by a company/ corporate entity of which candidate is the majority shareholder---Term "he has obtained loan" appearing in Art.63(1)(n) of the Constitution included loan obtained by a candidate or his business or by a corporate entity in which the candidate held majority shareholding establishing his control and management over the said business of corporate entity.

(f) Company---

----Doctrine of separate legal entity---Lifting of "veil of incorporation"---Scope---Court had the power to lift the veil of incorporation while construing the statute or documents or when the court was satisfied that the company was a mere facade concealing the true facts or where it was established that the company had an authorized agent as its controller or member.

Gower's Principles of Modern Company Law, 6th Edition, Sweet and Maxwell ref.

Salman Aslam Butt for Petitioner assisted by Shoaib Rashid for Petitioner.

Salman Akram Raja assisted by Ahmad Waheed Khan and Kh. Aamir Farooq for Respondent.

Nasir Javed Ghuman, Standing counsel assisted by Rana Zahid Anjum, Deputy Director, Election Commission of Pakistan.

Zahid Anjum, Head, North and Central, Faisal Bank. Syed Asim Ibrahim, V.C. Head Recovery and Awais Yasin, Co-Secretary, Trust Investment Bank.

Syed Qamar Ali Jaffari, Recovery Head, Saudi Pak Bank. Syed Ali Jaffari Abidi, Senior Joint Director, State Bank of Pakistan.

2013 C L C 1547

[Lahore]

Before Mrs. Ayesha A. Malik, J

CREATIIVE ELECTRONICS AND AUTOMATION----Petitioner

Versus

COMMISSIONER, LAHORE and others----Respondents

Writ Petition No.25955 of 2012, decided on 12th April, 2013.

Partnership Act (IX of 1932)---

----Ss. 69, 18 & 19 --Constitution of Pakistan, Art.199---Constitutional petition--- Maintainability--- Non-registered firm--- Words "other proceedings" in S.69, Partnership Act, 1932---Scope---Objection was raised to maintainability of Constitutional petition in view of bar contained in S.69 of Partnership Act, 1932---Validity---Words "other proceedings" did not include Constitutional jurisdiction as such jurisdiction created by the Constitution, could not be equated with suits or claims of set off---Bar contained in S.69 of Partnership Act, 1932, was not applicable to Constitutional petition---One partner had implied authority to act and carry on business in usual way and could bind his firm, therefore, he could file Constitutional petition on behalf of other partners without written authorization from other partners---Subsequent filing of deed of Association and ex-post facto rectifications by partners was accepted and the same cured technical defects in filing petition---Constitutional petition was maintainable in circumstances.

Muhammad Ayub and Brothers through Partner v. Province of Sindh through Secretary Irrigaiton and Power Department, Karachi and others 2009 CLD 194; Messrs Nishat Chunnian Ltd. v. Province of Punjab through Secretary, Local Government and 2 others 2012 CLD 1288; Muslim Commercial Bank Limited Karachi v. Haji Shaikh Yaqinuddin and 2 others PLD 1992 Kar. 314; Rala Singh and others v. Babu Bhagwan Singh & Sons AIR 1925 Rangoon 30; Muhammad Azam Muhammad Fazil & Co., Karachi v. Messers N.A. Industries, Karachi PLD 1977 Kar. 21; Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271; Sajawal Khan v. Wali Muhammad 2002 SCMR 134 and Messrs Al-Raham Travels and Tours Pvt. Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 ref.

Mansoor Usman Awan for Petitioner.

Waqas Qadeer Dar, A.A.-G. for Respondents.

2013 C L C 1558

[Lahore]

Before Abdus Sattar Asghar, J

SHAUKAT ALI----Petitioner

Versus

MUHAMMAD SHARIF----Respondent

Civil Revision No.2975 of 2012, decided on 10th December, 2012.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Appeal from original decree---Non-preparation of decree-sheet by Trial Court---Effect---Suit for possession and partition was decreed by Trial Court---Appeal of defendant was allowed by Appellate Court despite the fact that memorandum of appeal filed by the defendant/appellant did not accompany the decree sheet of Trial Court as the same was not prepared by the Trial Court---Contention of the plaintiff was that on ground of said deficiency, appeal was not maintainable---Validity---Evidence on record showed that Trial Court failed to draw up a formal decree sheet in accordance with its judgment and said deficiency was also noticed by the Appellate Court---Requirement of O.XLI, R.1, C.P.C. that copy of decree sheet was to be accompanied with memorandum of appeal was mandatory and it was incumbent upon the Trial Court to prepare a proper and complete decree sheet---In line with the principle that a party could not be penalized for the act or neglect of the court, the Appellate Court ought to have required the Trial Court to prepare a correct decree sheet and call upon the appellant/defendant to file its certified copy in court to ensure compliance with O.XLI, R.1, C.P.C.---Appeal before the Appellate Court was therefore, incompetent due to non-preparation of decree sheet and thus Appellate Court fell in error while allowing appeal of the defendant---High Court set aside order of Appellate Court and directed that the appeal of defendant be considered pending before Appellate Court and further directed the Trial Court to prepare a proper decree sheet---Revision was allowed, accordingly.

Saif-ul-Malook for Petitioner.

Nemo for Respondent.

2013 C L C 1566

[Lahore]

Before Umar Ata Bandial, C.J.

Mst. SHAHIDA MOHSIN----Petitioner

Versus

CHIEF SECRETARY GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.17290 of 2012 and C.M. No.1 of 2013, decided on 2nd July, 2013.

(a) Punjab Government Servants Housing Foundation Rules, 2005---

----Rr. 23 & 22---Punjab Government Servants Housing Foundation Act (X of 2004), S.3---Constitution of Pakistan, Art.199---Constitutional petition---Housing Foundation---Allotment of house/accommodation at subsidized price to members of Housing Foundation--- Default in payment, effect of--- Cancellation of allotment---Petitioner was allotted a house by the Housing Foundation, however, upon the petitioner's failure to make the due payment, the petitioner's allotment was cancelled and the same house was allotted to another member of the Housing Foundation---Contention of the petitioner was that in other similar cases, High Court had granted relief to defaulting civil servants upon payment of additional charges, therefore, the petitioner be given the same relief---Validity---Relief granted to other defaulting allottees was in cases where the property had not been re-allotted, and such cases were therefore, different---Eligibility and entitlement of the petitioner to be given a residential accommodation upon allotment at a subsidized rate, however, still survived and at best the petitioner could be faulted for not making the requisite payment on time for which she was willing to deposit additional markup---High Court directed the Housing Foundation, that upon payment by petitioner for the price of the house available for allotment, the petitioner's name be placed in the queue of senior allottees so that the petitioner may be provided a House within a period of six to eight months---Constitutional petition was disposed of accordingly.

(b) Punjab Government Servants Housing Foundation Rules, 2005---

-----R. 22(a) & proviso---Punjab Government Servants Housing Foundation Act (X of 2004), S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Government Servants Housing Foundation---Conditions for allotment---House was allotted to the petitioner, which after default in payment by the petitioner was then re-allotted to another member of the Housing Foundation, who within a period of three months, sold the same to yet another member of the Housing Foundation---Contention of the petitioner was that per R.22(a) of the Punjab Government Servants Housing Foundation, 2005; the new allottee could not have alienated the house within one year of delivery of possession---Validity---Third party rights had been created in relation to the house in question which had the protection of a valid notification issued by the Provincial Government whereby the condition of one year was not to apply in case of first sale/transfer of the allotted house---No unconscionable dealing was attributed to the second allottee, therefore High Court did not have any valid reason to interfere with the legal effect of the transfer made in favour of the respondent---High Court however observed that the notification although had been in existence for three years but had not yet been incorporated in the typed-out/printed version of the Punjab Government Servants Housing Foundation Rules, 2005 and it appeared that for the purpose of informing the ordinary members of the Housing Foundation, the Rules in original form were shown but where Foundation was so inclined, the amendment to the Rules was brought out to facilitate the persons who may be favoured/accommodated---Said proviso to Rule 22(a) of the Punjab Government Servants Housing Foundation Rules, 2005 encouraged allottees of the houses to sell their houses even before taking possession thereof at a cash premium made available from the real estate market---Respondent Housing Foundation was rendering a service at a subsidized price to retired civil servants, by guaranteeing them accommodation in their old-age, however by virtue of said proviso to R.22(a) of the Punjab Government Servants Housing Foundation Rules, 2005; speculators had entered into the affairs of the Housing Foundation whereby conduct of the Housing Foundation was affected by commercial considerations---High Court directed the Provincial Government to look into the commercial effect of the proviso to R.22(a) of the Punjab Government Servants Housing Foundation Rules, 2005 that had been added and the incentive that the same gave to retired government servants to sell their allotted houses at a profit which had been constructed using public money---High Court further observed that such an opportunity to allottees was transferring good public money into speculative ventures for cash by ambitious retired civil servants and therefore Provincial Government should accordingly review the effect of R.22(a) of the Punjab Government Servants Housing Foundation Rules, 2005----Constitutional petition was disposed of, accordingly.

Ch. Muhammad Ishfaq for Petitioner.

M. Anum Saleem for Respondents.

Shahram Sarwar Chaudhry for Applicant/Respondent No.5 (in C.M. No.1 of 2013)

2013 C L C 1570

[Lahore]

Before Rauf Ahmad Shaikh and Mamoon Rashid Sheikh, JJ

SHAUKAT ULLAH KHAN BANGASH----Appellant

Versus

ADIL TIWANA and others----Respondents

Regular First Appeal No.17 of 2006, heard on 4th April, 2013.

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

----S. 12---Contract Act (IX of 1872), S.55---Suit for specific performance of agreement to sell---Time as essence of contract or not---Scope---Time would not be essence of contract in absence of any clause therein providing penalty for its non-performance by vendee---Illustration.

Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Attaullah alias Qasim v. The State PLD 2006 Kar. 206; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; Fmt. Chand Rani (dead) by L.R. v. Fmt. Kamal Rani (dead) by L.Rs. AIR 1993 SC 1742; Messrs Imperial Builders through Managing Partner and another v. LINES (Pvt.) Ltd. through Chief Executive and 3 others PLD 2006 Kar. 593; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544 and Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 ref.

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

----S. 55---Immovable property, agreement relating to---Time as easence of contract---Determining factors stated.

Normally in cases other than commercial contracts that is to say in contracts relating to immovable property, even when a specific date is mentioned for performance of the contract, time is not reckoned to be of the essence of the contract. In determining whether time is of the essence of the contract or not, the intention of the parties in this behalf has to be gathered from the contents of the contract itself and the attending circumstances.

Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Seth Essa Boy v. Saboor Ahmad PLD 1973 SC 39 rel.

(c) Administration of justice---

----Courts can and do take notice of subsequent events.

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

----S. 22---Specific performance of contract, relief of---Discretion of Court---Scope---Court in order to grant such relief would have to exercise its discretion in accordance with settled and fixed principles of law---Party seeking equity must have to do equity himself, even if contract was unobjectionable in nature.

Syed Zulfiqar Abbas Naqvi for Appellant.

Syed Ishtiaq Haider Sherazi for Respondents.

Date of hearing: 4th April, 2013.

2013 C L C 1580

[Lahore]

Before Shoaib Saeed, J

Syed MUSTAFA HUSSAIN----Petitioner

Versus

DISTRICT COORDINATION OFFICER, MULTAN and 3 others----Respondents

Writ Petition No.4751 of 2013, decided on 24th April, 2013.

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

----Ss. 146-D & 141(1) ---Building Zoning Bye-Laws 2001, Clause 8.2.2(b)---Constitution of Pakistan, Art.199---Constitutional petition---Non-payment of commercialization fee---Powers of Inspector---Premises of the petitioner was sealed on the ground of non-payment of commercialization fee---Contention of the petitioner was that the Inspector was not empowered to seal the premises and no notice was given to him---Validity---Petitioner was owner of the property and building plan was sanctioned and approved for Bar-B-Q and authorities issued notices that petitioner should get the site commercialized after payment of commercialization fee---Petitioner instituted civil suit wherein injunctive order was issued by the Trial Court which still held the field---Stand taken by the authorities was not in accordance with law and S.146-D of the Punjab Local Government Ordinance, 2001 and clause 8.2.2(b) of the Building Zoning Bye-laws, 2001, read with S.141(1) of the Punjab Local Government Ordinance, 2001, did not empower the Inspector (Commercialization) to seal the premises due to non-payment of commercialization fee and clause 8.2.2(b) of the Building Zoning Bye-laws, 2001, bound the authorities that after completion of codal formalities, might seal building on the ground that the building was in the process of illegal construction or had been illegally constructed---Property, in the present case, was approved under the law prevalent in the year 1993, and revised plan was sanctioned in accordance with law and clause 8.2.2(b) of the Building Zoning Bye-laws, 2001, was not applicable---Statute which created new liabilities in connection with the past transaction should not be given retrospective operation and when the lis was sub judice before the Trial Court and injunctive order was still operative, the act of sealing of the premises of the petitioner by the authorities was mala fide, illegal and without lawful authority---Constitutional petition was allowed and the authorities were directed to de-seal the premises of the petitioner---Authorities, however, were at liberty to initiate proceedings for recovery of commercialization fee from the petitioner in accordance with law.

Abdul Karim v. State PLD 1959 W.P. Lah. 883; Collector of Customs, Custom House, Lahore and 3 others v. Messrs S.M. Ahmad & Company (Pvt.) Limited Islamabad 1999 SCMR 138 and Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866 rel.

Syed Muhammad Ali Gillani and Azhar Siddique for Petitioner.

Abdul Salam Alvi for Respondents along with Muhammad Awais T.O. and Muhammad Ashraf D.O.

2013 C L C 1595

[Lahore]

Before Umar Ata Bandial, C.J.

MAH JABEEN----Applicant

Versus

TAHIR MAHMOOD----Respondent

Transfer Application No.173/C of 2013, decided on 18th July, 2013.

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

----Ss. 7, 5 & 25-A---West Pakistan Family Courts Rules, 1965, R. 6---Institution of suit---Determination of place of jurisdiction---Wife/applicant filed suit for recovery of maintenance allowance at place "L", whereas husband had filed suit for restitution of conjugal rights before Family Court at place "S"---Contention of the wife was that per S.7 of the West Pakistan Family Courts Act, 1964 and Rule 6 of the West Pakistan Family Courts Rules, 1965, the forum for adjudication of both suits should situate at the place convenient for the wife---Held, that forum of convenience of wife took precedence for the purpose of determination of a family dispute covered by the West Pakistan Family Courts Act, 1964---Application was allowed, in circumstances.

Rana Zahid Saeed v. Judge, Family Court, Sahiwal and another 2008 CLC 850; Nusrat Bibi v. The District Judge, Lahore and another 1985 CLC 759; Syed Zia-ul-Hassan Gilani v. Mian Khadim Hussain and 7 others PLD 2001 Lah. 188 and Kaneez Bibi v. Sooba 1996 CLC 632 rel.

Hamid Afzal Taj for Applicant.

2013 C L C 1610

[Lahore]

Before Umar Ata Bandial, C.J.

GHULAM HAIDER KHAN----Petitioner

Versus

PCBL----Respondent

Writ Petition No.13 of 2013, decided on 29th May, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Defunct CFC/Industrial Cooperative Development Society--- Liquidation, principles of---Petitioner was an investor in a CFC/Cooperative Industrial Development Society which later became defunct and the petitioner was compensated only to the extent of his principal investment after a lapse of fourteen years and was not paid any profit or compensation for the delay in repayment of principal amount---Contention of the petitioner was that assets of the said CFC still existed, which should be realized in order to compensate the petitioner--- Validity--- Under normal circumstances in the manner such CFCs were functioning, it was likely that even principal amounts had not been retrieved for the investors---Liquidator's primary responsibility was to generate funds that met the original obligations of the investors and in the present case, such funds had been exhausted by the Cooperative Industrial Development Society, and therefore, payment of compensation to the petitioner was not possible---Petitioner approached the court nearly nine years from the date of receipt of principal amount and it appeared that the demand for compensatory profit amount was not related to any rules or regulations but was an afterthought---Such obligations, therefore, could not imposed upon the Cooperative Industrial Development Society---Constitutional petition was dismissed in circumstances.

Petitioner in person.

Rana Abdul Ghaffar Khan for Respondent.

2013 C L C 1612

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD ATIF HANIF----Petitioner

Versus

GOVERNMENT OF THE PUNAJB and another----Respondents

Writ Petition No.11924 and C.M. No.2 of 2013, decided on 20th May, 2013.

(a) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 2(1)(n)---Public Procurement Rules, 2004, Rr.3 & 4---Punjab Procurement Regulatory Authority Act (VIII of 2009), S.2(1)(n)---Punjab Procurement Rules, 2009, Rr.3 & 4---Contract Act (IX of 1872), S.23---Public procurement of goods and services, method of---Scope---Such procurement must be through public advertisements and open bidding---Parties could not contract out of statute---No provisions existed for negotiation or award of procurement contract by way of private negotiation.

Mujahid Muzaffar and others vs. Federation of Pakistan and others 2012 SCMR 1651 rel.

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

----S. 23---Parties could not contract out of statute.

Haji Khalid Rehman for Petitioner.

Muhammad Javed Munawar for Respondent No.2.

Muhammad Azeem Malik, Addl. A.-G., Punjab.

2013 C L C 1623

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

Makhdoom Syed FAISAL SALEH HAYAT----Appellant

Versus

RETURNING OFFICER, CONSTITUENCY NA-87, and 11 others----Respondents

Election Appeal No.12 of 2013, decided on 10th April, 2013.

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

----S. 14---Constitution of Pakistan, Art.63(1)(o)---Rejection of nomination papers---Nomination papers filed by the petitioner were rejected on the ground that he was defaulter with regard to payment of water charges of water used from canal for irrigation purpose and the holdings of the petitioner were more than 50 acres of land and he was liable to be taxed---Contentions of the petitioner were that there was no outstanding amount against him and his landed property did not exceed the limit of the holdings which could be held liable to be taxed---Validity---Petitioner was not defaulter with regard to water charges on the day of filing of nomination papers and on the day of scrutiny and no disqualification could be attributed to the petitioner---Findings of the Returning Officer were erroneous and result of illegality---Impugned order was not sustainable and the same was set aside.

Malik Muhammad Rafiq Rajwana for Appellant.

M. Sohail Iqbal Bhatti, Addl. A.-G.

Burhan Sabir Mirza for Respondent No.4.

2013 C L C 1647

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

Mian MUHAMMAD AZAM----Appellant

Versus

RETURNING OFFICER, CONSTITUENCY PP-82, JHANG-VI and 6 others----Respondents

Election Appeal No.7 of 2013, decided on 10th April, 2013.

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

----S. 14---Constitution of Pakistan, Arts.62 & 63---Rejection of nomination papers---Nomination papers filed by the petitioner were rejected on the ground that he had quoted inconsistent educational qualifications in the nomination papers filed in the general election held in 2008---Contention of the petitioner was that his case was one of deficiency of equivalence of the educational qualification and not that of fake degrees---Validity---Question of genuineness of the degrees held by the petitioner and relied by him in the nomination papers submitted in the year 2008 was moot point in an appeal and it was held therein that in the case of petitioner the equivalence of qualification lacked and degrees held by the petitioner were not declared to be fake or forged and that judgment held the field and had not been set aside by any adjudication as constitutional petition filed to assail said judgment could not be adjudged upon and became infructuous as the Assemblies stood dissolved---Degrees held by the petitioner, in circumstances, could not be said to have been declared fake and forged---Order passed by the Returning Officer was declared illegal and was set aside.

Malik Muhammad Rafiq Rajwana for Appellant.

Sohail Iqbal Bhatti, Addl. A.-G.

Shahbaz A. Rizvi for Respondent No.2.

2013 C L C 1673

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LIMITED, LAHORE----Petitioner

Versus

Messrs AL-AAMIR CORPORATION through Managing Partner----Respondent

Civil Revision No.2827 of 2004, decided on 7th May, 2013.

Arbitration Act (X of 1940)---

----Ss. 17 & 30(a)---Award---Misconduct---Petitioner filed application for making award rule of court---Contention of respondent was that arbitrator committed misconduct---Application was accepted concurrently---Validity---Trial Court accepted the application and rejected the objections without framing of issues and recording of evidence---Petitioner had raised objection that the arbitrator committed misconduct---Objection could not be decided summarily and required thorough probe and recording of evidence-- -Summary decision made by the Trial Court and upheld by the Appellate Court was violative of the mandatory provisions of law which suffered from material illegality and same was not sustainable in the eyes of law---Impugned judgments of both the courts below were set aside---Matter was remanded for decision afresh.

Chief Administrator Auqaf Punjab and another v. Mst. Nazir Fatima 1998 MLD 176 and Firm Sant Lal. Mahadeo Prasad v. Kedar Nath AIR 1935 All. 519 rel.

Muhammad Akram Kh. for Petitioner.

Muhammad Afzal for Respondent.

2013 C L C 1709

[Lahore]

Before Atir Mahmood, J

NAZIR AHMED KHAN BALOCH----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.2517 of 2013 (BWP), decided on 26th April, 2013.

Code of Conduct issued by Election Commission of Pakistan 2013---

----Cl. 34---Constitution of Pakistan, Arts.16 & 199---Constitutional petition---Holding of public meeting/jalsa by petitioner at place "K" within his constituency in connection with General Election---Refusal of District Administration to allow petitioner to do so on ground of law and order situation---Validity---Clause 34 of Code of Conduct issued by Election Commission of Pakistan required political parties and candidates to carry out rally and processions at places specified by District Administration in consultation with concerned candidate or his representative---Holding of public meetings at place of candidate's own choice were not prohibited by such Code---Petitioner would not be able to carry people of his constituency to a place specified by District Administration for being at a distance of 30 Kilometers from place of his choice---Petitioner on such pretext could not be deprived of his right to apprise people about manifesto of his party---Public safety being of paramount consideration, thus, nobody could be allowed to endanger safety of public or interrupt smooth running of people life---Petitioner's counsel undertook that no thoroughfare would be obstructed during holding of public meeting by petitioner---Public functionaries would be expected to act in accordance with law---High Court accepted constitutional petition while directed petitioner to manage security to maintain law and order situation at place of his public meeting.

Muhammad Aslam Khan Dhukkar for Petitioner.

Muhammad Iqbal Mehr, Asst. A.-G.

Tanveer Hussain S.P. Investigation, Rahim Yar Khan.

Zahoor Hussain Bhutta, A.C. Liaquatpur.

Date of hearing: 26th April, 2013.

2013 C L C 1724

[Lahore]

Before Mazhar Alam Khan Miankhel and Malik Manzoor Hussain, JJ

SHAH JEHAN----Appellant

Versus

FEROZ SHAH and others----Respondents

First Appeal from Order No.16 of 2013, decided on 22nd April, 2013.

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

----Preamble, Ss. 3, 4, 8, 9 & 11---Scope and object of Defamation Ordinance, 2002---Ordinance was a special law which was promulgated to cope with the defamatory statements, articles published/circulated in electronic and print media---Defamation accruing out of publication or circulation either in written or visual form were actionable.

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

----Ss. 3, 4, 8, 9 & 11---Civil Procedure Code (V of 1908), O.I, R.10 & O.VII, Rr.11 & 10---Defamation---Damages---Striking out name of---Scope---Rejection of plaint---Plaintiff filed suit for malicious prosecution and recovery of damages wherein defendants moved application for rejection of plaint and striking out their names---Application was accepted and plaint was returned for want of jurisdiction---Validity---Plaintiff had instituted suit for general damages for malicious prosecution and tortuous acts---Suit could be filed under general law of torts in ordinary court of original jurisdiction and not before Special Tribunal constituted under the Defamation Ordinance, 2002---Appeal was dismissed.

Arshad Jamal Qureshi for Appellant.

Date of hearing: 22nd April, 2013.

2013 C L C 1737

[Lahore]

Before Atir Mahmood, J

ABDUL WAHEED----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Civil Revision No.490 of 2003, decided on 16th May, 2013.

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

----Ss. 42 & 55---Limitation Act (IX of 1908), Arts.14 & 120---Suit for declaration and mandatory injunction---Auction of plot by Government---Deposit of 1/3rd of highest bid money offered by plaintiff---Subsequent unilateral increase in price of plot by defendant while directing plaintiff to deposit same by specified date, otherwise his earnest money would stand forfeited---Deposit of such enhanced amount by plaintiff to avoid forfeiture of earnest money---Plaintiff's prayer was that such unilateral enhancement of bid money was illegal and inoperative against his rights as successful bidder and claimed refund of excess amount from defendant---Defendant's plea was that plaintiff had deposited enhanced amount with his free-will and without coercion, thus, he was estopped to challenge same; and that suit was time-barred---Proof---According to terms and conditions of auction, Auction Committee could reject or accept bid, but could not enhance bid amount offered by highest bidder---Committee instead of rejecting or accepting plaintiff's bid had enhanced bid money unilaterally---Plaintiff as witness deposed that in order to save earnest money, he had deposited enhanced amount under coercion and compulsion---Plaintiff during cross-examination denied defendant's suggestion that he had been offered to withdraw earnest money, if enhanced amount of bid was not acceptable to him---Defendant's witness during cross-examination admitted that plaintiff had not been given option to withdraw earnest money---Plaintiff had not sought cancellation of order of enhancement of bid money, but had prayed for declaring same as inoperative against his rights, which would attract Art. 120 of Limitation Act, 1908---Nothing on record to show that plaintiff had accepted enhanced bid money---Plaintiff had no option except to deposit enhanced amount---Suit was decreed in circumstances.

Commissioner of Income Tax Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170 and Malhar v. Government of Sindh and others 2005 CLC 285 ref.

Punjab Province v. Nisar Ahmad PLD 1960 (W.P.) Lah. 801 rel.

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

----S. 3---Limitation, question of---Duty of court---Scope---Such question could not be left to the pleadings of parties, rather court would be bound to take notice thereof.

Shah Hussain and Mian Muhammad Mohsin Rasheed for Petitioner.

Saeed Ahmed Chaudhry, Asst. A.-G. for Respondents.

Date of hearing: 16th May, 2013.

2013 C L C 1796

[Lahore]

Before Justice Rauf Ahmad Sheikh and Justice Mamoon Rashid Sheikh, Members

MUHAMMAD NADEEM----Appellant

Versus

MUHAMMAD MUMTAZ AKHTER KAHLOON and others----Respondents

Election Appeals Nos.104 and 105 of 2013, heard on 15th April, 2013.

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

----Ss. 14 & 12---Constitution of Pakistan, Arts. 63(1)(d)(e) & 63(1)(k)---Disqualification for membership of Majlis-e-Shoora (Parliament)---Person in service of Government of Pakistan and/or a statutory body wholly owned or controlled by the Government of Pakistan---Scope---Appellants impugned the acceptance of the nomination papers filed by the respondent on the ground that the respondent was appointed as the Chairman of the National Vocational and Technical Training Commission ("NAVTTV"), which was a statutory body and wholly owned or controlled by the Government, and was therefore disqualified to be elected or chosen as a member of Majlis-e-Shoora by virtue of sub-Articles (d),(e) and (k) of Art.63 of the Constitution---Validity---Decisive test to determine whether a person was in the service of Pakistan and/or was in the service of a body wholly owned or controlled by the Government, was such a person's subordination to that body---Power of authority of appointment to the office and the power of removal and dismissal of the holder of the office and not remuneration, was also the decisive factor---Respondent, in the present case, was appointed to the post in question by the Government of Pakistan, and his resignation was also accepted by the Government of Pakistan, therefore, it could be safely held that he was in the service of Pakistan and/or a body wholly owned or controlled by the Government of Pakistan---For a person who was so adjudged, under provisions of Art.63(1)(k) of the Constitution, a period of two years had to lapse from the time that such a person's service ceased, for such a person to become eligible to contest elections---Resignation of the respondent was accepted on the date of notification, which was 12-4-2013---Candidature of the respondent was therefore hit by provisions of Arts.63(1)(d) & 63(1)(e) of the Constitution---High Court set aside impugned order and directed that the name of the respondent be deleted from the list of validly nominated candidates in the constituency---Appeal was allowed, accordingly.

Mrs. Neelam Yasmin Abbasi v. Returning Officer and 2 others 2010 MLD 527 ref.

Mubashir Kamal Abbasi v. The R.O. NA-50 District Rawalpindi and another E.A. No.24 of 2013 and Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 rel.

Ch. Zahid Imran for Appellant.

Mian Abdul Rauf and Afzal Hussain for Respondent No.1.

Date of hearing: 15th April, 2013.

2013 C L C 1804

[Lahore]

Before Ijaz Ahmad, J

Barrister SAJJAD AHMED SATTI----Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Defence and 9 others----Respondents

Writ Petition No.2247 of 2011, decided on 18th June, 2013.

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

----Ss. 16, 5(3) & 6---Constitution of Pakistan, Art.199---Constitutional petition---Public interest litigation---Civil Aviation Authority---Airport entry fee, imposition of---Increase in airport entry fee---Petitioner impugned increase in airport entry fee, levied by the Civil Aviation Authority on every individual entering the airport premises from rupees twenty to rupees forty---Contention of the Civil Aviation Authority on the other hand was that it was empowered under section 16 of the Civil Aviation Authority Ordinance, 1982 to levy said fee at rates as prescribed by it , to keep in check the unlimited entry of people into the parking and waiting area---Held, that imposition of entry fee on the visitors accompanying air passengers and collection thereof was hazardous to the security, control and good management, and was declared illegal by the High Court---High Court however observed that the Civil Aviation Authority may take measures to reduce and limit the number of visitors accompanying air passengers to the parking lot and waiting lounges---Constitutional petition was allowed, in circumstances.

Raja Saim ul Haq Satti for Petitioner.

Mrs. Sarkar Abbas, Standing Counsel for Respondent No.1.

Ubaid ur Rehman Abbasi Senior Law Officer and Mumtaz Ali for Respondents Nos.2 to 4.

Babar Ali for respondents Nos.5 and 6.

2013 C L C 1810

[Lahore]

Before Abdus Sattar Asghar, J

SAIF-UR-REHMAN----Petitioner

Versus

Mst. RUBINA KAMAL----Respondent

Civil Revision No.1685 of 2013, decided on 3rd July, 2013.

(a) Benami transaction---

----Plea of---Factors essential to be considered by Court while determining nature of a transaction to be "benami" or not stated.

For determination of Benami transaction, it is the duty of the party who raises such plea to produce legal, relevant and unimpeachable evidence. In such cases, character of transaction is to be ascertained by the court by determining the intentions of the parties at relevant time to be gathered from all surrounding circumstances i.e. relationship of the parties, motive, transaction and any other subsequent conduct. Source and payment of consideration amount, custody of the original title documents and actual possession are also relevant and material facts for determination of the nature of such transaction.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S.42---Suit for declaration---Amendment of pleadings---Scope---Plaintiff alleged himself to be real owner of suit property and his ex-wife to be benamidar---Defendant's initial plea raised in written statement was that she had purchased suit property from her own pocket by working at Bhatta---Production of ocular evidence by plaintiff framing of issues and fixation of case by court for production of his documentary evidence --- Defendant's application for amending written statement by substituting words "working at Umar Brick Bhatta Khasht" with words of "her owned sewing school under the name and style of Rabia Sewing School"---Plaintiff's plea was that proposed amendment, if allowed, would amount to set up a new defence, which was not permissible under law---Validity---Defendant's plea in written statement was that she had purchased suit property from her own pocket ---Proposed amendment regarding source of income of defendant would not change nature of her such plea---Plaintiff had yet to adduce evidence ---Proposed amendment would not prejudice plaintiff's case---Such application was accepted.

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

----O. VI, R. 17---Amendment of pleadings---Scope---Amendment, if necessary for deciding dispute between parties and not likely to cause prejudice to rival party, should be allowed liberally for true administration of justice.

Nadeem Afzal for Petitioner.

2013 C L C 1821

[Lahore]

Before Rauf Ahmad Sheikh and Mamoon Rashid Sheikh, JJ

Sayed ANWAR HASANAT----Appellant

Versus

RETURNING OFFICER PP-27, JHELUM (IV)----Respondent

Election Appeal No.34 of 2013, decided on 9th April, 2013.

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

----Ss. 12 & 14(2)---Constitution of Pakistan, Arts.63(1)(c) & 113---Rejection of nomination papers---Dual citizenship---Nomination papers of the appellant for the Provincial Assembly were rejected on the ground that at the time of filing of nomination papers, the appellant was a citizen of the USA---Contention of the appellant was that he had surrendered his US citizenship before filing his nomination papers and produced a letter written by him addressed to the US Consulate as proof thereof---Validity---Contention of the appellant could not be accepted as the appellant had only moved an application for renouncing/ surrendering his foreign citizenship and the US Authorities were still to pass an order upon the appellant's application and the appellant had failed to show any response from the US Consulate---Appellant therefore, at the time of filing of his nomination papers and at the time of the scrutiny of said documents, still held the citizenship of the another country---No illegality existed in the impugned order and the candidature of the appellant was hit by Art.113 read with Art.63(1)(c) of the Constitution---Appeal was dismissed, in circumstances.

Rao Abdur Raheem for Appellant.

2013 C L C 1837

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

WALI MUHAMMAD and 2 others----Petitioners

Versus

JAVED MUKHTIAR and 4 others----Respondents

Writ Petitions Nos.2004 to 2007 of 2013, decided on 26th April, 2013.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3---Compromise of suit---Scope---Procedure---Regular inquiry---Summary decision---Plaintiffs filed pre-emption suit wherein they submitted agreement between the parties to the suit and prayed for the decision of the same on the basis of settled terms of agreement and in alternative prayed for additional evidence---Factum of execution of settlement was denied by the defendants-respondents and plaintiffs-petitioners moved another application for comparison of signatures and thumb-marks and by means of another application, the agreement purported to have been arrived at in between the parties before a `Jirga' was prayed to be put to the defendant for its admission and in addition to such applications, another application under Art.163 of Qanun-e-Shahadat, 1984, was also moved for decision of the suit on special oath---Applications were dismissed concurrently---Validity---When application intimating the settlement in between the parties was brought before the court in any suit, then it was incumbent upon the court to satisfy itself as to the execution and existence of compromise and when question arose as to whether or not , there had been a compromise in between the parties, the same had to be decided after regular inquiry by taking evidence and rejection of such application summarily was not proper and refusal to enter into such inquiry would in fact militate against the letter and spirit of the provisions contained in O.XXIII, R.3, C.P.C. as under the said provision of law, recording of compromise was not a formality but a mandatory one, as such, order had been made appealable in terms of O.XLIII, R.1(m) C.P.C.---Courts below had not exercised their jurisdiction vested in them and had committed illegality in dismissing the applications moved by the plaintiffs-petitioners---Order of the Trial Court, as well as, the judgment of the Appellate Court were declared illegal and the same were set aside---Appellate Court before whom application for decision of the suit on the basis of settlement was moved, was directed to hold regular inquiry as to the execution and existence of the compromise in between the parties by granting ample opportunities to both the parties to produce their version and then to decide the same by means of speaking order.

Syed Abdul Baqi v. Syed Nisar Ahmad Shah and others NLR 1981 UC 642; Messrs Muhammad Ilyas and Sons Ltd. v. Abu Ahmad Khan and 2 others 1981 CLC 1257; Rana Abdul Ghafoor v. Government of Sindh and others PLD 1994 Kar. 52; Farid Gul and others v. Gul Mast 1997 MLD 2180 and Mst. Khurshid Begun v. Mir Muhammad and 8 others 1990 CLC 1614 rel.

Muhammad Akbar Sajid for Petitioners.

Muhammad Javed Iqbal Thaheem for Respondents.

2013 C L C 1856

[Lahore]

Before Ijaz ul Ahsan, Sayyed Mazhar Ali Akbar Naqvi and Syed Mansoor Ali Shah, JJ

Ch. ZAHID IQBAL----Petitioner

Versus

RETURNING OFFICER NA-162 (Sahiwal--III) and 3 others----Respondents

Writ Petition No.9726 of 2013, decided on 7th May, 2013.

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

----S. 99(1-A)(h) & 14---Criminal Procedure Code (V of 1898) Ss.426 & 430---Constitution of Pakistan, Arts.63(1)(h) & 199---Constitutional petition---Disqualifications for membership of Majlis-e-Shoora (Parliament)---"Conviction and sentence", distinction---Concurrent running of sentence---Effect on quantum of sentence for purpose of Art.63(1)(h) of Constitution---Scope---Suspension of sentence did not mean suspension of conviction---Petitioner impugned order of Returning Officer whereby his nomination papers were rejected as he was convicted and cumulatively sentenced to a period more than two years---Contention of the petitioner was inter alia that per S.430 Cr.P.C., judgment of Trial Court was not final till such time his pending appeal was decided and therefore the adverse effects of conviction could not be brought on an accused whose appeal was pending especially where the sentence was also suspended ---Petitioner further contended that he had been cumulatively sentenced to thirteen months as his sentences were to run concurrently---Validity---Petitioner had been sentenced to thirteen months on each count and the cumulative effect of the three different convictions was that he had been sentenced for an aggregate period of thirty-nine (39) months---Although the benefit of running the sentences concurrently had been granted to the petitioner, the same did not mean that he had not been sentenced for a period of thirty-nine months---Concurrent running of a sentence was for the purpose of calculating the actual period for which the convict would be held in jail if his appeal did not succeed, however, the same had no effect on the quantum of sentence awarded by the Trial Court on each count for the purpose of Art.63(1)(h) of the Constitution read with S.99(1-A)(h) of the Representation of the People Act, 1976---Contention of the petitioner that till the time appeal was finally decided, his conviction would be deemed to be held in abeyance could not be accepted as nothing in the language of S.426 or 430 Cr.P.C. supported said contention---Conviction was complete as soon as the person charged had been found guilty by a court of competent jurisdiction and nomination papers of the petitioner were liable to be rejected on the ground that only his sentence had been suspended which did not mean that his conviction had also been suspended---Suspension of sentence without a specific order for suspension of conviction did not mean or include suspension of conviction, and despite suspension of sentence, conviction would remain intact---Distinction existed between a conviction and sentence and suspension of a sentence did not mean automatic suspension of conviction---No bar however existed on the Appellate Court under S.426, Cr.P.C. to suspend sentence and also suspend the conviction in appropriate cases where an application was moved before such court if the adverse consequences of maintaining such conviction were brought to the notice of the Appellate Court and a specific prayer was made in such regard----No illegality existed in the impugned order----Constitutional petition being without merit, was dismissed, in circumstances.

Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani and another 2008 CLC 240 distinguished.

Abdul Kabir v. The State PLD 1990 SC 823; Pir Mazhar-ul-Haque v. Election Tribunal-I 2003 CLC 300; Ravi Kant S. Patel v. Sarvabhoma S. Bagali 2007) 1 Supreme Court Cases 673 and KC Sareen v CBI (2001) SCC 584 rel.

(b) Constitution of Pakistan---

----Art. 63(1)(g)---Representation of the People Act (LXXXV of 1976), S.99(1-A)(h)---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Concurrent running of sentences had no effect on the quantum of sentence for the purpose of Art.63(1)(h) of the Constitution---Concurrent running of a sentence was for the purpose of calculating the actual period for which a convicted person would be held in jail if his appeal did not succeed, however, the same had no effect on the quantum of sentence awarded by the Trial Court on each count for the purpose of Art.63(1)(h) of the Constitution read with S.99(1-A)(h) of the Representation of the People Act, 1976.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 426 & 430---Suspension of sentence pending appeal---Scope and effect---Conviction was complete as soon as the person charged had been found guilty by a court of competent jurisdiction---Suspension of sentence without a specific order for suspension of conviction did not mean or include suspension of conviction, and despite suspension of sentence, conviction would remain intact---Distinction existed between a "conviction" and "sentence" and suspension of a sentence did not mean automatic suspension of conviction---No bar, however, existed on the Appellate Court under S.426, Cr.P.C. to suspend sentence and also suspend the conviction in appropriate cases where an application was moved before such court if the adverse consequences of maintaining such conviction were brought to the notice of the Appellate Court and a specific prayer was made in such regard.

Salman Akram Raja for Petitioner.

Azam Nazeer Tarar for Respondent No.4.

Nasir Javed Ghumman, Standing Counsel.

Rana Muhammad Aslam, Deputy Director, Election Commission of Pakistan.

2013 C L C 1892

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUBARAK ALI----Petitioner

Versus

SAQIB MUNIR----Respondent

Civil Revision No.1201 of 2006, decided on 13th June, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R.11 (c)---Suit for recovery of money on the basis of promissory note---Rejection of plaint---Deficiency in court-fee---Determination of court-fee---Defendant sought rejection of plaint on the plea that plaintiff did not append required court-fee with the plaint---During pendency of application for rejection of plaint, plaintiff claimed that he had deposited required court-fee, resultantly application was dismissed and review of order was also declined---Validity---In order to attract provision of O.VII, R.11, C.P.C., due to failure of plaintiff to make good deficiency of court-fee, there must be determination of court-fee and then provision of time for making up deficiency---Though direction was issued to plaintiff for deposit of court-fee but amount was not determined and in ordinary course, such order would not entail penal consequences mentioned in O.VII, R.11, C.P.C.---Specific amount of suit was claimed by plaintiff, therefore, no mandate of court was required to know the exact amount of court-fee to be affixed by plaintiff on plaint---Deposit of Rs.5000/- instead of Rs.15000/- and that too without any justified reasons was not sufficient to show indulgence in favour of plaintiff---Conduct of plaintiff was nothing but contumacious and was based on malice-in-fact and Trial Court was not justified granting premium to plaintiff---Orders dismissing application for rejection of plaint and review of order suffered from jurisdictional defect---High Court in exercise of revisional jurisdiction set aside both the orders and plaint was rejected under O.VII, R.11, C.P.C.---Revision was allowed accordingly.

Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; Province of Punjab and others v. Registrar, Firm Nasarul Haq Associates and others 1998 MLD 2062; Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Allah Yar v. Muhammad Riaz and others PLD 1981 SC 489; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Malik Khuda Bakhsh and another v. Syed Hamid Ali Shah 1981 SCMR 196 ref.

Mian Muhammad Athar for Petitioner.

Muhammad Arshad Gondal for Respondent.

2013 CLC 32

[Peshawar]

Before Syed Sajjad Hassan Shah and Roohul Amin Khan, JJ

YASIR KHAN----Petitioner

Versus

Mst. MEHNAZ and another----Respondents

Writ Petition No.2124 of 2012, decided on 20th July, 2012.

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

----S. 5, Sched., Ss.11 & 12-A---Suit for dissolution of marriage---Closing of evidence---Summoning the proposed witnesses through court---Hearing of the case was adjourned on three or four occasions, for recording evidence of the defendant, but each and every time the hearing of the case was adjourned at the instance of the defendant on one pretext or the other---Way and manner adopted by the defendant, had clearly exposed his conduct that he wanted to delay the proceedings unnecessarily by taking adjournments on one excuse or the other---Trial Court, in circumstances was left with no alternative, but to close the right of his producing evidence---Under provisions of S.12-A of West Pakistan Family Courts Act, 1964, it was mandatory for the court to decide the suit positively within six months from the date of institution of the case---No legal or jurisdictional defect in the impugned order/judgment was found being strictly in compliance with provisions of law---Impugned order/judgment being an interim in nature, ordinarily writ could not be issued---Petition was dismissed.

Arshad Jamal Qureshi for Petitioner.

Mst. Mehnaz and another (Motion)..

Date of hearing: 20th July, 2012.

2013 CLC 97

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

DILAWAR KHAN and others----Petitioners

Versus

FAZAL HADI and others----Respondents

Civil Revision No.669/P of 2012, decided on 31st August, 2012.

Civil Procedure Code (V of 1908)---

----O. I, Rr. 3 & 9---Specific Relief Act (I of 1877), S.8---Suit for possession---Plaintiff claimed to be sole legal heir of his issueless deceased uncle---Proof---Plaintiff in support of his claim had not produced pedigree-table of deceased---Plaintiff in his deposition had admitted that deceased had left three daughters---Plaintiff in presence of daughters of deceased could not become a legal heir and claim exclusive ownership over suit property---Matter involved in suit was that of inheritance, thus, non-impleadment of daughters of deceased therein would be treated as fatal---Suit was dismissed in circumstances.

Akhtar Ali Khan for Petitioners.

Hassan Gul Khan for Respondents.

Date of hearing: 31st August, 2012.

2013 CLC 127

[Peshawar]

Before Attaullah Khan, J

JAN SON CONSTRUCTION through Saida Jan----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Respondents

Civil Revision No.1994 of 2010, decided on 7th May, 2012.

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

----O. IX, Rr. 6 & 9 & O.VII, R.2---West Pakistan Civil Courts Ordinance (II of 1962) S.18---Suit for recovery of money---Ex parte decree, setting aside of---Suit was decreed ex parte against defendants---Appellate Court allowed defendants application for setting aside ex parte decree---Contention of the plaintiff was that Appellate Court had wrongly held that the application for setting aside ex parte decree of the defendants was within time and assumption of jurisdiction by the Appellate Court was wrong as due to the quantum of the disputed amount, the forum of appeal was High Court---Validity---Supreme Court had determined the application of the defendants for setting aside the decree being within time---Value of the suit fixed in the plaint by the plaintiff was Rupees 9000 and therefore, the forum of appeal could be determined on the basis of said value and not on the value determined by the Trial Court---Order of the Appellate Court could not be interfered with---Revision was dismissed, in circumstances.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and G.M. of Pak Ordnance Factory v. Messrs Premier Sugar Mills and Distillery Company, Mardan 2001 CLC 1260 rel.

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

----S. 18---Pecuniary jurisdiction---Forum of appeal---Determination---Matter of pecuniary jurisdiction was to be determined on the basis of value of suit as mentioned in the plaint and not on the basis of value fixed with reference to the disputed amount / value determined by the Trial Court.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and G.M. of Pak Ordnance Factory v. Messrs Premier Sugar Mills and Distillery Company, Mardan 2001 CLC 1260 rel.

Noorul Hakam for Petitioner.

Lal Jan Khattak, Addl. A.-G. for Respondents.

Date of hearing: 7th May, 2012.

2013 CLC 143

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

HABIB ULLAH and others----Petitioners

Versus

MIR ZAMAN and others----Respondents

Civil Revision No.465 of 2000, decided on 4th September, 2012.

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

----S. 11---Res judicata, application of---Dismissal of earlier suit on ground of non-affixation of court-fee and non-payment of costs---Fresh suit involving question contained in the earlier suit---Maintainability---Earlier suit had been dismissed merely on technical grounds---No specific decision regarding such question had been made in earlier suit---Earlier suit could not be said to have been based on merits, thus, could not operate as res judicata in circumstances.

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

----O. XXIII, R. 1---Representative suit---Withdrawal of claim by some representatives in such suit---Effect---Such withdrawal would not affect rights of whole tribe/village and other people (who had not withdrawn their claim).

Ch. Rehmat Ali v. Haji Jan Muhammad and others 1983 SCMR 1109; Asif Jah Siddiqi v. Government of Sindh and others PLD 1983 SC 46; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609 and Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 distinguished.

Alhaj Qamar Zaman and Fakhr-e-Alam for Petitioners.

Sher M. Khan and Abdul Haleem for Respondents.

2013CLC228

[Peshawar]

Before Rooh-ul-Amin Khan, J

Mst. SIKANDAR JAHAN and 4 others----Petitioners

Versus

Mst. GHULAM ZAINAB and 10 others----Respondents

Civil Revision No.170 of 2008, decided on 3rd September, 2012.

(a) Appeal---

---Continuation of trial---Scope---Right of appeal, provided by statute is in continuation of original proceedings of Trial Court---Appellate Court is vested with power to rehear and decide entire dispute between the parties.

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

---O. XLI, R.31---Judgment of Appellate Court---Necessary ingredients---Object of provisions' of O.XLI, Rule 31, C. P. C. is to provide pavement to Appellate Court for writing good, characteristic and self-explanatory judgment---Judgment of Lower Appellate Court must contain reasons: that justify conclusion arrived at by Lower Appellate Court---Legislature has entrusted very important duty to Appellate Court to decide finally ail questions of facts and law involved because judgment of Trial Court disappears and merges in judgment of Appellate Court and there remains in existence only one judgment, i.e. of Appellate Court--Judgment of Appellate Court should contain points for determination of dispute and must have reasons for decision---1]' Appellate Court fails to comply mandatory provisions of O.XLI, Rule 31, C.P.C., it fails In performance of his duties and judgment is not in accordance with law.

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

XLI, R.31---Specific Relief Act (1' of 1877), S.42---Suit for declaration---Judgment of Lower Appellate Court---Point-in-issue, non-deciding of---Plaintiffs claimed to be owners in possession of suit-land and assailed mutation attested in favour of defendant---Suit was decreed by Trial Court in favour of plaintiffs but Lower Appellate Court dismissed the same---Plea raised by plaintiffs was that judgment passed by Lower Appellate Court was not 'in accordance with the provisions of O.XLI, Rule, 31, C.P.C.---Validity---Lower Appellate Court while reversing findings of Trial Court was under legal obligation to decide dispute in the manner prescribed by Order XLI, Rule 31 C.P.C.---Main controversy was about age of one of the vendors at the time of sale and the same had been left unattended, while entire energy was wasted' on payment or non-payment of sale consideration, which was not point-in-issue, or dispute at all between the parties---High Court in exercise of revisional jurisdiction, set aside judgment and decree passed by Lower Appellate Court and remanded the matter for deciding appeal afresh---Revision was allowed accordingly.

Muhammad Waheed Anjum for Petitioners.

S. Mastan Ali Zaidi and Zain-ul-Aabidin for Respondents Nos. 1 to 5.

Malik Zia-ud-Din for Respondent No.6.

Date of hearing: 3rd September, 2012.

2013 C L C 361

[Peshawar]

Before Khalid Mehmood, J

Syed NOOR-UD-DIN SHAH----Petitioner

Versus

BASHIR HUSSAIN and 2 others----Respondents

Civil Revision No.262 of 2005, decided on 23rd October, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Arts.132 & 133---Civil Procedure Code (V of 1908), O.III, Rr.1 & 2---Pre-emption suit---Talb-e-Muwathibat, performance of---Informer of jumping demand and witness of notice of Talb-e-Ishhad appointed as attorney by pre-emptor for conducting suit on his behalf---Examination of such attorney as sole witness to prove performance of Talb-e-Muwathibat by pre-emtpor---Validity---Performance of such Talb being personal knowledge of pre-emptor could be proved only by his own statement after facing test of cross-examination by opposite party---Nothing was on record to justify non-appearance of pre-emptor in court due to his sickness or being out of country or serving in far-flung areas---Pre-emptor had performed Talb-e-Muwathibat only in presence of such informer---Statement of such informer, unless corroborated by pre-emptor, could not be considered for proof of performance of Talb-e-Muwathibat---Non-appearance of pre-emptor as witness without any cogent reason had not only created doubts regarding credibility of performance of such Talbs, but resulted into drawing against him adverse inference thereof and statement of his attorney could not be blindly relied upon---Pre-emptor had failed to prove such Talbs---Suit was dismissed in circumstances.

Fazal Rehman v. Khurshid Ali and another 2012 SCMR 1106; Mst. Hussan Bano v. Vali-ur-Rehman 2007 SCMR 1344; Mst. Lalan Bibi v. Muhammad Khan 2007 SCMR 1193; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 325; Hamayun Naseer v. Muhammad Saeed Akhtar 2007 CLC 809; Muhammad Ali Khan and others v. Abdul Hafeez 2012 MLD 242 and Sarfaraz Khan v. Abdul Qayyum 2008 YLR 101 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Arts.132 & 133---Civil Procedure Code (V of 1908), O.III, Rr.1 & 2---Pre-emption suit---Talb-e-Muwathibat, performance of---Informer of jumping demand and witness to notice of Talb-e-Ishhad appointed as attorney by pre-emptor for conducting suit on his behalf---Examination of such attorney as sole witness regarding performance of Talb-e-Muwathibat by pre-emptor---Validity---Performance of such Talb being personal knowledge of pre-emptor could be proved only by his own statement after facing test of cross-examination by opposite party---Mere statement of informer being attorney could not be accepted for proof of such Talbs in absence of other corroboratory evidence especially when pre-emptor for his non-appearance as witness had not shown any cogent reason---Principles.

Though under the law as envisaged under Order III, Rules 1 and 2, C.P.C., an attorney can appear and give statement on behalf of the principal/plaintiff, but in the pre-emption suit, the performance of Talb-e-Muwathibat is totally personal knowledge, which can only be proved by giving his own statement and to face the test of cross-examination from the other side. Articles 132 and 133 of the Qanun-e-Shahadat, 1984 expressly oblige the concerned party, who has personal knowledge to appear before the trial Court in order to disclose the real facts and also face the test of cross-examination from other side.

Moreover, for corroboration, it is requirement of law that available witness(es) should be produced before the court so that after going the test of cross-examination, the credibility of witness could be ascertained and exact facts should be brought on record so that court should come to right and just conclusion.

The attorney in a pre-emption case can participate in the proceedings in order to support the cause and defend the rights so accrued to his principal by recording his statement before the court. The feelings, expressing through jumping demand, the reaction and the surrounding circumstances witnessed by the other witnesses is purely a personal knowledge, hence, truth can only be unearthed and brought on record if pre-emptor himself appears in the court and faces the test of cross-examination. The attorney also having personal knowledge of performance of Talbs can only appear on behalf of the pre-emptor, if he has been expressly empowered to deliver such a statement regarding the performance of Talb-e-Muwathibat and Talb-e-Ishhad that too if the pre-emptor is unable to appear in person due to sickness or for being out of country or serving in the far-flung areas, which can convince the court that due to prevailing circumstances the pre-emptor is unable to attend the court.

An exercise of right of pre-emption is a feeble, piratical being personal right of a pre-emptor based upon personal knowledge and act. Hence, regarding performance of Talbs, pre-emptor can appoint an attorney, who should have the personal knowledge of Talbs performed by the pre-emptor, and who can appear and record his statement on behalf of his principal. In case pre-emptor abstained from appearing in the witness box without assigning any cogent reason, and instead his attorney appeared before the trial court, in such state of the case adverse inference could have been drawn against the pre-emptor as envisaged under Article 129(g) of Qanun-e-Shahadat, 1984.

The statement of attorney without express authority by the principal to record his statement regarding the performance of Talbs and without any rhyme and reason or justification for non-appearance of pre-emptor before the trial Court, the statement of solitary witness, who is not only the informer but also witness of performance of Talb-e-Muwathibat and Talb-e-Ishhad by pre-emptor and attorney of plaintiff cannot blindly be relied upon.

Mere statement of informer being attorney cannot be accepted for the proof of talbs in absence of other corroboratory evidence especially when pre-emptor did not appear without assigning any cogent reason.

Sarfaraz Khan v. Abdul Qayyum 2008 YLR 101 and Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Civil Procedure Code (V of 1908), O.III, Rr.1 & 2---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Appointment of attorney by pre-emptor for conducting suit and proving performance of such Talbs on his behalf---Essential conditions stated.

For proof of performance of Talbs, pre-emptor can appoint his attorney in certain cases, who can appear before the court in support of cause of the pre-emptor. The criteria for appointment of attorney and for its consideration, the conditions having legal sanctity and sanction are that firstly, if the pre-emptor is abroad and residing at far-flung area can appoint attorney and the attorney so appointed should have expressly been empowered for the performance of talbs on behalf of the pre-emtpor; secondly if the attorney so appointed was present in the Majlis where Talb-e-Muwathibat was performed and who had also the knowledge of performance of notice of Talb-e-Ishhad; thirdly in support of the statement .of attorney other evidence should also be produced for corroboration of the testimony of said attorney; and fourthly the cogent reason i.e. minority, serious illness, pardanashini and inability of pre-emptor to appear before the court should be brought into the notice of the court so that plea of inability of pre-emptor could satisfy the court and thereafter evidence of attorney can be considered.

Sultan Ahmed Jamshid for Petitioner.

M. Naeem Anwar and Fida Muhammad Khan for Respondents.

Date of hearing: 23rd October, 2012.

2013 C L C 379

[Peshawar]

Before Nisar Hussain Khan, J

KHAN BADSHAH----Petitioner

Versus

Mst. NOOR NAMA----Respondent

Civil Revision No.116/B of 2011, decided on 18th October, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 6---West Pakistan Land Revenue Act (XVI of 1967), S.42---Pre-emption suit---Sale of suit land through mutation---Pre-emptor claiming to be co-owner in suit land for having inherited share therein from her husband, who died prior to attestation of suit mutation---Defendant's plea that inheritance mutation in favour of pre-emptor was attested after suit mutation, thus, she could not claim to have acquired superior right of pre-emption at time of suit sale---Validity---Legal heirs would become owners of legacy left by their propositus just after his death---Attestation of mutation would not be a condition precedent for creation of right in legacy of propositus---Purpose of attestation of mutation was to maintain record up-to-date---Pre-emptor was already co-owner in suit land at time of attestation of suit mutation in favour of defendant---Plea of defendant was repelled in circumstances.

(b) Islamic law---

----Inheritance mutation, attestation of---Purpose and scope---Purpose of attestation of mutation was to maintain record up-to-date---Attestation of such mutation would not be a condition precedent for creation of right in legacy of propositus---Legal heirs would become owners of legacy left by their propositus just after his death.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 6---West Pakistan Land Revenue Act (XVI of 1967), S.4(13)---Pre-emption suit---Defendant's plea that he was in possession of suit-land as mortgagee, therefore, he had superior right of pre-emption by virtue of S.4(13) of West Pakistan Land Revenue Act, 1967---Validity---"Landowner" under S.4(13) of West Pakistan Land Revenue Act, 1967 was entitled to enjoy possession and recover arrears of land revenue, but had no right to convey, alienate, mortgage or bequeath property, whereas owner of land had all such rights---Term 'landowner" as used in S.4(13) of West Pakistan Land Revenue Act, 1967 was not synonymous with owner of land---Had legislature intended to give any right of pre-emption to "landowner" as defined in S.4(13) of West Pakistan Land Revenue Act, 1967, then same could have been provided in explanation of S.6 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Whatever was not provided in Khyber Pakhtunkhwa Pre-emption Act, 1987 could not be introduced therein by far-fetched interpretation---Person sitting in possession as mortgagee could not be given equal right of pre-emption with a co-owner---Plea of defendant was repelled in circumstances.

(d) Interpretation of statutes---

----Whatever was not provided in an Act could not be introduced therein by far-fetched interpretation.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---General Clauses Act (X of 1897), S. 27---Pre-emption suit---Registered notice of Talb-i-Ishhad, issuance of---Denial of defendant to have received such notice---Pre-emptor examining only booking clerk of Post Office, who not being a Postman denied to have knowledge about service of such notice upon defendant---Validity---Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in such order was sine qua non for successful exercise of right of pre-emption---Suit was bound to fail in case any of the said legal requirements was lacking---Plaintiff had failed to prove performance of Talb-i-Ishhad in accordance with law---Suit was dismissed in circumstances.

Muhammad Bashir and other's case 2007 SCMR 1105 and Bashir Ahmad's case 2011 SCMR 762 rel.

(f) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 6 & 13 ---Right of pre-emption, exercise of---Essential proof stated.

For successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad, in their respective chronological order, are sine qua non. If the case of the pre-emptor is deficient of any one of these legal requirements, his/her suit is bound to fail.

Rustam Khan Kundi for Petitioner.

Sardar Naeem Khan for Respondent.

Date of hearing: 18th October, 2012.

2013 C L C 403

[Peshawar]

Before Mrs. Irshad Qaiser , J

FAZAL HAMEED and others----Petitioners

Versus

MUHAMMAD FAYAZ KHAN and others----Respondents

Civil Revision No.1405 of 2011, decided on 1st October, 2012.

Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Powers of Court---Scope---Law of limitation would be construed strictly as its object was to help the vigilant and not the indolent---Delay defeated equities---Court of equity would always refuse its aid to stale demands, where a party had slept upon its rights and acquiesced for a great length of time---Delay of each day would have to be explained---Court had discretion to condone delay only after satisfying itself that there was sufficient cause for condonation of delay---Court had no power to exercise its direction arbitrarily even if an important point was involved in a case---Court while exercising its discretion would be duty bound to keep in view principles of equity and fairplay in a judicial manner.

PLD 2011 SC 657; PLD 2011 SC 174; 2011 SCMR 1424; 2011 SCMR 1341; 1974 SCMR 104 and 1974 SCMR 223 rel.

S. Hamad Ali Shah for Petitioner.

Usman Manzoor for Respondent.

Date of hearing: 1st October, 2012.

2013 C L C 411

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD AZIZ----Petitioner

Versus

PIR GUL BADSHAH----Respondent

Civil Revision No.1303 of 2010, decided on 1st October, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 2(2), 12(2), 104, 115 & O. XLIII, R. 1---Application under section 12(2), C.P.C. dismissed by Trial Court---Appellate Court set aside order of Trial Court---Revision petition before High Court challenging order of Appellate Court---Maintainability---Order of Trial Court dismissing application under section 12(2), C.P.C. was neither a decree nor appealable under section 115, C.P.C.---Order of Appellate Court would be deemed as a revision exercised under section 115, C.P.C.---After exercise of revisional jurisdiction by District Judge under section 115, C.P.C. High Court would have no jurisdiction to entertain revision against order passed by such Revisional Court---High Court dismissed revision petition for being violative of clear command of section 115(4), C.P.C.

1987 CLC 1501; 1982 CLC 625; PLD 1990 Lah, 425; 1987 CLC 1501 and 1994 SCMR 2265 rel.

Shamsul Hadi for Petitioner.

Nemo for Respondent.

Date of hearing: 1st October, 2012.

2013 C L C 468

[Peshawar]

Before Waqar Ahmad Seth, J

YOUNAS KHAN----Petitioner

Versus

CHAIRMAN, WAPDA and others----Respondents

Civil Revisions Nos.368-P and 371 of 2012, decided on 12th November, 2012.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.10 & 24---Decretal amount deposited with judgment-debtor (WAPDA), recovery of---Suit for declaration, permanent injunction and recovery of assessment amount was decreed in favour of consumer/decree-holder (petitioner)---During execution proceedings, consumer requested for payment/refund of decretal amount from the Authority/judgment-debtors (respondents), but said plea was refused by Trial Court and Appellate Court---Validity---Admittedly decree was passed in favour of consumer, which was to be executed in its letter and spirit---Decretal amount was deposited by the consumer, in cash, with the Power Authority---Power Authority was unable to produce any law, rules or regulations for not paying the decretal amount, and adjusting the same in the monthly bills of the consumer---Power Authority was not authorized to retain the money deposited in its account, in cash, for an indefinite period---Both Courts below had not given any justified reason for not allowing the decretal amount to the consumer, in cash---Revision petition was allowed and Power Authority was directed to release the decretal amount to the consumer, within seven days, failing which they would be liable to pay mark-up, per day, on the unpaid decretal amount.

Hamid Hussain for Petitioner.

Gul Nazir Azam along with Charagh, S.D.O. for Respondent.

Date of hearing: 12th November, 2012.

2013 C L C 492

[Peshawar]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

NOSHAD ALI----Petitioner

Versus

Mst. AFZANAT RAUF and 5 others----Respondents

Writ Petition No.3025 of 2011, decided on 16th October, 2012.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower maintenance allowance---Execution of decrees---Payment of decretal amount in instalments---Application of husband before Executing Court that he be allowed to pay the decretralamount in easy instalments, was dismissed---Contention of husband (petitioner) was that he was a poor carpenter and could not afford to pay the amount as decreed by the Family Court---Plea of husband, qua easy instalments, if accepted, would take many years, which would deprive the decree-holders from the benefits of the decree passed in their favour---Judgment-debtor (husband) had no right to claim fixation of instalments as of right without consent of decree-holders Constitutional petition was dismissed in circumstances.

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

----S. 5 Sched. & S.13---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower---Execution proceedings---Wife's suit for recovery of dower (gold ornaments) was decreed and she filed execution petition---During execution proceedings (husband/judgment-debtor) filed application that the value of gold be determined for payment as was on the date of filing of the suit---Application of husband was concurrently dismissed---Validity---Applicant was duty bound to first pay the gold in kind otherwise he was to pay market value of gold as per rate prevailing at the time of decision of the decree---Application was dismissed.

Arshad Jamal Qureshi for Petitioner.

2013 C L C 516

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MUHAMMAD TAHIR ADIL and 9 others----Petitioners

Versus

BAKHTIAR ASAD----Respondent

Civil Revision No.114-P of 2012, decided on 14th December, 2012.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.115, O.XVI, Rr.14 & 21---Suit for specific performance of agreement to sell---Summoning of witnesses---Defendants were aggrieved of summoning of two witnesses by Trial Court on an application filed by plaintiff---Validity---Intention under O.XVI, R.21, C.P.C. was that it was open to a party to proceedings to cite his opposite party as witness and to examine him---Party to suit had right to call upon his opposite party to give evidence and court had the power to compel giving of evidence by opposite party---Trial Court had properly invoked provisions of O.XVI, R.21, C.P.C. as the court thought it necessary to direct defendants to give evidence and procedure regarding a witness could be applied by court regarding that party as well---High Court declined to interfere in order passed by Trial Court summoning witnesses---Revision was dismissed in circumstances.

Ibadur Rehman for Petitioners.

Abdul Zakir Tareen for Respondent.

Date of hearing: 14th December, 2012.

2013 C L C 542

[Peshawar]

Before Mrs. Irshad Qaiser, J

JAMROZ KHAN----Petitioner

Versus

AAMIR KHAN and others----Respondents

Civil Revision No.564-P of 2011, decided on 10th September, 2012.

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

----S. 4---Constitution of Pakistan, Art. 203-D---Grandchildren---Right of inheritance---Scope---Right of grandchildren to inherit the share of their predeceased father from their grandfather ---Legality---Although Federal Shariat Court had declared section 4 of Muslim Family Laws Ordinance, 1961 to be repugnant to Islamic Sharia but such verdict was under challenge before the Supreme Court and thereby the operation of said verdict stood suspended automatically till decision of the appeal as provided by Article 203-D of the Constitution---Grandchildren, therefore, could inherit the share of their predeceased father from their grandfather.

Tariq Khan Kakar for Petitioner.

Nemo for Respondents.

Date of hearing: 10th September, 2011.

2013 C L C 597

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. RIYASAT BEGUM----Petitioner

Versus

EJAZ AHMAD and another----Respondents

Civil Revision No.950-P of 2012, decided on 12th October, 2012.

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

----O. IX, Rr. 3 & 4---Limitation Act, (IX of 1908) Art. 163 & S.5---Suit for recovery was dismissed for non-prosecution---Limitation---Maxim: ignorantia excusotur juris sed facti---Applicability---Plaintiff's application for restoration of suit was dismissed concurrently as being time-barred---Validity---Plaintiff's application for restoration was brought after a lapse of about five months whereas limitation provided for restoration of suit and for setting aside order of dismissal for default was thirty days from date of dismissal under Art.163 of the Limitation Act, 1908---Plaintiff had not filed application for condonation of delay under section 5 of the Limitation Act, 1908 as she was not given legal advice, however, Maxim ignorantia excusotur juris sed facti applied (Ignorance of fact is excused, but not ignorance of law) Courts were not supposed to go into merits of a case when question of limitation was not satisfactorily met with---No illegality in findings of courts below---Revision was dismissed.

2011 YLR 1234 ref.

(b) Limitation---

----Object---Public policy---Object of law of limitation was to regulate the course and manner for providing relief or remedy, where substantive rights were pressed in litigation---Restriction of time limit was an outcome of public policy---Public policy to limit time for bringing an action or claim before the court of law was adopted in the legal systems of all civilized States---No doubt the superior courts had time and again held and encouraged decision on merits instead of technicalities, but it did not mean that in every case the law of limitation should be ignored, which would put the law redundant.

Sar Muhammad Khan Khattak for Petitioner.

2013 C L C 682

[Peshawar]

Before Rooh-ul-Amin Khan, J

AZIZ-UR-REHMAN----Appellant

Versus

MUHAMMAD SAEED and others----Respondents

Regular First Appeal No.29/B of 2012, decided 7th February, 2013.

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

----S. 18---Specific Relief Act (I of 1877), S.12---Pecuniary jurisdiction of Appellate Court---Suit for specific performance of agreement to sell immovable property---Determination of value of suit for purposes of jurisdiction and court-fee---Scope---Appeal of appellant against order dismissing their application to be impleaded as defendants, was returned on the ground that the Appellate Court did not have pecuniary jurisdiction to hear the appeal---Validity---Bare reading of plaint depicted that value for the purposes of court-fee and jurisdiction had been given as Rupees 1000 and for determining pecuniary jurisdiction of the court, only valuation clause of plaint had to be considered and forum of appeal was not to be determined on basis of valuation ascertained by Trial Court, both for the purposes of jurisdiction and payment of court-fee---Appellate Court was, in the present case, vested with the power of entertaining the appeal and had erroneously returned the same---High Court set aside impugned order of Appellate Court and remanded the case to Appellate Court.

Muhammad Ayub and 4 others v. R.Obaidullah and 6 others 1999 SCMR 394 and Mehtab Khan and others v. Faiz Muhammad PLD 2003 Pesh. 46 ref.

Haji Umar Daraz Khattak for Appellant.

Asmatullah Khan for Respondents.

Date of hearing: 7th February, 2013.

2013 C L C 724

[Peshawar]

Before Rooh-ul-Amin Khan, J

Dr. Syed MUSTAFA KAMAL SHAH----Petitioner

Versus

Syed ABID ALI SHAH and others----Respondents

Civil Revision No.48 of 2012, decided 15th October, 2012.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Limitation Act (IX of 1908), Art. 120---Suit for declaration, recovery of possession and perpetual injunction---Plaintiff claimed suit property to have been gifted to him by his deceased mother (donor) through gift deed dated 22-11-1986, thus, her inheritance mutation was wrongly attested on 29-3-1987---Proof---Deed Writer being an Advocate not having Register regarding deeds deposed as plaintiffs witness that he had scribed Gift Deed at plaintiffs directions, but in absence of donor, who was sitting away from his office in plaintiffs motorcar; and that serial number appearing on gift deed had not been written by him---Such statement of Deed Writer was materially negated by plaintiff and marginal witness of gift deed---Evidence on record showed that on very next day after executing alleged gift deed, donor was got admitted in Hospital, whereafter four days she was shifted to Intensive Care Unit and died there on same day---Death certificate of donor showed that in crucial days she was suffering from mortal sickness, thus, she could not be expected to understand signing of gift deed---Death of donor within six (6) days (i.e. on 27-11-1986) after execution of gift deed on 22-11-1986 had created a serious dint in plaintiffs case and doubt in respect of its execution rendering same to be invalid---Contents of conceding written statement filed by one defendant (plaintiffs brother) had not only been denied by him subsequently, but had not been corroborated by evidence on record---Inheritance mutation of donor had been entered and attested at instance of such brother of plaintiff, but at time of its attestation, he had not introduced factum of gift deed by his mother in favour of plaintiff---According to son of said brother of plaintiff, his father had informed plaintiff about attestation of mutation---Plaintiff had arranged and produced gift deed after 23 years and never challenged inheritance suit earlier, but filed suit on 26-1-2010 on basis of gift deed, when other legal heirs of deceased donor made application dated 31-10-2010 to Deputy Commissioner for partition of suit land---Nothing on record to show that inheritance mutation was collusive or fictitious---Presumption of truth would attach to the entries of inheritance mutation in absence of any credible evidence in its rebuttal---Suit filed by plaintiff after 23 years of attestation of inheritance mutation was time barred---Revenue record showed plaintiff to be in possession of suit land as joint sharer (hissedar) as one of legal heirs of deceased and not on basis of gift deed---Plaintiff and his another brother had earlier claimed property left by their father on basis of an oral gift, but they failed upto High Court---Such lis showed previous conduct of plaintiff to be habitual and chronic litigant---Plaintiff had failed to prove declaration of gift by donor, its acceptance and delivery of possession, in absence whereof gift could not be declared as valid---Suit was dismissed in circumstances.

Syed Mustafa Kamal Shah and others v. Syed Feroz Shah and others 1992 CLC 355 rel.

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

----Arts. 30 & 31---Admission in written statement made by co­defendant---Evidentiary value---Such admission could not be treated admission against another defendant.

Saeedullah Khan for Petitioner.

Mian Saadullah Jandoli and Bilaluddin Durrani for Respondent.

Date of hearing: 15th October, 2012.

2013 C L C 744

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

JEHANZEB and 2 others----Petitioners

Versus

AYAZ KHAN and others----Respondents

Civil Revision No.246 and C.M.As. Nos.576 and 556 of 2011, decided 25th April, 2011.

Specific Relief Act (I of 1877)---

----Ss. 9 & 42---Registration Act (XVI of 1908), S.17---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for possession and declaration---Interim injunction, grant of---Unregistered document---Scope---Plaintiffs claimed to be owners of suit property on the basis of two unregistered agreement deeds---Validity---Plaintiffs failed to establish existence of prima facie case in their favour---Unregistered document which under the provisions of Registration Act, 1908, was required to be registered, could not confer title on a party to immovable property---Question of maintainability of declaratory suit was also yet to be determined---Case of plaintiffs was without essential ingredients for grant of temporary injunction and High Court declined to take any exception to the well-reasoned orders of two Courts below---Revision was dismissed in circumstances.

H. Muhammad Zahir Shah for Petitioners.

Nasir Mahmood for Respondents.

Date of hearing: 25th April, 2011.

2013 C L C 893

[Peshawar]

Before Rooh-ul-Amin Khan and Mrs. Irshad Qaiser, JJ

SAJJAD-UL-HAQ----Petitioner

Versus

DIRECTOR-GENERAL, PESHAWAR DEVELOPMENT AUTHORITY and 6 others----Respondents

Writ Petition No.3115 of 2010, decided on 18th December, 2012.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Laches--- Educational institution---Allotment of amenity land/plot for construction of a University---Delay in impugning allotment of land---Effect---Past and closed transaction relating to allotment of land---Scope---Petitioner, who was an inhabitant of the town where land in question was situated, impugned its allotment to the University/allottee on the grounds that it would narrow a watercourse which would endanger the life and properties of the local inhabitants; that it would also cause great inconvenience to the inhabitants; that allotment was made without any auction, and that land was allotted to the University for very meager consideration---Validity---Development Authority of the area bedded the watercourse with fragments of broken rocks to eliminate any danger of flooding---By constructing retaining walls and embankment in the town, Development Authority made land in question useful, which was otherwise a dry watercourse---University had submitted an application before the competent authority for allotment of amenity land/plot for construction of University, which application was processed in accordance with the rules and law---Proper summary was prepared and placed before the competent authority for approval---After allotment University administration deposited the sale consideration and thereafter constructed a building---Allotment regulations of the town did not provide that amenity plot for a school or university had to be allotted on auction basis---Despite being aware of the allotment of land and construction of University building on it, petitioner filed present petition after an unexplained delay of about one year and eight months, thus under principles of laches alone, present petition merited dismissal----Allotment of land in favour of University had become a past and closed transaction, therefore no action could be taken against allottee at a belated stage---Petitioner failed to bring on record any instance to show that Development Authority had given any undue benefit to the University in terms of the sale consideration---Constitutional petition was dismissed in circumstances.

(b) Allotment---

---Allotment of amenity land for school, hospital etc.---Procedure---Amenity plots for school, hospitals etc. were never allotted through auction.

Bilal Ahmed Durrani for Petitioner.

Tariq Javed for Respondents Nos.1 to 4.

Waqar Ali, A.A.-G. for Respondents Nos.5 and 6.

Syed Mudassir Amin(???) for Respondent No.7.

Date of hearing: 18th December, 2012.

2013 C L C 948

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

FAQIR MUHAMMAD and another----Petitioners

Versus

MEHTAB GUL----Respondent

Civil Revisions Nos.109 and 262 of 2007, decided on 10th December, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Maintainability---Conditions---Right of pre-emption could not be exercised until and unless the pre-emptor had performed the required talbs mentioned in section 13 of the Khyber Pakhtnkhwa Pre-emption Act, 1987---Any discrepancy or delay in performing the said talbs would non-suit the pre-emptor from institution of pre-emption suit by way of Talb-e-Khusumat because non-performance of the talbs extinguished the right of pre-emption---Statement of witnesses of plaintiff indicated material contradictions as to knowledge of sale and sending of notice to defendants---Trial Court had rightly rejected their evidence---Record established that the plaintiff failed to establish the performance of talbs through conclusive evidence---Appellate Court had not properly appreciated and scrutinized evidence on record and its findings were not tenable---High Court set aside impugned order of Appellate Court and dismissed the suit of the plaintiff---Revision was allowed, in circumstances.

Wahid Bakhsh and others v. Abdul Qayum and others 1997 MLD 2945 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Finding of question of fact by Appellate Court based on appraisal of evidence and inference drawn therefrom could not be interfered with by the High Court under its revisional jurisdiction under section 115, C.P.C. merely because the High Court had formed a different opinion about the evidence based on different inferences drawn by it---Findings of Appellate Court could only be set aside under section 115, C.P.C. if the same were suffering from misreading or non-reading of material pieces of evidence on the record.

Ghulam Mohy-ud-Din Malik for Petitioner.

Mazullah Barkandi for Respondents.

Date of hearing: 10th December, 2012.

2013 C L C 1028

[Peshawar]

Before Yahya Afridi, J

Messrs WATAN CONSTRUCTION COMPANY GOVERNMENT CONTRACTOR----Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Public Health Engineering Department and 4 others----Respondents

Regular First Appeal No.24-A of 2012, decided on 4th June, 2012.

Arbitration Act (X of 1940)---

----S. 34---Agreement for execution of work---Arbitration clause---When dispute between the parties had arisen and there was mandatory clause in the agreement for execution of work to refer the dispute to the arbitration in the manner and mode provided in the said clause, then parties were under obligation to have resorted to the proceedings to be carried out by the arbitrator for resolution of their controversies as per terms and conditions of the clause of the agreement.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553; Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Government of the N.-W.F.P and others v. Khalid Khan and others 2006 MLD 1897; Sqd. Ldr. (R.) Khurram Zaman v. Mrs. Afia Zafar 2008 CLD 662; Muratab Ali v. Liaqat Ali 2004 SCMR 1124 and Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808 ref.

Muhammad Saeed Khan Shangla for Appellant.

Muhammad Nawaz Khan Swati, A.A.-G. for Respondents.

Date of hearing: 4th June, 2012.

2013 C L C 1048

[Peshawar]

Before Khalid Mehmood, J

M. AKRAM----Petitioner

Versus

RAZIA SULTANA----Respondent

Civil Revision No.25 of 2006, decided on 5th November, 2012.

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

----S. 42---Specific Relief Act (I of 1877) Ss.42, 54 & 9---Qanun-e-Shahadat (10 of 1984), Art.113 ---Long-standing revenue entries---Suit for declaration, permanent injunction and possession was decreed by Trial Court but said decree was set aside by Appellate Court---Contention of the plaintiffs inter alia was that the defendants had fraudulently got the mutation for the suit-land attested in their favour in violation of section 42 of the West Pakistan Land Revenue Act, 1967---Validity---Mutation in question had been attested on 30-3-1967 which was prior to the promulgation of the West Pakistan Land Revenue Act, 1967 and the plaintiffs could not advance any explanation with regard to the legal impact of laches---Patwari had appeared as a witness and also verified that the plaintiffs had received sale consideration and mutation was fairly attested in favour of the defendants---Disinterested witnesses had also supported the defendants' version and statements of said witnesses had not been shattered by the plaintiffs---Plaintiffs had not challenged the other mutation which was the outcome of the disputed mutation---Long-standing entries in Revenue Record coupled with possession and on the basis of limitation, earn the presumption of truth, which had been rightly relied on by the Appellate Court---Plaintiff had admitted during cross-examination that the defendants were owners of the suit property, therefore, in the light of such admission the onus to prove the mutation in favour of the defendants became irrelevant in terms of Article 113 of the Qanun-e-Shahadat, 1984---Order of Appellate Court could not be interfered with---Revision was dismissed, in circumstances.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Messrs Islamabad Farming Cooperative Society and others v. Ghulam Abbas Khan and others 2011 SCMR 153; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222; Hyder Ali Bhimji v. VIth Additional District Judge Karachi 2012 SCMR 254 and Mst. Gul Farosh Jan v. Mehr Angez and 13 others 2012 MLD 1085 rel.

(b) Fraud---

----Plea of laches---Scope---Fraud could not be protected by the plea of laches, as fraud, if proved, can even vitiate the very sacred deeds/acts .

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

----O. VI, R. 7---Pleadings---Law does not permit any one to go beyond his/their pleadings , without amendment in the pleadings in respect to Order VI, Rule 7, C.P.C.

Hyder Ali Bhimji v. VIth Additional District Judge Karachi 2012 SCMR 254 rel.

Shaikh Fareed-ud-Din for Petitioner.

Qazi M. Shaheryar for Respondents.

Date of hearing: 5th November, 2012.

2013 C L C 1060

[Peshawar]

Before Waqar Ahmad Seth, J

NAZIR MUHAMMAD and another----Appellants

Versus

COLLECTOR LAND ACQUISITION, HARIPUR and 2 others----Respondents

Regular First Appeal No.312 of 2010, decided on 6th March, 2013.

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

----S. 23---Civil Procedure Code (V of 1908), O.XXVI, R.9---Compensation, determination of---Criteria---Objection petitions for change of classification and enhancement of compensation was dismissed---Determination of fair compensation and market price of acquired land---In absence of evidence on record the determination of fair compensation was impossible---Referee Court neither referred to any document i.e. mutation, one year average or any assessment carried out by the Patwari Halqa nor any Local Commissioner had been appointed for ascertaining the market value of acquired land---Impugned judgment and decree of referee court was set aside and objection petition was remanded to the referee court for fresh decision.

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

----S. 23---Civil Procedure Code (V of 1908), O.XXVI, R.9---Compensation, determination of---Local Commission, appointment of---Matters to be considered in determining compensation---Non appointment of local commissioner for ascertaining the kind and market value of acquired land----Effect---Nothing was available on record as to how the nature of acquired land and its market value was ascertained---Referee Court left with no option except to have appointed a Local Commission for ascertaining the kind and market value of the acquired land---No impediment existed in appointing Local Commissioner when evidence so produced was insufficient to sort out the market value of the acquired land---Referee Court had not followed the law on the subject and decided the objection petition in hasty manner---Judgment and decree of Referee Court was set aside---Objection petitions were remanded to Referee Court for decision afresh after appointment of local commission to sort out the location, kind and nature of acquired land and its fair compensation.

Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16 rel.

Qazi Rasheed Ahmed Arshid for Petitioner.

Syed Amjid Ali Shah for Respondents.

Date of hearing: 6th March, 2013.

2013 C L C 1108

[Peshawar]

Before Roohul Amin Khan and Malik Manzoor Hussain, JJ

Major (Rtd.) BASEER AHMAD KHATTAK----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Mineral Development Department, Peshawar and 2 others----Respondents

Writ Petition No.2044-P of 2012, decided on 26th March, 2013.

Mining Concession Rules, 2005---

----R. 185---Constitution of Pakistan, Art.199---Constitutional petition---Alternate remedy---Prospecting license, application for---Rejection of such application by Mines Committee on basis of report of Inspection Team while reserving for open auction area applied for having "proved mineral" of Iron Ore---Rejection of petitioner's appeal by Appellate Authority---Validity---According to Rule 185 of Mines Concession Rules, 2005, such license could not be granted without an open auction in respect of an area having "proved mineral"---Inspection Team had declared such area as mineralization of bed of good quality of Iron Ore---Neither any fundamental right of petitioner had been violated nor could he claim any indefeasible right with regard to grant of such license in respect of an area declared as "proved mineral"---Petitioner had an alternate right to participate in public auction---High Court dismissed constitutional petition in circumstances.

Abid Ali Khan for Petitioner.

Obaid Razaq, A.A.-G. for Respondents.

Date of hearing: 26th March, 2013.

2013 C L C 1119

[Peshawar]

Before Dost Muhammad Khan, C.J.

Mst. RUKHSANA SHAHEEN and 2 others----Petitioners

Versus

RAZA ULLAH KHAN and 10 others----Respondents

Civil Miscellaneous Transfer Application No.5-P of 2013, decided on 11th March, 2013.

Civil Procedure Code (V of 1908)---

----S. 24---Application for transfer of case---Applicant, a widow applied for transfer of pending proceedings---Cases were pending at place "L"---Applicant was permanently settled at place "P" with her minor children---Law on the subject of providing shelter, refuge and protection to a female was generous that cases should be tried normally at the place where the female was permanently residing---Application was allowed and cases were directed to be transferred to place "P".

Noor Alam Khan for Petitioner.

2013 C L C 1134

[Peshawar]

Before Rooh-ul-Amin Khan, J

JANNAT KHAN----Appellant

Versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY, ISLAMABAD and 3 others----Respondents

Regular First Appeal No.36-D of 2012, decided on 30th November, 2012.

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

----Ss. 12(2) & 18(2)(b)---Potential value of land acquired---Determination---Petitioner/landowner claimed that the acquired land was commercial in nature---Revenue Record placed on file, during the trial, clearly reflected that the property in question was "Barani in nature"---Acquired land was situated far away from the District Headquarter in a backward area---No probability existed that the land in question would be converted into the commercial property in near future---Court, in circumstances, had properly appreciated the material evidence while deciding the nature of the land and its potential value.

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

----Ss. 12(2) & 18(2)(b)---Reference to the Collector---Limitation---Reference filed after nine months of award before Collector was turned down on the ground of limitation---Section 18 of Land Acquisition Act, 1894 provided three different types of limitations for filing a reference to the Collector; firstly, person making a reference was present before the Collector at the time of announcement of award within six weeks from the date of award; secondly, if the landowner was served notice under S.12(2) of the Land Acquisition Act, 1894 within six weeks after receipt of notice and thirdly, if the landowner was not present or not represented before the Collector at the time of announcement of the award---If the landowner was not served with a notice, limitation for filing reference before the Collector would be six months from the date of passing of the award. [p. 1137] B

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

----Ss. 12(2) & 18(2)(b)---Powers and jurisdiction of Referee Court---Scope---Landowner filed reference before the Land Acquisition Collector after nine months of the award---Land Acquisition Collector sent the time-barred reference to District Judge without raising any objection regarding limitation---Validity---Designated court while exercising jurisdiction under Land Acquisition Act, 1894 could not go beyond the reference made to it---Referee Court could determine the question only which specifically was referred to it by the Collector---In the present case, the Collector had not referred the question of limitation to the Referee Court---Referee Court was not vested with the jurisdiction to decide the question of limitation.

Azad Jammu and Kashmir Government through Chief Secretary Muzaffarabad and others v. Muhammad Ishaq and others PLD 2004 Azad J&K 22; Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and others PLD 1998 Supreme Court (AJ&K) 26; Muhammad Yousuf v. Collector Land Acquisition District Skardu and 6 others 2007 CLC 1288; PLD 1965 Kar. 413 and PLD 1972 Pesh. 197 rel.

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

----Ss. 12(2) & 18(2)(b)---Referee Court---Jurisdiction---Scope---Once an objection petition was referred by the Collector to the Referee Court, court could not dismiss the same on the ground of limitation as the same was beyond the scope of Referee Court---Referee Judge had fallen into error by holding that the reference petition of the appellant landowner was barred by time---Impugned judgment and decree on the point of limitation merited reversal and was set aside.

Asghar Khan Baloch for Appellant.

Nasrullah Khan for Respondents.

Date of hearing: 30th November, 2012.

2013 C L C 1144

[Peshawar]

Before Mian Fasih-ul-Mulk and Mazhar Alam Khan Miankhel, JJ

Mst. TARAJA BEGUM----Petitioner

Versus

ZAINULLAH and 5 others----Respondents

Writ Petition No.1876 of 2010, decided on 6th March, 2013.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Cognizance of offence by Trial Court---Scope---Matter was sent to the police as the complaint disclosed the commission of a criminal act---Trial Court was required to have taken cognizance of the matter when the inquiry report and the statements of witnesses recorded by the SHO of the concerned Police Station were in favour of the complainant---Complaint could not be dismissed at the threshold, as the Court, after conclusion of the trial, had to record either acquittal or conviction of the accused---Constitutional petition was accepted and matter was remanded for proceeding in accordance with law.

Saadatullah Khan for Petitioner.

Aftab Rahim for Respondents.

Alamgir Khan Durrani, D.A.-G. for the State.

Date of hearing: 6th March, 2013.

2013 C L C 1152

[Peshawar]

Before Qaiser Rashid Khan, J

AMANULLAH----Petitioner

Versus

HAQ NAWAZ and 3 others----Respondents

Civil Revision No.60-D of 2009, decided on 10th October, 2012.

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

----O. XVII, R.3---Adjornments---Plaintiff was actively pursuing the case to conclude evidence---Plaintiffs' witnesses were very much present before the Trial Court for recording evidence but counsel of plaintiff was absent because of lawyers' strike---Trial Court did not record statement, instead dismissed the suit---Validity---Entire lawyers' community of the country went on one strike after another, during those days invariably all the courts of the country wore a deserted look and the same continued till the lifting of the emergency and restoration of Judges of the superior courts to their respective offices in a respectable manner---Plaintiff could not be penalized in circumstances.

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

----O. XVII, R.3---Adjornments---Both the plaintiff and his witnesses were very much in attendance but their evidence was not recorded due to absence of their counsel on account of strike, by lawyers---Knowing fully well that lawyers' community was observing strike, Trial Court could have and should have recorded the statement of witnesses even in the absence of the counsel for the plaintiff---No effort was made by the Trial Judge to record statement---Appellate Court also dismissed the appeal of the plaintiff in a cursory manner without attending to the record of the case---Revision petition was allowed and case was remanded to Trial Court for decision on merits.

Malik Muhammad Bilal for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 10th October, 2012.

2013 C L C 1161

[Peshawar]

Before Qaiser Rashid Khan, J

MOSAM KHAN----Petitioner

Versus

GUL MUHAMMAD and another----Respondents

Civil Revision No.157 of 2006, decided on 16th December, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Performance of talb-e-muwathibat and talb-e-ishhad within the mandate of S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 were sine qua non for the success of a suit for pre-emption---No preferential right of pre-emption of plaintiffs existed---Plaintiffs had failed to mention source of information and details of talb-e-muwathibat and prove the date, time in the plaint---Validity---Plaintiffs, in circumstances, were unable to prove their case through cogent and tangible evidence---Findings of the two courts below were based on misreading and non-reading of evidence---Revision was dismissed.

(b) Khyber Pakhtunkhwa Pre-emption (X of 1987)---

----S. 13---Performance of Talbs---Non-mentioning of time and place in the plaint coupled with non-disclosure of source of information while making Talb-e-Muwathibat and failure to mention date of notice of Talb-e-Ishhad in the plaint was fatal for pre-emption suit---Where both the lower courts failed to take stock of such glaring illegalities while decreeing the suit, their findings could not sustain under the law---Revision was allowed, in circumstances.

Mian Pir Muhammad and others. v. Faqir Muhammad through L.Rs. PLD 2007 SC 302 and Ghafoor Khan v. Israr Ahmad 2011 SCMR 1545 rel.

Muhammad Waheed Anjum and Khuda Bakhsh Khan Baloch for Petitioner.

S. Mastan Ali Zaidi and Zainul Abidin for Respondents.

Date of hearing: 16th December, 2011.

2013 C L C 1171

[Peshawar]

Before Nisar Hussain Khan, J

FIDA MUHAMMAD and another----Petitioners

Versus

UMAR KHITAB----Respondent

Civil Revision No.831-P of 2011, decided on 1st March, 2013.

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

----O. VII, R.3 & S.33---Object of O.VII, R.3, C.P.C.---Suit for declaration---Description of suit property---Plaintiff, though in his plaint had mentioned Khata number and Khasra number of suit property along with measurement, but it was nowhere disclosed that in which revenue estate the suit property situated---Effect---Basic requirement of Order VII, R.3, C.P.C. was that when subject-matter of the suit was an immovable property, the plaint would contain description of the property, sufficient to identify the same---Purpose of R.3 of Order VII, C.P.C. was that, if a decree was drawn, it should contain specific descriptions of the property, so that there could not be a confusion or hardship at the time of its execution---Court would not pass a vague decree, term of which, could not be ascertained with reasonable exactitude, which later on, could not be executed---Decree should be of such a nature that the Executing Court should execute the same, without going beyond it or making its own interpretation.

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

----S. 115---Revisional jurisdiction of High Court---Scope---When questions involved in the case required evidence, same need not be dilated upon by High Court, lest it could prejudice the case of either side---Relevant facts, were to be considered at the time of final adjudication of the case.

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

----Art. 59---Expert opinion as an evidence---Scope---Report of expert was a circumstantial evidence, which in absence of direct evidence, was a weak type of evidence, unless same was corroborated by other strong piece of evidence---If the expert was not examined in the court to substantiate his report; or offered himself for cross-examination, his report would lose its efficacy---Expert opinion, therefore, was a weak type of evidence, which could not be relied upon for determination of the rights of the parties, in absence of any other corroborative piece of evidence.

Allah Dino and 2 others' case 1974 SCMR 311 and Syed Muhammad Umar Shah's case 2004 SCMR 1859 rel.

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

----Arts. 30 & 34---Admission---Binding force of admission and admissibility---Admission of a party in ignorance of a legal right, was not binding on the maker---Admission being wrong on point of fact, was also not admissible---In terms of Art.34 of Qanun-e-Shahadat, 1984, an admission, even though, if considered to be a legal one, was a relevant fact, which clearly connoted that the admission was not a conclusive proof against party, making it---Article 34 of Qanun-e-Shahadat, 1984, further provided that admission, so made, could be proved and in such a situation, the other side could prove the same to be wrong on the point of fact.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Qabil Shah and others v. Shaday PLD 1992 Pesh. 144 rel.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Revisional jurisdiction---Scope---Both the parties had offered that thumb-impression on relevant papers be referred to Laboratory and case be decided on the basis of the report of the Laboratory---Trial Court, in circumstances, was required to proceed with the case by inviting the parties to lead evidence on issues framed, particularly, when defendants had raised specific plea of improvement in the suit property---Both courts, below, in circumstances, had erred in law by decreeing the suit of the plaintiff, without recording evidence, merely on the basis of Forensic Science Laboratory's report on thumb-impression was not a safe way for dispensation of justice---Judgments and decrees of both the courts below, being the result of patent violation of the law, as well as non-adherence to the law applicable to the points involved in the matter, were illegal, which were not sustainable---High Court normally, though did not interfere in the concurrent findings of facts recorded by two courts below, but when there was gross illegality and patent violation of law causing grave miscarriage of justice; High Court was under legal obligation to rectify the error by interference in such illegal findings---Impugned judgments and decrees of the two courts below were set aside, and case was remanded to the Trial Court for decision afresh, after recording pro and contra evidence.

Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Zulfiqar Ali Chamkani for Petitioners.

Sadiq Hussain for Respondents.

Date of hearing: 1st March, 2013.

2013 C L C 1203

[Peshawar]

Before Khalid Mehmood, J

Mst. RABIA RASHEED----Petitioner

Versus

FAISAL MIR and 4 others----Respondents

Writ Petitions Nos.172 of 2010 and 57 of 2011, decided on 11th December, 2012.

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

----S. 14(2)(a)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(iii)(d)---Dissolution of marriage---No appeal against decree for dissolution of marriage---Object---Exception---Object to deprive from filing of appeal against the decree regarding dissolution of marriage is to shorten the agony and to resolve the controversy expeditiously---Theme behind the proceedings of reconciliation proceedings before and after evidence and taking out of the right of appeal in case of dissolution of marriage by the Family Court is only to settle the matter regarding the marriage of the spouses as early as possible---No right of appeal is provided if marriage was dissolved by the Family Court; however, if marriage was dissolved under S.2(iii)(d) of the Dissolution of Muslim Marriages Act, 1939, then right of appeal had been awarded before the District Judge.

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

----S. 14---Appeal---Scope---Except in case of decree of dissolution of marriage, appeal would be entertained by the District or Additional District Judge.

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

----S. 14---Appeal---Powers of District/Additional District Judge---Proceedings before the District Judge in case of appeal were the continuation of the proceedings, which culminated in the shape of decree granted by the Family Court---District Judge/Additional District Judge had all the powers which the Family Court possessed.

(d) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---Dissolution of marriage---Grounds---Cruelty and torture---Cruelty and torture cannot be considered only when one was physically tortured---When during the period of matrimonial relation husband neglected his wife; showed reluctance to pay the maintenance allowance; defaulted in payment of dower and left his wife at the mercy of his relatives i.e. parents etc. and lived separately for a long time from the wife, especially after contracting second marriage without the consent of first wife, such were the grounds of cruelty which the wife mentally, psychologically and spiritually suffered and attracted the grounds for dissolution of marriage.

(e) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---Dissolution of marriage---Grounds---Relationship between the spouses was very delicate and when the sacred relation which required sympathy etc., for the advancement of matrimonial life were ignored, overlooked or smashed, the matrimonial relation could not be maintained happily through external tie, legal or customary impact.

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

----S. 6---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Polygamy---Dissolution of marriage---Cruelty---Grounds---When husband had not only neglected the wife rather had contracted the second marriage without the consent of the wife as well as without fulfilling the formalities provided under S.6 of the Muslim Family Laws Ordinance, 1961, such was also a ground of "cruelty".

(g) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---Dissolution of marriage on the basis of khula---Wife has to return consideration to the husband on seeking dissolution of marriage on the basis of khula and Holy Quran does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in peculiar and exceptional circumstances, the court has the authority to determine that the Haq Mehr/consideration as a whole was not to be repaid by the wife but a part of it---Court would also determine as to what extent the husband would be relieved from the payment of dower, to the wife, if not already paid.

Dr. Fakhar-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 ref.

Sajjad Ahmed Abbasi for Petitioner.

Tanveer Ahmed Mughal for Respondents.

Date of hearing: 11th December, 2012.

2013 C L C 1291

[Peshawar]

Before Yahya Afridi, J

RIAZ AHMED and 3 others----Petitioners

Versus

CENTRAL GOVERNMENT through Secretary, Prime Minister Secretariat, Islamabad and 4 others----Respondents

Writ Petition No.271 of 2009, decided on 30th November, 2011.

(a) Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----S. 36 & Sched-I, Entry-K, Para-D---Constitution of Pakistan Arts.9, 26 & 199---Constitutional petition---Funds allocated by Prime Minister for establishment of Women and Children Park in District Haripur---Order of District Co-ordination Officer altering utilization of such funds---Validity---Petitioners being elected representatives of Local Councils and residents of concerned District were aggrieved with misutilization of such funds allocated and approved for a specific purpose---High Court had jurisdiction to take up such petition as "pro bono publico"---Powers to establish recreational and amusement parks vested with Zila Council under law---Bifurcation of such funds in absence of a valid resolution of Zila Council would be illegal and without lawful authority---DCO through his representative undertook in writing that such funds would be utilized for such Park and not for any other commercial activities---High Court disposed of constitutional petition with directions to utilize such funds solely for establishment of such Park, wherein no commercial activities would be allowed.

Molvi Iqbal Haider v. Capital Development Authority (CDA) PLD 2006 SC 394 and Islamabad F-9 Park's case PLD 2010 SC 759 rel.

(b) Constitution of Pakistan---

----Art. 199---Public interest litigation---Locus standi to invoke constitutional jurisdiction of High Court---Scope stated.

The scope of "locus standi" of invoking the constitutional jurisdiction has been extended to even conscious citizens, who are alive to the illegalities and excesses done by executive authority of the Government.

High Court can take cognizance of the matters agitated "pro bono publico", and the test for invoking the constitutional jurisdiction in such matters is that firstly, the matter is in public interest, and secondly the petitioner aims for a "public good" and for the welfare of the "general public".

Javed Ibrar Paracha v. Federation of Pakistan PLD 2004 SC 482 and Muhammad Sher v. Abdul Karim PLD 2006 SC 271 rel.

Ghulam Basit for Petitioners.

M. Bashir Ahmed Khan, Malik Manz Hussain and Muhammad Nawaz Khan Swati, A.A.-G. for Respondents.

Date of hearing: 30th November, 2011.

2013 C L C 1328

[Peshawar]

Before Muhammad Alam Khan, J

TEHSIL MUNICIPAL ADMINISTRATOR----Appellant

Versus

YAQOOB SHAH and others----Respondents

Regular First Appeal No.89 of 2006, decided on 20th March, 2008.

Land Acquisition Act (I of 1894)---

----S. 23---Compensation, determination of---Factors requiring consideration---Owners of the acquired land should be paid compensation and not the price---While assessing the compensation, one year average was not the sole criterion---Location, potential value and fitness for Abadi of the acquired tract of land should be taken into consideration---Price of a willing purchaser and willing seller was to be paid to the landowner---Judgment and decree of the referee court being in accordance with law and in consonance with the evidence available on the record, appeal was dismissed.

Murad Khan through his widow and 13 others v. Land Acquisition Collector Peshawar and another 1999 SCMR 1647; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Government of N.-W.F.P. and others v. Mst. Jamshed Bibi and another PLD 1997 Pesh. 19 and Ghulam Ahmad v. Government and others 2003 CLC 1383 rel.

Faiz-ur-Rehman, Prosecutor, T.M.A. for Appellant.

Gul Sadbar with M. Israr Attorney for Respondents.

Date of hearing: 11th February, 2008.

2013 C L C 1371

[Peshawar]

Before Mian Fasih-ul-Mulk and Khalid Mehmood, JJ

Messrs GUL CONSTRUCTION COMPANY PRIVATE (LIMITED), KOHAT through Managing Director/Chief Executive----Appellant

Versus

NAIK MUHAMMAD and others----Respondents

Regular First Appeal No.102 of 2002, decided on 20th February, 2013.

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

----O. XIV, R.1---Framing of issues---Imperative for the court to thrash out controversy---When legal and factual objections are raised and claim is denied by the other party, then it is imperative to thrash out the controversy in the light of pleadings of the parties by framing issues, covering all disputes.

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

----O. XIV---Framing of issues---Procedure to be followed---After submission of written statement, the issues have to be framed and on the basis of such issues, the parties were to be asked to submit their respective list of witnesses and thereafter to produce their evidence when in the written statement, the claim has been denied.

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

----O. VII, R.2---Money suit---Affixation of court-fee, a primary requirement---When court-fee was not affixed on the plaint and objection was raised by the other party regarding incompetency of suit due to non-affixation of court-fee, judgment, in circumstances was a nullity in the eye of law.

Ghulam Mohiyuddin for Appellant.

S. Sikandar Hayat Shah and Nasir Muhamood for Respondents.

Date of hearing: 20th February, 2013.

2013 C L C 1417

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

Mst. YASMEEN and another----Petitioners

Versus

SAHIB ZARIN and 6 others----Respondents

Writ Petition No.510 of 2012, decided on 3rd April, 2013.

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

----O. XXIII, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Withdrawal of suit, without permission to file fresh suit---Effect---Plaintiff can withdraw the suit during the proceedings of the case at any stage without the permission of court, but if the plaintiff withdraws the suit without getting the permission of the court to institute fresh suit, then he cannot institute fresh suit for on the same subject-matter or such part of the claim.

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

----O. VII, R.11(d) & O. XXIII, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Filing of second suit on the same cause of action--- Relinquishment of claim in earlier suit---Earlier suit was withdrawn without any permission to file the fresh one on the same cause of action---Trial Court rejected the plaint of the plaintiffs---Validity---Plaintiffs had withdrawn the previous suit unconditionally, voluntarily and without getting the permission of the court to file a fresh suit---Said fresh suit was barred by law under O.V11, R.11(d), C.P.C.---Constitutional petition was dismissed.

Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta PLD 2001 SC 325 rel.

Muhammad Rahim Shah for Petitioners.

Respondent: Nemo due to motion case.

Date of hearing: 3rd April, 2013.

2013 C L C 1471

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Makhdoomzada ABDUL KARIM----Appellant

Versus

AJAB KHAN----Respondent

Regular First Appeal No.177-D (77-D) of 2012 with C.M. 13 of 2013, decided on 8th February, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Summary suit for recovery of money---Conditional leave to defend---Defendant-appellant was granted conditional leave to defend the suit by furnishing bank guarantee equivalent to the decretal amount of Rs.10,00,000 with two sureties but he failed to comply with---Trial Court was left with no alternative but to decree the suit and that too, to the extent of principal amount---Order was perfectly in accordance with law and based on correct legal footings and well-founded---Appeal was dismissed by High Court.

Saif-ur-Rehman Khan for Appellant.

Jamal Abdul Nasir for Respondent.

Date of hearing: 8th February, 2013.

2013 C L C 1488

[Peshawar]

Before Qaiser Rashid Khan, J

Syed MUNAWAR HUSSAIN SHAH and another----Petitioners

Versus

SAHIB KHAN----Respondent

Civil Revision Petition No.210 of 2011, decided on 19th April, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-e-Muwathibat, performance of---Scope---Plaintiff had failed to mention the exact time of performance of Talb-e-Muwathibat as he only mentioned "Dopehr"---Plaintiff had failed to perform the talb in accordance with law---Talb-e-Muwathibat without mentioning a specific time would be over-stretching such talb and would amount to striking at the very roots of the concept of jumping demand whose essence and beauty is its promptness and immediateness---Talb-e-Muwathibat if performed on the basis of vela or time period, duration would result into a free for all situations for prospective pre-emptors and the oft-repeated phrase of pre-emption being a feeble right would be rendered topsy-turvy with the vendee left at the receiving end---Presumption would be that Talb-e-Muwathibat without specifying time was not performed by the plaintiff---Suit for possession through pre-emption of plaintiff was dismissed.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-e-Ishhad---Proof---Plaintiff claimed that he performed Talb-e-Ishhad in the presence of witnesses by sending a notice under registered acknowledgment-due cover to the defendant/appellant---Plaintiff failed to mention the names of the witnesses in the plaint in whose presence he allegedly performed Talb-e-Ishhad---Date of notice of Talb-e-Ishhad had also not been mentioned in the plaint---Talb-e-Ishhad was not performed in accordance with law---Appellate court seriously erred in decreeing the suit of the plaintiff---Judgment and decree was not sustainable under the law.

Zafar Iqbal Awan for Petitioner.

Muhammad Abdullah Baloch for Respondent.

Date of hearing: 19th April, 2013.

2013 C L C 1510

[Peshawar]

Before Malik Manzoor Hussain, J

NOOR-UL-BASAR----Petitioner

Versus

Mian ADNAN BACHA and another----Respondents

Review Petition No.65 in Civil Revision No.111 of 2007, decided on 15th April, 2013.

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

----Ss. 96 & 115---Appeal/revision---Pecuniary jurisdiction---Determination---Evaluation mentioned in the heading of the plaint was to be seen while filing appeal as well as revision---Conduct of parties were also to be taken into consideration.

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

----Ss. 96 & 115---Appeal/revision---When a suit was tried by court on merits and judgment delivered, same should not be liable to be reversed on technical grounds unless that had caused failure of justice.

Muhammad Hussain's case 2004 SCMR 1947 ref.

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

----S. 114---Review---Scope---Decree passed in revision---Petitioner for review had failed to point out any discovery of new fact or important matter or evidence after the exercise of due diligence, which could not be produced by him when the decree was passed in revision---Review was dismissed.

Abdur Raziq Khan for Petitioners.

Muhammad Fahim Wali and Zahid Yousaf A.A.-G. for Respondents.

Date of hearing: 15th April, 2013.

2013 C L C 1529

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

MUHAMMAD JAMEEL----Petitioner

Versus

Mst. TAHIRA BIBI and 4 others----Respondents

Writ Petition No.712 of 2011, decided on 5th March, 2013.

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

----S. 5, Sched. & S.13---Constitution of Pakistan, Art.199---Constitutional petition---Execution of decree---Issuance of non-bailable warrants of arrest against special attorney of judgment-debtor---Petitioner as special attorney of ex-husband used to appear before the Trial Court---Petitioner had never undertaken to pay the decretal amount to ex-wife of judgment-debtor in the event of decree in her favour---Validity---Suit was decreed against 'N' the ex-husband---Mere pursuance of a case by an attorney did not warrant such a harsh and punitive action as was resorted to by the Executing Court---Execution petition was instituted against judgment-debtor with no mention of the petitioner in the same---Order of Executing Court against the attorney (petitioner) was without lawful authority and jurisdiction---Constitutional petition was allowed.

Haji Muhammad Shakeel for Petitioner.

Ahmed Ali Khan for Respondents.

Date of hearing: 5th March, 2013.

2013 C L C 1538

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

Hafiz GHULAM MURTAZA----Petitioner

Versus

Mst. SAIMA NAZ and another----Respondents

Writ Petition No.894 and Civil Miscellaneous No.694 of 2011, decided on 29th November, 2012.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower amount---Execution of Iqrarnama between the spouses at the time of marriage with regard to payment of dower---Plaintiff-respondent (wife) produced the scribe of the deed/Iqrarnama who got exhibited the same along with the extract from relevant register and testified in that behalf---Plaintiff-respondent also produced one marginal witness of the Iqrarnama who fully supported its contents---Both the witnesses were put to the test of lengthy cross-examination, but nothing favourable to the defendant-petitioner (husband) came out from their mouth---Defendant-respondent (husband) produced his father who in his cross-examination admitted that at the time of marriage, a document was executed between the spouses---Defendant-respondent, however, had failed to pay the prompt dower of Rs.50,000 and to hand over the possession of ten marlas of the house to the plaintiff-respondent, which he had agreed to give to the plaintiff-respondent in lieu of prompt dower and for which she was legally entitled to claim and recover---No illegality, irregularity, mis-reading or non-reading of evidence was noticed---Constitutional petition was dismissed, in circumstances.

Muhammad Gazanfar Ali for Petitioner.

Jamal Abdul Nasir for Respondents.

Date of hearing: 29th November, 2012.

2013 C L C 1625

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

SAJID HUSSAIN TANOLI----Petitioner

Versus

NADIA KHATTAK and 3 others----Respondents

Writ Petition No.277 of 2010, decided on 28th May, 2013.

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

---Ss. 7 & 8---Talaq-e-Tafweez---Scope---Kinds---Power to give divorce vested with the husband who might delegate the same to the wife or to a third person---Person to whom such power was delegated might then pronounce the divorce accordingly---Such divorce was known as "Talaq-e-Tafweez"---Delegation of power called "Tafweez" by the husband to his wife, conferred on her the power to divorce herself---Tafweez was of three kinds; Ikhtiar; Amr-ba-yed and Mashiat---Wife could not sue to enforce the authority to have been given to her but she could sue after she had given effect to it to make the husband liable for her dower or to restrain from seeking conjugal relations.

PLD 1995 Lah. 187; 1999 YLR 2399 and PLD 2011 Lah. 265 rel.

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

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Talaq-e-Tafweez---Scope---Suit for recovery of maintenance allowance and dower---Contention of the wife was that due to cruel and humiliating attitude of the husband she was compelled to exercise her right of delegation of divorce---Validity---Wife was entitled to exercise her right of Talaq-e-Tafweez and to be separated from her husband---Same could not be termed as Khula---Talaq once pronounced would be effective after expiry of 90 days---Nikah Nama with all its contents had been admitted by the husband---Right of divorce had been delegated to the wife by the husband---No condition or contingency existed in the Nikah Nama---Wife had exercised delegated power of divorce and had repudiated herself through notice duly served upon the husband and copy of which was sent to Union Council in view of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961 stating therein that by virtue of Talaq-Tafweez it was not possible for her to live with the husband as wife---Notice was exhibited without any objection on the part of husband---Once a person pronounced divorce, the power so delegated became irrevocable and such would operate as Talaq of the wife by the husband---Dissolution of marriage in the present case could not be considered as divorce by khula---Husband admitted that the dower was rightly fixed but failed to prove the payment of the same---Both Courts, in circumstances, had rightly decreed the amount of dower in favour of wife---Constitutional petition was dismissed.

PLD 1963 Dacca 602 and 2000 CLC 202 rel.

Miss Sumera Swati for Petitioner.

Mrs. Shabnum Nawaz for Respondents.

Date of hearing: 28th May, 2013.

2013 C L C 1650

[Peshawar]

Before Qaiser Rashid Khan, J

QAYYUM KHAN----Appellant

Versus

MUHAMMAD YAMIN----Respondent

Regular First Appeal No.148 of 2011, decided on 17th October, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Proceedings under O.XXXVII, C.P.C.---Nature---Suit for recovery of money---Application of defendant for leave to defend was dismissed, and suit was decreed---Validity---Grant of leave to defend in a suit filed under O.XXXVII, R.2, C.P.C. was not a right to be conferred upon a defendant in mechanical manner and in order to hold himself entitled to such a right, the defendant had to disclose a plausible defence which may in turn give rise to triable issues---Documentary evidence of plaintiff, in the present case, was not denied by the defendant in his application for leave to defend and pro note had been propely and duly stamped and witnessed---Nature of proceedings under O.XXXVII R.2, C.P.C. were summary in nature, if on the one hand the plaintiff was bound to present a proper instrument in the court, a corresponding duty was simultaneously cast on the defendant to present a proper application for leave to defend the suit with the aid and help of documentary evidence so as to make out a case for grant of leave to defend and not by merely raising perfunctory objections in relation to plaintiff's suit---If no defence worth the name was borne and from the facts laid down in the application for leave to defend, then such application had to be refused---Appeal was dismissed.

1999 SCMR 1845 and PLD 2002 Pesh. 1 rel.

Abdul Qayum Qureshi for Appellant.

Muhammad Ishaq Khan for Respondent.

Date of hearing: 17th October, 2011.

2013 C L C 1655

[Peshawar]

Before Malik Manzoor Hussain, J

ASAD ULLAH and others----Petitioners

Versus

MOHIB ULLAH and others----Respondents

Civil Revision No.P-631 of 2012, decided on 23rd April, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Powers of Appellate Court for recording of additional evidence---Appellate court could exercise suo motu powers for bringing on record additional evidence and even in exceptional cases such power was allowed to be exercised at revisional stage---Additional evidence should have been a direct, and important bearing on the main issue in the case and that too to prevent miscarriage of justice, however, such power could not be exercised where the disputed document was not relied upon or tendered in the trial court.

PLD 1992 SC 811; PLD 1990 SC 661; 1989 SCMR 547 and 1988 SCMR 1782 ref.

Abdul Zakir Tareen for Appellant.

Inayat-ur-Rehman for Respondent.

Date of hearing: 23rd April, 2013.

JUGMENT

MALIK MANZOOR HUSSAIN, J:---Through the instant Revision Petition, the interlocutory order dated 23-4-2012 and 17-5-2012 passed by the Additional District Judge-IX, Peshawar while hearing Appeal No.3/13 of 2011, has been impugned.

1. Brief facts of the case are that the present respondents filed suit for possession through partition and permanent injunction against the present petitioner, which was dismissed vide judgment and decree dated 24-11-2010. Being aggrieved the respondents filed appeal and while hearing appeal vide order sheet dated 23-4-2012 the following order was passed:---

"1. The parties are present. The respondent/defendant No.1 was directed to produce the original deeds by order dated 12-4-2012. Mr. Saifullah respondent No.4 who is also attorney of respondent/defendant No.1 has produced the gift deeds dated 14-8-1984, 1-4-1988, and 30-5-1988. All the aforesaid original gift deeds are impounded till further order. After examination of said original deeds, the following points are significant for further arguments:---

a. The stamp papers on which the above noted gift deeds have been written, do not bear the stamp of the concerned issuing treasury officer to denote as to the place from where they were issued to the concerned stamp vendor.

b. There is no rubber stamp on back of the stamp papers showing the name, place and license number of stamp vendor from whom the stamp papers were purchased.

c. There is no thumb-impression of Mst. Khan Khela on back of stamp paper on which the purported gift deed dated 14-8-1984 is written.

d. There appears a dissimilarity between thumb-impression of Mst. Khan Khela on the gift deed dated 14-8-1984 and the gift deed dated 1-4-1988. Whether there is need of comparison through Finger Print Expert vis-a-vis thumb-impression.

1. To come up for arguments on the above points on 5-5-2012. Moharrar is directed to keep the original deeds in safe custody."

2. The case was fixed for 5-5-2012 and on the same date both the learned counsel for the parties requested for adjournment and ultimately the case was fixed for arguments on 9-5-2012, on that date the arguments were heard on formulated questions/ points and the matter was fixed for 17-5-2012 for the orders. On 17-5-2012 the following order was passed by the learned Appellate Court:---

"2. The original deeds were impounded. Arguments on the above noted points were heard on previous date i.e. on 9-5-2012. Before settlement of the legal impact of the points "a" to "c", it is deemed necessary to examine the stamp vendor from whom the stamp papers were purchased. For fair determination of point "d", it is essential to get the finger per opinion in respect of thumb impression of Mst. Khan Khela on the gift deed dated 14-8-1984 and gift deed dated 1-4-1988 after their comparison. It was also indicated on previous date by counsel for the respondent/defendant No.1 that the said respondent is also in possession of registered power of attorney with thumb-impression of Mst. Khan Khela. If so advised, the respondent/ defendant No.1 would be at liberty to render the said power of attorney in original within three days for comparison of the thumb-impression with the thumb-impressions on gift deeds. This Court is of the opinion that the collection of aforesaid evidence is essential for pronouncement of the judgment; and this Court has got jurisdiction under Order XLI, Rule 27, C.P.C. to direct for collection/production of said evidence. The respondent/defendant No.1 is directed to produce the stamp vendor from whom the stamp papers pointed out above were purchased. In case, he wants that summons may be issued for procurement of attendance of the said witness, he will be at liberty to furnish the summons within three days. It has been requested on behalf counsel for respondent/defendant No.1 for the return of original deeds so as to ascertain the identity of concerned stamp vendor. The request has been accorded. The original deeds dated 30-5-1988, 1-4-1988 and 14-8-1988 previous impounded have been returned after obtaining the receipt with the direction for their return in court within three days. The receipt has been placed on file. The original deeds be sent for comparison of thumb impression after their production as directed before.

Come up on 30-5-2012."

1. Without complying the order dated 17-5-2012 the petitioners preferred the present Revision Petition before this Court challenging both the orders dated 17-5-2012 as well initial order dated 23-4-2012.

Arguments heard and record perused.

1. From the bare reading of Order XLI, Rule 27(1)(b) it transpires that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. Now the question arises whether this power can be exercised by the Appellate Court suo motu or for that purpose the application of a party is pre-requisite. This question was answered way back by the Court in reported judgment PLD 1992 SC 811 and PLD 1990 SC 661 wherein it has been held that in appropriate cases the Appellate Court can exercise suo motu powers under Order XLI, Rule 27, C.P.C. for bringing on record additional evidence.

2. Similarly under the circumstances when the Appellate Court assessed that without additional evidence it had become difficult to pronounce judgment relating to the alleged gift deed, which has been challenged in the heading of plaint as well as in memo of appeal beside other evidence and in order to see its legal value it would be sufficient ground to apply the provision of Order XLI, Rule 27 C.P.C. Reliance is placed on judgment reported in 1989 SCMR 547. Even in exceptional cases this power was allowed to be exercised at revisional stage, reliance is placed on a Full Court judgment of the Apex Court reported 1988 SCMR 1782.

2013 C L C 1676

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Mst. HUSSAN BIBI and others----Petitioners

Versus

AKHLAQ HUSSAIN SIDDIQUI----Respondent

Civil Revision No.305-P of 2013, decided on 9th May, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 2(3) & S.94(c)---Specific Relief Act (I of 1877), Ss.42 & 54---Temporary injunction---Disobedience---Plaintiffs filed suit for declaration and permanent injunction wherein they moved application for grant of temporary injunction restraining the defendant from raising construction on the disputed Khasra number---Suit was dismissed by the Trial court; however, the said application was allowed by the Appellate Court---Plaintiffs-petitioners submitted application against the defendant-respondent for initiating contempt of court proceedings on the ground that he had violated the status quo order of the Appellate Court but the same was dismissed---Validity---Non-compliance of order/failure to comply with order of the court could be remedied/penalized under the relevant provisions of Civil Procedure Code---Nothing was on record to show that defendant-respondent had violated the order of the Appellate Court because report of the bailiff regarding continuation of the construction on the suit Khasra number by the defendant-respondent had been turned down by the court who issued temporary injunction on the ground that in the said report no Khasra number had been mentioned over which the construction had been made---Defendant-respondent in his application stated that he was raising construction on another Khasra number which had been purchased by him through mutation and he had stopped the construction over the suit-land in compliance of the order of the court---Application for initiating contempt proceedings against the defendant-respondent had rightly been rejected---Revision was dismissed.

Nazir Muhammad Khan for Petitioners.

Nemo for Respondents being motion case.

Date of hearing: 9th May, 2013.

2013 C L C 1687

[Peshawar]

Before Qaiser Rashid Khan, J

IBAD ULLAH and others----Petitioners

Versus

Mst. ROIDA GUL BEGUM----Respondent

Civil Revision No.321 of 2009, decided on 27th May, 2013.

Khyber Pakhtunkhaw Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Talbs, performance of---Demands by the guardian or agent---Plaintiff filed pre-emption suit which was dismissed by the Trial Court but the same was decreed by the Appellate Court---Validity---Right of pre-emption was personal---Once Talb-i-Muwathibat and Talb-i-Ishhad had been performed by the plaintiff, then it was incumbent upon him/her to have appeared before the Trial Court to record her statement---Absence of plaintiff from the court raised questions regarding performance of Talbs---Presumption could be drawn that plaintiff was not willing to face cross-examination---Section 14 of the Khyber Pakhtunkhaw Pre-emption Act, 1987, catered situation where demands were made by the guardian or agent on account of inability---After performance of Talb-i-Khusumat, plaintiff appointed her special attorney to record statement---Intention to pre-empt property was in the mind of pre-emptor who made jumping demand---Nobody else but the pre-emptor himself/herself had to be present for performance of Talb-i-Muwathibat or Talb-i-Ishhad---No embargo was existed on the pre-emptor to appoint attorney to pursue suit on his/her behalf---Attorney could not be a, substitute for the pre-emptor---Non-appearance of plaintiff during evidence led to the conclusion that Talbs were not performed---Revision was accepted and suit was dismissed.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 rel.

Gul Sadbar Khan for Petitioner.

Mufti Hilal Khan for Respondent.

Date of hearing: 27th May, 2013.

2013 C L C 1767

[Peshawar]

Before Syed Afsar Shah, J

Syed ZIA-UL-HASSAN and others----Petitioners

Versus

MUZAFFAR KHAN and others----Respondents

Civil Revision No.1418 of 2011, decided on 6th May, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXIII, R.1---Suit for declaration---Withdrawal of suit---Permission to file fresh suit---Term "formal defect"---Non-impleading of necessary parties---After attestation of mutations in question, suit property had subsequently been transferred to so many other persons on the basis of mutations---Plaintiffs neither challenged those mutations nor subsequent transferees were made party to suit---Plea raised by plaintiffs was that due to such formal defect, they wanted to withdraw suit with permission to file fresh suit---Validity---Failing to implead necessary party was within the term "formal defect"---High Court granted permission to plaintiffs to withdraw their suit with permission to file fresh one---Revision was allowed accordingly.

Hasinuddin Khattak for Petitioner.

Mazullah Barkandi for Respondents.

Date of hearing: 6th May, 2013.

2013 C L C 1777

[Peshawar]

Before Mian Fasihul Mulk and Khalid Mehmood, JJ

SHER ALAM----Petitioner

Versus

Mst. FOZIA TABASSUM AFRIDI----Respondent

Writ Petition No.238-P of 2013, decided on 26th February, 2013.

(a) Administration of justice---

----Lis to be decided on merits rather the parties should be non-suited on the ground of mere technicality.

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

----S. 9(1)---Constitution of Pakistan, Art.199---Constitutional petition---Written statement---Application for submission of written statement of the petitioner/defendant was dismissed---Validity---Valuable rights of the defendant were directly involved in the present case---No hurdle would be caused if defendant was allowed to file independent written statement to raise all available pleas factual as well as legal which he deemed fit to save his rights sub judice before the trial court---Defendant was at liberty to raise as many pleas which he deemed fit in his written statement to enable the court to reach just, proper and correct conclusion---Constitutional petition was allowed.

Attiq Shah for Petitioner.

Muhammad Yasir Khattak for Respondent.

Date of hearing: 26th February, 2013.

2013 C L C 1784

[Peshawar]

Before Mian Fasih-ul-Mulk and Assadullah Khan Chamkani, JJ

Mst. NAFEESA----Petitioner

Versus

Mir BAHADUR and 2 others----Respondents

Writ Petition No.411-P of 2012, decided on 13th February, 2013.

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

----S. 25---Custody of minor---Welfare of the minor is always kept supreme overall consideration like financial status and other allied matters---Expression 'welfare' would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor---Father has preferential right under personal law to get custody of male child after period of Hizanat is over but welfare of minor is always of paramount consideration while determining question of custody---Personal law is not to be allowed blindly or in automatic fashion, but has to be decided objectively.

Mst. Mehmooda Begum v. Taj Din 1992 SCMR 809; and 1998 MLD 1697 ref.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Custody of minor---Supreme consideration, welfare of minor---Object of exercising constitutional jurisdiction is to foster justice, right a wrong and to cure a manifest illegality so that justice could be done to the parties---Findings of facts recorded by Tribunal of special jurisdiction in respect of matters exclusively within its competence, normally is not to be interfered unless, there have been serious misreading or misappreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law---Constitutional petition was accepted, in circumstances, and custody of minor was ordered to remain with his mother till the age of his majority.

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

----S. 25---Custody of minor---Welfare of minor---Intelligent preference of minor---Scope---Minor's capability of making intelligent preference as to which of the parents he chooses to live with was important---Party could not be disqualified to retain custody of the minor on the sole ground that the minor absented himself from attending the school who otherwise was studying in good school.

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

----S. 25---Custody of minor---Custody to stranger---Validity---Custody of the minor cannot be given to a stranger till attaining the age of majority.

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

----S. 25---Custody of minor---Nature of jurisdiction---Powers of Guardian Court with regard to custody of minor were in the nature of parental jurisdiction, and court must act in a way, a wise parent would do.

S.M. Attique Shidy for Petitioner.

Abdul Qayaum Samar for Respondents.

Date of hearing: 13th February, 2013.

2013 C L C 1813

[Peshawar]

Before Rooh-ul-Amin Khan and Ikramullah Khan, JJ

Mst. ROZINA BEGUM----Petitioner

Versus

Nawabzada MUHAMMAD FATEH KHAN and 6 others----Respondents

Writ Petitions Nos.3325 of 2009 and 152 of 2010, decided on 18th April, 2013.

(a) Pardahnashin lady---

----Paradahnashin lady --- Connotation.

Generally, a pardahnashin woman is one who by the custom of the country or the usage of the particular community to which she belongs, is obliged to observe complete seclusion (Pardah) covered her face with a veil, cloak or cover and avoids coming in public. A woman will be a pardahnashin, if she does not go to the court and use to stay away from communications in matters of business with men other than the members of her family.

The important aspect of Pardah is modesty for women, which includes minimizing interaction with other strangermen. For Pardah, it is not necessary that a woman may be educated or illiterate. No doubt, the veiling was initially a custom in the ancient Greeks in Romans Empires. They had also adopted Pardah as a custom, but when Christianity was established and starting spreading; Pardah was deemed mandatory for women. The Holy Qura'n justifies Pardah for women as a religious obligation as listed in Verse 53 of Surah 33.

Once a woman urged that she is pardahnashin, then no evidence is required for satisfaction of the court in support of her plea, even though denied by the other side.

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

----S. 132(1) & O, XXVI, R. 1---Pardahnashin lady---Exemption from personal appearance/attendance in court either as a party or witness---Scope---While determining entitlement of a woman to such exemption, criterion would be current custom/ and manner and not which prevailed years ago and not of whole country, but of particular community/class/section to which she belonged---Woman once having claimed to be pardahnashin and declined to attend court, then no evidence would be required for satisfaction of court in support of her plea, though denied by other side---Pardahnashin lady could not be compelled to attend court either as party or witness---Principles.

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

----S. 132(1) & O. XXVI, Rr. 1, 4 & 5---Issuance of Local

Commission for examination of pardahnashin lady as witness---Scope---Such lady could be examined on Commission, if court satisfied having regard to custom and manner of class/community to which she belonged ought not to be compelled to appear in public---Woman once having claimed to be pardahnashin and declined to attend court, then no evidence would be required for satisfaction of court in support of her plea, though denied by other side---Pardahnashin lady could not be compelled to attend court either as party or witness---Court could refuse to issue such Commission, if her application was found to be mala fide or would amount to abuse of process of court or for other valid reasons---Provisions of S.132(1), C.P.C. once attracted, then exemption from personal appearance in court could be claimed as a matter of right---Order of court directing personal appearance of pardahnashin lady would be violative of her right to exemption provided by S.132(1), C.P.C.---Principles.

Jehanzeb Muhammadzai and Muhammad Faheem Wali for Petitioner.

Qamar Zaman Tangi and Muhammad Tariq Khan Hoti for Respondents.

Date of hearing: 18th April, 2013.

2013 C L C 1823

[Peshawar]

Before Abdul Latif Khan, J

Malik SHER RODIKHEL and 5 others----Petitioners

Versus

KHALID AMEEN and another----Respondents

Civil Revision No.139 of 2008 with Civil Miscellaneous Nos.229-D, 315-D of 2012 and 39-D of 2013, decided on 7th June, 2013.

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

----S. 117---West Pakistan Land Revenue Rules, 1968, R.67-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction---Demarcation of land---Scope---Plaintiffs filed suit to the effect that defendants be restrained from making construction in the plot in question---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Patwari Halqa admitted that Ghair Mumkin Rasta was in the ownership of the defendants and was being used as path to their house---Plaintiffs were unable to explain as to how the defendants had encroached upon their property and how much property owned by him had been reduced by constructing the disputed path---Plaintiffs had failed to prove any act committed against their interest by constructing path or raising wall on the spot---Witnesses of plaintiffs had supported the stance of the defendants and claim of the plaintiffs was not established---Local Commission was appointed who submitted his report but same was objected to and was cancelled---Plea of the plaintiffs had to be proved through cogent evidence which was lacking in the present case---Neither any demarcation took place prior to the institution of suit nor plaintiffs had taken any steps to such effect---Plaintiffs had not complied with the relevant provisions and had filed the suit which was not the mandate of law---Without ascertaining the boundaries of the encroached land, no suit could be filed for eviction of unauthorized landowner---Appellate Court had not evaluated the evidence in true perspective and had not adhered to the legal provisions applicable in the present case and erred in decreeing the suit---Revision was accepted and impugned judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored.

(b) West Pakistan Land Revenue Rules, 1968---

----R. 67-A---West Pakistan Land Revenue Act (XVII of 1967), S.117---Demarcation of land---Powers of revenue officer---Procedure---Eviction of unauthorized owner---Scope---Person claiming encroachment in his property could move the Revenue Authorities for demarcation of land---Revenue Officer had power to define the boundaries as per prescribed procedure---Unauthorized landowner could be evicted after settlement of boundaries and ascertaining proper position of land.

Muhammad Waheed Anjum, Malik Muhammad Bashir and Shaukat Hayat Khakwani for Petitioners.

Zainul Aabidin for Petitioner (in C.M. No.39-D of 2013).

S. Mastan Ali Zaidi for Respondents.

Date of hearing: 7th June, 2013.

2013 C L C 1834

[Peshawar]

Before Abdul Latif Khan, J

Mst. MEHMOODA BEGUM----Petitioner

Versus

ZUBAIR AHMAD and others----Respondents

Civil Revision No.250-P of 2012, decided on 8th April, 2013.

(a) Provident Funds Act (XIX of 1925)---

----S. 5---Specific Relief Act (I of 1877), S.42----Suit for declaration---Benevolent fund and group insurance---Inheritable right (Tarka)---Nominee, status of---Scope---Succession certificate for recovery of provident fund was issued in favour of widow but for other service benefits Trial Court also included other legal heirs of deceased in decree---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Nominee had no right to receive amount more than her entitlement---No right conferred upon nominee as full owner as legal heir under Sharia shares would be entitled to get their respective shares---Sole duty of nominee, if any, was to collect amount on behalf of all legal heirs entitled to it under law applicable to nominator---Nomination did not operate as gift or will, therefore, could not deprive other heirs of nominator who were entitled thereunder the law of succession applicable to deceased---Provisions of section 5 of Provident Funds Act, 1925, neither vested amount in nominee nor declared her to be the owner thereof, it had given right to receive amount and nothing else---High Court declined to interfere in judgment passed by Lower Appellate Court, as no misreading or non-reading of evidence or any illegality or any material irregularity error or defect could be pointed out---Revision was dismissed in circumstances.

Wifaqi Hukumat Pakistan v. Awam-un-Nas PLD 1991 SC 731; Mst. Amiran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Mt. Latifanbhai v. Mt. Sakinanbhai AIR 1939 Sind 107; Noor Muhammad's case PLD 1951 Sind 1 and Moqadar Khan v. Burmashal Oil Distribution Company Ltd. PLD 1968 Kar. 523 ref.

(b) Islamic Law---

----Inheritance---Inheritable tarka---Nominee, status of.

Wifaqi Hukumat Pakistan v Awam-un-Nas PLD 1991 SC 731; Mst. Amiran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Mt. Latifanbhai v. Mt. Sakinanbhai AIR 1939 Sind 107; Noor Muhammad's case PLD 1951 Sind 1 and Moqadar Khan v. Burmashal Oil Distribution Company Ltd. PLD 1968 Kar. 523 ref.

Rehman Ullah for Pettioner.

Suhrab Khan for Respondents Nos.1 to 5.

Date of hearing: 8th April, 2012.

2013 C L C 1850

[Peshawar]

Before Ikramullah Khan, J

Haji MUHAMMAD SARWAR KHAN----Petitioner

Versus

ABDUL KHALIQ----Respondent

Civil Revision No.967-P of 2012, decided on 14th June, 2013.

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

----Ss. 51, 105 & 111---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Civil Procedure Code (V of 1908), O.VI, R.7---Suit for possession---Lease deed---Licence and licensee---Improvement made by bona fide holders of lease under defective titles---Burden of proof---Scope---Contention of plaintiff was that disputed house had come to his ownership through domestic arrangement (partition) and defendant was his tenant---Defendant contended that he had constructed the house in question---Suit was dismissed concurrently---Validity---Plaintiff had served upon defendant notice under S.111 of the Transfer of Property Act, 1882, which had not been denied---Plaintiff had not succeeded to substantiate lease deed through evidence---Solitary attesting witness had neither affirmed the execution of lease deed nor verified the signing of the same---Plaintiff had not succeeded to substantiate that defendant had paid any premium with regard to disputed house---Partition deed in respect of ownership of the plaintiff also remained unproved and plaintiff had failed to either prove himself as lessor and the defendant as lessee---Both the parties had not discharged their burdens with regard to the facts alleged and denied in the pleadings---Documents relied by the plaintiff in evidence were never alleged nor mentioned in the plaint---Defendant had failed to substantiate his plea of ownership who had never alleged in his pleading that another person was owner of the suit house and he could not be allowed to agitate such plea in cross statement---Plaintiff had been incorporated in the revenue record as owner of the disputed house which was constructed by the defendant with the permission of another co-owner---Defendant would not be a lessee but a licensee of the disputed house which had attained the status of village Abadi---Revision was partially allowed with the findings that the defendant be compensated in terms of improvement made with regard to disputed house who would vacate the same.

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

----Arts. 17 & 79---Competence and number of witnesses---Proof of document---Documents should be reduced into writing in presence of at least two attesting witnesses.

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

----O. VI, R. 7---Departure from pleadings---Scope---Litigant could not be allowed to raise new ground during evidence not raised in the pleadings---After disclosure of positions of the parties in their pleadings, no evidence which deviated from or was contrary to the pleadings had to be looked out of consideration---Rights and obligations of the parties were to be determined keeping in view only such pleas which had been taken by them in their pleadings---Evidence adduced was to be considered only in respect of stance taken in the pleadings.

Bashir Ahmad v. Shah Muhammad and another 2010 CLC 734 ref.

Muhammad Taif Khan for Petitioners.

Muhammad Rafique Khan for Respondents.

Date of hearing: 14th June, 2013.

2013 CLC 46

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

NIAZ MUHAMMAD----Petitioner

Versus

MUHAMMAD AMIN and 3 others----Respondents

Constitutional Petition No.(S)59 of 2011, decided on 13th September, 2012.

(a) Conduct of General Elections Order (7 of 2002)---

---Art. 8A---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Disqualification from membership of Provincial Assembly---Bachelor's degree obtained fraudulently---Impersonation in examination papers---Complainant (petitioner) contended that accused (Member of Provincial Assembly) did not appear in the examination hall at the time of the examination and instead in his place co-accused appeared and solved the papers, therefore, the degree was obtained fraudulently---Contentions of accused were that present issue was an election dispute, which was triable by the Election Commission and it also involved a factual controversy which could not be resolved through a Constitutional petition, and that he had obtained his Bachelor's degree by appearing in the examinations himself---Validity---Report submitted by University concerned stated that original examination form of the accused had the photographs of the co-accused affixed upon it, and that local certificate had the photograph of the co-accused whereas name of accused had been mentioned thereon---Accused after getting elected appointed co-accused in a Government department, which showed that he (co-accused) had been rewarded for his services rendered---Material available on record undoubtedly proved that co-accused appeared in the examinations and solved the entire papers on behalf of the accused by impersonation, succeeded in getting the degree fraudulently, therefore, it could not be termed a valid degree---Accused could not be considered a graduate in such circumstances---Accused and co-accused were equally responsible for committing forgery and defrauding University authorities and the Election Commission---Regarding maintainability of present constitutional petition, documents and material relied upon by the complainant, which were confirmed by the University authorities, were proved documents, which could be looked into, while exercising Constitutional jurisdiction---Besides present Constitutional petition was submitted at a time when the Election Tribunal was not functional, therefore, complainant had no alternate remedy and promptly approached the High Court under Article 199 of the Constitution---Accused had no authority to remain as Member of Provincial Assembly and election with regard to his constituency was declared null and void---Election Commission was directed to de-notify the accused forthwith and hold bye-election against the vacant seat and register an F.I.R. against the accused for defrauding the Commission and using a forged document as genuine---Accused was directed to return all the amount received by him in the shape of salary, allowances and other amounts consumed by him during his tenure as Member of the Provincial Assembly as well as his tenure as a Provincial Minister---University authorities were directed to take action against accused and co-accused, including registration of F.I.R. and cancellation of degree---Constitutional petition was allowed accordingly.

Mst. Hazan v. The Government of Balochistan PLD 2005 Quetta 145 and Saifullah Khan v. Hafiz Hamdullah PLD 1997 Quetta 104 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Public office holder---High Court could ask a person as to how he held a public office, if he was otherwise not entitled to hold such an office.

Muhammad Riaz Ahmed for Petitioner No.1.

Hadi Shakil Ahmed for Respondent No.1.

Muhammad Haroon Kasi, Law Officer for Respondent No.2.

Abdul Aziz Khan Khilji, Addl. A.-G. for Respondent No.3.

Nadir Ali Chalgari for Respondent No.4.

Date of hearing: 29th August, 2012.

2013 C L C 343

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

SECRETARY COMMUNICATION AND WORKS DEPARTMENT GOVERNMENT OF BALOCHISTAN and others----Appellants

Versus

DAD BAKHSH and another----Respondents

Regular Second Appeals Nos.3 and 4 of 2007, decided on 27th September, 2012.

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

----Ss. 79, 80, 82, O. III, R. 1, O. VI, R. 14, O. VIII, Rr. 3 & 5, O.IX, R. 6(1), O.XII, R.6, O. XXVII, Rr. 3 & 8---Qanun-e-Shahadat (10 of 1984), Arts.117 & 119---Contract Act (IX of 1872), S.2---Suit against Provincial Government and its officials for recovery of amount spent by plaintiff, a contractor at the eve of visit of its senior officers---Service of summons upon official-defendants and filing of written statement signed by their counsel only and not by them---Non-specific denial of plaintiff's claim by official-defendants in written statement and their subsequent non-appearance in court resulted in passing of ex parte decree against Government without recording evidence---Auction of Government Rest House in execution of ex parte decree and direction of Trial Court to hand over its possession to auction-purchaser---Ex parte decree and order in execution proceedings passed by Trial Court upheld by Appellate Court---Validity---Record showed that suit was filed on 3-3-1996 before Qazi at Pasni, while next date for appearance of defendants including Secretary to Government at Quetta was fixed as 5-3-1996 i.e. only one day---Record further showed that official-defendants on subsequent dates had sought adjournments on behalf of Secretary without any authority, which had been granted by Trial Court without ascertaining factum of due service of summons upon Secretary or issuing him fresh summons---Official defendants in written statement had not admitted plaintiff's claim---Trial Court had passed ex parte decree without framing of issues and recording of evidence merely on the basis of plaint, whereas pleadings could not take place of evidence in absence of testimony of its maker given on oath before court---Facts asserted in plaint were required to be proved by plaintiff---Counsel could not sign plaint and written statement---Written statement of official-respondents signed only by their counsel was against provisions of O.III, R 1 and O.VI, R. 14, C.P.C., thus, same could not be treated as valid---Collusion between plaintiff and official-defendants was evident from their failure to appear before court after filing written statement---Court in case of possibility of collusion between parties would not be bound to give judgment on the basis of their admission---Trial Court had passed ex parte decree on a date, which could not be treated as a date of hearing, thus, same was without jurisdiction---Drawing of decree by Trial Court within 28 days was contrary to mandate of S.80, C.P.C.---State property could not be auctioned in pursuant of a void decree---Verbal direction of official-defendants would not amount to a promise made on behalf of Government Department---Plaintiff, if having spent suit amount on verbal direction of official-defendants, could sue them in their private capacity, but not the Government---High Court set aside impugned judgments/decrees and remanded case to Trial Court for its decision afresh after obtaining written statements from defendants and framing issues---High Court further directed the Secretary to Government to fix responsibility of official-defendants for having played collusive role in such proceedings and caused great financial loss to national exchequer.

Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others reported in PLD 1980 Kar. 477 rel.

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

----O. VI, R. 1---Pleadings---Evidentiary value---Pleadings could not be read in evidence as proof of contents thereof in absence of statement of its maker given on oath before court---Principles.

Pleadings, plaint or written statement are not evidence by themselves and do not prove the assertions made therein, rather the contents thereof have to be proved through testimony given on oath and subject to cross-examination by the other side. The pleadings, which have not been confronted to the maker, are not sufficient to prove the contents of the same and cannot be read in evidence as proof of the content stated therein.

Pleadings do not take the place of evidence.

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

----O. XII, R. 6 & O.XV, R. 1---Judgment passed on admission in case of possibility of collusion between the parties--- Powers of Court---Scope stated.

Where there is likelihood or possibility of collusion between the parties, the court would not give judgment on the basis of their admission. Even in presence of specific, unambiguous and categorical admission, it is discretion of the court whether to pass a decree or refuse the same. The discretion should be exercised subject to qualification regarding maintainability of the suit on legal and factual grounds.

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

----O. IX, R. 6---Ex parte decree passed on a date not fixed for hearing---Validity---Such decree would be without jurisdiction---Principles.

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

----Ss. 79, 80, 82, O. VIII, Rr. 3, 5, O. IX, R. 6(1), O. XII, R.6 & O.XXVII, Rr. 3 & 8---Contract Act (IX of 1872), S.2---Suit against Provincial Government and its officials for recovery of amount for additional work done by plaintiff-contractor on their verbal directions---Filing of written statement by official-defendants after service of summons upon them---Observations of Trial Court made in its interim order to the effect that document annexed with plaint were photostat copies, which were not admissible evidence, thus suit could not be decided without framing issues and recording evidence---Subsequent non-appearance of official-defendants in court resulted in passing of ex parte decree against Government without recording evidence---Auction of Government Rest House in execution of ex parte decree and direction of Trial Court to hand over its possession to auction-purchaser---Ex parte decree and order in execution proceedings passed by Trial Court upheld by Appellate Court---Validity---Trial Court in view of such admitted facts available on record could not decree the suit without recording evidence---Impugned decree was without jurisdiction and a nullity in eye of law---Record did not show issuance of even a single notice to Secretary to Government, thus, impugned decree to that extent was without jurisdiction and ab initio void---Written statement of official-defendants signed on their behalf by their counsel only could not be treated as valid written statement---Official-defendants had not admitted plaintiffs claim---Plaintiff had not annexed with plaint either copy of tender called or agreement or written order regarding additional work or certified/attested copies thereof---Photostat copies annexed with plaint were inadmissible in evidence---Mere verbal direction or order of defendants would not amount to a promise or condition in original agreement, unless same was duly amended by adding a fresh condition therein with approval of competent authority---Government would not be legally bound to pay suit amount in absence of any such valid agreement---Plaintiff, if having done additional work on verbal direction of defendants without sanction of competent authority, could claim from them suit amount in their private capacity---State property could not be auctioned in pursuant to a void decree---Execution Court had adopted all coercive methods to compel defendants to make payment of decretal amount and had auctioned State property on worthless price---High Court set aside impugned judgments/decrees and remanded case to Trial Court for its decision afresh after obtaining written statements from defendants and framing issues---High Court further directed Secretary to Government to fix responsibility of official-defendants for having played collusive role in such proceedings and caused great financial loss to national exchequer.

Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others PLD 1980 Kar. 477 rel.

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

----O. III, R.1 & O.VI, Rr.1, 14---Plaint or written statement signed only by counsel of the party and not by party himself---Validity---Counsel could not sign plaint and written statement---Written statement signed by counsel of defendant and not by defendant could not be treated as valid written statement for being against provisions of O.III, R.1 & O.VI, R.14, C.P.C.

Flight Lt. Anwarul Hasan Siddiqui v. Family Judge, Court No.III, Karachi and 2 others PLD 1980 Kar. 477 rel.

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

----Arts. 76 & 85---Photostat copy of public document---Not admissible in evidence.

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

----S. 2(2)---Decree---Limitation---Decree passed in violation of mandatory provisions of law---Validity---Such decree would be void ab initio and no limitation would run thereagainst.

Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543 rel.

(i) Administration of justice---

----Initial order declared to be void and illegal---Effect---Whole superstructure built on such order was bound to fall.

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

----S. 2(2)---Void decree, execution of---Scope---State property could not be auctioned in pursuant to such decree.

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

----S. 2(e)---Mere verbal direction or order would not amount to a promise or condition in original agreement.

Amanullah Tareen, Addl. A.-G. for Appellants.

H. Shakil Ahmed and Zahid Muqeem Ansari for Respondents.

Date of hearing: 10th September, 2012.

2013 C L C 523

[Balochistan]

Before Naeem Akhtar Afghan, J

Haji SULTAN MEHMOOD----Appellant

Versus

ZOHRA BIBI and 7 others----Respondents

Civil Miscellaneous Appeal No.1 of 2011, decided on 28th December, 2012.

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

----Ss. 383, 387 & 372---Revocation of succession certificate---Procedure---Order passed under Succession Act, 1925 or proceedings thereunder--- Nature--- Res judicata, principle of--- Applicability---Scope---Succession certificate was granted to appellant whereafter application of respondents under S.383 of the Succession Act, 1925 for revocation of said succession certificate was allowed---Trial Court further held the surety of appellant under obligation to pay other legal heirs their share according to Islamic Law---Validity---Application for revocation of succession certificate had been filed after a lapse of three and a half years and said application had not been signed/thumb impressed by the respondents---Respondents, throughout the proceedings before the Trial Court, did not file any affidavit or lead any evidence in support of the contents of their application for revocation of certificate---While there was no time limit prescribed for filing an application for revocation of the certificate under section 383 of the Succession Act, 1925 but at belated stage of the present case, revocation of the certificate on the basis of an incompetently filed application was unwarranted and same would not serve any lawful purpose as there were no more amounts lying in the accounts of the deceased---Order of Trial Court holding appellant's surety under obligation to pay amount in case appellant failed to pay other surviving legal heirs of the deceased according to Sharaie Fatwa, was erroneous and Trial Court had travelled beyond scope of the Succession Act, 1925---Under the Succession Act, 1925; the Trial Court could neither determine the entitlement of legal heirs nor could direct payments of the same to the legal heirs---Grievance of the respondents in relation to their entitlement to shares in accounts of the deceased could only be redressed by a court of civil jurisdiction---Proceedings under Succession Act, 1925 were summary in nature and no decree sheet capable of execution could be drawn during the same---Under S.387 of the Succession Act, grant of certificate did not establish title to the amounts drawn and same did not disentitle the respondents to bring any claim before civil court in respect of their share of inheritance---Orders passed under the Succession Act, 1925 did not operate as res judicata with regards to questions of title---High Court set aside order of Trial Court and dismissed the application of respondents for revocation of succession certificate granted in favour of the appellant---Appeal was allowed accordingly.

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

----S. 387---Grant of succession certificate---Effect---Res judicata, principle of---Orders passed under the Succession Act, 1925 did not operate as res judicata with regard to questions of title.

Muhammad Arshad Chaudhry for Appellant.

Mujeeb Ahmed Hashmi for Respondents Nos.1 and 2.

Shahid Javed Khan for Respondents Nos.3, 4 and 5.

Alamgir Khan for Respondents Nos.6 and 7.

Date of hearing: 7th September, 2012.

2013 C L C 871

[Balochistan]

Before Muhammad Noor Meskanzai, J

BIBI RUKHSANA through Attorney----Petitioner

Versus

ABDUL MALIK KHAN and 2 others----Respondents

Civil Revision No.465 of 2010, decided on 31st December, 2012.

(a) Islamic Law---

----Pre-emption suit---Talbs, performance of---Proof---Record showed that pre-emptor's son came to know about suit sale on 17-1-2009, whereas copy of mutation was applied on 11-3-2009---Nothing was available on record to show that vendee had raised construction on suit plot subsequent to its purchase---Pre-emptor on coming to know about suit sale on 17-1-2008 was legally required to have made first Talb on same date and time, but he remained kept quiet till 11-3-2009---Presuming for sake of arguments that pre-emptor gained knowledge of sale on getting copy of suit mutation, then person who delivered him its copy would have been best witness to state and confirm factum of first Talb---Pre-emptor had not explained reason for making application for copy of suit mutation---Such negligent conduct of pre-emptor was not condonable---Law would favour vigilant and not indolent---Suit was dismissed in circumstances.

(b) Administration of justice---

----Law would favour vigilant and not indolent.

(c) Islamic Law---

----Pre-emption suit--- Talb-i-Muwathibat, performance of--- Non-disclosing in plaint time and names of witnesses in whose presence such Talb was alleged to be performed---Effect---Right of pre-emption could be enforced if pre-emptor had been able to establish to have performed Talbs exactly and absolutely in form, manner, nature and method provided under Islamic Law---Conditions prescribed for performance of such Talb would not be supposed to have been satisfied---Suit was dismissed in such circumstances.

Bashir Ahmed and another v. Mushtaq Ahmed 2007 SCMR 895 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

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

----O. XX, R. 1 & O. XLI, Rr. 30, 33---Judgment of Trial Court being at variance with that of Appellate Court---Effect---Findings of Appellate Court, if based on proper appraisal of material available on record, would deserve much weight in such case.

Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 and Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC Quetta 1842 rel.

Kamran Arshad for Petitioner.

Zafar Alam Mandokhail for Respondents.

Date of hearing: 7th December, 2012.

2013 C L C 940

[Balochistan]

Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ

HABIBULLAH KHAN----Petitioner

Versus

MANAGING EDITOR AND RESIDENT DIRECTOR DAILY JANG and 2 others----Respondents

Constitutional Petition No.554 of 2010, decided on 17th December, 2012.

Civil Procedure Code (V of 1908)---

----O. V11, R. 11---Specific Relief Act (I of 1877) S.9---Constitution of Pakistan, Art.199---Constitutional petition---Rejection of plaint---Scope---Suit for restoration of possession---Plaintiff was a contractor for the defendant working on the site of the suit property when the work ceased due to financial difficulties of the defendant and after a prolonged period, the defendant forcibly took possession of the property---Plaintiff subsequently filed suit for restoration of possession---Trial court framed issues, thereafter, rejected the plaint on ground that under the agreement between the parties, the possession was to be restored to the owner---Validity---Trial Court acted in a hasty manner as after framing of issues no evidence had been adduced by any party---Agreement between the parties was relied upon by the Trial Court however, the same was not brought on record through evidence---Proper course for the Trial Court, in case of controversial questions of facts or law was to decide the case on merits in the light of evidence and departure from same would amount to depriving a person from his legitimate right---High Court declared impugned order to be illegal and remanded the case to Trial Court for decision on merits Constitutional petition was allowed accordingly.

Petitioner in person.

Mehta W.N. Kohli for Respondents.

Date of hearing: 14th November, 2012.

2013 C L C 1004

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Malak MUHAMMAD NOOR through Attorney----Petitioner

Versus

Mst. BIBI RABIA and 2 others----Respondents

Civil Revision No.390 of 2009, decided on 4th January, 2013.

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

----S. 42---Civil Procedure Code (V of 1908), O.I, R.3---Suit for declaration---Property owned by two sisters in equal share---Sale of such property by both sisters through their attorney on basis of registered power of attorney---Suit by one sister challenging sale of such property to extent of her own share---Validity---Plaintiff-sister was not obliged to make her co-owner/sister as party to suit.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.118---Suit for declaration---Sale of suit property on basis of registered power of attorney alleged by plaintiff to be fraudulent---Burden of proof---Initial burden would lie on plaintiff to prove execution of power of attorney to be result of fraud and that suit sale made on its basis was of no legal effect---Strong piece of evidence would be required to rebut registered power of attorney Illustration.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact could not be disturbed in exercise of such jurisdiction.

Ajmal Khan Kasi for Petitioners.

Abdul Rauf Lehri for Respondent No.1.

Date of hearing: 7th June, 2012.

2013 C L C 1261

[Balochistan]

Before Muhammad Noor Meskanzai, J

INAM KARIM and others----Petitioners

Versus

Haji ABDUL REHMAN and others----Respondents

Civil Revisions Nos.171 and 189 of 2002, decided on 13th March, 2013.

(a) Evidence---

----Evidence led on a plea not raised in plaint---Validity---Such evidence would not be worth reliance and would be rejected---Illustration.

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

----O VI, R. 17---Amendment of pleadings---Plea introduced in amended plaint without permission of court---Validity---Such plea would be treated to be beyond pleadings---Illustration.

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

----O. VI, R.1---Qanun-e-Shahadat (10 of 1984), Art.133---Pleadings---Non-appearance of a party as witness in support of his pleadings---Effect---Mere such non-appearance would not be fatal, provided case of such party otherwise stood proved from rest of the material available on record---Opposite party in such case would be deprived of his right of cross-examination, thus, pleadings of such party could not be treated as evidence---Principles.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

(d) Administration of justice---

----Lis involving public property and public rights---Duty of Courts stated.

The courts are the protractors of the public property and public rights, and are required to realize their inherent obligations. The courts cannot shut their eyes over obliging statements of delinquent officials of administration or an act thereof doing away with the public rights on any consideration.

Provincial Government through Collector Kohat and another v. Shabbir Hussain PLD 2005 SC 337 rel.

Syed Mumtaz Hussain Baqri for Petitioners.

Abdul Aziz Khilji Additional (P.G.) for Respondents.

Date of hearing: 21st December, 2012.

2013 C L C 1335

[Balochistan]

Before Muhammad Hashim Khan Kakar and Naeem Akhtar Afghan, JJ

MUNIR AHMED----Appellant

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 3 others----Respondents

Election Appeal No.31 of 2013, decided on 17th April, 2013.

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

----Ss. 7 & 14---Constitution of Pakistan, Art.218---Returning Officer---Duties and powers---Scrutiny of nomination papers---Returning Officer appointed under S.7 of Representation of the People Act, 1976, is key-man in the entire exercise of conducting honest, just and fair elections in accordance with law as contemplated under Art.218 of the Constitution---Returning Officer is required to ensure that no person, who is not constitutionally and legally qualified to contest any election, is allowed to enter the arena---Returning Officer has immense powers to conduct such inquiries as he deems fit to make sure that only qualified persons are allowed to contest election---Returning Officers have not been left at the mercy of anyone and they are obliged to move in the matter of their own motion without sitting there and waiting for objector to come forward so that they could reject nomination papers of unqualified person.

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

----Ss. 12, 14 (5A) & 99---Representation of the People (Conduct of Election) Rules, 1977, R.5---Constitution of Pakistan, Arts.62 & 63---Nomination papers--- Scrutiny--- Disqualification--- Sagacious and righteous---Sufficient documentary evidence was available to establish the fact that respondent was not qualified to contest election for the seat of Provincial Assembly as well as Senate on the strength of fake and fictitious B.A. degree---Respondent made declaration in column meant for academic qualification and declared himself to be a graduate, though he was not---Effect---Respondent had to face consequences of Arts.62 & 63 of the Constitution, once there was disqualification, it was always disqualification---Election Tribunal directed the authorities to exclude name of respondent from list of validly nominated candidates and his nomination papers were rejected---Appeal was allowed in circumstances.

Syed Ayaz Zahoor for Appellant.

Mujeeb Ahmed Hashmi for Private Respondent.

Amanullah Tareen, Addl. A.-G. and Muhammad Haroon Law Officer, Provincial Election Commission for Respondent.

Date of hearing: 11th April, 2013.

2013 C L C 1395

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Syed ZIA-UD-DIN and another----Appellants

Versus

SHABIR AHMED and others----Respondents

Civil Miscellaneous Appeals Nos.26 of 2005 and 3 of 2006, decided on 30th April, 2013.

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

----S. 12---Civil Procedure Code (V of 1908), O. XXI, Rr.30, 40, 47 & 59---Suit for specific performance of agreement to sell vehicle---Plaintiff claimed recovery of balance sale price of vehicle from defendant-vendee and his surety---Ex parte decree passed against defendant and his surety for recovery of such balance price, while restraining Excise and Taxation Authority from transferring vehicle from name of decree-holder to any body else---Execution proceedings---Custody of vehicle taken by Police in compliance of order of Executing Court---Custody of vehicle later on restored by Executing Court to intervener on superdagi after dismissing his application claiming to be its bona fide purchaser---Validity---Vehicle was not subject-matter of suit except its balance sale price---Trial Court while decreeing suit had not ordered for specific performance of agreement, rather had passed decree for recovery of balance sale price---Decree had not restrained sale and purchase of vehicle---Executing Court had not adopted proper procedure laid down in O.XXI, R.30, C.P.C. for execution of money decree---Duty of Executing Court might attach and sell property owned by judgment-debtors or arrest them---Vehicle though existed in decree-holder's name, but had been recovered from possession of intervener, who was neither judgment-debtor nor alleged to be in its possession on behalf of judgment-debtors---Executing Court had taken custody of vehicle in absence of order of its attachment---Taking over possession of vehicle by Police would neither serve the purpose nor of any legal effect nor amount to an order for its attachment---Executing Court had rightly restored possession of vehicle to the intervener---Decree-holder could pursue his execution application within terms of decree in which same was passed---High Court disposed of both appeals filed by decree-holder and intervener in above terms.

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

----S. 51, O. XXI, Rr.10 & 11---Execution of decree---Powers of Executing Court---Scope---Executing Court could not go beyond decree, rather would have to remain within its ambit, adopt procedure prescribed under law and satisfy same in terms in which same was passed.

(c) Administration of justice---

----No order could be made in contravention of law and prescribed procedure.

Munir Agha and Qahir Shah for Appellants (in Civil Miscellaneous No.26 of 2005).

M. Munir Langove for Respondent (in Civil Miscellaneous No.26 of 2005).

M. Munir Langove for Appellants (in Civil Miscellaneous Appeal No.3 of 2006).

Munir Agha and Qahir Shah for Respondents (in Civil Miscellaneous Appeal No.3 of 2006).

Date of hearing: 6th November, 2012.

2013 C L C 1446

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD RAFIQUE and others----Petitioners

Versus

BIBI ASIFA and others----Respondents

Civil Revisions Nos.333 of 2002 and 91 of 2003, decided on 25th April, 2013.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.117---Suit for declaration---Concurrent findings of courts below---Right of inheritance in legacy of deceased father---Partition of the suit property on the basis of execution of Will---Registered Will of deceased---Burden of proof---Defendant claimed that plaintiff had received his share in life time of deceased owner of the property on basis of partition through execution of Will of deceased father---Burden rested with the defendant---Marginal witnesses of the Will were not produced---No witness was produced in whose presence the process of partition was held---Sole witness of the occasion failed to confirm the deed---Signatures of the executants on the Will were not got verified---Effect---In absence of specific evidence, and material, the purported will was not proved to the state of satisfaction---Fact of the partition and delivery of the possession of the respective shares was also not established---Judgment of the trial court decreeing the suit was upheld.

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

----S. 42---Civil Procedure Code (V of 1908), S.2(12)---Qanun-e-Shahadat (10 of 1984), Art.117---Mesne profit---Object---Scope---Onus of proof---Criteria---Both the parties being the successors of deceased entitled to inherit the legacy left by him---Plaintiffs claimed mesne profit---Onus was on the plaintiff to establish the fact that the property was in wrongful possession of the defendants which made him entitled for mesne profit---Only object of awarding of mesne profit was to compensate a person entitled to be in possession of a property, but being kept out of possession, thereby deprived from the profits arrived out of such property---Person who was not in wrongful possession of such property and was in possession of property as a co-sharer before partition of the same, could not be made accountable for the profits earned during the period---While deciding the question thereby assessing mesne profit the person claiming was entitled only to the extent whatever the person in wrongful possession had collected from the property or the amount which without wilful default he had received---Some specific evidence was required initially to establish that the person was in wrongful possession and secondly he had received the profits arriving therefrom---Plaintiff was not entitled for mesne profit in circumstances.

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

----S. 42---Civil Procedure Code (V of 1908), S.2(12)---Possession of property by successor---Mesne profit---Claim of mesne profit by co-sharer of property---Trial Court had refused to grant the relief of mesne profit to plaintiff (co-sharer)---Appellate Court reversed the findings of Trial Court and granted mesne profit to the plaintiff---Plaintiff alleged wrongful possession of defendant---Validity---Both the parties being the successors of deceased were entitled to inherent the legacy left by their father---Utilization of left over property in possession of some of the legal heirs of the deceased would not amount to be wrongful possession---Possession of co-sharer of a joint property in absence of proof of ouster or exclusion of other co-sharer could not be termed as wrongful possession---Person who was not in wrongful possession could not be accountable for the profits before partition of the property in question---Plaintiff could not raise a claim for mesne profit---Judgment of the Appellate Court granting mesne profit to plaintiff was set aside.

Adnan Ejaz and Noor Khan Achakzai for Petitioners.

Mujeeb Ahmed Hashmi and Khushal Kasi for Respondents Nos.1 to 7.

Amanullah Baloch for Government.

Date of hearing: 20th November, 2012.

2013 C L C 1583

[Balochistan]

Before Qazi Faez Isa, C.J. Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Molvi MUHAMMAD SARWAR and others----Petitioners

Versus

RETURNING OFFICER PB-15, MUSA KHAIL and others----Respondents

Constitutional Petitions Nos.280, 281 and 285 of 2013, decided on 10th June, 2013.

(a) Constitution of Pakistan---

----Arts. 63, 62 & 199---Representation of the People Act (LXXXV of 1976), Ss 99, 14 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Disqualifications for membership of Majlis-e-Shoora (Parliament)---Nomination papers of the petitioner were accepted by the Returning Officer, however, Election Tribunal ordered that the said nomination papers be rejected on ground that petitioner had contested the last election on the basis of forged/fake degree and that while serving as a Minister, he had diverted public funds for his personal use---Validity---Petitioner had placed reliance on a sanad, during the last elections, which he stated was equivalent to a Bachelors degree, and it was held by the Supreme Court to be not equivalent to a Bachelors degree---Respondents had referred to Government correspondence with regard to petitioner (as Minister) using Scholarship-in-aid funds to finance education of his own children, and such correspondence had not been rebutted logically or with seriousness by the petitioner, which led the High Court to conclude that the correspondence did take place and amounts were provided to the petitioner for personal use from the public Exchequer---Petitioner, in view of such conduct could not be stated to be of good character or one who did not violate Islamic Injunctions or who was righteous or honest or ameen---Article 62 of the Constitution and S.99 of the Representation of the People Act, 1976 forbade such a person to be elected or chosen as Member of Parliament---Islam required a person to abide by the laws of the place he/she lived in and did not permit encroachment upon rights of others and by putting himself forward as a candidate, when he was not qualified, he violated the law and rights of those who had abide by the law---Rights of voters were also violated as they were deceived into believing that he had the required educational qualifications---Petitioner had lied on oath and gained advantage by his lie, which was yet another contravention of Islam's stipulated rights of the people or Haqooq-ul-lbad---Petitioner had diverted funds for his personal use, which neither the law or Islam permitted---Petitioner was therefore not qualified to be elected or chosen as a Member of Parliament---Constitutional petitions were dismissed, in circumstances.

(b) Constitution of Pakistan---

----Arts. 62 & 63---Representation of the People Act (LXXXV of 1976) S.99---Qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament)---Test of a person being of "good character"; or of being in violation of Islamic Injunctions"; or of being "sagacious, righteous, non-profligate, honest and ameen"---Connotation, scope, extent, and requirements enumerated.

Surah 16, An-Nahl, Verse 91; Surah 16, An-Nahl, Verse 92; Surah 16, An-Nahl, Verse 94; Surah 48, Al-Fath, Verse 10; Surah 5, Al-Mai'dah, Verse 89; Surah 70, Al-Ma'arij, Verses 32-35; Surah 23, Al-Mu'minun, Verses 8-11; Surah 5, Al-Maidah, Verse 119; Surah 9, At-Taubah, Verse 119l; Surah 2, Al-Bakrah, Verse 256; Surah 3, Al-Imran, Verse 20; Surah 5, Al-Mai'dah, Verse 99; Surah 2, Al-Baqara, Verse 188; Surah 3, Al-Imran, Verse 161; Bukhari Book 2, Chapter 25, No.32; "Hazrat Umar Kay Faislay" by Muhammad Abdullah Madni;; Surah 4, An-Nisa, Verse 58; Surah 8, Al-Anfal, Verse 27; Surah 2, Al-Baqarah, Verse 283; Surah 23, Al-Mu'minun, Verse 8; Surah 70, Al-Ma'arij, Verse 32 rel.

(c) Public functionary---

----Bureaucrat, if he/she permitted the flouting of the law and did not record his/her objection in writing on the applicable file or department's summary, he/she becomes responsible for the transgression---Bureaucrats were not required to follow illegal orders of Minsters, in fact were mandated by the Rules of Business to stop such orders

Kamran Murtaza, Rauf Atta, Rehmatullah, Aminullah Kakar, Iltaf Hussain for Petitioners.

Muhammad Haroon Kasi, Law Officer of the Provincial Election Commissioner for Official Respondents.

Mujeeb Ahmed Hashmi for Private Respondents (in C.P. No.280 of 2013).

H. Shakil Ahmed for Respondents (in C.P. No.281 of 2013).

Amanullah Achakzai and Naimatullah for Respondents (in C.P. No. 285 of 2013).

Date of hearing: 19th April, 2013.

2013 C L C 1620

[Balochistan]

Before Qazi Faez Isa, C.J., Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

TARIQ HUSSAIN----Petitioner

Versus

SARFARAZ AHMED and 4 others----Respondents

Constitutional Petition No.288 of 2013, decided on 10th June, 2013.

(a) Constitution of Pakistan---

----Arts. 63 & 199---Constitutional petition---Candidature for membership of provincial assembly---Disqualification---Concealment of facts in nomination papers---Non-disclosure of pendency of criminal cases in nomination papers by candidate---Effect---Petitioner had objected the candidature of a candidate against whom criminal cases were pending---Objections filed by petitioner was turned down and nomination papers had been accepted---Validity---Nomination papers required disclosure of criminal cases that were pending six months prior to the submission of nomination papers---Initial burden was on the petitioner to show that the candidate had knowledge of criminal cases registered against him and that he had consequently made a false declaration in his nomination papers---Petitioner failed to establish the candidate's knowledge about the pending criminal cases---No advantage accrued to the candidate in not disclosing the pendency of criminal cases against him as non-disclosure did not entail disqualification---Candidate was not convicted in any of said criminal cases---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Arts. 63(1)(k), 199 & 240---Constitutional petition---Candidature for provincial assembly---Disqualification---Candidate was Member of the Board of Management of a Public Corporation, owned by the government---Effect---Election Tribunal turned down the objection of petitioner---Validity---Petitioner had not been able to show that the respondent candidate was a paid employee of State owned Corporation---Generally, other than Executive Directors, the Directors on the Board of Public Corporations and Companies, owned by the government or wherein the government holds controlling share were not paid for their services---Respondent candidate had filed a certificate of the company secretary, which stated that he was not an employee of Government of Pakistan and office of the Member of Board of Management was not an office of profit---Respondent candidate was not paid monthly salary, remuneration or other benefits being a Member of the Board---Burden was on petitioner to show that the respondent candidate was paid for his services to bring him within the disqualification---Simply serving as a Member of Board of Management of State owned Corporation could not be construed to be in the service of Pakistan---Judgment of Election Tribunal was upheld---Constitutional petition was allowed.

Muhammad Amir Rana for Petitioner.

Kamran Murtaza, Tahir Ali Baloch and Adnan Ejaz for Respondent No.1.

Muhammad Haroon Kasi, Law Officer of the Provincial Election Commissioner.

Date of hearing: 19th April, 2013.

2013 C L C 1749

[Balochistan]

Before Ghulam Mustafa Mengal and Naeem Akhtar Afghan, JJ

ABDUL QADIR----Petitioner

Versus

BABI SABIRA----Respondent

Constitutional Petition No.138 of 2010, decided on 18th July, 2013.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minors---Unemployed mother---Welfare of minors---Guardian application filed by father of minors was dismissed---Plea raised by father was that mother of minors was jobless having no source of income and minors were not having education properly---Validity---Father of minors contracted second marriage and had children from second wedlock---Father mostly remained out of his house in connection with his job and there would be no one to look after the minors except step-mother, who could not be substitute for real mother---Minors could not be left at the mercy of step-mother, particularly when real mother of minors had neither contracted second marriage nor was suffering from any disqualification---Welfare of minors was in their custody with their mother and being natural guardian she could maintain her children with love and affection as compared to step-mother---Plea of father was devoid of force as it was the bounden duty of father to maintain his children till they become major and paucity of mother to maintain her children could not be treated as disqualification of mother to retain custody of minors---If minors were not getting proper education in the custody of their mother, it was the prime duty of their father to pay educational expenses of his children and if so convenient, father could opt to get the children admitted in reputable schools and arrange for their tuition etc. as well without dislocating their custody---High Court in exercise of extraordinary Constitutional jurisdiction declined to interfere in the custody of minors with mother as there was no illegality or jurisdictional defect in the judgments passed by the Courts below---Petition was dismissed in circumstances.

Ganj Bibi v. Muhammad Younas 2011 CLC 1062; Mehmood Akhtar v. District Judge Attack 2004 SCMR 1839 and Mst. Baso v. Additional District Judge-III, Sahiwal 1987 CLC 1675 ref.

Barrister Adnan Kasi and Naveed Qambrani for Petitioner.

Obaidullah Quresh for Respondent.

Date of hearing: 10th July, 2013.

2013 C L C 1757

[Balochistan]

Before Muhammad Noor Meskenzai, J

MUHAMMAD ARIF and another----Petitioners

Versus

YAR MUHAMMAD----Respondent

Civil Revision No.61 of 2010, decided on 28th June, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Void agreement---Court-fee, non-deposit of---Effect---Sister of defendant was ex-wife of plaintiff and marriage was dissolved on the basis of Khula---Plaintiff claimed that his ex-wife agreed to pay a sum of Rs.225,000/- as consideration of Khula and defendant stood surety for the payment---Trial Court dismissed the suit filed by plaintiff but Lower Appellate Court allowed appeal and decreed the suit in favour of plaintiff---Validity---Lower Appellate Court failed to take into consideration nature of claim which was not legal, as question of Khula could arise where marriage subsisted---Lower Appellate Court could not have overlooked the judgment passed by Court earlier whereby marriage tie between the spouses had already been dissolved---Lower Appellate Court misapplied law by entertaining appeal without court-fee much less without application under Ss.148/149, C.P.C. for extension of time for affixation of court-fee---Petitioner also did not affix court-fee at the time of filing of civil revision before High Court---Such point of Court-fee was not raised before High Court, nor the office took notice when the petition was presented, nevertheless, the parties could not escape their legal obligation and avoid payment of court-fee---Defendant was bound to affix court-fee on memo of petition, therefore, High Court directed the Collector to recover court-fee from defendants as well as court-fee from plaintiff---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Ewaz Zehri for Petitioner.

Nemo for Respondent.

Date of hearing: 27th May, 2013.

2013 C L C 1808

[Balochistan]

Before Ghulam Mustafa Mengal and Naeem Akhtar Afghan, JJ

MUHAMMAD FAROOQ----Petitioner

Versus

BIBI SAHIKIRA and another----Respondents

Constitutional Petition No.441 of 2013, decided on 20th June, 2013.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---Family Court, jurisdiction of---Factual controversy---Husband contended that wife was not resident of place "Q" where she had filed suit for Khula---Plea raised by wife was that due to misbehavior of husband, wife along with her parents shifted to place "Q" long ago and she had given her address in the plaint---Validity---Nothing was on record to show that wife did not reside within the territorial jurisdiction of Family Court at place "Q"---Question as to whether wife resided at place "Q" or at place "P" was question of fact, which could only be resolved after recording evidence of parties---Trial Court had rightly held that in view of conflicting contentions of parties, the issue was required to be resolved through evidence---Order passed by Trial Court did not suffer from any illegality or jurisdictional defect, warranting interference by High Court in Constitutional jurisdiction---Petition was dismissed in circumstances.

Abdul Khair Achakzai for Petitioner.

Nemo for Respondents.

Date of hearing: 12th June, 2013.

2013 C L C 1865

[Balochistan]

Before Muhammad Noor Meskanzai, J

Malik MEHBOOB----Petitioner

Versus

NAZAR MUHAMMAD and 3 others----Respondents

Civil Revision No.205 of 2012, decided on 19th July, 2013.

Specific Relief Act (I of 1877)---

----S. 54---West Pakistan Land Revenue Act (XVII of 1967), S.172---Suit for injunction---Illegal possession---Revenue officers, performance of duties---Concurrent findings of facts by the Courts below---Plaintiff claimed his possession over suit land and sought injunction against owners of land from entering into their land and against revenue authorities from performing their lawful duties---Both the Courts below concurrently dismissed suit and appeal filed by plaintiff---Validity---Revenue officer could not be stopped from performing his legal obligation and suit filed by plaintiff was hit by provisions of S.172 of West Pakistan Land Revenue Act, 1967---By abolition of Art.144 and S.28 of Limitation Act, 1908, encroacher or trespasser could not have laid a claim on the basis of illegal possession and suit filed by plaintiff was not competent and appeal was rightly dismissed by Lower Appellate Court---Plaintiff could not seek declaration against defendants as revenue record had confirmed the fact that they were in possession and were joint owners, therefore, they had rightly requested competent Revenue officer for demarcation---Owner could not permanently be restrained from entering the premises, ownership whereof vested in him---No misreading or non-reading of evidence nor any defect in judgments and decrees rendered by two Courts below were found on proper appraisal of material on records---High Court, therefore, declined to interfere as there was no impropriety, perversity, irregularity or infirmity in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

Syed Ayaz Zahoor for Petitioner.

Muhammad Aslam Chishti for Respondents.

Date of hearing: 7th June, 2013.

2013 C L C 1902

[Balochistan]

Before Muhammad Noor Meskanzai, J

MUHAMMAD SIDDIQUE and others through Attorney----Petitioners

Versus

SECRETARY FOREST through Executive Officer, Lasbella at Uthal and others----Respondents

Civil Revisions Nos.150 of 2010 and 73 of 2012, decided on 19th July, 2013.

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

----Ss. 42 & 54---Suit for declaration and injunction---Concurrent findings of fact by two Courts below---Forest department claimed to be owner in possession of suit land and alleged that cutting of trees and raising of construction by defendants was illegal---Trial Court as well as Lower Appellate Court concurrently decided the suit and appeal in favour of Forest department---Validity---No illegality or irregularity were found in both the judgments passed by two Courts below warranting interference by High Court by way of setting aside the same---Defendants failed to rebut claim of Forest department that land in dispute was not allotted to it or Provincial Government was not owner of the same---Concurrent findings of facts arrived at by two Courts below were on record which normally could not be disturbed by High Court unless it was proved that the same were shocking, ridiculous or artificial---Defendants failed to specify any portion of evidence which had been misread, non-read or misappreciated and only general type of grounds had been raised by defendants---Both the Courts below after proper appraisal of evidence and material available on record passed well-reasoned and exhaustive judgments after attending each and every aspect of the case---High Court did not find any misreading or non-reading of evidence and declined to interfere in concurrent judgments passed by two Courts below---Revision was dismissed in circumstances.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.11---Suit for declaration and injunction---Res judicata, principle of---Applicability---Suit filed by plaintiffs was dismissed on the principle of res judicata as same having been filed by defendant-department had already been decreed against plaintiffs---Plea raised by plaintiffs was that since their suit was dismissed at the strength of findings recorded by Trial Court in suit filed by defendant-department and the findings were upheld by Lower Appellate Court, yet were sub judice before High Court, therefore, plaintiffs were non-suited at a premature stage---Validity---Plea of plaintiffs though attractive yet intrinsically lost significance, as the suit was filed by plaintiffs and defendant-department was already having a decree in its favour application under S.11, C.P.C. was fully attracted---Plaintiffs failed to prove their claim and Courts below rightly passed judgments and decrees which were not open to any exception---High Court declined to interfere in judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), reported in 2002 SCMR 338 rel.

Khalid Ahmed Kubdani for Petitioners.

Naseer Ahmed Bangulzai, A.A.-G. for Respondents.

Date of hearing: 17th June, 2013.

2013 CLC 148

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan and Ch. Muhammad Ibrahim Zia, JJ

MANGA KHAN and 6 others----Appellants

Versus

MUHAMMAD IQBAL and 30 others----Respondents

Civil Appeal No.92 of 2008, decided on 31st March, 2011.

(On appeal from the judgment and decree of the High Court dated 23-7-2008 in Civil Appeal No.175 of 2005).

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), Ss.53, 135 & 147---Suit for declaration---Partition of inherited property---Plaintiffs prayed for declaratory decree on the basis of the claimed private partition---Both the Trial Court and Appellate Court below concurrently dismissed the suit, but High Court in second appeal decreed the same---Validity---Both the Trial Court and Appellate Court below discussed evidence produced by the parties in detail and recorded findings issuewise after due appreciation of the record and taking into consideration documents---High Court passed an ambiguous order merely on the basis of two documents, without appreciating and considering their contents---One of the two documents was neither a partition deed nor it operated among all the co-sharers or their total holdings in the different villages---Even if said document was treated as a deed of private partition, even then it did not attain finality or created any right because under S.147 of West Pakistan Land Revenue Act, 1967 all the partitions privately effected, were subject to affirmation by the competent Revenue Officer according to prescribed procedure---Second document was agreement to sell which would not create any right unless in furtherance of it, further agreed and required steps were taken and completed by the concerned parties---High Court had merely ordered that a decree as prayed in the original suit was granted and there was no mention of the subject-matter or the nature and type of the decree granted---Such ambiguous judgment and decree, according to the codal provisions, did not fulfil the legal requirement and could not sustain---Trial Court as well as Appellate Court below had recorded their findings after cumulative appreciation of all the available material---Judgments of both courts below were well reasoned and consistent with the principles of law, whereas High Court had not discussed whole evidence available on record---Impugned judgment of High Court, was set aside, that of both courts below, stood restored, in circumstances.

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

----Art. 100---Presumption as to documents thirty years old---Thirty years old document, was admissible without production of the marginal witnesses, or the executors, but the court under Art.100 of the Qanun-e-Shahadat, 1984 not required to presume contents of such documents to be true---Court could call parties to produce evidence---Mere thirty years age, would not make a document unrebuttable or absolute proof---Such a document, according to the facts and circumstances of the case was subject to rebuttal.

Ghulam Muhammad's case PLD 2002 Lah. 48 and Allah Dad's case 2005 SCMR 564 rel.

Muhammad Reaz Alam, Advocate for Appellants.

Abdul Qayyum Ansari and Abdul Latif Dutt, Advocates for Respondents.

Date of hearing: 25th January, 2011.

2013CLC203

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MANZOOR AHMED----Appellant

Versus

MUHAMMAD AZAM and 6 others----Respondents

Civil Appeal No. 11 of 2005, decided on 30th May, 2012.

(On appeal from the order of the High Court, dated 21-12-2004 in Civil Appeal No.16 of 2004).

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

----Arts. 74, 76, 90, 92 & 99---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration and cancellation of document---Secondary evidence---Plaintiff had alleged that defendant had prepared a false, fictitious and concocted document of and that on the basis of the same the defendant was attempting to take over the possession of the property; as well as to incorporate entry in the revenue record---Plaintiff had claimed that said `will' was void, ineffective and inoperative on his rights---Trial Court decreed the suit, but Appellate Court below reversed the findings of the Trial Court and dismissed the suit---High Court accepting appeal against judgment of Appellate Court below, recalled its order and restored the decree of the Trial Court---Validity---Defendant was given notice for production of will-deed, but due to non-availability and out of possession, he could not produce the same---Original document i.e. will-deed had not been produced without any fault or negligence of the defendant---Two attesting witnesses, who had seen said will-deed, had supported the version of the defendant that same was executed in fqvour of the defendant---Secondary evidence in the light of Arts.74 & 76 of the Qanun-e-Shahadat, 1984, was not only admissible, but also had proved the fact of its execution---Such important and legal aspect of the case could not attract the attention of High Court---Court under Art.99 of Qanu;a-e-Shahadat, 1984 would presume .that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law---Execution of will had been proved, in circumstances---Another strong piece of evidence, which supported the version of the defendant was certified copy of the mutation, which had been tendered in evidence without any objection, which would be presumed to be genuine---High Court had not discussed in detail evidence of the parties, whereas it was enjoined upon the High Court to discuss the same because the divergent findings had been recorded by the courts below---Conclusion drawn by the High Court without due and proper appreciation of evidence available on record, did not appear to be consistent with the principle of justice---Every case had its own 'legal and factual propositions, and no case could be decided while ignoring such propositions merely on the basis of a principle laid down in a case in its peculiar facts---Impugned judgment of High Court was set aside by the Supreme Court judgment passed by Appellate Court below stood restored.

Muhammad Zaman's case PLD 1984 SC (AJ&K) 138 distinguished.

(b) Evidence-

Civil. cases---Proof---Required standard of proof in civil cases is quite different as compared to that in criminal cases: In the civil cases, the principle of law is to record findings in favour of the party, in whose favour the material brought on record would create preponderance of probability.

PLD 1981 'SC (AJ&K) 118; 1982 CLC 1309; 2010 SCR 231 and 2012 CLC 1521 rel.

Raja Hassan Akhtar, Advocate for Appellant.

Ch. Muhammad Riaz Alam, Advocate for Respondents. Date of hearing: 28th May, 2012.

2013CLC219

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

ABDUL RAUF KHAN----Appellant

Versus

MUHAMMAD HANIF and 14 others----Respondents

Civil Appeal No.58 of 2006, decided on 24th April, 2012.

(On appeal from the judgment and decree of the High Court, dated 30-1-2006 in Civil Appeal No.166 of 2004).

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

----S. 11---Res judicata, principle of---Applicability---Scope---Doctrine of res judicata was applicable in a case where the matter in dispute had been considered and finally settled between the parties by, a court of competent jurisdiction; and such adjudication had 'conclusive effect upon the rights of the parties---First question for consideration by court was whether a matter directly and substantially in issue had been resolved by. the court of competent jurisdiction, could be re-agitated through a fresh suit---Point directly in issue between the same parties, and when finally concluded and attained finality, fresh suit with regard to the same matter between the same parties was not competent---Logic behind the rule of res judicata was that a party could not be vexed twice for the same cause, there must be some end to the litigation---Suits were based upon the cause of action; when judgment was announced, the cause of action would merge into the judgment; and filing of fresh suit on similar cause of action would amount to dragging the innocent persons in unnecessary litigation.

Ghulab and 6 others v. Muhammad Younis and 7 others PLD 1983 SC (AJ&K) 89; Muhammad Zaman v. Fazal Elahi and 20 others 2001 CLC 1514 and Ch. Shaukat Ali v. Province of Punjab and another 1989 SCMR 1254 ref. '

Shaikh Abdul Aziz v. Mirza and 3 others PLD 1989 SC (AJ&K) 78; Said Muhammad v. Karam Dad and 5 others 1999 YLR 117; Sakhiullah v. Habibullah 2011 SCR 133 and Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No.52 of 2005, decided on 14-4-2012] rel.

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

----Ss. 42, 8 & 54---Suit for declaration, possession and perpetual injunction---High Court, in the present case, had passed the decree on the ground of adverse possession observing that adverse possession could be ascertained from other circumstances---No doubt for determination of adverse possession, other circumstances could be considered, but in the present case, considering the whole record, the possession of plaintiff was not proved to be adverse against the defendants---Decree for declaration on the ground of adverse possession could not be passed in favour of the plaintiff---Suit was rightly dismissed by the Trial Court---Appellate Court below and High Court were not justified to set aside judgment and decree passed by the Trial Court---Judgments and decrees passed by the High Court and that of the Appellate Court below, were set aside by Supreme Court and that of the Trial Court was restored.

Raja and others v. Karam Ali and others PLD 1951 Lah. 177; Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77; Muhammad v. Sohbat [Civil Appeal No.41 of 2002, decided on 7th February, 2003] and Ali Haider Khan v,. Muhammad Aziz Khan and others 1993 SCR 170 ref.

Raja Hassan Akhtar, Advocate for Appellant. Ch. Lal Hussain, Advocate for Respondents. Date of hearing: 23rd January, 2012.

2013 C L C 300

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary----Appellant

Versus

MAHBOOB ASLAM KHAN and 4 others----Respondents

Civil Appeal No.117 of 2010, decided on 14th July, 2012.

(On appeal from the judgment of the High Court, dated 10-4-2009 in Civil Appeal No.32 of 2000).

Civil Procedure Code (V of 1908)---

----Ss. 37 & 38 & 39---Execution of decree---Transfer of decree---Scope---Decree could be executed either by the court which passed it, or by the court to which it was sent for execution---Court could transfer the decree for execution to another court on the ground that if the person against whom the decree was passed actually and voluntarily resided or carried on business, or personally worked for gain with the local limits of the jurisdiction of such other court; that if such other person had no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree; and had property within the local limits of the jurisdiction of such other court; that if the decree directed the sale or delivery of immovable property situated outside the local limits of the jurisdiction of the court which passed it; and that if the court which passed the decree considered for any other reason, which it would record in writing that the decree should be executed by such other court---Decree could be transferred under subsection (1) of S.39, C.P.C., on application of decree-holder in said four eventualities---Two conditions appearing necessary for sending a decree for execution to another court, firstly, was that it would be a court subordinate to the court which passed the decree; and secondly that it would be a court of competent jurisdiction---Jurisdiction could be territorial and pecuniary---Competent jurisdiction could be that the court had power to try the suit and jurisdiction to execute the decree---Power under subsection (2) of S.39, C.P.C., to send the decree for execution to subordinate court of competent jurisdiction could be exercised without meeting the requirements of sub-clauses (a) to (d) of subsection (1) of S.39, C.P.C.---If the amount of decree would exceed the pecuniary jurisdiction of executing court, such court was not a court of competent jurisdiction---Decree could only be executed by a court competent to try the original suit and execute a decree---If the decretal amount was such beyond the jurisdiction of the court to which the decree was transferred, then the decree could not be transferred to such court for execution---High Court under S.39, C.P.C., could only transfer a decree for execution to a court subordinate to it and of competent jurisdiction.

National Bank of Pakistan v. Messrs Ch. Autos and Tools Agency PLD 2001 Lah. 135; Abdul Hakim and others v. Saadullah Khan and 2 others PLD 1970 SC 63; Mst. Sabia Aziz v. Director Technical Education and 5 others 2001 YLR 3348; Ghulam Muhammad v. Custodian of Evacuee Property 1983 CLC 1181; Muhammad Resham Khan and others v. Rtd. Subedar Muhammad Amin Khan 2001 MLD 534; Haji Muhammad Latif Khan v. Muhammad Hanif 2007 SCR 125; Ghulam Nabi v. Azad Kashmir Logging and Sawmills Corporation and another 2007 SCR 381; Lahore Development Authority v. Messrs Own Home Service Ltd. PLD 1983 Lah. 475; Karamatullah Khan v. Government of West Pakistan PLD 1967 Lah. 171; Mst. Hanifa Begum v. Hassan Shaikh and 3 others PLD 1983 SC AJ&K 163; Munawar Hussain and another vs. Rehmat Ali PLD 1979 Lah. 215 and Amjad Khan v. Haji Muhammad Yameen Qureshi [PLD 1994 Kar.404 ref.

Mt. Anchahi v. (Firm) Birjmohan Lall, Madan Lall and others AIR 1936 Patna 177 and Shanti Lal v. Mt. Jamni Kuer AIR 1940 Allahabad 331 rel.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Raja Muhammad Khurshid Khan, Advocate for Respondents.

Date of hearing: 5th June, 2012.

2013 C L C 548

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD LUQMAN----Appellant

Versus

MUHAMMAD ARIF QURESHI and 4 others----Respondents

Civil Appeal No.63 of 2010, decided on 27th November, 2012.

(On appeal from the order of the High Court, dated 17-6-2009 in Writ Petition No.824 of 2009).

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.34---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Issuance of status quo by High Court while directing respondent to file parawise comments upon such petition---Validity---Practice of issuing status quo order by High Court without admitting such petition for regular hearing was not a good and healthy practice---High Court was legally obliged either to issue a 7 days' notice to respondent or dispense with requirement of R.34 of Azad Jammu and Kashmir High Court Rules, 1984---High Court had issued status quo without considering prima facie case, balance of convenience and irreparable loss---Order of status quo passed without fulfilling requirements of O.XXXIX, Rr.1 & 2, C.P.C. was bad in law and not maintainable---Supreme Court set aside impugned order of status quo in circumstances.

Dr. Muhammad Ejaz Ahmed v. Dr. Maqbool Ahmed and others Civil Appeal No.187 of 2009; Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others 2001 MLD 224 and Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others 2001 MLD 224 rel.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Nemo for Respondents.

Date of hearing: 15th October, 2012.

2013 C L C 568

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

ATTIQUE AHMED----Appellant

Versus

ADLA NOREEN----Respondent

Civil Appeal No.30 of 2012, decided on 23rd November, 2012.

(On appeal from the judgment of the Shariat Court, dated 4-11-2011 in Civil Appeal No.32 of 2011).

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

----Ss. 17 & 25---Custody of minor aged 2 years---Contest between divorced mother of minor and his father living abroad having contracted a second marriage---Validity---Courts while awarding custody would keep in view welfare of minor coupled with age, sex and personal law---Mother could look after her child in a better way---Minor was living with his mother since his birth---Minor needed full time care and attention, which could be provided by his real mother being a natural guardian under Islamic Law---Minor of such age could not be left at the mercy of a step-mother---Father's claim for custody of minor was dismissed in circumstances.

Mst. Zakia Khatoon vs. Muhammad Hayat Khan and 5 others 1998 SCR 140 and Mst. Sughra Begum v. Ashfaq Ahmed Butt PLD 1981 Lah. 393 rel.

Muhammad Zubair Raja, Advocate for Appellant.

Nasir Farooq Chaudhry, Advocate for Respondent

Date of hearing: 20th November, 2012.

2013 C L C 616

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

TAHIR MAHMOOD----Appellant

Versus

WAHEED AHMAD and 18 others----Respondents

Civil Appeal No.32 of 2012, decided on 30th November, 2012.

(On appeal from the judgment of the High Court, dated 18-11-2011 in Civil Revision No.33 of 2010).

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of pleadings---Factors essential to be considered by courts.

Under Order VI, Rule 17, C.P.C., the amendment in the pleadings can be allowed at any stage of the proceedings in the suit, if the court comes to the conclusion that the amendment sought for is necessary for just decision of the case and by allowing amendment, the nature and complexion of the suit is not changed and a new cause of action is not created. Where in the opinion of the court the proposed amendment is necessary to resolve the controversy involved in the suit and while allowing amendment structure of the suit is not changed and new cause of action is not created, then the amendment will be allowed and where the complexion of the suit is changed or a new cause of action is created, the courts will refuse to allow the amendment. Where the court is of the opinion that without allowing amendment the just decision in the case can be made, the amendment is disallowed.

Ch. Muhammad Younus Arvi, Advocate for Appellant.

Riaz Tabassum, Advocate for Respondents.

Date of hearing: 27th November, 2012.

2013 C L C 719

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan,C.J. and Ch. Muhammad Ibrahim Zia, J

ABDUL REHMAN----Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through

Chief Secretary and 4 others----Respondents

Civil Appeal No.199 of 2010, decided 12th November, 2012.

(On appeal from the judgment of the High Court, dated 2-4-2010 in Civil Miscellaneous No.93 of 2009).

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R. 42---Civil Procedure Code (V of 1908), O.IX, R.4---Writ petition---Dismissal for non-prosecution---Sufficient cause---Refusal of High Court to restore such petition---Petitioner's pleas were that he being an old man and resident of a far-flung area could not appear personally before High Court; that his counsel at time of calling case was busy before another Bench; and that his application for restoration was supported by Case Diary and affidavit of his counsel---Validity---Counsel's affidavit would not be disbelieved ordinarily---Courts would accept restoration application liberally on showing sufficient cause by applicant for non-appearance---Applicant had brought on record sufficient reasons for his non-appearance and that of his counsel---Supreme Court set aside impugned order and restored the constitutional petition to its original number.

Muhammad Nazir and others v. Muhammad Sadiq and others PLD 1989 AJ&K 28; Ghulam Mustafa Shah v. Haji through legal heirs and others 1993 SCMR 256 and Muhammad Khan through legal heirs and others v. Shabrati PLD 1995 Kar. 267 rel.

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

----O. IX, R. 4---Term "sufficient cause" as used in O.IX, R.4, C.P.C.---Scope---Courts would always interpret such term liberally---Courts would accept restoration application liberally on showing "sufficient cause" by applicant for his non-appearance---Discretion for restoration would be exercised liberally subject to advance cause of substantial justice.

Muhammad Nazir and others v. Muhammad Sadiq and others PLD 1989 AJ&K 28 and Muhammad Khan through legal heirs and others v. Shabrati PLD 1995 Kar. 267 rel.

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

----O. IX, R. 4---Affidavit---Restoration of suit, application for---Affidavit of applicant's counsel in support of such application---Validity---Such application would normally be disposed off on basis of affidavit---Counsel's affidavit ordinarily would not be disbelieved.

Muhammad Nazir and others v. Muhammad Sadiq and others PLD 1989 AJ&K 28 and Ghulam Mustafa Shah v. Haji through legal heirs and others 1993 SCMR 256 rel.

Mir Sharafat Hussain, Advocate for Appellant.

Ch. Shoukat Aziz, Additional Advocate-General for Respondents.

Date of hearing: 5th November, 2012.

2013 C L C 734

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUSHTAQ AHMED and 2 others----Appellants

Versus

MIRPUR DEVELOPMENT AUTHORITY, MIRPUR through Chairman and 3 others----Respondents

Civil Appeal No.39 of 2012, decided 19th November, 2012.

(On appeal from the judgment of the High Court, dated 31-12-2011 in Writ Petition No.104 of 2007).

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

----Ss. 4 & 23---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 42---Allotment of plot in lieu of acquired land---Non-delivery of possession of such allotted plot---Order of High Court directing authority to deliver possession of allotted plot to petitioner and if its delivery was not possible, then Authority would be bound to adjust him by allotting an alternate land---Validity---According to S.14 of Azad Jammu and Kashmir Interim Constitution Act, 1974, no person could be deprived of his property save in accordance with law---According to Land Acquisition Act, 1894, owner in lieu of his acquired property would be entitled to get compensation thereof as per its market value prevailing at time of its acquisition and he could not be forced to agree to alternate adjustment of property---Owner of a property out of his free will or by negotiation could agree for its exchange or alternate adjustment, but law did not prohibit such adjustment---Petitioners did not agree with alternate adjustment/ exchange of property---Supreme Court modified impugned order by directing authority that if delivery of possession of allotted plot was not possible, then petitioner would be paid adequate compensation determined according to law.

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

----S. 23---Compensation of acquired property---Connotation---Such compensation would mean market value of property prevailing at time of its acquisition/bringing in use for public purpose.

Liaqat Ali Khan, Advocate for Appellants.

Respondents: Ex parte.

Date of hearing: 19th November, 2012.

2013 C L C 754

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

FAZAL DAD through L.Rs.----Appellant

Versus

ADNAN ALI and 8 others----Respondents

Civil Appeal No.84 of 2009, decided 2nd November, 2012.

(On appeal from the judgment and decree of the High Court, dated 15-5-2009, in Civil Appeal No.208 of 2006).

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

----Ss. 12 & 42---Civil Procedure Code (V of 1908), Ss.96, 100 & O.I, R.10---Suit for declaration of title on basis of unregistered agreement to sell suit property---Intervenor being in possession of suit property impleaded as party in suit---Suit dismissed by Trial Court, but decreed by Appellate Court by passing decree of specific performance on basis of such agreement---Intervenor's plea in appeal was that plaintiff could not claim any right in suit property on basis of such agreement; and that in simple suit for declaration, decree for specific performance could not be passed---Dismissal of intervenor's appeal by High Court---Validity---Person having a right or interest in suit property or executants of such agreement could only challenge such agreement, and not a third person having no right or interest therein merely claiming to be in its possession---Person not having any right or interest in suit property could not maintain appeal against judgment/ decree---Legal heirs of defendant-vendor had not challenged such judgment/decree, which had attained finality---Intervenor had no right to maintain appeal as no decree had been passed against him---High Court had rightly dismissed intervenor's appeal---Supreme Court dismissed intervenor's appeal in circumstances.

Azad Government and 2 others v. Syed Muhammad Afzal Shah and another 2002 CLC 1165; Muhammad Yakoob v. Muhammad Ishaque 1980 CLC 2056; Feroz-ud-Din v. Muhammad Aziz and 22 others PLD 2005 HC (AJ&K) 9; Muhammad Nazar and 3 others v. Mst, Nasira Sultana and 5 others 1995 CLC 1745; Mardan Ali and others v. Rab Nawaz and others 1991 CLC 82 and Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Chandrika Bakhsh Singh v. Indar Bikram Singh AIR 1916 PC 14; Mst. Rasheeda Begum through her L.Rs. v. Mst. Saeeda and others 1993 CLC 1263 and Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13 rel.

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

----S. 54---Agreement to sell immovable property---Right of person in possession of property to challenge such agreement---Scope---Such person would have no right to challenge such agreement as its legality or validity could be challenged only by its executants or a person having a right therein.

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

----Ss. 96 & 100---Appeal against judgment/decree by a person not having title or interest in suit property---Not maintainable---Principles.

Any person, who is aggrieved from the judgment or decree and an adverse decree has been passed against him, can file an appeal although he was not party before the lower forum, but a person, who has no legal right in the property, cannot maintain an appeal only on the ground that he is in possession of the land. A person, who has no interest in the property, cannot maintain appeal.

Chandrika Bakhsh Singh v. Indar Bikram Singh AIR 1916 PC 14; Mst. Rasheeda Begum through her L.Rs. v. Mst. Saeeda and others 1993 CLC 1263 and Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13 rel.

Muhammad Rafique Dar, Advocate for Appellants.

Sardar Muhammad Azam Khan, Advocate for Respondents.

Date of hearing: 17th October, 2012.

2013 C L C 839

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

Mst. SARDAR BEGUM----Appellant

Versus

REHMAT KHAN and 11 others----Respondents

Civil Appeal No.19 of 2006, decided on 1st October, 2012.

(On appeal from the judgment of the High Court, dated 29-9-2005, in Civil Appeals Nos.136 and 137 of 2004).

(a) Words and phrases---

----"Right"---Meanings.

Black's Law Dictionary (Sixth Edition) pp.1322 and 1323 ref.

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

----Ss. 6 & 20-A---Pre-emption suit---Improvement in status of vendee during pendency of suit by becoming co-sharer in suit land on basis of gift-deed---Validity---No right would accrue to vendee on basis of such improvement, which was not recognized by Islam and would not affect lawful right of prior purchase vested in pre-emptor under Azad Jammu and Kashmir Right of Prior Purchase Act, 1993---Such improvement was barred by S.20-A of the Act applicable to pending cases, thus, would not affect right of pre-emptor in suit---Suit was decreed in circumstances---Principles.

Ghulam Farid and others v. Mehmood Akhtar and others PLD 2010 SC 608], Aqal Hussain v. Muhammad Aslam Khan PLD 2004 AJ&K 17; Muhammad Saleem Khan v. Mst. Muqarab Jan and another (Civil Appeal No.45 of 2008, decided on 3-5-2011; Statutory Construction, Interpretation of Laws by Crawford; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Muhammad Rafique v. Federation of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad and another PLD 2005 Lah. 150; Eid Muhammad v. Khan Nazir Ahmed Khan and another PLD 1966 (W.P.) Lah. 1041; Mian Arif Iftikhar and others v. Commissioner Lahore Division and others PLD 1969 (W.P.) Lah. 53 and Fazal Dad v. Khadim Hussain and another 1995 MLD 1299 ref.

Messrs Khaliq and Najam Company v. Sales-Tax Officer, B-Ward, Lahore and another PLD 1959 (W.P.) Lah. 915; Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Mian Arif Iftikhar and others v. Commissioner Lahore Division and others PLD 1969 (W.P.) Lah. 53; Eid Muhammad v. Khan Nazir Ahmed Khan and another PLD 1966 (W.P.) Lah. 1041; Muhammad Rafique v. Federation of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad and another PLD 2005 Lah. 150; Fazal Dad v. Khadim Hussain another 1995 MLD 1299; Ghulam Muhammad v. Emperor AIR 1933 Lah. 481; Pandit Harbhargwan v. Sardar Partap Singh AIR 1938 Lah. 242; Ghulam Muhammad and another v. Bagga and others PLD 1962 (W.P.) Lah. 693; Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Muhammad Rashid v. Muhammad Khaliq and 3 others 2001 CLC 1124; Aqal Hussain v. Muhammad Aslam Khan PLD 2004 AJ&K 17 and Muhammad Saleem Khan v. Mst. Muqarab Jan and another Civil Appeal No.45 of 2008, decided on 3-5-2011 rel.

(c) Interpretation of statutes---

----Law affecting substantive rights of persons could not have a retrospective effect unless provided so therein.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Messrs Khaliq and Najam Company v. Sales-Tax Officer. B-Ward, Lahore and another PLD 1959 Lah. 915; Eid Muhammad v. Khan Nazir Ahmed Khan and another [PLD 1966 (W.P.) Lahore 1041; Mian Arif Iftikhar and others v. Commissioner. Lahore Division and others PLD 1969 (W.P.) Lah. 53; Muhammad Rafique v: Federation of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad and another PLD 2005 Lah. 150 and Fazal Dad v. Khadim Hussain another 1995 MLD 1299 rel.

Ch. Muhammad Afzal, Advocate for Appellants.

Abdul Majeed Mallick, Advocate for Respondents.

Date of hearing: 28th May, 2012.

2013 C L C 910

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

MUHAMMAD NAZIR and 11 others----Appellants

Versus

ABDUL MANNAN and 6 others----Respondents

Civil Appeal No.2 of 2010, decided on 4th October, 2012.

(On appeal from the judgment of the High Court, dated 10-10-2009 in Writ Petition No.190 of 2006).

(a) Azad Jammu and Kashmir Rehabilitation Act, 1956---

----Ss. 12-A, 21 & 23---Azad Jammu and Kashmir Rehabilitation Rules, 1953, R.10---Azad Jammu and Kashmir Adaptation of Laws Act 1959, Ss.3 & 6---Revision against order of Rehabilitation Commissioner by Custodian of Evacuee Property under S.12-A of Azad Jammu and Kashmir Rehabilitation Act, 1956---Limitation---Azad Jammu and Kashmir Rehabilitation Rules, 1953 framed under Azad Jammu and Kashir Rehabilitation Ordinance, 1952 had been protected by S.3 of Azad Jammu and Kashmir Adaptation of Laws Act, 1959---Limitation provided under R.10(ii) of Azad Jammu and Kashmir Rehabilitation Rules, 1953 for such revision being 45 days and not 15 days from date of such order of Rehabilitation Commissioner---Principles.

Bashir Ahmed Khan v. Custodian Evacuee Property Azad Jammu and Kashmir Muzaffarabad and 2 others PLD 1987 SC (AJK) 118 overruled.

(b) Interpretation of statutes---

----Duty of court to interpret various provisions of statutes harmoniously in order to suppress mischief and advance remedy---Principles.

Principle of interpretation of statute is that various provisions of statutes must be interpreted harmoniously to each other and one cannot be interpreted in such a manner that the other becomes nugatory. The courts have to suppress the mischief and advance the remedy.

While interpreting any statute, the courts should adhere to the ordinary meanings of the words used and to their grammatical construction, nothing can be added or subtracted. The interpretation should not be so which creates absurdity, inconsistency or inconvenience.

Messrs Standard Printing Press v. Sindh Employees Social Security Institution 1988 SCMR 91 and Abdul Qayyum and others v. Niaz Muhammad and others 1992 SCMR 613 rel.

(c) Azad Jammu and Kashmir Rehabilitation Act, 1956---

----S. 11---Review of his order by Rehabilitation Commissioner---Maintainability---Rehabilitation Commissioner by virtue of S.11(5) of Azad Jammu and Kashmir Rehabilitation Act, 1956 could review his own order if justice might require---Words "as the justice may require" as used in S.11(5) of the Act could not be restricted to extent of only correction of errors or omissions, but would have to be construed liberally---Principles.

(d) Interpretation of statutes---

----When two interpretations are possible, then court would not accept a construction rendering the legislation futile.

(e) Interpretation of statutes---

----Intention of legislature could be known by words used in the statute.

(f) Administration of justice---

----When rights of parties are involved, then courts should avoid technicalities while discussing merits of case.

Muhammad Yaqoob v. Feroz Din NLR 1992 SCJ 178(sic) and Muhammad Saleem v. L.D.A. 1993 MLD 2312 rel.

Raja Hassan Akhtar, Advocate for Appellants.

M. Ashraf Chaudhry, Advocate for Respondents.

Date of hearing: 22nd May, 2012.

2013 C L C 1013

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Mst. SARDAR BEGUM and 5 others----Appellants

Versus

MUHAMMAD ILYAS and another----Respondents

Civil Appeal No.51 of 2009, decided on 29th November, 2012.

(On appeal from the judgment and decree of the High Court dated 23-6-2008, in Civil Appeal No.50 of 2005).

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

----O. XLI, R. 31---Judgment of Appellate Court---Non-recording of findings issue-wise---Validity---Such judgment, if delivered after considering record, would be valid ---Principles.

Under Order XLI, Rule 31 of the Civil Procedure Code, 1908 it is enjoined upon the Appellate Court to state the points for determination, decision thereon, the reasons for the decision and where the decree appealed from is reversed, the relief to which the appellant is entitled. The record of findings issue-wise is the requirement of the rules, but where the court comes to the conclusion that the appeal can be decided without recording findings on each and every issue and delivers the judgment after considering the record, then the judgment is valid one.

Allah Ditta and others v. Muhammad Sharif and others 2012 CLC 1274 rel.

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

----S. 100---Second Appeal---Concurrent findings of facts of two courts below---Validity---High Court could not disturb such findings in second appeal.

Adalat Khan v. Fazal Hussain and another 1995 SCR 151; Sardar Ali and 2 others v. Saghir Ahmed 2006 SCR 414 and Habibullah v. Ghulam Rasool 2011 SCR 501 rel.

Ch. Muhammad Ilyas, Advocate for Appellants.

Ch. Muhammad Reaz Alam, Advocate for Respondents.

Date of hearing: 23rd October, 2012.

2013 C L C 1091

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and

Raja Saeed Akram Khan, JJ

BARKAT ALI and another----Petitioners

Versus

SULTAN MEHMOOD and others----Respondents

Civil Miscellaneous No.98 of 2011, decided on 25th April, 2012.

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

---- S. 135---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration as owner in possession of shamilat deh land Jurisdiction of Civil Court and Revenue Officer---Scope---Revenue authorities had jurisdiction to work out share in such land according to holding of landowners in village or estate---Civil court having limited jurisdiction in respect of such land could not grant permanent injunction against all shareholders possessing land in village or estate---No specific share in such land could be declared to be in possession of any landowner in absence of its partition by Revenue Officer by metes and bounds---Declaratory decree in respect of such land, if granted, would be inter parties and would not be enforceable against other share-holders therein nor binding on revenue authorities.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLVI, Rr. 1 & 2---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review petition after final decision of appeal by Supreme Court---Maintainability---Review would be competent in case of error apparent on face of record, but would not be allowed for reappraisal of evidence or inquiry into facts or on ground that petitioner was not satisfied from judgment.

(c) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLIII, R. 5 & O.XLVI, Rr.1, 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 42-A(4)---Dismissal of review petition filed against judgment passed in appeal by Supreme Court---Application under O.XLIII, R.5 of Azad Jammu and Kashmir Supreme Court Rules, 1978 for amendment of judgments passed in appeal and review petition---Maintainability---Azad Jammu and Kashmir Supreme Court Rules, 1978 would regulate practice and procedure of Court---Court during hearing of appeal, if felt necessary, might pass any order to meet ends of justice---Review petition had been dismissed on ground that judgment in appeal was perfectly legal and was not suffering from any apparent error---Petitioner had made such application for rehearing of appeal after dismissal of his review petition---Supreme Court dismissed such application in circumstances.

Khawar Abbas Sikandar v. The State Civil Miscellaneous No.160 of 2009 and Mirza Muhammad Aslam Baig v. Dr. Saghir Iqbal 1992 SCR 94 rel.

Sardar Muhammad Azam Khan, Advocate for Petitioners.

Nemo for Respondents.

Date of hearing: 27th February, 2012.

2013 C L C 1186

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MANZOOR HUSSAIN----Appellant

Versus

ZAREEDA BI and 7 others----Respondents

Civil Appeal No.50 of 2010, decided on 28th November, 2012.

(On appeal from the judgment and order of the High Court dated 28-3-2009 in Civil Appeal No.170 of 2006).

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

----Ss. 2(2), 96, 100 & O.XLI, R. 1---Second appeal---Omission in prayer to set aside impugned decree---Dismissal of appeal by High Court on account of having become incompetent due to such omission---Validity---Appeal under S.96, C.P.C. would lie against a decree, whereas only judgment as per S.100, C.P.C. would have to be challenged---Word "decree" as per S.2(2), C.P.C. being formal expression of adjudication determining conclusively rights of parties with regard to all or any of the matters in controversy---Word "decree" could not be confined merely to a decree-sheet drawn on a prescribed form---Dictionary meanings of word "decree" included word "judgment"---Grounds of objections against decree would originate from details of its order/judgment or could be founded thereupon---Decree could not sustain, if judgment was set aside---Court was to do substantial justice and should not throw a party out of court on technicalities---No express statutory provision existed to throw out an appeal on ground mentioned in impugned judgment---Supreme Court set aside impugned judgment and remanded appeal to High Court for its decision on merits according to law.

(b) Words and phrases---

----"Decree"---Meanings stated.

Black's Law Dictionary Sixth Edition rel.

(c) Administration of justice---

----Duty of courts to do substantial justice and not to throw a party out of Court on technicalities.

Ch. Muhammad Mehfooz, Advocate for Appellant.

Ch. Muhammad Sabir, Advocate for Respondents.

Date of hearing: 28th November, 2012.

2013 C L C 1211

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan and Ch. Muhammad Ibrahim, Zia, JJ

Civil Appeal No.61 of 2009

REHMAT JAN and 10 others----Appellants

Versus

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

(On appeal from the judgment of the High Court dated 25-3-2009 in Civil Appeal No.92 of 2007)

Civil Appeal No.46 of 2009

WAPDA through Chief Engineer/Project Director, Mangla Dam Raising Project Mangla Mirpur and 2 others---Appellants

Versus

REHMAT JAN and 9 others---Respondents

(On appeal from the judgment of the High Court, dated 25-3-2009 in Civil Appeal No.92 of 2007).

Civil Appeals Nos.61 and 46 of 2009, decided on 27th January, 2011.

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

---Arts. 2(c), 102 & 103---Oral as well as documentary evidence available on record regarding same fact---Preferential treatment---Scope---Propriety of law would demand that in presence of cogent documentary direct evidence, consideration of other evidence would not be necessary---Principles.

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

----Ss. 23 & 4---Determination of compensation of acquired land with reference to date of publication of notification under S.4 of Land Acquisition Act, 1894---Not an absolute yardstick---Principles.

For determining the quantum of fair compensation, the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.

Assessment of compensation mere with reference to the time of publication of notification under section 4 of the Land Acquisition Act, 1894 is not an absolute yardstick, even the court may consider the future potential of the acquired property.

In the present case, notification under section 4 was issued on 17-1-2005 and the award was issued on 5-10-2006, whereas the sale-deed dated 15-10-2005 (regarding land in same village) was executed before issuance of the award, thus, it was the most cogent and credible piece of evidence, which reflected the actual bona fide market value of the land of the locality.

1996 SCR 132; Muhammad Maroof Khan v. The State and 4 others 1996 SCR 136; Abdul Aziz v. AJK 2010 SCR 47 and PLD 2004 SC 512 rel.

Ch. Muhammad Taj and Sardar Muhammad Azam Khan, Advocates for Appellants (in Civil Appeal No.61 of 2009).

Haji Muhammad Afzal, Advocate for Respondent (in Civil Appeal No.61 of 2009).

Haji Muhammad Afzal, Advocate for Appellants (in Civil Appeal No.46 of 2009).

Ch. Muhammad Taj and Sardar Muhammad Azam Khan, Advocates for Respondents (in Civil Appeal No.46 of 2009).

Date of hearing: 23rd November, 2009.

2013 C L C 1236

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

ALI UMAR and others----Appellants

Versus

Mst. MINNI and others----Respondents

Civil Appeal No.49 of 2005, decided on 15th December, 2012.

(On appeal from the order of the High Court dated 27-4-2004 in Civil Appeal No.15 of 2000).

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

----O. XXIII, R. 1---Specific Relief Act (I of 1877), S. 8---Suit for joint possession of land---First application by female plaintiff for withdrawal of suit to her extent---Second application by female plaintiff before passing any order on first application for allowing her to withdraw first application on ground that she had been fraudulently induced to file first application---Dismissal of suit by Trial Court to extent of female plaintiff after accepting first application upheld by Appellate Court---Fresh suit by female plaintiff dismissed by Trial Court on grounds of estoppel and res judicata---Dismissal of fresh suit by Trial Court upheld by Appellate Court; but set aside by High Court allowing female plaintiff to withdraw first application and remanding case to Trial Court for its decision---Validity---Application for withdrawal of suit could be withdrawn before passing of any order thereon by court---Issue with regard to withdrawal of first application was directly and substantially in issue in former suit and court after hearing parties had decided same against female plaintiff to her extent---Issue with regard to withdrawal of first application decided wrongly or rightly in former suit by Trial Court had attained finality after dismissal of her appeal filed thereagainst---Fresh suit challenging proceedings in former suit, which had already been concluded to extent of female plaintiff, was barred by principle of res judicata and estoppel---Supreme Court set aside impugned judgment/decree and restored that passed by Trial Court and Appellate Court.

Shaukat Habib and others v. Raja Muhammad Bashir and another Civil Appeal No.109 of 1999 ref.

Zahro v. Additional District Judge, D.G. Khan 2005 CLC 1101; Yeshwant Govardhan v. Totaram Avasu and others AIR 1958 Bom. 28 and Sakhiullah v. Habibullah 2011 SCR 133 rel.

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

----O. XXIII, R. 1---Application for withdrawal of suit---Withdrawal of such application---Scope---Such application could be withdrawn, if no order was passed thereon.

Zahro v. Additional District Judge, D.G. Khan 2005 CLC 1101 rel.

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

----S. 11---Res judicata---Scope---Second suit would not lie on same issue or cause having remained subject-matter of former suit decided finally by competent court---Principles.

According to section 11, C.P.C., no court is competent to try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title in court competent to try such subsequent suit or the suit in which such issue been subsequently raised, and has been heard and finally decided by such court. The words "suit" or "issue" are very important. This statutory provision conveys that if any suit directly and substantially in issue in the former suit when finally disposed of by a court of competent jurisdiction then on the same issue or cause, subsequent suit does not lie. As such the parties are barred to raise the issue in the subsequent suit which has been finally decided by the court of competent jurisdiction in a former suit.

M. Yaqoob Khan Mughal, Advocate for Appellants.

Muhammad Noorullah Qureshi and Syed Azad Hussain Shah, Advocates for Respondents.

Date of hearing: 15th November, 2012.

2013 C L C 1473

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, and Raja Saeed Akram Khan, JJ

GENERAL MANAGER, AZAD KASHMIR LOGGING AND SAWMILLS CORPORATION, MUZAFFARABAD----Appellant

Versus

ABDUL REHMAN and 2 others----Respondents

Civil Appeal No.101 of 2011, decided on 11th December, 2012.

(On appeal from the judgment and decree of the High Court dated 14-5-2011 in Civil Appeal No.55 of 2008).

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

----O. IX, R. 6---Ex parte proceedings---Statements of witnesses recorded ex parte---Ex parte proceedings were not got cancelled by defendant by making application to court---Effect---Such statements would remain unchallenged and unrebutted.

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

----S. 9---Civil suit, decision of---Proof---Strict proof like in criminal cases would not be required in civil cases, which would be decided keeping in view preponderance of probability appearing from evidence available on record---Principles.

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

----O. XLI, R. 27---Additional evidence, recording of---Powers of Appellate Court--- Scope--- Appellate Court could record such evidence either suo motu or on application of a party---Illustration.

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

----O. XXVI, R.9 & O.XLI, R.27---Local Commissioner for spot inspection as additional evidence, appointment of---Powers of Appellate Court---Scope---Court could appoint such Commissions.

Sarhad Development Authority through Chairman, Peshawar v. Land Acquisition Collector/Deputy Commissioner Abbottabad and 19 others 1998 SCMR 730 and Ghulam Muhammad Chaudhry v. Akbar Hussain through Legal Heirs and another PLD 2002 SC 615 rel.

Raja Muhammad Arif Rathore, Advocate for Appellant.

Respondent No.1 in person.

Date of hearing: 11th December, 2012.